9 November 2004 Source: Court Reporter for the Southern District of New York ------------------------------------------------------------------------------- 8244 4B85SAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 November 8, 2004 8 9:20 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8245 4B85SAT1 1 (Trial resumed; jury not present) 2 THE COURT: Good morning, all. 3 I received correspondence from the government with 4 respect to Mr. Yousry, with respect to various exhibits and 5 Mr. [Ramsey] Clark's testimony. Yes? 6 MR. RUHNKE: Yes, your Honor. I know you are asking 7 me a question. 8 As regards Mr. Clark's testimony, Mr. Stern will 9 address that issue since he is the one calling the witness. 10 With regard to the exhibits, I still think we can 11 resolve that between the government and ourselves. I am 12 looking for Ms. Baker who is not here. 13 But I do believe if by the end of today we haven't 14 resolved that, I will send the Court a letter tonight, of those 15 exhibits. 16 THE COURT: When will I have to resolve that? 17 MR. RUHNKE: Will you have to resolve it? Probably by 18 Wednesday. These are not huge issues, if I can put it that 19 way. 20 THE COURT: Okay. 21 MR. STERN: The letter about Mr. Clark's testimony, if 22 you have it, I will address it in the order Mr. Clark wrote the 23 letter. 24 And I think we are actually not as far apart as it 25 might seem when I address this, so I don't mean to say that we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8246 4B85SAT1 1 are at loggerheads about it. 2 The question about whether or not Mr. Clark thought 3 the SAMs themselves were legal or the propriety of them. I 4 don't intend to ask him whether he thought they were legal or 5 not, but I do intend to ask him whether or not he thought he 6 was violating them because it is our position that through his 7 actions and the actions of all the lawyers, they conveyed to 8 Mr. Yousry, who was neither a signatory nor provided by 9 whatever was provided by the government copies of the SAMs, how 10 he could or could not behave. 11 The government doesn't have to accept his 12 interpretation if it is right and it doesn't matter if his 13 interpretation was right. What matters is if he conveyed it to 14 Mr. Yousry. But things are not only conveyed in words. That 15 is, he didn't sit down and have conversation with Mr. Yousry 16 where he said this is what the SAMs mean, this is what I intend 17 to do and this is how I behave. 18 Over the period of seven years he behaved a certain 19 way during phone calls, during visits, during conversations 20 about the Sheikh, and so it seems to me it is appropriate to 21 ask him whether or not he thought his actions were violating 22 them. 23 That's different, of course, than asking him whether 24 or not he thought they were legal, which I don't intend to ask 25 him. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8247 4B85SAT1 1 As to the second question, whether he has been charged 2 with a crime, I don't intend to ask him that specific question 3 but I do intend to ask him questions about whether or not he 4 ever received from the government notice of any form that what 5 he was doing -- that is, having press conferences -- as you 6 know in 1997, I think he released a statement that the Sheikh 7 supported a cease-fire -- whether he was ever notified that any 8 of those things violated the SAMs. 9 And the reason for that is the same as I indicated 10 earlier, through his actions and through his words on some 11 occasions he conveyed to Mr. Yousry what was appropriate or 12 inappropriate under the SAMs. 13 Finally, as to whether or not he thinks the Sheikh was 14 appropriately or justly or wrongly convicted, I don't intend to 15 ask him anything about his opinion of whether or not the Sheikh 16 was convicted. 17 So on the third one we're in, I think, complete 18 agreement. 19 MR. BARKOW: Your Honor, first I should say that this 20 letter was not just directed at questions and testimony 21 elicited by counsel for Mr. Yousry but also equally, if not 22 moreso, at questions by counsel of Mr. Sattar by Ms. Stewart, 23 and on that front it is both a relevance and 403 objection and 24 also, because Mr. Yousry is the person who intends to call 25 Mr. Clark, a scope objection, assuming that Mr. Clark testifies SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8248 4B85SAT1 1 about things that are relevant to Mr. Yousry's state of mind, 2 we think that that delineates the scope of what questioning 3 might follow and that's a separate issue, which I can get to in 4 a moment. 5 We distinguish between questions on the one hand that 6 inquire into Ramsey Clark's state of mind subjective 7 interpretation, his view of lawyers' roles, what he thought he 8 was told to do or not to do. On the other hand, what he had in 9 his possession, that is the SAMs, and what he did, or what he 10 told Mr. Yousry to do or not to do. 11 And basically the distinction is Mr. Clark's state of 12 mind as to what he thought he could or should do, or others 13 could or should do is irrelevant because Mr. Clark is not a 14 party in this case, he is not a defendant, and his state of 15 mind is irrelevant. And the danger of unfair prejudice from 16 its admission substantially outweighs any marginal probative 17 value it might have because, by virtue of his former position 18 as the attorney general, we think that the jury could misuse 19 that in an improper way, perhaps similar to what was discussed 20 in connection with Judge Mukasey's comments at sentencing. 21 Mr. Clark was the leading law enforcement officer of 22 the United States and we think that it is unfairly prejudicial 23 to allow what we think is irrelevant evidence about his 24 subjective state of mind, whether he thought something was 25 appropriate or not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8249 4B85SAT1 1 And we distinguish between that on the one hand and on 2 the other hand what he told Mr. Yousry to do. Whether he told 3 Mr. Yousry that what Mr. Yousry was doing was right or wrong, 4 whether he acted in a certain way -- merely acted in a way that 5 was observed by Mr. Yousry and therefore might have informed 6 Mr. Yousry's state of mind. 7 If Mr. Clark received a letter from the government 8 telling him that what he was doing was okay or not okay and 9 Mr. Yousry didn't know about it, then it is irrelevant to 10 Mr. Yousry's state of mind. 11 If Mr. Clark subjectively believed that the SAMs 12 permitted something or did not permit it but he didn't 13 communicate that to one of the defendants, then it is 14 irrelevant in this case. 15 And we think that questions that are phrased in a way 16 that allow Mr. Clark to testify to his subjective state of mind 17 or testimony by him would impermissibly get into these 18 irrelevant areas. We talked about this, Mr. Stern and I. This 19 is, I think, the main source of our disagreement on Mr. Clark's 20 testimony. 21 And what we ask is that the Court, if the Court agrees 22 with us, that the Court -- because Mr. Stern I think rightly 23 notes that it might be difficult for, if Court rules in our 24 favor to control what exactly what Mr. Clark says about these 25 things, particularly in a direct examination, we wouldn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8250 4B85SAT1 1 object to some leading to control that, but also we would ask 2 that the Court, outside of the presence of the jury and in 3 advance of Mr. Clark's testimony, instruct Mr. Clark what the 4 appropriate contours are of his testimony so that Mr. Clark, 5 himself, can conform his testimony to the Court's ruling. 6 MR. STERN: The problem that I see with the 7 government's analysis is that the things that happened between 8 Mohammed Yousry and Ramsey Clark take place over a seven year 9 period. And the idea that Ramsey Clark can remember every time 10 he acted a particular way or said a particular thing is not 11 really a realistic appraisal of the way life works. 12 What he did and what he said was formed by his 13 understanding and so to not allow him to say what his 14 understanding is is to deprive a jury of really knowing how he 15 behaved over those seven years. After all, there were just in 16 the times recorded, 63 prison calls and there were years, four 17 years or so before that of many prison calls and of many visits 18 and Ramsey Clark -- and I am singling him out, but though one 19 would have to say I remember each particular conversation I had 20 with Mohammed Yousry. I remember each particular act I did 21 during all of those years. 22 What he does know is what his impression of what his 23 understanding is of what he was and was not allowed to do and 24 that through everything he conveyed those things to Mr. Yousry. 25 I am not asking that the jury be led to understand SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8251 4B85SAT1 1 that that was in fact what he was allowed or not allowed to do. 2 I am asking that they understand that he conveyed 3 those things through everything he did and said to people 4 working on the case. 5 MR. BARKOW: Your Honor, briefly, if I may? 6 Mr. Yousry, if he chooses to testify, can testify 7 about how Mr. Clark affected his state of mind. If Mr. Yousry 8 chose not to testify, Mr. Clark might appropriately testify 9 about how he said or did things that are demonstrated to have 10 affected Mr. Yousry's state of mind. But if there is no link 11 between what Mr. Clark thinks and what Mr. Yousry knows or 12 thought, then Mr. Clark's thoughts are irrelevant. And if it 13 is a product of the fact that Mr. Clark can't remember, then we 14 don't know whether in fact it affected Mr. Yousry's state of 15 mind and we think that it is irrelevant. And if it has 16 marginal relevance we think that 403 requires it to be 17 excluded. 18 For example, if Mr. Clark were told by the government 19 or thought that what he was doing was okay, that may or may not 20 have affected his behavior. We don't know. 21 If Mr. Yousry detected some act by Mr. Clark that made 22 him think that what he was doing was okay, or there is some 23 demonstrated fact of what Mr. Clark did or said from which the 24 jury could infer that Mr. Yousry thought what he was doing was 25 okay or not okay, then that's one thing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8252 4B85SAT1 1 But if there is no link between what Mr. Clark is 2 thinking or doing and what Mr. Yousry knows, then it is 3 irrelevant and if it has any marginal relevance it fails Rule 4 403. 5 MR. TIGAR: Does your Honor want to hear from the 6 other parties on this? 7 THE COURT: Yes. 8 MR. TIGAR: I did not respond to the letter, your 9 Honor, because I needed to talk to Mr. Stern and find out what 10 they were planning to do and I couldn't do that until Sunday. 11 Then he had a conversation with Mr. Barkow about it. 12 We intend to cross-examine Mr. Clark within the scope 13 of his -- the subject matter of his direct examination. 14 Now, one of the problems in this case for Mr. Clark is 15 that he is the subject of a Geaney finding by this Court that 16 the government asked for. 17 Now, Mr. Yousry's position in this case, I don't know 18 what it is, but it might well be that if there was a conspiracy 19 under Count One, I wasn't a member of it, and I wasn't a member 20 of it if it existed. But then that leads, of course, to the 21 negative question, well, who else was? 22 And so, it becomes relevant after Mr. Yousry has 23 presented this exculpatory version of events that exculpates 24 him, for us to interrogate Mr. Clark about his own actions and 25 the basis for them. After all, it takes two to tango under SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8253 4B85SAT1 1 federal conspiracy law and if not Mr. Yousry, then who else? 2 And that is a question that will inevitably be raised by 3 Mr. Clark's presence on the stand given that he is a subject of 4 a Geaney finding that the government sought. 5 Next, it seems to us that we are entitled to explore 6 Mr. Clark's credibility -- good, bad or indifferent. 7 Next, it seems to us that inevitably -- inevitably, 8 there will be a discussion of Mr. Stewart's role in the events 9 that Mr. Clark is describing. 10 There have been a great deal of evidence about the way 11 they worked together over time and it blinks reality to suggest 12 that Mr. Clark could be confined to a subject matter of direct 13 examination, using that term in its ordinary sense, that would 14 not involve some of the interaction with Ms. Stewart. 15 At the end of the day, your Honor, therefore, all of 16 these things have to do with scope and credibility and thus we 17 suggest that the government's letter is premature. 18 However, Rule 611A, which is seldom cited but oft 19 followed, gives this Court plenary power and the advisory 20 committee notes make it clear, to govern the way things are 21 done here. 22 The reason Mr. Clark is being called by Mr. Yousry's 23 counsel is that he had the most interaction, he had this 24 interaction with Mr. Yousry that Mr. Stern has talked about -- 25 at least I think that's right, and he is a busy person of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8254 4B85SAT1 1 certain age and we thought that was the most efficient way to 2 present his testimony. 3 And so therefore, if we do get into some argument 4 about scope, we may very well add -- which I don't know that we 5 will -- we may very well ask the Court to exercise the Court's 6 discretion in a certain way, permit us to take him on 7 nonleading questions for a time, permit us to treat him as our 8 own witness. I can't predict that now. 9 But that power is out there and ultimately Court can 10 say, no, if you want that, you have to call him in your own 11 case or reopen your case or whatever. I just don't know. 12 But what we are trying to do here, your Honor, is to 13 present a defense to the jury in an orderly way that makes 14 sense. And certainly we do not intend to ask Mr. Clark 15 anything that's irrelevant in the 401, 402 sense to the issues 16 that are properly before this jury. We do intend to exercise 17 our right to cross-examine him keeping that in mind. 18 These other rules about scope and so on, as we say, I 19 think determination would be premature at this point. 20 MR. BARKOW: Your Honor, with respect to the 21 credibility cross-examination, good, bad or indifferent, I 22 believe Mr. Tigar said, unless and until Mr. Clark's 23 credibility is attacked, I don't think it would be proper to 24 bolster Mr. Clark's credibility. 25 So I'm not sure, if Mr. Tigar, other than the implicit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8255 4B85SAT1 1 bolstering that might occur by virtue of who he is and his 2 former position -- but to do credibility bolstering, prior 3 consistent statements, that sort of thing would be 4 inappropriate until his credibility is attacked, we believe. 5 With respect to the Geaney finding issue, I don't 6 recall whether there actually was a specific finding of that 7 sort with respect to Mr. Clark. 8 THE COURT: There was one -- at least one call that 9 dealt with the formation of political parties that the 10 government said was being offered in furtherance of the 11 conspiracy, as best I can recall. 12 MR. BARKOW: I think that's probably call 1034 on 13 November 5th of '99. 14 THE COURT: True. 15 MR. BARKOW: I know that we do view that as evidence 16 of the -- 17 THE COURT: And we had a discussion about that issue. 18 MR. BARKOW: The Court clearly has a better 19 recollection of that particular issue than I do. 20 I know that we view that evidence as evidence of the 21 existence and commission of the conspiracy. I don't recall 22 whether Mr. Clark's statements on that call were identified as 23 co-conspirator statements in furtherance of the conspiracy and 24 so I just don't remember. 25 We don't know if they were necessarily admitted for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8256 4B85SAT1 1 the truth or that we would use them for their truth. 2 THE COURT: We really -- you can go back and check the 3 transcript, we had this discussion. 4 MR. BARKOW: Well, in any event, the Court seems to 5 have a better recollection of that than I do and we can go back 6 and check. 7 THE COURT: But I am always happy to have the parties 8 check the transcript. 9 MR. BARKOW: In any event, we still view Mr. Clark's 10 subjective state of mind as irrelevant and if it has marginal 11 relevance, as failing the 403 balancing test for the reasons 12 that I articulated before because we think that it can be put 13 to an improper use by the jury and it is unfairly prejudicial 14 to the government by virtue of Mr. Clark's former position. 15 And when he is talking about his subjective state of 16 mind that has, in our view, no relevance and certainly far less 17 relevance than the defendants' states of mind. 18 With respect to the order of questioning, if the 19 questioning is to go as it seems by the comments of counsel it 20 is, we think that this would be the ordinary course but the 21 government requests that we would be last; that Mr. Yousry do 22 his questioning first and that Mr. Tigar and counsel for 23 Mr. Sattar do their questioning next. And if the questioning 24 does indeed go beyond the scope, we would ask that there be a 25 break so that that can be foreshadowed and, indeed, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8257 4B85SAT1 1 questioning then would not be leading. 2 Because we think that one of the -- we obviously don't 3 know the reasons for why Mr. Clark may or may not be called by 4 particular defendants but the cost of not calling Mr. Clark, in 5 our view in the Stewart case, is that he is not a witness for 6 Ms. Stewart. And if Ms. Stewart wants him to testify for her, 7 she can call him in her case. Her case is still ongoing, she 8 is on the stand. But she can't use him as an affirmative 9 witness by cross-examination and therefore being able to lead 10 him in someone else's case. 11 MR. TIGAR: Your Honor, this concept of a witness 12 being for somebody is not anywhere in the federal rules, the 13 voucher rules are gone. If I recognize, your Honor, that -- 14 well, let me start over. 15 I don't think Mr. Ramsey is a witness for us or for 16 Mr. Yousry or anybody. He is a witness. He comes in like any 17 other witness and tells us what he thinks is the truth. 18 I understand that the Court may well tell me, with 19 respect to certain lines of questions, that I shouldn't lead 20 Mr. Clark. Why? Because it wouldn't be right given what he 21 says. That's the Court's discretion. 22 With respect to this intent issue, your Honor, let me 23 be very, very clear about what I want to do here. The 24 conspirators in Count One are allegedly, it could be 25 Ms. Stewart1, it could be Mr. Taha, it could be Mr. Sattar, it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8258 4B85SAT1 1 could be Mr. Yousry, it could be Mr. Clark, and who knows who 2 else. 3 But the jury, in order to convict Ms. Stewart, has to 4 find, beyond a reasonable doubt, that she conspired with 5 somebody else, that there was a conspiratorial agreement that 6 embraced at least one other person. And one when one of the 7 potential candidates shows up and is asked about his 8 relationship to one of the other potential candidates, we 9 respectfully submit that the state of mind of that person with 10 respect to that person's conduct, relevant conduct, conduct 11 within the scope of Count One, is at the heart of the case. 12 And while some inquiries about that subject, some 13 evidence that would tend to show it may fall afoul of a 403 14 analysis, the issue itself, to place myself in sharp 15 disagreement with government counsel, could not be more 16 central. 17 MR. BARKOW: Your Honor, we would like to look back at 18 the transcript for Mr. Clark and his statements under Geaney 19 and with respect to that call. This is something that, in our 20 view, should be addressed today but perhaps we can take it up 21 later. 22 I think that the questioning of Ms. Stewart is going 23 to continue for at least a few hours and so perhaps we can take 24 this up and not use jury time. I don't know if the jury is 25 even ready. Or I can take a minute now to see if I can find SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8259 4B85SAT1 1 something in the transcript. 2 THE COURT: No, I do want to bring in the jury. And 3 if I can't decide the issues today, Mr. Clark will not testify 4 tomorrow, he will go over until Wednesday if in fact he was 5 otherwise going to testify tomorrow. He will go over until 6 Wednesday. If I don't decide the issue today he will go over 7 until Wednesday. 8 MR. BARKOW: That's fine with us, your Honor. I was 9 basing what I said, I think, on Mr. Yousry's plan, so. 10 MR. RUHNKE: Your Honor, just so -- I'm not sure of 11 the implications about what your Honor just said. Mr. Clark is 12 our first witness. We have a plan on how we want to present 13 our defense. He is our first witness. 14 THE COURT: All right. Let's bring is in the jury. 15 MR. TIGAR: Shall Ms. Stewart take the stand now? 16 THE COURT: Yes, please. 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8260 4B85SAT1 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Good morning, ladies and gentlemen. 4 THE JURY: Good morning, your Honor. 5 THE COURT: Good to see you all. 6 Ms. Stewart is on the stand. 7 Mr. Dember, you may proceed. 8 MR. DEMBER: Your Honor, do you want Mr. Fletcher -- 9 THE COURT: I'm sorry. 10 Mr. Fletcher? 11 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 12 are still under oath. 13 THE WITNESS: Yes. 14 THE COURT: Mr. Dember, you may proceed. 15 LYNNE STEWART, resumed 16 CROSS EXAMINATION (Continued) 17 BY MR. DEMBER:: 18 Q. Good morning, Mr. Stewart. 19 A. Good morning, Mr. Dember. 20 Q. Ms. Stewart, I think we left off last week talking about 21 what happened during the May 2000 visit that you made with 22 Abdel Rahman. Do you remember that? 23 A. Yes. 24 Q. And I believe you talked about the fact that you brought a 25 number of letters or correspondence with you and Mr. Yousry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8261 4B85SAT1 Stewart - cross 1 into the prison at Rochester, is that right? 2 A. That's right. 3 Q. And we also had a discussion about the word "message." Do 4 you remember that? 5 A. Yes. 6 Q. And I think you told us -- and correct me if I am wrong -- 7 that, in your view, the word "message" meant, is some kind of 8 secret communication. 9 Did you use that phrase, "secret communication"? 10 A. I'm not sure it always has to be secret but it has a ring 11 to it of some kind of secrecy or clandestinity or something to 12 that effect; yes. 13 Q. And it was your testimony and I believe you said, this 14 wasn't -- this was done so openly, so above-board, so out there 15 for everybody to know about. 16 Do you remember saying those words in reference to the 17 question about, of your defining the word "message"? 18 A. I thought I had said that with regard to the press release 19 but, because I don't think it was done openly because it was 20 part of the lawyer's work. And so when I discussed it with 21 him, the Sheikh that is, it became part of our privileged 22 conversations, I thought. 23 So I'm not sure that I would have said that it was 24 done openly. 25 Q. Well, the press release was based on something that was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8262 4B85SAT1 Stewart - cross 1 told to you and Mr. Yousry by Abdel Rahman during that visit, 2 is that right? 3 A. Yes. 4 Q. And that was communicated to you and Mr. Yousry as a result 5 of Mr. Yousry reading to Abdel Rahman a letter from Mr. Sattar, 6 is that right? 7 A. Yes, that's right. 8 Q. And that was the first day of the visit where it was read 9 to Abdel Rahman and I believe you said to him, to Abdel Rahman, 10 he should think about it overnight so that he could respond to 11 that portion of Mr. Sattar's letter the next day; is that 12 right? 13 A. Yes. 14 Q. And the next day, in fact he did respond and essentially 15 told you and Mr. Yousry, or you, through Mr. Yousry, in 16 responding to that, that in fact you should issue a press 17 statement about what he was saying. Is that right? 18 A. Yes. I'm not sure he said should but it was certainly open 19 and available to me. 20 Q. Now, let me backtrack for a second. 21 We know that you brought Mr. Sattar's letter into the 22 prison, is that right? 23 A. Yes. 24 Q. Do you remember you also brought into the prison letters 25 from Nasser Ahmed and his wife, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8263 4B85SAT1 Stewart - cross 1 A. That's correct. 2 Q. And I think you told us last week none of those letters 3 went through the procedures that are spelled out in SAMs where 4 they need to be reviewed by prison officials before they could 5 be brought into the facility or read to Abdel Rahman, is that 6 right? 7 A. Yes. That part of the SAMs seemed to apply, in my mind at 8 any rate, to letters such as would be sent through the U.S. 9 postal office, you know, with envelopes and the usual -- I 10 think there even is maybe some reference in the SAMs themselves 11 to envelopes. 12 But at any rate that was my impression of that 13 particular section. 14 Q. Just so that we are clear -- 15 May I approach, your Honor? 16 THE COURT: Yes. 17 Q. Ms. Stewart, I'm going to hand up to you what is in 18 evidence as Government Exhibit 6. Ms. Stewart, that exhibit 19 includes the Special Administrative Measures, is that correct? 20 A. It does. 21 Q. And just from the front cover, the first page of the 22 exhibit, does this appear to be the version of the SAMs that 23 were in effect when you visited Abdel Rahman in May of 2000? 24 A. I don't think I can answer that since it is dated December 25 10th, 2000 -- it wasn't a time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8264 4B85SAT1 Stewart - cross 1 The time limits I know were 120 days. I don't know 2 whether this in fact was in effect or wasn't in effect, but 3 it's dated December 10th -- December 30th -- December 10th, 4 actually, 1999. 5 Q. Why don't you look at the cover letter, which is the second 6 page of the exhibit. Do you see that? 7 A. Uh-huh. 8 MR. DEMBER: May I display it for the jury, your 9 Honor? 10 THE COURT: Yes. 11 Q. Ms. Stewart, the date on the cover letter is April 5th, 12 2000, is that correct? 13 A. Yes, that's correct. 14 Q. That's the month before the visit itself? 15 A. Yes. 16 Q. Why don't you look about three pages after that, is there 17 an affirmation with your name on it, a blank version of that 18 affirmation? 19 A. Yes. 20 Q. And look below, you see April blank, 2000 in the dated 21 portion? 22 A. Yes. 23 Q. And do you recall that when you actually signed the 24 affirmation on May 16th, 2000, you crossed out the April that 25 appears on this affirmation and wrote in the word "May" and you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8265 4B85SAT1 Stewart - cross 1 added the number 16 to that affirmation? 2 A. Yes. 3 Q. Okay. Why don't you turn now to -- I will give you the 4 page of the SAMs, the section of page 6 of the SAMs itself. 5 May I display that, your Honor? 6 THE COURT: Yes. 7 Q. At the bottom it indicates that's the mail section, is that 8 right? 9 A. Yes. 10 Q. And then it describes legal mail, correct? 11 A. Right. 12 Q. And let me turn the page and you can if you like; then 13 there is a section called nonlegal mail, is that right? 14 A. Yes. 15 Q. Do you see -- and then towards the middle of the page it 16 starts the section on visits, is that right? 17 A. Yes. 18 Q. Do you see in any part of the mail section any reference to 19 envelopes? 20 A. Yeah, in one. 21 Q. Where is that? 22 A. Under, I guess it is small B(i)(1). 23 Q. Okay. Does anything in this section of the SAMs indicate 24 that the letters or the mail, the correspondence have to -- 25 does it make any reference to the U.S. Postal Service or to any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8266 4B85SAT1 Stewart - cross 1 courier service? 2 A. No. It says the surface of the envelope. That's pretty 3 much it. 4 Q. That instruction indicates all nonlegal mail, incoming or 5 outgoing, shall be copied including the surface of the 6 envelope, by the warden. 7 That's an instruction as to what must be copied, is 8 that correct? 9 A. Yes. 10 Q. Now, I think you told us last week that when you took 11 after, at the end of the two day visit, there was a response to 12 Mr. Nasser Ahmed's letter, is that right? 13 A. Yes. 14 Q. There was a response also to the letter sent by his wife as 15 well, correct? 16 A. That's correct. 17 Q. And there is also response to Mr. Sattar's letter, is that 18 right? 19 A. Yes. 20 Q. And did you show any of those letters to the warden before 21 you left Rochester after that visit? 22 A. No. 23 Q. Did you show any of those responses to the letters to any 24 Bureau of Prisons officials before you left Rochester? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8267 4B85SAT1 Stewart - cross 1 Q. Did you ever show any of those, copies of those responses 2 to any member of the Justice Department? 3 A. No. Absolutely not. 4 Q. Or the FBI for that matter? 5 A. No. 6 Q. Or the U.S. Attorney's office? 7 A. No. 8 Q. Or Pat Fitzgerald? 9 A. No. 10 Q. Ms. Stewart, I just have a couple more questions about 11 these letters or correspondence we are talking about. I think 12 you told us that the, or a reason why you didn't believe you 13 needed to show any of those letters or submit those letters 14 through the procedures spelled out in the SAMs was because you 15 mentioned the attorney-client privilege, is that right? 16 A. Yes. 17 Q. What I am going to do now is just read for you a 18 description of the attorney-client privilege and I'm going to 19 ask you if you understand and agree with that description or 20 definition, okay? 21 MR. TIGAR: Objection to, your Honor. 22 THE COURT: Basis. 23 MR. TIGAR: First, I don't know what the description 24 is. Second, the law is for the Court. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8268 4B85SAT1 Stewart - cross 1 MR. TIGAR: And that's the basis of the objection. 