13051 529esat1 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 9, 2005 8 9:15 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 13052 529esat1 1 (Trial continuing) 2 (In open court; jury not present) 3 MS. SHELLOW-LAVINE: Good morning, your Honor. 4 Mr. Tigar's in the building. He'll be here shortly. He just 5 stepped out of the courtroom. 6 Ms. Stewart has had a flat tire this morning. She 7 will be here shortly and has -- 8 MR. TIGAR: Ms. Stewart is having car trouble, your 9 Honor. She'll be here very soon. She consents to proceed in 10 her absence. 11 THE COURT: All right. Is that satisfactory with the 12 government also? 13 MR. MORVILLO: That's fine, your Honor. 14 THE COURT: Okay. I have a note from the jury, 15 9:18 a.m., 9 February, '05. It's marked as Court Exhibit 147. 16 It reads, Judge Koeltl, we are starting deliberation. 17 Foreperson's number. Back says Dan. 18 Parties are welcome to inspect. All right? 19 MS. SHELLOW-LAVINE: Thank you, your Honor. 20 MR. RUHNKE: Your Honor, just a question. It had 21 been -- it has been your practice to talk with jurors who say 22 they need a day off or time off. I was wondering if you 23 intended to talk with the juror who asked for a particular day 24 off next week. 25 THE COURT: February 17th? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13053 529esat1 1 MR. RUHNKE: Yes. 2 THE COURT: There's no reason to do that yet. 3 MR. RUHNKE: Okay. 4 THE COURT: That's Thursday. When we've gotten some 5 notes in the past that dealt with commitments that were further 6 out in time, I've usually waited until a little closer. 7 MR. RUHNKE: That's fine. I just was suggesting that 8 at some point she needs to be spoken to, or he. 9 THE COURT: Okay. Anything else? See you later. 10 (Recess pending verdict) 11 (A note was received. Time noted: 10:05 a.m.) 12 THE COURT: I have a note from the jurors. It will be 13 marked as -- it is marked as Court Exhibit 148. 14 Judge Koeltl, then it lists a juror, would like to 15 speak to you. And it's signed by the -- with the foreperson's 16 number. 17 The parties are welcome to inspect. And I will talk 18 in the robing room to this juror. Parties are welcome to have 19 representatives in there. 20 (Pages 13054 through 13056 sealed by order of the 21 Court) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13057 529esat1 1 2 (In open court; jury not present. Time noted: 3 10:21 a.m.) 4 THE COURT: All right. I have two notes which came 5 out together. The first will be marked Court Exhibit 149. 6 It reads, Judge Koeltl, just to confirm, were pages 7 9861, 9862, 9865, 9870, 9871 left out of Yousry's cross/direct 8 testimony binder that was sent to us? We don't have these 9 pages. If possible, we would like these pages. Number 329. 10 And then the next is Court Exhibit 150, 11 9 February, '05, Judge Koeltl, may we have the following: 12 GX2044T, GX2663, GX2052, 2067, 2068, 508T -- I assume MY -- 13 1006CT, and then a note to the side that says, transcript of 14 either Sattar or Taha, dash, either Hani or Atia telling that 15 the Sheikh has withdrawn his support. Number 329. 16 Parties are welcome to inspect those. 17 MS. BAKER: Your Honor, it's going to take a couple of 18 minutes for us to put together the necessary information about 19 whether there are limiting instructions and so on, because we 20 didn't have our computer here with us in the courtroom. So my 21 colleagues went to get it. 22 The one thing I can say in the meantime is that in 23 response to the jury's request for 1006CT -- and we agree that 24 obviously that refers to the Yousry exhibit -- the Court 25 previously in response to one of their other notes gave them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13058 529esat1 1 MY1004CT. They had requested that in the note that was marked 2 as Court Exhibit 118. And at that time, along with 1004CT, 3 along with the Court's responding note, the Court gave the jury 4 a copy of trial transcript pages 9081 through 9082, because 5 those trial transcript pages contained the Court's lengthy 6 limiting instruction that applied to the Yousry notebooks. 7 So the government's suggestion would be that as to 8 MY1006CT, that the Court remind the jury that the limiting 9 instruction for the Yousry notebooks, including MY1006CT, is 10 set forth in those trial transcript pages which the jury 11 already has. 12 Also, as to the additional trial transcript -- 13 THE COURT: By the way, do you agree with that? 14 MR. RUHNKE: I agree with that. 15 MS. BAKER: As to the additional trial transcript 16 pages that the jury has now requested, they indicated 17 uncertainty in their note as to whether they were given those 18 pages before. It is my understanding based on review of prior 19 notes that they were not given those pages before, because in 20 their prior note, which, again, was that same note which was 21 marked as Court Exhibit 116, they only asked for certain 22 specific transcript pages, which did not include the five pages 23 that they have now requested. 24 So we will have to review these additional five pages 25 and determine whether any redactions need to be made and then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13059 529esat1 1 provide them to the jury. 2 THE COURT: Mr. Ruhnke? 3 MR. RUHNKE: We agree, your Honor. We're just waiting 4 to get the pages together. 5 I'm just standing for other reasons; not to get the 6 Court's attention. 7 THE COURT: How long do you think it might take to 8 gather the limiting instructions and the pages and all? When 9 could I send the note back to the jury with the exhibits? 10 MS. BAKER: Once the laptop gets here, it will be very 11 quick to determine whether there are any limiting instructions. 12 And so I think that the Court very quickly would be able to 13 send the jury the exhibits that they requested in Court 14 Exhibit 150 with any necessary limiting instructions. 15 The trial transcript pages that were requested in 16 Court Exhibit 149 might take a little bit longer, because we'll 17 have to identify the right date and go get the pages and then 18 make any necessary redactions. 19 So if the Court wished to do it in two separate 20 stages, I think that the first stage could be done within five 21 minutes or so. 22 THE COURT: All right. I'll wait, then. 23 What about the transcript of either Sattar or Taha 24 that's been referred to? 25 MS. BAKER: We're looking into that right now, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13060 529esat1 1 Honor, and we'll confer with defense counsel about that. 2 MR. FALLICK: Your Honor, that's a similar note to 3 note 123 that the juror sent out last week asking for on or 4 about September 20, 1999, a telephone conversation between Taha 5 and Sattar that the initiative should be cancelled. We have 6 1029X, but it is not on that one. And then your Honor 7 responded and, in fact, there is no other conversation. 8 MS. BAKER: But here there may be another conversation 9 that the jury doesn't already have, and we need to get the 10 computer here and look into that. 11 THE COURT: I suspect it's going to be more than five 12 minutes. But I'll wait inside rather than go back across the 13 street. 14 (Recess) 15 MR. RUHNKE: We can go ahead without Mr. Stern, your 16 Honor. 17 THE COURT: Okay. I have another note, it's marked 18 Court Exhibit 151. 19 It reads, Judge Koeltl, may we have the following: 20 1710CX1, 1710CX2, 1711CX1, 1711CX2. Number 329. 21 Parties are welcome to inspect. 22 MS. BAKER: Your Honor, those four exhibits are the 23 excerpted DVDs of portions of the May 2000 prison visit. So if 24 the jury wishes the DVDs, they would need to be brought in to 25 the courtroom and have them played for them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13061 529esat1 1 THE COURT: How long? 2 MS. BAKER: Those are somewhat lengthy. I mean, I 3 don't know the -- unless there are specific portions that 4 they're interested in, which the note does not indicate one way 5 or the other, each DVD is -- they're at least an hour each, I 6 believe. 7 THE COURT: And the corresponding transcripts are only 8 an aid with respect to any of the portions, right? 9 MS. BAKER: Your Honor, the jury earlier in the course 10 of its deliberations has been given transcripts of the prison 11 visits that they have requested. They may, in fact, have the 12 transcripts that correspond to these DVDs. I'm looking at that 13 right now to see if they do. 14 They do have 1710X in there already, which is the 15 transcript that corresponds to 1710CX1 and 1710CX2. But it 16 appears that they do not have 1711X, which would be the 17 transcript that would correspond to 1711CX1 and 1711CX2. 18 MS. SHELLOW-LAVINE: Your Honor, may I confer with 19 Ms. Baker for a moment? 