12892 521esat 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 February 1, 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 12893 521esat 1 (Trial continuing) 2 (In open court; jury not present. Time noted, 3 9:42 a.m.) 4 THE COURT: Good morning, all. I have a note from the 5 jurors, it's marked as Court Exhibit 113. 1 -- 940, 1 6 February 05. 7 Judge Koeltl, we are ready to start deliberating. May 8 we have AS4T and 1104X. We are ready to listen to the WBAI 9 interview. Crossed out may we; wrote in, we are ready to 10 listen to WBAI interview. 11 Next is an envelope similar to the envelope we 12 received before from one juror with a note, Mr. Grate, and then 13 also for the jury payroll clerk. It appears to be filled with 14 slips which I assume are the parking receipts and the like. 15 The parties are welcome -- I have not opened it. The parties 16 are welcome to inspect it, and as I've done with the last one, 17 I would have Mr. Fletcher forward it to Mr. Grate. 18 The final thing, when I was in the robing room I heard 19 voices down the hall. And the marshal tells me that that's 20 from the other room. So I'll ask that the voices be kept down 21 in that corridor, make sure that they're kept down. 22 I'm ready to write a note to the jurors and bring them 23 in. Have the parties seen the envelope? 24 MR. RUHNKE: No. The envelope? No. 25 THE COURT: Here, let me -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12894 521esat 1 MR. TIGAR: Your Honor, as I recall on the last 2 occasion, it was just simply forwarded and with instructions 3 that if there's anything in there that ought to be, that they'd 4 report back. 5 THE COURT: That's right, but the last time I showed 6 it to you so I want to make sure I show it to you again. 7 MR. TIGAR: All right. Thank you. 8 MS. SHELLOW-LAVINE: Thank you. 9 THE COURT: What is the number for the WBAI tape? 10 MS. BAKER: Your Honor, the recording is MY1900A. And 11 the corresponding transcript, which is the aid to the jury, is 12 MY1900. 13 MR. RUHNKE: That's accurate. 14 MS. BAKER: Your Honor, regarding the jury's new 15 requests, Government Exhibit 1104X is the transcript of an 16 Arabic language recording, is not subject to any limiting 17 instruction. 18 AS4T is subject to a limiting instruction, which is 19 that it was received -- it was not received for the truth of 20 any of the statements contained in the transcript but rather 21 for their effect on the knowledge, intent and state of mind of 22 Mr. Sattar. 23 THE COURT: Okay. Thank you. 24 (Pause) 25 THE COURT: All right. I drafted a note, Court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12895 521esat 1 Exhibit 114, members of the jury, we will bring you back to the 2 courtroom to listen to the WBAI tape MY1900A and to see MY1900, 3 which is an aid to listening to the recording. You are to 4 apply the limiting instructions that I gave to you in my note 5 yesterday. 6 I am sending you GX1104X as you requested. I am also 7 sending you AS4T, which is subject to the following limiting 8 instruction: The exhibit was not received for the truth of any 9 of the statements contained in the transcript but rather for 10 their effect on the knowledge, intent and state of mind of 11 Mr. Sattar. 12 MR. FALLICK: That's fine, your Honor. 13 MS. BAKER: That's fine, your Honor. 14 THE COURT: All right. The parties are welcome to 15 inspect the note, and if -- do you have the two transcripts? 16 MS. BAKER: We do, your Honor. We've inspected AS4T 17 and defense counsel has inspected Government Exhibit 1104X, and 18 I'm handing them to Mr. Fletcher. 19 Your Honor, just so that the record is clear, I think 20 on at least one occasion in LiveNote the exhibit number has 21 come up as AS14, 14, which is not correct. It's AS4T, as in 22 transcript. 23 THE COURT: Right. My note, correct, says AS4T. 24 MS. BAKER: Yes, I'm aware of that. I just want to 25 make sure that the other parts of the record are correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12896 521esat 1 MS. SHELLOW-LAVINE: Thank you, your Honor. The note 2 and the exhibits are satisfactory. 3 THE DEPUTY CLERK: Has everyone looked at it? 4 THE COURT: All right. Satisfactory, everyone. The 5 note and the exhibit go in with the marshals. And the marshal 6 can then bring the jury out. 7 (Pause) 8 THE COURT: Counsel, I assume the recording is queued 9 up so it can be played as soon as the jury comes in? 10 MR. RUHNKE: Yes, your Honor. The government has 11 agreed to play it through their system, so we appreciate that. 12 (Pause) 13 THE COURT: My note may have been unclear that -- I 14 thought the jury wanted to come in now to listen to the 15 recording, so I'll have the marshal just knock on the juror 16 door and bring them in. 17 MR. FALLICK: Yes. 18 MR. RUHNKE: Yes. 19 THE COURT: Okay. 20 (Pause) 21 THE COURT: Do the jurors have their headphones? 22 MS. BAKER: Yes, your Honor. 23 (At 10:14 a.m. a note was received) 24 THE COURT: I have a note marked Court Exhibit 115. 25 It reads, Judge Koeltl, may we have 1205X, 1209X. Number 329. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12897 521esat 1 So I'll respond to this note and send these exhibits 2 and add a note that says, please knock on the door when you 3 want to come to the courtroom to listen to the recording. We 4 are prepared to play it for you. The parties are welcome to 5 inspect the note. 6 Mr. Donnelly says the indication is that they're ready 7 now but they handed the note in addition. I can bring them 8 back in and say, I'll respond to the note after you've listened 9 to the tape. 10 MR. RUHNKE: I think that makes sense. We're all 11 sitting here waiting to play this. 12 THE COURT: Right. All right. I'll have the marshal 13 bring -- if you -- have the parties seen the recent note? 14 MR. TIGAR: Yes, your Honor. 15 MS. SHELLOW-LAVINE: Yes, your Honor. 16 MR. TIGAR: And -- 17 MS. SHELLOW-LAVINE: We have the note, and I believe 18 that Ms. Baker has identified the applicable limiting 19 instructions. 20 THE COURT: The parties agree. If you just give the 21 note back to Mr. Fletcher, Mr. Donnelly will bring the jury in 22 and I'll tell them we'll provide -- I'll respond to your most 23 recent note asking for exhibits, for two other exhibits, after 24 you return to the jury room. 25 Okay. Let's bring in the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12898 521esat 1 (In open court; jury present. Time noted, 10:18 a.m.) 2 THE COURT: Good morning, ladies and gentlemen. Good 3 to see you all. 4 Ladies and gentlemen, I received your recent note 5 asking for two more exhibits, and we will respond to that note 6 after you've finished listening to the recording that you asked 7 for. And after you've returned to the jury room I'll respond 8 to your note about the additional exhibits. 9 So now you've asked to hear a recording and -- of the 10 WBAI interview. And you'll listen to that recording along with 11 seeing the transcript MY1900, which is an aid to your listening 12 to the recording. And as I indicated, you're to apply the 13 limiting instructions that I gave you in the note yesterday 14 that apply to this recording. So if you'd all put on your 15 headphones, turn them on, dot out, and recording will be 16 played. 17 (Government Exhibit 1900A, a recording, was played for 18 the jury) 19 THE COURT: All right. Ladies and gentlemen, if 20 you'll take your headphones off, and I will return you to the 21 jury room to continue deliberations. 22 (Jury returned to deliberate; time noted, 11:03 a.m.) 