30 June 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
Note: Transcripts were not provided between 1 June and 21 June, 2004.
This is the transcript of Day 15 of the proceeding and Day 6 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
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1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3
3 UNITED STATES OF AMERICA,
4
4 v. S1 02 Cr. 395 (JGK)
5
5 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
6 a/k/a "Dr. Ahmed," LYNNE STEWART,
6 and MOHAMMED YOUSRY,
7
7 Defendants.
8
8 ------------------------------x
9
9
10 New York, N.Y.
10 June 30, 2004
11 9:30 a.m.
11
12 Before:
12
13 HON. JOHN G. KOELTL
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14 District Judge
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1 APPEARANCES
1
2 DAVID N. KELLEY
2 United States Attorney for the
3 Southern District of New York
3 ROBIN BAKER
4 CHRISTOPHER MORVILLO
4 ANTHONY BARKOW
5 ANDREW DEMBER
5 Assistant United States Attorneys
6
6 KENNETH A. PAUL
7 BARRY M. FALLICK
7 Attorneys for Defendant Sattar
8
8 MICHAEL TIGAR
9 JILL R. SHELLOW-LAVINE
9 Attorneys for Defendant Stewart
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10 DAVID STERN
11 DAVID A. RUHNKE
11 Attorneys for Defendant Yousry
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all, please be seated.
4 I will discuss the documents with you at the lunch
5 hour or begin to discuss documents with you at the lunch hour
6 in view -- I will discuss the documents with you at the lunch
7 hour in view of the time that we are starting. The immediate
8 question is the issue of the CIPA. The resolution appears to
9 me to be reasonably clear. I obviously can't direct the
10 parties to stipulate to something, but the objection to the
11 last question is withdrawn, so the witness can answer the last
12 question.
13 There is no waiver of any CIPA protection because I
14 don't hear that there is anything that goes beyond what is
15 already in the public record in terms of what I have already
16 done. And there is no objection to my giving an instruction,
17 but I think I would give the instruction in my final
18 instructions because there is no real, as I see it, issue at
19 this point to be instructed on.
20 There is an instruction in Judge Sand's treatise with
21 respect to wiretaps and that could be adapted to the
22 surveillance in this case. And unless something develops in
23 the course of the case to suggest that I should do something
24 differently or more immediately, it appears to me that that
25 would be sufficient.
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1 So at this point when the jury comes out and the
2 witness is on the stand I would say there was a question
3 pending, there was an objection, the objection is withdrawn,
4 the witness may answer the question.
5 MR. TIGAR: That certainly is acceptable to me, your
6 Honor. That is what I had agreed to do. I wish, however, to
7 make clear that if the witness has not seen the order
8 authorizing surveillance, if she hasn't seen it, then she is
9 being asked to talk about things about which she has no
10 personal knowledge. If government counsel continues to ask
11 questions about the content of this order and what it
12 authorizes and where things were going to be and all the rest
13 of it, then I do not regard myself as bound to accept evidence
14 that I believe to be inadmissible because it appears to me, and
15 it has appeared to me before, that this could be a device for
16 trying to keep off the stand witnesses who do have personal
17 knowledge, witnesses who were involved, as to which if they
18 took the stand I would be entitled to Jencks material and I
19 could cross examine.
20 So I agree to stand down. I stand by every word I
21 said. But I am not going to agree about the future.
22 THE COURT: I will listen --
23 MR. TIGAR: If that sounds more hostile than it needed
24 to be I apologize. I am sorry to be cantankerous.
25 THE COURT: I will listen to the government in a
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1 moment, but I would have thought that this is a subject as to
2 which there there really should be no issue because I wouldn't
3 expect many details from the witness, first; and, second, there
4 is no requirement that the details of all of this be spelled
5 out through this witness or through another witness as to whom
6 you say there might be Jencks material. Since this is a matter
7 of law on which I have already passed and, as you point out in
8 your letter, I adverted to it in voir dire and could give an
9 appropriate instruction at an appropriate time to the jury.
10 MR. TIGAR: I didn't wish to be misunderstood, your
11 Honor. Here is the problem: At some point the government is
12 going to try to authenticate the tapes or the results of that
13 surveillance. The content of particular conversations
14 allegedly overheard is a key issue in this case as is
15 illustrated by the opening statements by Mr. Morvillo and
16 myself. Therefore, I can't predict the future, but there will
17 certainly be a discussion about whether the machines that were
18 installed were capable of overhearing, where those microphones
19 were placed, exactly what was done, all at the end of
20 presenting our contention, which I think will have to be done
21 at the end, that the government's version of these
22 conversations is simply wildly inaccurate and prejudicial and
23 that a part of it has to do with the imperfections of the
24 process.
25 That is all I was saying. Some day there will be an
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1 authentication battle here. It won't be with this witness.
2 And at that time maybe that order will become relevant, maybe
3 it won't, but I am just saying I haven't desisted forever from
4 the right to ask for things that might become important to us
5 later on. That is all I was saying, your Honor. I agree with
6 what you are describing about this witness and I thought I said
7 that.
8 I don't see any reason to be marching up that road
9 with this witness because the further they march on direct, the
10 further I am entitled to go on cross.
11 MS. BAKER: Your Honor, as I said yesterday, it would
12 be the government's intention with appropriate witnesses to ask
13 whether there were court orders, the kind of surveillance
14 authorized by the court orders, for example, audio recording,
15 video recording, et cetera, all of which, as your Honor said a
16 few minutes ago, is publicly obvious from everything that has
17 happened in the case up to this point.
18 Separate and apart from those very narrow questions
19 about the court orders, obviously the government needs to offer
20 an appropriate amount of evidence to establish how the
21 surveillance was conducted in order to authenticate it or give
22 the jury a basis for giving it the weight that the government
23 feels it is entitled to because of its accuracy and
24 reliability. And so obviously through appropriate witnesses
25 the government will elicit what the government believes to be
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1 an appropriate quantity of information, and I understand that
2 Mr. Tigar has differing views and he may seek to go further on
3 cross, but we will need to elicit an appropriate amount of
4 information about technologically how the surveillance was
5 conducted. For example, just taking the telephone calls as an
6 example, describe what the equipment was that was used and how
7 it operated. And your Honor has reviewed the orders.
8 THE COURT: Yes, but there are two issues and they are
9 appropriately kept separate. One is a very narrow question as
10 to whether there was a court order authorizing audio and/or
11 visual surveillance, period. Because presumably this witness
12 or another witness wouldn't allow something to be done in the
13 absence of an order. And that is a question and, as I
14 understand it, the objection to that was withdrawn and that is
15 apparently the end of that line on that subject and there would
16 be an appropriate instruction with respect to surveillance in
17 the final instruction.
18 There is a separate issue, which in my mind is not
19 elicited with questions, the gist of which are whether the
20 specific kind of placement of microphones is something that was
21 court ordered in order for bootstrapping or anything like that,
22 that this is okay because the court told us place the
23 microphones here, place the cameras there. Those issues go to
24 the other issue about are these fair and accurate recordings,
25 did they accurately pick up what was there, and that is argued
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1 out irrespective of the fact that this was court ordered
2 surveillance. And that is what I understand the two issues are
3 and I believe that they are separate.
4 MS. BAKER: Your Honor, we absolutely agree. That was
5 the very point that I was trying to make. But I stood to make
6 it because Mr. Tigar's last remarks suggested to me that he
7 does not view those as two separate issues and that once we ask
8 the witnesses something about technologically how the
9 surveillance was conducted, that he was going to use that at
10 every opportunity to renew his request that the orders be
11 disclosed to him.
12 So your Honor has made my very point. But I just need
13 to take it one little step further, because the two points get
14 a little closer together, although we respectfully submit still
15 remain separate, with respect to the recording of the telephone
16 conversations, so I just want to make the court aware by
17 proffering a little piece of the testimony that is going to
18 come regarding the recording of the telephone calls.
19 THE COURT: From this witness?
20 MS. BAKER: No. And so if your Honor wants me to
21 wait, I will. But it relates to what Mr. Tigar was just
22 arguing.
23 THE COURT: Well, as long as you raised it we might as
24 well hear it so at least I can think about it.
25 MS. BAKER: For the recording of the telephone calls,
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1 as your Honor knows from papers we have already submitted, the
2 FBI used systems that once programmed to monitor a particular
3 telephone line recorded all calls on that telephone line. And
4 so the way I expect this testimony to come from the witnesses
5 about that is that upon receipt of a court order a person with
6 the right skills and systems access, and so on, programs the
7 system to monitor the telephone numbers specified in the court
8 order for the time period specified in the court order and then
9 the system does its automatic recording. And so, again, we
10 submit that still those are two separate issues and we have not
11 disclosed anything that would require the court order to be
12 declassified and disclosed, but I did want to proffer that
13 testimony to your Honor.
14 THE COURT: All right.
15 MR. TIGAR: I don't know how the prosecutors could
16 know what I intend to do about matters that have not yet
17 occurred, but I will let that pass. Whether or not the issues
18 are separate, I hope that they will be. Whether they are or
19 not and whether I do get the right to keep moving for what I
20 dearly would like to see -- that order -- is going to depend on
21 what doors get opened. After all, I do disagree a little bit
22 with your Honor because under CIPA only the United States can
23 object on grounds of classification under the statute. Now, to
24 me that doesn't just give them a right to object under CIPA
25 Section 6, but I would say it gives them an obligation.
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1 Now, if that is all there is I withdraw my objection.
2 I am entitled to take advantage of doors opened by my adversary
3 and so whether they are opened or not, I don't know. Other
4 than that I can't say anything.
5 THE COURT: All right.
6 So far I haven't heard any disagreement to the basic
7 structure that I set out, which is a reasonable way to proceed
8 with this witness and it should be a reasonable way of
9 proceeding when we get to the more technical witnesses on
10 recording. And it does seem to me that the real objection is
11 bootstrapping on the basis of court order rather than the
12 laying out here is what happened and here is why this was
13 reliable, authentic, et cetera.
14 MR. TIGAR: Well, I am sorry to get up, your Honor,
15 but I respectfully suggest there is more than that. We would
16 not object to an instruction at the end, look, the court has
17 determined this is legal. Its weight, if any, is for the jury.
18 That basically is what that would say. But what happens here
19 is a court order, court order, court order gets mentioned and
20 for many jurors this is the only place they have been in. They
21 think a court is a place where one side gets to talk and
22 another side gets to talk.
23 The FISA court is not a court. It doesn't have any of
24 the Article III characteristics. It was a compromise made by
25 Congress for foreign intelligence. We have three United States
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1 citizens on trial here, your Honor, and the continued
2 invocation of some idea of a court is, I think, tactically --
3 and I know what they are doing and I think it's wrong and I
4 suggest that what the Supreme Court said the other day may
5 cause us to count the days for some compromises like that with
6 Article III sufficient under the procedural hour as that
7 argument. But that, your Honor, is what lies at the bottom of
8 this. And I agreed to withdraw my objection but I am saying
9 that that I do think is also an issue that is going to come up
10 and if it does, then I will argue to you.
11 MS. BAKER: Your Honor, first of all, the FISA court
12 is comprised of Article III judges and, second of all, whatever
13 criticisms they might have of the FISA court your Honor, an
14 Article III judge, has refused the FISA court determinations
15 and pronounced them legally appropriate for purposes of this
16 case and the government respectfully submits that therefore
17 it's appropriate for the government when necessary to convey
18 what was done and why. It's not going to happen often. It's
19 not something we seek to elicit from every witness. It's being
20 elicited from this witness because she was involved to a degree
21 in the setting up of the technology for the conduct of the
22 surveillance of the prison visits.
23 Similarly, the witnesses regarding the recording of
24 the telephone calls, it's relevant to their testimony for the
25 reason that I proffered to your Honor a few minutes ago. And
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1 so in those limited circumstances the government respectfully
2 submits that the limited questions and answers we have
3 discussed should be appropriate.
4 THE COURT: All right.
5 There is a limited question and answer. There is a
6 limited question as to which the objection is withdrawn and
7 that limited question the witness can answer. If the same
8 question is needed for another surveillance, simply was there a
9 court order or did you have a court order or whatever the
10 question was for the existence of the surveillance, I assume
11 that there would be no objection to that question and that
12 answer.
13 The problem is going further you have brought to my
14 attention one additional issue that may come up with another
15 witness and I listened to any argument on that. It does seem
16 to me that there is a reasonable limit on there was a court
17 order and we conducted surveillance without going further. And
18 the surveillance was subject to an appropriate instruction that
19 all parties agree upon in my final instructions, and that
20 really should be it.
21 MS. BAKER: Your Honor, of course we will proceed that
22 way. I am not asking for anything further at this time except
23 I would qualify that by saying I would ask that if Mr. Tigar
24 comes to believe at some point that the line of questioning has
25 gone too far, we would ask that in the presence of the jury
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1 that he simply object and not call for disclosure of the court
2 order in the presence of the jury as he did yesterday.
3 THE COURT: Yes, I agree with that. I paused on the
4 question whether I should tell the jury this morning that the
5 objection is withdrawn or whether I should tell the jury that
6 the objection is stricken. And the reason for that was knowing
7 that on reflection that the order was something that I had
8 previously passed on and that was classified, it raised at
9 least an issue in my mind, but I was prepared to say it's
10 sufficient that the objection be withdrawn. But I think that
11 that is a comment that shou be made before the jury. So,
12 please, an objection is sufficient.
13 MR. TIGAR: I will, of course, abide by that order.
14 A clarification. I thought I heard Mr. Baker say that
15 this witness that is now on the stand was responsible for
16 making the arrangements about the surveillance. I trust that
17 if that is so, that there will be no more questions that have
18 words like court order in them, she will just describe what she
19 did.
20 THE COURT: Mr. Baker.
21 MR. DEMBER: Your Honor, I am looking at yesterday's
22 transcript just to make sure whether she answered that question
23 or not.
24 MS. BAKER: Assuming that the question of whether
25 there was a court order was answered, we believe that that
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1 would be sufficient. That is what we are trying to confirm.
2 MR. TIGAR: It's reproduced in Ms. Baker's letter.
3 MR. DEMBER: I am looking at the transcript.
4 MR. TIGAR: I would just check her letter.
5 THE COURT: It ends with the objection.
6 MS. BAKER: Right. The purpose of the last question,
7 which was:
8 "Q. And do you recall if the order indicated how the
9 monitoring could be done? Was it simply visual monitoring?"
10 The point of that question was we expect the witness
11 would say that what was authorized was video monitoring and
12 that would be the extent of the testimony that related to the
13 court order in any way and then the questions would move on to
14 what this witness knows about how that was actually set up or
15 carried out.
16 So we would ask that that last question be permitted
17 to be answered.
18 (Continued on next page)
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1 THE COURT: Everything else would be without reference
2 to the court order.
3 MR. DEMBER: Correct, your Honor.
4 THE COURT: I will tell the witness that there was a
5 pending objection to a question. The objection is withdrawn.
6 The question can be replaced.
7 Take two minutes, talk to the witness, advise the
8 witness about the question and the answer.
9 MR. DEMBER: I will do that, your Honor.
10 (Recess)
11 THE COURT: I gave all of you a copy of the letter
12 that I plan to give to the juror, if that's satisfactory to
13 everyone.
14 MS. BAKER: It is to the government, your Honor.
15 MR. PAUL: Fine.
16 MR. RUHNKE: Yes.
17 THE COURT: I'll give that to Mr. Fletcher to give to
18 the juror after the lunch hour, and if the government could put
19 the witness back on the stand and we will call in the jury.
20 (Jury present)
21 THE COURT: Good morning, ladies and gentlemen. It is
22 good to see you all.
23 As I have explained to you before, sometimes there is
24 a delay in bringing you out because what I try to do is I try
25 to deal with legal issues before you come out into the jury
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1 box, and I deal with them at breaks and at lunch hours and at
2 the end of the day so that I try very hard while you're in the
3 jury box that you're not interrupted with legal conferences and
4 the like. And sometimes that takes a little longer than I
5 would like, but it is no one's fault. And, obviously, you
6 shouldn't draw any inferences or hold it against anyone.
7 That's all my doing, dealing with questions of law. And so I
8 very much appreciate your indulgence if there seems to be a
9 delay in bringing you out at any time.
10 Now, the witness is on the stand.
11 Mr. Fletcher.
12 THE DEPUTY CLERK: Ms. Christenson, you're reminded
13 you're still under oath.
14 THE WITNESS: Yes.
15 THE COURT: Where we were yesterday, ladies and
16 gentlemen, there was a question, there was an objection, the
17 objection is withdrawn, and so the question can be reposed and
18 answered.
19 Mr. Barkow, you may proceed.
20 KARA CHRISTENSON, resumed.
21 DIRECT EXAMINATION (cont'd)
22 BY MR. DEMBER:
23 Q. Ms. Christenson, yesterday we left off discussing an order
24 and the authorization of the FBI to monitor visits between
25 Mr. Abdel Rahman and his attorneys. Do you recall that?
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46UMSAT2 Christenson - direct
1 A. Yes, I do.
2 Q. And did you see that order?
3 A. Yes, I did.
4 Q. And in what way was the FBI authorized to monitor those
5 conversations between Mr. Rahman and his lawyers?
6 A. Through visual and audio means.
7 Q. Now, at any point in time did the FBI agents come to your
8 offices after you received that order?
9 A. Yes.
10 Q. And can you tell us, just from the way the Federal Medical
11 Center at Rochester is set up, where your office is located in
12 relationship to other buildings at the facility?
13 A. When you come in the front entrance building of the prison,
14 the building that we are located in is the first one to your
15 right of that front entrance building. It would be the first
16 building you would encounter when you come into the
17 institution. Our office is in the basement of that building.
18 Q. How many buildings are there at the institution?
19 A. Approximately seven.
20 Q. And are your offices where the legal department is located?
21 A. Correct.
22 Q. And at some point did the FBI come to your offices with
23 equipment?
24 A. Yes.
25 Q. And did they install that equipment?
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46UMSAT2 Christenson - direct
1 A. They did.
2 Q. Where did they install that equipment?
3 A. Some equipment was in my office, some equipment was in the
4 conference room across the hallway.
5 Q. Was that the associate warden's conference room that you
6 referred to yesterday?
7 A. Yes.
8 Q. Where is that in relationship to your office?
9 A. Right across the hall.
10 Q. Did you see the kind of equipment that the FBI placed in
11 your office?
12 A. Yes.
13 Q. And in general terms, what kind of equipment was that?
14 A. It appeared to be a TV screen, monitoring screen, and a
15 headset.
16 Q. And did you see those agents install any equipment in the
17 associate warden's conference room?
18 A. Yes.
19 Q. And could you tell what kind of equipment that was, in
20 general terms?
21 A. I can't tell you specifically what it was. It appeared to
22 be monitoring equipment.
23 Q. And did you see where they placed that monitoring equipment
24 in the conference room?
25 A. Yes.
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46UMSAT2 Christenson - direct
1 Q. Where did they place it?
2 A. In the ceiling.
3 Q. Now, did the FBI just come once to install such equipment,
4 or was it on more than one occasion?
5 A. It was on more than one occasion.
6 Q. And did they bring the same type of equipment each time?
7 A. Yes.
8 Q. And did they install that equipment in the same place as
9 you just described for us each time?
10 A. Yes.
11 Q. By the way, do you have any recollection as to the first
12 time that they came, as to when that was?
13 A. I don't specifically.
14 Q. Once that first time that occurred where the equipment was
15 installed, were all of Mr. Abdel Rahman's visits with his
16 attorneys in the associate warden's conference room?
17 A. Yes, they were.
18 MR. DEMBER: Your Honor, may I approach the witness?
19 THE COURT: Yes.
20 Q. Ms. Christenson, I have just placed before you, I believe
21 it is seven photographs which are marked for identification as
22 Government's Exhibits 360 through 366, is that correct?
23 A. Yes.
24 Q. First of all, are those photographs?
25 A. Yes.
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46UMSAT2 Christenson - direct
1 Q. Do you recognize them?
2 A. I do.
3 Q. Do you know who took those photographs?
4 A. I do.
5 Q. Who took them?
6 A. I did.
7 Q. Do you remember when you took them?
8 A. I do.
9 Q. And when is that?
10 A. June 16.
11 Q. Of this year?
12 A. Of this year.
13 Q. And can you tell us in general terms what is depicted in
14 each of those photographs?
15 A. It is various views and angles of that associate warden's
16 conference room.
17 Q. Is that where the meetings between Mr. Abdel Rahman and his
18 attorneys occurred?
19 A. Yes.
20 Q. That were monitored?
21 A. Yes.
22 Q. Are these photographs fair and accurate representations of
23 how the room itself appeared -- withdrawn. Let me ask one
24 other question.
25 When Mr. Abdel Rahman had visits with his attorneys,
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46UMSAT2 Christenson - direct
1 was there any furniture added to the associate warden's
2 conference room for purposes of those visits?
3 A. Yes.
4 Q. And what piece of furniture was that?
5 A. A round table was brought in.
6 THE COURT: I'm sorry.
7 Could you repeat your answer and bring the microphone
8 towards you and make sure to enunciate so that everyone can
9 hear you. Thank you.
10 A. A round table was brought into the conference room.
11 THE COURT: A round table?
12 THE WITNESS: Yes, a round table.
13 Q. What was the purpose of bringing the round table into the
14 conference room?
15 A. I don't remember specifically what the purpose was.
16 Q. Do you remember where that round table was placed in the
17 conference room?
18 A. Yes.
19 Q. Where was it placed?
20 A. Right near one of the windows.
21 Q. How many windows are there leading into the conference
22 room?
23 A. One window by each entrance. There are two entrances into
24 that conference room.
25 Q. There are two windows?
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46UMSAT2 Christenson - direct
1 A. I believe so.
2 Q. And does that round table appear in any of the photographs
3 you have before you?
4 A. It does not.
5 Q. And other than the fact that the round table that you just
6 described for us does not appear in these photographs, do these
7 photographs fairly and accurately represent the way the room
8 appeared when the FBI installed the equipment in the room?
9 A. Yes.
10 MR. DEMBER: Your Honor, the government offers
11 Exhibits 360 through 366 in evidence. They have been provided
12 to defense counsel previously.
13 MR. TIGAR: May I inquire, your Honor?
14 THE COURT: Yes.
15 MR. TIGAR: Thank you.
16 VOIR DIRE EXAMINATION
17 BY MR. TIGAR:
18 Q. Ms. Christenson, a clarification. When the legal visits
19 took place, were the square or rectangular tables that are in
20 these pictures that you took moved out of the way?
21 A. Yes. They were pushed back.
22 Q. So that when we look at these pictures and if we want to
23 have a mental image of what it was like during the legal
24 visits, we would think of those tables being pushed over to one
25 side and that round table where you have told us it is, right?
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46UMSAT2 Christenson - direct
1 A. Correct.
2 MR. TIGAR: Thank you very much, your Honor. With
3 that understanding, we have no objection to the admission of
4 these photographs.
5 THE COURT: Government Exhibits 360 through 366
6 received in evidence.
7 (Government's Exhibits 360-366 received in evidence)
8 MR. DEMBER: Your Honor, may we display Exhibit 360,
9 please?
10 THE COURT: Yes.
11 MR. DEMBER: To everyone.
12 It does not appear to be on the big screen.
13 MS. BAKER: Your Honor, we may be having a technical
14 problem with the projector.
15 MR. DEMBER: I think it is sufficient, your Honor. I
16 think if the jury has it in front of them on their screens, we
17 can proceed.
18 THE COURT: All right.
19 Ladies and gentlemen, you will have to look at the
20 smaller screens for these photos.
21 BY MR. DEMBER:
22 Q. Ms. Christenson, let me first ask you, do you have that
23 exhibit in front of you on the screen?
24 A. Yes, I do.
25 Q. That appears to be a black and white version of the
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1 photograph, is that correct?
2 A. That's correct.
3 Q. Are all the photographs which are Exhibits 360 to 366 in
4 color?
5 A. Yes, they are in color.
6 Q. Can you tell us what is depicted in this photograph?
7 A. It is the inside of the associate warden's conference room.
8 Q. And do you see in this particular photograph the location
9 where that round table was placed?
