4546 48HJSAT1 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 17, 2004 8 9:38 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 and a jury 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 4547 48HJSAT1 1 (Trial resumes) 2 (In open court; jury not present) 3 THE COURT: Good morning, all. Be seated. 4 MR. TIGAR: Good morning, your Honor. 5 Last evening at approximately 7:00 o'clock, the 6 government faxed to our Broadway office additional Jencks 7 material for Agent Kerns, which I caught up with this morning 8 about 8:00 o'clock. 9 My first concern is to know whether or not they also 10 tendered it to your Honor because Jencks Items 3525 W, 3525 X, 11 as in x-ray, and 3525 Yankee, 3525 Zooloo, 3525 Alpha 1, are 12 redacted copies. The redactions were accomplished on the 16th 13 of August, 2004 because they declassified the remainder of the 14 documents. Thus, I don't know whether the government is 15 presenting a CIPA issue or Jencks relevant issue or a statement 16 issue, or a combination of those. 17 Second, the documents are quite complicated, not the 18 ones I read off, but the earlier ones. Hundreds of files are 19 listed, and it is going to be impossible for me to go over them 20 until tonight to compare them. 21 3525 X and 3525 Y are approved by Agent Michael T. 22 Elliot. They relate to problems with the electromagnetic 23 tapes. Agent Elliot, at Page 3103 of the transcript, said on 24 direct examination, "and we started to notice that some of the 25 older tapes were failing." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4548 48HJSAT1 1 These Jencks Act memoranda tendered with respect to 2 Agent Kerns are relevant to that. 3 With respect to Agent Kerns, 3525 W says that all of 4 these tapes are unreadable by current New York software. A 5 memo of 4-16-2003, those are the electromagnetic tapes. 360 6 such tapes are unreadable, according to this memorandum. 7 Then in the memorandum of 9-30-03, drafted by Agent 8 Kerns, we learned that after the KROL on track visit to which 9 Agent Kerns testified, only 40 percent of the data was copied; 10 that is, they didn't get a complete job. 11 It is impossible for me to testify from this now, 12 although further review might help me, whether that was on one 13 of the problem tapes or all of the problem tapes. 14 Obviously, your Honor, we will factor in this 15 information to the memorandum that we will be filing with the 16 court, and we'll try to make some suggestions about how we feel 17 these issues should be handled. 18 My request now is that the government tender to the 19 court the Jencks items that I have identified and any other 20 material otherwise producible under the Jencks Act, Brady, Rule 21 16 or any other provision of law as to which they believe that 22 the court has a responsibility to review and redact. 23 If they're invoking CIPA because of classifications, 24 that we begin to take the steps towards a proper CIPA hearing. 25 If the claim is that materials are being held is not a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4549 48HJSAT1 1 statement within the meaning of the Act, then our request is 2 for a Campbell hearing. My further request is that we not have 3 Agent Kerns until tomorrow morning because even had I had these 4 things at 7:00 o'clock last night, I would not have been able 5 to go through them. 6 Just, for example, on 3525 U, as in uniform, I am 7 holding it up so the court can see it, it is page after page of 8 files I'll try to figure out in order to do an intelligible 9 cross-examination that doesn't waste the jury's time. 10 THE COURT: I assume Ms. Baker will be the one to 11 handle that? 12 MR. MORVILLO: I couldn't even begin to try, your 13 Honor. I can make arrangements for Ms. Baker, I'll call over 14 to the office to ask her to come over here to take this up at 15 the break. 16 THE COURT: Well, is Agent Kerns expected to testify 17 today? 18 MR. MORVILLO: Yes, he is, your Honor. 19 THE COURT: I hesitate to decide anything without 20 hearing a response. However, it isn't reasonable to put Agent 21 Kerns on until tomorrow. It wouldn't be clear that if Agent 22 Kerns started to testify today in response to a request for 23 more time to bring materials for the cross, I would have to put 24 the crossover until tomorrow. It is not clear to me why the 25 direct should proceed today. You can consider that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4550 48HJSAT1 1 MR. MORVILLO: I will inquire of Ms. Baker whether 2 that is possible with respect to the remainder of our evidence. 3 In other words, I believe that he is a prerequisite to 4 move forward with respect to other witnesses and other 5 exhibits, and I think -- 6 THE COURT: Well, his testimony wouldn't be completed 7 today, in any event. The timing and the availability of 8 evidence cannot be that close. 9 I took a three-week adjournment to allow the parties 10 to have lots of material prepared. 11 MR. MORVILLO: Your Honor, it relates to whether there 12 are transcripts in the chronological presentation of the 13 evidence that are on DVD that Mr. Kerns is going to be 14 introducing. So I believe we should be fine with Mr. Kerns 15 testifying tomorrow. Your Honor, we will not have a problem 16 filling out the day if Mr. Kerns testifies tomorrow. So if 17 that is necessary, based on the 3500 material that was produced 18 today -- or last night, I suppose -- then we will make 19 arrangements for that happening. 20 THE COURT: All right. 21 MR. TIGAR: May we tender a set of the 3500 material 22 to your Honor? 23 MR. MORVILLO: Your Honor has already been provided 24 with a copy. 25 MR. TIGAR: Will Mr. Morvillo be asked whether the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4551 48HJSAT1 1 copy your Honor has is with or without the redactions? 2 MR. MORVILLO: It is with the redactions, of course, 3 because the redacted material is classified. 4 THE COURT: You'll have to give me the numbers -- oh, 5 I see. 3525 -- what is the new 3500 material? 6 MR. MORVILLO: I believe your Honor has 3525 U, 3525 7 V, 3525 W -- 8 THE COURT: Hold on. 3525 U through -- 9 MR. MORVILLO: Z. 10 THE COURT: No, actually. 11 MR. TIGAR: U, Z and A1. The redactions begin with W. 12 We do have a pending CIPA request with respect to this issue of 13 tapes. 14 THE COURT: 3525 U through A1, I don't have unredacted 15 copies of W through A1. Why don't you -- 16 MR. MORVILLO: Yes. 17 THE COURT: -- you can do it at the break. 18 MR. MORVILLO: I can step out right now and make a 19 phone call, or I can do it at the break. 20 THE COURT: No. We can do it at lunchtime. 21 Is there anything else before we call the jury in? 22 MR. MORVILLO: Your Honor, there has been a request 23 from Ms. Stewart that I not stand at this podium here in front 24 of the jury while we are reading the transcripts because it 25 blocks the view of the jury. I don't have a problem with that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4552 48HJSAT1 1 I am happy to stay here at the table. It would be difficult I 2 think to share the podium with Mr. Barkow while we are doing 3 this, but we can also try that. 4 THE COURT: I don't care if you're standing there. 5 Does it block anyone if he stands there? Okay. Okay. 6 Anything else? Let's bring in the jury. 7 (Jury present) 8 THE COURT: Please be seated, all. Good morning, 9 ladies and gentlemen. 10 THE JURY: Good morning. 