20 THE COURT: Sure. 21 MS. SHELLOW-LAVINE: Thank you. 22 MS. BAKER: Your Honor, for the five trial transcript 23 pages that were requested in the note marked Court Exhibit 149, 24 those are from the trial transcript of November 29th. We've 25 reviewed them in electronic form and showed them to Mr. Ruhnke, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13062 529esat1 1 and we're having hard copies of them retrieved and brought here 2 right now. They do not require any redaction. 3 MR. RUHNKE: Your Honor, I have a hard copy if the 4 government wants to look at it. 5 MS. BAKER: These are fine and are ready to go to the 6 jury, if your Honor wishes to send them in. 7 As to the exhibits requested in Court Exhibit 150, 8 Government Exhibit 2044T, which is the first exhibit that they 9 requested, is subject to a limiting instruction. And that is 10 that it is admitted only against Mr. Sattar and not against 11 Ms. Stewart or Mr. Yousry. And it's admitted solely for the 12 knowledge, intent and state of mind of Mr. Sattar. 13 And then the Court reminded the jury of the newspaper 14 article instruction that the Court had previously given, 15 because 2044T is a translation of a news article. 16 MS. BAKER: Should I continue or should I -- 17 THE COURT: No, it's all right. I'll just retrieve it 18 from LiveNote. 19 MS. BAKER: 2663, which is the second exhibit that the 20 jury requested in that note, is -- 21 THE COURT: Hold on. Could you write out the 22 instructions so that -- 23 MS. BAKER: Yes, your Honor, I will. Should I 24 continue providing the Court the information first? 25 THE COURT: No. If you'd just write them out, show SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13063 529esat1 1 them to defense counsel, it would be easier, because I can't 2 seem to get my -- otherwise, I would copy them down from 3 LiveNote. 4 MS. BAKER: I will do that, your Honor. 5 There are two other items in that same note, the note 6 marked as Court Exhibit 150, as to which there's a point that I 7 need to raise with the Court other than a limiting instruction. 8 THE COURT: Sure. 9 MS. BAKER: And that is 2663, which is the second 10 exhibit that the jury requested in that note. 11 The jury should already have that exhibit, because 12 they previously requested it in a note that was marked as Court 13 Exhibit 85. So perhaps the Court would tell them that they 14 should already have that exhibit in there. 15 THE COURT: Okay. Could we give them -- would there 16 be an objection to giving them another copy? 17 MS. BAKER: That's certainly fine with the government. 18 MR. RUHNKE: Certainly fine with us. 19 MR. PAUL: Could we see 2663 again, please. 20 THE COURT: Sure. 21 MS. BAKER: I know from the number that it is an 22 exhibit from the search of Ms. Stewart's office, but we're 23 pulling the copy right now. 24 MR. PAUL: I know what it is. We have no problem with 25 that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13064 529esat1 1 MS. BAKER: Your Honor, we do have a color photocopy 2 here, which could be provided to the jury. 3 And, your Honor, as to the jury's request for 508T -- 4 THE COURT: Well, if there's any issue with respect to 5 it, I'll just tell the jury that they have it. 6 MR. TIGAR: There's no issue, your Honor, from the 7 defense. 8 THE COURT: I'm sorry? 9 MR. TIGAR: There's no issue for us. It's all right 10 if they get another copy. 11 THE COURT: Okay. 12 MS. BAKER: As to the jury's request for 508T, 508 was 13 an Arabic-language news article. I will check for a limiting 14 instruction in a moment, but the translation of the Arabic 15 article 508 was actually in three parts, which were marked as 16 508T, 508T2 and 508T3. 17 We would ask -- and it's my understanding that 18 Mr. Sattar's counsel agrees -- that the jury be essentially 19 advised that there are multiple pieces of the translation and 20 asked which piece or pieces they are seeking. 21 THE COURT: 508T is the translation, right? 22 MS. BAKER: 508T is one of three pieces of the 23 translation. And then -- 24 THE COURT: Pieces of a translation of -- 25 MS. BAKER: Of an Arabic-language news article that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13065 529esat1 1 was marked as -- or marked and admitted as 508. 2 MR. TIGAR: Your Honor, we object to that. They've 3 asked for 508T. This was an exhibit that was the subject of 4 extensive argument as to what portions were coming in, whether 5 or not it was admissible, 403, the division into three parts 6 was the discussion -- was the source of endless -- or a lot of 7 negotiations. 8 There are three exhibits. They have asked for one. 9 We ask they be given the one they asked for. 10 MS. BAKER: Your Honor, Mr. Tigar's recitation of the 11 procedural history is not accurate in one respect. There was 12 litigation over how much of the translation of 508 could come 13 into evidence, but the fact that the translation is in three 14 pieces was not part of that discussion. The translation was 15 always in three pieces. It had been done that way by the FBI 16 before any issue was ever raised. There was litigation over 17 whether any of it would be admitted and then as to how much, if 18 any, of each of the three pieces would come in. 19 But the fact that it is in three pieces is purely 20 fortuitous. And this situation, we respectfully submit, is 21 analogous to other instances where the jury has requested -- 22 made a request that is not necessarily clear. And in every 23 prior occasion the jury has been asked to provide 24 clarification. 25 These are three pieces of the same article. They are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13066 529esat1 1 internally referential to each other, and we would ask that the 2 jury be asked to clarify. 3 MR. TIGAR: Your Honor, this is that fatwah. It's 4 subject to a limiting instruction anyway, not offered against 5 Ms. Stewart, but I am saying -- what I am saying, which I 6 insist is an accurate characterization of the dispute -- 7 because from the outset we have objected to anything coming in 8 front of the jury with respect to this whole fatwah with which 9 we had nothing to do, the worldwide jihad fatwah that Taha 10 wanted Zayyat warned about when he spoke to Taha. And this is 11 the 1998 fatwah, your Honor. 12 So that's why we request that the jury be given what 13 it asked for and that suggestions not be made as to what more 14 it might request, along the same line. 15 MS. BAKER: Your Honor, as to the jury's request 16 for -- 17 THE COURT: No, let me just ask if Mr. Sattar's 18 counsel has anything? 19 MR. PAUL: Your Honor, I'm sorry. Can I see the note 20 again, the jury's last note? 21 THE COURT: Sure. 22 MS. BAKER: Your Honor, just to remind the Court and 23 the parties of how these exhibits are interrelated and how they 24 were presented to the jury, they were admitted based on a 25 stipulation marked as 508S. And 508S says, if called as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13067 529esat1 1 witness at trial, a qualified expert Arabic-to-English 2 translator employed by the Federal Bureau of Investigation 3 would testify that in her opinion the translations marked as 4 508T and 508T2 are true and accurate translations from Arabic 5 into English of the sections of Government Exhibit 508 that are 6 marked as 1 and 2 respectively. 7 And then a similar paragraph that says, the 8 translation marked as Government Exhibit 508T3 is a true and 9 accurate translation from Arabic into English of the section of 10 Government Exhibit 508 that is marked as 3. 11 Now, previously whenever the jury has requested a 12 piece of an exhibit -- for example, there have been occasions 13 when they have requested specific pages of a Yousry notebook or 14 specific pages of a Yousry dissertation -- they were given the 15 entire exhibit. So one way to proceed here consistent with 16 that would be to give them 508T, T2 and T3, or as we originally 17 suggested, to ask the jury to clarify which piece or pieces 18 they are seeking. 19 MR. PAUL: Your Honor, I'm in agreement, having 20 looked at the note and the exhibits themselves, that I think 21 clarification is required for the jury. 22 MS. BAKER: Your Honor, should I move on to another 23 item or give your Honor time to continue dealing with this one? 24 THE COURT: Can I see the three, 508T2 and T3. 25 MS. BAKER: I'm going to hand them to Mr. Fletcher. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13068 529esat1 1 And just to make the record clear, 508T3 is literally 2 just one line, and that is because it's the translation of a 3 caption from under a photograph, and the rest of the text that 4 had appeared under the photograph was ruled not admissible. So 5 that is correct that there is just one line on that page. 6 THE COURT: All right. I would tell the jury in a 7 note that there is a translation of 508. Please advise which 8 piece or pieces to see. 9 MR. PAUL: That's fine. 10 THE COURT: And since I'm not sending them anything, I 11 don't have to give them a limiting instruction yet. 12 All right. Next? 13 MS. BAKER: Your Honor, I'm in the process of writing 14 out the other limiting instructions that the Court needs. 