10 A. Yes.
11 Q. I am going to ask you, through the marvels of modern
12 technology, with your finger --
13 THE COURT: Hold on one moment. The picture is now up
14 on the large screen also.
15 MR. DEMBER: Thank you, your Honor.
16 Q. If you would touch the lower left-hand corner of the
17 monitor. Could you draw with your finger the location of where
18 that round table was, using a circle to represent the table?
19 Was it that big, actually?
20 A. Not that big.
21 Q. I think on the right-hand side of the screen there is a
22 word erase. Why don't you erase that. To the best of your
23 ability, as accurately as you can try to draw essentially to
24 scale if you can or as close to scale the table. Is that where
25 it was?
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1 A. Right about that area.
2 Q. You see there is two long tables depicted in the
3 photograph?
4 A. Yes.
5 Q. And were those tables moved or pushed to the side out of
6 the way?
7 A. Yes, they were.
8 Q. And would you tell us, to your best estimate, the closest
9 edge of the round table, how far was that from the ledge on the
10 window that we are looking at in the photograph, would you say?
11 A. About a foot, 18 inches, maybe.
12 Q. And by the way, there is the window, obviously, there in
13 the photograph and next to it the door, correct?
14 A. Correct.
15 Q. If you look through the window, there appear to be offices
16 on the other side of the hallway, is that correct?
17 A. That's correct.
18 Q. And what's on the other side of that hallway, what offices?
19 A. The legal department offices.
20 Q. Now, just using this photograph for the moment, do you see
21 where -- withdrawn.
22 Is there shown in this photograph a location where you
23 saw the FBI agents installing equipment in the ceiling of the
24 conference room?
25 A. Draw a circle around the area?
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1 Q. Would you do that for us, please?
2 A. Yes.
3 MR. DEMBER: Can we have displayed for the jury and
4 for everybody, actually, Exhibit 361, please.
5 Your Honor, may we display 361?
6 THE COURT: Yes.
7 Q. By the way, Ms. Christenson, would you push that erase
8 button --
9 THE COURT: If anyone wanted to try to make a copy or
10 photo of where the circles were, we could look at that. If I
11 don't hear an objection --
12 MR. TIGAR: No, your Honor. I think we know the
13 technology can do it. I did have a question. The photographs
14 are in color, but they are being displayed in black and white.
15 Is that a technological problem?
16 MR. DEMBER: It appears to be, your Honor, yes.
17 Q. Could you push the erase button again so we could eliminate
18 those two circles.
19 Would you tell us, what is shown in this photograph?
20 A. It shows the associate warden's conference room from the
21 hallway looking in through the window.
22 Q. Was that the same window that was shown in the first
23 photograph?
24 A. Yes.
25 Q. That's just a photograph taken from the hallway itself?
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1 A. Correct.
2 MR. DEMBER: Can we display Exhibit 362 for the jury,
3 please?
4 THE COURT: All right.
5 Q. Is that another version of the photograph taken from that
6 same window from the hallway?
7 A. Yes, it is.
8 MR. DEMBER: May we display 363, your Honor?
9 THE COURT: Yes.
10 Q. Again, that's a photograph of the conference room, Ms.
11 Christenson?
12 A. Yes, it is.
13 Q. Now, the window that was shown in the first exhibit, 360,
14 which one of those two windows is shown in this photograph --
15 where is that window shown in this photograph?
16 A. It is the window farthest to the right. Do you want me to
17 point?
18 Q. Why don't you point to it, first of all.
19 A. Right there.
20 Q. And could you again, using blue ink, I guess, this time, to
21 the best of your ability, show us the location of where that
22 table was placed.
23 A. Right in this area.
24 Q. Could you show us again where you saw the equipment placed
25 in the ceiling of that room?
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1 A. Right in that area.
2 MR. DEMBER: Unless anyone wants to --
3 Q. Why don't you press the erase button there.
4 MR. DEMBER: May we display to the jury Exhibit 364,
5 your Honor?
6 THE COURT: Yes.
7 Q. That's essentially another version of the same shot, is
8 that correct?
9 A. That's correct.
10 MR. DEMBER: May we display Exhibit 365 to the jury,
11 your Honor?
12 THE COURT: Yes.
13 Q. And what's depicted in this photograph?
14 A. The ceiling of that conference room.
15 Q. Is that the section of the ceiling that you were circling
16 in the other two photographs?
17 A. Yes, it is.
18 MR. DEMBER: May we display Exhibit 366, your Honor?
19 THE COURT: Yes.
20 Q. That's just a long shot of the room again?
21 A. Correct.
22 Q. The full length?
23 A. Yes.
24 MR. DEMBER: We can take the photograph down, please.
25 Your Honor, may I approach the witness again?
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1 THE COURT: Yes.
2 Q. Ms. Christenson, I've just handed up to you documents which
3 have been marked for identification as Government Exhibits 319
4 through 329.
5 A. Yes.
6 Q. Are you familiar with those documents?
7 A. Yes, I am.
8 Q. And how do you recognize those documents?
9 A. They were drafted for the warden's signature out of the
10 legal department.
11 Q. And are those documents kept in the normal course of your
12 business at the Bureau of Prisons?
13 A. Yes, they are.
14 Q. As part of your responsibility to maintain those records?
15 A. Yes, it is.
16 MR. DEMBER: Your Honor, the government offers
17 Exhibits 319 through 329 into evidence.
18 MR. TIGAR: May I have just a moment, your Honor, to
19 flip through these?
20 THE COURT: Sure.
21 MR. TIGAR: Thank you.
22 No objection.
23 THE COURT: Government Exhibits 319 through 329
24 received in evidence.
25 (Government's Exhibits 319-329 received in evidence)
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1 Q. Ms. Christenson, would you tell us what these documents
2 are?
3 A. They are the notification of the SAM to Mr. Abdel Rahman.
4 Q. And did you have any responsibility in terms of preparing
5 these documents?
6 A. Yes.
7 Q. And what did you do with these documents?
8 A. I drafted them each time we received a copy of the
9 extension of the SAM.
10 Q. And where would you draft them from?
11 A. From my office.
12 Q. How would you know to draft them?
13 A. Pardon me?
14 Q. How would you know to draft them?
15 A. We would receive by fax a copy of the SAM extension from
16 our central office, typically.
17 Q. And where is that central office?
18 A. In Washington, D.C.
19 Q. Is that part of the Bureau of Prisons?
20 A. Yes.
21 Q. And when you drafted them what would you do with them once
22 you drafted them?
23 A. Pardon me?
24 Q. Withdrawn.
25 What would you do to draft them?
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1 A. I would pull up the file on my computer, insert the
2 appropriate information as far as the extension dates, and
3 route it to the warden for his signature or her signature.
4 Q. And these SAMs pertain to whom?
5 A. Mr. Abdel Rahman.
6 Q. And was Mr. Abdel Rahman advised of the SAMs?
7 A. Yes, he was.
8 Q. And do you know how he was advised of the SAMs?
9 A. Yes, I do.
10 Q. How was he advised of the SAMs?
11 A. They were read to him.
12 Q. Now, were they always read to him with a translator?
13 A. Not always.
14 Q. Was a translator used on occasion?
15 A. On occasion, yes.
16 Q. When it wasn't used with a translator, were they just read
17 to him in English?
18 A. Correct.
19 Q. What would determine whether or not a translator was used?
20 A. It was based on the availability of the translator.
21 Q. Did the Federal Medical Center at Rochester have any
22 translators on staff?
23 A. No.
24 Q. Did you have any Arabic-speaking correction officer or
25 guards on staff?
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1 A. No.
2 Q. Did you have any other members of your staff who spoke
3 Arabic?
4 A. One staff member who spoke very broken Arabic.
5 Q. Was that person fluent in Arabic?
6 A. Not at all.
7 Q. And did the facility have to rely upon outside persons to
8 help do the translations?
9 A. Yes, we did.
10 Q. Now, on occasion were the reading of the SAMs to Mr. Abdel
11 Rahman recorded in any fashion?
12 A. Yes, they were.
13 Q. How was that done?
14 A. Via a video recorder.
15 Q. Were they videotaped?
16 A. Yes, they were.
17 Q. Were they always videotaped?
18 A. Not always.
19 Q. Was there a requirement anywhere in the SAMs to videotape?
20 A. No.
21 Q. To your knowledge, were there any requirements in the
22 rules, regulations or law that required the facility to
23 videotape giving of the SAMs to Mr. Abdel Rahman?
24 A. Not to my knowledge.
25 MR. DEMBER: Your Honor, may we display Exhibit 321
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1 for the jury?
2 THE COURT: Yes.
3 Q. Ms. Christenson, do you have a copy of that in front of
4 you?
5 A. Yes, I do.
6 Q. Is this a typical version of the SAMs that you would
7 prepare?
8 A. Yes, it is.
9 Q. And would you tell us the date on this particular version
10 of the SAMs?
11 A. It is dated April 7, 2000.
12 Q. And who is essentially issuing these SAMs in the video?
13 A. The warden of the facility, Constance Reese at the time.
14 Q. Would you turn to the back page, the last page.
15 MR. DEMBER: May we turn to the last page of the
16 document, please, which is the fourth page.
17 Q. Is there an indication on the final page of the document,
18 SAMs, as to whether or not this particular version was
19 translated for Mr. Abdel Rahman?
20 A. Yes, there is.
21 Q. And were they translated?
22 A. Yes, it was.
23 Q. Is this a typical version of the SAMs that were prepared
24 for him?
25 A. Yes, it is.
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1 Q. By you?
2 A. Yes.
3 MR. DEMBER: Your Honor, may we display Exhibit 329
4 for the jury, please?
5 THE COURT: Yes.
6 Q. Do you have that in front of you, Ms. Christenson?
7 A. Yes, I do.
8 Q. Would you tell us the date on that version of the Special
9 Administrative Measures?
10 A. This is dated April 6, 2001.
11 Q. And who were they issued by?
12 A. The warden.
13 Q. The warden?
14 A. Yes.
15 Q. Was it Warden Reese also on that date?
16 A. Yes.
17 MR. DEMBER: Can we display the last page of this
18 exhibit, please.
19 Q. Is there any indication on the last page as to whether or
20 not the Special Administrative Measures were translated for
21 Mr. Abdel Rahman on that day?
22 A. Yes, there is.
23 Q. And was it?
24 A. Yes, it was.
25 MR. DEMBER: May I approach the witness, your Honor?
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1 THE COURT: Yes.
2 Q. Ms. Christenson, I have placed before you an exhibit that
3 has been marked for identification as Government Exhibit 370.
4 Are you familiar with that exhibit?
5 A. Yes, I am.
6 Q. And how are you familiar with it?
7 A. It is a video recording of the reading of one of the SAM
8 extensions to Mr. Abdel Rahman. It is maintained in my office.
9 Q. Did you maintain the various videotapes that were made of
10 the SAMs being read to Abdel Rahman?
11 A. Yes.
12 Q. And is this a copy of one of those recordings?
13 A. Yes, it is.
14 Q. Who prepared the copy?
15 A. I did.
16 Q. And from your review of it, is it a fair and accurate
17 representation of the SAMs being given to Mr. Rahman on the
18 date, April 19, 2000?
19 A. Yes, it is.
20 MR. DEMBER: Your Honor. The government offers into
21 evidence Exhibit 370.
22 MR. TIGAR: No objection, your Honor.
23 THE COURT: Government Exhibit 370 received in
24 evidence.
25 (Government's Exhibit 370 received in evidence)
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1 Q. Ms. Christenson, I believe you told us that you have worked
2 at the Rochester facility for over 12 years, is that correct?
3 A. That's correct.
4 Q. And other than Mr. Abdel Rahman, has there ever been an
5 inmate at the Federal Medical Center at Rochester who was under
6 SAMs restrictions?
7 A. No, there was not.
8 Q. Is he the only one?
9 A. He is the only one.
10 MR. DEMBER: May I have a moment, your Honor?
11 THE COURT: Yes.
12 MR. DEMBER: Your Honor, I have no further questions
13 at this time.
14 THE COURT: Mr. Tigar, you may examine.
15 MR. TIGAR: Thank you, your Honor.
16 CROSS-EXAMINATION
17 BY MR. TIGAR:
18 Q. Ms. Christenson, what is your educational background?
19 A. I have an associate's degree in legal administrative work.
20 Q. And have you been a paralegal all your professional life?
21 A. I'm not a paralegal. I'm a legal instruments examiner.
22 Q. I'm sorry, a what?
23 A. A legal instruments examiner.
24 Q. Legal instruments examiner.
25 Would you tell me, please, what do you do as a legal
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1 instruments examiner there at the prison? Is it like a
2 paralegal, or what?
3 A. In some aspects. We do have paralegals in our office as
4 well. I assist in gathering documents, help prepare responses
5 to litigation, administrative tort claims, and FOIA requests by
6 inmates to the warden or our staff.
7 Q. Now, FOIA requests, that's the Freedom of Information Act,
8 right?
9 A. Correct.
10 Q. And can inmates write letters to the warden and ask that
11 certain records be produced to them?
12 A. That would not be a properly filed FOIA request. They
13 would have to send their FOIA requests to our central office in
14 Washington, D.C.
15 Q. And your central office is the Bureau of Prisons, right?
16 A. Correct.
17 Q. And during all the time we are talking about here, the head
18 of the Bureau of Prisons of was Kathleen Hawke or Kathleen
19 Hawke Sawyer, right?
20 A. Correct.
21 Q. Now, at your facility how many inmates do you have?
22 A. Approximately 800, 820.
23 Q. And are they housed in single cells or double cells?
24 A. There is various housing assignments.
25 Q. I want to ask you some questions to get an idea of the
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1 conditions, the way that Sheikh Abdul Rahman was living in your
2 facility, all right?
3 A. Okay.
4 Q. He arrived there at about what date, did you say?
5 A. It was January or February of 1998. I don't remember the
6 specific date.
7 Q. And do you get a lot of people in your facility who have
8 been transferred in there from other federal medical facilities
9 for various reasons?
10 A. Yes.
11 Q. And do you have the idea that your place has better medical
12 care for some kinds of medical and mental conditions than other
13 facilities?
14 A. Not at all.
15 Q. Now, some of the people in your facility are there because
16 they have what we would call physical medical problems, right?
17 A. Sure.
18 Q. And others are there because they have what you would call
19 mental medical problems, right?
20 A. Sure.
21 Q. And, in fact, over the years you have been there you have
22 had quite a number of, shall we say, high-profile, well-known
23 inmates, correct?
24 A. We have had some, yes.
25 Q. If I were to come to your facility -- we have never met,
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1 have we?
2 A. No, we have not.
3 Q. Not that I remember.
4 But if I come to your facility, you are in Rochester,
5 Minnesota, correct?
6 A. Correct.
7 Q. Is that south of Minneapolis?
8 A. Yes, it is.
9 Q. If I were a lawyer coming to visit, I would park my car and
10 I would go through to the administrative desk, correct?
11 A. Correct.
12 Q. And I would fill out one of those forms like we saw
13 yesterday, that's a standard form that everybody has to fill
14 out if they want to get into a federal prison, correct?
15 A. Correct.
16 Q. And that form, this is one very much like is used in every
17 federal prison you have ever known about, right?
18 A. Yes.
19 Q. In addition to that, if I'm a lawyer and I want to see
20 somebody, there was another little slip of paper that a lawyer
21 has to fill out, say, if I'm going on a legal visit, correct?
22 A. Yes.
23 (Continued on next page)
24
25
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1 Q. Now, what is the purpose -- in your office, what is the
2 difference between a regular visit and a legal visit?
3 A. A regular visit would be with a family member or a friend
4 and a legal visit would be with an attorney or his designated
5 representative.
6 Q. Now, did Sheikh Abdel Rahman during the time you were there
7 have any visits from anybody other than lawyers and people that
8 were with them?
9 A. He had a visit from his family.
10 Q. Was that a contact visit?
11 A. I don't remember.
12 Q. When you say contact visit, in Bureau of Prisons' talk that
13 means that there is no glass separating the inmate from the
14 people, correct?
15 A. Right.
16 Q. Now, if I were the lawyer coming to visit, I wouldn't go
17 visit him in his cell, would I?
18 A. No, you would not.
19 Q. I would be in one of those rooms that we saw the pictures
20 of, correct?
21 A. Correct.
22 Q. Now, he was in a cell all by himself, right?
23 A. Yes.
24 Q. About how big was that cell that he was in?
25 A. I don't know what the room dimensions were.
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1 Q. Well, let's --
2 A. It was a fairly good size.
3 Q. Well, you have seen it, correct?
4 A. Yes.
5 Q. Okay.
6 And it had a bed in it?
7 A. Yes.
8 Q. A single bed?
9 A. Yes.
10 Q. Did it have a shower? Or did he have to leave to take a
11 shower?
12 A. There was no shower in there.
13 Q. There is a toilet?
14 A. Yes.
15 Q. Is the toilet in a separate room or not?
16 A. It's all in the same room.
17 Q. And was there a table and chair?
18 A. Yes.
19 Q. Now, did you ever observe him in his daily prayers?
20 A. No.
21 Q. But there was a log book kept, was there not?
22 A. Yes.
23 Q. And you said he is the only person there as to whom you
24 kept a log book?
25 A. Yes.
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1 Q. Now, who decided, if you know, that a log book would be
2 kept as to him and not as to anybody else?
3 A. I don't know who made the decision.
4 Q. And what were your instructions about what you did with
5 this log book?
6 A. The instructions were that anybody that entered his cell
7 for whatever reason needed to sign in and state the reason that
8 they were there.
9 Q. And then after the log book was filled up you would keep
10 it, correct?
11 A. Correct.
12 Q. Were you given any instructions about how long you should
13 keep it or why?
14 A. No.
15 Q. Now, in this cell -- if you were going to go see him if you
16 were a guard, you would first go into something called a sally
17 port?
18 A. Correct.
19 Q. And that is an area that is separate from the hallway or
20 whatever, but not yet in the cell, correct?
21 A. That is correct.
22 Q. Now, before you went into the sally port, if you were a
23 guard just passing by, could you look directly into the cell?
24 A. Yes, I believe you could. Yes, you could.
25 Q. And once you were inside you could also look directly in,
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1 right?
2 A. Correct.
3 Q. As an inmate, you knew he was there for a life sentence,
4 correct?
5 A. Yes.
6 Q. And in terms of contact with the outside world, he had a
7 right -- all inmates there have a right to send letters to
8 certain people that are approved, correct?
9 A. Correct.
10 Q. Now, did he have a Braille writer?
11 A. I am not certain if he did or if he did not.
12 Q. He had diabetes, didn't he?
13 A. Yes.
14 Q. And you have read the log entries that show that because of
15 his diabetes he had problems with his extremities, correct?
16 A. Correct.
17 Q. His fingers and toes.
18 A. Right.
19 Q. Do you know whether or not that was causing him difficulty
20 in trying to read Braille?
21 A. I don't know for certain if it was or if it wasn't.
22 Q. Now, all the time you were there, did you ever have
23 experience with him writing anything in Arabic?
24 A. Personally, no.
25 Q. Or in English?
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1 A. Not personally.
2 Q. So you are not aware of any time when he actually wrote
3 anything, correct?
4 A. Correct.
5 Q. And we have already established he was blind, right?
6 A. Right.
7 Q. Now, when he was in his cell, did he wear the dark glasses
8 that were on the picture that you were shown, or did he not
9 wear the dark glasses?
10 A. I don't think he did.
11 Q. You don't ever remember seeing him with the dark glasses?
12 A. I don't remember seeing them.
13 Q. So he would sit in his cell and, now, could he go out of
14 his cell to get his meals?
15 A. No.
16 Q. Oh, then his meals would be brought to him, right?
17 A. Correct.
18 Q. Now, his meals would be brought to him by a guard, right?
19 A. Yes.
20 Q. And did any of the guards who would bring him his meals
21 speak Arabic?
22 A. No.
23 Q. And so far as you observed his ability in English was very
24 limited, correct?
25 A. Broken English, correct.
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1 Q. And when doctors would come to see him, do you know whether
2 or not any of them spoke Arabic?
3 A. To my knowledge, none of them spoke Arabic.
4 Q. In fact, you have told us that you had, what, one person on
5 your staff who spoke some broken Arabic, right?
6 A. Very limited, yes.
7 Q. Now, with particular attention to that SAM that has been
8 received in evidence as Government Exhibit 321, I am going to
9 display that for you with the court's permission.
10 THE COURT: Yes.
11 MR. TIGAR: Thank you, your Honor.
12 Q. Turn the lamp on and let it warm up, and I am going to show
13 you the last page.
14 Can you tell me please -- of course it starts at the
15 top where I have my finger and it says "refused to sign,"
16 right?
17 A. That is what it says.
18 Q. Now, did you witness this event, the reading of the SAM?
19 A. Personally I did not witness it.
20 Q. We can take a look though at some of the signatures, right?
21 A. Correct.
22 Q. Did you ever see Omar Abdel Rahman sign his name to
23 anything?
24 A. Personally I did not.
25 Q. Did you know whether being blind he would sign his name
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1 like a sighted person would do?
2 A. I don't know if he would or not.
3 Q. So the first signature on here says "refused to sign" and
4 then there is this name on here. Do you recognize that?
5 A. I do recognize that signature.
6 Q. Who is that?
7 A. Her name is Mary Haughen. She would have been Mr. Abdel
8 Rahman's unit manager.
9 Q. And a unit manager is someone in the hierarchy of the guard
10 personnel, is that fair to say?
11 A. Yes.
12 Q. Now, I don't want to insult anybody's job, but they are the
13 ones in charge of the inmates on a day-to-day basis, right?
14 A. She is a manager, yes.
15 Q. Okay. Then it says translator and who is that?
16 A. I believe that was Abraham al-Gaddi.
17 Q. Abraham --
18 A. Al-Gaddi.
19 Q. And who is Abraham al-Gaddi?
20 A. He was a translator that we contracted with to provide
21 translating services.
22 Q. And did he provide translating service only for Sheikh
23 Abdel Rahman or for everybody? For anybody else rather?
24 A. He would have provided it for anybody who needed it.
25 Q. What languages did you contract with him to talk in?
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1 A. Arabic.
2 Q. And do you have on file at the office there any information
3 about his qualifications to perform his job?
4 A. I do not have the information, no.
5 Q. Does the Bureau of Prisons have a set of qualifications,
6 official set of qualifications for people it hires to be
7 translators?
8 A. I don't know.
9 Q. Well, in your -- I am not trying to put you on the spot.
10 Do you have other people in there that didn't speak English in
11 your facility?
12 A. Yes.
13 Q. And did you have some translators for them too?
14 A. Most of the 9 English speakers are Hispanic and we do have
15 Spanish-speaking staff so we are able to utilize them.
16 Q. But you don't have any personal knowledge of any set of
17 qualifications for the translators, correct?
18 A. I do not.
19 Q. And you were not present at this scene, correct?
20 A. Correct.
21 Q. Now, you also looked at a SAM from the period 2001 and
22 that, I think, was Government Exhibit 329. Do you remember
23 that?
24 A. Yes.
25 Q. Do you have it in front of you?
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1 A. Yes, I do.
2 Q. Let me put that on the machine here.
3 Now, this one says "Rahman refused to sign. He
4 continued to chant through the English and Arabic
5 translations."
6 Do you see that?
7 A. Yes, I do.
8 Q. Were you present when that was happening?
9 A. No, I was not.
10 Q. And in this one who was the translator?
11 A. I believe it was Abraham al-Gaddi again.
12 Q. There is no signature there, correct? Mr. al-Gaddi's
13 name -- do you see it on there?
14 A. I see the signature but I don't see a printed name.
15 Q. I see. Where it says witness, that is Mr. al-Gaddi's
16 signature?
17 A. Correct.
18 Q. He signed as a witness?
19 A. Yes.
20 Q. Now, I want to turn back to -- let me do the first page if
21 I can of 321 and put that back. You said that when a SAM would
22 come you would use a word processor to prepare the actual
23 document that we see here, correct?
