12591 51P5SATF 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 25, 2005 8 9:43 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 (212) 805-0300 12592 51P5SATF Deliberations 1 (Jury deliberations resumed; time noted: 9:43 a.m.) 2 MS. SHELLOW-LAVINE: Your Honor, Mr. Tigar will be 3 with us shortly. I, unfortunately, have no voice. 4 THE COURT: Good morning, all. 5 ALL COUNSEL: Good morning, your Honor. 6 THE COURT: I have received a note and marked it as 7 Court Exhibit, or had it marked Court Exhibit 58. 9:43 a.m., 8 25 January, '05. Dan, we are ready to start deliberating. 9 Number 329. 10 The parties are welcome to inspect the note. 11 I also wanted to bring to your attention that, as I 12 think you know, one of the jurors on Sunday evening called the 13 marshal to say that that juror couldn't make it yesterday 14 because of the snow, driving. And so, the jurors were told 15 to -- the message was left after various telephone calls with 16 Mr. Grate and the marshal and Mr. Fletcher. The message was 17 left for the jurors to report today at the regular time and 18 place and Mr. Fletcher notified all of you. I was told the 19 juror number but I don't see any reason to put that on the 20 record. 21 Mr. Fletcher advises me that when the jurors gave the 22 menus to the marshal this morning they put a post-it note on 23 that said they wanted lunch at noon today. Mr. Fletcher 24 believes that can be done. Whenever the jurors get their lunch 25 today he will notify you and we will hold notes for an hour. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12593 51P5SATF Deliberations 1 All right? Good morning, all. 2 (Recess pending verdict) 3 THE COURT: Please be seated, all. 4 I have three notes. Court Exhibit 59. 25 January, 5 '05. Judge Koeltl, we need the following: 7020T and the 6 Fatwah. 329. 7 Court Exhibit 60. Judge Koeltl, 25 January, '05. We 8 need the following. 1167X, 1170X. Number 329. 9 Court Exhibit 61. Judge Koeltl, may we have and see 10 the following: 1201A, 1094X, AS-14. Number 329. 11 The parties are welcome to inspect. 12 MS. BAKER: Your Honor, in response to the first note 13 which is marked as Court Exhibit 59, as I heard your Honor say 14 it and as Livenote reflects, the jury asked for -- okay, and 15 Mr. Barkow has looked at the note and tells me that that's what 16 the note says as well -- that the jurors have asked for 7020T, 17 that's 7-0-2-0-T. There is no such exhibit. 18 I would infer from the note but your Honor may wish to 19 write back and ask them, that what they really want is 2070T; 20 2070T which is the transcript or translation of the recording 21 of Abdel Rahman making his speech in which he says sink their 22 ships, shoot down their planes, etc., which would meet the 23 description of Fatwah, which is the other word that they said 24 in that note. 25 Your Honor, also that note says "and the Fatwah" and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12594 51P5SATF Deliberations 1 perhaps we need to ask them as well what they mean about 2 "Fatwah" because that word was used to refer to more than one 3 exhibit in this case. 4 THE COURT: Are there any questions with respect to 5 any of the other exhibits? 6 MS. SHELLOW-LAVINE: We're checking them, your Honor. 7 MS. BAKER: Your Honor, just to clarify, for 2070, 8 which is the recording of Abdel Rahman, 2070 itself is the 9 audio tape and the translation that's in evidence is actually 10 marked as 2070TA because it's the translation of side A of the 11 audio tape. 12 And 1201A, which was requested by the jury in the 13 third note, the one marked as Court Exhibit 61, that is an 14 audio file, 1201A, of an English language call. And so, the 15 jury would need to be brought into the courtroom for the 16 presentation of that exhibit. 17 Your Honor, if we might have a minute to confer about 18 limiting instructions for some of the exhibits? 19 MR. BARKOW: Your Honor, could we see the notes again 20 for one second, please? 21 THE COURT: Mr. Fletcher just handed me another note, 22 it is marked as Court Exhibit 62. Judge Koeltl, we would like 23 the following evidence: 1179X, 1185X, 1177X, 1182X, 1197X, 24 1188X, 1192X. Number 329. 25 The parties are welcome to inspect. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12595 51P5SATF Deliberations 1 MS. SHELLOW-LAVINE: Your Honor, I have conferred with 2 Ms. Baker on limiting instructions and she is going to recite 3 them but we agree with respect to the first note -- 4 THE COURT: Counsel, please. I want to listen to 5 Ms. Shellow-Lavine. 