12845 51vesat1 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 31, 2005 8 9:00 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12846 51vesat1 1 (Trial continuing) 2 (In open court; jury not present. Time noted: 3 9:18 a.m.) 4 MR. TIGAR: Your Honor, Ms. Stewart will be here 5 momentarily. 6 THE COURT: Good morning, all. There are various 7 items. I faxed you all a response to the outstanding jury 8 questions. I have extra copies if anyone needs them. 9 MR. RUHNKE: We have no desire to be heard any further 10 on that issue. 11 THE COURT: It occurred to me later that one thing 12 that the note doesn't say is we're also providing copies of the 13 transcripts they requested. 14 MS. SHELLOW-LAVINE: Your Honor, those transcripts are 15 not yet ready to go. 16 THE COURT: Oh, good. 17 MS. SHELLOW-LAVINE: So we can do that in a separate 18 note. 19 MS. BAKER: Well, actually, your Honor, there are two 20 different sets of transcripts at issue. There are the 21 transcripts of a few telephone calls -- oh, those are already 22 addressed. 23 The status of the trial transcripts is that 24 Ms. Shellow-Lavine and I went over them together and prepared 25 them on Friday evening. She's just reviewing them to make sure SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12847 51vesat1 1 they're okay. As soon as she's done, they should be ready to 2 go. 3 THE COURT: But the note is correct in that I'm 4 providing you exhibits 1105X, 1106X, 1107X and 11X as you 5 requested. 6 MS. BAKER: Those certainly are ready to go, and the 7 defense inspected them on Thursday evening. 8 THE COURT: Do the parties want me to read a copy of 9 that note into the record? Let me hold it, because we have to 10 deal with the other matters in any event. 11 The marshal informs me that all of the jurors are 12 present, and I know I have to talk to Juror No. 2 at the outset 13 before they can deliberate. 14 I wanted to report to you further on the van driver. 15 Marshal Guccione recommended to me that a deputy US marshal be 16 present on the vans to ensure that the drivers do not talk. 17 And I initially agreed with that and provided that the marshals 18 were given a copy of my order instructing them not to talk to 19 jurors about the case. And the marshal informed me that the 20 government has no objection. And I said that I would inform 21 the parties. 22 On reflection, I thought that I shouldn't change the 23 procedure without first informing all of the parties to see if 24 there were any objections or any suggestions. So I told 25 Mr. Donnelly not to make the change, and he told me that he had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12848 51vesat1 1 ridden on one of the vans on Thursday afternoon. And I have no 2 problem with that in light of my conference with Mr. Donnelly. 3 So the issue is the marshal has recommended that in 4 order to ensure that the drivers do not say anything, that 5 there be a deputy US marshal on the vans in addition to the 6 driver. As I say, before I change the procedure, I want to 7 find out if there are any objections to that. 8 MR. RUHNKE: Your Honor, I think that's an issue we'd 9 like to talk about when we have a chance. The obvious thought 10 that comes to mind is that the jurors might infer from this 11 that there's some danger that's suddenly arisen. So I'm sure 12 there's a way of dealing with that. We'll talk about it among 13 ourselves. 14 THE COURT: If that -- yes. If that were a concern, 15 one way of dealing with that would be an explanation to the 16 jurors which would say that -- in substance, we have a marshal 17 on the van, and we've replaced the van driver because of 18 inappropriate conduct that has nothing at all to do with 19 anything that they have to decide, and that I could go on to 20 explain that further. 21 MR. RUHNKE: That sounds like that would do the trick. 22 But give us a chance to talk about it. But that sounds like 23 the correct answer to that. 24 THE COURT: All right. 25 Next item. Towards the end of the day on Thursday, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12849 51vesat1 1 during one of the breaks it appeared that one of the regular 2 media reporters leaned over the rail to look at one of the 3 computers. And I bring that to your attention. And I'm -- to 4 look at the Livenote. But in any event, I would be prepared to 5 post a notice in the press room that no reporters are to lean 6 over the jury rail. 7 Anyone else? 8 MS. SHELLOW-LAVINE: Yes, your Honor. 9 THE COURT: All right. The last item. It occurred to 10 me that I've raised with you before that I would ask that the 11 voicemail from the juror with respect to the van driver be 12 preserved. I did not raise with you whether the voicemail, if 13 there was a voicemail, by the juror who had the snow problem be 14 preserved, and simply never asked that it was done. No one's 15 asked me for it to be done. 16 MR. TIGAR: I don't think we think that it's 17 necessary, your Honor. 