4396 48DJSATC Conference 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 August 13, 2004 8 10::04 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 STERN, 23 DAVID A. RUHNKE, 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4397 48DJSATC Conference 1 (In open court) 2 (Case called) 3 THE COURT: Good morning, all. Please be seated. 4 THE COURT: I have a series of matters. 5 First, since we were here, I believe, I received a 6 letter expressing thanks to the court on behalf of high school 7 students who were in court. The letter also refers to a 8 magazine article which the court also received, with a copy 9 note. I'll give the letters to the parties so that they can 10 inspect them. There is nothing about anything that would 11 affect anything that the court does. 12 I expect to tell the jury on Monday that I have a law 13 clerk, Margo Kaplan, who will be with us through the course of 14 the trial. 15 Second, when we were here last, I made various rulings 16 on Government Exhibits 2014, 2016, 2059 and 2060 A and B, and 17 it occurred to me in retrospect that the one thing that I 18 didn't say in giving my rulings is that since 2059 was being 19 offered as a co-conspirator statement, that should receive an 20 instruction that says the documents are received subject to 21 connection, which means, as I've told you, you can consider 22 them unless I tell you at some point to disregard them. 23 There were four exhibits left from the government 24 letter, asking me to rule on documents from the Sattar search. 25 2039, 2075, 2080 and 04. There has been subsequent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4398 48DJSATC Conference 1 correspondence on 2080 and 2048 and some correspondence, I 2 believe, on 2075 with respect to a stipulation. So let me take 3 2039 and 2075 first and then 2080 and 2048. 4 Government Exhibit 2039 is Sheikh Rahman's expired 5 passport. The government seeks to admit to show Mr. Sattar's 6 close association with Sheikh Abdel Rahman, that he was close 7 enough to have his passport. The passport is relevant for that 8 purpose. 9 Ms. Stewart objects, that the numerous pages showing 10 trips and visas and the like are irrelevant and hearsay and 11 invite speculation. There is, so far as I can tell, no 12 response from the government on the relevance of the subsequent 13 pages in the passport other than the cover and the 14 identification page, and no response on the hearsay issue. 15 The original proffer had, when this was originally 16 being explained in the various exhibits, the reason for the 17 subsequent pages was the trips to Denmark in 1990. I excluded 18 the newspaper clippings, and the government says well, now 19 there can't be any prejudice. On the other hand, I don't see 20 the relevance. 21 MR. BARKOW: Your Honor, we don't seek to admit the 22 internal pages any more because, as your Honor said, with the 23 Denmark issue going away and, in fact, with the speech of Abdel 24 Rahman in Denmark having come in as a speech by him, we don't 25 need that evidence any more. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4399 48DJSATC Conference 1 THE COURT: All right. 2 MR. BARKOW: What we would ask your Honor is 3 sufficient internal pages just to demonstrate that it is a 4 passport. Just so that there is no doubt that it is, in fact, 5 a passport. 6 THE COURT: There is no objection to the cover and the 7 identifying page which, as I looked at the Xerox of the 8 exhibit, is I think the first and second page, the facing pages 9 of the passport, which reveals no visas, no trips, simply whose 10 passport it is. 11 MR. BARKOW: I think that is fine, your Honor. 12 THE COURT: Government Exhibit 2075 and 2075 T, this 13 is a videotape of a speech by Osama Bin Laden and translation. 14 It is plainly relevant to Mr. Sattar's knowledge; and, hence, 15 his state of mind. It is a call for violent jihad against 16 Americans, and it provides numerous alleged motives. It is 17 relevant to his state of mind for Counts 2 and 3. It is not 18 cumulative and its relevance is not outweighed by any danger of 19 unfair prejudice. 20 The government offers a stipulation to which both 21 Mr. Sattar and Mr. Yousry agree, but not Ms. Stewart. The 22 stipulation would say Government Exhibit 2075 is an audiotape 23 of a speech by Osama Bin Laden, in which Bin Laden urges jihad 24 against America, Jews and Christians. 25 MR. TIGAR: In light of the court's ruling that it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4400 48DJSATC Conference 1 relevant and admissible for those purposes, then Ms. Stewart 2 would agree to that stipulation as a substitute for 2075, if 3 the government wishes to maintain the position they outlined. 4 We simply wished to have a ruling to which we take 5 exception, obviously, but having made the record, we would, of 6 course, join with Mr. Sattar's counsel who, after all, is the 7 ones who are going to have to deal with this issue. 8 THE COURT: I think Government Exhibit 2075 is the 9 tape itself. The stipulation is I think a substitute for the 10 translation, so the tape would be in evidence with a 11 stipulation saying what it is, but the jury wouldn't be able to 12 listen or understand the tape. 13 MR. TIGAR: That is my understanding, your Honor. I 14 have reference here to the letter of July 16, 2004 from Mr. 15 Barkow to the parties, making the proposal or informing the 16 court of the status of that. 17 THE COURT: Okay. 18 MR. TIGAR: That is what we are now, in light of what 19 I just said, agreeing to. 20 THE COURT: So Government Exhibit 2075 T will not be 21 in evidence, is not being offered. Government Exhibit 2075 22 will be in evidence, and Government Exhibit 2075 S, which is 23 the stipulation. 24 In addition, I understand from the correspondence that 25 a limiting instruction will be given. The limiting instruction SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4401 48DJSATC Conference 1 is, "The evidence is offered only against Mr. Sattar and as to 2 Counts 2 and 3 of the indictment, and not against Ms. Stewart 3 or Mr. Yousry, and only with respect to Mr. Sattar's knowledge, 4 intent and state of mind." 5 Okay. That takes me to 2080 and 2048. I have read 6 the correspondence, and I am prepared to rule. Government 7 Exhibit 2048 X is an excerpt of a videotape program concerning 8 Muslim fundamentalism, and 2080 is a speech by Omar Abdel 9 Rahman. 10 The excerpt includes a statement by a narrator to the 11 effect that, "On June 9, 1992, two masked men on a motorcycle 12 killed Farraq Foda in a hail of bullets. Police captured one 13 of the assassins, a Muslim fundamentalist. He was following a 14 fatwah, a religious ruling by Sheikh Omar Abdel Rahman." 15 Then there follows a statement Omar Abdel Rahman, 16 saying that Foda deserved to be killed. 17 The government represents in two separate letters to 18 the court that Government Exhibit 2080 is that fatwah. The 19 government asserts that the documents are admissible as 20 "Evidence of Counts 2 arched 3," as evidence of Sattar's 21 knowledge, intent and state of mind and that verbal acts, 22 threats, demands by Abdel Rahman and is evidence of Abdel 23 Rahman's knowledge, intent and state of mind." 24 The defendants object, on the grounds of relevance and 25 403, among other bases. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4402 48DJSATC Conference 1 I will exclude the exhibits. The assassination which 2 allegedly occurred in 1992 is sufficiently remote in time and 3 without sufficient connection to the actual events and 4 statements in the crimes charged in the indictment, such that 5 any relevance is outweighed by the danger of unfair prejudice 6 from admitting alleged evidence of a 7-year old assassination 7 and attempting to hold at least Mr. Sattar responsible for 8 knowledge that the assassination was caused by Omar Abdel 9 Rahman. 10 This conclusion is strengthened by the tenuous nature 11 of the evidence that Omar Abdel Rahman was, in fact, 12 responsible for causing that assassination. The defendants 13 represent that at least 13 others were tried for the 14 assassination and that Omar Abdel Rahman was not. 15 The only evidence proffered by the government is that 16 hearsay statement by the narrator in the television tape. On 17 the tape, Omar Abdel Rahman applauds the assasination 18 after-the-fact. Moreover, while the government repeatedly 19 asserts that Government Exhibit 2080 is the alleged fatwah that 20 allegedly inspired the assassination, it is plain it is not. 21 It is a statement made after the assassination, and at Page 9, 22 Sheikh Rahman allegedly says, "but if one of them is slain, the 23 world will become angry and never quiet down. Such was the 24 reaction to the slaying of this arrogant disputer of the signs 25 of God as apostate." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4403 48DJSATC Conference 1 Plainly, this statement was made after the 2 assassination, not as an incitement to the assassination. On 3 Page 10, the full sentence which is noted in part by the 4 government reads: 5 "This twice apostate does not deserve to be slain only 6 once. Rather, he should be slain, then slain and then slain as 7 punishment for what since he committed." 8 It is plain that these statements are not calls for 9 killing, but after-the-fact comments on a killing that had 10 already occurred. They are not threats and they are not 11 evidence of the charges in Counts 2 and 3. Whatever relevance 12 they have is outweighed by the danger of unfair prejudice; and, 13 therefore, I will exclude the exhibits. 14 That brings me to the second Luxor witness. I have 15 read all of the correspondence related to the second Luxor 16 witness. Again, I'm prepared to rule. I have listened to 17 argument earlier on the second Luxor witness, but not in the 18 context of the full trial record that I have now. 19 Again, I am prepared to rule. I should note initially 20 that the government wants its letter docketed. I take it there 21 are no objections to docketing the government's letter? No 22 objections? So the government's letter will be docketed. 23 That's the August 4, 2004 letter. 24 The government seeks to introduce the testimony of a 25 hotel manager in the Luxor who spoke to the victim of the Luxor SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4404 48DJSATC Conference 1 attack, with the assistance of the interpreter. The manager 2 obtained a leaflet from the victim. The leaflet took 3 responsibility for the attack, "In the name of the battalion of 4 devastation and destruction," and the "Islamic Group in Islamic 5 Egypt" and demanded the release of Abdel Rahman. 6 The testimony of the manager would recount the 7 victim's description in seeing his daughter and son-in-law shot 8 and other atrocities and would also describe the manager's trip 9 to the hospital to see victims and a trip to the morgue to see 10 other victims, as well as the manager's activities in clearing 11 the dead victims' rooms. 12 The motion to admit the testimony is denied, and the 13 motion to exclude is granted. The court has allowed an 14 eyewitness to testify to the Luxor massacre for the reasons 15 already explained, but it is plain at this point that the 16 relevance of this second witness is outweighed by the 17 cumulative nature of the testimony and the danger of unfair 18 prejudice. 19 In particular, the proper description which at this 20 point in the evidence is cumulative to the existence of the 21 massacre and appears to appeal to emotional rather than 22 probative reasons for seeking admission. 