6 MS. SHELLOW-LAVINE: And she apologizes for her lack 7 of voice. 8 With respect to Court Exhibit number 58, the one, they 9 requested 7020 and the Fatwah. Our suggestion would be just a 10 simple note saying there is no such exhibit number and asking 11 them to be more specific about what they want without any 12 reference to either Exhibit 2070 or to any Fatwah. 13 THE COURT: And I take it the same with respect to the 14 Fatwah? 15 MS. SHELLOW-LAVINE: Yes. Exactly, your Honor. 16 MS. BAKER: Your Honor, if you are going to take that 17 sort of an approach and not provide them with any information 18 we would ask, at a minimum, that your Honor ask them two 19 questions in the note which is there is no 7020T, tell us more 20 about what you want. And, as a separate question, tell us more 21 about what you want when you say the Fatwah; because we do 22 believe because of the word and in the note that they were 23 asking for two separate items. 24 THE COURT: Oh, I think they were too and I will ask 25 two separate questions. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12596 51P5SATF Deliberations 1 MS. SHELLOW-LAVINE: That is what I had intended, your 2 Honor. 3 THE COURT: Fine. 4 MS. BAKER: As far as the limiting instructions, for 5 the note marked Court Exhibit 60 which requested 1167X and 6 1170X; for 1167X the limiting instruction -- 7 THE COURT: Could I ask, could you just write it out 8 for me? 9 MS. BAKER: Sure. 10 THE COURT: It will probably be easier for me. 11 MS. BAKER: I will write it out right now and just so 12 that your Honor knows, it is essentially the same limiting 13 instruction for 1167X and 1170X which is that note. And then 14 the next note, which is Court Exhibit 61, 1201A, as I stated 15 earlier, is the audio file. 16 THE COURT: Right. 17 MS. BAKER: There is no limiting instruction for that 18 except we would request to display the corresponding transcript 19 while the audio is played. The transcript is 1201X and the 20 transcript would get an instruction that it's an aid to the 21 jury because the recording itself is the evidence. 22 1094X, which was requested in the same note, has no 23 limiting instruction. 24 AS-14 requested in the same note does have a limiting 25 instruction and I will write that one out as well. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12597 51P5SATF Deliberations 1 And I have not yet had a chance to check and confer 2 with Ms. Shellow-Lavine about the seven or so transcripts 3 requested in the next note, which is Court Exhibit 62. So, 4 your Honor can let me know how you would prefer to proceed. If 5 we want to start sending some things in to them I would propose 6 to write out the instructions that I have identified so far 7 before turning to those other ones. 8 THE COURT: Will it take much time to get the other 9 items? 10 MS. BAKER: No. It is just a matter of us searching 11 our database to determine whether there are limiting 12 instructions and then conferring with Ms. Shellow-Lavine about 13 them. All of the exhibits are here in the courtroom and 14 readily available. 15 THE COURT: Well, if possible, I would like to send 16 them all in together then if there are just seven additional 17 ones. 18 MS. BAKER: Your Honor, we are ready whenever you are. 19 THE COURT: Thank you. 20 Do the parties have any view -- the jury spelled 21 Fatwah F-A-T-W-A, so in my note back to them I will spell it 22 the same way. 23 Do you have all the other exhibits? 24 MS. BAKER: I do. And for the record, before I hand 25 the piece of paper up to the Court, in response to the jury's SOUTHERN DISTRICT REPORTERS (212) 805-0300 12598 51P5SATF Deliberations 1 last note which is marked Court Exhibit 62, the first four 2 exhibits requested in that note do not get any limiting 3 instruction; those are 1177X, 1179X, 1182X and 1185X. The last 4 three exhibits requested in that note do get a limiting 5 instruction, that is, 1188X, 1192X, and 1197X; and those three 6 get the same limiting instruction as the two calls in the note 7 which is Court Exhibit 60. 8 So, I'm about to hand the Court a piece of paper. At 9 the top of the page is what the parties agree is the proper 10 limiting instruction for a total of five of the calls which is 11 the two from the one note and the three from the other, and 12 then further down on the page is the limiting instruction for 13 AS-14. 