11 THE COURT: It is good to see you all. 12 Ladies and gentlemen, when we broke yesterday, we were 13 in the middle of a transcript. In the course of the 14 transcript, there were various newspaper articles that 15 occurred. I remind you that the newspaper articles were not 16 being admitted for the truth of anything that was said in the 17 newspaper articles, and I previously instructed you on 18 newspaper articles, all right? 19 The government may proceed. 20 MR. MORVILLO: Thank you, your Honor. May Mr. Bove 21 come forward? 22 THE COURT: Yes. 23 MR. MORVILLO: Your Honor, it occurs to me if I stand 24 here, I may be blocking the screen. 25 A JUROR: Yeah, I can't see. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4553 48HJSAT1 1 MR. MORVILLO: I can try to stand back at the podium 2 with Mr. Barkow. 3 THE COURT:: All right. Hold on one moment. I 4 believe that we've got a -- 5 MR. MORVILLO: May we publish this to the jury, your 6 Honor? 7 THE COURT: Yes. You're publishing Government Exhibit 8 1700 TA? 9 MR. MORVILLO: 1700 X, your Honor. 10 THE COURT: 1700 X? All right. 11 What page at 1700 X? 12 MR. MORVILLO: On the screen is line 16 Page 65, I 13 believe, your Honor. 14 THE COURT: All right. Okay, you may proceed. 15 (At this time, Government Exhibit 1700 X was displayed 16 and read) 17 MR. MORVILLO: End of tape. At this time the 18 government would request request permission to display 1701 X 19 and read it to the jury. 20 THE COURT: Do you want to take a stretch break before 21 we do that? 22 THE COURT: All right. Ladies and gentlemen, we can 23 take a stretch break. 24 (Pause) 25 MR. MORVILLO: Your Honor, may we publish Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4554 48HJSAT1 1 Exhibit 1701 X to the jury? 2 THE COURT: Yes, 1701 X in evidence, all right. 3 MR. MORVILLO: For the record, Government Exhibit 1701 4 X is a Visit in Minnesota, dated February 19, 2000, videotape 5 2, with Abdel Rahman, Mohammad Yousry and Abdeen Jabara. 6 (At this time, Government Exhibit 1701 X was displayed 7 and read) 8 (Continued on next page) 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 4555 48HLSAT2 1 (Continued reading of Government's Exhibit 1701X) 2 THE COURT: Ladies and gentlemen, we'll take the mid 3 morning break. Please remember my continuing instruction not 4 to talk about the case. 5 All rise, please. Please follow Mr. Fletcher to the 6 jury room. 7 (Jury exits the courtroom) 8 THE COURT: All right. See you shortly. 9 (Morning recess) 10 (In open court) 11 THE COURT: All right, be seated all. 12 Bring in the jury. 13 (Jury enters the courtroom) 14 THE COURT: Mr. Morvillo? 15 MR. MORVILLO: May we continue, your Honor? May we 16 publish to the jury, your Honor? 17 THE COURT: Yes. 1701X. 18 MR. MORVILLO: May we proceed, your Honor? 19 THE COURT: Yes. 20 (At this point, Government Exhibit 1701X, in evidence, 21 continuing, read and displayed to the jury) 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4556 48HJSAT3 1 (At this time, Government Exhibit 1701 X was displayed 2 and read) 3 THE COURT: Let's take a stretch break right now. 4 (Pause) 5 THE COURT: All right. Thank you, all. Please be 6 seated. Go ahead. 7 (At this time, Government Exhibit 1701 X was displayed 8 and read) 9 MR. MORVILLO: Your Honor, the government would 10 request permission to publish to the jury and read Government 11 Exhibit 1702 X, which is a continuation. 12 THE COURT: All right. 1702 X in evidence, all right. 13 (At this time, Government Exhibit 1702 X was displayed 14 and read) 15 THE COURT: When is a convenient time to break? 16 MR. MORVILLO: This is a convenient time, your Honor. 17 THE COURT: All right. Ladies and gentlemen, we'll 18 break for lunch. Please remember my continuing instructions 19 not to talk about the case, keep an open mind. 20 (Jury excused) 21 THE COURT: Please sit down. 22 All right. Please be seated. 23 MR. BARKOW: Your Honor, may I be excused? 24 THE COURT: Yes. There was a request that Agent Kerns 25 not testify until tomorrow morning so that the defense can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4557 48HJSAT3 1 review the 3500 material that was produced, which is 3525 W 2 through 3525 -- I am sorry -- the recent. 3 MS. BAKER: Your Honor is correct, 3525 W through 3525 4 A1. 5 THE COURT: Okay. I wasn't sure if there was more 6 recent 3500 material or if that was just the 3500 material as 7 to which there were redactions. 8 MS. BAKER: Your Honor, 3525 W through 3525 A1 is the 9 entire most recently produced set of -- I am sorry. Let me 10 correct myself -- the entire set of most recently produced 3500 11 material is 3525 U through A1. So U and B are two different 12 lists which do not have any redactions. 13 So it is 7 items altogether, and five of those 7, 14 which are W through A1, are the ones that have redactions. 15 THE COURT: All right. The volume of the material is 16 actually, looking at the stack, not very great, but it was 17 pointed out that the number of items, particularly on U and V, 18 are extensive. And so there was a representation that time was 19 needed to examine that before cross, and the request was that 20 Agent Kerns -- the first request was that Agent Kerns be held 21 over until tomorrow. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4558 48HLSAT4 1 MS. BAKER: Your Honor, if I might address the 2 documents, U, N, V individually; and then W through A1 as a 3 group: 4 I will proffer to counsel and the Court that "U" is a 5 list of those calls that had not yet been retrieved and 6 produced to the defendants in pretrial discovery as of some 7 point in about mid 2003. So it lists approximately 516 calls, 8 as is noted on the top of the first page. So it is nothing 9 more than a list of calls by date, time and telephone number 10 that had not yet been retrieved. So it's not a very 11 substantive document. It's difficult to imagine why it would 12 take very long to review it. Again, it relates to pretrial 13 discovery, and obviously any calls that were never retrieved 14 are not being used by the government in evidence, and calls 15 that have been retrieved have been testified about, and the 16 processes that led to their retrieval have already been 17 testified about. 18 Turning to Government Exhibit 3525V, I will proffer 19 that that is a list which lists all of the calls that the 20 government is offering into evidence at this trial. It 21 identifies each call by its date, time, telephone number, 22 government exhibit number and which DVD it's on, and then in 23 the right hand column it indicates whether -- if the call came 24 from the Lockheed Martin system, which particular eight 25 millimeter or electromagnetic tape it was originally recorded SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4559 48HLSAT4 1 on. Or if the call came from the Raytheon system, it merely 2 says Raytheon. Again, not a terribly substantive document. 3 It's difficult to imagine that it would take very long to 4 review. 