23 In addition, the government itself points out that 24 there has been extensive evidence of the existence of the Luxor 25 massacre from the eyewitness as well as from conversations SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4405 48DJSATC Conference 1 involving one or more of the defendants, and there is likely to 2 be more such evidence. 3 The government asserts that this testimony, in a 4 league by itself, are relevant to the charges in the defendant. 5 However, the leavlet itself is hearsay for which the government 6 offers it; in particular, that it is authored by the Islamic 7 Group. Moreover, as the government also indicates, there is 8 evidence from the conversations of one or more of the 9 defendants themselves that indicate that some in the Islamic 10 Group took responsibility for the Luxor attack and that it was 11 carried out to lose Sheikh, lose Sheikh Rahman. 12 This is a case in which the court is able to assess 13 the probative value of the evidence in light of the evidence 14 already admitted and the prospective evidence and to weigh the 15 particular evidence that the proffered witness would add, 16 weighing the factors as set forth in Rule 403, the probative 17 value of the testimony of the the second witness and the 18 leaflet is substantially outweighed by the danger of unfair 19 prejudice. 20 MR. BARKOW: Would the court consider whether this 21 evidence -- I want to make a few points that are directed at 22 this suggestion -- would the court consider permitting the 23 testimony without reference to the trip of the hospital, 24 without reference to the cleaning out of the rooms and even 25 without reference to the content, although we obviously SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4406 48DJSATC Conference 1 disagree, even without reference to the content of the excited 2 utterances and, therefore, for the purpose of getting in the 3 leaflet? 4 If I may just make a few points on that? 5 We don't agree, your Honor, that the leaflet is 6 hearsay. It is similar to if someone were to commit a hate 7 crime, and at the time they were doing so, they were saying 8 racial epithets or they were saying that they were associated 9 with the Klan or some group like that, their statements are 10 verbal acts. 11 If they scattered a leaflet on the scene that said 12 similar things, that is an act that shows their association 13 with their motive, their reasons for doing what they're doing. 14 It seems that the arguments about well, maybe the people who 15 did it left the leaflet and said this and that is not true, 16 goes to weight. That is something that could be argued to the 17 jury, and the jury could choose to decide that the people who 18 left the leaflet have no connection to the Islamic Group, 19 didn't mean it, were trying to frame the Islamic Group or what 20 have you. 21 The fact is the people who committed the massacre 22 which is in evidence left leaflets on the scene with Omar Abdel 23 Rahman's name on it, "Islamic Group" written written on it 24 similar to leaving their ID cards. We don't view that as 25 hearsay. It is just an act. They left written material on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4407 48DJSATC Conference 1 scene with statements by them that are not offered for the 2 truth, but if they left something on there saying that it 3 was -- they were connected to some corporation or something 4 like that, then that also isn't for the truth, it is what they 5 left on the scene. 6 And so it doesn't seem like that is actually offered 7 for the truth. It is just an act that would be akin to them 8 expressing something during the crime, yelling racial epithets, 9 yelling in association with a group motivated by racial animus. 10 So if the witness were to testify, and just to testify 11 that at the time that he got the leaflet, he took the leaflet 12 from a person with blood on him who was excited and hysterical 13 and there was a crazy scene going on in the hotel, without 14 reference to the excited utterances and, therefore, without any 15 repetition of the acts that occurred at the scene; therefore, 16 Mr. Hassels-Weiler would be the only person who spoke of the 17 scene, then the leaflet would come in just as something that 18 was left on the scene. 19 THE COURT: Usually -- and you can correct me if I am 20 wrong -- if a statement were a verbal act, it could also come 21 in as an exception to the hearsay rule or intent, state of 22 mind. 23 "I hate these people," but usually you would think 24 that that statement would be from a defendant who is being 25 charged with the hate crime, where that witness' intent -- that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4408 48DJSATC Conference 1 that shows intent, state of mind, is at issue. Here we have an 2 unnamed person, first. Second, intent, state of mind can't be 3 so broad as to swallow up the hearsay rule. 4 The statement for which it is being offered, that this 5 is being done for the Islamic Group, one would want to know the 6 traditional test for why hearsay is excluded. 7 Why is the person saying this? On what basis is the 8 person saying this? Moreover, there are, as you point out in 9 your letter, ample discussions in the conversations, and you 10 can correct me if I am wrong, but I read your letter to 11 indicate ample discussions in the letters in the conversation 12 involving the defendants precisely on someone in the Islamic 13 Group taking credit for the massacre at Luxor; and 14 specifically, Mr. Taha saying on several occasions about his 15 responsibilities for Luxor. 16 And if memory serves me right, at least one of the 17 defendants in opening said, in words or substance, that the 18 Luxor massacre was attributed to this person called Taha and, 19 in fact, described him in somewhat detail. 20 MR. BARKOW: I don't know, I don't recall that 21 specifically. I would have to look back at the opening. If I 22 could respond to one of the court's other points? 23 With respect to the references in the phone calls, 24 those references do not make the connection between Sheikh 25 Abdel Rahman and Luxor. They make the connection between Taha SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4409 48DJSATC Conference 1 and Luxor. The Taha-Luxor connection is obviously important to 2 us, we think. 3 More important is the Abdel Rahman connection to 4 Luxor, not saying that he directed it to happen, not saying 5 that he had anything to do with ordering it to occur, but the 6 fact that the people who committed the attack left leaflets on 7 the scene with his name on it, and that is not in the phone 8 calls, the only place that is in evidence right now is in 9 newspapers reporting the type of things showing Mr. Sattar's 10 knowledge of the reports. 11 As the court has given, the court has given 12 instructions to that type of evidence, and this is quite 13 different evidence. This is much more direct evidence. It is 14 almost as if a business card were left on the scene, stating 15 the person who was there and the reason they were there. 16 That is fundamentally different evidence, the kind of 17 direct versus indirect method of proof that we think is quite 18 different; and, therefore, I put the references in the calls 19 and in the other evidence in the letter to identify the fact 20 that the issue was before the jury, but the type of evidence is 21 quite different, the flyer versus those references in the phone 22 calls and the references in the news. For that reason, I think 23 that it is quite different than the evidence that is already 24 before the jury. 25 Furthermore, with respect to the court's point about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4410 48DJSATC Conference 1 803 (3) and the state of mind exception to the hearsay rule, we 2 think that in addition to the points that I've already made, 3 the existing state of mind, emotional condition and mental 4 state of the perpetrators is amplified by the flyer. It shows 5 their state of mind, their intent, their plan, their motive, 6 their design, their reason for doing what they did, which is 7 really at the core of the government's case, that when the 8 defendants did this, the message was heard. 9 THE COURT: My little homily about rhetoric which I 10 made with respect to both sides last time applies to the 11 argument that this goes to the core of the case, which is 12 repeated on any one of a number of occasions with respect to 13 specific pieces of evidence. That argument is not useful to me 14 nor is it correct. 15 Because Luxor itself, while important for all of the 16 reasons that I've explained and for all of the reasons that I 17 allowed the first Luxor witness, occurs two years before the 18 Count 2 conspiracy; and, second, the government has argued to 19 me, with more credibility, that the transcripts of 20 conversations with the defendants during the period of the 21 alleged conspiracy and the transcripts and videotapes of the 22 prison visits are the core of the case. To hear then that 23 leaflet left in 1977 goes to the core of the government's case 24 in the same way that the argument is raised with respect to 25 Government Exhibit 513 leaves a gap. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4411 48DJSATC Conference 1 Now, that's an argument which could be made with 2 respect to other evidence in the case. It is weakened when it 3 is used with respect to requests for numerous -- I shouldn't 4 say numerous -- but for several rulings. I applaud arguments 5 on both sides which have been made in good faith and with 6 vigor, but I decided the argument on the law and the facts, and 7 it is not of assistance to me to call individual pieces of 8 evidence, "going to the core of the case." 9 MR. BARKOW: I'll try to avoid the rhetorical device. 10 Let me explain what I mean by it. I don't mean to use it to 11 say that this piece of evidence is the core of the government's 12 case or another piece of evidence is the core of the 13 government's case or any piece of evidence is the core of the 14 government's case, although I would agree that the intercepted 15 phone calls form the backbone of the government's case because 16 it is most of our evidence. 17 The core of the government's case, what I mean by 18 that, this is a case about the defendants sending pro-violence 19 communications to people who have a demonstrated propensity for 20 committing acts of violence for a particular reason; that is, 21 to free Sheikh Abdel Rahman. I don't want to label it in a way 22 that is similar to "core," but that is the theme of the 23 government's case. 24 And different pieces of evidence we view as probably 25 probative of that point, that these defendants did things in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4412 48DJSATC Conference 1 world where they issue encouragements of violence, in a world 2 where people were out there in the real world committing acts 3 of violence on Abdel Rahman's behalf. I don't remember the 4 number of times I used that rhetorical device. I imagine it 5 relates on several occasions to that particular point. 6 That is, your Honor, the government's theory of this 7 case. Now, that is why I say that that leaflet relates to 8 that, because the leaflet is what demonstrates that the people 9 who committed the Luxor attack did so to free Sheikh Abdel 10 Rahman. These defendants knew it and, nonetheless, they issued 11 directives to commit further acts of violence to free him. 12 That is the bottom line in the case. 13 THE COURT: Well, but the significant part of your 14 statement was these defendants knew it, and they did something. 