7 July 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 18 of the proceeding and Day 9 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/
3222
477SSAT1
1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
2
3 UNITED STATES OF AMERICA,
3
4 v. S1 02 Cr. 395 (JGK)
4
5 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
6 and MOHAMMED YOUSRY,
6
7 Defendants.
7
8 ------------------------------x
8
9
9 New York, N.Y.
10 July 7, 2004
10 9:30 a.m.
11
11 Before:
12
12 HON. JOHN G. KOELTL
13
13 District Judge
14
15
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24
25
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1
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
10
10 DAVID STERN
11 DAVID A. RUHNKE
11 Attorneys for Defendant Yousry
12
12
13
14
15
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1
1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all. Please be seated.
4 Are we ready to call in the jury?
5 MR. DEMBER: Yes, we are, your Honor. Shall I call
6 the first witness and place him on the stand?
7 THE COURT: Yes, please.
8 MR. RUHNKE: Before the jury comes in, we received Mr.
9 Barkow's letter. I got it the first thing this morning. I
10 would like an opportunity to reply to it orally or in writing.
11 THE COURT: Absolutely.
12 Which would you prefer?
13 MR. RUHNKE: Orally is fine, your Honor.
14 THE COURT: Okay.
15 MR. FALLICK: May I speak to Mr. Barkow before we
16 bring the jury in for a moment?
17 THE COURT: Absolutely.
18 All right. Mr. Ruhnke stepped out?
19 MR. STERN: He did, Judge. He had to get something.
20 He will be back in a moment.
21 THE COURT: I will wait.
22 MR. BARKOW: Your Honor, while we are waiting for Mr.
23 Ruhnke, can I confer again with Mr. Fallick?
24 THE COURT: Yes.
25 All right, are we ready for the jury?
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1 MR. DEMBER: Yes, your Honor.
2 THE COURT: Okay.
3 Let's bring in the jury.
4 (In open court-jury present)
5 THE COURT: Please be seated all.
6 Good morning, ladies and gentlemen.
7 Good to see you all.
8 We are doing a little better on time, so I am glad
9 that we didn't have to keep you waiting too long this morning
10 and, as I say, it's good to see you.
11 All right, the government may call its next witness.
12 MR. DEMBER: Your Honor, the government calls Patrick
13 Killeen.
14 PATRICK KILLEEN,
15 called as a witness by the Government,
16 having been duly sworn, testified as follows:
17 DIRECT EXAMINATION
18 BY MR. DEMBER:
19 Q. Mr. Killeen, let me just remind to you speak in a loud,
20 clear voice and speak into the microphone in front of you so
21 that everyone can hear your testimony.
22 Mr. Killeen, by whom are you employed?
23 A. I am employed by North Hamptonshire Police.
24 Q. Where is North Hamptonshire?
25 A. It's in the midland area of England.
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 Q. That is in Great Britain?
2 A. In Great Britain, yes.
3 Q. What is your position with the North Hamptonshire Police
4 Department?
5 A. I am a detective constable.
6 Q. And how long have you held that position?
7 A. For 24 years.
8 Q. By the way, where is North Hamptonshire in relationship to
9 London, England?
10 A. It's about 70 miles.
11 Q. 70 miles from London?
12 A. Yes.
13 Q. And --
14 THE COURT: Please speak into the microphone so
15 everyone can hear you.
16 THE WITNESS: I am sorry.
17 Q. And how long have you held the position of detective
18 constable?
19 A. Approximately 20 years.
20 Q. Do you have occasion to work with New Scotland Yard?
21 A. Yes, I do. I am actually attached to the special unit,
22 operations unit, in Scotland Yard.
23 Q. And what do you actually do as a member of that special
24 operations unit?
25 A. I am a forensically trained scene manager and exhibits
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1 officer.
2 Q. And what do you do? What do you actually do in that
3 position?
4 A. During the course of searches I carry out duties to obtain
5 and maintain exhibits.
6 Q. Is that from searches that you have conducted?
7 A. That is correct, sir.
8 Q. And how long have you held that position?
9 A. For the last 8 years.
10 Q. Now, let me direct your attention back to October 23, 2001.
11 Did you participate in the search of a premises on that day?
12 A. I did, sir.
13 Q. And what was the location of the search that you conducted?
14 A. It's 99A Bell Street in Paddington, London.
15 Q. And what part of London is that?
16 A. Well, the area is called Paddington. It's approximately 5
17 miles from the center of London.
18 Q. And what type of premises was at that location?
19 A. It's a book shop.
20 Q. And do you know what kind of book shop it was?
21 A. Yes, it's predominantly Islamic Arabic books.
22 Q. Did you go to that location on that day?
23 A. I did, sir.
24 Q. And had you ever been to that location before that day?
25 A. No, sir.
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1 Q. Do you recall if there was a name on the bookstore itself?
2 A. From memory I believe it said something like Islamic Books,
3 but I am not certain of that.
4 Q. Now, before you went to that location or actually entered
5 that location, did you have a court-authorized search warrant
6 to actually enter those premises?
7 A. We did, sir.
8 Q. And did that search warrant call for you to seize certain
9 items?
10 A. Yes, sir.
11 Q. And in general terms, what did the search warrant allow you
12 to seize at that location?
13 A. Computers, papers, and any other material pertaining to
14 that warrant.
15 Q. Did you actually obtain the search warrant yourself?
16 A. No, sir.
17 Q. Did another one of the officers or detectives do that?
18 A. Yes, they did.
19 Q. Now, how did you gain entry on that particular day to these
20 premises?
21 A. Another search was being carried out at another address and
22 keys that were found at that other address to do with the shop
23 were delivered to me and I gained entry using those keys.
24 Q. And when you entered the premises on that day, was there
25 anyone present?
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1 A. No, it was empty.
2 Q. And approximately what time of day did you enter 99A Bell
3 Street?
4 A. Approximately 7:15 a.m.
5 Q. Could you describe for us briefly the premises as you
6 observed them, as you entered them that day?
7 A. Yes, it's a very narrow shop on one level. To the left as
8 you enter the shop was a desk with papers strewn all about and
9 computer equipment. Immediately in front of the desk was piles
10 of books and behind the desk were rows of bookshelves. To the
11 right of the shop were other shelving units filled with books
12 and other items.
13 To the middle aisle of the shop were racks of clothing
14 and at the end of the shop was a curtain area and as you go
15 into the curtain area there was a flight of approximately 7
16 steps down to a lower area and then through that smaller area
17 through to the back of the shop which was a toilet area for the
18 staff.
19 Q. By the way, Detective Constable Killeen, other than
20 conducting a search or other than searching those premises, did
21 you have any other involvement in this case here?
22 A. There was one other premises I searched at another date but
23 not pertaining to that particular individual.
24 MR. DEMBER: Your Honor, may I approach the witness?
25 THE COURT: Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 Q. Detective Constable Killeen, I have just placed before you
2 a document which has been marked for identification as
3 Government Exhibit 2702. Do you recognize that document?
4 A. Yes, sir.
5 Q. And how do you recognize it?
6 A. It's the copy of a rough sketch plan that I made as I
7 entered the shop.
8 Q. You prepared that sketch?
9 A. Yes, I did, sir.
10 Q. Is that sketch to scale?
11 A. No, sir.
12 Q. But does it fairly and accurately depict the way the shop
13 was laid out and appeared when you entered it on that day?
14 A. It does, sir, yes.
15 MR. DEMBER: Your Honor, the government offers into
16 evidence Government Exhibit 2702.
17 THE COURT: All right. No objection. Government
18 Exhibit 2702 received in evidence.
19 (Government's Exhibit 2702 received in evidence)
20 Q. By the way, there is a second page to the exhibit as well,
21 is that correct?
22 A. That is correct, sir.
23 Q. What is the on the second page?
24 A. It's a rough sketch of the desk area I mentioned detailing
25 the drawers and how I marked the drawers.
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 Q. And that is a desk that was inside the store itself?
2 A. It is, sir.
3 MR. DEMBER: Your Honor, may I display 2702 to the
4 jury?
5 THE COURT: Yes.
6 Q. Detective Constable Killeen, would you just take us through
7 the diagram starting at the entrance? I think do you have it
8 in front of you as well?
9 A. I do.
10 Q. Why don't you point where the entrance was to the store.
11 A. Just here is the shop doorway. It's a single point of
12 entry to the shop. Immediately as you go into the shop the
13 desk is just here.
14 Q. Is that the desk that appears on the second page of this
15 exhibit?
16 A. It is, sir.
17 Q. Continue please.
18 A. Immediately before the desk was piles of various books and
19 at the back of the desk were rows of book shelving, as is on
20 the opposite side of the room there. There were other rows of
21 bookshelves in the middle of the area and behind those was the
22 clothing rack. Just here is the curtain area leading down into
23 the steps, and then the toilet area at the very rear of the
24 premises. By the side of each step are storage areas where
25 packages were stored.
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 Q. Now, Detective Constable Killeen, did you conduct the
2 search by yourself?
3 A. No, sir.
4 Q. Who assisted you?
5 A. There was a detective inspector who because of our law
6 system we have to have a detective inspector to execute that
7 warrant.
8 Q. Is he a higher ranking officer than yourself?
9 A. Yes, sir.
10 Q. Go ahead.
11 A. Then I had two search officers who were under my control
12 and also an interpreter for any foreign-language material that
13 we found.
14 Q. And what language did the interpreter speak?
15 A. Arabic.
16 Q. Now, would you describe for us how you actually conducted
17 your search that day?
18 A. Initially I went into the shop on my own and carried out
19 what we call a safety check, which is basically just to make
20 sure that there isn't any materials in there that could harm
21 either myself or my colleagues or the general public.
22 Once that was carried out, I carried out or prepared
23 the sketch that you see in front of you and zoned off the areas
24 that were to be searched so that we carry out a methodical
25 search of the whole of the premises and don't leave anything or
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 miss anything.
2 Once that has been prepared, I then called forward the
3 other two searchers who assisted me in the search of the
4 premises along with the interpreter who, as I say, interpreted
5 any foreign-language material we had.