24 A. Correct.
25 Q. And you see there are different typefaces here. Did you
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1 have the "pursuant to" part that I am pointing to in your
2 computer already and then you would just add the other part if
3 there had been no changes from one SAM to the next?
4 A. Yes.
5 MR. TIGAR: May I have just a minute, your Honor. I
6 am going to get some more exhibits for the next part.
7 Q. I want to continue on now talking about these log books and
8 how Mr. Omar Abdel Rahman would spend his day, correct?
9 A. Okay.
10 Q. All right.
11 For instance, if I may display Government Exhibit 331.
12 THE COURT: Yes.
13 MR. TIGAR: Your Honor, a question to the court:
14 Should I ask the court's permission before displaying each
15 document by number or may I have permission to display them
16 giving the exhibit number in each occasion?
17 THE COURT: You can display them if they are in
18 evidence.
19 MR. TIGAR: Thank you, your Honor.
20 Q. Now, I am putting up here what you have already discussed
21 as Government Exhibit 331. That is a page from the log book,
22 correct?
23 A. Correct.
24 Q. And it shows here "meds given and supper meal," correct?
25 A. Correct.
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1 Q. That means that somebody would come in and give him his
2 supper, right?
3 A. Right.
4 Q. Now, down here it says "6/23/2000, Mr. R sitting close to
5 door eating an orange," right?
6 A. Right.
7 Q. Now, were people instructed to note just everything that
8 happened or did each guard describe what they would tell or put
9 on here and what not?
10 A. People were instructed to state the reason that they were
11 in there.
12 Q. And then the next item down says "PT using toilet." And I
13 don't understand the rest of that entry. Do you see that where
14 it says "PT using toilet?" There.
15 A. Okay.
16 Q. And can you read the rest of that entry?
17 A. Not very well.
18 Q. But there are a number of instances here where the guards
19 would observe the inmate using the toilet and then they would
20 write that down, correct?
21 A. Correct.
22 Q. Now, that toilet that is in there, is that one of those
23 ones without a seat?
24 A. I don't remember exactly what the toilet looked like.
25 Q. And if he was going to use the toilet, a guard looking
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1 could observe that behavior, correct?
2 A. Yes.
3 Q. Now, the next one here is "breakfast delivered, accepted
4 only muffins and apple," correct?
5 A. Correct.
6 Q. And then the next one "off of tray," and then it says
7 "cream applied to both legs, no" something. Do you know what
8 that stands for?
9 A. I don't.
10 Q. And could you read the next one? Does that say "compliant
11 with medications and insulin?"
12 Is that the word compliant?
13 A. That says compliant and the next word is an abbreviation
14 for "with."
15 Q. Okay. And then "medications and insulin," right?
16 A. I can't see the bottom.
17 Q. I am sorry, I can but you can't. I apologize.
18 Can you see the next line now?
19 A. Yes.
20 Q. And that says "medications and insulin"?
21 A. Correct.
22 Q. Now, in sum, throughout his days people would watch
23 everything he was doing, correct?
24 A. Correct.
25 Q. They could if they wanted to. There wasn't a guard there
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1 all the time, was there?
2 A. No.
3 Q. He was a federal prisoner and these observations were part
4 of the routine that was established, correct?
5 A. Correct.
6 Q. He was the only one about him that had a log book but other
7 prisoners would get observed as well, correct?
8 A. Yes.
9 Q. And if another prisoner -- for instance, you have -- for
10 example, you had a prisoner who had been a judge in New York
11 who was being treated in your facility, correct? Do you
12 remember that?
13 A. I don't remember specifically.
14 Q. Then just take any hypothetical person. I don't want to
15 get into names. But if any person you have there is getting
16 medical treatment, you do keep a record of their medical
17 treatment, right?
18 A. Certainly.
19 Q. You don't have the same degree of detail but you keep
20 records of that.
21 A. Correct.
22 Q. Now, in these instances, did you visit with Sheikh Abdel
23 Rahman yourself very often?
24 A. No. Personally, no.
25 Q. Did you talk to the guards about him?
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1 A. I don't remember if I had specific conversations with them
2 or not.
3 Q. Did you look at the log books from time to time?
4 A. Yes.
5 Q. And when you looked at the log books you could pretty well
6 tell that his day was spent in isolation, correct?
7 A. He was in his cell but people would come in and visit with
8 him and check on him.
9 Q. Right.
10 And the people that came in, they didn't speak his
11 language, correct?
12 A. Correct.
13 Q. They were not people that shared his religion, correct?
14 A. As far as I know.
15 Q. He was blind, correct?
16 A. Yes.
17 Q. And did you get reports that he would react to noises that
18 were happening outside his cell that were strange or foreign or
19 upsetting to him?
20 A. Yes.
21 Q. And did he mention that?
22 A. Not to me specifically.
23 Q. But through your chain of command --
24 A. He mentioned it to people.
25 Q. And did he sometimes claim that things had happened, people
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1 were putting things in his cell or doing things that hadn't
2 happened?
3 MR. DEMBER: Objection, your Honor.
4 THE COURT: Basis?
5 MR. DEMBER: Relevance, hearsay.
6 THE COURT: Mr. Tigar.
7 MR. TIGAR: The relevance, your Honor, are the
8 conditions --
9 THE COURT: Hearsay.
10 MR. TIGAR: I will limit it to other employees of the
11 institution acting within the scope of their employment, your
12 Honor.
13 THE COURT: No --
14 THE COURT: 801(d).
15 THE COURT: It's 10 after 11, ladies and gentlemen.
16 It's a convenient time for us to take our mid-morning break.
17 Please remember my continuing instructions not to talk
18 about the case and keep an open mind.
19 All rise please. And follow Mr. Fletcher into the
20 jury room.
21 (Jury left the courtroom)
22 THE COURT: The witness can step down.
23 Okay, first of all, I am not sure why there is really
24 an objection to a question which asks did he make complaints
25 about things that weren't true. That is simply an observation.
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1 I mean, the question was whether he complained about things
2 that were not true, and it seemed to be seeking to elicit an
3 answer that was yes. I don't know what the witness would
4 testify or not. I don't understand the basis as to why there
5 would be an objection to that before I reach the issues of
6 hearsay. It's not an issue with respect to relevance. It's
7 relevant.
8 MR. DEMBER: I am sorry, your Honor?
9 THE COURT: It's not an issue for me as to relevance.
10 It's relevant based upon the issues in the case what complaints
11 he was making or not making. The indictment itself discusses
12 the fact of reports on his prison conditions and whether those
13 prison conditions were correct or incorrect and so the subject
14 of whether he is making complaints which are untrue is
15 relevant, so it's not an issue with respect to relevance and so
16 the question in my mind is why there is even an objection
17 before I deal with the issues of hearsay.
18 MR. DEMBER: For one reason. First of all, your
19 Honor, because it is hearsay so there is an objection. Plus, I
20 don't know what comes afterwards. I don't want to not object
21 to a question which may be perceived as opening the door for
22 more inappropriate hearsay. While I don't necessarily disagree
23 with what your Honor is saying it's looking down the road to
24 the next question which would be inappropriate hearsay. It's
25 obviously double hearsay.
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1 What is alleged in the indictment though, your Honor,
2 doesn't originate with Abdel Rahman in terms of false claims
3 about his health. Those originate from a different source, not
4 from him.
5 THE COURT: Okay.
6 Mr. Tigar, hearsay?
7 MR. TIGAR: Yes, your Honor. We have two positions on
8 that and I didn't want to say a lot in front of the jury. I
9 don't like speaking objections and that is why we are here.
10 In the first place it's not hearsay because 801(d)
11 says statements which are not hearsay. 801(d)(2)(c) is a
12 statement by a person authorized by the party to make a
13 statement concerning the subject. I was asking her what
14 reports she had received from the people in the prison who are
15 in charge of this process. We have learned that this is a
16 person who coordinates the delivery of the SAMs --
17 THE COURT: 801 --
18 MR. TIGAR: I am sorry, your Honor, (d) also. Not
19 authorized. It's 801(d)(2)(d). I apologize, your Honor.
20 THE COURT: (d)(2)(d)?
21 MR. TIGAR: (d)(2)(d).
22 A second point, your Honor, is, look, the hearsay is
23 not claimed to be unreliable and Chambers against Mississippi
24 says, you know, basically somewhere beyond the rule book I get
25 to do this I think. That is my respectful submission.
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1 THE COURT: Mr. Dember.
2 MR. DEMBER: Your Honor, what was reported to Ms.
3 Christenson is alleged to be a statement made by a correction
4 officer who heard a claim from Rahman. So there are two levels
5 of hearsay here and Mr. Tigar hasn't addressed the first. It's
6 double hearsay for that purpose.
7 THE COURT: You are welcome to check out on the
8 computer, but my recollection is that the Second Circuit says
9 in Yldiz that government agents are not agents for purposes of
10 hearsay; that the party opponent is the government and
11 government agents are not agents for purposes of the hearsay
12 rule, and so she is reporting on what someone else said and we
13 don't reach the next stage of Sheikh Abdel Rahman saying to the
14 guard who then says to the witness something.
15 MR. TIGAR: As to the Sheikh Abdel Rahman hearsay that
16 is not offered for the truth. The fact is he made a report as
17 to that. Then I won't any more insist on my view of the Second
18 Circuit and I will --
19 THE COURT: Check it.
20 MR. TIGAR: I will check, your Honor, but, as I say,
21 we have been around this before on GAF and also on Salerno.
22 THE COURT: The Court of Appeals draws a distinction
23 between statements in court and does that in Yldiz itself, puts
24 to one side Salerno, GAF, and then talks about agents of the
25 government outside of court. So you are welcome to take ten
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1 minutes, check it out.
2 MR. TIGAR: I don't need ten minutes. I don't want
3 ten minutes. If that is the law of the case and this is not
4 that important for me because, as I say, the hearsay I would
5 think there can be no reasonable question of its reliability
6 and Chambers against Mississippi says that with respect to the
7 defense seeking to offer evidence in exercise of its rights,
8 then the court should receive it provided there is some showing
9 of reliability, and we remember the facts of Chambers.
10 THE COURT: In Chambers the hearsay was a level
11 beyond, and importance beyond this comment from the guard. So
12 if it's a matter of importance you are welcome to brief it. I
13 would even call the witness back. You all have access to the
14 case law. You are welcome to check it now. The witness may
15 even be here over lunch and you can check it further. But if
16 it's not a matter of that significance --
17 MR. TIGAR: Your Honor sustained the objection to the
18 question?
19 THE COURT: Yes, for the reasons I said. But you are
20 welcome to continue to argue it and I welcome you to check it
21 out.
22 Okay.
23 MR. TIGAR: I will, your Honor, but I don't need to
24 get into an argument after the court has ruled. The court has
25 ruled; the court disagrees, fine. We will go forward.
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1 The next question, then, is in her capacity as a
2 paralegal or as a documents person, did she ever receive and
3 store reports, and one of her jobs is receiving and storing
4 reports of inmate complaints. I can ask her that, can I not?
5 In her office does she have reports of inmate complaints? If I
6 went there could I find them?
7 THE COURT: That is fine.
8 MR. TIGAR: I don't want to get into another thing
9 that would take the jury out.
10 THE COURT: Okay.
11 MR. TIGAR: Because these things do exist and we will
12 prove them up in our case, your Honor.
13 THE COURT: Okay.
14 See you shortly.
15 (Recess)
16 (In open court; jury not present)
17 THE COURT: Please be seated.
18 Are we read ready to begin in the jury?
19 MR. TIGAR: One more question, your Honor. I would
20 like to ask the witness if complaints were reflected in the log
21 book, if she remembers any of the contents of those. That
22 would be simply more of the same that we have seen.
23 THE COURT: I have no problem with that. It's an
24 exhibit in evidence.
25 MR. TIGAR: Not in the portions admitted but in other
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1 portions that we have seen that she remembered.
2 THE COURT: I have no problem with that.
3 MR. TIGAR: Mr. Dember is looking at a couple of
4 exhibits we intend to offer. I don't know if he intends to
5 offer or not. I just had them copied at the break.
6 MR. DEMBER: Your Honor, are you waiting for me to
7 respond to the reference --
8 THE COURT: Yes.
9 MR. DEMBER: If the question is merely have you ever
10 seen complaints made or indicated in the log book that were
11 made which by Mr. Abdel Rahman --
12 THE COURT: Right.
13 MR. DEMBER: I have no objection to that, your Honor.
14 With respect to the two exhibits Mr. Tigar wants to
15 offer up, they are essentially the same exhibit, I believe. We
16 do have objections to them. I don't know if your Honor has
17 been provided with a copy of those exhibits. They are LS14 and
18 LS15.
19 MR. TIGAR: May I approach, your Honor? I would be
20 happy to hand them up.
21 THE COURT: Sure.
22 MR. TIGAR: As the court can see, these were documents
23 originated by the witness.
24 MR. DEMBER: This is 3500 material for the witness,
25 your Honor, that were turned over.
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1 Your Honor, in each of these exhibits, and they are
2 pretty much identical documents, the last page of each of the
3 proposed exhibit is a letter apparently dictated by Mr. Abdel
4 Rahman to his attorneys and the content is rank hearsay. So
5 for that reason alone we object to it.
6 MR. TIGAR: If your Honor please, shall I respond to
7 the hearsay objections on page 3?
8 THE COURT: I am reading.
9 MR. TIGAR: Thank you.
10 (Pause)
11 THE COURT: All right.
12 MR. TIGAR: May be be heard now, your Honor?
13 THE COURT: Yes.
14 MR. TIGAR: The first two pages we don't see an
15 objection to. This letter, this dictated letter, was during a
16 time when the government had a FISA court order to intercept --
17 and they did intercept -- all attorney-client communications.
18 They intend to play many, many of those attorney-client
19 communications to this jury. When they do so, the fact that
20 this inmate wrote a letter in which he said, "gee, I have got
21 these problems, I would like you to deal with them," would, in
22 our respectful view, be admissible under Rule 106 if nothing
23 else.
24 The reason I am offering it now is that now we have
25 the witness here who can tell us what it is. If she goes away
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1 and I don't have a chance to put these in, I will at the time
2 they begin playing those conversations make my 106 objection,
3 ask that she be brought back, and all the rest of it. That is
4 Part 1. That is the efficiency argument.
5 The only hearsay matter that could possibly be
6 considered here as we wish we had the sheikh here to be cross
7 examined is prisoners are treated like monsters. A jury can
8 easily obey the instruction that they shouldn't take that as
9 the truth. They have had plenty of testimony from Mr.
10 Fitzgerald that the man exaggerates.
11 With with respect to the others I would like to ask
12 you I suggest that is only my opinion, I am appreciative.
13 These are statements of opinion, mental condition. They are
14 statements of intention. That is to say, they are classically
15 the kinds of things that were admissible before 803(1), (2) and
16 (3) were enacted, and thereafter. That is to say, they are
17 admissible irrespective of the declarant.
18 Apparently these are documents, which were made and
19 kept in the ordinary course of the business of this institution
20 at that time, and it was in the ordinary course of business
21 that they make and keep them. Alternatively, if the witness
22 felt that she had to send these on they are reports pursuant to
23 a duty imposed by law which are offerable at defendant's
24 request under 803(a).
25 THE COURT: Mr. Dember, is there an objection to pages
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1 1 and 2?
2 MR. DEMBER: No, your Honor. In fact, that is
3 consistent with the SAMs which are in evidence, your Honor.
4 Any mails going out, sent out by Mr. Abdel Rahman, had to be
5 reviewed, as there has been testified about, by officials
6 before it could be mailed.
7 MR. TIGAR: I can't hear you.
8 MR. DEMBER: I am saying we have no objection to pages
9 1 and 2. They are consistent with the SAMs regulations and
10 restrictions.
11 With respect to the third page, your Honor, the 106
12 argument fails. He is offering the entire document. 106
13 doesn't apply to other statements made at other times by other
14 parties or even by this defendant. It's a statement in and of
15 itself, so 106 is totally irrelevant.
16 To the extent that Mr. Tigar thinks he needs to recall
17 this witness in his case to prove something, he is welcome to
18 do that, your Honor. The efficiency argument doesn't work
19 because apparently or perhaps this document was sent to three
20 lawyers -- Mr. Clark, who Mr. Tigar represents, will be
21 testifying in this case, Mr. Jabara, Mr. Schilling, and Ms.
22 Stewart, who also Mr. Tigar represents, will be testifying in
23 this case.
24 To the extent it could be relevant, your Honor, it has
25 no relevance in terms of any state of mind of this witness. It
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1 has nothing to do with it. In terms of the regular course of
2 business, your Honor, I believe this witness will testify this
3 is probably the only time that she ever had to review an
4 outgoing piece of mail by Mr. Rahman. I believe she testified
5 earlier -- she is here, maybe you want her excused -- that she
6 doesn't recall any outgoing mail being reviewed of Mr. Rahman.
7 But it's not business records, your Honor, it's a personal
8 letter by Mr. Rahman with lots of hearsay, prejudicial hearsay
9 that he attempts to send to his lawyers.
10 THE COURT: All right. The witness doesn't have to be
11 examined with respect to the contents of the third page on both
12 documents. Pages 1 and 2 are admitted without objection and I
13 reserve on page 3. So page 3 shouldn't be admitted at this
14 time or displayed to the jury.
15 MR. TIGAR: I will simply lay the document in front of
16 the witness, your Honor. I will lay -- well, if there is no
17 objection to it being received in accordance with the court's
18 direction, I will leave it at that. I won't mention it,
19 publish it, do anything with it. We will move on to something
20 else.
21 THE COURT: All right.
22 MR. TIGAR: I don't want objection to that.
23 THE COURT: If pages 1 and 2 are admitted and if you
24 wanted to explore that with her you are welcome to do that and
25 it's only page 3 that I have reserved on.
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1 MR. TIGAR: Then I will explore pages 1 and 2.
2 Thank you, your Honor.
3 Now, to save time may I just put them in front of the
4 witness now and she can have them to save time?
5 THE COURT: You may approach.
6 MR. TIGAR: Thank you.
7 THE COURT: All right.
8 Anything else?
9 Let's bring back the jury.
10 (In open court; jury present)
11 THE COURT: Please be seated all.
12 The witness is on the stand.
13 Mr. Fletcher.
14 THE CLERK: Ms. Christenson, you are reminded you are
15 still under oath.
16 THE WITNESS: Yes.
17 THE COURT: All right, when we left there was an
18 objection and the objection is sustained.
19 Mr. Tigar, you may proceed.
20 MR. TIGAR: Thank you, your Honor.
21 Q. Ms. Christenson, we were talking about the conditions. The
22 door to Sheikh Abdel Rahman's cell, was that an iron door with
23 a window or what did the front of it look like, the front of
24 the cell?
25 A. The front of his cell, it was just a big door. Yes, it did
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1 have a window on it.
2 Q. And were there bars? Was there any other way to look out
3 other than with that window?
4 A. There was a smaller window that was in one of the sides
5 that faced into the hallway of that particular unit.
6 Q. Of course, he being blind would not be looking out but, I
7 mean, the guard that was in there would, right?
8 A. Correct.
9 Q. Did he have a radio, do you know?
10 A. I don't know if he had one.
11 Q. Do you know whether or not -- did he leave his cell for
12 religious services?
13 A. For a period of time.
14 Q. And then that didn't happen anymore after a time, correct?
15 A. Correct.
16 Q. And that was because there was some dispute about what had
17 happened to the service or do you know why it stopped?
18 A. I know that there was some problems. What the problems
19 were specifically, I don't.
20 (Continued on next page)
21
22
23
24
25
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46UMSAT4 Christenson - cross
1 Q. You don't have any personal knowledge of that?
2 A. Right.
3 Q. But at some point it stopped?
4 A. Right.
5 Q. Now, did he have religious visitation from outside, that
6 is, did a Muslim chaplain type person come to visit him?
7 A. Not to my knowledge.
8 Q. Now, do you have a practice at your prison where chaplains
9 from outside can visit inmates of particular faiths?
10 A. Yes.
11 Q. To your knowledge, that didn't happen to him, correct?
12 A. To my knowledge, that's correct.
13 Q. Do you have any personal knowledge as to whether he ever
14 requested a Bible in Arabic?
15 A. I don't know.
16 Q. And do you have any personal knowledge of how telephone
17 calls to his wife were handled?
18 A. Yes.
19 Q. And how often was he permitted to call his wife?
20 A. There was once a month.
21 Q. For how long a time?
22 A. 15 minutes.
23 Q. In that 15 minutes that he could call his wife once a
24 month, someone who spoke Arabic would be there, is that right?
25 Would there be someone who spoke Arabic in your end involved in
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1 the call?
2 A. Personally or physically, no.
3 Q. Nonphysically.
4 A. We had a tape recording prepared by our translator that was
5 played at the beginning of each telephone call.
6 Q. Now, do your telephones at the prison have signs on them,
7 the phones that inmates use, saying, this telephone will be
8 monitored?
9 A. Yes.
10 Q. But they are in English, right?
11 A. In English and in Spanish, I believe.
12 Q. And, of course, a blind person couldn't read those, right?
13 A. Correct.
14 Q. But you would have those tape recorded?
15 A. Yes.
16 Q. Did the prison have a practice of recording the actual
17 telephone call between the prisoner and the prisoner's wife?
18 A. Yes.
19 Q. Did you have a practice of sending those tapes to the
20 lawyers for the prison?
21 A. To our agency attorney?
22 Q. No. To his lawyer, to Ramsey Clark and Ms. Stewart.
23 A. No.
24 Q. Those are your records, right?
25 A. Correct.
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46UMSAT4 Christenson - cross
1 Q. For your purposes?
2 A. Correct.
3 Q. And to your knowledge, none of his lawyers ever received a
4 copy of any of those recordings of the calls with his wife, is
5 that right?
6 A. To the best of my knowledge, that's correct.
7 Q. Now, when we were looking at some of those photographs of
8 the room, I just want to ask about one of them.
9 I'm placing up here and I am going to zoom so we can
10 see the whole thing.
11 THE COURT: Could you identify the exhibit?
12 MR. TIGAR: I'm sorry?
13 THE COURT: Identify the exhibit.
14 MR. TIGAR: I'm sorry, your Honor. This is Government
15 363. There it comes, Government 363 in evidence.
16 Q. At the bottom, that's the date you took the picture?
17 A. Correct.
18 Q. Does your camera have one of those little deals that prints
19 it out?
20 A. The date?
21 Q. Yes, the date.
22 A. Yes.
23 Q. You notice that there are Venetian blinds at the top of
24 these windows where I'm putting my finger, correct?
25 A. Correct.
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46UMSAT4 Christenson - cross
1 Q. When the legal visits would take place in this room, were
2 the blinds open or closed?
3 A. Open.
4 Q. Was that a requirement of the prison, that the blinds be
5 open?
6 A. Yes.
7 Q. Now, on the opposite side you have an office that
8 physically looks something like this that has windows and so
9 on?
10 A. Yes.
11 Q. Do you keep your blinds open or closed?
12 A. I do both. It depends on the day.
13 Q. Sometimes in your work you have jobs you're working on that
14 other people aren't supposed to look at, right?
15 A. Yes.
16 Q. And you take care to make sure that if it is none of their
17 business they don't look at it, right?
18 A. Correct.
19 Q. And sometimes to do that you close the blinds, correct?
20 A. True.
21 Q. And sometimes you put your legal files in folders or
22 drawers where other people can't get at them, right?
23 A. True.
24 Q. That's one of the things that you're instructed to do as
25 part of your job, right?
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46UMSAT4 Christenson - cross
1 A. Yes.
2 Q. Now, I wanted to look at some of these log sheets to just
3 take a few minutes and get an idea about the daily life of the
4 prison so we can have a picture.
5 MR. TIGAR: May I have a moment, your Honor?
6 THE COURT: Yes.
7 Q. I am going to place on the overhead what's been received in
8 evidence as Government Exhibit 333, and I am going to direct
9 your attention to this entry that says 1830 to 1900, all right?
