6525 4A1JSAT1 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 October 1, 2004 8 10:07 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 6526 4A1JSAT1 1 (Trial resumes) 2 (In open court; jury not present) 3 THE COURT: Good morning, all. Please be seated. 4 All right. Who shall begin? 5 MS. SHELLOW-LAVINE: Good morning. I have a letter to 6 the court that I would like to give to you. Mr. Fletcher 7 appears to be an absent. 8 THE COURT: Pass it up to my clerks, sure. 9 MS. SHELLOW-LAVINE: Thank you, your Honor. 10 THE COURT: Sure. 11 (Pause) 12 THE COURT: Okay. 13 MR. TIGAR: Good morning, your Honor. 14 We're here on our motion, and I have received Ms. 15 Baker's letter of last evening. It had been my thoughts to 16 respond to the argument during the course of my argument this 17 morning. I do not understand her asking for any other relief 18 other than making observation about the issue before the court. 19 May I address the court from the lectern, your Honor? 20 THE COURT: Sure. 21 MR. TIGAR: Thank you. 22 If your Honor please, we have made a motion that is 23 complete, most of the is memorandum -- all of the memorandum is 24 under seal, and there are references in there to discovery 25 documents that are under protective order. I don't intend to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6527 4A1JSAT1 1 reveal those in the course of my argument by putting them on 2 the Elmo or otherwise. They remain under the protective order, 3 but I did want to give some of what I thought was the relevant 4 factual background. 5 We think it is important to note that the telephone 6 calls in this case, with only a very few exceptions, were 7 recorded in Arabic; and, thus, our knowledge of the phone calls 8 and their contents comes to us through translators. 9 None of us would be able to listen to the phone calls 10 and try to interpret the meaning of particular omissions or to 11 draw meaningful conclusions about the context, or at least I 12 would not be able to. The calls, as we have seen, many of 13 them, have unintelligibles and technical problems. Technical 14 problems are of indeterminate length. Unintelligibles are of 15 indeterminate length, as the translators have testified. 16 Moreover, there is no showing that the translators are 17 experts in technology; that is to say, their function is to 18 listen to calls, and as we'll see as we move through some of 19 these documents, when they see a problem that they interpret as 20 technical, their job was to tell somebody about it who was 21 qualified to do something. 22 In this connection, we have cited to the court the 23 Federal Bureau of Investigation Foreign Language Program 24 Inspector General report of June 2004, now redacted and 25 unclassified and available -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6528 4A1JSAT1 1 THE COURT: Hold on just one moment. 2 The defense has also had access to the ability to 3 translate any of these calls on their own and to contest the 4 translations. 5 MR. TIGAR: That's right, your Honor, but our 6 translators can't translate something that can't be heard and 7 can't translate something that is inaudible because of a 8 technical problem. 9 The thrust of our motion is that the government's 10 systematic withholding of information has dramatically curbed 11 our ability: 12 First, to make a meaningful presentation concerning 13 the alleged expertise of Mr. Elliot; 14 Second, to make a meaningful presentation with respect 15 to the ultimate authenticity determination; and 16 Third, to make meaningful arguments to the jury about 17 the reasons why they should not credit the testimony of 18 Mr. Elliot, Mr. Kerns and the translators. 19 Thus, our opportunity -- Mr. Grasso said it yesterday, 20 garbage-in, garbage-out. If it is not on the computer to begin 21 with because it it has been destroyed or wasn't adequately 22 recorded in the first place, it isn't helpful to us. And the 23 court's view about whether our opportunity to translate is 24 enough to make up for this? If the court were to conclude 25 that, would cut only to the middle of those three, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6529 4A1JSAT1 1 authenticity determination. It wouldn't preclude us from the 2 rights I am going to talk about to interrogate these witnesses 3 about the deficiencies in the program that was described to us, 4 the method by which these calls are recorded. 5 Let me briefly then go through some of the factual 6 information here to point to specific matters that we think are 7 significant. Turning then to Page 9 of our memoranda, a list 8 that begins a little bit on Page 8, in instance after instance 9 there were problems with first the Lockheed Martin system, and 10 I am going to say that I think the Lockheed Martin system was 11 known as a double dagger, and that the Raytheon system was 12 known as Spiderman. 13 If I am incorrect about that, that is something I 14 would ask a witness about. On Page 10, for example, there is a 15 reference in the third bullet point to a bug in a utility 16 program. There is a priority 1 matter, that is, the last 17 matter, relating to deleting summaries beyond a specified 18 number of days. 19 On Page 11 there is a reference to an infamous archive 20 server. There is no real log of user problems. The bottom 21 item on Page 11 talks about the language specialists being 22 frustrated with the system. I'll come back to that in more 23 detail later, but I at the end today am going to ask permission 24 to tender to the court the downloaded Inspector General report 25 about translation services inside the FBI because the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6530 4A1JSAT1 1 unclassified portion of that report states that audio sessions 2 resident on the system are sometimes deleted through an 3 automatic file deletion procedure, to make room for incoming 4 audio sessions. 5 MS. BAKER: Your Honor, in light of the fact that 6 these documents are subject to a protective order and that this 7 is a public proceeding -- 8 THE COURT: No. I think what Mr. Tigar is referring 9 to is a document that he downloaded which is an unclassified 10 version of another report. 11 MS. BAKER: That is fine. I just wanted to make sure 12 he wasn't going to read from any of the documents we have 13 disclosed. 14 THE COURT: No. I understand. That is okay. 15 MR. TIGAR: I appreciate, and believe me, your Honor, 16 if the government at any time thinks my attempt to argue 17 intrudes on a privilege, an evidentiary privilege, we welcome 18 the objection. Then if we have objection to it, the court can 19 rule. As of right now, I am talking this document I have 20 contains many, many redactions, all of which were made by the 21 FBI, in its unreviewable discretion. 22 At any rate, audio sessions are sometimes deleted. 