6 Q. Did you actually seize any items from the search?
7 A. I did, sir, yes.
8 Q. Detective Constable, would you press the right side of the
9 screen there and it will erase those arrows.
10 Thank you.
11 MR. DEMBER: Your Honor, may I approach the witness
12 again?
13 THE COURT: Yes.
14 Q. Detective Constable, I have just handed you up four
15 documents which have been marked for identification as
16 Government Exhibits 2703, 2704, 2705 and 2706.
17 Let's start with the first document which is marked
18 2703.
19 First of all, do you recognize that first document?
20 A. I do, sir.
21 Q. How do you recognize it?
22 A. This is the document that on the front of each of these
23 exhibits we have an exhibit reference or front sheet, as we
24 call it, which details the details of the exhibit and also
25 where it was found.
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477SSAT1 Killeen - direct
1 Q. And who prepared that document?
2 A. I did, sir.
3 Q. And do you recognize that document that you prepared?
4 A. Yes, sir.
5 Q. And do you recognize the document behind the cover sheet?
6 A. Yes, sir. It's a photocopy of the actual original exhibit
7 that we took.
8 Q. And was that a document that was seized during your search
9 of this bookstore?
10 A. It is, sir, yes.
11 MR. DEMBER: Your Honor, the government offers into
12 evidence Exhibit 2703.
13 THE COURT: All right, no objection. Government
14 Exhibit 2703 received in evidence.
15 (Government's Exhibit 2703 received in evidence)
16 MR. DEMBER: May I display it to the jury, your Honor?
17 THE COURT: Yes.
18 Q. Detective Constable, I am going to place the front page --
19 that is the cover page that you prepared, is that correct?
20 A. Yes, that is correct, sir.
21 Q. And it indicates where you found this particular document?
22 A. Yes, sir.
23 Q. Where did you find this particular document?
24 A. It was in drawer B of zone B of the desk.
25 Q. That is the desk in the front portion of the store?
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477SSAT1 Killeen - direct
1 A. That is, sir.
2 Q. I am going to turn to the second page of the exhibit. Can
3 you tell us, by the way, what the second and third pages of
4 this exhibit are actually?
5 A. It's a reminder to pay your bill for a particular
6 telephone.
7 Q. That is something from a telephone company?
8 A. Yes, it's British Telecom, the largest telephone company in
9 Britain.
10 Q. And from this page that is currently on the screen, can you
11 tell who it's addressed to?
12 A. Yes, it's addressed to a Mr. Y al-Sirri.
13 Q. Is that an address?
14 A. Yes, 102 Edinburgh House, Maidavale, London.
15 Q. That is not the address you were searching, is that
16 correct?
17 A. No, sir.
18 Q. And does it indicate on this front page a telephone number
19 that pertains to the particular customer?
20 A. Yes, sir, just here is the reminder and the telephone
21 number is recorded as 020, which is the area code, 76246868.
22 Q. And if I move down the page, what is that amount of money
23 there?
24 A. 221 pounds 92. That is the amount that is outstanding.
25 THE COURT: What currency is that in?
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 THE WITNESS: Pounds.
2 Q. That is British currency?
3 A. It is.
4 Q. Let me turn to the next exhibit. Why don't you put that
5 one aside.
6 Let me ask you to look at what has been marked for
7 identification as Exhibit 2704. Do you have that in front of
8 you?
9 A. I do, sir.
10 Q. Again, do you recognize this particular exhibit?
11 A. Yes, sir.
12 Q. And how do you recognize it?
13 A. I produced the front sheet and also the photocopy of the
14 pages.
15 Q. Is this another document that you seized from the
16 bookstore?
17 A. It is, sir, yes.
18 Q. And --
19 MR. DEMBER: Your Honor, the government offers into
20 evidence Exhibit 2704.
21 THE COURT: All right, no objection. Government
22 Exhibit 2704 received in evidence.
23 (Government's Exhibit Exhibit 2704 received in
24 evidence)
25 MR. DEMBER: May I display it to the jury, your Honor?
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 THE COURT: Yes.
2 Q. Detective Constable Killeen, I am showing you again the
3 first page of this exhibit, is that correct?
4 A. That is correct, sir.
5 Q. And that is a document you yourself prepared?
6 A. It is, sir, yes.
7 Q. Where was this particular document or the document behind
8 the cover sheet actually seized from?
9 A. It was actually -- there was a large amount of papers
10 strewn behind the desk in zone 1 at the shop and it was found
11 amongst those papers.
12 Q. That is the desk towards the front of the store?
13 A. Yes, that is correct, sir.
14 Q. Let me turn the page to the second page of this exhibit.
15 Can you tell the jury what kind of a document is this exhibit?
16 A. It's an information sheet to the subscriber of the
17 telephone telling them that on that particular date that they
18 were going to finish providing that service.
19 Q. And that is a document from a phone company?
20 A. It is, sir.
21 Q. What is the company actually?
22 A. It's World Online. It's an Internet service provider.
23 Q. And on this second page of the exhibit, does there appear
24 to be the name of a subscriber and address?
25 A. Yes, sir, it's Mr. Yasser al-Sirri, 102 Edinburgh House,
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 155 Maidavale, London.
2 Q. By the way, is there a date on the first page of this
3 document?
4 A. Yes, it's dated Tuesday, the 5th of June, 2001.
5 Q. Constable Killeen, would you turn to the fifth page of the
6 actual correspondence itself. I am going to put it up on the
7 screen here and you can look at the screen if you like.
8 Is there on that page a telephone number listed?
9 A. Yes, sir.
10 Q. For the subscriber?
11 A. Yes, sir, towards the top of the page it's marked a phone
12 number and the number recorded is 020732889 -- I am sorry, 988.
13 Q. And I am going to turn to the last page of the exhibit.
14 Again, on this particular document does there appear the name
15 of Mr. Al-Sirri?
16 A. Yes, sir, towards the top of the page.
17 Q. Is that the same address you read to us before?
18 A. Yes, sir.
19 Q. Thank you.
20 Let me ask you to turn to what has been marked as
21 Government Exhibit for identification as 2705. Do you have
22 that in front of you?
23 A. I do, sir, yes.
24 Q. Do you recognize this exhibit?
25 A. Yes, sir. It is the exhibit I took.
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1 Killeen - direct
1 Q. Is this also a document that you seized from 99A Bell
2 Street?
3 A. It is, sir, yes, sir.
4 Q. And does the first page of this exhibit appear to be a
5 cover page that you prepared?
6 A. It is, sir, yes.
7 MR. DEMBER: The government offers Exhibit 2705 in
8 evidence.
9 THE COURT: All right, no objection, Government
10 Exhibit 2705 received in evidence.
11 (Government's Exhibit 2705 received in evidence)
12 MR. DEMBER: May I display it to the jury, your Honor?
13 THE COURT: Yes.
14 Q. Detective constable, first of all, as I am putting it up
15 here on the screen, can you tell us what the underlying
16 document of this exhibit is?
17 A. Yes, it's a telephone bill from the company One.Tel to
18 Mr. Yasser al-Sirri.
19 Q. And, again, this is your cover sheet, correct?
20 A. I am sorry?
21 Q. This is the cover sheet you prepared?
22 A. Yes, it is, sir.
23 Q. Can you tell us where you found this particular document
24 during your search?
25 A. Again, it was behind the desk area at the front of the
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477SSAT1 Killeen - direct
1 shop.
2 Q. I am going to turn to what is the next page of this
3 exhibit. Towards the top of the page does it indicate an
4 address for the subscriber?
5 A. Yes, sir, it does. It's not very clear because of the
6 print.
7 Q. Can you read it for us?
8 A. Yes, it's 114A Cromwell Road, London, SW7, 4TP.
9 Q. Is there a telephone number for the subscriber listed on
10 the document?
11 A. Yes, the telephone number is 0273319777.
12 Q. And is there a fax number also listed?
13 A. Yes, it's 02073319972.
14 Q. And also on that top portion of this particular page does
15 it indicate the name of the subscriber?
16 A. Yes, the account name is Mr. Yasser al-Sirri.
17 Q. As you turn through the various pages of this exhibit, does
18 it indicate where calls were made to from this particular phone
19 number?
20 A. It does, sir, yes.
21 Q. And just tell us what are some of the places that calls
22 were made to?
23 A. Egypt, Yemen, USA, Spain, Austria, Greece.
24 Q. Let me ask you to turn to -- including the cover page --
25 the the third page of the exhibit and let me display it for the
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1 jury.
2 Do you have that in front of you?
3 A. Yes, sir.
4 Q. I am going to point to three calls that apparently were
5 made to the United States of America. Do you see where I am
6 pointing with my pen?
7 A. Yes, sir.
8 Q. Are those all to the same number?
9 A. They are, yes.
10 Q. Can you read the telephone number called that I am pointing
11 to?
12 A. Yes, it's 0017184423513.
13 Q. And do you see that number anywhere else besides those
14 three calls that are marked there?
15 A. Yes, further down the page there was another two calls made
16 and, again, further again another one call made, and again
17 right towards the end of the page.
18 Q. Let me direct you for a second. Let's go back to those
19 three calls in a row that we first identified.
20 A. Yes, sir.
21 Q. Can you tell from the exhibit the date those calls were
22 made to that number?
23 A. Yes, in the second column the date and the time are
24 recorded and also the duration of the calls.
25 Q. What are those dates?
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477SSAT1 Killeen - direct
1 A. Those dates are all on the 10th of January, 2001. And the
2 calls are recorded at 18:13 hours, 20:38 hours and 23:18 hours.
3 They are all obviously British time.
4 Q. In England when you write the date, typically in the United
5 States you write the month first or the number for the month
6 first, the date, and then the year. Is that the way it's done
7 in England?
8 A. No, we always record the date, then month, and then year.
9 THE COURT: You said the date --
10 THE WITNESS: The date of the month, sir.
11 Q. Detective Constable Killeen, let me just ask you to turn to
12 the very last page of this exhibit and I will put it before
13 you.