10 A. Okay.
11 Q. And that appears to be from July 31, 2000, correct?
12 A. Correct.
13 Q. And it says: Inmate something. Can you read that?
14 A. No, not very well.
15 Q. And then the next sentence says: Room cleaned?
16 A. Yes.
17 Q. And then it says: Removed paper from inside of door that
18 was covering voice box.
19 Was there a voice box in his cell?
20 A. It is in the door.
21 Q. And what's it for? What does it do?
22 A. It just allows people to communicate easier so they can
23 actually hear through the door.
24 Q. So the door is metal and is it like one of those things
25 where you go to the movies and you buy a ticket and you say, I
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46UMSAT4 Christenson - cross
1 want two tickets to the show? What is it like?
2 A. If you would look at it, it looks like little holes.
3 Q. Just a hole?
4 A. Yes.
5 Q. And then it says: He had used chocolate to stick it up.
6 Is that what it says?
7 A. Yes.
8 Q. Is this a report that the inmate had taken some chocolate
9 and stuck something to his door?
10 A. It appears to be.
11 Q. Now, here is one, jumping to Exhibit 334, it says:
12 Prisoner wandering back and forth chanting, correct?
13 A. Yes.
14 Q. And then later on down here we get: Lotion to feet, put
15 out garbage, correct?
16 A. Yes.
17 Q. And then later on Rahman is praying, stated everything is
18 okay, right?
19 A. Right.
20 Q. Here is the second page of Government Exhibit 339, and
21 that's from October 31, 2000, correct? Inmate Rahman refused
22 his food tray. I requested that he take down the cardboard off
23 his cell window, and he yelled no, correct?
24 THE COURT: I'm sorry.
25 Q. Is that right?
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - cross
1 THE COURT: One moment. Your question talked about
2 October 31.
3 MR. TIGAR: Yes. I'm sorry. Thank you.
4 Q. Is that October 21 or 31?
5 A. I believe it is October 21.
6 Q. Thank you.
7 Did I read the rest of it correctly?
8 A. Yes.
9 Q. Now, is it part of your responsibility to keep track of
10 disciplinary matters concerning inmates?
11 A. My responsibility, no.
12 Q. Do you have any responsibility for logging or keeping track
13 of the results of disciplinary actions with respect to inmates?
14 A. I do not.
15 Q. Do the logbooks that you have -- I'm not talking about the
16 pages you brought -- did they keep track of requests to see the
17 warden?
18 A. They may. I don't know for certain.
19 Q. If the warden visited the inmate, would that visit be in
20 the logbook?
21 A. Yes.
22 Q. Because that's a part of the procedure, correct?
23 A. Correct.
24 Q. But none of the sheets that you brought with it show us
25 those visits, right?
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46UMSAT4 Christenson - cross
1 A. I don't know if they do or not.
2 Q. You don't remember. The point is, other than the one log
3 sheets that were lost in that fire, the one that got water
4 damaged, somebody could go there and look and see if there are
5 any warden visits in there, right?
6 A. The log sheets that were lost in the fire were visitor
7 logs.
8 Q. So the logbooks about the cell, you got all of those,
9 right?
10 A. Correct.
11 Q. But if there were any warden visits, then in the ordinary
12 course of a business day they would be in those log sheets,
13 correct?
14 A. Right.
15 Q. I wanted to ask you, finally, final one of these. I'm
16 placing up Government 353 on the projector. I'm looking at the
17 entry of 1/4/02. Can you tell us what that says?
18 A. 1/4/02 says: Patient CS163, patient accepted bagel, I
19 believe, and milk. Ted's -- I can't read the last word.
20 Q. Ted's off?
21 A. Ted's off maybe. Garbage emptied. VSS, insulin and PO
22 medication given. Patient cooperative.
23 Q. Does it say: Will call?
24 A. Will call plumber for stool.
25 Q. Do you have any idea what that means?
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46UMSAT4 Christenson - cross
1 A. I have no idea.
2 Q. Do you know who made the entry?
3 A. I don't know whose signature that is.
4 Q. Then just two questions about the SAM. The first,
5 Government 321, you showed us -- we looked at that and that is
6 the signature of the translator, is that correct, that I'm
7 pointing to?
8 A. Correct.
9 Q. Ms. Christenson, do you have in front of you what's been
10 marked as LS-14 and LS-15?
11 A. Yes.
12 Q. And looking, please, only at pages 1 and 2 of those, page 1
13 of each, are those memoranda that you prepared?
14 A. They are fax cover sheets, yes.
15 Q. And looking at sage 2 of e-mail, did you participate in the
16 preparation of those letters?
17 A. These letters were prepared by Mary Benning, who was the
18 attorney advisor at the institution at the time.
19 Q. She was your colleague?
20 A. She was my supervisor.
21 Q. And you recognize your signature?
22 A. Yes, I do.
23 MR. TIGAR: Your Honor, I offer LS-14 and LS-15 on the
24 understanding that only pages 1 and 2 of each would be received
25 at this time.
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46UMSAT4 Christenson - cross
1 MR. DEMBER: No objection, your Honor.
2 THE COURT: No objection. Pages 1 and 2 of LS-14 and
3 LS-15 received in evidence.
4 (Defendant's Exhibits LS-14 and LS-15 received in
5 evidence)
6 Q. I am going to put up LS-15 first and zoom out -- that's a
7 fax cover sheet to Pat Fitzgerald, correct?
8 A. Correct.
9 Q. And you knew that Mr. Fitzgerald was an Assistant United
10 States Attorney in New York, right?
11 A. Right.
12 Q. Had you spoken to him or did you know him from before this?
13 A. I didn't know Mr. Fitzgerald prior to Mr. Abdel Rahman
14 coming to FMC Rochester.
15 Q. Once Mr. Abdel Rahman got there back in 1998, you got to
16 know Mr. Fitzgerald?
17 A. Over the telephone.
18 Q. You never met him in person?
19 A. I have never met him personally.
20 Q. Is it fair to say that your conversations with him were
21 about his concerns related to Omar Abdel Rahman?
22 A. Note.
23 Q. And they were professional deals that you had with him, you
24 in your capacity working with legal documents and he as a
25 person who had worked on the Rahman case, right?
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2847
46UMSAT4 Christenson - cross
1 A. Correct.
2 Q. Now, in this letter you're saying -- could you just read
3 what you wrote to Mr. Fitzgerald?
4 A. Mr. Fitzgerald, enclosed is a copy of the letter inmate
5 Rahman recently dictated to his attorneys. This is being
6 provided to you for your review prior to sending it to Rahman's
7 attorneys. If you have any objections to forwarding this
8 letter to Rahman's attorneys, please notify us.
9 Thank you for taking the time to review the attached.
10 I understand you are in trial and the demands on your time are
11 great. If we can assist you in any way, please contact us.
12 Kara.
13 Q. Did you ever hear back from Mr. Fitzgerald?
14 A. I personally did not.
15 Q. And I am going now to put up LS-14 in evidence. And this
16 is the same text, but addressed to a man named David Kelley,
17 correct?
18 A. Correct.
19 Q. And did you ever hear back from him?
20 A. I personally did not.
21 Q. Do you know, looking at page 2 of LS-14, this is a letter
22 to Mr. Ramsey Clark, correct?
23 A. Yes.
24 Q. Now, what is your understanding about this letter? Was
25 this letter going to be SAMs or not?
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46UMSAT4 Christenson - cross
1 A. This letter signed by Mary Benning?
2 MR. DEMBER: Objection, your Honor, relevance.
3 THE COURT: Overruled.
4 Q. Yes, this letter.
5 A. I don't know if it was going to be signed or not.
6 Q. Did you understand that the purpose of your fax was to find
7 out whether or not to send this letter?
8 A. Yes.
9 Q. Did you have anything further to do in your official
10 capacity with what's reflected in the exhibits that you have
11 just looked at?
12 A. I put them on the fax machine.
13 Q. So the answer -- you did not, right?
14 A. I did not.
15 MR. TIGAR: May I have just a moment, please, your
16 Honor?
17 THE COURT: Sure.
18 MR. TIGAR: Just a couple more.
19 Q. The usual Sheikh Abdel Rahman was the only person you had
20 in your facility at that time that was subject to these Special
21 Administrative Measures, correct?
22 A. Correct.
23 Q. So the usual way that lawyer -- if another one of your
24 inmates wanted to send a letter to the lawyer, how would they
25 do it?
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46UMSAT4 Christenson - cross
1 A. They would put that particular piece of correspondence in a
2 mailbox on the unit that's marked legal mail.
3 Q. Would it then go to the lawyers without being subjected to
4 review by others?
5 A. They are looked for contraband only and then yes.
6 Q. So only for contraband, not for content?
7 A. Exactly.
8 Q. This transaction in your experience was unusual in the
9 sense that you all were looking at content, correct?
10 A. We were following the rules of the SAM.
11 Q. Now, you were looking at content according to the rules of
12 the SAM?
13 A. Correct.
14 Q. Did you have any other prison inmate in your facility at
15 that time who were blind?
16 A. I don't remember if we did or not.
17 Q. And so did you have a practice or procedure with respect to
18 blind inmates about how they could dictate letters and how they
19 would be assisted? Was there any procedure that you knew about
20 that?
21 A. I don't know.
22 MR. TIGAR: Thank you, Ms. Christenson. No further
23 questions.
24 MR. RUHNKE: May I, your Honor?
25 THE COURT: Yes. Mr. Ruhnke, you may examine.
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - cross
1 MR. RUHNKE: Thank you.
2 May I speak with the government a moment, your Honor?
3 THE COURT: Sure.
4 CROSS-EXAMINATION
5 BY MR. RUHNKE:
6 Q. Ms. Christenson, good morning.
7 A. Good morning.
8 Q. Good afternoon, actually.
9 You have been at the medical center for approximately
10 how many years, 12?
11 A. Correct.
12 Q. You know there is another Federal Medical Center in
13 Springfield Missouri, correct?
14 A. Yes.
15 Q. And you knew that Abdel Rahman had been transferred from
16 Springfield to Rochester, is that correct?
17 A. Correct.
18 Q. And had you been in contact with a man named Dennis Bitz at
19 Springfield?
20 A. Regarding Mr. Abdel Rahman?
21 Q. Yes.
22 A. Me, personally, no.
23 Q. Do you know that Mr. Bitz is an attorney at the
24 Springfield, Missouri facility?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - cross
1 Q. Did there come a time when he received a subpoena for
2 documents relating to Abdel Rahman?
3 A. Yes.
4 Q. Is it true that while he was at your institution Sheikh
5 Rahman had approximately 14 attorney visits?
6 A. I don't remember what the specific number was.
7 MR. RUHNKE: May I approach the witness and show her a
8 document?
9 THE COURT: Yes.
10 Q. I am going to show you a document that's marked 3510B for
11 identification. And would you just look at the document for me
12 and see if you recognize it?
13 A. Yes.
14 Q. Now, is that, in fact, a document that you had prepared?
15 A. Correct.
16 Q. Looking at the document, does that refresh your
17 recollection that Mr. Rahman had received approximately 14
18 attorney visits while at Rochester?
19 A. That's what it says, yes.
20 Q. And does that sound approximately correct?
21 A. Yes.
22 Q. And those included attorney Ramsey Clark, correct?
23 A. Correct.
24 Q. Attorney Lynne Stewart, correct?
25 A. Correct.
SOUTHERN DISTRICT REPORTERS, P.C.
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2852
46UMSAT4 Christenson - cross
1 Q. Attorney Abdeen Jabara, correct?
2 A. Correct.
3 Q. And FBI approved interpreter Mohammed Yousry, correct?
4 A. Correct.
5 Q. I am going to turn your attention to something else. I am
6 going to put on the screen a document that I have marked 363A,
7 which is a version of the document you have seen before. And
8 I've drawn on there, in an attempt to figure out where the
9 round table was, a depiction of the round table.
10 Do you see that on the document?
11 A. Yes, I do.
12 Q. And not commenting on the artwork, is that about where the
13 table was?
14 A. Yes.
15 Q. And I think you said that the edge of the circumference of
16 the table was about 12 inches from that glass window?
17 A. Correct.
18 Q. Is that a single-pane glass window?
19 A. Yes.
20 Q. Is your office right across from there?
21 A. Yes.
22 Q. Did you ever see one of these visits while they were going
23 on?
24 A. Yes.
25 Q. And you would see the attorney, Sheikh Rahman, and the
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46UMSAT4 Christenson - cross
1 interpreter, Mr. Yousry, correct?
2 A. Correct.
3 Q. Although you have told us you don't recognize Mr. Yousry?
4 A. Correct.
5 Q. I'll show you another photograph, 366A.
6 THE COURT: Did you want to offer 363A?
7 MR. RUHNKE: I'll offer 363A.
8 THE COURT: As a demonstrative?
9 MR. RUHNKE: Yes, your Honor.
10 MR. DEMBER: No objection, your Honor.
11 THE COURT: Ladies and gentlemen, 363A is received in
12 evidence as a demonstrative exhibit to help you understand the
13 testimony of the witness in explaining what is depicted in the
14 photo. It obviously has some hand drawing on the photo.
15 That's why it is not simply the photograph. It is a
16 demonstrative exhibit to help you understand the witness's
17 testimony.
18 (Government's Exhibit 363A received in evidence)
19 MR. RUHNKE: Your Honor, I should have asked for
20 permission before I displayed that, but the government has no
21 objection to either exhibit.
22 I would like to display 366A, if the government hasn't
23 no objection.
24 MR. DEMBER: No objection, your Honor.
25 Q. Looking at 366A, again, one of the photographs that you
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - cross
1 took two weeks ago or so, and it shows what you refer to as the
2 AW's conference room, correct?
3 A. Correct.
4 Q. Again, the table was approximately -- the round table was
5 approximately in that position?
6 A. Approximately, yes.
7 Q. These visits --
8 MR. RUHNKE: And we will offer 366A, your Honor.
9 THE COURT: No objection. Government Exhibit 366A
10 also received as a demonstrative exhibit.
11 (Government's Exhibit 366A received in evidence)
12 Q. These visits, as you can tell from looking at your record,
13 are often quite lengthy, correct?
14 A. Yes.
15 Q. Several hours, three, four, sometimes five hours long?
16 A. Correct.
17 Q. And if one of the attorneys, for example, had to use the
18 bathroom while they were there, was there a bathroom facility
19 if you walked out the door and walked left down that corridor
20 in the photograph and then sort of left again? Is that where
21 the bathroom was located?
22 A. Yes.
23 Q. If you walked out of that door and walked to the right, was
24 there kind of a staff room with vending machines in that area?
25 A. If you walked out the door and went to the right and then
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - cross
1 took a quick left, yes.
2 Q. And the attorneys were permitted to go to the vending
3 machines and buy water or drinks or food that was sold there,
4 correct?
5 A. Yes.
6 Q. And to give anything they could purchase there to the
7 inmate if the inmate wanted it. That was permission to you,
8 correct?
9 A. I believe so.
10 MR. TIGAR: Thank you. I have no more questions.
11 MR. PAUL: We have no questions of this witness.
12 MR. DEMBER: Just a few, your Honor.
13 THE COURT: Yes.
14 Mr. Dember, you may examine.
15 REDIRECT EXAMINATION
16 BY MR. DEMBER:
17 Q. Ms. Christenson, do you know during the time that Mr. Abdel
18 Rahman was at the facility in Rochester whether you had other
19 Arabic-speaking inmates at the facility?
20 A. I don't know if for sure if we did or did not.
21 Q. Now, I believe you were asked about Mr. Abdel Rahman's
22 cell, is that correct?
23 A. Yes.
24 Q. And he was in his cell alone, he had no other person in the
25 cell with him?
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - redirect
1 A. Correct.
2 Q. Were there other inmates at the institution who had
3 individual cells as well?
4 A. Yes.
5 Q. And were there cells similar to Mr. Abdel Rahman's to the
6 extent that they also had toilets in them?
7 A. Yes.
8 Q. And were those toilets visible to the guards or correction
9 officers who would monitor the hallways and cells themselves?
10 A. Yes.
11 Q. And was the reason for that security reasons?
12 A. Yes, it is.
13 Q. Ms. Christenson, I am going to show you -- I am going to
14 play with you, with your Honor's permission, Exhibit 366A.
15 THE COURT: All right.
16 Q. Do you see that?
17 A. Yes.
18 Q. On the big screen?
19 A. Yes.
20 Q. And do you see where the table is drawn in?
21 A. Yes.
22 Q. Now, was the table as it was placed, as you remember, was
23 it precisely in that position, or was it more underneath that
24 vent and sprinkler head, sort of in the middle of the
25 photograph on the ceiling?
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46UMSAT4 Christenson - redirect
1 A. It was not precisely in that position, a little bit more
2 towards the middle.
3 Q. Towards the middle of what?
4 A. Of the picture. Closer to underneath the vent in the
5 sprinkler hood.
6 Q. By the way, was the table itself -- where was it in
7 relation to the big window in the right-hand side on 366A?
8 A. It was in front of me.
9 Q. If one was looking through the window, could one see the
10 entire table, look at the entire table?
11 A. Yes.
12 Q. Now, I believe it was pointed out that both the windows in
13 the conference room which are, again, depicted on Exhibit 366A,
14 have blinds for each window?
15 A. Yes.
16 Q. I believe you testified on cross-examination that the
17 blinds to the window that were in front of the table, those
18 blinds were pulled?
19 A. Correct.
20 Q. You were present during at least some of those visits,
21 correct?
22 A. Yes.
23 Q. What were the reason that the blinds were pulled?
24 A. So the correction staff could visually monitor those visits
25 for security visits.
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46UMSAT4 Christenson - redirect
1 Q. They would monitor those from a hallway?
2 A. Yes.
3 Q. During Mr. Abdel Rahman's visits with his attorney, was
4 anyone else in the conference room besides Mr. Abdel Rahman,
5 his attorney, and Mr. Yousry?
6 A. No.
7 Q. By the way, did other inmates get the opportunity to meet
8 with their attorneys in the associate warden's conference room?
9 A. Not generally.
10 Q. Is there a separate location where other inmates would meet
11 with their attorneys?
12 A. Yes. We have a visiting room and within that visiting room
13 there is a room for attorney-client visits.
14 Q. What was the reason why Mr. Abdel Rahman got to meet with
15 his attorneys in that room?
16 A. The SAM require that he not be around other inmates.
17 MR. DEMBER: May I have a moment, your Honor?
18 THE COURT: Yes.
19 Q. Ms. Christenson, did any of the prison guards who monitored
20 those meetings speak Arabic?
21 A. No.
22 Q. Did you have any guards in the facility who spoke Arabic?
23 A. No.
24 MR. DEMBER: Thank you. I have nothing further, your
25 Honor.
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46UMSAT4 Christenson - redirect
1 MR. TIGAR: One question.
2 THE COURT: All right. Limited to redirect.
3 RECROSS EXAMINATION
4 BY MR. TIGAR:
5 Q. You said that there was nobody in that room except for
6 Sheikh Abdel Rahman, his lawyers and the translator. On May
7 the 19th and 20th of 2000, there was also a video monitor that
8 could observe the lawyer-client meeting, correct?
9 A. Correct.
10 Q. That was in your office?
11 A. The monitor was, yes.
12 Q. Did you watch the lawyer-client meeting in your office?
13 A. I did not. I had my own work to do.
14 Q. Did you see the other people watching it?
15 A. I saw an FBI agent.
16 MR. TIGAR: Thank you.
17 MR. RUHNKE: Just one, your Honor.
18 THE COURT: All right. Limited to redirect.
19 RECROSS EXAMINATION
20 BY MR. RUHNKE:
21 Q. To your knowledge, of the 14 visits that took place at
22 Rochester, how many were actually monitored by the FBI?
23 A. I don't know. I don't know the specific number.
24 Q. And the monitoring began approximately when?
25 A. I don't remember the date when it started.
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - recross
1 MR. RUHNKE: Thank you very much.
2 THE WITNESS: You're welcome.
3 MR. DEMBER: Nothing further, your Honor.
4 THE COURT: The witness is excused. You may step
5 down.
6 (Witness excused)
7 THE COURT: The government can call its next witness.
8 MR. BARKOW: Your Honor, the government calls Nanette
9 Schumaker.
10 Your Honor, may we have a minute to set up some
11 exhibits that I need to set up at the end of the government
12 table?
13 THE COURT: Yes, your Honor.
14 MR. DEMBER: Your Honor, may I step out of the
15 courtroom for just a moment? I'm not asking for any delay.
16 May I step out for a moment?
17 THE COURT: All right.
18 MR. BARKOW: It is going to take a minute. I don't
19 think we need a break.
20 THE COURT: Take a moment before we swear the witness.
21 MR. BARKOW: I think I'm set up, your Honor.
22 THE COURT: Mr. Fletcher.
23 NANETTE H. SCHUMAKER,
24 called as a witness by the Government,
25 having been duly sworn, testified as follows:
SOUTHERN DISTRICT REPORTERS, P.C.
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46UMSAT4 Christenson - recross
1 THE COURT: Mr. Barkow, you may examine.
2 MR. BARKOW: Thank you, your Honor.
3 DIRECT EXAMINATION
4 BY MR. BARKOW:
5 Q. Good afternoon.
6 A. Good afternoon.
7 Q. Where do you work?
8 A. I work for the Federal Bureau of Investigation.
9 Q. And what is your position there?
10 A. I'm a supervisory special agent.
11 Q. What does that mean?
12 A. That means I have been promoted within the management
13 system. I work at FBI headquarters in Washington, D.C.
14 Q. Agent Schumaker, how long have you been with the FBI?
15 A. 12 years.
16 Q. What year did you start?
17 A. I started in 1992.
18 Q. And where geographically did you start working for the FBI?
19 A. My first office was in Fort Smith, Arkansas, assigned to
20 the Little Rock division.
21 Q. Did you eventually move to the New York field office?
22 A. Yes. In 1997, I transferred to the New York division.
23 Q. And you said previously that you now work in the D.C.
24 headquarters, is that right?
25 A. Correct. I work in FBI headquarters.
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46UMSAT4 Schumaker - direct
1 Q. When did you move down there?
2 A. I moved there in December of 2002.
3 Q. And in your current position what do you do, briefly?
4 A. Briefly, I manage a program for all 56 field offices within
5 human intelligence, which is basically citizens that secretly
6 provide information to the FBI. My program specializes in
7 matters of national security.
8 Q. When you were in New York in the New York field office,
9 what was your position and what were your responsibilities
10 there?
11 A. I was a field agent assigned to the joint terrorism task
12 force, and my investigations specialized in Hamas.
13 Q. Did you have other responsibilities aside from your
14 position on that joint terrorism task force?
15 A. Yes. I was also assigned to the evidence response team.
16 Q. What's an evidence response team?
17 A. It is a team of individuals within the FBI that are trained
18 to conduct searches and process crime scenes.
19 Q. What's the difference between conducting a search and
20 processing a crime scene?
21 A. Typically, a crime scene would be something like a
22 kidnapping or a bank robbery that comes up spur of the moment,
23 last minute, and the team is organized to handle that.
24 A search warrant is typically of a residence or
25 business, and it is conducted generally ahead of time. We know
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46UMSAT4 Schumaker - direct
1 a week or two before.
2 Q. And when you say processing, I think you used that word for
3 a scene. What does that mean?
4 A. Process the scene would be to oversee the scene, look at
5 it, and collect matters that could be potentially evidence in a
6 court of law.
7 Q. And what was your position or rank or title or what have
8 you in connection with the evidence response team
9 responsibilities you have?
10 A. At that time the New York office had three evidence
11 response teams, and I was an assistant team leader for one of
12 the teams.
13 Q. And what did that mean?
14 A. That meant that in the absence of a team leader or if one
15 particular search had more than one location, I would handle
16 the team. I would be the team leader for that search.
17 Q. Just to be clear, was your work on the evidence response
18 team in addition to and separate and apart from your work on
19 the joint terrorism task force?
20 A. Yes, it was. I actually volunteered to become a member of
21 the evidence response team.
22 Q. During your time with the FBI, have you participated in
23 searches of crime scenes and search warrants?
