12451 51I5SATF 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 January 18, 2005 8 9:40 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 (Pages 12452-12456 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12457 51I5SATF 1 (In open court) 2 THE COURT: Good morning, all. Please, be seated. 3 The last juror note is marked as Court Exhibit 32. My 4 response to the jurors will be marked as Court Exhibit 33. The 5 parties are welcome to inspect. 6 It says: Members of the jury, please call Mr. Grate's 7 telephone number by 7:00 p.m. this evening to receive 8 instructions on reporting tomorrow. The telephone number is 9 212-805 -- 10 You know, well -- well, the full number is in here and 11 the parties are welcome to inspect. And when the jurors come 12 back I will inform them that one of the jurors is ill and so 13 deliberations cannot occur today and they're to call back 14 tomorrow -- call back this evening by 7:00 and I will send them 15 a note with the marshal so that they can see the number to call 16 back, and that's Court Exhibit 33. 17 And I will also explain to them that we do it this 18 way, as they can see, to avoid any discussions with Mr. Grate 19 or Mr. Fletcher. So, they're just going to listen to a 20 recorded message. I will also tell them that I received a note 21 with individual questions but I don't want to address that 22 without having all of them together. 23 And then I want to give them my continuing 24 instructions not to discuss the case, don't look at or listen 25 to anything to do with the case, leave anything to do with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12458 51I5SATF 1 case in the jury room. 2 The parties are welcome to inspect the note. Anything 3 else before I let the jurors -- before I bring the jurors in 4 and let them go for the day? 5 MR. RUHNKE: Your Honor, without discussing the 6 context of the note you had mentioned you were going to at 7 least tell the jurors that you were aware of certain personal 8 issues that have been raised. 9 THE COURT: Right. 10 MR. RUHNKE: And you will deal with them at some other 11 time? 12 THE COURT: Yes. That's one of the things that I'm 13 going to do in my -- 14 MR. RUHNKE: I'm sorry, I missed that. I apologize. 15 THE COURT: That's all right. The acoustics are not 16 great. 17 What I will tell the jurors is I'm going to give the 18 marshal a note and the marshal will give them the note when 19 they return to the jury room. The note will include the number 20 that they're to call. Again, they're not to discuss the case 21 and they're to adjourn right away. 22 Is that satisfactory? 23 MR. RUHNKE: Yes, your Honor. 24 THE COURT: The alternative is to send a note in now 25 but I didn't want to do it without explanation. All right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12459 51I5SATF 1 Okay. 2 Let's bring in the jury. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12460 51I5SATF 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Good morning, ladies and gentlemen. 4 THE JURY: Good morning. 5 THE COURT: It is good to see you all. As you see, 6 there are only 11 of you who are present today. One of the 7 jurors is ill and deliberations obviously cannot occur without 8 all 12 of you being present, so the deliberations cannot occur 9 today and I'll look into the situation. 10 As we have done in the past when there has been an 11 issue with respect to the availability of any juror, I'm going 12 to ask you to call back by 7:00 this evening to the number that 13 you've been calling back to Mr. Grate whenever there is an 14 issue with respect to the ability to sit the following day. 15 To the extent that you don't recall that number or 16 don't have it written down, I'm going to send you a note with 17 the marshal which gives you the number. 18 It says: Please call Mr. Grate's telephone number by 19 7:00 p.m. this evening to receive instructions on reporting 20 tomorrow. The telephone number is -- 21 And then you will see what the telephone number is and 22 you can have that note in the jury room and please call back by 23 7:00. 24 By the way, it is -- the reason that I follow that 25 policy or practice is it's important to me that you not discuss SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12461 51I5SATF 1 the case with any court personnel, that's why I have told you 2 Mr. Fletcher won't be talking to you during deliberations and 3 I've told you not to talk to Mr. Grate during deliberations. 4 The marshal takes care of arrangements but you are not to talk 5 about the case with the marshal and all you will find when you 6 call the number for Mr. Grate today is a recording from 7 Mr. Grate telling you, giving you the instruction for tomorrow. 8 I want -- it is so very important to assure that the 9 jurors not talk about the case except when they're all of them 10 together deliberating about the case. 11 I received a note from you with individual questions. 