23 Necessary system controls have not been established to prevent 24 critical audio material from being automatically deleted such 25 as protecting sessions of the highest priority and so on. I'll SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6531 4A1JSAT1 1 get to the meaning of this later, but it is very interesting 2 what is said here. 3 Then the problem, of course, is if we try to 4 cross-examine the linguists, I have been wondering, your Honor, 5 why these linguists sometimes seem uneasy in court, maybe that 6 is because they're not used to being witnesses. We were 7 presented with CDs on these people, the qualifications. One of 8 them testified, "I was given a proficiency test. That is how I 9 got my job." 10 Now, your Honor, they were given polygraph tests. If 11 their loyalty is suspected, they're given more polygraph tests. 12 This document reveals, in short, a method for recruiting and 13 retaining these language specialists that raises issues on 14 which we might wish to cross-examine. That goes beyond the 15 motion before your Honor, and we will make a further 16 application later with respect to it. 17 Turning then to Page 12, there is a reference in the 18 4th point down to on hook time, calls being run together. Now, 19 we have experienced some difficulties here, and I finally think 20 I understand what is going on. Mr. Elliot, when he was on the 21 a stand, testified that the Lockheed Martin system used a 22 bridging device. Now, he describe that at Page 3048 of the 23 transcript. It is a piece of equipment that allows the FBI to 24 conduct a wiretap -- skipping -- so when the targeted person or 25 when that telephone that is targeted goes off-hook, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6532 4A1JSAT1 1 bridging device will allow the FBI to listen. 2 He testified that he was assigned to his present 3 duties, the ones he told us about, at a time when the Lockheed 4 Martin system was already in use, it was already up and 5 running. But back at that time, before he assumed his duties, 6 he was the person who put those bridging devices on telephone 7 poles. I think your Honor may remember him talking about he 8 being the guy whose little picture was on the exhibit on the 9 phone call. 10 Now, he testified, at 30869, that the Lockheed Martin 11 system predated his tenure in the electronic surveillance 12 technology section. 13 What does this mean? The problems we are seeing and 14 that are pandemic throughout the materials related to these 15 systems, both the Lockheed Martin and Raytheon, relate 16 critically to the systems' inability to understand the signal 17 that is given when someone does what I called yesterday a 18 hook-flash. We have all become familiar since the days when 19 CENTREX was introduced into offices with what a hook-flash is. 20 Now we use it for many things. "Hook-flash" means we 21 depress the little button where the receiver hangs up. We do 22 that to accept a call that is coming in on Call Waiting. We do 23 it to institute three-way calling, when we have that service. 24 We do it to transfer a call within a system if the system is 25 capable of that. We use hook-flash. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6533 4A1JSAT1 1 Now, it looks like the FBI's bridging device, as 2 connected to these systems, misinterpreted the hook-flash as a 3 termination of a call. One of the things that I wanted to 4 explore when we get into these documents I'm talking about is 5 why we have calls broken into 11 parts or 7 parts or whatever 6 with gaps between the parts, when it is perfectly clear, if we 7 put a translator on it, that the 11-part call, referring now to 8 the one of June 21st, 2000, or the 6-part call or 5-part, 9 referring to the call of the 5th of November 1999, is, in fact, 10 one continuous event as to which there are material gaps in 11 coverage. Things simply drop out. 12 The reason for that appears in many cases to be the 13 fact that the system, the FBI system doesn't know how to deal 14 with Call Waiting and three-way calling. That is, it 15 interprets the voltage drop as the end of or beginning of an 16 event, the voltage drop caused by flashing the telephone. 17 Indeed, at Page 12, we have a note about a call right 18 towards the bottom, broken into 11 sessions. At the bottom of 19 Page 13, we have some explanation of what this -- 20 THE COURT: There were 244 audio files introduced? 21 MR. TIGAR: That's correct, your Honor. 22 THE COURT: Of the 244 audio files, how many were 23 broken-up calls? 24 MR. TIGAR: Your Honor, I don't have the number. I 25 could look up the number. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6534 4A1JSAT1 1 THE COURT: Approximately? 2 MR. TIGAR: Half a dozen, but every call, your Honor, 3 had unintelligibles and technical problems. Calls, the one on 4 the 21st, the 21st is the discussion of the relevant lack of 5 impact of the Sheikh's statement. That is a call that has some 6 importance. That is a very important time. The call on the 7 5th of November has to do with what the government regards as a 8 critical event with Mr. Clark. 9 What is missing from it is at least 51 seconds. In 10 fact, there is more than that, probably a total of 60, 11 Mr. Yousry and Mr. Sattar talking about what they're going to 12 do with Mr. Clark. 13 At any rate, at the bottom of Page 13, we find that 14 the wiretaping system was based on 15-year-old-computer 15 technology. This was a note in 1999. I think we all 16 understand the difference between what computers and phones 17 were like in 1984 and what they're like in 1999. 18 On Page 14, now we're on the Raytheon system, more 19 problems, more problems, more problems, and the report that we 20 have cited, at Page 14, Bates 1104 and 1106, shows the failure 21 rate on installation of tests run on the Raytheon systems. 22 I am not done with it yet, your Honor, by way of 23 factual background. Mr. Elliot, of course, testified that -- 24 and this is at Page 3141, the basis of his opinion that the two 25 systems recorded phone calls, the corporate calls. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6535 4A1JSAT1 1 The first was that the target telephone records could 2 be subpoenaed and compared. The second was the instances where 3 the recorded voice had been played in court, just like here. 4 Now, we had a lot of debate about what "just like here" means. 5 One alternative is to get Mr. Elliot back, and he can say what 6 he meant by that because I don't think the parties can 7 speculate about it. 8 For right now, I would like to focus on this target 9 system. That is what he said they we could -- he didn't say we 10 could go, we might go. We go to the telephone company and 11 subpoena the billing records. In this case, your Honor, we 12 have information about the telephone company billing records 13 because Agent Sorrells testified about it, and so far as I am 14 aware, those billing records were obtained by the government 15 after indictment in this case. They were not obtained at the 16 time that the telephone surveillances took place. 