10572 4CE5SAT1 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 December 14, 2004 8 9:34 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10573 4CE5SAT1 1 (Trial resumed; jury not present) 2 THE COURT: Good morning, all. Please, be seated. 3 Mr. Sattar is on the stand. 4 Mr. Morvillo? By the way, the jury has asked that we 5 break promptly when they get their lunch today, so we will do 6 that. 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 10574 4CE5SAT1 1 (Jury present) 2 THE COURT: Please be seated, all. Good morning, 3 ladies and gentlemen. 4 THE JURY: Good morning. 5 THE COURT: Good to see you all, as always. 6 Mr. Sattar is on the stand. 7 Mr. Fletcher? 8 THE DEPUTY CLERK: Mr. Sattar, you are reminded that 9 you are still under oath. 10 THE WITNESS: Thank you. 11 AHMED ABDEL SATTAR, resumed. 12 THE COURT: Mr. Morvillo, you may examine. 13 MR. MORVILLO: Thank you, your Honor. 14 CROSS EXAMINATION (continued) 15 BY MR. MORVILLO:: 16 Q. Mr. Sattar, you knew in October of 1997 that the Islamic 17 Group was a designated terrorist organization by the United 18 States Department of Treasury, right? 19 A. In October '97? 20 Q. At least by October of '97? 21 A. I know they were -- yes, I know the Islamic Group was 22 designated but I don't know exactly when. 23 MR. MORVILLO: Your Honor, may I display for the jury 24 Government Exhibit 2032, in evidence? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10575 4CE5SAT1 Sattar - cross 1 MR. MORVILLO: This document is only against 2 Mr. Sattar and solely for his knowledge, intent and state of 3 mind. 4 THE COURT: All right. 5 Q. Mr. Sattar, do you see this document? 6 A. Yes. 7 Q. And this was found in the search of your apartment, right? 8 A. Yes. 9 Q. You possessed this document? 10 A. Yes. 11 Q. Do you know where you got it from? 12 A. I'm not -- I'm not quite sure where I got it from. It, 13 either of -- I'm not sure. 14 Q. And the, it is a list of terrorist organizations that were 15 designated by the United States Department of Treasury, right? 16 A. Yes. 17 Q. And this list is as of October 8th of 1997? 18 A. Yeah. I see the date there, yes. 19 Q. And do you see Al-Gama'a al-Islamiyya on there? 20 A. Yes. 21 Q. And that's right here? 22 A. Yes. 23 Q. Ms. Griffith, can you scroll down to the bottom of the 24 page, please? 25 Do you see the date down there, Mr. Sattar, October SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10576 4CE5SAT1 Sattar - cross 1 8th of 1997? 2 A. Yes. 3 Q. And there is a time, 15:23:38? 4 A. Yes. 5 Q. Did you download this from the internet? 6 A. Could be, yes. I'm not quite sure. 7 Q. Could you go to the second page of the exhibit? And go 8 down to the Legal Consequences. 9 Do you see, Mr. Sattar, in this exhibit, that it talks 10 about the legal consequences of providing funds or other forms 11 of support to terrorist organizations? 12 A. Yes. 13 Q. And you were aware of that in 1997, right? 14 A. I was aware of you are not supposed to provide support to a 15 terrorist organization in 1997? 16 Q. Right. 17 A. I know about the law, you know, I mean I didn't know about 18 the fine points of the law but I know about there was a law, 19 yes. 20 Q. You can take that down, Ms. Griffith. 21 Mr. Sattar, since your arrest in April of 2002, you 22 have come to learn that the FBI recorded a lot of your 23 telephone calls? 24 A. Yes. 25 Q. And, in fact, following your arrest in April of 2002, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10577 4CE5SAT1 Sattar - cross 1 government provided you and your lawyers with discovery in this 2 case, right? 3 A. Yes. 4 Q. And you have had access to all of those recordings between 5 April 2002 and now, right? 6 A. I can't say I have access myself to everything. 7 Q. Well, you -- the total number of recordings that were 8 introduced into evidence in this case is a very small fraction 9 of the total number of recordings that were intercepted over 10 your telephone, right? 11 A. According to what the government says, yes, about 85,000, 12 88,000 calls, and that the government introduced about 250 or 13 230 calls; yes. 14 Q. And with respect to the conversations that were introduced 15 into evidence, you certainly had access to those recordings, 16 right? 17 A. Some of it, yes. And some of it, no. Some of it I was 18 sitting here in court listening to some of them, you know, I 19 was provided by computer here in court to listen to some of 20 them. 21 Q. And you had access to the transcripts of those calls, 22 right? 23 A. I had access, yes, to some transcripts, yes. 24 Q. And in fact, in discovery, the government provided you with 25 about 5,000 summaries of telephone calls over your telephone, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10578 4CE5SAT1 Sattar - cross 1 right? 2 A. I'm sorry? 3 Q. The government provided you with summaries of about 5,000 4 calls that were intercepted over your telephone, right? 5 A. Yes, the government provided me with some summaries. I 6 don't know how many exactly. 7 Q. It was thousands of pagess of summaries, right? 8 A. Yes. 9 Q. And your lawyers had access to all this information too, 10 right? 11 A. I believe they do, they did have access; yes. 12 Q. And, based on your review of the materials, you learned 13 that the FBI was monitoring your telephone at different times, 14 right? 15 A. Yes. 16 Q. And they were monitoring your phone from March 1995 to 17 November of '95, right? 18 A. To November '90 -- 19 Q. '95. 20 A. No, from March '95 to November '96, I believe. 21 Q. It was actually from March '95 to November '95, right; and 22 then March '96 to November '96. There was a gap between 23 November '95 and March of '96, right? 24 A. Right. I mean, you know better than me. 25 Q. And then there was, they monitored from March '96 to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10579 4CE5SAT1 Sattar - cross 1 November '96, right? 2 A. From March '96 to November '96? 3 Q. Yes. 4 And then there was a break in monitoring again and it 5 didn't resume until November of '98, right? 6 A. I know there was a gap, you know, from '96 to '98. I know 7 it was a big gap in there. 8 Q. And those thousands of pages of summaries of the calls, you 9 reviewed those calls, right, those summaries? 10 A. I had access to some summaries, yes, and I had -- and I 11 reviewed some of the them, the summaries, yes. 12 Q. And you hired translators to prepare summaries and 13 transcripts of telephone calls, right? 14 A. Yes. 15 Q. And you would agree with me, wouldn't you, that the 16 recordings made by the FBI of your telephone calls that were 17 introduced into evidence in this case are true and accurate 18 recordings of those calls? 19 A. I cannot say it is true and accurate recording of those 20 calls. You know, I mean, to my understanding. 21 Q. You cannot say that? 22 A. No, I cannot. 23 Q. Can you point to one telephone call that that was not true 24 or accurate, Mr. Sattar? 25 A. I'm not saying -- it is in my understanding I do not, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10580 4CE5SAT1 Sattar - cross 1 consider when I am having a conversation and it is cut in the 2 middle, I'm listening to a conversation and it's cut in the 3 middle and I know this conversation continued, I -- I don't 4 think this is true and accurate conversation. 5 Q. But where there was recordings made, those recordings were 6 true and accurate, right? 7 A. That recording, those portions, yes. Yes. 8 Q. But what wasn't recorded is not true and accurate, right? 9 A. What was not recorded? 10 Q. What was not recorded. 11 A. It's not recorded, I don't know what happened to it. 12 Q. But, the recordings that are in evidence that were actually 13 recorded are true and accurate recordings of your 14 conversations, right? 15 A. That recording are, yes. What I said and what other people 16 said, it's there. But the rest of the conversations, I really 17 don't know what happened to it. 18 Q. Now, it's fair to say, Mr. Sattar, that the vast, vast 19 majority of telephone calls introduced into evidence in this 20 case were from the post-November 1998 period, right? 21 A. Yes. 22 Q. And as we discussed yesterday, there is only one telephone 23 call from pre-November '98 that was in evidence and that's 24 Government Exhibit 1001X, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10581 4CE5SAT1 Sattar - cross 1 Q. Now, Government Exhibit 1002X is the first call in evidence 2 between yourself and Rifa'i Taha, right? 3 A. 1002X? 4 Q. Yes. 5 A. It -- the first call in evidence? 6 Q. In evidence. 7 A. Yes. 8 Q. But it was not the first time that you spoke to Mr. Taha, 9 right? 10 A. No, it was not the first time. It was around that time, 11 the first time I spoke to him. 12 Q. And we spoke about this telephone call yesterday, right? 13 This is the one that establishes that Mr. Taha was in 14 Afghanistan? 15 A. Yes. 16 Q. Now, just so we have the time frame right here, Government 17 Exhibit 1002X is in December of 1998? 18 A. I think it is, yes. 19 MR. MORVILLO: Your Honor, may I display for the jury 20 the first page of Government Exhibit 1002X? 21 THE COURT: Yes. 22 Q. This is the first page of that transcript, Mr. Sattar, 23 right? It's December 12th of 1998? 24 A. Yes, I see that. 25 Q. And you testified that Yassir Al-Sirri introduced you to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10582 4CE5SAT1 Sattar - cross 1 Rifa'i Taha, right? 2 A. Yes. 3 Q. But, of course, prior to that you had known who Rifa'i Taha 4 was just from your knowledge of the Islamic Group, right? 5 A. Yes. 6 Q. And you were aware of the fact that Rifa'i Taha was a 7 leader of the Islamic Group? 8 A. I was aware of the fact that he was one of the leaders, one 9 of the founders of the Islamic Group. At the time I was not 10 sure that he was the leader of the Islamic Group. I know there 11 was some conflicts going between leaders in the Islamic Group 12 and, you know, it was published all over the newspaper that, 13 you know, here is even, you know, there was some published 14 reports saying that he resigned and there is other people who 15 are in charge of the Islamic Group. 16 Q. Right. And that was in the wake of the Luxor massacre, 17 right? 18 A. That was after Luxor, yes. 19 Q. And, incidentally, are you aware of the fact that it was 20 reported that Taha and Hamza were directly related to the 21 planning of the Luxor attack, right? 22 A. I'm sorry? 23 Q. You are aware of the fact that it was reported that Taha 24 and Hamza were directly connected to the planning of the Luxor 25 attack, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10583 4CE5SAT1 Sattar - cross 1 A. No, I was not aware of that, that they were directly 2 connected. 3 I was aware that, you know, you know, some faction of 4 the Islamic Group claimed responsibility. Other faction, you 5 know, they said they denied responsibility. I'm not quite sure 6 about the names who exactly was, you know, claiming 7 responsibility and who is not. 8 In some reports -- you know, I mean, I'm telling you 9 from newspaper reports that it was in '97. I know there was 10 some reports saying, you know, people claimed responsibility, 11 others denied responsibility. 12 Maybe Rifa'i Taha was one of the people who claimed 13 responsibility. I'm not quite sure. 14 Q. Well, in fact, he mentioned it in telephone calls that were 15 introduced into evidence in this case that the Islamic Group 16 was responsible for the Luxor attack, right? 17 A. He mentioned? 18 Q. Yes. 19 A. That the Islamic Group was responsible for -- it could be 20 mentioned, yes. I'm not -- I don't know which phone call. 21 Q. Are you familiar with the statement by Muntasir Al-Zayat 22 made in November of 1997 that Hamza and Taha would be entirely 23 responsible for the planning of the Luxor attack? 24 A. I can't say that I am familiar with it. 25 Q. There were many articles written about the Luxor attack, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10584 4CE5SAT1 Sattar - cross 1 right? 2 A. Yes. 3 Q. Do you recall whether any of those articles that you 4 read -- that you possessed or that you read, mentioned that 5 Taha was involved in the planning of the Luxor attack? 6 A. I -- I -- I don't remember anything, anything that I 7 possessed saying, you know, that -- I really don't remember. 8 Mr. Morvillo, you know, we're talking about newspapers 9 articles in 1997. You know, I mean, it was a very confusing 10 time and I really don't remember exactly. 11 I know there was two factions, one is denying 12 responsibility, one is claiming responsibilities. But who is 13 precisely denying and who is precisely claiming, I don't know. 14 The only thing that I know for a fact that I urged 15 Sheikh Omar Abdel Rahman to issue a condemnation. This is only 16 for that attack. 17 Q. Well, it is also true that when he was originally informed 18 of the Luxor attack he had no comment, right? 19 A. Yes, he did have no comment. 20 Q. And you said that in the newspapers, right? 21 A. Yes. And I -- and after that I was the one who urged him 22 to come and condemn this act. 23 Q. Well, the SAMs were imposed at the time, right? 24 A. Yes. 25 Q. And so you didn't directly urge him to do anything, did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10585 4CE5SAT1 Sattar - cross 1 you? 2 A. No, I did not directly urge him to do it, I didn't -- 3 Q. But you commune -- 4 THE COURT: Stop, stop, stop. Let the witness finish 5 answering -- 6 THE WITNESS: I didn't -- 7 THE COURT: Hold on. 8 THE WITNESS: Sorry, your Honor. 9 THE COURT: Let the witness finish answering the 10 question. Question, answer. The reporter can only get down 11 one person speaking at a time. 12 THE WITNESS: Mr. Morvillo, I did not directly urge 13 him, I urged him through Mr. Clark. 14 BY MR. MORVILLO:: 15 Q. But you communicated to him your opinions, right? 16 A. Through Mr. Clark, yes. 17 Q. And he responded? 18 A. And he condemned the attack. 19 Q. Now, you knew when you first spoke to Mr. Taha that he was 20 a fugitive from Egypt, right? 21 A. Yes. 22 Q. And you knew that, as you said, he was one of the leaders, 23 if not the leader of the Islamic Group, right? 24 A. Yes, I knew he was one of the leaders, yes. 25 Q. And you also knew that the Islamic Group was a terrorist SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10586 4CE5SAT1 Sattar - cross 1 organization, right? 2 A. Yes. 3 Q. And you also knew that the Islamic Group carried out the 4 Luxor attack, right? 5 A. I knew, yes. According to the newspapers I knew, yes. 6 Q. Now -- 7 MR. MORVILLO: Your Honor, may I display Government 8 Exhibit 1002X again? 9 THE COURT: Yes. 10 Q. This is a call that you set up between Mr. Taha and 11 Mr. Al-Zayat, right? 12 A. Yes. 13 Q. And, again, Rifa'i Taha was calling you from Afghanistan 14 and you connected Muntasir Al-Zayat in Egypt? 15 A. Yes. 16 Q. And you testified on direct that you never called, 17 directly, Afghanistan, right? 18 A. I don't believe I ever called, directly, Afghanistan. 19 Q. Right. 20 The IG leaders in Afghanistan always called you? 21 A. They always called me. I didn't even have phone numbers 22 for them, I mean for Rifa'i Taha or Mustafa Hamza. 23 Q. Right. 24 And the reason why you didn't have telephone numbers 25 for Rifa'i Taha and Mustafa Hamza was because they didn't want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10587 4CE5SAT1 Sattar - cross 1 their telephone numbers to be able to be traced, right? 2 A. They -- probably, yes. They were just, you know, certain 3 things they were secretive. They didn't want it to be known to 4 anybody, to even me. 5 Q. Ms. Griffith, can you go to page 20 of this exhibit? 6 Do you recall, Mr. Sattar, that during this 7 conversation, Rifa'i Taha directed Muntasir Al-Zayat's 8 attention to an interview that was published with him in 9 Al-Quds newspaper on August 15th of 1998? 10 A. Yes. 11 Q. And, you read that interview with Rifa'i Taha that was 12 published in Al-Quds too, right? 13 A. I might, yes. 14 Q. Well, in fact, you participated in this call and talked 15 about this interview, didn't you? Down at the bottom you 16 said -- Mr. Al-Zayat said at line 13: Okay, I'll try to get it 17 from the Cairo office or retrieve it from the -- 18 And you said: From the internet. 19 And Mr. Rifa'i Taha then said: The issue dated the 20 15th and 16th. 21 That's August 15th and 16th of 1998, right? 22 A. Yes. I was just informing Mr. Al-Zayat here that he could 23 get it from the internet. 24 Q. Right. 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10588 4CE5SAT1 Sattar - cross 1 Q. Mrs. Griffith, can you scroll down, please? Keep going. 2 Then Muntasir Al-Zayat says: Was it published in two 3 issues? 4 And Rifa'i Taha says: No, no. 5 And you simultaneously: It's one issue. 6 A. I'm also informing Mr. Zayat here that Al-Quds Al-Arabi, 7 the newspaper issued one issue on Saturday and Sunday. 8 You know, if you go on the internet and you check 9 Al-Quds Al-Arabi and you will see, they don't come out on 10 Sunday so it's only one issue for the weekend for Saturday and 11 Sunday. This is what I was basically saying here. 12 Q. But you were familiar with Rifa'i Taha's interview, right? 13 A. Probably. 14 Q. Ms. Griffith, if you could go down on the page a little 15 bit. 16 At lines 5 and 6 Rifa'i Taha told Al-Zayat that he 17 wanted -- I will read it to you: Eh, eh, I want you to read 18 this interview. I also want the brothers inside to get it 19 alongside with or without the book. 20 So he was directing the imprisoned leaders of the 21 Islamic Group to read this, this interview that he had 22 conducted, right? 23 A. Yes. 24 Q. So when he says the brothers inside, he is talking about 25 the brothers in prison? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10589 4CE5SAT1 Sattar - cross 1 A. I think, yes, he is talking about the people in prison. Or 2 inside Egypt in general, I'm not -- 3 Q. And that interview that was published in Al-Quds in August 4 of 1998 is in evidence here, right? 5 A. Yes, I seen it, yes, in evidence here. 6 Q. And that's Government Exhibit 508? 7 Your Honor, may I display Government Exhibit 508 to 8 the jury, which is admitted only against Mr. Sattar? 9 THE COURT: Yes. 10 MR. MORVILLO: May I use the Elmo? 11 THE COURT: Yes. 12 Q. It's hard to read, Mr. Sattar, but can you make out this 13 article? 14 A. Yes, make it out, but this was found in my house? 15 Q. This is -- did you possess it? 16 A. I don't know. Or just, you know, you bring it over the 17 internet or -- I'm not quite sure what's -- 18 Q. This is a photograph of Rifa'i Taha, as far as you know, 19 right? 20 A. I'm sorry? 21 Q. This is a photograph of Rifa'i Taha, as far as you know? 22 A. Yes, in the newspaper. Yes. 23 Q. You have never met? 24 A. I have never met him. I have never seen him in person. 25 Q. And this interview is the interview in which Rifa'i Taha SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10590 4CE5SAT1 Sattar - cross 1 stated that he signed Osama Bin Laden's February '98 fatwah 2 calling for the murder of Americans, right? 3 A. Yes. 4 MR. MORVILLO: May I display Government Exhibit 508 5 again, your Honor? 6 THE COURT: All right. 7 Q. Right here at the bottom with number 2, that's actually a 8 copy of the fatwah, right? 9 A. According to the newspaper, yes, it says this is the whole 10 fatwah, yes. 11 MR. MORVILLO: Your Honor, may I display Government 12 Exhibit 508-T2, in evidence? 13 THE COURT: Yes. 14 Q. Now, Mr. Sattar, Government Exhibit 508-T2 is a translation 15 of the fatwah? 16 A. Yes. 17 Q. And at the top where it says "the ruling" I will just read 18 it to you. 19 The ruling to kill the Americans and their allies, 20 civilians and military, is an individual duty of every Moslem 21 who can do it in any country in which it is possible to do it, 22 in order to liberate the Al-Aqsa mosque and the holy mosque, 23 [Mecca], from their grip, and in order for the armies to move 24 out of all the lands of Islam, defeated and unable to threaten 25 any Moslem. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10591 4CE5SAT1 Sattar - cross 1 You knew at the time that you first started talking to 2 Rifa'i Taha that he had signed this fatwah, right? 3 A. Yes, I did. 4 Q. And going down here where it says: We, God willing, call 5 on every Moslem who believes in God and wishes to be rewarded 6 to comply with God's order to kill the Americans and plunder 7 their money wherever and whenever they find it. 8 You also knew that that was contained in the fatwah 9 that Mr. Rifa'i Taha had signed, right? 10 A. Yes. And I know this is also included me, my wife, my kids 11 and everybody that I love. 12 Q. Right. 13 And so, the person that you were connecting to other 14 IG leaders was a person who had stated publicly that he wanted 15 you and your entire family to be murdered, right? 16 A. Yes, I -- I stated -- I connected him and I, as what I 17 said, my dealing with him was pertained to Egypt, the Sheikh, 18 and the Sheikh. And anything else that he is saying that he 19 is -- it is just his words, Mr. Morvillo. 20 Q. Yes, but those words led to the embassy bombings in 1998, 21 didn't they? 22 A. I didn't don't know that. I don't know that. 23 MR. TIGAR: I would like to be heard at the break, 24 your Honor. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10592 4CE5SAT1 Sattar - cross 1 Q. You knew that the embassies were bombed in August of 1998, 2 right? 3 A. Yes, I do. 4 Q. And you understand that Osama Bin Laden was responsible for 5 those bombings, right, his organization, Al-Qaeda? 6 A. I know, yes, he was -- his organization was charged, yes. 7 Q. And, in fact, you were so interested in that indictment 8 that you asked Lynne Stewart to get it for you, right? 9 A. I was interested in that indictment -- 10 Q. And in fact -- 11 A. -- for one thing. My interest in that indictment was 12 pertained to somebody who was named in this indictment who was 13 dead already and he was charged in Egypt and tried. The 14 Egyptian government knew that he was dead. They even charge 15 him, as dead as he is, tried him and issued a sentence, you 16 know, of death, in absentia, against him, so -- 17 Q. Mr. Sattar, I ask you to listen to my question. 18 THE COURT: Stop, stop. Don't interrupt an answer. 19 Question, answer. Not two people speaking at the same time. 20 I'm not sure if the answer was finished. 21 THE WITNESS: I was just explaining why I was 22 interested in this indictment. I was just interested for this 23 indictment because of that person just to expose the Egyptian 24 government and, you know, to show what the other one, I send it 25 to Yassir Al-Sirri and to be published and to show what the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10593 4CE5SAT1 Sattar - cross 1 Egyptian government was doing. 2 Q. Right. 3 A. This was my only interest in this indictment, Mr. Morvillo. 4 Q. You translated the indictment from English into Arabic, 5 right? 6 A. I did because Mr. Al-Sirri did not speak English and I, you 7 know -- and it was going to be published on an Arabic website. 8 Q. And, incidentally, it wasn't the Egyptians who indicted Bin 9 Laden, it was the United States, right? 10 A. I'm not talking about in the indictment of Bin Laden, I'm 11 talking about the man who was mentioned in this indictment and 12 his name was El-Benshiry. 13 This is the man that whose name was in that indictment 14 and in the indictment said that he was dead already. He 15 drowned in Lake Victoria. I was interested in this indictment 16 because of that, Mr. Morvillo. 17 Q. Incidentally, when you testified earlier that you began 18 speaking with Rifa'i Taha in 1998, was that before or after the 19 embassy bombings? Do you recall? 20 A. If the embassy bombing was in August '98 I believe it was 21 after the embassy bombing. I'm not -- I told you it was in 22 late '98, so. 23 Q. So it was sometime after, you think, the embassy bombings, 24 right? 25 A. Yes. Probably, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10594 4CE5SAT1 Sattar - cross 1 MR. MORVILLO: Your Honor, may I display for the jury 2 Government Exhibit 1002X, in evidence, again? 3 THE COURT: Yes. 4 Q. Ms. Griffith, can you go to page 17? 5 During this call, Mr. Sattar, Muntasir Al-zayat and 6 Rifa'i Taha were talking about disputes within the group, 7 right? 8 A. I'm sorry. Can you repeat the question again? 9 Q. Rifa'i Taha and Muntasir Al-Zayat were speaking about 10 disputes within the group, right? 11 A. I believe so, yes. 12 Q. And if you look at line 15 where I have indicated with a 13 dot and an arrow, Rifa'i Taha says: Number two, when I was 14 out, we agreed that all they issue is okay if I approve it. If 15 I don't approve it, it is to be presented to Sheikh Omar. If 16 he approves my point of view, it passes. If he approves 17 theirs, it passes. This is because Sheikh Omar is the one who 18 says and decides, not because it is their viewpoint. 19 A. Not because it is their -- okay. 20 Q. Sheikh Omar is Sheikh Omar Abdel Rahman, right? 21 A. They are here -- yes. Sheikh Omar Abdel Rahman, yes. 22 Q. Ms. Griffith, can you go to page 32? 23 A. I need to explain something about this, you know, if I may? 24 Q. Let me ask you another question, Mr. Sattar. 25 After the call with Muntasir Al-Zayat and and Taha SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10595 4CE5SAT1 Sattar - cross 1 ended, you spoke with Rifa'i a Taha after Mr. Al-Zayat hung up, 2 right? 3 A. Yes. 4 Q. And, you were discussing, with Rifa'i Taha, Sheikh Omar 5 Abdel Rahman's case, right? 6 A. Case? 7 Q. His case, his status. 8 A. I believe I'm discussing his condition. 9 Q. His condition, his status. 10 A. Yes. 11 Q. Ms. Griffith, can you go down to the next page, please? 12 Slowly? Little bit further? Keep going. 13 At line 16 you say to Rifa'i Taha: Nothing can help 14 now unless it is a presidential pardon. 15 Right? 16 A. Yes. 17 Q. And you discuss the pardon a little bit and -- 18 Ms. Griffith, can you scroll down a little further, 19 please? Keep going? Please keep going. Thank you. 20 Line 9 you state: This is a very rare case. And 21 unless there is something in return, something like a change of 22 the situation in Egypt, Egypt trying to have an agreement with 23 them, something like that. Other than that, there is no, eh, 24 as long as the political situation is tranquil they show no 25 concern. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10596 4CE5SAT1 Sattar - cross 1 You said that, right? 2 A. Yes. 3 MR. MORVILLO: Your Honor, may I display Government 4 Exhibit 1003X? 5 THE COURT: Yes. 6 MR. MORVILLO: In evidence? 7 THE COURT: Yes. 8 Q. Now, Mr. Sattar, this is a call on December 14th of 1998 9 between yourself and Mustafa Hamza, right? 10 A. Yes. 11 Q. And, this was around the time when you first started 12 speaking to him, right? 13 A. This could be one of the first calls, yes. 14 Q. Right. 15 Ms. Griffith, can you scroll down a little bit just on 16 the first page? 17 And you said, at line 5: Likewise, how are you doing? 18 And Hamza responds: I'm fine, thank you. 19 And you state: This is Yunis, right? 20 A. Yes. 21 Q. Because you were not that familiar with his voice at that 22 time? 23 A. I was told that, you know, somebody named Yunis is going to 24 call me, so I assume that was him. 25 Q. Right. Rifa'i Taha told you that Yunis was going to call SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10597 4CE5SAT1 Sattar - cross 1 you? 2 A. Yes. 3 Q. And you say to him at line 9: I'm waiting for this call 4 for days. How are you, my dear brother? 5 A. Yes. 6 Q. And during this call, the first time you spoke with him, 7 you spoke about Sheikh Omar Abdel Rahman, right? 8 A. Yes. 9 Q. And you basically filled him in on Sheikh Abdel Rahman's 10 situation? 11 A. Yes. 12 Q. And, do you recall telling him that the newspapers are read 13 to him on a weekly basis? 14 A. I say that, yes. 15 MR. MORVILLO: Your Honor, may I display Government 16 Exhibit 1004X, in evidence? 17 THE COURT: Yes. 18 Q. Now, Mr. Sattar, this is actually a continuation of the 19 previous call with Mustafa Hamza, right? It is also dated 20 December 14th of 1998? 21 A. I -- was the other one dated December 12? 22 Q. No, that was the call with Rifa'i Taha, which is 1002X. 23 A. Oh. So. 24 Q. And you see, it says at the top, continuation of call? 25 A. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10598 4CE5SAT1 Sattar - cross 1 Q. Ms. Griffith, can you go to page 3 of this exhibit? 2 Do you see at line 12 Mr. Hamza asks you: Does he 3 receive any books? 4 And you responded by saying: He receives books, of 5 course. It is permitted to record the books on tapes, and they 6 listen to them first... 7 He says: Yes. 8 And you said: After that, they pass it to him. 9 And Mustafa Hamza says: Do they have translators 10 specially for that purpose? 11 And you say: Yes, of course. They have a large 12 department for translation. 13 What you are telling Mustafa Hamza is that when 14 recordings of books are made, they're sent to the prison, 15 someone reviews them, and then if they approve, the tapes are 16 passed to Sheikh Abdel Rahman, right? 17 A. Yes. 18 What I am telling him that the books will be put on 19 tapes, it will be sent to, through the lawyers to the Bureau of 20 Prisons. The Bureau of Prisons will take it to the FBI and the 21 FBI will review it. And if they deem it appropriate for the 22 Sheikh to listen to it, they will give it to him. If not, they 23 will return it back. 24 This is what I'm saying. 25 Q. And so, you knew that there was a process in place at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10599 4CE5SAT1 Sattar - cross 1 time in December of 1998 for sending tapes to Sheikh Abdel 2 Rahman, right? 3 A. Yes. I know everything that, you know, will be sent to 4 him. It will go through that process, you know -- 5 Q. You know everything that was sent to him would go through 6 that process, right? 7 A. The tapes, if it's sent to him, you know, it will go 8 through that process. 9 And I didn't see, you know, when I -- even when I sent 10 the Taha book to him I didn't see anything wrong with that, 11 because I knew it was going through -- the FBI will listen to 12 it and if they deem it appropriate he will receive it. If not, 13 they will return it back. 14 Q. Right. They didn't let that book in, right? 15 A. No, they did not let that book in. 16 Q. Ms. Griffith, can you go to page 5 at the very bottom? 17 During this call, at line 21, Mustafa Hamza says to 18 you: I tell you what. If you can deliver the message through 19 the stooges saying "those people have no problem with you, but 20 what they most care about is to free the man by any means 21 without creating any problems. Also, this is not the problem 22 of those people, they don't have any problems with you." If 23 you succeed in delivering this message, it will open the doors 24 to cool the atmosphere and to negotiate the matter. What I'm 25 telling you is that the people want to send a clear message. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10600 4CE5SAT1 Sattar - cross 1 "We have no problem with these people except for having the man 2 there, that is all. If the man is released, there will be no 3 problem between us." 4 A. Yes. 5 Q. Did I -- 6 A. I'm sorry. 7 Q. Did I read that right? 8 A. What he is saying here is that the Islamic Group has no 9 problem with the United States. 10 Q. Except for the fact? 11 A. Except for the fact that Sheikh Omar Abdel Rahman is in 12 prison. If the Sheikh is out of prison, they will have no 13 problem whatsoever with the United States. This is what he is 14 saying. 15 Q. But, if they don't release Sheikh Omar Abdel Rahman from 16 prison they will have a problem with the United States, right? 17 A. I can't tell you what is, what I'm reading right here, 18 Mr. Morvillo. 19 Q. That's what Mustafa Hamza said to you, right? 20 A. Mustafa Hamza is saying if the Sheikh is released, they 21 have -- basically, there is no animosity between the Islamic 22 Group and the United States to begin with. 23 The only thing, the only animosity that all -- the 24 only factor that creating animosity between Islamic Group and 25 the United States is the Sheikh being in jail in the United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10601 4CE5SAT1 Sattar - cross 1 States. This is what he is telling me. 2 Q. Right. 3 This is the leader of a terrorist organization telling 4 you that they're upset with the United States for holding 5 Sheikh Omar Abdel Rahman, right? 6 A. Yes. This was not -- this was not a secret, Mr. Morvillo. 7 You know, they expressed that so many times so, I mean, he is 8 not telling me any secrets here. 9 Q. But, before had anybody ever asked you, personally, to 10 deliver a message that the Islamic Group -- 11 A. Before? 12 Q. -- before this telephone call had a leader of the Islamic 13 Group ever asked you to pass a message to anyone saying that. 14 Unless the Sheikh is released the Islamic Group will have, 15 continue to have a problem? 16 A. Before these calls I was never in touch with any leaders or 17 even members of the Islamic Group. This was my first time 18 ever, you know, speaking to some leaders or members of the 19 Islamic Group, Mr. Morvillo. 20 Q. And during this very first telephone call that you had with 21 Mustafa Hamza, he asked you to pass a message saying that the 22 Islamic Group has a problem with the fact that you're holding 23 Sheikh Omar Abdel Rahman, right? 24 A. Yes. He asked me this and he asked me also if I can get an 25 ad in the New York Times, you know, to advocate the Sheikh's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10602 4CE5SAT1 Sattar - cross 1 release. 2 Also, in this conversation he asked me to do that. 3 Q. And -- 4 A. No, so we were just talking in general about the Sheikh, 5 the Sheikh's condition, what should be done, you know, for the 6 Sheikh. And he is, you know, he is just, you know, saying 7 things here. 8 Q. Right, and when he finished talking you said: What you are 9 saying is great. It is great, and I will say it with full 10 confidence, as they say. No problem. 11 A. Yes. 12 Q. Right? 13 And then he says to you: This might open the doors. 14 I hope that everything will be all right, by God's help. If 15 they insist on their stand this will be another issue. 16 Ms. Griffith can you scroll down, please? 17 If they insist on their stand, this will be another 18 issue. 19 In other words, what he is saying to you is if the 20 government of the United States does not release Sheikh Omar 21 Abdel Rahman that will be another issue, right? 22 A. What I am saying to him is this is -- 23 Q. That's not my question, Mr. Sattar. 24 A. -- is this is great. 25 THE COURT: Stop. One at a time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10603 4CE5SAT1 Sattar - cross 1 A. What I'm saying to him, this is great. I am always for a 2 political solution. I hate to see the United States 3 relationship with the Islamic movement going down. 4 He is talking about political solution here, he is 5 talking about, you know -- and I am for it. I know that the 6 Sheikh, you know, the Sheikh being here in jail is creating a 7 lot of controversy and, you know, he wants to -- he wants to 8 solve this. This will be, in my opinion, it would have been a 9 great thing, yes. 10 Q. Mr. Sattar, where does he talk about a political solution? 11 A. He is talking -- he is talking through the whole things 12 about political solution, Mr. Morvillo. I understand he is 13 talking about a political solution here. He is talking about 14 negotiating with the American government, you know, to tell 15 them, to tell the American government we have no animosity 16 toward you. 17 Q. And how -- 18 A. You know, that's what he is saying, that they have no 19 animosity, they have nothing toward the American government 20 except the Sheikh being here. If they can come to a solution 21 on this problem, you know, in my opinion it would have been 22 great. 23 Q. How does a terrorist organization negotiate? They say, 24 free the man or we'll take hostages, we'll kidnap people, we'll 25 kill people, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10604 4CE5SAT1 Sattar - cross 1 A. Mr. Morvillo, the negotiation does not happen between, you 2 know, just regular people, it happen between anybody. It 3 happen between enemies, it happen between people who did bad 4 things to each other and they sit down and they have political 5 negotiation. That's why we achieve -- that's how we achieve 6 peace in the world. 