5 As to Government Exhibits 3525W through A1, they 6 are -- none of those documents is more than three pages long. 7 And I don't know whether your Honor has looked at them yet, but 8 actually, even though there are some that occupied parts of 9 three pieces of paper, none of them actually has more than 10 about a page worth of content of which in each one maybe a 11 paragraph or so is actually substantive. So again, it's 12 difficult to imagine why between whatever remained of yesterday 13 evening after the documents were faxed and the time of the 14 lunch hour today, it's difficult to imagine why counsel was not 15 able to review those documents and prepare the 16 cross-examination of Agent Kerns about that. 17 I would only note in addition to the nature of the 18 documents themselves, that the Jencks Act itself specifically 19 provides for documents to be disclosed at the end of direct 20 examination, and obviously we've disclosed them earlier than 21 that, but not as early as we might wish to under other 22 circumstances. 23 As to the reason, I would just note for the Court that 24 the latter five of them had to be declassified before they 25 could be disclosed, and the declassification process was not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4560 48HLSAT4 1 completed until yesterday. 2 As to Government Exhibit 2535B, that was information 3 just compiled by Agent Kerns, so that document was not 4 completed and prepared for disclosure until yesterday. 5 MR. TIGAR: I would respond briefly. First, your 6 Honor, the calls not yet retrieved have been the subject of 7 testimony. And the retrieval process, the gradual production 8 to us, is a matter about which Agent Kerns has testified on 9 direct and cross. I need time to look through those items and 10 see just where we are on nonproduction. 11 Mr. Paul also cross-examined about it. 12 However, turning now to the item identified as 3525B, 13 it is true that the last column of six columns appears to 14 contain, with respect to the electromagnetic tapes, tape, 15 serial numbers or number. While it may be true that I can read 16 that quickly, I find that for example if I turn to 3525W, 17 and -- excuse me, 3525X, and I look at the first serial number 18 listed there, 00040G31, I could turn back -- and this is why 19 this is so time-consuming -- to Page 21 of the government -- 20 that's page -- of the government fax. And I find that tape on 21 3525V, oh, there it is, yes. At Page 15 of the government's 22 fax. So the fax line at the top, about 12, 13 lines down. 23 That's on ADA1000. 24 THE COURT: Hold on. 25 MR. TIGAR: I'm sorry, your Honor. In short -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4561 48HLSAT4 1 THE COURT: I have 3525B. Why don't you give me the 2 date of the call? 3 MR. TIGAR: The date of the call. Yes, your Honor. 4 The date of the call is 2-12, 2000, 15:05:32. I'm sorry, your 5 Honor, I'm just reading this as I go along. 6 So that's on there. I don't know which other ones are 7 on there. However, my concern, and what I need to get ready to 8 cross-examine on, for example, is that this was a tape that was 9 sent apparently on 7-15, 2003 as reflected in a memorandum 10 approved -- which is a Jencks Act word -- by Mr. Elliott. And 11 apparently some processing was done. 12 The significance of that, it's hard for me to figure 13 out. I regret that I believe that effective cross-examination 14 rather than a government proffer is the best way to do this. 15 At Page 3371 of the transcript, Miss Baker moved to 16 preclude me from examining Agent Kerns on his first appearance 17 about the 33 tapes that went to Minneapolis, because, she said, 18 "I questioned him very carefully about whether any of the 19 recordings on this trial DVD came from tapes that were 20 sufficiently deteriorated that measures had to be taken." 21 And then she repeated that representation, saying, 22 "None of the recordings on this trial DVD resulted from that 23 process." And at Page 3372, said, "Therefore, that's 24 irrelevant to the issue of the accuracy." 25 I then raised the issue with Agent Kerns on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4562 48HLSAT4 1 cross-examination -- 2 THE COURT: Are you talking about Elliott or Kerns? 3 MR. TIGAR: Kerns, your Honor. Because Kerns is the 4 one that went to Minneapolis. 5 THE COURT: I understand that. Hold on. 6 MR. TIGAR: I raise it on the cross. Because I raised 7 it on the cross, my Jencks opportunities were limited. 8 THE COURT: Hold on. 9 MR. TIGAR: I therefore, your Honor -- 10 THE COURT: Hold on. You are mixing a couple of 11 things. With respect to the tapes taken to Minneapolis, there 12 was -- which is the subject of the other papers that were 13 already submitted -- government disclosure that one out of -- 14 MS. BAKER: If your Honor is looking for the total 15 number of calls, it was three. One on -- 16 THE COURT: I know it was three. But it was one out 17 of 127 calls on government Exhibit 1000; and two out of 47 on 18 1300. And there was cross-examination of Agent Kerns with 19 respect to whether Agent Kerns believed that any of the calls 20 on Government Exhibit 1000 were taken to Minneapolis, and he 21 said he didn't believe so. 22 Since then -- and that was -- that was disclosed. And 23 since then, not in this group of 3500 material, but previously, 24 which was the subject of the other papers, the documents 25 relating to the trip to Minneapolis and those files were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4563 48HLSAT4 1 disclosed. 2 Now, the only reason that I socked you was that I 3 thought you were going beyond this 3500 material. It was 4 already disclosed in the prior correspondence that Agent Kerns 5 was going to testify when he resumed the stand about the disks 6 that he took to Minneapolis. So that was already there. 7 MR. TIGAR: Yes, your Honor, that was attached to the 8 August 3rd letter. 9 Now, however, 3525X reveals that the technical 10 problems that led to going to Minneapolis were documented in a 11 certain way. And they were documented on the 15th of July, 12 2003. 13 Now, I, in a careful cross-examination, attempted to 14 establish whether there were documents. Agent Kerns got a case 15 of the forgets or something, because I didn't find out about 16 any documents. I now have some. They're not of very much use 17 to me unless I can zero in on particular parts of particular 18 documents. That's my point. Because I don't want to waste the 19 jury's time by conducting a discovery deposition here. I want 20 to focus in just on the things that are revealed in what the 21 government has now chosen to produce to us. 22 So that's Item 1. 23 But Item 2, your Honor, and I was perhaps mixing 24 something up, we will have a further application with respect 25 to the fact that Mr. Elliott approved the document. I did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4564 48HLSAT4 1 mention that in passing. But that's for another day. 2 And it also bears noting that regardless of the timing 3 of Jencks production, we believe that the Court should have the 4 unredacted material in order to determine whether or not we 5 were entitled to further production. Because there is a rather 6 larger number of deteriorated or degraded tapes that is 7 mentioned in the Jencks material We have than the 33 that went 8 to Kroll, or Kroll Ontrack, as it was known in Minneapolis. I 9 don't know where that would lead. I don't know where an 10 examination of the portions redacted would lead in terms of 11 what's relevant and what's not. Perhaps they're not talking 12 about tapes that contain calls about this case. I just don't 13 know. 14 THE COURT: The -- 15 MR. TIGAR: Your Honor, I'll say one other thing: I 16 understand the declassification process takes time. But I 17 don't understand why a declassification process doesn't happen 18 until the 16th of August, 2004 about a document authored by a 19 man named Michael Elliott who's been here and testified about 20 this, as an expert who's supposed to know everything. 