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12899 521esat 1 (In open court; jury not present) 2 THE COURT: All right. Please be seated, all. 3 MS. BAKER: Your Honor, as to the jury's note which is 4 marked as Court Exhibit 115 in which they requested Government 5 Exhibits 1205X and 1209X, both of those transcripts are subject 6 to a limiting instruction. It's the same one that the Court 7 has now given a number of times with respect to Counts 2 and 3. 8 I do have it written here on a piece of paper, if the Court 9 would like me to hand it up. 10 And defense counsel has inspected the two transcripts 11 and they are ready to go in. 12 (Pause) 13 THE COURT: The response to the jury will be, members 14 of the jury -- it will be Court Exhibit 116. 15 Members of the jury, we are providing you Government 16 Exhibits GX1205X and GX1209X, as you requested. These 17 transcripts are offered only as to Counts 2 and 3 of the 18 indictment. They cannot be considered against Ms. Stewart or 19 Mr. Yousry for the truth of any of the matters asserted in the 20 transcripts. 21 Is that satisfactory? 22 MS. BAKER: Yes, your Honor. 23 MR. FALLICK: Yes, your Honor. 24 THE COURT: All right. Why don't we wait for 25 Mr. Fletcher. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12900 521esat 1 (Pause) 2 THE COURT: Are the transcripts ready? 3 MS. BAKER: Yes, they are, your Honor. They've been 4 inspected by defense counsel. 5 MS. SHELLOW-LAVINE: We have inspected them. I'll 6 hand them to the marshal. 7 THE COURT: All right. I've given you Court 8 Exhibit -- given the lawyers Court Exhibit 116 to inspect. 9 MS. SHELLOW-LAVINE: All defense counsel have 10 indicated it's satisfactory, and I'll hand that to 11 Mr. Fletcher. 12 THE COURT: Did the parties inspect the exhibits, are 13 they -- 14 MR. FALLICK: Yes, your Honor. 15 MS. SHELLOW-LAVINE: Yes. 16 THE DEPUTY CLERK: To the marshal. 17 THE COURT: The exhibits and the note can then go in 18 to the jury, Court Exhibit 116. 19 (At 11:15 a.m. a note was received) 20 THE COURT: We have another note. It reads, Judge 21 Koeltl -- this will be Court Exhibit 117. 22 Judge Koeltl, may we have the following: 2700T, 23 excerpts of Yousry's dissertation, MY1707X, MY1710X, number 24 329. 25 And the parties are welcome to inspect that note. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12901 521esat 1 MR. RUHNKE: Your Honor. In looking at the exhibits 2 they've requested, 1707X and 1710X are telephone calls, 3 Mr. Yousry's personal telephone intercepts. They are not the 4 dissertation. 5 THE COURT: It's a separate request. 6 MR. RUHNKE: So, I mean, the excerpts of Yousry's 7 dissertation, I believe we just have to send in the entire 8 dissertation, unless they specify what they want. There are no 9 particular excerpts that I'm aware of. 10 MS. BAKER: Your Honor, there were four exhibits 11 introduced into evidence by Mr. Yousry which are drafts of four 12 different parts of his dissertation, but then there were also 13 other passages of a document that was notes or a draft of the 14 dissertation that were read to him by me in my 15 cross-examination of him. 16 I offered that document into evidence but the 17 defendants objected. And the resolution was that Mr. Yousry 18 could be confronted by a reading of passages, although the 19 document itself could not be introduced. And so I think that 20 some clarification should be sought from the jury about what 21 exactly they're seeking when they addressed excerpts of 22 Yousry's dissertation, because it could include the excerpted 23 sentences and paragraphs that I read to him in questioning. 24 And when the reading was done, I had the exhibit in 25 front of me and he had the exhibit in front of him. So clearly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12902 521esat 1 the jury knew that it was passages being read from a document 2 that he had offered. 3 MR. RUHNKE: Your Honor, if the government's proposing 4 that we send a note back to the jury saying, please clarify 5 what you mean by excerpts from Mr. Yousry's dissertation, I 6 don't disagree with that. 7 THE COURT: All right. 8 MR. RUHNKE: The other two exhibits we're looking at 9 right now. 10 (Pause) 11 MS. BAKER: Your Honor, Government Exhibit 2700T is 12 the translation of certain portions of Taha's book. It is 13 subject to a limiting instruction which I have written out and 14 am going to give to defense counsel. But in addition to the 15 portion of the instruction I have written out, there was also 16 an additional portion that said that it was admitted subject to 17 connection against Mr. Sattar for the truth of any of the 18 matters asserted. But that portion of the limiting instruction 19 obviously was resolved by the Court's finding at the end of the 20 government's case. So I have omitted that from the limiting 21 instruction that I have written out. 22 MR. RUHNKE: And I think the two MY exhibits were also 23 subject to the limiting instruction that they're admissible for 24 Mr. Yousry's knowledge, intent or state of mind and statements 25 offered only for its effect on his knowledge, intent and state SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12903 521esat 1 of mind. 2 MS. BAKER: The government agrees with that, your 3 Honor. 4 Just to correct what I said a minute ago, it's a 5 translation of the entirety of the Taha book. 6 Your Honor, may I hand up these limiting instructions. 7 THE COURT: Yes. 8 MS. BAKER: And I'm also going to return to 9 Mr. Fletcher Court Exhibit 117, which has now been inspected by 10 the parties. 11 THE COURT: I have another note from the jury which is 12 Court Exhibit 118. May we have the following: MY1717X, 13 transcript pages -- by the way, is that the dissertation? 14 MS. BAKER: No, your Honor. 15 MR. RUHNKE: No. 1717 is another of the personal 16 telephone calls. 17 THE COURT: Okay. Because it then says, transcript 18 pages 9164, 9166, 9113, 9872, 9873, 9888, 9889, 9864, 9867, 19 9866, 9868, 9869, 9869, 9860 and 9863; MY1004CT, page 746 to 20 67; MY550LT3. 21 The parties are welcome to inspect that note. 22 MS. BAKER: Your Honor, MY550LT3 is one of the four 23 documents of the Yousry dissertation that Mr. Yousry had 24 introduced. But the government, nonetheless, asks your Honor 25 to put a question to the jury in response to their previous SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12904 521esat 1 note. 2 MR. RUHNKE: Your Honor, with regard to the request 3 for 1004CT, that's one of the bound volumes of the notebook. I 4 would simply propose we send the whole bound volume in as we've 5 done in the past. We really can't tear it apart. 6 THE COURT: Is it all in evidence? 7 MR. RUHNKE: It's all in evidence, yes. And the pages 8 they talk about are contained within that -- within those 9 pages. 10 THE COURT: Okay. Let me deal with the other note 11 first. 12 MR. RUHNKE: Your Honor, obviously at some time we'll 13 have to deal with the question of a request for transcript 14 pages. And how would they know what the transcript pages are? 15 Am I missing something? 16 MS. BAKER: Yes. Mr. Barkow cited a number of trial 17 transcript pages by specific page number in his rebuttal 18 summation, and we believe that that essentially matches this 19 list. 20 MR. RUHNKE: Okay. 21 THE COURT: That's what I had assumed in the course of 22 reading the list, the same question. Are 2700T and MY1707X and 23 1710X all transcripts of Arabic conversations? 24 MS. BAKER: Your Honor, that is an accurate 25 description of the two MY exhibits, but Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12905 521esat 1 Exhibit 2700T is the translation of Taha's book. 2 (Pause) 3 THE COURT: My response to the jury, next note, would 4 be Court Exhibit 119. It responds to Court Exhibit 117. 