2 THE COURT: Do you want to move to something else or 3 shall we take a brief break? 4 MR. DEMBER: Your Honor, why don't we move on and we 5 will come back to this. That will make it easier. 6 Q. Let me ask you more about the visit. Now I believe it was, 7 you told us, before the start of the second day of your visit 8 with Abdel Rahman you met with the warden, is that correct? 9 A. Yes. I think it was after the first day. 10 Q. After the first day? 11 A. At the end of the first day, yes. 12 Q. And that was Warden Constance Reese, is that right? 13 A. Yes. 14 Q. Had you ever met her before that time? 15 A. No. 16 Q. Had you requested that meeting with Warden Reese? 17 A. No. She requested it. 18 Q. She requested the meeting with you? 19 A. Yes. 20 Q. After you finished with your client, okay. 21 Had you ever, in any of your visits, to Rochester or 22 any other place where Abdel Rahman was housed after he was 23 sentenced, did you ever request a meeting with any of the 24 wardens? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8269 4B85SAT1 Stewart - cross 1 Q. I think you mentioned to us that at some point during that 2 meeting you mentioned to Warden Reese that you were, at some 3 point, going to Court to make sure that the conditions under 4 which your client, Abdel Rahman was living, were changed. 5 Do you remember that? 6 A. Yes. 7 Q. And did you tell that to the warden? 8 A. Yes. 9 I think I more or less, I had the sense that she was 10 trying to explain to me why things were pretty good for the 11 Sheikh and I didn't want her to be under any misapprehensions 12 that I was agreeing with her because I didn't think they were 13 good. So I basically told her that one of the reasons I was 14 there was the preparation of a conditions lawsuit and that 15 wasn't particularly directed at her. I thought she was just 16 following orders. 17 Q. And you made that clear to her, did you not, that it wasn't 18 a personal matter between Abdel Rahman and her, it was just the 19 conditions under which he was living including the SAMs, is 20 that right? 21 A. Yes. 22 Q. Now, Ms. Stewart, during the visit when Mr. Yousry read the 23 letters from Nasser Ahmed and his wife to your client, Abdel 24 Rahman, did you participate in the reading in any way, or 25 discussion as he was reading those letters to your client? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8270 4B85SAT1 Stewart - cross 1 A. I think I wanted to make clear to the Sheikh -- I think 2 after Mr. Yousry said something about that he was reading 3 Nasser Ahmed's letter, I wanted to make clear to the Sheikh 4 that maybe things were not quite as dire as Mr. Ahmed was 5 describing them; that he was in fact living his life and 6 getting on with life, although it was a pretty dim picture he 7 presented in the letter that the Sheikh should understand from 8 my observation that it was maybe not quite that dire. 9 Q. How about Mr. Ahmed's wife's letter, do you remember having 10 that kind of conversation with your client and Mr. Yousry as he 11 was reading that letter? 12 A. I think I may have remarked about how happy Salwah was, 13 that he was home, that nothing could be bad when someone comes 14 home from jail and after a very difficult case and time, she 15 was taking care of their four kids and etc. 16 So I think I might have said she may also sound kind 17 of down but actually she is happy and in love I think I may 18 have even said. 19 Q. Now, was it the second day that Abdel Rahman responded to 20 both of those letters? 21 A. Yes. 22 Q. Did you participate in any way when Abdel Rahman was giving 23 his response to Mr. Yousry to those letters? 24 A. No, I don't think so. I -- that was pretty much -- I was 25 completely doing something else. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8271 4B85SAT1 Stewart - cross 1 Q. Now, during the first day I think you told us last week you 2 handed Mr. Sattar's letter to Mr. Yousry so he could read that 3 to Abdel Rahman the first day, is that right? 4 A. Yes. 5 Q. And when he was doing that on the first day, did you 6 participate in any way in that conversation of Mr. Yousry 7 reading to Mr. Sattar? 8 A. I don't really recall. 9 Q. Obviously that was all done in Arabic, correct? 10 A. All done in Arabic, yes. 11 Q. Same thing with Mr. Ahmed's letter and his wife's letter, 12 all done in Arabic? 13 A. Except as you mentioned a few moments ago, I did say you 14 should think about this because you will respond to it 15 tomorrow, or something like that. 16 Q. But in terms of the substance of what was in Mr. Sattar's 17 letter, did you engage in a conversation with your client and 18 Mr. Yousry as to the substance of the correspondence when 19 Mr. Yousry was reading it to Abdel Rahman? 20 A. Not that I recall. 21 Q. Now the next day you, Mr. Abdel Rahman responded to 22 Mr. Sattar's letter, is that right? 23 A. That's correct. 24 Q. And did you participate in any of that part of the 25 conversation when Abdel Rahman was responding to that letter? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8272 4B85SAT1 Stewart - cross 1 A. I do not recall participating in that part of the 2 correspondence between Mr. Yousry and the Sheikh. 3 Q. Do you remember at any point during that two-day visit 4 engaging your client, Abdel Rahman, through Mr. Yousry, in any 5 conversation about Mr. Sattar's letter and in substance of the 6 letter? I'm sorry. 7 A. I don't recall doing it. May be there but at this moment I 8 don't recall having any discussion. 9 MR. DEMBER: Your Honor, may I display for the witness 10 and the jury a portion of Government Exhibit 1706X, which is 11 the transcript of the videotaped conversation of that visit? 12 THE COURT: Yes. In evidence? 13 MR. DEMBER: In evidence, right. Sorry, your Honor. 14 I got the numbers wrong, 1711X, which is in evidence. 15 THE COURT: All right. 16 Q. Let me just show the front, first page of that part of that 17 transcript. It indicates the visit in Minnesota on May 20th, 18 2000; Ms. Stewart, that was the second day of the visit, is 19 that right? 20 A. That's correct. 21 Q. And at some point during the second day of the visit you 22 got into a discussion with Mr. Yousry and your client about 23 Mr. Fitzgerald, is that right? Do you remember that? 24 A. Yes. 25 Q. You also had mentioned Mr. McCarthy as well, Andrew SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8273 4B85SAT1 Stewart - cross 1 McCarthy? 2 A. Yes. 3 Q. Those were both -- those were two of the three prosecutors 4 who were on the case where your client Abdel Rahman was 5 prosecuted, is that right? 6 A. Yes. 7 Q. Let me just turn to page 5 of that transcript. And at some 8 point I am going to refer you here to line 8, Mr. Yousry says, 9 in English: Who stops Dr. Aziza from visiting? Is it this 10 prison or is it the Judge? It is uh, uh, um. 11 Dr. Aziza, I think you told us is the wife of Mohammed 12 Nadil Masry, is that right? 13 A. Yes. She is a doctor in New Jersey, yes. 14 Q. And you respond to Mr. Yousry by saying: The SAMs. 15 Then Mr. Yousry asks: McCarthy? 16 That's Andrew McCarthy he is referring to? 17 A. Yes. 18 Q. And you say: It's the SAMs... well, McCarthy is gone. 19 Do you mean by that that Mr. McCarthy left the U.S. 20 Attorney's office at the time? 21 A. Yes. He was no longer employed there. 22 Q. Then he says: Okay, who, who's, who's took this as a -- 23 Then you say: SAM is the Fitzgerald. 24 That's Pat Fitzgerald you are referring to? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8274 4B85SAT1 Stewart - cross 1 Q. Mr. Yousry says: Who is responsible for SAM, is it 2 Fitzgerald? 3 And you say: Fitzgerald. 4 Then there is some discussion there about Dr. Aziza 5 again. 6 Then at the bottom Mr. Yousry asks: Can Fitzgerald 7 allow that? 8 Meaning, I guess, Dr. Aziza to come visit. 9 Is it in his power or he has to ask Janet Reno? 10 Mr. Yousry asked that question, right? 11 A. Yes. 12 Q. And then you responded: No, I think anything is in his 13 power. 14 Meaning Mr. Fitzgerald's power, did you mean that? 15 A. Yes. 16 Q. Okay. Then, skipping down a few lines to line 19 -- 17 actually jumping to line 15, it says: How about if you try 18 with, with him? Don't let Abdeen or the other guys to try, you 19 try. 20 Do you know what he was referring to there? 21 A. I think he was saying that I might have more success asking 22 Pat Fitzgerald to allow her to come in than perhaps Abdeen or 23 Ramsey would have. 24 Let me just get a drink? 25 Q. Certainly. Yes, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8275 4B85SAT1 Stewart - cross 1 A. Thank you. 2 Q. Now, a couple lines down you say: I will try. But he is 3 much more evil than McCarthy. 4 Is the 'he' you are referring to Mr. Fitzgerald? 5 A. I'm afraid so. There is a quantum of loose talk in visit 6 with a client but it was referring to Mr. Fitzgerald. 7 Q. And then on the next page, page 7, line 4, Mr. Yousry says: 8 MR. RUHNKE: Excuse me, may I just have a moment with 9 Mr. Dember? 10 THE COURT: Sure. 11 (Counsel conferring) 12 BY MR. DEMBER: 13 Q. I'm sorry, let me start before that, line 3. Mr. Abdel 14 Rahman: We thought that McCarthy was more dangerous. 15 That says that in the transcript there? 16 A. Yes. 17 Q. And Mr. Yousry translates: We thought that McCarthy was 18 really a, a devil. 19 And then you say: A devil. Well, Fitzgerald I think 20 is more so. He's uh, he's uh, he's like a crusader. 21 And then the next line down you say: He has it in his 22 heart. 23 THE COURT: In the. 24 Q. He has it in the heart. 25 I'm sorry, your Honor. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8276 4B85SAT1 Stewart - cross 1 Then Mr. Yousry is translating apparently in Arabic. 2 He says: Fitzgerald is different from McCarthy, Fitzgerald -- 3 Fitzgerald believes in all these things in his heart. He has 4 the faith of doing them the same way as the crusaders did. 5 He says crusader in English. 6 I mean, the same as the crusaders battle. He is more 7 dangerous this way. 8 Abdel Rahman says: Ah. 9 Then you say: This will never happen again. This 10 will never be -- there will never be a bomb explodes [sic] and 11 an American Embassy again. You know. 12 Let me ask you about that. In the transcript there 13 what I just read, for the most part, is in quotes, is that 14 correct? 15 A. That's right. 16 Q. Were you actually quoting a statement Mr. Fitzgerald had 17 made in the past? 18 A. He actually made that to a client of mine who was about to 19 go in to testify before the grand jury who was investigating 20 the African embassy bombings and he sort of gave him a brief 21 lecture and pep talk before he went into the grand jury room. 22 Q. Now, when you refer to bomb explodes and an American 23 Embassy in there, were you referring to the bombing of the two 24 American Embassies in Africa? 25 A. I wasn't referring, Mr. Fitzgerald was referring. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8277 4B85SAT1 Stewart - cross 1 Q. When you were referring to this quote or this statement, 2 were you referring to the two, the bombings at the two African 3 embassies in Africa in 1998? 4 A. Yes, he was. 5 Q. And those are the embassies in Tanzania and Kenya? 6 A. Yes. 7 Q. Was it your understanding that Mr. Fitzgerald was involved 8 in the case, the prosecution of persons who were accused of 9 participating in those bombings? 10 A. I understand that he was, yes. 11 Q. And was it your understanding that he was the chief 12 prosecutor? 13 A. I don't know what role he played. 14 Q. And from your understanding of that case, from all your 15 knowledge from whatever source, did you understand that many 16 people were killed as a result of those bombings? 17 MR. TIGAR: Objection, your Honor. Relevance. 18 THE COURT: Overruled. 19 THE WITNESS: Yes, I think that was common knowledge. 20 BY MR. DEMBER:: 21 Q. Over 200 people? 22 A. Yes. 23 MR. DEMBER: Your Honor, may I just show the witness a 24 transcript which was used as an aid, your Honor, to a recording 25 that was in English, Government Exhibit 1253X -- it was just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8278 4B85SAT1 Stewart - cross 1 used as an aid -- it is a one-page document, may I display it 2 to the jury and ask the witness some questions? 3 THE COURT: Yes. 4 Q. Ms. Stewart, take a look at that for a moment. Do you 5 recognize that transcript? 6 A. I do. 7 Q. And do you recall the recording that we played back a 8 couple months ago during the course of this trial? 9 A. I do remember. 10 Q. And that was a -- this is a transcript pertained to a call 11 that you had made to Mr. Sattar's home, is that right? 12 A. Yes. 13 Q. And you left a voice mail message on his, on a recording 14 device of some kind? 15 A. Yes. 16 Q. And you indicated I believe here, that you had essentially 17 a copy of some indictment, the Bin Laden indictment, is that 18 correct? 19 A. Yes. 20 Q. Did you actually provide Mr. Sattar with that copy of the 21 Bin Laden indictment that you referred to in that call? 22 A. I don't recall whether it was -- it was back in '98 I 23 think. I don't recall that he came to the office and picked it 24 up. 25 I recall that he requested it and we had discussed it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8279 4B85SAT1 Stewart - cross 1 seemed to be a lot of the same verbiage that which the Sheikh 2 had been earlier described. So he said I will have to read 3 that. And I said I have a copy here. 4 I had been asked -- at least I remember checking with 5 Pat Fitzgerald to see if it would be possible for me to 6 represent someone in this case and him telling me that that 7 would be a, quote, conflict of interest. 8 So, at that point I had no further interest. 9 Q. Is that Bin Laden indictment that you referred to in that 10 call, is that one of the indictments in the embassy bombing 11 case? 12 A. Yes. 13 Q. And Mr. Bin Laden was listed in that indictment? 14 A. Yes. 15 Q. By the way, did you ever ask Pat Fitzgerald if Dr. Aziza 16 could visit with Abdel Rahman? 17 A. I may have called him. I don't remember, really. 18 Q. Now, Ms. Stewart, after the visit, at some point in time 19 apparently after the visit, that affirmation that you had 20 signed on May 16th, 2000 was sent to the U.S. Attorney's 21 office, is that right? 22 A. That's correct. 23 Q. Now, I think you told us you took what you thought was a 24 copy of the affirmation with you on the trip to Rochester in 25 May 2000? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8280 4B85SAT1 Stewart - cross 1 A. Right. But you rightly pointed out that I had it faxed to 2 me out there or the page -- no, no, no. I'm confusing the two. 3 Excuse me. 4 No, I did take that with me. Yes. 5 Q. And at some point in time the original of that document was 6 actually sent to the United States Attorney's office, is that 7 right? 8 A. It was. 9 Q. Now, do you remember if before you went on your trip to 10 Rochester in May 2000 you handed it to a secretary or somebody 11 else in your office to send to the U.S. Attorney's office, or 12 whether you actually physically did that once you came back 13 from Rochester? 14 A. I think I just left it in the outbox and said put a cover 15 letter on this and send it over to Pat Fitzgerald over at the 16 U.S. Attorney's office and then forgot about it completely. 17 MR. DEMBER: Your Honor, may I display Government 18 Exhibit number 7, in evidence? 19 THE COURT: Yes. 20 Q. Ms. Stewart, I'm showing you Exhibit number 7, and that is 21 the affirmation that you signed and dated May 16th, 2000? 22 A. That's correct. 23 Q. Now, let me turn to the second page of this exhibit. It 24 appears to be a letter on your letterhead, is that correct? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8281 4B85SAT1 Stewart - cross 1 Q. And it's dated May 26, 2000 and it's addressed to 2 Mr. Butler and it states: Enclosed please find my signed 3 "attorney's affirmation" with regard to Sheikh Omar Abdel 4 Rahman. Very truly yours. Lynne F. Stewart. 5 Is that your signature or a stamp that your secretary 6 used? 7 A. That was a stamp. 8 Q. At any event, it was at some point in time sent to the U.S. 9 Attorney's office, correct? 10 A. Yes. 11 Q. Now, Ms. Stewart, you left Rochester -- did you leave 12 Rochester on the 20th of May, do you remember, or was it the 13 21st? 14 A. If the 21st was a Sunday then we left on the 21st. 15 If the 20th was a Sunday, probably not, probably the 16 21st in the early morning. 17 Q. So the visit was on the 19th and the 20th and then you 18 think you may have left the following day? 19 A. Yes. 20 Q. Once you left your visit with Abdel Rahman on May 20th, did 21 you speak to him again while you were in Rochester? 22 A. No, that wouldn't have been possible. He was not 23 authorized to make calls to us any place but in the offices. 24 Q. And once you left on the 20th you didn't go back on the 25 21st or some other time before you left Rochester to visit? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8282 4B85SAT1 Stewart - cross 1 A. No. They're very strict about weekend visits. They only 2 would allow us to have Saturday. 3 Q. Now, I think you told us in your direct testimony that you 4 issued a press release on June 13th, 2000, is that correct? 5 A. That's right. 6 Q. And did you visit Abdel Rahman between May 20th and June 7 13th? 8 A. No. 9 Q. Did you speak to Abdel Rahman on the telephone between May 10 20th and the time you issued a press release on June 13th? 11 A. I don't believe so. I was on trial in state court. It 12 seems unlikely that I would have been available during those 13 early morning hours. I have no recollection of speaking to 14 him, so I think my answer would be no, I didn't speak to him. 15 Q. Now, you told us that before you issued the press release 16 you talked to other people, is that right? 17 A. Yes. 18 Q. You talked to Mr. Sattar, correct? 19 A. Yes. 20 Q. You talked to Mr. Yousry? 21 A. Yes. 22 Q. You talked to some lawyers? 23 A. Yes. 24 Q. Mr. Clark you think? 25 A. Pretty certain. And up in his office probably in Abdeen SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8283 4B85SAT1 Stewart - cross 1 Jabara's actual office I spoke to them about that. 2 Q. But you have no recollection of speaking to your client 3 from the time that you left him during the visit to the time 4 that you issued the press release? 5 A. That's correct. I have no recollection of that. 6 Q. Now, did you have any conversations between May 20th and 7 June 13th when you issued the press release with Pat 8 Fitzgerald? 9 A. Unless I called him about Dr. Aziza I don't think I would 10 have had any calls with Pat Fitzgerald during that period. 11 Q. Well, during that period did you have any conversations 12 with him in person or by telephone about the SAMs themselves? 13 A. No. 14 Q. Did you have any conversation with him about the press 15 release? 16 A. No. 17 Q. Did you at any point ask him or talk to him -- withdrawn. 18 At any point did you ask him whether he thought it was 19 appropriate under the SAMs to issue a press release? 20 A. No. I thought we had a certain amount of precedence that 21 for Mr. Clark, having issued a number of press releases before 22 this. And so, I thought I explained I thought it was part of 23 what was permissible to carry out the attorney-client 24 relationship and the work, actually, of representing Sheikh 25 Omar. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8284 4B85SAT1 Stewart - cross 1 Q. Ms. Stewart, did you talk to anybody at the United States 2 Attorney's office on the phone or in person between May 20th 3 and June 13th about the press release? 4 A. No, I didn't. 5 Q. Did you talk to anybody at the Department of Justice about, 6 between May 20th and June 13th, about the press release? 7 A. No, I did not. 8 Q. Did you talk to anybody at the Bureau of Prisons between 9 May 20th and June 13th about this press release? 10 A. No, I did not. 11 Q. Did you have any conversations with any of those agencies, 12 anybody from any of those agencies, about the Special 13 Administrative Measures between May 20th and June 13th? 14 A. No. 15 The way we work we don't usually call the adversary, I 16 guess you would call them, to let them know this is what we are 17 going to do next. 18 Q. When you say adversary, Ms. Stewart, were you engaged in 19 some kind of legal adversarial proceedings with the government 20 at that time with respect to your client Abdel Rahman? 21 A. Well, I think the imposition of the SAMs was adversarial in 22 the sense that the government had what we perceived as an 23 intent, and so I still consider the government and the Bureau 24 of Prisons to be adversarial vis-a-vis my loyalty to the 25 client. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8285 4B85SAT1 Stewart - cross 1 Q. Well, my question was, though, did you have an 2 adversarial -- withdrawn. I am going to ask the question again 3 or differently. 4 Were you engaged in any legal proceedings in court 5 with the government with respect to the SAMs or press release 6 or attorney affirmations at that time? 7 A. No. 8 Q. Now, you said you viewed your relationship with the 9 government or Bureau of Prisons, somebody, Fitzgerald I guess 10 as adversarial I guess at that time? 11 A. It maybe used too strong a term but certainly I believe 12 that it was Mr. Fitzgerald who made the decisions with regard 13 to the conditions of my client's confinement and was 14 responsible, in large part, for the issuance and the continued 15 issuance of those Special Administrative Measures. 16 Q. Well, we talked about this last week. You understood, did 17 you not, that there were people in higher positions within the 18 U.S. Attorney's office where he worked that Mr. Fitzgerald had 19 to answer to, correct? 20 A. Oh yes. 21 Q. And I think you told us last week you never called or wrote 22 any of those people seeking a review of Mr. Fitzgerald, which 23 you viewed as Mr. Fitzgerald's positions or his work with 24 respect to the Special Administrative Measures, is that right? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8286 4B85SAT1 Stewart - cross 1 Q. And you never -- you knew and understood that Janet Reno 2 had to officially issue those Special Administrative Measures, 3 would you not? 4 A. Yes. They were under her signature, or on her signature. 5 Q. And I think you told us last week you didn't write to or 6 call, or try to in any way communicate with anybody at the 7 Department of Justice in Washington about those Special 8 Administrative Measures, is that right? 9 A. That's correct. 10 Q. You told us last week, though, that you actually were in 11 agreement when you signed the attorney affirmation saying that 12 you would abide by the Special Administrative Measures that you 13 had entered into an agreement, correct? 14 A. I think I lost the thread of the question, Mr. Dember. I'm 15 sorry. 16 Q. I will ask it again. 17 I think last week you had discussion on, I believe it 18 was Thursday, where we talked about SAMs and the attorney 19 affirmation that you signed, correct? And you told us that 20 when you signed the attorney affirmation you had to sign an 21 agreement, correct? 22 A. Yes. 23 Q. And the agreement that you had signed was with the 24 government, correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8287 4B85SAT1 Stewart - cross 1 Q. And the face of the government, at least the person who you 2 saw as the government when it came to these SAMs was Pat 3 Fitzgerald, correct? 4 A. Yes. 5 But as I said, we also did discuss that I think that I 6 thought they were delimited, as I described, by the need to do 7 the work for the client. 8 Q. My question though is, you had entered an agreement with 9 the government, correct? 10 A. Yes. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8288 4B85SAT1 Stewart - cross 1 BY MR. TIGAR: 2 Q. And essentially Pat Fitzgerald was the point person you 3 dealt with for the government in that agreement? 4 A. Yes, but it was my understanding that unsigned, we would be 5 cut off from the client, or I would be cut off from the client. 6 In other words, if they weren't signed, then there was no 7 recourse except to go through maybe years of litigation to 8 enable to do the work and see the client. 9 And so as I talked about last week, I don't want to 10 repeat it necessarily, but -- about contracts of adhesion, 11 contracts you sign because there's no other way to accomplish 12 what you need to accomplish. So it's an agreement, but it's a 13 little bit -- 14 Q. Well, at any point in time from the time you first signed 15 an attorney affirmation and entered agreement with the 16 government until June 13, 2000, when you issued the press 17 release, did you ever write or call to Pat Fitzgerald or 18 anybody else from the government and try to negotiate different 19 terms of that agreement? 20 A. No. 21 Q. You never even tried? 22 A. No, because we were doing the work and we were doing it 23 what we thought was satisfactorily. And although we felt it 24 was an imposition on the client, it didn't interfere with our 25 ability to fully represent him under the circumstances. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8289 4B8ESAT2 Stewart - cross 1 Q. Well, Ms. Stewart, you testified, did you not, that you 2 thought that Mr. Fitzgerald might disagree with your right to 3 issue a press -- the press release that you actually issued in 4 this case, did you not? 5 A. Yes. 6 Q. OK. And my question, though, is: Did you call him up and 7 ask him about it? 8 A. Did I -- did I actually write -- did I write disagree, is 9 that my words? At any rate, I did not call him up, Mr. Dember, 10 no. 11 Q. Did you at any point call him up and hypothetically -- 12 excuse me, ask him in a hypothetical question, would it be 13 appropriate in your view, Mr. Fitzgerald, if, after conversing 14 with Abdel Rahman, somebody would have issued a statement to 15 the press saying something; did you do that at all? 16 A. No. 17 Q. By the way, the other people that you discussed the press 18 release with before you issued it, they were not the other 19 party to your agreement, is that right? In other words, 20 Mr. Sattar, Mr. Yousry weren't the other party that you had 21 an agreement with, as indicated by this signing of the 22 affirmation? 23 A. Yes, it -- the discussions with them, I think, were mainly 24 practical as opposed to ethical, let us say. I think my 25 discussions with Mr. Jabara and Mr. Clark were more along the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8290 4B8ESAT2 Stewart - cross 1 ethical line. 2 Q. Now, did you believe -- did you understand, Ms. Stewart, 3 that if you had called Pat Fitzgerald up and either in a 4 hypothetical question or a more direct question asked him the 5 propriety of issuing a press release, he would have told you it 6 was not allowed by the SAMs? 7 A. I don't know what he would have said. I would tend to 8 believe that would have been his response. 9 Q. Now, I think you told us that about three weeks after 10 his -- on June 13th, 2000, you issued a press release, is that 11 right? 12 A. That's right. 13 Q. And you told us about Mr. Sattar helping you to get 14 connected with or connect you with the Egyptian reporter, Esmat 15 Salaheddin? 16 A. That's right. 17 Q. And did you know Mr. Salaheddin before Mr. Sattar connected 18 you to him? 19 A. No. I knew he was the Reuters reporter from Reuters news 20 service. I knew of him, I think, but I did not know him, no. 21 Q. Had you ever spoken to him before? 22 A. Not that I recall. 23 Q. And was he the only reporter that you spoke to and issued 24 this press release through or to? 25 A. Yes. It was my understanding it would go through Reuters SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8291 4B8ESAT2 Stewart - cross 1 on their wire, and others would be able to pick it up from 2 that. 3 Q. Well, you didn't call the New York Times, did you, to 4 report to them or issue a press release to them? 5 A. No. 6 Q. Did you know reporters from the New York Times back then? 7 A. I knew reporters certainly. 8 Q. For example, a reporter covered the federal courts named 9 Ben Wiser, do you know Mr. Wiser? 10 A. Yes. Was he covering them then? I'm not sure of that, but 11 he certainly does cover the courts, did cover the courts. 12 Q. Did you call up the -- any of the other New York 13 newspapers, The Daily News, for example, to issue a press 14 release to them? 15 A. No. 16 Q. How about Newsday, did you call anybody from Newsday to 17 issue a press release? 18 A. No. 19 Q. And any other -- did you call any other New York papers to 20 issue the press release? 21 A. Didn't call any New York papers. I thought they would pick 22 it up from Reuters, if it was something they wanted to run 23 with. 24 Q. Well, by the way, did you call the Washington Post, by any 25 chance? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8292 4B8ESAT2 Stewart - cross 1 A. No. 2 Q. Well, you said you called Reuters, thinking the other 3 papers would pick it up from Reuters, is that right? 4 A. Yeah. 5 Q. And you were familiar with at least one other reporter from 6 Reuters, were you not, before you spoke with Esmat Salaheddin? 7 A. Do you mean Jean King? 8 Q. Do you know Jean King? 9 A. Yes, very well. 10 Q. OK. She's a Reuters reporter? 11 A. She is a Reuters reporter. 12 Q. She's a Reuters reporter based in New York? 13 A. She's based in New York. 14 Q. You had known her before you issued the press release, 15 correct? 16 A. Yes. 17 Q. You had conversations with her? 18 A. Yes. 19 Q. Did you ever have dinner with her actually? 20 A. I think I went to her home once, some party. I went to her 21 husband's funeral. He passed away during the trial, actually. 22 Q. Were you friendly with her? 23 A. Yes, I was friendly with Jean. 24 Q. Did you call up Jean King from Reuters and say, I've got a 25 press release, may I give it to you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8293 4B8ESAT2 Stewart - cross 1 A. No. It was mainly to be released through the Arabic press. 