21 MS. BAKER: Your Honor, obviously the government got 22 the documents declassified promptly after they were found. 23 That's all I can say in response to Mr. Tigar's last comment. 24 In response to his previous one, I think it's plain 25 from the face of the documents and where the redactions are as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4565 48HLSAT4 1 compared to the remaining text of the document that the things 2 that are redacted are not names or identifiers of other tapes 3 or numbers of tapes, but, in any event, the government is 4 prepared to submit the unredacted documents to the Court for 5 review over the lunch hour. However, the unredacted documents 6 are classified. And if the Court is essentially granting 7 Mr. Tigar's request that the Court does review the documents, 8 the government will have to have an appropriate government 9 personnel who is authorized to bring the documents over, bring 10 them to the Court at whatever time and place the Court directs. 11 THE COURT: Well -- 12 MS. BAKER: Your Honor, if the Court doesn't wish to 13 review the documents over lunch but does wish to review them, 14 the government will go ahead with the presentation of a 15 different witness and take a witness out of order to put Agent 16 Kerns over. But, you know, there really is not a lot of 17 information. 18 THE COURT: All right. 19 MS. BAKER: I'm sorry, your Honor. The other thing I 20 did want to add: With respect to Government Exhibit 3525V, 21 which is the list of calls, and then in the right-hand column, 22 indication of their tape number, the calls are listed in 23 chronological order. It works out also that the tape numbers 24 are essentially in numerical order. The first two digits of 25 the tape number is the year. And then the rest of the tape's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4566 48HLSAT4 1 identifying number is in numerical order. So it is not 2 difficult to cross-reference this list with a tape number that 3 appears anywhere else, because when you look for a particular 4 tape number in this list, you need only look for it in its 5 numerical order. 6 THE COURT: All right. If there's a request for my -- 7 are all the redactions on 3525W through A1 redacted because 8 they're classified? 9 MS. BAKER: Your Honor, I'm not able to answer that 10 question. I don't know the FBI's determination for individual 11 redactions. I can only say to the Court that as the document 12 appeared in its entirety unredacted. It is classified. And as 13 to its declassification, the documents are declassified only 14 with all of these redactions in them. As is indicated on the 15 face of each document. You'll note that right underneath the 16 declassification stamp on each one it says: This redacted copy 17 only. 18 But as to the individual pieces of information, I am 19 not able to parse them that way for the Court. 20 MR. TIGAR: If that's the case, your Honor, then we 21 have a double standard here because the Jencks Act requires a 22 ruling only as to relevance. If it's relevant, we get it. And 23 that is of course an in camera determination. If it's relevant 24 but it's determined not to be a statement, then we have a 25 camera hearing. If however the claim is that there's a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4567 48HLSAT4 1 classification issue, then I respectfully submit that there's a 2 CIPA type determination which requires a somewhat different 3 procedure. 4 So I don't know whether or not it -- it's possible to 5 comply with Jencks Act review standards without some 6 identification of the basis on which the government claims the 7 material should be withheld from us. 8 MS. BAKER: Your Honor, the redactions were made by 9 the people involved in declassifying documents at the FBI. 10 However, I have reviewed unredacted copies of the materials. I 11 have the clearance to do so. And I will represent to the Court 12 that it is my determination that the redacted materials are not 13 responsive to the Jencks Act. They're not relevant to 14 cross-examination of Agent Kerns or any witness about these 15 documents. 16 MR. TIGAR: The difficulty of applying the legal 17 standard persists. I suppose if your Honor looked at all of 18 them and said that none of them is relevant, even applying the 19 Jencks Act standard, then that's the issue. But that would 20 require that finding, in our respectful submission. 21 THE COURT: Well, then the documents should be deemed 22 to be given to me, and I'll review them. I can't reasonably 23 review them over lunchtime. I'll review them at the end of the 24 day. 25 The number of redactions is really not very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4568 48HLSAT4 1 substantial. But I will review them at the end of the day. 2 It would also, just to refresh my recollection, be 3 useful for the government to give me the last memo on CIPA. I 4 take it that the government is simply asking that I review all 5 of these under the Jencks Act standard rather than CIPA. 6 MS. BAKER: As an initial matter, your Honor, the 7 government would ask the Court to review the documents with the 8 Jencks Act standard in mind that disclosure is not necessary 9 under the Jencks Act. 10 If the Court were to disagree with that, the 11 government would need to consider what appropriate relief to 12 seek under CIPA. 13 THE COURT: But it's not clear if I thought that 14 something was possibly -- was relevant, that it would be 15 covered by CIPA. 16 MS. BAKER: Your Honor, I don't believe that that's 17 true. I mean, the classified information procedures act 18 presumes or assumes that classified information is relevant in 19 some way to a criminal case, either to the discovery process or 20 to something that's happening at trial. And then CIPA provides 21 procedures that are to be used in dealing with that relevant 22 classified information. Among those procedures, for example, 23 there are situations in which an unclassified substitution 24 would be used in lieu of classified evidence. 25 So in the government's view, the threshold question of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4569 48HLSAT4 1 relevance only gets us to whether or not then CIPA gets invoked 2 to seek some sort of substitution or nondisclosure order 3 notwithstanding relevance, and so on. 4 THE COURT: But some of these redactions may not be 5 required by CIPA. But you're saying, Look, the document itself 6 is unclassified only as redacted, so that you have to look at 7 all of the redactions in any event. 8 MS. BAKER: Your Honor, the redactions were made by 9 FBI as part of their process of declassifying the document. 10 And so the documents came up in what might seem to be a CIPA 11 context because they were made as part of the declassification 12 process. 13 As I said, I reviewed them, and independently, I 14 submit that the redacted information is not relevant under the 15 Jencks Act, but just as a factual matter, the way it came about 16 in this context, it wasn't that I redacted them first under the 17 Jencks Act and then the FBI declassified them. It was the FBI 18 redacted them in order to declassify them, and then I looked at 19 them and asked myself, Okay, given what's been redacted out of 20 here, is this still sufficient under the Jencks Act? Or do I 21 need to immediately seek some sort of CIPA relief because 22 something was relevant and yet was redacted? 