15 So what these defendants knew then becomes the important focus 16 all of the hearsay proffers with respect to the leaflet get 17 pushed to one side because it depends on what did the 18 defendants know, see, think, the best evidence of which is what 19 did the defendants have? What were the defendant's told in 20 various ways? What did the defendants say? 21 MR. BARKOW: We view both prongs of that as highly 22 relevant, what the defendants thought, obviously, but also that 23 the people are actually out there in the world acting with this 24 purpose and motive. We view that that as equally important. 25 As I said in the letter, Mr. Tigar made this point SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4413 48DJSATC Conference 1 when he was arguing I think on this very point, that he can 2 find people all over New York that are present at disturbing 3 events, but what is the connection of that event to Sheikh 4 Abdel Rahman and the effort to free him? 5 If we proved in this case murders that occurred in 6 Brooklyn or Queens, but there is no connection of the event, in 7 fact, between the murder and the case, that would seem odd, and 8 we think that this flyer is the piece of evidence that draws 9 the connection between those murders and this case. 10 THE COURT: No one reasonably -- I already ruled on 11 the admissibility of the first Luxor witness, and there are 12 numerous conversations proffered, some of which have already 13 been admitted which discuss Luxor. 14 A reasonable jury couldn't say oh, one of the -- why 15 are they introduced in evidence of your example, murders in 16 Brooklyn? They have nothing to do with the case. 17 When for all of the reasons I already explained, 18 allowing the first Luxor witness, Luxor is relevant to the 19 case, discussed in conversations with the defendant. It is 20 just not plausible to argue that the jury would then say why 21 Luxor? 22 MR. BARKOW: They might ask what is the connection to 23 Luxor in the case? Is it referred to in the phone calls, is it 24 it is found in newspaper articles, is it because people who 25 killed 58 or 60 people did so for the person who these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4414 48DJSATC Conference 1 defendants are communicating directives of violence on his 2 behalf. 3 In fact, in their opening statements, they made a 4 point that is not directly contrary to the point I am making, 5 but certainly makes the implication of the directly contrary 6 point, and that is that in Ms. Stewart's opening, the people 7 did say they're doing it to free the Sheikh. 8 For one, there is no direct evidence of that already, 9 even though it was admitted in opening statement. He was on 10 record saying don't do things like that, the official newspaper 11 of the Islamic Group denounced it. 12 In Mr. Sattar's opening, it was created by a splinter 13 group. Those facts are not directly contrary to what I am 14 saying, but it can certainly be inferred by assertions it was 15 done by a splinter group, and the group officially denounced 16 it, and Sheikh Abdel Rahman didn't in courage it, that it 17 wasn't at all motivated or affected by, connected to in any way 18 to Sheikh Abdel Rahman when, in fact, it was. 19 THE COURT: All of that, all of that goes to the 20 hearsay nature of the flyer. 21 MR. BARKOW: Your Honor, the flyer is not offered for 22 the truth. It doesn't really in the end -- it is offered to 23 show the intent of the people who left it there, and it is 24 offered to show they left it there. Because if they left a 25 business card there or a gang symbol or whatever the Mafia does SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4415 48DJSATC Conference 1 when they kill people and leave things to show they did it, it 2 is a signature card essentially. It is not being offered to 3 show the truth they did it as representatives of the Islamic 4 Group. 5 Certainly we can argue because they left something 6 there, if they left the Islamic Group business card there or 7 Gambino family business card there, we can say they actually 8 did it because that is what was left there. We wouldn't be 9 able to say it is true because the flyer said it is true. 10 THE COURT: All right. I am unpersuaded. 11 I will continue to exclude the second Luxor witness. 12 As with most things, you can choose to reargue it to me at a 13 later time. I have explained in some detail the reasons for my 14 conclusions, and there really is nothing in the argument so far 15 that leads me to reconsider what I've said. 16 MR. BARKOW: That is true, your Honor, with respect to 17 the streamlined testimony that I proposed at the outset? 18 THE COURT: Yes. This then takes me to 513 and 513 T. 19 I invited any party who wanted to rebrief it, and the 20 government did, and I received brief responses from the 21 defendants, just that the responses were that the defendants 22 thought was correct with my initial determination under Federal 23 Rule of Evidence 801 (2)(B), and I am prepared to rule on 513 24 and 513 T again. 25 The government argues that Government Exhibit 513 T is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4416 48DJSATC Conference 1 admissible as an adoptive admission by Mr. Sattar under Federal 2 Rule of Evidence 801 (d)(2)(B) for a statement of Taha as a 3 co-conspirator under Federal Rule of Evidence 801 (b)(2)(E). 4 The government has not shown the admissibility of the 5 article under either basis. 6 The transcripts do not show that Sattar expressed 7 agreement with the article or that the circumstances were such 8 that he would have expressed disagreement should he have 9 disagreed. This is particularly true when the transcripts are 10 measured against the actual exhibit sought to be introduced; 11 namely, Government Exhibit 513 and 513 T. 12 While Sattar gave a statement by Taha to Al-Shafii for 13 publication, Government Exhibit 513 is the interview with Taha 14 by Al-Minawi published in Al-Jazeera. 15 While Al-Shafii says that Taha's words -- and while 16 the government argues this is simply the same Taha statement 17 Sattar gave to Al-Shafii, based on what Al-Shafii said, the 18 article itself does not support that conclusion. It indicates 19 that Al-Shafii received a statement by Taha; and, therefore, 20 conducted an interview over the internet with Taha, and that 21 this interview was edited by the newspaper and reviewed by 22 Muntasir Al-Zayat. Therefore, the internal indications in the 23 article do not support that it is the same statement that 24 Sattar gave to Al-Shafii. 25 With respect to this article as published, there are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4417 48DJSATC Conference 1 statements by Sattar, adopting or acquiescing in the article. 2 Indeed, there is no evidence that Sattar actually read 3 Government Exhibit 513. Sattar does tell an unidentified male 4 to get the edition of Al-Jazeera that contains the interview 5 with Taha and says that he read it on the internet and that 6 Taha spoke about the Sheikh's issue. That is Government 7 Exhibit 1021 X. 8 But this is at most evidence that Sattar read the 9 version of Government Exhibit 513 that was published on the 10 internet at that time and sought to get the published version. 11 It does not contain an adoption of Government Exhibit 513 or 12 version that appeared in the internet. 13 For the reasons previously explained and outlined 14 again above, the court could not conclude by a preponderance of 15 the evidence that the reporter's rendition of Taha's interview 16 are sufficiently authenticated as Taha's words to be admissible 17 as co-conspirator statements under 801 (b)(2)(E). 18 The government also asserts that the article should be 19 admitted for Sattar's knowledge and his state of mind. 20 However, at this point the evidence only shows that Sattar read 21 the internet version of the interview of Taha by Al-Minawi. 22 There is no evidence of what was contained in that internet 23 version or whether it was the same or different from Government 24 Exhibit 513. 25 Therefore, the court could not rule on whether the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4418 48DJSATC Conference 1 internet version of the interview that appeared at that time 2 should be admissible for Sattar's knowledge and state of mind. 3 If the government chose to pursue the issue, the government 4 should proffer the internet version of the article that 5 appeared at that time. 6 That takes me to the motion to quash the defense 7 subpoenas. This is not fully briefed. The government has 8 until today to provide a reply brief, so I am not going to rule 9 on the motion to quash yet. 10 I do have a couple of observations. The papers 11 contain mutual charges. The government says Ms. Stewart 12 refused to narrow the subpoena in any meaningful way. Ms. 13 Stewart says the government filed a motion without a conference 14 to meet and confer, and when Mr. Dember recently conferred, he 15 refused to brief or refused anything. 16 Mr. Morvillo asked for more detail on the tape that 17 the defense sought, and without that detail, it is impossible 18 to search the 9,500 hours of video surveillance. 19 I would just note that it is not clear that there was 20 any requirement to meet and confer before filing a motion to 21 quash under Rule 17 (b). Under local criminal Rule 16.1, that 22 obligation applies to motions addressed for bill of particulars 23 or answers or to discovery and inspection. On its face, the 24 subpoenas do have certain aspects that have been noted as 25 impermissible in the case law, such as requests for any and all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4419 48DJSATC Conference 1 documents that refer or relate to various subject matters. 2 If you go back and look at the very careful decision 3 by Judge Weinfeld in Iosia, and the Supreme Court's decision in 4 United States against Nixon, these requests are not like 5 requests that have been approved. On the other hand, it is in 6 the government's interest to assure that it has complied with 7 Rule 16 and provided any documents that are material to the 8 defense. 9 While there is no requirement to meet and confer, I 10 would suggest to the parties that they do that. 11 Of course, the government will reply to the motion to 12 quash, an I'll decide the motion to quash based on the facts 13 and the law. If the parties insist on pressing the subpoenas 14 and the motion to quash, then I'll decide it, but I will at 15 least wait for the reply brief and notice from the parties. 16 That brings me to the issue of the stipulation. This 17 was the stipulation that both Ms. Stewart and her counsel have 18 signed, and there is a request by the government to admit the 19 stipulation, and objections by the defendants to admit the 20 stipulation. 21 I think I have to rule on that. Does the defendant 22 want me to deal with all of the stipulation? 23 MR. TIGAR: We do, your Honor. It is not a step that 24 one takes lightly, but in addition to the matters in that 25 letter, throughout the preparation for this trial, I've now SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4420 48DJSATC Conference 1 found some additional instances in which, for example, on the 2 2nd of May -- the 6th of May, the government sent us an A list 3 and B list of potential intercepted phone conversations and 4 said these are the ones we're thinking of playing. 5 Then on May 16, they added 13 more calls to Exhibit A. 6 They have just tendered to us exhibits that are not on the A 7 list or the B list, and it is true on May 6th they said they 8 may identify additional calls, but we have been working on the 9 A list and the B list as using the translators and preparing 10 because this is a universe, the court will recall, of many 11 thousands of calls. So that's one issue, and I simply bring 12 that to the attention of the court. 