2 Q. Oh. Was the point of talking to Mr. Salaheddin to get the 3 release into the Arabic press; that was the point of it? 4 A. Well, it was the point of departure. We thought that -- or 5 at least I thought that this would be the appropriate place to 6 start. And actually, I don't think any of the New York papers 7 or US papers picked up the story at all. 8 Q. Now, how did it come to pass that you spoke to 9 Mr. Salaheddin? Did you say to Mr. Sattar, do you know this 10 reporter, get me in contact with him? Who made the decision to 11 speak to Mr. Salaheddin? 12 A. Mr. Sattar had basically said that he had this contact and 13 he would place the call for me; that Mr. Salaheddin was ready 14 to hear the release. 15 Q. Did he tell you why, or did you discuss with him why he 16 chose Mr. Salaheddin? 17 A. No, but I guess hearing that Mr. Salaheddin was based in 18 Cairo and was the Reuters reporter in Cairo was sort of 19 self-explanatory. 20 Q. And you knew when you spoke to Mr. Salaheddin that he was 21 based in Cairo? 22 A. Yes, I think so. 23 Q. Now, I think you told us during your direct testimony that 24 when you issued -- spoke to Mr. Salaheddin, you had some kind 25 of a synopsis or a document that you read to Mr. Salaheddin, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8294 4B8ESAT2 Stewart - cross 1 that right? 2 A. Yes. 3 Q. And I think you told us you don't have that document 4 anymore, is that right? 5 A. I don't. 6 Q. Who actually prepared that document that you read from? 7 A. I couldn't tell you, Mr. Dember. I know that it was on 8 a -- it was in handwriting. It was not a typed item. And to 9 the best of my recollection, it was on lined paper, white lined 10 paper, like a half sheet. It was not long. 11 Q. Now, I think you told us that when you spoke to 12 Mr. Salaheddin, you did so from your office here in Manhattan? 13 A. Yes. 14 Q. And Mr. Sattar was present with you at the time? 15 A. Yes. 16 Q. And was Mr. Yousry present? 17 A. No. 18 Q. Was there anybody else present -- was it done actually in 19 your office itself? 20 A. It was done in my office, yes. 21 Q. Was anybody else in the room with you or Mr. Sattar when 22 you issued the press release? 23 A. Not that I recall. My people that were working for us 24 would have been out in the office immediately outside, but 25 they're not close enough to participate or hear anything. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8295 4B8ESAT2 Stewart - cross 1 Q. By the way, was your office at that time at 351 Broadway? 2 A. Yes. 3 Q. And I think you told us that Mr. Sattar had set it up so 4 that the reporter knew beforehand that you would eventually 5 call him and issue this press release? 6 A. Yes. 7 Q. And what did Mr. Sattar tell you about that? 8 A. Just that he had arranged for the reporter or that the 9 reporter was available. Not even sure he said he had arranged; 10 it was that the reporter would be available and he would come 11 at such-and-such a time and place the call, and I would make 12 the press release. 13 Q. Did Mr. Sattar place the call? 14 A. As far as I recall. I don't know who did the actual 15 dialing but ... 16 Q. Do you remember actually paying for the -- on the phone 17 bill a call to Egypt? 18 A. I guess we must have, but I can't say that I remember doing 19 it. 20 Q. Now, you heard Mr. Salaheddin's testimony several weeks 21 ago, is that right? 22 A. Yes. 23 Q. Do you remember other -- saying to him anything other than 24 what he told us you said to him? 25 A. No. I -- what I remember is that I read it to him from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8296 4B8ESAT2 Stewart - cross 1 piece of paper and he started to ask me some questions. And I 2 said, I'm just making a release. I'm not making any comments. 3 I'm just giving you the words of the Sheikh. 4 And then I recalled that I did give the phone to 5 Mr. Sattar and he did speak with him for fairly -- as I recall 6 a brief time after that. 7 Q. OK. 8 A. In Arabic. 9 Q. My question is: You heard Mr. Salaheddin's testimony, 10 correct? 11 A. Yes. 12 Q. And you've in the past read the article that Mr. Salaheddin 13 wrote about the press release? 14 A. Well, the article, yes. 15 Q. The article itself? 16 A. Yeah. Yeah. 17 Q. My question for you, though, is: Does -- did what 18 Mr. Salaheddin testify about, meaning the substance of your 19 conversation, and what was reported in any article that you saw 20 about the press release written by him, contain essentially all 21 of the substance of what you told him over the phone? 22 A. Yes. When I read over the paper that I was holding when I 23 read it to him, it appeared that that was the substance of what 24 the Sheikh had said to us out in Rochester. And I read it 25 verbatim. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8297 4B8ESAT2 Stewart - cross 1 Q. I ask the question slightly differently. Do you remember 2 there being anything else that you told Mr. Salaheddin that 3 didn't appear in his article? 4 A. No. But what I'm having trouble remembering is what was in 5 the article that I might not have told him that he might have 6 added. I know all I told him was the exact release, that's 7 what I recall. 8 Q. Now -- 9 MR. TIGAR: Your Honor -- 10 THE COURT: Yes, we can -- why don't we take a brief 11 break. 12 Ladies and gentlemen, we'll break for ten minutes. 13 Please remember my continuing instructions. Please, please, 14 don't talk about the case at all. Always remember to keep an 15 open mind until you've heard all of the evidence, I've 16 instructed you on the law, you've gone to the jury room to 17 begin your deliberations. 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8298 4B8ESAT2 Stewart - cross 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, with respect to the pending 3 objection, that -- I'd like a do-over. I'd like to withdraw 4 the objection, upon sitting here thinking about it. 5 I apologize to Mr. Dember. I don't think the 6 objection is well taken, so I withdraw it. 7 THE COURT: OK. All right. See you shortly. 8 (Recess) 9 THE COURT: All right. If Ms. Stewart could take the 10 stand. 11 Anything else before Ms. Stewart takes the stand? No? 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8299 4B8ESAT2 Stewart - cross 1 (In open court; jury present) 2 THE COURT: All right. Ms. Stewart is on the stand. 3 Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 5 are still under oath. 6 THE WITNESS: Yes. 7 THE COURT: All right, Mr. Dember, you may proceed. 8 MR. DEMBER: Thank you, your Honor. 9 BY MR. DEMBER: 10 Q. Ms. Stewart, I think you told us when I asked you about who 11 actually wrote the synopsis you referred to that you read from 12 to Mr. Salaheddin, did you say that you -- it wasn't your 13 handwriting? 14 A. It was not in my handwriting, no. 15 Q. Do you recall whether it was in Mr. Sattar's handwriting? 16 A. I explained that I really -- I cannot remember whether it 17 was -- whose handwriting it was in. I know it wasn't my own. 18 Q. OK. Well, you had spoken to Mr. Yousry -- Mr. Yousry 19 actually had translated for you what Abdel Rahman had told him 20 in response to Mr. Sattar's letter, is that right? 21 A. That's right. 22 Q. And did you see -- during the visit, May 20, 2000, did you 23 see Mr. Yousry writing as Abdel Rahman was speaking to him? 24 A. Oh, yeah. He read it to me from his notebook -- he read it 25 to me from his notebook. I -- I don't have any trouble SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8300 4B8ESAT2 Stewart - cross 1 remembering that. I remember that, but I don't remember whose 2 handwriting that was on the piece of paper I actually read from 3 at the -- to Mr. Salaheddin. 4 Q. Well, when Mr. Yousry was writing in his notebook during 5 the visit, did he write in Arabic language? 6 A. He did, but sometimes he would make a note in English, as 7 we've seen on some of these. But basically it was all in 8 Arabic, yes. 9 Q. Well, when Abdel Rahman was responding to Mr. Sattar's 10 letter on May 20, 2000, during the visit, did you see 11 Mr. Yousry writing Abdel Rahman's response in Arabic or English 12 or both? 13 A. In Arabic. 14 Q. OK. And it was after the visit, I think you told us, that 15 Mr. Yousry for the first time read or translated for you what 16 Abdel Rahman had told him, correct? 17 A. Yes, I believe so. He may have mentioned something about a 18 press -- going to the press during the visit, but I don't think 19 it had any specifics or particulars in it. 20 Q. OK. And was it on your trip home from Rochester that 21 Mr. Yousry read from his notes the response that Abdel Rahman 22 gave him to Mr. Sattar's letter? 23 A. That's what I recall, yes, that he read from the notebook 24 on the way home. 25 Q. Now, before issuing the press release, did you ever meet SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8301 4B8ESAT2 Stewart - cross 1 with Mr. Sattar and Mr. Yousry at the same time to discuss the 2 press release? 3 A. No, not that I recall. 4 Q. OK. Did you ever -- did Mr. Yousry or Mr. Sattar ever tell 5 you that they were getting together to discuss Abdel Rahman's 6 response to Mr. Sattar's letter? 7 A. No. 8 Q. Did they ever tell you they had at some point in time 9 before the press release discussed what Abdel Rahman had said 10 in response to Mr. Sattar's letter? 11 A. At the time, of course, I wouldn't know about phone calls 12 back and forth to them, between them, although I think it was 13 my understanding probably in earlier June when it was -- making 14 of the press release was imminent, that they had spoken back 15 and forth. I think my memory is that Mr. Yousry had planned to 16 be at the office when I actually spoke on the phone but did not 17 show up for I don't -- I don't know what reasons, but he was 18 not there. 19 I -- as I said, I was on trial. I'd become -- 18-hour 20 days -- very directed, not looking right or left at the time. 21 I don't know that I knew that they got together. I probably 22 knew that they were speaking to each other about all of the 23 material that we had brought back from Rochester that needed to 24 have distribution. 25 Q. Was it -- did you tell us that the press release synopsis SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8302 4B8ESAT2 Stewart - cross 1 that you read from was -- is handwritten as opposed to being 2 typed? 3 A. That's what I recall, that it was handwritten on a half 4 sheet of lined paper. 5 Q. And is it your recollection or best recollection that that 6 handwriting was either Mr. Sattar's handwriting or Mr. Yousry's 7 handwriting? 8 A. I'm having trouble conjuring up an image of it. I can only 9 say that I probably would have known that it had to be 10 either/or, because that was the channel it came through. But I 11 cannot testify to you as to whose handwriting I recall being on 12 that note. 13 Q. At any time after you returned from your visit with Abdel 14 Rahman after May 20, 2000, did you -- before the issue -- and 15 before the issuance of the press release, did you have any 16 conversations with Mr. Sattar about what Abdel Rahman had said 17 in response to his letter? 18 A. Not that I recall, but it is possible. I don't recall 19 talking to him about the subject of -- you know, over the phone 20 or in person, either one. 21 Q. Well, did you ever speak to Mr. -- before you spoke to 22 Mr. Salaheddin, did you speak to Mr. Sattar about what you were 23 going to tell Mr. Salaheddin? 24 A. No. I think he had a copy of what the Sheikh had said. I 25 think he had retrieved that and he had a copy, or he had a copy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8303 4B8ESAT2 Stewart - cross 1 that he made of what was in the notebook. I'm not sure all 2 these mechanics. I'm really guessing here. 3 I know that when he showed up at my office on the 4 13th, he did have this piece of paper that I believe was the 5 verbatim translation of what the Sheikh had said in Rochester 6 to us on the subject. 7 Q. Well, before you spoke to Mr. Salaheddin, did you ask 8 Mr. Sattar, is this a verbatim translation of what Abdel Rahman 9 had told Mr. Yousry during your visit in May? 10 A. No, I don't think I asked him that. As I explained, we 11 operated on trust. We had worked together for so many years 12 and I trusted him and Mr. Yousry. 13 Q. Well, did you assume, since you didn't ask that, what was 14 in this press release was Abdel Rahman's words as he uttered 15 them in May 2000? 16 A. The essence of what I -- had been translated to me on the 17 trip back, yes, I did believe it was. 18 Q. And before you spoke to Mr. Salaheddin, did you actually 19 read through the synopsis? 20 A. Yes, undoubtedly. 21 Q. OK. And was it consistent with what Mr. Yousry had 22 translated for you on the way home from Rochester in May? 23 A. Substantially, yes, I think it was. To me it was what he 24 had said or what I understood, anyway. I don't know whether it 25 was what he said, but it was clearly what I understood. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8304 4B8ESAT2 Stewart - cross 1 Q. Now, I think you testified last week -- or actually not 2 last week but the previous week, in your direct testimony that 3 you told us that your understanding of what Abdel Rahman had 4 told Mr. Yousry in response to Mr. Sattar's letter was that 5 they shouldn't cancel the ceasefire; is that part of your 6 understanding? 7 A. Yes. 8 Q. OK. But that he did want to modify it in some fashion, 9 right? Do you remember saying that? 10 A. It was my understanding that he was not calling for the 11 cancellation but he definitely thought that a serious 12 reconsideration of cancellation, and that personally was his 13 personal belief that it was not working. 14 Q. And did you also tell us that your understanding was that 15 he wanted to release, or he wanted the members of the group, 16 the Islamic Group, to be able to now resume criticizing the 17 government? 18 A. Yes, that's what I understood in the escalating the media 19 thing, that he -- that was part of the release; that that part 20 of that statement dealt with not remaining silent around what 21 was happening in Egypt. I think there were trials of teenagers 22 and various other things that had been reported to him. 23 Q. And is it your recollection that you told Mr. Salaheddin 24 that Abdel Rahman advocated accelerating the media or -- 25 A. Escalating I think was his word. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8305 4B8ESAT2 Stewart - cross 1 Q. Escalating the media? 2 A. Yeah. 3 Q. And did you tell us that your understanding was that Abdel 4 Rahman, essentially what he was saying in his press release was 5 that the group should reopen its dialogue amongst them, the 6 members themselves, to discuss whether or not the initiative 7 was working or not? 8 A. I'm not sure I understood it to be only among themselves, 9 but certainly people who were, as we would say here, on the 10 ground in Egypt, that he was too isolated and too removed to 11 give anything but an opinion. But the fact of the matter is 12 that they were there and were daily suffering, should reopen a 13 discussion on this and hear all sides. I do remember he also 14 said that. 15 MR. DEMBER: Your Honor, may I approach the witness. 16 THE COURT: Yes. 17 Q. Ms. Stewart, I'm going to hand up to you what is in 18 evidence as Government Exhibit 2657. 19 MR. DEMBER: May I display the exhibit for the jury, 20 your Honor. 21 THE COURT: Yes. 22 Q. Ms. Stewart, just so that we can orient the jury about this 23 exhibit, we're a little -- we're jumping ahead chronologically 24 a bit here, but this is a -- the first page of the exhibit is a 25 fax cover sheet from your office to Mr. Sattar dated August 28, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8306 4B8ESAT2 Stewart - cross 1 2000? 2 A. That's correct. 3 Q. And why don't you just take a look through the exhibit for 4 a moment. 5 A. Yes. 6 Q. You've oriented yourself to the exhibit? 7 A. Yes. 8 Q. This is a fax and it contains Mr. Fitzgerald's August 3rd, 9 2000, letter to you? 10 A. It does. 11 Q. And a version of the amended or modified attorney 12 affirmation as it is now proposed that you signed back then? 13 A. That's correct. 14 Q. It also includes some articles attached as well? 15 A. It does. 16 Q. Let me just direct your attention to the article -- the 17 first article that's -- appears in the exhibit, which is dated 18 June 14, 2000? 19 A. Yes. 20 Q. Have you got that in front of you? 21 MR. DEMBER: Your Honor, apparently our technology 22 isn't working at the moment. I'm trying to display this and 23 the Elmo is not working. 24 A. I have it. 25 Q. On yours? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8307 4B8ESAT2 Stewart - cross 1 A. Yes. 2 MR. RUHNKE: On the screens, just not the big screen. 3 MR. DEMBER: I don't think the jury does, your Honor. 4 Just from my glimpse I see counsel does. 5 THE COURT: Would you -- 6 MR. DEMBER: There it goes. 7 THE COURT: OK. 8 MR. DEMBER: Your Honor, could you inquire whether the 9 jury is getting the exhibit on the screen? 10 THE COURT: Ladies and gentlemen, do you have it on 11 your screens? 12 The jury nods yes. 13 MR. DEMBER: Thank you, your Honor. 14 BY MR. DEMBER: 15 Q. Ms. Stewart, this is the first article that appears in the 16 exhibit, is that correct? 17 A. I didn't catch you, Mr. Dember. I'm sorry. 18 Q. This is the -- of the exhibits -- of the articles attached 19 to this exhibit, is this the first one that appears? 20 A. Yes. 21 Q. And this is -- are you familiar with this article? 22 A. Yes. 23 Q. OK. This is Mr. Salaheddin's article reporting on your 24 press release, is it not? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8308 4B8ESAT2 Stewart - cross 1 Q. And the article is dated the 14th of June, 2000, is that 2 correct? 3 A. Yes. 4 Q. And that's the day after you had spoken to Mr. Salaheddin? 5 A. Yes. 6 Q. And obviously Mr. Salaheddin's name appears on the article? 7 A. Yes. 8 Q. And let me just point you to the second paragraph. It 9 reads, "He is withdrawing his support for the ceasefire that 10 currently exists," Lynne Stewart, the main lawyer for Sheikh 11 Omar Abdel Rahman, told Reuters by telephone from New York. 12 And I think you told us during your direct testimony 13 that, in fact, those are -- that's what you told 14 Mr. Salaheddin? 15 A. Yes. 16 Q. So he accurately quoted you as you spoke to him, is that 17 correct? 18 A. That's what I read to him, yes. 19 Q. And do you remember, was that sort of the first thing you 20 told Mr. Salaheddin when you read from this synopsis? 21 A. Yes. I don't think it was a synopsis, it was a -- I 22 thought it was the exact words, a statement. But that was, I 23 believe, the first thing that was said. 24 Q. And then you skip a paragraph, and it states, she read a 25 statement which she said he had issued two weeks ago from his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8309 4B8ESAT2 Stewart - cross 1 jail cell in Rochester, Minnesota, which his defense team had 2 held while considering how best to release it. 3 And is that essentially what you told Mr. Salaheddin? 4 A. I don't remember saying those words. He may have asked why 5 we hadn't released it sooner, because it was at that point 6 almost a month since we had made this visit. I probably may 7 have said, well, we were considering best how to do this. 8 Q. Well, do you remember -- those words that I just read are 9 not in quotes, is that right? 10 A. Right. 11 Q. Do you remember telling him in substance -- making that 12 statement in substance? 13 A. I really don't remember anything but reading the statement. 14 That's what I remember doing. And I remember cutting him off 15 when he started asking questions and saying, I'm not -- this is 16 the Sheikh's statement, this is not my statement. I'm merely 17 relaying this to you. 18 Q. OK. Let's skip down to the next paragraph. It states, 19 Stewart said Sheikh Omar had concluded that the unilateral 20 truce observed by al-Gama'a al-Islamiyya (Islamic Group) since 21 the Luxor slaughter of 58 foreign tourists and 4 Egyptians had 22 brought no advantage to Egypt's biggest militant group. 23 Did you say words to that -- again, that paragraph 24 doesn't have any quotes in it. Do you remember saying words to 25 that effect to Mr. Salaheddin? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8310 4B8ESAT2 Stewart - cross 1 A. I don't remember mentioning Luxor or anything about that, 2 and I think actually that's probably not accurate anyway. But 3 I don't remember that at all, no. I don't think I said that. 4 Q. Well, let's go down to the next paragraph where it says, in 5 quotes, there is absolutely nothing moving forward, she 6 quoted -- end quote, she quoted in his statement as saying in 7 Arabic, quote, the thousands of people who are in prison (in 8 Egypt) are still in prison, the military trials continue. 9 Executions are taking place, end quote. 10 Do you recall saying those words to Mr. Salaheddin? 11 A. Yes. 12 Q. And do you recall -- let's skip down a paragraph to where 13 it says, starts, "the people who launched the ceasefire have 14 good faith but the, parens, Egyptian government has shown no 15 good faith, end quote, Sheikh Omar said in his statement. 16 Does that sound familiar? 17 A. Yes. 18 Q. And let's go down to the next paragraph where it says, 19 quote, he wants people not to -- 20 MR. TIGAR: Your Honor, may I confer with Mr. Dember. 21 THE COURT: Yes, hold on. 22 Q. The next paragraph starts, "he wants people not to place 23 hope in this process because nothing is moving forward," 24 Stewart said. 25 And do you remember saying that to Mr. Salaheddin? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8311 4B8ESAT2 Stewart - cross 1 A. I guess so, but the construction is a little confusing to 2 me because now I'm referring to him as "he." But if it -- 3 Mr. Salaheddin said he had a tape-recorder, so I assume he got 4 it right. But the press has sometimes been known not to quite 5 get it right. I know he said not moving forward, that they 6 were not moving forward. 7 Q. I'm going to turn the page. If you like, you can turn the 8 page in front of you. And the second paragraph on that page 9 reads, Stewart said the Sheikh was completely isolated in jail 10 and was not well treated. 11 Again, that's not in quotes, but do you remember 12 saying something in substance like that? 13 A. Yeah, I did comment on his conditions. 14 Q. And let's go down to the next paragraph. Where it says "he 15 is held in solitary confinement. But his faith is very, very 16 strong," she added. "They (US prison authorities) may bar me 17 from visiting him because of this announcement." 18 Do you recall saying those words to Mr. Salaheddin? 19 A. Yes. That was what was implied in the SAMs. 20 Q. And I think there is one more paragraph I'll ask you to 21 read with me. Skip a line, there's the paragraph I'm pointing 22 to. It says, Stewart said Sheikh Omar's legal defense team 23 visits him every few months and calls him once a week. He is 24 permitted one call a month to his wife in Cairo. 25 Did you essentially say that to Mr. Salaheddin as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8312 4B8ESAT2 Stewart - cross 1 well? 2 A. Well, I wouldn't have said we call him, because we of 3 course don't call him, he calls us. But I'm quibbling here. 4 It's in essence what was the arrangement. 5 Q. I mean, the procedure is the prison officials put the call 6 through to your office or Mr. Clark's office and it's usually 7 two per week, isn't it? 8 A. Yes, at that time it was, yes. 9 Q. Now, Ms. Stewart, in -- before you obviously read what you 10 read to Mr. Salaheddin, you knew essentially the substance of 11 what Abdel Rahman was saying, correct? 12 A. Yes. 13 Q. And one of the things he was saying was he was withdrawing 14 his support for the ceasefire, correct? 15 A. Yes. 16 Q. And did that surprise you when you read that or when 17 Mr. Yousry translated that for you on your trip back from 18 Rochester to -- back to New York? 19 A. Did it surprise me that he was taking that position? 20 Q. That he was withdrawing his support at that time. 21 A. No. I think he had indicated on earlier visits or in 22 telephone calls that he had some questions about it. 23 Q. Did you say you had telephone conversations with him? 24 A. I'm not sure if it was me or if it was reported to me, but 25 I think it was one of the issues or questions that he had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8313 4B8ESAT2 Stewart - cross 1 expressed an opinion on a number of times. I'm not sure if it 2 was to me or to one of the other lawyers. 3 Q. Now, Ms. Stewart, was it your understanding that Abdel 4 Rahman was taking his positions with respect to the ceasefire 5 based on newspaper reports being read to him, either during 6 prison visits or during the calls with his attorneys? 7 A. Yeah. He, of course, had a really tremendous understanding 8 of the politics of Egypt and indeed the Middle East. And 9 that -- which sort of stopped at the point that he was 10 restricted from listening to Arabic broadcasts and having 11 visits. But he still remained a resource in that way. And he 12 did hear the newspapers and the telephone calls and on the 13 visits and received, to my knowledge, reports from people who 14 were there or who told him what was happening. When I say 15 that, I mean the observations we sometimes brought in to the 16 jail or reported to him on the phone. 17 Q. Well, when you say observations reported to him, you're 18 talking about something other than from newspaper accounts? 19 A. I think that there were observations, such as, I think, if 20 you -- we look back at the letters from -- that were sent in 21 from Nasser or from Sattar, even they had certain observations 22 that they asked him to comment on. So he got information from 23 sources other than just the newspaper, but -- and I think 24 that's what -- I think that's how he formed his opinion. 25 Q. Well, were you aware whether or not some of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8314 4B8ESAT2 Stewart - cross 1 observations made by Mr. Sattar, for example, in any letters or 2 correspondence he sent in to Abdel Rahman contained the 3 observations or opinions or views of others who were actually 4 in the Middle East? 5 A. I think I understood that he conveyed material from 6 Muntasir Al-Zayat on occasion or others whose names I can't 7 come up with, but I know he was our link to Muntasir and also 8 the family of the Sheikh. 9 Q. Well, do you know whether or not Mr. Sattar in any of his 10 correspondence that was read to Abdel Rahman pointed out or 11 informed Abdel Rahman of the views of a person named Rifa'i 12 Taha? 13 A. I believe in this very letter on the visit it was -- it was 14 referred to Abu Yasir, I think, was the reference in that. But 15 I'm not sure it had an observation or whether it merely asked 16 the question. 17 Q. Well, was it your understanding at the time that Abu Yasir 18 was this fellow, Rifa'i Taha? 19 A. No, I -- as I said earlier, I had no idea where he was, 20 what he was, what role he played. 21 Q. Or who he was? 22 A. Or who he was at all. 23 Q. And I think we asked you some questions last week about 24 whether you had inquired of anyone who this person was, and you 25 indicated you had not, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8315 4B8ESAT2 Stewart - cross 1 A. No. I just understood he was one of the support network. 2 Q. Now, Ms. Stewart, I want to just go back briefly to this 3 article that we just reviewed by Mr. Salaheddin, which is -- 4 I'll put it back on the Elmo, your Honor. 5 And do you have that in front of you? 6 A. Yes, I do. 7 Q. Now, in the first statement from you that's reported, it 8 says "he," referring -- and I'm now referring to the second 9 paragraph -- he, which I believe that's Abdel Rahman, is that 10 correct? 11 A. Yes. 12 Q. OK. Is withdrawing his support for the ceasefire. 13 That's what it says, correct? 14 A. Right. 15 Q. And you also, I believe -- if you give me a moment, also on 16 that same page, towards the bottom, the third paragraph from 17 the bottom, it reads "the people who launched the ceasefire 18 have good faith but the Egyptian government has shown no good 19 faith." OK? 20 A. Yes. 21 Q. Now, in both of those statements -- parts of the statement 22 that you issued you use the word ceasefire, is that right? 23 A. Yes. 24 Q. You didn't use the word initiative, did you? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8316 4B8ESAT2 Stewart - cross 1 Q. You didn't use -- 2 A. Peace initiative. 3 Q. You didn't use the word peace initiative, did you not? 4 A. I'm sorry? 5 Q. Did you? 6 A. No. 7 Q. You used the word ceasefire. And the word ceasefire, would 8 you agree, is somewhat of a military term, is it not? 9 A. Yes. I think that I should have had in there his personal 10 support. 11 Q. Well, a ceasefire is essentially a military order to stop 12 firing, isn't it? That's what the word means? 13 A. That's the understanding, yes. 14 Q. It's sort of a suspension of hostilities? 15 A. Yes. 16 Q. Another way of defining it, it's essentially a stopping of 17 violence, a truce, correct? 18 A. Yes. 19 Q. Those are all ways of looking at what a ceasefire is. You 20 didn't say in this press release that Abdel Rahman wants his 21 group to or the people within his group to start talking about 22 whether the initiative is good or bad, did you? 23 A. I thought that was included in there. 24 Q. Well, did you ask, or did you issue as part of this 25 statement any statement indicating that Abdel Rahman wanted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8317 4B8ESAT2 Stewart - cross 1 members of the group to resume criticizing the government? 2 A. I believe that was part of the statement but it was not 3 used by Mr. Salaheddin, probably for good reason. 4 Q. Now, when you -- you told us, I think, when you issued this 5 press release you had not discussed it with Abdel Rahman, is 6 that correct? 7 A. That's correct. 8 Q. You had no discussions with him about what should be said 9 to the media, is that right? 10 A. No. This was his -- to my understanding, this was his 11 response to the question that was put to him. 12 Q. And -- but my question is: You didn't have a discussion 13 with him as to what should be said in the press release? 