12 I don't want to address the questions without all of you being 13 present so I will get back to you about those questions. 14 So, we are going to break now for the day and you will 15 call in to Mr. Grate for instructions. Let me again remind 16 you, reiterate all of my instructions. 17 Please, don't talk about the case at all. When you go 18 back to the jury room, the only thing you will do is the 19 marshal will give you the note so that you can make a note of 20 the telephone number to call today and then you will go home. 21 So, you are in the process of leaving so don't talk 22 about the case, don't talk about the case in the vans when you 23 are going home. Don't talk about the case with anyone else. 24 When you come back, don't talk about the case until -- don't 25 talk about it in the vans, don't talk about it when you come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12462 51I5SATF 1 back to the jury room until all 12 are ready to deliberate. 2 At that point the marshal -- the foreperson will 3 notify the marshal that you are all ready to deliberate and at 4 that point you can start deliberating, the marshal will inform 5 us and you can proceed to deliberate that the point. 6 Please don't look at or listen to anything to do with 7 the case. Don't look at or listen to anything to do with the 8 case. If you should see or hear something inadvertently, 9 please, simply turn away. Don't look at or listen to anything 10 to do with the case. Leave anything to do with the case in the 11 jury room. Any exhibits, notes and the like, don't take them 12 with you, leave them in the jury room. 13 With that, have a good day. I look forward to seeing 14 you soon. All rise, please. 15 Let me give this note to the marshal and then please 16 follow the marshal to the jury room. 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12463 51I5SATF 1 (Jury not present) 2 THE COURT: Please be seated. 3 The jury should be leaving, so I want to wait. 4 One issue that I can take up with you while we are 5 waiting is I received, as I told you, the letter from the New 6 York Times which explains that the Times is aware that -- and 7 before I discuss the letter from the Times, I told you before 8 that in private practice I represented the Times and I don't 9 sit on cases in which the Times is a party, as a practice. But 10 I have sat on cases in which the Times has come in to make 11 various applications, including this case. There is nothing 12 about that that affects anything that I do and I bring it to 13 your attention. 14 In the letter, the Times acknowledges that what a 15 judge tells jurors about whether they should or should not talk 16 about their experience is a matter within the Court's 17 discretion, and the Times urges me to exercise my discretion 18 not to discourage jurors from talking but to express no opinion 19 whether they should participate in post-verdict interviews. 20 I continue to be of the view that I should express to 21 jurors my view that they should preserve the confidentiality of 22 their discussions and that they should not talk about their 23 role as jurors. 24 But, I also believe that I should make it clear to 25 jurors that they're no longer, after they're finished SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12464 51I5SATF 1 deliberations and discharged that they're no longer under my 2 orders and that they no longer have the obligation not to talk. 3 Did the parties gather the exhibits? 4 MS. BAKER: Yes, your Honor. The parties gathered the 5 exhibits and we have conferred with each other about which 6 exhibits are responsive to each of the two outstanding jury 7 notes. I would ask permission to hand up to the Court -- I 8 know I gave it to at least some defense counsel, perhaps not 9 all, I don't know that I gave it to Mr. Sattar's counsel -- I 10 had an e-mail exchange over the long weekend with 11 Ms. Shellow-Lavine about the limiting instructions that would 12 go along with certain of the exhibits that are responsive to 13 the two notes and Ms. Shellow-Lavine agreed with what I set 14 forth in the e-mail. 15 And I would hand a copy up to the Court so that the 16 Court will see which exhibits are subject to which limiting 17 instructions. 18 If the Court wants me to present this same information 19 in some other format so that, for example, the Court could 20 attach it to a note to the jury or incorporate it into a note 21 to the jury I would be happy to comply with whatever would 22 assist the Court in that regard. 23 It's a number of instructions, many of them are very 24 similar to each other but if the Court wishes to do something 25 other than hand write them all into a note, simply let us know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12465 51I5SATF 1 and we'll comply with whatever would assist the Court. 2 MR. RUHNKE: Your Honor, on this issue -- I'm sorry. 