12757 51R5SATF 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 27, 2005 8 9:31 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 12758 51R5SATF 1 (Trial resumed) 2 THE COURT: Good morning, all. Please, be seated. 3 In response to the parties' submission I drafted a 4 response to the last several notes and let me distribute my 5 current copy to you. 6 MS. BAKER: Your Honor, I would like to be heard on 7 the first item, if the Court would permit me. 8 THE COURT: All right. 9 MS. BAKER: As we tried to indicate in our letter of 10 yesterday evening -- 11 THE COURT: By the way, were there any issues with 12 respect to any other parts of the note? 13 MR. TIGAR: I'm sorry, your Honor. I didn't hear. 14 THE COURT: I was addressing myself to the government. 15 Any issues with respect to any other parts of the note 16 other than the answer to number one? 17 MS. BAKER: Your Honor, on the other parts of the note 18 I don't have anything to say that was different from what we 19 already said in our letter. And since the Court has obviously 20 already considered that I won't take the Court's time by 21 reiterating. 22 THE COURT: Okay. 23 MS. BAKER: On the first item the government's concern 24 is that the instruction that the Court proposes to give 25 essentially carves the intending prong out of the elements of SOUTHERN DISTRICT REPORTERS (212) 805-0300 12759 51R5SATF 1 the offense and doesn't allow the jury to, or doesn't remind 2 the jury that they need to consider that alternative as well. 3 The first sentence, in combination with the second 4 sentence to say that, knew that the material support or 5 resources could or could reasonably be suspected, ignores the 6 alternative of intending because if a defendant intends that 7 the support or resources were to be used for the purpose 8 required, whether in fact the support or resources actually 9 could be used is irrelevant. 10 It's sort of like, you know, if there was factual 11 impossibility that's irrelevant, as long as the defendant had 12 the intent that the support or resources were to be used for 13 the requisite purpose. 14 And so, I understand that the Court has chosen to 15 respond to the jury using the language that the jury put in its 16 note, but in certain instances -- and we would respectfully 17 submit that this is one of them -- it is not necessarily 18 appropriate to respond to a jury on its own terms if the jury 19 is starting from a premise that is inaccurate or incomplete. 20 And in this instance it seems to us that they are, at least 21 being incomplete, if not being inaccurate, because the intent 22 prong would apply even if there were some sort of factual 23 impossibility so that the material support or resources in fact 24 never could be used for the purpose. The defendant only needed 25 to have intended that they were to be used for that purpose. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12760 51R5SATF 1 And so, if the Court thinks that the most appropriate 2 way to respond is to pick up on the jury's belief that there is 3 a relevant distinction here between would and could -- and let 4 me just pause to say the government doesn't agree with that, we 5 believe that there is a different shade of meaning; the statute 6 uses the words "are to be used" and that's why the government 7 thinks that the appropriate response to the jury is just the 8 past tense of that which is "were to be used" and that there is 9 a different shade of meaning between would and were to be used. 10 So, we don't agree with would as a starting point. 11 But, even if the Court disagrees with us on that and 12 thinks, in response to the way the jury framed the question 13 that "would" actually does equal "were to be," even if that's 14 true we would ask, at a minimum, that the Court add an 15 additional sentence at the end of this proposed response that 16 reminds the jury that as an alternative to knowing that a 17 defendant may be found guilty of Count Five, if it has been 18 proved beyond a reasonable doubt the defendant intended that 19 the material support or resources were to be used even if such 20 use was not possible or never occurred or something along those 21 lines. 22 MR. RUHNKE: Your Honor, I would like to respond to 23 that when the Court is ready to hear a response. 24 THE COURT: Okay. Mr. Ruhnke. 25 MR. RUHNKE: Your Honor, I certainly agree with the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12761 51R5SATF 1 idea of answering the jurors' question in the language that the 2 jurors framed the question. And it does seem that what the 3 jurors are concerned about is the level of scienter that is 4 necessary, or the level of intent that is necessary to support 5 a conviction for Count Five. 6 Going way, way back when your Honor sustained the 7 challenges to the superseding indictment in this case, your 8 Honor emphasized the government's heavy burden of proof on the 9 issue of scienter and it appears to us -- although taking 10 implications from jury notes is not quite an exact science -- 11 but it seems to me that the jury, or at least some member of 12 the jury is right at that level of what does the government 13 have to prove beyond a reasonable doubt to establish the intent 14 and knowledge, intent or knowledge element of Count Five. And 15 we think your Honor's reply is, one, a correct statement of the 16 law, and two, responds directly and in a way that takes into 17 account the language utilized by the jurors in their note. 18 So, we urge your Honor to stay with the proposal 19 that's been distributed to counsel. 20 And we haven't asked for additional items, as the 21 government does, to remind the jury of some other way they can 22 get to a conviction. We haven't turned around -- although we 23 did, actually -- and ask you, well, give us the theory of 24 defense instruction as well while you are doing this. 25 The jury asked a question, your Honor has replied to SOUTHERN DISTRICT REPORTERS (212) 805-0300 12762 51R5SATF 1 it. On behalf of Mr. Yousry we think your Honor replied 2 appropriately and we have no objection to it. 3 MS. BAKER: Your Honor, I would respond only by saying 4 we're not asking for anything additional. 5 Mr. Ruhnke started his response to my argument by 6 saying that the jury's question or questions. This item 7 indicates that the jury is focusing on the mens rea or scienter 8 requirement for Count Five and it is 50 percent an equal 9 alternative of the scienter requirement for Count Five that the 10 defendants have intended that the support or resources were to 11 be used. 12 THE COURT: I believe my response is the correct and 13 reasonable response to the jury question. 14 To the extent there is an implicit objection to 15 responding exactly to the question that the jury asked, that's 16 in fact the way in which the government asked me to begin the 17 response: You have asked whether, quote, a defendant to be 18 found guilty, etc. And I picked that up. 19 The jury question was directed to the knowing portion 20 of the statute: Must the defendant have explicitly known their 21 material support? 22 I respond in fact by reminding them that it's know or 23 intend, and then I answer specifically the question that they 24 ask with respect to knowledge. And I answer explicitly the 25 question they ask with respect to knowledge by saying "know." SOUTHERN DISTRICT REPORTERS (212) 805-0300 12763 51R5SATF 1 MS. BAKER: Actually, your Honor, in item number one 2 of the jury's note they do not use any form of the word 3 "knowledge." They quote the portion of a sentence from the 4 Court's -- sorry, from the indictment, and in the indictment we 5 used, essentially, the statutory language which is, "were to be 6 used." 7 THE COURT: But -- 8 MS. BAKER: Then their question literally we begin, 9 How is the phrase "were to be used" to be interpreted? 10 And in both the statute and the indictment, and 11 repeatedly in the Court's instructions that phrase, "were to be 12 used" follows the phrase that includes both alternatives, which 13 is knowing or intending that. 14 MR. RUHNKE: I do see the word "know" in there; must 15 defendant know. 16 THE COURT: Yes. 17 I mean, their question, which is quoted by the 18 government in the letter to me, does include the word "know." 19 Must a defendant to be found guilty have explicitly know. 20 MS. BAKER: Your Honor, I agree that that sentence 21 does but prior to that is a different sentence that sort of is 22 more broad and says how is the phrase "were to be used" to be 23 interpreted? 24 And in all of the statute, the indictment and the 25 Court's instructions the phrase "were to be used" in every SOUTHERN DISTRICT REPORTERS (212) 805-0300 12764 51R5SATF 1 instance follows both statutory alternatives "knowing or 2 intending." 3 And to suggest to the jury that they cannot convict on 4 Count Five unless they find that the defendant knew that the 5 support or resources would be used eliminates 50 percent of the 6 charge. 7 THE COURT: My response doesn't say that. 8 MS. BAKER: It actually does, your Honor. It says, 9 the government must prove beyond a reasonable doubt that the 10 defendant you are considering knew or intending that the 11 material support or resources would be used -- and I agree that 12 that sentence says knowing or intending, but -- 13 THE COURT: And that's right out of the charge. 14 MS. BAKER: But your Honor, the next sentence 15 undermines, or to a certain extent contradicts that by saying, 16 It is not sufficient for the government to prove only that the 17 defendant you are considering knew that the material support or 18 resources could or reasonably could be suspected to support 19 such a conspiracy. 20 And that was why the government, in its letter of last 21 night, focused on that second sentence that the defendants were 22 proposing. And we were attempting to object to that second 23 sentence even more than we objected to the choice of "would" 24 versus "could" within the context of knowing. The concern is 25 that that second sentence eliminates, essentially, the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12765 51R5SATF 1 intending alternative. 2 And so, that's why if Court wants to leave that second 3 sentence as a way of addressing the knowledge prong we would 4 ask for the addition of a third sentence that simply reminds 5 the jury of intending as the alternative that is in the 6 statute, the charges, and the Court's original instructions to 7 the jury. 8 And of course I agree with the Court that we quoted 9 the jury's sentence from their note back but I did just want to 10 point out, obviously the Court saw this in our letter; we quote 11 their language back to them but then our proposed response drew 12 the distinction that I pointed out earlier. We were quoting 13 their request which included would or could but then we 14 carefully avoided in our next sentence avoiding using either 15 "would" or "could" and instead used the statutory language 16 which is "were to be." 17 And again, as I said, if the Court believes that 18 "would" is equivalent to "were to be" then that's the Court's 19 ruling. But we would ask that that additional sentence be 20 added to make it clear to the jury that intent is an 21 alternative. 22 THE COURT: Mr. Ruhnke? 23 MR. RUHNKE: Your Honor, we maintain the position that 24 you're answering the question that the jury asked, that your 25 reply is appropriate. You talk about both elements, know or SOUTHERN DISTRICT REPORTERS (212) 805-0300 12766 51R5SATF 1 intend, and that the answer is sufficient as it stands. We 2 would ask your Honor deliver it and not amend it as the 3 government requests. 4 THE COURT: I agree with that. 5 The question was directed at the knowledge portion and 6 I carefully instruct them that it's know or intend, and answer 7 their question with respect to the knowledge portion. It 8 would -- I don't believe it's appropriate for me to suggest to 9 them that they should really be -- other than to repeat to them 10 the language to give the element of the charge as know or 11 intend -- to suggest to them that when they then ask a question 12 about knowledge they really should now think more carefully 13 about intent. 