13 The other thing is that we received yesterday a letter 14 from the government that says that a DVD that Mr. Harold had 15 sponsored turns out that when you play it, the program shuts 16 down. The government thinks that is because there is a scratch 17 on the one that is in evidence, and we're discussing that. 18 That relates to, let us say, Part B of my letter. 19 I understand what a stipulation is about, and I signed 20 this one and recommended that my client sign it in utter good 21 faith, but we don't see, as we said, any serious detrimental 22 reliance. 23 Our decision was not taken lightly. The issue of the 24 authenticity of electronic evidence in this case has over and 25 over and over again been shown to be problematic. And for me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4421 48DJSATC Conference 1 to waive, to give up the right to cross-examine the sponsor's 2 witness, whomever that is, is something that I could not in 3 good conscience do. As I say, it is not a decision that I took 4 lightly, but it is one about which we are very, very serious 5 and we respectfully believe that the case law in question, 6 which is the case we cite, supports our position. 7 After all, the decisions to specifically enforce is an 8 equitable one, and a change in position should not result in an 9 order of an equitable court unless the government has no 10 adequate remedy at all. 11 The complaint they make is well, we'll have to call a 12 witness and buy an air ticket. The court can impose a monetary 13 sanction on a party who causes that sort of thing if the court 14 believes that the government is about to be done wrong here. 15 I emphasize I did not take this step lightly. I took 16 it because I believed it was my obligation to the client to do 17 it, and I still most respectfully believe that. 18 THE COURT: Fine. The government. 19 MR. BARKOW: Your Honor, I say to the court, we didn't 20 take filing this lightly, either, and I think the court can see 21 in the letter it is not just the cost of the airline ticket, it 22 is the need to file a motion, which is certainly a decision the 23 government does not take lightly, to seal the courtroom to 24 protect the identity of this witness who merely watched it on 25 TV when it was broadcast, and so this person would fly from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4422 48DJSATC Conference 1 Middle East to testify for less than a minute to say I watched 2 it when it was broadcast. We would file a motion to seal the 3 courtroom to protect his life, and then he would fly back. 4 That is why we seek to enforce this stipulation 5 because we think Mr. Tigar's argument is frivolous, his 6 connection to the other arguments he is making is 7 incomprehensible because this is just a videotape of something 8 that was broadcast on TV. So it is a completely different sort 9 of evidence than the telephone intercepts. It is just 10 broadcast on television and taped. 11 MR. TIGAR: Well, since the issue is now joined, your 12 Honor, there has been no showing that the only authentication 13 witness that is available would have his life threatened as a 14 result of having been threatened in public in being 15 cross-examined. The fact, revealed to us for the first time, 16 this is somebody who watched this tape, that the person who 17 watched this tape, and we'll put him on in direct examination, 18 was engaged in some, or is now engaged in, has some 19 responsibilities in the FBI that involve investigations in the 20 Middle East, that is legitimate ground of cross-examination, 21 your Honor. 22 If the court wants me to, I'll be happy to outline 23 where I think the cross-examination is now that the government 24 has revealed exactly what kind of authentication they want to 25 do. I don't like to get cross-examination on this, but here it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4423 48DJSATC Conference 1 is a year before 9-11 and Osama Bin Laden says free the Sheikh, 2 otherwise I'm going to be angry. 3 Well, at that time the government is negotiating, I'm 4 entitled to argue this to the jury, about moving into an 5 Egyptian prison, and Mr. Fitzgerald is doing everything in his 6 power to prevent exactly that from happening. Did somebody in 7 the FBI, did he report that to his superiors? Did somebody say 8 you know this guy Bin Laden might do something bad if we don't 9 negotiate? I think that is a legitimate basis for 10 cross-examination because it is related to the subject matter 11 of the direct. 12 Even if it is not, your Honor, we have just now seen 13 in a ruling your Honor made about the international version and 14 published version and so on, where would he hear it? Did he 15 hear it on some internet Al-Jazeera? Where was it broadcast? 16 Where was the potential audience? 17 The relevance and materiality of this has to do with 18 the form in which the videotape appeared and the format on 19 which the videotape appeared, even if the court took 20 restrictive view of my cross-examination. 21 In addition, Mr. Harold shows up and gives us a whole 22 thing, and I didn't object much, and then turns out when the 23 government tries to play the tape, it doesn't work any more. 24 Well, gee, just to have a witness about some technical 25 subject, why should I waive my right to cross-examine with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4424 48DJSATC Conference 1 respect to these continuing disclosures that for some reason or 2 another, when technology comes up, we always have a problem. 3 MR. BARKOW: I want to be very clear what this witness 4 would testify to. He watched it on television. We then showed 5 him the tape that we have. He will say that depicts what I saw 6 on television truly and accurately, that's it. He will not say 7 I have custody of the tape from then until now. He won't say 8 anything like that. He will say I watched the show, I speak 9 Arabic, and the thing you're showing me now I've watched, and 10 it shows what I watched. 11 We obviously have to file a motion to seal the 12 courtroom. Before we do that, we have to seek approval of the 13 Deputy General of the United States. We are not there yet, but 14 that just would come down the pike if we had to go there. 15 THE COURT: All right. I am prepared to rule. 16 The government asks the court to enforce an executed 17 stipulation, Government Exhibit 53 S, which has been signed by 18 counsel for all of the parties and, indeed, by each of the 19 defendants individually. 20 538 S, the stipulation, establishes the authenticity 21 of Government Exhibit 538, a videotape of a broadcast of an 22 Al-Jazeera television program. Counsel for Ms. Stewart and Ms. 23 Stewart have indicated to the government that they withdraw 24 their agreement to the stipulation and oppose the government's 25 application. They contend that it is inequitable and unjust to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4425 48DJSATC Conference 1 enforce the stipulation because it is preferable to exercise a 2 right of cross-examination of a live witness. 3 Counsel for Ms. Stewart also charges the government 4 with other misconduct based on alleged errors in other 5 authentication testimony and with the failure to cooperate with 6 the defense in obtaining other documents for the defense. 7 The defendant also alleges that the government would 8 not be prejudiced by the inability to rely on the stipulation. 9 The stipulation is admissible in evidence. First, it is plain 10 that the stipulation is authentic and is not hearsay because it 11 is a statement both by a party and the parties' agent. See 12 Federal Rule of Evidence 801 (d)(2)(A) and 801 (d)(2)(B). 13 There is no basis to find that the stipulation is not 14 a valid admission by the defendant. Even putting aside the 15 defendant's statement, there is no basis in the defense 16 submission to question the accuracy of the defense admission. 17 Second, it is true that courts maintain discretion in 18 refusing to enforce stipulations, but those stipulations 19 usually concern issues much more extensive than a simple 20 authenticity stipulation. For example, in Re Westinghouse 21 Electric Uranium v. Contracts Litigation, 570 F.2d 899 (10th 22 Cir. 1997) per curium, on which the defendant relies, the court 23 refused to enforce a stipulation that would have prevented a 24 further deposition because documents obtained after the 25 stipulation indicated it would be inequitable to enforce the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4426 48DJSATC Conference 1 stipulation to prevent a further deposition. 2 In this case, there is no showing to suggest the 3 stipulation is inaccurate or it would be inequitable to enforce 4 the stipulation, which is limited to the authenticity of one 5 television program. 6 Courts have enforced stipulations in criminal cases 7 that have been far more extensive than the stipulation at issue 8 here. See, for example, United States against Wingate, 12 F.3d 9 1157 (7th Cir. 1997); United States against Meyer, 802 F.2d 348 10 (9th Cir., 1986) 11 See also Sinicropi v. Milone, 915 F.2d 66, reversing 12 for use of discretion failure of district court to enforce a 13 stipulation in a civil case. 14 Before refusing to enforce a stipulation, there should 15 be a showing of manifest injustice or that the stipulation was 16 entered into inadvertently or based on an erroneous view of the 17 facts or the law. See Wingate, 128 F.3d 1160 to 61; Meyer, 802 18 F.2d at 350 to 51. There is no such showing in this case. 19 The alleged inequitable conduct by the government has 20 nothing to do with the accuracy or fairness in enforcing the 21 stipulation at issue in this application. Moreover, to the 22 extent that the opposition is based on alleged problems in the 23 testimony of other authentication witnesses, there has been no 24 showing that any of those alleged problems were material and, 25 in any event, have nothing to do with the current stipulation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4427 48DJSATC Conference 1 Moreover, to the extension that the opposition to 2 enforcing the present stipulation is based on the dispute over 3 the defendants' subpoenas, this application and the defendants' 4 subpoenas should be decided based on the facts and the law 5 applicable to each of those disputes. The court has already 6 urged the parties to cooperate, in an attempt to dissolve their 7 disputes. Other disputes do not indicate there is any basis to 8 ignore the stipulations of the parties. 9 Also it should be noted that some courts have noted 10 the existence of reliance on the stipulation as a factor in 11 enforcing the stipulation. Wingate, 138 F at 11; Sinicropi, 12 915 F.2d at 68. 13 The government does argue there has been some reliance 14 because based on the stipulation dated July 26th, 2004, it 15 ceased to pursue the FBI agent who would otherwise have been 16 the authenticating witness. 17 The government also points to other factors that would 18 have complicated the testimony and which the government would 19 have needed some additional time to prepare; specifically, the 20 issues raised by the current undercover investigation in which 21 that witness is involved. 22 The government also states that based on the 23 stipulation, it has not pursued other avenues of authentication 24 through other potential witnesses. It is unclear how long 25 these other avenues of authentication would have taken. It is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4428 48DJSATC Conference 1 not clear that reliance is required as a prerequisite of 2 enforcing the stipulation, particularly when the stipulation is 3 limited to the authenticity of a document which is, in fact, 4 admissible as an admission. 