18 THE COURT: All right. All right. I'm prepared to -- 19 yes. 20 MR. TIGAR: May I be heard at side bar before your 21 Honor leaves the courtroom? 22 THE COURT: Absolutely. 23 (Pages 12850 through 12862 sealed by order of the 24 Court) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12863 51vesat1 1 (In open court; jury not present. Time noted: 2 10:12 a.m.) 3 THE COURT: First, I had a note from the jurors. It's 4 marked as Court Exhibit 101. It reads, please send the 5 following -- Judge Koeltl, please send the following exhibits: 6 1083X, 1093, 1163X, 1166X, 1170X, 2204AT, AS12. 329. 7 The parties are welcome to inspect. 8 MS. BAKER: I'm sorry, your Honor. What was the last 9 number? 10 THE COURT: 2204AT, AS12. 11 MS. BAKER: Oh. The last number was the juror's 12 number? 13 THE COURT: Oh, number 329. 14 MS. BAKER: It came out on LiveNote as 321. I wasn't 15 sure if that was another exhibit number. 16 THE COURT: This indicates to me that they have begun 17 to deliberate now that the juror has been returned to the jury 18 room. But I'm prepared to send them another note which says, 19 you may proceed to deliberate. Is that -- 20 MS. SHELLOW-LAVINE: Your Honor, it appears to me that 21 1170X may have been crossed out. 22 THE COURT: Okay. Could we deal with that note in a 23 moment. 24 MR. TIGAR: By all means, your Honor, the idea of 25 sending a note, you may proceed to deliberate, is fine with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12864 51vesat1 1 defense, your Honor. 2 THE COURT: All right. That will be Court Exhibit 3 102. 4 And Court Exhibit 103 will be the long note -- today 5 is the 31st? The long note that I had sent you copies of. And 6 if the parties want me to read that into the record, I will. 7 That will be Court Exhibit 102? That will be Court Exhibit 8 103, and the parties should inspect that note. 9 MS. SHELLOW-LAVINE: Your Honor, it has been your 10 practice to read notes into the record. Although I don't know 11 that it's necessary, that has been your practice. 12 THE COURT: I'll do it. It's always useful to have. 13 MR. RUHNKE: Your Honor, on this note, as we're 14 looking at it, it appears that 1170X is crossed out. We're not 15 sure if they want it or not. 16 THE COURT: Okay. 17 MR. RUHNKE: It does appear there's a line drawn 18 through it. I don't know what that means. 19 THE COURT: Let me deal with that in a moment. 20 MR. RUHNKE: Okay. 21 THE COURT: All right. I can read one of my copies of 22 Government Exhibit 103 into the record. Court Exhibit 103. 23 All right. Let me read Court Exhibit 103. As I say, 24 I've made various copies. 25 So, members of the jury, I am providing you 1105X, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12865 51vesat1 1 1106X, 1107X and 1111X as you requested. 2 The remainder of this note is in reply to your 3 question received by the Court on January 27, 2005, 4:00 p.m. 4 regarding Count 5 of the indictment. In reply to your first 5 question, the government in order to sustain its burden on 6 Count 5 must prove beyond a reasonable doubt that one element 7 of the offense, that the defendant you are considering provided 8 material support or resources or concealed or disguised the 9 nature, location or source of the material of resources, 10 knowing or intending that the support or resources were to be 11 used in preparation for or in carrying out the conspiracy 12 charged in Count 2 of the indictment. 13 As part of that element the government must prove that 14 the defendant you are considering knew of the specific 15 conspiracy charged in Count 2. If the government fails to 16 establish such knowledge, you must find the defendant you are 17 considering not guilty. 18 In your note you offered two possible scenarios for 19 which such knowledge could be proven, namely that the defendant 20 you are considering knew of any actions planned under Count 2 21 or that the defendant you are considering was in communication 22 with one or more of the Count 2 coconspirators. 23 There is no particular requirement in the law as to 24 how the government may prove a defendant's knowledge of the 25 Count 2 conspiracy. And the government may establish the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12866 51vesat1 1 defendant's knowledge of the Count 2 conspiracy by direct or 2 circumstantial evidence, so long as the evidence establishes 3 beyond a reasonable doubt that the defendant you are 4 considering, in fact, knew about the specific conspiracy 5 alleged in Count 2. 