14 A. No, I had no discussion with him. 15 Q. In fact, you had no discussion with him as to whether or 16 not a press release should be issued, did you? 17 A. Yes. I think there was some slight discussion, maybe, but 18 no more than a couple of lines about there's been something set 19 up for a press release when you get back. 20 Q. Well, wasn't that -- those comments made before Abdel 21 Rahman ever responded to Mr. Sattar's letter? 22 A. You could be right, Mr. Dember, but I thought it was after. 23 But it's there, whatever -- 24 Q. Just your recollection. 25 A. Yeah. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8318 4B8ESAT2 Stewart - cross 1 Q. Was that comment about some kind of a conversation you were 2 to have with somebody named Mohammed Salah? Do you recall 3 that? 4 A. No. 5 Q. Did you at any point before the issuance of the press 6 release speak with Abdel Rahman about the substance of what 7 should be said? 8 A. No. 9 Q. So -- nor did you have a conversation with Abdel Rahman 10 about the choice of words that should be used in issuing the 11 press release? 12 A. No. I relied upon the exchange that was had in the prison. 13 Q. Now, you understood that it was the leadership or leaders 14 of the Islamic Group that had called for the ceasefire, was 15 that right? 16 A. I believe initially, yes. 17 Q. And I think you told us you knew that Muntasir Al-Zayat was 18 a lawyer in Cairo is that right? 19 A. That's right. 20 Q. And he had some kind of association with members of the 21 Islamic Group? 22 A. I believe he was their attorney. 23 Q. And you knew who he was, you had the name, is that right? 24 A. Yes. 25 Q. In fact, I think you told us in your testimony that he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8319 4B8ESAT2 Stewart - cross 1 remained for you and Mr. Clark sort of the point person in 2 terms of maintaining contact with supporters in Egypt with 3 people who could, we thought, give us a correct perception of 4 what was happening in Egypt with the government, with the 5 authorities and with the supporters. 6 I'm reading from page 7651 of the transcript. Does 7 that sound familiar? 8 A. Yes. 9 Q. Well, before you decided to issue this press release, did 10 you call Muntasir Al-Zayat to get a sense of the conditions in 11 Egypt at the time? 12 A. No, I don't think I ever spoke to Mr. Al-Zayat on the 13 phone. 14 Q. Well, did you ask or direct Mr. Sattar or Mr. Yousry to 15 call Muntasir Al-Zayyat to get a sense of what was happening in 16 Egypt before you issued this press release? 17 A. No, but it would only have been Mr. Sattar that would have 18 made a call to Egypt for us. 19 Q. Was Mr. Sattar the one -- a member of the defense team who 20 would do that sort of thing? 21 A. Yes. 22 Q. But you didn't ask him to do that, did you? 23 A. No. 24 Q. Did you have any conversations with Mr. Sattar about doing 25 such a thing? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8320 4B8ESAT2 Stewart - cross 1 A. No, not that I recall. 2 Q. Now, let me just ask you, I asked you some questions last 3 week about -- let me ask you just a few more. 4 We talked about the ceasefire, and you just told us 5 that a member -- number of leaders or some of the leaders of 6 the Islamic Group are the ones who called for the ceasefire, 7 correct? 8 A. That's my understanding, from what I read in the papers. 9 Q. I'm asking about your understanding. 10 A. Yeah. 11 Q. OK. And was it also your understanding that before the 12 ceasefire existed, that members of the Islamic Group had 13 committed acts of violence against various people inside Egypt? 14 A. Yes, that was my understanding. 15 Q. In which people were murdered and killed, correct? 16 A. Yes. 17 Q. And amongst those people were tourists, for example, is 18 that right? 19 A. I believe I knew about that, yes. 20 Q. And that was the kind of -- some of the conduct that 21 members of the Islamic Group engaged in before the ceasefire, 22 correct? 23 A. Yes, and before the huge government roundup of anyone that 24 was even remotely connected to them. 25 Q. Now, the ceasefire was called to stop, or the Islamic Group SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8321 4B8ESAT2 Stewart - cross 1 leaders called for the ceasefire, was it your understanding, 2 with the intent of stopping that violence, is that right? 3 A. Yes. I believe they always referred to it as a peace 4 initiative. And it was -- it was to obtain, they thought, 5 certain concessions in terms of people who were imprisoned and 6 held and ordered executed, etc. 7 Q. And I believe you told us last week that at the -- at least 8 initially when the ceasefire was called, it was essentially 9 actions taken unilaterally by leaders of the group who called 10 for that ceasefire, is that right? 11 A. Yes. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8322 4B8ESAT2 Stewart - cross 1 BY MR. DEMBER:: 2 Q. That wasn't the result of negotiations between 3 representatives of the Islamic Group and representatives of the 4 government getting together and essentially agreeing on a 5 cease-fire. It was the Islamic Group itself that called for 6 the cease-fire? 7 A. Yes. 8 Q. Or peace initiative, right? 9 A. It was my understanding they announced a peace initiative 10 on their behalf and that negotiations or talks or whatever you 11 may call them then proceeded after that. 12 There was an opening of discussion at any rate at that 13 time, between the government and the leadership. 14 Q. And these were things you were aware of, were you not, when 15 you issued the press release? 16 A. Yes. 17 Q. And you were also aware, were you not, that Abdel Rahman 18 was viewed as a very influential person amongst members of the 19 Islamic Group? 20 A. He was influential but, as I said, having been so removed 21 from the scene his influence had waned, at least in the sense 22 of daily decision making, I think. And I think that he was 23 important but I wouldn't say was directing anybody to do 24 anything. 25 Q. And that's essentially because he certainly couldn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8323 4B8ESAT2 Stewart - cross 1 communicate directly with anybody from prison, is that right? 2 With, I should say, directly with members of the Islamic Group 3 from prison? 4 A. I don't know if that was the reason. I think it would have 5 happened no matter what. The time and distance, remoteness, 6 all of that would have contributed to it. 7 Q. Meaning he was in America in a prison and obviously members 8 of Islamic Group were elsewhere in the Middle East? 9 A. Right. 10 Q. At some point in time before Abdel Rahman was charged with 11 the crimes that eventually he was convicted of, was it your 12 understanding he was a leader among the members of the Islamic 13 Group? Or considered a leader? 14 A. Yes. 15 Q. Obviously you were aware of that, were you not, at the time 16 you issued a press release? 17 A. Yes; that he had originally been part of their leadership, 18 yes. 19 Q. Obviously -- without going through it, obviously you told 20 us earlier in your testimony that at the point in time when you 21 first came to represent him, it was your understanding that he 22 had advocated violence, is that right? 23 A. Yes. 24 You mean in terms of his sermons and what we reviewed 25 for trial? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8324 4B8ESAT2 Stewart - cross 1 Q. I'm asking about you testified, did you not, that you had 2 knew that when you first came to represent him that he had 3 advocated violence? 4 A. Yes, but within a certain context, of course. 5 Q. And you were certainly aware of his speeches and sermons 6 that certainly were played or read during his trial? 7 A. Yes. 8 Q. And you knew he took certain views of the Egyptian 9 government, is that right? 10 A. Yes. 11 Q. He was not in favor of the secular government of Egypt, 12 you understood that? 13 A. Yes. Mubarak's regime. 14 Q. And did you also understand that his view of Egypt was that 15 it should be, should be run as an Islamic state under Islamic 16 law? 17 A. I think his wider view was that the Middle East should 18 return to where it had been in the days when it had all been 19 governed under the sharia from sultanate in Turkey which ended 20 sometime around the end of World War I. 21 That was his view, that artificial boundaries should 22 be eliminated and that that body of law that governed the 23 people of that region for thousands of years, at least, should 24 be reinstated. 25 Q. And you understood these things at the time you issued a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8325 4B8ESAT2 Stewart - cross 1 press release? 2 A. Yes. 3 Q. And you also knew from his speeches and sermons that he 4 was, in some ways, in certain circumstances, opposed to what 5 the United States government was doing in certain parts of the 6 world? 7 A. Yes. 8 Q. And he was, you understood from his speeches and sermons, 9 for example, that he was also opposed to the state of Israel 10 even its existence? 11 A. Yes. 12 Q. And were you also aware of the fact, were you not, that he 13 believed that if it couldn't be done by peaceful means, that 14 the State of Israel, essentially, should be destroyed? 15 A. Would you repeat that? I didn't catch all the words in the 16 middle there. 17 Q. I'm sorry. 18 Was it your understanding that, in his view, if it 19 couldn't be done by some other means, that, essentially, the 20 State of Israel should be destroyed? 21 A. That was his perception, yes. 22 Q. And you understood that at the time you issued the press 23 release? 24 A. That that was his perception, yes. 25 Q. Now, you certainly understood and knew about the Islamic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8326 4B8ESAT2 Stewart - cross 1 Group at the time they issued the press release, is that right? 2 A. Knew? Exactly what do you mean know? 3 Q. You knew something about it, did you not? 4 A. I knew that they were, at that point, I believe, in a 5 weak -- very weakened position, that they had basically, within 6 Egypt, all been rounded up, put in jail, held under terrible 7 conditions. 8 Q. My question -- I'm sorry, my question should have been 9 clearer. 10 You knew the existence of the Islamic Group, you knew 11 such a group existed? 12 A. Historically and that it was still in existence but, as I 13 said, very weakened. 14 Q. You knew it was not a political party, or had not formed a 15 political party in Egypt, did you understand that? 16 A. Yes, I understood that. 17 Q. And in fact it wasn't a political party itself, and you 18 knew that at the time you issued the press release, did you 19 not? 20 A. Yes. 21 Q. And you also knew, did you not, that at the time you issued 22 the press release, that the Islamic Group had been designated a 23 foreign terrorist organization by the United States State 24 Department? 25 A. I did know that, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8327 4B8ESAT2 Stewart - cross 1 Q. And as we discussed before, you knew that they had engaged 2 in armed violence in the past, is that correct? 3 A. Yes. 4 Q. Now, Ms. Stewart, at the time you issued the press release, 5 did you know that back in January of 1996 representatives of 6 the Islamic Group had issued a statement essentially stating 7 that all American interests will be legitimate targets for our 8 struggle until Abdel Rahman is released? 9 Did you ever hear about that? 10 A. I believe I did hear about that and I believe I categorized 11 it as, once again, people saying things that were really out of 12 our control using his name, once again. 13 Q. And did you hear, at the time that your client, Abdel 14 Rahman was housed at the Federal Medical Center facility in 15 Springfield, Missouri, that others claiming to be 16 representatives of the Islamic Group had essentially threatened 17 American officials, including the president and the warden of 18 that facility, should anything happen to Abdel Rahman; that bad 19 things would happen to those people and others? 20 Did you hear that? 21 A. I think I was made aware of that and thought it was 22 unfortunate and sort of absurd, under the circumstances. 23 Q. Now, Ms. Stewart, I think you have told us that you have 24 heard a lot about newspaper articles. You have read newspaper 25 articles. You have told us your view of the content of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8328 4B8ESAT2 Stewart - cross 1 newspaper articles. You indicated that sometimes they're not 2 accurate, is that fair to say? 3 A. That's fair to say. 4 Q. And sometimes they are accurate, is that right? 5 A. That's also fair to say. 6 Q. And certainly probably all of us, when we read articles or 7 take the news from other forms of the media, frequently we 8 accept it as being true and in fact what's reported is in fact 9 true, is that right? 10 A. Yes. I may be more skeptical than some. I usually try to 11 read between the lines and understand the perspective they're 12 reporting from but it is something we rely on for information, 13 yes. 14 MR. DEMBER: Your Honor, may I display Government 15 Exhibit 2624? 16 THE COURT: Yes. In evidence? 17 MR. DEMBER: In evidence. I'm sorry. 18 Q. Now, Ms. Stewart, when you issued the press release, had 19 you known that, sometime in the past, Islamic Group members had 20 claimed responsibility for the attempted assassination of 21 President Mubarak? 22 A. I'm trying to recall the time line. Do you have a -- can 23 you refresh my recollection at all? 24 Q. Why don't we take a look at what is first of all, talk 25 about Exhibit 2624. Do you see it there? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8329 4B8ESAT2 Stewart - cross 1 A. Yes. 2 Q. This was, I think you told us, one of a newspaper clipping 3 that was found in your office, is that correct? 4 A. Yes. 5 Q. And I think you told us that the newspaper clippings found 6 in your office during the search by the FBI either were parts 7 of exhibits that had been provided to you by the government 8 when you represented Nasser Ahmed, is that right? 9 A. I believe some of them were, yes. 10 Q. And others were just newspaper clippings that you may 11 yourself have just had or clipped yourself out of a newspaper 12 because it related to Mr. Ahmed or perhaps Abdel Rahman, is 13 that correct? 14 A. Yes. Or had been provided to me by people that worked with 15 us or one of the other lawyers even. 16 Q. Now -- 17 A. I think I said that Mr. Clark had a clipping service that 18 provided him with anything that came through. This is in 19 pre-Google days and they provided him with all articles that 20 contained anything about the Sheikh or the Islamic Group. 21 Q. Now, let me ask you some things first about the exhibit 22 itself. There is some underlining and some what appear to be 23 maybe stars and circles written onto this article itself. 24 Do you see that? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8330 4B8ESAT2 Stewart - cross 1 Q. Did you do that underlining or marking on that exhibit? 2 A. No. 3 Q. Do you know who did? 4 A. I don't know. 5 Q. Do you know when you provided this particular, when you 6 were given this particular document, those underlinings and 7 markings were on the document itself? 8 A. I believe, if I remember correctly, this was a copy and it 9 was not the original newspaper article. But I could be wrong 10 on that also. I think it was a copy and a copy came, as you 11 see it here right now. 12 I also, I don't think this came from the government 13 because I don't think they would supply it to us in this form. 14 It would have been a clean copy, I think. 15 Q. So it's your belief or your understanding that you got this 16 from somebody else? 17 A. Yes, I think so. 18 Q. And let me just point here to, it looks like the second 19 paragraph of the article that says: The attack on the Egyptian 20 embassy in Islamabad was the single deadliest strike against an 21 Egyptian government target since 1992 when the militant Islamic 22 Group began its violent quest to overthrow secular authority in 23 Egypt and imposed an Islamic state. 24 Do you see that? 25 A. It's right next to where it says news analysis, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8331 4B8ESAT2 Stewart - cross 1 Q. Correct. I'm sorry. 2 A. Yes. 3 Q. And if you skip to the next paragraph it reads: But the 4 attack is the largest in a series that began with the attempted 5 assassination of President Hosni Mubarak in Ethiopia in June. 6 Do you see that? 7 A. I see that. 8 Q. Did you learn from this or others sources that members of 9 the Islamic Group had claimed responsibility for that attempted 10 assassination? 11 A. Can I just take a minute and read through it? 12 Q. Go right ahead. 13 A. Thank you. (pause) 14 Yes, I'm sorry, what was your question again? 15 Q. Let me point out in the third column towards the bottom the 16 second to the last paragraph it says: Since the attack on 17 Mr. Mubarak in Ethiopia for which the Islamic Group claimed 18 responsibility, suspected Egyptian militants have twice 19 attacked targets in Europe. 20 The question was, was it your understanding that 21 members of the Islamic Group had claimed responsibility for 22 that attempted assassination? 23 A. Yes. 24 Also, I don't see it in this article but it was also 25 my understanding that the leadership, in other words based in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8332 4B8ESAT2 Stewart - cross 1 Egypt, had said this is outside purview of the Islamic Group; 2 that they may be claiming what they're claiming but this is 3 taking place outside of Egypt and we're not involved in this. 4 But I -- that's my remembrance of it, that there were 5 people that were operating outside the country. 6 Q. And where did you learn that from? 7 A. I think there was, may have been a subsequent article or 8 was read to me from one of the Arabic newspapers that this was 9 not the council or the governing body of the Islamic Group that 10 was claiming these particular acts. 11 Q. Was it your understanding that there were Islamic Group 12 members outside of Egypt who were undertaking these types of 13 operations or actions? 14 A. Well, clearly these all took place outside of Egypt. 15 Q. My question though, was, was it your understanding that 16 there were other members of the Islamic Group outside of Egypt 17 taking these actions? 18 A. I don't think I knew that, no. 19 Q. Now, in the same article there is reference again, at the 20 bottom of the third column that says: Last month, the Islamic 21 Group said it exploded a bomb in the Croatian Port of Rejica to 22 protest the attention there of the group's spokesman, Talaat 23 Fouad Kassem. 24 Do you see that? 25 A. I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8333 4B8ESAT2 Stewart - cross 1 Q. And did you know who Talaat Fouad Kassem was? 2 A. No. 3 MR. DEMBER: Your Honor, may I display Government 4 Exhibit 2625, which is in evidence? 5 THE COURT: Yes. 6 Q. Ms. Stewart, this is a rather large exhibit so I will do 7 the first half first. 8 This is another one of the exhibits -- 9 MR. TIGAR: Excuse me, your Honor. I object to 10 displaying the part without the date. 11 THE COURT: Okay. 12 MR. DEMBER: I'm sorry. I meant to display the whole 13 thing. You want the date? There is the date. 14 THE COURT: Okay. 15 BY MR. DEMBER:: 16 Q. The date says September 24th, 1995, Ms. Stewart. 17 A. Yes. 18 Q. Because unfortunately the document is bigger than the 19 screen here let me start on the left side. 20 Do you know who -- first of all, there is some writing 21 on this exhibit and some underlying, some markings; did you put 22 those -- first of all, did you do any of that writing on this 23 exhibit? 24 A. No. 25 Q. Do you know who did? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8334 4B8ESAT2 Stewart - cross 1 A. I don't know. 2 Q. Do you recognize the handwriting? 3 A. No, I actually don't. 4 Q. And this was an exhibit that was found in your office, is 5 that correct? 6 A. Yes. 7 Q. On the top there it says the word Luxor, is that right? 8 A. Yes. 9 Q. Now, is it not your recollection that the Luxor incident 10 that we have heard about in this case took place in November of 11 1997, is that right? 12 A. That's my understanding, yes. 13 Q. And this article is dated September 24th, 1995, is that 14 right? 15 A. That's right. 16 Q. And to the right of the name of, or the written word 17 "Luxor" is the name Talaat Kassem? 18 A. Yes. 19 Q. And that's the name that was referred to in the previous 20 article we just displayed, is that right? 21 A. Yes. 22 Q. And I am just pointing to the top portion here, there is 23 some additional writing, can you make out what that says? 24 A. The first word looks like Sheikh but it's not -- there is 25 something on the end of it, and then the last word looks like SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8335 4B8ESAT2 Stewart - cross 1 Bosnia. In between, your guess is as good as mine. 2 Q. Okay. And do you have any idea how you got this article? 3 Or who gave it to you? 4 A. As I said, I think all of these articles were found in a 5 box that had both the Sheikh's material and Nasser's material 6 sort of commingled. 7 I do note from the date we were probably waiting for a 8 jury verdict in the Sheikh's case when this was reported by the 9 New York Times. I recognize the Times. 10 So, I only can think that I must have had it either 11 for the purpose of Nasser's case and whatever evidence they 12 were bringing in to attempt to convince the judge that he had 13 certain ties, etc. 14 I really don't have a clear recollection of why this 15 was in that box. 16 Q. Now, were you aware, Ms. Stewart, that when we introduced 17 earlier in the case, articles which were seized from your 18 office which reported on the bombing of the Egyptian embassy in 19 Pakistan, do you recall that? 20 A. I do. I believe, in having -- I do collect clippings, I 21 think people know that. They provide me with them because as 22 you said, there is sometimes a grain of truth OR a lot of truth 23 in them and it may be useful to us in defending people. 24 So, I am a clipper. 25 Q. And do you recall in a few of those articles it being SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8336 4B8ESAT2 Stewart - cross 1 reported that the Islamic Group had claimed responsibility for 2 that bombing? 3 A. I do seem to recall that, yes. 4 MR. DEMBER: Now, may I display Government Exhibit 5 2628 in evidence, your Honor? 6 THE COURT: Yes. 7 Q. Now, Ms. Stewart, let me turn this sideways for a moment so 8 you can see the date. 9 Do you see the date of this particular article? 10 A. Yes. 11 Q. And that's April 21, 1996, is that correct? 12 A. That's correct. 13 Q. And at the very top of this exhibit it says: G-O, either U 14 or V, T, Exhibits. Do you understand that to mean Government's 15 Exhibits? 16 A. Yes. And that is my handwriting. 17 Q. This is an exhibit that was provided to you in a case where 18 you represented Mr. Nasser Ahmed? 19 A. I believe so, yes. That's why I noted it such. 20 Q. And this is one of the articles -- there is a couple of 21 articles that we introduced that discuss an attack in Cairo in 22 which 18 Greek tourists were killed, is that right? 23 A. Yes. 24 Q. It indicates in the article that the Islamic Group or 25 members of the Islamic Group claimed responsibility for that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8337 4B8ESAT2 Stewart - cross 1 attack. 2 Is that right? 3 A. Yes. 4 Q. And this obviously was an attack within Egypt itself, not 5 outside in other parts of the world, correct? 6 A. Yes. And this is before the peace initiative. 7 Q. Right, it's 1996. Is that right? 8 A. That's right. 9 Q. And you were aware of this event, certainly at the time you 10 issued the press release you knew this had occurred before the 11 start of the cease fire, is that correct? 12 A. I was aware that this had happened. 13 Q. Now I'm going to get back to this in a minute, but the 14 attack on the 18 Greek tourists was, to some extent, related to 15 and on the subject of Mr. Nasser Ahmed's immigration case, is 16 that right? 17 A. I think that -- yes, they -- part of the allegation had 18 been that he was associated with the IG. That was part of why 19 he was, should not be granted, in the government's mind, 20 amnesty. 21 Q. Well, was there a concern that Mr. Nasser -- I think you 22 told us, did you not, that Mr. Ahmed was accused by the 23 Immigration and Naturalization Service of, perhaps, sneaking 24 some message out from Abdel Rahman before the existence of the 25 SAMs that may have led to such an event? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8338 4B8ESAT2 Stewart - cross 1 A. It was completely disproved and I think the Judge's 2 decision pointed that out very clearly. 3 But, yes, that was part of what they said. 4 Q. The question was this was part of the allegation? 5 A. I don't think in these situations they actually -- I'm 6 sorry, my counsel is up. 7 MR. TIGAR: I'm sorry. Your Honor, may we take a 8 break? 9 THE COURT: Yes, absolutely. 10 MR. TIGAR: Thank you. 11 THE COURT: Ladies and gentlemen, let's take 10 12 minutes. 13 Please remember my continuing instructions, ladies and 14 gentlemen. Please don't talk about this case at all. Please 15 remember to keep an open mind until you have heard all of the 16 evidence and I have instructed you on the law. 17 All rise, please. 18 Please follow Mr. Fletcher. 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8339 4B8ESAT2 Stewart - cross 1 (Jury not present) 2 THE COURT: Ms. Stewart may step down. 3 (Witness steps down) 4 THE COURT: All right, we will take a few minutes. 5 (Recess) 6 (Pages 8340-8341 SEALED by order of the Court) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8342 4B8ESAT2 Stewart - cross 1 (In robing room; open record) 2 THE COURT: There are two other things that I wanted 3 to raise with you. 4 The first is Mr. Fletcher brought to my attention that 5 one of the jurors asked whether the juror could use a personal 6 notebook to take notes because the juror thought that another 7 juror was using a personal notebook and not a legal pad to take 8 notes. 9 My -- I frankly don't care so long as the jurors 10 understand that any notes that they have are to be left in the 11 jury room at night. 12 MR. RUHNKE: The defense seems to see no problem with 13 that, your Honor. 14 THE COURT: Okay. I hate to encourage notebooks 15 rather than legal pads. 16 MR. TIGAR: It does occur to me, your Honor, at the 17 risk of dissenting from Mr. Ruhnke, that the use of anything 18 other than what the Court issued makes it difficult to identify 19 what jurors are leaving here as opposed to taking away. 20 THE COURT: But they -- 21 MR. TIGAR: So it really is, I would suggest 22 Mr. Fletcher's call, as long as one thinks that whatever 23 procedure it is can be followed effectively. 24 THE COURT: Okay. I'm happy to tell them, please, you 25 know, just take notes on the legal pads we give you and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8343 4B8ESAT2 Stewart - cross 1 remember to leave your notes, whether you have been doing it on 2 legal pads or anything else, leave your notes in the jury room 3 at night, okay? 4 The last thing, there was a question and answer with 5 respect to people dying in the embassy bombing case and I 6 overruled an objection on relevance and it goes to state of 7 mind and dealing with Mr. Fitzgerald on these issues and some 8 of the things that Ms. Stewart said on the tape. But then 9 there was a followup question as to the number of people who 10 died in the embassy bombings and there was no objection to that 11 question and -- 12 MR. TIGAR: Having had my earlier objection overruled, 13 your Honor, I thought it was a very bad idea to be getting up 14 there at that moment. I winced at the question and answer but 15 I felt that I could not -- I didn't know how far the Court was 16 going to let Mr. Dember go. 17 So, yes, that's right, I didn't object. 18 THE COURT: Do the parties have any positions on this? 19 MR. TIGAR: I sense this is a risk -- I would not ask 20 for a curative instruction at this point because that simply 21 goes back to it. The record is what it is and we will have to 22 try to deal with this on redirect. 23 If it floats by again in closing argument I will be on 24 my feet. 25 THE COURT: Okay. Because it would seem to me that at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8344 4B8ESAT2 Stewart - cross 1 an appropriate time I would be prepared to give an instruction 2 that the defendants are not accused of anything to do with the 3 embassy bombing case. 4 MR. RUHNKE: Can we talk about that, your Honor, among 5 ourselves perhaps over the break? See if we can come to a 6 consensus position on it? 7 MR. BARKOW: Your Honor, I don't think that that was 8 the -- he looked at me. I don't think that was the implication 9 of the question. I don't think we would ever argue that there 10 was a connection but we don't think there is a necessity for an 11 instruction neither to highlight it from defense perspective or 12 from ours. 13 It goes to state of mind. It is a small fact. 14 THE COURT: Okay. 15 MS. SHELLOW-LAVINE: Your Honor, before we adjourn, 16 can we seal the first portion of this transcript, please? 17 THE COURT: Absolutely. I am perfectly prepared to 18 seal the portion of the transcript dealing with health issues. 19 I should have thought about that. 20 Shall I give the instruction to the jury on legal pads 21 now? 22 MR. BARKOW: Is the Court going to bring the jury back 23 in and send them to lunch? 24 THE COURT: I have to. Mr. Ruhnke doesn't think so. 25 MR. RUHNKE: I don't think so. I think every time the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8345 4B8ESAT2 Stewart - cross 1 jury has left the box they have been told your Honor's 2 admonition not to discuss the case and bringing them back in, 3 from what started out to be a 10 or 15 minute break, which is 4 now stretched, for good reasons to much longer, to me, 5 personally, doesn't make any sense. Not that it doesn't make 6 any sense. I don't think it is necessary. 7 THE COURT: Lunch is scheduled for 12:45 so they don't 8 have lunch yet. Mr. Fletcher can just tell them that we are 9 breaking for lunch and we will resume at 2:00. 