14 Again, do you see the name Yasser al-Sirri at that
15 Edinburgh House address?
16 A. Yes, sir.
17 Q. By the way, on the top right-hand portion of each of the
18 pages that are the bill from the company, there is an
19 indication page, for example, as I am pointing, page 1 to 6, is
20 that correct?
21 A. That is correct, sir.
22 Q. As you look through the exhibit, is there apparently a page
23 missing?
24 A. Yes, I believe page 2 is missing.
25 Q. Did you seize page 2 of 6 of this particular phone bill?
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477SSAT1 Killeen - direct
1 A. No, sir. It was missing when I found the other pages.
2 Q. So this exhibit contains all of the pages from this
3 particular seizure?
4 A. That is correct, sir.
5 Q. Finally, let me ask you to turn to the document which has
6 been marked for identification as Government Exhibit 2706.
7 Again, do you recognize that exhibit?
8 A. I do, sir, yes.
9 Q. Is this another document that you seized during your search
10 of 99A Bell Street?
11 A. It is, sir, yes.
12 MR. DEMBER: Your Honor, the government offers Exhibit
13 2706 into evidence.
14 THE COURT: All right. No objection, Government
15 Exhibit 2706 received in evidence.
16 (Government's Exhibit 2706 received in evidence)
17 Q. Detective Constable, what is the exhibit itself?
18 A. It's a paying-in slip for a bank, Barclays Bank, which is
19 one of the major banks in Britain.
20 Q. When you say it's a paying-in slip, is that something that
21 we call a deposit slip here?
22 A. That is correct.
23 Q. When you deposit cash or a check into an account?
24 A. That is correct.
25 Q. Where did you find this particular item?
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1 A. It was in the middle drawer. I noted it as drawer B in the
2 desk at the front of the shop.
3 Q. Let me turn to the second page of this exhibit.
4 Does there appear to be a name on this deposit slip?
5 A. Yes.
6 Q. An individual?
7 A. Yes, just here.
8 Q. What is that name?
9 A. Mr. Y al-Sirri.
10 MR. DEMBER: Your Honor, may I approach the witness
11 again?
12 THE COURT: Yes.
13 Q. Detective Constable, I have just handed you up a book that
14 has been marked for identification only as Government Exhibit
15 2700. Without removing it from that envelope, would you look
16 at the interior and look at the book itself?
17 A. Yes, sir.
18 Q. Do you recognize that book?
19 A. Yes, sir, I do, sir.
20 Q. And did you see any copies of that particular book during
21 the course of your search at 99A Bell Street?
22 A. Yes, sir, there was a large number of that type of book or
23 that book in the shop.
24 Q. And where did you see the copies of the book that you just
25 saw in the envelope?
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477SSAT1 Killeen - direct
1 A. There was a large number of them on display immediately in
2 front of the desk at the front of the shop.
3 Q. Let me just, if I may, put back onto the screen the diagram
4 which is Exhibit 2702. Why don't you point out where you
5 searched some of these books?
6 A. These large number of books immediately in front of the
7 desk area at the front of the shop.
8 Q. Did you see any of those books anywhere else?
9 A. Yes, there was a large quantity of packages in white
10 plastic here and here.
11 Q. Did you open up any of those packages?
12 A. I did, sir, yes.
13 Q. What did you see when you opened those packages?
14 A. I saw copies of that book.
15 Q. Did you open up all the packages?
16 A. No, just the one sample package.
17 Q. Did all the packages look similar?
18 A. They were all marked exactly the same, yes, sir.
19 Q. By the way, Detective Constable, how long did it take you
20 to actually conduct the search of this book shop?
21 A. It was searched over the course of 3 days.
22 Q. And were you present inside these premises for 3 entire
23 days?
24 A. No, sir. At the end of each day searching I locked the
25 doors, made it secure, and then they were held under guard of a
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477SSAT1 Killeen - direct
1 police officer throughout the night until I took over
2 possession of the premises again in the morning.
3 Q. And did the search warrant authorize you to be there for
4 the number of days that you were there?
5 A. Yes, it did, sir.
6 MR. DEMBER: May I have a moment, your Honor?
7 THE COURT: Yes.
8 Q. Detective Constable Killeen, can you estimate for us
9 approximately how many copies of that book, which is marked for
10 identification as 2700, you saw in the shop during your search?
11 A. Yes, sir. Towards the end of the search I calculated
12 roughly the number of books by totaling the number of packages
13 I saw at the end of the shop, because each pack contained 12
14 books, and also estimated the number directly in front of the
15 desk.
16 Q. And what was your estimated total?
17 A. 1936.
18 Q. 1936?
19 A. Yes, sir.
20 MR. DEMBER: Thank you.
21 I have no further questions at this time, your Honor.
22 THE COURT: All right.
23 MR. RUHNKE: No cross, your Honor.
24 THE COURT: No further questions.
25 The witness is excused.
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1
1 You may step down.
2 (Witness excused)
3 THE COURT: All right.
4 MR. DEMBER: Your Honor, we would now request to be
5 permitted to read from the remaining exhibits that were
6 introduced through the stipulation, which was Government
7 Exhibit 213.
8 Before we do that, your Honor, may I read the
9 pertinent sections from the stipulation to remind the jury what
10 those exhibits are?
11 THE COURT: Yes.
12 MR. DEMBER: Thank you.
13 The parties hereby stipulate and agree that the audio
14 and videotapes marked as Government Exhibits 202, 203, 207, 210
15 and 211 are tapes containing either sermons and speeches
16 delivered by Omar Abdel Rahman or intercepted telephone
17 conversations between Abdel Rahman and other persons. Each of
18 these tapes was received in evidence at Abdel Rahman's trial in
19 1995 and Lynne Stewart was present at the time each was
20 received in evidence.
21 Government Exhibits 202 and 203 were seized pursuant
22 to a court-authorized search warrant at the residence of Nabil
23 el-Masry.
24 Government Exhibit 211 was obtained from an individual
25 who testified at Abdel Rahman's 1995 trial.
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1
1 Government Exhibits 207 through 210 were intercepted
2 telephone conversations between Abdel Rahman and other persons
3 obtained pursuant to a court-authorized wiretap.
4 The transcripts marked as Government Exhibits 202T,
5 203T, 207T, 210T and 211T are true and accurate translations
6 from Arabic into English of the tapes marked as Government
7 Exhibits 202, 203, 207, 210 and 211 respectively.
8 Government Exhibits 202T, 203T, 207T, 210T and 211T
9 were prepared by qualified expert Arabic-to-English translators
10 employed by the Federal Bureau of Investigation. Each of these
11 transcripts was received in evidence at Abdel Rahman's trial in
12 1995 and Lynne Stewart was present at the time each was
13 received in evidence.
14 All voice attributions on Government Exhibits 202T,
15 203T, 207T, 210T, and 211T -- that is, all identifications on
16 the transcripts of who is speaking at any particular time --
17 truly and accurately identify the speakers on the corresponding
18 tapes.
19 After Government Exhibits 202T, 203T, 207T, 210T and
20 211T were admitted into evidence during the Abdel Rahman's
21 trial, they were read aloud to the jury in that case.
22 Defendant Lynne Stewart was present during the reading of each
23 of these transcripts.
24 Your Honor, at this time Mr. Barkow is going to read,
25 with your permission of course, Government Exhibit 202T.
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477SSAT1
1 THE COURT: All right.
2 MS. BAKER: Your Honor, may we also display Government
3 Exhibit 202T on the screen for the jury?
4 THE COURT: Yes.
5 MR. BARKOW: May I proceed, your Honor?
6 THE COURT: Yes.
7 Before you do that, ladies and gentlemen, I just
8 remind you that when you obviously hear -- and I have explained
9 this to you before -- that something is displayed on the
10 screen, what is being referred to are the screens in front of
11 you and the big screen, and when a witness is on the stand the
12 witness has the same screen as do the parties and counsel.
13 We also have these additional screens which you have
14 sometimes seen me using, which is the transcript which we are
15 keeping, which the court reporter keeps, which is different
16 from what appears on these screens. The transcript is not
17 shown to the jury. It doesn't appear on your screens except as
18 I have told you when I gave you the instructions that said you
19 can take notes if you wish and gave you the instructions about
20 notes. We are keeping a transcript and if in the course of
21 deliberations you wish to review the transcript you would have
22 to write to ask to review the transcript.
23 Okay. You may proceed.
24 MR. BARKOW: Thank you, your Honor.
25 (At this point, Government Exhibit 202T in evidence
SOUTHERN DISTRICT REPORTERS, P.C.
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477SSAT1
1 was read to the jury by Mr. Barkow)
2 (Continued on next page)
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477LSAT2
1 (In open court)
2 (At this point, Government Exhibit 202T was read
3 into the record by Mr. Barkow)
4 MR. MORVILLO: With the Court's permission, we're
5 going to a long speech by Rahman.
6 THE COURT: We'll take our mid morning break, about 10
7 minutes. Ladies and gentlemen, please remember my continuing
8 instructions not to talk about the case; keep an open mind.
9 All rise, please.
10 Will you follow Mr. Fletcher, please?
11 (Jury exits the courtroom)
12 THE COURT: All right, I'll see you shortly.
13 (Morning recess)
14 (Continued on next page)
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477LSAT2
1 (In open court; jury not present)
2 THE COURT: Could I talk to the lawyers?
3 (At the sidebar)
4 THE COURT: Two things: First, Mr. Fletcher advises
5 me that Juror 17 is having a health problem with her teeth.
6 She had dental work and there may be other health issues, and
7 so I really have to talk to the juror about that. And I would
8 be inclined to do it after the lunch hour in the same way that
9 I've done it before, and any of the parties or lawyers are
10 welcome to be there. I'm told it's the juror who sits in seat
11 Number 17.
12 The second issue is, there's someone in the audience
13 with a t-shirt and has a sign on the rear of her jeans that
14 says, "Say no to war". I look at the t-shirt, and if I were
15 the jury, I can't read anything on the t-shirt, I have no idea
16 what the t-shirt says. The individual is setting several rows
17 back on the right-hand side as I face the gallery. Unless the
18 parties feel that I should do something, my inclination is not
19 to do anything. I can't see that it's something that would
20 affect the jury in any way. And I frankly can't read anything
21 that's on the t-shirt from where I sit.
