12508 51J5SATF 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 19, 2005 8 9:32 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 APPEARANCES 13 14 DAVID N. KELLEY 14 United States Attorney for the 15 Southern District of New York 15 ROBIN BAKER 16 CHRISTOPHER MORVILLO 16 ANTHONY BARKOW 17 ANDREW DEMBER 17 Assistant United States Attorneys 18 18 KENNETH A. PAUL 19 BARRY M. FALLICK 19 Attorneys for Defendant Sattar 20 20 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 21 Attorneys for Defendant Stewart 22 22 DAVID A. RUHNKE 23 DAVID STERN 23 Attorneys for Defendant Yousry 24 (Pages 12509-12530 SEALED by order of the Court) 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12531 51J5SATF 1 (In open court) 2 (Jury deliberations resumed; time noted: 10:18 a.m.) 3 THE COURT: I have received a note from the jury. It 4 will be marked as Court Exhibit 38. The parties are welcome to 5 inspect. 6 It says: Dan, we are starting deliberations. 329. 7 Then it says: May we have a couple of space heaters? 8 The room is very cold. 19 January, '05. 10:18 a.m. 9 I would like to send the Jurors Court Exhibit 39 which 10 is the list of exhibits that we are sending them and the -- I 11 will read that note into the record after we send it in, but I 12 would like to send that in with the exhibits. If you could 13 gather the exhibits together and check them against the list 14 and agree on them we could then send that note in. 15 MS. BAKER: For the record, your Honor, I'm going to 16 give to defense counsel, to inspect, the stack of all of the 17 exhibits that are responsive to the two outstanding requests 18 from the jury. And just so that the record is clear, the 19 larger set of exhibits, which is responsive to the request for 20 all SAMs and all attorney affirmations, corresponds to the list 21 that was in my letter of yesterday evening. It is a much 22 longer list than the exhibit numbers set forth in the Court's 23 note which only addresses those exhibits that have limiting 24 instructions. 25 THE COURT: I know. I'm going to read -- thank you. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12532 51J5SATF 1 I'm going to read that into the record also. 2 Mr. Fletcher is going to tell the marshal that we'll 3 break at 1:00. Are the parties satisfied with the note and 4 exhibits going in? 5 MR. MORVILLO: Yes, your Honor. 6 MS. SHELLOW-LAVINE: Yes, your Honor. 7 THE COURT: Defense counsel? 8 MR. STERN: Yes. 9 THE COURT: All right. 10 Counsel, Ms. Baker's January 18 letter indicates that 11 the following exhibits were responsive to the request for all 12 SAMs and all attorney affirmations, and so, this was the list 13 that went to the jury: Government's Exhibits 1 through 7; 14 Government's Exhibits 9 through 20; Government Exhibit 319 15 through 329; Government Exhibit 370 and 370T; Government 16 Exhibits 375, 376, 608, 906, 2037, 2061, 2063, 2083 and 2083A, 17 2305-1, 2307-1, 2312-3, 2313-5 through 2313-8, 2636, 2643, 2645 18 through 2648; 2652, 2653, 2655, 2657, 2659, 2662, LS-11, LS-12, 19 LS-203, LS-602 -- I'm sorry -- MY-602, MY-604, MY-605. 20 Have I read it correctly? 21 MS. BAKER: Yes, your Honor. 22 THE COURT: Okay. The next note should deal with the 23 time that we will break today at 1:00. 24 Could I talk to the lawyers at the side bar? 25 (Pages 12533-12534 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS (212) 805-0300 12535 51J5SATF 1 (In open court) 2 (Pause) 3 THE COURT: Counsel, I have written out that note and 4 it will be Court Exhibit 40 and the parties should inspect it 5 before it is given to the marshal. That's the note with 6 respect to timing. 7 MR. TIGAR: Okay. 8 THE COURT: I have previously given the parties a copy 9 of the letter from the January 13 letter from the New York 10 Times. 11 Do the parties -- 12 MR. RUHNKE: The letter is fine, your Honor. 13 THE COURT: That's Court Exhibit 40 and that's the 14 note with respect to timing. 15 THE DEPUTY CLERK: Giving that to the marshal. 16 THE COURT: The marshal is taking that note to the 17 jurors. 18 I had started to raise the letter from the New York 19 Times, do the parties want that marked as a Court Exhibit? 20 MR. TIGAR: Yes, your Honor. 21 THE COURT: Court Exhibit 41. 