14 MS. BAKER: Your Honor, then I would ask for one 15 additional clarifying phrase to be added which is at the 16 beginning of the sentence which currently begins, "It is not 17 sufficient..." that the Court add the introductory phrase 18 something to the effect of: "With respect to knowledge it is 19 not sufficient..." because then that will make clear that that 20 sentence is addressing the knowledge prong and not the intent 21 prong. 22 THE COURT: Mr. Ruhnke? 23 MR. RUHNKE: We still think it is appropriate as your 24 Honor drafted it. 25 THE COURT: I do too. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12767 51R5SATF 1 Any other objections? 2 MR. TIGAR: Your Honor, with respect to number four, 3 we had proposed language and the basis of it was this. In 4 order to be -- 5 THE COURT: Could I just stop you for a moment? 6 MR. TIGAR: Yes, your Honor. 7 THE COURT: I have two notes from the jury, the 8 parties are welcome to inspect. Court Exhibit 80. Dan, we are 9 ready to start deliberating. 329. 10 Court Exhibit 81. Judge Koeltl, juror number 41 says 11 that she cannot change her plans for being away February 4th 12 through 11th. Please advise. 13 (Jury deliberations resumed; time noted: 9:45 a.m.) 14 THE COURT: The parties are welcome to inspect. 15 MR. TIGAR: Shall I continue? 16 THE COURT: I don't intend to respond to either of the 17 notes we got at the moment. 18 MR. TIGAR: Thank you, your Honor. 19 We proposed language with respect to this matter and 20 the reason for it is this: Having now having the statute book 21 with me, a 956(a) conspiracy is a little different from the 22 normal conspiracy in that the overt act must be committed 23 within the jurisdiction of the United States; and the Court so 24 instructed the jury at page 82. 25 Now, the reason that this adds to the relevance of our SOUTHERN DISTRICT REPORTERS (212) 805-0300 12768 51R5SATF Deliberations 1 proposed charge is this. In order to be convicted under Count 2 Four or five -- 3 THE COURT: Could you hold on one moment? 4 MR. TIGAR: Yes. 5 THE COURT: Go ahead. 6 MR. TIGAR: Your Honor, in order to be convicted under 7 Count Four or Count Five the defendant, whose case the jury is 8 considering, must know of the existence of the conspiracy. 9 That's one of the two knowledge prongs that we discussed 10 yesterday. 11 Now, to know the question therefore is what conspiracy 12 must they know of. They must know of the very conspiracy that 13 the jury has found to exist and none other. If they know of a 14 conspiracy consisting of an unlawful agreement but do not know 15 of a conspiracy that contains the overt act found by the 16 jurors, then that defendant is not guilty of the Count Four or 17 Five. 18 Therefore -- and the interesting thing about this is 19 that a juror could well find that as to Count Two that there -- 20 that the overt act alleged in paragraph 33A, which incorporates 21 by reference paragraph 19, was satisfied as a matter of fact 22 that it existed. 23 Paragraph 19 alleges that on October 13th, 1999, 24 Rifa'i Taha vowed to rescue Omar Abdel Rahman but he clearly 25 didn't do that within the jurisdiction of the United States. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12769 51R5SATF Deliberations 1 So, here we have an example of an overt act that is 2 alleged to be in furtherance of the Count Two conspiracy which 3 your Honor's formulation would permit the jurors to consider 4 and find as relevant to the elements of the offense charged in 5 Count Five but which could, under no stretch of the 6 imagination, be considered to be a proper overt act for the 7 purpose of completing the Count Two conspiracy. 8 So we have -- that's why I say it is a little 9 different from the average conspiracy case in which one might 10 say that the overt act requirement is relatively trivial. Of 11 course Congress, when it decides to have an overt act in 12 furtherance of conspiracy, is not required by the constitution 13 to do so. There are plenty of conspiracy statutes that don't 14 have an overt act and the Supreme Court has held that one will 15 not construe a statute that doesn't require one as in fact 16 requiring that one be proved. 17 But, at bottom our position was based on the idea that 18 the government has chosen to charge the defendants with 19 knowledge of a conspiracy. To know that a conspiracy exists 20 they must know that all the elements exist and it withdraws 21 from the jury's consideration, or it fails to honor the jury's 22 verdict and creates the possibility of a serious variance in 23 the indictment as alleged if the Court doesn't tell the jury 24 that once they found the Count Two conspiracy that's the 25 conspiracy that the government must prove that the defendant SOUTHERN DISTRICT REPORTERS (212) 805-0300 12770 51R5SATF Deliberations 1 knew about. 2 THE COURT: Government? 3 MS. BAKER: Your Honor, for the reasons we stated in 4 our letter of last night, we believe that what Mr. Tigar is 5 asking the Court to do would have the Court misstating the law 6 to the jury and so we would ask the Court to leave its response 7 to the fourth item as the Court has proposed it. 8 THE COURT: I agree with that. 9 The language that was proposed in the defendant's 10 letter was unclear and, to the extent it could be read to 11 suggest that the jury could not consider any evidence other 12 than the evidence that specifically supported the elements of 13 the Count Two conspiracy, it would be a misstatement of the 14 law. 15 I have gone to great lengths in drafting the answer to 16 incorporate -- and I repeat it in response to an earlier 17 question -- the defendants' request that in response to number 18 two, for example, that the government must prove beyond a 19 reasonable doubt that the defendant you are considering 20 provided material support or resources knowing or intending 21 that the support or resources were to be used in preparation 22 for or in carrying out the conspiracy charged in Count Two. 23 And I also went on to instruct them that I have also 24 instructed you that unless the government proves that the 25 defendants you are considering knew of the conspiracy charged SOUTHERN DISTRICT REPORTERS (212) 805-0300 12771 51R5SATF Deliberations 1 in Count Two and with that knowledge committed the elements of 2 the offense charged in Count Five as I have explained them to 3 you, the defendant whom you are considering must be found not 4 guilty of Count Five. 5 In response to question four I specifically instruct 6 them that the government must prove beyond a reasonable doubt 7 the existence of the particular conspiracy charged in Count Two 8 and I review with them where they can find the elements of that 9 conspiracy. 10 MR. TIGAR: Yes, your Honor; that's right. And I 11 understand what the Court is saying. 12 Our position is that there is a difference between the 13 conspiracy charged in Count Two which exists, it's charged, and 14 the conspiracy found by the jury to exist if they find it. 15 That is to say, the Court has in it -- the Court, it seems to 16 me, with all respect, is mixing up in this answer the jury's 17 right to consider any evidence they find to be relevant. 18 That's their function. 19 And the clear admonition of the law that although a 20 conspiracy is charged in Count Two and the charged conspiracy 21 alleges several dozen overt acts, that if the jury finds the 22 Count Two conspiracy to have existed it is thereafter 23 restricted when it turns to Count Four and Five to the 24 conspiracy it found to exist. 25 And they can't start all over again and pick and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12772 51R5SATF Deliberations 1 choose among the overt acts that are alleged in order to 2 satisfy the element of the offense. Of course they're free to 3 consider all the evidence. The Court said that elsewhere in 4 the charge. I'm not talking about that. I'm talking about 5 what the jury note says is the condition citing page 85 of the 6 charge; that is to say the elements of the offense. The 7 question doesn't have anything to do with what the jurors can 8 consider or how they determine questions of relevancy. 9 THE COURT: The response also says: You must all 10 agree unanimously that the Count Two conspiracy existed 11 including all of the elements for the existence of that 12 particular conspiracy. 13 Government? 14 MS. BAKER: Your Honor, I don't have anything further 15 to add. We believe that the Court's proposal is correct and 16 that what Mr. Tigar is asking the Court to do is incorrect, so 17 we ask the Court to adhere to what it proposed. 18 THE COURT: I believe the response is correct, as 19 drafted. 20 MS. BAKER: Your Honor, I do need to ask the Court not 21 to send this note back to the jury right away even though the 22 Court has ruled already on the parties' arguments because we 23 would like an opportunity to consult with a member of our 24 appeals unit -- sorry, actually we're going to consult with the 25 chief of our criminal division who was the chief of our appeals SOUTHERN DISTRICT REPORTERS (212) 805-0300 12773 51R5SATF Deliberations 1 unit, she's on her way over here -- and we would ask for an 2 opportunity to do that before the Court sends the note in to 3 the jury. 4 MR. RUHNKE: Your Honor, we really object to that and 5 note that the word "really" is superfluous. 6 The jury has asked a question. Your Honor has ruled. 7 The government has four lawyers in court who have been able to 8 formulate the government's response. It's an important 9 question and grasping -- I don't know how you rank questions, 10 but this seems to be a particularly important one and I would 11 ask your Honor send the note in. 12 THE COURT: It is an important question and I always 13 get input from the parties and I attempt to accommodate all of 14 the parties. If they want to consult with someone else on my 15 response, they can do it. I ask that it be done quickly. 16 MS. BAKER: Your Honor, she is on her way over here 17 and essentially it does come down to the, our concern that the 18 jury will be left with a misunderstanding of the law as to 19 Count Five with the Court's current proposal to respond to the 20 jury's item number one. 21 Essentially to us it comes down to, I understood the 22 Court to have acknowledged that the two sentences in the second 23 paragraph of its proposed response are directed to the 24 knowledge prong and not the intent prong and the government 25 believes that there is potential legal error if that is not SOUTHERN DISTRICT REPORTERS (212) 805-0300 12774 51R5SATF Deliberations 1 made clear to the jury, for example, by the inclusion of that 2 introductory phrase at the beginning of the second sentence 3 saying, "with respect to knowledge." 4 Your Honor, the chief of our criminal division has 5 arrived. If the Court would allow us a few minutes to consult 6 we would appreciate that. 7 THE COURT: Yes. 8 (Counsel conferring) 9 THE COURT: Yes? 10 MS. BAKER: Your Honor, when you gave us permission to 11 take a break and confer I was renewing my request that the 12 Court insert the phrase "with respect to knowledge" at the 13 beginning of the sentence that currently begins, "it is not 14 sufficient." 15 We do renew that request because we believe that given 16 that the prior sentence appropriately, in light of the statute, 17 the indictment and the Court's jury instructions appropriately 18 says "knew or intended," then for that next sentence which the 19 Court -- and I think Mr. Ruhnke -- have acknowledged addresses 20 only the knowledge prong, for that sentence to not make clear 21 that it refers only to the knowledge prong creates an 22 instruction that is seriously misleading to the prejudice of 23 the government. And so, we would ask the Court to insert that 24 phrase "with respect to knowledge." 