23 And my answer to that question was: No: I don't need 24 to seek any relief under CIPA because, coincidently, redactions 25 that were done for purposes of declassifying also comport with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4570 48HLSAT4 1 the Jencks Act. 2 MR. TIGAR: Your Honor, I don't want to respond to 3 that, but I would respectfully request that in conjunction with 4 the government's ongoing review, and prior to Agent Kerns' 5 appearance, that they could get an answer on a technical 6 problems issue that Ms. Banout raised yesterday and about which 7 they were going to inquire, because at Pages 4151 and 4152 of 8 the transcript, Agent Kerns talked about his role and the role 9 of others in his unit with respect to those technical problems. 10 It would streamline things if we had some answer on that. 11 MS. BAKER: Your Honor, I don't understand Mr. Tigar's 12 request. I wasn't present yesterday, because it's my 13 understanding that in response to cross-examination, Ms. Banout 14 referred to certain documents that she had created at some 15 point. And a search for those documents is under way. If such 16 documents are found and if such documents are determined to be 17 disclosable to Mr. Tigar, that might give him a reason to want 18 to recall witnesses as part of his case to explore issues that, 19 at best, would go to trying to persuade the jury to give the 20 calls less weight. But the government doesn't view the 21 existence of such documents or what they might say as 22 preventing the government from being able to go ahead and 23 authenticate recordings and offer them into evidence. And 24 moreover, the bulk of the recordings are in already, so again, 25 this is an issue that goes, if anywhere, to the weight of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4571 48HLSAT4 1 recordings. And I understood your Honor's prior rulings as 2 basically saying that the defense could explore that in its own 3 case to the extent that it wished to do so. 4 THE COURT: That was the original ruling. I certainly 5 couldn't or wouldn't with respect to the telephone calls, which 6 are in evidence or if there are additional phone calls which 7 are going to be sponsored with Agent Kerns, preclude a question 8 on cross whether he received any memos reflecting that there 9 were technical problems with those calls. Or whatever the 10 appropriate terminology will be, if he received a memo from a 11 translator. 12 All right. I'll review the memos tonight. 13 See you all at 2:15. 14 (Luncheon recess) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4572 48HLSAT4 1 A F T E R N O O N S E S S I O N 2 2:20 p.m. 3 (In open court; jury not present) 4 THE COURT: Good afternoon, all. Please be seated. 5 Let's bring in the jury. 6 MR. PAUL: You can proceed without Mr. Fallick. He 7 had something else to attend to. 8 THE COURT: All right. 9 If we're continuing reading, Mr. Bove can take the 10 stand. 11 (Jury entering courtroom) 12 THE COURT: Please be seated all. Good afternoon, 13 ladies and gentlemen. 14 JURORS: Good afternoon. 15 THE COURT: Good to see you all. When we broke for 16 lunch, we were in the middle of -- or in Government Exhibit, 17 transcript 1702X. 18 MR. MORVILLO: May we continue, your Honor? 19 THE COURT: Yes. 20 MR. MORVILLO: May we publish to the jury as well? 21 THE COURT: Yes. 22 MR. BARKOW: May we proceed, your Honor. 23 THE COURT: Yes. 24 (At this point, Government Exhibit 1702X, continued, 25 in evidence, was displayed and read to the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4573 48HLSAT4 1 THE COURT: Yes, Mr. Morvillo? 2 MR. MORVILLO: Your Honor, at this time the government 3 would call Victoria Benjamin. 4 MR. BARKOW: May I approach, your Honor? 5 THE COURT: Sure. 6 (Witness sworn) 7 DEPUTY CLERK: Please be seated. Please state your 8 full name and then spell your last name slowly for the record. 9 THE WITNESS: Victoria Benjamin. 10 DEPUTY CLERK: Speak a little louder. 11 THE WITNESS: Victoria Benjamin. 12 THE COURT: Please keep your voice up and talk into 13 the microphone. 14 THE WITNESS: All right. 15 MR. MORVILLO: You can pull the microphone towards you 16 a little. 17 THE WITNESS: Yes. 18 VICTORIA BENJAMIN, 19 called as a witness by the Government's, 20 having been duly sworn, testified as follows: 21 DIRECT EXAMINATION 22 BY MR. MORVILLO: 23 Q. Good afternoon. How are you employed? 24 A. Excuse me? 25 Q. How are you employed? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4574 48HLSAT4 Benjamin - direct 1 A. I work for the FBI. 2 Q. And what is your job with the FBI? 3 A. Language specialist. 4 Q. How long have you been employed as a language specialist at 5 the FBI? 6 A. For 23 years. 7 Q. And in what language are you a language specialist? 8 A. Arabic language. 9 Q. The Arabic language? 10 A. Yes. 11 THE COURT: Ms. Benjamin, the acoustics in the 12 courtroom are not very good. So please keep your voice up and 13 speak into the microphone. All right? 14 THE WITNESS: All right. 15 THE COURT: Thank you. 16 THE WITNESS: You're welcome. 17 BY MR. MORVILLO: 18 Q. How long have you spoken Arabic? 19 A. This is my native language. 20 Q. Where were you born? 21 A. Alexandria, Egypt. 22 Q. And how long did you live in Egypt? 23 A. For 30 years. 24 Q. Three years? 25 A. 30 years. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4575 48HLSAT4 Benjamin - direct 1 Q. 30 years? 2 A. Uh-huh. 3 Q. When did you come to the United States? 4 A. 1972. 5 Q. Are you fluent in Arabic? 6 A. Yes. 7 MR. MORVILLO: Your Honor, the parties have previously 8 stipulated that Miss Benjamin is an expert in Arabic-English; 9 translation, and the government would request permission to 10 have her testify as such. 11 MR. TIGAR: Yes, your Honor, we have stipulated to 12 that. That's a true story. 13 THE COURT: All right. The witness will testify. 14 BY MR. MORVILLO: 15 Q. Miss Benjamin, how long have you been working as a language 16 specialist on this case or in this investigation? 17 A. Six years. 18 Q. Since 1998? 19 A. 1998. 20 Q. Have you created any transcripts, verbatim transcripts, for 21 use in connection with this case? 22 A. Yes, I did. 23 Q. How long have you been working on preparing transcripts for 24 this case, verbatim transcripts? 25 A. Excuse me? What? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4576 48HLSAT4 Benjamin - direct 1 Q. How long have you been working on preparing verbatim 2 transcripts for this case? 3 A. Since I started, when we got the case. 4 Q. And how much of your time at work is devoted to working on 5 preparing transcripts for use in this case? 6 A. What do you mean, hours? 7 Q. Hours? What percentage of your time? 8 A. It's 100 percent. 9 Q. 100? 10 MR. MORVILLO: May I approach the witness, your Honor? 11 THE COURT: Yes. 12 Q. Miss Benjamin, I've placed before you a stack of documents, 13 and after that a stack of DVDs. Do you see that? 14 A. Yes. 15 Q. Can you look at that stack of DVDs? And for the record, 16 they are Government Exhibit 1315C, Government Exhibit 1315, 17 Government Exhibit 1317VB, Government Exhibit 1301VB, and 18 Government Exhibit 1300VB. 19 Miss Benjamin, do you recognize those? 