15 The one other point other than limiting instructions 16 is as to the jury's request for a transcript or transcripts of 17 Sattar or Taha and Hani or Atia regarding Abdel Rahman's 18 withdrawal of support, or however it was phrased. 19 The calls that the government relied upon for that 20 proposition in its jury addresses are 1167X and 1170X, both of 21 which are already in the jury room. We would ask that the 22 Court advise the jury that those exhibit numbers are responsive 23 to that request. We believe that this situation is 24 distinguishable from the prior jury note and response that 25 Mr. Fallick made reference to a few minutes ago, because in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13069 529esat1 1 that prior jury note, the jury had already stated their 2 awareness of the particular call, which in that instance was 3 1029X, and arguably expressed a view of the call. 4 Here the jury obviously doesn't know which calls meet 5 the description that they have provided, and they literally 6 have dozens of transcripts of calls in there with them at this 7 point. And so we believe it's appropriate under the 8 circumstance to simply cite these exhibit numbers to them and 9 advise them that they already have these exhibits in their 10 possession. 11 MR. PAUL: We disagree with that. 12 THE COURT: What do you think I should tell the jury? 13 MR. PAUL: I don't think it's necessary to say 14 anything, other than the fact there is no response to that 15 question. 16 MS. BAKER: But that's just not true, because 1167X 17 and 1170X are responsive to that description. 18 MR. PAUL: What the government's asking is the Court 19 to highlight certain exhibits that have been submitted into the 20 jury room in response to a particular question. And I 21 certainly don't think that would be appropriate. 22 MS. BAKER: Your Honor, the jury has made a specific 23 request. They're asking for certain evidence to be identified 24 to them. Fortuitously or coincidentally, they have that 25 evidence already. But if they didn't, it would certainly be an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13070 529esat1 1 appropriate response to this note for the Court to send in 2 1167X and 1170X. 3 So telling the jury that they already have those 4 particular exhibits is not any different than sending those 5 exhibits in to them, which is the way that courts always, and 6 this Court in the past, responds to jury's notes in which they 7 identify particular pieces of evidence by description rather 8 than by exhibit number. 9 MR. TIGAR: Your Honor, we support Mr. Paul's 10 position. The transcripts in question are Arabic language 11 translations. What they, quote, say, in closed quote, is a 12 matter of the evidence of translators who have spoken. Their 13 contents, their meaning, the meaning, whether those words were 14 spoken, what those words mean, all those words are for the 15 jury. So we support Mr. Paul's statement. 16 MR. PAUL: Your Honor, I don't think those transcripts 17 specifically refer to quote/unquote cancellations, the question 18 that it identifies, and that is what the jury is inquiring 19 about. And, therefore, to specifically say, well, if you look 20 at Exhibit A and you look at Exhibit B, we think that forms 21 within the general area of what you're asking about, that is 22 not appropriate. I don't think that is responsive. 23 I think the Court could respond by saying that you 24 have received all the exhibits that make reference to the 25 question you're inquiring about without specifically SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13071 529esat1 1 highlighting any specific exhibit. That would be my objection 2 to the government's request. 3 Just so the Court is aware, the two exhibits Ms. Baker 4 has highlighted do not specifically refer to cancellation, 5 which is what the jury has requested. So to ask the jury to go 6 back now and sort of fill that hole with those exhibits is 7 inappropriate. 8 If your Honor wishes to address this question by 9 saying you have received all the exhibits that pertain to the 10 question you've asked and there are no further exhibits to 11 provide you with, we have no objection to that. 12 MS. BAKER: Your Honor, I don't have the jury's note 13 in front of me to know the particular word -- 14 THE COURT: I don't either. Where is the note? 15 MS. BAKER: But the government's position is whatever 16 particular word the jury used, the substance, the meaning of 17 their words is identical to the content of those calls, even 18 if, for example, the word withdrawal was used versus 19 cancellation. 20 THE COURT: Here's the note. It says -- I'll read it 21 in the record: Transcript of either Sattar or Taha, either 22 Hani or Atia, telling that the Sheikh has withdrawn his 23 support. 24 MR. PAUL: Your Honor, there's no reference in either 25 of those exhibits of cancellation or withdrawal. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13072 529esat1 1 MS. BAKER: That's not true. 1167X we were just 2 looking at it does use a form of the word withdrawal. 3 MR. PAUL: A form? 4 MS. BAKER: Yes. Mr. Barkow is going to read the 5 relevant part. The print is too small for me to be able to 6 make it out. 7 MR. BARKOW: Your Honor, on or about pages 8 and 9 of 8 1167X, Taha states, even when the Sheikh's word was out, when 9 he said we continue and so, and that he withdrew his support of 10 the initiative, the inside people like Muntasir and others 11 stopped him. 12 MR. PAUL: Your Honor, objection still stands not to 13 highlight any exhibit they receive. I think the appropriate 14 response is just like you handled the other response of the 15 specific date that they referred to, September 20, 1999, 16 request on one of the notes previously submitted that they 17 have, in fact, received any exhibits in response to that. I 18 think that would be the appropriate reply. 19 THE COURT: I agree that I should give them the 20 exhibits without characterizing them. And so in response to 21 this note, I would say, you have received all the exhibits on 22 the question you raised with respect to the, quote, either 23 Sattar or Taha, either Hani or Atia, telling that the Sheikh 24 has withdrawn his support, unquote. 25 MR. PAUL: That's fine with us, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13073 529esat1 1 THE COURT: And they have 1157, 1170, right? 2 MS. BAKER: Yes, your Honor. 3 THE COURT: Next. 4 MS. BAKER: I've just handed defense counsel the 5 limiting instructions which apply to Government Exhibits 2044T, 6 2052, 2067 and 2068. Your Honor, these are the trial 7 transcript pages which both parties have inspected. I'm 8 handing them up to Mr. Fletcher. 9 Your Honor, as to the jury's last note which was 10 marked as Court Exhibit 151, we are going to inquire whether it 11 would be possible, whether we have the equipment to provide the 12 jury with a TV and DVD player so that they could watch those 13 DVDs on their own, if that would be acceptable to the Court. 14 Those are fully redacted. There's nothing in those that would 15 be inappropriate for the jury to see on their own. 16 MS. SHELLOW-LAVINE: Your Honor, if I could consult 17 with Ms. Baker on the limiting instructions. 18 THE COURT: Sure. The first paragraph of the note 19 would say, in response to your request we are providing 20 transcript pages 9861, 9862, 9865, 9870 and 9871 which contain 21 portions of Mr. Yousry's testimony. We did not provide those 22 pages before because they were not contained in the original 23 request. 24 Satisfactory? 25 MR. RUHNKE: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13074 529esat1 1 MS. SHELLOW-LAVINE: Yes, your Honor. 2 MS. BAKER: Yes, your Honor. 3 THE COURT: Do you have the limiting instructions yet 4 or no? 5 MS. BAKER: We're just conferring about it. 6 (Pause) 7 MS. BAKER: All right. We have reached agreement 8 about it. All four of the exhibits that are subject to this 9 limiting instruction are exhibits that were seized in the 10 search of Mr. Sattar's residence. As they came in at the 11 trial, 2044T was presented to the jury at one point, and 2052, 12 2067 and 2068 were presented at a different point. 13 So the way it happened, the Court actually gave an 14 instruction at one point about 2044T and then one instruction 15 at a different point that applied to all three of 2052, 2067 16 and 2068. But those two different instructions given at two 17 different points had the same substance to them. 18 So we've agreed, the parties have all agreed to just 19 use the instruction that the Court gave at the later point in 20 time. And that's what I have written out here and I'm handing 21 out. 22 THE COURT: 2663 is not subject to any limiting 23 instruction? 