25 And if the Court denies the government's request we SOUTHERN DISTRICT REPORTERS (212) 805-0300 12775 51R5SATF Deliberations 1 would ask that the Court stay its decision and not send this 2 note in to the jury so that we can consult further with our 3 colleagues and decide whether to seek further relief. 4 MR. RUHNKE: Your Honor, we maintain the position that 5 your Honor is appropriately responding to the question that the 6 jury asked, not the question that the government would like -- 7 not the information they would like to put in to the jury. 8 This is what the jury asked. We believe your Honor 9 responded appropriately. You have delayed sending the note in 10 while other people came to the court house. We don't know if 11 this is a critical point in deliberations or not but knowledge 12 is obviously where this case is at as far as Count Four and 13 Five are concerned, as reflected in the theory of the defense 14 instruction which your Honor provided the jury. And the longer 15 their question goes unanswered the more harm, we think, is 16 being done to the defendants' chances in this case. 17 So, we ask that your Honor adhere to your prior 18 ruling. Nothing has been said that's any different than was 19 said 20 minutes ago and at some point we simply have to say the 20 Court has ruled, send the note in and let's go on. 21 MS. BAKER: Your Honor, I would say in response to 22 Mr. Ruhnke's reply that Mr. Ruhnke says and the Court says that 23 this instruction is in response to a question about knowledge; 24 we are simply asking that the response make that clear. 25 And, Mr. Ruhnke has not said that what we are SOUTHERN DISTRICT REPORTERS (212) 805-0300 12776 51R5SATF Deliberations 1 requesting is in any way legally incorrect or inaccurate or 2 misleading. It is our belief that it is necessary to keep the 3 note from being misleading. And so, the Court is essentially 4 faced with a choice of adding a very brief phrase to prevent a 5 note from possibly be being misleading whereas the addition of 6 the phrase doesn't change what both the Court and defense 7 counsel have already essentially agreed is the meaning and 8 addresses the point that the jury is perceived to be interested 9 in. 10 We are merely asking for clarification that you are 11 addressing only the jury's more narrow question which leaves in 12 tact and avoids the misleading possibility with respect to the 13 other prong of the statute, the indictment, and the charges. 14 MR. RUHNKE: Your Honor, we simply adhere to our 15 position. I think there has been enough back and forth on this 16 and we have nothing additional to say. 17 THE COURT: It's now 25 after 10. I'll wait until 18 11:00 before sending the note in. 19 There is something else that I want to discuss with 20 you in any event -- several things I want to discuss with you. 21 And I am always -- always -- deferential to the possibility of 22 review. It is one of the advantages to being a federal trial 23 judge that there are others who can always look over us, so I 24 have no problem at all. At the same time I view it as no 25 threat because what I do, I do. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12777 51R5SATF Deliberations 1 And I believe that the way in which I have drafted 2 this is correct and I think that adding additional language 3 attempts to tilt the response, other than the fair response to 4 what the jury was asking and the problem with adding additional 5 words. 6 So, it is very clear is I have given the jury the 7 instruction which is the correct instruction on the law. They 8 had a question with respect to knowledge which I answered. And 9 in telling them the law, I explained to them both knowledge and 10 intent. 11 They had a question about knowledge which I then 12 specifically answer. 13 To suggest in some way to the jury, subtly or 14 explicitly -- originally it was explicitly, now it's subtly -- 15 that, you know, there is more there to the statute that you may 16 not be focusing on appears to me to be the incorrect way to 17 approach the response to that question. 18 But, I fully appreciate my role in the system and I 19 would not do anything to interfere with the parties' rights, 20 nor will I do anything to interfere with the jury. The jury 21 has given us lengthy questions and this is a lengthy response 22 and so long as I respond in a reasonably prompt fashion I 23 cannot be prejudicing the conduct of the deliberations, 24 particularly when I have just gotten a note that asks: What do 25 we do about the fact that one juror has a commitment beginning SOUTHERN DISTRICT REPORTERS (212) 805-0300 12778 51R5SATF Deliberations 1 on February 4th? 2 One can never read too much into jury notes, I fully 3 appreciate that, but if the jury is asking what do we do about 4 a commitment on February 4th it's, one would think that the 5 difference of a half an hour will not affect anything. And so, 6 I won't send that in until 11:00. 7 I have some other things to talk to you about. So, if 8 some of you wish to leave and consult you may leave and 9 consult. 10 I can tell you the other thing that I wanted to talk 11 to you about. Two things that I wanted to talk to you about 12 are the jury note with respect to February 4, and Mr. Tigar's 13 letter of January 27th with respect to the jury issue 14 yesterday. 15 What are the parties' positions with respect to 16 February 4th? 17 MR. RUHNKE: Your Honor, we have talked tentatively 18 about that situation. I don't want to articulate a position 19 but I do want to lay out what we consider to be reasonable 20 options available to the Court. 21 February 4 is a week from tomorrow. If our jury has 22 not let us know yet whether they're going to be deliberating 23 tomorrow, Friday -- 24 THE COURT: One would assume that they're not. 25 MR. RUHNKE: Their practice obviously has not been to SOUTHERN DISTRICT REPORTERS (212) 805-0300 12779 51R5SATF Deliberations 1 deliberate on Fridays but their -- what the rules provide is -- 2 THE COURT: I -- 3 MR. RUHNKE: Go ahead. I'm sorry. 4 We don't think there is any way to substitute an 5 alternate into the process at this point with instructions to 6 resume deliberations as if no deliberations had taken place so 7 that the options that realistically can be made, if this jury 8 is in tact and deliberating through, to February 4, is either 9 to have the parties agree to go with 11 jurors, have the Court 10 order that they proceed with 11 jurors, or suspend 11 deliberations for the week that the juror is absent. I mean, 12 those are the only realistic options that we seek at this 13 point. 14 We have talked about it briefly while the government 15 was caucusing with the people from across the street, we will 16 caucus with ourselves about that note. I can't represent what 17 our positions are going to be but I think those are the only 18 options. 19 In the short run we suggest a note back to the jury 20 saying something to the effect that the pace and schedule of 21 the deliberations are obviously very much up to you and 22 shouldn't be pressured by outside commitments. 23 And, there is another option obviously, too, which is 24 to talk to the juror if your Honor wants to do that to see if 25 the trip can be postponed or deferred to some later date. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12780 51R5SATF Deliberations 1 As I recall the juror she's a federal employee who -- 2 and this is a work-related assignment. Again, as I recall the 3 questionnaire in the voir dire she works for the Federal 4 Reserve Bank which has a number of employees. Whether this can 5 be deferred, I don't know. Doesn't sound like it can be. 6 It sounds like it is important to the juror that she 7 be able to commit to this work assignment and so I think the 8 options are to write a letter to the -- write a note back to 9 the jury explaining that juror number 4, if the jury has not 10 reached its verdict and there is no pressure, there is no time 11 tables -- all that kind of language -- has not reached a 12 verdict by the time the juror has to leave, that juror will be 13 permitted to leave and the Court will explore what options are 14 available to continuing deliberations. 15 That's the only thing we can think of at this point. 16 I'm not sure what the government's position is. 17 I don't know if your Honor has a preliminary view 18 either that you could share with us. 19 THE COURT: Government? 20 MS. BAKER: Your Honor, obviously we have not had a 21 chance to think about this issue because we were addressing the 22 issue of the Court's response to the jury's other note, so I am 23 not prepared to state a position on behalf of the government at 24 this time. 25 My preliminary thought is that having the Court talk SOUTHERN DISTRICT REPORTERS (212) 805-0300 12781 51R5SATF Deliberations 1 to the particular juror might be a more appropriate first step 2 than heading towards the other alternatives listed by 3 Mr. Ruhnke. But, I would actually ask for the opportunity to 4 discuss it with my colleagues and advise the Court of the 5 government's position in a little while or at some point later 6 today. 7 THE COURT: That's fine. 8 Okay, then I have Mr. Tigar's letter of January 27th. 9 MR. TIGAR: Your Honor, after I wrote and sent the 10 letter, Mr. Ruhnke brought to my attention that there was a 11 reference to the driver having driven other jurors than the six 12 your Honor spoke to yesterday, and that connects to the fact 13 that early in the process one juror reported that there were -- 14 that there was trouble in the van; people were saying things in 15 the van or somebody was saying something in the van. And of 16 course, at that time, any potential connection to this driver 17 would not have occurred but the point that one of the jurors to 18 whom your Honor spoke said that this driver had driven other 19 jurors and that they had complained, should be added to that. 20 The letter speaks for itself. I had not, when we were 21 discussing yesterday, had a chance to look at the Ianniello 22 case for, since I argued it and got the decision. But, with my 23 recollection refreshed I thought that that language from Judge 24 Feinberg and for the Court was worth bringing to the Court's 25 attention. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12782 51R5SATF Deliberations 1 The motion with respect to the kind of a hearing that 2 ought to be conducted, with respect to the motion for 3 production of materials, that, too, speaks for itself. 4 I suggest that there is a council of prudence here and 5 that is that if it should occur to someone, anyone later that 6 it would have been a good idea to capture the driver's 7 perception fairly close to the time that the key events 8 occurred, well, that's a one-time opportunity. And that I 9 wanted to mention explicitly. But, other than that, you know, 10 my letter speaks for itself. 11 I know that I have a high hill to climb if I'm asking 12 your Honor to reconsider a ruling that your Honor not only made 13 but spent a great deal of time explaining and supporting with 14 your Honor's findings about the facts. But, it obviously is an 15 important issue to us and we had sought this opportunity to 16 gather the only potentially impeaching, contradicting, relevant 17 evidence about what actually went on in that van during that 18 time. 19 THE COURT: All right. 20 Government? I don't know that you have had an 21 opportunity to review the letter and whether you want an 22 opportunity to respond in writing or -- 23 MS. BAKER: Your Honor, we received the letter this 24 morning and I have reviewed it quickly. If the Court wants a 25 more detailed response than the one I am about to give then I SOUTHERN DISTRICT REPORTERS (212) 805-0300 12783 51R5SATF Deliberations 1 would ask for an opportunity to look over the letter more 2 closely and respond later in the day, but my general response 3 is the following: 4 For all the reasons that the government argued 5 yesterday and all of the reasons that the Court articulated in 6 its rulings yesterday, the thorough voir dire that the Court 7 conducted of each of the jurors who were in that van ensured 8 that nothing that happened with respect to that van driver is 9 having any effect on this trial and therefore it is the 10 government's position that there is no basis to afford the 11 defendants any further relief with respect to anything that 12 happened with that van or its driver. 