17 Yet, one of the things we brought out in 18 cross-examination of Agent Sorrells is, cross-examination of 19 Agent Sorrells was that the phone company telephone records 20 tell us that the records of the calls are inaccurate. Agent 21 Sorrells said that it is significant to know whether or not a 22 person calls somebody or somebody calls the person. That has 23 investigative significance, and yet in instance after instance, 24 I verified that the SRI, or Signal Related Information that was 25 on the actual VOC files was inaccurate as measured against the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6536 4A1JSAT1 1 telephone company records. 2 Another way of saying that is, if you went to the 3 telephone company to say did Mr. Salah call Mr. Sattar or did 4 Mr. Sattar call Mr. Salah, you would find that the Lockheed 5 Martin system wasn't telling you that information correctly, 6 and as we'll see, that is not the sole story because the 7 Raytheon system makes similar mistakes. 8 THE COURT: But the total number out of 244 audio 9 files is about 9, where it was incorrect as to whether it was 10 in incoming or outgoing? 11 MR. TIGAR: That's right, your Honor. I think that's 12 right, of the ones that I asked him about. 13 THE COURT: Well, I assume you did a thorough search. 14 MR. TIGAR: I did a thorough search, your Honor, but 15 at some point I was trying to show, your Honor, that Mr. 16 Sorrell's summary was subject to serious question. It takes a 17 long time to examine a witness and have him load every single 18 file and load every single SRI. 19 If the number is significant, I'll accept 9, with the 20 proviso if it becomes dispositive, we'll go back through all 21 the rest of the calls at the end of my argument. 22 I'll be happy to address it now. There is this 23 question of what difference does it make. Ms. Baker, on behalf 24 of the government, has made a statement about what difference 25 we think it makes, and I do intend to answer that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6537 4A1JSAT1 1 I would like to continue now, if I could, with some of 2 these other materials that were produced by way of background 3 to the issues we're raising here. 4 The Bates No. 0154 talks about that bug, and we don't 5 know what that bug is. We would surely need to cross-examine 6 somebody about it. The charts that begin at about Bates 0155 7 detail the error rate with respect to this equipment, and how 8 many open PTR's there are, which is some kind of a code for 9 error problems. This is with the Lockheed Martin system. 10 At Bates 1078, we have a middle of the page about 11 server, 50 percent failure rate. We have entire systems being 12 brought down at Bates No. 101178. We have more failure 13 charts -- for example, 0181 -- showing significant rates of 14 failure of the system, what was up and running, and another 15 archive failure summary at Exhibit 22O281. It's hard for me to 16 interpret the charts which begin at Bates No. 0328 because I 17 can't make out all that is being said here, but clearly this is 18 a record where the witness could explain of some problems. 19 We know that because the FBI 302 that is attached to 20 the front of these documents, an example of which is at 0319, 21 and another example of which is at 0342, speaks of monthly 22 error messages on Double Day. 23 It is interesting, your Honor, the government 24 proffered Mr. Elliot to us very early in this case, some time 25 in July. He said -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6538 4A1JSAT1 1 THE COURT: I am sorry. July of what year? 2 MR. TIGAR: 2004. He was proffered to us as a 3 witness. 4 THE COURT: You mean at trial? 5 MR. TIGAR: At trial, yes. I am sorry. 6 THE COURT: Because my recollection is that there was 7 a mild dispute between the parties with respect to experts 8 prior to trial. 9 MR. TIGAR: Yes, your Honor. Let me review that then 10 so I make myself clear. I am sorry to interrupt you. 11 THE COURT: Just to confirm my own recollection, the 12 government wanted to exchange mutual Rule 16 information with 13 respect to the experts. 14 MR. TIGAR: There are two issues with respect to that, 15 your Honor. 16 THE COURT: I just want to make sure that I understand 17 the chronology. 18 MR. TIGAR: Yes. 19 THE COURT: They want to exchange that, and Ms. 20 Stewart did not, and the way in which I resolved it was that 21 the defendant could not be required to produce its own experts, 22 and the expert reports, the government couldn't require that. 23 The government did not have to, in the absence of the 24 mutual request, produce Rule 16 discovery, but in fairness, 25 each party should at least identify the experts and the subject SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6539 4A1JSAT1 1 matter of the testimony. 2 MR. TIGAR: That's correct, your Honor, but that is so 3 far as it goes. 4 THE COURT: Did I do that by an order or did I do it 5 orally, on the record? 6 MS. BAKER: Your Honor, I believe it was a memorandum 7 endorsement of a letter after the government had written to 8 advise the court based on communications with Ms. Stewart's 9 counsel, and just I want the record to just be a little more 10 clear than what your Honor just said. 11 My recollection of the correspondence was that the 12 ultimate outcome was that each party had to tell the other the 13 types of experts or the topics on which experts would be 14 called, not the names. 15 And so, in fact, what resulted were exchanges of 16 letters in which the government said, for example, we will call 17 an expert on the FBI's recording technology and we will call 18 translator experts, et cetera, and Ms. Stewart sent a similar 19 letter back, just giving sort of one-phrase descriptions of 20 what the nature of the experts would be. 21 THE COURT: Was I copied on that correspondence? 22 MR. TIGAR: If your Honor please, I appreciate 23 counsel's effort, but it is inaccurate. 24 THE COURT: Okay. 25 MR. TIGAR: The court entered an order on April 24, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6540 4A1JSAT1 1 2004, not a memorandum endorsement, and that dealt with the 2 exchange of correspondence between the parties. 3 THE COURT: Thank you. 4 MS. BAKER: On which the court was not copied, the 5 subsequent letters giving the information. 