20 A. Yes, I do. 21 Q. What are they? 22 A. This is the DVDs that I reviewed and finalized transcripts 23 through these DVDs. 24 Q. And who gave you those DVDs to use? 25 A. Special Agent Scott Kerns. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4577 48HLSAT4 Benjamin - direct 1 Q. And how do you recognize them? How do you recognize them 2 sitting here in court? 3 A. I made initials on the top of them. 4 Q. Your initials are on each one? 5 A. Yes, on each of them. 6 Q. Directing your attention to the stack of documents in front 7 of you, for the record, I've given you what's been marked for 8 identification as Government Exhibits 1063T, 1072T, 1074T, 9 1077T, 1080T, 1081T, 1082T, 1084T, 1085T, 1086T, 1087T, 1105T, 10 1106T, 1109T, 1110T, 1113T, 1114T, 1116T, 1118T, 1147T, 1149T, 11 1150T, 1160T, 1172T, 1174T, 1176T, 1177T, 1178T, 1196T, 1197T, 12 1198T, 1204T, 1234T, 1242T, 1251T, 1259T, 1260T, 1261T, 1262T, 13 1263T, 1264T, 1265T, 1266T and 1267T. 14 While I was reading that list, did you have an 15 opportunity to flip through those documents in front of you? 16 A. Yes. 17 Q. Do you recognize them? 18 A. Yes. 19 Q. What are they? 20 A. They're the transcripts I was preparing from the 21 translation from the DVD. 22 Q. And they are transcripts of files contained on the DVD? 23 A. Yes. 24 Q. On all those DVDs? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4578 48HLSAT4 Benjamin - direct 1 Q. And how do you recognize them? 2 A. I have reviewed it, I have my initial and the date on each 3 one of them. Each page. 4 Q. On each page of each transcript? 5 A. Pardon? 6 Q. On each page of each transcript? 7 A. On each page, yes. 8 Q. And in your opinion, are those true and accurate 9 translations of the audio files contained in the DVDs? 10 A. Yes, they are. 11 MR. MORVILLO: May I have a moment, your Honor? 12 THE COURT: Yes. 13 (Off the record discussion) 14 MR. MORVILLO: Your Honor, I have no further questions 15 at this time. I would just note for the record that three of 16 the DVDs are initialed with the initials V as in Victoria and B 17 as in Benjamin, just for clarification purposes. That would be 18 1317VB, 1301VB and 1300VB. 19 MR. TIGAR: May I inquire, your Honor? 20 THE COURT: Yes. 21 CROSS EXAMINATION 22 BY MR. TIGAR: 23 Q. Ms. Benjamin, looking at the documents that are in front of 24 you, would you please find Number 1149T? 25 A. 1149T? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4579 48HLSAT4 Benjamin - cross 1 Q. Yes, Ma'am. 2 MR. MORVILLO: May I approach, your Honor? 3 THE COURT: Yes. 4 MR. TIGAR: I'm also going to be inquiring about 1150 5 and 1261. Thank you. 6 MR. MORVILLO: Okay. 1150, and what was the other 7 one? 8 MR. TIGAR: 1261. 9 MR. MORVILLO: May I approach, your Honor? 10 THE COURT: Yes. 11 BY MR. TIGAR: 12 Q. Ms. Benjamin, on Page 1 of 1149, at Line 2, you see the UI, 13 or unintelligible? 14 A. Yes. 15 Q. Now, what was your practice with respect to an 16 unintelligible? When would you put an unintelligible? 17 A. Unintelligible when the words are not -- you can't hear the 18 words. I can't figure out what is -- he said or she said. 19 Q. And how long were the unintelligibles? Was it a matter of 20 a second or two or were there some unintelligibles that went 21 longer than a second or two? 22 A. It could be a second. It depends on the phrase or the 23 words they are saying. 24 Q. And you did not put for each one how long the 25 unintelligible was, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4580 48HLSAT4 Benjamin - cross 1 A. No, I didn't. 2 Q. Now, would you turn to Page 2 of 1149T and look at Line 8. 3 Do you see the words there, technical problem, in brackets? 4 A. Yes. 5 Q. Now, what was -- what's a technical problem? 6 A. Sometimes when they're talking the -- like, the call or the 7 conversation between the two parties, you hear like a whistle. 8 You hear like -- it's not complete. You hear like noises, 9 information, scratchy voice. That's what we call technical 10 problems. 11 Q. Did you have some instructions that you followed in your 12 work about what to do when you heard something that was a 13 technical problem? 14 A. I don't -- can you explain what you -- 15 Q. Of course. Did you talk to somebody else in the FBI there 16 about this technical problem? 17 A. Yes, we do. 18 Q. And to whom would you talk about that? 19 A. Special operation. 20 Q. And would you make a written report of the technical 21 problem? 22 A. Yes, we do. 23 Q. Was there a particular form that you used to make this 24 written report of the technical problem? 25 A. Yes, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4581 48HLSAT4 Benjamin - cross 1 Q. And what did that look like? 2 A. It's a form from linguist or language specialist, Victoria 3 Benjamin, to this learn in charge of the special operation, the 4 name, and the time -- the date of the call, the time, and then 5 we have a case number, its time, telephone number. And we 6 explain the problem, when started and something I give to my 7 supervisor, he initial it, and they go to special operations. 8 Q. Would you put the name of someone in special operations 9 that this was supposed to go to, the name of a particular 10 person. 11 A. The name that is on the form. 12 Q. Do you remember whose name was on the form that you used 13 for this call? 14 A. No, I don't. 15 MR. MORVILLO: Objection. 16 Q. Now, do you remember the form that you filled out about 17 this particular call? 18 MR. MORVILLO: Objection, your Honor. Object that the 19 witness testified that -- 20 THE COURT: Stop. 21 Q. Did you fill out a form about this technical problem? 22 A. I can't remember. 23 Q. Would you take a look please at 1150T, which is in front of 24 you? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4582 48HLSAT4 Benjamin - cross 1 Q. And look at Line 11 on Page 1? 2 A. Yes. 3 Q. You see the words "technical problems", right? 4 A. Yes. 5 Q. Now, do you remember what the technical problems were? 6 A. This is the same as I explained before. It could be 7 scratchy voices. Could be intermission. Could be like the 8 voice is not clear, it's whistled. 9 Q. Now, on 1149T -- 1149, the one we looked at before at 10 Line 8 it says technical problem, and on 1150 can you clarify 11 it says technical problems, plural. Can you remember if there 12 were more problems with this one than there were -- 13 A. I think it's typing error. 14 Q. Do you remember whether or not you made out a form 15 reporting the technical problem or problems with 1150? 16 A. No, I don't remember. 17 Q. Now, would you look please now at 1261, the third of the 18 files? 19 A. Yes. 20 Q. And on Page 2, do you see at Lines 6 and 7, Line 10, 21 Line 11, Line 16, Line 18, Line 21, the words technical 22 problems? 23 A. Yes. 24 Q. Do you remember what the problems were? 25 A. Always the same. The same thing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4583 48HLSAT4 Benjamin - cross 1 Q. Do you remember whether you made a report about those? 2 A. I myself, I don't remember. It's been a long time. 3 Q. It's been a long time since you did this? 4 A. This is two -- no, you are asking if I report it, but this 5 is -- I don't remember if I report it or not. 6 Q. When did you do the translation? 7 A. The translation -- recently. But I mean, you're asking 8 about the problem. Has it been reported or not. 9 Q. You say the translation was done -- finished on August the 10 ninth, correct? 