7 Q. And what, Mustafa Hamza, the leader of a terrorist 8 organization is telling you, is if the man is released there 9 will be no problem between us? 10 A. This is what he is saying, yes. 11 Q. And what that means is if he is not, there will be a 12 problem, right? 13 A. Well, I cannot say that. You know, he is saying, you 14 know -- what he is saying, he wants to have the Sheikh released 15 through some kind of negotiation and I was excited to hear 16 that, that he is trying to have some political negotiation. 17 Q. This was after, of course, the Islamic Group had threatened 18 to target all American interests until Sheikh Omar Abdel Rahman 19 was released from prison, right? 20 A. They've been saying that, you know, for quite a number of 21 years, as what I told you before. 22 Q. And you understood that if the United States did not 23 release Sheikh Omar Abdel Rahman, the Islamic Group was going 24 to continue to threaten American interests, right? 25 A. Yes, as what I said, it was empty threats and from, at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10605 4CE5SAT1 Sattar - cross 1 point when I was talking to Mustafa Hamza and I was, when I was 2 talking to Rifa'i Taha, I understood fully that the Islamic 3 Group has absolutely no power to do anything. They were just a 4 shell, an empty shell. This is what they were -- 5 Q. Mr. Sattar -- 6 A. I did not finish, Mr. Morvillo. 7 I understood that the Islamic Group was just issuing 8 empty threats. My conversation with those people started 9 after, in 1998. The Islamic Group was already done with any 10 military or terrorist activities. They were done. They were 11 finished. 12 I finished. Thank you. 13 Q. Are you finished? 14 A. Thank you. 15 Q. You don't need a lot of organizational capability to carry 16 out a terrorist attack, do you? 17 A. I don't know but I assume, yes. 18 Q. You assume yes, you do? 19 A. I mean -- I mean I really don't know. I was not part of 20 any organizing thing. You know, I mean -- I mean I always -- 21 it could be one people, two people, three people. I don't 22 know. 23 Q. Mr. Sattar, do you recall giving an interview on Frontline? 24 A. Yes. 25 Q. Do you recall saying, in response to a question about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10606 4CE5SAT1 Sattar - cross 1 embassy bombings, the following: 2 This is where we don't agree. An act like the World 3 Trade Center or Oklahoma City bombing, or the bombing in the 4 embassy in Nairobi does not need many people to do it. Could 5 be Joe Schmoe and another person with him like in Oklahoma 6 City. Could be four or five people like in the World Trade 7 Center. 8 Do you recall saying that? 9 A. Yes. And that's exactly falls where I'm telling you. I 10 don't know, could be two people like in Oklahoma City bombing 11 where I read about it and it could be four or five people like 12 what happened at World Trade Center. 13 Q. Right. 14 A. So I really don't know. I am not, you know, I am not an 15 expert on bombing, Mr. Morvillo. 16 Q. But as far as you know, to carry out a terrorist attack all 17 you need is a gun and a fatwah, right? 18 A. No, Mr. Morvillo. You don't need a gun and a fatwah. 19 Timothy McVeigh did not have a fatwah, Mr. Morvillo, 20 when he killed 258 people. 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10607 4CEMSAT2 Sattar - cross 1 MR. MORVILLO: Your Honor, I am going to move on to 2 another subject area. Do you want to take a break? 3 THE COURT: Ladies and gentlemen, we will take a 4 ten-minute break. Please remember my continuing instructions. 5 Please don't talk about the case at all and always remember to 6 keep an open mind until you have heard all of the evidence I've 7 instructed you on the law, you've gone to the jury room to 8 begin your deliberations. See you shortly. 9 All rise, please, and please follow Mr. Fletcher to 10 the jury room. 11 (Jury not present) 12 THE COURT: Mr. Sattar can step down. 13 DEFENDANT SATTAR: Thank you. 14 MR. TIGAR: Your Honor, the question by Mr. Morvillo 15 put to Mr. Sattar was: And his words, referring to Rifa'i 16 Taha's words, led to the embassy bombing in 1998, didn't they? 17 We respectfully -- it is our motion for a mistrial. In the 18 alternative, an instruction to the jury. There was no 19 good-faith basis for that question that Rifa'i Taha's words led 20 to the 1998 embassy. 21 The prosecutor then followed up with: You asked Lynne 22 Stewart to get it for you several questions later, i.e., the 23 indictment. And then it wasn't the Egyptian who indicted Bin 24 Laden. 25 In other words, not content with the question that had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10608 4CEMSAT2 Sattar - cross 1 no good-faith basis with respect to an event not charged, with 2 respect to an individual, Osama Bin Laden, who is not part of 3 any of the charged conspiracies, the prosecutor marched from 4 impropriety to impropriety to drive the point home. 5 We will at noontime, your Honor, be putting in a 6 declaration with respect to Taha in Egypt and why we believe 7 that he would testify, if they can find him, and with a 8 declaration that includes a statement under oath that, 9 according to a percipient witness who spoke to him, he later 10 withdrew his consent to the alleged fatwah. And the 11 government, of course, refuses to go and find out if Mr. Taha 12 is there. That's a separate issue. 13 Right now, my application is for a mistrial; in the 14 alternative, an admonition to the prosecutor and an instruction 15 to the jury that the question is improper. 16 THE COURT: Mr. Morvillo. 17 MR. MORVILLO: Obviously, we oppose the motion for a 18 mistrial, your Honor. There is no dispute that Rifa'i Taha 19 signed Osama Bin Laden's 1998 fatwah, February of 1998 fatwah 20 that called for the murder of Americans. I was questioning 21 Mr. Sattar about that. There is also no question that that 22 fatwah was included in the indictment as an overt act in 23 connection with the embassy bombings in August of 1998. I did 24 not bring that fact out, but that is in fact the case. And I 25 was questioning Mr. Sattar about his knowledge of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10609 4CEMSAT2 Sattar - cross 1 connection between the fatwah, Rifa'i Taha, and the embassy 2 bombings. As your Honor has repeatedly pointed out, questions 3 are not evidence. But there certainly was a good-faith basis 4 for asking the question, your Honor. 5 MR. TIGAR: Mr. Sattar could not possibly know the 6 answer to that question, even if it were asked in good faith. 7 And as courts repeatedly say, the fact that something is an 8 overt act in an indictment -- I believe the government posed an 9 instruction that an overt act could be perfectly innocent -- 10 that really doesn't establish the record on a good-faith basis, 11 your Honor. There is plenty to cross-examine about here. This 12 matter has nothing to do with the case. 13 THE COURT: The motion for a mistrial is denied. I'm 14 satisfied there was a good-faith basis for the question. 15 However, I will give an instruction to the jury that 16 the embassy bombings are not a part of the charges in this 17 case, and you are to disregard any testimony about the embassy 18 bombings. 19 MR. MORVILLO: Your Honor, the testimony about the 20 embassy bombings is relevant to show Mr. Sattar's knowledge, 21 intent, and state of mind at the time that he began having 22 conversations with Rifa'i Taha. And so I would respectfully 23 request that the instruction you are going to give to the jury 24 be limited in that way. 25 MR. PAUL: I certainly would object with that kind of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10610 4CEMSAT2 Sattar - cross 1 instruction being given to the jury, your Honor. 2 THE COURT: I'm sorry? 3 MR. PAUL: I would certainly object to that proposal 4 being given to the jury that Mr. Morvillo is suggesting, that 5 if you are giving a limited instruction that you direct it to 6 the knowledge of Mr. Sattar. Mr. Sattar has not testified with 7 regard to any knowledge he had of Taha's connection with the 8 embassy bombings, and I don't think that should be suggested to 9 the jury. 10 THE COURT: The witness testified that he did not know 11 that his words, I take it, or at least counsel argues that 12 that's Taha's words led to the embassy bombings in 1998 so that 13 if that's the extent of the proposed evidence with respect to 14 knowledge, intent, state of mind with respect to the embassy 15 bombings, it is -- is that it? 16 MR. MORVILLO: Your Honor, there was also I believe 17 some testimony earlier in the case about the embassy bombings 18 with respect to Mr. Fitzgerald. To the extent that you are 19 going to limit it, it would be just with respect to the 20 testimony this morning. 21 THE COURT: But that testimony is solely with respect 22 to one of the concerns that Mr. Fitzgerald had in issuing the 23 letter. 24 MR. MORVILLO: It was discussed during one of the 25 prison visits, I seem to recall, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10611 4CEMSAT2 Sattar - cross 1 THE COURT: The embassy bombings are not part of the 2 charges in this case and none of the defendants are charged 3 with having anything to do with the embassy bombings, and you 4 are to disregard any testimony this morning about the embassy 5 bombings. I'll give that instruction to the jury when they 6 return. 7 (Recess) 8 THE COURT: Mr. Sattar is on the stand. Mr. Morvillo 9 is at the lecturn. 10 (Jury present) 11 THE COURT: Mr. Sattar is on the stand. 12 Mr. Fletcher. 13 THE DEPUTY CLERK: Mr. Sattar, you are reminded that 14 you are still under oath. 15 DEFENDANT SATTAR: Thank you, sir. 16 THE COURT: Ladies and gentlemen, before we proceed, I 17 want to instruct you and I will instruct you that the embassy 18 bombings are not part of the charges in this case and none of 19 the defendants is charged with having anything to do with the 20 embassy bombings, and you are to disregard any testimony this 21 morning about the embassy bombings. 22 Mr. Morvillo, you may proceed. 23 MR. MORVILLO: Thank you, your Honor. 24 BY MR. MORVILLO: 25 Q. Mr. Sattar, at some point in early 1999 you got a letter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10612 4CEMSAT2 Sattar - cross 1 from Kamal and Gamal about the formation of a political party, 2 an Islamic political party? 3 A. Yes. 4 Q. And that letter was directed to Sheikh Omar Abdel Rahman, 5 right? 6 A. Yes. 7 Q. And what they wanted was his opinion as to whether they 8 should form an Islamic political party? 9 A. Yes. 10 Q. And that's because Sheikh Omar Abdel, they wanted his 11 opinion because his opinion was important to them, right, as 12 far as you understood it? 13 A. They wanted his opinion because they needed some support. 14 Q. How did you get the letter? 15 A. It was -- I believe it was faxed to me by Muntasir 16 al-Zayyat. I got it through Muntasir. I am not sure how I got 17 it. I got it from Muntasir al-Zayyat. 18 Q. It was actually on your computer at some point? 19 A. Yes. It could be that I got it through e-mail. I'm not 20 quite sure if it was a fax or e-mail. I got a fax on my 21 computer. I don't know. 22 Q. And you discussed that letter with Mustafa Hamza in a 23 telephone conversation, right? 24 A. Yes. 25 Q. And that call was Government Exhibit 1005 on January 26 of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10613 4CEMSAT2 Sattar - cross 1 1999? 2 A. Yes. 3 MR. MORVILLO: Your Honor, may I display a page from 4 Government Exhibit 1005 in evidence? 5 THE COURT: Yes. 6 MR. MORVILLO: Ms. Griffith, can you go to page 2, 7 line 10. 8 Q. Mr. Sattar you say, you say to Mr. Hamza: I am glad that 9 you called because I, brackets, sigh, brackets a letter came 10 from Gamal Sultan and Kamal Habib. 11 That's the letter to Sheikh Omar Abdel Rahman 12 requesting his opinion on the formation of a political party? 13 A. Yes. 14 Q. In connection with discussing that at lines 20 and 21 15 Mustafa Hamza says: Take your time, no problem. What do they 16 want in their letter? Do they need a fatwah, or what? And you 17 responded: Yes they want, they want eh, eh, an opinion 18 concerning the party. Brackets, reading parts of the letter. 19 It will be founded on the eh, eh, eh, religious laws governing 20 the rulers and the application of God's laws and so on, and we 21 will not give up anything, and, eh, the stage we are going 22 through, meaning some of the mistakes took place. 23 You're reading him the letter that you had from Gamal 24 Sultan? 25 A. I don't know who -- let me just read it, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10614 4CEMSAT2 Sattar - cross 1 Q. Sure. 2 A. Yes, I am reading parts of Gamal Sultan's letter. 3 Q. In fact, that letter is in evidence, right, that was 4 introduced in evidence in the government's case? 5 A. I had the possession of it, yes. 6 Q. That's Government Exhibit 2203A and the translation is 7 2203T? 8 A. Yes. 9 MR. MORVILLO: Your Honor, may I display Government 10 Exhibit 1006X in evidence? 11 THE COURT: Yes. 12 Q. Mr. Sattar, it was about this time that you began helping 13 Mohammed Yousry with his dissertation, right? 14 A. I am not sure if it was about this time that I begun 15 helping Mohammed Yousry with his dissertation. I cannot say 16 that I began helping Mohammed Yousry with his dissertation. It 17 was just what was going on with me and Mohammed Yousry was 18 discussion about, you know, things that he wants to -- things 19 that he read, and things that I read and we compare, you know, 20 his knowledge to my knowledge. I am not quite sure if it was 21 around this time or before that or after that. I cannot give 22 you an exact -- 23 THE COURT: Let me just stop for a moment. When you 24 identified Government Exhibit 1006X, could you identify the 25 date so that it is clear for the record? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10615 4CEMSAT2 Sattar - cross 1 MR. MORVILLO: It is January 26 of 1999, your Honor. 2 THE COURT: Thank you. 3 Q. Mr. Sattar, with respect to your discussions with 4 Mr. Yousry, those were ongoing during the course of your 5 relationship, right? 6 A. Yes. I mean, through the years, yes. 7 Q. But what I'm referring to is when you started corresponding 8 with leaders of the Islamic Group to assist in Mr. Yousry's 9 dissertation? 10 A. When I start -- 11 Q. Corresponding with leaders of the Islamic Group with 12 respect to Mr. Yousry's dissertation. 13 A. I don't understand your question. 14 Q. Isn't it a fact that you sent questions to Mustafa Hamza 15 and to Rifa'i Taha on behalf of Mr. Yousry for use in his 16 research on his dissertation? 17 A. I did send some questions that I got from Mr. Yousry, but I 18 never told Mr. Yousry who I was going to send it to. 19 Q. But you did tell him that you were sending questions 20 overseas, right? 21 A. Yes. 22 Q. And Ms. Griffith, if you could go to the bottom of this 23 page. Mustafa Hamza on this call says: Concerning our brother 24 who was preparing for the Ph.D., if you get from him the 25 specific information about the subjects and the material which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10616 4CEMSAT2 Sattar - cross 1 he is looking for, put it in writing in a nice way, that will 2 be fine. 3 And you say: God willing, God willing, right? 4 A. Yes. 5 Q. That's a reference to the questions for Mr. Yousry's 6 dissertation, right? 7 A. Yes. He had some questions that he wants to know about and 8 I believe at this time that those people are probably the only 9 one that they can -- they know about it. 10 MR. MORVILLO: Ms. Griffith, could you go to the next 11 page. 12 Q. Then Mustafa Hamza says to you: I talked to Abu Yasir. 13 Maybe he can eh, eh, he can prepare something for the periods 14 of 1986 and 1992. He may try, and this will help that man. Do 15 you trust him? Is he a good brother? And then you say: Oh, 16 yes, yes. Abu Yasir is Rifa'i Taha, right? 17 A. Yes. 18 Q. And you understood that Mustafa Hamza and Rifa'i Taha spoke 19 about the questions for the dissertation, right? 20 A. This is what I believe he is saying, yes. 21 Q. And he is suggesting to you that perhaps Rifa'i Taha can 22 answer questions pertaining to the 1986 to 1992 time period, 23 right? 24 A. No. He is not -- that he there is not referring to Rifa'i 25 Taha. I believe that he there, he can -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10617 4CEMSAT2 Sattar - cross 1 Q. He says: I talked to Abu Yasir, maybe he can eh, he can 2 prepare something for the periods of 1986 and 1992. He may 3 try, and this will help that man. 4 A. Yes. You are right, yes. It was -- he was referring to 5 Rifa'i Taha. 6 Q. And you knew that the subject matter, of course, of 7 Mr. Yousry's dissertation was Sheikh Omar Abdel Rahman and the 8 Islamic Group, right? 9 A. Yes. 10 Q. And, in fact, you told him that you were going to pass 11 information to leaders of the Islamic Group to assist him in 12 doing research on the dissertation, right? 13 A. I might told him that, but I might also -- I am not -- I 14 cannot say that I told him I am going to send it to the leaders 15 of the Islamic Group directly. I'm not quite sure. I really 16 cannot remember if I told him that I am going to send it, you 17 know, to the leaders of the Islamic Group or in what way. 18 Q. But in fact you did? 19 A. Yes, I did send it to the Islamic Group, but I don't think 20 that Mr. Yousry knew who I was sending the letters to. 21 Q. He never asked you? 22 A. He never asked me? 23 Q. He never asked you who you were sending the questions to? 24 A. I never get an answer for the questions, so I never -- 25 Q. My question to you was, did Mr. Yousry ever ask you, hey, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10618 4CEMSAT2 Sattar - cross 1 Mr. Sattar, who were you sending these questions to? 2 A. This subject I spoke to Mr. Yousry on before and it was 3 before even I had any phone conversations with Rifa'i Taha or 4 Mustafa Hamza and that subject was on who is going to receive 5 this, and I believe it was Muntasir al-Zayyat. The only person 6 I knew at the time was Muntasir al-Zayyat. I don't recall 7 telling him that I am going to send it to Rifa'i Taha or I am 8 going to send it to Mustafa Hamza or any leaders, per se. 9 Q. You did tell him that it was going to the leaders in 10 prison, right? 11 A. Yes. Through Muntasir al-Zayyat. 12 Q. But it was going to go to the leaders in prison? 13 A. Through Muntasir al-Zayyat. That's what I meant. 14 Q. But you told Mr. Yousry that the questions were going to be 15 put to the leaders of the Islamic Group, whether they were in 16 prison or in Afghanistan, doesn't matter, but they were going 17 to be put to the leaders of the group, right? 18 A. What I'm saying, Mr. Morvillo, I don't remember telling 19 Mr. Yousry specifics, this is what I am trying to say, or how I 20 am going -- how am I going to send it. This is what I am 21 trying to say. 22 Q. But it is true that you told him that it was going to be 23 sent to the leaders of the group in prison? 24 A. I might. 25 MR. RUHNKE: Your Honor, could I move to have the last SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10619 4CEMSAT2 Sattar - cross 1 answer stricken as speculative? He might have. 2 THE COURT: Overruled. 3 Q. Did there come a point in time when you sent questions to 4 Mustafa Hamza, right? 5 A. I am not sure if it was to Mustafa Hamza or Rifa'i Taha. I 6 sent questions to one of them. 7 Q. They were both working on responses to the questions, 8 right? 9 A. I am not sure. I know one of them, but -- 10 THE COURT: Let me go back. I will strike the answer, 11 the might have answer, as speculation. You can follow with 12 what you want. 13 Go ahead. 14 Q. Mr. Sattar, is there anything that would refresh your 15 recollection as to whether you in fact said to Mr. Yousry that 16 the questions were going to go to the leaders in prison? 17 A. If there is anything that will refresh my recollection, I 18 really don't remember. 19 Q. Perhaps listening to a telephone call between yourself and 20 Mr. Yousry? 21 A. It could be. I am not -- I mean, I'm sitting here, I 22 really don't remember. 23 MR. MORVILLO: May I have a moment, your Honor? 24 THE COURT: Yes. 25 MR. MORVILLO: Your Honor, may I display for the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10620 4CEMSAT2 Sattar - cross 1 Government Exhibit 1009X in evidence? 2 THE COURT: Yes. 3 Q. Mr. Sattar, this is a telephone conversation on March 22, 4 1999 between yourself and Rifa'i Taha, right? 5 A. Yes. 6 MR. MORVILLO: Ms. Griffith, can you go to page 9. 7 Q. At line 20, Rifa'i Taha says to you: I almost finished 8 with 99 percent of the things. Then you say yes. And he says: 9 That belong to the college teacher. And you say yes -- you 10 say: Good, may God reward you graciously. And then Rifa'i 11 Taha says: Few touches. And then you say: He was just asking 12 me about them. And then Rifa'i Taha says: Tell him there are 13 a few more touches left, and stuff -- a few touches left, 14 review and stuff before I send them to him. They may be about 15 15 or 20 pages. And then you responded: May God reward you 16 graciously. He will be very pleased with them. 17 A. Yes. 18 Q. Rifa'i Taha is speaking about the response to the questions 19 that you posed for assisting in Mr. Yousry's dissertation, 20 right? 21 A. Yes. 22 Q. And when you said to Rifa'i Taha, Mr. Yousry or he was just 23 asking me about them, you were referring to a conversation 24 between yourself and Mr. Yousry in which he was inquiring of 25 the questions that you had sent overseas, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10621 4CEMSAT2 Sattar - cross 1 A. Yes. 2 Q. Now, directing your attention back to the letter from Kamal 3 Habib and Gamal Sultan -- 4 MR. MORVILLO: Ms. Griffith, you can take this down. 5 Q. After you got that letter, you made arrangements for 6 Ms. Stewart and Mr. Yousry to travel to FMC Rochester to visit 7 Sheikh Omar Abdel Rahman, right? 8 A. I got this letter in January, I believe, and the visit was 9 in March. 10 Q. So after that you made arrangements at some point? 11 A. Yes, I made arrangement in March, yes. 12 Q. It wasn't the next day. The visit was on March 1 and 2, so 13 you made the arrangements earlier, probably in February? 14 A. Yes. 15 Q. And at this point in time Sheikh Omar Abdel Rahman had been 16 transferred to the Federal Medical Center at Rochester, right? 17 A. It was in 1999, yes. 18 Q. Prior to that you purchased plane tickets for Ms. Stewart 19 and Mr. Yousry to travel out there, right? 20 A. Yes. 21 Q. And you brought those tickets to Mr. Yousry and 22 Ms. Stewart? 23 A. Did I bring -- 24 Q. You conveyed them to them? You gave them to them? 25 A. I gave the tickets to one of them. I am not quite sure SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10622 4CEMSAT2 Sattar - cross 1 who. 2 Q. As you testified on direct you wrote a letter to Sheikh 3 Omar Abdel Rahman in advance of the March 1999 visit, right? 4 A. Yes. 5 Q. And you gave it to either Mr. Yousry or Ms. Stewart to 6 present to the Sheikh, right? 7 A. Yes. 8 Q. And your letter included the letter from Gamal and Kamal 9 about the political parties? 10 A. No. 11 Q. Did you give them a copy of Gamal and Kamal's letter? 12 A. I don't believe that I did. I believe that the copy of the 13 letter, it is very far back. And I believe that the copy, when 14 I first received that letter from Muntasir Al-Zayyat in January 15 of 1999, I think I forwarded that letter to Abdeen Jabara to be 16 read to the Sheikh on the phone and to get the answer from him. 17 And I did not get any answers until later on -- on that letter 18 until later on. This was -- this is how -- I remember clearly 19 giving the letter to Mr. Jabara back then in January when I got 20 it. 21 Q. But it wasn't until after the March 1999 prison visit that 22 you actually got a response to that letter, right? 23 A. I believe I got the response in March, yes. 24 Q. Now, the day after the visit on March 3 of 1999 you met 25 with Mohammed Yousry to have coffee, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10623 4CEMSAT2 Sattar - cross 1 A. The day after the visit? 2 Q. Yes. 3 A. I am not sure if it was the day after the visit. I used to 4 meet with Yousry regularly. I used to see him a lot, before 5 the visit, after the visit. And if there is no visits, you 6 know -- so when you say day after the visit, I am not sure. 7 Q. Is it fair to say that you would have met with him very 8 soon after the visit ended? 9 A. I would have met with him when he come back, yes. But when 10 exactly, I really don't know. I would have seen him some time 11 after the visit. 12 Q. Do you recall meeting with Mr. Yousry after this prison 13 visit? 14 A. Do I recall meeting? I don't recall precisely meeting with 15 him after that visit, but, you know, most likely I saw him, 16 yes. As I explained to you, I explain on my direct, I was 17 seeing him regularly. 18 Q. And what you said is, after the visits you would get 19 together, he would open his notebooks, you would copy down 20 answers and responses, right? 21 A. Yes. This is what -- things used to happen this way. 22 Q. Now, when you met with Mr. Yousry after the March '99 23 visit, he told you that Sheikh Abdel Rahman had given a 24 response to the political party issue, right? 25 A. I am not sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10624 4CEMSAT2 Sattar - cross 1 MR. MORVILLO: May I approach, your Honor? 2 THE COURT: Yes. 3 MR. MORVILLO: Actually, your Honor, may I display for 4 the witness and for the jury Government Exhibit 2059? 5 THE COURT: Yes. 6 MR. MORVILLO: In evidence. Which is admitted without 7 instruction? 8 THE COURT: Yes. 9 Q. Mr. Sattar, that is your handwriting, right? 10 A. Yes, it is my handwriting. 11 Q. And these are notes that you took of statements made by 12 Sheikh Omar Abdel Rahman in the March 1999 prison visit, right? 13 A. This is -- the answer is yes. Yes. 14 Q. And this section here along the right-hand side, those are 15 the points that he dictated with respect to the political party 16 issue, right? 17 A. This is the ten points, yes, he dictated. 18 Q. And then here on the back there are some numbers? 19 A. Yes. 20 Q. And that Arabic word there, what does that say? 21 A. Hotel. 22 Q. Hotel? 23 A. Yes. 24 Q. And does this refresh your recollection that when you were 25 talking to Mr. Yousry he was telling you how much the hotel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10625 4CEMSAT2 Sattar - cross 1 cost? 2 A. Yes, it was. 3 Q. This was so you could reimburse him for his expenses, 4 right? 5 A. Yes. 6 Q. So this would have been a conversation or a meeting that 7 you had with him shortly after the May 1999 prison visit, 8 right? 9 A. Yes. 10 THE COURT: I'm sorry. Was that May 1999? 11 MR. MORVILLO: I'm sorry. March 1999. 12 Q. Do you recall where you were when you wrote this document? 13 A. Where I was? 14 Q. Where you were. 15 A. I am not sure. 16 Q. But those were very detailed notes of what Sheikh Omar 17 Abdel Rahman had said, right? 18 A. Yes. 19 Q. It was basically a verbatim translation, verbatim 20 transcription of what had been said to you? 21 A. Yes. 22 MR. TIGAR: Objection, your Honor. Personal 23 knowledge, foundation. 24 MR. MORVILLO: Withdraw the question. Let me reask 25 the question. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10626 4CEMSAT2 Sattar - cross 1 THE COURT: All right. 2 Q. When you sat down with Mr. Yousry, you looked at his notes 3 and you wrote what he had in his notes down on that piece of 4 paper, right? 5 A. I cannot read -- Yousry's handwriting is so bad. He 6 usually read it to me. 7 Q. He would have dictated to you what his notes were? 8 A. Yes. This is how it would usually happen. 9 Q. But it was your understanding that the words were the words 10 said by Sheikh Omar Abdel Rahman, right? 11 A. That the words were said by the Sheikh, yes. This is 12 answers to some of the Sheikh's -- it is the Sheikh's words, as 13 far as I know. 14 Q. After you got the Sheikh's response to the questions -- 15 incidentally, there was also -- withdrawn. 16 The Sheikh also issued a statement related to the 17 ceasefire in the March 1999 visit, right? 18 A. Yes. 19 Q. And that was in response to a request through you by Rifa'i 20 Taha for Sheikh Omar Abdel Rahman's support in opposing the 21 ceasefire? 22 A. I'm sorry? 23 Q. That was in response to a request submitted by you to 24 Sheikh Omar Abdel Rahman on behalf of Rifa'i Taha asking Sheikh 25 Omar Abdel Rahman to support Rifa'i Taha's opposition to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10627 4CEMSAT2 Sattar - cross 1 ceasefire? 2 A. It was a request from Rifa'i Taha to support his position, 3 asking the Sheikh's support. I told you as what I told Mr. 4 Fallick on direct, he was just nagging and complaining about 5 people want to shut him up and things like this. So that was 6 in that aspect. 7 Q. In fact, what Sheikh Omar Abdel Rahman said in response 8 was, they called for the halt of violence, and you don't agree, 9 right? 10 A. Yes. 11 Q. So they are talking about the ceasefire? 12 A. They are talking about the peace initiative, yes. 13 MR. MORVILLO: Your Honor, may I display for the jury 14 Government Exhibit 1007X? 15 THE COURT: Yes. 16 Q. Mr. Sattar, this is a telephone conversation on March 9 of 17 1999? 18 A. Yes. 19 Q. And this is a call between yourself and Mr. Mustafa Hamza, 20 right? 21 A. Yes. 22 Q. And at this point in time, March 9, you had already 23 received the responses from Sheikh Omar Abdel Rahman to the 24 questions, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10628 4CEMSAT2 Sattar - cross 1 MR. MORVILLO: Ms. Griffith, can you scroll down a 2 little. Can you move up just a little bit, please, further. 3 Q. Line 6 you say: Regarding that subject, the party. He 4 says yes. You say: Of course, he rejected it completely. I 5 have a -- also regarding the -- to be aware of what is going 6 on, all what it had been said in the last period was conveyed 7 to him exactly the same, as it is. 8 Now, the first part of that answer that you say to 9 Mustafa Hamza is that he rejected it completely? 10 A. Yes. According to his answer, yes, he rejected the 11 political party idea. 12 Q. He is talking about -- you're telling him that Sheikh Omar 13 Abdel Rahman rejected the proposal to form an Islamic political 14 party? 15 A. Yes. 16 Q. In fact, during this telephone call you read the letter to 17 Mustafa Hamza, Sheikh Omar Abdel Rahman's response, right? 18 A. Yes. 19 Q. And Sheikh Omar Abdel Rahman's response was in ten points? 20 A. I believe it was in ten points, yes. 21 Q. And as you understood it, the gist of what Sheikh Omar 22 Abdel Rahman was saying was that it was not permissible to 23 participate in a government that was not conducted in 24 accordance with Islamic law? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10629 4CEMSAT2 Sattar - cross 1 Q. And you also understood that one reason why Sheikh Abdel 2 Rahman took that position was because he believed that the 3 ceasefire was a tactic that the Islamic Group was employing, 4 right? 5 A. This is what he said there, yes. 6 Q. So it is your understanding that his goal was still to 7 replace the government in Egypt with an Islamic government? 8 A. Yes. He never abandoned that goal. 9 Q. And it is also your understanding that Sheikh Abdel Rahman 10 viewed the joining of the political system in Egypt as 11 abandoning the goal of overthrowing the government? 12 A. My understanding, he was saying, if he is endorsing an 13 Islamic government and the Egyptian government is not an 14 Islamic government. So if he joined them in the parliament or 15 he joined them in the government, so that mean he is taking 16 their side. So his criticism, it is not valid. So this is 17 what he was trying to say there or that's what I understood 18 from what he was saying there. 19 Q. That's your understanding of what his opinion was, right? 20 A. Yes. 21 Q. So, in other words, you understood that Abdel Rahman 22 believed that the Islamic Group should remain outside the 23 political system in Egypt until Egypt is governed by sharia? 24 A. I have to clear one thing here, there is two people who 25 sent the letters. Kamal Habib and Gamal Sultan are not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10630 4CEMSAT2 Sattar - cross 1 associated -- I mean, to my knowledge, they are not people -- 2 they do not represent the Islamic Group. They are not from the 3 Islamic Group. So I can't say that the Sheikh is just, you 4 know, talking about the Islamic Group per se. This is his 5 overall view about Islam and this is what he thinks about 6 political parties in general. I am not sure about, you know, 7 that the Islamic Group, this is what he is saying, that the 8 Islamic Group should do this or should not do that. But I know 9 this was his just -- his view on political party in general, 10 yes. 11 Q. But my question to you was whether you understood that 12 Sheikh Abdel Rahman believed that the Islamic Group should 13 remain outside the political system in Egypt until Egypt is 14 governed by sharia? 15 A. In his view, no Muslim should join the government that's 16 existing in Egypt, you know, under that current circumstances 17 that's existing in Egypt. So I can't say that he is talking 18 just about the Islamic Group or he is just talking in general. 19 But, you know, if this is what I understood, Mr. Morvillo, I 20 cannot elaborate anymore. 21 Q. And what you said before about Kamal and Gamal was that 22 they were not members, as you understood, of the Islamic Group? 23 A. As what I know from reading, their response to this letter 24 in the newspapers, Gamal Habib is a journalist in Egypt and he 25 is member of a party called Al-Amal labor party in Egypt. He SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10631 4CEMSAT2 Sattar - cross 1 is a very well-known man in Egypt and Gamal Sultan is a very 2 well-known author and thinker, if I want to put it this way. 3 So I don't think they were affiliated with the Islamic Group. 4 Q. But they were seeking the opinion of the leader of the 5 Islamic Group, right? 6 A. They were seeking the opinion of Sheikh Omar Abdel Rahman, 7 yes. 8 Q. Now, let's just stay with the issue of political parties 9 here for one more minute. You testified on direct that you 10 differed from Sheikh Omar Abdel Rahman on the issue of 11 political parties, right? 12 A. Yes. 13 Q. And let's just be clear about this. 14 MR. MORVILLO: Ms. Griffith, you can take this exhibit 15 down. You. 16 Q. You only endorsed political parties within an Islamic 17 framework, right? 18 A. I was giving two points of view under Islamic law: A 19 political party of people who endorsed political parties and 20 people who completely reject the political party system, and I 21 endorse the multiple party system. 22 Q. But only under Islamic law? 23 A. Mr. Morvillo, not only under Islamic law. I said that I am 24 a supporter of applying Islamic law in the Muslim country with 25 the majority of Muslims, and I would love to see a multiple SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10632 4CEMSAT2 Sattar - cross 1 political party system in a country like that. But if I live 2 somewhere else I will join the political process, whether it is 3 an Islamic country or not. I live here, I vote, I am 4 registered as a voter, and I did note. I voted the republicans 5 and I voted democratics. So I am a believer of the 6 political -- multiple political party. But under Islamic law, 7 yes, I would love to see Islamic parties ruling, you know, and 8 exchanging ideas and stuff like that. 9 MR. MORVILLO: Your Honor, may I display Ahmed Sattar 10 Exhibit 19T in evidence? 11 THE COURT: Yes. 12 Q. These are your words, right, Mr. Sattar: Thus, you see 13 that the issue of political parties in an Islamic state, I 14 repeat -- an Islamic -- 15 A. What are you reading, Mr. Morvillo? 16 THE COURT: Hold on. The witness asked for what 17 document it was. 18 A. Where exactly are you reading? 19 Q. I'm sorry, Mr. Sattar. Right here: Thus. 20 A. Yes. 21 Q. Thus, you see that the issue of political parties in an 22 Islamic state -- I repeat, an Islamic state that applies the 23 sharia of God is a matter of ijtihad? 