6 MR. TIGAR: Because your Honor has raised it, I will 7 now put this in context. It is an issue I intended to talk 8 about later, but I will address it. 9 Is true Ms. Stewart declined the opportunity to 10 receive what is provided for in Rule 16 (a)(1)(G), I think that 11 is it, the expert witnesses. However, that is a pretrial 12 discovery rule. Nothing about that rule excuses the government 13 from providing information under any of the provisions of law 14 that we have cited. There is nothing in the compulsory process 15 clause that talks about reciprocity. 16 I want to discuss these bases at some greater length 17 later because the government has said there are only three, and 18 we say there are about a half a dozen, and I will get to that 19 in more detail. 20 I think it is also important, your Honor, to note that 21 before this correspondence that resulted in your Honor's order 22 of April 24, 2004, the government had, in fact, tendered 23 Mr. Elliot to us by way of an affidavit in I believe September 24 of 2003. That, if your Honor will recall, was a pleading that 25 was filed that contained -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6541 4A1JSAT1 1 THE COURT: I think it was around July 2003. 2 MR. TIGAR: Your Honor, it may well be. I have the 3 pleading here. 4 THE COURT: It is not. 5 MR. TIGAR: Beginning in the summer of 2003, we had 6 some litigation over whether there should be a pretrial hearing 7 concerning the electronic surveillance in this case, and 8 Mr. Elliott's affidavit is dated September 5th, 2003. 9 MS. BAKER: That was the second one. 10 MR. TIGAR: At least the one I was thinking of. If 11 there is a July one -- 12 THE COURT: I think you're right, there is another one 13 in October. 14 MR. TIGAR: Right. In short, your Honor, I think this 15 supports our argument. Everybody knew there were problems with 16 these systems as early as the very first appearance that we 17 made before your Honor in the Pearl Street courtroom because 18 Mr. Bianco was talking about it. 19 We have given some of the history of the exchange of 20 letters. All I was trying to point, all I was trying to point 21 out is that these are matters that have been around for a long 22 time. That is significant to us because even though we were 23 very concerned with the failure rate, with the maintenance of 24 the machines, as it were -- not as it were; as it is. 25 We didn't get this material until these recent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6542 4A1JSAT1 1 productions about which your Honor knows. There is a history 2 here. I'll digress a little to talk about it. 3 The FBI's method for gathering forensic evidence, for 4 maintaining, for the reliability of its systems, has been 5 problematic for a long time. I know, your Honor, we briefed 6 the Trilogy system and things that are not directly relevant to 7 this, but your Honor probably also recalls, because we briefed 8 it, that the calibration of machines in the chemistry lab was a 9 problem in the FBI with respect to bombing investigations, such 10 as the World Trade Center I and Oklahoma City. 11 So the fact that the maintenance of the very equipment 12 that is being relied upon is a key issue is not an unfamiliar 13 concept, and yet the declassification mark on document Bates 14 0319 and 0342 and all the other 302s in that package is 15 September 1, 2004. Nobody looked. 16 Then, your Honor, we get into the is it Bates, and we 17 see in the Year 2000, someone named Ms. Wordsworth made a trip. 18 We're assuming here that this person that made the trip reports 19 to Mr. Elliot or works with Mr. Elliot, seems like she is a 20 part of that same system, and her trip, at Bates No. 0487, she 21 talks to the language specialists. 22 This is in November of 2000. The government is aware 23 that there is something going on here. The investigation has 24 been under way since early that year. The language specialists 25 were very candid. That is the paragraph I'm referring to at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6543 4A1JSAT1 1 0487, and it turned out that the system for resolving the 2 problems they saw, because they are the front line -- indeed, 3 the FBI said that in its recent report, and we have no reason 4 to doubt it. 5 The language specialists are, it says in that report, 6 the first line of analysis. Indeed, in this case, that is 7 true. We had a lot of discussion in this case about pertinent 8 versus nonpertinent calls. It appears that when a language 9 specialist listened to a call, they either summarized it or 10 didn't summarize it for current intelligence purposes based on 11 a decision they made. That was the first critical triage 12 system that they operate. 13 Yet we're finding out in 2000 that their complaints 14 and questions went unanswered, that the support system is 15 inadequate, and this is a new system, the FBI just paid for it, 16 right, that calls are broken up. 17 Here again, at Page OOO3 in that same production, but 18 apparently a different visit, it is a little hard to tell, we 19 have one call broken into 11 sessions. The 11-session call, 20 and I don't know how many there were, but I mean 11 is kind of 21 an unusual number for there to be. Maybe that is the same one. 22 In here that is being recorded and discussed and dealt with way 23 back at, well, sometime within these documents, but it has been 24 redacted out but which your Honor can probably find. 25 Then at OO87, we see that the new Raytheon system SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6544 4A1JSAT1 1 isn't working properly. We see that in a document declassified 2 on the 9th of September, 2004, that Mr. Elliot was at a 3 meeting. This was in a meeting on 10-2-98, and this is to talk 4 about installation of Spiderman. 5 So I'm assuming back in '98 Mr. Elliot is 6 participating, and this FBI 302, Bates No. 10OO1 is approved by 7 him, so it is Jencks material. He is participating in meetings 8 about the installation of a new system. He testified to that, 9 but these 302s and other information give us crucial data about 10 the problems, and I will say that Mr. Elliot was rather 11 economic with us in describing the kinds of problems, "brittle 12 tapes" was about as far as he was willing to go, and yet the 13 material that he authored or approved tells a different story. 14 Then, your Honor, we move into 2001, and we get into 15 Bates No. 0035. These Bates numbers do jump around, your 16 Honor. Thus, they're not sequential. I am giving some in the 17 one the government provided us. Here is a letter, OO35, that 18 somebody was going to identify and report problems associated 19 with, and I assume it is the Raytheon system, and report to 20 Mr. Elliot. 21 Then this Ms. Wordsworth gets identified here. She 22 apparently works for Raytheon. Well, the next pages show us 23 that this new system isn't working properly. 24 What is it doing if it is not working properly? Total 25 test cases: 67. Passed, 55. 