22 But to the parties have any other feelings?
23 MR. PAUL: I don't think that it's necessary to do
24 anything, Judge.
25 THE COURT: Okay, fine.
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477LSAT2
1 MR. TIGAR: Thank you.
2 (In open court; jury not present)
3 THE COURT: All right. The jury will now enter the
4 courtroom. Please be seated.
5 (Continued on next page)
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477LSAT2
1 (In open court; jury present)
2 THE COURT: Please be seated, all.
3 MR. MORVILLO: At this time, the government would
4 request to read Government Exhibit 211T.
5 THE COURT: All right.
6 MR. MORVILLO: Government Exhibit 211T, which was
7 Government Exhibit 801-D in the underlying case.
8 (At this point, Government Exhibit 211T was read
9 into the record by Mr. Morvillo)
10 THE COURT: All right. Ladies and gentlemen, it's
11 just about time for lunch, so we'll break for lunch until 2:00
12 o'clock. Please remember my continuing instruction: Not to
13 talk about the case; keep an open mind.
14 All rise, please. Please follow Mr. Fletcher to the
15 jury room.
16 (Jury exits the courtroom)
17 THE COURT: Please be back at quarter of 2:00. Have a
18 good lunch.
19 (Luncheon recess)
20 (Continued on next page, which commences sealed
21 excerpt, Pages 3255 - 3260)
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477LSAT2
1 (In the robing room)
2 (Counsel present: Ms. Shellow-Lavine and Ms. Baker)
3 THE COURT: You had mentioned, Ms. Baker, something
4 about scheduling?
5 MS. BAKER: I need to make an application to the
6 Court, and I do this reluctantly, and having tried everything
7 we could to avoid it because I'm mindful of the time of the
8 jurors and of the Court and of all counsel and the defendants
9 themselves, but unfortunately, due to the confluence of a
10 number of logistical factors, the primary one of which is what
11 I told the Court yesterday or the day before about the one
12 essential government witness being on his honeymoon until this
13 weekend.
14 The government needs to request an adjournment of a
15 day or part of a day for tomorrow. We simply cannot get
16 together enough witnesses and evidence to present to the jury
17 that could fill more than the morning tomorrow, and probably
18 not even the entire morning. We are prepared to present when
19 we can tomorrow morning, if your Honor wished to bring the jury
20 in for that portion of a day. But, as I say, we don't have
21 more than the morning and perhaps less. So I need to make the
22 application that we adjourn until Monday.
23 I make it now -- I'm happy to repeat it in the
24 courtroom if your Honor wishes -- but I make it now simply to
25 say, in light of the concerns just raised by this juror,
SOUTHERN DISTRICT REPORTERS, P.C.
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477LSAT2
1 perhaps if you were to afford the juror access to a telephone
2 now, she might be able to reach her doctor or her dentist and
3 see if she could be seen by either or both of them tomorrow and
4 then both concerns could be addressed perhaps at the same time.
5 THE COURT: I don't understand. I thought that what
6 remains of the evidence from the stipulation, together with the
7 undisputed evidence from the Sattar search, which was about --
8 and the documents that I already ruled on, would have taken you
9 well into tomorrow.
10 MS. BAKER: We anticipated that they would when we did
11 our calculations yesterday. Basically, every time we leave the
12 courtroom we reassess and recalculate. And having seen the
13 amount of time taken this morning by the reading of the two
14 speeches And assessing the remaining documents in the 200
15 exhibit series from the Abdel Rahman trial and the Sattar
16 search exhibits that have been admitted so far, and the couple
17 of witnesses who are available to us, and the anticipated
18 duration of their testimony, we have unfortunately come to the
19 conclusion that I stated a minute ago, which is that we might
20 fill tomorrow morning, but we might not. And we wouldn't be
21 able to fill beyond tomorrow morning. Which is the reason why
22 I reluctantly make this application to the Court.
23 THE COURT: Well, Ms. Shellow-Lavine can discuss this
24 with defense counsel. I could give a lecture -- I gave part of
25 it yesterday. If I had known, I certainly would have, but
SOUTHERN DISTRICT REPORTERS, P.C.
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477LSAT2
1 there are only about eight remaining documents that I haven't
2 gotten to.
3 MS. BAKER: I realize that, your Honor, which is why
4 we didn't think that pressing your Honor further to rule would
5 materially change the situation.
6 THE COURT: It's remarkable. Lectures don't do very
7 much good.
8 So my inclination would be to -- not to just give up
9 half a day, but to bring the jury in for tomorrow morning to
10 exhaust whatever there is, and not for tomorrow afternoon, and
11 to tell the -- bring the juror back in at the break and say, In
12 all likelihood, we'll not sit tomorrow afternoon; if the juror
13 would like to check with her doctor whether she can be seen by
14 any of the doctors tomorrow afternoon, she could do that.
15 MS. SHELLOW-LAVINE: Your Honor, I was just looking at
16 my watch. In order to accommodate her, you may want to bring
17 her in now, If, in fact, that's what -- how these events are
18 going to turn out, given my guess is that if we wait until the
19 afternoon break, she may have problems scheduling.
20 THE COURT: If you could go out and talk to the other
21 defense counsel and find out if that's acceptable.
22 MS. SHELLOW-LAVINE: Why don't I do that? If you will
23 excuse me, I will be right back.
24 (Off the record)
25 MS. SHELLOW-LAVINE: I have spoken with my colleagues
SOUTHERN DISTRICT REPORTERS, P.C.
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477LSAT2
1 and we have no objection. We will take the afternoon and put
2 it to some other productive use.
3 THE COURT: All right. Why don't we bring in Juror
4 323.
5 (Continued on next page, which commences sealed
6 excerpt, Pages 3265 - 3266)
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477LSAT2
1 (In open court; jury not present)
2 THE COURT: Can I talk to the lawyers just briefly?
3 (At the sidebar)
4 THE COURT: I came out because the juror is using the
5 phone in the robing room. So I was just going to inform you of
6 that. We still have to wait for the juror to be finished with
7 the phone.
8 MS. BAKER: Your Honor, while we're all standing here,
9 if I might ask if I could be excused for this afternoon so I
10 can address some matters outside of the courtroom?
11 MR. PAUL: Mr. Fallick has asked to be relieved from
12 appearing as well, so we can proceed in his absence.
13 THE COURT: Fine. That will be fine.
14 (Off the record)
15 THE COURT: I've said the juror has to make a phone
16 call, and the regulations are such that one marshal has to be
17 in the robing room, and I just asked the marshal to make sure
18 that was okay with the juror.
19 (Off the record)
20 THE COURT: The jurors are ready to come back. The
21 juror made the phone call, and I'll tell the jurors at the end
22 of the day we won't be sitting tomorrow afternoon. If there's
23 any better fix on the time, if you could give it to me at the
24 break.
25 MR. TIGAR: Your Honor, I understand there will be
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477LSAT2
1 more reading this afternoon. Will those be matters as to which
2 a limiting instruction is appropriate?
3 MR. BARKOW: Your Honor, the plan is to read some of
4 the Sattar search exhibits that are admitted, two of which, I
5 believe -- if we get there -- two of which are offered with
6 respect to Mr. Sattar and Ms. Stewart. And the rest are
7 offered only with respect to Mr. Sattar.
8 Specifically, the two that are offered with respect to
9 both Mr. Sattar and Ms. Stewart are 2036, which has been
10 admitted into evidence, and then -- actually, I guess there's
11 three: 2009, 2009A. And those are offered with respect to
12 both.
13 Then there are others that are offered only with
14 respect to Mr. Sattar. In nonnumerical order: 2045, 2050A
15 through L; 2069; 2056; 2032.
16 Two stipulations, which are 2047S and 2049S.
17 2000; 2053; 2058. 2035, and that has been replaced,
18 it's now 2035X and 2035S. There's an excerpt and a stipulation
19 with respect to that which is a replacement of the original.
20 That has not yet been offered into evidence, but the parties
21 reached an agreement with respect to that, so we're going to
22 offer it and ask to publish it.
23 2061; 2062; 2063. I think I already said 2009 and
24 2009A. 2081.
25 THE COURT: 2009 and 2009A are offered against
SOUTHERN DISTRICT REPORTERS, P.C.
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477LSAT2
1 Mr. Sattar and Ms. Stewart?
2 MR. BARKOW: Right. 2081, which is just against
3 Mr. Sattar. Back now to just Mr. Sattar. 2072; 2042, which
4 the Court ruled yesterday would be admissible but is not yet
5 admitted into evidence. 2044. Same situation with that: The
6 Court ruled it would be admissible; it has not yet been
7 offered.
8 And then there's the 2046A through E set of exhibits.
9 Some of those are already admitted, have been read, actually,
10 or will be read, as they are speeches Abdel Rahman, 2046A, B
11 and D, we're not planning on doing anything with those at this
12 point other than offering them into evidence.
13 2046 C and E are speeches offered only against
14 Mr. Sattar. The Court indicated yesterday they would be
15 admissible, but still have yet to actually be offered.
16 The reason I read them in that order your Honor is
17 that's the order of presentation, and I apologize, it's not in
18 numerical order, but that's the order which we anticipate
19 presenting them. And so that's why it's not numerical.
20 MR. TIGAR: Your Honor, there's also the question of a
21 limiting instruction with respect to "offered for the truth",
22 "not offered for the truth". Some of these are newspaper
23 articles, and as to those, the Court has been in the habit of
24 giving a special newspaper article/media cautionary
25 instruction. And we would request as to each exhibit the same
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477LSAT2
1 type of instruction that the Court has been in the habit of
2 giving with respect to something in that category. There are
3 no new categories here.
4 MR. BARKOW: That's correct, your Honor. They're not
5 all newspaper articles, as the Court is aware. All are offered
6 to show knowledge, intent, state of mind. And then two are
7 also offered as background and context. And that is, 2050A
8 through L, photographs. And also 2072, which are time sheets
9 from Mr. Sattar's work at the Abdel Rahman trial.