3 On this issue of the exhibits, Ms. Baker is correct in her 4 e-mail exchange that the Yousry excerpts that were offered, and 5 particularly MY-1207X-1, MY-1231X-1, as well as MY-1717X and 6 MY-1730X-1 were not admitted -- 7 MS. BAKER: That's true of the 1200s, not of the 8 1700s. The 1700s excerpts are -- 9 MR. RUHNKE: That's right. The 1200 series of the 10 Yousry exhibits are prison calls. What we did is we introduced 11 prison calls in their entirety, the ones that Mr. Yousry 12 participated in. 13 What we propose is, as the government suggests, send 14 in the full transcript of each prison call because that's what 15 the underlying exhibit is but to inform the jury what the page 16 numbers are of the excerpts that they've asked for to help them 17 find what they're looking for. 18 THE COURT: So the government's proposal is accurate? 19 MR. RUHNKE: Except for the suggestion that we say 20 you've asked for X-1 in the 1200 series, say 1207X-1, this is 21 part of Exhibit 1207. The excerpts you require is about at 22 page X, Y, Z, whatever they are. 23 THE COURT: Where are you? 24 MR. RUHNKE: Second page of the e-mail, fourth line 25 down, two particular exhibits. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12466 51I5SATF 1 THE COURT: So your point, if I understand it, is that 2 we should send in the full transcripts, 1207 and MY-1207 and 3 MY-1231. 4 MR. RUHNKE: Yes; with the instruction that the 5 particular excerpts from those transcripts were read in Court 6 which you inquired about are located at pages X, Y and Z. 7 THE COURT: I have no problem tilling them -- I 8 haven't -- I'll read carefully the whole e-mail but with 9 respect to this issue we could say we are sending the full 10 transcripts, MY-1207 and MY-1231 which are in evidence and are 11 subject to a limiting instruction. And then the limiting 12 instruction is listed. MY-1207X-1 and MY-1231X-1 are located 13 at pages blanc de blanc -- are located at the following pages. 14 MR. RUHNKE: That's fine, your Honor. We will supply 15 the page numbers. 16 THE COURT: Right? 17 MS. BAKER: The government agrees with that, your 18 Honor. 19 One other point -- 20 THE COURT: Hold on, let me just make a note. 21 MS. BAKER: I'm sorry. 22 THE COURT: I think what I will do is I usually hand 23 write notes but on occasion I have them typewritten if they're 24 particularly long. So, it seems to me that I should take this 25 and do it on our word processing system. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12467 51I5SATF 1 Is there a disk or something that easily marks this 2 up? 3 MS. BAKER: Your Honor, I could certainly save it to a 4 disk and give it to your Honor. I don't have it here in the 5 courtroom already on a disk but I could certainly do that. 6 And if I could just make two -- 7 THE COURT: Hold on one moment while I make that 8 change. 9 Okay, Ms. Baker. I'm sorry. 10 MS. BAKER: I just wanted to clarify two things about 11 what is set forth in my e-mail. The first is that the total 12 number of exhibits responsive to the jury's request for all 13 SAMs and all attorney affirmations is a very large number, it 14 is a number in the 60s. So, the exhibits which are 15 specifically listed in my e-mail are not the total set of 16 exhibits, I have only listed ones that required limiting 17 instructions or ones that were added after the fact. 18 So, just so that the Court understands in phrasing the 19 note, there is a much larger number of exhibits, many of which 20 are not subject to any limiting instruction. If the Court 21 wants a full list of the exhibits, I could provide it. 22 THE COURT: Only if the parties think it is necessary 23 for me to give it, to record it. 24 MS. SHELLOW-LAVINE: Your Honor, we checked the 25 government's list against our own lists and added those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12468 51I5SATF 1 exhibits that we thought should be added. To the best of our 2 knowledge it is complete as the government has compiled it. 3 THE COURT: I -- wow. 4 MS. SHELLOW-LAVINE: Your Honor, on reflection, I 5 think we do need the list of exhibit numbers at least read into 6 the record so we know what the jury got. It's a relatively 7 extensive list. 8 THE COURT: Fine. We can do that. What I would like 9 to do is to take this and turn it into a note for the jury, but 10 there are some aspects of it that are just not clear to me. 11 The jury has given us several notes and we have 12 provided the documents to the jury with the exception of the 13 request for all SAMs and all attorney affirmations. And then 14 there were one -- I can't recall, one or two additional notes 15 that the parties were gathering the documents on. 16 MS. BAKER: That's correct, your Honor; it was one 17 additional note that came out at end of the day on Thursday 18 which note was marked as Court Exhibit 31. 19 THE COURT: Okay. When you say of all documents on 20 the handwritten list that we gave you in court yesterday 21 afternoon? 