24 A. Yes, I have.
25 Q. And approximately how many?
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46UMSAT4 Schumaker - direct
1 A. Approximately 100 searches.
2 Q. Now, I'd like to direct your attention specifically to
3 April 9 of 2002. Did you conduct a search or searches on that
4 day?
5 A. Yes, sir, I did.
6 Q. Where was that?
7 A. That would be at 249 Hooker Place in Staten Island.
8 Q. And what location or locations did you participate in the
9 search of at that address?
10 A. At that address the apartment we were searching was
11 apartment 2E and an attached garage.
12 Q. And before you went to conduct that search, did you or some
13 member of your team obtain a search warrant?
14 A. Yes. A search warrant was obtained for apartment 2E prior
15 to the search, as well as the attached garage.
16 Q. And ultimately did you or some member of the team obtain an
17 additional search warrant for some other specific item or
18 items?
19 A. Yes. During the search some items were seized which were
20 locked and caused later to be a search warrant obtained for two
21 briefcases, subsequent to our search.
22 Q. Were all of these search warrants signed by a magistrate
23 judge?
24 A. Yes, sir.
25 Q. In what court?
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46UMSAT4 Schumaker - direct
1 A. The Southern District of New York.
2 Q. Now, turning to the actual search, approximately when did
3 the search of these premises and these items start and when did
4 it end on that day?
5 A. The search started at approximately 12:30 p.m., and ended
6 some time between 6 and 7 p.m.
7 Q. Who participated in that search?
8 A. That would be myself, Special Agents Kathy Diskin, Darrin
9 Turpin, Anthony Curry, William Glass, and Eileen McCluskey.
10 Q. Aside from your involvement in this search that I'm about
11 to ask you more questions about, have you had any connection at
12 all to this case?
13 A. No, sir.
14 MR. BARKOW: May I approach, your Honor?
15 THE COURT: Yes.
16 Q. Agent Schumaker, I've placed before you what I've marked
17 for identification and provided previously to defense counsel
18 as Government Exhibit 3542E. Could you take a look at that?
19 A. Yes.
20 Q. Do you recognize what that is?
21 A. Yes, sir, I do.
22 Q. What is it?
23 A. This is a rough draft sketch of apartment 2E at 249 Hooker
24 Place.
25 Q. Who prepared that rough draft sketch?
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46UMSAT4 Schumaker - direct
1 A. That would have been prepared by Special Agent Kathy Diskin
2 at my request.
3 Q. During that search did you yourself observe or see all
4 parts of that apartment?
5 A. Yes. The apartment was not that big. At one time or
6 another I was in every room of that apartment.
7 Q. Agent Schumaker, does Agent Diskin's sketch, Exhibit 3542E,
8 roughly and fairly and accurately depict the size and location
9 of the rooms in that apartment?
10 A. Yes, it does. It is not necessarily drawn to scale, but it
11 does represent the rooms as they appear.
12 MR. BARKOW: Your Honor, at this point I offer
13 Government Exhibit 3542E.
14 MR. FALLICK: No objection.
15 THE COURT: Government Exhibit 3542E received in
16 evidence.
17 (Government's Exhibit 3542E received in evidence)
18 MR. BARKOW: May we publish it to the jury?
19 THE COURT: Yes.
20 Q. Agent Schumaker, directing your attention to the exhibit
21 before you, can you please describe the layout of the
22 apartment, using this exhibit as a reference point?
23 A. Yes, sir. The main entrance to the apartment was on Hooker
24 Place right here on the street. As you walked out the flight
25 of stairs --
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46UMSAT4 Schumaker - direct
1 Q. If I can just interrupt for a second. If you touch the
2 screen you can make marks on the screen, so as you speak, you
3 can make marks and indicate what you're talking about.
4 Please continue.
5 A. I made an indication right there where the square is of
6 where the apartment door is, right at the top of the stairs.
7 As you enter in right immediately in front of you was the
8 bathroom. You walk over to the kitchen and there was a small
9 entranceway, kind of like a storage room where they had some
10 filing cabinets and that type thing. There was then a doorway
11 into the main living area that had like a table, dining room
12 table, a sofa, and then there is a small computer area you can
13 see marked E just off the living room. And you walked back to
14 bedroom F, which is right off the living area, and then there
15 are two bedrooms in the back, G and H. H appeared to be the
16 master bedroom, and G was, it looked like maybe a kid's
17 bedroom.
18 Q. Where in relation to this apartment in reference to the
19 street was the garage that you searched?
20 A. The garage, if you come back down, straight down the stairs
21 to Hooker Place and made an immediate right, the garage was
22 right here on the corner of Hooker Place and this side street.
23 Q. About how far was the garage from the stairway to the
24 apartment?
25 A. Approximately 10 to 20 feet. Not very far.
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46UMSAT4 Schumaker - direct
1 MR. BARKOW: May I approach, your Honor?
2 THE COURT: Yes.
3 Q. Agent Diskin, I have placed before you what I have marked
4 for identification and previously produced to defense counsel
5 as Government Exhibits 2082A through 2082EE. Could you take a
6 look through those and let me know when you're done?
7 A. Sure. Schumaker, by the way.
8 Q. What did I say?
9 A. Diskin.
10 Q. Sorry.
11 A. That's okay.
12 Q. Agent Schumaker, can you look at those and let me know when
13 you're done.
14 A. Sure. I do recognize these photographs. I just want to
15 make sure that everyone in here is one that I recognize. Okay.
16 Q. Agent Schumaker, do you recognize all of the items I have
17 placed before you, Government Exhibits 2082A through 2082EE?
18 A. Yes.
19 Q. What are they?
20 A. These are photographs that would have been taken at the
21 time of the search at apartment 2E and the garage.
22 Q. You have reviewed these now and previous to your testimony?
23 A. Yes, I have.
24 Q. Do these photos fairly and accurately depict what the
25 apartment and the garage looked like and how they appeared at
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46UMSAT4 Schumaker - direct
1 the time and date of the search?
2 A. Yes, sir, they do.
3 MR. BARKOW: Your Honor, I offer into evidence
4 Government Exhibits 2082A through 2082EE.
5 MR. FALLICK: No objection.
6 THE COURT: Government Exhibits 2082A through 2082EE
7 received in evidence.
8 (Government's Exhibits 2082A-2082EE received in
9 evidence)
10 MR. BARKOW: Your Honor, may we publish them to the
11 jury by putting them on the screen and cycling through them.
12 It takes a few seconds for the exhibits to appear on the
13 screen, just at whatever pace we can do it.
14 THE COURT: That's fine.
15 (Continued on next page)
16
17
18
19
20
21
22
23
24
25
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46USSAT5 Schumaker - direct
1 Q. Agent Schumaker, as they go through can you describe what
2 you see and what is showing?
3 A. Yes, sir, this first photograph would be the door from the
4 entrance of hooker place.
5 Q. That is 2082A?
6 A. Correct. 2082A.
7 Q. This is 2082B.
8 A. 2082B, it's hard to tell but it's actually looking at the
9 bottom of the steps up towards the apartment right at the
10 entranceway.
11 Q. And now 2082C.
12 A. This photograph would be the entrance door to the
13 apartment.
14 Q. 2082D.
15 A. 2082D would have been the marking from the evidence
16 response team of when we made photographs we marked each room
17 and labeled them accordingly. So this reflects room A.
18 Q. And that corresponds to the sketch by Agent Diskin?
19 A. It corresponds to the sketch, yes, sir.
20 Q. And 2082E?
21 A. 2082E is a photograph of the bathroom, which is the first
22 room just to the left of the main entrance.
23 Q. 2082F.
24 A. 2082F is, again, the bathroom.
25 Q. 2082G.
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46USSAT5 Schumaker - direct
1 A. This photograph would have been the entrance to room B,
2 which based on the sketch would be the kitchen.
3 Q. 2082H.
4 A. 2082H would be another photograph of the corner of the
5 kitchen, one corner of it.
6 Q. 2082I.
7 A. Again, this would be room B, the kitchen.
8 Q. 2082J.
9 A. 2082J is looking from the room D, the living room, into the
10 kitchen, room B.
11 Q. 2082K.
12 A. 2082K, you can see the fax machine up there on the wall
13 which I believe is still in room A or, I am sorry, room B, the
14 kitchen. It's the window.
15 Q. 2082L.
16 A. This is looking from the kitchen into that back storage
17 area, room C. You can see the filing cabinet there in the
18 corner.
19 Q. 2082M.
20 A. This is a closer up view of room C, the back storage area.
21 Q. 2082N.
22 A. 2082N would be room D, the living room, the entranceway.
23 Q. 2082-O.
24 A. 2082-O is the dining set in room D, the living room.
25 Q. 2082P.
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46USSAT5 Schumaker - direct
1 A. This would be the sofa obviously in the living room, room
2 D, and you can see to the entranceway is the other bedroom,
3 room G.
4 Q. 2082Q.
5 A. The same view of the sofa in the living room, room D.
6 Q. 2082R.
7 A. 2082R is the small computer room off to the side of the
8 living room, room E.
9 Q. 2082S.
10 A. 2082S is the entranceway to room F, one of the side
11 bedrooms.
12 Q. 2082T.
13 A. 2082T would be the entranceway to room H, which I believe
14 was the master bedroom.
15 Q. 2082U.
16 A. 2082U I believe was the bed in the master bedroom, room H.
17 Q. 2082V.
18 A. 2082V, victor, is again kind of a close-up of the dresser
19 in room H.
20 Q. 2082W.
21 A. 2082W is a close-up of room G, one of the bedrooms.
22 Q. 2082X.
23 A. This would depict the bunk beds within the bedroom, room G.
24 Q. 2082Y.
25 A. This is kind of a computer area, bookshelves in I believe
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46USSAT5 Schumaker - direct
1 room G.
2 Q. 2082Z.
3 A. This would be -- it's common when we take photographs to do
4 a cover sheet that shows who is taking the photographs, the
5 date and the place, and the file number.
6 Q. 2082AA?
7 A. 2082AA would be the garage on Hooker Place.
8 Q. And 2082BB.
9 A. This would be another photograph depicting the garage.
10 Q. 2082CC.
11 A. Again, 2082CC would be a photograph of the garage.
12 Q. And 2082DD.
13 A. This photograph would also depict some of the boxes and the
14 things in the garage.
15 Q. And, finally, 2082EE.
16 A. This last photograph is also depicting the garage as we
17 found it.
18 Q. We can take that down.
19 Agent Schumaker, what was your role personally in
20 connection with the search on that day?
21 A. My role, in addition to actually participating in the
22 search, was to organize it, to assign responsibilities, to
23 prepare all the administrative paperwork and at the end of the
24 search to make sure that we had all the items of evidence as we
25 had marked them and everything was secure.
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46USSAT5 Schumaker - direct
1 Q. So were you the team leader that day at the search?
2 A. Yes, I was.
3 Q. And can you describe to us generally how the search was
4 conducted?
5 A. Generally once the apartment was secured we entered in and
6 I asked Kathy Diskin to start preparing the sketch and I asked
7 Bill Glass to start doing the entry photographs. At that point
8 we looked at each room, determined how much was there, and then
9 I asked all the agents to start conducting the search and I
10 started preparing my paperwork.
11 Q. And from what locations in the apartment in the garage were
12 items actually seized from?
13 A. I believe just about every room with the exception of maybe
14 the kitchen. Most of the rooms had something.
15 Q. And after the items were seized, what did the agent who
16 seized the item or picked it up, what did they do with it?
17 A. Well, one of two things. Either they would have brought it
18 to me -- if I was in another room they would have brought it to
19 me and said I got this in a room at this location, or they
20 would have asked for me to come over and show me what they had
21 and where it was found so that I could make a record of it.
22 Q. And just in general terms, how is it determined what should
23 or shouldn't be seized?
24 A. It's based on the search warrant, how the search warrant is
25 written up as to what items would be seized.
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46USSAT5 Schumaker - direct
1 Q. Now, in the course of this search was everything in the
2 house or in the apartment, in the garage, seized?
3 A. No, sir.
4 Q. And the items that were seized when they were brought to
5 you, were they placed in boxes or bags?
6 A. Yes. Depending on the size, we either put it in a box or
7 in a plastic or paper bag.
8 Q. Did you assign numbers in some sort of numbering system to
9 those boxes or bags?
10 A. Yes, I did.
11 Q. How many items, that is, how many boxes or bags, were there
12 from the apartment?
13 A. From the apartment I believe we seized 22 items.
14 Q. And by item, does that mean just one piece of paper or
15 could that be a pile of things or what do you mean by item?
16 A. It could be a pile of things. For instance, it could be
17 just miscellaneous papers that we did not necessarily go
18 through every stack so we would put it in a box and that would
19 be one item. But it was taken by an agent from a particular
20 location.
21 Q. And how many items or item numbers do you use to assign to
22 things seized from the garage?
23 A. From the garage we used 13 item numbers.
24 Q. And these bags or boxes, were they sealed at some point?
25 A. Yes, at the very end of the search we go back through to
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46USSAT5 Schumaker - direct
1 make sure that we have accounted for everything and every box
2 or bag is sealed with evidence tape.
3 Q. And after the items or the boxes or bags are sealed, what
4 was done with them?
5 A. After everything was sealed, then I handed over chain of
6 custody to Special Agent John Dugan.
7 Q. What did he do with them?
8 A. He transported them back to the New York field office.
9 Q. And what happened to them when they were brought back to
10 the field office?
11 A. I was told that they were put into a locked room by Agent
12 Dugan.
13 Q. Into what room?
14 A. Into a locked room.
15 Q. And the item numbers that you assigned, the 22 item numbers
16 from the apartment and the 13 items from the garage, is it your
17 understanding that later there was a letter added to those item
18 numbers?
19 A. Yes.
20 Q. Can you explain?
21 A. Yes, sir. After the search the agents and detectives
22 assigned to the squad had to differentiate the apartment from
23 the garage so every item seized from the apartment would have
24 the letter H in front of my item number. So it could be H1 or
25 H2 and the garage would have G1 or G2 depending on where it was
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46USSAT5 Schumaker - direct
1 found.
2 MR. BARKOW: Your Honor, given the time I am going to
3 move to new area and I am not sure if the court wants to break
4 now or if I should continue and break in the middle of that
5 area.
6 THE COURT: All right.
7 Why don't you move on to a new area.
8 Ladies and gentlemen, what I try to do is to
9 coordinate the luncheon break with when your lunch arrives, so
10 why don't you move on to another area.
11 MR. BARKOW: Thank you, your Honor.
12 Q. Agent Schumaker, you mentioned previously that you were
13 responsible for doing administrative paperwork.
14 A. Correct.
15 Q. What was the nature of this paperwork?
16 A. The nature of the paperwork is an administrative work sheet
17 which documents the location, the time we started and who
18 participated, as well as an evidence recovery log.
19 Q. What is an evidence recovery log?
20 A. The evidence recovery log, that is where I log in the item
21 number, the place it was seized from, who seized it, whether it
22 was photographed and what was taken.
23 Q. And you may have said this but was it also recorded where
24 the item was found?
25 A. Yes. What room and specifically where in that room.
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46USSAT5 Schumaker - direct
1 Q. And when, at what time in relation to the search, was this
2 paperwork generated?
3 A. I do it throughout the search. So as an item is found and
4 I am notified of it, I immediately give it an item number and I
5 document it, so it's throughout the search.
6 Q. And why do you create this paperwork? Specifically why do
7 you create the recovery log?
8 A. So that there is a record of where every piece of item of
9 evidence was found and so I can use it to help my memory later
10 on.
11 Q. As you sit here right now, do you remember the details of
12 where each and every item in this search was found?
13 A. No, sir, not without looking at that recovery log.
14 Q. Well, at the time that you recorded the information did you
15 record it on the log?
16 A. Yes.
17 Q. And was it accurate and complete to the best of your
18 ability at the time you recorded it into your log?
19 A. Yes, sir, it was.
20 MR. BARKOW: Your Honor, I would ask that we put
21 before the witness for purposes of recollection recorded
22 Exhibit 3542E.
23 THE COURT: All right. Not 3542E.
24 3542D.
25 THE COURT: Only before the witness and counsel.
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46USSAT5 Schumaker - direct
1 MR. BARKOW: Yes.
2 Q. Now, Agent Schumaker, as to the items that were seized in
3 this search, are you able to recognize the items because you
4 know what the items look like or for some other reason?
5 Are you able to say whether they came from the search
6 because you can look at each individual item and say this was
7 taken or is there some other way that you are able to know
8 where it came from?
9 A. No, I wouldn't be able to recognize every single item
10 because I obviously didn't seize every single item, so I have
11 to refer to my log and how it's packaged as to where it was
12 found and who seized it.
13 MR. BARKOW: May I approach, your Honor?
14 THE COURT: Yes.
15 Q. Agent Schumaker, I am putting in front of you in separate
16 redweld folders what I have marked for identification and
17 previously provided to counsel as Government Exhibits 2000,
18 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2010 -- that is 2010S
19 actually -- 2011, 2012, 2013, 2014, 2001, and 2015A through F.
20 A. Okay.
21 Q. Have you got those?
22 A. Yes.
23 Q. Okay.
24 Taking a look at those exhibits and in particular to
25 the redweld folders, can you tell me what I have just placed in
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46USSAT5 Schumaker - direct
1 front of you?
2 A. Yes, these would be items that were seized based on the
3 numbers on the redweld folders start with G and they would be
4 items G2, 3, et cetera. These would be items that were seized
5 from the garage.
6 Q. And how are you able to know that?
7 A. Based on the G signifying the garage and the item number 2
8 I can determine from my log that these were taken from the
9 garage.
10 Q. Okay.
11 And can you tell with respect to all of the items that
12 I have placed before you which member of your search team
13 seized these particular items as marked on the redweld?
14 A. Yes, I can. Give me just one minute please.
15 All the items here were seized by Agent Kathy Diskin.
16 Q. Now, taking them actually collectively, they were all
17 seized from the garage, correct?
18 A. Correct, from the garage by Kathy Diskin.
19 MR. BARKOW: May I approach, your Honor?
20 THE COURT: Yes.
21 Q. I am going to trade with you, if I can. I will take these,
22 and I will put in front of you what I have marked for
23 identification and shown to counsel previously as Government
24 Exhibits 2009 and 2009A and ask you to take a look at those.
25 A. Yes, sir. The letter and number on the outside of the
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1 redweld would be G12 and based on my records G12 would be
2 seized by Agent Darrin Turpin in the garage.
3 MR. BARKOW: May I approach, your Honor?
4 THE COURT: Yes.
5 MR. BARKOW: Actually may I ask that we place before
6 the witness 3542C and, again, this is just before the witness
7 for recollection recorded.
8 THE COURT: All right.
9 Q. Now I am placing before you what I have marked for
10 identification and previously provided to counsel as Government
11 Exhibits 2016 and 2017. Can you take a look at those?
12 Do you recognize what those are?
13 A. The outside of the redweld is marked H6, which means it
14 would have been seized from the house and item 6 is
15 miscellaneous documents that were seized by Kathy Diskin in the
16 house.
17 Q. And from where?
18 A. From room E, which would be the computer room.
19 MR. BARKOW: May I approach, your Honor?
20 THE COURT: Yes.
21 Q. I am going to take back from you 2016 and 2017 and place
22 before you what I marked for identification and previously
23 provided Government Exhibits 2018, 2019, 2020, 2021, 2022,
24 2023, 2024, 2025, 2026, and 2027.
25 THE COURT: And whenever there is a convenient time.
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46USSAT5 Schumaker - direct
1 Q. Looking at these items, the exhibits I placed before you,
2 do you recognize what these are, where they were found, and who
3 found them?
4 A. Based on the marker on the red envelope, which would be H7,
5 that signifies that they were seized in the house by Kathy
6 Diskin in room E, which was the computer room, and my record
7 reflects they are just miscellaneous papers, magazines that
8 were seized.
9 MR. BARKOW: Your Honor, this is a convenient breaking
10 point. I think I heard the court ask about that.
11 THE COURT: Okay.
12 Ladies and gentlemen, we will break for lunch.
13 Please remember my continuing instructions not to talk
14 about the case, and keep an open mind.
15 All rise please. Please follow Mr. Fletcher to the
16 jury room.
17 Be back at 2 o'clock.
18 (Jury left the courtroom)
19 THE COURT: All right, the witness may step down.
20 MR. BARKOW: Can I retrieve that exhibit so I can keep
21 them organized?
22 THE COURT: Yes.
23 Please be seated all.
24 We were going to go over document issues this morning.
25 We didn't have a chance to do that and I also got the letter
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46USSAT5 Schumaker - direct
1 fairly late last night. I would prefer not to do that now but
2 if you are going to offer any exhibits today offer only
3 exhibits that are not objected to.
4 MR. BARKOW: Okay. That is fine, your Honor.
5 THE COURT: Okay.
6 Be back at a quarter of 2.
7 (Luncheon recess)
8 (Continued on next page)
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20
21
22
23
24
25
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1 AFTERNOON SESSION
2 2:10 p.m.
3 (In open court; jury not present)
4 THE COURT: Mr. Fletcher is going to give the original
5 and one copy of that letter to the juror.
6 MR. RUHNKE: Your Honor, I didn't hear you at all.
7 THE COURT: Mr. Fletcher is going to give the original
8 and a copy of that letter to the juror that I had given her
9 this morning.
10 MR. RUHNKE: Thank you.
11 THE COURT: Just let me know if you can't hear me.
12 Let's bring in the jury.
13 The juror passed along her thanks for the note.
14 (Jury present)
15 THE COURT: Good afternoon, ladies and gentlemen.
16 The witness is on the stand. Mr. Barkow, you may
17 proceed.
18 Mr. Fletcher first.
19 THE DEPUTY CLERK: Agent Schumaker, you are reminded
20 you're still under oath.
21 THE WITNESS: Yes, sir.
22 MR. BARKOW: May I approach, your Honor?
23 THE COURT: Yes.
24 BY MR. BARKOW:
25 Q. Agent Schumaker, I've placed before you what's already been
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1 admitted into evidence Government Exhibit 2082C.
2 MR. BARKOW: And I would ask that we be allowed to
3 publish that to the jury, your Honor, for a moment.
4 THE COURT: All right.
5 MR. BARKOW: If we could zoom in on the top part of
6 the door.
7 Q. This is the front door to the apartment, is that correct?
8 A. That's correct.
9 Q. Can you read what it says on the plate on the front door of
10 the apartment?
11 A. Yes, sir. The plate says: Welcome to the Sattars. There
12 is a little thing hanging down that says welcome.
13 MR. BARKOW: We can take that down. Thank you.
14 May I approach for a second, your Honor?
15 THE COURT: Yes.
16 Q. Agent Schumaker, I am placing before you a Redweld that I
17 showed you this morning or earlier before lunch that contains
18 Government Exhibits 2008, 2011, 2012, 2013, 2014. And I think
19 I misspoke this morning. It contains 2010, not 2010S. I just
20 want you to take a look at that.
21 MR. BARKOW: And if we can place before the witness
22 only Exhibit 3542D.
23 THE COURT: The witness and counsel.
24 MR. BARKOW: The witness and counsel. I'm sorry.
25 3542C. I'm sorry.
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46UMSAT6 Schumaker - direct
1 A. I think you're correct --
2 THE COURT: Hold on.
3 A. With D.
4 Q. With D. I'm sorry.
5 A. Yes.
6 Q. And previously you testified about where these items came
7 from and I just want to be clear. With respect to 2010 also,
8 can you tell us where that was found and who recovered it?
9 A. Yes. Item -- Exhibit 2010 is in this Redweld which is
10 marked G7, which would be the garage item No. 7, which was
11 seized by agent Kathy Diskin.
12 MR. BARKOW: May I approach, your Honor?
13 THE COURT: Yes.
14 Q. Now, to continue on, Agent Schumaker, I'm placing you
15 before you containing what I've marked for identification and
16 shown to counsel Government Exhibits 2028, 2029, 2031 and 2032.
17 Could you take a look at these.
18 A. Yes.
19 Q. Do you recognize these and know what they are?
20 A. These are items that would have been seized from the house.
21 MR. BARKOW: Could we put before the witness and
22 counsel only 3542C, please.