10 The rest are offered to show knowledge and state of
11 mind. And some of those are newspaper articles, not all of
12 them.
13 Just so the Court is aware, the newspaper articles are
14 actually grouped together, so that's one of the reasons for the
15 order of presentation, with the exception of 2044, which I have
16 listed at the end. That was in part because that hadn't been
17 admitted until yesterday. But I can move that so they're all
18 grouped together. There was a block of newspaper articles
19 together, and then different kinds of evidence. So if the
20 Court wanted to just give the instruction once, we could do all
21 the newspaper articles at the same time rather than having to
22 repeat it.
23 THE COURT: All right. The three exhibits that are
24 being offered against Mr. Sattar and Miss Stewart, are there
25 any other limiting instructions other than they are being
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477LSAT2
1 offered only against Mr. Sattar and Miss Stewart and not to be
2 considered against Mr. Yousry?
3 MR. TIGAR: If recollection serves, your Honor, those
4 are the faxes?
5 MR. BARKOW: One is a fax. 2036 is a fax of a
6 newspaper article from Miss Stewart to Mr. Sattar. 2009 and
7 2009A are transcripts -- portions of transcripts from the Abdel
8 Rahman trial.
9 MR. TIGAR: The fax, if memory serves, attaches a
10 newspaper article.
11 MR. BARKOW: The fax has at the top a header which
12 indicates where it was sent from, and then it is of a newspaper
13 article.
14 MR. TIGAR: The newspaper article is obviously not
15 being offered for the truth. This is just being offered to
16 show that the communication was sent.
17 MR. BARKOW: None of the exhibits that I have listed
18 are being offered today for the truth. There are the two that
19 are being offered for background and context. And all are
20 being offered to show state of mind. None of these are being
21 offered for the truth.
22 THE COURT: So 2036, 2009, 2009A are being offered
23 only against Mr. Sattar and Miss Stewart and only to be
24 considered against them and not Mr. Yousry, and they are being
25 offered solely with respect to knowledge, intent, state of mind
SOUTHERN DISTRICT REPORTERS, P.C.
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477LSAT2
1 of Mr. Sattar and Miss Stewart. And to the extent that there's
2 a newspaper article, we will apply the instruction on newspaper
3 articles.
4 MR. TIGAR: Yes, your Honor.
5 THE COURT: Okay?
6 MR. BARKOW: Does the Court have a preference, your
7 Honor, with respect to Exhibit 2044 which I had listed last,
8 but I mentioned I could do in a group? I don't know if the
9 Court was going to give the instruction at the outset or --
10 THE COURT: Whenever you reach newspaper articles,
11 I'll give the substance of the instruction that Mr. Tigar
12 referenced, the instruction which I've given before, but right
13 now we're going to continue with the finishing the exhibits
14 from the Abdel Rahman trial, right?
15 MR. DEMBER: That is correct, your Honor. There's one
16 more speech with questions and answers and with a
17 question-and-answer session; and then two FISA calls. And then
18 we'll be done with the exhibits that were introduced under 213.
19 MR. RUHNKE: Your Honor, when it does come time to
20 offer the exhibits that Mr. Barkow was talking about, I would
21 like a statement -- like it stated by the Court something more
22 than not being against Mr. Yousry, a statement that it should
23 not be considered as evidence against Mr. Yousry for any
24 reason.
25 THE COURT: Okay.
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477LSAT2
1 MR. RUHNKE: Thank you.
2 MR. BARKOW: Your Honor, that, in a sense, touches a
3 little bit on the issue raised by my letter of last night with
4 respect to Count 2 being a predicate for, for example, Counts 4
5 and 5. If evidence is offered against Sattar to show his
6 knowledge and state of mind, it obviously can be considered for
7 Count 2, and since we need to prove Count 2 as a predicate for
8 Counts 4 and 5, it's our view that the requested instruction
9 overstates somewhat the proper use of the evidence, and
10 instead, could be explained in more detail as I've just said
11 it.
12 Essentially, that it can be considered with respect to
13 Mr. Sattar, and to the extent that Count 2 is a predicate --
14 and this can be explained, however -- but to the extent that
15 Count 2 is a predicate for Counts 4 and 5, it might be usable
16 against other defendants.
17 And it doesn't necessarily have to be stated that way,
18 but I think Mr. Ruhnke's proposal overstates somewhat the
19 limited use of the evidence because, in a way, consideration of
20 the evidence with respect to Mr. Sattar and his state of mind
21 does bear on consideration of Counts 4 and 5 with Count 2 as a
22 predicate.
23 (Continued on next page)
24
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1 MR. RUHNKE: Your Honor, the government just told you
2 they are not offering it against Mr. Yousry and if they are not
3 offering it against Mr. Yousry, they are not offering it
4 against Mr. Yousry. This idea that because they have to prove
5 the Count 2 conspiracy doesn't mean that evidence is offered on
6 the Count 2 conspiracy is admissible against Mr. Yousry. They
7 have to establish it as if, as your Honor pointed out in your
8 order, the government quotes, even if it were a separate trial
9 they would have to prove the Count 2 conspiracy, but it doesn't
10 mean that evidence is admissible against Mr. Yousry because he
11 is not named in Count 2. So I am not sure if the government is
12 trying to have it two ways or three ways but they stand up and
13 say it's not offered against Mr. Yousry and I understand that
14 to mean simply it's not offered against Mr. Yousry.
15 THE COURT: Why isn't it an acceptable instruction at
16 least as I listened to the parties that the evidence is
17 offered -- the first three pieces of evidence are being offered
18 only against Mr. Sattar and Ms. Stewart and not against
19 Mr. Yousry? And the remaining ones offered are offered only
20 with respect to knowledge, intent and state of mind of
21 Mr. Sattar and Ms. Stewart with any newspaper article
22 instruction, and that the remaining exhibits, putting aside
23 background and context, that the remaining exhibits are being
24 offered only against Mr. Sattar and not against Ms. Stewart or
25 Mr. Yousry and only with respect to knowledge, intent and state
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477SSAT3
1 of mind of Mr. Sattar.
2 MR. RUHNKE: I don't know if the government has a
3 problem with it. My view is that if it's offered for
4 background and context --
5 THE COURT: There were only two exhibits that were
6 background and context, and it's still only offered against
7 Mr. Sattar, 2050 and 2072, and those are still, at least as I
8 understand, offered only against Mr. Sattar and not against Ms.
9 Stewart and Mr. Yousry.
10 MR. RUHNKE: With that understanding I don't object to
11 the court's instruction.
12 MR. BARKOW: That is acceptable to the government as
13 well.
14 I think I may have misheard but there were three
15 exhibits offered against Mr. Sattar and Ms. Stewart and the
16 remainder are offered against Mr. Sattar only. I may have
17 misheard the court.
18 THE COURT: That is what I got.
19 MR. BARKOW: Okay.
20 THE COURT: And the two exhibits for background and
21 context are still offered only against Mr. Sattar and not
22 against Ms. Stewart or Mr. Yousry and I thought that they were
23 being offered both with respect to background and context as
24 well as knowledge, intent and state of mind.
25 MR. BARKOW: That is correct, your Honor.
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1 THE COURT: Of Mr. Sattar.
2 MR. BARKOW: That is correct, your Honor.
3 THE COURT: Okay.
4 You can bring in the jury now.
5 Whatever happened to the chart that you were doing or
6 the --
7 MR. RUHNKE: We are still discussing that among
8 ourselves, your Honor. And I think this instruction is a
9 perfect example of why something like that is necessary.
10 (In open court; jury present)
11 THE COURT: Please be seated all.
12 Good afternoon, ladies and gentlemen. I appreciate
13 your indulgence. There were various matters that we had to
14 take care of and so, again, I appreciate your indulgence.
15 All right, Mr. Dember.
16 MR. DEMBER: Your Honor, with your permission we would
17 like to now read Exhibit 203T. It is part of a speech, and
18 then a question and answer session.
19 I will read the part of Omar Abdel Rahman and, with
20 your permission, Mr. Morvillo will read the other parts.
21 May he take the witness stand to do the reading and I
22 will stand at the podium?
23 THE COURT: Yes.
24 MR. MORVILLO: Your Honor, can we display it to the
25 jury?
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1 THE COURT: Yes.
2 (At this point, Government Exhibit 203T in evidence
3 was read to the jury by Mr. Dember and Mr. Morvillo)
4 MR. DEMBER: Your Honor, with your permission Mr.
5 Morvillo and I will read Government Exhibit 207T.
6 May we also display it for the jury?
7 THE COURT: All right.
8 MR. DEMBER: It is a telephone call dated May 25, 1993
9 between Omar Abdel Rahman and there are two other persons.
10 MR. DEMBER: Your Honor, I will read the part of Omar
11 Abdel Rahman and Mr. Morvillo will read the other parts.
12 THE COURT: All right.
13 (At this point, Government Exhibit 207T in evidence
14 was read to the jury by Mr. Dember and Mr. Morvillo)
15 (Continued on next page)
16
17
18
19
20
21
22
23
24
25
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1 (Government Exhibit 207T in evidence read by Messrs.
2 Dember and Morvillo [cont.])
3 THE COURT: Ladies and gentlemen, we'll just take five
4 minutes. Normally we break at 4:30, but we got a late start
5 this afternoon.
6 (Afternoon recess)
7 (In open court; jury not present)
8 THE COURT: Please be seated, all. The one juror
9 expressed concern to Mr. Fletcher that we were going to be
10 breaking early tomorrow because of her, and Mr. Fletcher
11 assured her no, that it was just a scheduling issue.
12 All right, let's bring in the jury.
13 I'll tell the jury at the end of the day that we'll
14 sit tomorrow only until the lunch hour Because of scheduling
15 issues.