14 MS. SHELLOW-LAVINE: And your Honor -- 15 MS. BAKER: Sorry. 16 As to Government Exhibit 1197X, one of the 17 participants in that call is an individual named Muntasir and 18 at the time that that call was presented there was a 19 stipulation that the Muntasir in that call was not Muntasir 20 Al-Zayat. 21 Ms. Stewart's counsel has requested that the jury be 22 reminded of that stipulation and we have no objection to that. 23 THE COURT: All right. 24 MS. SHELLOW-LAVINE: We have reviewed Ms. Baker's note 25 and have no objections to it. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12599 51P5SATF Deliberations 1 THE COURT: All right. 2 I have another note, Court Exhibit 62. 25 January 3 '05. Judge Koeltl, may we have a two foot by three table to 4 organize the evidence? Thank you. Number 329. 5 And I will ask the marshal if he can find an 6 appropriate size table. 7 The parties are welcome to inspect the note. 8 The note that I am going to send, and I'm in the 9 process of writing it -- it sometimes takes me a while -- 10 begins as follows: 11 Members of the jury, I am sending you the exhibits you 12 requested subject to the following exceptions. I have also 13 provided to you below any limiting instructions that apply to 14 any of the exhibits. You have requested 7020T but there is no 15 exhibit of that number. Please be more specific about what you 16 are requesting. You have also requested the Fatwah, please be 17 more specific about what you are requesting. 18 I would then intend to give them the limiting 19 instruction with respect to the five exhibits then explain to 20 them that 1201A is an English language call. We would call 21 them back in and let them listen to that call and they can 22 review the transcript as an aid to that call when it is played. 23 Was there any limiting -- oh, yes. And then I would 24 give them the limiting instruction on AS-14 and tell them about 25 the stipulation and 1197X. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12600 51P5SATF Deliberations 1 How is Muntasir spelled there? 2 MS. BAKER: Your Honor? I'm sorry. One thing that I 3 stated earlier the government now is not sure is accurate so 4 we're checking again with Ms. Shellow-Lavine, and that is about 5 the reference to Muntasir in that one call. 6 THE COURT: Oh. 7 MS. BAKER: I think that that is not in fact 1197X so 8 we're looking into it further. 9 THE COURT: Okay. Is the note along those lines 10 acceptable to everyone? 11 MR. RUHNKE: Yes, sir. 12 MR. PAUL: Yes, your Honor. 13 MS. BAKER: Yes, your Honor. 14 THE COURT: I would hate to write it all out and be 15 told that there was a question with respect to the first 16 sentence. 17 MS. SHELLOW-LAVINE: Your Honor, in light of the 18 amount requested do you want to indicate to them we will play 19 1201 whenever they request it? 20 THE COURT: Yes. Yes. 21 MS. BAKER: Your Honor, I have conferred further with 22 Ms. Shellow-Lavine and we agree that the stipulation that I 23 stated earlier does not apply to 1197X, it was a different 24 call. 25 THE COURT: It made more sense to me to give the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12601 51P5SATF Deliberations 1 limiting instruction for AS-14 right after GX-1167X and then to 2 come back to 1201. 3 Is it correct to say 1201A is the recording of an 4 English language call? 5 MS. BAKER: Yes, your Honor. 6 THE COURT: Let me return to the government the 7 limiting instructions that they wrote out. And I am giving 8 Mr. Fletcher the last five jury notes and we will make copies 9 for you, as you requested. 10 Today's date is January 25th. 11 My note to the jury reads as follows and the parties 12 should inspect it. It will be marked Court Exhibit 64. It 13 reads: 14 Members of the jury, I am sending you the exhibits you 15 requested subject to the following exceptions. I have also 16 provided to you below any limiting instructions that apply to 17 any of the exhibits. 18 You have requested 7020T but there is no exhibit with 19 that number. Please be more specific about what you are 20 requesting. 21 You have also requested the Fatwah, please be more 22 specific about what you are requesting. 