11 A. Yes. 12 Q. Of this year? 13 A. Yes. 14 Q. Is it your recollection that you reported the problems at 15 some earlier time? 16 MR. MORVILLO: Objection. 17 THE COURT: Rephrase. 18 Q. Do you remember -- did you -- do you remember when you 19 first became aware of the problems on this call? 20 A. Yes, I do. 21 Q. When was that? 22 A. This started when -- these were beginning -- was started 23 first transcript of translation was done in 2000, in the year 24 2000. Maybe in 6, 2000. And this was a summary, because of 25 the determination and all of the problems that we had. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4584 48HLSAT4 Benjamin - cross 1 Then we started doing it verbatim in August this year. 2 Q. Now, in this call, there's a reference, if you look on 3 Page 2 at Line 24, you understand that the female lawyer... 4 Do you see that? 5 A. Excuse me, page what? 6 Q. Page 2 of 1261. 7 A. Which line? 8 Q. Line 24. 9 A. Yes. Yes. 10 Q. Do you understand that the female lawyer -- correct? 11 A. Yes. 12 Q. And you put the word female in there because the Arabic 13 word had the suffix for female, correct? 14 A. Right. 15 Q. When you did the transcripts that are in front of you now 16 and the witnesses you were looking at earlier, very recently, 17 did you use the same computer file, digital file, to listen to, 18 that you had listened to back in 2000 or whenever the call was? 19 A. Excuse me? I don't understand the question. 20 Q. You did the translation by listening to a call on 21 earphones, correct? 22 A. Correct. 23 Q. And you were sitting in a cubicle on the 24th floor, 24 correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4585 48HLSAT4 Benjamin - cross 1 Q. And there are a number of cubicles on that floor, correct? 2 A. You're talking about the first translation? 3 Q. No, the one you just did? 4 A. The one -- yes. 5 Q. All right. Now, what you listened to to make the 6 translation that you're talking about now -- 7 A. Yes. 8 Q. -- was it the same exact recording as you had listened to 9 back in 2000? Or had it been processed in some way? 10 A. I listened through the DVD, and it had been enhanced. A 11 lot better than it was before. 12 Q. And so when you wrote technical problems on the three files 13 I've asked you about, you were still seeing those or hearing 14 those technical problems on the enhanced audio, correct? 15 A. Correct. 16 Q. So even after it had been enhanced, you put that bracketed 17 information, correct? Technical problems? 18 A. Yes. 19 MR. TIGAR: May I have a moment, please, your Honor? 20 THE COURT: Yes. 21 (Off the record) 22 BY MR. TIGAR: 23 Q. You mentioned that for some technical problems reports, the 24 supervisor would initial them? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4586 48HLSAT4 Benjamin - cross 1 Q. Who was that supervisor? 2 A. Oh, it changed. We have about two or three. We change 3 them. I don't remember each one. If you would give me 4 records, maybe find out. But I really -- I don't remember who 5 it was at the time of 2000 who was the supervisor. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4587 48HJSAT5 Benjamin - cross 1 Q. Was the supervisor in the language specialist division or 2 was it in -- 3 A. In the language division. 4 MR. TIGAR: Thank you very much. 5 THE WITNESS: You're welcome. 6 MR. TIGAR: I have no further questions. 7 THE COURT: All right. 8 MR. MORVILLO: Briefly, your Honor? 9 THE COURT: Yes. 10 REDIRECT EXAMINATION 11 BY MR. MORVILLO: 12 Q. Ms. Benjamin, you testified that this call was referring to 13 this transcript was from June of 2000? 14 A. Yes. 15 Q. Are those three transcripts that Mr. Tigar directed your 16 attention to, are those different calls or are they the same 17 phone call? 18 A. Same calls. 19 Q. Are they the same phone call or different telephone calls? 20 A. The same. 21 Q. How many transcripts do you know were prepared with this 22 telephone call? 23 A. Lots. 24 Q. Why was that? 25 A. Why? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4588 48HJSAT5 Benjamin - cross 1 Q. Why is that there is more than one transcript reflecting 2 this telephone conversation? 3 A. I don't understand the question. 4 MR. MORVILLO: May I approach, your Honor? 5 THE COURT: Yes. 6 BY MR. MORVILLO: 7 Q. Ms. Benjamin, I am going to hand you Government Exhibit 8 1260 T, 1261 T, 1147 T, 1262 T, 1263 T, 1264 T, 1265 T, 1149 9 T, 1266 T, 1267 T, and 1150 T, and I'll ask you to look at the 10 sessions' start date and time for each of these transcripts. 11 I would also like to ask you to look at the 12 participants for each of those transcripts as well. Look at 13 each one and let me know when you're done. 14 A. (Pause) Yes. 15 Q. Those transcripts, do they all reflect one telephone call? 16 A. Yes. 17 Q. What date was that call? 18 A. Excuse me? 19 Q. What date was that call? 20 A. 6-21st, 2000. 21 Q. June 21st of 2000? 22 A. Yes. 23 Q. Why are there so many transcripts for that telephone call? 24 A. The call started and disconnected and started again or 25 terminated, and it started -- continued talking and then six SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4589 48HJSAT5 Benjamin - cross 1 seconds and continued talking again and again till the end of 2 the call. 3 Q. Do you know why, as you sit here, the call was 4 disconnected? 5 A. That is what we referred to as a technical problem. 6 Q. Do you know whether it was a problem at the FBI or whether 7 it was a problem with the telephone company? 8 A. It could be from the telephone company, it could be from 9 the equipment at the FBI. 10 Q. In your experience as a language specialist particularly on 11 this case, how many calls were there -- how often did this 12 problem occur? 13 A. Really infrequently it happens. It doesn't happen more 14 often. 15 Q. Incidentally, Ms. Benjamin, back in June of 2000, were you 16 the language specialist who originally listened to this call? 17 A. No. 18 Q. Who was that? 19 A. It was my colleague, Ms. Banout. 20 Q. So if a report was generated to be sent to the special 21 operations unit, when would that report have been generated? 22 Would that have been done in June of 2000 or in August 23 of this year when you were preparing -- 24 A. It should be done in June of 2000. 25 Q. In June of 2000? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4590 48HJSAT5 Benjamin - cross 1 A. Yes. 2 Q. So if there was such a report prepared, it would have been 3 prepared by Ms. Banout? 4 A. Ms. Banout. 5 Q. And it would have been prepared in June of 2000? 6 A. Yes. 7 Q. Ms. Banout, is there a difference in -- 8 MR. TIGAR: It should be Benjamin. 9 MR. MORVILLO: I am sorry. My mistake. 10 BY MR. MORVILLO: 11 Q. Ms. Benjamin, is there a difference, in your opinion, 12 between what you record as "unintelligible" in a transcript and 13 what you record as "technical problem"? 14 A. Yes. 15 Q. What is the difference? 16 A. Unintelligible, the conversation, the phrase itself is not 17 clear, but you can hear it. You can't identify or get to the 18 part what they're talking about. 19 But technical, maybe you can't hear it at all. 20 Q. You can't hear it at all? 21 A. No. 22 Q. When you say "technical problem," what type of problem, in 23 your opinion, are you referring to? 24 A. Technical problem, it could be a bad connection, it could 25 be the equipment itself, it could be intermission, scratchy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4591 48HJSAT5 Benjamin - cross 1 voice, noises. 