16 (Jury entering courtroom)
17 (In open court)
18 THE COURT: Please be seated, all. Mr. Dember?
19 MR. DEMBER: Your Honor, with your permission I'd like
20 to read the final exhibit introduced on stipulation, which was
21 Government Exhibit 213. The exhibit is Exhibit 210. It's a
22 telephone conversation on May 27th, 1993 between Omar Abdel
23 Rahman and two other individuals. I will read the part of Omar
24 Abdel Rahman and Mr. Morvillo will read the other two parts.
25 May we display the transcript for the jury, please?
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1 THE COURT: Yes.
2 (At this point, Government Exhibit 210T was read into
3 the record by Messrs. Dember and Morvillo)
4 THE COURT: Ladies and gentlemen, that takes us to
5 about 4:27, and so we'll break for the day. Tomorrow, because
6 of scheduling, we'll only be sitting tomorrow morning until
7 lunch hour when we will break. So I won't bring you back
8 tomorrow afternoon, and we don't sit on Friday. I wanted to
9 let you know that now in case there were -- there was any
10 appointment or anything you wanted to make for tomorrow
11 afternoon and you could do that.
12 Please remember to follow my continuing instructions:
13 Please don't look at or listen to anything to do with the case.
14 If you should see something or hear something, just turn away.
15 Please remember to not talk to anyone about the case or
16 anything to do with it. Always remember to keep an open mind
17 until you've heard all of the evidence, I've instructed you on
18 the law, and you've gone to the jury room to begin your
19 deliberations.
20 Have a very good evening. I look forward to seeing
21 you tomorrow.
22 All rise, please.
23 (Jury exits the courtroom)
24 (Continued on next page)
25
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1 (In open court; jury not present)
2 THE COURT: All right. Please be seated, all.
3 Okay. I received the government's July 6th letter,
4 and I said I would -- if the defendants wanted to address that
5 letter orally with respect to those three documents, that's
6 fine. If they want to put something in writing, that's fine,
7 too. And Mr. Ruhnke said he wanted to at least address it
8 orally.
9 MR. RUHNKE: Yes, your Honor. Your Honor, the
10 government's letter of July 6th talks actually about three
11 separate documents, as I understand it: The government
12 contends that they're admissible against all defendants.
13 Nevertheless, the government contends that the evidence is only
14 relevant to Count 2. And as we all obviously understand,
15 neither Mr. Yousry nor Ms. Stewart is named as a defendant in
16 Count 2.
17 The three documents -- one is a speech of Omar Abdel
18 Rahman, And perhaps the government can help me out with a date,
19 an approximate date of that speech, and the sermon. 2040 is
20 the speech, 2057 is the will, And 2070 is the sermon of
21 Dr. Rahman or Sheikh Rahman. I raise that because we just had
22 documents received into evidence last month -- for example,
23 there was a phone call that took place in 1993. You know, long
24 before any of the conspiracies charged in this indictment
25 coming into existence. And the further we get away from the
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1 dates of the actual conspiracies here, the less penultimate the
2 proof is, I contend.
3 So perhaps the government could help us out and tell
4 us what the dates are on these documents -- I don't have that
5 at my fingertips -- as a predicate to the continuing argument.
6 MR. BARKOW: Your Honor, with respect to 2070 and
7 2057, I think I've stated before in our letters the range
8 within which we think we can place 2057 and 2070, which is
9 sometime between 1996, January of 1996, and 1998 -- the month
10 of 1998 escapes me -- December, 1998, For 2057 and 2070.
11 For 2040, we are not able to date that speech.
12 MR. RUHNKE: That helps. I thank counsel for that.
13 However, the government's letter of July 6th, from our
14 perspective, continues to reflect a confusion about what
15 purposes these were being admitted for. And if they are
16 admissible as to Count 2 on some theory, they cannot be
17 admissible as to Ms. Stewart or to Mr. Yousry because they're
18 not named in Count 2.
19 I understand the argument as made by the government
20 that it is necessary to establish the Count 2 of the conspiracy
21 or for the jury to find the existence of Count 2, the
22 conspiracy of Counts 4 and 5 are to be established, but that
23 does not mean that evidence that's admissible only on the
24 Count 2 conspiracy is somehow admissible against the defendants
25 not named in Count 2.
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1 The letter also says that the evidence is offered
2 pursuant to 801(d)(2)(E) to prove the truth of the matters
3 asserted. Well, even if that is so and if they're offered on
4 the Count 2 conspiracy, that does not make them admissible as
5 to defendants not named in Count 2.
6 When the government explains by Footnote 2 as to what
7 it means when it says the exhibit is offered as to Counts
8 2/4/5, it means that the evidence is offered as direct evidence
9 of Count 2, and as background and context to Counts 4 and 5.
10 And again, I have personally some difficulty following the
11 reasoning of that because it seems to come back to the point
12 that we have to establish the Count 2 conspiracy in order to
13 make our case of 4 and 5, but that doesn't mean that the
14 evidence is admissible against the defendants not named in
15 Count 2 of the indictment.
16 So that as I view it, this evidence, if it's going to
17 be admissible, is only admissible as to Mr. Sattar, and as
18 direct evidence, as I surmise from the government's letter, of
19 the charges alleged in Count 2, for example, which goes on the
20 intent of Abdel Rahman, who although he is not a defendant in
21 Count 2, is named explicitly as an unindicted coconspirator in
22 Count 2, But still should not be admissible as to Defendants
23 Yousry and Stewart.
24 On the issue of coconspirator, hearsay, and adopting
25 prior statements or acts of coconspirators for joining a
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1 conspiracy later on that's ongoing and existing -- which may or
2 may not be part of the government's offer here, it's hard to
3 tell -- the government has cited the Baddalamanti case, the
4 1986 Baddalamanti case, and in that case, what the Second
5 Circuit says is that when one joins a new conspiracy that's
6 been ongoing -- and it cites Judge Weinstein's and Berger's
7 Treatise on Evidence -- I'm looking at Baddalamanti, Page 828,
8 794 F.2d at Page 828. The quotation from the Weinstein and
9 Berger treatise is, and I'll just read it, from the Second
10 Circuit, quote:
11 "It is reasonable to expect that a 'new recruit can be
12 thought to have joined when an implied adoption of what had
13 gone on before to enhance the enterprise of which he is taking
14 advantage' where, as here, there is 'sound reason to believe
15 that he joined, when he was generally aware of what his new
16 partners had been doing and saying on behalf of the
17 enterprise.'"
18 So that there is in Baddalamanti the idea that in
19 order to have past statements and actions of coconspirators
20 attributable to the 'new recruit', which is I suppose the
21 argument made regarding Mr. Yousry and Ms. Stewart, there has
22 to be some further foundation that the defendant was aware of
23 what was going on And what was being said by this conspiracy
24 that he is now starting to become a member of. And at least as
25 to Mr. Yousry, whom I can only speak for, I don't see that
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1 foundation either.
2 So in reading the government's arguments in the letter
3 of July 6th, it appears that the evidence, if it is admissible
4 at all, is not admissible as to all defendants but only as to
5 Mr. Sattar, and therefore should have an in limine instruction
6 excluding Mr. Yousry and Ms. Stewart from all three -- from any
7 liability for all three.
8 When the government says it's not offered for the
9 truth of the matter but as a verbal act, that may well be the
10 case, but that still does not mean it's admissible against
11 people who are not involved in Count 2. And I do not see it as
12 background information for Counts 4 and 5, either. So I don't
13 see even, either, as subject to that kind of limiting
14 instruction, either, as to other defendants other than those
15 involved directly in Count 2, which in terms of people being
16 here, is only Mr. Sattar. Mr. Sattar is the only one named
17 currently in Count 2.
18 (Continued on next page)
19
20
21
22
23
24
25
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1 MR. RUHNKE: So my view or argument, respectfully, is
2 that this evidence is not admissible against anyone except
3 Mr. Sattar and if there are limiting instructions that go along
4 with that, it's to Mr. Sattar's counsel to address the
5 appropriate limiting instructions.
6 MR. TIGAR: I would add the following, your Honor:
7 The Count 4 conspiracy and the Count 5 substantive offense
8 depend on two operative words -- provide and conceal. Nothing
9 in any of these three exhibits is relevant to providing or
10 concealing. The theory of Count 4 is that the defendants
11 provided Abdel Rahman to a conspiracy and that they concealed
12 the fact they were doing so. These are statements of his which
13 so far as the evidence shows were not provided by either of
14 these defendants nor were they concealed or the fact of their
15 providing concealed by either of these defendants. They are
16 simply statements.
17 Moreover, and this repeats a little bit what I said,
18 they are statements uttered at a relatively uncertain time and
19 under circumstances which so far as these defendants were
20 concerned did not raise the possibility of imminent lawless
21 action or were not uttered in a context that bespoke imminent
22 lawless action. That is to say, as I tried to argue the other
23 day, the First Amendment with respect to the clear and present
24 danger test is always contextual. And as to these defendants
25 these statements lack that context. I won't repeat the
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1 argument which is a Spock-Noto argument. It seems to me it's
2 sufficient to say that there simply is no relevance as to the
3 crimes that are charged in Counts 4 and 5.
4 THE COURT: All right.
5 Mr. Barkow.
6 MR. BARKOW: Yes, your Honor.
7 I think that our position is set forth finally in our
8 July 6 letter and the theory is that the statements are
9 admissible to prove Count 2 and that in separate trials of
10 Mr. Yousry or Ms. Stewart they would be admissible against them
11 because we would need to prove the existence of Count 2 so as
12 to prove the existence of the conspiracy that they are alleged
13 to have provided material support to.