10 MR. RUHNKE: Just, is there just a, practically 11 speaking, mechanism to get in touch with your Honor's chambers 12 during lunch if Mr. Tigar should need, on than that? Just show 13 up here at 2:00. 14 THE COURT: 805-0222. 15 MR. RUHNKE: Thank you, your Honor. 16 THE COURT: Mr. Fletcher will just let the jury know. 17 (Luncheon recess) 18 (Continued next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8348 4B8ESAT2 Stewart - cross 1 (Pages 8346 and 8347 sealed by order of the Court) 2 (In open court; jury present) 3 THE COURT: Good afternoon, ladies and gentlemen. 4 Good to see you all. 5 Ladies and gentlemen, as a preliminary matter, before 6 we continue, I just wanted to explain something with respect to 7 note-taking. If you are taking notes -- and I gave you a long 8 instruction about taking notes. You're not required to take 9 notes, but you're free to do so if you wish. And remember to 10 keep the notes to yourselves and follow all the instructions I 11 gave you about notes. 12 Please, only use the legal pads that we've given to 13 you. If you need any more legal pads, just ask Mr. Fletcher 14 and he'll make sure to provide them for you. If you have taken 15 notes on anything other than the legal pads, remember to leave 16 those notes, along with the legal pads, in the envelope that 17 we've provided to you for your notes. It's very important that 18 you leave all of your notes in the jury room each evening. And 19 as I say, if you need more legal pads, just let Mr. Fletcher 20 know. He's able to provide you as many legal pads as you wish. 21 And remember to leave your notes in the jury room, all right? 22 Ms. Stewart is on the stand. Mr. Fletcher? 23 THE DEPUTY CLERK: Ms. Stewart, you are reminded 24 you're still under oath. 25 THE WITNESS: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8349 4B8ESAT2 Stewart - cross 1 THE COURT: All right. Mr. Dember, you may proceed. 2 BY MR. DEMBER: 3 Q. Ms. Stewart, let me just ask you a few questions about your 4 knowledge and what your understanding was of the Islamic Group 5 itself. Was it your understanding back at the time you issued 6 the press release that the Islamic Group was essentially 7 against President Mubarak and his secular government in Egypt? 8 A. Yes. 9 Q. And was it also your understanding at the time you issued 10 the press release that the Islamic Group favored the formation 11 of an Islamic state in Egypt as its form of government? 12 A. Yes. 13 Q. And was it your understanding at the time that you issued 14 the press release that the Islamic Group had engaged in act of 15 violence against tourists -- you understood that, is that 16 correct? 17 A. I knew that it happened in the past, yes. 18 Q. Knew it had happened. 19 And was it your understanding that the group had done 20 that as a way of attacking or engaging -- or attacking the 21 Egyptian government itself? 22 A. Without substituting my judgment, my understanding from 23 what I had read and knew was that it was thought, I believe, 24 that an attack on the tourist industry would be a blow against 25 the government, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8350 4b8esat4 Stewart - cross 1 Q. And was part of your understanding when -- in knowing that 2 or understanding that, was that by attacking the tourists or 3 tourists it would hurt the tourism industry in Egypt? 4 A. Yes. I think their -- I think there was some discussion 5 had about whether it was legitimate to do that, but I'm very 6 fuzzy on that. 7 Q. Was it your understanding that when the Islamic Group -- 8 the Islamic Group, by attacking tourists and engaging in 9 violence against tourists, would hurt the economy of Egypt, and 10 that's what the Islamic Group's purpose was in doing that? 11 A. I believe so, yes. 12 Q. Now -- and that was your understanding at the time of the 13 press release? 14 A. Yes. I think there had not been an attack on tourists, 15 though, since -- since Luxor, I think. So, yes, but that was 16 my understanding was their prior tactic, yeah. 17 Q. Now, at the time we broke I was asking you about Exhibit 18 2628. 19 MR. DEMBER: May I display that exhibit, your Honor. 20 It's in evidence. 21 THE COURT: Yes. 22 Q. Ms. Stewart, that's the article that discusses that the 23 Islamic Group had claimed responsibility for the killing of 18 24 Greek tourists? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8351 4b8esat4 Stewart - cross 1 Q. Do you recall that? 2 A. Yes. 3 Q. And you were aware of that fact at the time you issued the 4 press release, were you not? 5 A. Yes. 6 Q. And were you also aware of the fact that from articles you 7 had in your possession and from any other source, that after 8 that attack, that the Egyptian police had engaged in efforts to 9 find those responsible for that attack, and that a number of 10 police officers had been killed and injured as a result of 11 their efforts to apprehend suspects in that case? 12 A. Specifically, I'm not certain I remember specific 13 incidents, but I pretty generally know that that would be 14 the -- what would usually happen. 15 MR. DEMBER: Your Honor, may I display Government 16 Exhibit 2626 in evidence. 17 THE COURT: Yes. 18 Q. Ms. Stewart, is this another one of those articles that was 19 found in your office? Do you see that? 20 A. Yes. 21 Q. And does this article report on the fact that in attempting 22 to apprehend suspects in the murder of the 18 Greek tourists, 23 that I believe 4 police officers had died and 14 others had 24 been wounded? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8352 4b8esat4 Stewart - cross 1 Q. You'll find that in the second paragraph of the article. 2 A. Yes. This is -- this was supplied by the government in 3 connection with Nasser Ahmed's case. 4 Q. And that was -- and when was that about? Was that in '98 5 or '99, 1998, 1999, or beforehand? 6 A. Well, when was -- when was Nasser Ahmed's case, or when was 7 this? 8 Q. When was it provided to you? 9 A. Oh. Sometime during the -- between '97 and '99. 10 Q. Was that article considered an exhibit offered by the 11 government in Mr. Ahmed's case? 12 A. Yes, I believe so. 13 Q. And I assume you -- did you review all of the exhibits that 14 the government offered into evidence in his case? 15 A. Yes. 16 Q. Now -- 17 MR. DEMBER: Your Honor, may I display Government 18 Exhibit, in evidence, 2666. 19 THE COURT: Yes. 20 Q. Ms. Stewart, let me show you the first page of that 21 exhibit. Do you see that's the decision of the immigration 22 judge in favor of Mr. Ahmed in that case? 23 A. Yes. 24 Q. Let me turn to page three of that decision by the judge. 25 And do you see under the title, membership in al-Gama'a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8353 4b8esat4 Stewart - cross 1 al-Islamiyya? 2 A. Yes. 3 Q. Do you see that section? 4 A. I do. 5 Q. And the first sentence reads, respondent testified at the 6 remanded hearing and part of his testimony concerned his 7 alleged affiliation with al-Gama'a. 8 Do you see that? 9 A. Yes. 10 Q. Was Nasser Ahmed a respondent in the case? 11 A. He was. 12 Q. So when it says "respondent," it's referring to Mr. Ahmed, 13 is that right? 14 A. Yes. 15 Q. And it says here that he testified. Did he testify in some 16 sort of a hearing during the proceedings in that case? 17 A. Yes. It was held right upstairs on the third floor. 18 Q. I'm sorry? 19 A. It was held on the third floor upstairs. 20 Q. In our building? 21 A. Yes. 22 Q. This courthouse. 23 And it says here that he testified concerning his 24 alleged affiliation with al-Gama'a. And when it says 25 al-Gama'at, that's al-Gama'at al-Islamiyya, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8354 4b8esat4 Stewart - cross 1 A. Well, in that case there was a question about what that 2 meant, because we had had testimony that there were a number of 3 definitions. There was a group, but it was also a way of 4 referring to the entire congregation, so it was not entirely 5 clear. And I think the judge's decision did talk about that. 6 But he was accused of being part of the IG itself, I believe. 7 Q. IG, Islamic Group? 8 A. Yeah. 9 Q. In fact, in the decision the judge distinguished between 10 al-Gama'at with a T at the end and al-Gama'a, did he not? 11 A. Yes, he did. 12 Q. And al-Gama'at was, in his opinion, referred to as sort of 13 an accumulation of number of groups that are Islamic in nature 14 that may be antigovernment in one sense or the other? 15 A. Right. 16 Q. Al-Gama'a refers specifically to the Islamic Group, is that 17 right? 18 A. I think he said al-Gama'at was like the peace movement, a 19 big generic term meaning a lot of different groups. 20 Q. But al-Gama'at, as it's referred to in this sentence we're 21 looking at, is the Islamic Group? 22 A. Yes. 23 Q. Yes. Now the next sentence reads, the respondent spoke 24 convincingly in opposition to al-Gama'at, and then it goes on 25 to say he spoke of his -- opposition to the culture of violence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8355 4b8esat4 Stewart - cross 1 and to the cycle of violence which the al-Gama'at promotes. 2 And Mr. Ahmed testified to that effect? 3 A. Yes. 4 Q. And it goes on to say that respondent -- that's 5 Mr. Ahmed -- testified that he believes the al-Gama'a's tactics 6 are futile, is that right? 7 A. Futile, yes. 8 Q. So he had indicated that he believed it was essentially a 9 group that engaged in violence and you knew that, is that 10 right? 11 A. Yes. 12 Q. And you knew that at the time that you issued the press 13 release, that that was certainly his view of al-Gama'a? 14 A. Yes. 15 MR. DEMBER: Your Honor, may I display Government 16 Exhibit 2611 in evidence. 17 THE COURT: Yes. 18 Q. Now, Ms. Stewart, let me show you this exhibit. I believe 19 we found two copies of this exhibit in the search of your 20 offices, do you recall that? 21 A. I guess so. 22 Q. OK. And this article is dated Monday, April 22, 1996? 23 A. Yes. 24 Q. By the way, there's the name Rhea and a telephone -- what 25 appears to be a telephone number up there. Is that a person SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8356 4b8esat4 Stewart - cross 1 you know? 2 A. Happened to be the legal coordinator at the MCC here in 3 New York, Dominique Rhea. 4 Q. And is that your handwriting, by the way? 5 A. That is. 6 Q. And in this article it's titled, Militants in Egypt 7 Threaten Americans with Retaliation. Do you see that? 8 A. Yes. 9 Q. Let me point down to a paragraph, towards the bottom in the 10 first column. It reads, the most specific threat came in a 11 rare interview with Mustafa Hamza, believed by Egyptian 12 intelligence to be the chief military planner of the Islamic 13 Group. The interview was with the Arab language daily 14 Al-Hayat. 15 The next paragraph reads, Mr. Hamza asserted in the 16 interview that his organization may kidnap American citizens to 17 win the release of its spiritual leader, Sheikh Omar Abdel 18 Rahman. And then it goes on to say that Mr. Abdel Rahman is 19 serving a life sentence in the United States for the conspiracy 20 to blow up New York landmarks. 21 Do you recall reading this article at some point in 22 time? 23 A. Yes. 24 Q. And did you know who Mustafa Hamza was when you read this 25 article? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8357 4b8esat4 Stewart - cross 1 A. No. 2 Q. Did you read it at some point in time in 1996, since that's 3 the date on the article? 4 A. Yes, I did. 5 Q. And at any point in time did you ever ask anyone who 6 Mustafa Hamza was? 7 A. No. I thought the Times probably accurately reported that. 8 They said he was a military leader of Gama'a. Of course this 9 is 1996, again, yeah. 10 Q. Understood, certainly. And did you ever ask, for example, 11 Mr. Sattar whether he knew who Mr. Hamza was? 12 A. I don't think I ever did. 13 Q. But you were aware of this prior to -- certainly this 14 occurred before your release, the press release which was 15 issued in 2000? 16 A. Yes, it did. 17 Q. Let me just read the -- point out the next paragraph after 18 the one I just read. 19 It reads, after referring to your client, Abdel 20 Rahman, and the fact that he was serving a jail sentence, it 21 indicated -- it indicates in this article, nearly two weeks ago 22 he sent a message to his followers asking them to avenge his 23 imprisonment. 24 Do you recall reading that back in 1996? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8358 4b8esat4 Stewart - cross 1 Q. Did you talk with anybody about the fact that it was 2 reported that your client had sent a message or messages to his 3 followers to avenge his imprisonment? 4 A. I think that had earlier been reported in the Times and 5 that about -- this is, to my understanding today, at any rate, 6 part of the so-called will, which was also introduced. 7 That's -- and that was also part, again, of Nasser Ahmed's 8 case, because that was supposedly the message he had taken out. 9 That's what I understand. Which, of course, was proven not to 10 be the case at all. 11 Q. Well, it was proven that Nasser Ahmed did not take any 12 messages out? 13 A. Right. Right. 14 Q. Now, you were aware of what was reported in this article 15 certainly before you issued the press release in 2000, is that 16 right? 17 A. Yes. 18 Q. Now, you certainly were aware of what happened in Luxor in 19 November of 1997 prior to the issuance of the press release, 20 were you not? 21 A. Yes. 22 Q. And you were aware of the number of deaths and injuries 23 that occurred as a result of what happened there? 24 A. Yes. 25 Q. And were you also aware of the fact, Ms. Stewart, that at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8359 4b8esat4 Stewart - cross 1 the time of the press release, certainly, that at the time that 2 the massacre occurred, the murders occurred at Luxor, that a 3 pamphlet or pamphlets had been distributed amongst -- on the 4 site of where this occurred? 5 MR. TIGAR: Objection, your Honor. 6 MR. DEMBER: I'm asking for her understanding, your 7 Honor, state of mind. 8 MR. TIGAR: Relevance. 9 THE COURT: No objection. All right. 10 MR. TIGAR: No. I said I did object, your Honor. I 11 said relevance. 12 THE COURT: You can ask for her understanding. Go 13 ahead. 14 THE WITNESS: Answer the question? 15 THE COURT: Yes. 16 THE WITNESS: My understanding, I think, was that, 17 first of all, Luxor was not carried -- this was after the peace 18 initiative had been announced, and that it was not carried out 19 by approval of the council, and that -- was it my understanding 20 that there had been certain leaflets left at the scene? Yes, I 21 think I had read about that. 22 BY MR. DEMBER: 23 Q. Now, when you say your understanding was it wasn't 24 approved, or the conduct, the killings at Luxor had not been 25 approved, was it also your understanding that it had been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8360 4b8esat4 Stewart - cross 1 committed by some members of the Islamic Group? Was that your 2 understanding? 3 A. Well, I don't think it was committed by members as members, 4 if you get my meaning. In other words, if the group had 5 declared that they were for a peace initiative and then certain 6 people had gone out and used the name of the group to carry out 7 this reprehensible act, then it isn't the group doing it. And 8 they actually, I think, also put out a press release saying it 9 was not them that did it. So if you say it was X -- I don't 10 know who it was, but it was certainly announced that it was 11 done by the Islamic Group. 12 Q. You were aware of that? 13 A. Yes. 14 Q. Right. I'm not asking whether, in fact, it happened by -- 15 it was committed by the Islamic Group. I'm asking your 16 understanding. 17 A. Yes. 18 Q. And was it also your understanding that pamphlets had been 19 left at the scene? 20 A. I think some kind of leaflet had been left. 21 Q. And was it your understanding that those leaflets 22 essentially indicated that what was done at Luxor was done for 23 the purpose of freeing Abdel Rahman? 24 A. I think that may have been said. But I would have read 25 that somewhere. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8361 4b8esat4 Stewart - cross 1 Q. Do you remember talking to a reporter about what happened 2 at Luxor, being called and being asked about it? 3 A. Not really. 4 Q. You're familiar with a reporter from Newsday named Patricia 5 Hurtado? 6 A. Yes. 7 Q. Do you know Ms. Hurtado? 8 A. Yes. 9 Q. And do you recall if she spoke with you after the incident 10 had been reported or about the incident itself? 11 A. I don't recall that, no. 12 MR. DEMBER: Your Honor, may I approach the witness. 13 THE COURT: Yes. 14 Q. Ms. Stewart, I've just handed up to you a document -- we've 15 marked it for identification as Government Exhibit 506. Why 16 don't you take a moment to look at it. 17 A. Thank you. Yes. 18 Q. Ms. Stewart, does that refresh your recollection at all as 19 to whether or not members of the Islamic Group claimed 20 responsibility for the attack at Luxor? 21 A. It reminds me that that's what was written in Newsday, yes. 22 Q. I'm more concerned -- my question was, does it refresh your 23 recollection as to your understanding or knowledge, your 24 understanding that members of the Islamic Group claimed 25 responsibility for what happened at Luxor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8362 4b8esat4 Stewart - cross 1 A. Well, that's what was reported in Newsday. I can say that 2 clearly. 3 Q. Now, Ms. Stewart, other than what you knew about the 4 tourist -- the attack on tourists at Luxor and what you've 5 talked -- we've talked about an attack by -- by -- or Islamic 6 Group representatives claiming responsibility for an attack on 7 the Greek tourists in Cairo in 1996, were you aware of any 8 other attacks upon tourists inducted by the Islamic Group? 9 A. No. 10 Q. Well, were you not familiar with the fact that back in 11 1993, for example, members of the Islamic Group had attacked 12 tourist buses -- 13 MR. TIGAR: Objection, your Honor. Remoteness, 14 relevance. 15 THE COURT: Sustained. 16 MR. DEMBER: I'm sorry, your Honor. Was there a 17 ruling? 18 THE COURT: I said sustained. I'm sorry. 19 BY MR. DEMBER: 20 Q. Ms. Stewart, let me just ask you one last question about 21 Luxor. 22 Does the article that I've had -- I've put before you 23 that we marked for identification as 506, did that article 24 refresh your recollection as to whether or not pamphlets or 25 leaflets were left at the scene calling for the release of your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8363 4b8esat4 Stewart - cross 1 client? Just read it to yourself. 2 MR. TIGAR: Object to the form. 3 Q. Tell us if it refreshes your recollection. 4 MR. TIGAR: Object to the form, your Honor. She can't 5 know whether a pamphlet was -- if he wants to ask about her 6 understanding -- 7 MR. DEMBER: I'll withdraw the question and rephrase 8 it, your Honor. 9 THE COURT: Thank you. 10 Q. Ms. Stewart, I'm asking about your understanding about 11 whether or not leaflets were left at the scene at Luxor calling 12 for the release of your client, Abdel Rahman, whether that 13 article helps to refresh your recollection as to whether 14 that -- you had such an understanding at some point in time. 15 A. The article certainly refreshes my recollection that it was 16 reported in the press at that time. Certainly. 17 Q. Now, Ms. Stewart, I believe during your direct testimony 18 Mr. Tigar, your counsel, asked you about your personal view 19 about what -- of the events at Luxor. Do you recall that? 20 A. Yes. 21 Q. And I believe your testimony was -- I'm sorry. 22 Obviously you indicated that it was a deplorable act, 23 is that right? 24 A. I believe so, yes. 25 Q. And you also were asked in -- back in 1997, looking at that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8364 4b8esat4 Stewart - cross 1 time, was it your personal view that violence could ever be 2 used to accomplish a political goal. Do you remember your 3 attorney asking you that question? 4 A. Yes. 5 Q. And do you remember saying to us, testifying, that it was 6 your personal view then, and now your personal view as well, 7 that in a righteous struggle -- your phrase -- righteous 8 struggle, where people are trying to overcome oppression, and I 9 believe you gave the examples of South Africa and Ireland, it 10 is an appropriate response, when there is no other response, is 11 to fight back, to use violence or act in self-defense to 12 accomplish political goals by those actions. But you indicated 13 that you did not believe in anarchistic violence, is that 14 right? 15 A. That's right. 16 Q. So you told us that you believed where people were 17 oppressed, they could use violence if there were no other 18 alternative, is that your belief? 19 A. That is my belief, yes. 20 Q. Now, you told us, I believe -- last week your attorney 21 asked you about an interview you gave with a reporter from the 22 New York Times named Joseph Fried, is that right? 23 A. Yes. 24 Q. And that interview took place back in 1995, did it not? 25 A. Yes. It was during the trial of Sheikh Omar, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8365 4b8esat4 Stewart - cross 1 Q. And was it true that the article or itself, a lot of the 2 focus was on the fact that you were representing Sheikh Omar 3 Abdel Rahman, correct? 4 A. I think that's the only reason he wanted to interview me, 5 yes. 6 Q. And you told us actually before you testified about that, 7 that was I guess last week, that you had actually looked at the 8 article itself, is that right, before your testimony? 9 A. Before I testified? Yes, I did review it. 10 Q. And Mr. Fried, or you were asked about the article, and 11 whether you had told Mr. Fried or described for Mr. Fried your 12 views or your view about the use of violence, is that right? 13 A. Yes. 14 Q. And do you remember telling us in substance that in order 15 to rid ourselves of the entrenched ferocious type of capitalism 16 that is in this country that perpetuates sexism and racism, I 17 don't think that can come nonviolently. 18 Do you remember saying that? 19 A. I don't know whether I said that or whether that's what I 20 said to Mr. Fried, but either way. 21 Q. Well, do you remember testifying -- 22 THE COURT: Whoa. 23 Q. I'm sorry. I didn't mean to interrupt you, Ms. Stewart, 24 but -- 25 A. As I said, I remember, I said that to Mr. Fried and he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8366 4b8esat4 Stewart - cross 1 reported on that. I don't know whether I repeated that here in 2 the courtroom, but with that understanding, I did say it. 3 Q. Well, do you remember testifying to those words here in 4 court the other day? 5 A. I'm just not sure what form that took. 6 MR. DEMBER: May I approach the witness, your Honor. 7 THE COURT: Yes. 8 MR. DEMBER: Your Honor, I'm going to show the witness 9 pages 7967 to 7968 of the transcript. May I do that. 10 THE COURT: Yes. 11 BY MR. DEMBER: 12 Q. Ms. Stewart, let me ask you to look at for a moment -- 13 MR. DEMBER: May I address the witness from here, your 14 Honor, just -- 15 THE COURT: Yes. 16 Q. I'm going to ask you to look at page 7967, line 6, and read 17 through to yourself through page 7968 through line 5. Why 18 don't you do that first. 19 Now, Ms. Stewart, when I asked you that question, the 20 previous question I asked you before I approached and had you 21 read through the document I handed up, I had asked you whether 22 or not you had testified that way in court. 23 A. I had testified that way. 24 Q. And that was your -- the testimony you gave last week? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8367 4b8esat4 Stewart - cross 1 Q. And let me just ask you some questions about that. 2 When you were talking about the entrenched ferocious 3 type of capitalism that is in this country, obviously you're 4 referring to the United States, is that right? 5 A. Yes. 6 Q. And you indicated that you believed, did you not, that that 7 kind of capitalism perpetuates sexism and racism, is that 8 right? 9 A. Yes. 10 Q. And you indicated, did you not, in your testimony that you 11 didn't think those -- that could be overcome except by the 12 way -- by means of violence, is that right? 13 A. Yes, against those institutions, and as I said, I think 14 supported popularly; in other words, a people's revolution. 15 Q. And you actually, do you remember testifying, went on to 16 testify -- and maybe you've read it -- you said, and I think I 17 said to Mr. Fried that I was against anarchistic violence, 18 meaning by that the kind of violence that is not supported by 19 the majority of the people. 20 Is that right? 21 A. Yes. 22 Q. I'm talking about a revolution of the people that 23 overthrows institutions. 24 A. Yes. 25 Q. Now, were you talking -- when you testified about your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8368 4b8esat4 Stewart - cross 1 beliefs about the use of violence, you were talking about its 2 use against institutions, is that right? 3 A. And talking about a popular revolution. I'm talking about 4 institutions being changed, and my belief that certain 5 entrenched institutions will not be changed except by violence. 6 Q. And did you mean to say that you believed in violence 7 directed at those institutions? 8 A. I believe in the politics which lead ultimately, in my view 9 of history, to violence being exerted by the people on their 10 own behalf to make change. 11 In this country I do believe that the entrenched 12 capitalism needs to be changed. And I don't think that it will 13 be an easy task, and I don't think they will give up without at 14 least that kind of threat, mounting threat. 15 Q. Well, you said the use -- you said violence, the use of 16 violence, right, or it has to be -- it only can be 17 accomplished, or it cannot be accomplished nonviolently, right? 18 That means it can only be accomplished violently, is that 19 right? 20 A. That's my view. The American revolution was accomplished 21 violently. 22 Q. And my question, though, is in your statement -- in your 23 testimony you indicated that violence need be directed at 24 institutions, is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8369 4b8esat4 Stewart - cross 1 Q. What type of institutions are you talking about? 2 A. Well, I don't believe in civilian deaths. I don't believe 3 in wanton massacres, such as Luxor. And for that reason it 4 seems to me that at some ultimate point the institutions which 5 perpetuate capitalism -- and by that I mean the institutions of 6 government which protect it and make sure that it functions -- 7 do have to be attacked. Perhaps could be banking institutions, 8 if they were the -- a possible thought, but I'm sure those 9 decisions -- we're not in those times yet, Mr. Dember. And I'm 10 sure when time and circumstances occur, as I have had a 11 lifelong belief they must occur, that the people will make the 12 right decisions about which institutions to attack. New York 13 City Board of Education could be such an institution. 14 Q. Now, when you say -- when I ask you about the 15 institutions -- withdrawn. 16 When I ask you about the use of violence against the 17 institutions, are you talking about buildings and structures? 18 A. No. I meant the generic form of the word "institution;" 19 those structures, I guess you would call them, not the 20 buildings but the structures themselves that hold the keys to 21 power. 22 Q. Well -- 23 MR. TIGAR: Your Honor, I'm -- 24 THE COURT: Yes. Why don't we -- let's take a break 25 for ten minutes, ladies and gentlemen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8370 4b8esat4 Stewart - cross 1 Please remember my continuing instructions. Please 2 don't talk about the case at all. Always remember to keep an 3 open mind until you've heard all of the evidence. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8371 4b8esat4 Stewart - cross 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, I object to any continuation 3 of this line of questioning. Ms. Stewart's political views are 4 abstract political views about some future events, have been 5 explored, and we're getting perilously close to buildings, 6 bridges, tunnels and other matters that I respectfully submit 7 are irrelevant. 8 I think the prosecutor has had ample opportunity to 9 explore the entirely First Amendment protected views of this 10 person. 11 MR. DEMBER: Your Honor, we haven't -- we've just 12 started our exploration here. We haven't -- this was open 13 to -- defense had Ms. Stewart testify about this, and we should 14 be entitled -- I believe we're entitled to question her about 15 her beliefs, her understandings, her feelings about the use of 16 violence. It's virtually -- it's clearly relevant to the 17 Counts 4 and 5 of this indictment, and we've just got it 18 started, your Honor. I don't think we should be limited. 19 May I also make a request once we finish this 20 argument, your Honor. 21 THE COURT: I'm sorry? 22 MR. DEMBER: May I make a request of the Court once 23 this part of the argument is completed. If your Honor needs 24 further -- a request that's not related to the immediate issue 25 of whether this form of questioning is relevant and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8372 4b8esat4 Stewart - cross 1 permissible. 2 THE COURT: No, the objection is overruled. It's a 3 subject that was opened on the defendant's direct testimony. 4 And what the meaning of that testimony is with respect to her 5 intent and state of mind with respect to the charges in this 6 case, and in particular to the use of violence as it is related 7 to the charges in this case, is not irrelevant and has not 8 strayed into an impermissible area. 9 I should also note that the defendant affirmatively 10 presented her views with respect to the directed violence on 11 direct examination. And the government should be permitted to 12 explore how that relates to the charges in this case. 13 MR. TIGAR: If your Honor please, I recognize the 14 Court has ruled, but on direct examination I asked Ms. Stewart 15 about the Fried article. She answered. That's where this was. 16 The crimes charged in Count 4 and 5 have intent 17 elements. They have to do with the intent to join some 18 conspiracy to kill or kidnap persons in a foreign country. 