24 MS. SHELLOW-LAVINE: That's correct, your Honor. 25 MS. BAKER: Yes, that's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13075 529esat1 1 MS. SHELLOW-LAVINE: Your Honor, defense counsel have 2 inspected the exhibits. I'll tender them to Mr. Fletcher. 3 THE COURT: What are the parties' positions with 4 respect to sending in the DVDs and a TV? 5 MR. RUHNKE: Your Honor, we are opposed to sending a 6 DVD player back to the jury. These are primarily Arabic 7 conversations. They have, I believe, the transcripts of the 8 translations in the jury room. 9 THE COURT: Only the first. 10 MR. RUHNKE: Pardon me? 11 THE COURT: Only 1710, not 1711. 12 MR. RUHNKE: Which is further reason not to send back 13 primarily Arabic DVDs for the jury to try to do whatever they 14 could do with them back in the jury room. 15 I also envision them having technical difficulties and 16 a host of problems associated with it. And I think if they 17 want to see these, they should see them in the courtroom 18 setting where the transcripts can be displayed simultaneously 19 for them with the video. 20 So we object to sending a DVD player back into the 21 jury room. We don't have any idea how big a DVD player, and is 22 it a television set that's also capable of receiving news 23 channels or anything of that nature. But assuming that that 24 doesn't pose an issue, we object to sending back the DVD 25 player. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13076 529esat1 1 THE COURT: Can the -- the DVDs can be queued up, 2 right, to any particular portion? 3 MS. BAKER: Your Honor, my recollection of the way 4 DVDs work is that there are essentially tracks on the DVD, and 5 these would work just like any DVD that one might watch on 6 one's home DVD player. So there are tracks and you can skip 7 from the beginning of one track to the next using a certain 8 function. And then within any one track you can fast forward. 9 But there is also the issue of there are large 10 portions that are in Arabic which, you know, the jury would 11 have to figure out how to get to the part they want by getting 12 through the Arabic. Obviously any parts that are in English 13 would be obviously recognizable to the jury, and that is 14 presumably why they would want to watch and listen in the first 15 place. So they would be able to find those portions. 16 MR. RUHNKE: I think with the technical questions, 17 yes, it is possible to queue up to individual segments once 18 they're identified, by time you just go across the bottom of 19 the screen and pick the time you want to start at. 20 THE COURT: Given the length, it seems to me that the 21 most appropriate response would be to tell them that in 22 response to their request for the 1710 and 1711, these are 23 recordings. We will call them back to the courtroom to listen 24 to the recordings and with the transcripts before them. If 25 there is any -- if they wish to be more specific about any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13077 529esat1 1 portion or portions of the recordings that they wish to hear, 2 they can specify for us. 3 MR. RUHNKE: We agree, your Honor. 4 THE COURT: Could I see the note. 5 MS. BAKER: Your Honor, we disagree with defense 6 counsel and would ask the Court to send the jury the DVDs with 7 a DVD player. It may be that they wish to look at various 8 scattered portions of the different disks or watch certain 9 parts more than once. 10 I assume that most jurors are familiar with the 11 capabilities of the DVD from using DVDs and DVD players in 12 their everyday lives. And so as I said, they may wish to look 13 at particular things repeatedly or skip over things, and that 14 is something that they could best do on their own. 15 And in other cases it is a common practice in this 16 courthouse for recordings to be sent in to the jury for them to 17 play for themselves in the jury room. We haven't been able to 18 do that in this case with respect to the audio recordings 19 because those can only be played by a laptop computer with 20 special software. So it just wasn't feasible to do that for 21 them. 22 But here, where there is a free-standing TV connected 23 to a DVD player so it is technologically possible, we believe 24 that that would be the best way to accommodate the exact and 25 very specific request that the jury has made, just as the Court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13078 529esat1 1 has tried to do that with respect to other requests that they 2 have made in this case. 3 THE COURT: Mr. Ruhnke? 4 MR. RUHNKE: Your Honor, I think our position remains 5 the same. Some jurors may have -- I don't know if there are 6 jurors who in their everyday lives are used to queuing up 7 videos of this nature, CD videos of this nature. I just think 8 it's going to create more difficulties than it would solve. 9 MS. BAKER: Your Honor, also, if the jurors wish to 10 view a certain portion then immediately discuss that, obviously 11 they're not able to do that if they're sitting here in the 12 courtroom watching the whole, you know, four DVDs, each in 13 their entirety; whereas if they're in the privacy of the jury 14 room, they can make use of the DVDs in any manner that they 15 choose in the course of deliberating, including by watching a 16 portion and then immediately pausing and discussing it. 17 MR. TIGAR: Your Honor, the previous time that the 18 jurors wanted to see something from a prison visit we brought 19 them in. They said they might want to hear it twice. 20 Apparently they didn't. They were satisfied. It worked. When 21 they saw it, they saw it under the same conditions that it was 22 received in evidence in the first place. 23 We're now told that technologically the government's 24 exhibits with respect to prison visits adventitiously can now 25 be taken directly into the jury room, whereas there's this DVD SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13079 529esat1 1 player available, whereas none of the audio files could not 2 because of some of the technology chosen. In the beginning of 3 some other trial it would be interesting for the parties to sit 4 down and discuss together a way to start the trial and have all 5 the evidence done in a way that could all be sent to the jury 6 room; but that was not done here. 7 MS. BAKER: Your Honor, the two situations are 8 distinguishable. The jury previously identified a very 9 specific portion, which very specific portion had been played 10 for them in the government's summation. And so they knew how 11 to describe that portion very specifically. And it was a 12 portion that began with some communication in Arabic, so it was 13 a portion that the jury would not have been able to queue up 14 for themselves in the jury room. 15 So it was appropriate in light of the nature of that 16 request for them to be brought into the courtroom and have it 17 queued up to the right spot and play it for them here. And the 18 portion was only about a minute long. Here they have asked for 19 hours' worth of recordings, and we think it's a very different 20 circumstance and that it's thus appropriate to handle it in a 21 different manner. 22 MR. TIGAR: Your Honor, they've asked for whole 23 transcripts. We don't know what part they want to hear. We 24 have no idea what the jurors want out of this. And so it's 25 very little burden for them to say, play us the part that is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13080 529esat1 1 reflected in here. Play us the part reflected to there. I 2 just -- I don't see the difference myself. 3 THE COURT: Well, then, based on that comment I should 4 also offer them the transcript 1711 so that they can be more 5 specific. 6 MR. TIGAR: That's right, your Honor. I mean, I think 7 that -- I had assumed that if we'd already consented to 1710 8 going in, I could hardly say they shouldn't have 1711. 9 THE COURT: Government agree? 10 MS. BAKER: Your Honor, we have no objection to the 11 jury being given 1711, although if there's something that they 12 wish to see so that they can observe the demeanor, or the 13 interaction or the nonverbal gestures going on, providing them 14 with the transcript is not going to satisfy that request. 15 THE COURT: I know. That, I know. 16 MS. BAKER: Also, I mean, there is the issue -- the 17 jury in another note just now tried to get evidence provided to 18 them or identified to them by describing it. And the Court has 19 declined the government's request to tell the jury which 20 exhibits are responsive to their description, exhibits that the 21 jury already has, but now -- and that was based on defense 22 counsel's position. 