22 Yes? 23 MR. TIGAR: I did express some views about the subject 24 on the last occasion of the letter, your Honor, and those are 25 our views with respect to the issue. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12536 51J5SATF 1 THE COURT: Okay. 2 Let me just ask whether it is a correct statement of 3 the law that says it is a matter of discretion for the Court 4 when the Court discharges jurors and tells them that they're no 5 longer under the orders of the Court whether the Court advises 6 jurors that they should not talk about their deliberations and 7 that judges are divided on that -- on that question with 8 respect to the exercise of their discretion. 9 MR. TIGAR: Your Honor, that certainly is the purport 10 of the case that Mr. McCraw cites. I think that the authority 11 he cites in the last, the penultimate paragraph of his letter 12 which suggests that that discretion, if it exists, is a great 13 deal more circumscribed than perhaps that Eastern District of 14 New York case suggests. 15 I think we have here the intersection of three 16 principles. The first, of course, is the jurors' First 17 Amendment right to communicate to the press should they wish to 18 do so. And the undoubted fact, as the letter recognizes and 19 Justice Frankfurter said in Bollenbach, the Judge's words, 20 particularly at end of things when jurors and Judges have 21 worked together for a long time, carry a particular weight. 22 The second principle is the principle of public trial 23 to which Mr. McCraw does not advert directly but to which those 24 cases address, that is to say, time out of mind the press, in 25 reporting on the attitudes of trial participants and carrying SOUTHERN DISTRICT REPORTERS (212) 805-0300 12537 51J5SATF 1 into effect the Sixth Amendment public trial guarantee has 2 played the kind of important role to which the letter refers. 3 And the third question, and really related to the 4 first is the question of the exercise of judicial power. Of 5 course, the Court can't enter binding judgments in an advisory 6 sense and there is always this question of to what extent 7 judges believe they should use the moral authority they 8 undoubtedly possess to speak about questions that concern them. 9 And should they choose to do that -- and I think they should 10 and they do -- under what circumstances and what forum should 11 that power be appropriately exercised. 12 So, I cannot say that I can find a case that says that 13 your Honor's views are wrong. I have said that we disagree 14 with the decision that your Honor has made and believe that 15 there is even something to be said for protecting the juror's 16 right to choose by setting aside someplace in the court they 17 could go to should they choose to do so or they could get on 18 the bus. 19 But that's our view, your Honor. 20 MS. BAKER: Your Honor, the New York Times concedes in 21 its letter that your Honor has the discretion in this matter 22 and the government has no reason to doubt that that is a 23 correct statement of the law. 24 Mr. Tigar, in advancing the public interests that he 25 just articulated, first of all, carries the Sixth Amendment SOUTHERN DISTRICT REPORTERS (212) 805-0300 12538 51J5SATF 1 public trial guarantee a little bit too far. 2 Obviously the Sixth Amendment public trial guarantee 3 does not extend to what goes on inside a jury room. Jury 4 deliberations are of course expected to be conducted in private 5 and there is no Sixth Amendment authority that one could cite 6 to the contrary. 7 Moreover, Mr. Tigar does not acknowledge the 8 countervailing consideration that your Honor had acknowledged 9 in addressing this matter previously which is the very good 10 public policy reason for jurors to allow their deliberations to 11 be maintained as private and not be intruded into by the public 12 eye. And it is the privacy of jury deliberations that allows a 13 jury to explore its views fully and come to the unanimous 14 verdict that the law requires with all jurors being permitted 15 to express their views freely in the course of reaching that 16 result. 17 And so, in light of the fact that the Court does have 18 the discretion as the New York Times concedes, and in light of 19 this countervailing interest in the privacy of jury 20 deliberations, the government would suggest that your Honor 21 adhere to the course of action that you previously articulated. 