24 A. Yes. 25 Q. You said that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10633 4CEMSAT2 Sattar - cross 1 A. Yes, I said that. I said that it is a matter of people 2 think about it and, you know, I'm talking about the political 3 party in a Muslim state according to Islamic jurisprudence 4 where people completely rejected and other people agreed to it. 5 If you look at the end of this document and I'm saying, I am 6 with -- I lean, if not completely support that line that wants 7 multiple political parties in an Islamic state. 8 Q. In an Islamic state, right. So you agreed with Sheikh Omar 9 Abdel's Rahman opinion that there should not be participation 10 in Egypt at this time, right? 11 A. Sheikh Omar Rahman's opinion is completely rejecting 12 political parties. If you read this document, I detail it, the 13 two opinions, the two people and their reasoning for rejecting 14 a political party and for their reasoning of accepting 15 political party. 16 Q. Right. But your reasoning is premised on the existence of 17 an Islamic state, right, yes or no, Mr. Sattar? 18 A. I cannot just say yes or no, Mr. Morvillo. This is my 19 writing right here. And I have to explain the thing that I 20 said. 21 Q. I'm asking you whether your opinion is there must be an 22 Islamic state for political parties for there to be an Islamic 23 political party. 24 A. In this document I was discussing what I was talking about, 25 an Islamic party in an Islamic state, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10634 4CEMSAT2 Sattar - cross 1 Q. And Egypt, in your opinion, is an Islamic state, right? 2 A. Egypt, it is not -- 3 Q. Is not an Islamic state. 4 A. Egypt is a Muslim country. It is not ruled under Islamic 5 law. 6 Q. So, therefore, it is your opinion that there should not be 7 participation in the political process in Egypt? 8 A. No, it is not that. In my opinion, people should 9 participate, people should vote. If they are given the chance 10 to vote and there is an election in Egypt, free election in 11 Egypt, I am urging the people and I did urge the people to go 12 out and vote. This is a legitimate right for every human being 13 to be able to choose his government. And I am a true believer 14 of that and I participate here. I would be a hypocrite to say 15 that Egyptians could not vote, and I am practicing this right 16 here in America. America is not an Islamic state and I am 17 practicing this right and I adore it. I never miss an election 18 since I've become a citizen in 1989. 19 Q. Are you finished? 20 A. Yes. Thank you. 21 Q. Returning back to your telephone conversation with Mustafa 22 Hamza -- 23 A. Yes. 24 Q. After you told him about the fact that the Sheikh had 25 issued an opinion about the political party issue, you faxed it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10635 4CEMSAT2 Sattar - cross 1 to him, right? 2 A. After I told him -- I did fax it to him, yes. 3 Q. And he told you that he wanted to think about it for a 4 couple of days before he responded, right? 5 A. I am not sure exactly what he said now. I don't have the 6 document in front of me, so I really don't know what he said. 7 Q. Were you aware that there was concern as to whether it 8 should be published or not? 9 A. I think it was, you know. There was a concern, yes. 10 Q. You wanted to be kept in the loop if the opinion was going 11 to be published, right? 12 A. Yes. 13 Q. You also told Muntasir al-Zayyat about the political party 14 statement, right? 15 A. Yes. I originally received it from him. 16 Q. So you called him in March of 1999 and you read him the 17 Sheikh's response as well, right? 18 A. Yes. 19 Q. And do you recall that he told you that the Sheikh's 20 statements should not be published? 21 A. He could have said that. 22 Q. And you also sent the letter, the Sheikh's statement on 23 political parties, to Rifa'i Taha, right? 24 A. Yes. 25 Q. And you also spoke to Yassir Al-Sirri about the Sheikh's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10636 4CEMSAT2 Sattar - cross 1 statement on political parties, right? 2 A. Yes. 3 Q. Now, there was a second letter -- a second statement that 4 Sheikh Omar Abdel Rahman made in the March 1999 visit, right? 5 A. Yes. 6 Q. And that one related to Rifa'i Taha's request for support 7 in the ceasefire, right? 8 A. Yes. 9 Q. You also read that statement to Mustafa Hamza over the 10 telephone, right? 11 A. Yes. 12 Q. And what you told Mustafa Hamza was that Rifa'i Taha's 13 position was presented to Sheikh Omar Abdel Rahman and the 14 point of view of the brothers in the prison was presented to 15 Sheikh Abdel Rahman, right? 16 A. I believe so. 17 Q. And just to distill it down, Rifa'i Taha was against the 18 ceasefire and the brothers in prison in Egypt were in support 19 of the ceasefire, right? 20 A. Rifa'i Taha was opposing, yes, the way that this whole 21 thing was working, the way -- the initiative. He was just, you 22 know, opposing how it came out, the mechanism of coming out, 23 who initiated and who did not initiate it. He was -- if you go 24 to Rifa'i Taha's talks with Salah Hashim, the talks between 25 Rifa'i Taha and Salah, they were talking about, you know, he is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10637 4CEMSAT2 Sattar - cross 1 almost criticizing how the peace initiative came out to light. 2 So, yes, this is in my letter was stating Rifa'i Taha's 3 position, yes. 4 Q. He opposed the ceasefire, right? 5 A. He did oppose how it came out to life, yes. 6 Q. You had arranged for Rifa'i Taha's opinion and the opposing 7 opinions to be presented to Sheikh Abdel Rahman by Mohammed 8 Yousry and Lynne Stewart, right? 9 A. Yes. And it was good, actually, because right after that, 10 the Islamic Group outside and inside Egypt issued a statement, 11 I think it was in April 1999, and both parties agreed on the 12 peace initiative and they all endorse it. 13 Q. Right. And that document is in evidence, right? 14 A. Yes. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10638 4CE5SAT3 Sattar - cross 1 BY MR. MORVILLO:: 2 Q. You translated that document, right? 3 A. Did I translate it? I'm not sure if I translated that 4 document or somebody else did. I'm not sure. 5 Q. You remember that document, it had a sticker on it from 6 Abdeen Jabara to Mohammed Yousry which said that there was, 7 that Ahmed S. had done a translation but it was a bit rough? 8 A. Yes. I -- I remember seeing it but I'm not sure if I did 9 translate it. 10 Q. I'll show it to you in a few minutes. 11 A. Yes. That's good. 12 Q. The way that you conveyed the opinion of Rifa'i Taha 13 opposing the cease-fire and the opinions of the brothers in the 14 prison was through a letter that you sent in to the prison with 15 Lynne Stewart and Mohammed Yousry, right? 16 A. Yes. 17 MR. MORVILLO: Your Honor, may I display Government 18 Exhibit, I think it's 1007X, in evidence? 19 THE COURT: Yes. 20 Q. Do you see, Mr. Sattar, line 3 -- 21 THE COURT: Is there a date? 22 MR. MORVILLO: I'm so sorry. It is March 9th of 1999. 23 Q. Do you see that, Mr. Sattar? 24 A. Yes. 25 Q. And you, he's asking you to read the statement while you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10639 4CE5SAT3 Sattar - cross 1 are preparing the fax, right? 2 A. Yes. 3 Q. Because you were going to fax it to him? 4 A. Yes. 5 Q. And you say, and you read it, "with respect to your 6 opinion, which is a very good opinion, but you have to give 7 some time to the brothers who are in prison. There is no 8 objection to have some difference. They call for the halt of 9 violence, and you don't agree." 10 Those are the Sheikh's words, right? 11 A. Yes. 12 Q. At the end of the statement here it says: No new charter 13 and nothing should happen or be done without consulting me or 14 informing me. 15 A. And that's precisely what I was saying. 16 THE COURT: Hold on. I'm not sure there was a 17 question. 18 THE WITNESS: I'm sorry. 19 Q. You testified on direct that the charter was the Islamic 20 Group charter, right? 21 A. Yes. 22 Q. And, what your understanding was, was that Abdel Rahman was 23 saying, to the Islamic Group, don't change the charter and 24 don't do anything without getting in touch with me, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10640 4CE5SAT3 Sattar - cross 1 As what I said, this was one of the main complaints of 2 Rifa'i Taha, his complaining about the group is changing 3 things, you know, and they want to shut him up. They don't 4 want any opinions to expressed and they are going to change the 5 charter of the group and the Sheikh is telling him, as what I 6 said too, that the Sheikh was, supervised that. If you see the 7 charter, the cover of the charter it said, Supervised by Sheikh 8 Omar Abdel Rahman. And he is telling him no change. That 9 charter should not be changed without somebody consulting him. 10 Q. Now, at the end of the day, Mr. Sattar, Sheikh Abdel Rahman 11 did not support Rifa'i Taha's view at this time, right? 12 A. Yes, he did not support Rifa'i. Rifa'i -- he did not sided 13 with Rifa'i Taha and says, you know, I am not going to agree to 14 the peace initiative or I am going to speak against peace 15 initiative. 16 Q. In fact, after -- did you finish your answer? 17 A. Go ahead, Mr. Morvillo. Please. 18 Q. After the Sheikh issued the statement there was then a 19 statement which we spoke about a few moments ago from the 20 Islamic Group endorsing the cease-fire? 21 A. Yes. They were a statement from the Islamic Group 22 endorsing the initiative; yes. 23 Q. It's fair to say that Rifa'i Taha was a little disappointed 24 in the response that he got, as far as you understood, from 25 Sheikh Abdel Rahman, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10641 4CE5SAT3 Sattar - cross 1 A. I'm not sure if he was disappointed or not. I don't recall 2 exactly, you know, what was his -- 3 MR. MORVILLO: Your Honor, may I display for the jury 4 Government Exhibit 1009X, in evidence? 5 THE COURT: Yes. 6 Q. Ms. Griffith, can you scroll down to page 2 a bit, I think? 7 Can you go back to the first page? 8 This is a call on December of 1999? 9 A. Yes, I've seen that, yes. 10 Q. During this call you, this was the first time that you had 11 spoken to Rifa'i Taha, as far as you know, after you received 12 the Sheikh's response? 13 A. Could be the first time, I'm not -- 14 Q. Ms. Griffith, can you scroll down a little bit? 15 And you and Taha are talking about at line 9 he says: 16 How is the man? 17 The man he is referring to is Sheikh Abdel Rahman, 18 right? 19 A. I'm sorry? 20 Q. The man that Rifa'i Taha is referring to at line 9 is 21 Sheikh Abdel Rahman? 22 A. Yes. 23 Q. And you say: Thank God he's fine. 24 And Rifa'i Taha says: Did you convey to him our 25 greetings? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10642 4CE5SAT3 Sattar - cross 1 And you say: Yes, didn't you get something? 2 And he says: Yes, I am very pleased with what I got. 3 And you say: Good, thank God. 4 He says: Two letters, both are good; but I wanted the 5 second one which is eh, the one for me, a little stronger. 6 So he was a little disappointed in the response he got 7 from the Sheikh? 8 A. Yes, he was actually saying that he was very pleased with 9 what he got. 10 Q. But that he wanted it to be a little bit stronger? 11 A. Yes, he wanted the one, you know, to, you know, to be a 12 little stronger, but it does not mean that he's not pleased 13 with it. He was -- or he is disappointed. The man stated that 14 he was pleased with what he got. 15 Q. In late March of 1999 there was a statement issued by the 16 Islamic Group stating that the Islamic Group's overseas units 17 pledged to support the cease-fire, right? 18 A. There was a statement, yes, issued, you know. I'm not sure 19 the exact words but, you know, they were -- everybody was 20 supporting the peace, the initiative. They all come aboard on 21 it. 22 Q. And you spoke on the telephone about this statement on a 23 couple of occasions, right? 24 A. I think I did, yes. 25 Q. In fact, Mustafa Hamza called you on one occasion and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10643 4CE5SAT3 Sattar - cross 1 confirmed for you that it was an authentic statement, right? 2 A. Yes, well -- yes. He said it was an authentic, yes. 3 Q. In fact, he faxed it to you, right? 4 A. I'm not sure if he faxed it to me or he -- or it was 5 e-mailed to me. I'm not -- I'm not sure. 6 Q. But he conveyed it to you, right? 7 A. Yes, he told me about it was -- as a matter of fact, I 8 think, you know, the first one that told me about it was 9 Muntasir Al-Zayat -- 10 Q. Right? 11 A. -- and then Mustafa Hamza said, you know, it was 12 authentic, yes. 13 Q. Muntasir Al-Zayat called you to find out whether it was an 14 authentic statement, right? 15 A. Yes. He wanted to know and I had no idea. 16 Q. Because he didn't know either. He had seen it and he 17 called you to say, hey, is this authentic? 18 A. He called me to ask if this is true, did I receive it? And 19 I had no idea about it. 20 Q. And then you spoke to Mustafa Hamza and he confirmed for 21 you that it was an authentic statement? 22 A. Yes. 23 Q. And then you sent it to Mohammed Yousry, right? 24 A. No, I don't think that I send it to Mohammed Yousry. 25 Q. Isn't it a fact that on March 27th of 1999 at 9:00 you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10644 4CE5SAT3 Sattar - cross 1 called Mohammed Yousry and told him about the statement and 2 said you were going to fax it to him? 3 A. I could. I could have to, you know, I mean -- I'm not sure 4 that I sent it to him or I sent it to who. I'm not sure. 5 Q. Well, he ultimately wound up with it, right, because it was 6 abused -- 7 A. I'm sorry. 8 Q. He ultimately wound up with it, right, because it was 9 introduced as a piece of search evidence seized from his 10 apartment? 11 A. Yes. 12 MR. MORVILLO: Your Honor, may I display Government 13 Exhibit 2415-5, in evidence? 14 THE COURT: Yes. 15 MR. MORVILLO: This is only against Mr. Sattar and 16 Mr. Yousry, not for the truth. 17 THE COURT: All right. 18 Q. This is the covering note that I referred to a moment ago. 19 A. Yes. 20 Q. This is a note from Abdeen Jabara? 21 A. Yes. 22 Q. And Ahmed S. -- that's you, right? 23 A. Yes, that's most likely me, yes. 24 Q. And the first page of this document -- Ms. Griffith, if you 25 can go to the Arabic -- this is the statement that was sent to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10645 4CE5SAT3 Sattar - cross 1 you, right? 2 A. Yes. 3 Q. And this in fact, if you could scroll down to the bottom -- 4 A. I'm sorry? 5 Q. This version of it was pulled off of the Almurabeton 6 website, right? 7 A. Yes, I can see that, that it was coming from Almurabeton 8 website, that's why I can't say how I got it in a fax or, you 9 know, got it from the Islamic Group website or how did I get it 10 exactly, I -- 11 Q. And Ms. Griffith, if you can go to the third page of the 12 exhibit? The page after this one. 13 Mr. Sattar, does this look like a document that you 14 created? 15 A. It looks, translation, yes of the document that I -- 16 Q. This is your translation, right? 17 A. Yes. My translation? 18 Q. Yes. 19 A. Is this my translation? 20 Q. Yes. 21 A. This is not my translation. 22 Q. This is not a translation that you did? 23 A. No, no, no. It's not my translation. 24 Q. But this is a translation of the statement, right? 25 A. I see it is a translation of the statement, yes. I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10646 4CE5SAT3 Sattar - cross 1 know whose translation is this. 2 Q. Ms. Griffith, can you scroll down a little bit toward the 3 bottom half of the page? 4 Do you see where the two stars are here, Mr. Sattar? 5 A. Yes. 6 Q. Let me read that to you. 7 That the group didn't forget and will not forget its 8 scholar and leader Dr. Omar Abdel Rahman who has been 9 imprisoned unjustly in the United States. And it will do 10 everything it can to free him no matter how long it will take 11 or how much sacrifice will it cost. And we are also extending 12 the invitation to all Muslims and specially the Muslim scholars 13 to help free this great scholar. 14 Do you see that? 15 A. Yes. 16 Q. It's your understanding, is it not, that the cease-fire did 17 not apply to efforts to get Sheikh Abdel Rahman out of prison? 18 A. My understanding that the Islamic Group was committed to 19 the peace initiative and this is in, to everything, the Islamic 20 Group abandoning raising arms forever. 21 They had no capability of doing anything, they did not 22 have any ability to do anything. As what I said, you know, 23 from 19 -- from 1997 -- after 1997 until today, actually they 24 have done nothing. I mean, they did not raise arms whatsoever, 25 I -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10647 4CE5SAT3 Sattar - cross 1 THE COURT: Please, listen to the question that's been 2 asked, all right? 3 Q. The question I believe was, Mr. Sattar, isn't it a fact 4 that the cease-fire didn't apply to efforts to release Sheikh 5 Omar Abdel Rahman from prison? 6 A. I believe it does apply to -- to him, too. 7 Q. Well, you did know that Rifa'i Taha believed that the 8 cease-fire did not apply to efforts to relieve Sheikh Abdel 9 Rahman from prison, right? 10 A. Rifa'i Taha was making statements left and right. 11 Q. My question was, did you know or did you not know that 12 Rifa'i Taha stated that the cease-fire did not apply to efforts 13 to free Sheikh Abdel Rahman from prison? 14 A. I don't remember him saying that. 15 MR. MORVILLO: May I approach, your Honor? 16 THE COURT: Yes. 17 Q. Mr. Sattar, I'm handing you what's been marked for 18 identification as Government Exhibit 513T. Would I ask you to 19 familiarize yourself with the document, it's a long document, 20 but -- and then turn to page 5 and 6 and read the highlighted 21 portion and then I ask you if that refreshes your recollection. 22 A. Sure. 23 Can I see the original one in Arabic, please? 24 MR. MORVILLO: May I have a moment, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10648 4CE5SAT3 Sattar - cross 1 While there is a moment and we have been going for a 2 considerable period, maybe we can take this as an opportunity 3 for a stretch break. 4 (Stretch break) 5 THE COURT: Please be seated, all. 6 Ladies and gentlemen, I see that you took the 7 opportunity for a, for the stretch and if at any time you need 8 it, you just raise your hands because I'm prepared either to do 9 a stretch break or a longer break for you. So, you just raise 10 your hand. 11 Okay, thank you. 12 MR. MORVILLO: Your Honor, I don't have a hard copy of 13 the Arabic but we do have it on the computer and I believe that 14 we can display it just for the witness and counsel. 15 May I do that? 16 THE COURT: All right. Just on the screens. 17 MR. MORVILLO: Yes. 18 THE COURT: Is that satisfactory? 19 MR. PAUL: Your Honor, quite frankly, this might be an 20 appropriate time for a recess that will allow Mr. Sattar to 21 read the document and -- 22 THE COURT: Fine, sure. Okay. 23 Ladies and gentlemen, we will take a 10 minute break. 24 Please remember my continuing instructions not to talk about 25 the case at all, always remember to keep an open mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10649 4CE5SAT3 Sattar - cross 1 All rise, please. 2 Please follow Mr. Fletcher to the jury room. 3 (Jury not present) 4 THE COURT: Mr. Sattar can step down. 5 THE WITNESS: Thank you. 6 (Witness steps down) 7 MR. TIGAR: Your Honor? 8 THE COURT: Yes. 9 MR. TIGAR: We have an application. 10 THE COURT: All right. 11 MR. TIGAR: Your Honor, I move to strike the last 12 question, which was: Isn't it a fact that the cease-fire 13 didn't apply to efforts to release Sheikh Abdel Rahman? 14 And then the next question -- sorry: Well, did you 15 know that Rifa'i Taha believed that the cease-fire did not 16 apply? 17 Mr. Morvillo asked those two questions. He then gave 18 the witness 513T, which is an exhibit that this Court already 19 ruled was not admissible because the government had failed to 20 establish that these were indeed Rifa'i Taha's statements. 21 I ask the Court -- we will look at the transcript over 22 the break, your Honor, but I think that's manifestly unfair to 23 show the witness, to ask a question based on a document that 24 has already been ruled not to be statements of Rifa'i Taha. 25 MR. MORVILLO: I don't believe that was your ruling, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10650 4CE5SAT3 Sattar - cross 1 your Honor. I believe your ruling was that the government 2 didn't fully authenticate the document. I'm actually trying to 3 do that with Mr. Sattar. 4 If the Court recalls, this interview was sent to 5 Mr. Sattar and he will either authenticate it or he won't. 6 THE COURT: My recollection is similar. You can go 7 back and get it, but the document would be a basis for -- is 8 the document in evidence? 9 MR. MORVILLO: The document is not in evidence. 10 MR. TIGAR: No, your Honor. 11 THE COURT: That's right, it's not been shown to the 12 jury. It was going to be on the screen just for the witness 13 and counsel. 14 There were some documents, this may well have been one 15 of them, that I found were insufficiently authenticated, but 16 that doesn't bar the, a good faith basis for attempting to 17 establish through the witness that he knows that the statements 18 may be those of Mr. Taha's. 19 MR. TIGAR: Your Honor, I don't understand that the 20 government is attempting to use the document in that way. 21 They're showing it as refreshment of recollection. 22 What the Court said at page 4415 and 4416 was: The 23 government argues that the Government Exhibit 515T is 24 admissible as an adoptive admission by Mr. Sattar that was 25 under Federal Rule of evidence 801(d)(2)(B) for a statement of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10651 4CE5SAT3 Sattar - cross 1 Taha -- I think that means "or a statement of Taha" -- as a 2 co-conspirator under Federal Rule of Evidence 801(b)(2)(E). 3 The government has not shown the admissibility of the 4 article under either basis. Thus, as the record now stands, 5 your Honor, this is not a statement of Mr. Taha, a 6 co-conspirator. 7 THE COURT: It wasn't admitted at this point. There 8 is a good faith basis for asking the witness. I was rigorous 9 and precise in my rulings. The government had argued that 10 there was, if recollection serves, a sufficient basis in the 11 record to believe that these were in fact the statements of 12 Mr. Taha, or at least adopted admissions by Mr. Sattar. I 13 disagreed with that on the record at that time. That doesn't 14 preclude the government from pursuing the statements to find 15 out what the witness knows about those statements. 16 So, there is certainly a good faith basis for asking 17 questions. The article has not yet been admitted in evidence 18 or authenticated, or the statements in the article yet 19 established to be admissible under the original proffered 20 bases. 21 Okay. 22 MR. TIGAR: Thank you very much, your Honor. 23 I would also just like to note that Mr. Morvillo does 24 have a habit of beginning some questions with the statement 25 "right" and I would ask that that not be done because it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10652 4CE5SAT3 Sattar - cross 1 either argumentative or testimony. 2 THE COURT: You mean beginning or ending? 3 MR. TIGAR: Beginning, your Honor. It is not a big 4 deal, your Honor. I raise it because it is one of those things 5 that is probably better not done. 6 THE COURT: All right. All right, okay -- 7 MR. PAUL: Your Honor, since the article is on the 8 screen only my client would like an opportunity to look at that 9 in Arabic so he can appropriately respond to the question as to 10 whether or not it refreshes his recollection. 11 THE COURT: Sure, okay. 12 And the parties can either look if there is a hard 13 copy around. 14 MR. MORVILLO: I have a hard copy back in my office, 15 your Honor. 16 THE COURT: Or put it on the screen. 17 MR. PAUL: We have it now, Judge. 18 THE COURT: Okay. And let me just talk to the lawyers 19 at the side bar. 20 (Page 10653 SEALED by order of the Court) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10654 4CE5SAT3 Sattar - cross 1 (In open court) 2 (Recess) 3 THE COURT: Please be seated, all. 4 Are we ready to begin, Mr. Paul? 5 MR. PAUL: Yes, we're ready to begin. 6 THE COURT: Mr. Morvillo? 7 MR. MORVILLO: Yes, your Honor. 8 THE COURT: Mr. Sattar is on the stand. 9 MR. MORVILLO: Your Honor, you wanted to break 10 promptly when the jury got their lunch? 11 THE COURT: Yes. 12 MR. MORVILLO: You will let me know? 13 THE COURT: Mr. Fletcher will let you know. 14 Mr. Fletcher also told me that it might be a little delayed 15 today, so. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10655 4CE5SAT3 Sattar - cross 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Mr. Sattar is on the stand. 4 Mr. Fletcher? 5 THE DEPUTY CLERK: Mr. Sattar, you are reminded you 6 are still under oath. 7 THE WITNESS: Thank you, sir. 8 THE COURT: All right. Mr. Morvillo, you may proceed. 9 BY MR. MORVILLO:: 10 Q. Mr. Sattar, before we broke I had asked you if that 11 document that I handed you refreshed your recollection that 12 Rifa'i Taha had, at one time, stated that the cease-fire did 13 not apply to efforts to get Sheikh Abdel Rahman out of prison. 14 Do you recall that, my question? 15 A. That he ever said -- 16 Q. That was my question, right? 17 A. Yes. 18 Q. And I handed you a document and I asked you whether that 19 refreshed your recollection that Rifa'i Taha had made that 20 statement? 21 A. No, it does not refresh my recollection that he made that 22 statement. I mean, the document itself I don't believe that I 23 seen it, I mean -- 24 Q. But my question is, are you aware that Rifa'i Taha ever 25 made that statement? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10656 4CE5SAT3 Sattar - cross 1 A. I can't sit here and say that I am aware. 2 Q. Did there come a time in August of 1999 when you received 3 an e-mail from Rifa'i Taha that contained an interview that he 4 had conducted? 5 A. It might. I'm not -- I'm not sure, you know. I was 6 receiving e-mails, you know, with a lot of things that he is 7 getting. 8 Q. Do you recall in August of 1999 a telephone conversation 9 that you had with Mohammed Al-Shafi'i where he was angry with 10 you because you had given him an interview with Rifa'i Taha but 11 told him not to publish it? 12 A. Yes. I am -- I remember that, that I had a conversation 13 with Mohammed Al-Shafi'i and I told him not to publish the 14 interview with Rifa'i Taha. 15 Q. And that was an interview that you had provided to 16 Al-Shafi'i, right? 17 A. This is the -- 18 Q. Let me back up. 19 A. Yes, please. 20 Q. That was an interview that Rifa'i Taha had sent to you and 21 that you had then sent to Al-Shafi'i, right? 22 A. The -- there was an interview, yes, that Rifa'i Taha sent 23 to me and I sent to Al-Shafi'i and I told him not to publish 24 it. 25 Q. And then Al-Shafi'i called you and he was very upset SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10657 4CE5SAT3 Sattar - cross 1 because someone he referred to as Al-Minawi? 2 A. Yes. 3 Q. Was going to publish the interview? 4 A. No, he was going to publish -- Al-Minawi had a different 5 interview with Rifa'i Taha, you know, on the internet, they did 6 it their way away from me and, you know, and Minawi was going 7 to publish that interview with Rifa'i Taha. 8 Q. And so, the interview that Al-Minawi was going to publish 9 with Rifa'i Taha was a different interview that you had given 10 Mohammed Al-Shafi'i? 11 A. I believe so, yes. 12 Q. And this was somewhat of a controversy at the time, right? 13 A. It was -- Mohammed Al-Shafi'i was upset, yes. 14 Q. And you spoke to Yassir Al-Sirri about it, right? 15 A. Yes. 16 Q. And you went and got a copy of Al-Minawi's article, right? 17 A. I am not sure if I got a copy of Minawi's article. 18 I spoke about it. I tried to console Al-Shafi'i and 19 to apologize to him because I know he makes a living as a 20 reporter and that was something for him to publish and another 21 reporter just went behind him and had a different interview and 22 published it before him. 23 So, I was, my concern was not to get Mohammed 24 Al-Shafi'i upset. I was just apologizing to him. 25 Q. What newspaper does Mohammed Al-Shafi'i write for? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10658 4CE5SAT3 Sattar - cross 1 A. Asharq Al-Awsat, same newspaper that Minawi works for. 2 Q. Do you recall on August 9th of 1999 calling someone and 3 telling them to get a copy of Asharq because there was an 4 interview with Rifa'i Taha in it? 5 A. Someone? I could have called someone, yes, and I asked 6 them to do that, yes. 7 Q. Ms. Griffith, would you display -- 8 MR. MORVILLO: Your Honor, I'm sorry. May we display 9 Government Exhibit 1021X, in evidence? 10 THE COURT: Yes. 11 Q. Ms. Griffith, would you display that exhibit? 12 Mr. Sattar, this was a telephone conversation that was 13 read to the jury, Government Exhibit 1021X, the date of the 14 conversation was on August 9 of 1999? 15 A. Yes. 16 Q. And Ms. Griffith, if you would scroll down? Can you keep 17 going? Wait, wait, wait. I'm sorry. 18 Do you see here -- can you go back up to the previous 19 page, Ms. Griffith? 20 You are speaking to UM which stands for unidentified 21 male, right? 22 A. Yes. 23 Q. And you say: Where are you now? -- at line 15. 24 And he says: I'm on my way to Atlantic Avenue. 25 And you say: You are going to Atlantic Avenue. Then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10659 4CE5SAT3 Sattar - cross 1 bring tomorrow's edition. 2 And he says: Is it out by now? 3 And you said: Yes, it is out by now. It is usually 4 issued around -- hello? 5 Then he says: Yes, I hear you. 6 And you say: It comes out by eight o'clock. 7 And UM says: That is good. 8 You said: Get it. 9 UM said: Asharq Al-Awsat? 10 You said: Yes. 11 He said: Yes, what is it? 12 You said: There is an interview with what's his name, 13 Rifa'i Taha. 14 He says: Asharq Al-Awsat? 15 And you say: Yes, Asharq. 16 He said: Who is Rifa'i Taha? 17 You say: Huh? 18 He says: Who is Rifa'i Taha? 19 You say: Who is Rifa'i Taha? 20 Then he says: Yes. 21 Then you say: He is considered my friend, the leader 22 of the Islamic Group. 23 And the UM says: Wow. 24 And you then said: Yes. 25 And he says: Yeah. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10660 4CE5SAT3 Sattar - cross 1 And you said: He also spoke about the Sheikh's issue, 2 I saw it on the internet. 3 A. Okay. 4 Q. You are telling him, are you not, that you saw on the 5 internet an interview with Rifa'i Taha that was published in 6 Asharq Al-Awsat? 7 A. Yes. I'm telling him that I saw an interview which was 8 published in Asharq Al-Awsat and I'm asking him to get it. 9 Q. And wasn't it that interview that, in which Rifa'i Taha 10 made that statement about the Islamic Group? 11 A. It could be. I'm not -- you know, I mean, if the dates are 12 the same, so it is. 13 But it still, I don't remember that, the interview 14 itself. 15 Q. Ms. Griffith, you can take that down. 16 Mr. Sattar, do you recall testifying that, yesterday, 17 that Taha's book was recorded on audio tape and sent to Sheikh 18 Omar Abdel Rahman, in prison? 19 A. Yes. 20 Q. And you testified that that book was rejected by the Bureau 21 of Prisons, right? 22 A. I'm not sure if it was the Bureau of Prisons or the FBI 23 but, you know, one -- a government agency rejected, yes. 24 Q. And, you mentioned, during your testimony, that there was a 25 letter sent by the Bureau of Prisons to Sheikh Omar Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10661 4CE5SAT3 Sattar - cross 1 Rahman and to Mr. Jabara about the tapes containing that book, 2 right? 3 A. Yes. 4 Q. And you stated -- in fact, that letter was admitted in 5 evidence here, right? 6 A. Yes. 7 Q. And that is Government Exhibit 2415-10, right? 8 A. Yes. 9 MR. MORVILLO: Your Honor, may I display that to the 10 jury? 11 THE COURT: Yes. 12 MR. MORVILLO: Your Honor, this was offered against 13 Mr. Yousry for his state of mind, knowledge and intent. 14 Q. This exhibit is actually two letters, right, Mr. Sattar; 15 the first page is -- 16 THE COURT: I'm sorry. This is with respect, was 17 offered with respect to Mr. Yousry? 18 MR. MORVILLO: Yes; it was from his search. 19 THE COURT: All right. 20 Q. You have seen this, right, Mr. Sattar, before? 21 A. I know about it, yes. 22 Q. And in fact have you seen it. It was faxed to you, wasn't 23 it? 24 A. I'm not sure. It could be, yes. 25 Q. Ms. Griffith, can you go down to the text of the letter? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10662 4CE5SAT3 Sattar - cross 1 This was what you were referring to yesterday in your 2 testimony about the letter from the BOP rejecting the book, 3 right? 4 A. Yes. 5 Q. And you spoke with Mr. Jabara the day that this letter -- 6 the day after this letter was sent to him, right? 7 A. The day after the letter was sent to him? 8 Q. March 10th of 1999? 9 A. I could have, yes. 10 Q. In fact, he read to you a portion of this letter over the 11 telephone, didn't he? And you told him that that was 12 ridiculous, right? 13 A. I could have, you know, did that. I don't recall. 14 Q. And then he faxed you a copy of the letter, right? 15 A. Yes. 16 Q. And you read it? 17 A. Did I read the letter? If he faxed it to me probably I did 18 read it, yes. 19 Q. And the cover letter here is a memo to Sheikh Abdel Rahman 20 which states: That on or about January 6th of 1999 your 21 attorney of record mailed six audio tapes for processing to 22 you. Those tapes were received at the Federal Medical Center 23 in Rochester, Minnesota on or about January 12th of 1999. In 24 accordance with the Special Administrative Measures imposed 25 upon you pursuant to 28 C.F.R. Section 501.3(c), the mail was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10663 4CE5SAT3 Sattar - cross 1 forwarded to the Federal Bureau of Investigation (FBI) for 2 review prior to distribution. 3 That's what you were referring to before, right? 4 A. Yes. 5 Q. You said it was either the BOP or FBI? 6 A. Yes. 7 Q. The Special Administrative Measures provide that if 8 incoming mail is determined by the FBI or the Bureau of Prisons 9 to contain overt or covert discussions of, or requests for 10 illegal activities, or actual or attempted circumvention of the 11 Special Administrative Measures, the mail shall not be 12 delivered. Review of the audio tapes revealed that they 13 contain discussions of illegal activity. Accordingly, the 14 audio tapes are being returned to the sender. 15 Now, they say that they, in this letter, that they 16 rejected six audio tapes? 17 A. Yes. 18 Q. Were those six audio tapes Taha's book? 19 A. Yes. 20 Q. So, in other words, the entire book took six audio tapes to 21 record? 22 A. I believe, yes. 23 Q. Then, Ms. Griffith, if you can go to the next letter. 24 This is the letter to Mr. Jabara enclosing that memo 25 to Sheikh Abdel Rahman in this letter, the first paragraph SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10664 4CE5SAT3 Sattar - cross 1 states: Please find attached a copy of the notification 2 provided to Omar Abdel Rahman informing him that the six audio 3 tapes were reviewed in accordance with the Special 4 Administrative Measures and that the tapes will not be issued 5 to him. Although I am sending this letter to you via 6 facsimile, I will also send you this via regular mail. The 7 other single audio tape which we received in mid-February was 8 cleared and offered to your client. 9 So, it was your understanding that some audio tapes 10 that were sent to Sheikh Abdel Rahman were cleared by the FBI 11 and provided to him, right? 12 A. Yes. 13 MR. MORVILLO: Your Honor, based on Mr. Sattar's 14 testimony, the government would offer this letter, these two 15 letters, this exhibit with respect to Mr. Sattar's knowledge 16 intent and state of mind as well. 17 THE COURT: All right. No objection. They can, the 18 letters can be considered also with respect to Mr. Sattar's 19 knowledge, intent and state of mind. 20 MR. TIGAR: May the jury be instructed also, it is our 21 request, your Honor, that they're not received for the truth of 22 any utterances in them by employees of the United States. 23 THE COURT: The letters are not received for the truth 24 of any of the matters asserted. 