6 In reply to your second question, the government does 7 not bear its burden of proof if all the government establishes 8 is that the defendant you are considering knew that some other 9 conspiracy or conspiracies did exist. Under those 10 circumstances, the elements of Count 2 have not been 11 established and you must find the defendant you are considering 12 not guilty. As stated, the government must prove that the 13 defendant you are considering knew about the specific 14 conspiracy charged in Count 2. 15 I refer you as well to pages 84 to 94 and 100 to 104 16 concerning Count 5 and pages 72 to 83 concerning Count 2 of my 17 jury instructions. 18 Now, there were questions with respect to the last 19 note? 20 MS. BAKER: Oh, your Honor, I'm sorry. That note that 21 the Court just finished reading, which is Court Exhibit 103, 22 has that already gone to the jury? 23 THE COURT: Yes. 24 MS. BAKER: Oh, it went without the exhibits 25 referenced in it, which are still right here. These are the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12867 51vesat1 1 four exhibits referenced. 2 THE COURT: All right. Hold on. 3 MS. BAKER: Yes. Defense counsel had inspected them 4 on Thursday afternoon. 5 THE COURT: Okay, hold on. I should send another 6 note: I am sending you the exhibits referred to in my last 7 note, Court Exhibit 104, which were inadvertently not sent to 8 you with the note. That's Court Exhibit 104. And the parties 9 are -- is that satisfactory? 10 MS. SHELLOW-LAVINE: Yes, your Honor. 11 MS. BAKER: Yes, your Honor. 12 MS. SHELLOW-LAVINE: I've inspected the exhibits, I'll 13 hand them to Mr. Fletcher. 14 THE COURT: The parties should inspect them now. 15 THE DEPUTY CLERK: Given to the marshal. 16 THE COURT: All right. So Court Exhibit 104 is now 17 going to the jury. And the note was satisfactory to everyone, 18 right? 19 MS. BAKER: Yes, your Honor. 20 MS. SHELLOW-LAVINE: That's correct, your Honor. 21 THE COURT: Okay. Now, there were questions with 22 respect to the exhibits on the last note? 23 MS. SHELLOW-LAVINE: Your Honor, it appears to us 24 although when you read it into the record, you read a request 25 for Exhibit 1170X, it appears to have been crossed out. And my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12868 51vesat1 1 understanding is that the jury's already received a copy of 2 that exhibit. 3 THE COURT: Okay. 4 MS. BAKER: Your Honor, as to the other exhibits 5 requested in that note, the note as I recall it, and I don't 6 have it in front of me anymore, said 1093. We would construe 7 that as a request for 1093X, because 1093 itself is the audio 8 file of an Arabic language call, whereas 1093X was the 9 corresponding transcript. 10 Two of the government exhibits that were requested 11 have a limiting instruction, and those are Government 12 Exhibit 1083X and Government Exhibit 1166X. They both get the 13 same limiting instruction, which I can hand up to your Honor, 14 but it is that the transcripts are offered only as to Counts 2 15 and 3 of the indictment. They cannot be considered against 16 Ms. Stewart or Mr. Yousry for the truth of any of the matters 17 asserted in the transcripts. 18 The other government exhibits that were requested, 19 which are 1093X as we construe it, 1163X and 2204AT, those are 20 not subject to any limiting instruction. 21 And then the Sattar call that was requested, which is 22 AS12, is subject to a limiting instruction, which also I have 23 written down, but it's that this exhibit is received not for 24 the truth of any of the statements in the exhibit but solely 25 with respect to Mr. Sattar's knowledge, intent and state of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12869 51vesat1 1 mind. 2 Did you want me to hand those instructions up? 3 THE COURT: Sure. 4 MS. SHELLOW-LAVINE: May I confer with Ms. Baker for a 5 moment. 6 THE COURT: Sure. I've received a note from the jury, 7 which reads -- I'm sorry. For a moment I thought that 8 Ms. Baker's limiting instructions were part of the note, but 9 they're not. 10 Court Exhibit 105, 31 January '05, Judge Koeltl, I'm 11 returning the carbon paper. If I could have xerox copies of my 12 notes to you for my records, I would appreciate it. May I 13 please have three open file folders and a 12-inch ruler. The 14 jury is ready to start deliberations. Number 329. 15 Parties are welcome to inspect. I've already sent 16 them a note that they could begin deliberations. 17 MR. RUHNKE: Obviously the jury can have whatever they 18 ask for within reason, your Honor. These seem within reason. 19 THE COURT: Well, first of all, the parties are 20 welcome to inspect the packages of carbon paper that were 21 returned, just to make sure there's nothing about them that's 22 different. 23 And I agree with you that -- I have no problem sending 24 them the supplies they ask for. And we will attempt to get 25 them and show them to you before they go. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12870 51vesat1 1 While it's on my mind, I had -- let me just talk to -- 2 I meant to include something else in the robing room, so let me 3 talk to the lawyers at side bar. 4 (Page 12871 sealed by order of the Court) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12872 51vesat1 1 (In open court; jury not present) 2 THE COURT: Could I ask to -- I have a question with 3 respect to the jurors' note, which is I would -- if I could 4 have xerox copies of my notes to you for my records. We did in 5 some xerox notes in response to a prior request, and it's not 6 clear to me whether they want xerox copies of all of the notes 7 that we've sent or not. If they do, I'll -- I have no problem 8 giving them a complete set, but I think we should ask. 9 MS. SHELLOW-LAVINE: Your Honor, I think our belief is 10 that a complete set of the notes should be what's given to them 11 at this point. It appears to be that's what they've requested, 12 and although some of them will be duplicates because we have in 13 the past provided copies, a complete set will be cleaner and 14 easier. 15 MS. BAKER: That's fine with the government, your 16 Honor. 17 THE COURT: All right. It will take some time. 18 MS. BAKER: Your Honor, if I might renew a request 19 made by the parties previously. If the notes are all going to 20 be copied together anyway, perhaps copies of a complete set of 21 the notes could be made for the parties at that time as well. 22 THE COURT: Yes. Sure. May I have the last note. 23 MS. BAKER: Your Honor, I did want to clarify one 24 additional thing with regard to that last note, and now I've 25 passed it back up. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12873 51vesat1 1 I don't recall whether it asked for AS12 or AS12T. 2 Again, AS12 is an Arabic language recording. The translation 3 which is the evidence is AS12T, and it's subject to that 4 limiting instruction that I handed up to the Court. 5 THE COURT: Okay. Mr. Sattar agrees we should send 6 the transcript of AS12? 7 MR. PAUL: Yes. 8 THE COURT: No limiting instructions for 1163X or 9 2204AT? 10 MS. SHELLOW-LAVINE: That's correct, your Honor. 11 MS. BAKER: Or for 1093X? 12 THE COURT: Correct. 13 MS. SHELLOW-LAVINE: Your Honor, may I consult with 14 Ms. Baker for a moment? 15 THE COURT: Yes. 16 (Pause) 17 MS. SHELLOW-LAVINE: Your Honor, Ms. Grant has 18 supplied us with a 12-inch ruler and three Redwelds which we 19 have inspected. I'll tender them to Mr. Fletcher. 20 THE COURT: All right. We've been providing them 21 through the trial manila folders, but the open Redwelds seem to 22 work just as well. 23 (Pause) 24 THE COURT: I -- here's a proposed note to the jurors. 25 I point out I -- we have the supplies, so I had originally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12874 51vesat1 1 written we will provide. And I crossed it out to say, we are 2 providing. 3 We are providing the supplies you asked for. We will 4 also -- we will also provide copies of the notes you requested, 5 but it will take some time to make the copies. 6 We are providing 1093X in response to your request for 7 1093, because 1093X is a transcript in evidence of the Arabic 8 recording 1093. 9 We are providing 1163X and 2204AT as you requested. 10 We are providing 1083X and 1166X as you requested. These 11 exhibits are subject to the following limiting instruction. 12 These transcripts are offered only as to Counts 2 and 3 of the 13 indictment. They cannot be considered against Ms. Stewart or 14 Mr. Yousry for the truth of any of the matters asserted in the 15 transcripts. 16 We are providing AS12T in response to your request for 17 AS12, because AS12T is the transcript of the -- I added 18 Arabic -- recording AS12. This exhibit is subject to the 19 following limiting instruction: 20 This exhibit is received not for the truth of any of 21 the statements in the exhibit but solely with respect to 22 Mr. Sattar's knowledge, intent and state of mind. 23 And we'll staple the note because it's two pages. And 24 the parties should inspect it and tell me if they're satisfied 25 with it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12875 51vesat1 1 Do you want the note back that it's responsive to to 2 check against? 3 MS. SHELLOW-LAVINE: I believe that I have notes of -- 4 that note. Thank you, your Honor. 5 MS. BAKER: Your Honor, while we're waiting, it's my 6 understanding that defense counsel is still looking over those 7 days of trial transcript that are responsive to one of the 8 juror's notes of Thursday afternoon. As we had advised the 9 Court on Thursday that we would do, Ms. Shellow-Lavine and I 10 went through and redacted, for example, sustained objections 11 where testimony was stricken or colloquy that occurred outside 12 the presence of the jury. 13 I think in light of that, in light of the fact 14 that that resulted in a printout where certain pages are 15 completely omitted so that two consecutive pages do not have 16 consecutive page numbers, and in other instances pages of that 17 have only three or four lines of text on them where the line 18 numbers made clear that certain lines have been omitted, that 19 the Court might wish in its note providing the trial transcript 20 to the jury to advise the jury that certain matters were 21 removed for legal reasons that they need not be concerned 22 about, or something to that effect. 