22 MR. TIGAR: I had thought, your Honor, that Smith v. 23 Butterworth -- or is it Butterworth v. Smith -- answered 24 another First Amendment and not a Sixth Amendment matter, the 25 right of a juror, there a grand juror, to relate what happened SOUTHERN DISTRICT REPORTERS (212) 805-0300 12539 51J5SATF 1 once the relevant deliberations are over, and that that is a 2 constitutional principle. 3 The countervailing considerations of course enshrined 4 in Rule 606(B), but that's just a species of the parol evidence 5 rule, your Honor. 6 THE COURT: All right. 7 On another subject, at some point probably when I 8 discharge -- not discharge but adjourn for the day with the 9 jurors, I will tell them that if they haven't been paid already 10 that the payments are being processed, checks are being 11 processed. 12 Okay. See you later. 13 (Recess pending verdict) 14 THE COURT: Please be seated, all. 15 I have a note from the jurors marked as Court Exhibit 16 42. It says: 19 January '05: Judge Koeltl, please have both 17 vans at our pick-up points at 8:15. I have spoken to the 18 jurors and they said they would make an effort to be there by 19 this time. 20 Also, can the marshals be at the elevator so we can go 21 right up? On Tuesday and Thursday of next week we will sit 22 until 6:00 p.m., possibly 7:00 p.m. Number 329. 23 So, I would ask the marshal to make the necessary 24 arrangements. 25 The parties are welcome to inspect the note. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12540 51J5SATF 1 The van should be at the pick-up point at 8:15. Could 2 I ask when that means that the vans would likely arrive here so 3 that the jurors might begin deliberations? 4 THE MARSHAL: Roughly 9:00, your Honor. 5 THE COURT: 9:00. 6 So, starting tomorrow we should all be here at 9:00. 7 8 The marshal says it is really not different but we 9 should also arrange Tuesday and Thursday for the vans to be 10 ready at 6:00 rather than earlier, and the vans may well have 11 to wait. And we should start showing up at 9:00. 12 I'm checking on the issue of space heaters. 13 MR. STERN: All right, good. 14 (Pause) 15 THE COURT: I'm informed that there are space heaters 16 in storage and so they're going to pull them out and I have 17 asked them to bring them to the courtroom and provide them to 18 the marshal. I don't want anyone from the maintenance staff 19 going into the jury room. 20 The marshal advises me that someone does go into the 21 jury room to bring the coffee each morning so I point that out 22 to you. 23 But, the marshal will inspect the space heaters to see 24 if they're simple and can just be plugged in. Otherwise, we'll 25 have to see what else has to be done. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12541 51J5SATF 1 MR. TIGAR: Your Honor, does the coffee person enter 2 the jury room while the jurors are present? 3 THE COURT: I will ask the marshal. 4 Donnie, can you get the marshal? 5 (Marshal and Judge conferring) 6 THE COURT: The cafeteria person brings coffee in in 7 the morning before the jurors are here. We have not yet had an 8 occasion for an afternoon coffee break. If there were an 9 occasion for an afternoon -- and there won't be one today, the 10 cafeteria person would bring it in while the jurors are there. 11 I can send them a note and tell them to make -- I have 12 already told them with respect to any -- any time that the 13 marshal is there not to talk. I can tell them if they ever 14 have a coffee break not to talk while a cafeteria person is 15 present. 16 MR. TIGAR: Your Honor, as long as Mr. Donnelly 17 observes the event and ensures that that person doesn't say 18 anything to the jurors and so on, then I have absolute 19 confidence that the system is working as it should. 20 THE MARSHAL: Either myself or a representative from 21 the marshal's service is there. 22 THE COURT: Okay. All right. 23 The parties are welcome to inspect Court Exhibit 42. 24 MR. TIGAR: Does your Honor plan to respond? 25 THE COURT: I was. I was going to write them a note SOUTHERN DISTRICT REPORTERS (212) 805-0300 12542 51J5SATF 1 that says: We will of course honor your request to sit late on 2 any days and make appropriate transportation arrangements. On 3 another subject, we are attempting to get some space heaters 4 for you. Meanwhile, please make sure that the dial on the 5 radiator is turned to "5" -- is turned up all the way to "5." 