5 Members of the jury, you have asked for excerpts from 6 Mr. Yousry's dissertation. Could you explain further what you 7 wish to have provided to you. We are providing GX2700T as you 8 requested. It is subject to the following limiting 9 instruction: 10 The exhibit is received solely with respect to 11 Counts 2 and 3 of the indictment. The exhibit cannot be 12 considered for the truth of any of the matters asserted against 13 Ms. Stewart or Mr. Yousry. 14 We are providing MY1707X and MY1710X as you requested. 15 They are subject to the following limiting instruction. 16 Mr. Yousry's statements are not admitted for their 17 truth but only as evidence of his knowledge, intent or state of 18 mind. Statements by any others are not admitted for their 19 truth but only for their effect, if any, on Mr. Yousry's 20 knowledge, intent or state of mind. 21 Satisfactory? 22 MR. RUHNKE: Yes, your Honor. 23 MS. SHELLOW-LAVINE: Yes, your Honor. 24 THE COURT: All right. Government? 25 MS. BAKER: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12906 521esat 1 MS. SHELLOW-LAVINE: Mr. Sattar's counsel has 2 indicated that it's satisfactory. And I'm going to hand the 3 exhibit with the note, Court Exhibit 119, to Mr. Fletcher. 4 THE COURT: Have the parties inspected the exhibits 5 that -- 6 MR. RUHNKE: Yes, your Honor. 7 MR. TIGAR: Yes, your Honor. 8 MS. SHELLOW-LAVINE: Yes, your Honor. 9 THE COURT: Okay. Then the exhibits plus the note are 10 given to the marshal to take in to the jury room. Thank you. 11 Okay. Let me return to the government, the limiting 12 instructions on 1707, 1710 and 2700. 13 MS. BAKER: Actually, your Honor, you should hold the 14 one that relates to the MY1700 exhibits, because that same 15 instruction will apply to MY1717X, which was requested in the 16 next jury note. 17 THE COURT: Okay. 18 MR. TIGAR: Your Honor, given that we're sort of 19 between notes, may we take a break and counsel be excused for a 20 few minutes. 21 THE COURT: Oh, yes, absolutely. We're between notes. 22 I also had wanted to mention, if the jury comes back 23 and listens to something, please be careful about your 24 consultations and all so that the jury doesn't read anything 25 into any expressions of agreement or emotion on the part of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12907 521esat 1 everyone. I just -- and we can take a break there. 2 (Recess pending verdict) 3 (In open court; jury not present. Time noted, 4 11:57 a.m.) 5 MR. RUHNKE: Your Honor, what I'm doing right now is 6 I'm preparing the transcript pages that have been copied, and 7 we're basically giving them in the order in which they asked 8 for them. Is that correct, Ms. Baker? 9 MS. BAKER: Actually, they're in the page number 10 order, which is not the same order in which the jury asked for 11 them. 12 THE COURT: How do the parties want to give it to 13 them, Mr. Ruhnke? 14 MR. RUHNKE: Pardon me? 15 THE COURT: How do you want to -- what order? 16 MR. RUHNKE: Page order is fine. The page order in 17 the transcript is fine, numeric order. 18 THE COURT: Fine. 19 MR. RUHNKE: Your Honor, the government's 20 countersuggestion on the order in which the pages go is that 21 they should match the order in which the jury listed them. And 22 they are going to need their note back at some point. I don't 23 know if you've worked out the mechanism for copying notes yet. 24 THE COURT: Why don't I -- it makes more sense to me 25 to do it in order, but if there's a question that they may not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12908 521esat 1 be able to follow the order in which they had asked for, I'll 2 have Mr. Fletcher make a copy, since we've been asked to make 3 copies of the notes and send them at this time -- make it clear 4 to them, I'm also returning to you a copy of the note that you 5 had sent to us. 6 MR. RUHNKE: In that case I think putting it in 7 numeric order makes more sense. 8 MS. BAKER: That's fine, your Honor. As long as they 9 have a copy of their note. 10 And perhaps I could take this opportunity to ask, have 11 they now been provided with copies of their previous notes or 12 is that still being worked on? 13 THE COURT: Mr. Fletcher hasn't completed the process 14 yet. 15 MR. RUHNKE: I just need to read through this 16 transcript page. 17 THE COURT: That's fine. Can I start on the aspects 18 of the note? 19 MR. RUHNKE: The other exhibits I think are ready to 20 go. There's a lengthy limiting instruction that went along 21 with the notebooks because there were different levels of 22 hearsay in the notebooks, which Ms. Baker's printed out what 23 your Honor actually said at the time. And obviously that's 24 fine with us. 25 I don't know how you want to do that. I don't know if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12909 521esat 1 you want to copy this. It's, you know, fairly lengthy. 2 MS. BAKER: Your Honor, the limiting -- one of the 3 exhibits requested by the jury in this most recent note, which 4 is Court Exhibit 118, were certain pages from MY1004CT, which 5 is one of the Yousry notebooks. And consistent with prior 6 practice, my understanding is that the Court is going to send 7 that entire notebook because those pages are part of a larger 8 bound document. 9 The limiting instruction for all of the Yousry 10 notebooks is about four paragraphs long. And I thought that in 11 lieu of the Court rewriting such a lengthy instruction, it 12 might be easier for the Court simply to provide the jury with 13 the trial transcript pages that reflect the Court giving the 14 jury that limiting instruction. Those are trial transcript 15 pages 9081 to 82. I've given copies to defense counsel and I'm 16 handing the copy to Mr. Fletcher. 17 As to the jury's other requests, they ask for MY1717X. 18 That is subject to the same limiting instruction as the other 19 MY1700 exhibits. I believe your Honor has my handwritten copy 20 of that instruction in front of you. 21 And then they also ask for MY550LT3, which is one of 22 the Yousry dissertation documents. That is also subject to a 23 limiting instruction in which I wrote on a piece of paper and I 24 handed it to defense counsel. And I don't believe I've 25 recovered that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12910 521esat 1 Your Honor, Mr. Ruhnke has checked the accuracy of 2 this limiting instruction for MY550LT3, so I can hand this 3 piece of paper up to the Court as well. 4 (Pause) 5 MS. BAKER: Your Honor, if this would assist, as soon 6 as Mr. Ruhnke is finished reviewing the jury's note, which is 7 Court Exhibit 118, Ms. Grant can run right downstairs to some 8 other office space we have here in the building and make copies 9 of it, if that would make it -- if that would speed the process 10 of getting a response back to the jury. 11 THE COURT: Sure. 12 With respect to the limiting instruction contained on 13 transcript pages 9081 and 9082, I'm inclined to send those 14 transcript pages in and to say that that's the limiting 15 instruction. 16 MR. RUHNKE: That makes a lot of sense, your Honor. 17 Yes, we agree. 18 (At 12:05 p.m. a note was received) 19 THE COURT: Before responding to that note, I have 20 another note. 21 Court Exhibit 120 reads, Judge Koeltl, may we please 22 have the following: 1117X, 1232X, 1118X, 1234X, 1121X, 1122X, 23 1123X, 1124X, 1125X, 1126X, 1127X, 1128X, 1129X, 1130X, 1131X, 24 1133X, 1134X, 1135X, 1136X. Number 329. 25 And you'll see they've crossed out at the bottom, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12911 521esat 1 have 1119X. The parties are welcome to inspect the note. 2 I'm told that the jurors' lunch is here. The jurors' 3 lunch is here, so I'll have the marshals see that the jurors 4 are provided their lunch. And as soon as we respond to these 5 notes, the parties can also go to lunch. 