23 Government Exhibit 1167X, Government Exhibit 1170X, 24 Government Exhibit 1188X, Government Exhibit 1192X and 25 Government Exhibit 1197X, are subject to the following limiting SOUTHERN DISTRICT REPORTERS (212) 805-0300 12602 51P5SATF Deliberations 1 instruction: These transcripts are offered only as to Counts 2 Two and Three of the indictment. They cannot be considered 3 against Ms. Stewart or Mr. Yousry for the truth of any of the 4 matters asserted in the transcripts. 5 AsS-14 is subject to the following limiting 6 instruction: This exhibit is received not for the truth of any 7 of the statements in the exhibit but solely with respect to 8 Mr. Sattar's knowledge, intent and state of mind. 9 1201A is the recording of an English language call. 10 Whenever you wish to hear that recording, please send us a note 11 and we will call you back into the courtroom to hear that 12 recording and the transcript will be displayed as an aid to 13 your listening to the recording. 14 We will attempt to find a table for you to use as you 15 requested. Signed and dated. 16 There is a table. So, I'm not inclined to rewrite the 17 note. 18 First of all, is the note satisfactory? 19 MR. RUHNKE: Yes, your Honor. 20 MS. SHELLOW-LAVINE: Yes, your Honor. 21 MS. BAKER: Yes, your Honor. 22 THE COURT: And the parties should inspect it before 23 it goes to the jury. 24 MS. SHELLOW-LAVINE: Your Honor, I'm going to tender 25 to Mr. Fletcher the exhibits. We have been through them and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12603 51P5SATF Deliberations 1 they are in the order that they requested. 2 MR. RUHNKE: Your Honor, we have all reviewed the 3 note. 4 THE COURT: Satisfactory? 5 MR. RUHNKE: Yes, your Honor. 6 THE COURT: Government? 7 MS. BAKER: Yes, your Honor. 8 THE DEPUTY CLERK: Giving the exhibits plus the note 9 to the marshal. 10 THE COURT: Now, after the marshal gives that note and 11 the exhibits to the jury, the parties are welcome to inspect 12 the table which is sitting over there and the marshal will then 13 bring it into the jury room. 14 MS. BAKER: Your Honor, I believe the parties have 15 already inspected the table. 16 THE COURT: Okay. Do the parties want me to send any 17 note to the jury with the table? 18 MR. RUHNKE: I think they'll recognize it when it 19 arrives, your Honor. 20 THE COURT: Okay. I did perceive that. The actual 21 reason for my question was whether the parties wanted me to 22 take any extra precautions to tell the jury, you know, stop 23 talking and all. Because I assume that the marshal is going to 24 have to take that in, he is not going to just knock on the door 25 and give it to the jurors. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12604 51P5SATF Deliberations 1 MS. SHELLOW-LAVINE: Your Honor, I don't think that a 2 note is necessary. I think that the marshal can deliver the 3 table. 4 THE COURT: Okay. The marshal can take the table to 5 the jury room, just please make sure that the jurors stop 6 talking when you knock on the door and take the table in. 7 THE MARSHAL: Absolutely, your Honor. 8 THE COURT: All right. See you all later. 9 (Recess pending verdict) 10 (Luncheon recess) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12605 51P5SATF Deliberations 1 A F T E R N O O N S E S S I O N 2 2:09 p.m. 3 THE COURT: All right, the reporter is here. I have a 4 note. There is a notation 1305 on the back. On the front I 5 have marked it Court Exhibit -- had it marked, it's marked, 6 Court Exhibit 65. 25 January '05. Judge Koeltl, may we hear 7 the recording 1201A now? May we also have MY-1730, 1030X, 8 1053X. Number 329. 9 I had read that before when I wasn't aware that the 10 court reporter wasn't here. 11 MS. BAKER: Your Honor, just to correct the record, at 12 least based on our inspection of the note as compared to what 13 happened earlier in the trial, we believe that the note asks 14 for MY-1730X1, that is both what the note appears to us to say 15 and also that exhibit was received in evidence at trial whereas 16 1730X had a sustained objection to it during the trial. 17 THE COURT: Oh, thank you. Okay. 18 Do you agree, Mr. Ruhnke. 19 MR. RUHNKE: Yes, I agree the note says X1. 20 THE COURT: I missed the 1. 21 MR. RUHNKE: There is a limiting instruction. We have 22 agreed as to what it is. 23 THE COURT: Okay. What about for 1051 and 1053. 