6 MS. BAKER: Your Honor? 7 THE COURT: Yes. 8 MS. BAKER: Perhaps the first sentence should instead 9 say: We will of course honor your request to begin earlier and 10 to sit late. 11 THE COURT: It is not clear that it's -- okay, but -- 12 okay. 13 MS. BAKER: Oh. 14 (Pause) 15 THE COURT: All right. 16 I have a drafted a note that reads: Members of the 17 jury: We will of course to honor your requests to sit earlier 18 and sit later on any days and we will make the necessary 19 arrangements for your transportation. We are also attempting 20 to obtain space heaters. Meanwhile please make sure that the 21 dial on the radiator is turned all the way up to 5. 22 Satisfactory? 23 MS. BAKER: Yes, your Honor. 24 MR. RUHNKE: Yes. 25 THE COURT: That will be marked as Court Exhibit 43. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12543 51J5SATF 1 THE DEPUTY CLERK: Giving this to the marshal. 2 THE COURT: All right. See you later. 3 (Recess pending verdict) 4 THE COURT: Please be seated, all. 5 I waited to see if there might be another note about 6 the space heaters and there wasn't. And if matters work as 7 they should, at some point the building management will produce 8 space heaters and they should be delivered to the courtroom. 9 The parties should inspect them and if no one has a problem, 10 they can go to the marshal to be delivered to the jurors. 11 Unless anyone thinks there is an issue or that it 12 requires a note or anything like that I will leave it to you 13 all and the marshal. Is that satisfactory? 14 MS. SHELLOW-LAVINE: That's fine, your Honor. 15 MR. MORVILLO: That's fine with the government, your 16 Honor. 17 THE COURT: Okay. 18 (Recess pending verdict) 19 THE COURT: Please be seated, all. 20 (At 12:23 p.m., a note was received from the jury) 21 I received a note from the jurors marked as Court 22 Exhibit 44: January 19, '05: Judge Koeltl -- and the parties 23 are welcome to inspect the note, you will see that it is a list 24 of exhibits, one Exhibit is off to the right with an arrow and 25 other exhibits are listed: AS-7T, 2657, 8701T -- I'm sorry. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12544 51J5SATF 1 Let me start that list again. 2 2657. I think it's LS-701T, LS-702X, LS-705T, 1193X, 3 1220X. 4 And then, after a bracket around everything except the 5 first: We would like to have these chronologically by phone 6 call date. May we see and hear this evidence first thing 7 Thursday morning? 8 The parties are welcome to inspect. 9 MR. RUHNKE: Your Honor, I think it would be useful if 10 we all got copies of that note in terms of the assemblance of 11 exhibits. 12 THE COURT: Sure. 13 MR. FALLICK: Your Honor, AS-7T is a recording that 14 the jurors asked for last week which we did not play and we are 15 certainly prepared to play that first thing in the morning. 16 THE COURT: I read the note as asking for all of those 17 recordings to be played chronologically so I don't know where 18 AS-7T falls within that. 19 MR. MORVILLO: The note said, I thought your Honor 20 read that they wanted to see or hear, see/hear this first thing 21 tomorrow. I think some of these exhibits -- I'm not 22 positive -- may be Arabic language telephone calls. But we 23 will certainly double-check that. 24 MR. TIGAR: The note does say see and hear. 25 MR. MORVILLO: See and hear. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12545 51J5SATF 1 MR. TIGAR: Or, see ampersand hear. 2 MR. RUHNKE: Your Honor, one of the things we are 3 trying to figure out in the note is whether these are 4 Government's Exhibits, MY exhibits or not. They don't 5 designate them. 6 (Pause) 7 THE COURT: Counsel, while you are looking for the 8 exhibit the marshal has two space heaters which he's prepared 9 to deliver to the jurors, is that satisfactory? 10 MR. MORVILLO: The government looked at them, your 11 Honor. They looked fine to us. 12 MS. SHELLOW-LAVINE: They're fine with the defense, 13 your Honor. 14 THE COURT: Okay. All right, so the marshal can 15 deliver the space heaters to the jury. 16 Thank you. 17 (Pause) 18 (At 12:33 p.m., a note was received from the jury) 19 THE COURT: I have a second note which is Court 20 Exhibit 45: Judge Koeltl: 1/19/05, 1716, 1717, 1720, 1721, 21 1722, 1713. 