13 (Pause) 14 MS. BAKER: I'm sorry, your Honor. I would add one 15 thing. I have not reviewed the case cited by Mr. Tigar since 16 he cited it yesterday, or obviously since I received his letter 17 this morning, but based on my knowledge of that case and what 18 happened there, what happened in that case, that situation was 19 factually distinguishable, it is not comparable to the 20 circumstances here where the jurors were immediately voir dired 21 about what had happened. 22 The government is aware of no authority for the 23 proposition that any discovery or any hearing is required in a 24 situation like this. It is solely in the discretion of the 25 Court how to address these types of matters when they arrive. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12784 51R5SATF Deliberations 1 And the voir dire that the Court conducted immediately in 2 response to learning of this incident, we submit, was obviously 3 the appropriate exercise of the Court's discretion in this 4 matter. 5 MR. TIGAR: Your Honor, just briefly. When a hearing 6 is being conducted which is an adversary process and a party 7 seeks to call a witness, we respectfully submit that the 8 standard review is not abuse of discretion, if that's what the 9 government was saying. 10 The question is a straight up and down legal question, 11 Do we have a compulsory process right to call a witness in an 12 adversary process that the Court has initiated based on a 13 finding that meets the Ianniello standard of reason to inquire. 14 (Pause) 15 MR. TIGAR: Excuse me, your Honor, may we take a brief 16 recess? 17 THE COURT: Yes, we will take five minutes. 18 MR. TIGAR: Thank you. 19 (Recess) 20 THE COURT: Please be seated, all. 21 MR. TIGAR: Ms. Shellow-Lavine will be here 22 momentarily, your Honor. We can begin. 23 THE COURT: All right. 24 MS. BAKER: Your Honor, we do renew our request for 25 the Court to add that additional phrase in response to the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12785 51R5SATF Deliberations 1 jury's first set of questions. For the reasons that I stated 2 earlier, we believe that, as the Court's proposed response 3 stands, it unfairly misleads because of the interplay between 4 the two sentences in that paragraph. In addition, the phrase 5 that we are requesting would avoid the possibility of the jury 6 being misled without in any way changing the thrust of the note 7 as a response to their question, it would still leave the 8 response focusing on the issue of knowledge which is what the 9 Court and defense counsel have argued was -- argued and ruled 10 was the thrust of the jury's question. 11 So, we do stand on the request that we made to the 12 Court because we believe that without that simple addition, the 13 response is potentially misleading to the severe prejudice of 14 the government, however, we are not going to seek further 15 relief having consulted with our colleagues. But, because of 16 the potential impact on the possible course of the jury's 17 deliberation, we urge the Court to reconsider and grant our 18 request. 19 MR. RUHNKE: Your Honor, we're not going to add 20 anything to what we have said previously. Your Honor, I think, 21 has ruled on that issue. 22 THE COURT: I have ruled and I simply disagree with 23 that, with the government's position on that. I think that the 24 response is an accurate statement of the law and that it 25 responds to the jury question and it does it in a, in an SOUTHERN DISTRICT REPORTERS (212) 805-0300 12786 51R5SATF Deliberations 1 accurate and balanced way. 2 If the jury -- the jury is very astute. If the jury 3 has other questions I will answer other questions. It is 4 not -- for the reasons that I have already explained this is 5 the fair and accurate response to the question. 6 MS. BAKER: Your Honor, I'm sorry to belabor the 7 issue. One other fact did occur to me that I think colors the 8 context here, and that is that prior to sending out this note 9 with the specific questions that the Court is now preparing to 10 address the jury did send out an earlier pair of notes in which 11 they asked for, I believe their word was, clarification of 12 certain pages of the Court's instructions. And some of the 13 pages that they listed in the second note in that pair are, 14 according to my review of the Court's jury instructions, all of 15 the pages that instruct them on Count Five. 16 So, their specific questions arise against a backdrop 17 where they had asked for clarification more broadly as to Count 18 Five and so, therefore, the government thinks that it is 19 particularly important that the Court give an instruction that 20 doesn't run any risk of misleading and that addresses the 21 jury's possible focus on knowledge while not misleading them 22 about the -- while not suggesting to them the unavailability of 23 the intent prong. 24 And so, again, because of that context in which these 25 specific questions arise, I would urge the Court to reconsider SOUTHERN DISTRICT REPORTERS (212) 805-0300 12787 51R5SATF Deliberations 1 and just add that one additional phrase. 2 MR. RUHNKE: Your Honor, just for, to put this on the 3 record, you answered that yesterday afternoon, orally. You 4 told the jury: With respect to your request for clarification, 5 could you be more specific about what you wish to have 6 explained... at the pages Ms. Baker just made reference to. 7 The jury has not replied to that yet but certainly are capable 8 of doing so. 9 I don't think that changes anything at all and just -- 10 we would like the note to go back to the jury, the note came 11 out at 3:00 yesterday. 12 THE COURT: Okay. It's going back but two comments. 13 First, not only did I respond to that yesterday orally 14 but it's the third paragraph of this note: With respect to 15 your request for clarification, could you be more specific 16 about what you wish to have explained at pages 84 to 94; 95; 17 and 100 to 101 of the jury instructions. 18 And if they want further clarification they can 19 certainly ask. I would have thought that was an argument 20 against adding further things to this particular answer because 21 I invite them to ask any other further questions for 22 clarification for all of these pages. 23 What's the number, Donnie? 24 THE DEPUTY CLERK: 82. 25 THE COURT: Court Exhibit 82; the parties are welcome SOUTHERN DISTRICT REPORTERS (212) 805-0300 12788 51R5SATF Deliberations 1 to inspect. 2 MR. MORVILLO: Your Honor, I have Government Exhibit 3 1731T here. I believe the defendants inspected it yesterday 4 but I will give it to them again. 5 MR. RUHNKE: Your Honor, the exhibit appears to be all 6 right. And the Court's note appears to be as exactly as has 7 been distributed to the parties. 8 MS. SHELLOW-LAVINE: I am tendering to Mr. Fletcher 9 the exhibit which appears to be fine. Thank you. 10 THE COURT: All right. 11 THE DEPUTY CLERK: Giving it to the marshal. 12 THE COURT: Everyone has reviewed the note? 13 MR. BARKOW: Yes, your Honor. 14 MS. SHELLOW-LAVINE: Yes, your Honor. 15 MR. RUHNKE: Yes. 16 THE COURT: And the exhibit? All right. 17 (At 11:06 a.m., a note was received from the jury) 18 THE COURT: Judge Koeltl, we need the following 19 evidence. 1706X, 1733T. Number 329. 20 (Pause) 21 THE COURT: Does it have a limiting instruction? 22 MS. BAKER: No, your Honor. 23 MS. SHELLOW-LAVINE: No, your Honor. 24 (Pause) 25 MR. RUHNKE: Your Honor, there was a stipulation that SOUTHERN DISTRICT REPORTERS (212) 805-0300 12789 51R5SATF Deliberations 1 went along with 1706X. 2 MS. BAKER: Your Honor, as to all of the prison visit 3 transcripts that were introduced, and that is what 1706X is, 4 there was a stipulation. And earlier in the jury's 5 deliberations when they were given pieces of various prison 6 visits the Court reminded the jury of the stipulation and that 7 stipulation is: That the parties stipulate and agree that the 8 admitted portions of these transcripts resulted from 9 negotiation between the parties and include portions that the 10 government believes are relevant to the issues in the case, as 11 well as portions that the defendants believe are relevant to 12 the issues in the case. 13 MR. RUHNKE: That stipulation was entered on August 14 29th, 2004. It was much warmer. 15 THE COURT: Sorry? 16 MR. RUHNKE: I said I think the stipulation could 17 probably go in with the exhibit or some reminder that there was 18 that stipulation. 19 MS. BAKER: Your Honor, as for 1706X in particular, or 20 the series of prison visit transcripts of which 1706X is a part 21 which are the transcripts of the May 2000 prison visit, there 22 actually was a written stipulation signed by all the parties 23 which is in evidence as Government Exhibit 1706S, as in 24 stipulation. 25 And the substance that I just recited is one of the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12790 51R5SATF Deliberations 1 paragraphs in the written stipulation so I don't know whether 2 the parties would like to have the jury get the written 3 stipulation or have the Court include just that one paragraph 4 within its note. 5 The other paragraphs of the stipulation, of the 6 written stipulation address the creation of the transcripts, 7 basically. 8 MR. RUHNKE: Your Honor, it would seem if there is a 9 stipulation that describes to the jury how it was used and it 10 is in evidence, even though they haven't actually asked for the 11 stipulation, that should probably go back with the exhibit 12 that's subject to the stipulation. 13 That's our position. If the government disagrees, I 14 don't know. 15 THE COURT: Government? 16 MS. BAKER: We are willing to proceed however the 17 defense wants to on this issue. This whole issue of reminding 18 the jury of the substance of that one particular paragraph of 19 the stipulation was an issue originally raised by the defense 20 and so however they want to proceed is agreeable to the 21 government. 22 MR. RUHNKE: We would like the stipulation then to go 23 back with the exhibit. 24 THE COURT: Does it apply to both exhibits? 25 MS. BAKER: No, your Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12791 51R5SATF Deliberations 1 MR. RUHNKE: No, your Honor. 2 MS. BAKER: 1733T is a prison call and it is not 3 addressed in this written stipulation. 4 THE COURT: So, 1706X is subject to the stipulation, 5 right? 6 MR. RUHNKE: Which is marked 1706S, as in stipulation. 7 THE COURT: It's GX 1706X, right? 8 MR. MORVILLO: That's correct, your Honor. 9 THE COURT: Okay, I have a note, the parties can 10 inspect. It reads: Members of the jury, I am sending you the 11 exhibit you requested. GX 1706X is subject to the stipulation 12 1706S which I am also providing to you. 13 The parties are welcome to inspect the note and the 14 exhibit before it goes to the jury. 15 Court Exhibit 84. 16 MS. SHELLOW-LAVINE: Your Honor, we have inspected 17 both the Court's note and the exhibit and I am handing them to 18 Mr. Fletcher. 19 THE COURT: All right. 20 Is the note satisfactory with everyone? 21 MS. BAKER: Yes, your Honor. 22 THE DEPUTY CLERK: Giving it to the marshal. 23 THE COURT: All right. 24 (Pause) 25 THE COURT: I'm waiting for the marshal to return to SOUTHERN DISTRICT REPORTERS (212) 805-0300 12792 51R5SATF Deliberations 1 see if there is another note. 2 MR. TIGAR: The marshal has arrived, your Honor, 3 empty-handed. 