23 THE COURT: Oh, please. 24 MS. BAKER: And now defense counsel is proposing that 25 the jury should be forced to give a description of a portion of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13081 529esat1 1 the visit, and then the parties will determine which portion is 2 responsive to their description for the purpose of playing it 3 in the courtroom. 4 So it seems to me that those two positions are 5 inherently contradictory and that there should be a consistent 6 manner of addressing the jury's requests. I mean, they have 7 requested entire recordings. And they should be given those 8 recordings to make use of them as they choose, where it is 9 possible to do that for them as it is here; or conversely, in 10 response to their other request, for the reasons that I argued 11 earlier, including that they have dozens of exhibits in there 12 with them and that we would be sending them 1167X and 1170X if 13 they didn't already have them, that those exhibits should be 14 identified to them as being responsive to their request. 15 THE COURT: The parties are really mixing things that 16 are not the same. 17 Taking it from the top, Mr. Ruhnke's suggestions are 18 the most reasonable. I am confident that the case law would 19 say that it's a matter of discretion for the Court as to how to 20 deal with recordings, whether to call the jury back or to 21 attempt to send technology into the jury room, it used to be 22 but no longer is the case that the jury would have to be 23 brought in even to listen to testimony. And the common 24 response to the jury would be, could you be a little more 25 specific about what portions you would like to hear before SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13082 529esat1 1 bringing the jury back in. 2 It is simply not the case that it's -- with respect to 3 the recordings, that it's the common experience as to how to 4 use a DVD player, how to queue it up and where to find things 5 on the DVD. And I'm sure not going to poll the jury to find 6 out what their experience is with respect to using DVDs and 7 queuing up DVDs to find specific portions that they wish to 8 hear. 9 Combined with the fact that I would be exceedingly 10 careful before -- with the number of recordings in the case to 11 make sure that the DVDs that are at issue are complete, nothing 12 else on them, nothing like that, all of which is resolved by 13 having the jurors come into the courtroom. 14 It is not uncommon to have jurors come back to listen 15 to a recording. And the way in which I'm handling this, 16 particularly asking them to specify a little more what they're 17 looking for, is commonly done and responsive to their request. 18 And it's just not conceivable to me that a connection can be 19 drawn between responding to this note in this way and a 20 suggestion that the way in which to respond to the other note 21 would be to say not that you've been provided with the exhibits 22 but to attempt to direct their attention. 23 I respond to the jury notes in the way in which they 24 come to me, in the way in which I think is the responsive and 25 fair way to deal with each of the notes. If the jurors wish to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13083 529esat1 1 follow up in some way and want something different with respect 2 to this response, I'll of course attempt to accommodate the 3 jurors. 4 And the parties are welcome to research the law as to 5 the requirements of sending DVD players and DVDs into the jury 6 room. The transcript of -- is 1710X. 7 MS. BAKER: 1710X corresponds to the DVDs 1710CX1 and 8 1710CX2. The transcript 1711X corresponds to the DVDs 1711CX1 9 and 1711CX2. 10 THE COURT: And they have 1710X but not 1711X? 11 MS. BAKER: Correct. 12 Your Honor, if the Court is going to be providing the 13 jury with 1711X, we would ask that the Court, consistent with 14 what has been done when they've been given other prison visit 15 transcripts, tell the jury that the portions contained in 16 Government Exhibit 1711X resulted from negotiations between the 17 parties and include portions that the government believes are 18 relevant to issues in the case as well as portions that the 19 defendants believe are relevant to issues in the case. 20 MR. RUHNKE: That's acceptable, your Honor. 21 MS. SHELLOW-LAVINE: That's acceptable, your Honor. 22 (Pause) 23 THE COURT: Here is the proposed note. Parties are 24 welcome to inspect. 25 Members of the jury, in response to your request, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13084 529esat1 1 are providing transcript pages 9861, 9862, 9865, 9870 and 9871, 2 which contain portions of Mr. Yousry's testimony. We did not 3 provide those pages before because they were not contained in 4 the original request. 5 In response to your request for additional exhibits, 6 we are providing those exhibits as explained below. We have 7 previously provided Government Exhibit 2663, but we are 8 providing an additional copy of that exhibit. We are providing 9 Government Exhibits 2044T, Government Exhibit 2052, GX2067 and 10 GX2068. 11 These exhibits are subject to the following limiting 12 instruction: These exhibits were obtained in the course of a 13 search of Mr. Sattar's residence. They were offered solely 14 against Mr. Sattar and solely with respect to his knowledge, 15 intent and state of mind. 16 I had given you an instruction on newspaper articles, 17 and you are to apply it. 18 There is a translation of 508. Please advise which 19 piece or pieces you wish to see. 20 We are providing you MY1006CT as you requested. This 21 is subject to the same limiting instructions as MY1004CT, which 22 we previously provided to you. It is contained in pages 23 9081-9082 of the trial transcript, which we previously provided 24 to you, and you should apply that instruction to MY1006CT. 25 You have received all the exhibits on the question you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13085 529esat1 1 raised with respect to, quote, either Sattar or Taha, either 2 Hani or Atia, telling that Sheikh has withdrawn his support, 3 unquote. 4 With respect to your request for 1710CX1, 1710CX2, 5 1711CX1 and 1711CX2, these are recordings. You have 1710X, 6 which is the transcript that corresponds to the recordings, 7 1710CX1 and 1710CX2. We are also providing you 1711X, which is 8 the transcript that corresponds to 1711CX1 and 1711CX2. 9 The portions contained in 1711X resulted from 10 negotiations between the parties and include portions that the 11 government believes are relevant to issues in the case, as well 12 as portions that the defendants believe are relevant to issues 13 in the case. 14 We will call you back to the courtroom to listen to 15 1710CX1, 1710CX2, 1711CX1 and 1711CX2 with the transcripts. 16 However, if there are only portions of those recordings that 17 you wish to hear, could you be more specific as to which 18 portions you wish to hear. 19 I have to rewrite the last page, but while I'm doing 20 that, is that satisfactory? 21 MS. SHELLOW-LAVINE: It is, your Honor. 22 THE COURT: Government? 23 MS. BAKER: Your Honor, the government has already 24 stated its objections. 25 THE COURT: Okay. But other than those, I mean. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13086 529esat1 1 MS. BAKER: Given the Court's rulings on the 2 objections, we believe that the Court's note implements the 3 rulings that the Court made. We don't want to be taken as 4 waiving our objections. 5 Your Honor, perhaps instead of saying that we will 6 call them back to the courtroom to listen to the recordings, it 7 might be more appropriate, since some time has passed since 8 they sent the note and they may have moved on to something 9 else, it may be more appropriate to ask them to indicate when 10 they'd like to come to the courtroom to listen. 11 THE COURT: Okay. 12 MS. SHELLOW-LAVINE: We agree, your Honor. 13 THE COURT: Please tell us when you wish to come back 14 to the courtroom to listen. Okay. 15 MS. BAKER: Your Honor, defense counsel just handed 16 back Government Exhibit 1711X. And I'm handing it to 17 Mr. Fletcher. 18 (Pause) 19 THE COURT: All right. The Court's note is Court 20 Exhibit 152. We'll staple it. The parties should inspect it 21 and inspect the exhibits that go along with it. 22 MS. SHELLOW-LAVINE: Your Honor, we have inspected the 23 exhibits, I believe. 24 MS. BAKER: Your Honor, the government doesn't need to 25 inspect the exhibits again. I don't know whether defense SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13087 529esat1 1 counsel wishes to, but they're up on the Court's desk. 2 MR. RUHNKE: Your Honor, we've inspected the Court's 3 note, Court Exhibit 152. It's fine with us. Or 157 -- 152. 