22 And then it says, to the right: We want the 23 transcripts from the July 2001 visit. Number 329. 24 The parties are welcome to inspect. 25 MR. MORVILLO: Your Honor, may I step out a moment and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12546 51J5SATF 1 just call back to my office to get some backup here for 2 paralegals to start gathering the exhibits? 3 THE COURT: Yes. Sure. But it's unlikely we're going 4 to be able to send the exhibits to them before they break at 5 1:00. 6 MR. MORVILLO: I would like to start gathering them so 7 that we can be prepared to send them first thing tomorrow 8 morning. I can wait, if your Honor prefers. 9 THE COURT: The one thing that I wanted to try to do 10 was to send them a note which would say we have received your 11 note asking to see and hear certain exhibits tomorrow morning. 12 We will call you back into the courtroom tomorrow morning when 13 you are here and ready to deliberate to see and hear those 14 exhibits. 15 With respect to your subsequent note asking for 16 certain transcripts, we will provide those to you tomorrow 17 morning. 18 The one -- if there is an issue with respect to any of 19 these exhibits I would like to tell them now, that's why I was 20 holding up finishing the note. If, for example, there is an 21 exhibit that they've asked for which doesn't exist or is not in 22 evidence or -- 23 MR. MORVILLO: Your Honor, my understanding is that 24 we've already sent in Government Exhibit 2657. That went in 25 this morning with the earlier batch of exhibits. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12547 51J5SATF 1 MR. TIGAR: Your Honor, in addition, some of the 2 exhibits that they have requested, such in the second note such 3 as -- well, 1716, that is an original tape, videotape made in 4 Rochester. It was admitted only and then it was then enhanced 5 and the enhanced version was admitted, I think, only to the 6 extent reflected in the transcripts. 7 So, it's unclear from this list, this latest list 8 whether they want the transcript or do they want to come into 9 court and hear and see the visit, or exactly what. 10 MR. MORVILLO: Your Honor, I agree there is some 11 ambiguity in the note. I read it to mean they wanted the 12 transcripts of the July 2000 prison visit which correspond to 13 the numbers that they gave, but without the X extension 14 Mr. Tigar is absolutely right, that these refer and relate to 15 the tapes. 16 THE COURT: Okay. I can certainly ask them with 17 respect to the subsequent note we will provide those to you 18 tomorrow morning. If you wish -- and I can even list if there 19 are any specific exhibits which are in fact recordings I can 20 say, you know, Government Exhibit 1716 is a recording of -- 21 whether it's a portion of the visit or a portion of the visit. 22 Please let us know if you want to hear that recording or only 23 see the transcript. 24 MR. MORVILLO: That's fine with the government, your 25 Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12548 51J5SATF 1 MS. SHELLOW-LAVINE: Your Honor, according to my 2 records, all of the exhibits in the second note, including 3 1713, are the original tapes that Mr. Tigar described; 1713 is 4 not from the July visit, it is from the May 2000 visit. 5 THE COURT: Well, then I can say: However, the 6 exhibit numbers you provided to us are the numbers for the 7 recordings rather than the transcripts. Please let us know in 8 a note whether you wish to see and hear the recordings in 9 addition to seeing the transcripts. 10 Is that satisfactory? 11 MS. SHELLOW-LAVINE: That's satisfactory, your Honor. 12 MR. MORVILLO: Yes, your Honor. 13 THE COURT: So the parties know what the transcripts 14 are that are being requested, right? 15 MS. SHELLOW-LAVINE: Yes, your Honor. 16 THE COURT: And it is just a question of whether they 17 also want to see and hear. 18 With respect to the first note, are there any issues 19 with respect to any of those exhibits? 20 MR. MORVILLO: No, your Honor. Other than the one I 21 pointed out, which is that 2657 we have previously sent back to 22 the jury. We do not have the original here, the jury has it. 23 THE COURT: Is that a transcript? 