4 THE COURT: Okay. I did want to go over the issue 5 with respect to the defense request with respect to further 6 proceedings with respect to the incident in the van. 7 There is -- I explained yesterday that after 8 conducting the thorough examination of the jurors with defense 9 counsel present that what had happened was well-established by 10 what the jurors themselves explained. And I interviewed all 11 six of the jurors who were in the van and I asked follow-up 12 questions. I invited questions from defense counsel without 13 the jurors present. 14 I concluded that, subjectively, each of the jurors was 15 wholly credible in saying that the events did not prevent them 16 from deciding the case or interfered with their ability to 17 decide the case based solely on the evidence or lack of 18 evidence and my instructions on the law. 19 I also found that that was credible based upon the 20 events as to which there really was no dispute among the jurors 21 to explain what had happened. 22 And so, it is also clear that no reasonable juror, any 23 hypothetical juror faced with those facts would have been 24 influenced by those facts of what happened. 25 Now, the defendants rely on Ianniello, SOUTHERN DISTRICT REPORTERS (212) 805-0300 12793 51R5SATF Deliberations 1 I-A-N-N-I-E-L-L-O, to seek further relief including a hearing 2 at which the van driver would be called. However, there is no 3 basis for a further hearing. The issue is what did the jurors 4 see, hear and how that would have influenced them and whether 5 it did influence them. 6 In Ianniello no hearing had been held and affidavits 7 from several jurors were presented to the Court attesting to 8 alleged improper conduct by the Judge and the marshal with 9 specific comments being made to the jurors during their 10 deliberations with respect to the possibility of jury deadlock. 11 Nothing like that occurred in this case. And the 12 Court conducted a prompt hearing with the jurors during the 13 trial. 14 When the Court of Appeals remanded in Ianniello, in 15 the face of no hearing the Court noted the discretion that the 16 District Court would have in conducting the subsequent hearing 17 including the possibility that the hearing could be held in 18 camera, the discretion that the Court had as to which 19 parties -- as to whether the parties could participate in the 20 questioning of witnesses, and specifically noted that the Court 21 would have discretion whether to go beyond the three jurors who 22 had submitted affidavits in conducting the hearing. 23 In this case the Court interviewed all of the jurors 24 who were in the van and made the findings about what happened 25 and why it was credible that it had no effect on the jurors and SOUTHERN DISTRICT REPORTERS (212) 805-0300 12794 51R5SATF Deliberations 1 would not have an effect on the hypothetical average jury that 2 was the standard to be applied under Ianniello. 3 So, no further relief is warranted. 4 There is one issue, however, on reflection. The 5 initial call came in from the juror to the marshal and I don't 6 know if that call was preserved or whether it was -- is it 7 preserved? 8 THE MARSHAL: Yes, your Honor. 9 THE COURT: Since that's a juror communication that 10 communication should be preserved and -- 11 THE MARSHAL: I have it preserved in my voice mail. I 12 haven't -- it's not been recorded to any other device. 13 THE COURT: Sometimes when, in other cases jurors have 14 left messages they have been transcribed by the court reporter. 15 MR. TIGAR: We would suggest that the message be 16 transcribed by a court reporter but also, if possible, that it 17 be played into a tape machine for whatever insight one might 18 gain from the tone of voice or whatever. 19 THE COURT: That seems -- well, the marshal can see 20 that it's recorded -- 21 MR. TIGAR: Yes, we would accept Mr. Donnelly's 22 certification however he wants to do it. We certainly would 23 not insist that there be any form of attestation or whatever. 24 If Mr. Donnelly says this is it, then we take that. 25 THE COURT: All right, that should be done. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12795 51R5SATF Deliberations 1 THE MARSHAL: Do you want to do this in open court? 2 MR. TIGAR: Your Honor, may I suggest that once it is 3 transcribed in whatever form that the Court first review it 4 perhaps with the parties -- I mean, we don't know what the 5 juror said. I doubt there is anything in there that relates to 6 the pending deliberations but there may -- there at least ought 7 to be some review process before it becomes part of the public 8 record, or before that issue even is addressed. 9 Moreover, your Honor, although the -- and it may be 10 there is an issue of confidentiality of the juror's voice, 11 which is an identifying characteristic. 12 THE COURT: All right. 13 THE MARSHAL: Also, your Honor, in the message they 14 do, the juror does identify the driver by name. 15 THE COURT: All right. Sobeit. 16 That voice mail should be transcribed and then I will 17 listen to it with the parties and it can then be made into a 18 transcript and preserved as a Court exhibit. 19 I had advised the marshal yesterday that the, because 20 the marshal wasn't here that the defense would be making a 21 request for material. 22 All right, as I said, that was the one exception to 23 the denial of relief because I thought that it, while not 24 explicitly mentioned in the defense letter, I think it is 25 subject to a different principle because it's a communication SOUTHERN DISTRICT REPORTERS (212) 805-0300 12796 51R5SATF Deliberations 1 from a juror. 2 If any of the parties wish to give me anything 3 further -- I know the government hasn't had an opportunity to 4 review the letter at length or to look at any other cases, you 5 are welcome to do that. 6 (At 11:29 a.m., a note was received from the jury) 7 THE COURT: All right, I have another note marked 8 Court Exhibit 85. 27 January '05. Judge Koeltl, we need the 9 following evidence: 2663, 2312-45BT, 2312-47BT, 2512-50T, 10 2512-55T, 2517-57T. 11 It also says: May we please have the following 12 questions we gave you yesterday, 26 January '05, back, or a 13 copy? 14 I have no problem sending them the notes back that 15 they gave us yesterday. We have copies and we send them the 16 original Court exhibit when I respond to their notes, so I 17 don't see there would be a problem giving them back what they 18 have already given us. 19 MR. RUHNKE: We agree, your Honor. 20 MR. MORVILLO: That's fine with the government, your 21 Honor. 22 THE COURT: Mr. Fletcher points out the CSO has marked 23 the exhibits with the time received on the back. I don't see 24 that as an issue. 25 MR. RUHNKE: We don't see any issue with that, your SOUTHERN DISTRICT REPORTERS (212) 805-0300 12797 51R5SATF Deliberations 1 Honor. 2 MS. SHELLOW-LAVINE: That is not an issue. 3 MS. BAKER: Your Honor, as -- 4 THE COURT: Hold on one moment. I would intend to 5 send them 74, 75 and 76, the three notes that we got at the 6 same time. 7 MS. BAKER: The government has no objection to that. 8 THE COURT: So they would go together. 9 MS. SHELLOW-LAVINE: We have no objection, your Honor. 10 MS. BAKER: Your Honor, as to the most recent note -- 11 THE COURT: Mr. Fletcher, could you give the parties 12 this note? 13 Yes? 14 MS. BAKER: I don't know whether, just it is 15 mistranscribed in Livenote or whether your Honor misspoke or 16 whether your Honor had difficulty with the juror's handwriting, 17 but as we heard -- oh, I see. Okay. 18 Your Honor, as to the last three exhibits requested by 19 the jurors in this note your Honor read, as I heard it and as 20 it came up on our screen, your Honor read the fourth and fifth 21 ones as 2512-50T and 2512-55T. And now that I'm looking at the 22 note, I do agree that that is what it says. 23 There are no such exhibits. There were no exhibits in 24 the 2512 series. There were exhibits in the 2312 series. 25 And also, as to the last exhibit listed here, as it SOUTHERN DISTRICT REPORTERS (212) 805-0300 12798 51R5SATF Deliberations 1 came up on the screen, it seemed as though your Honor had read 2 it as 2517-57T. I actually read it as 2512-57T. But again, 3 either way, there is no such exhibit in the series of exhibits. 4 Again, there was a 2312-57T. And Mr. Barkow, in his 5 summation, cited this entire string of exhibits, again assuming 6 that they are the 2312 exhibits, cited that set of exhibits all 7 together. 8 So it's the government's view that that is what the 9 jury intends to be asking for and perhaps the defense will 10 agree to that. But if they don't, then your Honor would need 11 to advise the jury in a note that there are no such exhibits 12 that correspond to the last three numbers that they've written 13 here and could they please clarify what they want. 14 MR. RUHNKE: We would prefer the latter of course, 15 your Honor. 16 THE COURT: Any limiting instructions on these? 17 MS. BAKER: I'm looking at that right now, your Honor. 18 I believe that there are. 19 Your Honor, we would ask that as to those last three 20 exhibit numbers which the jury has written as 2512, that when 21 your Honor asks them to clarify, that you ask them to clarify 22 by describing the exhibit because -- we don't want to suggest 23 that there are no such exhibits, it is just that they have the 24 number wrong. If they can identify the exhibit by some 25 description then it can be provided to them. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12799 51R5SATF Deliberations 1 THE COURT: Please describe for us what you are 2 seeking. 3 MS. SHELLOW-LAVINE: Your Honor, I am returning Court 4 Exhibit 85, I believe, to your law clerk. 5 MS. BAKER: Your Honor, 2663 is not subject to a 6 limiting instruction; 2312-45BT is subject to a limiting 7 instruction that it was not for the truth of any of the 8 statements in the article; this is a translation of a news 9 article. 10 And 2312-47BT is also a news article and it is also 11 subject to that same instruction, not for the truth of any of 12 the statements in the article. 13 THE COURT: Are 2312-45BT and 47BT both newspaper 14 articles? 15 MS. BAKER: Yes, your Honor; and both subject to that 16 same limiting instruction. 17 THE COURT: All right, the note reads: I am returning 18 to you the questions that you asked for which you gave to us 19 yesterday. I am providing to you 2663 as you requested. I am 20 providing to you 2312-45BT and 2312-47BT, as you requested. 21 These are newspaper articles subject to the limiting 22 instruction that they were received not for the truth of any of 23 the statements in the news articles. 24 There are no he exhibits in evidence with numbers 25 2512-50T, 2512-55T, and 2512-57T. Please describe for us what SOUTHERN DISTRICT REPORTERS (212) 805-0300 12800 51R5SATF Deliberations 1 you are seeking. 2 Satisfactory? 3 MS. BAKER: Yes, your Honor. 4 MS. SHELLOW-LAVINE: Yes, your Honor. 5 MR. RUHNKE: Your Honor, on 2663 there is a 6 handwritten note stapled to it. I don't think that's part of 7 the exhibit. 8 MR. DEMBER: It is, your Honor. I'm sorry. It is. 9 It is. 10 THE COURT: All right, Court Exhibit 86. The parties 11 are welcome to inspect. 12 THE DEPUTY CLERK: Showing you Court Exhibit 86 plus 13 the previous notes. 14 MS. SHELLOW-LAVINE: Your Honor, we have reviewed your 15 note, the original jury notes and the exhibits and are 16 tendering them to Mr. Fletcher. 17 THE COURT: All right. All satisfactory? 18 MR. BARKOW: Yes, your Honor. 19 MS. SHELLOW-LAVINE: Yes, your Honor. 20 THE COURT: Okay. 21 THE DEPUTY CLERK: Giving them to the marshal. 22 THE COURT: All right. The exhibits are given to the 23 marshal. 24 MR. TIGAR: Your Honor, I would ask that my letter 25 with respect to the van driver be docketed and I would add to SOUTHERN DISTRICT REPORTERS (212) 805-0300 12801 51R5SATF Deliberations 1 that a request that the government's proposed answers to the 2 jury questions and ours be docketed as well, in order to, so 3 the record makes sense of the decision we had this morning. 