23 MR. TIGAR: We agree with that, your Honor. We're 24 virtually finished now substituting pages. Ms. Shellow-Lavine 25 and Ms. Baker did agree that certain words that appeared in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12876 51vesat1 1 transcript ought to have been something else. This process is 2 almost done. 3 THE COURT: It also makes sense to me to have a record 4 of what goes in. So if you'd make a copy of -- 5 MS. BAKER: Your Honor, we did. We have the originals 6 in a stack on the table right here in front of me which were 7 printed out after Ms. Shellow-Lavine and I made the agreed-upon 8 changes to them. And then those were photocopied on to 9 three-hole paper and put in loose-leaf binders for the jury. 10 So the jury is actually getting a photocopy of the original 11 printouts that are here and available and will be maintained. 12 MS. SHELLOW-LAVINE: Your Honor, we agree the original 13 printouts with the substituted pages for corrections be made a 14 Court exhibit. 15 MS. BAKER: We have no objection to that. Right now 16 they're just here. They're not bound in any particular way. 17 If anyone wishes copies of them, we'd be happy to make copies, 18 but then I would suggest that we bind them in some way before 19 they be marked. 20 Your Honor, here are the exhibits that would accompany 21 that note. They've been inspected by defense counsel. 22 THE COURT: All right. Court Exhibit 106 is -- is 23 that note satisfactory to everyone? 24 MR. RUHNKE: Yes, your Honor. 25 MS. BAKER: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12877 51vesat1 1 MR. PAUL: Yes, your Honor. 2 THE COURT: So the exhibits and the manila folders and 3 the ruler and exhibit -- Court Exhibit 106 are now going to be 4 given to the marshal to take in to the jury. 5 MS. SHELLOW-LAVINE: Thank you, your Honor. I'm 6 tendering it. 7 THE COURT: All right. Is that satisfactory? 8 Everyone satisfied? 9 THE DEPUTY CLERK: Given to the marshal. 10 THE COURT: All right. I'm sorry. Was everyone 11 satisfied, defense, government? 12 MR. PAUL: Yes. 13 THE COURT: It's been given to the marshal. I'm 14 returning the limiting instruction to Ms. Baker. 15 MS. SHELLOW-LAVINE: Your Honor, I have the two 16 binders provided by the government of Ms. Stewart's testimony 17 requested by the jury last week. We have reviewed it, 18 substituted pages that Ms. Baker and I agreed could be 19 substituted. They are transcripts from October 26th and 27th 20 of 2004, October 28th, November 9 and November 10. 21 THE COURT: Okay. Are you all confident that we have 22 a set of what's going in to the jury as it goes in to the jury? 23 MS. SHELLOW-LAVINE: Your Honor, I have no idea until 24 we have a copy. 25 MS. BAKER: Take as long as you like to check them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12878 51vesat1 1 We can wait to send these in. 2 MS. SHELLOW-LAVINE: Your Honor, my suggestion is, 3 rather than holding up the volumes going to the jury while I 4 look to make sure that we have a copy here, I have notes that 5 reflect what should be in, and I'm satisfied that I can do that 6 without having to have the binders next to me. 7 So my suggestion is, with the Court's permission, that 8 we send in the two binders of transcript while I review this to 9 make certain the Court exhibits are accurate. 10 THE COURT: All right. Parties have inspected the 11 binders and are satisfied to have them go in? 12 MR. TIGAR: Yes, your Honor. 13 MS. SHELLOW-LAVINE: Yes, your Honor. 14 (Pause) 15 THE COURT: All right. The next note is Court Exhibit 16 107. It reads, members of the jury, we are sending you the 17 transcripts that you requested. 18 Is that satisfactory? 19 MS. SHELLOW-LAVINE: Your Honor, do you want to make 20 clear that those are trial transcripts as opposed to 21 transcripts of telephone calls or -- 22 THE COURT: Thank you. Thank you. 23 MS. BAKER: Your Honor, also the parties had agreed in 24 a request that your Honor advise that certain matters were 25 redacted or removed and that they need not be concerned about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12879 51vesat1 1 why. 2 THE COURT: Right. It was five days of Ms. Stewart's 3 testimony, right? 4 MS. SHELLOW-LAVINE: That's correct, your Honor. 5 THE COURT: Here's a proposal: Members of the jury, 6 we are sending you copies of the five days of Ms. Stewart's 7 testimony that you requested. Various matters have been 8 redacted from the transcripts of the testimony for legal 9 reasons that are not relevant to your consideration of the 10 testimony and should not affect your deliberations in any way. 11 Is that satisfactory? 