19 Now, the discussion is about the United States and buildings 20 and so forth and so on. Now, I concede that Ms. Stewart in 21 answer did mention her own views about her country. But, your 22 Honor, once this thing -- once this genie gets out of the 23 bottle -- and that's why we didn't object until now -- what we 24 have is a species of propensity evidence. 25 Ms. Stewart believes certain things. Every single one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8373 4b8esat4 Stewart - cross 1 of us is protected by the First Amendment and, therefore, it is 2 more likely that she had the mental element required in Count 4 3 and 5? 4 Your Honor, I respectfully submit the connection is 5 not there, and to the extent that it is there, that 403 6 requires the exclusion. That's our position. I recognize the 7 Court has ruled. 8 THE COURT: All right. Surely there may come a time 9 when the 403 objection is valid and where the examination goes 10 beyond what is reasonably relevant to the charges in the case 11 and to explore what the defendant herself said on direct. That 12 time has not come. 13 Mr. Dember? 14 MR. DEMBER: Your Honor, I have one request, and we 15 can cite the cases. We have the cases for you if you need 16 them. I'm requesting during this break that Ms. Stewart be 17 directed not to consult with her attorney about this line of 18 questioning. 19 This break came in the middle of this line of 20 questioning, and I believe the authority permits us to make 21 such a request. And we ask your Honor to direct that 22 Ms. Stewart not consult with Mr. Tigar during this break about 23 this testimony, meaning the testimony about her understanding, 24 her belief about when violence is appropriately used. 25 THE COURT: Mr. Tigar? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8374 4b8esat4 Stewart - cross 1 MR. TIGAR: Yes, your Honor. The Supreme Court has 2 held that your Honor can direct Ms. Stewart not to talk to 3 anybody about -- not just to Mr. Tigar, though it is 4 particularly dangerous and more dangerous than anybody else, 5 about her testimony during the brief break. Overnight -- the 6 Gedders case would say that overnight wouldn't do it. 7 I hadn't intended to speak to her about it anyway. 8 She can carry her own water. And I accept an admonition, 9 whether given or not. I just won't talk to her. 10 THE COURT: I accept your representation. I haven't 11 given an admonition, and I am familiar with the cases. And I 12 simply accept your representation. There you go. 13 OK. 14 (Recess) 15 THE COURT: All right. Ms. Stewart is on the stand, I 16 believe. Let's bring in the jury. 17 MR. TIGAR: Your Honor, may I have a continuing 18 objection on this line. 19 THE COURT: Well, you made an objection but I -- you 20 know, I -- you're welcome to make any other objections. I've 21 already indicated there are obvious limits. We're not -- 22 MR. TIGAR: I understand, but may I be taken as 23 objecting to everything that happens until I stand up again and 24 make another objection? I don't want to be standing up after 25 every question, your Honor, but I do want to preserve my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8375 4b8esat4 Stewart - cross 1 record. 2 THE COURT: All right. 3 MR. TIGAR: Thank you. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8376 4b8esat4 Stewart - cross 1 (In open court; jury present) 2 THE COURT: Ms. Stewart is on the stand. 3 Mr. Dember -- Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded 5 you're still under oath. 6 THE WITNESS: Yes. 7 THE COURT: Mr. Dember, you may proceed. 8 BY MR. DEMBER: 9 Q. Ms. Stewart, under the circumstances you described before, 10 do you believe in directed violence towards individuals? 11 A. I just want to be very clear that what I mean is that when 12 time and circumstance -- and there is a popular uprising 13 supported by people, indeed there may be violence directed in 14 many directions. Think of the violence that was directed 15 against the institution of slavery, for example, when that was 16 overcome. It ended up in a civil war in this country. 17 But that's what I mean. I can't choose and wouldn't 18 dream of choosing, quote, targets. But I'm saying to you that 19 I think that is not unjustifiable. 20 Q. Ms. Stewart, do you recall saying to Mr. Fried when he 21 interviewed you the following, quote, I don't believe in 22 anarchistic violence but in directed violence. That would be 23 violence directed at the institutions which perpetuate 24 capitalism, racism and sexism, and at the people who are the 25 appointed guardians of those institutions and accompanied by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8377 4b8esat4 Stewart - cross 1 popular support; do you remember saying those words to 2 Mr. Fried? 3 A. Yes. 4 Q. Do you remember at that time not limiting your comments to 5 the United States when talking about institutions and guardians 6 of those institutions against whom you believe directed 7 violence would be appropriate under those circumstances? 8 A. I believe in the right to self-determination. I think that 9 in other parts of the world people may also work to rid 10 themselves of oppressive regimes. I gave the examples of South 11 Africa and Northern Ireland, and I believed that when I said it 12 then, and I still believe it today. 13 Q. Ms. Stewart, in this article you didn't refer to oppressive 14 governments, did you? You referred to institutions which 15 perpetuate capitalism, racism and sexism, is that right? 16 A. Yes. I'll be clear: The government is certainly one of 17 those institutions. 18 Q. My question was: You didn't limit your thoughts and your 19 opinions at that time in 1995 when you spoke to Mr. Fried 20 simply to the United States government, did you? 21 A. Oh. I thought you asked me the opposite question. No, not 22 at all. 23 Q. And, in fact, in that same conversation with Mr. Fried, did 24 you not also tell him that in your view the only hope or the 25 best hope for Egypt was the fundamentalist movement? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8378 4b8esat4 Stewart - cross 1 A. I think I said it was, in my view, after the reading I've 2 done and discussions I've had, it was the only thing that could 3 move the majority of the people. And that's what we're talking 4 about, a people's movement that would bring about change, the 5 Islamic movement. 6 Q. The Islamic fundamentalist movement? 7 A. Yes, fundamentalist in this case. 8 Q. Now, Ms. Stewart, I asked you before, or asked you some 9 questions before about what you had said about your view of the 10 events of Luxor, is that right? 11 A. My view of Luxor? Yeah. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8379 4B85SAT5 Stewart - cross 1 BY MR. DEMBER: 2 Q. And do you remember saying specifically: My personal view 3 is that it was absolutely deplorable that people, civilians, 4 tourists are not combatants, are not to be targets, and that 5 this massacre, as it took place, was indefensible. 6 Do you remember testifying to that here in court? 7 A. Yes. 8 Q. Did you also tell us, during the course of your testimony, 9 particularly when reviewing with Mr. Tigar the recordings of 10 your visit in May 2000 -- withdrawn. 11 Do you remember during your discussion with Mr. Tigar 12 about the visit in May 2000 discussing with him the references 13 in the tape recorded conversations about Abu Sayyef? 14 A. Yes. You're referring to my direct examination? 15 Q. Yes, I am. 16 A. Yes. 17 Q. Do you remember discussing the group Abu Sayyef that was in 18 the Philippines, is that right? 19 A. Yes. 20 Q. And do you remember, in response to questions by Mr. Tigar, 21 indicating that you were against taking of hostages, certainly 22 in that situation, and I believe you indicated in any 23 situation, is that right? 24 A. That would be fairly said, yes. 25 Q. Was certainly your view of Luxor was a view held back in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8380 4B85SAT5 Stewart - cross 1 1997 when you learned what happened to Luxor, at Luxor? 2 A. I would think so, yes. 3 Q. And the view that you expressed in the answer I just read 4 back about the fact that it is deplorable and indefensible what 5 happened there? 6 A. Yes. 7 Q. That's your view today as well? 8 A. That is my view. 9 Q. And has that always been your view about the taking of 10 lives of non-combatants in armed struggle? 11 A. Well, I think my view is that it happens. It happens in 12 Iraq today. It happens because unfortunately you can't always 13 separate out the combatants from the non-combatants. 14 But if it could be separated out and certainly to 15 target, I don't think that is permissible. 16 Q. Ms. Stewart, do you remember giving an interview in 2002 to 17 a New York Times reporter named George Packer? 18 A. Yes. 19 Q. And that was at a time after you had been charged in this 20 case, is that right? 21 A. It was the September following, six months later it 22 appeared. The interviews took place over a period of time 23 during the summer. 24 Q. And again, with respect to that article, you were -- it was 25 essentially a profile of you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8381 4B85SAT5 Stewart - cross 1 A. Yes. 2 Q. And Mr. Packer asked you a number of questions about 3 yourself, is that right? 4 A. Sat in my backyard with his dog and ate my bagels and asked 5 me questions; yes, Mr. Packer did. 6 Q. And he asked you questions, did he not, about your view of 7 civilian deaths in armed struggle, did he not? 8 A. Yes. 9 Q. And did you say to him, back then, "I am pretty inured to 10 the notion that in a war or in an armed struggle people die. 11 They're in the wrong place, they're in a night club in Israel, 12 they're in a stock market in London, they're in the Algerian 13 outback, whatever it is. People die. So, I have a lot of 14 trouble figuring out why that is wrong, especially when people 15 are sort of placed in a position of having no other way." 16 Did you say those things to Mr. Packer? 17 A. Yes, I think I didn't say too much differently to you a 18 moment ago. 19 Q. You have a lot of trouble figuring out why it's wrong that 20 people in a night club in Israel would be targeted for violence 21 in an armed struggle? 22 A. I have a lot of trouble figuring out the nuance, I believe, 23 between people who are forced to live in Gaza under Israeli 24 rule and the foot that they may feel on their neck and their 25 unleashing, and that bad things have happened to them and they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8382 4B85SAT5 Stewart - cross 1 are reacting to the bad things that have happened to them. 2 It's bad on both sides. That's what I have trouble 3 figuring out. It's so bad on both sides. 4 Q. Is it your view, when you said to Mr. Packer or made 5 reference to a night club in Israel, were you referring to an 6 attack on civilians in a night club in Israel? 7 A. I'm referring to the fact that people get killed who are in 8 proximity and sometimes it's completely unfair. But then the 9 people who are doing the attacking, they see their lives as 10 also being completely unfair. And that's what I have a hard 11 time parsing the difference. 12 Q. Well, when you made reference to a night club in Israel you 13 were referring, were you not, to the Israeli-Palestinian 14 conflict, is that right? 15 A. Yes. 16 Q. And was it your view, when you made that statement, that 17 people participating in the social life of a night club in 18 Israel were combatants or participants in that conflict? 19 A. No. But no more were a father and his young son that were 20 murdered by an Israeli tank. 21 I am saying that people, ordinary people are in the 22 wrong place at the wrong time and sometimes this happens. 23 Q. And you don't know what's wrong with that? 24 A. I know what's wrong with the world that causes this to 25 happen, but I don't see an easy solution to these problems. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8383 4B85SAT5 Stewart - cross 1 And I certainly don't see that continued oppression -- 2 the status quo is the answer for people who feel the boot of 3 oppression. 4 Q. Ms. Stewart, when you made reference to a stock market in 5 London, were you referring to the British-North Ireland 6 conflict? 7 A. Yes. 8 Q. And was it your view that business people, stockbrokers and 9 other people in a stock market in London were combatants in 10 some armed struggle? 11 A. No. 12 But as I just explained, my view is that the persons 13 who may or may not have carried out that attack, they certainly 14 knew the boot in Northern Ireland, the one that fit so tightly 15 around the Catholic foot -- that they are oppressed, they have 16 been fighting this fight for at least 200, 250 years. 17 MR. DEMBER: May I have a moment, your Honor? 18 THE COURT: Yes. 19 BY MR. DEMBER:: 20 Q. Ms. Stewart, during your testimony you have made reference 21 various times to your ethical obligations as a lawyer, have you 22 not? 23 A. I have. 24 Q. And you have made reference to the ethical roles that 25 lawyers operate under, have you not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8384 4B85SAT5 Stewart - cross 1 A. I have. 2 Q. And you have cited, without specifically citing a 3 particular section or rule, sections of the ethical rules in 4 explaining some of your conduct, have you not? 5 A. I have. 6 Q. And the ethical rules that lawyers are required to follow 7 are governed by each state that they operate in, is that 8 correct? 9 A. That is my understanding, yes. 10 Q. And you, as a lawyer who works in New York, certainly would 11 be obligated when working in New York, to follow the 12 disciplinary rules, the ethical rules that pertain to New York, 13 is that correct? 14 A. Yes. 15 Q. And you understand, do you not, that there is certainly a 16 difference between an ethical rule or a disciplinary rule and 17 ethical consideration, is that right? 18 A. I ask you to define that for me. Do you mean the ECs as 19 they are defined in New York, the observations on the canon of 20 ethics? Is that -- 21 Q. Under the New York Code of Ethics, essentially, there is 22 two different parts of it, there is what's called disciplinary 23 roles, is that right? 24 A. Yes. 25 Q. Those are rules that lawyers must comply with, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8385 4B85SAT5 Stewart - cross 1 A. Yes. We are obligated to follow those. 2 Q. And if we fail to follow those rules we can be disciplined? 3 A. Yes. 4 Q. And there is something else in the code of ethics referred 5 to as ethical considerations, is that right? 6 A. Yes. 7 Q. And those are not rules, correct? 8 A. No. They're basically observations on a, as I understand 9 it, particular canon of ethics. 10 Q. And if one doesn't comply with an ethical consideration one 11 can't be disciplined, is that right? 12 A. I don't know that to be true, but. 13 MR. DEMBER: Your Honor, may I approach the witness? 14 THE COURT: Yes. 15 Q. Ms. Stewart, I'm going to hand up to you a document we've 16 marked for identification as Government Exhibit 601. Why don't 17 you take a look at it for a moment. 18 Have you had a chance to look at that, Ms. Stewart? 19 A. I have only looked at the first pages. It's not set up the 20 way the one I have at the office is, this is -- 21 Q. Ms. Stewart, these are just selected, are they not? 22 A. They're selected. 23 Q. Selected sections of the Code of Professional 24 Responsibility with some of the ethical considerations and some 25 of the disciplinary rules included, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8386 4B85SAT5 Stewart - cross 1 A. Yes. 2 Q. This is not the whole volume, is it? 3 A. No, it's not the whole volume. 4 Q. Before I refer to the document and we talk about the 5 document a bit -- 6 A. Let me continue paging through it so I see exactly what is 7 here. Would that be all right? 8 Q. Why don't you wait and we will go through it together. Can 9 we do that? Why don't we do that together. 10 Before we do that -- 11 THE COURT: Wait. If the witness wants to thumb 12 through the whole document, then. 13 MR. DEMBER: That's fine, your Honor. 14 THE WITNESS: Thank you. (pause) 15 Thank you Mr. Dember. 16 Q. Do they look familiar to you? 17 A. Yes. Different form but same rules. 18 Q. These are selected disciplinary rules and ethical 19 considerations from the Code of Ethics, is that right? 20 A. Yes. 21 Q. Before I ask you anything about the document that you have 22 looked through, let me ask you to just a general question 23 first. 24 Sometime in your direct testimony you indicated, I 25 think, that your belief was that a client of yours who is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8387 4B85SAT5 Stewart - cross 1 incarcerated has a right to an attorney even after his 2 conviction is obtained, appeal process has been gone through 3 and the conviction is affirmed. 4 Is that a fair statement? 5 A. Yes. 6 Q. And when you said a client had a right to an attorney and a 7 right to counsel, is that based on the law or the constitution, 8 or is that a personal belief that when you represent a client 9 you believe that person should be represented until the person 10 is no longer incarcerated? 11 A. Well, I think through appeal he has or she has an absolute 12 right to counsel and that is uninterrupted that right. 13 Certainly once appeals have been exhausted there is no right. 14 There certainly no right to compensated counsel. 15 But I think if the client requests counsel to continue 16 or makes it clear that they rely upon counsel or need counsel, 17 that counsel then also should continue. 18 I try to think that I'm available to all my clients 19 who are incarcerated should something come up that they can use 20 my help in. 21 Q. Now, Ms. Stewart, you mentioned in particularly 22 representing Abdel Rahman, certainly during his trial and 23 perhaps afterwards, that you felt that your responsibility was 24 to deal with and talk with the media about his case, is that 25 accurate? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8388 4B85SAT5 Stewart - cross 1 A. Yes. 2 Q. And is there any ethical requirement that a lawyer speak to 3 the media during the course of representation of a client? 4 A. No. 5 But in my view, given the world in which we live, it 6 falls under zealous advocacy; that to be zealous in your 7 advocacy you must, in some way, deal with the, this 8 overwhelming -- how should I call it -- avenue of information. 9 Q. Are you aware of the fact that some lawyers don't believe 10 in talking to the media in representing their clients and 11 nevertheless do so zealously? 12 A. Yes. That's one of the things about the rules of ethics, 13 it calls upon each lawyer to make calls for themselves and do 14 it in accordance with the law and the rules of ethics. 15 MR. DEMBER: Your Honor, I would offer into evidence 16 Government Exhibit 601. This is the document Ms. Stewart just 17 finished reviewing. It is tendered only as I indicated, your 18 Honor, as a small section, subsection of the rules of 19 discipline -- the disciplinary rules themselves. I'm sorry. 20 MR. TIGAR: We would need to be heard on that if we 21 could, your Honor, please. 22 THE COURT: Yes, right. 23 Sustained at this point. 24 BY MR. DEMBER:: 25 Q. Ms. Stewart, are you aware of the fact, certainly, that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8389 4B85SAT5 Stewart - cross 1 rules, the ethical rules, certainly, require that a lawyer 2 refrain from certainly illegal or morally reprehensible 3 conduct. That's a given, is it not? 4 A. It is a given. 5 Q. And you are aware of the fact that certainly lawyers, it is 6 actually a rule that attorneys shall not engage in illegal 7 conduct that adversely reflects on the lawyer's honesty, your 8 trustworthiness or fitness as a lawyer, is that right? 9 A. That's correct. 10 Q. And a lawyer is prohibited from engaging in any conduct 11 involving dishonesty, fraud, deceit or misrepresentation, 12 correct? 13 A. Yes. 14 Q. And a lawyer is also prohibited, by disciplinary rule, to 15 engage in conduct that is prejudicial to the administration of 16 justice, is that right? 17 A. Yes. That's the rule. 18 Q. Now, I think you indicated a number of times that it's an 19 ethical consideration, you believe, that the duty of a lawyer 20 both to a client and to the legal system is to represent the 21 client zealously within the bounds of the law which includes 22 the disciplinary rules and enforceable professional 23 regulations, is that right? 24 A. Yes. My understanding is that in representing a client 25 zealously one fulfills the ethical considerations to the system SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8390 4B85SAT5 Stewart - cross 1 as such. 2 Q. And you're aware of the fact also that the disciplinary 3 rules require of course that a lawyer should never encourage or 4 aid a client in committing a criminal act or counsel a client 5 on how to violate the law or to avoid punishment for violating 6 the law, is that right? 7 A. Yes. I think every criminal lawyer learns that line very 8 early in their career. 9 Q. And you are aware of the fact, are you not, Ms. Stewart, 10 that there is an actual rule, disciplinary rule that says in 11 representing a client a lawyer shall not knowingly make a false 12 statement of law or fact? 13 Are you aware of that fact? 14 A. Yes. 15 Q. And also aware of the fact that a lawyer shall not 16 knowingly engage in other illegal conduct or conduct contrary 17 to a disciplinary rule? 18 A. Yes. 19 Q. Now, Ms. Stewart, let's move ahead to June 20th, 2000. Do 20 you recall a conversation you had with Lisa Sattar after the 21 press release was issued and the press release made its way 22 into the newspapers in the Middle East? 23 A. Yes. 24 Q. And during that conversation do you recall telling Lisa 25 Sattar, in substance, that you were going to go and appear, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8391 4B85SAT5 Stewart - cross 1 believe at Mr. Clark's office for the next legal telephone call 2 with your client Abdel Rahman, and part of the reason was you 3 wanted to see whether the government would allow to you 4 participate in that call. Is that right? 5 A. Yes. I knew what my view of what I had done was but I was 6 not sure what Pat Fitzgerald's view of what I had done would 7 be. 8 Q. And prior to that day -- that was June 20th, 2000? Do you 9 remember that being the day? 10 A. I thought it was almost closer to -- the day I had the 11 conversation with Mrs. Sattar? 12 Q. No. I'm sorry, the day you went to participate in that 13 telephone conversation. 14 A. Yes, this would be June 20th. 15 Q. Now, before June 20th, 2000 but after the release or the 16 issuance of the press release you became aware, were you not, 17 that after your press release was reported in the Middle East, 18 there were people in Egypt who were questioning the validity 19 and the veracity of your press release? 20 Did you learn that? 21 A. That's correct. 22 Q. And you also learned that there were people in the Middle 23 East, in Egypt, who were questioning whether or not the press 24 release was somewhat of a fabrication and blaming Mr. Sattar 25 for putting out such a press release? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8392 4B85SAT5 Stewart - cross 1 Was that your understanding? 2 A. That was my understanding, yes. 3 Q. And was it your purpose -- was it also another purpose of 4 being present and speaking with your client on June 20th, not 5 only to see what the government would do, meaning let you on 6 the phone call or not, but also to discuss with your client 7 essentially what the press release was and these stories coming 8 out of the Middle East that were questioning the validity of 9 the press release? 10 A. Yes, it was my purpose. 11 Q. And you did in fact talk to your client on that day, did 12 you not? 13 A. I did. 14 Q. And Mr. Yousry was present translating for you? 15 A. Yes. 16 Q. Do you remember if there was anybody else present during 17 that call? 18 A. No one else present. 19 Q. And do you remember where the call took place? Was it in 20 your office or Mr. Clark's office? 21 A. I think it was in Mr. Clark's office. I think it was in 22 Mr. Jabara's office, actually. 23 Q. And I believe you told us -- well, that particular 24 telephone call was not recorded, is that correct, by the 25 government? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8393 4B85SAT5 Stewart - cross 1 A. No, that was before calls were recorded. 2 Q. And you discussed with your client -- well, did you discuss 3 with your client the statement that actually had been issued by 4 you? 5 A. I believe Mr. Yousry read him the newspapers on that 6 occasion. 7 Q. And included -- when you say read the newspapers, did he 8 read -- to your knowledge, Mr. Salaheddin's article? 9 A. Yes. That's what I meant by the newspapers regarding the 10 press release. 11 Q. And did Mr. Yousry also read to your client newspaper 12 accounts or reports in which the veracity of the press release 13 was being questioned? 14 A. I think he did, yes. 15 Q. And those reports also included the question of whether 16 Mr. Sattar had fabricated the statement or perhaps was working 17 with the United States government? 18 A. I believe that at least one of the reports had covered 19 Muntasir Al-Zayat's press conference and that was an issue that 20 was raised by Al-Zayat. 21 Q. And at some point -- well, during your conversation with 22 your client, did he direct you or ask you to issue a new press 23 release? 24 A. He didn't, but he made some corrections in things that had 25 happened and it seemed to me, given the totality of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8394 4B85SAT5 Stewart - cross 1 circumstances, that was the best thing to do. 2 Q. Did you tell your client you were going to do that? 3 A. I probably did. I -- without anything to refresh me I 4 don't remember. 5 MR. DEMBER: May I have a moment, your Honor? 6 THE COURT: Yes. 7 MR. DEMBER: May I approach, your Honor? 8 THE COURT: Yes. 9 Q. Ms. Stewart, I'm going to hand up to you so maybe it will 10 be easier to handle, Government Exhibit 2663 in evidence. 11 MR. DEMBER: Your Honor, may I display the exhibit for 12 the jury? 13 THE COURT: Yes. 14 Q. Ms. Stewart, this is, I'm putting the front of the exhibit 15 on the Elmo for the jury to see. Attached to the, on the first 16 page I guess of the exhibit is some kind of a note, is that 17 right? 18 A. Yes. 19 Q. And then just below that is something that says: For 20 release. 21 Is this the press release which was prepared after 22 your conversation with your client on June 20th, 2000? 23 A. You mean the top note? The handwritten note? 24 Q. No, I'm talking about the second page. 25 A. Oh yes. That was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8395 4B85SAT5 Stewart - cross 1 Q. And this is essentially the clarification of the earlier 2 press release that you issued? 3 A. Yes. 4 Q. And this was prepared after your conversation with your 5 client, correct? 6 A. Yes. 7 Q. And did you -- first of all, who wrote this clarification? 8 A. He apparently dictated it -- not apparently. He dictated 9 it over the phone and Mr. Yousry took it down in his notebook 10 and read it back to me. 11 Q. And when Mr. Yousry and your client were talking on the 12 phone and your client was dictating, did you participate in the 13 conversation while that was happening? Or did Abdel Rahman 14 simply dictate and Mr. Yousry write down what he was saying? 15 Were you participating in that conversation? 16 A. No, I think we went through what had been -- we spoke to 17 him that there were press reports. We read to him the press 18 reports. 19 And I am thinking back, Mr. Dember, I think that was 20 at my office at 351 Broadway. I don't think that call was 21 taken at Mr. Clark's. But, as I say, the place is probably not 22 too important anyway. 23 But at any rate, this was dictated by the Sheikh in 24 response to what we told him had been reported in the press. 25 Q. Let me just, just so the jury sees the whole document, it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8396 4B85SAT5 Stewart - cross 1 goes all the way down to the bottom there and it is dated June 2 20th, 2000, the same day? 3 A. Yes. 4 Q. Now we will go to the top of the document just to give 5 perspective. 6 When -- this document was found in your office, 7 correct? 8 A. When it was found? 9 Q. This document, that is Exhibit 2663, was seized from your 10 office by the FBI during the search, is that right? 11 A. Yes. Yes. 12 Q. And when -- you were with Mr. Yousry and your client was 13 dictating this clarification, was Mr. Yousry writing that down 14 in Arabic or in English? Do you remember? 15 A. Probably Arabic. His notes were basically taken in Arabic. 16 Q. Who created this document, the Exhibit 2663, which 17 obviously is in English -- who created this document? 18 A. If you are talking about the "for release" and then the 19 Arabic of the for release -- 20 Q. Well, let's go with what's on the on the Elmo which says 21 For Release. Who created this particular page of the exhibit? 22 A. When you say create, you mean who wrote it out in English? 23 Q. No. Well, first this is a typed document, is it not? 24 A. Yes. 25 Q. So somebody had to type it, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8397 4B85SAT5 Stewart - cross 1 A. Yes. 2 Q. Who typed it? 3 A. Mr. Sattar, I believe. 4 Q. Was Mr. Sattar with you during the call? 5 A. No. I think he came in shortly thereafter. 6 Q. And how did Mr. Sattar do this, did he have Mr. Yousry 7 dictating to him? Did he take Mr. Yousry's notes? 8 Can you describe for us how that was done? 9 A. I don't remember how that was done. He could have copied 10 Mr. Yousry's notes, it could have been dictated to him. 11 I just remember that he took it, he created this and 12 the Arabic translation of this. 13 Q. Let me just -- I know you don't speak Arabic but this 14 apparently is the next page of this exhibit. Is it your belief 15 that this is the Arabic version of the document we just saw? 16 A. Well, it's my belief but I think the government also 17 introduced a translation of that document, did they not? 18 Q. Well -- 19 A. In other words, a double translation. It was my belief 20 that that was the translation and as I said. 21 Q. This exhibit? 