6 (Pause) 7 THE COURT: Do the parties have an extra copy of Court 8 Exhibit 118? Mr. Fletcher is making an extra copy for the 9 jurors. 10 MS. BAKER: Yes, your Honor, we do. 11 Your Honor, the parties have finished their review of 12 the most recent note, which is Court Exhibit 120. I'm ready to 13 hand it back up. 14 THE COURT: Are the parties gathering the exhibits in 15 response to 120? 16 MS. BAKER: Yes, your Honor, we are. And I've advised 17 defense counsel that it's our understanding that none of them 18 are subject to any limiting instruction. 19 THE COURT: All right. 20 MS. BAKER: And I am now tendering the exhibits to 21 defense counsel for review. 22 MS. SHELLOW-LAVINE: Thank you. 23 MS. BAKER: Your Honor, the trial transcript pages 24 that the jury requested by page number have been reviewed by 25 the government and the defense. There was one page that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12912 521esat 1 required a little bit of redacting. The redaction was done. 2 It was also reviewed, and now the pages are all in page number 3 order in this little binder. So this is ready to go to the 4 jury. 5 MS. SHELLOW-LAVINE: Actually, Ms. Baker I actually 6 haven't seen it. 7 (Pause) 8 THE COURT: This will be Court Exhibit 121, and it 9 responds to the note which is Court Exhibit 118. And what I 10 would suggest -- let me read it to you. 11 Members of the jury, we are providing MY1717X as 12 you requested. It is subject to the following limiting 13 instruction, quote: Mr. Yousry's statements are not admitted 14 for their truth but only as evidence of his knowledge, intent 15 or state of mind. Statements by any others are not admitted 16 for their truth but only for their effect, if any, on 17 Mr. Yousry's knowledge, intent or state of mind. 18 We are providing the transcript pages that you 19 requested in the order in which they appeared in the 20 transcript. We are also providing a copy of your note, Court 21 Exhibit 118, so that you will have the order in which you 22 requested the pages. We will provide you with a set of all of 23 your notes when that set has been copied. 24 We are providing MY1004CT in which are contained pages 25 746 to 67 that you requested. This exhibit is subject to a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12913 521esat 1 limiting instruction that is contained at pages 9081-9082. I 2 am providing a copy of those pages of the transcript, and you 3 should follow that limiting instruction. 4 I am also providing MY550LT3 as you requested. It is 5 subject to the following limiting instruction, quote: This 6 exhibit is not offered for the truth of any of its contents. 7 And, moreover, with respect to the documents offered by 8 Mr. Yousry, knowledge of alleged human rights abuses in Egypt 9 are not a defense to the charges in this case. 10 Is that satisfactory? 11 MS. SHELLOW-LAVINE: It is. Your Honor, the last time 12 that we provided them with trial transcript that had been 13 redacted, you instructed them that the redaction was due to 14 matters that they did not need to concern themselves with. I 15 don't see there's any need to do it again but wanted to bring 16 to your attention -- 17 THE COURT: I thought about it after the note was 18 drafted, actually. And if you want me to put in a note at the 19 bottom, I'm happy to do that, which says -- you know, just an 20 additional note which says, you should note that there are some 21 redactions in the transcript -- 22 MR. TIGAR: Your Honor, I'll note that the word 23 knowledge is the subject of that sentence. So it would be 24 knowledge is not a defense, as opposed to "are." 25 THE COURT: You're right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12914 521esat 1 MR. TIGAR: A former schoolteacher asked me to say 2 that. 3 THE COURT: No, you're right. It's wrong in the 4 transcript. I said it wrong. I'm happy to change the "are" to 5 "is," if you don't mind my crossing it out, and I'll put the 6 "is" in brackets. 7 Do the parties want me to add the note at the end? 8 MS. SHELLOW-LAVINE: I don't think it's necessary. I 9 wanted to bring it to the Court's attention but I don't believe 10 it is necessary, personally. 11 THE COURT: Okay. Government? 12 MS. BAKER: Your Honor, we don't believe it's 13 necessary. 14 THE COURT: Okay. So is the note, then, satisfactory? 15 MS. BAKER: It is to the government, your Honor. 16 MS. SHELLOW-LAVINE: It is, your Honor. 17 THE COURT: I have here a copy of Court Exhibit 118 18 and a copy of the transcript pages 9081 and 9082. As to the 19 other exhibits, the parties can provide those and check to make 20 sure that they're all in agreement. 21 MS. SHELLOW-LAVINE: Your Honor, we've inspected the 22 exhibits, and they are fine to tender them to Mr. Fletcher. 23 THE COURT: Now, the jurors are having lunch, but I 24 have no problem sending the exhibits -- this note and the 25 exhibits in to them so that they can look at them when they're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12915 521esat 1 finished with their lunch. 2 MS. SHELLOW-LAVINE: That's fine with us, your Honor. 3 THE COURT: Fine with the government? 4 MR. MORVILLO: Yes, your Honor. 5 THE COURT: Okay. Let's staple the notes, because 6 it's two pages. 7 Would the parties like to take a break before we deal 8 with the next note and other exhibits and then deal with those 9 after lunch and then send them in? 10 MS. SHELLOW-LAVINE: Thank you, your Honor. 11 MS. BAKER: Your Honor, I was just going to say, I 12 defer to the Court and defense counsel. As I said earlier, 13 there is no limiting instruction for those exhibits. And we 14 had given all the exhibits to defense counsel, so it's really 15 up to them whether they need any additional time to look at 16 them further. 17 MS. SHELLOW-LAVINE: Your Honor, I am returning to 18 Mr. Fletcher the Court's note, Exhibit 121, with the 19 attachments. 20 THE COURT: Okay. The parties have inspected all of 21 the exhibits that go with Court Exhibit 121? 22 MR. RUHNKE: Yes, your Honor. 23 MS. SHELLOW-LAVINE: Yes, your Honor. 24 THE COURT: Is everything satisfactory? 25 MS. SHELLOW-LAVINE: They are. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12916 521esat 1 THE COURT: Government, yes? 2 MS. BAKER: Yes, your Honor. 3 THE COURT: Okay. Then that note and exhibits can go 4 to the jury. I mean, I'm prepared to draft the other note and 5 send the other exhibits in. It's up to you all, if you've had 6 time to -- 7 MR. RUHNKE: It probably makes -- we all agree, we're 8 all here, they're all there. Basically, just send them in. 9 THE COURT: Mr. Fletcher's returning the written 10 limiting instructions that the government had provided and 11 others exhibits. 12 (Pause) 13 THE COURT: Okay. I have a note, Court Exhibit 122, 14 which reads: Members of the jury, we are sending you the 15 exhibits that you requested, GX1117X, 1232X, 1118X, 1234X, 16 1121X, 1122X, 1123X, 1124X, 1125X, 1126X, 1127X, 1128X, 1129X, 17 1130X, 1131X, 1133X, 1134X, 1135X and 1136X. 18 Do the parties agree? 19 MS. SHELLOW-LAVINE: Yes, your Honor. 20 THE COURT: Okay. Please inspect the note, make sure 21 you agree on the exhibits. 22 (Pause) 23 MS. SHELLOW-LAVINE: Your Honor, with respect to the 24 exhibits, they are ready to go. We've also inspected the 25 Court's note, and it is satisfactory on behalf of all defense SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12917 521esat 1 counsel. 2 THE COURT: Government? 3 MS. BAKER: Yes. 4 THE COURT: Okay. Satisfactory to everyone? 