24 MR. MORVILLO: No, your Honor. It is a -- it is a 25 document that was found during the search of Ms. Stewart's SOUTHERN DISTRICT REPORTERS (212) 805-0300 12549 51J5SATF 1 office. 2 THE COURT: Oh. Why is it referred to -- well, we can 3 just say -- 4 MS. SHELLOW-LAVINE: Your Honor, it is in the batch of 5 SAMs and affirmations that were provided this morning. 6 THE COURT: Okay, here is the note that I would 7 propose to give to them. 8 Members of the jury. We have received your note 9 asking to see and hear certain exhibits tomorrow morning. Of 10 that list, you already have Government Exhibit 2657. We will 11 call you back into the courtroom tomorrow morning when you are 12 here and ready to deliberate to see and hear the remaining 13 exhibits. 14 With respect to your subsequent note asking for 15 certain transcripts, we will provide those to you tomorrow 16 morning. However, the exhibit numbers you have provided to us 17 are the numbers for the recordings rather than the transcripts. 18 Please let us know, in a note, whether you wish to see and hear 19 the recordings in addition to seeing the transcripts. 20 Is that satisfactory? 21 MR. MORVILLO: Yes, your Honor. I just have one 22 question and I would like to confer with Ms. Shellow-Lavine 23 about referring to Exhibit 1713. 24 MR. RUHNKE: I also just have a question of how we are 25 going to proceed tomorrow. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12550 51J5SATF 1 When the jury says they want to see and hear, I'm not 2 sure what that means. I mean, obviously English language calls 3 they would have to have played in the courtroom with the aid of 4 the transcript but several of their requests are for Arabic 5 calls and intercepts that have been translated and I'm not sure 6 what we are going to do about that. Are we going to just put 7 them up on the screen and let them read them? 8 I'm not clear what they want to do about that. 9 MR. MORVILLO: I'm not sure which ones are Arabic 10 calls. They're all in English as far as I know. 11 MR. RUHNKE: Some of them carry T designations which I 12 thought meant translations. 13 MR. MORVILLO: Those are LS exhibits, 702 and 705. 14 MR. RUHNKE: They're all English. 15 MR. MORVILLO: That's my understanding. 16 MR. RUHNKE: If they're all English then it makes 17 perfect sense. 18 THE COURT: How about 1193 and 1220? 19 MR. MORVILLO: They're both English language telephone 20 calls, your Honor. 21 And just for the purposes of clarification, they 22 appear in chronological order as follows: LS-705T is a call on 23 May 17th of 2000; LS-701T is a call on June 16th of 2000; 24 LS-702X is a call on June 16th of 2000; 1193X is call on 25 October 11th of 2000; 1220X is call on January 8 of 2001; and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12551 51J5SATF 1 AS-7T is a call on September 4th of 2001. 2 So, I believe unless I am wrong, that should be the 3 order they're played back in, tomorrow. 4 MS. SHELLOW-LAVINE: We concur, your Honor. 5 MR. MORVILLO: And also, your Honor, just with respect 6 to the second note, there is no Government Exhibit 1713X. 1713 7 is a recording, a duplicate recording of one segment of the May 8 2000 prison visit. 9 THE COURT: So what's going to be done with 1713? 10 MR. MORVILLO: I think that would be the source of the 11 clarification that your Honor is writing now to the jury, to 12 see whether they want to actually see and hear the 1700 series 13 exhibits or whether they just want the transcripts. But there 14 is no transcript that corresponds to 1713. I believe that 15 corresponding transcript would be 1712X. 16 MS. SHELLOW-LAVINE: I believe, your Honor, that 17 Mr. Morvillo is correct. There is no transcript that 18 corresponds to 1713 and it appears to be the last segment of 19 the May 20th, 2000 prison visit, that is, the recording itself 20 is the last recording -- 21 THE COURT: 1713 is the recording? 22 MS. SHELLOW-LAVINE: Yes, 1713 is the recording. 23 THE COURT: Well, the note then is accurate and 24 sufficient, right? 25 MR. MORVILLO: The note that you are proposing to send SOUTHERN DISTRICT REPORTERS (212) 805-0300 12552 51J5SATF 1 back, your Honor? 2 THE COURT: Right. 3 MR. MORVILLO: I believe it is. 4 MS. SHELLOW-LAVINE: We agree. 