22 THE COURT: Whoa, whoa, whoa. I'm sorry. 23 MR. DEMBER: Sorry. 24 THE COURT: The reporter can only get one person 25 talking at the same time, so. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8398 4B85SAT5 Stewart - cross 1 THE WITNESS: I'm sorry. 2 THE COURT: No, no. That's all right. And I'm not 3 sure that the answer was finished. 4 THE WITNESS: I just said, as I sit here today, I 5 think I believe that that is the translation of what is the 6 English on 2663. 7 BY MR. DEMBER:: 8 Q. Now, I believe you said in your direct testimony that you 9 issued this release, this clarification at some point in time, 10 is that right? 11 A. Yes. I think it was sent the same day. 12 Q. And did you send it to somebody? 13 A. It was faxed under my -- my cover sheet. It may have been 14 the next day, it may not have been the same day. It may have 15 been sent back to me and then I sent it out. But it was very 16 proximate in time, I remember that. 17 Q. Well let me -- one of the next few pages of the same 18 exhibit appears to be a fax cover sheet from your office, is 19 that right? 20 A. Yes. Yes. 21 Q. And it's dated the next day, June 21st, 2000, is that 22 correct? 23 A. Yes. 24 Q. And it appears to have the name Esmat Salaheddin? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8399 4B85SAT5 Stewart - cross 1 Q. And it indicates it is from you, correct? 2 A. Yes. 3 Q. Do you remember having it faxed to Mr. Salaheddin? 4 A. That's not my handwriting on the cover sheet. It may have 5 been done by my office, in other words faxed -- Mr. Sattar 6 would have faxed it back to the office and then they would have 7 faxed it to Mr. Salaheddin. 8 It doesn't have any kind of fax line at the top I 9 notice. 10 Q. Do you recognize the handwriting on the fax cover sheet? 11 A. No, I just said that is not my handwriting, I think 12 that's -- I'm not sure. I had a lot of people working for me 13 back then. 14 Q. My question was do you recognize the handwriting? 15 A. No, I don't recognize it. 16 THE COURT: Why don't we take a break at this point. 17 Ladies and gentlemen, we will break. Please remember 18 my continuing instructions not to talk about the case at all, 19 always remember to keep an open mind until you have heard all 20 of the evidence, I have instructed you on the law and you have 21 gone to the jury room to continue deliberations. 22 Have a good break. See you shortly. 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8400 4B85SAT5 Stewart - cross 1 (Jury not present) 2 THE COURT: Ms. Stewart may step down. See you 3 shortly. 4 (Witness steps down) 5 MR. TIGAR: Your Honor, does the government intend to 6 press -- 7 MR. DEMBER: No, I do not. 8 MR. TIGAR: -- 601? 9 MR. DEMBER: No. 10 MR. TIGAR: Good. 11 THE COURT: Okay. 12 (Recess) 13 THE COURT: May we have Ms. Stewart on the stand, 14 please? 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8401 4B85SAT5 Stewart - cross 1 (Jury present) 2 THE COURT: Ms. Stewart is on the stand. 3 Mr. Fletcher. 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 5 are still under oath. 6 THE WITNESS: Yes. 7 THE COURT: You may proceed. 8 MR. DEMBER: Thank you, your Honor. 9 BY MR. DEMBER:: 10 Q. Ms. Stewart, do you recall during the May 20th, 2000 visit 11 you had with your client, Abdel Rahman, having a conversation 12 with Mr. Yousry about whether or not Abdel Rahman had any more 13 legal business that could be conducted on his behalf? 14 Do you remember that? 15 A. Only vaguely I think there was some discussion. 16 MR. DEMBER: Your Honor, may I display for the jury 17 and for Ms. Stewart's benefit, some pages from Government 18 Exhibit 1712X, which is in evidence? 19 THE COURT: Yes. 20 MR. DEMBER: May I, your Honor? 21 THE COURT: Yes. 22 Q. Ms. Stewart, that is the first page of Exhibit 1712X, and I 23 specifically am referring to page 18. 24 Do you recall Mr. Yousry, toward the top of the page, 25 saying words to the effect: Fitzgerald allows us up to now the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8402 4B85SAT5 Stewart - cross 1 two calls a week, even though we have no legal business? You 2 think that is because of generosity or he is waiting for us to 3 collapse? 4 Do you remember that? 5 A. I remember the remark now that it's being read, yes. 6 Q. And then go down to line 15. Do you see line 15 there 7 where it says you say: And the second thing is, he doesn't 8 want to to say that he has no more legal business because 9 clearly this is legal business. Complaining about his 10 conditions; being able to talk to his lawyers. You know, 11 there's always a situation that a prisoner may have. 12 And you are referring to Abdel Rahman there, is that 13 right? 14 A. Yes. 15 Q. And then you can go down a few lines to line 26, you say: 16 Or we could ask, be working on clemency positions. I mean, we 17 could work on anything, ah. 18 Right? Remember that? 19 A. Yes. 20 I think a couple lines back though I had said that Pat 21 Fitzgerald didn't want to be second-guessing whether or not 22 there was legal work going on by cancelling the calls, so. And 23 that in fact there was legal work going on and in fact we could 24 be working on any number of things that he might consider legal 25 work. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8403 4B85SAT5 Stewart - cross 1 Q. Let me show you the top of page 19, there you go on to say: 2 We could be working on going back into court with 3 newly-discovered evidence. I mean, you know, a person in 4 prison's -- legal things are not finished, that's all I can 5 tell you. As far as I'm concerned, as long as you stay in 6 jail, you legal cond -- are never ended. The fight must go on. 7 Do you remember that part of the conversation? 8 A. Yes. 9 Q. So, do you recall during the conversation talking about the 10 various types of legal business that you may have had at the 11 time or that you could have in the future in representing your 12 client Abdel Rahman, is that right? 13 A. Yes. 14 Q. Is it fair to say though, for example, that in terms of his 15 underlying conviction and the appeal that was filed, that was 16 at that point resolved, correct, in May 2000? 17 A. Yes. 18 Q. And the request for the United States Supreme Court to 19 review the case, that also had been resolved -- they decided 20 not to review the case by May 2000 as well, correct? 21 A. That's correct. 22 Q. And certainly during the May 2000 visit, before then and 23 after then there was always talk of this lawsuit that would be 24 filed challenging the conditions of Abdel Rahman's confinement, 25 correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8404 4B85SAT5 Stewart - cross 1 A. Right. 2 Q. And when you mentioned this concept, newly-discovered 3 evidence that we saw in the transcript a moment ago? 4 A. Yes. 5 Q. That's a legal -- that's legal terminology or legal 6 language for basically the possibility of you, at some point in 7 the future, if you ever found newly-discovered evidence in the 8 case, seeking to get a new trial for your client. Is that 9 right? 10 A. Yes, that was surmise. 11 I think the one thing I may have left out though, in 12 rereading it here, is the notion of this exchange of trying to 13 arrange a prisoner exchange in some way. 14 Q. Right. Let me just stay, for the moment, with the 15 newly-discovered evidence; that if you had come across what you 16 call newly-discovered evidence that pertained to Abdel Rahman's 17 trial itself, you could go to court and seek the Court's 18 permission or ask the Court to essentially give your client a 19 new trial, correct? 20 A. Yes. If Emad Salem came forth and said I really made those 21 tapes myself, then that would be a ground to come in and ask 22 for new trial. 23 Something like that. 24 Q. During the entire time that you represented your client 25 Abdel Rahman since his conviction, did you ever come across SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8405 4B85SAT5 Stewart - cross 1 newly-discovered evidence? 2 A. No. Except that I know Nasser's arrest and detention may 3 have triggered something about interfering in the right to 4 counsel but I don't think we considered it to rise to that 5 level that we could question whether or not, since he never did 6 agree to help the government out even though he was asked to. 7 Q. Okay, but did you ever petition the Court to, for a new 8 trial based on the fact that the government had asked Nasser 9 Ahmed to cooperate? 10 A. No, never. 11 Q. So you never had gone into court and claimed you had some 12 newly-discovered evidence which would warrant a new trial for 13 your client? 14 A. No, we never did. 15 Q. And you mentioned in the transcript that you just read the 16 concept of clemency; would you explain to the jury what 17 clemency is? 18 A. Well, that's a petition that is made to the president of 19 the United States through his office to see if there is a 20 possibility that he or she would grant clemency. It's an 21 executive pardon is what it is. 22 Q. And did you or any other lawyers representing Abdel Rahman 23 ever seek clemency for Abdel Rahman? 24 A. No, we never did. 25 Q. And you mentioned the possibility of a transfer, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8406 4B85SAT5 Stewart - cross 1 right? 2 A. Yes. 3 Q. Or exchange I think you said; that was also possible matter 4 that was something that you and Mr. Clark were, or Mr. Clark 5 primarily was working on in terms of trying to get Abdel Rahman 6 sent back to Egypt, is that right? 7 A. Yes, that's exactly so. 8 Q. Now, did you play any role in those efforts to have Abdel 9 Rahman transferred back to Egypt? 10 A. I think I was kept in the picture during, once I had been 11 restored being able to -- well, it wasn't -- let me start 12 again. 13 Once I was restored to being able to visit or take 14 telephone calls, which was almost a year after June of 2000, I 15 participated in discussions, we had some with the other 16 lawyers, and I'm pretty sure during that period of time, yes. 17 Q. Well, did you ever do some legal research to determine 18 whether, legally, Abdel Rahman could be transferred back to 19 Egypt? 20 A. I didn't, but I understood that it was by treaty and that 21 the, it was mainly -- it was State Department and Department of 22 Justice, and that this was where it had to be approached and we 23 all agreed, I believe, that Ramsey Clark was the person to make 24 any initial inquiries or to test the water, so to speak. 25 We also knew that in Egypt, or I think we knew -- we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8407 4B85SAT5 Stewart - cross 1 believed at any rate that Muntasir Al-Zayat was making similar 2 inquiries on that end of things. 3 Q. Well, when we talk about transfer, or you talk about 4 transferring Abdel Rahman from an American prison to an 5 Egyptian prison to serve his sentence, is that what you are 6 talking about? 7 A. Yes. 8 Q. Are you aware of the fact that there is a provision in the 9 law that deals with the transfer of an inmate or prisoner 10 serving a sentence in an American prison, being transferred to 11 a foreign country to serve the rest of his prison sentence in 12 that foreign country's prison system? 13 A. I don't think I could cite you chapter and verse but I, as 14 I testified on direct, I knew of cases where it in fact had 15 occurred. 16 Q. And were you aware of the fact that under that provision of 17 law, in order for an inmate or a prisoner to be eligible to be 18 transferred from an American prison to a foreign country's 19 prison, the United States would have to have a treaty with that 20 foreign country that allowed for such a transfer? 21 A. Yes. I think I just said that. 22 Q. Well, were you aware of the fact, Ms. Stewart, that the 23 United States of America and Egypt do not have a treaty that 24 covers that kind of transfer? 25 A. No, I don't think I was aware of that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8408 4B85SAT5 Stewart - cross 1 Q. Now as far as you know, Abdel Rahman was never transferred 2 to an Egyptian prison, is that right? 3 A. That's correct. 4 Q. And as far as you know, he's still serving his sentence in 5 an American prison? 6 A. Yes. 7 Q. Now, if I could, I just want to ask you some questions 8 about the first press release that you issued in which you 9 spoke by telephone with Esmet Salaheddin. 10 I think one of the first things you said to him or one 11 of the early things you said to him was that your client, Abdel 12 Rahman, was withholding -- withdrawing his support for the 13 cease-fire. 14 Is that correct? 15 A. Yes. 16 Q. And certainly in issuing that press release and stating 17 that he was withdrawing his support, that certainly had no 18 impact or would have no impact, would it, on your client's 19 conviction and sentence that was affirmed by the courts. Is 20 that right? 21 A. I'm not following your question, I'm afraid. 22 Q. I'm asking whether or not that press release in which you 23 announced that your client was withdrawing support for the 24 cease-fire would have any impact or was intended to have any 25 impact on your client's conviction and sentence? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8409 4B85SAT5 Stewart - cross 1 A. These things in our view were incremental, that his 2 reassertion of his presence within the Arabic world would be 3 important to future events for him. 4 The subject matter withdrawing his personal support 5 for the cease-fire was important to him and I have an 6 obligation to him of loyalty also. 7 So whether or not it would move any mountains I don't 8 think so. As a matter of fact I think it probably would be 9 pushed the other way. But still in all, this is what the 10 client asked me to do. 11 Q. I understand. But the question was though, was it intended 12 to impact or did you think it was going to impact his 13 conviction and sentence which were affirmed by the Courts? 14 A. I'm not sure I understand what you mean by have an impact 15 on. 16 Q. Well, did you intend, in issuing that press release, to in 17 some way impact his conviction and sentence in some favorable 18 way to Abdel Rahman? 19 A. Well, my only answer, I think, is that as long as he 20 remained a person and was someone that they had to account for 21 on the world scene, his chances for anything good happening 22 would be increased, that that was part of it. 23 But as I say, these things are incremental. Some 24 things further it better than other things. Certainly his 25 stamp of approval for the peace initiative would further that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8410 4B85SAT5 Stewart - cross 1 probably more than just saying that he had personally now had 2 questions about it or was withdrawing his support for the 3 cease-fire. 4 Q. Well, do you believe that when he -- or now when you 5 announced on his behalf that he was withdrawing his support for 6 the cease-fire, that would benefit his chances of getting his 7 conviction reversed? 8 A. What I'm having trouble with is are you using that as words 9 of art, as two lawyers would understand that? Or are you 10 saying -- 11 Q. Yes. 12 A. Okay, as two lawyers, no, it was not going to have his 13 conviction reversed. No. 14 Q. Well, as speaking lawyer-to-lawyer, with the issuance of 15 the press release in which he withdrew his support for the 16 cease-fire, was that going to benefit him in terms of filing a 17 petition to get a new trial based on newly-discovered evidence? 18 A. No. 19 Q. Was filing -- excuse me. 20 Was issuing that press release going to improve the 21 chances of his filing a lawsuit challenging the conditions of 22 his confinement or improve the chances of being successful in 23 such a lawsuit? 24 A. I think that our legal system does react differently to 25 people who are paid attention to. I think that the worst thing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8411 4B85SAT5 Stewart - cross 1 in the legal system is to just be nobody. And I think that to 2 that degree that he remains someone that did occupy a place on 3 the world scene, to that extent his lawsuit conditions -- his 4 conditions lawsuit would be improved, yes. 5 But, as I said, these things are incremental. Would I 6 say it would improve a hundred percent? Obviously not. But to 7 some degree it would be improved. 8 Q. You are saying that announcing in the media that your 9 client no longer supported the cease-fire was going to help him 10 in succeeding in a civil lawsuit trying to change the 11 conditions of his confinement? 12 A. Yes. That's what I'm saying. 13 Q. And when one says about a client he is withdrawing his 14 support for a cease-fire, is one not also saying that he is now 15 supporting what preceded that cease-fire? 16 A. I'm sorry. I'm not following that. 17 Q. When you say -- when you issued a statement in your 18 client's name announcing that he was withdrawing his support 19 for the cease-fire, were you not announcing to whoever received 20 that message or information that he was supporting what 21 preceded the cease-fire? 22 A. Not at all. Because his message was I think this ought to 23 be discussed. 24 Nobody rushed out and did anything. Indeed, as we all 25 know nothing happened subsequent to that and that the message SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8412 4B85SAT5 Stewart - cross 1 was corrected in less than a week to be personal support, 2 escalate the media, discuss this again. 3 So, with all of that, the answer would have to be no, 4 I didn't think. 5 Q. Well, didn't he continue to say in the statements you 6 issued that was dated June 20th, 2000, that he continued to 7 hold the same position which was he was withholding -- 8 withdrawing his support from the cease-fire? 9 A. He said that is my personal opinion. That does not mean to 10 end the cease-fire. I don't remember the exact words he used 11 but he was very clear that he was not calling for an end to the 12 cease-fire. 13 Q. And I did not intend to infer that or suggest that. 14 All I'm saying is he was indicating his personal view 15 was that the cease-fire should end, correct? 16 A. No. His personal view was that it should be reopened and 17 looked at and discussed and if the group that was there in 18 Egypt was closer to the situation thought it should end, then 19 it should end. And if they didn't think so, then this wouldn't 20 happen. But that they should open this discussion to all 21 points of view. 22 Q. Yes, but didn't he say he was withdrawing his support for 23 the cease-fire? 24 A. His personal support, yes. It was his personal viewpoint. 25 Q. And you think expressing that personal viewpoint would in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8413 4B85SAT5 Stewart - cross 1 some way benefit him in a conditions lawsuit filed on his 2 behalf? 3 A. To the extent that he became a centerpiece of discussion 4 and that his view was discussed and very widely to that degree 5 that he, once again, was somebody to be reckoned with, I think 6 it may have. 7 Only as I said a minute ago, the worst thing is to be 8 nobody and to have no one pay any attention to any lawsuit that 9 you bring. 10 Q. Well, do you believe that his stating in a press release 11 that he was withdrawing his support for a cease-fire would 12 benefit him in a clemency application to the president of the 13 United States? 14 A. No. I would have to say in a clemency application it would 15 probably not, but it would probably get some attention, I would 16 think. 17 Q. And you believe that his withdrawing his support, or his 18 announcing through a press release that he was withdrawing his 19 support for the cease-fire -- that's a cease-fire with the 20 Egyptian government, is it not? 21 A. Yes, but you are referring to the first press release not 22 to the correction, is that right? 23 Q. I'm referring to the first press release. 24 A. Yes. 25 Q. Is it your belief that his issuing, or having a press SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8414 4B85SAT5 Stewart - cross 1 release issued on his behalf in which he announced withdrawal 2 of support for the cease-fire would, in some way, benefit him 3 in efforts to get transferred to an Egyptian prison? 4 A. No. But if there was some thought to relent, to think 5 twice about leaving him in the United States where, as I said 6 very early in my testimony here, he was a lightning rod for a 7 lot of disaffection, most of it totally uninvited by himself. 8 But the fact that he was in prison here did invite that. 9 Q. Ms. Stewart, did you say in your testimony on direct, 10 during direct examination that it was, "our goal to induce both 11 the government of the United States and the government of Egypt 12 to take him back there"? 13 A. That was our goal, yes. 14 MR. DEMBER: Your Honor, I believe we have reached the 15 4:30 hour. 16 THE COURT: All right. 17 Ladies and gentlemen, we will break for the day. 18 Please, please remember my continuing instructions. Please 19 don't talk about this case at all. Don't talk about it among 20 yourselves or with anyone when you go home this evening. 21 Please remember don't look at or listen to anything to 22 do with the case. If you should see or hear something 23 inadvertently, please simply turn away. Please don't look at 24 or listen to anything to do with the case. 25 Please always remember to keep an open mind until you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8415 4B85SAT5 Stewart - cross 1 have heard all of the evidence, I have instructed you on the 2 law and you have gone to the jury room to begin your 3 deliberations. Fairness and justice to the parties requires 4 that you do that. 5 With that, have a very good evening. I look forward 6 to seeing you tomorrow morning at 9:30. 7 All rise, please. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8416 4B85SAT5 1 (Jury not present) 2 THE COURT: Ms. Stewart may step down. 3 (Witness steps down) 4 THE COURT: Please, be seated. 5 MR. TIGAR: May I retrieve the water glass and bottle? 6 THE COURT: Sure. Do you want a break at all? 7 MR. TIGAR: No, no. I'm fine. 8 THE COURT: All right. 9 MR. TIGAR: Thank you, your Honor. 10 THE COURT: All right. Where are we in terms of time? 11 MR. DEMBER: Your Honor, I hope to be done within two 12 hours. 13 THE COURT: Well, where are we with respect to the 14 issues then that the parties raised with me with respect to 15 Mr. Clark? 16 MR. STERN: As far as I know we are waiting for your 17 Honor to rule on our respective positions, as least as to 18 Mr. Yousry's application. 19 THE COURT: Is he expected to testify tomorrow or not? 20 MR. STERN: That's a difficult question for me to 21 answer not knowing when everyone is going to be done. 22 We have a witness we have to call tomorrow, he is 23 having a medical procedure on Wednesday other than Mr. Clark. 24 So, depending on when other people finish, I guess 25 there is some chance that he will testify tomorrow. It strikes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8417 4B85SAT5 1 me as unlikely at this moment. 2 But again, I am projecting without really knowing 3 what's going to happen. 4 THE COURT: I have -- do the parties want to be heard 5 further on these issues? 6 MR. STERN: I don't. 7 THE COURT: Government? 8 MR. BARKOW: No, your Honor. 9 THE COURT: I have some tentative views which the 10 parties can think about and I will see you at 9:00 tomorrow 11 morning and we can discuss at the end of the day also. 12 Of the items raised in the government's November 4 13 letter, there appears to be no dispute with respect to item 3. 14 Mr. Clark's view whether or not expressed to someone else as to 15 whether Abdel Rahman was appropriately and justly or wrongly 16 convicted because so far, as I've heard, the parties don't 17 intend to ask that question. 18 Item number 2 is whether Mr. Clark had been charged 19 with a crime for his conduct as shown in the evidence in this 20 case. And as to that it would appear that the, so far the 21 defendants have said that they would not ask whether he was 22 charged but they would ask whether he was "notified." 23 That would appear to be an indirect way of simply 24 asking the same question and the relevance of that is, would 25 appear to be outweighed by any -- substantially outweighed by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8418 4B85SAT5 1 the danger of unfair prejudice because it is well-established 2 that the jury is not to speculate as to why any other people 3 were not charged, and there is a long instruction with respect 4 to that, which then takes me to the first. 5 Mr. Clark's opinion of the legality or propriety of 6 the conduct by him, by others or in general under the SAMs 7 and/or his opinions of the legality, validity or 8 constitutionality of the SAMs. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8419 4b8esat6 1 THE COURT: And, again, these are tentative views that 2 the parties can argue out before me the -- Mr. Yousry's counsel 3 says that they would not ask, and I don't believe any of the 4 other counsel would ask, whether he thought the SAMs were 5 legal, valid, constitutional. And indeed, the legality, 6 validity and constitutionality of the SAMs would appear to be a 7 legal question for the Court. 8 If he expressed a view with respect to the coverage of 9 the SAMs, certainly if he expressed that to Mr. Yousry, the 10 government doesn't dispute that that testimony would be 11 admissible for Mr. Yousry's state of mind. The issue then 12 becomes his thoughts to the extent that he can recall them 13 about conduct within the SAMs. And the -- Ms. Stewart argues 14 that whether he was a knowing participant in the conspiracy 15 that's alleged has relevance that's not outweighed by the 16 danger of unfair prejudice. Was he a participant in a 17 conspiracy to defraud the government? And so his intent, 18 unless it's put beyond the jury by various instructions, does 19 have some relevance. 20 It's important that the parties go about thinking 21 about the testimony in a precise fashion, because Count 1 is a 22 conspiracy to defraud the government. Who the members of 23 that -- whether the defendants were members of such a 24 conspiracy and who did they conspire with are relevant to that 25 charge on the conspiracy to defraud. So whether there was by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8420 4b8esat6 1 this person an intent to defraud the government in the 2 enforcement of the SAMs becomes -- has some relevance; that is 3 a distinct question from the issue of the legal question with 4 respect to the legality, validity, constitutionality of the 5 SAMs, a subject which would not be inquired into from what I've 6 heard. 7 There was one other issue that was raised in the 8 arguments this morning. Ms. Stewart argued that this is 9 premature because it's not clear what Mr. Clark would say, and 10 Ms. Stewart invited the Court to use 611A. And so far as I can 11 tell, the government thought that that was a good idea because 12 the government said they think that all of the defendants 13 should have the opportunity to examine Mr. Clark before the 14 government cross-examines. And, again, I'd listen to the 15 parties, but that seems reasonable as a way of presenting that 16 testimony. 17 It would also obviate the government's statement that 18 it's not clear whether the testimony would be challenged at 19 all. That's a determination that can only be made after you 20 presumably hear all of the testimony. So those are my initial 21 observations. I haven't gotten anything in writing from the 22 defendants. I've listened to the arguments this morning and I 23 would certainly be prepared to listen to any further arguments 24 on this. 25 MR. TIGAR: Please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8421 4b8esat6 1 MR. BARKOW: Your Honor, I just wanted to point out 2 there was one other issue that we raised with respect to 3 questioning by defendants other than Mr. Yousry, and that is 4 the form of the questioning by those -- by counsel for those 5 defendants. 6 MR. TIGAR: Your Honor, I agree to ask nonleading 7 questions. I think leading questions for Ramsey Clark would be 8 the most unpersuasive and futile exercise that a person could 9 do. 10 THE COURT: All right. You know, I was going to go 11 through the various considerations about whether to ask leading 12 questions or not leading questions. There was a suggestion 13 that in some of these areas leading questions may be more 14 appropriate than open-ended questions. On the other hand, if 15 given the opportunity to ask leading questions, leading 16 questions are often not as persuasive sounding as open-ended 17 questions. So people may want to ask open-ended questions. 18 The issue is resolved because Ms. Stewart doesn't 19 intend to ask leading questions. 20 MR. TIGAR: Your Honor, with respect to the items, I 21 would simply -- with respect to item two, I would never ask 22 whether Mr. Clark has been charged with a crime. But an issue 23 that has been throughout this case is whether Mr. Fitzgerald 24 ever sent him a letter saying, hey, don't do that anymore. 25 For instance, at transcript page 2582, Mr. Fitzgerald SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8422 4b8esat6 1 had just finished talking about a statement by Mr. Clark 2 saying, I am Ramsey Clark. 3 "Q. Well, it was clear to you that, whoever issued 4 it, it was a violation of the SAMs, right? 5 "A. Yes." And then he says what he did about it. 6 There's been a great deal, great many questions of 7 Ms. Stewart, did she call Mr. -- you know, did she call this 8 person, did she call that person, and so on. And it's 9 legitimate in terms of the -- of Ms. Stewart's state of mind 10 whether anyone ever told her or told her colleagues, for 11 instance, Mr. Fitzgerald, look, this is how I'm interpreting 12 the SAMs. I don't want you to do that anymore. That is a 13 relevant consideration -- 14 THE COURT: But it's only -- 15 MR. TIGAR: -- that's already been in this case. 16 THE COURT: But it's only relevant to the state of 17 mind of a defendant. It's only relevant if someone asks 18 Mr. Clark or Mr. Clark told one of the defendants, hey, you 19 know, I never got anything. 