55-67s. 10 cases failed, two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6545 4A1JSAT1 1 test cases in one step within a test case deferred. 2 And this is a report that begins at Bates 1106 and 3 continues into 1107. There follows in that same packet that 4 was attached to the government's letter of September 27th some 5 acceptance data test sheets that give us more detail about what 6 happened when they tried to get Raytheon up and running and the 7 problems that they encountered. 8 Now, we have asked the court in our submissions, taken 9 the position that the records that have been provided to us, 10 the Bates stamp records and all of the records that have not 11 been provided to us and all of the redactions taken out that 12 were provided to us, are, in fact, either business records of 13 the government or business records of the contractor, or 14 reports within the meaning of 803 (8), admissible if we offer 15 them, but not if the government does. 16 Therefore, one of our forms of alternative relief has 17 been that if Mr. Elliot and/or Mr. Kerns are called back or 18 some other witness, that we be permitted to examine on those 19 records in evidence because otherwise we would be put to the 20 necessity, which then we would ask the court to do, to subpoena 21 all of the other authenticating witnesses and so on to deal 22 with these issues, which I don't think is a very appetizing 23 prospect. 24 The second point I want to make, that is a bare 25 outline of the facts as we see them with respect to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6546 4A1JSAT1 1 reliability of these systems. We go this far with the 2 government: 3 We agree that the Jencks Act is a potent source of 4 authority for the relief that we seek, and we have discussed it 5 often in court. At times the production that we have obtained, 6 the court has said well, that is just too trivial to be Jencks 7 material, it is not really a statement. The Jencks issue has 8 come up over and over. We have argued about it, and it is, I 9 submit, clear that many of the documents that have been 10 provided to us in redacted form and to the court in full form 11 are statements of Mr. Elliot, either of him or adopted or 12 otherwise approved, to use the statutory language. 13 Therefore, the question of what ought to be done in 14 the first instance is defined by the Jencks Act, and we have 15 cited cases about that. 16 The second potent source of authority here is Rule 16 17 itself. The Rule 16 reciprocity requirement is, in our 18 respectful view, and we briefed that when we wrote the letters 19 which led to the court's order of April 24th, two-sided; that 20 is to say, there are certain kinds of production that we should 21 get. If we want a written summary of testimony, which is what 22 is here an expert report, the kind of thing that is routinely 23 available under the civil rules, we can ask for it, a written 24 report by Mr. Elliot, we didn't make the reciprocal showing 25 whether we should have in hindsight. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6547 4A1JSAT1 1 In our view, it makes no difference. I don't believe 2 it would have done us any good. It would have been a summary 3 of what he gave on cross-examination we have deconstructed. 4 Whether it does any good for us or not, the Rule 16 material is 5 material to the preparation of the defense. If it is material, 6 that is, to our being able to challenge authenticity or to 7 attack the weight, it ought to have been provided to us. 8 It has nothing to do with whether he did get an expert 9 report. That is a completely different business, and that is 10 our Rule 16. Suppose we are wrong! 11 Brady. The government cites Koppel. I confess I am 12 somewhat somewhat perplexed when I read Koppel, and the court 13 has referred to in it in response to the government's letter. 14 We briefed it. It was a wholesale order, give up your Brady by 15 Judge Glasser, and we think that it does not excuse the 16 government, that it does not excuse the government from 17 producing evidence that would be helpful, exculpatory within 18 the very broad meaning of those terms as defined in Coyne 19 versus Whitman, that Coppa simply cannot and should not be 20 read, put bluntly, to head us off at the pass. 21 It is too late in the day to suggest that. The 22 evidence that we have said has been withheld from us relates 23 critically to scientific tests and procedures, to complex 24 technology, to the FBI's inability to perform the most basic 25 tasks of a decent forensic examination, obtaining, storage and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6548 4A1JSAT1 1 retrieval of evidence. 2 Keeping in mind that although there are 224 calls or 3 so that are in evidence, the universe of calls is in the tens 4 of thousands, including a universe of calls from which we might 5 have made the selection and are entitled to make a selection 6 for defense purposes, and as to which entire groups of calls, 7 time periods are still missing. 8 The point I am making is this: That recent cases -- 9 THE COURT: The total universe of audio files that 10 have been produced was in excess of 80,000, right? 11 MR. TIGAR: That's right, your Honor, 88,000 audio 12 files. 88,000 interceptions is my understanding. Some of 13 those interceptions were faxes and not audio, and as I stand 14 here, I don't recall precisely. 15 Now, I don't know, and I am not sure if the internet 16 searches were in that. I don't think they were. That was 17 another form of interception that was done. It is tens of 18 thousands. There are periods, as we point out in the motion, 19 are missing. 20 My point is simply this: That there are too many 21 cases today in which the failure of the forensic system has led 22 to a wrong result that had to be corrected, to doubt the 23 significance of the point we are making. 24 Let me put it a different way and let me accept the 25 government's read of Koppel for these purposes. I accept -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6549 4A1JSAT1 1 THE COURT: Sorry? 2 MR. TIGAR: -- I accept for these purposes the 3 argument I am about to make, the government's, as I understand, 4 their reading of Koppel, if the system by which these calls was 5 recorded is insufficient because the government's expert is 6 disqualified and his testimony should be stricken because the 7 government withheld something that should have been produced 8 under the Jencks Act, or whatever, any variety of scenarios, if 9 the foundation of the calls drops out, we win. 10 It is just like Chief Justice Rehnquist said of the 11 court in Celotex, you know, there are cases -- that was the 12 causation issue in summary judgment. There are sometimes 13 issues on which the whole case turns, and this is one. That is 14 our argument. 