4 THE COURT: There were two piles of exhibits up here. 5 Could the parties just double check to make sure that all of 6 these are the exhibits to go in and that they're in the order 7 in the note. 8 MR. RUHNKE: Yes, your Honor. 9 Your Honor, we've now looked at the exhibits and 10 they're ready to go. 11 THE COURT: All right. The note and the exhibits are 12 given to the marshal. 13 All right. Anything else? See you later. 14 (Recess pending verdict) 15 (A note was received at 12:47 p.m.) 16 THE COURT: I have a note marked Court Exhibit 153, 17 9 February, '05. 18 Judge Koeltl, 1730, 1054X, LS406, GX2671, possibly 19 GX2671T, question mark. Transcripts for Thursday November 4, 20 2004, for the whole day. Number 329. 21 Parties are welcome to inspect. 22 MR. TIGAR: Your Honor, while the parties are looking 23 for those, I'd like to hand up to the Court and ask it be 24 marked as a court exhibit a piece of paper in which I stuck 25 three stickers that were in a phone booth just across the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13088 529esat1 1 street from the courthouse; more from the JDO with a specific 2 reference to the Trade Center. 3 We'd ask that be marked next in order. I'm not asking 4 for any action to be taken at this time. I have provided a 5 copy to Mr. Donnelly, who has made a copy for his purposes. 6 MS. BAKER: Your Honor, the government has not 7 received a copy, and we would ask that we be provided with one. 8 THE COURT: Well, before I take it, let me give it to 9 the government. 10 MR. TIGAR: That's the only copy I have. We'll have 11 to make a copy. 12 MS. BAKER: Your Honor, we have reviewed it and they 13 say the same thing as the fliers that Mr. Tigar presented to 14 the court yesterday. So we have no objection to the Court 15 having it, even though we don't have a photocopy of it. 16 THE COURT: Well, what's the next -- 17 MR. TIGAR: They speak to themselves. 18 THE COURT: It will be marked as Court Exhibit 154. 19 (Pause) 20 MR. TIGAR: Your Honor, may I be excused to get LS406. 21 THE COURT: Yes. Before you go, though, Mr. Fletcher 22 will make a copy of this so that the government also has a 23 copy. And you say you've provided a copy to the marshal? 24 MR. TIGAR: I have. And Mr. Donnelly is as we speak 25 dealing with the situation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13089 529esat1 1 THE COURT: Okay. 2 MR. TIGAR: I didn't make copies before tendering it 3 to the Court because I wanted to bring the matter to the 4 Court's attention just as soon as possible. 5 THE COURT: Okay. Thank you. We'll make a copy so 6 that the government has a copy also. 7 And, as you say, the marshal has been advised, and the 8 marshal knows the marshal's responsibilities in terms of 9 protecting the jurors. 10 A MARSHAL: Absolutely, your Honor. 11 THE COURT: And I've already indicated that the 12 government should be provided with a copy of this also. Yes? 13 MR. TIGAR: May I be excused? 14 THE COURT: No. And you're not asking for anything 15 else? 16 MR. TIGAR: That is correct, your Honor. We're not 17 asking for anything else at this time. 18 Now I see another note is coming in. I'll wait. 19 THE COURT: I'm told that the jury is also -- has 20 lunch, but I'd like to respond to the jury notes but -- I'll 21 read the note and then you can leave to get LS406. 22 (A note was received at 12:53 p.m.) 23 THE COURT: Court Exhibit 155, 9 February 05, Judge 24 Koeltl, may we have the full transcript of Monday, November 8, 25 2004. Signed by number 329. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13090 529esat1 1 Parties are welcome to inspect. Okay. 2 (Pause) 3 MS. BAKER: Your Honor, as to the exhibits requested 4 in Court Exhibit 153, Government Exhibit 17 -- 5 THE COURT: Could I just ask a moment. 6 Ms. Shellow-Lavine, it's okay to provide without 7 Mr. Tigar on this? 8 MS. SHELLOW-LAVINE: So far it is, your Honor. 9 THE COURT: All right. Go ahead, Ms. Baker. 10 MS. BAKER: Government Exhibit 1730 -- 11 THE COURT: I'm sorry. I just noticed Mr. Ruhnke is 12 not here. 13 MR. RUHNKE: I'm here. I'm standing right here. 14 THE COURT: Sorry, other than in your usual place. 15 Okay. 16 MS. BAKER: Government Exhibit 1730 is a CD that 17 contains four audio files of prison calls. And each audio file 18 has its own exhibit number. So I guess the jury should be 19 advised of the fact that 1730 is the CD of audio files and that 20 if they wish to hear any of the recordings, they should let us 21 know. Specifically it's the recordings of prison calls. 22 THE COURT: Recordings of, I'm sorry? 23 MS. BAKER: Prison calls. 24 MS. SHELLOW-LAVINE: Your Honor, we would suggest that 25 the note say that it is a CD of recordings and then ask them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13091 529esat1 1 what recordings they want to hear. 2 MS. BAKER: Your Honor, there are limiting 3 instructions for two of the exhibits. Does the Court need me 4 to write them out? 5 THE COURT: I think it will be okay if you just read 6 them, if you like. LiveNote is working. 7 MS. BAKER: Government Exhibit 1054X is not subject to 8 any limiting instruction and is available to be given to the 9 jury. 10 Exhibit LS406 is subject to a limiting instruction in 11 which the Court stated, this is a newspaper article. It's not 12 being received for the truth of any of the statements in the 13 article. I've given you instructions about newspaper articles 14 before. The article is received for any relevance to the 15 knowledge, intent and state of mind of Ms. Stewart. 16 And then Government Exhibit 2671 is subject to an 17 instruction in which the Court stated -- this is also a 18 newspaper article, and it is subject to the same instruction 19 that it is not received for the truth of any of the matters 20 asserted, but solely with respect to the knowledge, intent and 21 state of mind of Ms. Stewart. 22 There is no Exhibit 2671T. 2671 itself are -- is a 23 set of handwritten notes in English, but the notes do relate to 24 an article from Al-Hayat. So that might be why the jury 25 thought there might be a translation, but 2671 itself is in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13092 529esat1 1 English and there is no corresponding T exhibit. 2 As to the two days of trial transcript that the jury 3 has requested in their two notes, those are both days of 4 testimony of Ms. Stewart, I believe. And counsel will need to 5 work together to review them and make any necessary redactions, 6 so that will obviously take a little while. 7 Do the parties still have the note? 8 MS. SHELLOW-LAVINE: Yes, your Honor, we have the 9 note -- I have the note. 10 (Pause) 11 THE COURT: All right. I drafted a response to the 12 jury. It will be Court Exhibit 156. 13 Members of the jury, GX1730 is a CD containing four 14 audio files. We will bring you back to the courtroom to listen 15 to the CD when you advise us you are ready to listen to it. 16 Please let us know if you wish to hear all or only one or more 17 of the recordings, and if fewer than all, which you wish to 18 hear. 19 We are providing GX1054X as you requested. 20 We are providing LS406 as you requested. 21 It is subject to the following limiting instruction: 22 This is a newspaper article. It is not being received for the 23 truth of any of the statements in the article. I've given you 24 instructions about newspaper articles before. The article is 25 received for any relevance to the knowledge, intent and state SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13093 529esat1 1 of mind of Ms. Stewart. 2 We are providing GX2671. GX2671 is subject to the 3 following limiting instruction: This is a newspaper article 4 and it is subject to the same instruction that it is not 5 received for the truth of any of the matters asserted but 6 solely with respect to the knowledge, intent and state of mind 7 of Ms. Stewart. 8 There is no Exhibit GX2671T. 9 You have asked for two days of the transcript. We 10 will provide those transcripts to you after we have retrieved 11 them. 12 I've signed that. In describing the limiting 13 instruction for GX2671X, I didn't include the "also," and this 14 is also a newspaper article. It didn't seem to go with that 15 instruction, just that exhibit. 16 All right. Is that note satisfactory? 17 MS. SHELLOW-LAVINE: Yes, your Honor. 18 MS. BAKER: Your Honor, in accordance with the jury's 19 prior request, is the Court going to provide the jury with 20 copies of these notes that the jury has been sending out in 21 which it has been requesting evidence? 22 THE COURT: Yes, we will. And I'll just wait for 23 Mr. Fletcher to be able to do that and hopefully get it done by 24 later this afternoon and send a note to them that indicates 25 that we're providing them the notes that they requested. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13094 529esat1 1 MS. SHELLOW-LAVINE: Defense counsel have reviewed the 2 Court's note, your Honor. I'm tendering it to Mr. Fletcher. 