5 In any event, given the limited nature of the 6 stipulation, the absence of any showing of manifest injustice, 7 inadvertency or inaccuracy in the stipulation, the modicum of 8 reliance on the government is more than sufficient. It should 9 be added that the parties have discussed issues of relevance of 10 the tape. The only thing that the stipulation does is to 11 authenticate the tape. It does not concern issues of relevance 12 or ultimate admissibility. 13 It is, in addition, as to the authenticity of the 14 tape. That brings me to the next issue, which is judicial 15 notice. The only real dispute among the parties is a request 16 by Ms. Stewart for a limiting instruction that the sole purpose 17 of my taking judicial notice is to establish the date on which 18 something occurred and not for any other purpose. 19 MR. BARKOW: Your Honor, we don't agree with that. 20 When we ask that the court use the same judicial 21 notice that the court used for the Abdel Rahman trial, which is 22 in the transcript starting at 2310, and I guess I just make two 23 points about Mr. Tigar's proposal. 24 THE COURT: The government opposes that limiting 25 instruction. Let me then just go back. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4429 48DJSATC Conference 1 Now, there appears to be no dispute among the parties 2 that the court should take judicial notice of the following 3 facts: 4 "On January 25 of each year, the holiday 'police day,' 5 is observed" -- observed, I guess -- let me start again. 6 "On January 25 of each year in Egypt, the holiday 7 'police day' is observed. The holiday commemorates the death 8 of a group of Egyptian police who died while fighting the 9 British Armed Forces in 1952." 10 The government had begun to say that I should give an 11 instruction like the one I gave with respect to the resolve in 12 Sheikh Rahman's trial. I don't have that instruction before 13 me, but I am sure it was based on Judge Sand's instruction, 14 which is as follows: 15 "I have taken judicial notice of certain facts which I 16 believe are not subject to reasonable dispute. I have accepted 17 these facts to be true even though no evidence has been 18 introduced proving them to be true. You may, but are not 19 required, to agree that these facts are true," which seems to 20 be a perfectly acceptable limiting instruction. 21 MR. TIGAR: Yes, your Honor, it is virtually the same 22 as the one you gave at the transcript Page 2311. 23 MR. BARKOW: Yes, your Honor. 24 THE COURT: That is the instruction I would give. 25 That brings me to the reporter's subpoena for Mr. Salaheddin. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4430 48DJSATC Conference 1 MR. TIGAR: Excuse me, your Honor. Maybe I missed it. 2 Has your Honor denied the motion for limiting 3 instruction? 4 THE COURT: No. I said I would give the same 5 instruction as -- I thought that was satisfactory, the same 6 instruction I had given. 7 MR. TIGAR: That was the instruction with respect to 8 judicial notice. We asked for an additional limiting 9 instruction as to the purposes for which the evidence may be 10 received. I don't wish to be seen as waiving that. 11 I suppose, your Honor, that I could wait, and if in 12 closing argument or if as a further discussion at some point 13 the government said, 0h, and the relevance of police day is 14 that it means what Mr. Barkow's footnote says it means, is such 15 and such. 16 If the government said that in closing argument, I 17 could object to it. If they say it for some reason at some 18 other time, I could object to it, but one of the problems is 19 that we believe that Mr. Barkow's footnote seeks to overvalue 20 the evidence in a way that is not justified by anything we now 21 see in the record, and seeks to draw an inference from the 22 conversation and a purported tone of voice in the conversation 23 or purported irony in a translation from the Arabic that is 24 simply unjustified. 25 One of the reasons for limiting instructions is to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4431 48DJSATC Conference 1 prevent jurors from overvaluing evidence by drawing conclusions 2 from it that are not justified. If my application, therefore, 3 for some additional instruction is premature, I'll stand down. 4 If the court is denying my application outright, then I would 5 like the record to be clear about that so that I don't seem to 6 have waived my point. 7 THE COURT: Did I give any other instruction with 8 respect to judicial notice for Sheikh Rahman? 9 MR. TIGAR: Yes, you did, your Honor, at 2311, you 10 said that, "I want to remind you that this is not evidence that 11 he actually was guilty, but only that that happened," once 12 again telling the jurors not to overvalue that that you have 13 just taken judicial notice of. 14 THE COURT: That was an additional instruction which I 15 was not asked to give. I generated it myself, and everyone 16 agreed that I should give it because I thought it was an 17 appropriate instruction. 18 In this case, I don't understand why -- I could add an 19 additional sentence which is similar to statements, similar to 20 the instruction with respect to transcripts, which is the 21 weight and relevance of testimony are, of course, completely 22 for you, the jury, to determine. 23 How parties argue the relevance of what are simply a 24 fact is really for the jury. 25 MR. TIGAR: Your Honor, I hear what the court said. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4432 48DJSATC Conference 1 think that the instruction you gave at 2311 was the result of 2 some long discussions that have been had, but here for the 3 present we would urge the court to give the extra instruction 4 that you've just given, that the weight and what is to be done 5 with this is always for the jurors. 6 We would regard, and if, as I say, at some point some 7 government lawyer seeks in front of the jury to take what we 8 regard as this enormous leap, we would make an objection at 9 that point if we remember to do it. 10 The problem with this kind of associational evidence, 11 what do you think about killing British police and so on, and 12 this overvaluing issue is one the Supreme Court has addressed 13 we simply urge the court to give the instruction now, and if I 14 need to make an objection later, I will because of something 15 that was said in front of the jury. I will try to remember to 16 stand up and do it. 17 MR. BARKOW: Your Honor, I am a little confused as to 18 what instruction Mr. Tigar is asking the court to give. The 19 one in his letter? 20 THE COURT: No. Mr. Tigar said there is no problem 21 with the one I said I would give, which is the weight and 22 relevance of these facts are for you to determine. 23 MR. BARKOW: We don't have a problem with that 24 addition, your Honor. 25 THE COURT: What it should say is the weight and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4433 48DJSATC Conference 1 relevance of these facts, if you find them, are for you, the 2 jury, to determine, okay? 3 The reporter's subpoena. I don't know if there is 4 anyone here on behalf of Mr. Salaheddin or not. I know I got a 5 letter saying that Mr. Salaheddin's counsel knew that I would 6 be meeting with all of you this morning and if I wanted 7 additional argument, he would be happy to come. 8 I am prepared to decide the application based on the 9 papers, and I will decide it with an order. So I am not 10 foreclosing argument if anyone wants to be heard, but I am also 11 just prepared to decide it on the papers that I have. Okay, 12 I'll decide it on the papers that I have and issue an order. 13 That brings me to Ms. Stewart's request in her letter 14 of August 5 for various relief. I received a letter from the 15 government, responding to that request, which came in late last 16 night, and I've reviewed it now. I don't know if the 17 defendants have had a chance to review it or not? 18 MR. TIGAR: It came in on our fax after midnight last 19 night, your Honor. I read it briefly, but not in enormous 20 detail. There are a couple of the issues that jumped out at 21 me. 22 With respect to some matters, we think that a written 23 response would be appropriate. With respect to others, we're 24 invited to cross-examine Mr. Kerns when he reappears at greater 25 length to find more things out. There are some of the issues SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4434 48DJSATC Conference 1 in the letter that might benefit from whatever light Mr. Kerns 2 casts, particularly upon the issues of how the algorithm 3 decompressed files, which is quite problematic, based on my 4 reading of the letter, and what problems were encountered that 5 required something called "diagnosis" while he watched, because 6 there are questions raised by the government's response about 7 that. 8 So really the question is how should we proceed to 9 provide the court whatever factual information the court feels 10 is necessary. We remain steadfast in our view that the 11 algorithm tendered to us, what purports to be algorithm is 12 completely worthless in terms of doing what we had said we 13 wanted to do at the very least without the expenditure of what 14 would be a rather substantial amount of CJA money to reverse 15 engineering, but that is only a tentative view based on having 16 talked to our technical people. 17 I am at the court's disposal. 18 THE COURT: Ms. Baker. 19 MS. BAKER: Your Honor, with respect to 20 cross-examination of Special Agent Kerns when he is recalled, 21 whatever questions Mr. Tigar wishes to ask of Special Agent 22 Kerns regarding his knowledge of what the Minnesota contractor 23 did or didn't do in the way of diagnosis or any other work, the 24 government has no objection to those questions. 25 As to questioning Special Agent Kerns about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4435 48DJSATC Conference 1 decompression algorithm, the court is obviously aware from the 2 protective order that the government requested that the 3 government views that algorithm as sensitive, and I think there 4 would need to be discussion, litigation, a ruling about the 5 amount of detail about that algorithm that could be publicly 6 elicited, and I rise now just to advise the court that Special 7 Agent Kerns, if asked do you know anything about this 8 decompression algorithm or how it works, would say no. 9 And so rather than engaging in fruitless argument 10 about the extent to which questioning should or should not be 11 permitted about the nuances of the algorithm, I would ask the 12 court to ask Mr. Tigar, instead of launching into a substantive 13 question about the content of the algorithm with Special Agent 14 Kerns, that if he wishes to ask anything at all, that he begin 15 by asking Agent Kerns whether he knows anything about the 16 algorithm or how it works. If the answer is "no," that the 17 questioning not be permitted to go further. 18 THE COURT: What you say does not surprise me in terms 19 of Agent Kerns' prior testimony about not knowing the 20 algorithm. In fact, the suggestion that that line of 21 cross-examination be pursued with Agent Kerns struck me as 22 unusual. 23 I fully understand the issue was what tapes were taken 24 to Minnesota and how that impacts on any of the exhibits in 25 evidence, but I don't understand the algorithm with respect to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4436 48DJSATC Conference 1 Agent Kerns, particularly with respect to that representation. 