25 MR. MORVILLO: May I proceed, your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10665 4CE5SAT3 Sattar - cross 1 THE COURT: Yes. 2 BY MR. MORVILLO:: 3 Q. Now, Mr. Sattar, in the middle of 1999 you learned that 4 Rifa'i Taha was added to the U.S. Treasury Department's list of 5 specially designated terrorists, right? 6 A. In the middle of 1999? 7 Q. Yes. 8 A. You are telling me -- I know he was added. He was on the 9 list but I don't know when exactly. 10 MR. MORVILLO: Your Honor, may I display to the jury 11 Government Exhibit 1018X, in evidence? 12 THE COURT: Yes. 13 Q. Mr. Sattar, this is a telephone conversation between -- 14 MR. TIGAR: Your Honor, we also, we request an 15 instruction that any such list is not offered, or reference to 16 the list is not offered for the truth of any matters on the 17 list. 18 THE COURT: All right. This testimony about the list 19 is being offered not for the truth of the matters asserted but 20 for the effect on the witness' knowledge, intent or state of 21 mind. 22 All right, go ahead. 23 BY MR. MORVILLO:: 24 Q. Mr. Sattar, this was a call on July 2nd, 1999? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10666 4CE5SAT3 Sattar - cross 1 Q. Between yourself and Mr. Al-Sirri? 2 A. Yes. 3 Q. And, during this telephone call, you discussed the Treasury 4 Department's designations with Mr. Al-Sirri, right? Do you 5 recall that? 6 Ms. Griffith, can you go to page 10 of this exhibit? 7 Can you go up a little bit further? Maybe you should go to 8 page 9. 9 At line 14 you say: What happened is the Treasury 10 Department here... 11 Then line 16 you say: Revised the list of what they 12 call terrorist organizations and the individuals whose accounts 13 will be frozen. 14 Now, you are referring to, are you not, Mr. Sattar, 15 the Treasury Department's designations list? 16 A. Yes. 17 Q. And Mr. Al-Sirri says: Ah. 18 And you say: This list was revised. 19 And he says: Ah. 20 And then you say: This revision was sent to me, in 21 turn I sent it to you. 22 Who sent you the revision, Mr. Sattar? 23 A. I am not -- I can't remember who send me the revision 24 exactly. I don't. 25 Q. And Mr. Al-Sirri says: I hope you and I are not included. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10667 4CE5SAT3 Sattar - cross 1 And you respond: I am not on it, thank God, neither 2 you. 3 And then, if you go down to line 12 you are talking 4 about the list -- I'm sorry, line 10 you say: The revisions, 5 they added Al-Qaeda. 6 Then he says: Eh. 7 Then you say: These are the things that he -- 8 Al-Qaeda, they added a person named Abu Hafs Al-Masri and they 9 put Rifa'i Taha. 10 And you stated: These weren't on the old list. 11 And so, it's your understanding at this time that 12 Rifa'i Taha was added to the United States Treasury 13 Department's list of specially designated terrorists in 1999, 14 right? 15 A. Yes. 16 Q. And you knew that this was an update of a list that the 17 Treasury Department kept, right? 18 A. Yes. 19 Q. Because, as you testified earlier, you knew that the 20 Islamic Group was designated as a terrorist organization on 21 this list in 1997, right? 22 A. Yes. 23 Q. And you also knew that Sheikh Omar Abdel Rahman had been on 24 this list for a very long time? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10668 4CE5SAT3 Sattar - cross 1 Q. And so, at least from this point in July of 1999 forward, 2 you knew that the United States considered Rifa'i Taha to be a 3 major terrorist, right? 4 A. I know they considered him to be a terrorist, yes. 5 Q. So much so that they put him on a list of specially 6 designated terrorists, right? 7 A. Yes. 8 Q. Now, Ms. Griffith, you can take this exhibit down. 9 In August of 1999 the United States Court of Appeals 10 denied Sheikh Abdel Rahman's appeal, right? 11 A. In what month? I'm sorry. 12 Q. August. 13 A. August, yes. 14 Q. And, in early September of 1999 you arranged for another 15 prison visit, right? 16 A. Yes. 17 Q. And that visit occurred on September 18th of 1999 with 18 Mr. Clark and Mr. Yousry? 19 A. I'm not quite sure of the date. I know it was in 20 September, yes. 21 Q. That was when the Sheikh's family was visiting as well, 22 right? 23 A. Yes. 24 Q. Now, before that visit occurred, there was an event in 25 Egypt in early September of 1999 that convinced you that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10669 4CE5SAT3 Sattar - cross 1 cease-fire wasn't working, right? 2 A. It's not only that event. It was a series of things 3 happening, it just -- it's not to convince me that the, as you 4 call it, the cease-fire was not working. It was just, you 5 know, series of events, yes. 6 Q. And the event that we are talking about of course is the 7 shooting of Farid Kidwani, right? 8 A. Yes. The event was the shooting of Farid, Farid Kidwani, 9 and I believe other, three people with him in their sleep; yes. 10 Q. There were four people who were killed in early September 11 of 1999, right? 12 A. Yes. 13 Q. And in fact you discussed that shooting with Mustafa Hamza 14 on the telephone in a call that was read to the jury here, 15 right? 16 A. I discussed with many people, yes. 17 Q. You stated that he was killed in his sleep just now, right? 18 A. Yes. 19 Q. Do you know that? 20 A. I -- I read that. People were saying that. Yes. 21 Q. Isn't it a fact that he was killed after a gun battle with 22 the Egyptian police? 23 A. This is what the Egyptian government claimed, as usual, 24 when the killing happened they claimed that there was shooting 25 and they answered back but this has been a policy of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10670 4CE5SAT3 Sattar - cross 1 Egyptian government of extra judicial killing -- 2 MR. MORVILLO: Objection, your Honor. Move to strike. 3 THE COURT: Overruled. 4 A. It is a policy of the Egyptian government of the extra 5 judicial killing -- 6 THE COURT: Mr. Sattar, I believe you answered the 7 question. 8 BY MR. MORVILLO:: 9 Q. And you knew that Farid Kidwani was the military leader of 10 the Islamic Group in Egypt, right? 11 A. I did not know that myself and -- 12 Q. That is what the report said -- 13 THE COURT: Stop. 14 A. I did not know that first-hand, Mr. Morvillo. 15 Q. No, but you knew it the same way you knew about the 16 shooting, right? You knew about it because you read about it? 17 A. Yes. 18 Q. And you also read reports that weapons and explosives were 19 found in the house where Farid Kidwani was staying, right? 20 A. I -- I don't recall that. 21 Q. But, in your opinion, this was really the straw that broke 22 the camel's back, right? 23 A. This was -- I did not understand the last word. 24 Q. This was a turning point for you in the cease-fire debate, 25 right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10671 4CE5SAT3 Sattar - cross 1 A. It was not just a -- it was not a turning point, it was 2 just, you know, an event, another event that added to what's 3 going on in Egypt. 4 It was just -- it was not a turning point, it was just 5 a clear indication that the Egyptian government was just going, 6 you know, its own way. 7 Q. That the government of Egypt was still hostile to the 8 Islamic Group, right? 9 A. Yes. 10 MR. MORVILLO: Your Honor, may I display for the jury 11 Government Exhibit 1025X, in evidence? 12 THE COURT: Yes. 13 Q. Mr. Sattar, this is a telephone conversation between 14 yourself and Rifa'i Taha on September 13th of 1999. Do you see 15 that? 16 A. Yes. 17 Q. And in this call this was after the shooting of Farid 18 Kidwani, right? 19 A. Could be, yes. 20 Q. Ms. Griffith, can you scroll down to page 5? Maybe a 21 little bit higher. Okay. I'm sorry, can you scroll down a 22 little bit further? 23 Rifa'i Taha says to you at the top of this page, line 24 1: Quite frankly, I am very sad at the existing situation. 25 And you say: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10672 4CE5SAT3 Sattar - cross 1 And he says: I do not know if I should send you words 2 to this effect or not. 3 And he says -- you say: I -- I do not mind. 4 And he says: Yeah, and if you feel you cannot take 5 many written things. 6 And you said: Yes. 7 And he said: You understand, don't you? 8 And you said: Yes. 9 And he says: Tell him to send something to this 10 effect. Tell him that I am very upset to the point that you 11 would not believe. 12 A. Yes. 13 Q. You and he are talking about the Kidwani shooting here, 14 right? 15 A. Yes, we were talking about the Kidwani shooting. And also 16 we are talking about that he is upset because there was not 17 even a condemnation by the Islamic Group issued, you know, to 18 condemn the killing of those people and, you know, he was -- 19 that's why he was saying that he was very upset. 20 Q. And what you're talking about is that he wants you to send 21 to Sheikh Abdel Rahman the fact that he is so upset that you 22 wouldn't believe it, right? 23 A. That he is so upset because nobody issued anything and if 24 he is going to speak out, you know, they're going to just jump 25 on him again; yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10673 4CE5SAT3 Sattar - cross 1 Q. But when he says, at line 9: Tell him to send something to 2 this effect, tell him that... 3 Taha is referring to Sheikh Abdel Rahman, right? 4 A. Yes. 5 MR. MORVILLO: Your Honor, may I display Government 6 Exhibit 1026X, to the jury? 7 THE COURT: Yes. 8 MR. MORVILLO: Your Honor, may I have a moment? We 9 seem to have a technical problem here. 10 THE COURT: Yes. 11 MR. MORVILLO: Your Honor, may I display Government 12 Exhibit 1026X on the Elmo? 13 THE COURT: Yes. 14 Q. Mr. Sattar, this is a conversation between you and Mr. Taha 15 on September 13th of 1999, right, the same date as the other 16 conversation we were just looking at? 17 A. Yes. This is a different conversation? 18 Q. It is a different conversation. 19 A. Okay. 20 Q. And this is the next conversation that you have where you 21 are discussing the statement that he wants to convey to the 22 Sheikh and what he wants back from the Sheikh, right? 23 A. I'm not -- you know, I just see a little portion of the 24 conversation so I can't tell. 25 Q. Well, you say, at line 3: That was someone calling, I told SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10674 4CE5SAT3 Sattar - cross 1 him I will call you and hung up. This is one thing. 2 And then he says: Sheikh, eh, eh... those things that 3 you listen to, make a summary of it in the newspapers. 4 You say: Yes, of course, God willing. 5 He says: Hah? 6 You say: God willing. 7 He says: Also, see if our brother Salah agrees we 8 should have a powerful word, hah. 9 Salah is Salah Hashim? 10 A. He is the only Salah I know, besides Mohamed Salah, the 11 reporter, he is the only Salah I know. 12 Q. And a powerful word, you understood to be a threat to the 13 government of Egypt, right? 14 A. I understood to be a criticism of what the government of 15 Egypt did by killing those people. 16 Q. And you stated: That's the least we can do, the least... 17 that something be issued, oh, God the almighty it must. 18 A. Yes. 19 I'm telling him the least that anybody can say is to 20 stand up to and to say stop the extra judicial killing. He 21 cannot just kill people because you are accusing them of doing 22 something. 23 This is what I was trying to say there. 24 Q. And doing more would actually be carrying out a terrorist 25 attack? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10675 4CE5SAT3 Sattar - cross 1 A. I'm sorry? 2 Q. Doing more would actually be carrying out a terrorist 3 attack? 4 A. Even if they are considered terrorists they are supposed to 5 have their day in court. This is the way I believe it and this 6 is any civilized person supposed to believe too. 7 Q. Right. 8 But, Mr. Sattar, my question was, when you said "the 9 least they can do," what would be more would be to actually 10 carry out a terrorist operation against the Egyptian 11 government, right? 12 A. No, Mr. Morvillo. No. 13 It was just an expression, "least you can do." The 14 least that you can do is to say something. It is not the least 15 that you can do is to speak or this is, you know, so you can 16 carry terrorist operations. 17 No, Mr. Morvillo, this is not what I meant. 18 Q. Now, you knew you were speaking to Rifa'i Taha, the leader 19 of the Islamic Group, or one of the leaders of the Islamic 20 Group, right? 21 A. Yes. 22 Q. And you were agreeing with him that the, a powerful word 23 needs to be said by the Al-Gama'a al-Islamiyya against the 24 government of Egypt, right? 25 A. Yes, I agreed with him and I -- that, you know, he should SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10676 4CE5SAT3 Sattar - cross 1 speak out. People should continue to speak out. You know, I 2 mean -- 3 Q. And this is because you were very upset about the shooting 4 that led to the deaths of Farid Kidwani and the three others? 5 A. I am -- I was very judgment set, yes, to the shooting that 6 led to the killing of four people. 7 MR. MORVILLO: May I display Government Exhibit 1026 8 again, your Honor? 9 THE COURT: Yes. 10 Q. On the second page, at the top, Rifa'i Taha says to you: 11 Have the Sheikh do something like this and issue it because, 12 frankly, this will strengthen me among the brothers. 13 And you respond: Fine, God willing. But this will 14 have eh, eh, if it is done it will need another arrangement. 15 What Rifa'i Taha was asking you to do was to get the 16 Sheikh to issue a statement, a powerful statement in response 17 to the killings of Farid Kidwani, right? 18 A. Yes, condemning the killings of Farid Kidwani and the 19 people that were with him, yes. 20 Q. And what Rifa'i Taha said to you was this will strengthen 21 me among the brothers? 22 A. Yes. 23 Q. And you understood that to mean that the Sheikh's support 24 would make him -- make his position stronger among the Islamic 25 Group? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10677 4CE5SAT3 Sattar - cross 1 A. When it will -- it will strengthen his -- when he speaks 2 out it will cut the criticism that you know, any time Rifa'i 3 Taha, you know, was speaking out or saying anything, you know, 4 the other leaders of the Islamic Group were jumping on him and 5 criticizing him. So, if the Sheikh himself came out and spoke 6 against what took place in Egypt, this will take the -- took 7 the other leaders off Rifa'i Taha's back when he speaks out 8 again. 9 This was my understanding. 10 Q. Now, you agree that the Islamic Group needed to have a 11 stronger voice, right? 12 A. Yes. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10678 4CEMSAT4 Sattar - cross 1 Q. And so you supported Rifa'i Taha's position that the 2 ceasefire wasn't working out? 3 A. It is not because that. I wanted the Islamic Group to have 4 a stronger voice, that I supported Rifa'i Taha's position. I 5 am for speaking out. I don't shy my opinion. I always 6 encourage people to talk, to speak out, to say things. And, 7 you know, what they say, I may disagree with what you say, but 8 I am willing to die for your right to say it. So I am for him 9 to speak out, for others to speak out. And if there is 10 something wrong with what's going on, they should stand up and 11 say it is wrong. Everybody should be entitled to express his 12 opinion. 13 Q. In fact, you made your opinion pretty clear that you didn't 14 think that the ceasefire was working out in telephone 15 conversations, right? 16 A. I did say it was not -- the results were not the way it 17 should be in many telephone conversations. 18 MR. MORVILLO: Your Honor, may I display for the jury 19 Government Exhibit 1044X in evidence? 20 THE COURT: Yes. 21 Q. Mr. Sattar, this is a call that we actually talked about 22 yesterday. It is a November 14, 1999 conversation between 23 yourself and Sa'ad Hasaballah? 24 A. Yes. 25 Q. He is a lawyer for the Islamic Group, a lawyer in Egypt? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10679 4CEMSAT4 Sattar - cross 1 A. He is a lawyer in Egypt that represented some Islams, yes. 2 Q. He was one of Sheikh Abdel Rahman's lawyers? 3 A. Yes, he was one of his lawyers. 4 MR. MORVILLO: Ms. Griffith, could you go to page 11. 5 Q. You and Mr. Hasaballah are talking about the initiative, 6 right? 7 A. I am not sure what are we talking about here. 8 Q. Look at page -- at line 8 here. You say: Two years are 9 gone since the initiative came out and all the people committed 10 themselves to it. You're speaking about -- 11 A. The peace initiative, yes. 12 Q. And you say the results that came out do not suit the 13 situation as a whole? 14 A. Yes. 15 Q. And so what you mean is that the results of the ceasefire 16 are not -- it has not been successful? 17 A. The results were not that great, yes. 18 MR. MORVILLO: If you could scroll down a little bit, 19 Ms. Griffith, to the next page. 20 Q. You say in line 7: Or, we would be saying that we 21 committed an error, or as they want us to say, what we did all 22 these years was wrong, all the scopes we had were wrong and 23 today we repent. 24 When you say we, you're talking about the Islamic 25 Group, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10680 4CEMSAT4 Sattar - cross 1 A. If you go a few lines above that, I'm talking about Rifa'i 2 Taha and his position and when he say, I am just, you know, 3 referring to what he is or what Islamic Group by we, talking 4 about the Islamic Group in that sense, not that I am included. 5 If you go back a few lines, you will see -- you will understand 6 it and put it in context. 7 Q. If you look at line 1 you say: The man says, now our hands 8 are off everything, okay. The man is Rifa'i Taha? 9 A. I am not sure. Can I see the whole transcript, please? 10 MR. MORVILLO: Ms. Griffith, can you go up a little, 11 please. 12 A. I need to read the whole conversation so I can give you -- 13 Q. You can do that on your redirect examination. 14 MR. MORVILLO: Why don't we go down a little bit 15 further, Ms. Griffith. 16 Q. You say at line 11: But the initiative and the issue of 17 standing and stopping and so, all these were made for certain 18 things. And on condition of certain promises, till today, 19 these promises were not fulfilled. People are still under 20 detention, the people who -- 21 What you're referring to here, Mr. Sattar, is the fact 22 that the initiative is not working because there are people who 23 are still in jail, right? 24 A. I'm referring -- I cannot answer your question, Mr. 25 Morvillo. I need to see the whole conversation to put it in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10681 4CEMSAT4 Sattar - cross 1 context. You know, I cannot just take one thing here. I spoke 2 about those things so many times. I said the initiative was 3 not -- the results of the initiative was not working because 4 the government is still doing such and such and such and I said 5 it so many times. I just need to know what I -- 6 Q. Mr. Sattar, there is nothing ambiguous about this. You 7 said: But the issue of initiative and the issue of standing 8 and stopping and so on, all these made for certain things. 9 Until today these promises were not fulfilled. People are 10 still under detention. It is clear, right? 11 A. So it is clear. 12 MR. MORVILLO: Ms. Griffith, can you go to page 19. 13 Can you scroll down a little bit further. 14 Q. At line 5 you say: But these people will not commit 15 themselves for the rest of their life. Hasaballah says: Yeah, 16 yeah. You say: Patience has limits. 17 Is that right? 18 A. Yes. 19 MR. MORVILLO: Ms. Griffith, can you go to page 27 and 20 28 of this transcript. 21 Q. At the bottom of this page, Mr. Sattar, line 19 you state: 22 Even when -- tell them -- Mr. Sa'ad, the people now ask, where 23 are you, incidents take place right and left; daily new 24 incidents, none of them go by without, mixed talking, without 25 these people having an opinion on it. Now incidents go by, our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10682 4CEMSAT4 Sattar - cross 1 brothers are killed, not even a statement to elegize them came 2 out. 3 Then you say: Not even a statement came out that says 4 four of our brothers were unjustly killed. And Hasaballah -- 5 then you state: Our brothers still stand in front of military 6 courts, no statement comes out to say such a thing. Incidents 7 repeat themselves. Pledges are made and the nonsense. That 8 takes place in your area as you saw, we have no opinion. Then 9 you say: People ask, what's going on? Where are you brothers? 10 Are you dead? 11 Those are words that you said, right? 12 A. Yes. 13 Q. Now, on December 27 of 1999, you spoke with Rifa'i Taha 14 about Sheikh Omar Abdel Rahman, right? 15 A. December 27? Probably, yes. 16 MR. MORVILLO: Your Honor, may I display for the jury 17 Government Exhibit 1045X? 18 THE COURT: Yes. 19 Q. December 27, 1999. This is a telephone conversation 20 between yourself and Rifa'i Taha, right, Mr. Sattar? 21 A. Yes. 22 MR. MORVILLO: Can you scroll down a little bit, 23 Ms. Griffith, to the next page. 24 Q. At the top of the page Rifa'i Taha says: I feel sorry for 25 that man. All people abandoned him. The only thing they did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10683 4CEMSAT4 Sattar - cross 1 for him is to say a prayer. No one moved to incite and no one: 2 "To God we belong and to him we return." 3 It is your understanding that Rifa'i Taha was talking 4 about Sheikh Omar Abdel Rahman? 5 A. He might be, yes. 6 MR. MORVILLO: Ms. Griffith, can you go down to the 7 next page. Can you go to the page after this. Up a little bit 8 more. That's good. Thank you. 9 Q. Here Rifa'i Taha says: He will not be left alone. Anyway 10 by God's will. He will not be left alone? 11 A. What line are you reading? 12 Q. Line 8. 13 A. Line 8. Okay. 14 Q. And you say: By God's help. And Taha says: God, glory be 15 to him, will prepare for him someone who can give him the 16 victory. You say: Amen, amen. 17 You're speaking about Sheikh Abdel Rahman here? 18 A. Yes. 19 Q. And Rifa'i Taha says: Sooner or later and in spite of the 20 circumstances God willing, will not, unintelligible. And you 21 say: May God be gracious to you. He says: God willing, even 22 if this will be my sole concern, no matter what happens, God 23 willing, as soon as I get the chance to move around, everything 24 will be fine. 25 Rifa'i Taha said that to you, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10684 4CEMSAT4 Sattar - cross 1 A. Yes, he is saying that, yes. 2 Q. And you understood him to be saying that if he was able to 3 move around without fear of being arrested, right? 4 A. I am not sure what he is saying here. If I get the chance 5 to move around, this is so vague to me. I don't, you know, say 6 that if he got that answer to move around without being 7 arrested. I don't know. 8 Q. Well, you understood that he didn't have a lot of ability 9 to move around given that he was a fugitive, right? 10 A. I know he was in Afghanistan -- no. He has been around 11 before, but I don't know, you know, how often does he do 12 things, his movements. 13 Q. And what he was telling you here is that if he had the 14 chance to move, he would do something to get Sheikh Omar Abdel 15 Rahman out of prison, right? 16 A. He is talking about the Sheikh's situation here, and he is 17 sympathizing with him and he is saying, you know, that 18 nobody -- you have to read the whole thing, too, and say nobody 19 cares for him, nobody cares about him. This is throughout the 20 conversation. And if he gets a chance to move around, 21 everything will be fine. That's what he is saying here. I 22 don't want to give his words more than -- 23 Q. His words are what they are, right, Mr. Sattar? 24 A. His words are what they are, yes. 25 MR. MORVILLO: Your Honor, I am going to move on to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10685 4CEMSAT4 Sattar - cross 1 another subject. I note that it is about ten after one. Would 2 you like me to continue? 3 THE COURT: I don't see Mr. Fletcher, but we will 4 break for lunch. Let me see where Mr. Fletcher is just for a 5 moment. 6 We will break for lunch. 7 Ladies and gentlemen, please remember my continuing 8 instructions. Please don't talk about the case at all. Always 9 remember to keep an open mind until you have heard all of the 10 evidence and I've instructed you on the law. 11 Have a good lunch and I look forward to seeing you 12 2:15. 13 All rise, please, and please follow Mr. Fletcher to 14 the jury room. 15 (Jury not present) 16 THE COURT: Mr. Sattar can step down. We will see you 17 all at ten after two. 18 (Page 10686 SEALED by order of the Court) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10687 4CEMSAT4 Sattar - cross 1 AFTERNOON SESSION 2 2:25 p.m. 3 (In open court; jury not present) 4 THE COURT: Mr. Sattar is on the stand. 5 (Jury present) 6 THE COURT: Good afternoon, ladies and gentlemen. It 7 is good to see you all. 8 Mr. Sattar is on the stand. 9 Mr. Fletcher. 10 THE DEPUTY CLERK: Mr. Sattar, you are reminded you're 11 still under oath. 12 DEFENDANT SATTAR: Thank you, sir. 13 THE COURT: Mr. Morvillo, you may proceed. 14 BY MR. MORVILLO: 15 Q. Mr. Sattar, there came a time in early 2000 when you made 16 arrangements for the prison visit in February 2000, right? 17 A. Yes. 18 Q. And that was a prison visit that was going to be attended 19 by Abdeen Jabara and Mohammed Yousry, correct? 20 A. Yes. 21 Q. And before that visit Taha asked you to convey a message to 22 Sheikh Abdel Rahman? 23 A. Yes. 24 Q. And that message was, again, asking for the Sheikh's 25 support in opposing the ceasefire? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10688 4CEMSAT4 Sattar - cross 1 A. It was supporting his position, yes. I believe also -- I 2 believe there was also to review -- I mean, the Sheikh was 3 asking for them to evaluate the whole thing and the message or 4 letter included those things, yes. 5 Q. You wrote a letter prior to this visit? 6 A. Yes. 7 MR. MORVILLO: Your Honor, may I display to the jury 8 Government Exhibit 1051X in evidence? 9 THE COURT: Yes. 10 MR. MORVILLO: I am going to use the Elmo. 11 Q. Mr. Sattar, Government Exhibit 1051X in evidence is a 12 telephone call that occurred on January 29 of 2000? 13 A. Yes. 14 Q. Between yourself and Rifa'i Taha? 15 A. Yes. 16 Q. Right? 17 At line 11 Rifa'i Taha says to you: No. The poetry 18 line I told you about long ago will be good for the man in your 19 area. 20 What are you talking about? 21 A. I thought you were saying the poetry line. He was 22 referring to -- I am not quite sure exactly to what. You said 23 it was referring to his book in your opening statement. And, 24 you know, to be honest with you, I really don't know. 25 Q. So when he said to you the poetry line I told you about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10689 4CEMSAT4 Sattar - cross 1 long ago will be good for the man in your area, you knew that 2 he was referring to Sheikh Omar Abdel Rahman, the man in your 3 area? 4 A. Yes, the man in my area, he is referring to the Sheikh. 5 The poetry line, I really don't know exactly what he is 6 referring to right now. 7 Q. You responded to him by saying: Good, good. And he said: 8 God willing, things can go this way and that way. 9 And your testimony is, when he said the poetry line I 10 told you about long ago will be good for the man in your area, 11 you don't know what he what is talking about? 12 A. I am not quite sure what he is referring to right there. 13 Q. At line 6 he says: We have to say words like these in 14 order to -- because your brother is reducing so much. The 15 words like these refer to the poetry line, right? 16 A. Yes. I guess so, yes. 17 Q. You say yeah, yeah. 18 And as you sit here today you don't remember, you 19 don't know what he was talking about? 20 A. I'm not -- I don't know what he is talking about exactly 21 here. You know, I mean, he is talking about some kind of 22 words. I don't know. 23 MR. MORVILLO: Your Honor, may I display for the jury 24 Government Exhibit 1053X in evidence? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10690 4CEMSAT4 Sattar - cross 1 Q. Mr. Sattar, this is a call between yourself and Rifa'i 2 Taha, Government Exhibit 1053X, on February 3 of 2000? 3 A. Yes. 4 Q. And I would direct your attention to page 11. At line 6 5 you said: The other thing on, eh, on two weeks from this day, 6 if you have something, send it to me. 7 This, again, is February 3 of 2000. Do you see where 8 I'm talking about? 9 A. Line 6? 10 Q. Yes. 11 A. Yes. 12 Q. You're referring to a prison visit that was going to be 13 happening in a couple of weeks, right? 14 A. Yes. 15 Q. And you said is that correct, okay? Do you remember that I 16 told you by God's will they will go to kiss the hands? 17 When you say kiss the hands you're referring to the 18 prison visit to see Sheikh Omar Abdel Rahman, right? 19 A. Yes. 20 Q. And he says, Rifa'i Taha says to you: Okay, God willing, 21 glory to him, yes, we ask God to pave the way. And then you 22 state: Amen, oh God, by God's will in two weeks, so before 23 that the things should be sent. And he says: Many regards and 24 the poetry will be executed, God willing. And you respond by 25 saying: Exactly, by God's will, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10691 4CEMSAT4 Sattar - cross 1 What are you talking about? 2 A. We are talking about, I think here, that he is going to 3 send me something. This is what I understand, you know, from 4 what he is saying there, but I really -- I mean, I don't know 5 exactly what he is saying. He is going to send me something. 6 What is it, I don't remember right now. 7 Q. And it was something that he was referring to as poetry, 8 right? 9 A. Something that he was referring -- probably he was 10 referring to as poetry, yes. 11 Q. But he wasn't referring to the poetry of Omar Khayyam? 12 A. No. 13 Q. He wasn't referring to poetry? 14 A. No, he was not referring to the poetry of Omar Khayyam, but 15 he was referring to something that he was going to send. 16 Q. A message that he wanted to send to the Sheikh? 17 A. Could be, yes. 18 Q. That visit took place on February 17 and 18 of 2000, right? 19 A. Yes. Around this time, yes. 20 Q. And as you testified last week, I believe, you said that 21 you wrote a letter to the Sheikh, including some words from 22 Rifa'i Taha, and gave it to Mr. Jabara or Mr. Yousry to convey 23 to the Sheikh, right? 24 A. Yes. I also said that it was -- there was a review sent to 25 me. I'm not quite sure it was by Rifa'i Taha or by Mustafa SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10692 4CEMSAT4 Sattar - cross 1 Hamza. It was by one of them. It was a review -- I remember 2 it was handwritten and I included it with my letter to the 3 Sheikh. 4 Q. And you say a review. A review of the ceasefire? 5 A. A review of the initiative. You know, what's good about it 6 and what's no good about it. It was an evaluation actually. 7 Q. The Islamic Group, either Rifa'i Taha or Mustafa Hamza had 8 conducted a review of the initiative and they wanted to bring 9 the Sheikh up to speed, right? 10 A. Bring the Sheikh what? 11 Q. Up to speed. They wanted to inform him of what was 12 happening? 13 A. Yes. If you remember in the visit before with Mr. Clark, 14 the Sheikh asked for a review. And -- 15 Q. In the interim there was a review conducted? 16 A. There was a review conducted. That was an evaluation made 17 and it was sent with the Sheikh -- with the letter, yes. 18 Q. And so your letter was separate and apart from the review 19 of the ceasefire that had been prepared and sent to the Sheikh? 20 A. Yes. 21 Q. In other words, you did not conduct the review yourself? 22 A. No, I did not conduct that review myself. 23 Q. And after the prison visit you got together with Mohammed 24 Yousry, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10693 4CEMSAT4 Sattar - cross 1 Q. And he told you that Abdeen Jabara would not let Sheikh 2 Omar Abdel Rahman dictate a response to your letter, right? 3 A. I am not sure if he said that it was -- to dictate a 4 response or even the letter was read to him. I know that 5 Abdeen just refused to do one or the other. 6 Q. He either refused to allow your letter to be read to the 7 Sheikh or to allow the Sheikh to respond to you? 8 A. Yes. 9 Q. And you were upset by that, right? 10 A. I was kind of upset, yes. 11 Q. And you spoke with Mustafa Hamza after this prison visit on 12 February 28 of 2000 and you filled him on the details, right? 13 A. Yes. 14 MR. MORVILLO: Your Honor, may I display for the jury 15 Government Exhibit 1062X in evidence? 16 THE COURT: Yes. 17 Q. Mr. Sattar, Government Exhibit 1062X is a transcript of a 18 telephone conversation between you and Mustafa Hamza on 19 February 28 of 2000? 20 A. Yes. 21 Q. And it was in this telephone call that you informed him of 22 what happened at the visit, right? 23 A. Yes. I believe I did that, yes. 24 Q. On page 2 you say at line 3: First, I didn't go myself for 25 your information, okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10694 4CEMSAT4 Sattar - cross 1 And what you're referring to is the fact you didn't go 2 to the prison visit, right? 3 A. Yes. 4 Q. And you said: But this is what happened. There was a 5 letter. Yeah. And you say: Okay. Things got complicated. 6 Mustafa Hamza says yes. And you said: For the person who was 7 going there, I mean the man who was going got scared a bit. 8 You're referring to Mohammed Yousry? 9 A. No. 10 Q. You're referring to Abdeen Jabara? 11 A. I'm referring to Abdeen. 12 Q. And then you say: Okay. Supposedly, we should have got a 13 detailed answer to everything that came out in the press 14 during -- during the past period, but the man in charge refused 15 and said, no, nothing. 16 So it was your understanding that what happened was 17 that Abdeen Jabara refused to allow the Sheikh to issue a 18 response to your letter, at a minimum? 19 A. Let me just read it, please. I believe, yes, there is talk 20 about the response there, and Abdeen Jabara refused to let the 21 Sheikh answer. 22 Q. And what you're referring to when you refer to the man in 23 charge, that's Abdeen Jabara? 24 A. That's Abdeen Jabara, yes. 25 Q. And who told you that Abdeen Jabara was scared? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10695 4CEMSAT4 Sattar - cross 1 A. Who told me that Abdeen Jabara -- I assumed he was scared. 2 Q. No one told you that? That was an assumption you made? 3 A. It was probably my assumption, yes. 4 Q. So Mohammed Yousry didn't tell you after the visit that 5 Abdeen was scared and didn't let it happen? 6 A. I can't say that he told me, you know, for sure. I can't. 7 Q. And then on page 3 you say at line 2: The other thing is, 8 he said without going into details that he tends to agree to 9 Sheikh Abu Yasir's opinion. 10 And here what you're referring to is that Sheikh Omar 11 Abdel Rahman stated without going into details that he agrees 12 with Rifa'i Taha's position on the ceasefire? 13 A. He agrees to his position to speak out, yes. 14 Q. Well, whatever Rifa'i Taha's opinion is, the Sheikh Abdel 15 Rahman agrees with it? 16 A. Yes. 17 Q. At line 5 you say: There are the few words -- these are 18 the few words that were said. No details, because the 19 circumstances didn't allow any details. 20 When you say the circumstances, what you're referring 21 to is Abdeen Jabara didn't allow the details, right? 22 A. Probably. I'm just referring to the circumstances 23 surrounding the visit and Abdeen did not want the Sheikh to say 24 anything. 25 Q. And then Mustafa Hamza said: Well, it is better that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10696 4CEMSAT4 Sattar - cross 1 are there so there can be better communication. And you 2 responded: Yes, yes. But even if I was there and that other 3 man was with me, he would have done the same thing, because you 4 go just as a companion. 5 A. Yes. 6 Q. So what you're saying is, whether or not you went there 7 because Mr. Jabara was there, he would not have let those -- 8 the Sheikh make those statements, right? 9 A. Yes. My understanding, if he said no, it will be no. I 10 mean, you know, I was not on the visit, but I understand, you 11 know, if Jabara said no, it will be no. If he said yes, it 12 will be yes. You know, the lawyers make that determination. 13 Q. And it was your understanding that he said no because of 14 the Special Administrative Measures? 