23 THE COURT: All right.
24 A. According to my log, item 9 was seized from the file
25 cabinet in room C by myself.
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46UMSAT6 Schumaker - direct
1 Q. So the items in this Redweld were seized by you?
2 A. Correct, yes.
3 MR. BARKOW: May I approach, your Honor?
4 THE COURT: Yes.
5 Q. Now, I'm placing before you what I've marked for
6 identification and previously shown to counsel, Government
7 Exhibits 2034, 2035, 2036, 2037, 2038, 2044, and 2045.
8 Do you recognize those items or know what they are?
9 A. These are documents that were seized from the house under
10 the bed in room H. I believe were in a locked briefcase by
11 special agent Darrin Turpin.
12 Q. You have said that they were seized from a locked
13 briefcase?
14 A. Yes. The briefcase was actually seized during the search
15 and it was subsequently opened pursuant to a search warrant.
16 MR. BARKOW: May I approach, your Honor?
17 THE COURT: Yes.
18 Q. This is the search warrant that you testified about
19 previously for the briefcases?
20 A. Yes. The one I mentioned this morning.
21 MR. BARKOW: May I approach, your Honor?
22 THE COURT: Yes.
23 Q. Now, I'm showing you what I have marked for identification,
24 previously produced to counsel, Government Exhibit 2039 for
25 identification. Could you take a look at that and tell us
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46UMSAT6 Schumaker - direct
1 whether you know what that is?
2 A. Exhibit 2039 is in a Redweld marked H11, which means it
3 would have been seized from the house. It was also in a brown
4 briefcase which was located under the bed in room H by Special
5 Agent Darrin Turpin. That was also locked at the time of our
6 search and it was opened later under a search warrant.
7 Q. And which room is room H?
8 A. Room H would have been, I believe, the master bedroom in
9 the far back right corner.
10 MR. BARKOW: May I approach, your Honor?
11 THE COURT: Yes.
12 Q. I'm placing before you what I have marked for
13 identification, previously produced to counsel, Government
14 Exhibit 2040. Could you take a look at that?
15 A. Yes. This is an audio cassette tape with non-English
16 writing on it. The Redweld is marked H12. That was seized in
17 the house under the bed in room H by Special Agent Darrin
18 Turpin.
19 MR. BARKOW: May I approach, your Honor?
20 THE COURT: Yes.
21 Q. Now I'm showing you what I have marked for identification,
22 previously produced to counsel, Government Exhibits 2041, 2042,
23 2046A through 2046E, 2048, 2049, 2075, 2077, and 2080. Can you
24 look through these items and tell us if you know what they are
25 and tell us where they came from?
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46UMSAT6 Schumaker - direct
1 A. This Redweld marked H11 was seized from the house. There
2 are some miscellaneous documents, including videotapes and
3 audio cassette tapes, seized, according to my log, in room H in
4 the closet by Special Agent Darrin Turpin.
5 Q. And you said that the Redweld bears what item number?
6 A. The Redweld bears item No. H13.
7 MR. BARKOW: May I approach, your Honor?
8 THE COURT: Yes.
9 You had begun saying, I thought, that the Redweld was
10 H11 and then you said it was H13. Was H11 --
11 THE WITNESS: We already did H11, your Honor. H13 was
12 the one we just did.
13 Q. Now I'm placing you before you what I have marked for
14 identification previously produced, Government Exhibit 2081.
15 Do you recognize it and do you know where it was found?
16 A. Yes. The Redweld is marked H17, which means it was seized
17 from the house. They appear to be business cards. They were
18 seized in room H on the dresser drawer by myself, Agent
19 Schumaker.
20 Q. Agent Schumaker, I have a few other items, but before I go
21 any further, I want to ask you a question or two about your
22 paperwork. You have reviewed your paperwork before you came in
23 here to testify today, is that right?
24 A. Yes, that's correct.
25 Q. And did you happen to notice, upon reviewing your paperwork
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46UMSAT6 Schumaker - direct
1 in anticipation of your testimony, whether there were any typos
2 in it?
3 A. Yes, I did.
4 Q. Can you explain?
5 A. Yes. It is common after the search that I would
6 memorialize the search on an FD302. I discovered that in
7 typing it I actually put down the date that I typed it versus
8 the date that it was -- the search was conducted.
9 Q. What's a 302?
10 A. A 302 is a document that we use to memorialize either an
11 interview or a search, something like that.
12 Q. Basically, a report?
13 A. It is a report, yes, that I generated.
14 Q. What was the date of the search?
15 A. The date of the search was April 9.
16 MR. BARKOW: May I approach, your Honor?
17 THE COURT: Yes.
18 Q. I'm placing before you what I have marked for
19 identification, and previously produced to counsel, Government
20 Exhibits 2050A through 2050L, 2052 through 2059, 2060A and
21 2060B, 2061 through 2069, and 2071.
22 A. Yes. The Redweld is marked H18, so it was seized from the
23 house, on the top of the dresser in room H, the master bedroom,
24 by investigative specialist Bill Glass, and the Redweld
25 contains some photographs, miscellaneous documents, and one
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46UMSAT6 Schumaker - direct
1 appears to be a video cassette tape.
2 MR. BARKOW: May I approach, your Honor?
3 THE COURT: Yes.
4 Q. I'm placing you before you what I have marked for
5 identification as Government Exhibit 2070. Would you take a
6 look at that and tell us, if you know, what that is, and from
7 where it was recovered?
8 A. Yes. According to the Redweld, it is marked H19, item 19.
9 It is a miscellaneous audiotape that was seized in the bottom
10 shelf of room C by myself.
11 MR. BARKOW: May I approach, your Honor?
12 THE COURT: Yes.
13 Q. I'm placing before you what I have marked for
14 identification as Government Exhibit 2072, previously provided
15 to counsel. Can you take a look at that and tell us if you
16 recognize it and where it was found?
17 A. Yes. According to the Redweld, it is marked H20. Item 20
18 are miscellaneous papers that I also seized from the bottom
19 shelf of room C, which would have been the back storage area.
20 MR. BARKOW: May I approach, your Honor?
21 THE COURT: Yes.
22 Q. Finally, Agent Schumaker, I'm placing before you what I
23 have marked for identification, and previously provided to
24 counsel, Government Exhibit 2073. Can you take a look at that
25 and tell us whether you recognize it and know where it was
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46UMSAT6 Schumaker - direct
1 found?
2 A. Yes. The Redweld is marked H21. It is a document
3 containing it that was seized by myself again in room B in the
4 house.
5 Q. You can just leave that in front of you for now.
6 Agent Schumaker, during this search, you've testified
7 that various documents were seized. Were some of these
8 documents incomplete or torn or what have you when they were
9 actually found?
10 A. It is possible because say when I went through the file
11 cabinet drawers, if I took a stack out and I flipped through
12 it, there could have been a document that maybe was partially
13 torn or was missing within the stack. I just took the whole
14 stack.
15 Q. Basically, you took it as you found it?
16 A. I took it as I found it. Sometimes they were rubber-banded
17 together.
18 MR. BARKOW: Your Honor, at this point, I'd like to
19 offer into evidence and read Government Exhibit 2085, which is
20 a stipulation between the parties.
21 MR. TIGAR: May I speak briefly with Mr. Barkow?
22 THE COURT: Certainly.
23 MR. TIGAR: Thank you, your Honor. I just cleared up
24 a little difficulty here and we are fine.
25 THE COURT: No problem.
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46UMSAT6 Schumaker - direct
1 Government Exhibit 2085 is the stipulation?
2 MR. BARKOW: Yes, your Honor.
3 THE COURT: You can read the stipulation.
4 MR. BARKOW: May I put it on the screen as I do so,
5 your Honor?
6 THE COURT: All right.
7 No objection to the stipulation in evidence?
8 MR. TIGAR: No, your Honor. It is signed by all of
9 us.
10 THE COURT: Government Exhibit 2085 received in
11 evidence.
12 (Government's Exhibit 2085 received in evidence)
13 MR. BARKOW: The parties hereby stipulate and agree
14 that the following people would testify as follows if called as
15 witnesses at this trial:
16 1. Special agent Kathy Diskin of the Federal Bureau
17 of Investigation, or the FBI, would testify that on April 9,
18 2002, she participated in a search of defendant Sattar's
19 apartment at 249 Hooker Place, Apartment 2E, Staten Island, New
20 York. Special Agent Diskin would further testify that she drew
21 a rough sketch of the layout of Sattar's apartment, but that
22 the sketch does not accurately or exactly depict sizes or
23 distances. Special Agent Diskin would further testify that
24 Government Exhibit 3542E is a true and accurate copy of her
25 original rough sketch, and that Government Exhibit 3542E fairly
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46UMSAT6 Schumaker - direct
1 and accurately depicts, in rough sense, the physical layout of
2 Sattar's apartment. Special Agent Diskin would further testify
3 that, during the search, she seized Government Exhibits 2000,
4 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010,
5 2011, 2012, 2013, 2014, 2015A, 2015B, 2015C, 2015D, 2015E, and
6 2015F from the garage, and Government Exhibits 2016, 2017,
7 2018, 2019, 2020, 2021, 2022, 2023, 2024, 2025, 2026, 2027,
8 20383, and 2083A from room E of the apartment, and gave all
9 items to Special Agent Nanette H. Schumaker of the FBI, team
10 leader of the search team.
11 2. Special Agent Darrin Turpin of the FBI would
12 testify that, on April 9, 2002, he participated in the search
13 of defendant Sattar's apartment at 249 Hooker Place, Apartment
14 2E, Staten Island, New York. Special Agent Turpin would
15 further testify that, during the search, he seized Government
16 Exhibits 2034, 2035, 2036, 2037, 2038, 2044, and 2045 from
17 inside of a black briefcase underneath the bed in room H of the
18 apartment; Government Exhibit 2039 from inside of a brown
19 briefcase underneath the bed in room H of the apartment;
20 Government Exhibit 2040 from underneath the bed in room H of
21 the apartment; Government Exhibits 2041, 2042, 2045, 2046A,
22 2046B, 2046C, 2046D, 2046E, 2048, 2049, 2075, 2077, 2078, 2079,
23 and 2080 from the closet in room H of the apartment; and
24 Government Exhibit 2047 from a VCR attached to a video camera
25 in room D of the apartment, and gave all items to Special Agent
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46UMSAT6 Schumaker - direct
1 Nanette H. Schumaker of the FBI, the team leader of the search
2 team.
3 3. Investigative Specialist William Glass of the FBI
4 would testify that, on April 9, 2002, he participated in the
5 search of defendant Sattar's apartment at 249 Hooker Place,
6 Apartment 2E, Staten Island, New York. Investigative
7 Specialist Glass would further testify that, during the search,
8 he seized Government Exhibits 2050A, 2050B, 2050C, 2050D,
9 2050E, 2050F, 2050G, 2050H, 2050I, 2050J, 2050K, 2050L, 2052,
10 2053, 2054, 2055, 2056, 2057, 2058, 2059, 2060A, 2060B, 2061,
11 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, and 2071 from
12 the top of a dresser in room H of the apartment, and gave them
13 to Special Agent Nanette H. Schumaker of the FBI, the team
14 leader of the search team.
15 4. Special agent John Dugan of the FBI would testify
16 that, on April 9, 2002, he was present during the search of
17 defendant Sattar's apartment at 249 Hooker Place, apartment 2E,
18 Staten Island, New York. Special agent would further testify
19 that, after the search concluded, Special Agent Nanette H.
20 Schumaker transferred to him custody of Government Exhibits
21 2000 through 2014, 2015A through 2015F, 2016 through 2032, 2034
22 through 2042, 2044, 2045, 2046A through 2046E, 2047 through
23 2049, 2050A through 2050L, 2051 through 2059, 2060A, 2060B,
24 2061 through 2073, and 2075 through 2081 ("The seized
25 Government Exhibits"). Special Agent Dugan would further --
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46UMSAT6 Schumaker - direct
1 Government Exhibits to the FBI's field office at 26 Federal
2 Plaza -- I'm sorry. I think that's the way it reads, your
3 Honor -- to the FBI's New York field office at 26 Federal Plaza
4 New York, New York. Special Agent Dugan would further testify
5 that when he arrived at 26 Federal Plaza, he transferred
6 custody of the seized government exhibits to Special Agent
7 Philip Swabsin of the FBI and Detective Louis Napoli of the New
8 York Police Department, who has been deputized as a federal
9 agent and who works with the FBI. Special Agent Dugan would
10 further testify that when he transferred custody of the seized
11 government exhibits to Special Agent Swabsin and Detective
12 Napoli, all of the seized government exhibits were in taped and
13 sealed bags and boxes.
14 5. Special Agent Philip Swabsin and Detective Louis
15 Napoli would testify that, on April 9, 2002, at the FBI's New
16 York field office at 26 Federal Plaza, New York, New York,
17 Special Agent John Dugan transferred custody to them of the
18 seized government exhibits. Special Agent Swabsin and
19 Detective Napoli would testify that, when they received the
20 seized government exhibits from Special Agent Dugan, all of the
21 seized government exhibits were in taped and sealed bags or
22 boxes. Special Agent Swabsin and Detective Napoli would
23 further testify that they immediately placed the seized
24 government exhibits in a secure, locked evidence-storage room
25 for secure storage. Special Agent Swabsin and Detective Napoli
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46UMSAT6 Schumaker - direct
1 would further testify that the seized government exhibits did
2 not leave the secure custody and control of the FBI after April
3 9, 2002. Special Agent Swabsin and Detective Napoli would
4 further testify that they, along with special agent Steven
5 Sorrels of the FBI, took the seized government exhibits from
6 the bags and boxes in which they had been stored on April 9,
7 2002, and brought them to this courtroom for the purposes of
8 this trial.
9 It is agreed to and stipulated and signed by the
10 parties and attorneys, dated June 28, 2004.
11 At this time, your Honor, I would like to offer into
12 evidence some of these exhibits, these particular exhibits:
13 Exhibit 2000, 2009, 2009A, 2032, 2036, 2047S, 2049S, 2050A
14 through 2050L, 2053, 2056, 2058, 2061, 2062, 2063, 2069, 2072,
15 and 2081.
16 MR. FALLICK: No objection.
17 THE COURT: No objections. The exhibits just listed
18 are received in evidence.
19 (Government's Exhibits 2000, 2009, 2009A, 2032, 2036,
20 2047S, 2049S received in evidence)
21 (Government's Exhibits 2050A through 2050L, 2053,
22 2056, 2058 received in evidence)
23 (Government's Exhibits 2061, 2062, 2063, 2069, 2072,
24 and 2081 received in evidence)
25 MR. BARKOW: We have nothing further at this point,
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1 your Honor.
2 MR. FALLICK: May I inquire, your Honor?
3 THE COURT: Yes, Mr. Fallick may inquire.
4 CROSS-EXAMINATION
5 BY MR. FALLICK:
6 Q. Agent Schumaker, prior to conducting your search at 249
7 Hooker Place on April 9, did you know that you were going to
8 Mr. Sattar's apartment?
9 A. Yes, sir.
10 Q. You only learned of the identity of the apartment when you
11 were there?
12 A. No. I knew -- I knew beforehand that I was going to
13 Mr. Sattar's residence.
14 Q. At what time did the search of the apartment begin?
15 A. Approximately 12:30.
16 Q. And what time did the search of the apartment finish?
17 A. I believe, according to my report, the apartment stopped at
18 approximately 4:30, 5:00, something like that.
19 Q. And how many agents participated in the search of the
20 apartment?
21 A. Well, every agent that I listed earlier in my testimony
22 participated.
23 Q. That would be including yourself, six of you?
24 A. Well, it would be myself, Kathy --
25 Q. Seven of you?
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1 A. It would be six of us.
2 Q. Was anyone home in the apartment when the search began?
3 A. No, sir.
4 Q. During the search of the apartment, did anyone return home?
5 A. Any of the residents?
6 Q. Anyone who lived in that apartment.
7 A. No, sir.
8 Q. Was the building in which the apartment was located a
9 two-story building?
10 A. I do not recall. I know that the apartment was on the
11 second floor. I don't recall if there was anything above that.
12 Q. Was it a walk-up apartment?
13 A. Yes.
14 Q. Were there any other apartments on the floor?
15 A. On the second floor, I honestly do not recall if there was
16 another door at the top there.
17 Q. Did the apartment have three bedrooms?
18 A. Yes.
19 (Continued on next page)
20
21
22
23
24
25
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1 Q. Could you tell if one or two of the bedrooms were
2 children's rooms?
3 A. Yes.
4 Q. When you first arrived at the apartment and went inside,
5 did you notice that the apartment was cluttered?
6 A. Cluttered? Define cluttered.
7 Q. Well, was there clothes around the apartment?
8 A. Yes, there were.
9 Q. Were there papers, loose papers around the apartment?
10 A. There were some loose papers. I don't know if I would call
11 it excessively cluttered but there were loose papers around,
12 yes.
13 Q. Did the search team look at each room of the apartment?
14 A. Yes.
15 Q. Did they look in every closet?
16 A. I don't know. I was not with each individual as they
17 searched, but I know our teams are thorough.
18 Q. Well, if your team is very thorough, would they have looked
19 in each closet?
20 A. Again, I can't say I was with every person but in order to
21 do a thorough search normally we would look in the closet.
22 Q. Would they look in every cabinet?
23 A. Typically in a normal search they would. Again, I was not
24 with every individual as they conducted their search.
25 Q. I understand that. In a normal search would they look in
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1 every drawer?
2 A. Typically, yes.
3 Q. Would they look under every bed?
4 A. Typically, yes.
5 Q. Now, during the course of the search of this apartment, did
6 the team seize papers, and I mean by papers newspapers,
7 magazines, documents in virtually every room in the apartment?
8 A. I would have to refer to my log, sir, to know if they did
9 in every room. I don't know they seized anything in the
10 bathroom.
11 Q. I asked in virtually every room.
12 A. In virtually every room, I believe.
13 Q. And did they seize papers from dressers and cabinets and
14 closets and shelves?
15 A. Yes.
16 Q. And did they seize papers from briefcases and jackets?
17 A. Yes.
18 Q. Did they seize each piece of paper that they found?
19 A. Again, I wasn't with them. I don't know that every piece
20 of paper that they look at they necessarily took custody of or
21 else the inventory sheet would have been considerably larger
22 than 22 items. But I was not with them as they conducted every
23 piece of search to know whether they seized everything they
24 looked at.
25 Q. Do you know if any members of your team left any pieces of
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1 paper behind in the apartment?
2 A. It's possible.
3 Q. Would you have made a list of the papers that you left
4 behind?
5 A. No.
6 Q. Were many newspaper articles seized by members of your
7 team?
8 A. Based on looking at the exhibits this morning, I believe
9 there were, yes.
10 Q. And did you have an opportunity when he showed you the
11 newspaper articles to notice what newspapers they came from?
12 A. No, sir, I do not recall that.
13 Q. Did you notice that many of the papers that were seized
14 were dated sometime in the mid-1990s?
15 A. No, sir, I didn't look at every piece of paper that was
16 seized, no, sir.
17 Q. Were there audio tapes and videotapes in the apartment?
18 A. Yes.
19 Q. Were they in boxes or scattered about?
20 A. Sir, I can't answer that question again because I didn't
21 search every single room. You would have to ask the agent that
22 actually seized them. I know that some were located on
23 bookshelves, that type of thing.
24 Q. Do you know if your team seized every audio and videotape
25 that was in the apartment?
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1 A. No, sir, I do not know that.
2 Q. Were there bookcases in the apartment?
3 A. Yes, there were.
4 Q. Were there bookcases in the living room?
5 A. Yes.
6 Q. Were there bookcases in the computer room?
7 A. Yes.
8 Q. And were there bookcases in one of the children's rooms?
9 A. Yes.
10 Q. Could you estimate how many books there were in the
11 apartment?
12 A. No, sir, I am sorry, I wouldn't be able to do that.
13 Q. Did you have an opportunity to notice what type of books
14 were in the bookcases?
15 A. Other than it looked like the kid's bedroom, which I recall
16 being some school books. Again, I didn't look at every book on
17 the shelf because I didn't search every room.
18 Q. Do you know how many books your team seized?
19 A. No, sir, the exact number, no, sir, I do not.
20 Q. Do you know, did they seize every book in Mr. Sattar's
21 apartment?
22 A. No, sir.
23 Q. And do you know what books were left behind in the
24 apartment?
25 A. No, I do not.
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1 Q. Did anyone make a list of those books?
2 A. That is not customary to make a list of what we left, no,
3 sir.
4 Q. Did you take a photograph of the bookcases?
5 A. Yes, we did.
6 Q. And do those photographs show the titles of the books in
7 the apartment?
8 A. No, sir, I don't believe that the photograph is close
9 enough to be able to tell the title of all the books. It just
10 shows the bookshelves as they existed.
11 Q. Were these documents and the papers that your team seized
12 from the apartment, were they in the redwelds that we have in
13 court here today?
14 A. No, sir.
15 Q. Were there loose papers in the apartment?
16 A. There were loose papers. There were some papers that were
17 in a filing cabinet. Again, I don't know how every single
18 piece of paper were found. Things in the garage were in boxes
19 or Styrofoam containers, something like that.
20 Q. Do you know if the papers that you seized were organized in
21 any way prior to your seizing them?
22 A. Organized in any way? Not that I am aware of.
23 Q. When did the search of the garage begin?
24 A. The search of the garage started towards the end of the
25 search of the apartment. As we were winding up the apartment,
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1 then they started searching the garage.
2 Q. And was that 4:30, 5 o'clock?
3 A. 4:30, 5 o'clock approximately.
4 Q. What time did the search of the garage conclude?
5 A. I believe approximately 7 p.m., give or take.
6 Q. From the garage did your team take tapes, videotapes and
7 audio tapes?
8 A. I believe so, yes, sir.
9 Q. Did they take each video and audio tape that was in the
10 garage?
11 A. That I do not know. I did not search the garage so I am
12 not sure what they took versus what they left behind.
13 Q. Did they take books from the garage?
14 A. I cannot recall that. I didn't look inside every box.
15 Q. Did they take documents, documents from the garage, meaning
16 papers, newspapers, magazine articles?
17 A. Based on my review of the items in the redwelds this
18 morning I would say, yes, they did.
19 Q. In your review of the redwelds this morning, did you notice
20 that your team seized transcripts of a trial?
21 A. I didn't look at the items in the redwelds that closely
22 this morning, but I do recall some court documents being
23 seized.
24 Q. And do you know if those court documents came from the
25 trial of Sheikh Rahman?
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1 A. I believe so, yes.
2 Q. Did you know or do you know that at Sheikh Rahman's trial
3 Mr. Sattar was a paralegal for him?
4 A. I know that subsequent to the search. I don't recall if I
5 knew that at the time but it's very possible that I did.
6 Q. During the course of your search -- during the course of
7 your team's search, did they also seize time records of
8 Mr. Sattar for his work during Sheikh Abdel Rahman's trial?
9 A. I do not know, sir. Again, I have not reviewed every
10 single document that came out of that search.
11 MR. FALLICK: May I have one moment, your Honor?
12 THE COURT: Yes.
13 (Pause)
14 Q. Ms. Schumaker, you were present during the entire search of
15 the apartment?
16 A. Yes.
17 Q. And you were present during the entire search of the
18 garage?
19 A. Yes, I was present at the location. I may have been in the
20 apartment when the garage search started.
21 Q. And did each of the agents who seized an item come and show
22 it to you?
23 A. As I testified this morning, they either brought it to me
24 and told me where they found it or they called me over to the
25 room and told me where they found it, yes.
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1 Q. But you didn't examine whatever they seized?
2 A. Did I examine it at the time, not necessarily because if it
3 was a stack of documents I would not have examined each
4 document, no, sir.
5 MR. FALLICK: Thank you.
6 I have no further questions, your Honor.
7 THE COURT: All right.
8 Mr. Barkow.
9 MR. BARKOW: Your Honor, may I confer with Mr. Fallick
10 for one second, and I just have a few questions.