2 MR. TIGAR: Let me go through my reasoning process, 3 your Honor, so we can save time. 4 First, we were tendered a DVD that purported to be -- 5 although it was not -- all of the Lockheed Martin compressed 6 files. There were files missing from that, but we were given 7 it. Those are files with a suffix DDR. 8 We then asked for the algorithm. The court knows 9 about that. We're now told that you can't decompress a single 10 file. You must decompress an entire electromagnetic tape, as I 11 understand it; that is, the decompression program is not 12 designed for single files, it is designed for EMT tapes as a 13 whole. Maybe it is true, maybe it is not. 14 Whether that is true or not, that is, how you do it, 15 do you do it one call at a time or do you do a whole tape, that 16 Agent Kerns could answer because he was in charge of the 17 process and he probably observed enough to know whether, when 18 they searched for calls, where did they search? Did they 19 search them on MO's or search them on EMT's, when they found 20 them on an EMT, or did they find them on EMT and decompress 21 them one at a time or get a decompressed MOO to look there. 22 There are a lot of calls they haven't got yet. 23 On cross-examination, Agent Kerns said when he was 24 first here, there were a lot of calls we haven't found, we're 25 still working, and Mr. Paul pursued that on cross. That is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4437 48DJSATC Conference 1 Area 1. 2 Area 2, Agent Kerns testified, and the court ruled 3 against me on this issue of technical problems. Agent Kerns 4 knows about technical problems. Those are problems of 5 audiblity. There are two kinds of textual problems. One is an 6 audiblity problem and the other is a hardware problem. We have 7 just been tendered translations, X exhibits. These are key 8 exhibits because they relate to Ms. Stewart and her activities, 9 and they're full of unintelligibles. 10 In addition to unintelligibles in the X, there is 11 bracketed the translators put in, "technical problems." We, of 12 course, are going to have the translators because we are not 13 stipulating. They're coming. What were these technical 14 problems brought to Agent Kerns' attention? Did he investigate 15 them? 16 THE COURT: He has testified about them. 17 MR. TIGAR: Not about these exhibits, your Honor, so 18 we will ask him. He took a bunch of tapes then to Minnesota. 19 He is there all week, all week. They did something called 20 diagnosis. What is diagnosis? He got a bill for $25,000 for 21 it. Did he have some conversation? Yes, just for the 22 diagnosis. The total bill is 80-some thousand. 23 What was that? Did that have to do with the condition 24 of those files? Thereafter, were they able to decompress files 25 that got treated? There is a relationship, that is, between SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4438 48DJSATC Conference 1 degradation and decompression. He either knows about that or 2 he doesn't. When a technical problem of audiblity was raised 3 with him, there are times when the government did other things, 4 right? 5 Now, did he conduct any investigation or make inquiry 6 about why there is inaudibility? 7 In my letter to the court, I pointed out, based on our 8 reading of these lines of code, why there might be an audiblity 9 problem. And if audiblity translates to unintelligibility or 10 to technical problems in the transcripts that we have seen, 11 then, of course, that directly relates to the algorithm. 12 He may not have knowledge as a technical person, not 13 being tendered as an expert, to tell us of his own -- well, I 14 know how to read an algorithm and I know the relationship 15 between that line of computer code and audiblity, but somebody 16 who works over there with whom he spoke before he came to tell 17 us this process was reliable may have had that knowledge and 18 communicated it to him in the ordinary course of business. 19 That may throw us back on a problem, but we ought to 20 be able to go far enough to get it. If Agent Kerns doesn't 21 know, then, of course, our next line of inquiry is going to be 22 so who does so we can call them? 23 As I recall the court's authenticity determination, it 24 was made upon the assumption that these things were as good as 25 duplicate originals, it being clear their digital files are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4439 48DJSATC Conference 1 documents in the way that analog files may not be. 2 Given what we have received so far, the determination 3 they're duplicate originals is called into serious question on 4 two fronts: 5 First, by the computer code itself which, as we 6 represent in our letter and still maintain, tells us that the 7 Federal Bureau of Investigation had a system that 8 systematically destroys and loses forever certain audio 9 information, a fact which is not a fact in any of the decided 10 cases of which I am aware; 11 And, second, that what we have now seen, and the jury 12 has heard over and over and over again, "unintelligibles. All 13 of us in this courtroom who have tried to participate in any 14 way in taped cases, electronic cases, knows that there are 15 unintelligibles. For the first time in Ms. Baker's letter to 16 us, there is this extra computer code line that suggests that 17 unintelligibility may not be the result simply of tape hiss or 18 background noise, but of compression algorithm that drops data 19 out so that it cannot be restored. 20 If Agent Kerns can't take this all the way along the 21 road to figuring this out, well, we respectfully suggest that 22 it is material to the defense and that if Kerns can't get us 23 there and the government won't tell us and we don't get an 24 order saying they'll tell us, we'll keep on pursuing it, your 25 Honor, because we do regard it as a significant issue, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4440 48DJSATC Conference 1 particularly when we get tapes or transcripts now that have 2 this sort of key unintelligibility that is, quite frankly, very 3 disturbing to us. 4 So that is my application, may we have some time 5 within which to respond in writing? 6 May we know when Agent Kerns is going to appear so 7 that I can be prepared to cross-examine him? 8 May I not have to accept the government's statement 9 that I can never ask him a question about X, Y or Z? I'll ask 10 him the first you question. If he doesn't know, then I won't 11 ask any more. I know what the rules are. Let's see what he 12 says. 13 I will be making some application to find out if he 14 doesn't know what we think is relevant and material, then who 15 do we call? 16 I think that is another argument for another day. My 17 two applications are: May I have some time to respond; and, 18 two, may we know when Agent Kerns is coming? 19 The reason I need to to respond, although I am saying 20 things about the algorithm, we need to frame a very precise 21 request for what we're going to need, and I think it would be 22 helpful to provide the court with some indication of what it 23 would cost if the Bureau is not going to give it to us, for us 24 to reverse engineer from what we have. 25 THE COURT: Ms. Baker. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4441 48DJSATC Conference 1 MS. BAKER: Let me begin with what my application was 2 when I rose a few minutes ago because I'm not sure of Mr. Tigar 3 actually agreed to what I was asking. 4 THE COURT: Let me stop you just for a moment. 5 Your application was essentially for a preliminary 6 question about does he know anything about the algorithm, and 7 it was based on a concern that testimony not be elicited which 8 goes into matters that were properly subject to any one of a 9 number of protective orders. 10 Mr. Tigar outlined the questions that he wanted to ask 11 Agent Kerns, and it didn't seem that any of those areas would 12 get into protected material with respect to the substance of 13 the algorithm because Agent Kerns didn't know anything about 14 the algorithm. So there could be very few questions of Agent 15 Kerns on that subject before eliciting valid objections that 16 they were pursued. 17 The only additional question is if he knows nothing 18 about the algorithm, does he know that an algorithm was used 19 and, if so, who would know about such an algorithm, if he 20 knows. 21 MS. BAKER: Your Honor, I haven't asked Agent Kerns 22 the question the way your Honor specifically phrased it. 23 Agent Kerns does know and, indeed, he testified when 24 he was here the first time, that he knows that the Lockheed 25 Martin files were converted to block. I think, but I am not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4442 48DJSATC Conference 1 sure, that he knows that as part of that conversion which was 2 done all at once by the execution of one particular computer 3 program or script, that as part of that, there was a 4 decompression. Although I did, as I say, I did ask him 5 specifically recently whether he knows anything about how the 6 decompression algorithm works or what kind of algorithm it is 7 or anything like that, and he says no, he does not. 8 So I believe he does know that decompression occurred 9 as part of conversion, but not any more of the specifics than 10 that. As to whether he could name a particular person who does 11 understand the decompression algorithm, I don't know the answer 12 to that question. I don't object to Mr. Tigar asking him that 13 question. 14 THE COURT: He outlined three areas. 15 Can you convert one call at a time or do you have to 16 do it by an entire tape? 17 MS. BAKER: If I can just pause you there for a 18 moment. I don't object to that question being put to Agent 19 Kerns. Again, I don't know that he will know the answer. He 20 may well say from what I saw, they did whole tapes, but that 21 doesn't mean that he necessarily knows what is or isn't 22 possible. 23 I also did want the record to be a little more clear, 24 Mr. Tigar characterized my most recent letter by saying that my 25 letter said that a single call cannot be decompressed. I want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4443 48DJSATC Conference 1 to clarify, that is not what my letter said. My letter said 2 that the current conversion program that the FBI has, the one 3 that actually is used to do the conversions at issue in this 4 case, is written to do an entire tape at a time. 5 But the FBI informs me that the decompression 6 algorithm contained within that program, which is what we have 7 provided to Ms. Stewart, that that algorithm could, by someone 8 with appropriate computer programming skills, be modified to 9 convert, decompress a single call at a time. That is not the 10 way the FBI currently has it. That is not the way he did it, 11 but it can be modified to do that. 12 MR. TIGAR: Your Honor, I don't want to tax the 13 court's patience, but may I say something about that, please? 14 I won't if you rather I didn't. 15 THE COURT: It was really Ms. Baker who was responding 16 to what you said, and Ms. Baker I think was not finished. 17 MR. TIGAR: Sorry? 18 THE COURT: Ms. Baker, I do not think was finished. 19 MS. BAKER: I was finished, your Honor. 20 MR. TIGAR: Then I'll sit down. 21 THE COURT: I was saying it didn't appear to me that 22 the three areas touched on by Mr. Tigar, given the 23 representations with respect to Mr. Kerns, will raise the 24 issues of the substance of the algorithm, and that, and that 25 the defense counsel laid out three areas to be pursued, and it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4444 48DJSATC Conference 1 didn't seem that the government contended that any of those 2 three areas were such that it raised an issue. 3 MS. BAKER: I agree with what the court just said, but 4 it wasn't clear to me from Mr. Tigar's remarks that he was 5 confining himself to those three areas. So I rose again to 6 request a clarification or a ruling. I just want to ensure 7 that in addition to those three areas, it is not his intention 8 to begin some line of questioning about the decompression 9 algorithm by asking a question along the lines of isn't it a 10 fact that the decompression algorithm does X or doesn't do Y. 11 MR. TIGAR: Your Honor, before I ask a question like 12 that, I would approach the bench and ask at a recess because I 13 know that if there is a protective order in place, I am 14 supposed to get the court's permission before I do things. 