15 Next, W A L L A C H. We use that as a symbol for a 16 lot of cases in the Court of Appeals. Mr. Elliot was, in our 17 view, economical to say the least in his description of these 18 systems and the problems with them, and we think that triggers 19 that. 20 Then there is the Bohls case, B 0 H LS, Judge Bevel's 21 opinion in the 10th Circuit. Then there is compulsory process. 22 We have been seeking these items. We didn't get a Rule 17 23 subpoena, but they are evidentiary, and they relate also to our 24 ability to cross-examine the government's witnesses. We submit 25 that the Sixth Amendment of its own power gives us this right, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6550 4A1JSAT1 1 as the Sixth Amendment has come to be interpreted in light of 2 Burr and the cases that follow. 3 Here is another one, your Honor, and I started to 4 allude to this a moment ago. We live today in a post-Daubert 5 era, and one of the things that Daubert and the later 6 amendments of the Federal Rules of Evidence did, it did two 7 things, I think: 8 The first was, of course, to establish the job of 9 federal judges as gatekeepers, a policing function; 10 The second thing it did was to reinvigorate the 11 adversary system as an antidote to expert testimony that was 12 ill-founded, that was stretched too far, and it did that, it 13 seems to me, in this way: 14 First, Rule 702, that gets amended in light of 15 Daubert. 703 speaks of the basis of opinion testimony, and 16 facts or data that are otherwise inadmissible shall not be 17 disclosed. There is that language. What the Advisory 18 Committee notes tell us there is that the opponent may have the 19 right to start challenging the expert's opinion as being based 20 on insufficient facts and data, and that when that happens, 21 that may trigger the proponent's right to rely on more of 22 things that would otherwise be inadmissible. 23 But the Advisory Committee notes are quite 24 informative, we suggest, about the adversary process of the 25 opponent inquiring, the opponent having the right. That is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6551 4A1JSAT1 1 cemented, in our view, when we look at Rule 705. The expert 2 may, in any event, be required to disclose the underlying facts 3 or data on cross-examination, the underlying facts or data. 4 What are those? Well, how could I cross-examine 5 Mr. Elliot if I didn't know anything about the universe of 6 information upon which he based his conclusion? How could I 7 perform the job that Rule 705 gave me the right to perform if 8 the Jencks Act hadn't even been complied with, let alone all of 9 the machine-type things. 10 When I say "machine-type things," I don't mean to 11 trivialize things. If you don't calibrate your gas 12 chromatograph before you test the bomb sample, you'll make a 13 mistake. If you don't calibrate a machine that does your blood 14 test, you will make a mistake. These machines are important, 15 reliability and repeatability. 16 My basic point here is I have a right under Rule 705. 17 Rule 705 says that the trial court's job of being a gatekeeper 18 is not the unique way of hounding junk science out of the 19 adversary process. The drafters of the rule trust the 20 adversary system. Rule 703 and 705 tell us how it must be 21 invigorated. Now, we in our motion, at Page 16, talk some 22 about Mr. Koppel. 23 The government responds later in some of is filings in 24 a discussion of various evidentiary privileges. As I 25 understand the law of privilege, it should be invoked, giving SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6552 4A1JSAT1 1 reasons with respect to specific items, and enough of a 2 description given to the presiding judicial officer to see that 3 the privilege is well taken, without disclosing so much that 4 the privilege is destroyed. 5 Here, that dilemma would hardly exist because your 6 Honor has the material in-camera and ex-parte. You know, there 7 are some privilege determinations such as lawyer-client, where 8 the court doesn't even get them, the alleged privileged 9 material, until certain threshold showings are made. We are 10 past that now. 11 So I haven't seen on this record an invocation of 12 privilege that I would regard as sufficiently supported to 13 carry the day. I haven't seen briefing and argument. Maybe 14 the government will cite some. 15 If it is said that the privilege in question is a 16 national security privilege, then, of course, we have a CIPA 17 problem, C I P A Problem. CIPA is an interesting statute, and 18 we hardly have a right under it except perhaps under Section 4, 19 to trigger a hearing; that is, we're seeking discovery of 20 classified information, maybe. I don't know. I want to make 21 sure it is clear we don't think that you can conflate those two 22 terms. 23 CIPA does not protect the national security privilege. 24 It protects classified information, information as to which a 25 bureaucrat has affixed a stand. That information may also be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6553 4A1JSAT1 1 national security information as to which a privilege can be 2 claimed, but those are separate. 3 To the extent that this information is important to 4 establish the reliability of the government's evidence, to 5 cross-examine its witnesses on the issues tendered by the 6 direct examination of those witnesses, all of these arguments 7 about privilege are, I would respectfully submit, beside the 8 point. I think that is the fundamental point of Davis versus 9 Alaska. The thorns that which they have reaped are of the tree 10 they planted. They called the witnesses. 11 And the same thing can be said of a law enforcement 12 privilege. We briefed that. Proprietary privileges are quite 13 beside the point. I don't see it here. 14 Vaguely defined statements about privilege traverse 15 fundamental principles of the adversary system, and that has 16 been the teaching in this circuit for a long time, repeated, as 17 we argued a long time, by the Supreme Court in Dennis by citing 18 Handleshack and Thorn. 19 There may be a way out of this, your Honor, the 20 decision as to whether or not the documents are authentic and 21 are the jury going to get to hear them. The court has the 22 evidence now. It may be that even for cross-examination, it 23 would be sufficient to give us summaries. You see, the summary 24 is one of the things that CIPA talks about. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6554 4A1MSAT2 1 MR. TIGAR: I mean, the government wants to wear this 2 mantel, these things are essential for fighting terrorism. 3 Your Honor, I've been representing the victims of terrorism as 4 a major part of my profession for 30 years. I think we are all 5 concerned about that. The issue is the fairness of this trial. 