12 MS. BAKER: Yes, your Honor. 13 MS. SHELLOW-LAVINE: Yes, your Honor. 14 THE COURT: This will be Court Exhibit 107. The 15 parties should inspect the note and the transcripts that are 16 going to the jury. 17 MS. SHELLOW-LAVINE: And we did inspect the binders. 18 (Pause) 19 THE COURT: All right. I will see you all later. 20 (Recess pending verdict) 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12880 51vesat1 1 AFTERNOON SESSION 2 2:23 p.m. 3 (In open court; jury not present) 4 THE COURT: I have -- I'll speak loudly. 5 Judge Koeltl, we need to -- it reads, Court Exhibit 6 108, Judge Koeltl, we need to be in the vans and leaving at 7 4:30 p.m. One of the jurors has a 5:00 p.m. interview. Number 8 329. 9 So I take that to mean that the jurors should leave at 10 4:15. Parties are welcome to inspect the note. 11 All right. The note reads, we will call you -- 12 members of the jury, we will call you back to the courtroom at 13 4:15 p.m. so that you can be in the vans at 4:30 p.m. 14 Is that satisfactory? That's -- 15 MS. BAKER: Yes, your Honor. 16 THE COURT: All right. Parties should inspect the 17 note that will be Court Exhibit 109. 18 That, then, raises the issue of the marshal in the 19 van. 20 MR. RUHNKE: Your Honor, I think everybody thinks 21 that's a good idea, with the kind of instruction that your 22 Honor was discussing earlier. And I think it's just a matter 23 of just drafting something to the jury explaining why the 24 marshals are now riding in the vans. I think your Honor 25 basically explained it on the record this morning. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12881 51vesat1 1 THE COURT: A possible note would say -- and I could 2 tell them this when I brought them in at the end of the day -- 3 last week one of the van drivers acted inappropriately. We 4 therefore had that van driver replaced. A marshal will now be 5 present in the vans to assure there is no inappropriate 6 conduct. As you can appreciate, this has nothing at all to do 7 with the parties. It also has nothing at all to do with the 8 case. You should therefore not discuss it at all among 9 yourselves, and this should not enter into your deliberations. 10 MS. SHELLOW-LAVINE: That's good, your Honor. 11 MS. BAKER: That's fine with the government, your 12 Honor. 13 THE COURT: Okay. No, no, I'm going to read that. 14 Did the other note go in to the jury? 15 So the note that's going in is just that we're 16 adjourning at -- we'll bring them in at 4:15, and then I'll 17 talk to Mr. Donnelly about a second marshal and making sure 18 that the other marshal has the order, see if we can do it 19 today. Mr. Donnelly tells me we can get the second marshal 20 today. Okay. 21 MS. BAKER: Your Honor, these are bound copies of the 22 five days of redacted trial transcript, copies of what was sent 23 in to the jury earlier this morning. We have also provided 24 copies to Ms. Stewart's counsel. 25 I don't know -- I think earlier there had been a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12882 51vesat1 1 request that these be marked as court exhibits. We have no 2 objection to that. 3 THE COURT: Okay. So they'll be cumulatively marked 4 as -- no. So they'll be marked as 110A, B, C, D and E. 5 I also prepared a notice for the press room, and I 6 have copies for the parties. And I'll file it also. It says, 7 notice, the members of the media have the opportunity to sit in 8 the first row of the courtroom. None of the members of the 9 media, however, should lean over the rail into the well of the 10 courtroom. 11 MS. SHELLOW-LAVINE: Thank you, your Honor. 12 THE COURT: All right? Anything else? Okay. See you 13 later. 14 (Recess pending verdict, 2:30 p.m.) 15 (In open court; jury not present. Time noted, 3:56) 16 THE COURT: I have a note from the jurors, it's Court 17 Exhibit 111. It reads, Judge Koeltl, we previously asked for 18 the WBAI interview. We do not seem to be able to locate it. 19 Please advise. Number 329. 20 Parties are welcome to inspect. 21 MR. RUHNKE: Your Honor, I don't recall them ever 22 actually asking for it. 23 MS. BAKER: Your Honor, I suspect what may have 24 happened is that they sent out a note with an exhibit number 25 that said 17-something or some number without any letters in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12883 51vesat1 1 front of it. And it might have gotten construed as a request 2 for a Government Exhibit when, in fact, it -- they might have 3 meant it for a request as a Yousry exhibit. 4 They have not sent out a note asking for an MY exhibit 5 with that number. Obviously we should now find it and send it 6 to them, except that it is an English language recording, and 7 so they would have to be brought out to have the recording 8 played for them with the transcript constituting an aid to 9 their listening to the recording. 