5 MS. BAKER: Yes, your Honor. 6 THE COURT: Okay. The marshal can take the note and 7 the exhibits in to the jury room. 8 It's a little after 12:30. We'll break for lunch for 9 an hour. And I'll ask Mr. Fletcher to tell the marshal to hold 10 the notes. 11 (Luncheon adjournment) 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12918 521esat 1 AFTERNOON SESSION 2 3:11 p.m. 3 (In open court; jury not present) 4 THE COURT: I have a note from the jury, Court Exhibit 5 123. It reads, Judge Koeltl, 1 February '05, may we have the 6 following. On or about September 20, '99 a telephone 7 conversation between Taha and Sattar that the initiative should 8 be cancelled. Number 329. We have 1029X, but it is not that 9 one. 10 Mr. Fletcher stepped out. If you want to give the 11 parties the note. 12 I also wanted to advise the parties that the marshal 13 was going to post a notice in the back hallway that said, 14 quiet, jury deliberating. 15 (Pause) 16 THE COURT: I'm waiting for counsel to advise me with 17 respect to the last note, but while I'm waiting on that, let me 18 raise with you another issue. 19 Could the parties check whether the following juror 20 notes are under seal or not: Numbers Court Exhibits 32, 34, 21 36, 37 and 81. 22 MS. BAKER: Your Honor, the trial transcript for 23 January 18th shows that that day's proceedings began with 24 certain pages under seal. And when the Court took the bench in 25 open court, the Court started by saying, the last juror note is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12919 521esat 1 marked as Court Exhibit 32. So that suggests that the answer 2 is yes, that 32 is sealed, but we don't have the sealed 3 transcript pages here in the courtroom. 4 THE COURT: Only reason I raise it on -- there are two 5 issues. One is what I do with respect to the fact that I -- 6 you all have copies of all of these that I give to the public. 7 And the second issue is I don't -- the jurors know 8 about all of these notes with the exception of 36 and 37, 9 looking at all of them. 10 MS. BAKER: I didn't really understand what the Court 11 just said. I have available to me all the public portions of 12 the trial transcript, and by searching those, I found the 13 reference that I just described to 32. 14 I found no references in the public transcript to the 15 other exhibit numbers that the Court listed until you get to 16 81, and then the note that was marked as Court Exhibit 81 was 17 actually read on the record in what appears to me to be public 18 transcript. 19 THE COURT: Okay. 20 MR. TIGAR: Your Honor, having now checked those 21 notes, I see no reason why 32, 34, 36, 37 and 81 need to be 22 provided to the jury foreperson, because none of them relates 23 to the ongoing deliberations or to the exhibits that have been 24 sent back. Perhaps, therefore, the easiest thing to do is 25 simply to withdraw those from the packet of materials that are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12920 521esat 1 going to be provided to the jurors and let the parties look it 2 up so that the jurors can have these, but in the meantime 3 regarding them as presumptively sealed, because I certainly 4 recall that some of these relate to juror concerns that were -- 5 that have nothing to do with trial proceedings, do involve 6 juror privacy and, therefore, would legitimately be subject to 7 a sealing. 8 THE COURT: I -- unless there's an objection, I agree 9 with that with respect to those -- to the ones I mentioned; to 10 put those aside. And when I send the jury a note, I'll say, 11 I'm providing them with your request. I have not provided you 12 with notes that dealt with some individual juror issues. 13 MS. BAKER: Your Honor, that's fine with the 14 government. I interpreted the jury's request for copies of 15 their prior notes to mean that they wanted to keep track of 16 exhibits that they were requesting and things of that nature. 17 THE COURT: I agree. But we've been overinclusive by 18 including all of the notes about, we want to adjourn and we're 19 going to start deliberating and the like, but these other notes 20 I think are of a different character. 21 I'm still waiting on the other issue. I'm -- okay. I 22 am taking out from the set that you gave me, that Mr. Fletcher 23 gave me, 32, 34, 36, 37 and 81. And do you want me to read in 24 the record the numbers of the notes that I will provide to the 25 jury? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12921 521esat 1 MR. RUHNKE: I don't think that's necessary, your 2 Honor. 3 THE COURT: Okay. 4 MR. RUHNKE: We've checked them all. 5 THE COURT: And, again, I'm waiting on the other 6 response. Meanwhile, I'll do a note to the jury on these 7 notes. 8 (Pause) 9 THE COURT: It's also clear to me that we should not 10 send Court Exhibit 69. 11 MR. TIGAR: Agreed, your Honor. 12 MS. BAKER: Your Honor, we agree. 13 (Pause) 14 THE COURT: All right. I'm still waiting on the other 15 response to the other juror note. 16 MS. BAKER: Your Honor, as far as the response to the 17 latest jury note, which is now marked as Court Exhibit 123, it 18 appears that the jury has merely read Government Exhibit 1029X 19 too quickly, because that is, in fact, the exhibit that meets 20 the very description that they have given in their note. 21 They ask in their note for a call on or about 22 September 20, 1999, telephone conversation between Taha and 23 Sattar that the initiative should be cancelled. Government 24 Exhibit 1029X is a transcript of a call on September 20, 1999, 25 between Sattar and Taha. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12922 521esat 1 And on page 3 at lines 8 to 10, Sattar says to Taha, 2 and Sattar is quoting Abdel Rahman, essentially, Sattar says, I 3 mean, a step had been taken for the general interest. And if 4 the general interest requires its cancellation, therefore, it 5 is to be cancelled. 6 So the government would ask that the jury be sent a 7 response that says that Government Exhibit 1029X is the call 8 that meets the description that you gave in your note. 9 MR. TIGAR: Absolutely not. 10 MR. FALLICK: I don't think so. 11 THE COURT: No. No. That's all right. 12 Let me make a suggestion to you, which is that the 13 note would read, members of the jury, there is -- there is no 14 other recording on or about September 20, 1999, other than 15 Government Exhibit 1029. 16 MS. BAKER: Your Honor, actually, that's not accurate. 17 There are other calls, at least one other call on that date. 18 And there are other calls on days very close in time between 19 Sattar and Taha. 20 THE COURT: All right. 21 MS. BAKER: If your Honor wanted to be more specific, 22 then -- 23 THE COURT: No, actually -- look, go ahead. 24 MS. BAKER: I was just going to say, the statement 25 that your Honor posited could be made to be true by just making SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12923 521esat 1 it more specific, which is to say that there is no other call 2 on that date between those two parties, or people or however 3 you want to phrase it. 4 THE COURT: That's a reasonable response? 5 MR. FALLICK: Yes, your Honor, that's fine. 6 THE COURT: Thank you. 7 (Pause) 8 THE COURT: So, a response would be, in response to -- 9 members of the jury, in response to your request, there is no 10 other recording on September 20, 1999, between Mr. Sattar and 11 Mr. Taha. 12 MR. FALLICK: That's fine. 13 MR. MORVILLO: We agree, your Honor. 14 THE COURT: Okay. 15 (At 3:42 p.m. a note was received) 16 THE COURT: That will be -- I just got another note 17 from the jury, but this note will be Court Exhibit 125. 