24 MS. BAKER: Your Honor, there is no limiting 25 instruction for either of those exhibits. We do have them SOUTHERN DISTRICT REPORTERS (212) 805-0300 12606 51P5SATF Deliberations 1 ready to go but actually as to 1730X1 it is the government's 2 belief that the jury already has that exhibit because they 3 previously requested that same exhibit in a note which they 4 sent out on January 13th, the note that was marked as Court 5 Exhibit 31. 6 So we believe that a photocopy of that exhibit, 7 MY-1730X1, was previously given to them in response to their 8 previous note. 9 MS. SHELLOW-LAVINE: Your Honor, according to my notes 10 that particular exhibit was requested for delivery on Tuesday, 11 the 18th of January. We didn't sit that day. 12 The next day that we sat, because of the holiday, it 13 was Martin Luther King's day on the 17th, and then on the 18th 14 for one reason or another which escapes my recollection, we 15 didn't sit on the 18th. And so, the next date that that 16 exhibit would have been delivered to the jurors was the 19th. 17 And I don't see in the transcript on the 19th a note from the 18 Court transmitting the exhibit that had been requested for 19 Tuesday morning. It may be that they asked for it and we just 20 never delivered it to them. 21 I can't tell. 22 MR. RUHNKE: I don't recall, your Honor, the sequence. 23 Certainly what might make sense is simply to write a 24 note saying we believe you may already have this exhibit, 25 nevertheless we are sending in another copy. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12607 51P5SATF Deliberations 1 THE COURT: I have no problem with that. 2 MS. BAKER: Your Honor, we don't object to that. And 3 just to be clear, when I said that it was requested in a note 4 on the 13th, I was getting that information from the actual 5 trial transcript of January 13th. We actually have a copy of 6 that Court Exhibit here, it was Court Exhibit 31 and it's dated 7 on it 1/13/2005. 8 THE COURT: They did ask for 1730X1? 9 MS. BAKER: Yes. 10 THE COURT: Okay. 11 MS. BAKER: This is a note that asks for seven 12 exhibits and the second one on here says MY-1730X1. 13 THE COURT: Okay, but no one has a problem with us 14 sending another copy of that exhibit, right? 15 MR. MORVILLO: That's fine with the government, your 16 Honor. 17 MS. BAKER: That's fine with us, as long as they are 18 reminded of the limiting instruction. 19 THE COURT: Yes. Okay. 20 Do you want to pass it up? 21 MS. BAKER: I'm handing up a handwritten copy of the 22 limiting instruction which the defendants have reviewed. And 23 I'm also going to hand the three exhibits to Mr. Fletcher. 24 THE DEPUTY CLERK: Has everybody checked it? 25 THE COURT: No so fast. I will draft the note and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12608 51P5SATF Deliberations 1 give you the note and all of the exhibits and you can all 2 inspect them before they go back. And then Mr. Fletcher will 3 hand them to the marshal. Thank you. 4 Is it all right to say with respect to MY-1730X1 we 5 may have sent you this exhibit before but we are sending you 6 another copy? 7 MR. RUHNKE: Yes, your Honor. 8 THE COURT: All right. Let me return the limiting 9 instruction to the government. 10 The note to the jury reads as follows: Members of the 11 jury, I am providing the you three exhibits you requested. 12 With respect to MY-1730X1, we may have sent you this exhibit 13 before but we are sending you another copy. This exhibit is 14 subject to the following limiting instruction. "Mr. Yousry's 15 statements are not admitted for their truth, but only as 16 evidence of his knowledge, intent or state of mind. Statements 17 by any others are not admitted for their truth but only for 18 their effect, if any, on Mr. Yousry's knowledge, intent or 19 state of mind." 20 We will call you back into the courtroom now to listen 21 to 1201A and to see the transcript, which is only an aid to 22 your listening to the recording. Please knock on the door and 23 the marshal will bring you in. 24 Satisfactory? 25 MS. SHELLOW-LAVINE: Yes, your Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12609 51P5SATF Deliberations 1 MS. BAKER: Yes, your Honor. 2 THE COURT: Okay, Mr. Fletcher will mark the note and 3 if you give Mr. Fletcher the exhibits, he will take them and 4 give them to the marshal. Please inspect the note and the 5 exhibits. 6 Do the parties have the recording keyed up? 7 MS. BAKER: Yes, your Honor. 8 THE COURT: All right. Mr. Fletcher is showing you 9 now Court Exhibit 66. 