10 MR. RUHNKE: I think that's correct, your Honor, yes. 11 MS. BAKER: Your Honor, MY1900 is the transcript and 12 MY1900A is the recording. I don't believe there's any 13 government exhibit number with that number. So I think they 14 may just think that they asked for it when, in fact, they have 15 not previously. 16 And, your Honor, there is a limiting instruction for 17 these exhibits as well. 18 MR. TIGAR: Your Honor, may I hand this back to 19 Mr. Fletcher. 20 THE COURT: Yes. Thank you. 21 What is the limiting instruction? 22 MS. BAKER: At pages 9020 to 9021 of the trial 23 transcript your Honor told the jury, it is the tape that's 24 evidence. The transcript is admitted only as an aid to your 25 listening to the recording. You should listen carefully to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12884 51vesat1 1 recording. If you think you hear something different on the 2 recording, of course it's what you hear on the recording which 3 is important because it's the recording that's evidence and the 4 transcript is an aid. 5 Also, the tape is not admitted for the truth of any of 6 its contents. Mr. Yousry's statements are admitted only as 7 evidence of his knowledge, intent and state of mind and any -- 8 sorry, or state of mind, and any statements by others are 9 admitted only for their effect, if any, on Mr. Yousry's 10 knowledge, intent or state of mind. 11 And, finally, as I've told you with respect to this 12 document, knowledge of any alleged human rights abuses in Egypt 13 are not a defense to the charges in this case. 14 THE COURT: I've started to write the following: 15 Members of the jury, there is a WBAI interview which is in 16 evidence as MY1900. There is a transcript which is an aid to 17 your listening to the recording. If this is what you request, 18 please let us know. We will call you back to the courtroom 19 when you request to hear the recording. This exhibit is 20 subject to the following limiting instruction, and I can get 21 the limiting instruction from the computer. 22 Would the parties agree that I could just, with 23 respect to the first limiting instruction that the transcript 24 is only an aid to their understanding, just do that and then 25 the rest of the limiting instruction? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12885 51vesat1 1 MR. RUHNKE: Yes, your Honor. Just to be completely 2 accurate in your note, the interview is -- MY1900A is the CD 3 and the transcript is MY1900. So the -- when you say it's in 4 evidence, it's MY1900A is the CD that's got the interview on 5 it. 6 THE COURT: And there is a transcript, what's the 7 transcript, is there -- 8 MR. RUHNKE: Just MY1900. 9 THE COURT: Okay. My computer isn't working. 10 MS. BAKER: Did you want me to read it again, your 11 Honor? 12 THE COURT: Yes, you're going to have to. Yes. That 13 would be good. 14 MS. BAKER: After the direction that the transcript is 15 only an aid, the rest of the limiting instructions were as 16 follows: 17 The tape is not admitted for the truth of any of its 18 contents. Mr. Yousry's statements are admitted only as 19 evidence of his knowledge, intent or state of mind. And any 20 statements by others are admitted only for their effect, if 21 any, on Mr. Yousry's knowledge, intent or state of mind. 22 And then in addition to that, the final instruction 23 was: Knowledge of any alleged human rights abuses in Egypt are 24 not a defense to the charges in this case. 25 THE COURT: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12886 51vesat1 1 The note would read, members of the jury, there is a 2 WBAI interview which is in evidence as MY1900A. There is a 3 transcript MY1900, which is an aid to your listening to the 4 recording. If this is what you request, please let us know. 5 We will call you back to the courtroom when you 6 request to hear the recording. This exhibit is subject to the 7 limiting instruction that the transcript is an aid to your 8 listening to the recording. I have given a complete 9 instruction on the use of transcripts as aids to listening to 10 English recordings, and you should apply that instruction. 11 This exhibit is also subject to the following limiting 12 instruction: The tape is not admitted for the truth of any of 13 the contents of Mr. Yousry's statements -- the tape is not 14 admitted for the truth of any of its contents, period. 15 Mr. Yousry's statements are admitted only as evidence of his 16 knowledge, intent or state of mind. And any statements by 17 others are admitted only for their effect, if any, on 18 Mr. Yousry's knowledge, intent or state of mind. 19 Knowledge of any alleged human rights abuses in Egypt 20 are not a defense to the charges in this case. 21 You should look at the note -- I had to squeeze my 22 signature in at the end -- see if it's satisfactory, and I 23 would then send it in to the jury with the marshal. And soon 24 after that we would be calling the jury back to adjourn for the 25 day. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12887 51vesat1 1 MS. SHELLOW-LAVINE: Your Honor, I just wanted to 2 remind you that they were pretty explicit about needing to be 3 out of here. So perhaps it's all in one little trip. 4 THE COURT: The clock on the computer says 4:10. 5 MR. RUHNKE: It's probably about five minutes slow, 6 your Honor. 7 THE COURT: Is it 4:15? 8 MS. SHELLOW-LAVINE: According to my computer it's 9 4:15 exactly. 10 THE COURT: Well, let's send this in to the jury and 11 after the note is -- is it satisfactory to everyone? 12 MR. RUHNKE: Yes, your Honor. 13 MS. BAKER: Yes, your Honor. 14 THE COURT: Yes, Mr. Paul? 15 MR. PAUL: Yes, sir. 16 THE COURT: Court Exhibit 112, all right. And then 17 the marshal should bring the jury back in. 18 I will tell them what I told you I would tell them 19 earlier about the marshals and the van driver as a preliminary 20 word to them. 21 (Pause) 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12888 51vesat1 1 (In open court; jury present. Time noted, 4:18 p.m.) 2 THE COURT: Good afternoon, ladies and gentlemen. 3 Good to see you all. 4 Ladies and gentlemen, we're breaking for the day, as 5 you requested, at this point. Let me say a word about 6 transportation before I give you my final instructions. 7 Last week one of the van drivers acted 8 inappropriately. We therefore had that van driver replaced. 9 And a marshal will now be present in the vans to ensure that 10 there is no inappropriate conduct. As you can appreciate, this 11 has nothing at all to do with the parties. It also has nothing 12 to do with this case. You should, therefore, not discuss it at 13 all among yourselves, and this should not enter into your 14 deliberations at all. 15 Now, ladies and gentlemen, please remember to follow 16 all of my continuing instructions. As you leave, please 17 remember, don't talk about the case. You should only talk 18 about the case when all 12 of you are together and 19 deliberating. 20 So, when you leave, don't talk about the case. When 21 you go to the vans, transportation, don't talk about the case. 22 When you go home, don't talk about the case with anyone. When 23 you come back tomorrow, don't talk about the case in the vans. 24 Don't start talking about the case until all 12 of you are 25 together and the foreperson has advised us that you're ready to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12889 51vesat1 1 begin deliberations. 2 The foreperson will advise the marshal by note that 3 you're ready to begin deliberations, and then you can start 4 deliberations. You won't have to come back to the courtroom. 5 Remember, please don't look at or listen to anything 6 to do with the case. If you should see or hear something 7 inadvertently, please simply turn away. Please leave 8 everything to do with the case in the jury room. Any exhibits, 9 notes, anything to do with the case, please leave them in the 10 jury room. 11 Have a very good evening, and I look forward to seeing 12 you tomorrow. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12890 51vesat1 1 (In open court; jury not present) 2 THE COURT: One juror was saying something as the 3 juror left, but I couldn't hear what it was. 4 Two things very quickly for you. One, we -- we've 5 had -- or one, really, at this point. 6 We've had a request from the press for the jury notes, 7 and all of those notes have been read into the record. And so 8 unless I am missing something, there is no reason that the 9 press should not have copies of the notes, which are otherwise 10 in the record. 11 It's not my practice to make copies for the press. I 12 rely on the parties to have the ability to give the press 13 matters that are appropriately given to the press. Because 14 these are Court exhibits that we are otherwise making copies 15 of, I don't see a problem with simply giving a set to the press 16 and not placing that burden on the parties. Unless anyone has 17 an objection to that. 18 MS. SHELLOW-LAVINE: We have no objection. That 19 sounds like a good idea, your Honor. 20 MS. BAKER: We agree with that, your Honor. 21 THE COURT: Okay. The only other thing that I wanted 22 to raise is whether it was necessary to get back to the jurors 23 on any issues of schedule. And I'm not inclined to do that. 24 MS. SHELLOW-LAVINE: We agree. 25 THE COURT: Government? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12891 51vesat1 1 MS. BAKER: We agree. 2 THE COURT: Okay. See you all at 9:00 tomorrow. 3 (Adjourned to Tuesday, February 1, 2005, at 9:00 a.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300