15 THE COURT: Okay. 16 MR. TIGAR: So there. I would really like to cut 17 through some of this. At Page 19 of the letter we received 18 after midnight says: Third, Ms. Stewart's expert would not be 19 able to simply run that program, referring to the actual one 20 the FBI has and not to the script we were given, to replicate 21 the conversion because it was written to work with a tape in 22 its entirety. 23 Now, we have a bunch of DDR files. We would like to 24 see if, consistent with our understanding of Daubert, we can 25 replicate the conversion process that the FBI says it used SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4445 48DJSATC Conference 1 because we don't trust what they did, and we believe we are 2 entitled to present our own results of tests to see if we can 3 replicate it at least going to weight. 4 If what we have been given so far is worthless to 5 accomplish the effort to replicate, then somebody should say 6 it's worthless because we are spending a lot of money here that 7 belongs to the criminal justice system, and if there is 8 somebody who knows the answer to these, if somebody would just 9 tell us, then we could do it. 10 THE COURT: You know, I told the government before 11 about arguments that are not persuasive. An argument that I do 12 not find persuasive on the other side is lots of public funds 13 have been spent challenging the authenticity of the tapes, and 14 lots of more public funds will be spent, and it could be easier 15 if it were done in another way. 16 I believe that public funds should be spent for 17 expenses that are reasonably necessary for the defense, in the 18 same way that if a defendant had resources such that the 19 defendant was not receiving public funds, the defendant would 20 reasonably spend such resources. That is really not an 21 argument that these expenses, having done all of the work in 22 good faith, at the end of the day result and must result in a 23 conclusion that there is insufficient authenticity for these 24 records. 25 Of course, the defendant is welcome to argue and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4446 48DJSATC Conference 1 present to the jury technical, scientific arguments with 2 respect to the authenticity of the tapes and how they came to 3 be and gaps in the tapes and unintelligible portions and the 4 technical problems encountered in the course of the tapes. 5 On the other hand, it is also true that there are 6 numerous ways that the Court of Appeals has said to 7 authenticate tape recordings. It is also true, and if the 8 parties had wanted me to rule on the James and Brady issues 9 raised in the correspondence thus far, I was prepared to do so. 10 I'll certainly accept further -- the defendant had two 11 requests. One was a time to respond further and a request when 12 will Agent Kerns testify. 13 The Court of Appeals, as I said before, has made clear 14 that there are various ways of authenticating tapes, and among 15 others, the court has looked to the consistency of the 16 conversations, the fluidity of the conversations, how they hang 17 together, so that the jury can determine whether the jury 18 believes that these conversations were in some way tampered 19 with, altered in any way. 20 It is also true that, having listened to numerous 21 conversations thus far, they have the hallmarks that the Court 22 of Appeals and the federal rules looking to authenticity look 23 to, conversations which are consistent, conversations to given 24 telephone numbers, conversations which can be identified with 25 respect to specific participants, all of which strengthen the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4447 48DJSATC Conference 1 court's initial conclusions with respect to the authenticity 2 and admissibility of the tapes. 3 So I raise this because it was raised as to public 4 funds. Public funds should be expended as reasonably necessary 5 for the defense, and I take it that the funds were expended in 6 good faith, to attempt to undermine either the authenticity or 7 the weight and reliability of the tapes, and plainly argument 8 with respect to weight and reliability can all be made to the 9 jury. 10 But that does not follow that simply because public 11 funds are being expended and more such public funds will be 12 expended at the conclusion, at the end of the day, it must be 13 that these tapes are not authentic or that they are so 14 unreliable that they should not be admitted. 15 As I have said, the subsequent course of the trial and 16 the tapes themselves strengthen and do not undermine the 17 court's original conclusions with respect to the authenticity 18 and admissibility of the tapes. 19 The counsel is also welcome to pursue with Agent Kerns 20 the issues that counsel says he wants to pursue with Agent 21 Kerns, and that is cross-examination. 22 I'll certainly listen to a response to the 23 government's letter. There is nothing so far that indicates to 24 me that there is a Jencks or Brady violation or that the 25 standards which the Court of Appeals has set out in the Coppa SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4448 48DJSATC Conference 1 have in any way been met. 2 But again, I am prepared to discuss that at length, 3 and I am also prepared to -- the defense asked for an 4 opportunity to respond and, as you know, I don't foreclose, I 5 don't foreclose responses. 6 MR. TIGAR: We will respond, your Honor. 7 I do not wish to be taken as suggesting we thought 8 that the public funds question is connected to the authenticity 9 question, but your Honor's ruled on authenticity. We don't ask 10 the court to reconsider rulings unless we think we have a 11 good-faith basis to do so. 12 THE COURT: But you did in your letter. In your 13 letter you asked me -- 14 MR. TIGAR: Yes, I did, and we do. I said we did 15 because we thought we had a good reason for it. Your Honor 16 made additional findings. I understand your Honor's view. I 17 want to be clear about the public funds issue. This is not a 18 game. 19 First, we are entitled not only to challenge, your 20 Honor -- 21 THE COURT: Let me just stop you for one moment. I 22 fully agree with you that this is not a game, and certainly 23 there is nothing that I've said which could lead any of the 24 parties to think that that was true. 25 MR. TIGAR: I don't think that your Honor said that, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4449 48DJSATC Conference 1 no. 2 THE COURT: Second, I have urged the parties, as 3 recently as the motion to quash defense subpoenas, to attempt 4 to work out, cooperate with respect to the production of 5 information and to attempt to focus and narrow requests so that 6 they can be focused on the matters that really are material to 7 the defense, and I say look, if the parties cannot work this 8 out -- and I think it is in both parties' interest to work it 9 out -- then the matters will be brought to me and I'll rule on 10 the facts and the law as to whether parties are entitled. 11 It is in the government's interests to ensure that any 12 materials that would fall within Rule 16 are produced and, 13 indeed, in keeping with the government's responsibilities to go 14 further, and there should be a cooperation between the parties. 15 MR. TIGAR: Your Honor, I don't want to waste the 16 court's time, but let me say, of course, your Honor's ruled 17 these things are authentic, and the likelihood of our getting 18 that decision reversed, your Honor reversing himself on it is 19 very slim. I understand that. 20 Ultimately, as the Advisory Committee rule notes in 21 Federal Rule of Evidence 104 pointed out, the decision is not 22 your Honor's. Your Honor can at most say the jury can hear 23 this, and the twelve people in that box at the end of the day 24 are going to decide whether or not they think all of these 25 unintelligibles and technical problems and all the rest of it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4450 48DJSATC Conference 1 mean something. 2 In order to do that, we have a Sixth Amendment right 3 of compulsory process to pursue the evidence that we need in 4 order to convince the twelve people in the box that this whole 5 business of file destruction is not a particularly good idea in 6 terms of making things reliable. 7 Now, the court may disagree with us on that, but as I 8 said, the Advisory Committee notes expressly point out that was 9 one of the things they had to figure out in drafting Rule 104 10 and all the rest of it. So where we are here is we're trying 11 to see how we can make our case, get the evidence, do what we 12 need to do. That is what we're doing. 13 Now my reference to public funds. Your Honor, I have 14 been a court-appointed lawyer. I am aware that the federal 15 court budget is under serious constraints, and I don't suggest 16 for a moment that influences your Honor's decisions here. I 17 don't suggest that. 18 I, as a concerned citizen, want to make sure that in 19 pursuing these rights under the Sixth Amendment, I do it just 20 as I would do in a private practice case. I don't want to 21 spend more than is justified. 22 If I see a way in which a discovery response, a 23 subpoena response, a response to a particular question by my 24 adversary is not helpful to the orderly and efficient 25 assembling of the evidence we feel we need, I feel that I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4451 48DJSATC Conference 1 should make that suggestion. That is all I was doing. I was 2 not suggesting that the court's decision about authenticity 3 should rest on public finance. 4 I was simply suggesting that I have observed some 5 things in the government's response so far that I did not 6 regard as particularly helpful to us, and I have asked the 7 court for a chance to do two things: 8 First, to make a written response, which I hear the 9 court's views on the Coppa and Brady and Jencks questions. 10 Fine, that is tentative views, tentative values, I understand, 11 but we are not going to get into one of these pointless 12 arguments about things. 13 And also I want to have a chance before the court 14 finally rules on this to talk to Agent Kerns on 15 cross-examination because I believe that those answers will 16 help us to frame, to put together the defense that the Sixth 17 Amendment entitles us to present. That is all I wish to be 18 understood as saying. 19 THE COURT: Ms. Baker, the defense needs time to 20 respond, which I am sure the government doesn't object to. 21 MS. BAKER: The government does not object to that. 22 THE COURT: The second thing is a question as to when 23 Agent Kerns will testify. 24 MS. BAKER: Tuesday. 25 THE COURT: Tuesday? Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4452 48DJSATC Conference 1 Is there anything else that I -- I don't think there 2 is anything else that I should do on these requests now, except 3 there is a request that the defense wants their letters filed 4 and the government wants its letter filed, so I'll file both 5 letters. There is some attachment requested to be filed under 6 seal, and they'll be filed under seal. 7 MS. BAKER: Yes, your Honor. 8 The government had also asked that a copy of its prior 9 letter, which was actually addressed to defense counsel, but 10 carbon copied to the court, that that also be docketed, which 11 was my letter, dated August 3rd, 2004. 