10 MR. RUHNKE: Your Honor, with respect to the note and 11 the exhibit it is as you read it in the record. 12 THE COURT: Satisfactory? 13 MR. RUHNKE: Satisfactory. 14 THE DEPUTY CLERK: Note and exhibits are going to the 15 marshal. 16 Is the transcript also where it belongs? 17 MS. BAKER: Yes, your Honor. We are ready to display 18 the transcript while playing the audio. 19 THE COURT: All right. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12610 51P5SATF Deliberations 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Good afternoon, ladies and gentlemen. 4 THE JURORS: Good afternoon. 5 THE COURT: It is good to see you all. 6 Ladies and gentlemen, you asked to hear Government 7 Exhibit 1201X and so 1201X will be played for you and the 8 transcript will be displayed for you as an aid to your 9 listening to the recording. 10 So, if you would put your headsets on, dot face 11 forward and the recording will be played. Turn them on. 12 (Whereupon, Government Exhibits 1201A and 1201X, in 13 evidence, were played and displayed for the jury) 14 THE COURT: All right. Ladies and gentlemen, if you 15 would turn your headsets off and I will now return you to the 16 jury room to continue deliberations. 17 (Jury deliberations resumed; time noted: 2:35 p.m.) 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12611 51P5SATF Deliberations 1 (Jury not present) 2 THE COURT: All right. Please be seated, all. We 3 will break, I just want to wait for the jury to return to the 4 jury room. 5 MS. BAKER: Your Honor, just to clarify the 6 transcript, the transcript that was displayed to the jury was 7 1201X, but the recording which was played for them which is the 8 specific exhibit number they requested in their note was 9 Government Exhibit 1201A. 10 THE COURT: Did I misspeak? 11 MS. BAKER: Your Honor described both the recording 12 and the transcript as 1201X, and I just wanted the record to be 13 clear that it was the two different letters together. 14 THE COURT: Okay. Does anyone want me to say anything 15 to the jury about that? 16 MS. BAKER: Your Honor, we certainly don't think 17 that's necessary. I wanted the record to clearly reflect what 18 was actually played. 19 THE COURT: Okay. Thank you. See you later. 20 (Recess pending verdict) 21 (At 3:24 p.m., a note was received from the jury) 22 THE COURT: Please be seated, all. 23 I have a note from the jury marked Court Exhibit 67, 24 3:20 p.m. 25 January '05. Judge Koeltl, the jury will be 25 adjourning at 4:15 p.m. today. Number 329. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12612 51P5SATF Deliberations 1 I had intended to talk to you all in any event because 2 Mr. Grate has the checks for the jurors. I'm told that they're 3 in individual envelopes for the jurors just with their juror 4 number on it. 5 Now, Mr. Grate was going to give them to the marshal 6 to give to the jurors. In view of the jury note it seems to me 7 that what I should do is to write a note to them that says: 8 Members of the jury, we have received your note. We will call 9 you back into the courtroom for instructions at -- 10 We received your note. Of course you can adjourn at 11 4:15 p.m. today. The marshal will bring you back into the 12 courtroom at that time for my instructions. 13 And I think that the appropriate time to give them the 14 checks is right before they come back into the courtroom rather 15 than to give it to them now in the middle of their 16 deliberations. 17 Do the parties agree? Yes. 18 So, Mr. Grate has given the envelopes to the marshal 19 and if the marshal would remember to give them to the jurors at 20 the end of the day before they're brought in for final 21 instructions. 22 THE MARSHAL: No problem, your Honor. 23 THE COURT: And I will write the note out to the jury. 24 Okay, I have a note for the jury. It will be marked 25 Court Exhibit 68. It reads: Members of the jury, we received SOUTHERN DISTRICT REPORTERS (212) 805-0300 12613 51P5SATF Deliberations 1 your note. Of course you can adjourn at 4:15 p.m. today. The 2 marshal will bring you back into the courtroom at that time for 3 my instructions. 4 Is that satisfactory? 5 MR. TIGAR: Yes, your Honor. 6 MS. SHELLOW-LAVINE: Yes, your Honor. 7 MR. STERN: Yes. 8 THE COURT: All right. Parties should inspect the 9 note. 10 THE DEPUTY CLERK: Has everyone seen this note? 11 THE COURT: Show it to defense counsel. 