2 Q. Can you tell me in listening whether it is a problem with 3 the FBI's equipment or with the telephone company? 4 A. I can't decide that. 5 MR. MORVILLO: May I have a moment, your Honor? 6 THE COURT: Yes. 7 (Pause) 8 MR. MORVILLO: I have no further questions, your 9 Honor. 10 THE COURT: All right. 11 MR. TIGAR: May I inquire, your Honor, limited to the 12 redirect? 13 THE COURT: Yes, you may. 14 RECROSS-EXAMINATION 15 BY MR. TIGAR: 16 Q. Ms. Benjamin, so that I'm clear, do you remember making any 17 technical problem reports about the recent translations that 18 you were doing? 19 A. No. 20 Q. You were asked by counsel on redirect examination about the 21 June 2000 calls, and the ones he was asking you about were in 22 June 21st of 2000? 23 A. Excuse me? 24 Q. The calls he was asking you about that he listed -- 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4592 48HJSAT5 Benjamin - cross 1 Q. -- that were short and they were all one call, those were 2 in June of 2000, correct? 3 A. Right, correct. 4 Q. Now, do you remember from your work on this case that the 5 period June of 2000 had some special importance in terms of the 6 case, the amount of work that you would be asked to do? 7 MR. MORVILLO: Objection. 8 THE COURT: Overruled. 9 BY MR. TIGAR: 10 Q. Were there a lot of telephone calls that you were being 11 asked to look at as a language specialist in that June 2000 12 period? 13 A. Yes. 14 Q. Do you remember generally that one of the subjects of that 15 was communications between the lady lawyer and somebody in 16 Egypt? 17 A. No. I didn't understand. 18 Q. You didn't understand my question? 19 A. Can you rephrase it. I didn't understand it. 20 Q. And I didn't hear your answer. I apologize. 21 Do you remember -- 22 A. Yes. 23 Q. -- that in that June of 2000 period -- 24 A. Yes. 25 Q. -- there were calls that concerned the lady lawyer, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4593 48HJSAT5 Benjamin - cross 1 female lawyer, and people in Egypt? Do you remember that? 2 A. No, I don't remember it. If I go back to the documents, 3 I'll remember. 4 MR. TIGAR: May I approach, your Honor? 5 THE COURT: Yes. 6 BY MR. TIGAR: 7 Q. I show you this Page 2 of Government Exhibit 1261 T, all 8 right? Would you take a look at that, please. 9 That's one of these calls on the 21st of June 2000, 10 correct? 11 A. Yes. 12 Q. And there at the bottom of Page 2 you understand Mr. Sattar 13 is talking about the female lawyer, and then again at the top 14 of Page 2? 15 A. Yes. 16 Q. And that was your translation in each case there, that was 17 the -- whoever was talking used the Arabic word for female 18 lawyer? 19 A. Correct. 20 Q. The jurors have heard it before. I am not going to try to 21 pronounce it. Would you remind us, please, what is that word? 22 A. Muhamiya. 23 Q. Muhamiya? 24 A. Muhamiya. 25 MR. TIGAR: No further questions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4594 48HJSAT5 Benjamin - cross 1 MR. MORVILLO: No further questions. 2 THE COURT: The witness is excused. You may step 3 down. 4 (Witness excused) 5 MR. MORVILLO: Your Honor, may I retrieve the 6 exhibits? 7 THE COURT: Yes. 8 MR. DEMBER: Your Honor, at this time, with your 9 permission, the government requests permission to read to the 10 jury Government Exhibit 1062 X, which is in evidence. It is an 11 excerpted transcript of a conversation on February 28th, 2000, 12 at 2:57 pm. The conversation is between Ahmed Abdel Sattar and 13 Mustafa Hamza. 14 I will read the part of Mr. Hamza. With your 15 permission, may Mr. Forkner take the witness stand and read the 16 part of Mr. Sattar? 17 THE COURT: Yes. 18 MR. DEMBER: May we display the transcript for the 19 jury? 20 THE COURT: Yes. 21 (At this time, Government Exhibit 1062 X was displayed 22 and read) 23 THE COURT: All right. 24 MR. BARKOW: Your Honor, at this point, the government 25 would offer into evidence Government Exhibit 1063 X, which is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4595 48HJSAT5 1 redacted transcript of a call Exhibit 1063, which is in 2 evidence on DVD Exhibit 1300. 3 The translation, 1063 X, was the subject of a 4 stipulation, which was Government Exhibit 1000 S2. 5 THE COURT: All right. So no objection, Government 6 Exhibit 1063 X and Government Exhibit 1000 S2 are in evidence? 7 MR. BARKOW: Yes, it is, your Honor. 8 THE COURT: All right. 9 (Government's Exhibits 1063 X and 1000 S2 received in 10 evidence) 11 MR. BARKOW: We request permission to have Mr. Forkner 12 read the lines of Ahmed Abdel Sattar and have Mr. Bove step up 13 to the podium to read the lines of Mohammad Yousry. 14 THE COURT: Maybe this is a convenient time for us to 15 take our mid-afternoon break for 10 minutes. Ladies and 16 gentlemen, please remember my continuing instructions not to 17 talk about the case and to keep an open mind. 18 All rise, please. 19 (Jury excused) 20 THE COURT: All right. See you shortly. 21 (Recess) 22 (By Order of the Court, Pages 4596 to 4615 are sealed) 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4616 48HJSAT5 1 (In open court) 2 THE COURT: All right, please be seated. Ladies and 3 gentlemen, it's beyond the hour when I usually break, so we'll 4 break for today. 5 Mr. Fletcher advises me that there was a question 6 about our schedule. And I realize that we took a recess for 7 not quite three weeks, but when you all were selected as 8 jurors, I explained that the estimated length of the case was 9 four to six months. And that was June the 21st. Even with the 10 recess that was taken, we are well, well within that estimate. 11 We remain on schedule, so you shouldn't be concerned about 12 that. 13 You're going home for the evening, and so I want to 14 reiterate for you my continuing instructions which I repeat to 15 you very often: 16 Please, it's very important. Don't talk about this 17 case at all, among yourselves or with anyone when you go home 18 this evening. Remember not to look at or listen to anything to 19 do with the case. If you should see or hear something, simply 20 turn away. And remember, ladies and gentlemen, it's very 21 important: Keep an open mind until you've heard all of the 22 evidence, I've instructed you on the law and you've gone to the 23 jury room to begin your deliberations. Fairness and justice to 24 the parties requires that you do that. 25 With that, have a very good evening, and I look SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4617 48HLSAT6 1 forward to seeing you all tomorrow. 2 All rise, please? 3 (Jury exits the courtroom) 4 (In open court; jury not present) 5 THE COURT: All right. Please be seated all. The 6 government has some documents to produce to me tonight. And 7 please be here at 9:00 o'clock tomorrow morning. 8 Anything else? If not, see you tomorrow at 9:00 9 o'clock. 10 (Adjourned to August 18, 2004, @ 9:00 a.m.) 11 o 0 o 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4618 1 INDEX OF EXAMINATION 2 Examination of: Page 3 VICTORIA BENJAMIN 4 Direct By Mr. Morvillo . . . . . . . . . . . 4573 5 Cross By Mr. Tigar . . . . . . . . . . . . . 4578 6 Redirect By Mr. Morvillo . . . . . . . . . . 4587 7 ReCross By Mr. Tigar . . . . . . . . . . . . 4591 8 o 0 o 9 GOVERNMENT EXHIBITS 10 Exhibit No. Received 11 1063 X and 1000 S2 . . . . . . . . . . . . 4595 12 o 0 o 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300