15 A. My understanding is that he said no, it was not just 16 because of the -- it is not because of the Special 17 Administrative Measures. Ramsey Clark took some letters and 18 the Special Administrative Measures were in effect. So it was 19 not because of the Special Administrative Measures, in my 20 understanding. It was just because he didn't want to do it. 21 Q. Why don't we look at the rest of this conversation. 22 THE COURT: We have been going for about half an hour. 23 Why don't we take a stretch break. 24 (Pause) 25 THE COURT: As I tell the jurors, no talking in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10697 4CEMSAT4 Sattar - cross 1 box. If you need something, tissues or so, just raise your 2 hand. 3 Please have a seat. 4 You can proceed. 5 MR. MORVILLO: Thank you, your Honor. 6 Q. Mr. Sattar, at line 14, after you said because you go just 7 as a companion you said: The whole thing is the responsibility 8 of the main person. 9 And the main person is the lawyer, right? 10 A. Yes. 11 Q. And then you said: Yeah, unfortunately the main person 12 speaks Arabic. He is scared. And then you said -- Mustafa 13 Hamza said: Yeah, yeah. Then you said Mohammed. It was 14 something unintelligible and then Mohammed. 15 What you're saying is that because Jabara spoke Arabic 16 he scared Mohammed Yousry, right? 17 A. No, no. 18 Q. What are you saying? 19 A. I am saying actually here because Abdeen Jabara is from 20 Arab descent that he is scared. If you are an Arab living 21 here, you know, you will understand what I'm talking about. 22 Q. What the words say are unfortunately, the main person 23 speaks Arabic. He scared, not he was scared, or he is scared; 24 he scared, right? 25 A. Don't hold me to the translation here, Mr. Morvillo, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10698 4CEMSAT4 Sattar - cross 1 please. The translation here, I know what I said. This is my 2 words. I said it in my tongue. I know exactly what I'm 3 saying. What I meant, because Abdeen Jabara is an Arab, he 4 speaks Arabic. Abdeen Jabara himself was the one who is 5 scared. 6 Q. And you said on line 21: He was scared because they can, 7 if they felt anything like this, they can terminate all visits. 8 A. Yes. 9 Q. Who is the they? 10 A. The lawyers. I'm just referring, you know, to lawyers in 11 general, that all visits will be terminated for everybody. 12 Q. If they felt anything like this, you mean if the lawyers 13 felt anything like this, or if the government of the United 14 States felt anything? 15 A. You're right. If the government felt anything like this, 16 yes. 17 Q. And what does that mean, felt anything like this? 18 A. If they felt like, you know, they are doing something they 19 are not supposed to do, the visit will be terminated. 20 Q. And what was happening here in your understanding, or at 21 least as far as you understood it, Mr. Jabara felt that what 22 was happening here would not be permitted by the government of 23 the United States? 24 A. Probably, yes. 25 Q. Then on page 4 you state at line 2: I mean, they cancel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10699 4CEMSAT4 Sattar - cross 1 everything. So he said -- he is Mr. Jabara -- no. I can't 2 risk something like this. That's right, it was Mr. Jabara was 3 the he? 4 A. I believe it was Jabara, yes. 5 Q. Then you said: There is no problem with the others. No 6 problem with those of an American origin. They tell you, say 7 what you want, do what you want and, eh, write what you want. 8 They even go out from his place and hold press conferences and 9 talk. Then Mustafa Hamza says: They have no problem. Then 10 you said: They have no problems. The other guy said, no. I 11 signed papers and so and so. I was very angry with him. 12 The other guy is Abdeen Jabara, right? 13 A. Abdeen Jabara, yes. 14 Q. When you said that he signed papers, you're referring to 15 the attorney affirmations that the lawyers for Sheikh Omar 16 Abdel Rahman signed saying that they would abide by the Special 17 Administrative Measures, right? 18 A. Yes. 19 MR. MORVILLO: Your Honor, may I display for the jury 20 Government Exhibit 1066 in evidence? 21 THE COURT: Yes. 22 MR. MORVILLO: I'm actually going to do it on the 23 Elmo, Ms. Griffith. 24 Q. Mr. Sattar, Government Exhibit 1066X is a telephone 25 conversation on March 27, 2000? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10700 4CEMSAT4 Sattar - cross 1 A. Yes. 2 Q. And it is a call involving Salah Hashim and Mustafa Hamza? 3 A. Yes. 4 Q. And yourself. 5 Salah Hashim, he was in Egypt, right? 6 A. Salah Hashim was in Egypt, yes. 7 Q. And Mustafa Hamza was not in Egypt? 8 A. No, he is not. 9 Q. As we discussed yesterday, what would happen is Mustafa 10 Hamza would call you and then you would conference in Salah 11 Hashim in Egypt, right? 12 A. Yes. 13 Q. This is what happened in this case, right? 14 A. Yes. 15 Q. And very often when you would have these calls what would 16 happen is, Mustafa Hamza or Rifa'i Taha would call you, you 17 would speak to them for a little while, then you would 18 conference in the other person in Egypt, and then that call 19 would happen and then that call would end and then you would 20 continue your conversation, right? 21 A. Yes. Sometimes, yes, it happened this way. 22 Q. In fact, that happened on this occasion, right? 23 A. I am not sure, you know. I mean, if you say it is, it 24 happened, so it did. 25 Q. And in this call with Mustafa Hamza you were talking about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10701 4CEMSAT4 Sattar - cross 1 petitioning for the Sheikh to return to Egypt, right? 2 A. Yes. Just let me kind of read the whole thing, please. 3 Yes. 4 Q. And basically what you're telling Mustafa Hamza is that 5 Sheikh Abdel Rahman said that he will not personally submit a 6 request to return to Egypt, right? 7 A. Basically, I'm explaining to him before that Salah Hashim 8 was told by some state security official in Egypt, you know, if 9 the Sheikh, he was trying to negotiate with them, you know, the 10 return of the Sheikh, and they just brush him and tell him, you 11 know, to submit a petition, ask him to submit a petition. When 12 this was told to the Sheikh and the Sheikh was asked -- was 13 notified by this and he refused to and he says, I will not do 14 that because the matter, it is not in their hand. 15 Q. In fact, what the Sheikh was saying, right, was that he 16 would only do it if the American government requested it from 17 Egypt, right? He wanted the American government to do it on 18 its own? 19 A. He does not want to beg the Egyptian government for his 20 return. This is basically what he wanted to do. 21 Q. And then what you say at line 15 is: The matter of -- it 22 is true that America is a major power, but in certain points, 23 it looks out for its interests. And he says yes. And you say: 24 It looks out eh, eh, eh, it has its interests. And Mustafa 25 Hamza says: That is right. That is -- and then you say: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10702 4CEMSAT4 Sattar - cross 1 America, America, America is not going to say -- will not 2 pressure Egypt into taking the Sheikh, unless its interests are 3 facing eh, eh, certain jeopardy. But as long as America's 4 interest in incarcerating the Sheikh, I mean from '93 till now, 5 there is no -- there is nothing that jeopardized America's 6 interests. 7 A. Yes. 8 Q. You said that, right? 9 A. Yes, I said that. And what I meant by it, America is a 10 major power. Its interest is with the Egyptian government 11 right now. There is nothing to jeopardize this interest in 12 Egypt. The political saying in Egypt, the Egyptian government 13 is in control of everything. If the American government feels 14 like its interest is not with the Egyptian government or having 15 the Sheikh here in prison will jeopardize its interest in 16 Egypt, you know, it will -- this situation will change. But as 17 long as the American government's interest is with the Egyptian 18 government, nothing is going to happen. 19 Q. You continued and you said: This matter, this matter is 20 considered a closed case, a closed case. And you're referring 21 to the Sheikh's case, right? 22 A. I'm referring to the whole thing, you know, that the Sheikh 23 is going to Egypt in the time being, yes. 24 Q. The Sheikh's return to Egypt was a closed case? 25 A. At the time being, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10703 4CEMSAT4 Sattar - cross 1 Q. And you said the most important thing to it relating to 2 this matter is Egypt's interests. And then you said: And as 3 long as Egypt is objecting, that's it. They will not make the 4 Egyptians angry, eh, eh from this angle. From this angle, 5 you're referring to the United States? 6 A. I am referring, yes. They will not -- the American 7 government will not make Egypt angry because its interests is 8 with the Egyptian government. The American government will not 9 jeopardize its interest with the Egyptian government because of 10 the Sheikh. 11 Q. And then you said at line 10: But, America -- if, if 12 America, for example, if there is something that jeopardizes 13 its interests, and it pressured Egypt, Egypt will not refuse. 14 Egypt will not refuse if America exerted pressure, because 15 their pressure is great. 16 A. Yes. If the United States felt there is something to 17 jeopardize its interest in Egypt, it will put its weight on the 18 Egyptians. This is what I understand -- what I was trying to 19 say there. 20 Q. And when you were talking about America's interests being 21 threatened, you knew that you were talking to the leader of a 22 terrorist organization that had been designated as such by the 23 United States Department of Treasury, right? 24 A. Yes, I do know that. I also know that I'm talking to 25 people who have been working for so many years to change the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10704 4CEMSAT4 Sattar - cross 1 political situation in Egypt, whether through political means 2 or violence. So I knew -- I'm talking to people who knew a lot 3 about the situation in Egypt. 4 Q. Now, after your efforts to get a message from Sheikh Abdel 5 Rahman in February failed because Mr. Jabara refused to allow 6 the Sheikh to issue a statement, you set up -- you spoke with 7 Mohammed Yousry, right, in March of 2000? You spoke with him 8 frequently? 9 A. Yes, I did. 10 Q. And on March 31 you had a conversation with him in which he 11 told you that Abdeen Jabara wanted to go on the next visit with 12 the Sheikh. Do you remember that? 13 A. If you say so, yes. 14 Q. And that really annoyed you, right? 15 A. I really don't know. I mean, I cannot remember if it 16 annoyed me or it didn't. If I say it annoyed me, it did 17 probably. 18 Q. You certainly didn't want Abdeen Jabara going back because 19 you wanted to get a message into and out of the Sheikh, right? 20 A. I certainly didn't want Abdeen Jabara to go back? 21 Q. Right. 22 A. I didn't want -- you know, the way I felt, back then, 23 during that visit, you know, whatever was in my letter, it was 24 not more than what is read to the Sheikh in the newspapers. So 25 if I was angry at Abdeen Jabara, I could not understand why he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10705 4CEMSAT4 Sattar - cross 1 was so scared. He was reading the newspapers to him. So if I 2 was angry at him, probably I was for that reason. 3 Q. You couldn't understand why Abdeen Jabara was scared to 4 pass a message from a terrorist organization to a convicted 5 terrorist leader under Special Administrative Measures in 6 prison? You didn't understand that? 7 A. No, I did not understand because Ramsey Clark did it, too, 8 and I did not understand why not. 9 MR. MORVILLO: Your Honor, may I display for the jury 10 Government Exhibit 1067X in evidence? 11 THE COURT: Yes. 12 Q. Let me put the first page up. 13 This is the conversation we were just discussing, 14 Mr. Sattar, right? This is a March 31 of 2000 telephone call 15 between yourself and Mohammed Yousry? 16 A. Yes. 17 Q. And at line 4 Mr. Yousry told you: I told Abdeen that I 18 will tell the Sheikh that Lynne called. Abdeen agreed, but 19 Abdeen, eh -- kind of expressed his eh -- kind of wants to know 20 if he can come. I told him to come. You said: Oh, no. And 21 Yousry said: He said I am busy or whatever. And then you 22 said: Oh, no. And then he said back to you: I understand. I 23 am just telling you about it. 24 That's what you said, right? 25 A. I said, oh, no. Yes, that's what I said. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10706 4CEMSAT4 Sattar - cross 1 Q. And you said that because you didn't want Abdeen Jabara to 2 go on the next prison visit, right? 3 A. If you tell me, probably everybody knows me now through my 4 telephone calls, you will know that, if was it, I will tell 5 him. Oh no, don't let Abdeen go. So if this is -- I just said 6 oh, no. I would have expressed my opinion and say, you know, I 7 don't want Abdeen to go, tell Abdeen not to go, but I did not 8 say anything. 9 Q. Well, when you said -- at line 16 Mr. Yousry says: I am 10 just telling you because he says, why are you getting together? 11 What will you do? You said something unintelligible and then, 12 come and sit with us because I will slander him. 13 You're referring to Abdeen Jabara, right? 14 A. I'm referring to Abdeen Jabara, yes. I was going -- I am 15 going to slander him to tell him, you know, what's the big 16 deal? There is a letter or a newspaper that you are going to 17 read. Ramsey does the same thing. You know, why did you say 18 you were not going to do that? This is just to try to get some 19 understanding from him. 20 Q. Because he honored his agreements, right? 21 A. It is not because he honored. It is not because he honored 22 his disagreement or his agreement or not. He was reading the 23 newspapers to the Sheikh, too, and other visits to the Sheikh 24 he told him other things, and I really don't -- at the time I 25 did not understand why he was so scared. This is -- to me, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10707 4CEMSAT4 Sattar - cross 1 Abdeen Jabara was scared. That's it. 2 Q. Maybe he was because he knew of it was a violation of the 3 law to pass messages to Sheikh Abdel Rahman? 4 A. Maybe. To me, Ramsey Clark will not know this is a 5 violation also. I mean, he was doing it. I didn't feel myself 6 that I was doing anything wrong. 7 Q. So after you decided -- there came a time when there was 8 another prison visit in May, right? 9 A. Yes. 10 Q. And you booked the travel for that prison visit as well, 11 right? 12 A. Yes. 13 Q. And that meeting was a meeting that was attended by Lynne 14 Stewart and Mohammed Yousry, right? 15 A. The May visit? 16 Q. The May visit. 17 A. Yes. 18 Q. And before that meeting you went to Lynne Stewart's house 19 the night before to meet with her, right? 20 A. Yes. To see her, yes. 21 THE COURT: And you say May. What year? 22 MR. MORVILLO: Of 2000. 23 THE COURT: Ask the question to make sure that the 24 witness is clear. 25 Q. You understand we are talking about May 2000? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10708 4CEMSAT4 Sattar - cross 1 A. I understand it was May 2000, yes. 2 MR. MORVILLO: Your Honor, I am about to move into a 3 totally new subject area. Would you like me to keep going? 4 THE COURT: For a little bit, please. We are going to 5 break at 3:15. 6 Q. And before this visit, of course, you wrote another letter? 7 A. Yes. 8 Q. And that letter has been shown here in evidence, right? 9 A. Yes, the famous letter, yes. 10 Q. And in that letter you told Sheikh Omar Abdel Rahman that 11 you had been in semiconstant contact with a number of people, 12 including Abu Yasir and Abu Hazim, right? 13 A. Yes. 14 Q. And in that letter you also told Sheikh Omar Abdel Rahman 15 that you were sending him a statement that Rifa'i Taha had 16 issued, right, about Al-Azhar University students? 17 A. Yes. 18 Q. And you also sent him an article about the government of 19 Egypt still arresting the youth in Egypt, right? 20 A. I am not sure if this article I send it to him or it was 21 just published in the newspapers that was read to him there. I 22 am not sure that that was me or not. 23 Q. It might have been you? 24 A. It might have been. I mean, I cannot say for sure that I 25 sent that article, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10709 4CEMSAT4 Sattar - cross 1 Q. Had you sent him articles before? 2 A. Yes, I did. 3 Q. And in your letter, in fact, to the Sheikh, you told him 4 that you had spoken with Rifa'i Taha the day before, right? 5 A. I might say that, yes. 6 Q. Do you recall whether when you went to Lynne Stewart's 7 house the night before the prison visit, before they left for 8 the prison visit, you gave her your letter? 9 A. I am not sure, you know. All I can say when I dropped the 10 tickets, I usually give a letter. I might give it to her. 11 Most likely I did. It was the night before, so probably I did. 12 Q. And when you would drop off a letter like that, if you gave 13 it to Lynne Stewart, she doesn't speak Arabic, right? 14 A. She does not. 15 Q. The letter was in Arabic, right? 16 A. Yes. 17 Q. Did you read her letters that you were sending to the 18 Sheikh? 19 A. I did not read the letter for her. I just -- if I give her 20 the letter I will say, this is for the Sheikh. And the 21 details, I never told her the details. 22 Q. You wouldn't discuss any of the details of the contents of 23 your letter with Ms. Stewart, right? 24 A. No. I will just tell her, you know, this is for the Sheikh 25 and that's it. I am not going to -- don't tell her anything SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10710 4CEMSAT4 Sattar - cross 1 else on it. 2 THE COURT: All right. Whenever there is -- 3 MR. MORVILLO: This is fine, your Honor. 4 THE COURT: Ladies and gentlemen, we will break for 5 the day. 6 Please remember my continuing instructions. Please, 7 please don't talk about this case at all among yourselves or 8 with anyone when you go home. Please don't look at listen to 9 listen to anything to do with the case. If you should or hear 10 something inadvertently, please simply look away. Please don't 11 look at or listen to anything to do with the case. 12 Always remember to keep an open mind until you have 13 heard all of the evidence, I've instructed you on the law, 14 you've gone to the jury room to begin your deliberations. 15 Fairness and justice to the parties requires that you do that. 16 With that, have a very good evening. I look forward 17 to seeing you at 9:30 tomorrow morning. 18 All rise, please, and please follow Mr. Fletcher to 19 the jury room. 20 (Jury not present) 21 THE COURT: Mr. Sattar can step down. 22 Would you please be seated, all. 23 MR. TIGAR: May we take a short break before the 24 charge conference, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10711 4CEMSAT4 1 MR. FALLICK: Your Honor, may I be excused for the 2 charge conference -- Mr. Paul will stay -- so I can work on my 3 redirect? 4 THE COURT: Yes. See you shortly. 5 (Recess) 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 10712 4CE5SAT5 Charge Conference 1 MR. TIGAR: Your Honor, I heard the Court's comment on 2 our charge yesterday and it had been my thought that, our 3 thought that most of the suggested changes that we made were 4 ones that were non-controversial, at least in the sense that 5 they did not require argument. 6 As the Court can see, our position and that whatever 7 the Court's position was, we would not quarrel with it. We do 8 understand that if we had a position we had to make it clear in 9 order to protect the record. 10 I would respectfully request that the Court indicate 11 any preliminary views that the Court has about our submission 12 and -- should the Court wish -- the government's submission, 13 and that we go from there. 14 Because, as I say, other than to respond to the 15 Court's questions, the great majority of everything that we 16 have suggested, we did not think, required or called for 17 argument. 18 THE COURT: Well, I -- there are -- my comment was 19 that Mr. Yousry's counsel led me to believe and I said I would 20 rely on the fact, that the number of comments on the charge 21 would be few. And the comments by the government and 22 Ms. Stewart's counsel were not few. 23 I have gone over them with great care and I am 24 perfectly prepared to go over them with you and to give you my 25 preliminary views on each of them without requiring you to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10713 4CE5SAT5 Charge Conference 1 argue them in each case because I have everything that you have 2 given me. 3 If someone wants to be heard on a specific one, they 4 can tell me that and, in some cases, perhaps the other side 5 will simply agree to the suggestion. 6 MR. RUHNKE: I agree that Mr. Tigar's suggestion is a 7 good one. I also hope that the Court doesn't think that I 8 misled you. I did survey my colleagues and I did convey what I 9 was told. 10 But I think Mr. Tigar's suggestion a good one, that we 11 should just hear's your Honor's preliminary views. 12 THE COURT: All right. 13 Ms. Baker, do you want to be heard at all? 14 MS. BAKER: Your Honor, we're happy to proceed in the 15 manner that Mr. Tigar has proposed and that Mr. Stern has 16 agreed to, as to the length of the government's submission -- 17 THE COURT: Mr. Ruhnke. 18 MS. BAKER: Sorry, Mr. Ruhnke -- as to the length of 19 the government's submission. We regret any miscommunication 20 with the Court. 21 As the Court I'm sure recalls, I was not here on the 22 day that this was discussed and I was the member of the 23 government team who had read the Court's draft charge closely 24 and had in mind the number of points to be addressed but hadn't 25 explicitly communicated with my colleagues or defense counsel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10714 4CE5SAT5 Charge Conference 1 about that. 2 THE COURT: Okay. 3 MR. TIGAR: And, your Honor, my defense is over the 4 meaning of the word "few." 5 In my experience in a case that took this long to try, 6 I really do think that we meant few. And I apologize, your 7 Honor, that we have a difference of view about that. 8 THE COURT: Okay. 9 As I said, this is the current draft of the charge and 10 I reserved the right to make changes. I always tell parties 11 when I do make a change. And I have considered all of the -- 12 because, just for your -- among other reasons, just for your 13 information I say I reserve the right to make changes because 14 things may occur in the course of summations that cause me to 15 believe that some charge is necessary. 16 Second. I expect, my usual practice is, I give all of 17 you the charge that I intend to read to the jury so that you 18 can all follow along at the same time to make sure that I am 19 reading it correctly. 20 I don't put it up for the jury to read along but I 21 give it to all the counsel. 22 MR. TIGAR: Yes, your Honor. 23 I did make a remark about Federal Rule of Criminal 24 Procedure 30 yesterday and I -- or the last time we talked 25 about this. I went back and read the transcript and I think I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10715 4CE5SAT5 Charge Conference 1 had misunderstood what your Honor's practice was and seemed to 2 be challenging a procedure that I do not in fact challenge. 3 THE COURT: From the December 6th, 2004 draft, page 4 21, paragraph 2, Mr. Yousry suggests that certain -- that 5 "telephone" be deleted between "certain recordings." "You have 6 heard disputes over the authenticity and accuracy of certain 7 telephone recordings." 8 My recollection is that the disputes over authenticity 9 and accuracy were only the telephone recordings and not the 10 prison visits. 11 MR. RUHNKE: I do remember, for example, there was a 12 quarrel during the prison visits over whether, what it was that 13 Ms. Stewart said in response to the Abu Sayyef situation and it 14 just seemed that there were some disputes over all the 15 recordings. 16 MR. TIGAR: Yes, your Honor, there was the Abu Sayyef 17 dueling -- 18 THE COURT: But that was only with respect to the 19 transcription, not the recording. 20 In fact, Mr. Tigar went out of his way to explain to 21 the witnesses how, what really good experts they were with 22 respect to the recording of the prison visits as opposed to the 23 recordings of the telephone recording, which is why I put in 24 "telephone." 25 MR. RUHNKE: That's fine, your Honor. I'm not going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10716 4CE5SAT5 Charge Conference 1 to press that point. 2 THE COURT: So, "telephone" stays. 3 Second, the government objects to, in the next 4 paragraph, to the description that the English recordings, the 5 transcripts contain the parties' interpretation of what appears 6 on the recordings. 7 The government says "transcription." Unless the 8 defendants agree, I would leave "interpretation." It is right 9 out of Sand's 5-9 and it is, these are the aids to the jury. 10 It reflects what, whoever it was that prepared the transcript, 11 heard. 12 So, unless the defendants agree, I will leave 13 "interpretation." Okay? I will leave "interpretation." 14 Page 23. Mr. Yousry asks for an additional line that 15 says: Bear in mind, that in some instances the qualifications 16 and testimony of the Arabic translators were stipulated to. 17 I think that's a good suggestion. Particularly when 18 the jury has to, is being told that this contains the testimony 19 of the Arabic translators. So, I will include that sentence. 20 On paragraph 25, investigative techniques. 21 Ms. Stewart objects to the last two sentences: Law enforcement 22 techniques are not your concern. Your concern, etc.... 23 Those sentences are right out of Sand 4-4 and I would 24 be inclined to give them. They're a fair statement of the law. 25 But the government says it's not asking for the instruction, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10717 4CE5SAT5 Charge Conference 1 shouldn't give the instruction unless the arguments of counsel 2 really refer to the absence of certain investigative 3 techniques. And so, the government asks that I simply not give 4 the instruction unless, after the closing arguments the 5 government says or asks that such an instruction is 6 appropriate. 7 I'm prepared to drop the instruction completely unless 8 the parties ask me, after closing arguments, to give the 9 instruction. If I give the instruction this is the instruction 10 I would give. 11 Is that satisfactory? Yes. Okay. So, that's held. 12 On page 35 Ms. Stewart has two suggestions which, I 13 think, are reasonable. 14 In the last paragraph Ms. Stewart suggests that I say 15 rather than: You must therefore, regardless of your personal 16 opinions give this evidence full consideration... 17 Ms. Stewart's suggestion is: You should, therefore, 18 regardless of your personal opinions, consider this evidence, 19 along with all the other evidence in the case. 20 I think that those are reasonable suggestions. And 21 also, the addition of an additional sentence: The weight, if 22 any, is for you to decide. 23 That's consistent with other instructions I give and 24 so, I would make those changes. 25 MS. BAKER: Your Honor, I have a request in that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10718 4CE5SAT5 Charge Conference 1 regard. 2 THE COURT: Sure. 3 MS. BAKER: That type of phrasing is not limited to 4 that instruction. And the same type of language appears in the 5 instruction about character witnesses. 6 The government, in looking at all of the instructions 7 together elected not to raise this issue because the language 8 seemed to be somewhat consistent from one instruction to the 9 next but, if the Court is going to change it here then the 10 government is going to ask that similar language be changed in 11 the instruction on character evidence. 12 I mean, essentially I agree, absolutely, with the 13 legal proposition that weight is for the jury. And I guess I 14 would not object to a sentence being added to this instruction, 15 the search instruction that the weight is for the jury to 16 determine. 17 But, the -- it's my understanding that the jury is 18 supposed to, thus the word should -- supposed to consider all 19 evidence. In considering it the jury could decide to give it 20 little or no weight but they're supposed to consider it. 21 They're not supposed to disregard it out of the box. 22 And so, I would suggest that it should remain as it 23 is -- 24 THE COURT: No, that's what -- 25 MS. BAKER: I'm sorry, the "must" rather, remain as it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10719 4CE5SAT5 Charge Conference 1 is. In other words the "must" they can't start out by not 2 giving it any consideration at all. They must consider it 3 regardless of their personal views. 4 On considering it, they could decide to give it little 5 or no weight but they must at least consider it because it was 6 lawfully obtained evidence that was presented to them, along 7 with all of the other evidence in the case. 8 And that same language appears in the character 9 evidence instruction which is on page 38 where it says that the 10 evidence -- oh, I'm sorry, here it does use "should." 11 I don't object to "should" being used consistently in 12 both places but if the weight qualifier is going to be added, 13 it should be added equally in both places. Therefore, at the 14 end of the first paragraph of the character evidence 15 instruction on page 38, perhaps the second line from the bottom 16 of the paragraph where it says: All the other evidence in the 17 case. 18 Maybe it makes most sense to add right after that: 19 Giving it such weight, if any, you feel it deserves. 20 THE COURT: I have no problem, for consistency, in 21 saying at the end of the first paragraph on page 38: The 22 weight of the evidence if any, is for you to decide. 23 And I will add that sentence also at the end of the 24 search evidence. 25 On page 37 the defendant -- the government correctly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10720 4CE5SAT5 Charge Conference 1 points out that I should eliminate the instruction on the 2 defendant's right not to testify and I will eliminate that. 3 On page 45, the -- Ms. Stewart asks in the third 4 paragraph for the addition of "alleged" between each 5 defendants' involvement in that count. I think that's a good 6 suggestion. I will add it. 7 Ms. Stewart asks that I change "control" in the last 8 sentence to "influenced." That paragraph is in haec verba out 9 of Sand 3-8 and unless -- and is supported by the case law. 10 Unless the government agrees that we should change "control" to 11 "influence." 12 MS. BAKER: Your Honor, we prefer to adhere to Judge 13 Sand's language. 14 THE COURT: All right. 15 Page 48 to 49, Ms. Stewart asks to delete the 16 explanation about this is because collective criminal activity. 17 Those sentences are right out of Judge Sand 19-2 based on 18 Supreme Court precedent and I usually give them. I would be 19 inclined to give them unless the government agrees that I 20 should delete them. 21 MS. BAKER: The government does not agree to delete 22 them. 23 THE COURT: Yes? 24 MR. TIGAR: Well, we've made our objection. Our 25 record is preserved. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10721 4CE5SAT5 Charge Conference 1 The fact that the Supreme Court has at times said 2 words like this, in our view, does not make them appropriate 3 for inclusion in jury instructions. As a matter of fact, in 4 terms of the history of conspiracy law, both at common law and 5 even before the common law took it over in the 14th Century, it 6 is just wrong. 7 THE COURT: Is there any case that -- I mean, it has 8 been in Judge Sand's instruction for a long time. Do you know 9 of any case that says giving that instruction is wrong? 10 MR. TIGAR: I know of no case that says that giving 11 that instruction is wrong, your Honor. 12 I do believe and understand that, as a matter of 13 historical fact, that's just wrong. And I won't tax the 14 Court's patience with it but, I mean, I have written about it 15 and other people have but it's just not -- it's not the law. 16 THE COURT: Okay. Page 53. Ms. Stewart asks for 17 additional language relating to the SAMs and the whole 18 statement protecting an inmate's right, etc. 19 That is not out of a regulation and, so, I am not 20 inclined to give it as part of the instruction on the law on 21 page 53. Unless the government agrees to include language such 22 as that. 23 MS. BAKER: Your Honor, we do not agree. We view 24 Ms. Stewart's request here as linked to the issue of 25 Ms. Stewart's belief, or anyone else's belief, about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10722 4CE5SAT5 Charge Conference 1 unconstitutionality of the regulation and the SAMs and that is 2 an issue, as the Court is obviously aware, that is raised 3 elsewhere in the jury instructions and the parties have taken 4 opposing positions. 5 THE COURT: Well, we will get to that. 6 MR. TIGAR: Your Honor, this request has nothing 7 whatever to do with the impending dispute. What it has to do 8 with is the fact that after the SAM regulations were proposed 9 and the comment period elicited comments; the Bureau and the 10 Department then issued that very long commentary making clear 11 that the SAMs were not intended, not designed to interfere with 12 inmate rights. And, indeed, we've encapsulated that multi-page 13 discussion here which is on a document that's in evidence. 14 So, that is the department's position, your Honor and 15 that is that there is a balance. 16 Moreover, the SAMs, the first one ever read to Sheikh 17 Abdel Rahman and two more the government proposes, speak of 18 least restrictive measures. 19 So, the balance is the law. That's the basis for our 20 request, your Honor. 21 THE COURT: Ms. Baker? 22 MS. BAKER: Your Honor, I was just going to say, the 23 commentary to the regulation says that the extent to which the 24 SAMs restrict the inmate's rights is not unconstitutional. It 25 lays out the analysis from a constitutional perspective, which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10723 4CE5SAT5 Charge Conference 1 is why I say that this implicates the constitutionality issue 2 raised elsewhere. 3 And the jury is simply not in a position to make that 4 kind of balancing, nor is it within the legal requirement of 5 proving the offense to which this instruction relates for them 6 to do so. 7 THE COURT: This is a fair -- I will leave it the way 8 in which it is. This is a fair description of the SAMs and, in 9 fact, of the, is a -- is very much like the way in which I have 10 previously described it in at least one prior opinion. 11 I will return to the issues of constitutionality 12 shortly. 13 Number 26, page 55. The government objects to 14 limiting "overt act" to one which is substantially the same as 15 one charged in the indictment. The government would like 16 language that it doesn't have to be an overt act at all that's 17 charged in the indictment. 18 And as the parties know, the language comes out of 19 Judge Weinstein's charge in Frank that the Second Circuit said 20 was a good charge and one which was consistent with Second 21 Circuit law. 22 It's correct that there are Second Circuit cases that 23 say that the overt act does not have to be one charged in the 24 indictment but there are -- there are few of those cases that 25 are specifically commenting on the charge that's given to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10724 4CE5SAT5 Charge Conference 1 jury and the notice to be given in a charge. 2 Several of the cases refer to the overt act has to be 3 part of a core of criminality that is charged. And the 4 substantial similarity of the overt act is language that the 5 Second Circuit approved in Frank. 6 The government cites the Bin Laden case. Bin Laden, 7 that decision was on a bill of particulars and I don't know at 8 the moment how Judge Sand eventually charged overt act in that 9 case, in the charge to the jury. 10 The cite to Bin Laden in the government's paper is 11 plainly not to comment on the charge to the jury and what 12 should be required in a charge to the jury. Plainly, approval 13 by the Second Circuit of this language. 