4 THE COURT: All right. I mean I have them all, 5 they're somewhat marked up, not much. 6 Do you want to provide me with clean copies and I 7 will -- you have permission to docket them. 8 MS. BAKER: Your Honor, I don't believe that the 9 clerk's office will accept them from us without some written 10 direction from the Court, so if it could be done through the 11 Court, that would be helpful. I have a clean copy of ours 12 right here. 13 THE COURT: Okay. 14 MS. SHELLOW-LAVINE: Your Honor, I also have clean 15 copies of ours. 16 THE COURT: Okay. 17 MR. RUHNKE: Your Honor, just while we are waiting, do 18 you intend or want to answer the jury's question about the 19 juror's commitment at some point today or not? 20 THE COURT: Yes. 21 MR. RUHNKE: I think what we were waiting for was for 22 the government to talk it over and see what their thoughts on 23 it are, your Honor. 24 MS. BAKER: Your Honor, I am happy for us to begin 25 that process now if there is nothing else that the Court needed SOUTHERN DISTRICT REPORTERS (212) 805-0300 12802 51R5SATF Deliberations 1 us to be doing at the moment. 2 THE COURT: All I need is to docket those letters if 3 they've been handed up. 4 Today is the 27th? 5 MS. SHELLOW-LAVINE: That's correct, your Honor. 6 THE COURT: All right. It's almost time for lunch, so 7 when the marshal advises that lunch has been brought you can -- 8 the marshal can hold notes for an hour and you can take lunch 9 and I will see you right after lunch. And that will give you 10 an opportunity to talk over what you think. 11 Plainly, I have to get back to the jurors today with 12 respect to that issue and I lean towards at least temporizing 13 it by talking to the juror about whether there is some way that 14 that can be changed and whether we can intercede in some way 15 with the employer; that's worked with respect to some other 16 commitments with the jurors. 17 So, that would be a first step but I don't want to do 18 that without the government having had an opportunity to think 19 about it. 20 I have marked each of those letters, this letter can 21 be docketed, and I have given them to Mr. Fletcher so that he 22 can file them. 23 Okay. See you later. 24 (Recess pending verdict) 25 (Luncheon recess) SOUTHERN DISTRICT REPORTERS (212) 805-0300 12803 51R5SATF Deliberations 1 A F T E R N O O N S E S S I O N 2 1:58 p.m. 3 THE COURT: Good afternoon, all. Please, be seated. 4 I have three notes from the jury. The first reads, 5 Court Exhibit 87. Dan, may we have the pillows from the 6 previous juror room? Number 329. 7 Court Exhibit 88. 27 January '05. Judge Koeltl, 8 please send the following evidence: 1109, 1110. Number 329. 9 Court Exhibit 89. 27 January, '05. Judge Koeltl, 10 1070T, this number may be incorrect. I want the 1996 speech of 11 Rahman from prison on the phone. 329. 12 The parties can inspect the notes. And while you are 13 doing that, I also wanted to hear from the government whether 14 they had any thoughts on the juror. 15 MS. BAKER: Your Honor, the government thinks that the 16 Court first should speak with juror number 2 individually in 17 the hopes of -- 18 THE COURT: I think it's juror 4. 19 MS. BAKER: I think it's juror number 41 who sits in 20 seat 2. 21 THE COURT: All right. 22 MS. BAKER: In any event, whichever juror, we think 23 that the Court initially should speak with the juror in the 24 hopes of effecting a change in the situation. 25 Along with doing that, or if the Court wishes to do SOUTHERN DISTRICT REPORTERS (212) 805-0300 12804 51R5SATF Deliberations 1 that immediately and assuming that that produces no change, we 2 think that the Court should let the entire jury know, either by 3 note or by telling them at the end of the day, that they 4 shouldn't be concerned, they should continue to deliberate at 5 their own pace and that if they have not finished their 6 deliberations before February 4th, that this issue will be 7 addressed -- just say something vague like that -- will be 8 addressed in due course and should not in any way affect their 9 deliberations. 10 As to what should be done if the juror's trip cannot 11 be changed and if the end of the day comes on February 3rd and 12 there has not been a verdict, the government believes that this 13 would not be -- the government would not consent to proceeding 14 with 11 jurors and we do not believe that this would be an 15 appropriate case for the Court to order the trial to proceed 16 with 11 jurors over the government's objection. 17 THE COURT: My suspicion -- well, I shouldn't surmise. 18 MS. BAKER: And, other than proceeding with 11 jurors, 19 it seems to us that the remaining alternatives are either to 20 adjourn for the period of time while that juror is away or to 21 replace that juror with an alternate because the alternates do 22 remain on call and the government sees no obstacle to bringing 23 an alternate in if an alternate is needed. 24 And as to which of those two things should be done, 25 either adjourning or seating an alternate, the government is SOUTHERN DISTRICT REPORTERS (212) 805-0300 12805 51R5SATF Deliberations 1 indifferent and would defer if the defendants come to a 2 position as to which one of those two is the course that they 3 would prefer. 4 MR. RUHNKE: Your Honor, there is not a consensus as 5 to defense position, I don't think, on this issue. 6 But, as an initial matter, I think what the jury -- 7 THE COURT: Is the -- 8 MR. RUHNKE: Sorry. 9 THE COURT: Are the defendants divided on the question 10 of whether to proceed with 11 jurors? 11 MR. RUHNKE: Yes. Yes, they are. 12 The position of Mr. Yousry and I think Ms. Stewart I 13 will come to in a minute, but I think as far as what to tell 14 the juror and/or the remainder -- remaining members of the 15 jury, I think we should tell them that if this trip cannot be 16 postponed, we will accommodate the schedule of Juror number 2 17 one way or another; so that the jurors are not sitting there 18 even with the subtle pressure that, oh, unless we get this 19 resolved by next Thursday Juror number 2 is going to miss out 20 on her important trip. 21 As far as the remedy is concerned, assuming it can't 22 be postponed, then -- and the jury has not reached a verdict by 23 the end of the day on February 3 -- our view is to have consent 24 from the defense, meaning Mr. Yousry, and I believe 25 Ms. Stewart, to proceed with 11 jurors so that the SOUTHERN DISTRICT REPORTERS (212) 805-0300 12806 51R5SATF Deliberations 1 deliberations are not interrupted. 2 The less -- the second preference would be to adjourn 3 for the period of time that Juror number 2 is gone. 4 But I don't think under any circumstances we should 5 attempt to substitute an alternate and instruct the jury to 6 begin deliberations anew. Because I don't think that's humanly 7 possible because they will have deliberated for as long as they 8 have deliberated now, they will have deliberated several more 9 days, we hope, next week. 10 So, that's the position of, I believe, Defendant 11 Yousry and Defendant Stewart. 12 MR. PAUL: Your Honor, with regard to Mr. Sattar's 13 position, if we do get to the point where juror number 2 cannot 14 remain, we would at that point request that alternate -- the 15 first alternate replace her. 16 In other words, we are not going to consent to 11 and 17 we are not going to consent -- we want a full panel to proceed. 18 And rather than adjourn for however long that would require, it 19 would require, I think at that point, to have alternate number 20 1 come back in. 21 THE COURT: Okay, if you could -- 22 MS. BAKER: I just was going to say, if your Honor 23 wishes, I believe that the Advisory Committee notes to the 24 applicable Federal Rule of Criminal Procedure, which is Rule 25 23, supports the government's position that proceeding with 11 SOUTHERN DISTRICT REPORTERS (212) 805-0300 12807 51R5SATF Deliberations 1 jurors under these circumstances would not be appropriate. And 2 I'm happy to elaborate on that, if the Court would like. 3 MR. RUHNKE: You know, Judge, there actually is a 4 difference between the two rules. 5 I believe Rule 23 was, has not been amended since the 6 amendment to, I think, Rule 24, which allows the Court to 7 retain alternates. 8 When Rule 23 was set up it was in the historical 9 context of if something happened to a jury during deliberations 10 and the only alternatives were a mistrial or consent by the 11 defense to a jury of 11. 12 The rule has not been amended to reflect the fact 13 that, I think, Rule 24 was subsequently amended to allow a 14 Court to retain alternates, so. 15 That is just for context. 16 THE COURT: If you could work on notes that are 17 outstanding? 18 MS. BAKER: Your Honor, we are actually ready to tell 19 you what the government knows about the notes. 20 1109 and 11 -- 21 THE COURT: Could you hold on just one moment? 22 23 Okay, thank you. I'm sorry. 24 MS. BAKER: 1109 and 1110 are two intercepted calls 25 that were introduced into evidence. 1109 and 1110 themselves SOUTHERN DISTRICT REPORTERS (212) 805-0300 12808 51R5SATF Deliberations 1 are the recordings but those are calls that are in Arabic. So, 2 we interpret the jury's request to be a request for the 3 corresponding transcripts which are 1109X and 1110X, and 4 neither of those is subject to any limiting instruction. And 5 we do have those ready. 6 The second note in which the jurors ask for 1070T but 7 then indicated that they were unsure of the exhibit number and 8 gave a description, we understand that to be a request for 9 Government Exhibit 2070TA, which is the transcript or 10 translation of the recording of Abdel Rahman making his speech 11 in which he talks about destroying their corporations, sinking 12 their ships, etc. 13 And the jury's description which refers to 1996 and 14 prison is a reference, we believe, to some testimony that 15 Mr. Sattar gave about that exhibit, 2070TA. 16 And also, our belief that they're asking for 2070TA 17 links back to one of their prior notes in which they ask for an 18 exhibit by referring to it as 7020 when in fact there was no 19 such exhibit by that number. 20 So, for all of these reasons combined we believe that 21 they should be given 2070TA in response to their note which is 22 now Court Exhibit 89, and that -- 23 THE COURT: I'm sorry. They previously asked for, 24 what was the one that we didn't -- 25 MS. BAKER: 7020, 7-0-2-0. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12809 51R5SATF Deliberations 1 THE COURT: Right. 2 MS. BAKER: And 2070TA is subject to a limiting 3 instruction which I can recite. 4 THE COURT: What's the limiting instruction? 5 MS. BAKER: The limiting instruction is that this 6 exhibit is received in evidence not for the truth of any of the 7 matters asserted in the exhibit. 8 THE COURT: Any disagreements? 9 MS. SHELLOW-LAVINE: Your Honor, with respect to 1109 10 and 1110 we have no disagreement. 11 We agree that the limiting instruction on 2070TA is as 12 Ms. Baker recited it. 13 And I tendered the exhibit to counsel for Mr. Sattar. 14 I don't know whether in fact that is the exhibit requested or 15 not. 16 THE COURT: Okay. Do the parties agree? I mean, I 17 will read you my proposed note. 18 MS. SHELLOW-LAVINE: Your Honor, Mr. Paul advises me 19 that he assumes that 2070TA is in fact what the jury requested. 20 MR. PAUL: Can I see the jury's note again? 21 THE COURT: Certainly. 22 My proposed response would be: Members of the jury, 23 in response to your notes we are providing the following 24 exhibits. We are providing 1109X and 1110X, which are the 25 transcripts in evidence of the Arabic recordings 1109 and 1110. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12810 51R5SATF Deliberations 1 We are providing 2070TA, which is the translation of a 2 recording which appears to be responsive to your request for 3 1070T. 4 If you wish something else, please let us know. 5 This exhibit is subject to the following limiting 6 instruction: This exhibit is received in evidence not for the 7 truth of any of the matters asserted in the exhibit. 8 MR. PAUL: Your Honor, just so the record is clear, in 9 looking at the note once again which says -- though they state 10 the number may be incorrect, what they're specifically saying 11 is we want the 1996 speech of Rahman from prison on the phone. 