18 But before finalizing it, of course, I will read you 19 the next note from the jury, which is Court Exhibit 124. 20 1 February, '05, Judge Koeltl, the jury will adjourn at 4:15 21 today. 22 May we see the videotape of 1706X, page 27, line 1 23 through page 28, line 12. I realize that the DVD can only 24 start from the beginning. If this is so, then start at the 25 beginning and end on page 28, line 12. We might want to watch SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12924 521esat 1 this a second time. We will let you know. Number 329. 2 The parties are welcome to inspect that note. 3 (Pause) 4 MR. TIGAR: Your Honor, with respect to Court Exhibit 5 125, had you wanted to mention -- you say no other recording. 6 Had we mentioned 1029X, or had their note mentioned 1029X? 7 Theirs had? Thank you. 8 THE COURT: I could, if the parties prefer, say there 9 is no recording other than 1029X. 10 MR. PAUL: I don't think that's necessary, your Honor. 11 THE COURT: All right. 12 MS. BAKER: Well, your Honor, they're not going to be 13 getting their other note back immediately, though, are they? 14 THE COURT: We'll make them a note -- make them a copy 15 of the note. 16 (Pause) 17 THE COURT: Counsel, to be clear, I'll say, in 18 response to your request, Court Exhibit 123, there is no other 19 recording on September 20, 1999, between Mr. Sattar and 20 Mr. Taha. I am providing a copy of Court Exhibit 123. 21 MR. PAUL: That's fine. 22 THE COURT: Okay? 23 MR. MORVILLO: Yes, your Honor. 24 THE COURT: And when Mr. Fletcher comes back, he 25 should have a copy of Court Exhibit 123. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12925 521esat 1 (Pause) 2 MS. BAKER: Your Honor, as far as the jury's most 3 recent note, the one that's marked as Court Exhibit 124 and 4 requests a portion of Government Exhibit 1706X, which is a part 5 of the May 2000 prison visit, we do have the ability to play 6 just the very specific portion requested by the jury and to 7 replay it for them if they end up requesting to have it 8 replayed. And we're just checking now to make sure that all of 9 the equipment is hooked up properly and ready to go. 10 MR. RUHNKE: Just one question on 1706X: Is that the 11 WordPerfect or PDF version that the jury has? 12 MR. BARKOW: PDF. 13 (Discussion between counsel) 14 MR. RUHNKE: The answer appears satisfactory, your 15 Honor. 16 THE COURT: So how long would this take to -- 17 MS. BAKER: Your Honor, the excerpt that the jury has 18 requested is very brief. I think only a couple of minutes. 19 And what we would like to do is play it through once, just to 20 check and make sure that everything is working properly -- 21 actually, you'll see on the screen there it's actually 58 22 seconds, the particular excerpt. So we'd like to play it 23 through once to make sure it's working properly, and assuming 24 that it is, then we would be ready to go. 25 And just so that the record is clear, the recording SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12926 521esat 1 itself is Government Exhibit 1706C, which corresponds to the 2 transcript, which is 1706X, and the transcript the jury already 3 has in there with them. 4 THE COURT: Okay. I have Court Exhibit 125 with a 5 copy of Court Exhibit 123, which I can send in to the jury now. 6 It says, members of the jury, in response to your request, 7 Court Exhibit 123, there is no other recording on September 20, 8 1999, between Mr. Sattar and Mr. Taha. I am providing a copy 9 of Court Exhibit 123. 10 And the parties should inspect the note and the 11 attachment. 12 Mr. Fletcher raises the question whether I should give 13 them the copy of 124 now, and I don't think so. I just want to 14 get one -- Court Exhibit 125, which is the response to Court 15 Exhibit 123, to them. I haven't provided them yet with copies 16 of all of the other notes. And I haven't responded to their 17 most recent note. 18 MS. BAKER: That's fine with the government, your 19 Honor. 20 MR. RUHNKE: That's fine, your Honor. 21 THE COURT: So please inspect 125 and 123, the copy of 22 123. 23 (Pause) 24 THE COURT: Please, look at -- 25 MS. SHELLOW-LAVINE: I'm advised that counsel for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12927 521esat 1 Mr. Sattar and Mr. Ruhnke are satisfied with the Court's 2 response to juror note number 123 that's contained in Court 3 Exhibit 125. I've reviewed it and I'm tendering it to 4 Mr. Fletcher. 5 THE COURT: Okay. 6 MS. BAKER: Your Honor, may we go ahead and test the 7 playing of this excerpt of the recording. 8 THE COURT: Yes. Note 125 with the copy of 123 is now 9 given to the marshal to take to the jury. Double check it, 10 please. 11 Let me ask the parties something. I have to respond 12 to the jury to tell them that they can adjourn at 4:15 today 13 and to advise them that we can play the portion. And is it -- 14 so, shall I tell them it's possible to play the portion today 15 if they wish, or that they should hear it first thing tomorrow 16 morning? 17 MS. BAKER: Your Honor, if we test it now and it 18 works, then it is possible to play it for them before they 19 leave today because it is such a brief excerpt. However, if we 20 test it now and for some reason the equipment isn't working, 21 then obviously that will not hold true. 22 THE COURT: All right. 23 MS. BAKER: May we go ahead. 24 THE COURT: Yes. 25 (Recording played) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12928 521esat 1 MS. BAKER: Your Honor, that was it. That was the 2 entire excerpt. So it will be possible to bring the jury in 3 and play it for them this afternoon, if they are ready. 4 THE COURT: Okay. The transcript is what? 5 MS. BAKER: Your Honor, the transcript is Government 6 Exhibit 1706X. And the corresponding recordings, I actually 7 misspoke a little bit earlier. The corresponding recordings as 8 they were excerpted by the parties after negotiations were 9 1706X1 -- sorry, that's wrong. 1706CX1 and 1706CX2. 10 THE COURT: So what is this? Government 11 Exhibit 1706CX? 12 MS. BAKER: I actually don't know which of those two 13 disks this little excerpt comes from, because we are not 14 playing it off the original disk, as we've advised defense 15 counsel. We had put this very little passage on to yet another 16 disk for use in the government's summation, and we're playing 17 it off of that duplicate. But I don't know whether that 18 duplicate was made from 1706CX1 or CX2. 19 THE COURT: Is it all right to say it will be possible 20 to play Government Exhibit 1706CX and to see the portion of 21 Government Exhibit 1706X that you have requested? 22 MS. BAKER: That is fine with us. 23 MS. SHELLOW-LAVINE: That's fine with us, your Honor. 24 Your Honor, perhaps in that note you might consider 25 adding a phrase, if they want to see it again, they're going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12929 521esat 1 have to go back to the jury room and send us another note and 2 we'll play it for them again. Since they indicated they may 3 want to hear it more than once, the only vehicle available is 4 going to be the exchange of correspondence. 5 THE COURT: All right. 6 (Pause) 7 THE COURT: Here's the note that I would send in, 8 which will be the next court exhibit. 9 Members of the jury, you can, of course, adjourn 10 at 4:15 p.m. It will be possible to play Government 11 Exhibit 1706CX and to see the transcript, Government 12 Exhibit 1706X for the portion that you requested. Please let 13 us know if you wish to hear it and see the transcript before 14 you adjourn. 15 If you wish to hear it again, you will have to return 16 to the jury room and send another note. If I do not hear from 17 you, we will bring you back to the courtroom at 4:15 p.m. in 18 any event. 