12 THE COURT: Ah! 13 MS. BAKER: I can hand the court with a copy. 14 THE COURT: Isn't that Attachment A to Mr. Tigar's 15 letter? I think so. 16 MS. BAKER: Yes, it is. 17 THE COURT: So that will be docketed, okay? 18 I am always interested when parties make such a point 19 of wanting to make sure that their letters are docketed. As 20 you know, letters are not docketed unless there is a court 21 order docketing letters. Parties are welcome to ask that 22 letters be docketed for whatever reason. So I'll see that both 23 the government and the defense letter are docketed, and there 24 is nothing else to do on that. 25 MR. TIGAR: With respect to our response, your Honor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4453 48DJSATC Conference 1 may it then be due 48 hours after Agent Kerns leaves the stand? 2 THE COURT: I have no problem with that. 3 The government? 4 MS. BAKER: The government has no objection. 5 THE COURT: Okay. That leads to the next matter, 6 which is I received a letter this morning from Ms. 7 Shellow-Lavine, and how long does the government want to 8 respond to that? 9 MR. MORVILLO: Is this about the selective prosecution 10 motion, your Honor? 11 THE COURT: Yes. 12 MR. MORVILLO: We haven't had a chance to read it. We 13 received it this morning as well. I think 10 days should be 14 sufficient, but I can't say that without having studied it more 15 carefully. How about a week from Monday? 16 THE COURT: A week from Monday, so that will be August 17 20th, August 20 to respond, August 23 to reply. 18 Did the parties return the folder I had given them? 19 MR. FALLICK: It is right here, your Honor. 20 THE COURT: Are there any other matters for the court? 21 MR. TIGAR: Your Honor, when you mentioned you're 22 going to issue an order concerning the -- 23 THE COURT: Yes. 24 MR. TIGAR: Is there a time when we should expect 25 that? I just didn't understand your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4454 48DJSATC Conference 1 THE COURT: Early next week, I would think. The 2 government asked me to decide the motion. I'll decide it early 3 next week. 4 Does the defense want to be heard on the timing of 5 that at all? The defense letter indicated, "We'll rest on our 6 prior submissions." 7 MR. TIGAR: Yes, your Honor, that was our position. I 8 just was trying to predict where the trial was going. 9 There has been a rumor, your Honor, that the Marshal 10 Service is concerned about the court sitting during the last 11 week in August. Has the court heard that rumor? 12 THE COURT: My intention is to sit the last week in 13 August, not Labor Day, but the last week in August. 14 I don't currently foresee that that will be a problem. 15 I understand from the correspondence that the parties have 16 worked out the issues on the transcripts and tapes? 17 MR. MORVILLO: Many of them, your Honor. 18 I hope that your Honor's review of our correspondence 19 reveals that we have been working very diligently to try to 20 work all things out. There may be one or two issues that we 21 are going to continue to work on with respect to audiblity and 22 translation issues, but those can be explored through 23 cross-examination of witnesses. I don't think it is anything 24 that will require the court's intervention, but we are prepared 25 to proceed on Monday with our evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4455 48DJSATC Conference 1 THE COURT: That is just slightly different from what 2 the parties have been telling or you have been telling me in 3 the correspondence. 4 MR. MORVILLO: Your Honor, you should understand that 5 when we started this process, we were starting with draft 6 transcripts. We did not have final transcripts. 7 Producing a final transcript from these volumes of 8 recordings is a time-consuming process, and it takes maybe 9 three or four days per transcript, and there is at least eight 10 of them that we have been working on very diligently to finish. 11 We have now turned over to the defense I think seven 12 of the eight final transcripts. They haven't responded to all 13 of those final transcripts with their ultimate agreement. I 14 don't believe they have changed much from the transcripts that 15 we originally had that we used as a basis to make the 16 negotiation. 17 I can't tell your Honor as I stand here right now 18 there is not going to be a dispute or two from the final 19 translations. It is just the nature of the way we had to 20 operate under the short time-frame that we had. 21 MR. RUHNKE: May I add something? 22 THE COURT: Sure. 23 MR. RUHNKE: I wasn't going to say anything at all 24 because I know the court doesn't want to hear about problems 25 that aren't really problems that become problems. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4456 48DJSATC Conference 1 The process of getting us final transcripts has taken 2 more time than I thought it would. As of last night by E-mail 3 and this morning by hard copy we now have, I think, as Mr. 4 Morvillo says, eight of nine copies in final version. What we 5 have done is worked out the completeness problems, which I 6 think would have been more time consuming and certainly for 7 your Honor's attention. 8 We do have and probably will continue to have some 9 audiblity disagreements and some translation disagreements. 10 Until we actually receive the government's final versions, 11 which is complicated by the fact the government is having one 12 individual make the final calls on what the English is on the 13 transcripts and another person or persons making the final call 14 on the Arabic interpretation, we have now gotten just about 15 everything except one particular tape or one particular visit 16 that I'm told is a technical problem that is being worked out. 17 As I say, it is not a problem, but I don't see it 18 being a problem now. I am going to spend the weekend now 19 looking at the final versions of the government's 20 transcriptions in both Arabic and English. If there were any 21 significant problem, we will bring it to your Honor's attention 22 before Monday and seek some kind of specific relief. 23 I will tell you, in all honesty, I don't think there 24 will be any real significant problem. It has taken longer to 25 get a final version than we would have liked. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4457 48DJSATC Conference 1 THE COURT: Okay. Is this going to take us through -- 2 how long? Beginning Monday? 3 MR. MORVILLO: Based on recent developments, we 4 believe that we will have no reason to take any further breaks 5 or request any further adjournments. We are going to move, I 6 think, fairly smoothly through the evidence in the remainder of 7 the case. Is that what your Honor's question is directed at? 8 THE COURT: I was really asking, with respect to the 9 transcripts and these recordings, how long? 10 Do you intend to continue this way for some period of 11 time? 12 MR. MORVILLO: As far as the negotiating process or as 13 far as presenting the evidence to the jury? 14 THE COURT: To the jury? 15 MR. MORVILLO: Yes. 16 THE COURT: Okay. Because you have told me that there 17 are other classes of evidence that haven't been yet readied. 18 MR. MORVILLO: That is true, there are. 19 We will be interspersing our preparation with other 20 witnesses from time to time. We, depending on the way certain 21 issues are resolved, the government anticipates that we could 22 have as few as nine and as many as 35 witnesses that need to 23 testify before the trial is over. 24 Clearly, they're not all going to testify at the same 25 time. We'll try to spread them out. We are trying to work out SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4458 48DJSATC Conference 1 issues with respect to how many we need, when we are going to 2 try to intersperse them with the order of our proof, but as the 3 court is aware, the bulk -- or as Mr. Barkow said earlier, the 4 backbone of the case are the intercepts and the prison visit 5 recordings and the telephone calls, and we're in the middle of 6 that chronology right now. So there may be a point in time 7 when it is appropriate to interrupt it with a witness, and we 8 will seek to do that. 9 With respect to pruning efforts, we have, as the court 10 is aware, I believe, just perhaps inferentially from our 11 letters, we had originally said we would seek to use as many as 12 25 prison telephone calls which -- 13 THE COURT: I know. You are down to three? 14 MR. MORVILLO: Yes, that's correct, your Honor. 15 Additionally, we have tried to winnow, at least from 16 the use of the search material what we would ultimately seek to 17 present to the jury at least in our direct case. So there have 18 been efforts in that regard. 19 MR. RUHNKE: Just to keep this entirely factually 20 correct, when I say we have worked out completeness problems, 21 we have not worked out or have not begun to discuss the 22 completeness for the July of 2001 prison visit. 23 The government has recently designated the portions 24 that they wish to play. However, in terms of chronological 25 presentation of the evidence, we don't think that is going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4459 48DJSATC Conference 1 be an impediment to the presentation of the case, as we're now 2 in chronological terms around January of 2000. 3 So we are well away from July 2001, but I think, and I 4 will try to remember what Mr. Morvillo said in his letter to 5 the court about completeness problems, but we have -- 6 THE COURT: He said they will work out with respect to 7 all of the quirks. 8 MR. MORVILLO: No. 9 MR. RUHNKE: That is not factually accurate. 10 MR. MORVILLO: I don't believe I said that. I said, 11 with respect to the things we have discussed with defense 12 counsel, we never discussed July 2001. We don't believe that 13 there will be any problems, given the nature of our 14 negotiations with respect to the the February 19th, 2000 visit 15 and May 19th and 20th, 2000 visit. 16 THE COURT: I thought the reason for the almost 17 three-week break is because you were dealing with all the 18 things. 19 MR. MORVILLO: We are. 20 THE COURT: And you had reached agreement and that 21 there was one 403 issue which you then told me, yes, had been 22 resolved. 23 Ms. Shellow-Lavine has the issues in front of her, and 24 the answer, if you can tell me? 25 MS. SHELLOW-LAVINE: Your Honor, it would appear SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4460 48DJSATC Conference 1 Mr. Morvillo's August 3 letter to the court, in fact, does not 2 address the 2001 prison visits. It is limited to two May 3 visits and the February visit. 4 THE COURT: I read too much into it. I am sorry. 5 MR. MORVILLO: Hope springs eternal. I think we are 6 going to be able to resolve these issues. 7 THE COURT: By the way, I didn't mean to put you on 8 the spot, Ms. Shellow-Lavine. 9 MS. SHELLOW-LAVINE: It is not a problem. If the 10 court would like a copy of the letter? 11 THE COURT: No. I have it here. 12 MR. TIGAR: Your Honor, I ask the court's help with a 13 housekeeping problem. The marshals need to be in a certain 14 position in relationship to Mr. Sattar. The marshal just 15 informed us they need to have this little gate ajar here. That 16 is the first day that request has been made of us. 17 The problem, when it sits ajar like that, the hinges 18 start to make a clicking noise and I can't hear what is going 19 on. Could that matter be worked out because it really does 20 have to do with audiblity? 21 THE COURT: Fine. I will ask Mr. Fletcher to talk to 22 the Marshals to see what can be done about that. That is fine, 23 we'll try and work it out. 24 I also understand that the defendants' screens have 25 been adjusted by audiovisual, Mr. Blum told me. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4461 48DJSATC Conference 1 MR. RUHNKE: Yes, your Honor, that's correct. 2 THE COURT: Okay. Anything else? 3 Okay, good morning, all. 4 (Court adjourned) 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