12 Clearly 2070T is not -- it may be a speech, it may be 13 from Sheikh Rahman; there is no indication it is a speech from 14 prison and there is no interception with regard to this and I 15 don't think that that -- we're not consenting to 2070TA being a 16 response to this note. 17 THE COURT: What is 2070TA? 18 MR. PAUL: I believe it is a translation from a tape 19 that was recovered from Mr. Sattar's home that is one of the 20 many sermons of the Sheikh. 21 MS. BAKER: That is correct, your Honor; but 22 Mr. Sattar, on direct and cross-examination, testified that he 23 believed that that recording was made around 1996 or 1997 while 24 Sheikh Abdel Rahman was in prison. So, that is how we believe 25 it ties to the date and description given by the jury. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12811 51R5SATF Deliberations 1 Your Honor, the defense has proffered no other 2 alternative for what they think the jury is looking for and if 3 it turns out that this is not the exhibit that the jury is 4 interested in, presumably they won't look at it and they'll 5 send out another note. 6 We don't think that there is any other way, really, to 7 respond here. When they did send out the request previously 8 for 7020 the Court asked them to clarify and we believe that 9 this is what they are attempting to do here. 10 THE COURT: Mr. Paul, what other item in evidence is 11 reasonably responsive to the request? 12 MR. PAUL: Your Honor, I have nothing to suggest to 13 the Court that would answer that response. It is just that I 14 think that -- perhaps if I could hear your Honor's note once 15 again as to how you intend to respond to that specific 16 question? 17 THE COURT: We are providing 2070TA which is the 18 translation of a recording which appears to be responsive to 19 your request for 1070T. If you wish something else, please let 20 us know. This exhibit is subject to the following limiting 21 instruction: This exhibit is received in evidence not for the 22 truth of any of the matters asserted in the exhibit. 23 MS. BAKER: Your Honor, the government -- I'm sorry. 24 THE COURT: I have quotes around the limiting 25 instruction. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12812 51R5SATF Deliberations 1 Go ahead. 2 MS. BAKER: The government would have no objection if 3 the defense would prefer that instead of your Honor saying, 4 recording which appears to be responsive; to change it to 5 recording which may be responsive. 6 MR. PAUL: That would be fine, your Honor. We will 7 accept that amendment. 8 THE COURT: Okay. Of course I will rewrite the note. 9 (Pause) 10 THE COURT: All right. 11 Court Exhibit 90. It reads: Members of the jury, in 12 response to your notes we are providing the following exhibits: 13 We are providing is ever 1109X and 1110X which are the 14 transcript in evidence of the Arabic recordings of 1109 and 15 1110. 16 We are providing 2070TA which is the translation of a 17 recording which may be responsive to your request for 1070T. 18 If you wish something else, please let us know. This 19 exhibit is subject to the following limiting instruction: 20 "This exhibit is received in evidence not for the truth of any 21 of the matters asserted in the exhibit." 22 The parties should inspect the note and, is that 23 satisfactory? 24 MS. BAKER: Yes, your Honor. 25 MS. SHELLOW-LAVINE: Yes, your Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12813 51R5SATF Deliberations 1 THE COURT: All right. And you should inspect the 2 exhibits also. 3 MS. SHELLOW-LAVINE: Your Honor, we have reviewed the 4 exhibits and the note and I will hand them to Mr. Fletcher. 5 THE COURT: Satisfactory to go to the jury? 6 MR. PAUL: Yes, your Honor. 7 MS. SHELLOW-LAVINE: Yes, your Honor. 8 THE COURT: Government? 9 MS. BAKER: Yes, your Honor. 10 THE MARSHAL: Your Honor? May I take the pillows? 11 THE COURT: Oh, there are the pillows also. The 12 parties are welcome to inspect those too. 13 MS. SHELLOW-LAVINE: We have inspected the pillows and 14 they appear to be fine. I will return this to Mr. Fletcher, 15 the Court exhibit. 16 THE COURT: Fine by the government too. 17 MR. BARKOW: Yes, your Honor. We have inspected them 18 as well. 19 THE COURT: Okay. Let me return to the issue of the 20 juror and I will listen to your further thoughts on this. 21 I think I should talk to the juror with any of the 22 parties who wish to be present to see if there is some way that 23 this could be changed. I am not inclined to do it today 24 actually, but rather at the beginning of the next day on which 25 they sit because I am reluctant to interfere with jury SOUTHERN DISTRICT REPORTERS (212) 805-0300 12814 51R5SATF Deliberations 1 deliberations and to make them stop while I talk to a juror, or 2 to end the day early while I talk to the juror and have the 3 jurors -- the other jurors wait while I have that call -- while 4 I have that conversation. 5 I agree with all of the parties that I should write a 6 note that, to the jury which acknowledges that they sent me a 7 note about the commitments of one juror for February 4 and tell 8 them that I will talk to the -- I will talk separately to the 9 juror but, in any event, neither that juror nor any other juror 10 should be concerned over that situation because the law 11 provides various alternatives to the Court. And the utmost 12 consideration is that no outside considerations affect the jury 13 deliberation or the pace of those deliberations. That is 14 completely up to the jury which is, I think, consistent with 15 the views of all of the parties that I should send that type of 16 note to the jury. 17 I don't -- I don't have to decide at the moment the 18 issue of going with a jury of 11, adjourning for a week or 19 sitting an alternate. I appreciate the considerations that are 20 involved in each of those alternatives. 21 Do the parties want to be heard again at all on the 22 issue of the procedure and talking to the juror and writing 23 this note to the jurors now? 24 MS. BAKER: Your Honor, we agree with what you have 25 proposed to do in that regard. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12815 51R5SATF Deliberations 1 MR. RUHNKE: As well, your Honor. 2 (Pause) 3 THE COURT: My proposed note to the jurors would read: 4 We have received your note from earlier today in which you have 5 indicated that one juror continues to have a commitment 6 beginning on February 4 lasting one week. 7 I will talk separately to the juror at the beginning 8 of the next day's deliberations. In any event, neither that 9 juror nor any of the other jurors should be concerned over the 10 situation. It is of the utmost importance that no outside 11 concern should affect the jury deliberations or the pace of 12 jury deliberations. The law provides various alternatives to 13 the Court. Nothing should interfere with the juror's 14 obligation to decide the case based solely on the evidence or 15 lack of evidence and my instructions on the law. 16 MS. BAKER: The government agrees with that, your 17 Honor. 18 MR. PAUL: That's fine, your Honor. 19 MR. RUHNKE: Your Honor, may we just have a moment? 20 THE COURT: Sure. 21 MR. RUHNKE: Your Honor, that's consistent with what 22 your Honor has told us earlier and so I have no problem with 23 it. 24 THE COURT: It was also the gist of what you had asked 25 for. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12816 51R5SATF Deliberations 1 MR. RUHNKE: Yes. 2 THE COURT: I have also checked the note and your 3 recollection was correct, or Ms. Baker's recollection is 4 correct, juror number 41 sits in chair, seat 2. 5 MS. SHELLOW-LAVINE: Your Honor, we have conferred and 6 the note is fine. 7 THE COURT: Okay. 8 (Pause) 9 THE COURT: All right, I have read the note. I have 10 transcribed it. It is Court Exhibit 91 but the parties are 11 welcome to read it before it goes in to the jury. 12 MR. TIGAR: Yes, your Honor. 13 I have been waived off by the defense counsel. 14 MR. PAUL: It's okay. 15 Mr. Ruhnke? 16 THE DEPUTY CLERK: Giving it to the marshal. 17 THE COURT: The note is satisfactory to everyone? 18 MR. TIGAR: Yes, your Honor. 19 MR. RUHNKE: Yes, your Honor. 20 MR. BARKOW: Yes, your Honor. 21 THE COURT: Mr. Fletcher has given it to the marshal, 22 he will give it to the jury. 23 (Pause) 24 THE COURT: Do the parties want to be heard at all on 25 how I should exercise my discretion as among 11 jurors, an SOUTHERN DISTRICT REPORTERS (212) 805-0300 12817 51R5SATF Deliberations 1 adjournment and an alternate? 2 MR. RUHNKE: Your Honor, one thing that simply occurs 3 to me as a practical matter is that the idea of an adjournment, 4 I don't know what impact it would have on other jurors. 5 I think the last time we checked with them was did 6 they have any problems with the month of January. We really 7 haven't checked with them on the month of February. 8 I mean, I'm serious about that. If we all of a sudden 9 tell a jury that one of the alternatives we are going to do is 10 take off from the 4th to the 11th and jury deliberations will 11 resume again on February 14, which is that Monday, it may have 12 an impact on the other jurors. And I'm not quite sure how we 13 would take that into account. 14 I think we need to take it into account maybe by 15 saying to the jurors these are some of the alternatives where I 16 need to know if you can give us time toward the end of 17 February. 18 We really have not checked with them. They originally 19 thought it would be over sooner and then January came and now 20 January, apparently, is going. 21 MS. BAKER: Your Honor, all of the jurors know of this 22 potential issue because the note has come out from the jury 23 collectively. All of the jurors also know that there have been 24 adjournments previously during the trial, and during the 25 deliberations, for various reasons. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12818 51R5SATF Deliberations 1 And so, the government believes that if some other 2 juror had a scheduling issue coming up that they wouldn't be 3 shy about letting the Court know that. 4 THE COURT: I agree with that. 5 MS. BAKER: The other point I wanted to make as far as 6 the alternatives is, obviously, under the circumstances, given 7 the extreme length of this trial, the worst possible thing to 8 have happen would be a mistrial because of any issues relating 9 to jurors. 10 If the Court were to, at this juncture in response to 11 this juror's situation, go with 11 jurors as opposed to 12 adjourning or seating an alternate in this juror's place and 13 then something were to happen to another juror, I don't know 14 whether that raises the specter of a mistrial. But, if it does 15 not, at a minimum it would produce a situation where to avoid a 16 mistrial the Court would have to substitute in an alternate at 17 an even later juncture. 18 And given that Mr. Ruhnke has raised a concern about 19 an alternate coming in after time has passed, that would be 20 even a worse situation. 21 And so, we would suggest that that is a risk that 22 should be avoided. 23 (At 3:05 p.m., a note was received from the jury) 24 THE COURT: No, I understand that issue. 25 I have another note, Court Exhibit 92. Judge Koeltl, SOUTHERN DISTRICT REPORTERS (212) 805-0300 12819 51R5SATF Deliberations 1 we need the following: November 9, '04; November 10, '04; two 2 days of Lynne Stewart testimony. May we please have some 3 carbon paper? Number 329. 4 I'm sure -- well, I hope we have some carbon paper 5 around. 6 MS. BAKER: Your Honor, we don't have the hard copy 7 transcripts in the courtroom, Ms. Grant is going to go and get 8 them. It may be that there may need to be portions that will 9 need to be redacted out if there were matters that were 10 addressed outside the presence of the jury. 11 Your Honor, just glancing quickly at an electronic 12 copy of the transcript, at least on November 10th I have 13 already found one question as to which an objection was 14 sustained -- this was during cross-examination of Ms. Stewart. 