6 And I can't now know what procedures should be followed with 7 respect to these things because I don't know if the claim is 8 classified or national security, or law enforcement, and the 9 scope of the privilege claim thus being unclear to me makes it 10 hard. But also until the Court says that the Court agrees or 11 disagrees with us about the permissible scope of inquiry here, 12 what's relevant, how relevant and so on, it is impossible to go 13 further. 14 Remedies. I'm almost done. The Jencks Act says 15 mistrial or strike the testimony. That's it. We submit there 16 is no reason why we didn't have the Elliot material at the 17 very, very least and why it took, once we asked for it, so long 18 to get it. The declassification days on some of these memos 19 stretch into September, your Honor. Michael Elliot's affidavit 20 is September 2003. It was thereafter obvious to the government 21 a year ago and more that some day Mr. Elliot would have to take 22 that witness stand unless we stipulated to everything. 23 This is not about these prosecutors, your Honor. They 24 have done an extraordinary job of getting these documents. And 25 the letters, the succession of letters, the FBI produced this, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6555 4A1MSAT2 1 we are waiting for more. The FBI produced this, we are waiting 2 for more. The FBI produced this. We are waiting for more. It 3 is the bureau. It is the FBI. Why doesn't the FBI believe 4 that there is a part of the department that calls itself 5 justice? Why is it that they would not have come forward and 6 said, prosecutors of the Southern District of New York, here is 7 Mr. Elliot's affidavit and here all of his prior statements 8 that you're going to have to produce when he testifies instead 9 of hiding them under a bushel basket. 10 The Jencks Act is designed for a purpose and we submit 11 that purpose is served by the remedy that we have sought, that 12 how else is the FBI going to learn its lesson? See what 13 happens here, your Honor, is, as this most recent report shows, 14 the job of interpreting messages on the fly in the fight 15 against terrorism is the first line of analysis and defense. 16 This is a case that began as an intelligence investigation. 17 And the problem, of course, is that the habits of mine that 18 accompany an intelligence investigation can all too easily 19 invade the province of the criminal justice system, which 20 relies on an entirely different set of values, the values of 21 openness, on adversary inquiry and what must be disclosed to 22 someone whose liberty you're trying to take. That's the 23 problem. 24 Now, the next line of remedy that we have sought has 25 to do with recalls in the government's case and holding that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6556 4A1MSAT2 1 the documents that are now produced are in evidence and 2 disclosing them, which would include the compression, 3 decompression algorithm. We have discussed that and how long 4 it would take to recreate it. I am not going to argue it 5 unless the government wants to talk about it. 6 We got ten minutes to nine last night a letter from 7 them, and it makes a vague claim of privilege. I talked about 8 that. And then it has a long footnote. Every call that 9 contains an unintelligible or a technical problem or that is 10 broken into parts is an inaccurate recording. And we claim it 11 and we have claimed it, all of them. 12 Why is this important to us? After all, Ms. Stewart's 13 phone wasn't tapped. Ms. Stewart isn't on a lot of these 14 calls. This is a conspiracy case. And I'd like to talk about 15 importance now very briefly in three parts. The first is the 16 most general. With respect to every witness from the 17 government who testifies, their antiterrorism credentials are 18 shown to the jury. That's legitimate direct examination and it 19 establishes who the witness is and why we should believe that 20 person. 21 We live today in a community in which we are 22 constantly told that we should trust the executive branch to 23 protect us from terrorism. That's just what jurors come to 24 court with. These are social attitudes out there. Of course, 25 the risk of social attitudes like that is is they will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6557 4A1MSAT2 1 interfere with the Court's instructions about the presumption 2 of innocence and with the presumption of innocence itself. 3 That's just inherent in the nature of cases like this. When it 4 gets so bad, the community attitude, reinforced by its leaders, 5 then it is called implied by us and judges grant changes of 6 venue. We have cited to the Court before Judge Matsch's 7 opinion in McVeigh v. Nichols talking about how things got so 8 hot in Oklahoma that you can't have a fair trial there. I'm 9 not citing that as precedent here, but only saying that's how 10 we understand the adversary system. Jurors come to court with 11 attitudes. And so if I can by cross-examination show -- 12 THE COURT: My recollection is that I also kept out 13 early on the nature of the investigation that was ongoing. 14 MR. TIGAR: That's right, your Honor. 15 THE COURT: In order to avoid that in response to the 16 defense request and over the government objection despite the 17 fact that it was referred to in the government opening. 18 MR. TIGAR: Your Honor, I am not quarreling with that 19 ruling and I'm saying, yes, I appreciate it. And I have 20 appreciated and I have asked for many limiting instructions 21 from this court and we have received them, those instructions. 22 I am not quarreling with that either. I'm just saying that the 23 government in a way that's permissible under the rules benefits 24 from a public perception that the executive branch needs to be 25 good and strong and is doing a good job about fighting terror. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6558 4A1MSAT2 1 That's just what jurors come to court with. That's their 2 mind-set. That's all. I accept that. It is a reality. Those 3 are the people we have. That's the jury. 4 But suppose they began to say, you know what, they are 5 human. The FBI makes mistakes. Their computers break. They 6 miss things. They are human like the rest of us. That changes 7 when that perception gets there, the dynamic. Your Honor, I'm 8 not asking your Honor to agree with me about that. I'm teased 9 sometimes by the other lawyers because, you know, I will 10 cross-examine somebody that took a package across the street, 11 they say. I'm on my feet too much. 12 One of the things I'm trying to do is say, hey, look, 13 witness -- Mr. Sorrells sat there and I asked him about things 14 in his chart and maybe they were mistakes and maybe they 15 weren't. But I wasn't trying to insult him. I was trying to 16 show that there is a witness that can sometimes overlook 17 something and that's because -- that's an important part of 18 what I would call the semiotics of trial. 