5 THE COURT: Okay. Let me write it out. 6 (Pause) 7 THE COURT: All right, this will be Court Exhibit 46 8 and I have attempted to transcribe the note accurately. The 9 parties should read it over to make sure that it corresponds 10 precisely to what I read because I have written the note over. 11 And we will make copies of the jury notes for you. 12 MR. RUHNKE: The note is satisfactory, your Honor. 13 THE COURT: Thank you. 14 THE DEPUTY CLERK: Giving it to the marshal. 15 THE COURT: And for the government, is it satisfactory 16 also? 17 MR. MORVILLO: Yes, your Honor. 18 THE COURT: The marshal should deliver the note to the 19 jury and we've got about five minutes before 1:00 and I have 20 told the marshal to bring the jury in at 1:00 in accordance 21 with their prior note. 22 I will give my standard instructions when the jury 23 leaves. Is there anything else that I should tell the jurors? 24 MR. RUHNKE: I don't think so, your Honor. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12553 51J5SATF 1 (Pause) 2 THE COURT: Note, 1/19/05, marked Court Exhibit 47. 3 (At 1:04 p.m., a note was received from the jury) 4 Judge Koeltl -- there is a note crossed out which 5 says: We would also like the transcripts with the recordings. 6 And then there is a note that says: We just want the 7 transcripts of the July 2001 visits. Number 329. 8 And then, also, some of the danish were stale, please 9 ask them for fresh. 10 We will do that. 11 And the parties are welcome to inspect the note and we 12 can talk about it after we let the jury go. I will mention to 13 the jurors that we will look into the issue of pay and attempt 14 to do a better job on the food. 15 All right, let's bring in the jury. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12554 51J5SATF 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Good afternoon, ladies and gentlemen. 4 THE JURY: Good afternoon, your Honor. 5 THE COURT: It is good to see you all. 6 Ladies and gentlemen, just some administrative 7 details. I know that your checks for jury service are being 8 processed and I hope that they'll be available very shortly. 9 We will try and do a better job on the food. We will. 10 Please, always remember to follow my continuing 11 instructions, they're very important. I can't understate the 12 importance of the instructions. Remember not to talk about the 13 case other than when all 12 of you are together and 14 deliberating. 15 So, what that means is when you leave the jury box 16 now, please don't talk about the case because you are in the 17 process of leaving. Don't talk about the case in the vans or 18 with anyone else when you go home. Don't talk about the case 19 when you come back tomorrow morning when you are in the vans. 20 Don't start deliberating until -- or talking about the case, 21 don't talk about the case at all until all 12 of you are 22 present and the foreperson has advised us that you are all here 23 and ready to deliberate. 24 At that point when we hear that I will bring you back 25 in the courtroom for the exhibits that you have asked to see SOUTHERN DISTRICT REPORTERS (212) 805-0300 12555 51J5SATF 1 and hear. Remember, please, don't look at or listen to 2 anything to do with the case when you go home. Don't look at 3 or listen to anything to do with the case. 4 If you should see or hear something inadvertently, 5 please, simply turn away. It's very important. Don't look at 6 or listen to anything to do with the case. If you should see 7 or hear something inadvertently, simply turn away. 8 Remember to leave everything to do with the case in 9 the jury room; notes, exhibits -- anything to do with the case 10 please leave in the jury room. 11 Have a very good afternoon and evening. I look 12 forward to seeing you tomorrow. 13 All rise, please, and please follow the marshal to the 14 jury room. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12556 51J5SATF 1 (Jury not present) 2 THE COURT: All right, please be seated, all. 3 I think it was one of the jurors who banged the door 4 going out. 5 THE DEPUTY CLERK: The door hit the table. 6 THE COURT: Oh, all right. 7 How do the parties interpret the last note? 8 MR. MORVILLO: Your Honor, it seems clear from the 9 note that they just want the transcripts from the July 2001 10 prison visit. However, that is it slightly contradicts the 11 prior note which also asks for Government Exhibit 1713 which is 12 from the May 2000 prison visit. 