14 So, unless the government wants to be heard further or 15 the defendants want to embrace the government's position, I 16 would be inclined to leave the charge as it is. 17 Page 57. Ms. Stewart objects to the last two 18 paragraphs. The last two paragraphs are right out of Sand 19-4 19 except that I have added additional language favorable to the 20 defense which I thought was justified by saying: If you find 21 that the evidence justifies such an inference... 22 And so, I would be inclined to leave that as it is, 23 unless the government agrees with the defendants. 24 MS. BAKER: The government does not agree. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10725 4CE5SAT5 Charge Conference 1 Number 28, page 58. The government seeks an 2 additional sentence which says -- one right before the last in 3 the -- what would be the penultimate sentence in the first 4 paragraph which says: A defendant need not have known that the 5 defendant was breaking any particular law but the defendant 6 must have been aware of the generally unlawful nature of the 7 defendants' acts. 8 I agree to that addition. That sentence is consistent 9 with the Second Circuit's decision in George. It is consistent 10 with the Supreme Court's decision in Brian. 11 Indeed, as the government points out, the instruction 12 may establish a higher or stricter mens rea than the Second 13 Circuit required in George but, in any event, sets a higher 14 standard for the government to prove. But, in any event the 15 sentence is a correct addition. 16 On number 29, pages 63 to 64, conscious avoidance. 17 Both Ms. Stewart and Mr. Yousry object to the instruction on 18 conscious avoidance. 19 The defendants don't argue that the instruction is not 20 a correct statement on the law and in fact it is a correct 21 statement of Second Circuit law, and conscious avoidance 22 instructions are proper in conspiracies to defraud and there 23 are several Second Circuit cases directly on point. 24 There is evidence from which the jury could find that 25 there was conscious avoidance. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10726 4CE5SAT5 Charge Conference 1 Mr. Yousry asks for an alternative -- well, asks for 2 the addition of the instruction here which he previously 3 proffered with respect to reliance on the attorneys and I am 4 not inclined to give that addition because it is -- it's not an 5 instruction to the jury with respect to the legal principles 6 for them to apply. I instruct them on good faith. I instruct 7 them on conscious avoidance. 8 Mr. Yousry agrees that his instruction is not reliance 9 on counsel, which contains several nuances and modifications 10 and this instruction is not an effort at a reliance on advice 11 of counsel defense, rather it's an effort to argue the evidence 12 to the jury which the defendant is certainly entitled to do. 13 But, I instruct them on the legal principles to be 14 applied by instructing them on both, extensively, on good faith 15 and conscious avoidance. 16 On page 65 Ms. Stewart asks in the last line for me to 17 replace "show" with "prove beyond a reasonable doubt." Judge 18 Sand says "show" but I think "prove" is better and I will say 19 "prove." 20 I don't have to repeat beyond a reasonable doubt 21 because I have already explained that the element must be 22 proved beyond a reasonable doubt and in the previous paragraph 23 I have said it's not required that all of the overt acts 24 alleged in the indictment be proven and so it's not necessary 25 to include again, in this paragraph, the beyond a reasonable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10727 4CE5SAT5 Charge Conference 1 doubt. I tell the jury about reasonable doubt and the 2 necessity to find any element of the offense beyond a 3 reasonable doubt many times, including the introduction to this 4 element. 5 So, I will say "prove" rather than "show." 6 Page 67. Ms. Stewart objects to the discussion of 7 innocent act. That is right out of Judge Sand's treatise at 8 19-8 and is well-founded in the law. 9 I am inclined to include it. It is a, unless the 10 government believes that I should delete it? 11 MS. BAKER: We do not agree. 12 THE COURT: Now we come to page 69, constitutionality 13 and validity of Sand's. 14 I am inclined to leave the instruction exactly as I 15 have drafted it because I consider the arguments of all of the 16 parties with respect to this issue on numerous occasions -- and 17 of course I will listen again to the parties -- but it appears 18 to me that all of the parties rely upon Cheek in various ways, 19 as I have said before, and there are two parts to Cheek. 20 The first part of Cheek explains that good faith is a 21 subjective rather than an objective test. And the second part 22 of Cheek explains that a belief in the unconstitutionality or 23 invalidity of a law is not a defense because, among other 24 reasons, it shows that the defendant was aware of the law but 25 chose not to follow the law. And a belief that the law is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10728 4CE5SAT5 Charge Conference 1 unconstitutional or invalid is not a defense. And I say that. 2 So then, the question is what to do with the 3 government's objections to, essentially, the second paragraph 4 of the instructions. And I believe that the second paragraph 5 of the instruction fairly sets out a way that a defendant could 6 argue good faith -- the subjective good faith, not an awareness 7 of the law and a decision not to follow the law because the law 8 was unconstitutional or invalid but, rather, an argument that 9 the defendant followed the law as best the defendant understood 10 the law at the time. 11 And so, the defendants point to various items that 12 they relied upon, they say, in order to interpret what the SAMs 13 allowed or did not allow. And that is what I understood from 14 the testimony, was an effort to explain why there was 15 subjective good faith in interpreting what the SAMs required or 16 did not require. 17 I should also point out in that context that it's 18 certainly up to the parties to argue whether that was 19 subjective good faith in what the defendants say they 20 understood the regulations meant at the time. 21 All of that is subject to argument from the evidence 22 and all of it is in the context of the specific charges that 23 are raised in the case, the elements of the charge and the 24 charge as a whole. 25 You can't, for example, take the paragraph on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10729 4CE5SAT5 Charge Conference 1 constitutionality and validity of the SAMs in isolation from 2 the thorough instruction on good faith and how the jury should 3 understand good faith. And have you to take all of that also 4 in the context of what are the elements of the offense 5 including the mental elements for the conspiracy to defraud. 6 So, this is a short explanation for why, I believe, 7 that the charge that I drafted is a, based upon what the 8 parties gave me, is a reasonable charge consistent with the 9 law. And at this point it's only the government that objected 10 to the charge. 11 So, I'm perfectly happy to listen to the parties but I 12 have tried to explain to you the rationale for drafting the 13 charge the way in which I did. 14 MS. BAKER: Your Honor, this is a difficult issue and 15 one which is very important, obviously, in the context of this 16 case and it does really turn on what the Supreme Court was 17 saying in Cheek. 18 It is the government's view and, indeed, we believe 19 that Mr. Tigar, on an earlier occasion concurred in this view, 20 that the Supreme Court, in Cheek, said that what a particular 21 defendant thought, believed, had a good faith belief about the 22 constitutionality or unconstitutionality of the legal 23 requirement was "irrelevant" and, therefore, that that 24 defendant's belief on that issue "need not be heard by the 25 jury," and therefore the Court found -- the Supreme Court found SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10730 4CE5SAT5 Charge Conference 1 that the instruction given in that case was erroneous because 2 it allowed this irrelevant and really -- I'm sorry. The Court 3 found that the instruction in that case was not error because 4 in that case the Court refused or instructed the jury that they 5 couldn't consider the, what the defendant subjectively believed 6 about constitutionality. 7 So, it's squarely the issue that is raised in this 8 case and, in the government's view, the Supreme Court's opinion 9 in Cheek would require that the sentence -- the one sentence to 10 which the government objects, be removed. 11 And I agree that the Cheek opinion is somewhat 12 difficult to parse and understand but I would -- 13 THE COURT: I don't find it -- I really don't find it 14 that difficult and I think that I think -- and again you can 15 correct me if I am wrong -- but that you are, first of all, 16 relying on the second part of Cheek and not the first part. 17 MS. BAKER: Exactly. And I do that -- sorry. 18 THE COURT: Let me just finish and then I will hear 19 you out. 20 The first paragraph of this instruction says, in part, 21 "The constitutionality or validity of those provisions is not a 22 matter for you to decide. This is a matter of law for the 23 Courts. I have already determined, as a legal matter, that any 24 question about the constitutionality or validity of the 25 regulation that authorized the SAMs, the SAMs themselves and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10731 4CE5SAT5 Charge Conference 1 the requirement of attorney affirmations is not a defense to 2 the charges in this case and, therefore, you may not consider 3 any such defense." 4 And, there was, frankly, no question in my mind what 5 Ms. Stewart's counsel was arguing to me and what the paragraph 6 that you just read meant. 7 I read that exactly and heard that exactly that there 8 would be no argument that the SAMs are unconstitutional. There 9 would be no argument that the SAMs are not valid. And, in 10 fact, the defendant testified to that. We are not raising that 11 issue. 12 So then the question is, can a defendant say, oh, gee. 13 I thought when the regulation says no telephone contact, or no 14 personal visit, or cannot convey that material to a 15 third-party, that couldn't possibly have been referring to 16 something that I was doing because I read the commentary and I 17 thought to myself, subjectively, that I could do that. 18 And I would have thought that that's not Cheek part 19 II, it is Cheek part I. And as to that I would have thought 20 that the arguments are, is that a credible, good faith belief 21 in what was required? Or, does the evidence suggest that it's 22 not a credible, good faith belief as to whether the defendant 23 was engaged in the alleged conspiracy? But those raise jury 24 questions. 25 What you're suggesting is that the interpretation, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10732 4CE5SAT5 Charge Conference 1 defendant's testimony as to here's why I thought what I was 2 doing was not prohibited is, itself, not able to be given. 3 MS. BAKER: Your Honor, let me pick up with that last 4 statement that the Court just made. 5 Respectfully, that was an overbroad characterization. 6 The government's understanding of Cheek is that Cheek stands 7 for the proposition that, overall, a defendant's subjective 8 belief matters. 9 However, the second part of Cheek, as the government 10 understands it, creates an exception to the first part which is 11 the general proposition that subjective belief matters. 12 And the exception created in the second part is that 13 subjective belief, as to constitutionality, does not matter 14 because what matters in the first part is subjective belief as 15 to whether you fall within -- 16 THE COURT: Whoa, whoa. 17 The defendant has not argued that I had a subjective 18 belief that the law, the regulations, the affirmation was 19 unconstitutional. 20 MS. BAKER: But that is what the defendant seeks to 21 argue in summation and that's what this sentence in your 22 Honor's instruction would allow. 23 And if your Honor would just give me one more minute 24 to finish? 25 THE COURT: No, as long as you want. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10733 4CE5SAT5 Charge Conference 1 MS. BAKER: The interpretation of Cheek that I am 2 positing which is that the second part of it carves out from 3 subjective belief constitutionality as being okay to raise with 4 the jury, that is, the interpretation given to Cheek by Judge 5 Sand in his treatise on jury instructions. 6 Judge Sand, in his form instruction 8-1, which is his 7 good faith defense instruction, has a paragraph which cites to 8 Cheek as its authority. And Judge Sand says this paragraph is 9 applicable in tax fraud prosecutions but there is not a reason 10 why the legal proposition there isn't more broadly applicable; 11 but what that portion of his instruction says is, "It should 12 also be pointed out that neither the defendant's disagreement 13 with the law nor his own belief that the law is 14 unconstitutional, no matter how earnestly that belief is held, 15 constitutes a defense of good faith, misunderstanding, or 16 mistake." 17 It's my belief that is the reading of Cheek that we 18 are arguing to your Honor and that's what Judge Sand says about 19 it and how subjectivity, which is relevant in other ways, fits 20 together with good faith but that doesn't mean that subjective 21 belief about unconstitutionality is relevant. 22 And just to go back to what Mr. Tigar said in the 23 argument, I would respectfully disagree with your Honor. 24 Mr. Tigar's exact wording in part of that paragraph where we 25 discussed this previously -- he said Captain Cheek -- and now SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10734 4CE5SAT5 Charge Conference 1 I'm skipping some words -- can't say, "I thought the law was 2 unconstitutional. I thought that the law was unconstitutional, 3 therefore I lacked the intent. Nope, doesn't work." 4 So, that was what Mr. Tigar previously conceded and 5 it's my view, the government's view that that's consistent with 6 Judge Sand. And Judge Sand is interpreting Cheek to say it's 7 one thing for a defendant to argue I never thought that the law 8 applied to my conduct in the first place because I thought that 9 what I was doing wasn't a message, or it wasn't mail, or I 10 wasn't disseminating or it wasn't the media, or whatever. 11 I mean, I didn't somehow know that the SAMs applied to 12 me. That would be permissible under Cheek as good faith as 13 subjective belief about whether or not the conduct fell within 14 the law. 15 But, once the defendant says essentially, implicitly, 16 I understood the SAMs, I knew they applied to me but I thought 17 they were unconstitutional; that's what Cheek carves out and 18 says is irrelevant and should not be presented to the jury, as 19 Judge Sand agrees. 20 THE COURT: We may not be understanding each other. 21 Your characterization of the defendant's argument is 22 not the characterization as I understand it and I would be 23 amazed to hear such an argument in summations. The argument by 24 the defendant was not that I thought the regulation or the SAMs 25 was unconstitutional. The argument by the defendant was, as I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10735 4CE5SAT5 Charge Conference 1 understood it, I read the SAMs in the very narrowest way in 2 order to avoid any question that the SAMs or the regulation was 3 unconstitutional. 4 I didn't -- I'm not arguing to you that the SAMs or 5 the regulations, as they apply to me, are unconstitutional. 6 And in fact it would be hard to make such an argument knowing 7 that the Court is about to instruct that the constitutionality 8 or validity of these provisions is not a matter for you, the 9 jury, to decide. 10 I have already determined that any question about the 11 constitutionality or validity of the regulation that authorized 12 the SAMs, the SAMs themselves and the crime of attorney 13 affirmations is a not a defense to the charges in this case. 14 I would have thought that the difference between the 15 parties comes to whether it is subjective good faith to have 16 interpreted the SAMs and the parties in the way in which they 17 may or may not have been interpreted, and that leads to jury 18 questions. 19 But, I don't understand the defense to be the way in 20 which, Ms. Baker, you characterize the defense. 21 And of course I could be -- I could be wrong and, of 22 course, and I'm prepared to listen to the defendant also in 23 case I have not accurately described what I heard as testimony 24 and I am prepared to listen to argument further. 25 MS. BAKER: I believe I understand the distinction SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10736 4CE5SAT5 Charge Conference 1 that your Honor is trying to draw between a direct assertion 2 that a defendant believed that the SAMs or the regulations were 3 unconstitutional versus an argument that the defendant believed 4 that the SAMs had to be interpreted a particular way in order 5 not to be unconstitutional. I think I have understood your 6 Honor correctly. 7 THE COURT: I try to be as -- 8 MS. BAKER: No, I was commenting more on my own 9 initial inability to understand your Honor. I didn't mean that 10 as a reflection on what your Honor had said. 11 I think that the sentence that your Honor proposes to 12 instruct the jury is not going to -- the jury is not going to 13 be able to appreciate that distinction and, therefore, the 14 jury, on hearing the instruction, we think, will be confused 15 because the instruction on the one hand says: 16 Constitutionality or validity is not a matter for you. 17 And then it says: In a way that the jury could 18 interpret as contradictory. 19 That the defendant's perception of any constitutional 20 issues can be considered by them. 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10737 4CEMSAT6 1 THE COURT: The sentence is a careful sentence. It 2 says that assessing that defendant's interpretation of what the 3 SAMs required, to determine whether that defendant acted in 4 good faith. It also says, I have already explained good faith 5 and you are to apply that instruction here and I give two pages 6 on good faith in order for the jury to understand good faith. 7 I don't think that this is really a difficult concept, 8 despite the amount of time that all of us have spent going over 9 all of the cases in this area. And the reason that I say that 10 is the charge is conspiracy to defraud the United States. It 11 was the submission of -- it included, among other things, the 12 submission of affirmations. The jury is asked to determine 13 whether the defendants possess the intent required for a 14 violation of the law. In doing that the jury takes into 15 account everything that I've instructed on from mental elements 16 or the elements of the offense, to good faith, to conscious 17 avoidance. And the jury makes a determination, based upon all 18 of those instructions. And this is a case in which 19 Ms. Stewart, for example, has said that she is not challenging 20 the constitutionality of the SAMs. 21 MS. BAKER: Your Honor, I'm aware that Mr. Tigar has 22 made that representation. However, the occasions of testimony 23 and use of exhibits that the government marshalled in support 24 of its request for an instruction along these lines is somewhat 25 inconsistent with Mr. Tigar's representation. I would ask at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10738 4CEMSAT6 1 this point, your Honor -- 2 THE COURT: Perhaps we should hear from the defendant. 3 I may have not accurately described the defense position. 4 MS. BAKER: Your Honor, I am willing to assume that 5 Mr. Tigar is going to say that he is going to abide by the 6 representation that he previously made. And what I would 7 ask -- I unfortunately don't have copy of Cheek here in front 8 of me. It is not clear to me that the distinction that I now 9 understand your Honor to have articulated is supported by the 10 Court's decision in Cheek. It seems to me that Cheek may well 11 view those two different formulations as functionally 12 equivalent. And I would ask for the opportunity to look again 13 at Cheek and to propose a different formulation of the sentence 14 to which the government objected, the one that begins "however" 15 on page 69, in light of another review of the Cheek opinion. 16 THE COURT: I have a copy that's not marked up. 17 MR. PAUL: Your Honor, before Mr. Tigar responds, and 18 I think he does wish to do so, my client is asking permission 19 to be excused. He is very tired from today's proceedings and 20 he would like to waive his presence for the remainder of this 21 conference. 22 THE COURT: Is that right, Mr. Sattar? 23 DEFENDANT SATTAR: Yes, your Honor. 24 THE COURT: Any objection by the government? 25 MS. BAKER: No, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10739 4CEMSAT6 1 THE COURT: We are just dealing with matters of law, 2 and the defendant is not required to be present and has 3 knowingly voluntarily waived his presence in any event. So he 4 is excused. 5 DEFENDANT SATTAR: Thank you. 6 MR. TIGAR: Your Honor, I have listened carefully to 7 your Honor's description of the jury defense that we have 8 proffered or the jury position we have proffered, because it is 9 not so much a defense. If it is an effort to raise a 10 reasonable doubt on an issue to which the government has the 11 risk of nonpersuasion, it is accurate. We accept it without 12 qualification. We also believe that we have unwaveringly, 13 including among other things, by Ms. Stewart's testimony in the 14 presence of this jury, adhered to it. 15 It is true -- and this may be the source of some 16 confusion -- that in two sets of motions we said that Dennis 17 and Bryson shouldn't apply to us and as a matter of law we 18 should get a different ruling. We are entitled to take that 19 position. We made certain arguments that the Court rejected, 20 not at all inconsistent with the position we now assert. 21 We also do object, just so it is clear, to the George 22 addition to the charge. I know the Court has ruled, but I have 23 to say that for the record. 24 That said, we also believe that your Honor's analysis 25 of the Cheek decision -- and I do not regard the quotations SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10740 4CEMSAT6 1 made there from my argument as inconsistent with what I have 2 said and am saying -- is correct. The Cheek decision was very 3 carefully crafted and it is in light of a history. And your 4 Honor may recall that when you first mentioned it I asked if it 5 was Justice White that wrote it. And I think that's right that 6 it is. And when I first saw the opinion, if it is right that 7 it is Justice White, I was struck by that because he was a 8 latecomer to the Court's developing intent jurisprudence on 9 this issue, having authored for the Court an inconsistent 10 opinion in a case called International Minerals, which was then 11 followed by Liporeta, which I think was Justice Brennan in 12 which Justice White descended. 13 In the trajectory of the Court's writing, I regarded 14 the opinion not only for what it says, but for the development 15 it represented. And I, at the risk of not saying it right, I 16 watched the Live Notes and listened to the Court's analysis. 17 We agree that the Court's statement of the law on that issue is 18 correct. Nothing in that detracts from the fact that we made 19 legal motions before that had to do with Dennis and Bryson, but 20 nothing to do with this jury defense. 21 As far as summation is concerned, I would be very 22 surprised to hear myself say what the government thinks that -- 23 fears that I might say in summation. Our defense is our 24 defense. We understand it is that Ms. Stewart did act in good 25 faith based on all the information that was available to her. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10741 4CEMSAT6 1 That's our position. And we respectfully submit that this 2 instruction accurately captures the legal rules. 3 THE COURT: Human rights conditions, No. 34, page 70. 4 Ms. Stewart disagrees with the instruction. The government 5 disagrees with the last two sentences. 6 MS. BAKER: I'm sorry, your Honor. Before you move 7 on, the government had an additional objection on page 69, 8 which was to the sentence regarding Ramsey Clark. And the 9 government would ask, however the Court ultimately rules 10 regarding the sentence beginning with "however" that that 11 sentence referring to Ramsey Clark be deleted if a defendant 12 wishes to argue within the parameters of what your Honor 13 determines to be acceptable as reflected by the way the 14 previous sentence ends up, whether it remains the way it is or 15 some other way. If a defendant wishes to argue by reference to 16 Ramsey Clark, so be it. But as the government stated in its 17 letter, the government believes that it inappropriately 18 highlights Mr. Clark's view to the jury to the prejudice of the 19 government and is analogous to the defendant's objection to 20 Judge Mukasey's view of the evidence at Abdel Rahman's trial. 21 THE COURT: Mr. Tigar. 22 MR. TIGAR: Your Honor, if there is a concern that 23 this instruction is misleading, that would be addressed by 24 saying the entirety of this instruction also applies in 25 assessing because the Ramsey Clark evidence, your Honor, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10742 4CEMSAT6 1 twofold. 2 First, the Court will recall that he put these 3 handwritten notations on affirmations that the government 4 introduced in evidence. I'm talking about constitutional 5 issues. And the other evidence about Ramsey Clark is 6 throughout the transcript parties would say, well, Mr. Clark 7 did this, Mr. Clark did that, beginning with Mr. Fitzgerald's 8 testimony which talked about what Mr. Clark did. 9 And, obviously, in line with the Court's view one 10 wouldn't want the jurors to say, well, if Ramsey Clark thinks 11 it is unconstitutional, maybe it is. Because that would be a 12 violation of the first paragraph. And/or if Ramsey Clark had 13 good faith, then everybody else did. That wouldn't be the 14 point. So it is in the case. That might clarify it. As far 15 as the defense is concerned, if the Court believes that upon 16 mature reflection that the sentence is better left out, we 17 don't have any terrible objection to striking all of it. 18 Everybody is going to talk about Ramsey Clark. 19 THE COURT: If there is no objection to striking the 20 sentence about Ramsey Clark -- 21 MR. TIGAR: We don't object, your Honor. 22 THE COURT: -- I'll strike the sentence about Ramsey 23 Clark. 24 Page 70. Ms. Stewart objects to the first two 25 sentences and the government objects to the last two. As I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10743 4CEMSAT6 1 hear more and more of all of the evidence, it is clear to me 2 that there is a suggestion in some of the testimony that either 3 human rights conditions in Egypt or Sheikh Rahman's conditions 4 of confinement are a defense. I previously said that they are 5 not, and it is fair to tell the jurors that. So I would leave 6 the first two sentences. Because I have -- the defendants have 7 objected that the defendants had no obligation to present any 8 defense, and so I thought it was a fair addition to remind the 9 jurors of that. I believe that the instruction is a correct 10 and a balanced instruction. 11 MR. TIGAR: Your Honor, we agree with the statement 12 that the conduct and conditions are not a defense to any of the 13 charges in this case. They are not a defense to the charges in 14 this case for the same reason that the Supreme Court said that 15 prison conditions of an inmate are not a defense to an escape 16 charge in Chief Justice Rehnquist's opinion in Bailey. At the 17 same time, in dictum in Bailey, Chief Justice Rehnquist pointed 18 out that there are paradigmatic specific intent crimes, such as 19 assisting in aiding and abetting, and escape didn't happen to 20 be -- that the so-called necessity or whatever was being 21 offered didn't work. 22 Our suggestion is really this, that the -- as we say, 23 the evidence was admitted for their effect on knowledge, 24 intent, and state of mind. That is to say, particularly with 25 respect to conditions, Ms. Stewart is a lawyer. She was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10744 4CEMSAT6 1 advising her client about conditions. She was conveying 2 information about conditions. In other words, conditions 3 evidence, situation in Egypt evidence is admissible, has been 4 admitted when offered by the government and offered by the 5 defense. It was generally admitted when offered either by the 6 government or the defense, including newspaper articles that 7 defendants presented as relevant to defendant's knowledge, 8 intent, and state of mind. 9 The instruction, we would suggest, would benefit from 10 saying that evidence as to these matters was admitted and may 11 be considered by the jury for the purposes for which the Court 12 admitted it, that is to say, knowledge, intent, and state of 13 mind. That was our suggestion. It was not to contradict the 14 Court's view. 15 THE COURT: I'll listen to the government, but I'm not 16 inclined to attempt to include that language for a variety of 17 reasons. One is, you have to look at the evidence in each case 18 in the course of the trial to understand why it was admitted at 19 various points. Some of it is admitted as background and 20 context. And I can recall some specific evidence, for example, 21 in Mr. Sattar's case which was argued to me placing the context 22 of the Middle East and the context that's referred to in the 23 indictment. 24 Second, to have a broad statement such as, you can 25 consider all of that evidence for the defendant's state of mind SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10745 4CEMSAT6 1 suggests that if the defendants believe that there was 2 something wrong with human rights in Egypt, then that is a 3 defense. So I am not inclined to do anything more with the 4 instruction than I have done at this point. It is clear and 5 the defendants don't disagree that the human rights conditions 6 and the conditions of confinement are not a defense. I've 7 already told the jurors at another point in the charge if any 8 evidence is admitted subject to a limiting instruction. Of 9 course, they have to follow that limiting instruction. 10 But the jurors should not be left with the 11 misimpression, if they get it, that simply because there are 12 human rights, alleged human rights abuses in Egypt, that that 13 is a defense to any of the charges in the case. And I raised 14 that at the outset, before opening arguments, and Mr. -- when 15 some of this evidence was talked about in terms of whether it 16 could be referred to in opening statements, I said in words or 17 substance that Mr. Sattar's counsel argued, we have to be able 18 to place this in context. And my response was, well, you're 19 certainly not going to argue that because of these things that 20 happened in Egypt, then any of the charges in the indictment 21 are okay. And Mr. Sattar's counsel said, okay, we are not 22 going to argue that, but we have to be able to explain to the 23 jury what's going on. 24 So, this is a fair instruction. Does the government 25 want to be heard again on that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10746 4CEMSAT6 1 MS. BAKER: No, your Honor. We agree with what the 2 Court has just ruled. 3 THE COURT: Code of professional responsibility. 4 Ms. Stewart objects to the description of the canon 5 and the ethical considerations and asks that I expound a bit 6 more on the canons and the ethical considerations. But the 7 description of the canons and the ethical considerations came 8 actually pretty much verbatim from Ms. Stewart's request in 9 response to the government's supplemental request No. 4 and are 10 just about identical to the Second Circuit's description of the 11 canons and ethical considerations in Kittay. So I am inclined 12 to leave them. 13 MR. TIGAR: Your Honor, without waiving anything else, 14 the thing of most concern to us is, aspirational and character 15 represent the objective towards which the members of the 16 professionalism should strive. What's missing there is the 17 very next sentence, which is what we have asked the Court to 18 charge. They constitute a body of principles upon which the 19 lawyer can rely for guidance in many specific situations. That 20 sentence, we believe, which does follow immediately the 21 sentence your Honor quotes from the preamble is essential so as 22 to not unduly deride or deprecate the force of the ECs because 23 aspirational -- the concept of aspirational doesn't really 24 capture what the ECs are about. And that sentence is regarded, 25 we submit, very, very important. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10747 4CEMSAT6 1 Certainly when we look at the ECs that have been 2 talked about in the evidence here, that sentence has particular 3 applicability. I mean, these are ECs that go to the heart of 4 what we submit, anyway, and I think everybody that tries cases 5 and advises clients and so on is about, those particular ones 6 really do evoke that sentence. 7 THE COURT: The government. 8 MS. BAKER: Your Honor, we object to that sentence as 9 unnecessary. The ECs that were testified about in this case. 10 It is not that one of those ECs presents the specific situation 11 that Ms. Stewart confronted and, therefore, she can say, you 12 know, I had exact guidance on what I did. What she had was 13 sort of general principles extrapolated from the ECs. And when 14 the instruction that your Honor has already written says that 15 the ECs are aspirational in character and that the members of 16 the profession should strive to comply with them, and then side 17 by side with that characterizes the disciplinary rules, we 18 believe that that sufficiently addresses the set of principles 19 that need to be conveyed to the jury here. 20 THE COURT: I agree with that. As I said, 21 Ms. Stewart's initial request on this subject is, to me, at 22 least illuminating in terms of what's really important to be 23 conveyed to the jury. And the total description of the ethical 24 considerations in Ms. Stewart's request in response to the 25 government's request was the ethical considerations are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10748 4CEMSAT6 1 aspirational in character and represent the objectives towards 2 which every member of the profession should strive. And that 3 is also substantially what came from Kittay. 4 MR. TIGAR: Your Honor, the Court is correct in 5 quoting our initial request. And so when we wrote you and 6 asked you to add that sentence, we are asking for more than we 7 did initially. I hope that's not argument that we waived 8 something by not asking for it earlier. I truly hope -- I 9 certainly didn't intend to. 10 THE COURT: What I am trying to say is I believe the 11 instructions as given is a fair instruction, particularly since 12 the -- only the disciplinary rules are mandatory. And all of 13 them, frankly, are subject to the disciplinary rule that makes 14 it clear that a lawyer cannot violate the law and that's 15 reflected in a couple of places in the disciplinary rules. So 16 in terms of explaining to the jury what the structure of the 17 code of professional responsibility is, this is a fair 18 instruction. 19 MR. TIGAR: We have stated our position. I am not -- 20 and I'm saying that we have asked for this. We believe it 21 isn't required to be given because, of course, the lawyers 22 can't help people disobey the law and we understand about that. 23 We understand about the ways in which the profession has dealt 24 with counseling clients in edge of the law situations. 25 We are looking for jury instructions that illuminate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10749 4CEMSAT6 1 in the way that the preamble does by adding that sentence, the 2 kind of difficult decisions that lawyers make, recognizing, of 3 course, we wouldn't be sitting here if there wasn't a chasm 4 between the government position and our position about what 5 Ms. Stewart was doing. I understand the Court has ruled and we 6 have stated our position. 