14 So they are admissible directly to prove Count 2 for
15 Exhibit 2040 under the co-conspirator statements rule. The
16 portions of 2040 include things that we offer for the truth,
17 for example, we are terrorists, we assassinate, we are
18 assassins in substance, those types of statements. Other
19 portions of that statement 2040 are nonhearsay acts not offered
20 for the truth; for example, threats in that statement, don't be
21 hesitant in pursuing your enemies, things like that, they feel
22 pain like you do. And then that is with respect to 2040 and at
23 this point with respect to the other two exhibits we are not
24 offering them for the truth. We are not offering them under
25 the co-conspirator statements rule, 801(d)(2)(e), but we are
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1 offering them with respect to Mr. Yousry and Ms. Stewart
2 because we must prove the existence of Count 2 and similarly to
3 my argument earlier today with respect to some of the Sattar
4 search evidence and similar to the court's ruling with respect
5 to the 1998 fatwah --
6 THE COURT: Well, you know, I take what people say
7 very seriously and the government said that the 1998 fatwah was
8 not being offered against Ms. Stewart or Mr. Yousry and I will
9 give that instruction to the jury because it's the instruction
10 that the government said in its papers to me. Now, I explain
11 something further in my opinion about what a separate trial of
12 Ms. Stewart would be. Yes, so be it. But when the government
13 tells me this is the limiting instruction, that is the limiting
14 instruction that I will give. That also raises for me though
15 the question why is it, by the way, that originally on the list
16 2057 and 2070 was being offered only against Mr. Sattar, not
17 against all defendants?
18 MR. BARKOW: Which list is that, your Honor?
19 THE COURT: The list that I was reading yesterday,
20 which was the list that came with the June 28 letter. It was
21 attachment A. Each exhibit that was in dispute. So the list
22 that I was working from yesterday was attachment A to the
23 government's June 28th letter and the attachment to Ms.
24 Shellow-Lavine's June 29th letter which gave Ms. Stewart's
25 response.
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1 MR. BARKOW: Your Honor, I am looking at my Exhibit A
2 to that letter.
3 THE COURT: Yes. Am I wrong?
4 MR. BARKOW: It says --
5 THE COURT: No, you are right. I am wrong.
6 You are right.
7 MR. BARKOW: And with respect to the fatwah --
8 THE COURT: Hold on.
9 You are right. You are right.
10 You were going to say with respect to the fatwah.
11 MR. BARKOW: Yes, your Honor, we are not at all
12 seeking to revisit or step back about what we were saying from
13 the Bin Laden fatwah. We are only relying on the method of
14 analysis with respect to that. We had initially proposed the
15 limiting instruction because we perceived, and I think the
16 court and the parties did as well, with respect to Bin Laden
17 there might be a particularly acute danger of unfair prejudice
18 and so we think perhaps an even more powerful limiting
19 instruction is appropriate with respect to that.
20 THE COURT: Let me return -- thank you for correcting
21 me, if you intended to correct me.
22 Two comments on 801(d)(2)(e).
23 How would 801(d)(2)(e) be admissible for the truth
24 against Ms. Stewart and Mr. Yousry based upon the allegations
25 of the Count 2 conspiracy when they are not alleged to be a
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1 member of that conspiracy? That was the point I was trying to
2 make yesterday.
3 There is a difference between the possible
4 admissibility of evidence and whether something can be admitted
5 as statements by co-conspirators under an agency theory.
6 MR. BARKOW: It would not, your Honor, because it
7 would be admissible against Mr. Sattar for the truth and then
8 as background and context under our theory therefore to prove
9 the existence of a Count 2 conspiracy, and then that is a
10 predicate to Counts 4 and 5 and therefore background and
11 context as to those.
12 THE COURT: But it couldn't be admitted then for the
13 truth of any of those statements against either Ms. Stewart or
14 Mr. Yousry.
15 MR. BARKOW: Correct.
16 THE COURT: Your chart indicates all defendants,
17 Federal Rule of Evidence 801(d)(2)(e).
18 MR. BARKOW: The court is referring to the June 28th
19 chart?
20 THE COURT: I am on the July 6 letter.
21 MR. BARKOW: Okay.
22 And what I meant to communicate by Footnote 2 when I
23 said that it was admissible as to those three charges and by
24 direct evidence of Count 2, what I meant to communicate there
25 is direct evidence admissible for the truth to prove Count 2
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1 and then as background and context for Counts 4 and 5 because
2 Count 2 would be proven to exist and therefore under Counts 4
3 and 5 it could be the recipient of material support.
4 THE COURT: How could it be admitted even as
5 background for the truth against defendants who are not alleged
6 to be co-conspirators? It lacks the agency.
7 MR. BARKOW: Correct. It would be offered against
8 Sattar for the truth and then as background and context because
9 the Count 2 conspiracy would have been proven to exist and so
10 therefore it would be background and context to Counts 4 and 5,
11 not for the truth. The only reason why it would matter, for
12 example, for Stewart and Yousry that we prove that Abdel Rahman
13 admitted on behalf of the conspiracy that he was a terrorist
14 and an assassin would be to show that the Count 2 conspiracy
15 existed and therefore was a conspiracy to murder and therefore
16 could receive material support. But it would not be offered
17 for the truth against them. It would be offered to show the
18 existence of the Count 2 conspiracy as a predicate.
19 THE COURT: But it's being offered for the truth of
20 the existence of the Count 2 conspiracy.
21 MR. BARKOW: Correct.
22 THE COURT: So it's being offered for the truth
23 against defendants as to whom it cannot be offered as for the
24 truth. A conspiracy can be proved in many ways by many
25 different kinds of evidence and why is it not correct that you
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1 have to analyze the individual evidence according to all of the
2 rules of evidence and that if it's not admissible for the truth
3 against defendants, then it's not admissible for the truth and
4 that just calling it something else doesn't make it admissible
5 for the truth against those defendants.
6 MR. BARKOW: I am not arguing that it's admissible for
7 the truth, your Honor, against them.
8 THE COURT: But aren't you? If you say the jury can
9 consider that for the truth of the statements to establish the
10 existence of the Count 2 conspiracy and can then take that
11 based on what statements for the truth, even though the jury is
12 not entitled to consider those for the truth against the other
13 defendants.
14 MR. BARKOW: I guess the way that I would look at it,
15 your Honor, is that in terms of a chronology of decision-making
16 for the jury, they could consider the statements for the truth
17 to determine whether the Count 2 conspiracy exists with respect
18 to Mr. Sattar because it's the only person charged with it. If
19 they decide that it doesn't exist or it didn't exist and that
20 it wasn't prepared for, then they can't convict Mr. Yousry or
21 Ms. Stewart. If they do decide that it existed or was prepared
22 for, then they have to move on to the separate question of
23 whether Ms. Stewart and Mr. Yousry provided or concealed
24 material support to that conspiracy that they found to have
25 existed.
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1 When they are making that determination, they can no
2 longer consider for the truth of the matter asserted those
3 statements, but in fact they don't need to because they have
4 already decided that there is this entity out there, this
5 conspiracy to kill and kidnap, that could be the recipient of
6 this material support. And at that point they wouldn't be
7 using the statements to determine whether or not Ms. Stewart or
8 Mr. Yousry provided or concealed, they would have already used
9 them to determine that the conspiracy to murder existed.
10 THE COURT: Well, I try very carefully to make sure
11 that I analyzed all the theories of admissibility very
12 carefully and to make sure that each individual ruling is as
13 correct as I can make it.
14 These documents hardly go to the heart of the case.
15 The 2040 is a speech not clear as to when it was given. The
16 Count 2 conspiracy is alleged in the indictment to have begun
17 in 1999, although the argument is made that in '99 it became a
18 conspiracy to violate the laws of the United States as already
19 set out. But we have a speech of unknown date. And the other
20 two speeches or the other two documents are in fact later in
21 time but not offered for the truth.
22 I do have a question with respect to the defendants on
23 the arguments that were made.
24 Mr. Ruhnke, I appreciate the careful lines that are
25 drawn about evidence, how it can be used and what the rules of
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1 evidence are with respect to hearsay and truth, purposes for
2 which it's offered, and there is a distinction, as I have said
3 before, as to whether something could be offered for the truth
4 because of a co-conspirator nonhearsay determination and
5 whether some evidence is simply relevant to the existence of
6 the Count 2 conspiracy which, as I said even if the defendants
7 Stewart and Yousry went to trial on a severed indictment, the
8 government would be required to prove the existence of the
9 Count 2 conspiracy. So evidence of the existence of the Count
10 2 conspiracy would be part of that case, right?
11 MR. RUHNKE: Of course.
12 THE COURT: It wasn't clear to me from your argument
13 that simply because it goes to the Count 2 conspiracy that it
14 follows that the limiting instruction shouldn't be simply that
15 it's, if in fact this is right, that it goes to or can be
16 considered only with respect to some limiting instruction that
17 it goes to the Count 2 conspiracy.
18 MR. RUHNKE: I think I understand what your Honor is
19 saying and if, for example, there is a severance and the
20 government was offering evidence as to this person who is not
21 here by the name of Mr. Sattar and what he had done, and the
22 obvious question in the jury's mind would be why are we hearing
23 all of this stuff about this guy Sattar who is not on trial
24 here --
25 THE COURT: There are the charges in the indictment.
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1 There is a Count 2 conspiracy. There is a Count 4 and a Count
2 5.
3 MR. RUHNKE: Right. But there is no reason to even
4 limit the evidence, other than to say that it's not admissible,
5 period, end of story, against Ms. Stewart and Mr. Yousry. And
6 if there comes a time when you are instructing the jury, and
7 that is almost what I thought Mr. Barkow was getting at, is to
8 say that if you don't find the existence or if you don't
9 convict anybody of the count it conspiracy, it's over as far as
10 Mr. Yousry and Ms. Stewart are concerned on Counts 4 and 5,
11 that is a jury instruction issue. Here we are talking about
12 the admissibility of evidence, what purpose evidence is
13 admitted for and as to whom it's admitted, and the main
14 proposition is that it is not admissible against Ms. Stewart
15 and Mr. Yousry at all. If when we come time to instruct the
16 jury, I assume one of the things we will talk about is the
17 relationship between the Count 2 conspiracy and Counts 4 and 5
18 and the necessity for the jury, before even they are going to
19 consider Counts 4 and 5, to have made some determination as to
20 whether Count 2 has been proven beyond a reasonable doubt or
21 not. If it hasn't been, that they are instructed simply that
22 they must acquit Mr. Yousry and Ms. Stewart on Counts 4 and 5.