13 And so, there is that ambiguity that remains open but 14 it is clear from their note that they only want the transcripts 15 from the July 2001 prison visit to be sent back. 16 THE COURT: The prior note, did that note include 17 transcripts of the May 2000 and the July 2001 visit? 18 MS. SHELLOW-LAVINE: Only one of the exhibits listed 19 in the prior note was from the May 2000 visit. It wasn't the 20 complete set. 21 MR. MORVILLO: Your Honor, the jury already has two 22 transcripts from the May 2000 prison visit, 1707X and 1710X. 23 THE COURT: Well, to the extent that the request is 24 for recordings or transcripts of the July 2001 visit it is 25 clear that the jury only wants the transcripts of the July 2001 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12557 51J5SATF 1 visit. That leaves open the one transcript from the May 2000 2 visit, yes? 3 MS. BAKER: That's correct, your Honor. The 4 government's suggestion would be that as an initial matter we 5 provide the jury only with the July 2001 visit and if they 6 truly do wish that piece of the May 2000 visit, they will 7 undoubtedly reiterate their request. 8 That one exhibit number that they requested, 1713, is 9 just a recording of a very little piece of the very end of the 10 second day of the visit. It's not even anything that has a lot 11 of substance in it so it seems to us possible that that wasn't 12 what they intended to request so we would suggest proceeding in 13 the manner that I just stated. 14 MS. SHELLOW-LAVINE: Your Honor, one moment. 15 (Counsel conferring) 16 MS. SHELLOW-LAVINE: That's fine, your Honor. We have 17 no objections to the procedure outlined by Ms. Baker. 18 THE COURT: All right. 19 Here is a proposed note to the jury. It reads: 20 Members of the jury, we are providing to you the transcripts of 21 the July 2001 prison visit as you requested. One exhibit that 22 you requested, GX-1713, is a recording that corresponds to a 23 portion of the May 2000 prison visit. You already have the 24 transcripts of that visit. Please let us know if you wish 25 anything in addition. We will now call you back into the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12558 51J5SATF 1 courtroom to see and hear the exhibits -- the other exhibits 2 that you requested yesterday. 3 MS. SHELLOW-LAVINE: Your Honor, they do not have all 4 of the transcripts from that visit. They have selected 5 portions. 6 THE COURT: Okay. How about: You already have some 7 transcripts of that visit. Please let us know if you wish 8 anything in addition. 9 MS. SHELLOW-LAVINE: I think that's fair. 10 MS. BAKER: That's fine with us on that point, your 11 Honor. 12 I also wanted to let the Court know that the July 2001 13 prison visit was subject to a limiting instruction, the precise 14 language of which I do not have here. I can supply it to the 15 Court once I get back to my office. 16 It was, in substance, that Abdel Rahman's statements 17 about his prison conditions and health were not offered for 18 their truth. 19 THE COURT: Does anyone have it handy? 20 MS. SHELLOW-LAVINE: In just a moment, your Honor, I 21 will have it handy. 22 MS. BAKER: While Ms. Shellow-Lavine is looking for 23 that, as I recall there were also limiting instructions for the 24 Lynne Stewart English language telephone calls that the jury 25 requested which are LS-705, LS-701 and LS-702. Again, I don't SOUTHERN DISTRICT REPORTERS (212) 805-0300 12559 51J5SATF 1 have those with me. I was going to circulate them when I get 2 back to my office. 3 MS. SHELLOW-LAVINE: Ms. Baker is correct, there are 4 limiting instructions with respect to those exhibits and we 5 were going to confer to make certain we agreed on the content 6 of those limiting instructions. 7 THE COURT: Okay. Well, that's fine. 8 If you would fax me the limiting instructions that you 9 want me to include in the note and I will write out the note 10 and show it to all of you tomorrow morning. 11 MS. SHELLOW-LAVINE: We will do that, your Honor. 12 THE COURT: And so, if you would be here by 9:00 13 tomorrow? Okay. 14 Anything else? Is the jury gone? 15 THE MARSHAL: Yes, your Honor. 16 THE COURT: Okay. Have a good evening, all. 17 (Adjourned to 9:00 a.m., Thursday, January 20, 2005.) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300