7 THE COURT: The next issue is the exception that I put 8 into the zealous representation which appears pursuant to the 9 disciplinary rules. A lawyer should not intentionally seek the 10 lawful objectives of the client through reasonably available 11 means permitted by law and the disciplinary rules. I had added 12 the exception from DR7-101(b)(2). There was an objection to 13 that and then there was an argument that if I do that, I should 14 include other commentary with respect to that exception. 15 I am inclined to simply take out the exception because 16 there is an objection by the defense to the exception. The 17 DR7-102 is itself qualified by the lawful objectives of the 18 client through reasonably available means permitted by law and 19 the disciplinary rules. I think it makes sense to take out the 20 exception, which is -- which I don't believe I have been asked 21 to give. But, in any event, would be -- the defendant objects 22 and the government I don't think had asked me to give that 23 exception in the first place. 24 MR. TIGAR: Your Honor, the next one, that is all of 25 the in another country. We are making that objection because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10750 4CEMSAT6 1 of the legal position we have with respect to the indictment. 2 It is fully stated in here. And I would be happy to answer the 3 Court's questions about it, but we had not intended to argue it 4 orally. We do perceive for the rules I said in the Rule 29 5 motion a difference between outside the United States and in a 6 foreign country and that concerns me, heightened by certain 7 evidence that the government has focused on cross-examining 8 Mr. Sattar, but a concern that we will renew at Rule 29 time. 9 THE COURT: Government. 10 MS. BAKER: Your Honor, we believe that the language 11 of the government's indictment and the language of the statute 12 and the jury instructions are entirely consistent with each 13 other in this case. It is not, for example, that the 14 government has offered any proof of murder on the high seas in 15 the course of the trial, so we believe this is a nonissue. 16 MR. TIGAR: Your Honor, this is not a murder on the 17 high seas case. So it was clear, there was a lot of talk today 18 about the fact that Mr. Hamza and Mr. Taha were in Afghanistan. 19 They were in Afghanistan apparently in military action in 20 support of the Taliban, the unlawful government of the 21 Afghanistan at the time which had been installed by the 22 financial assistance and military assistance of the United 23 States. If they were engaged in homicides and taking people 24 into custody and so on, that couldn't be -- if Afghanistan was 25 the country, we have a whole set of legal issues we would not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10751 4CEMSAT6 1 have if, for example, Egypt were the country. That's the 2 difference, your Honor, between in a foreign country and 3 outside the United States for these purposes. 4 THE COURT: The statute reads outside the United 5 States. The elements of the charge are as asked for by the 6 government initially, which charged in terms of the statute, 7 and I believe that that instruction is the correct instruction. 8 I should also note that when this was -- when the 9 issue -- when the government submitted its initial request to 10 charge, which also set out the elements of the offense, 11 consistent with the statute and defined them in terms of 12 outside the United States, there was in fact no objection. 13 MR. TIGAR: Yes, your Honor, there was no objection. 14 We at that point didn't know what the evidence was. We didn't 15 know whether or not under the evidence the government would 16 present it was going to make a difference. But once we 17 heard -- and when I argued Rule 29 at the end of the 18 government's case I talked about West Bank because it looked 19 like from the evidence that was where it was going. I just 20 added Afghanistan as a matter of jurisdiction to prescribe, 21 which is a doctrine that I think influences statutory 22 interpretation. 23 So we had been going after a moving target, here, your 24 Honor, based on the evidence as presented. It could have been 25 argued at the beginning that the amendment of the indictment by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10752 4CEMSAT6 1 expanding from foreign country to anywhere outside the United 2 States didn't make a difference. I mean, there is some law to 3 that effect. 4 THE COURT: As I say, I will leave the charge as it 5 is. 6 Page 82. Ms. Stewart asks that the government be 7 required to prove the identity of other persons to be kidnapped 8 or killed and the foreign country. 9 MR. TIGAR: That repeats an argument that we had made 10 before, and I understood the Court to have rejected it as a 11 matter of the allegations of the indictment. That doesn't mean 12 we don't insist on it, but I think that the Court has a 13 separate view of that that the defense objects to. 14 THE COURT: I'm not inclined to change that. 15 Government? 16 MS. BAKER: Your Honor, we believe the instruction is 17 appropriate as is. 18 THE COURT: Page 87. Ms. Stewart asks for an 19 additional mental element in defining the elements of the 20 offense. I believe that the elements of the offense as the 21 draft charge currently sets them out is an accurate statement 22 of the elements of the offense, including the mental element. 23 But government? 24 MS. BAKER: Your Honor, we agree, the draft charge as 25 is is consistent with the plain language of the statute and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10753 4CEMSAT6 1 with the charge on these same offenses that Judge Keenan gave 2 in the Haouari case. 3 MR. TIGAR: Your Honor, without taking a lot of time, 4 I hope that the Morissette cite wasn't too cryptic. This is an 5 offense unknown to the common law, but it is, we say, in 6 essence, an aiding and abetting offense. That's the basis for 7 all of our consideration. If it is structurally an aiding and 8 abetting offense, it is one that is said to have aided and 9 abetted a 956 and that's the essence of the charge. Then 10 Morissette teaches us a powerful lesson, which is that criminal 11 statutes, once you get past text, nonetheless a mental element 12 must be inserted to satisfy or make a statute equivalent to its 13 common law ancestor. In Morissette, which is a theft case, it 14 was the specific intent of common law larceny, as I recall. 15 That's the argument. The Court has ruled, but I want to make 16 clear that that is our position. 17 THE COURT: In defining the elements of the offense I 18 said in the prior opinion and I've reflected it in the charge 19 that there is a very high standard of mental intent that in 20 fact is required to be proved and that's reflected in the 21 elements of the offense, which leads me then to page 90, No. 22 45. The government objects that the first element should 23 really be described that the conspiracy was prepared for or 24 existing. And I'm not inclined to describe the statute or the 25 elements of the statute that way unless defendants in this case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10754 4CEMSAT6 1 believe that I should. Because the violation that's described 2 in the statute in this case is the violation of section 956, 3 which is the conspiracy. The preparation that's reflected in 4 the statute is fairly described in the elements of the offense 5 when I describe that it is knowing or intending that the 6 support or resources were to be used in preparation for or in 7 carrying out the conspiracy. And it is the conspiracy that's 8 the violation of section 956. So I'm not inclined to add 9 another level of preparation. 10 No one wants to be heard on that. 11 No. 46, No. 91. Fourth line, Ms. Stewart objects to 12 the terrorist before act. I'm prepared to strike that. It is 13 not in the text of the statute. It is in the title, but it is 14 unnecessary in this description. The underlying act in this 15 case that is alleged to be the object is sufficiently 16 descriptive. 17 Page 96, No. 49, Ms. Stewart objects to the 18 description of aiding and abetting. The claim is there can't 19 be an aiding and abetting and the charge itself is a confusing 20 charge. The charge is directly from Judge Sand. It is not 21 confusing. It is very clear. There can be an aiding and 22 abetting violation. And at least of some relevance is the fact 23 that there was no initial objection to this charge when it was 24 originally proposed by the government, and I'm inclined to 25 leave it as is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10755 4CEMSAT6 1 No. 52, page 105, Ms. Stewart objects to the Pinkerton 2 charge. I believe that a Pinkerton charge is appropriate here. 3 I carefully considered the evidence and the reasons for such a 4 charge here. I have not simply given the charge as a matter of 5 course. I have considered all of the arguments by the parties. 6 I've also taken care to assure that the jury considers the 7 Pinkerton charge only after they have considered the conspiracy 8 charged in Count 4. I will give the charge. 9 The government asks for an additional clause which 10 says at the end of the first paragraph: And even if you do not 11 find that the government has satisfied its burden of proof that 12 either or both defendant Lynne Stewart or Mohammed Yousry aided 13 and abetted the commission of the substantive offense charged 14 in Count 5. That's a fair addition. The Pinkerton charge is 15 an additional means other than aiding and abetting, and I don't 16 refer to aiding and abetting otherwise in the first paragraph. 17 MR. TIGAR: We do object to that, the addition of that 18 sentence, your Honor. It seems that that is -- that adding 19 indeed, not to be fanciful, adding that sentence shows the vice 20 in our view of the Pinkerton charge, that it is precisely a 21 means to avoid a burden that the government appears reluctant 22 to bear. 23 THE COURT: Government. 24 MS. BAKER: Your Honor, it seems to me that 25 Mr. Tigar's comment essentially takes issue with what the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10756 4CEMSAT6 1 Supreme Court held in Pinkerton, which is that there is this 2 alternative basis for liability. That is the law. 3 THE COURT: I'll leave it. As I've said, I have 4 carefully considered it. 5 No. 53, page 108. This is the instruction on Counts 4 6 and 5 which was a modification of the charge that Mr. Yousry 7 originally requested. And the government does not dispute the 8 accuracy of the charge but says that it is unnecessary 9 argument. Since it is a correct statement of the law and I was 10 asked to give it in substance, I am inclined to keep it in. 11 But there is a request that Ms. Stewart makes to be joined in 12 this charge; and I think that's a fair request, unless I hear 13 otherwise from the parties. 14 The charge would be changed then to say: Defendants 15 Mohammed Yousry and Lynne Stewart have testified that they were 16 unaware of the existence of the conspiracy charged in Count 2. 17 If such a conspiracy existed and that they never envisioned 18 that their actions would aid or assist such a conspiracy. And 19 then subsequently it would say: Unless the government proves 20 that the defendant you are considering knew of the conspiracy, 21 et cetera, as I have explained the elements of that crime to 22 you, the defendant you are considering, Mohammed Yousry or 23 Lynne Stewart, must be found not guilty of Counts 4 and 5. 24 MS. BAKER: Your Honor, two small points in light of 25 the Court rejecting the government's opposition to this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10757 4CEMSAT6 1 instruction. The first is, in the first sentence in the second 2 phrase, the phrase that follows the comma, I would ask the 3 Court to add, "and testified that." 4 THE COURT: I'm sorry. Which line? 5 MS. BAKER: It is the third line where it says: If 6 such a conspiracy existed, add, "and testified that," so that 7 it makes clear that the Court is merely reciting the testimony 8 and not opining in any way on it. And also I would ask -- I 9 assume, I hope that the defendants have accurately 10 characterized their testimony in making this request, but the 11 government did not go back and actually look at the transcript 12 to ensure that, in fact, there was testimony to this effect, so 13 we will do that this evening and promptly advise the Court if 14 we believe that that characterization is not supported by the 15 record, but I did want to make clear that we had not done that 16 up to this point. 17 THE COURT: My recollection of the testimony -- 18 certainly, you should check, but my recollection of the 19 testimony is that the defendants went out of their way to deny 20 their knowledge of alleged conspiracy. And the defendants -- 21 MR. RUHNKE: It is my recollection as well, your 22 Honor. 23 MR. TIGAR: Mine as well, your Honor. 24 THE COURT: And I thought it was in a couple of 25 different ways and in a couple of different places. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10758 4CEMSAT6 1 No. 60, page 121, Ms. Stewart says that the 2 instruction is not specific enough with respect to the jury 3 finding of unanimity. And I gave the supplemental request 4 requested by Ms. Stewart in supplemental request 12.9. And 5 that comes just about verbatim from O'Malley's treatise these 6 days at 40.15. And I have no alternative language that -- 7 MR. TIGAR: Your Honor, I just looked back at that and 8 I apologize for taking the Court's time. We withdraw our 9 objection on that, your Honor. We accept the Court's analysis. 10 MS. BAKER: Your Honor, if I might just go back for a 11 moment to the theory of defense instruction that we had just 12 finished covering on page 108. We have looked at the page of 13 transcript cited by Ms. Stewart in her letter and agree that 14 that transcript citation would support adding Ms. Stewart to 15 the first part of the sentence that introduces that 16 instruction. We would request to know if there is some 17 citation that would support the second part of that sentence 18 because we are not aware of such testimony by Ms. Stewart, and 19 we would similarly ask Mr. Yousry's counsel to give us some 20 guidance on where to look in his testimony. We don't believe 21 that it is fair that we should have to read through the 22 entirety of each defendant's testimony. 23 THE COURT: That's fair. 24 MR. TIGAR: We will provide that overnight, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10759 4CEMSAT6 1 THE COURT: Okay. 2 As I said, I thought -- 3 MR. TIGAR: May we have until noon tomorrow, your 4 Honor? 5 THE COURT: Yes. 6 MR. TIGAR: Mr. Habib is looking at me balefully about 7 what I said overnight. 8 THE COURT: Noon is fine. 9 No. 61, page 123. Ms. Stewart objects to the language 10 beginning, I want to point out. And the argument is that this 11 language essentially contradicts subsequent instructions about 12 making or submitting a document, making a statement or 13 submitting a document. The language comes completely from 14 Judge Sand. But it appears to me that under the facts of this 15 case, as charged, the allegations in the indictment, the one 16 change that I would consider here is to strike the phrase, or 17 even that it knew of the misleading or deceptive act. And then 18 it would say this circumstance. 19 MR. TIGAR: Yes, your Honor. We agree with that. 20 THE COURT: And the reason I say that, this is not a 21 case of the submission of something to a third party. This is 22 the submission of a statement -- this is the making of a 23 statement to the government or the submission of a document to 24 the government. It doesn't make a difference if the government 25 was misled or relied on it. But this is not the case, for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10760 4CEMSAT6 1 example, of the submission of a statement to a hospital that 2 receives federal funding where it doesn't make a difference 3 that the statement was not submitted. So that it doesn't make 4 a difference if the government was misled or relied on it, but 5 this is not a case where the statement was not made or 6 submitted to the government. 7 MS. BAKER: Your Honor, I'm a little puzzled. I see 8 in Ms. Stewart's letter they have interpreted the Court's 9 instruction in such a way that they have raised the issue of 10 whether or not the government knew about the statement because 11 it was communicated to someone else. But just the plain 12 language of the Court's instruction, the sentence in the draft 13 instruction which does come directly out of Sand says: It does 14 not matter that the agency was not misled or even that it knew 15 of the misleading or deceptive act. 16 The government actually thinks that that instruction 17 is important in the context of this case because the defense 18 suggested at some point earlier in the trial, perhaps through 19 cross-examination of Mr. Fitzgerald or of Gerard Francisco -- I 20 don't remember exactly how it came up -- there is the issue 21 that the government, because it was doing surveillance, was 22 never actually misled about anything that was going on, and so 23 we believe that the plain language of the sentence in the 24 instruction is appropriate in the context of this case. 25 THE COURT: I don't think there is a difference SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10761 4CEMSAT6 1 between the parties, and I can solve it. The argument was 2 that, of course, the government had to know of the fact because 3 the statement was, you know, the government cannot know of the 4 act if the statement was made to the government or submitted to 5 the government. And it could have been read the way in which 6 it was written to suggest that the government need not know of 7 the act at all, which would be inconsistent with the statement 8 made to the government or submitted to the government. 9 A way of resolving that is to say it does not matter 10 that the agency was misled, or that if it did not know the 11 alleged agent was misleading or deceptive should you find that 12 the act occurred. These circumstances would not excuse or 13 justify. That eliminates the suggestion that it is possible 14 that there could be an act or a statement that the government 15 did not know of. So I will change that. 16 Do the parties understand what I have done? 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10762 4CE5SAT7 Charge Conference 1 MS. BAKER: Your Honor, I don't think that that was 2 the point that Ms. Stewart was making. 3 THE COURT: I thought it was. 4 MS. BAKER: I thought that she was somehow viewing the 5 language on page 123 as inconsistent with the language on page 6 125. The first sentence on page 125 states the requirement. 7 MR. TIGAR: I will make the statement for Ms. Stewart, 8 your Honor, when the time comes. 9 MS. BAKER: Page 125 states the requirement that the 10 defendant made a statement or representation and it -- I don't 11 see any inconsistency between the two different instructions on 12 the two different pages. 13 If there is, I would suggest to the Court that the 14 part to change on page 123 would be just the last phrase, 15 changing it to, "should you find that the defendant made the 16 statement..." that that would parallel the language on page 125 17 which was Ms. Stewart's original point. 18 My concern is that the language that the Court 19 originally had on page 125 was, is appropriate in the context 20 of this case and the government asks that that language remain, 21 that is, the phrase, "even that it knew of the misleading or 22 deceptive act..." 23 In other words that that instruction says that there 24 can still be a false statement charge, the defendant can still 25 be guilty of it even if the government wasn't actually fooled. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10763 4CE5SAT7 Charge Conference 1 And in the context of this case we submit that that's 2 important. 3 THE COURT: There are -- and what I try to do in 4 explaining my change was to encapsulate exactly that but there 5 are, when you talk about deceptive acts there are two parts, 6 one is deception and second is act. 7 If you say that it does not matter that the government 8 knew of the deceptive act, one meaning of that which is the way 9 in which I took the defendant's objection was, wait a moment. 10 How in the context of this case could the government not know 11 of the act that the statement was made or the document 12 submitted? 13 Because it was made to the government and submitted to 14 the government. It is possible, of course, that the government 15 did not know that the statement was deceptive or the document 16 was deceptive. 17 And so, my suggestion was to make it clear that it 18 does not matter that the agency was not misled or that it did 19 not know that the alleged act was misleading or deceptive 20 should you find that the act occurred. 21 And the reason to do it exactly that way is because 22 there are two sets of charges, one is with respect to false 23 statements and one is with respect to false writing or 24 document. 25 So, you can't just pick up part of the next SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10764 4CE5SAT7 Charge Conference 1 instruction. I mean, if you think about it, it really is the 2 accurate description. 3 MS. BAKER: Your Honor, if we could, I mean, I'm happy 4 to allow Mr. Tigar to speak first but before we move, before 5 the Court rules or gives its final view on this issue, I would 6 ask for the opportunity just to -- 7 THE COURT: Think about it. 8 MS. BAKER: -- look back at some material for a few 9 minutes and confer with my colleagues. 10 THE COURT: Sure. Sure. 11 MR. TIGAR: Your Honor, the origin of our concern was 12 related to what your Honor said. I had not thought of the 13 hospital case, I thought of the bank case. That is, you know, 14 somebody submits a false statement and it winds up in the note 15 case of the insured S & L. 16 That's what the relative clause that your Honor 17 proposed to delete dealt with and that we asked to be stricken. 18 And we request that the Court do what the Court initially said, 19 that it would strike, "or even that it knew of the leading and 20 deceptive act" because it simply doesn't apply on the facts of 21 this case and could mislead. 22 The reason that we suggest that the Court not attempt 23 the modified version is that when the Court gets a couple of 24 pages further on, you define materiality in a stand-alone 25 paragraph that, in our view, quite accurately captures the idea SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10765 4CE5SAT7 Charge Conference 1 of materiality material. 2 And that to attempt an instruction -- to attempt to 3 deal with the issue in the way that your Honor's second version 4 had risks dividing the matter into the two instructions. 5 So, we think just to take it out because, on the facts 6 of this case, it just doesn't apply. 7 THE COURT: Well, I think it's a fair instruction. 8 The parties can look at it further. 9 What I would say was: It does not matter that the 10 agency was not misled or that it did not know that the alleged 11 act was misleading or deceptive should you find that the act 12 occurred. These circumstances would not excuse or justify, 13 etc. 14 And that is the instruction from Judge Sand with the 15 elimination of the submission of the statement to a 16 third-party. 17 You can think about it and if you think that it's not 18 a fair statement of the law and you can give me any cases by 19 noon tomorrow. 20 Page 128. The government says, and I agree, that in 21 the, rather than saying "each count" it should say Counts Six 22 and Seven on line 2. I agree with that. 23 On page 138. On venue the government requests two 24 additional sentences from Judge Sand 3-11 and I think those 25 sentences are fair. I will add them at the end of the second SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10766 4CE5SAT7 Charge Conference 1 paragraph that says: In this regard, the government need not 2 prove that the crime itself was committed in this district or 3 that the defendant you are considering was present here. It is 4 sufficient to satisfy this element of any act in furtherance of 5 the crime occurred in this district. 6 On page 143 Ms. Stewart notes that there are, asks 7 essentially that I repeat to the jury the newspaper instruction 8 as part of the charge. 9 I will listen to the parties but I'm not inclined to 10 do that. The reason is there was argument with respect to 11 numerous newspaper articles and the purposes for which the 12 newspaper articles could be used. 13 In the course of the trial on motions in limine and 14 evidentiary rulings I have set out for the parties the 15 rationale for various rulings on various documents, including 16 whether a statement by a defendant or a co-conspirator was 17 sufficiently authenticated as it appeared in an article to be 18 admissible. 19 So, to simply give a blanket instruction in the course 20 of the final instructions would not, I think, be a fair 21 statement of the record where we have gone over individual 22 rulings with great care. 23 So, I would not be inclined to just give a blanket 24 instruction. 25 Government? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10767 4CE5SAT7 Charge Conference 1 MS. BAKER: We agree with that, your Honor. 2 THE COURT: At the end of Ms. Stewart's requests there 3 were some additional items that were noted. 4 Ms. Stewart says there was no objection to request 5 2.6, raised suspicion. The government did object to that. 6 They said this was really part of the conspiracy charge, it 7 really relates to guilt by association. 8 I do instruct about mere association with: One or 9 more members of a conspiracy does not automatically make a 10 defendant a member. 11 And I have gone over the conspiracy instruction with 12 great care. I have relied very heavily on what Judge Sand has 13 done. I'm not inclined to make a change. 14 Government? 15 MS. BAKER: Your Honor, we agree. We stand by our 16 prior objection. 17 THE COURT: Ms. Stewart says there is no -- the 18 government had not objected to Ms. Stewart's request 9.11, 19 proof of participation by own words. 20 The government did object and the instruction that I 21 used comes from Judge Sand and Second Circuit case law. And 22 Judge Sand explains the rationale for the instruction that I 23 given at length in his treatise at 19-41 to 42, so I'm not 24 inclined to make a change unless the government in this case in 25 response thinks that I should. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10768 4CE5SAT7 Charge Conference 1 MS. BAKER: No, your Honor. We request Judge Sand's 2 instruction. 3 THE COURT: Ms. Stewart asks for an instruction on 4 electronic surveillance and some additional aspects of 5 electronic surveillance and I'm not inclined to give a further 6 instruction. 7 I give a lengthy instruction on electronic 8 surveillance which I think, which -- which is much more 9 extensive than the instruction in Judge Sand and includes more 10 than sufficient caution for the jury in considering electronic 11 surveillance and is a balanced instruction. So, I'm not 12 inclined to give any, to give a further instruction, unless in 13 this case the party responding to the request thinks that I 14 should. 15 MS. BAKER: Your Honor, we object. 16 THE COURT: Ms. Stewart asks, renews her request for 17 supplemental request 15.1 on Sheikh Rahman's right to counsel. 18 The government initially objected and I agree with the 19 objections. I think the request is unnecessary. It's not part 20 of any element of an offense or a defense to any of the 21 charges. 22 It is not clear to me what the jury is supposed to do 23 with the instruction and the instruction is not a complete and 24 accurate and balanced instruction on the law so I'm not 25 inclined to give it, unless the government thinks that I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10769 4CE5SAT7 Charge Conference 1 should. 2 MS. BAKER: No, your Honor. We adhere to our prior 3 objection. 4 MR. TIGAR: By our silence we do not betoken consent, 5 your Honor. We have made our position, I trust. 6 THE COURT: And by not calling on you I don't mean to 7 limit your ability to speak. 8 MR. TIGAR: I understand, your Honor. But the old 9 maxim qui tacet, etc., is no longer in effect. 10 THE COURT: The only reason that I haven't called on 11 you to speak further is you indicated to me that you didn't 12 want -- you set out your reasons in the letter. 13 MR. TIGAR: Thank you. 14 THE COURT: Then there is a final request which says 15 that Ms. Stewart is going to make a request at the close of all 16 of the evidence with respect to submitting further requests. 17 I was surprised at that because I had given an 18 opportunity for initial requests and opposition and then I 19 asked for any supplemental requests and I got opposition. And 20 I gave the parties a draft charge, the parties were given time 21 to go over the draft charge and the rules indicate that 22 requests can be required at before the close of evidence at any 23 earlier time that the Court reasonably says. 24 And I really thought that I had given the parties more 25 than ample opportunity to give me all of their charges SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10770 4CE5SAT7 Charge Conference 1 precisely so that I could deal with them. 2 It was my expectation that the parties would rest, 3 they would have my charge, and then the government can get up 4 and give its summation. 5 MR. TIGAR: We will, of course -- of course we will 6 abide with the Court's ruling if the Court says we are out of 7 time. 8 Our theory had been and remains this. For example, 9 the government's rebuttal case, as now configured, includes a 10 prior statement of Ms. Stewart to which we objected and then 11 the Court ruled yesterday. Then there is a telephone 12 conversation of Ms. Stewart. Today there is extensive 13 discussion of what Mr. Jabara did or didn't do with Mr. Sattar. 14 Mr. Morvillo has at least another day of 15 cross-examination. Until the evidence is closed, your Honor, 16 we are shooting at a moving target. 17 If the Court says, no, you're out of time, don't 18 submit any more -- well, we won't. Or, if we do, we will 19 expect to hear back that it is too late. 20 But, that had been our theory. And we will now 21 quickly go and we will submit a short theory of the case 22 instruction and if the Court rules it is improper or untimely, 23 then that will be the Court's ruling. 24 But that had been our view of the way this ought to 25 work. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10771 4CE5SAT7 Charge Conference 1 THE COURT: When you say ought to work, I really 2 thought that I had made it clear that the, that I wanted any 3 additional requests to charge. 4 The one exception to that can obviously be if 5 something occurs after all of the supplemental requests came in 6 that requires an additional request to charge based upon the 7 further evidence in the case or the rebuttal case or the like. 8 And I understand that. 9 But what I don't understand is that we had a full 10 round of request to charge and objections, supplemental 11 requests, objections. I have ruled on them. I have a draft 12 charge which is very close to being in final form and the 13 suggestion is that there are now going to be more requests to 14 charge. 15 MR. TIGAR: Your Honor, let me address the major issue 16 first and then a minor. 17 A theory of the case, I did not want to present a 18 proposed theory of the case charge that could be used by the 19 prosecutors as a basis for attempting to plug holes in their 20 case. Not that it particularly does in this case because I 21 think it's pretty obvious what folks' views are. But just that 22 is a habit of mine -- that is to say that sharing with the 23 government our theory of the case has not been a way that I 24 think we ought to proceed. 25 So when I say ought to work, that was my expectation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10772 4CE5SAT7 Charge Conference 1 And I think we said something to that effect in our earlier 2 presentations. But I don't want to quibble with the Court 3 about that. The Court has ruled, the Court has ruled. There 4 we are. 5 I would note, as a minor matter, that the government 6 has asked now for some additional time to go back and reread 7 the Cheek case, at least until tomorrow. We have until 8 tomorrow noon to go look at some citations to Ms. Stewart so at 9 the very least we are not entirely out of time. 10 But, I accept the Court's ruling. If the Court tells 11 me, you know, don't send it in it will be untimely, then that's 12 the Court's ruling. 13 THE COURT: Does the government have any position? 14 MS. BAKER: Your Honor, we would ask the Court to 15 adhere to the schedule that it had set previously. Some of 16 these request to charge issues raise complicated legal issues. 17 And although I did request an additional opportunity tonight to 18 look back at the Cheek case, that is an issue that the parties 19 have been litigating for some time now. 20 And the notion that at end of the government's 21 rebuttal case a new defense theory instruction may appear and 22 raise new potential legal issues, is troubling. 23 Mr. Yousry's counsel obviously understood your Honor 24 to be requiring the parties to make their submissions because 25 he did submit his defense theory instruction and indeed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10773 4CE5SAT7 Charge Conference 1 Ms. Stewart has now joined in it. 2 So, she's really requesting an opportunity to submit 3 second or additional defense theory or instruction and we would 4 submit that that's just not appropriate procedure after 5 everything that has transpired. 6 THE COURT: I do believe that any further requests 7 which are not reasonably responsive to what's going on since 8 the supplemental requests were submitted, are untimely. Unless 9 the parties bring to my attention any cases that suggest that 10 that is not a reasonable ruling. 11 MR. TIGAR: We will, if we submit an additional charge 12 that does not meet the standard your Honor has set out we will 13 submit it with authority that, in our respectful view, 14 justifies our doing so. 15 THE COURT: Okay. 16 MR. TIGAR: I would -- so I don't seem to be waiving 17 the point we will submit a letter about this. 18 Mr. Morvillo spent a great deal of time this afternoon 19 going over Mr. Jabara's conduct, including conduct of 20 Mr. Jabara by not reading things that could be regarded as 21 expressive conduct intended by him as a statement. He wouldn't 22 read it, that must have been because... There were a lot of 23 questions about that. 24 Mr. Jabara testified before the grand jury in this 25 matter, your Honor, and given his new found status as an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10774 4CE5SAT7 Charge Conference 1 important hearsay declarant, we will be moving for production 2 of his grand jury testimony and will be asking the government 3 to submit it to the Court. 4 Mr. Barkow can laugh about the request but that's the 5 motion we would make. 6 THE COURT: Okay. If there is such a letter the 7 government can respond. 8 There are two other issues. I mean, I see the parties 9 sort of putting their papers together, but the first issue is 10 the special verdict form and the second issue is Ms. Stewart's 11 motion for reconsideration. 12 So, let's take the first issue which is the special 13 verdict form, and it's the government's request for the special 14 verdict form. 15 MR. RUHNKE: Your Honor, if we are going to go into 16 that could we take a couple minutes' break before going into 17 the special verdict form, or could we carry it to another day? 18 THE COURT: I would really like to do it now. I think 19 we can complete it in about a half an hour. 20 MR. RUHNKE: That's fine, your Honor. If I could just 21 have an opportunity to make a phone call? 22 THE COURT: I will certainly -- I am certainly 23 prepared to take a break. 24 MR. RUHNKE: I just need to make a phone call. 25 THE COURT: Well, others may need a break and I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10775 4CE5SAT7 Charge Conference 1 perfectly prepared to take a break. 2 MR. RUHNKE: Thank you. 3 (Recess) 4 THE COURT: The government request for special verdict 5 form? 6 MS. BAKER: I'm sorry, your Honor. All that I heard 7 was "The government request for a special verdict form?" Were 8 you asking me to address the subject? 