22 MS. BAKER: That is a reference to a handwritten list 23 that I had provided to Ms. Shellow-Lavine on Thursday which 24 listed all of the exhibits that the government at the time 25 believed were responsive to the request for all SAMs and all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12469 51I5SATF 1 attorney affirmations. And if the Court -- 2 THE COURT: I see. 3 MS. BAKER: -- wishes I can hand -- well, I can 4 certainly provide a copy of that list to the Court or I can 5 read all of the exhibit numbers into the record. 6 THE COURT: Okay. No, I understand. 7 MS. SHELLOW-LAVINE: Your Honor, perhaps Ms. Baker and 8 I could draft that note for you. I think she and I together 9 can probably do it and present you and the parties with a 10 draft. It might just be easier. 11 THE COURT: That's fine. Because, I mean, the way in 12 which the note would be drafted to the jury, I think there is 13 the back and forth between Ms. Baker and Ms. Shellow-Lavine and 14 to have them draft it -- 15 LS-11, LS-12, all of these are documents which are 16 responsive to the request for SAMs and attorney affirmations, 17 right? 18 MS. BAKER: Your Honor, everything in my e-mail 19 through the paragraph, through the line, the second line from 20 the bottom of the page 1 which begins with the number 2 in 21 parentheses. 22 THE COURT: Right. 23 MS. BAKER: At that point I switch from talking about 24 the request for all SAMs and all attorney affirmations to 25 talking about the exhibits responsive to the other note, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12470 51I5SATF 1 one that was marked as Court Exhibit 31. 2 THE COURT: Okay. All right. 3 MS. BAKER: The other thing that I wanted to clarify 4 is in discussing the exhibits responsive to the request for all 5 SAMs and all attorney affirmations I mentioned Government 6 Exhibit 370 and 370T, that's about three quarters of the way 7 down the first page of my e-mail. 370 is a videotape of Omar 8 Abdel Rahman being advised, in prison, of the content of the 9 SAMs that were imposed upon him as of whatever the date was 10 that the videotape was made. The videotape has portions in 11 English and portions in Arabic. 12 Then there is Exhibit 370T which is a translation of 13 the Arabic. So, if the jury wished that Exhibit 370, because 14 it's partially English and partially Arabic, they would have to 15 be brought into the jury room to view the video and then have 16 the translation also as an exhibit. 17 I think my suggestion would be that in the note that 18 the Court advise the jury what that exhibit is, that is Exhibit 19 370, that it's a videotape of Abdel Rahman being advised of the 20 SAMs. And that way the jury could decide whether they in fact 21 wish to see it or not. 22 THE COURT: I have no problem with that. That's fine. 23 MS. SHELLOW-LAVINE: Your Honor, are we doing the 24 drafting or are you? 25 THE COURT: I'm sorry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12471 51I5SATF 1 MS. SHELLOW-LAVINE: Would you like us to do the 2 drafting or are you going to draft? 3 THE COURT: I thought your last offer was you were 4 going to draft it. 5 MS. SHELLOW-LAVINE: I just wanted to make sure that 6 that was where we stood. We will take care of it. 7 THE COURT: Right. You said you and Ms. Baker were 8 going to draft it. Let me just go over the e-mail exchange to 9 see if there are any other issues that I have. 10 (Pause) 11 THE COURT: Now that I understand the note I can -- 12 let me draft it, that is what I would usually do, and I will 13 show you a copy. 14 So, it would be helpful if the government could 15 promptly provide me with a disk. 16 MS. BAKER: Your Honor, I will do that as soon as we 17 recess here in the courtroom. 18 MS. SHELLOW-LAVINE: Your Honor, I think you will also 19 need the list of exhibits that are responsive to the jury's 20 request. 21 THE COURT: If you could provide me that. And if the 22 parties agree, we will just read it into the record that these 23 are the exhibits being sent to the jury without having to list 24 them in the note to the jury. 25 MS. SHELLOW-LAVINE: That's fine, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12472 51I5SATF 1 THE COURT: And you can check it against exhibits that 2 actually go to the jury. 3 MS. SHELLOW-LAVINE: Your Honor, may I consult with 4 Ms. Baker for a moment, please? 5 THE COURT: Sure. 6 (Counsel conferring) 7 MS. SHELLOW-LAVINE: Thank you, your Honor. 8 MS. BAKER: Your Honor, Ms. Shellow-Lavine just 9 advised me that she believes there may be one additional 10 limiting instruction for one of the other exhibits that's on 11 the handwritten list and, if so, I will also provide that to 12 the Court with the disk and the list of all of the exhibits. 13 THE COURT: Okay. 14 I will talk to you in the robing room about the 15 individual issues. 16 (Pages 12473-12407 SEALED by order of the Court) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300