23 So it's a difference between an instructional kind of
24 issue and the people as to whom evidence is actually admitted
25 at the trial. So I maintain the position that the proper
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1 instruction is that this evidence is not admitted and may not
2 be considered for any purpose as to whether Ms. Stewart and
3 Mr. Yousry are guilty of any of the counts in the indictment at
4 this point. When it comes time to instructing the jury. There
5 are other charges in the indictment besides 4 and 5 as well.
6 So that when we start limiting the instructions in this case it
7 has been part of our 403 argument, is that it gets pretty
8 esoteric.
9 When certain evidence is offered as to one defendant
10 but not other defendants, but offered as to some defendants in
11 some other cases as to limited purposes and some defendants as
12 to the truth and some as not for the truth, and some as to only
13 particular counts, that it's going to get pretty esoteric and
14 hence our thought that perhaps we might find a way of charting
15 this out for the jury when it goes back to finally consider
16 this evidence. But as far as this evidence that we are
17 discussing right now, these three pieces or three documents,
18 two speeches and a will, I don't conceive of any of this
19 evidence being offered realistically as to Mr. Yousry and Ms.
20 Stewart except on some theory the government has that, well,
21 it's background and context of 4 and 5. It's really not
22 background and context of 4 and 5. Either the government
23 proves Count 2 or 4 and 5 go away. So I maintain the position
24 it's not admissible for any purposes against Mr. Yousry and Ms.
25 Stewart.
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1 MR. TIGAR: Your Honor, may I be heard briefly on that
2 issue? If you go back a few pages in the transcript, Mr.
3 Barkow was addressing the court about Counts 4 and 5 and I
4 remarked to myself then that he left out an element because Ms.
5 Stewart and Mr. Yousry are not guilty unless they knew and
6 intended. It is their knowledge and intent. And that is what
7 the parties opened on, knowledge and intent. And now what is
8 proposed to be offered are three documents of the existence of
9 which they are, so far as the evidence shows or will show,
10 utterly innocent. And, thus, if there is some relevance it is
11 considerably attenuated by virtue of the parties having defined
12 the issues as they do. And, in fact, because this is a case in
13 which the parties opened on the issue of knowledge and
14 intent --
15 THE COURT: Well, I don't mean to interrupt you, but I
16 fully appreciate that the parties have briefed in their jury
17 instructions the issue of whether it should be knowledge and
18 intent or knowledge or intent and that you are using knowledge
19 and intent. The statute uses knowledge or intent and I plainly
20 will decide this issue in the context of the jury instructions
21 but I tried very hard in my opinion on these particular charges
22 to reflect the statute when I was referring to the statute,
23 which is knowledge or intent, and refer to the indictment as
24 knowledge and intent because as the parties knowledge, the
25 indictment has to charge in that language of knowledge and
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1 intent.
2 And it is, as I said, a high specific intent crime
3 because it requires knowledge or intent with respect to the
4 provision of the resources to the conspiracy to kill or kidnap.
5 And I didn't want the fact that you were explaining that to go
6 as an assumption that I was agreeing with the formulation of
7 knowledge and intent.
8 MR. TIGAR: I wouldn't play that game, your Honor.
9 And I think I am the one that cited Chookshank, which is the
10 19th Century case that said that -- which has not been cited by
11 the Supreme Court since Justice Stewart did in 1962. But that
12 wasn't my point. My point was that regardless of the mental
13 element, whether it's knowledge and intent or knowledge or
14 intent, let's take the lower one in model penal code terms, the
15 quadrapartite model penal code statement about intent, let's
16 take knowledge, which is one down from purpose or intention.
17 Even on that lower one it simply doesn't work. The parties
18 have opened on this theory. That is what it's about. So my
19 point that the relevance is attenuated, and it's that
20 attenuated relevance plus the risk of unfair prejudice and
21 spillover that in our view makes the point that Mr. Ruhnke was
22 making.
23 MR. BARKOW: Your Honor, if I may just respond
24 briefly, the relevance of these statements, because they are
25 being offered as to Count 2 directly, is to show the existence
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1 of Count 2 and Abdel Rahman is alleged to be a co-conspirator
2 in that conspiracy and, therefore, for example, his intent is
3 highly relevant to whether or not that conspiracy exists, which
4 is a completely different issue than the one Mr. Tigar is
5 raising here. And so I think that is the --
6 THE COURT: But the issue that is really being raised
7 is the issues of knowledge, intent are very important in the
8 case and the focus on at least from the standpoint of
9 defendants Stewart and Yousry and their knowledge, their
10 intent, is both their knowledge of the existence of the other
11 conspiracy and that they are providing material resources to
12 such a conspiracy, and that, of course, this evidence doesn't
13 go specifically to that. It's alleged to go to the existence
14 of the Count 2 conspiracy in various forms and, you know, one
15 of the things that I have to think about with respect to all of
16 these documents is how the quantity of evidence with respect --
17 already with respect to the state of mind with respect to
18 Sheikh Abdel Rahman, which there have been substantial evidence
19 with respect to his various speeches and what he explained, et
20 cetera, and how this evidence fits in with that over requests
21 for limiting instructions and how I fit that in with 403.
22 MR. BARKOW: Your Honor, maybe I will come at it from
23 this way: Our view of Mr. Ruhnke's --
24 THE COURT: But the other thing is we are dealing
25 with -- it's always some interest to me about how evidence
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1 which is before the most important evidence in the case,
2 namely, what actually went on in the period charged in the
3 indictment with respect to the conspiracies charged in the
4 indictment, and how what the level of relevance is to that
5 evidence as I balance it against the 403 interests.
6 Go ahead.
7 MR. BARKOW: Your Honor, Mr. Ruhnke's proposed
8 instruction we view as overbroad and we think that an
9 instruction along the lines of these statements can be
10 considered -- maybe a more positive rather than negative
11 statement -- these statements can be considered as to the
12 existence of the Count 2 conspiracy and as to Abdel Rahman's
13 membership in it and his intent. Stated positively that way
14 would be a correct statement of the law and would communicate
15 what the proper use of these statements are. And I don't mean
16 to be exhaustive in that proposal, but just kind of pointing
17 out the difference in the approach because we think that Mr.
18 Ruhnke's proposal is overbroad by implying that there is no
19 connection whatsoever between the statements and the existence
20 of the Count 2 conspiracy and Counts 4 and 5. And so that is
21 why we resist that proposal.
22 With respect -- and the court knows this so I won't
23 spend much time on this, but even if, for example, the 2040
24 speech is viewed as too old and therefore not admissible under
25 801(d)(2)(e), either because its relevance is attenuated or it
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1 fails the 403 balancing or because it just doesn't satisfy the
2 801(d)(2)(e) test, it still, however, we think, would be
3 relevant to show Abdel Rahman's intent because he is the same
4 person when he was a member of the conspiracy as he was when he
5 made these statements. And so it's relevant to show his intent
6 because he is a member of that conspiracy and it certainly
7 casts light on his intentions and his conduct in this case.
8 And with respect to Mr. Tigar's argument, he brings me back to
9 what I started with, Mr. Sattar's opening statement in
10 significant part rested on attempting to draw a distinction
11 between his activities being should be placed in context and
12 weren't directed at violence but are instead -- and I am just
13 paraphrasing -- but are instead largely political. But the
14 existence of a conspiracy to murder is proven powerfully, we
15 submit, by the fact that Abdel Rahman makes such powerful
16 statements, such as the 2040 statement where he essentially
17 admits we are terrorists, we are assassins, and in the sink
18 ships fatwah, 2070. And so that is the relevance, the powerful
19 relevance, here of these statements is to prove the existence
20 of that conspiracy to kill and kidnap and also to rebut what
21 appears to be Mr. Sattar's defense, which is a different issue
22 than Ms. Stewart's and Mr. Yousry's knowledge and intent or
23 knowledge or intent of the Count 2 conspiracy.
24 And so I wanted to make those points.
25 Finally, a very small point.
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1 And I wanted to make clear we do not need to prove
2 that the Count 2 conspiracy actually existed in our view. It's
3 either that it existed or it was being prepared for and so I
4 just want to kind of pre-staging the jury instructions issue,
5 which I am certainly not the expert on, Ms. Baker is, but Mr.
6 Ruhnke was alluding to down the road jury instruction issues.
7 The statute says that in order to provide material support the
8 conspiracy to kill or kidnap has to exist or be prepared for
9 and I just wanted to point that out, your Honor.
10 THE COURT: Okay.
11 Anyone else?
12 All right. I will think about it. I don't expect I
13 will have an answer on this tomorrow. All of the other
14 exhibits are more than sufficient for tomorrow morning.
15 MR. BARKOW: We don't know exactly how long they will
16 take but they will take -- that are what we have for tomorrow
17 morning, we think it will probably take an hour and a half, a
18 little over 2 hours or so.
19 THE COURT: I thought there was also the possibility
20 of other witnesses.
21 MR. MORVILLO: There was going to be one final witness
22 from Scotland Yard tomorrow morning, your Honor, but the
23 parties have come to a stipulation with respect to that
24 testimony so it will not be necessary to have that witness.
25 THE COURT: Okay.
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1 MR. MORVILLO: There is also a possibility there might
2 be another witness and we are trying to arrange that now.
3 MR. TIGAR: I am sorry, your Honor, one last thought.
4 THE COURT: Sure.
5 MR. TIGAR: This is not a case in which the Count 2
6 conspiracy risks failing for want of a second conspirator. The
7 question of Abdel Rahman's membership in the Count 2 conspiracy
8 is not, under the way the parties have framed the issues, one
9 of those elements of the offense or whatever. Indeed, up to
10 now the membership issue has only been relevant with respect to
11 Bourjaily type 104 determinations to determine whether and
12 under what circumstances the 801 nonhearsay comes in. It's
13 another way of talking about the relatively peripheral
14 character of this question that the government is raising. If
15 the court is unpersuaded by that additional observation, or if
16 I am reducing the persuasive power of what I have already said,
17 then I will sit down.
18 THE COURT: Okay. All right.
19 Anything else?
20 Okay, thank you all. See you tomorrow at 9:15.
21 (Trial adjourned to July 8, 2004 at 9:15 a.m.)
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