3 We've also reviewed the exhibits. They're also going 4 to Mr. Fletcher. 5 THE COURT: All right. Notes are -- and the attached 6 exhibits have been inspected, and Mr. Fletcher will give them 7 to the marshal to be taken in to the jury. 8 And the jury has their lunch, so we'll hold notes 9 until 2:30. 10 Let me talk to the lawyers in the robing room for a 11 moment. 12 (Pages 13095 sealed by order of the Court) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13096 529esat1 1 AFTERNOON SESSION 2 3:02 p.m. 3 (A note was received at 3:02 p.m.) 4 (In open court; jury not present) 5 THE COURT: I have a note from jurors. It indicates 6 that one juror, who's listed, wants to know: Is knowingly or 7 intending conspiracy to kidnap -- not clear -- and/or murder 8 are charges in Count 5. 9 Parties are welcome to inspect the note. 10 MR. RUHNKE: Your Honor, the note isn't as crystal 11 clear as it might be. The way we read it is that the jury, 12 juror, is asking whether the conspiracy charged in Count 5 is 13 the same conspiracy -- I'm sorry. The conspiracy mentioned in 14 Count 5 is the conspiracy to kidnap and murder that's charged 15 in Count 2. That's how I read -- that's how we read the note. 16 MR. BARKOW: Your Honor, we don't understand, 17 actually, what exactly the note is asking. And although if -- 18 so we would ask that the Court ask for clarification as to what 19 the question is seeking. 20 THE COURT: Could you hand the note back to me for a 21 minute. 22 MR. RUHNKE: Sure, your Honor. 23 THE COURT: What I could do is to explain that you 24 have asked a question about Count 5. I have set out the 25 elements of Count 5 at page 86 of the jury instructions. It is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13097 529esat1 1 not clear what further clarification you are seeking. If you 2 could be more precise for us, that would be useful. 3 MS. BAKER: Your Honor, we agree with that. 4 MR. RUHNKE: Your Honor, that's I think the right 5 approach, but I think we also need to reference the fact that 6 you've previously answered questions about Count 5 and have 7 provided those answers in court exhibits, whatever they are. 8 Because the universe of what is Count 5 is not limited to what 9 is in your charge, because there have been questions and you 10 have sent in additional instructions. 11 MR. TIGAR: Your Honor, I agree with that and would 12 add that if you're going to refer to your charge, please do 13 refer them to pages 86 through 94, because you do go on from 86 14 to elaborate on the elements. 15 And although I -- and that includes the government's 16 requested aiding and abetting instruction, to which I know we 17 objected, but if we're going to tell the jury where to look, 18 that's a part of the Count 5 instruction. 19 THE COURT: All right. 20 MS. BAKER: Your Honor, we would ask that the Court 21 simply include the latter part of the note that the Court 22 proposed a moment ago instead of referring to pages in the 23 prior jury instructions. The various page ranges that have 24 been noted are not the complete ranges of all pages that relate 25 to Count 5. And we think it's more appropriate under the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13098 529esat1 1 circumstances simply to ask the juror to try to clarify the 2 question, or the jurors. 3 MR. RUHNKE: As an alternative to that, your Honor, I 4 think we did identify the universe of pages in the note your 5 Honor sent to the jury a week ago Monday in response to 6 specific questions about Count 5 and its relationship to the 7 Count 2 conspiracy. Your Honor answered the jurors' particular 8 questions and then, as I recall, at the end of the note said, 9 you should also refer to my instructions. And that was an 10 amalgamation of government suggestions and defense suggestions 11 that covered, as I said, the universe of what is Count 5. 12 So by reference to that, I think we would be able to 13 at least direct the juror, in addition to requesting any 14 additional clarification, to the source of all instructions on 15 that issue. 16 MS. BAKER: Your Honor, we object to the jurors being 17 referred back to the Court's previous notes. The Court has 18 declined in other contexts to refer the jury back specifically 19 to other items already in their possession. 20 The juror obviously, the one who has this question, 21 has been present all along. She has access to everything that 22 the jury already has. It's very unclear what information is 23 being sought by this note and, therefore, we think that the 24 most appropriate response is to simply seek additional 25 clarification. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13099 529esat1 1 MR. TIGAR: Your Honor, Mr. Ruhnke was referring to 2 the note that went in I believe on the 31st of January, on or 3 about, that was a two-page typewritten response. And it is the 4 note that began, I'm providing you Exhibits 1105X, and then you 5 reply. And in the last paragraph you do indeed direct the 6 jurors. 7 Since they already have that in there in response to a 8 question, it seems helpful to point them to it. We're trying 9 to find the court exhibit number. 10 MS. BAKER: As Court I'm sure will recall, there was a 11 fair amount of argument previously about what the Court would 12 say to the jury in response to its previous notes asking 13 questions about Count 5. And the government had some 14 objections or issues, which the Court overruled, and 15 particularly in light of that fact we object to the jurors 16 being directed back to those notes in response to a different 17 question that may not be addressed at all by what's in those 18 notes. 19 THE COURT: All right. 20 (Pause) 21 THE COURT: All right. It's sufficient to ask the 22 jury to be a little more specific for us as to what they're 23 seeking because the note is unclear and the parties can't agree 24 to what I should otherwise direct them to. It would be unclear 25 what of the universe that's there would be responsive to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13100 529esat1 1 note. 2 So I've drafted a note to the jury. It reads: 3 Members of the jury, you have asked a question about Count 5. 4 It is unclear what clarification you are seeking. If you could 5 be more precise for us, that would be useful. 6 Parties are welcome to inspect. That will be Court 7 Exhibit 159. 8 Does anyone want to be heard further on the note? Is 9 that satisfactory? 10 MS. BAKER: It is with the government, your Honor. 11 MR. RUHNKE: We've made our objection that it should 12 be more directed. And there's concern that the note is 13 obviously written by somebody whose perhaps command of written 14 language is not as strong as other people's are. And a note 15 coming back saying, please clarify, without directing the 16 jurors to other instructions your Honor has previously 17 provided, might discourage the juror from seeking further 18 clarification. 19 THE COURT: Well, that's a fair point. I'll add, 20 but -- I'll just add the elements of the offense, then, which 21 are set out at page 86 of the instruction. 22 MR. RUHNKE: That's a better choice, your Honor, we 23 think. Thank you. 24 MS. BAKER: Your Honor, the problem with doing that 25 is, as the Court originally instructed the jury, there are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13101 529esat1 1 three alternative independent bases for the Court -- for the 2 jury to find guilt on Count 5. And that is direct liability, 3 which are the elements set forth the first time around; or 4 aiding and abetting liability, which is discussed later; or 5 liability under a Pinkerton theory, which is discussed still 6 later. 7 THE COURT: How about beginning at page 86? I am 8 attentive to Mr. Ruhnke's point. Ms. Baker? 9 MS. BAKER: If I might just have a minute, your Honor. 10 (Pause) 11 MS. BAKER: Your Honor, we would ask you to leave the 12 note as it is currently written. Every prior time the jury has 13 made a request that's been unclear, whether it's for exhibits 14 or whatever, the Court has sent back a note asking for 15 clarification. On some instances the jury has responded with 16 another note providing greater information, and in some 17 instances the jury has chosen not to. 18 So proceeding in a manner that the Court has already 19 proposed is consistent with prior practice. And we don't 20 believe that it provides any greater clarification, is any more 21 encouraging or any less discouraging, to put it the opposite 22 way, to simply refer the jury to the Court's instructions which 23 each of the jurors already has a copy of and has had a copy of 24 since they first started their deliberations. 