19 Is that satisfactory? 20 MS. BAKER: Yes, your Honor. 21 MS. SHELLOW-LAVINE: Yes, your Honor. 22 THE COURT: That's Court Exhibit 126. Please inspect 23 it. 24 MS. BAKER: Your Honor, I did want to raise another 25 matter that does not affect this note that has just been marked SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12930 521esat 1 as Court Exhibit 126 but that would affect what your Honor 2 would say to the jury in your closing instructions at the end 3 of the day today. And I'll begin by describing this initially 4 in a general way, in case there's any issue about it. 5 The government became aware of certain media coverage 6 of events that occurred today. We made defense counsel aware 7 and asked whether they wished any type of instruction to be 8 given to the jury. We spoke with one of the defense counsel. 9 We were told that defense counsel had conferred about this and 10 all agreed, but if I'm wrong, obviously some other defense 11 attorney can let me know. 12 But in light of certain media coverage today, the 13 parties are in agreement that your Honor should instruct the 14 jury more broadly than your Honor usually does about avoiding 15 media coverage. Usually your Honor tells the jury, as you have 16 throughout the trial, to avoid media coverage relating to this 17 trial. But we would ask that today your Honor tell the jury to 18 avoid media coverage relating to Egypt. 19 MS. SHELLOW-LAVINE: Your Honor, we have only the 20 first page of 4. 21 MR. RUHNKE: I have the second of 4. 22 MS. SHELLOW-LAVINE: We now have the second of four. 23 THE COURT: I'm sorry? What note are we -- 24 MS. BAKER: Your Honor, Ms. Shellow-Lavine is looking 25 at a printout of some of the media coverage from the Internet SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12931 521esat 1 which we had previously provided to one of the other defense 2 attorneys and believed had been shared among them. If your 3 Honor wishes, I can hand it up for the Court. 4 THE COURT: All right. 5 MR. RUHNKE: Your Honor, we have just talked briefly 6 about this publicity and we do not seek any special instruction 7 for the jury to avoid publicity about this case. They've been 8 told to avoid publicity about the case, and when you tell 9 somebody to be especially careful, that raises the possibility 10 that someone's curiosity might get the better of them. So we 11 do not seek any additional or special instruction. 12 The gentleman who's identified in this article, 13 Mohammed Abdel Rahman Badawi is not anyone associated with this 14 case or any relative of Sheikh Rahman. So we do not seek any 15 instruction, special instruction. 16 THE COURT: Government? 17 MS. SHELLOW-LAVINE: Your Honor, defense counsel have 18 reviewed 126 in connection with the jury's request to see the 19 videotape and to adjourn. And it's satisfactory to all of us. 20 THE COURT: I'm sorry. I thought that had gone in 21 already. 22 MS. SHELLOW-LAVINE: Nope. 23 THE COURT: Let's give it -- 24 MS. SHELLOW-LAVINE: All defense counsel have checked 25 it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12932 521esat 1 THE COURT: All right. It's going in. Satisfactory 2 to both sides? 3 MS. BAKER: Yes, your Honor. 4 MR. RUHNKE: Yes, your Honor. 5 MS. SHELLOW-LAVINE: Yes, your Honor. 6 MS. BAKER: Your Honor, the government's request was 7 motivated by the fact that earlier in the trial there was an 8 occasion where some media coverage that did not directly relate 9 to the trial prompted the defense to request voir dire of the 10 jury as to whether any of them had been exposed to it. We 11 wanted to avoid any similar situation arising here by 12 preempting any exposure of the jurors by giving an instruction 13 in advance. 14 If none of the defendants think that that's necessary 15 and thus would not request any voir dire tomorrow based on any 16 news coverage relating to this incident, that's fine with the 17 government. But we just were hoping to avert a repetition of 18 the prior occasion. And if the defense attorneys now say they 19 don't want any instruction given, that's fine with us as well. 20 MR. RUHNKE: Your Honor, the situations are sort of 21 materially different. The last time it was a front-page 22 article in the New York Times and other newspapers, color 23 photographs showing victims of a bombing in a hotel. I doubt 24 that this story would carry anything nearly -- the impact that 25 the earlier story did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12933 521esat 1 So we do not seek a special instruction. If tomorrow 2 there are headlines in the New York Times linking this trial to 3 something, which I don't expect, obviously that's a whole 4 different story. But I don't think a special instruction to 5 avoid publicity is called for by what we've been shown by the 6 government. 7 MS. BAKER: Your Honor, just so that the record is 8 clear, there wasn't any link to the trial in the media coverage 9 of that prior incident. And so that wasn't an accurate 10 characterization of what happened before. 11 And because there is arguably some connection between 12 that prior media coverage, which didn't relate to the trial, 13 and the current media coverage, we alerted the defense counsel 14 to the issue. Again, if they don't wish an instruction now, 15 that's fine, but we will oppose voir dire tomorrow if it turns 16 out that this story is picked up on and gets some broader 17 coverage. 18 MR. RUHNKE: Your Honor, I'm assuming the government 19 will oppose voir dire in any circumstances. So the past 20 article did link the Luxor bombings, did mention the Islamic 21 Group, did mention groups similar to the name of the Islamic 22 Group. You know, whether we're dealing with apples and oranges 23 or what, I don't think this is the same thing. 24 And if what the government's trying to do is get a 25 preemptive waiver of our request for voir dire that may never SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12934 521esat 1 occur, that's not going to happen either. 2 THE COURT: All right. I've now been asked to give a 3 more general instruction at this point, and there's not a 4 reason to believe that the publicity will be in any sense 5 linked to this case. I would have -- and there's no reason to 6 believe that any responsible media would link it to this case 7 because there's no reason to believe that there is any link to 8 this case. 9 And so I will inform the jury with -- as I 10 traditionally do, underlining that they're not to look at or 11 listen to anything to do with the case. 12 MR. TIGAR: Your Honor, the jurors' video screens have 13 the transcript on them. 14 THE COURT: Okay. Take the transcript down, please. 15 Thank you. 16 MS. SHELLOW-LAVINE: Your Honor, as a question to 17 clarify the court exhibits, did you ever send copies of the 18 juror notes back to the jury with the transmittal? 19 THE COURT: Not yet. 20 MS. SHELLOW-LAVINE: Thank you. 21 THE COURT: No, I was -- I hadn't done that. 22 MR. TIGAR: Your Honor, may we request that the big 23 screen also be blanked when the jurors come in. 24 THE COURT: Thank you. I will tell them at the outset 25 that it's obviously after -- it's about 4:15, depending on what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12935 521esat 1 clock you use, and we'll call them in in a moment. I'll tell 2 them that we'll show them the recording that they asked for 3 first thing tomorrow. We'll also provide them with the jury 4 notes that they've asked for and then give my instructions. 5 All right. Let's bring in the jury. It's 4:15. 