20 MR. TIGAR: Right. Yes, your Honor, I assume that's 21 right. And -- well, it's conditional relevancy, but there's 22 another point. It's also relevant if Mr. Clark is a 23 conspirator or not because -- that is to say, when your Honor 24 says it's only relevant as to a defendant, it would also be 25 relevant to his state of mind with respect to the Count 1 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8423 4b8esat6 1 conspiracy. And if Ms. Stewart says we were in regular 2 communication about all -- you know, about these matters, OK, 3 whatever communications came in from the government were 4 shared. And if there had been one, it would have been shared. 5 That's -- I don't know what the testimony will be, but I 6 suggest that that is an issue. 7 And then with respect to number three, I would 8 never -- I don't think I would ask Mr. Clark that, but of 9 course, he was this man's lawyer. And unless he felt that he 10 had a good faith basis to make the arguments that he made to 11 the Court of Appeals, to the Supreme Court, to the Justice 12 Department, to the Egyptian government about moving it, then he 13 would not -- even knowing Ramsey Clark, he wouldn't have made 14 the arguments. 15 So although his view, his personal view as to the 16 appropriateness does -- we would -- I would understand is 17 beyond, but his lawyerness about how he did this is kind of 18 assumed in his conduct. 19 THE COURT: I've -- it is difficult to see the 20 relevance that would not be outweighed by unfair prejudice as 21 to his personal views or his views as a lawyer with respect to 22 Omar Abdel Rahman. 23 I have kept out Judge Mukasey's view of the evidence 24 in the case and repeatedly instructed the jury, this jury, 25 about how these defendants are not bound by what that jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8424 4b8esat6 1 found. I have plainly not allowed anyone to dwell on what the 2 Court of Appeals did with respect to the conviction or the 3 Supreme Court in denying to review the conviction. 4 I have certainly allowed Ms. Stewart to question 5 individual evidence or the like at the trial or to explain her 6 view, because it becomes relevant to her state of mind with 7 respect to the specific charges in the case. 8 Ramsey Clark's view is quite a distinct issue. And as 9 to that, the -- any relevance would be substantially outweighed 10 by the danger of unfair prejudice. 11 MR. TIGAR: I don't propose to quibble with your 12 Honor's ruling. I hear it and I accept it. I do suggest that 13 there may, during the course of this examination, come a point 14 where we will wish to ask your Honor to reweigh it in light of 15 the then existing circumstance. 16 And I would also -- 17 THE COURT: Well, I can't foresee all of the questions 18 or the answers that might be given with respect to the 19 testimony. 20 Now, the government asked me to instruct Mr. Clark. 21 I've given you my tentative views with respect to the outline 22 of the issues that have been raised, and I -- it may well be 23 relevant as to whether he -- not with respect to whether he was 24 charged with anything, but whether, because it does go back to 25 Mr. Fitzgerald's testimony and does go back to part of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8425 4b8esat6 1 Ms. Stewart's testimony, as to whether he ever received a cease 2 and desist letter with respect to anything that was -- that he 3 said. 4 But what I've tried to do is to outline the three 5 questions that you gave me and outline what I think, based upon 6 what the parties have told me so far, reasonable examination 7 and limits for Mr. Clark's testimony would be. And you are 8 welcome to go over that, and you're welcome to give it to 9 Mr. Clark, and to conduct yourselves accordingly. 10 I'm not going to give instructions to Mr. Clark in 11 advance of what he testifies and tell him not to say something. 12 But those are my tentative views based upon what you've given 13 me so far. 14 MR. BARKOW: Your Honor, if I may just make one quick 15 point. 16 Mr. Tigar mentions Ms. Stewart's testimony and 17 Mr. Fitzgerald's testimony with respect to whether Mr. Clark 18 was ever given notice of whether his conduct was violative or 19 not or something in substance meaning that. And I just want to 20 make clear that the record is different with respect to two 21 instances of Ramsey Clark's conduct. 22 First, in 1997 there is his issuance of a statement by 23 Sheikh Abdel Rahman supporting the ceasefire; and second, there 24 is the November 1999 telephone call with the reporter, 25 Mr. Yousry and Mr. Sattar, which was intercepted over -- in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8426 4b8esat6 1 FISA investigation. The discussion with Mr. Fitzgerald only 2 related to the former category, and so if -- which we don't 3 concede. But if there is relevance to Mr. Clark's state of 4 mind about whether he was informed or not, it would be confined 5 to that. We still think that Ms. Stewart would have to know 6 about it, but nonetheless be confined to that. 7 And if instead there were a suggestion implicit or 8 explicit that whether he received notice about his conduct in 9 that November 5, 1999, call, we think that would be an improper 10 one because there's no predicate for it right now. There was 11 no conversation with Mr. Fitzgerald about it. 12 Two, there's no indication that the government knew 13 about it, other than the fact that it was picked up in this 14 investigation, which raises the issues about which the Court 15 has excluded evidence; that is, the existence of the 16 intelligence investigation and the wall between intelligence 17 and law enforcement. 18 THE COURT: I accept that without a -- some other 19 predicate as to the -- either prior testimony or some reason 20 that should have led to a protest over that telephone call. I 21 have excluded testimony that the government sought to offer 22 about the ongoing investigation as a reason not to do certain 23 things, and I continue to apply that, that ruling and exclusion 24 at this point. So -- 25 MR. TIGAR: Your Honor, we don't intend to go busting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8427 4b8esat6 1 up against -- to -- challenging your Honor's prior ruling. 2 That was never an issue. 3 With respect to the '97, '99 business, I understand 4 what essentially is the conditional relevancy point made by 5 Mr. Barkow and don't intend to fall afoul of what I would 6 understand by -- I would have to do foundationally in order to 7 go where he thinks I ought not. 8 THE COURT: And I had the same reaction, even though 9 the parties said that I may not have to rule on any of the 10 things because the -- Mr. Yousry's counsel is working -- 11 continuing to work with the government. The one conversation 12 with the assistant US attorney -- 13 MR. RUHNKE: Your Honor, we talked about that earlier 14 today and informed the government that we won't press that 15 conversation. There's another conversation which is a long, 16 long discussion with a Mr. Al-Sirri essentially about a book. 17 We don't think -- we don't intend to elicit that on direct 18 examination. 19 We discussed it with Ms. Baker. If she intends to 20 cross-examine on something related to that or relevant to it, 21 then it may -- it may, again, become a relevant issue. But I 22 don't think that's a relevant issue or -- at the moment. 23 Ms. Baker tells me she doesn't intend opening any doors and 24 we'll see. 25 MS. BAKER: If I might just seek a clarification from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8428 4b8esat6 1 Mr. Ruhnke on the first of those two issues, which is the 2 telephone conversation with the Assistant United States 3 Attorney. Mr. Ruhnke has now reiterated that they don't intend 4 to offer the telephone call. My objection was a little broader 5 than that. I was objecting as well to Mr. Yousry testifying 6 about that subject matter. So if I could just inquire. 7 MR. RUHNKE: Mr. Yousry is a translator and 8 interpreter. And the fact that an AUSA in the Virgin Islands 9 wanted to call him as a witness on actually a topic dealing 10 with Islam is relevant. There are taped calls that have been 11 played by the government in which Mr. Yousry and Mr. Sattar 12 discuss what is that testimony. It's not 100 percent apparent 13 from the parameters of the conversations themselves what 14 they're talking about. In one conversation Mr. Yousry calls 15 Mr. Sattar and asks about a certain Adith, and another 16 conversation he says, my testimony has been cancelled. And I 17 think it's relevant to have a word or two about what that is. 18 THE COURT: Well, the reason that I raised it in the 19 context that we just went through was it seemed to me plain 20 reading the transcript that the purpose of the call was to 21 leave a suggestion that even after all of the information -- or 22 some of the information about this investigation, the 23 government still -- the government in the broadest sense still 24 viewed Mr. Yousry as an expert resource on whom the government 25 could rely. And the suggestion to the jury would be that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8429 4b8esat6 1 government could not have viewed Mr. Yousry as participating in 2 anything that was nefarious or they wouldn't be calling him as 3 an expert witness. It wouldn't be standing behind Mr. Yousry. 4 And so the government says, well, the reason that he 5 was still out there is because it was subject to various 6 restrictions as to what the information was, and that there's 7 no reason to believe that the assistant in the Virgin Islands 8 had any knowledge of that, and that was the area of 9 sensitivity, which I thought was a reasonable basis for 10 Mr. Yousry to withdraw the offer of the transcript. 11 Now, if you say that, well, gee, there are portions of 12 the transcripts in evidence that the government put in evidence 13 that might not otherwise be clear and that need some 14 explanation for what this is, that's -- you know, that's 15 possible. But I suggest that you discuss with great care that 16 no effort be made to attempt to -- you know, to make the unfair 17 argument as to which there would be a response that I've 18 attempted to exclude at the defendant's behest. 19 MR. RUHNKE: There was no intent to do that. There 20 will be no intent. 21 THE COURT: No, and I'm just saying that it could be 22 construed that way. And then I'm in the position of trying to 23 deal either with the appropriate instruction or a request that 24 the door has been opened. 25 So I simply say that you say there are some portions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8430 4b8esat6 1 of the telephone calls that require some explanation; that this 2 is not an effort to say, gee, the government was calling 3 Mr. Yousry as an expert witness at this very time. 4 MR. RUHNKE: Right, I understand your Honor's point, 5 but you respectfully are reading a lot more into the offer than 6 we were intending to count on, which is why we withdrew the 7 transcript. 8 I assume the government will not argue that he didn't 9 have these conversations, so we are not attempting -- it had 10 not actually occurred to us to try to do what your Honor has 11 suggested was the purpose for it, because we would know that 12 obviously the assistant, I'm sure, had no idea she was picked 13 up on a FISA wiretap or that there was a FISA wiretap. 14 So, no, we don't intend to do it in any way like it 15 was possibly suggested. 16 THE COURT: OK. 17 MS. BAKER: Your Honor, I have an additional issue to 18 raise, which is the government's objection to two other 19 excerpted telephone calls that Mr. Yousry has marked as 20 exhibits for use in his case, and those are MY1729X and 21 MY1730X. Those are two telephone conversations a few days 22 apart in early December 1999 between Mr. Yousry and Mr. Sattar, 23 and the government objects to those two conversations as 24 hearsay. 25 Basically the excerpted conversations -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8431 4b8esat6 1 THE COURT: Could I just stop you just for a moment. 2 MS. BAKER: Sure. 3 THE COURT: Mr. Ruhnke gave me the pleasant 4 expectation that you all will work out all of your problems. I 5 could not be more pleased at that. With that as the prospect, 6 why would I try and rule now without any letter, any document 7 before me on 1729X and 1730X? 8 MS. BAKER: Your Honor, I think Mr. Ruhnke might have 9 been a bit overly optimistic, or his statement might have come 10 across a little more broadly than perhaps was warranted at the 11 moment. I understood him to be expressing optimism that you 12 wouldn't have to rule on the things that I put in my previous 13 letter to the Court. And he and I are continuing to have 14 discussions about the many additional exhibits that Mr. Yousry 15 has marked and indicated an intent to offer. And there are a 16 number of issues that we have resolved. 17 However, as recently as the end of the lunch break 18 today Mr. Ruhnke and I talked about 1729X and 1730X. And we 19 don't believe that we are going to be able to resolve our 20 differences on that. I'm not asking the Court to rule now from 21 the bench. And if the Court requires us to make our objection 22 in a letter, obviously we would -- will do so. 23 It was my hope that I could just state briefly the 24 basis for the objection, and then if Mr. Ruhnke wished to, he 25 could respond orally or in writing. And then your Honor would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8432 4b8esat6 1 be able to rule tomorrow or the next day. I wasn't expecting a 2 ruling at the moment, but it is my belief that a ruling will be 3 necessary because Mr. Ruhnke and I have agreed that we disagree 4 about these two particular exhibits. 5 MR. RUHNKE: Your Honor, could I, just while we're 6 confirm ourselves -- not confirm on ourselves, while we're 7 discussing coming attractions the -- I don't mean to sound so 8 facetious. I think the only issue that may be ripe for your 9 Honor's resolution before the end of this somewhat truncated 10 week is a question of business records from York Community 11 College to which the government has objected. 12 All the other materials that we're discussing were 13 premised on the idea that Mr. Yousry might actually get on the 14 witness stand this week. I think that's impossible at this 15 point, given where the government is on their cross-examination 16 and the witnesses we intend to call before Mr. Yousry was 17 scheduled to testify. I mean, if the government is saying 18 they're going to complete their cross by 11:00 tomorrow -- 19 THE COURT: Couple hours is 11:30. 20 MR. RUHNKE: A couple hours is later than that. And 21 given redirect, and given the witnesses such as Ramsey Clark 22 that we're going to be calling, we don't think Mr. Yousry will 23 be on the witness stand. 24 However, the witness who will be the sponsor of those 25 business records is highly likely to be on the witness stand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8433 4b8esat6 1 What I'd like to do is give your Honor a letter probably 2 tonight on that issue. And it would not have to be resolved 3 until the witness actually testifies, which I think will be 4 sometime on Wednesday, if we get to him at all this week. 5 THE COURT: OK. Sure. I doubt that I'm going to be 6 able to get to it tonight, I can tell you. 7 MR. RUHNKE: I doubt that I'll be able to get home in 8 time to get it to you tonight at any reasonable hour. But 9 you'll have it before tomorrow morning. 10 THE COURT: What's the relevance of the records from 11 York Community College? 12 MR. RUHNKE: They are business records of York 13 Community College, the relevance of which is that in evaluating 14 Mr -- check Mr. Stern, it's Mr. Stern's witness -- in 15 evaluating Mr. Yousry's performance as a professor at York 16 Community College. The students rate him as making a balanced 17 presentation on the issues that he's teaching in. He's 18 teaching in the area of Islam. 19 It is one more piece of evidence that -- the 20 government's theory, cut to the core, is that Mr. Yousry wished 21 to aid an Islamist conspiracy to commit acts of violence and 22 murder and kidnapping in a foreign country, and that that -- 23 this kind of evidence makes that that much less likely that he 24 is a balanced teacher on these issues. 25 He's not pushing an Islamist point of view or a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8434 4b8esat6 1 radical point of view. It does not mean, on the other hand, he 2 could not be hiding his true views, but that's for the 3 government to argue. And for us to counterargue. 4 THE COURT: But why wouldn't the records be hearsay if 5 they're the evaluations of the students? 6 MR. RUHNKE: Because it is the -- 7 THE COURT: You wouldn't -- you know, the record 8 itself gets over the first level of hearsay, but -- 9 MR. RUHNKE: There is always the issue of included 10 hearsay in business records, and is it the kind of information 11 that the business regularly collects? And the answer to that 12 is yes. 13 In evaluating Mr. Yousry as a professor, and as to 14 whether a contract is going to be extended to him, an 15 organization such as York Community College relies upon student 16 evaluations, collects that information as relevant to its 17 record gathering and information gathering function, and as 18 part of their regular and ordinary course they do consider 19 student evaluations in making their decisions. 20 MS. BAKER: Your Honor, just -- 21 MR. RUHNKE: I'm sorry. Every record of regularly 22 conducted activity has within it hearsay on some level. And 23 the -- without looking and pretending to understand what all 24 the cases come out on that issue, and they aren't necessarily 25 all consistent, the thread that I can glean from those line of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8435 4b8esat6 1 cases is that it depends on whether the information that 2 someone is now complaining about as included hearsay is really 3 within the reach of what the organization is gathering for its 4 business or regularly conducted activity purposes. And this 5 plainly fits within that character category of evidence, of 6 information. 7 MS. BAKER: Your Honor, most commonly in a business 8 records context the secondary level of hearsay in records is 9 information that has been supplied by personnel of the business 10 whose business duties include supplying that information. And 11 so the business records take into account the sort of inherent 12 trustworthiness of the context of the ongoing operations of the 13 business. And that same relationship of the providers of the 14 information to the records and the content of the records is 15 not present here. 16 The students are the ones supplying the information. 17 It's not York College that's supplying the information, it's 18 the students in Mr. Yousry's class. So we agree with your 19 Honor that there is a hearsay issue. 20 But more importantly, I don't think when your Honor 21 reads them that you will find that they really support in a 22 meaningful enough way to survive a 403 balancing the kind of 23 inference that Mr. Ruhnke wishes to draw from them. The 24 student evaluations, which are only some of what's in there -- 25 there are also faculty evaluations where a professor comes in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8436 4b8esat6 1 and observes Mr. Yousry teach a class and write about it -- 2 those might come out differently under the hearsay issue. But 3 those don't really get to the issue of him teaching about Islam 4 and whether in his presentation of it is balanced. 5 But even the student evaluations, it's a very sort of 6 generic or general question that's put to the students, and 7 then the students choose a number on a scale of one to five or 8 one to something like that. And the question is so general 9 that I don't believe it really lends itself to supporting the 10 inference that Mr. Ruhnke wishes to draw from it and, 11 therefore, the government submits that any minimal relevance is 12 outweighed by the other considerations that Rule 403 takes into 13 account. 14 MR. RUHNKE: Your Honor, just in very brief reply, the 15 records speak for themselves in terms of what they represent 16 about the evaluations, whether they be faculty or student 17 evaluations. And I'll rest on that. 18 THE COURT: OK. 19 MS. BAKER: Your Honor, regarding MY1729X and 1730X. 20 THE COURT: By the way, if Mr. Ruhnke is going to give 21 me a letter tonight on the records, business records, I mean, 22 the government can give me a letter at the same time so I have 23 both of them tomorrow. 24 MS. BAKER: On the York College records, your Honor, 25 or -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8437 4b8esat6 1 THE COURT: Right. 2 MS. BAKER: I will look at Mr. Ruhnke's letter when I 3 receive it. I don't anticipate having anything more to say 4 than what I have just now argued to your Honor, and so it may 5 be that I will choose not to submit anything additional. But 6 if I feel the need to, I will submit it tonight. 7 THE COURT: You would prefer me to go to WestLaw to 8 check out the cases and look for analogous cases of student 9 record evaluations, or are you confident there are just none 10 out there? 11 MS. BAKER: I will take a look, if the Court feels 12 that that would be helpful. I think I was sort of assuming 13 that it would be unlikely that there was case law that was that 14 specifically on point out there, but I am certainly willing to 15 look. 16 THE COURT: Or the hearsay within hearsay business 17 records analysis that you gave and which I touched on initially 18 myself, but -- 19 MS. BAKER: The government will submit a letter 20 tonight as well. 21 As to 1729X and 1730X, does the Court require that the 22 government submit a letter, or may I make the objection? 23 THE COURT: You can speak now. 24 MS. BAKER: OK. As I started to say, those are two 25 calls made within a few days of each other in early SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8438 4b8esat6 1 December 1999 between Mr. Yousry and Mr. Sattar. And the 2 excerpts of those calls that Mr. Yousry has marked demonstrate 3 that the purpose for which he seeks to offer them is 4 essentially to establish historical fact that is discussed in 5 them between Mr. Yousry and Mr. Sattar, thus putting them 6 squarely within what the hearsay rule forbids, because they're 7 essentially being offered for the truth of the factual matters 8 asserted. 9 And those facts are that Mr. Sattar had a particular 10 news article -- it was an interview from Al-Quds -- and he was 11 trying to fax it to Mr. Yousry. And when he first tried, it 12 didn't work, so they agreed that he would try again. That's 13 what's in the first call, 1729X. 14 In the second call, 1730X, Mr. Yousry indicates that 15 he has received the fax from Mr. Sattar but that the article as 16 faxed, the type or the print in it is too small and, therefore, 17 Mr. Yousry has been unable to read the article. 18 So, together, those two calls establish that although 19 Mr. Yousry received some article from Mr. Sattar, he allegedly 20 did not read it, which is historical fact offered for its 21 truth, which is hearsay. If that's not the reason for which 22 they're offered, then I don't see the relevance of them. 23 MR. RUHNKE: Your Honor, clearly the government -- and 24 this is based on conversation with Ms. Baker -- agrees, this is 25 the interview with Taha that we're talking about, with Rifa'i SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8439 4b8esat6 1 Taha. It is not an insignificant issue in the case. 2 And the government agrees, based on my conversations 3 with Ms. Baker, that Mr. Yousry can certainly testify that he 4 did get the article, he tried to read it and couldn't read it; 5 that the article in format was too small. 6 In one of the conversations that we seek to offer, he 7 says that he went to I think Mr. Clark's office, tried to use 8 his copy machine to somehow enlarge the text and that that 9 didn't work either, and that he couldn't ever read what the 10 article had to say. If nothing else, the article stands as 11 corroborative evidence, independent corroborative evidence 12 that -- of Mr. Yousry's statement or testimony in 2004 that he 13 was unable to read the article. 14 We're able to go back and say -- and there was a 15 conversation that occurred in 2000, tape-recorded, that 16 demonstrates and corroborates Mr. Yousry's testimony in the 17 year 2004. If the government wants a limitation -- and it's 18 not offered to prove the truth of the matter, really to 19 corroborate Mr. Yousry's testimony -- no objection. But I 20 don't think it's -- when you have that kind of corroborative 21 evidence -- 22 THE COURT: Why -- these calls were in December of 23 1999? 24 MR. RUHNKE: Whenever they were, your Honor, yeah, 25 they were at the time that this Taha article was being SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8440 4b8esat6 1 discussed. 2 The government has spent a lot of time on that 3 particular article. And I think it's -- and the government 4 concedes it's relevant testimony that Mr. Yousry never read it, 5 because it was too small. And we seek simply to corroborate 6 his testimony by a prior -- by reference to the prior 7 article -- prior -- I'm sorry, tape-recording, that he -- not 8 necessarily for the truth. It depends, of course, on what the 9 government does on cross, which could raise a whole issue of 10 prior consistent statements. 11 But right at this point we seek to offer it simply not 12 for the truth but to corroborate his testimony. He'll say I 13 had a conversation with Mr. Sattar, I told him I couldn't read 14 the thing. The jury might be sceptical of that. It just seems 15 tremendously unfair, when you have a tape-recording of him 16 saying just that, that the jury shouldn't be able to consider 17 that as corroborative of Mr. Yousry's testimony, independently 18 corroborative. 19 MS. BAKER: Your Honor, unless and until the 20 requirements for the hearsay exception for prior consistent 21 statements have been met, there simply is no exception to the 22 hearsay rule for corroborative hearsay. 23 MR. RUHNKE: I'm not seeking an exception to the 24 hearsay rule. I'm not offering it for the truth of the matter. 25 I'm offering Mr. Yousry's testimony in 2004 that he had a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8441 4b8esat6 1 conversation with Sattar at the time where he told him it was 2 too small to read. The jury might naturally wonder, well, if 3 he had this conversation, and we know Sattar's phone was tapped 4 for six years, where is it? 5 And it seems to me fair game for us to offer the 6 conversation to back up Mr. Yousry's assertion that he had such 7 a conversation. The government insists it can't be offered for 8 the truth in 1999 that he couldn't read it. We'll accept a 9 limiting instruction. 10 MS. BAKER: Your Honor, with a limiting instruction 11 that the conversations are not offered for their truth, then 12 they have no relevance. There's no content in them other than 13 assertions of fact, essentially. And if those assertions of 14 fact are not offered for their truth, then it's like a circle. 15 They only have relevance for their truthful content. 16 If the defense is not seeking them for their truthful 17 content, then they should be excluded as irrelevant. 18 THE COURT: There must be cases on this. One of the 19 questions is whether it will be disputed that Mr. Yousry got 20 the article but couldn't read it. Because if it's disputed at 21 all, then it goes in as a prior consistent statement. So, that 22 would certainly be one question. 23 The second question is whether there is -- whether 24 there can be a category of statements not for the truth but 25 simply the fact that it was said supporting the historical fact SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8442 4b8esat6 1 of what was going on at the time. And you're welcome to look 2 at that. 3 One question for the government is I -- does the 4 government dispute the proffer of the testimony as to what 5 happened? If there is a dispute, then eventually that would go 6 in, wouldn't it, as prior consistent statement? 7 The second question would be if, in fact, the 8 conversation occurred and there is no reason to dispute it, if 9 all of that is true, if I ever reach the 403 balancing 10 analysis, what would the unfair prejudice be to the telephone 11 calls or confusion placed upon -- 12 MS. BAKER: Your Honor, the government was not making 13 a 403 objection. We were making a hearsay objection. And we 14 believe that essentially it's seeking to bolster Mr. Yousry's 15 credibility on an issue as to which no issue about his 16 credibility has yet been raised. 17 And if an issue as to his credibility gets raised, 18 then I understand that there is the section of Rule 801 on 19 prior consistent statements. But unless and until that 20 happens, it seems to us that the objection is the hearsay rule 21 and that it's improper bolstering. 22 MR. PAUL: Your Honor, excuse me. I apologize, but my 23 client is fasting for Ramadan and he has asked three times. 24 THE COURT: I'm sorry. Absolutely. I was going to 25 say before, if anyone for any reason wanted to end at any time, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8443 4b8esat6 1 just let me know. We'll end now and I'll see you all at 9:00 2 tomorrow morning. 3 Have I given you enough guidance with respect to 4 Mr. Clark? 5 Apparently so. All right. 6 (Adjourned to Tuesday, November 9, 2004, at 9:00 a.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8444 1 INDEX OF EXAMINATION 2 Examination of: Page 3 LYNNE STEWART 4 Cross By Mr. Dember: . . . . . . . . . . . . 8260 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 -------------------------------------------------------------------------------