15 So, there may well be others so, clearly, we are going to have 16 to do some redacting before a copy of the transcript can be 17 sent in to the jury. 18 THE COURT: It may take some time to gather two days 19 of transcript. 20 MS. BAKER: Your Honor, we will have it here very 21 quickly. The only issue will be how long it will take to go 22 through and make any necessary redactions. 23 MR. TIGAR: Is it the Court's view, and I'm just 24 unfamiliar with this, that we will provide transcript and not 25 readback? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12820 51R5SATF Deliberations 1 THE COURT: My usual practice, and I think the general 2 practice, is that the transcript would be provided to them with 3 any necessary redactions and that the redactions would be 4 usually made with black magic marker and then the page would be 5 Xeroxed so that you can't see what was redacted. 6 MR. TIGAR: Well, if the practice is to redact and 7 given that the parties all have electronic copies, it might be 8 easier to simply provide them with that, rather than having to 9 use magic marker. 10 I don't know how the government feels about that. 11 THE COURT: I have no -- 12 MR. TIGAR: I don't think the pagination matters to 13 the jury. 14 THE COURT: I have no problem in terms of if the 15 parties can agree on the way in which the transcript should be 16 given to the jury. 17 MR. TIGAR: Thank you. 18 THE COURT: And, in any event, the parties should go 19 over it carefully before it goes in which is why -- I don't 20 know how you want me to say it. I already told them in the 21 initial instructions that it takes time to gather the 22 transcript. 23 MR. TIGAR: Just scrolling through, your Honor, our 24 copy, it's going to take an hour, I would say, because there 25 were other matters, there were conferences and so on that SOUTHERN DISTRICT REPORTERS (212) 805-0300 12821 51R5SATF Deliberations 1 occurred in the transcript. 2 THE COURT: All right. 3 MS. BAKER: Your Honor, we have no objection to making 4 the edits in an electronic copy and then printing it out. I'm 5 happy to hear any suggestions from the defense as to 6 logistically how to do it. 7 But, I guess my initial thought is we have a laptop 8 here, obviously defense does too, but we can just sit right 9 here and go through and edit the electronic files. And then I 10 think we would have to maybe go back to our office to actually 11 print it out because I don't think we have succeeded in 12 printing right here in the courtroom. 13 MS. SHELLOW-LAVINE: That's acceptable to us, your 14 Honor. We can sit and do it together or the government can do 15 it and we can review it. 16 THE COURT: Either way. I will prepare a note for the 17 jury. 18 MR. PAUL: Your Honor, may my client be excused for 19 just a few minutes so he can go in back? 20 THE COURT: Absolutely. 21 While you are here, the gist of the note that I plan 22 to send the jury is: Members of the jury, I have received your 23 note requesting two days of testimony. As I explained in my 24 initial instructions to you, it does take time to provide 25 testimony and we will therefore provide that testimony to you SOUTHERN DISTRICT REPORTERS (212) 805-0300 12822 51R5SATF Deliberations 1 at the beginning of your next day of deliberations. 2 Is that satisfactory? 3 MS. SHELLOW-LAVINE: Your Honor, that's satisfactory 4 with respect to the transcript issue. 5 They have also requested carbon paper. I'm not sure 6 carbon paper is still made. 7 THE COURT: Mr. Fletcher says we may have some old 8 carbon paper and so I will tell them. 9 MS. SHELLOW-LAVINE: I regret that I'm old enough to 10 know what carbon paper is. 11 THE COURT: We will also attempt to provide you with 12 carbon paper. 13 Is that satisfactory to everyone? 14 MR. RUHNKE: Yes, your Honor. 15 MR. PAUL: Yes, your Honor. 16 MS. BAKER: Yes, your Honor. 17 THE COURT: All right, then Mr. Sattar can be excused. 18 MR. PAUL: Thank you. 19 THE COURT: Ladies and gentlemen, that's Court Exhibit 20 93 and the parties should inspect it before Mr. Fletcher gives 21 it to the marshal who will give it to the jury. 22 THE DEPUTY CLERK: Has the government seen it? 23 MS. BAKER: Yes. 24 MS. SHELLOW-LAVINE: Your Honor, we have seen Court 25 Exhibit 93 and it is fine. SOUTHERN DISTRICT REPORTERS (212) 805-0300 12823 51R5SATF Deliberations 1 THE COURT: All right. Satisfactory to everyone. 2 Mr. Fletcher is giving the note to the marshal. 3 Ladies and gentlemen, I will be back if there is a 4 note. Otherwise, I will be back by 4:15. 5 (Recess pending verdict) 6 THE COURT: Please be seated, all. 7 MR. STERN: Mr. Sattar's lawyers aren't here, I'm not 8 sure where they are. 9 THE COURT: Thank you. 10 MR. RUHNKE: Your Honor, we are just inquiring whether 11 Mr. Sattar's lawyers have actually been called. Because if 12 not, we can go downstairs and see if they're down there. 13 They're apparently being called. 14 (Pause) 15 THE COURT: I have a note, the parties are welcome to 16 inspect. It reads: It's marked as Court Exhibit 94. Judge 17 Koeltl, there is a line crossed out which says: All days of 18 Lynne Stewart redirect testimony. And then it says: May we 19 have October 26, 27, 28 of Lynne Stewart's testimony? Then: 20 If you cannot find carbon paper, would you have a pad of 21 carbonless paper? I want it so that I will make copies of the 22 notes that I send you for my file. Number 329. 23 Also, 1268X, 2312-50T, 2312-55T, 2312-57T. 24 The parties are welcome to inspect. 25 MS. BAKER: Your Honor, 1268X is an intercepted SOUTHERN DISTRICT REPORTERS (212) 805-0300 12824 51R5SATF Deliberations 1 telephone call, or the transcript of it, and it is not subject 2 to any limiting instruction. 3 2312-50T, 2312-55T, and 2312-57T are each subject to a 4 limiting instruction that they are admitted not for the truth 5 of any of the statements in the article. 6 Each of those is a translation of a news article. 7 And your Honor, obviously, as to the three days of 8 trial transcript that the jury has requested, the parties will 9 need to go through the same reviewing and redacting process. 10 So, as I'm sure the Court has already decided to do, we would 11 suggest that you will tell them that they will be given that on 12 the morning of their next day of deliberations. 13 The other exhibits could go in this afternoon if -- I 14 don't think we know yet what time the jury is intending to stop 15 today, so. 16 THE COURT: I'm told we have the carbon paper, by the 17 way, and we can give them the carbon paper. I might as well 18 send them the carbon along with 1268X, 2312-50T, 2312-55T, and 19 2312-57T. 20 MS. BAKER: Your Honor, I have just handed those 21 exhibits to defense counsel for review. 22 MS. SHELLOW-LAVINE: Your Honor, if I can clarify? 23 When Mr. Fletcher showed us the carbon paper they were sealed 24 envelopes, has someone opened those envelopes to determine what 25 is in there? SOUTHERN DISTRICT REPORTERS (212) 805-0300 12825 51R5SATF Deliberations 1 THE COURT: No. We can open them and you can inspect 2 what is inside. 3 MS. SHELLOW-LAVINE: Thank you. 4 MS. BAKER: Your Honor, I think we're all assuming 5 that the jury will not be sitting tomorrow but is your Honor 6 intending to specifically ask them that question? 7 THE COURT: No. 8 MS. SHELLOW-LAVINE: Your Honor, we've inspected the 9 carbon paper. It appears to be new and unused. 10 (Pause) 11 THE COURT: Do any of the parties feel strongly one 12 way or another whether I offer to tell the jurors that if at 13 any time they wish a copy of a note that they sent to us, just 14 ask for it? I mean -- 15 MS. BAKER: Your Honor, we think that would be a good 16 idea, actually. 17 MR. TIGAR: We have no objection. 18 MR. RUHNKE: Apparently the notes are keeping coming 19 here. 20 THE COURT: What? 21 MR. RUHNKE: We have no objection, your Honor. The 22 notes keep coming, flying out of the jury room, but we have no 23 objection. 24 THE COURT: My note to the jury reads: Members of the 25 jury, we are providing you 1268X, as you requested. We are SOUTHERN DISTRICT REPORTERS (212) 805-0300 12826 51R5SATF Deliberations 1 also providing you 2312-50T, 2312-55T and 2312-57T, as you 2 requested. These exhibits are subject to the limiting 3 instruction that the exhibits are admitted not for the truth of 4 any of the statements in the articles. 5 With respect to your request for testimony, we will 6 provide those transcripts to you at the beginning of the next 7 day of deliberations. 8 We are providing carbon paper to you as requested. If 9 at any time you wish us to provide you with copies of notes 10 that you send to us, please let us know. 11 Satisfactory? 12 MR. TIGAR: Yes, your Honor. 13 MS. BAKER: Your Honor, I'm sorry. We would request a 14 clarification of the note which is the sentence that says: 15 These exhibits are subject to the limiting instruction. If you 16 could just maybe caret in these last three exhibits are subject 17 to the limiting instruction? 18 THE COURT: Okay, I have -- it's pretty clear because 19 I have it in a separate paragraph, but if you don't mind 20 reading the caret. 21 I have three more notes. Let me just read you the 22 notes so that you can know what they are and make sure that I 23 can respond to them separately and send this note that I just 24 read in. 25 Court Exhibit 95. We, the jury, will be adjourning at SOUTHERN DISTRICT REPORTERS (212) 805-0300 12827 51R5SATF Deliberations 1 4:15. 2 Now I do have to ask them if they're going to return 3 when they wish to return because none of their other notes 4 indicate it. 5 Court Exhibit 96 reads: Judge Koeltl, may we have the 6 following exhibits: 1105X, 1106X, 1107X, 1111X. Number 329. 7 This note is signed by another juror, another juror 8 number, so I will remind the jurors that all notes are to be 9 signed by the foreperson. And, it says -- it is Court Exhibit 10 97, it says: Count Five question. In order to reach a 11 decision on elements two, four three of Count Five: One, does 12 the defendant have to be consciously aware of the specific 13 count to a conspiracy, either by knowing of any actions planned 14 under Count Two or by having communication with one or more 15 Count Two co-conspirators? 16 Two. Or, is it sufficient on the basis of 17 circumstantial evidence for the defendant to have known that 18 conspiracies did exist? 19 Now, the parties are welcome to inspect those notes 20 and let me ask you, is the note that I have read to you, 21 beginning with we are providing you 1268X, as you requested, 22 satisfactory? And can it go in to the jury now? 23 MS. BAKER: Yes, your Honor. 24 MR. RUHNKE: Yes, your Honor. Perhaps you might add 25 just a statement to it. We've got your note that you are SOUTHERN DISTRICT REPORTERS (212) 805-0300 12828 51R5SATF Deliberations 1 adjourning at 4:15, we assume it is until Monday because you 2 have told us if they're deliberating Fridays, they haven't. 3 THE COURT: No, I was going to send them another note. 4 MR. RUHNKE: Okay. 5 THE COURT: Right after I send them this note. 6 MR. RUHNKE: I was thinking to write it at the bottom 7 of the note to save some paper. 8 THE COURT: I don't like putting P.S.s on. 9 MR. RUHNKE: That's fine, your Honor. 10 THE COURT: I can rewrite the whole note. 11 MR. RUHNKE: We would rather you not rewrite the whole 12 note. 13 MS. BAKER: Your Honor, we agree with that. I would 14 ask that only in the next note when you say that we know that 15 you are going to adjourn at 4:15, that you do the next part of 16 it by an open-ended question -- 17 THE COURT: Yes. 18 MS. BAKER: -- which is: When will you resume? 19 THE COURT: Yes. If they want to deliberate tomorrow 20 they're welcome to deliberate tomorrow. 21 Okay, the note to the jury is Court Exhibit -- Court 22 Exhibit 98, the parties are welcome to inspect. 23 MR. RUHNKE: Your Honor, with regard to that note 24 signed by another juror, I think we would like photocopies of 25 that. SOUTHERN DISTRICT REPORTERS (212) 805-0300