9 THE COURT: Yes. If you wish. 10 MS. BAKER: Your Honor, I will just, let me just say, 11 very briefly, as we said in our reply, which was the next to 12 last submission on this issue Mr. Yousry having sur-replied 13 after that; but, as we said in our reply, the government does 14 not read the Second Circuit's decision in Mincey as precluding 15 the relief that the government is seeking here. 16 I don't have Mincey here in front of me but it is my 17 recollection that Mincey was an appeal after a defendant was 18 sentenced with the Judge determining whether enhanced 19 enhancements to the sentence were appropriate making that 20 determination by a preponderance of the evidence, as has been 21 law for many years now in the Second Circuit and elsewhere. 22 And so, the posture in Mincey was the Court 23 essentially saying that, for now, unless and until the Supreme 24 Court tells us otherwise, this case doesn't need to be redone 25 and other cases that are done and over with don't need to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10776 4C5SAT7 1 reopened. 2 And that was an eminently reasonable thing for the 3 Second Circuit to do, to not require many cases that were 4 already settled to essentially be unsettled in the face of 5 uncertainty about what the Supreme Court was going to do in 6 Booker and Fanfan. 7 On the other hand -- I'm sorry. 8 THE COURT: No, go ahead. 9 MS. BAKER: On the other hand, this case is not 10 settled and there is nothing in Mincey that says that District 11 Courts cannot take steps based on authority that the Second 12 Circuit had said they had in a previous line of case law to 13 address the possible ruling that the Supreme Court might render 14 in Booker and Fanfan. And nothing in Mr. Yousry's reply -- 15 sur-reply alleges, in any way, that the defendants would be 16 prejudiced by having a special verdict form put to the jury in 17 a bifurcated proceeding. 18 Now, of course, the defendants don't want to receive 19 enhanced sentences and they make a variety of arguments against 20 that, but none of those arguments directly addressed the more 21 narrow question of why shouldn't the jury be asked to make the 22 kinds of findings here that would be necessary if the Court 23 rules against the government in Booker and Fanfan. 24 So, the bottom line in the government's perspective is 25 Mincey doesn't preclude the government's relief and there is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10777 4C5SAT7 1 simply no reason not to receive this information from the jury. 2 And then what the Court subsequently does with the information 3 will be determined later, based on what happens in Booker and 4 Fanfan. 5 THE COURT: Well, hold on. 6 Now, Mincey does a little more than that because 7 Mincey says, I think, that unless and until the Supreme Court 8 rules otherwise, the Courts in the Second Circuit are to 9 continue to apply the guidelines. 10 So, it's not just an announcement about what the 11 Second Circuit is going to do with cases that come up before 12 it. It's a direction to District Courts which, up until then, 13 some of them have been declaring the guidelines 14 unconstitutional, some of them have declared them 15 constitutional and followed them, so -- 16 MS. BAKER: I agree with what your Honor has just 17 said. 18 And to take it one step further, if the Court were to 19 present this jury with a special verdict form and obtain 20 answers, and then if the defendants were to be sentenced prior 21 to a Supreme Court decision in Booker and Fanfan under Mincey, 22 assuming the Second Circuit continues to adhere to Mincey then, 23 at the time of sentencing, the Court would put aside the 24 special verdict form and apply the guidelines itself. 25 And so, I agree that Mincey has the effect that your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10778 4C5SAT7 1 Honor just articulated plus what I just said. 2 But, again, Mincey does not say that a Court cannot 3 request information from a jury and the authority for the Court 4 to do that comes from the other line of case law that we cited. 5 THE COURT: The defendants say that the indictment 6 doesn't set out the elements of the sentencing enhancements 7 that the government says I should ask the jury about. 8 MS. BAKER: Your Honor, we -- I'm sorry. 9 THE COURT: Go ahead. 10 MS. BAKER: We address that in our reply. The 11 indictment obviously, concededly, does not have any section 12 entitled sentencing enhancements. It does not cite to the 13 guidelines. But the constitutional requirement for an 14 indictment to be sufficient is that it provide the defendants 15 with notice of what they need to defend themselves against. 16 And in the reply I went through and endeavored to cite specific 17 paragraphs from the indictment. 18 But this indictment, overall, could not more 19 plainly -- it's hard to imagine an indictment that couldn't, 20 that could more plainly convey to the defendants that they are 21 alleged with furthering promoting federal crimes of terrorism, 22 which is the primary enhancement that the government seeks to 23 maintain as an option here, the enhancement in Guidelines 24 Section 3A1.4. 25 Reading the indictment in its entirety and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10779 4C5SAT7 1 particularly the specific paragraphs that I identified, 2 plainly, gives the defendants notice that their conduct falls 3 within the purview of that enhancement. 4 THE COURT: Well -- 5 MS. BAKER: As to-- 6 THE COURT: You say that there is enough notice in the 7 indictment but the indictment doesn't allege anywhere that the 8 activities alleged in the individual counts were calculated to 9 influence or affect the -- doesn't take each of the counts and 10 say, with respect to each count that the activities alleged in 11 that count were calculated to influence or affect the conduct 12 of government by intimidation or coercion, or to retaliate 13 against government conduct. 14 MS. BAKER: I agree with your Honor that it doesn't 15 say it in those words. However, the introductory paragraphs of 16 the indictment which are incorporated and realleged in each 17 count say that the Islamic Group and the conspiracies at issue 18 in the indictment were designed to achieve certain objectives 19 like replacing the government of Egypt with a Muslim 20 government, obtaining Abdel Rahman's release, opposing Israel 21 and its allies. 22 And those paragraphs further allege and the counts 23 themselves two and three further allege that the means for 24 achieving those objectives were through violence. 25 And so, by the substance of those allegations it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10780 4C5SAT7 1 equates to the requirement that your Honor just read without 2 using that language. 3 In other words, the violence here wasn't violence for 4 profit, it wasn't violence for, you know, just random street 5 violence, it was violence to achieve objectives of the people 6 participating in it. And the totality of the indictment makes 7 that clear. 8 THE COURT: But is it fair that in none of the counts 9 of the indictment is there an allegation of the specific 10 factual elements of the enhancements? 11 MS. BAKER: I disagree with your Honor's 12 characterization. I agree with your Honor that in none of the 13 counts is there a specific recitation of the language of 14 Guideline Section 3A1.4. 15 But, by virtue of the facts alleged in the 16 introductory paragraphs of the indictment, which are 17 incorporated into each of the counts, it is the government's 18 submission that there are specific factual elements to support 19 the enhancement that are present in each of the counts. 20 THE COURT: What comparable case is there where the 21 degree of the activities or mental elements are sought to be 22 inferred from other allegations of the indictment? 23 I mean, the cases appear to deal with -- is there a 24 sufficient allegation of effect on interstate commerce? Is 25 there a sufficient allegation of knowingly somewhere in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10781 4C5SAT7 1 indictment? Is there a sufficient allegation of labor 2 organization? 3 Here the elements that the government asks me to infer 4 from the indictment appear to be much more extensive than any 5 other -- in any other case. And so my question is, what sort 6 of comparable case where -- 7 MS. BAKER: I do not have a case to cite to your Honor 8 where the Court, where the specific issue in a discussion of 9 sufficiency of the indictment was were there factual 10 allegations that, specifically enough, alleged the requisite 11 intent without reciting the particular intent language. 12 Although, even as I'm saying that, actually that is 13 sounding familiar to me from a case that I cited. 14 THE COURT: No, there is one case that is it was an 15 error not to include "knowingly." 16 MS. BAKER: That's correct. And that's why it is 17 sounding familiar to me. 18 THE COURT: But here it is much more than just 19 "knowingly." 20 MS. BAKER: Well, your Honor, it is and it isn't in 21 the sense that Mr. Yousry, we respectfully submit, is wrong 22 in -- I don't know whether he says this explicitly or at least 23 implies in the sur-reply that the state of mind contemplated by 24 the terrorism enhancement had to be a state of mind of the 25 defendants themselves, that that is not the case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10782 4C5SAT7 1 In other words, the terrorism enhancement applies 2 where the conduct involved or was intended to promote a federal 3 crime of terrorism. 4 And then, in turn, the definition of federal crime of 5 terrorism includes the-calculated-to-affect-government language 6 that your Honor read earlier before. So, the particular 7 defendants here don't have to have been the ones calculated to 8 affect the government. They have to engage in conduct that 9 involved or was intended to promote that effect happening. But 10 they don't have to have been the ones with that specific state 11 of mind. 12 And as I said earlier, it's the government's view that 13 the indictment makes abundantly clear repeatedly by citing the 14 goals of the Islamic Group and the goals of the conspiracies 15 here, that that objective of influencing government was held by 16 the people whose violent conduct was being furthered and 17 supported by the defendants, whose conduct was involved or was 18 promoted by the offenses in which the defendants engaged. 19 THE COURT: Just a couple of specific questions on the 20 specific enhancements. 21 Why is it even necessary on Counts Two, Four and Five 22 to have a special verdict form because why aren't -- why don't 23 two, Four and Five fall automatically under terrorism for 24 purposes of the guidelines? Because the offense itself is a 25 felony that was defined under federal crime of terrorism. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10783 4C5SAT7 1 MS. BAKER: Your Honor, this is the point that I 2 attempted to address in a footnote in the reply. 3 THE COURT: I know. 4 MS. BAKER: Although the footnote, perhaps, gave it 5 too short shrift. 6 But basically, it is the government's understanding, 7 that the federal definition of terrorism has two components. 8 One component is that it be one of specified offenses and the 9 other is the prong your Honor read a few moments ago about 10 influencing government. 11 And as to Counts Two, Four and Five, there is no 12 question that the first prong is satisfied because that is the 13 offense itself, but there would still have to be a finding by 14 the appropriate fact finder and by the appropriate burden of 15 proof that the other prong, the effect on government prong is 16 satisfied in this case. 17 And so, that's why the government has proposed that 18 the special verdict form for those particular counts ask only 19 that narrower question addressed only at the one prong of the 20 definition. 21 THE COURT: I see. Okay, there is an "and" in the 22 statute. 23 MS. BAKER: Yes, your Honor. 24 THE COURT: Okay. The request for kidnapping says: 25 If kidnapping was an objective of the conspiracy, or a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10784 4C5SAT7 1 conspiracy to kidnap was solicited, and if it was reasonably 2 foreseeable that the objective of kidnapping would include the 3 making of a demand upon government... I don't see that that's 4 the way in which the guideline itself was worded. 5 MS. BAKER: Well, your Honor, that was an effort to 6 combine two different applicable guidelines, the one being the 7 guideline on kidnapping which provides for an enhancement. If 8 there was a making of a demand upon the government. 9 And then the guideline about jointly conducted 10 criminal activity -- I apologize, I don't have my guidelines in 11 front of me, it is either -- it's 1-point-something where it 12 says in the case of jointly conducted criminal activity, a 13 defendant is responsible for and can be sentenced based on 14 activity by others participating in the conduct that was 15 reasonably foreseeable to him. 16 And so, the point is that Mr. Sattar, as a conspirator 17 in the kidnapping conspiracy, wouldn't have to be the one 18 making a demand upon government himself but if it was 19 reasonably foreseeable to him that his co-conspirators, the 20 others participating in the conduct with him jointly would do 21 so that he is accountable for that under the guidelines. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10785 4CEMSAT8 1 THE COURT: You argue in your brief that it is not 2 necessary to resolve the issue of the separation of powers 3 issue. 4 MS. BAKER: To be more clear, your Honor, I don't mean 5 to say that it is not necessary to resolve that issue at some 6 point. But this comes back to the point that I started with 7 that the government can conceive of no prejudice to the 8 defendants and the defendants have not articulated any 9 potential prejudice to them from the submission of the special 10 verdict form to the jury in a second phase following the jury's 11 return of verdicts of guilt or not guilt. 12 And, therefore, there is not any reason why the 13 separation of powers question needs to be resolved before the 14 jury is given a special verdict form. And so the government's 15 point was, it is a difficult and complicated issue. The 16 Supreme Court's decision in Booker and Fan-Fan may well resolve 17 it or shed significant light on it. And the resolution can 18 await the Supreme Court's decision because it doesn't have 19 any -- it doesn't affect whether the defendants are prejudiced 20 or not, which we submit they are not, by the jury being given a 21 special verdict form. 22 THE COURT: But you say in your footnote that assuming 23 arguendo that the government's position before the Supreme 24 Court essentially was that the requests in the special verdict 25 form are essentially unconstitutional, that these are crimes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10786 4CEMSAT8 1 being created which can't be done and it is a procedure that 2 shouldn't be used. That was the government's position before 3 the Supreme Court. If that's true then the question would be 4 why I would not be required to pass on the issue and to make a 5 determination with respect to that issue before we go through 6 the process of the special verdict form. 7 And the government, to put it another way, if the 8 Supreme Court decides that the guidelines are constitutional, 9 no problem. If the Supreme Court decides that the guidelines 10 are unconstitutional and not severable, no problem. It is only 11 if the Supreme Court comes up with the bifurcated answer that 12 it even becomes an issue. As to that bifurcated answer the 13 government took the position before the Supreme Court, it can't 14 be done. It is a violation of separation of powers to do it 15 that way. And so the question arises as to why under that 16 scenario I should go through a process which the government 17 thought before the Supreme Court was unconstitutional. 18 Usually, and I realize courts are split on us, but 19 courts have to make decisions. 20 MS. BAKER: Your Honor, if I could address that in two 21 parts. 22 First, I don't have expertise in the nuances of the 23 government's constitutionality, unconstitutionality, 24 severability argument that has been made to the Supreme Court 25 in Booker and Fan-Fan and I don't intend anything that I say SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10787 4CEMSAT8 1 here today or anything that I said in the brief as a concession 2 on any issue. 3 THE COURT: You plainly didn't. Assuming arguendo, 4 that's what the government said and the position it took. 5 MS. BAKER: I just wanted to make that clear. But I 6 would respectfully say to the Court, courts don't -- it is a 7 principle of judicial restraint -- I may not be using the best 8 possible phrase -- but courts don't decide constitutional 9 issues unless and until they have to. And I certainly agree 10 that the Court would have to decide this issue before 11 proceeding to sentence the defendants, depending on what the 12 result was in Booker and Fan-Fan and whether any part of this 13 question is left open. 14 But the constitutionality or unconstitutionality of 15 the structure of offenses and their elements and so on, these 16 are all issues completely outside the purview of the jury. The 17 jury has no knowledge of any of this going on. 18 And so just to get to the point of should a special 19 verdict form be given to this jury or not, I don't understand 20 why the constitutionality question would have to be resolved 21 before that point in time, and indeed I would urge the Court 22 that judicial restraint would counsel against it. If the 23 ultimate answer is, there is a constitutionality problem, there 24 is a separation of powers problem, then the Court at the end of 25 the day would disregard the jury's special verdicts and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10788 4CEMSAT8 1 defendants might end up -- depending on how all the pieces fit 2 together, the defendants might end up with unenhanced sentences 3 based solely on the applicable base offense levels. 4 But for the immediate question before the Court, which 5 is, should this additional information be requested from the 6 jury, I really don't see why the constitutionality, a very 7 difficult constitutionality question, has to be resolved before 8 that point in time. There is no constitutional harm to the 9 defendants from the jury being asked these questions because 10 the answers to the questions can always be disregarded later. 11 And if the questions are being asked in the second phase of a 12 bifurcated proceeding, there is no potential prejudice to the 13 defendants in how the questions affect the jurors' 14 determination of guilt or not guilt. Again, we think there is 15 no downside to doing it. And the difficult constitutionality 16 question can be resolved, if necessary, at a more appropriate 17 point in time later. 18 THE COURT: Thank you. 19 MR. RUHNKE: Your Honor, in a sense, the easiest and 20 most direct answer to these problems is Mincey. In Mincey the 21 Second Circuit could have said, pending Supreme Court's 22 decision we are going to ask the district courts submit 23 sentencing enhancement to juries, just in case the Court comes 24 down a certain way. Or the Court could have, as did the Ninth 25 Circuit, say that in light of Blakely, the sentencing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10789 4CEMSAT8 1 guidelines are unconstitutional and, therefore, in that 2 particular case -- Ameline I think is the name of the case -- 3 remanded it for jury sentencing on enhancements, not really 4 considering the indictment clause issue. 5 Here is what the Second Circuit did say in Mincey. 6 I'm quoting from page 106: "The pending issue before us is 7 whether we should now abandon the prevailing view of this 8 circuit because of arguments based on what the Blakely decision 9 might portend for the future of the guidelines. We conclude 10 that we should not. And strict to its essence, what the 11 government is doing is saying, we should now adopt new 12 procedures based on what the Blakely decision might portend for 13 the future of the guidelines. What you're being asked to do, 14 that was the Second Circuit could have done prophylactically, 15 but those specifically not to do, not to alter the landscape. 16 THE COURT: The Second Circuit didn't preclude the use 17 of special verdicts. 18 MR. RUHNKE: There was no occasion to preclude or even 19 use special verdicts. I will grant you that the Court did not 20 preclude it, but they clearly would have had the opportunity to 21 say, let's experiment while we see what Blakely means to the 22 future of the guidelines and the Court said no. We are just 23 going to hold the course as to where we are now. 24 THE COURT: Is there any court of appeals that's 25 either said yes or no to special verdicts? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10790 4CEMSAT8 1 MR. RUHNKE: Ameline, Ninth Circuit case, remands for 2 jury findings on aggravating factors. Obviously, that's a 3 special verdict. I know anecdotally the District Court in New 4 Jersey that submitted special verdicts to a federal jury in a 5 case involving this group that gets judgments against 6 prosecutors and judges and jurors and everybody else they can 7 think of. Clearly, people are doing it. 8 But I think the Second Circuit has essentially said no 9 to doing it. I am not sure that the indictment clause has been 10 as front and center in the arguments as has been in this case, 11 squarely presenting the indictment was those issues. I don't 12 know how important to this discussion the jurors' time and 13 energy and emotional involvements are. The government is 14 saying, basically, the jury goes through the process, which is 15 not often an easy one of arriving at a verdict. 16 Assuming that there are some convictions, the 17 government then says, now the jury will be told that they must 18 continue the deliberations, or -- and the government suggests 19 there should be additional openings or arguments before the 20 jury. And if that should be the case, why not additional 21 testimony and evidence before the jury? All in the service of 22 essentially what could be a dry run, could be an effort to 23 comes to naught. And the government says cavalierly, we will 24 just simply disregard what it was that the jury did. 25 I can read the indictment as well as the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10791 4CEMSAT8 1 can read the indictment, and I do not see in this indictment an 2 allegation that comports with the particular sentencing 3 enhancements. Whether it is the enhancement that applies to 4 terrorism in terms of a design to affect the conduct of a 5 foreign government, or whether it applies to the enhancement 6 that, for example, the conspiracy charged in Count 1 was 7 undertaken with the conscious or reckless risk of serious 8 bodily injury, that's not -- there is no plain statement that 9 the Count 1 conspiracy was undertaken with that intent. It 10 would be sufficient to find guilt on Count 1 from an unlawful, 11 willful conspiracy to impede or obstruct the administration of 12 the SAMs. And that's an element that's not charged in Count 1. 13 It is not charged in Count 1 in any kind of plain statement of 14 the elements of the offense that Mr. Yousry or others conspired 15 to defraud the government with the specific intent of promoting 16 a federal crime of terrorism. That's not included in the Count 17 1 allegations. And when it comes to Counts 4 and 5, the 18 government concedes that the second prong of the federal 19 terrorism statute is not alleged in the indictment and would 20 have to be found specifically by the jury. 21 With regard to the separation of powers argument, the 22 Court asks, you know, why shouldn't I decide this or why don't 23 I have to decide this? The government says you don't have to. 24 We argue, respectfully, that you have to decide it because we 25 made the argument that it would be unconstitutional to allow SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10792 4CEMSAT8 1 what the government proposes to go forward. So I think that is 2 an argument that the Court must consider and must decide before 3 it issues an order saying, yes, it is okay now to submit 4 special findings to a jury that I think can create aggravated 5 offenses. And I don't know how you can look at a case like 6 Ring against Arizona, not to mention Blakely, and not conclude 7 that what we are talking about is aggravated offenses that 8 nowhere now exist in the Federal Criminal Code. 9 So if the Court has questions, I'll do my best to 10 answer them, but that is our position in outline. 11 THE COURT: The government says that the defendants 12 wouldn't be prejudiced from the submission of the special 13 verdict form. 14 MR. RUHNKE: Except for the time, the effort, and all 15 of that. That's probably correct in the sense that there is no 16 prejudice in doing something that is a waste of time 17 potentially. But we are prejudiced, I believe, by the court 18 allowing an unconstitutional procedure to go forward. And I 19 think your Honor has to decide these issues. The defendants 20 are going to be prejudiced because this assumes a finding of 21 guilty by the additional anxiety that's now associated if the 22 jury finds these enhancements. It is a difference, as I 23 pointed out in Count 1, between six to 12 months guideline 24 range and a guideline range that carries it through the 25 five-year maximum. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10793 4CEMSAT8 1 THE COURT: But that element of anxiety adheres in the 2 fact that Booker and Fan-Fan have not been decided. 3 MR. RUHNKE: We can't do anything about that. We 4 can't hurry the Supreme Court, obviously. 5 THE COURT: What I mean is, without the special 6 verdict, if there were an adverse verdict for a defendant, what 7 the consequences of that would be would be completely up in the 8 air. Whether the Court would have discretion, whether the 9 guidelines apply what to do, that would adhere to the fact that 10 Booker and Fan-Fan have not been decided. 11 MR. RUHNKE: That's in the air right now. There is 12 nothing additional that that brings to bear on the process. It 13 is there, everyone is waiting to see what happens with the 14 decision and whatever it is that's decided. It is another 15 thing to say, okay, we are now going to have additional 16 argument, perhaps evidence, additional instructions to the 17 jury, additional verdict form. They are now going to go out 18 again to deliberate on important matters when we do not think 19 there is a legal basis for allowing that to happen. The 20 government's what is the harm argument, I think it only goes so 21 far if we say, well, that's not the question. The question is 22 what's the harm? If the question is what's the harm, we 23 probably lose. If the question is, is this legal to do this, 24 we probably win and that's my position. 25 MR. TIGAR: Your Honor, may I address just this -- two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10794 4CEMSAT8 1 of these issues. Your Honor asks what's the harm? The harm is 2 that the government proposes to address hypothetical questions 3 to the jury, the propriety of which can only be addressed, if 4 ever, after the Supreme Court had decided Booker and Fan-Fan 5 and only if the Supreme Court decides Booker and Fan-Fan in a 6 particular way. In short, there is no constitutional basis for 7 addressing hypothetical questions to juries, just as there is 8 no constitutional basis for addressing hypothetical questions 9 to courts. Article VI says that the trial of all crimes must 10 be by jury. Article III defines what are cases and 11 controversies. Under the Second Circuit law as it existed 12 prior to 1998, there was the doctrine of hypothetical 13 jurisdiction, that is, the Court can address the merits of the 14 controversy assuming that it had jurisdiction. In Steel 15 Company -- 16 THE COURT: No. I understand the Supreme Court -- 17 MR. TIGAR: Citizens for Better Environment. In 18 short, it violates Article III. There is no jurisdiction to do 19 it and it can't be done. 20 THE COURT: The Second Circuit has said that special 21 verdicts are in the discretion of the trial court. 22 MR. TIGAR: The Second Circuit also said in Mincey 23 that district judges shouldn't do things based on what Booker 24 and Fan-Fan "might portend." 25 THE COURT: I understand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10795 4CEMSAT8 1 MR. TIGAR: That's our position, your Honor, and if 2 the Court can agree or disagree, that's our position. 3 Now, with respect to what's a sufficient allegation in 4 the indictment, at page 122 of our motions as filed in January 5 of 2003, we cited a number of cases on the apprisal 6 requirement. And we didn't go ahead and cite them all again in 7 our papers, but that we did and we did rely on the principle, 8 the old Supreme Court decision in Russell. 9 THE COURT: Either Mr. Ruhnke or Mr. Tigar, the 10 question I asked the government was with respect to the Fifth 11 Amendment. Is there any sort of comparable case? And I, in 12 the sense of attempting to infer the factual elements of a 13 crime or enhancement in which they are not laid out here and 14 the degree of inference, I don't see cases in either side's 15 papers that are quite comparable. 16 MR. RUHNKE: The only case I know of is the Eighth 17 Circuit capital case that I cited, United States against Allen. 18 And as I pointed out, that opinion was vacated and set down for 19 en banc review. That squarely presented that question, whether 20 the federal indictment of that case sufficiently alleged the 21 elements of capital murder, federal capital murder. There is a 22 number of death penalty cases that are kind of in that limbo 23 where arguments were presented pre-Ring that federal 24 indictments had to allege aggravated factors. District courts 25 formally rejected that argument. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10796 4CEMSAT8 1 Then when Ring was decided, there were some of those 2 cases on direct appeal with the government conceding that Ring 3 required the indictment, that the failure to do so would be 4 double jeopardy if the case was remanded. And so the question 5 then came down to, well, did the indictment sufficiently advise 6 the defendants of the elements of aggravated factors under the 7 Federal Death Penalty Act. Allen is the one case that I do 8 know about. And I believe there was a case out of the Fifth 9 Circuit, United States against Hardy Davis that came out of New 10 Orleans, but I am not sure what happened with that case. 11 MR. TIGAR: Your Honor, also, in the very last section 12 of your April 20 opinion, you discussed the significance of the 13 introductory paragraphs to which we had objected. And you 14 described them as introductory and as relevant to counts, which 15 is at war with the idea that they are liability created in 16 terms of the way in which the government now wants them to be 17 construed. 18 I also have a note here that the Second Circuit held 19 in United States v. Nong Van Tran, 234 F.3d 798 at 802 that an 20 indictment charging the violation of 924(c) was insufficient, 21 that it was overruled on other grounds, or by Thomas, 274 F.3d 22 655; also, United States v. Foley, 73 F.3d 484 at 488, 23 indictment charging the offense in which one element is 24 implicit is insufficient because it tracked the language of the 25 statute but failed to allege the implicit element explicitly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10797 4CEMSAT8 1 They were indicated at page 122 of our memorandum as filed on 2 January 10, 2003. 3 MS. BAKER: Your Honor, just in light of your question 4 about which cases address sufficiency in the context of the 5 requisite intent or scienter or mens rea requirement, I think 6 that three of the cases that we cited in our memorandum do 7 address that point, and those are Santeramo, which is a Second 8 Circuit case cited at page 9 of our memorandum, and there the 9 Court was addressing the knowledge element of a section 924(c) 10 charge; and then Garcia-Geronimo, which is a Seventh Circuit 11 case cited on the same page. The issue there was whether there 12 was a sufficient allegation that false alien registration cards 13 were disposed of by the defendant with the state of mind by him 14 that they were true and genuine, and the Court in its analysis 15 of that argument expressly uses the phrase criminal intent and 16 says that the allegation of criminal intent is also necessarily 17 implied from other words in the indictment. And then finally 18 the Haas case, which is a Fifth Circuit case cited at page 10, 19 and the issue there was whether the indictment sufficiently 20 alleged knowledge, and intent without using those words. 21 THE COURT: I'll think about it. 22 There was a motion for reconsideration. Does the 23 government want to respond orally or in writing? You want to 24 do that tomorrow? 25 MS. BAKER: Your Honor, I have looked very quickly at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10798 4CEMSAT8 1 the papers. It is my view, based on looking at them very 2 quickly, that they do not address -- they do not refute the 3 various alternative bases for your Honor's ruling, and we 4 would, therefore, ask your Honor simply to adhere to that 5 ruling. If your Honor wants a more detailed response, I would 6 prefer to do that orally rather than in writing and would ask 7 to do that tomorrow or whatever other time the Court might 8 prefer. But I don't really feel that a response is necessary 9 unless it would assist the Court. 10 THE COURT: I think it would assist me. You can do it 11 tomorrow, if you wish. Based upon what I have -- you can 12 certainly do it orally. It doesn't appear as though 13 Mr. Sattar's testimony is going to be completed tomorrow. 14 MS. BAKER: I believe that that's right. 15 THE COURT: But it is possible that the evidence will 16 be completed by Thursday. 17 MS. BAKER: Yes, your Honor, we think that that is 18 likely. 19 THE COURT: And I would like to tell the jury tomorrow 20 about what the schedule is because I'd like to give the jury at 21 least some time to come back to me and say that the jurors 22 unfortunately made commitments on the 29th or the 30th. I want 23 to tell them where we are, that we expect the evidence -- if 24 the parties agree, that we expect the evidence in the case to 25 be completed soon and that rather than to break up summations SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10799 4CEMSAT8 1 we are going to -- the next stage is summations and then the 2 charge and then they will deliberate. Rather than to break up 3 the summations we are going to start on December the 29th and 4 continue on December the 30th and then resume again on January 5 the 3rd, after we break for the weekend as we always do. 6 MR. TIGAR: Your Honor, with respect to the 7 reconsideration, we are not just trying to make legal points 8 here. We really have suggested that an informal request under 9 article IV of the MLAT could be done. We would suggest that if 10 the AG would do that, whoever is the successor to Mark Richard 11 in Washington in the international side down there, the most 12 logical thing would be for them to do it. I'm talking 13 practicalities here. 14 For us to get on the phone and put Muntasir Al-Zayyat 15 on, who knows something about these issues, and if necessary 16 and if we could get some information, then it would not be out 17 of the question to have a video hookup and get the information, 18 get the job done. I'm suggesting simply that this is not 19 hypothetical for us. We really do care about it. And we are 20 willing, if the Court rules that something has to be done, we 21 are willing to work with the government to accomplish the goal 22 that we have set out. 23 THE COURT: The government can respond to the motion 24 for reconsideration tomorrow. 25 Anything else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10800 4CEMSAT8 1 Good afternoon, all. Thank you for staying. 2 (Adjourned to Wednesday, December 15, 2004 at 9:00 3 a.m.) 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 10801 1 INDEX OF EXAMINATION 2 Examination of: Page 3 AHMED ABDEL SATTAR 4 Cross By Mr. Morvillo: . . . . . . . . . . . 10574 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