25 So we don't think the proposed change to the note SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13102 529esat1 1 addresses the issue that Mr. Ruhnke has raised, nor do we think 2 that that's really an issue because, as I said, proceeding in 3 the manner that the Court has already written down is 4 consistent with what the Court has done on each prior instance. 5 MR. RUHNKE: Your Honor, we'd ask you to do what you 6 had suggested as a compromise between the two positions. Even 7 the way that note is structured, it doesn't come from, 8 quote/unquote, the jury. It's set up in a way -- it says, this 9 juror wants to know the answer to this question, and is left at 10 that. 11 And I think something that reflects a reference to 12 instructions or shows that the note was received and considered 13 is appropriate, something more than what the government wants 14 to do. 15 MS. BAKER: Your Honor, the Court -- as you have the 16 note drafted already, it addresses the jury as a whole. That 17 is consistent with the Court's prior practice on every occasion 18 in every note that the Court has sent. And whenever the jury 19 sends out a note making a request, it is conceivable that any 20 request is motivated by the desire of a single juror, even 21 though the particular note may not indicate that fact. 22 When a piece of evidence goes in, it may be because a 23 single juror is interested in seeing that piece of evidence. 24 And so we don't believe that the fact that this -- that the 25 jury's note indicates that the question originated with a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13103 529esat1 1 particular juror is any reason to treat this note differently 2 from the way the Court has responded to all the prior notes. 3 THE COURT: Could you pass the note back up, please. 4 MS. BAKER: Your Honor, just a very technical matter. 5 Perhaps there's something missing from LiveNote, but as I read 6 LiveNote right now, it does not indicate the court exhibit 7 number that was assigned to the jury's note that we are now 8 discussing responding to. 9 THE COURT: The jury note was Court Exhibit 158. And 10 my response would be Court Exhibit 159. 11 You know, in responding to jury notes, I attempt to be 12 responsive, fair, consistent. When I originally explained 13 my -- what response I would give, I said, what I could do is to 14 explain that you have asked a question about Count 5. I will 15 set out the elements of Count 5 at page 86 of the jury 16 instructions. It is not clear what further clarification you 17 are seeking. If you could be more precise, that would be 18 useful. 19 The government: Your Honor, we agree with that. 20 It was only then, after all of the parties began 21 wanting the Court to direct the jury to other things that might 22 be useful to them in some way but was not really attempting to 23 be fair and responsive to this jury note, that we went down the 24 road. 25 The reason that I had initially wanted to include some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13104 529esat1 1 reference to the charge was to be responsive to the note and to 2 attempt to find out what clarification, or to understand what 3 clarification was being sought. And after listening to all of 4 the parties and all of the suggestions, I go back to about 5 where I was at the beginning, which the government initially 6 thought was agreeable. 7 MS. BAKER: Your Honor, that was my fault for speaking 8 before I had looked back at your Honor's jury instructions that 9 you gave the jury. Although it is true that page 86 lists 10 elements of Count 5, as I said later, a few minutes ago, that 11 does not take into consideration the fact that there are two 12 other alternative independent theories of liability on Count 5. 13 And those are not reflected in any way at page 86. 14 THE COURT: Right. But the defendants had then said, 15 if you want to include all of those pages, they would include 16 those pages, too. 17 Another way of doing it would be, I have discussed 18 Count 5 beginning at page 86 of the jury instructions. 19 MS. BAKER: Your Honor, that would be fine with us, 20 although actually the discussion of Count 5 begins at page 84, 21 which is when the Court describes the charges in the indictment 22 and the statute. 23 THE COURT: Well, that's fair. So the note would then 24 read, you have asked the question about Count 5. I have 25 discussed Count 5 beginning at page 84 of the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13105 529esat1 1 instructions. It is unclear what further clarification you are 2 seeking. If you could be more precise for us, that would be 3 useful. 4 Now, is that satisfactory? 5 MS. BAKER: Yes, your Honor. 6 MR. RUHNKE: Again, it has been and remains our 7 position that your Honor should direct them to the -- 8 specifically to the January 31 response that you sent in to the 9 jury. We will maintain that position, although I think it's a 10 better response than just simply to say clarify. 11 THE COURT: Okay. 12 (Pause) 13 (A note was received at 3:36 p.m.) 14 THE COURT: There is another note, Court Exhibit 160. 15 It says, Judge Koeltl, the jury will adjourn at 4:15. Number 16 329. 17 MS. SHELLOW-LAVINE: Your Honor, Ms. Baker and I have 18 reviewed the two transcripts that were requested by the jury 19 earlier today. And they are ready to go to the jury. We have 20 made the redactions and agreed upon them. I don't know whether 21 you want to add that to the end of the note you're writing and 22 send it in at the same time. 23 THE COURT: Yes. Sure. 24 MS. BAKER: Your Honor, is there any way for it to be 25 made a little less warm in the courtroom. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13106 529esat1 1 THE COURT: Sure. 2 All right. This will be Court Exhibit 159. It reads, 3 members of the jury, you have asked a question about Count 5. 4 I have discussed Count 5 beginning at page 84 of the jury 5 instructions. It is unclear what further clarification you are 6 seeking. If you could be more precise for us, that would be 7 useful. 8 We are also providing to you the two days of 9 transcripts that you previously requested. 10 The parties are welcome to inspect that note and 11 please confirm that you've agreed to the transcripts. 12 MS. BAKER: Your Honor, the two days of redacted trial 13 transcript, that is, November 4th and November 8th of 2004, 14 which have been reviewed by Ms. Stewart's counsel and by the 15 government -- did anyone else want to review them? -- are in 16 this binder that I'm now handing up to Mr. Fletcher. Copies 17 have been provided to Ms. Stewart's counsel for them to keep. 18 MS. SHELLOW-LAVINE: Defense counsel have reviewed 19 Court Exhibit 159, and I'm handing it to Mr. Fletcher. It is. 20 THE COURT: All right. The parties have inspected the 21 note and the exhibits to go to the jury? Yes? 22 MS. SHELLOW-LAVINE: Yes, your Honor. 23 THE COURT: Marshal will take them to the jury. 24 All right. I'll be back unless there's another note 25 at 10 after 4:00. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13107 529esat1 1 (Recess pending verdict) 2 THE COURT: All right. It's 4:15. So let's call in 3 the jury. 4 (Continued on next page) 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 13108 529esat1 1 (In open court; jury present) 2 THE COURT: Good afternoon, ladies and gentlemen. 3 Good to see you all. 4 Ladies and gentlemen, you indicated that you wished to 5 adjourn at 4:15 and so I called you in, and of course you can 6 adjourn now. 7 Please remember to follow all of my continuing 8 instructions. Please, don't talk about the case at all after 9 you leave the jury box. Don't talk about the case when you're 10 leaving now or in the vans, or don't talk about the case with 11 anyone when you go home. Don't talk about the case when you 12 come back tomorrow in the vans. Don't start talking about it, 13 the case, until all 12 of you are together, ready to 14 deliberate. Then the foreperson will send us a note that 15 you're ready to deliberate and then you can start deliberating. 16 You don't have to come back to the courtroom. 17 Remember, don't look at or listen to anything to do 18 with the case. Please, don't look at or listen to anything to 19 do with the case. If you should see or hear something 20 inadvertently, please, simply turn away. So don't look at or 21 listen to anything to do with the case. 22 Please remember to leave everything in the jury room; 23 exhibits, notes, anything to do with the case, please leave in 24 the jury room. 25 Have a very good evening. I look forward to seeing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13109 529esat1 1 you tomorrow. 2 (Jury excused) 3 THE COURT: All right. Please be here at 9:15 4 tomorrow. Have a good evening. 5 (Adjourned to Thursday, February 10, 2005, at 6 9:15 a.m.) 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