12 THE DEPUTY CLERK: They did. 13 MS. SHELLOW-LAVINE: We did. 14 THE COURT: Okay. 15 MS. SHELLOW-LAVINE: You did. 16 THE DEPUTY CLERK: Has everyone seen this? 17 MR. STERN: Yes. It is very good. 18 MS. SHELLOW-LAVINE: Yes. 19 THE COURT: All right. 20 THE DEPUTY CLERK: Giving it to the marshal, the note 21 to the marshal. 22 THE COURT: See you later. 23 (Recess pending verdict) 24 THE COURT: I will wait for the marshal. It is just 25 about 4:15 so the marshal can knock on the door and bring the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12614 51P5SATF Deliberations 1 jury in. 2 (Continued on next page) 3 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 (212) 805-0300 12615 51P5SATF Deliberations 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Ladies and gentlemen, as I indicated in the last note, 4 of course you can adjourn now. And I reiterate all of my 5 instructions which will continue to apply during your 6 deliberations when you go home each evening. 7 But it's very important, even though I know you know 8 these instructions and follow them, it's important to me to 9 repeat them, to emphasize them. 10 Please, don't talk about this case at all after you 11 leave the courtroom now because you will be in the process of 12 leaving, so don't talk about the case. 13 Don't talk about the case when you're in the vans or 14 going to the vans. Don't talk about the case with anyone this 15 evening. Tomorrow don't talk about the case when you are 16 picked up. Don't talk about it in the vans. Don't start 17 talking about it until you're all 12 together in the jury room 18 ready to begin deliberations. At that point the foreperson 19 will advise the marshal that you are ready to deliberate. 20 Sending a note as you did this morning is just fine. The 21 marshal will then advise us that you are all here and you can 22 begin to deliberate. 23 As I have told you, you don't have to come back into 24 the courtroom, you can just start deliberating after you have 25 informed the marshal by note that you are here and have begun SOUTHERN DISTRICT REPORTERS (212) 805-0300 12616 51P5SATF 1 to deliberate, that you are here and ready to deliberate and 2 then you can deliberate. 3 Remember when you go home, don't look at or listen to 4 anything to do with the case. If you should see or hear 5 something, please, simply turn away. Don't look at or listen 6 to anything to do with the case. If you should see or hear 7 something inadvertently, please, turn away. 8 Please leave everything to do with the case in the 9 jury room. Exhibits, notes, anything to do with the case leave 10 in the jury room. 11 Have a very good evening and I look forward, as 12 always, to seeing you tomorrow. 13 All rise, please. 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 12617 51P5SATF 1 (Jury not present) 2 THE COURT: Please be seated, all. Anything else? 3 No. 4 I'm going to wait a moment because I'm confident that 5 the jurors will be leaving so I will wait for a few minutes so 6 that they leave. 7 Please be here tomorrow at 9:00. I may only be here 8 about 9:30 but the, what the jurors did this morning was just 9 fine in sending a note that they're all, as I told them, that 10 they're all here and ready to deliberate. 11 MR. TIGAR: Your Honor, if that's the sole content of 12 the first note out in the morning would it be possible for us 13 to waive your Honor's presence so that we could know the 14 content of the note whether your Honor is here or not? 15 THE COURT: Oh, I really prefer not. Thank you. 16 I tell you what. If the parties agree, if the note is 17 the same one as this morning, a note addressed to the marshal 18 rather than to the Court, and the marshal gives it to 19 Mr. Fletcher, I don't have a problem with Mr. Fletcher giving 20 the note to all of you to let you know that that's the note. 21 MR. TIGAR: Your Honor, we waive whatever rights we 22 would have to have it done otherwise. I'm sure that all 23 parties do. 24 THE COURT: Government? 25 MS. BAKER: Your Honor, we have no objection to SOUTHERN DISTRICT REPORTERS (212) 805-0300 12618 51P5SATF 1 proceeding in that manner. 2 THE COURT: It will be marked as a Court exhibit and I 3 will read it into the record when I then see you. I just want 4 you to know that they're here and ready to deliberate. 5 Good evening, all. 6 (Adjourned to 9:00 a.m., Wednesday, January 26, 2005.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300