11 THE COURT: Sure.
12 REDIRECT EXAMINATION
13 BY MR. BARKOW:
14 Q. Ms. Schumaker, just a few questions.
15 Mr. Fallick asked you about items that were not seized
16 during this search.
17 A. Yes.
18 Q. What happened to those items?
19 A. They were left in the house.
20 Q. And when you and your team left the apartment, did you
21 prohibit anyone else from taking them or touching them or do
22 anything with respect to them other than just leave them there?
23 A. No. Whatever we don't seize we leave behind in the manner
24 in which we found it. So anybody else could have come in
25 behind us, anybody in the residence.
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1 MR. BARKOW: May I have just a moment, your Honor?
2 THE COURT: Yes.
3 Nothing further, your Honor.
4 MR. FALLICK: One question, your Honor.
5 THE COURT: Yes.
6 RECROSS EXAMINATION
7 BY MR. FALLICK:
8 Q. Ms. Schumaker, upon concluding the search and leaving the
9 apartment, do you take photographs of the apartment to show the
10 condition it was in and what was left behind?
11 A. Yes, sir, we do.
12 Q. And do those photographs show, for instance, the books or
13 documents that were left behind?
14 A. It's possible. Depending on the angle of the photograph,
15 it's possible it would have shown the bookshelf. I don't know
16 if you compared the two photos you could tell what was taken or
17 what was left.
18 Q. Would it show the tapes that were left behind?
19 A. I would have to see the photos. Again, we just do it to
20 show the condition of the room.
21 MR. FALLICK: I have no further questions, your Honor.
22 Thank you.
23 THE COURT: All right. Nothing further, all right.
24 The witness is excused. You may step down.
25 (Witness excused)
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1 MS. BAKER: Your Honor, at this time the government
2 asks permission to read to the jury and to display on the
3 screen while reading Government Exhibit 200T, which was
4 previously received in evidence.
5 THE COURT: All right.
6 (At this point, Government Exhibit 200T in evidence
7 was read to the jury by Ms. Baker)
8 MR. TIGAR: Excuse me, your Honor, may the jury be
9 reminded this is a translation of something delivered in
10 Arabic. I forgot to ask when the reading first began.
11 THE COURT: All right. That is fine.
12 I wasn't sure if it would be useful to introduce it
13 with the stipulation to remind people which of the exhibits and
14 when this comes because this didn't come from the exhibits just
15 received in evidence.
16 MS. BAKER: Yes, your Honor, if I might have a moment
17 to find that stipulation.
18 THE COURT: Sure.
19 MS. BAKER: May we switch instead to displaying
20 Government Exhibit 213 which is in evidence, your Honor?
21 THE COURT: Yes.
22 MS. BAKER: And this is the stipulation.
23 Your Honor, may I refer just specifically to this
24 particular exhibit number as it's referenced in the
25 stipulation?
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1 THE COURT: Yes.
2 This is a good time, ladies and gentlemen, because we
3 are seeing two separate forms of technology, the camera that is
4 being used that is right next to the podium that you have seen
5 various lawyers use it, you can put a document on and
6 effectively projects that image of the document that is placed
7 on the screen to all of the screens in the courtroom. There is
8 another system which actually calls up documents which are in
9 the system and those get put up also. You can tell the
10 difference between the two by physically watching documents
11 turned if they are on the screen and placed on the camera as
12 opposed to called up from the system.
13 Okay.
14 MS. BAKER: Your Honor, if I might read from the
15 second page of the stipulation, Government Exhibit 213.
16 The transcript marked as Government Exhibit 200T is a
17 true and accurate translation from Arabic into English of a
18 videotape of a speech delivered by Omar Abdel Rahman. That
19 videotape, which was seized pursuant to a court-authorized
20 search warrant at the residence of Nabil el-Masry, was received
21 in evidence as Abdel Rahman's trial in 1995, and Lynne Stewart
22 was present at the time it was received in evidence. The
23 transcript marked as Government Exhibit 200T was prepared by a
24 qualified, expert Arabic-to-English translator employed by the
25 Federal Bureau of Investigation. This transcript was also
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46USSAT7
1 received in evidence at Abdel Rahman's trial in 1995, and Lynne
2 Stewart was present at the time it was received in evidence.
3 All voice attributions and Government Exhibit 200T --
4 and now I am turning to the third page of the stipulation, and,
5 your Honor, if I might omit the remaining exhibit numbers for
6 the moment -- that is, all identifications on the transcript of
7 who is speaking at any particular time, truly and accurately
8 identify the speakers on the corresponding tapes.
9 After Government Exhibit 200T, and others, were
10 admitted into evidence during Abdel Rahman's trial, they were
11 read aloud to the jury in that case. Defendant Lynne Stewart
12 was present during the reading of each of these transcripts.
13 Agreed to and stipulated by all of the parties.
14 And then it's signed by counsel for each party.
15 THE COURT: All right.
16 MS. BAKER: Your Honor, if I might, in turning back to
17 Government Exhibit 200T, if I might begin again with Sheikh
18 Omar's words, the portion headed with the Roman numeral II on
19 the first page of Government Exhibit 200T.
20 THE COURT: All right.
21 (Reading continued)
22 MS. BAKER: Your Honor, if I can just have a minute to
23 get some water.
24 THE COURT: We usually take a break in the afternoon,
25 so why don't we take about 7 minutes and pick up again.
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1 Ladies and gentlemen, please remember my continuing
2 instructions not to talk about the case. Keep an open mind.
3 All rise please.
4 Please follow Mr. Fletcher into the jury room.
5 (Jury left the courtroom)
6 THE COURT: All right, see you shortly.
7 (Recess)
8 (Continued on next page)
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46UMSAT8
1 (In open court; jury not present)
2 MS. BAKER: Your Honor, before we bring the jury back
3 in, one scheduling question and one logistical question. The
4 scheduling question is, the government does not intend to call
5 another witness today. We intend to fill the remainder of the
6 day with reading some of the exhibits already in evidence. So
7 I didn't know whether your Honor wanted to make a final
8 decision about tomorrow or advise the jury about that.
9 The logistical question is, we may switch after this
10 exhibit to reading one of the other 200 series exhibits, which
11 is a transcript of a recorded call, so it involves multiple
12 parties. Does your Honor have a preference as to physically
13 where we situate ourselves to do that?
14 THE COURT: I thought you were going to work that out.
15 It would be someone from the podium or someone on the witness
16 stand.
17 MR. MORVILLO: The calls only have two parties from
18 each -- my understanding is, the calls have only two parties
19 from them, at least two people talking at any one time
20 conversing. The phone is handed back and forth. We could turn
21 this podium to face the court and have two people standing at
22 the podium if the Court would like, or we could put someone in
23 the witness box.
24 THE COURT: I would think you would have someone in
25 the witness box and talk back and forth the same way as you
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46UMSAT8
1 would as though you were doing question and answer.
2 MR. MORVILLO: That's fine with the government, your
3 Honor.
4 THE COURT: I said that if we were in the middle of a
5 witness we would go over until tomorrow, but otherwise not, and
6 so we won't sit tomorrow morning. We won't sit tomorrow and
7 that's what I told the jury.
8 I'll talk to you all at the end of the day about
9 whether we should be here in the absence of the jury, but at
10 least we can send the jury home. I am not saying we have to do
11 that, Mr. Ruhnke.
12 MR. RUHNKE: I was kind of squirming.
13 THE COURT: Bring in the jury.
14 Mr. Fletcher is going to give the jury more writing
15 pads.
16 (Jury present)
17 THE COURT: Ms. Baker, you may proceed.
18 MS. BAKER: Thank you, your Honor. I'm resuming with
19 page 4 of Government Exhibit 200T.
20 (At this point, Government Exhibit 200T in evidence
21 continues to be read to the jury by Ms. Baker)
22 MR. DEMBER: Your Honor, at this time we would like to
23 read from Exhibits 208T and 209T. May I read the relevant
24 sections of the stipulation?
25 THE COURT: Stipulation is what exhibit?
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1 MR. DEMBER: Government Exhibit 213.
2 Stipulation reads as follows: The parties hereby
3 stipulate and agree that the audio and videotapes marked as
4 Government Exhibits 208 and 209 are tapes containing
5 intercepted telephone conversations between Abdel Rahman and
6 other persons. Each of these tapes was received in evidence at
7 Abdel Rahman's trial in 1995, and Lynne Stewart was present at
8 the time each was received in evidence.
9 Government Exhibits 208 and 209 were intercepted
10 telephone conversations between Abdel Rahman and other persons
11 obtained pursuant to a court-authorized wiretap.
12 The transcripts marked as Government Exhibits 208T and
13 209T are true and accurate translations from Arabic into
14 English of the tapes marked as Government Exhibits 208 and 209
15 respectively. Government Exhibits 208T and 209T were prepared
16 by qualified expert Arabic to English translators employed by
17 the Federal Bureau of Investigation. Each of these transcripts
18 was received in evidence at Abdel Rahman's trial in 1995 and
19 Lynne Stewart was present at the time each was received in
20 evidence. All voice attributions on Government Exhibits 208T
21 and 209T, that is, all identifications on the transcripts of
22 who is speaking at any particular time, truly and accurately
23 identify the speakers on the corresponding tapes.
24 After Government Exhibits 208T and 209T were admitted
25 into evidence during Abdel Rahman's trial, they were read aloud
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46UMSAT8
1 to the jury in that case. Defendant Lynne Stewart was present
2 during the reading of each of these transcripts.
3 Your Honor, with your permission, we would like to
4 read Government Exhibit 208T. Mr. Morvillo will read the part
5 of Omar Abdel Rahman and Mr. Barkow will read the other parts
6 of an individual named Muhammad and two unidentified males.
7 May we do that?
8 THE COURT: All right.
9 MR. STERN: Before the reading begins, may I talk to
10 Mr. Dember for one second?
11 THE COURT: Yes, sure.
12 MR. DEMBER: Your Honor, Mr. Stern asked me, and we
13 agree, that the Muhammad identified in Government Exhibit 208T
14 is not the defendant Mohammed Yousry, and we acknowledge that.
15 THE COURT: Okay.
16 MR. BARKOW: May I approach, your Honor, and be in the
17 witness box?
18 THE COURT: Yes.
19 MR. MORVILLO: Your Honor, may we display Government
20 Exhibit 208T.
21 (At this point, Government Exhibit 208T in evidence is
22 read to the jury by Mr. Morvillo and Mr. Barkow)
23 MR. MORVILLO: Your Honor, at this time we would like
24 to read to the jury and publish to the jury Government Exhibit
25 209T.
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46UMSAT8
1 THE COURT: All right.
2 MS. BAKER: Your Honor if I might take Mr. Barkow's
3 place in the witness stand, but I would like to confer with Mr.
4 Morvillo first, please.
5 THE COURT: All right.
6 (At this point, Exhibit 209T in evidence is read to
7 the jury by Mr. Morvillo and Ms. Baker).
8 MR. DEMBER: Your Honor, we would next ask to be able
9 to read Exhibit 202T, which is a speech by Omar Abdel Rahman.
10 It is a lengthy speech, your Honor, about eight pages, which
11 will probably take us past the 4:30 mark.
12 THE COURT: It is 4:16. We can break.
13 Ladies and gentlemen, I told you that we would not sit
14 for very long tomorrow and wouldn't sit unless the schedule of
15 the witnesses was such that we would go over because we would
16 only be sitting for a short time tomorrow. And it is the
17 beginning of a long weekend for you and so we won't sit
18 tomorrow. Of course, Monday is a holiday. We will resume on
19 Tuesday.
20 It is very important that you follow all of my
21 instructions. Please remember, don't talk about the case at
22 all. Remember don't look at, listen to, read anything to do
23 with the case. If you should see something inadvertently,
24 simply turn away.
25 Always remember to keep an open mind until you have
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1 heard all of the evidence, I have instructed you on the law,
2 and you have gone to the jury room to begin your deliberations.
3 Fairness and justice requires that you do that.
4 Have a very good weekend. I look forward to seeing
5 you next week.
6 All rise, please, and follow Mr. Fletcher to the jury
7 room.
8 (Jury not present)
9 (Continued on next page)
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46USSAT9
1 THE COURT: Please be seated all.
2 A couple of items. One is I don't think I received a
3 defense response to the government's motion in limine with
4 respect to the examination of the witness with respect to the
5 vote taking system.
6 MR. TIGAR: If your Honor has not received it, then
7 there are people who work for me who have some explaining to
8 do.
9 THE COURT: When was it?
10 MR. TIGAR: Late yesterday is my understanding it was
11 filed. The government is nodding that they were served with
12 it.
13 MR. MORVILLO: We received it.
14 THE COURT: Was it faxed to me or delivered to me?
15 MR. TIGAR: We believe a courtesy copy was left for
16 your Honor, but there is another copy in the building. We will
17 make sure --
18 THE COURT: Just fax it to me.
19 MR. TIGAR: That it gets faxed. We did do it. I
20 remember signing it yesterday at about 5 o'clock.
21 THE COURT: That is fine.
22 I think some people had trouble with my fax number for
23 some reason. I don't know if there was something wrong with my
24 machine or people had the wrong number. I don't know. And the
25 government received it. Is the government going to reply to it
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1 or not? I haven't read it so I am not asking for a reply.
2 MS. BAKER: Your Honor, my request would be that we
3 address it orally to the extent that it needs to be addressed
4 further. The response doesn't cite a lot of law and it's the
5 kind of thing that is perhaps better dealt with orally because
6 it will depend on the court's understanding of what has been
7 said so far.
8 THE COURT: My understanding of --
9 MS. BAKER: It's difficult for me to know how your
10 Honor will understand or interpret the opposition and so I
11 would prefer to be guided by your Honor's questions in some
12 sort of oral argument.
13 THE COURT: Okay.
14 When is that witness supposed to testify?
15 MS. BAKER: Tuesday.
16 MR. TIGAR: Your Honor, it had been my suggestion, I
17 am willing to come in tomorrow. We would waive Ms. Stewart's
18 presence if that is all right with the court and however many
19 government lawyers there are.
20 My concern, your Honor, is that I have an urgent
21 engagement next January for my retirement party. I would like
22 this trial to be over by that time and quite seriously, your
23 Honor, I think that it's not fair to the jury that they don't
24 work a full day when they come in. So I am willing to come in
25 tomorrow and spend whatever time.
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1 I know that is intruding on the court's schedule but
2 for any of these matters we will do that and we can work it out
3 among ourselves if all defense counsel don't feel they need to
4 be here or all the government counsel, but I am at your Honor's
5 disposition about it.
6 THE COURT: I appreciate that. A couple of moments.
7 I am perfectly happy, as I suggested earlier, to meet
8 with you tomorrow. And I do respect the jurors' time and would
9 like them to have a full day without interruption and so I will
10 read those papers and talk to you about that tomorrow. I don't
11 see another way if the witness is going to be here on Tuesday.
12 MS. BAKER: Your Honor, I agree. And we are perfectly
13 willing to be here tomorrow at whatever time the court directs.
14 THE COURT: 9:30.
15 MR. TIGAR: May I have a moment, your Honor?
16 THE COURT: Or 10 o'clock.
17 MR. TIGAR: It would be to discuss with Mr. Sattar's
18 counsel about whether he would wish to be present or not.
19 THE COURT: Oh, sure.
20 MR. PAUL: We do intend to be here and my client
21 wishes to be present.
22 MR. TIGAR: While they are discussing, your Honor, I
23 raised with Mr. Barkow, with respect to the Sattar search
24 exhibits, I overlooked one that is in that category of lawyer
25 argument to the jury, that is 2001, and I don't know why I
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1 missed it but the pages they want to show to the jury are pages
2 done in the opening statement so it falls in that same category
3 that we were going to discuss. And Mr. Barkow said he didn't
4 have the evidence and I told Mr. Barkow we would have it.
5 Again if the Sattar exhibit matter could usefully be addressed
6 tomorrow, we will be prepared on that too.
7 THE COURT: All right.
8 We can certainly start to discuss the Sattar search
9 materials. Do I have all of the Sattar search material,
10 including the material that the parties agreed to admit as well
11 as the exhibits that are at issue?
12 MR. BARKOW: Yes, your Honor, with just a few
13 exceptions. The last three that are listed in my letter of
14 last night, which are not completed yet for the court's review,
15 two of them need to be translated. The translations are not
16 complete. And another is a videotape that we are endeavoring
17 to redact so that we can give the court the full tape and also
18 what we propose to play from it. That is just not done yet.
19 And then there is one other exhibit, and I think this is the
20 only other one that the court doesn't have yet, which is
21 extremely voluminous and in order to save the court time I
22 think Mr. Tigar at least objects to this, and in order to save
23 the court time, I was going to pare that one down more so the
24 court can review less of it, and given the other materials to
25 review, and we don't need to get to that one now, so I think I
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1 will provide that to the court at a later time. But it's very,
2 very long.
3 THE COURT: That is a compendium of newspaper
4 articles?
5 MR. BARKOW: That one is the government's brief to the
6 Second Circuit in the Abdel Rahman case. The compendium of
7 newspaper articles we reached an agreement among the parties,
8 so that that is Exhibit 2010. I am not sure if we produced
9 that to the court before but today we reached an agreement that
10 we are going to substitute a stipulation for that exhibit.
11 THE COURT: All right.
12 The redwelds include just the disputed documents, not
13 the ones that you have stipulated to admit.
14 MR. BARKOW: I think, your Honor, they include the
15 ones that we -- well, if I can just have a minute. That is
16 correct, your Honor, we submitted the ones that there were
17 disputes over at the time that I submitted the letter a few
18 days ago. So we did not submit ones that were agreed upon as
19 of that date.
20 THE COURT: In beginning to go over those exhibits, it
21 didn't appear to me that I had 20035 and with respect to 2008,
22 it didn't appear to me that I could tell from your Xerox of
23 2008 what that really was.
24 MR. BARKOW: May I have one moment to confer with our
25 paralegal so I can get that one ready one moment.
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1 Your Honor, 2008 is a book. We can give the court the
2 original. The original book is in Arabic. However, the
3 translation that we submitted, 2008T, which was actually he
4 inadvertently not submitted the the first time and attached to
5 a subsequent fax -- we can give the court another one -- is
6 just a translation of the cover which is the only part of the
7 book that we would like to have published to the jury as
8 translated.
9 So with respect to 2008T there should be a one-page
10 translation of the cover.
11 With respect to 20035, that might have just been an
12 inadvertent omission and I have a copy here if I can pass it up
13 to the court.
14 THE COURT: All right.
15 MR. BARKOW: I have another copy of 2008T, your Honor,
16 if the court would like that.
17 THE COURT: All right.
18 MR. TIGAR: While they are looking, your Honor, we
19 have located an extra copy of that response to the motion in
20 limine and the cover letter that went with it. May I hand that
21 up to your Honor's law clerk?
22 THE COURT: Sure.
23 MR. TIGAR: With Mr. Morvillo's kindness.
24 THE COURT: All right.
25 Let me raise a question with respect -- or at least an
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1 observation with respect to 2070, which was the first.
2 The objection, as I read it, is an objection, and you
3 can correct me if I am wrong, it's objections on behalf of miss
4 Stewart and Mr. Yousry and the objections as finally submitted
5 are relevance and 403.
6 Preliminarily it would appear to me that it's relevant
7 for many of the same reasons that other speeches of Sheikh
8 Rahman were relevant to, among other reasons, his state of mind
9 as a co-conspirator in Counts 1 and 2, his understanding of
10 jihad as a means of his release from custody, and it also
11 plainly goes to the state of mind of Mr. Sattar who had the
12 exhibit, and there is no viable 403 objection because the
13 relevance is not outweighed by any danger of unfair prejudice.
14 Now, the government in discussing 2070 discusses 2057
15 at the same time. Now, 2057, the objection to 2057 is, in
16 addition to relevance, it's an objection with respect to
17 hearsay and I didn't see a response in the government's letter
18 or in the government's argument with respect to hearsay.
19 MR. BARKOW: Your Honor, 2057 is also a statement by
20 Abdel Rahman and it is a statement of a co-conspirator
21 therefore and, therefore, is nonhearsay under 801(d)(2)(e).
22 THE COURT: I thought that is what you might have been
23 intending but the problem with that is that -- or at least the
24 issue with respect to that is that you have given me a long
25 paragraph explaining that you can date this as after January of
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1 '96, right?
2 MR. BARKOW: Right.
3 THE COURT: And to be admissible against a hearsay
4 objection as a statement by a co-conspirator as nonhearsay, the
5 statement has to be made in the course of and in furtherance of
6 the conspiracy of which both the declarant and the objector
7 were members, during and in the course of and in furtherance of
8 the conspiracy, and the first conspiracy alleged in the
9 indictment is in April of 1997. There is a header which the
10 defendant points out with respect to CNN, which is in 1998, and
11 I don't know whether this is independently able to be placed as
12 during and in furtherance of the conspiracy, but that is why I
13 read the letter and I was -- and it says with a flourish that
14 it can be placed after January '96. Now, there are other
15 arguments which are sometimes made but I wanted to find out
16 exactly what the position was.
17 MR. BARKOW: Well, your Honor, with respect to the
18 statements in furtherance of a conspiracy, I don't have the
19 case names at my fingertips, but it's my understanding that the
20 case law is that the conspiracy that is being furthered by the
21 statement need not be co-terminous with the conspiracy charged
22 in the indictment and --
23 THE COURT: That is what I was sort of obliquely
24 referring to as there are other arguments which are made.
25 MR. BARKOW: And that is the argument we are making
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1 here, and it relates back into the similar argument, but this
2 one I think is squarely supported by case law, to the idea of
3 the conspiracy-in-fact argument that I voiced before to your
4 Honor. In this context though we do -- I don't know the names
5 of the cases, but there is case law that supports the notion
6 that a statement by a co-conspirator can be made in furtherance
7 of a conspiracy even if that conspiracy is not exactly the same
8 in terms of the dates as that charged in the indictment. And
9 so it's our theory that once Abdel Rahman was imprisoned the
10 conspiracy was in existence in fact to commit acts of violence
11 in order to free him and this statement urging his followers to
12 commit such acts in order to secure his release, change his
13 conditions, what have you, constitute statements in furtherance
14 of the conspiracy in that sense, regardless of the fact that it
15 isn't overlapping with the charging dates of the indictment.
16 THE COURT: Well, you should send me a letter on that
17 tonight, first. And, second, if that is the theory, then of
18 course it would also have to meet all of the other standards
19 under Bourjaily for a statement during in and furtherance of
20 that conspiracy and as long as the issue is out there it
21 would -- I would also have to tell the jury, if that is the
22 theory of admissibility, that the statement is taken subject to
23 connection and that what that means is the jury can consider
24 the statement unless at some time I direct them not to consider
25 the statement. So that it satisfies the procedures in Geaney
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1 and Tracy.
2 MR. RUHNKE: Your Honor, just one comment on the
3 foundation aspects of 801(d)(2)(e) evidence is also the issue
4 of membership and it is our position that there are not facts
5 sufficient from which one can infer or a jury can infer or find
6 that Mr. Yousry was a member of any conspiracy back whenever
7 this statement was made. The indictment doesn't do it. The
8 indictment is just the allegation.
9 THE COURT: Oh, but isn't it also the case that if a
10 person joins a conspiracy that the person is charged even with
11 the statements that were made prior to the time that the person
12 joined the conspiracy?
13 MR. RUHNKE: Yes, but he --
14 THE COURT: And the issue with respect to whether a
15 person was a member of the conspiracy would be one of those
16 issues that would be subject to the instruction to the jury
17 that I am taking this subject to connection.
18 MR. RUHNKE: Yes, I agree. Ultimately your Honor has
19 to make the the finding.
20 THE COURT: Yes, I have to make the finding at the
21 conclusion of the evidence under Geaney.
22 MR. RUHNKE: The point being that all of this is
23 subject to connection and subject to being stricken if at the
24 end of the government's case the Bourjaily foundational
25 requirements have not been met as to Mr. Yousry or as to if I
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1 one else. I don't want to go by the question of membership as
2 well.