6 (Continued on next page) 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 12936 521esat 1 (In open court; jury present. Time noted, 4:18) 2 THE COURT: Good afternoon, ladies and gentlemen. 3 Good to see you all. 4 Ladies and gentlemen, as I indicated to you in the 5 note, I would bring you back at 4:15 and adjourn for the day. 6 As you requested, I realize that you've asked to hear a 7 recording and we will, as I indicated in my note to you, we'll 8 call you in tomorrow morning to hear that recording and to see 9 the transcript. 10 I also know that I've told you that we'll provide you 11 with copies of your notes to us, and we should have that done 12 and be able to do that for you tomorrow. 13 With those preliminary items, I want to underline all 14 of my instructions to you. They're very, very important. If 15 anything, they become more important, if that's possible, as 16 the case goes on, as deliberations go on; because I want to 17 make very sure that, as I've told you before, simple repetition 18 of the instructions doesn't in any way undercut their 19 significance, because I cannot emphasize their importance 20 enough. 21 Please, don't talk about this case or anything to do 22 with it at all after you leave the jury box, because when 23 you're getting ready to leave, all 12 of you are not together 24 and deliberating. And that's the only time you should be 25 talking about the case. So don't talk about the case after you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12937 521esat 1 leave the jury box when you're getting ready to go. Don't talk 2 about it in the vans. Don't talk about it with anyone else 3 when you go home tonight. 4 Come back tomorrow. Don't talk about the case or 5 anything to do with it while you're in the vans, when you come 6 back to the jury room. The only time that you're to begin 7 discussing the case again is when all 12 of you are together. 8 The foreperson will then advise the marshal by a note that 9 you're ready to start deliberating, and then you can start 10 deliberating. And that will also be an indication for us that 11 we should bring you back to the courtroom to listen to the 12 recording. 13 Please, don't look at or listen to anything to do with 14 the case at all. Don't look at anything with any possibility 15 that it can have something to do with the case. If you should 16 see or hear something inadvertently, please, simply turn away. 17 As I have repeatedly told you, you are in the best position to 18 see and hear everything that could possibly be relevant to your 19 decision, because you have seen and heard all of the evidence 20 or lack of evidence and my instructions on the law. That is 21 your focus and that is what -- that is the only thing that is 22 proper for you to rely upon. 23 So, please, don't look at or listen to anything that 24 could possibly have anything to do with -- possibly have 25 anything to do with the case. If you see or hear something SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12938 521esat 1 inadvertently, please, simply turn away. Leave anything to do 2 with the case in the jury room. Notes, exhibits, anything like 3 that, please, just leave them in the jury room. 4 With that, have a very good evening and I look forward 5 to seeing you tomorrow. 6 (Jury excused) 7 (Continued on next page) 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 12939 521esat 1 (In open court; jury not present) 2 THE COURT: Several things. Mr. Fletcher advises me 3 that Mr. Clark was on C-SPAN this morning. I didn't see it, I 4 don't know what it was about, but I bring that to your 5 attention. 6 I owe to the jurors the response and -- with respect 7 to the notes. I have, as I indicated, old court exhibits that 8 dealt with individual juror issues. And I believe I've already 9 told you which those were. There are six of them. 10 MR. TIGAR: Yes, your Honor. 11 THE COURT: I will send the note to the jury and I'll 12 mark it tomorrow, because I don't -- I don't know what number 13 it will be yet, and I'll send it tomorrow morning. 14 The parties should inspect the note and the complete 15 set of these exhibits. The note would read, members of the 16 jury, I am providing to you copies of notes that you have 17 provided to us. I have not included notes that dealt with 18 individual juror issues. 19 And this is -- the parties should inspect this whole 20 group, as well as the juror note, to make sure that it's 21 accurate and that there is no mistake in the set of notes. And 22 I'm perfectly happy to wait until you've all done that so that 23 the set is ready to go tomorrow. 24 MS. SHELLOW-LAVINE: Earlier this afternoon, your 25 Honor, when copies were provided to counsel, we did review the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12940 521esat 1 notes to make certain that all of the notes from the jury were 2 in that pile. 3 THE COURT: Well, double check. 4 And I would also provide, after you've finished this, 5 a set of this, these exhibits, to the media. Not yet the note 6 to the jury, because that yet is not -- hasn't gone in and 7 hasn't been marked. But I want to make sure that everyone has, 8 you know, seen this, they've double checked it, double checked 9 it with Mr. Fletcher's group to be given to the media so that 10 the media can get it. 11 (Pause) 12 THE COURT: Counsel, the set for the jury doesn't yet 13 include number 123, because I already sent 123 to them. But 14 we'll give the media 123. 15 The set for the jury doesn't yet include 124, which is 16 my last note to the jury. It's included in the media set. I'm 17 happy to make another copy of 124 and provide it -- it must not 18 be in your sets. Do you have 124? That's the one, the jury 19 will adjourn at 4:15 p.m. today. 20 MR. TIGAR: We have 124, your Honor. So the rest of 21 the mechanics are, I think, a matter of indifference to us. 22 (Pause) 23 THE COURT: The copy is -- there's at least one 24 exhibit that is just produced at the end of the day that's not 25 included, which is the note that I sent to the jury which was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12941 521esat 1 in response to their request for an exhibit, and that was the 2 one that I attached 123 to. 3 MS. SHELLOW-LAVINE: Your Honor, this package does not 4 include any of the notes that you've written. These are just 5 notes from them. 6 MR. TIGAR: And we do have a copy of 123, your Honor. 7 Mr. Fletcher has been kind enough to provide that. That, I 8 think, is the one to which your Honor referred. 9 THE COURT: That's right. And I'm giving a copy of 10 that to the press and that's gone to the jury. You're right. 11 So, the last two -- the last three notes for the jury 12 are 118, 120 and 124. And we're also providing the press a 13 copy of 123, which was given. 14 All right. Everyone satisfied with the package? 15 MR. TIGAR: Yes, your Honor. I have reviewed it and 16 Ms. Shellow-Lavine has reviewed it and the government trusts 17 us. 18 MS. BAKER: Your Honor, we have flipped through it 19 several times so we are satisfied with it. 20 We also do in this regard trust Ms. Shellow-Lavine and 21 Mr. Tigar. I didn't mean to suggest otherwise. 22 MR. TIGAR: On that note, your Honor, I move to 23 adjourn. 24 THE COURT: I'm sorry? 25 MR. TIGAR: I said on that note, your Honor, I move to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12942 521esat 1 adjourn. 2 THE COURT: All right. I have Court Exhibit 127 and 3 the attachments for the jury tomorrow, and Mr. Fletcher will 4 give the other press package to the press. 5 Okay. Anything else for me? I'll see you all at 9:00 6 tomorrow morning. 7 (Adjourned to Wednesday, February 2, 2005, at 8 9:00 a.m.) 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