3 THE COURT: No, I --
4 MR. RUHNKE: We seem to be on the same page on that.
5 THE COURT: Yes, I understand that if there is any
6 statement that is taken subject to connection because there is
7 a hearsay objection and I am taking it because it's an alleged
8 co-conspirator statement that it would be taken both subject to
9 connection and I would tell the jury that subject to connection
10 means that they can consider it unless I tell them it's
11 stricken.
12 Over and above the issue of taken subject to
13 connection, there would be a nonhearsay basis for taking that
14 statement against Mr. Sattar for Mr. Sattar's state of mind
15 having that statement. So at the very least the instruction
16 would probably should be, though I am certainly prepared to
17 listen to counsel, that the statement is taken for purposes of
18 the affect that it had on Mr. Sattar's state of mind and with
19 respect to the other defendants it's taken subject to
20 connection, which means that they can consider it unless at
21 some point I tell them not to consider it.
22 MR. RUHNKE: Yes, your Honor. While we are on that
23 topic of state of mind and subject to connection, we have had
24 discussions with the government about the 403 aspect or the
25 aspect of 403 that has to do with jury confusion of the issues
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1 and we are getting to an agreement where the government is
2 going to, by the time this goes to the jury, identify by
3 sticker, by cover sheet, by some mechanism the purposes for
4 which documents were admitted when there are limited purposes
5 and defendants against whom the documents were admitted when
6 they were admitted as to all defendants, as to Sattar only, as
7 to Sattar and Stewart only. I don't know if there are only
8 Yousry documents only that are down the pike, but we are
9 working on a mechanism and we will let you know when we get it
10 worked out to try to solve that problem so the jury can at
11 least pick up an exhibit and say, oh, I can't consider this
12 against Yousry.
13 THE COURT: That is fine. That would be good.
14 You know, you would expect that this is a case where
15 given the fact that there are only three defendants, that this
16 is not nearly as complicated as some of the other cases where
17 there were far more defendants and the jury would have to keep
18 far more discrete offers but I agree with you that that is a
19 very good suggestion.
20 MR. RUHNKE: In other cases generally you have an
21 overarching conspiracy that gets everybody into it, and here we
22 have separate conspiracies charged running in the same
23 indictment, some of which involve only a single defendant.
24 THE COURT: Yes, but there is one overarching
25 conspiracy, Count 1.
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1 MR. RUHNKE: I agree, but when you have a conspiracy,
2 for example, as the Count 2 conspiracy where the only defendant
3 on trial who is involved in the Count 2 conspiracy is
4 Mr. Sattar and many documents relate only to that conspiracy,
5 we are trying to make it less confusing.
6 THE COURT: I think that is a very good idea. I
7 thought that we really only finished, although we are at the
8 second week we had a problem of a juror not being here, the
9 first week was taken up with not only finishing jury selection
10 but opening statements, so that we have had about one week of
11 testimony, and I think that is an awful lot that has gone on in
12 the course of that week, so I am not -- I hope that things are
13 moving expeditiously and that the estimates that this will take
14 as long as it was thought might not be true.
15 MR. TIGAR: Your Honor, I do have, did have, and would
16 have an argument about 2057 and 2070. I would like to reserve
17 it until we see the government's letter. I think that is more
18 efficient.
19 THE COURT: Fine.
20 MR. TIGAR: I would point out, so that maybe they can
21 respond to it, that in their various papers, which I had
22 understood the court to treat as a bill of particulars, the
23 papers and argument, they have identified different
24 conspiracies over different periods with different participants
25 and to the extent that they are going to come up with a
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1 conspiracy theory to get this document in, if indeed this is a
2 different or new or a change, then we would have to address the
3 question whether the criminal Rule 7 requirements about
4 amending a bill would apply.
5 The other thing that would apply is if this conspiracy
6 is thought to be a crime, wrong or act charged now against Ms.
7 Stewart although uncharged in the indictment, then the
8 government would have to answer why we haven't had a 404(b)
9 notice about it. And that is in addition to the evidentiary
10 issues and lord knows I do have something to say and I will
11 just wait until tomorrow.
12 One more thing. I do intend to send your Honor a
13 letter about the Yldiz case. Not to argue about a ruling
14 already made but in anticipation that we may be back over this
15 ground again, I will try to do that within the next day or so.
16 I intend by that no disrespect, but it is something I would
17 like to do.
18 THE COURT: Okay. And the government can also
19 respond.
20 I have two observations with respect to the newspaper
21 articles which are government exhibits 2004, 5, 6 and 7, and
22 these are offered only against Mr. Sattar, so they would be
23 subject to two limiting instructions. One, they are considered
24 only against Mr. Sattar, and, 2, they are newspaper articles so
25 they would be subject to the limiting instruction that Mr.
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1 Fallick asked me to give, which was similar to a limiting
2 instruction that I have given before with respect to newspaper
3 articles. So they are subject to 2 limiting instructions. My
4 first question is really for the defense, which is those who
5 object to the newspaper articles, is there any case where the
6 courts have said that being subject to those -- to limiting
7 instructions like that, that the jury couldn't follow such
8 limiting instructions? It appears to me that there are lots of
9 cases where the kinds of limiting instructions and the kinds of
10 evidence that the jury is being asked to subject to limiting
11 instructions are on their face far more difficult, and
12 Richardson does go through a lot of those cases, and Sovairo
13 also talks about the fact that even inconsistent defenses are
14 not a basis for severance.
15 Is there any kind of a similar case?
16 MR. TIGAR: I will relook overnight.
17 I have two brief observations, however, about your
18 Honor's point. Sovairo and the Court of Appeals' decisions
19 hold that a decision denying severance is almost never
20 reversed. They also say that limiting instructions are almost
21 always going to be all right as not to cause reversal. You
22 know, the appellate law on Rule 14, your Honor, is rather like
23 Jonathan Swift's argument about precedence, and I respectfully
24 suggests that it really represents a kind of outer limit and
25 not a counsel to the court about how the court -- I mean,
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1 everybody inside this bar has tried a lot of lawsuits and we
2 understand about jurors. In the present climate the question
3 about limiting instructions, given the problems about sort of
4 guilt-by-association feelings in society at large, I
5 respectfully suggest to wade here and we can talk about it more
6 but I want to put out that idea.
7 And the second one is, your Honor, I have most of my
8 life been a defense lawyer. I have been a member of the
9 prosecution team in two major terrorism cases in two countries.
10 We never thought that the fact that a militant person who
11 collects newspaper articles should by dint -- that that said
12 anything about it and it is the minimal relevance of the fact
13 that Mr. Sattar collects newspaper articles about a case in
14 which he was a paralegal that also weighs here, your Honor, and
15 it concerns me. It's guilt by newspaper subscription, and
16 although I know that there are cases, and if you read the Smith
17 act cases in 3 67 U.S. beginning at page 203, I think, we know
18 how those cases went but it's that concern, your Honor, that
19 undergirds a great deal of what we are doing here.
20 I am not going to make a stump speech about it, your
21 Honor, but it bothers me and it has bothered me from the
22 beginning and I am sure it will come up again.
23 THE COURT: Well, that was going to be the question to
24 the government actually, which was you have gone apparently
25 some ways toward reaching some accomodation with respect to
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1 newspaper articles and the real question that I have for the
2 government with respect to newspaper articles is there are
3 levels of knowledge and notice and the fact that the parties
4 are attempting to cut back on here is the complete does ear of
5 all of the newspaper articles that were found in this person's
6 possession in view of the different things that are included in
7 newspaper articles. The question is what is the specific
8 notice that goes to state of mind for which the newspaper
9 articles are being offered and can the newspaper articles
10 reasonably be redacted, for example. One of the issues is one
11 of the defendants who plainly was present at the last trial
12 obtains direct knowledge of some of this. Another defendant,
13 such as Mr. Sattar gets it indirectly but still gets notice.
14 (Continued on next page)
15
16
17
18
19
20
21
22
23
24
25
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1 THE COURT: But notice of what? How important is that
2 notice to the state of mind at issue in the case And these
3 other newspaper articles being compared to what, if anything,
4 should be done about these newspaper articles.
5 And the other question, of course, is whether there is
6 anything about the newspaper articles that interferes at all
7 with the sort of careful stipulation that had been arrived at
8 by the parties and my limiting instruction with respect to the
9 prior conviction.
10 I do begin with the proposition that there are
11 purposes of the newspaper articles and that there are two
12 limiting instructions that would be given and juries are
13 expected to follow limiting instructions and there are much
14 harder limiting instructions to be followed than any of these
15 instructions. But I'm also attentive to the issue of not
16 relying excessively on notice from newspaper articles.
17 I realize that the newspaper articles are supplemented
18 by other things. In fact, Mr. Sattar is quoted in the
19 newspaper articles himself. Of course, I don't know whether
20 any of those quotations are accurate or not accurate.
21 Newspaper articles are hearsay. But those are at least the
22 issues in my mind to be addressed.
23 MR. BARKOW: Your Honor, I'll try to address as many
24 of them as I can.
25 First of all, this is not at all -- we are not at all
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1 trying to establish guilt by a newspaper subscription. We are
2 trying to establish what the Court recognized in its comments,
3 that is, knowledge by Mr. Sattar of what happened in Sheikh
4 Abdel Rahman's trial. It is quite different to establish
5 against Ms. Stewart, who is clearly and obviously there, than
6 it is against Mr. Sattar, who had a different connection to the
7 trial and the result; and, therefore, with respect to these
8 articles that we are focusing on, the purpose for it is to show
9 that Mr. Sattar knew what happened at that trial and was aware
10 of it and aware of what happened.
11 It is not guilt by association. It is just a means of
12 gaining knowledge. And it is, for example, one of the ways
13 that I know most of the things that I know about what's
14 happening in the world because I read the newspaper. And
15 although the newspaper can be wrong and that argument is
16 available to Mr. Sattar, it is a means of imparting knowledge
17 and it is one of the ways in which Mr. Sattar knew what
18 happened.
19 I have to say I don't -- Mr. Sattar, as the Court
20 knows, is not objecting to these exhibits and so these are
21 offered because they are a means and one of the ways we could
22 establish his knowledge of what happened to the Court, And that
23 has nothing to do with Ms. Stewart.
24 We agree with respect to Exhibit 2010, which was
25 another pile of newspapers, because those exhibits are totally
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1 different than these. These exhibits, the 2004, 2005, 2006,
2 relate to Sheikh Abdel Rahman's trial and we want to use them
3 to show that Mr. Sattar knows what happened there and what the
4 result was. Exhibit 2010 are a pile of articles that related
5 to the first World Trade Center bombing in 1993. And the
6 reason that we agreed and have agreed with respect to that set
7 of articles to take it and substitute a stipulation is because
8 the content of those articles beyond the fact of collection and
9 the subject matter is not -- we are not trying to establish the
10 content of the articles that was known to him. That is an
11 example of the fact that Mr. Sattar had a clippings file of
12 that event which shows an interest in that event.
13 Some of the articles have notations in handwriting.
14 They are cut from the newspaper, which shows that his attention
15 was focused on them enough to cut them out, And it is an
16 interest. We can use that to argue that he has an interest in
17 and a curiosity in an event that predated his work as a
18 paralegal. And just like some other person who might collect
19 stamps, that collection would show they have an interest in
20 stamps; this shows he has an interest in that. And the
21 argument is available that he might have collected it for some
22 other reason. That's a different purpose and that's why we
23 agreed to a stipulation with that, than the 2004, 2005, 2006
24 exhibits where we are actually trying to show that he knows
25 what is said in the articles. He knows what was reported and,
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1 therefore, he has knowledge of that, And the stipulation that
2 we agreed to about the conviction and was agreed to so that
3 those facts can be established for the truth of the matters
4 asserted, that Abdel Rahman was in fact convicted, was in fact
5 sentenced, and was in fact convicted of particular offenses and
6 dates and that sort of thing.
7 This evidence is offered to show Mr. Sattar's
8 knowledge. And the fact of the conviction is not necessarily
9 known to Mr. Sattar. And what happened at the trial is not
10 necessarily known to Mr. Sattar. And what Abdel Rahman was
11 convicted of is not necessarily known to Mr. Sattar, just by
12 virtue of the fact that the conviction occurred.
13 THE COURT: I bet that you could get a stipulation on
14 that without much effort. I don't know. I don't require
15 parties to stipulate.
16 MR. BARKOW: I am not sure, your Honor, what we would
17 stipulate to. I don't imagine there would be a stipulation to
18 this, that Mr. Sattar knew that Abdel Rahman was convicted of
19 seditious conspiracy for leading a bombing and assassination
20 campaign and solicitation and conspiracy to kill President
21 Mubarak and solicitation to attack a military installation and
22 bombing conspiracy for providing advice on targets.
23 Then the allegation is that Mr. Sattar took the lead
24 or participated with others in taking the lead to disseminate
25 Abdel Rahman's directive to commit acts of violence. I don't
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1 think -- maybe I'm wrong -- that there would be a stipulation
2 that Mr. Sattar did that knowing that it might be effective,
3 that it might actually cause something to happen because those
4 are the kinds of things that Mr. Sattar knew Abdel Rahman was
5 purported to be involved in.
6 That's one point. Another point is the mere fact that
7 Sattar chose to keep these articles is probative. He didn't
8 keep every article from 1995. Some of these articles were
9 found together, And that is a significant fact. The particular
10 type of clippings file is probative of an interest in a
11 particular area, And it may have different explanations. It
12 may have innocent explanations. But that seems to be an issue
13 that goes to weight and it is for the jury to decide what the
14 explanation is, if there is one, for the possession of that
15 collection.
16 And so I guess the point is, we view the stipulation
17 that we entered into and -- with respect to the conviction
18 itself and also the stipulation that we have agreed to with
19 respect to Exhibit 2010, the 1993 World Trade Center bombing
20 articles, as being very different because they all raise
21 different issues and we want to use them for different
22 purposes.
23 And because, as the Court recognized at the beginning
24 of its comments that Zafiro and Richardson and the cases
25 establish that juries can keep things straight and use them for
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1 appropriate purposes. And if the person against who these are
2 being offered does not object, I don't feel a desire to engage
3 in a discussion with Mr. Tigar for a stipulation as to an
4 exhibit that isn't even offered against his client and that the
5 jury is presumed not to use against his client because to the
6 government he doesn't really have an issue here with these
7 exhibits because the jury is going to be presumed to apply them
8 and use them against a defendant who doesn't object.
9 MR. TIGAR: Your Honor, very briefly, remember, there
10 was a screen, couple of screens ago -- and I don't know if your
11 Honor saw it -- that has the name Hosni Mubarak. It was from
12 the Times article. When I negotiated that stipulation with
13 Mr. Barkow -- I am sure he will confirm this -- originally he
14 wanted the Hosni Mubarak language in there. For obvious
15 reasons, I told him that was a nonstarter. We just never were
16 going to agree to that. And the reason was that it was just
17 too close to what was being talked about in this indictment.
18 And that screen is what got me started on the spillover aspect
19 of this. I am not going to argue about limiting instructions
20 or this and that. I am saying that was my intent when I
21 entered the stipulation.
22 THE COURT: Mr. Fallick.
23 MR. FALLICK: Your Honor, mindful of your Honor's
24 observations about the newspaper articles and the concerns of
25 our fellow counsel, I think we might be able to work out a
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1 stipulation with the government as we did certain other
2 articles. Certainly, we can try to do that.
3 MR. RUHNKE: Your Honor, just to weigh in for the
4 third defendant, yes, it is not being offered against us and
5 our issue and the 403 issue is that the risk that the jury
6 would not follow the limiting instruction we think because of
7 the nature of these materials is simply too great for
8 Mr. Yousry to risk.
9 MR. BARKOW: Your Honor, we will talk with Mr. Sattar
10 because those discussions have in the past proven fruitful.
11 But with respect to the stipulation -- and I will confirm that
12 in my discussion with Mr. Tigar. He said that the inclusion of
13 Hosni Mubarak for the truth of the matter asserted was a
14 nonstarter for him and we agreed to take it out for the truth
15 of the matter asserted. That is true. That is what we
16 discussed.
17 But I think he, too, would agree that in the same
18 conversation he said to me -- and I'm essentially quoting
19 because I remember this -- he said: You guys are going to get
20 all the rest of this in anyway in other ways. So he knew when
21 we entered into this stipulation that this issue was going to
22 come up. We did not and he at least would agree that it was
23 explicit that we did not enter into this stipulation with any
24 expectation that it would tie our hands later in terms of other
25 evidence because Mr. Tigar knew we had this evidence. I'm not
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1 saying he agreed that we would admit it, but he knew it was out
2 there and he knew that that stipulation discussion was confined
3 to evidence offered for the truth, for the truth of the matter
4 asserted, and this is different. And this evidence is not
5 offered against Ms. Stewart.
6 THE COURT: I plainly am not going to get in the
7 middle of negotiations among the parties. There is an offer to
8 attempt to work out some stipulation. There are levels to be
9 considered. There really are. And the notes about the
10 government would be able to get this information in any way
11 could be read either as the importance and admissibility of
12 underlying evidence at the first trial for a variety of
13 reasons, from notice to the defendants, to the other ways in
14 which that evidence is relevant, which is a different question
15 from the effect of the jury verdict in the first trial, which
16 raises different issues. And it is why I gave such a careful
17 instruction with respect to the conviction in the first case.
18 That's separate from all of the evidence and the ways
19 in which that evidence is admissible. Admittedly, that's a
20 separate issue from notice to the -- to each of the parties
21 about what happened in the first trial. All I'm saying is that
22 it is very important to keep the issues carefully defined.
23 MR. BARKOW: We agree, your Honor. That's why we
24 don't see them as related, because that evidence was discussed
25 and agreed upon, presented in its context, and at least with
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1 respect to me -- and I was quite certain when it was happening
2 with respect to Mr. Tigar, with whom I discussed it, it was a
3 carved-out issue when we were talking about that. We don't
4 think that we should be -- I don't know -- because we have been
5 reasonable and willing to discuss things and take out certain
6 things in certain contexts why we need to basically take all of
7 our evidence and replace it with stipulations. There is a
8 difference when a person has a clippings file on something and
9 shows a level of curiosity and interest and knowledge of an
10 incident which is different than a stipulation signed by
11 parties. It is a different piece of evidence. It has got
12 different weight.
13 And it shows -- it has Old Chief factors to show that
14 that kind of evidence is more persuasive. And that's why we
15 want to use it subject to a limiting instruction and with
16 respect to the offer of the truth of the matter asserted for
17 Abdel Rahman's convictions, recognizing that that is different
18 because the truth of the matter asserted, that Abdel Rahman was
19 guilty of trying to kill Hosni Mubarak, or whatever exactly the
20 phrase was, when it is offered for the truth of the matter
21 asserted is more powerful.
22 It can't be cabined because there are no limits and we
23 can argue whatever we want from it. But when evidence is
24 admitted for the sole purpose of knowledge against a particular
25 defendant, we are very limited in how we can use it in
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1 argument. We can't imply or suggest that it is usable against
2 anyone else. The Court will instruct the jury that it can't be
3 usable against anyone else for any other purpose. But the
4 evidentiary richness of the exhibit is just different when it
5 is a pile of newspaper articles clearly meticulously kept and
6 clipped that show that someone paid special attention to these
7 facts. That's just a big difference in terms of its probative
8 value and the moral effect it may have on the jury in reaching
9 its decision. And that's why we don't -- we are not very
10 interested in stipulating on this exhibit. We will talk to
11 Mr. Sattar, but we just -- we don't feel as though we should
12 need to stipulate because of objections that are being voiced
13 by defendants who we all will presume the evidence will not be
14 used against at all, much less improperly.
15 MR. RUHNKE: Your Honor, I don't know who the Supreme
16 Court justice was who said something to the effect that the
17 idea of juries -- the idea of juries following limiting
18 instructions, all practicing lawyers know to be other fiction.
19 We indulge the presumption and we indulge -- and the cases say
20 so -- there are rare cases such as Bruton which say that the
21 risk that the jury not be able to follow limiting instruction
22 under certain circumstances are too great to risk.
23 What I would suggest very practically at this juncture
24 is that we allow the parties the opportunity to discuss these
25 issues further. We actually made some headway in resolving
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1 these, that we not push people up against their final position
2 by argument which has a way of freezing people in their
3 positions.
4 THE COURT: Very reasonable. I attempted to set out
5 the consideration on both sides. I fully appreciate the law
6 with respect to Richardson and Zafiro, and I raised issues on
7 the other side, and I think the parties can properly discuss
8 them, and I agree with you.
9 MR. RUHNKE: I don't see the urgency to resolve all of
10 the Sattar issues as distinct from the tape issues where the
11 witness is coming on on Tuesday right now. There is lots of
12 evidence that's in evidence that can be presented to the jury.
13 I think the discussions might be proper among everybody. I
14 offer that to the government to see if the government agrees,
15 to see if we can try to resolve them all by tomorrow.
16 THE COURT: Again, I'm happy to put some -- I don't
17 want to hold the parties up unnecessarily. I think it is a
18 good idea for you to talk.
19 MR. BARKOW: Your Honor, we will talk, but this, as
20 the Court, I think, can probably discern, as between the
21 government and Ms. Stewart, there is a fundamental disagreement
22 here as to whether juries follow their instructions. And
23 because we think they do in virtually all circumstances and
24 they think that they don't, I don't think we are going to reach
25 an agreement that satisfies them as to the evidence that's not
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46UMSAT10
1 offered against them, but we will try.
2 MR. TIGAR: Your Honor, my faith about whether juries
3 follow instructions is somehow unrelated to my understanding of
4 what the law is that presumes that they do and, therefore, I
5 think Mr. Barkow has reason for more hope than he now expresses
6 about the prospects of agreement.
7 THE COURT: I'll certainly deal with the issue of the
8 witness who has to testify on Tuesday and I'll get the
9 government letter on the issue with respect to 2057. And I'll
10 listen to the parties for anything they want to tell me. I am
11 not sure how many of the Sattar documents I am going to have to
12 get into tomorrow to resolve. I did want to at least set out
13 some of the issues for you.
14 MS. BAKER: Your Honor, what was your final
15 announcement about what time tomorrow morning?
16 THE COURT: I think 10:00 will be fine.
17 (Adjourned to Thursday, July 1, 2004, at 10:00 a.m.)
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1 INDEX OF EXAMINATION
2 Examination of: Page
3 KARA CHRISTENSON
4 Direct By Mr. Dember . . . . . . . . . . . . 2786
5 Cross By Mr. Tigar . . . . . . . . . . . . . 2806
6 Cross By Mr. Ruhnke . . . . . . . . . . . . 2850
7 Redirect By Mr. Dember . . . . . . . . . . . 2855
8 Recross By Mr. Tigar . . . . . . . . . . . . 2859
9 Recross By Mr. Ruhnke . . . . . . . . . . . 2859
10 NANETTE H. SCHUMAKER
11 Direct By Mr. Barkow . . . . . . . . . . . . 2861
12 Cross By Mr. Fallick . . . . . . . . . . . . 2898
13 Redirect By Mr. Barkow . . . . . . . . . . . 2907
14 Recross By Mr. Fallick . . . . . . . . . . . 2908
15 GOVERNMENT EXHIBITS
16 Exhibit No. Received
17 360-366 . . . . . . . . . . . . . . . . . 2793
18 319-329 . . . . . . . . . . . . . . . . . 2799
19 370 . . . . . . . . . . . . . . . . . . . 2805
20 363A . . . . . . . . . . . . . . . . . . 2853
21 366A . . . . . . . . . . . . . . . . . . 2854
22 3542E . . . . . . . . . . . . . . . . . . 2866
23 2082A-2082EE . . . . . . . . . . . . . . 2869
24 2085 . . . . . . . . . . . . . . . . . . 2893
25 2000, 2009, 2009A, 2032, 2036, 2047S, 2049S 897
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1 2050A through 2050L, 2053, 2056, 2058 . . 2897
2 2061, 2062, 2063, 2069, 2072, and 2081 . 2897
3 DEFENDANT EXHIBITS
4 Exhibit No. Received
5 LS-14 and LS-15 . . . . . . . . . . . . . 2846
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