19 Subsidiary to that and under the same line is here is 20 my client, Lynne Stewart. She stands here against the power of 21 government in a room dominated with symbols. And the idea that 22 her lawyer can stand up and cross-examine the FBI about stuff 23 is a civics lesson for the jury in what power system means and 24 reinvigorates the principles about which your Honor will speak 25 to them when the case is over. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6559 4A1MSAT2 1 2, context. Very, very few words in this case on 2 these recordings are Ms. Stewart's words. And, yet, under 3 various rules of evidence the words of others, uttered 4 sometimes in other languages are sometimes attributed to her. 5 The government is seeking by its case to build a structure, a 6 context under the various conspiracies charged in the 7 indictment. That is the job of every proponent of every case 8 that is tried in the courts and lawyers either see that or they 9 don't. That's what they are supposed to do because the 10 deciders want to hear a whole story. 11 But what if the house is built on sand? What if the 12 words -- what if words are missing? What if instead of relying 13 on the tapes that we hear day after day after day to the 14 exclusion of live witnesses you really had to pay attention 15 more to the live witnesses that could appear and that you could 16 talk to? Because we can't tap people's phones. They can. Our 17 case is about people and not about technology. And so exposing 18 the human face has to do with the very context of the 19 conspiracies charged. 20 Finally, of course, your Honor, the calls themselves, 21 the pandemic unintelligibles and technical problems. 22 Observations made on those calls by people with no technical 23 training whatever who are, according to the FBI's own 24 documents, left to twist in the wind when they make complaints 25 that the equipment isn't working whose motivation to make it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6560 4A1MSAT2 1 come out right, to make it come out so that I heard this and 2 this is what you want to hear. 3 THE COURT: But when you make that argument, you have 4 had access to the recordings and the ability to translate 5 yourself. You say, well, we can only translate what's there, 6 true. But if there is a dispute about what's there and what 7 the translator said is there, that certainly could have been 8 placed before the jury with your own translation. 9 To suggest that the translators have in the course of 10 their translation produced a translation which was inaccurate 11 in some way because they were under some pressure to produce 12 that translation, that certainly could have been contested at 13 any time with alternative transcripts. And my recollection is 14 that in the course of the trial there has been only one 15 alternative transcript presented to the jury in the course of 16 the one prison visit when there was a dispute about what was 17 said. That could have been done with any of these. 18 MR. TIGAR: I have not made my argument clear enough 19 because your Honor is taxing me with something that I didn't 20 intend to say with respect to the language specialists. I 21 earlier noted that the FBI's newest report, the declassified 22 report shows there might be some Jencks problems there, but I'm 23 not even talking about this. Here is what I'm pointing out, 24 Judge. Unintelligible and technical problems. We have seen 25 those over and over again. We don't have any quarrel with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6561 4A1MSAT2 1 fact that where it says unintelligible it probably is; that is, 2 there are some translations and you will get into that in the 3 defense case and there will indeed be challenges in the defense 4 case and the Court is right, we had them and can translate 5 them. I've had file cabinets full of them. All of that is 6 true. But when it is unintelligible, it is unintelligible. 7 When it is a technical problem, you can't hear it. 8 What I'm saying is, the jury is entitled to know 9 what's the technical problem, what's the unintelligible? What 10 does that mean? All the translator can tell you is, it was 11 unintelligible or it sounded like a technical problem. And 12 then Ms. Banout says, yes, but this was only a few calls, and 13 they asked questions like that on redirect. 14 So the issue is not whether we have had the calls. We 15 have had. The issue is not whether we can translate it. We 16 can. What's there? The issue is, your Honor, is that in back 17 of those pandemic words, technical problem and unintelligible 18 lies body of literature, documents that show us the 19 unreliability of this system. And I don't -- maybe the jurors 20 will be unimpressed. Your Honor mentioned that possibility 21 yesterday. Maybe they will think that I've been jumping up and 22 down for no good purpose. Maybe the Court and the government 23 disagree with the tactical choices we would make if given the 24 instruments that we could perform our craft in the presence of 25 the jury. It wouldn't be the first time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6562 4A1MSAT2 1 The point of it is is that in an adversary system 2 those were decisions for us to make, not for the prosecutors, 3 and surely not for a gang of bureaucrats with a classified 4 secret stamp and that's what happened. 5 MR. STERN: Can I say one thing before Ms. Baker 6 starts? Before I knew we were going to work today, I had an 7 appointment with a witness at noon that I can't change. 8 Mr. Knepper has agreed to stay with my client and my client has 9 agreed to stay here. With the Court's permission, I need to 10 leave at about five to 12. 11 THE COURT: Mr. Fallick. 12 MR. FALLICK: Likewise, your Honor. I have a court 13 appearance in the Eastern District Long Island office. I have 14 to leave here at 12. But Mr. Knepper is part of our team and 15 will stay with their consent. 16 THE COURT: Do both of your clients agree to that? 17 DEFENDANT YOUSRY: Yes. 18 DEFENDANT SATTAR: Yes. 19 THE COURT: Government. I am not sure that we will go 20 beyond 12. I just don't know. 21 MS. BAKER: That's fine with the government. 22 THE COURT: Thank you. Anything else from the 23 defendants before I turn to the government? 24 Ms. Baker. 25 MS. BAKER: If your Honor would like me to speak from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6563 4A1MSAT2 1 the lecturn, I will, although given my height and the height of 2 the lecturn, I actually prefer to stay at the table, if that's 3 acceptable to the Court. 4 THE COURT: That's fine. 5 MS. BAKER: Can counsel hear me clearly enough? 6 The government asks the Court to deny Ms. Stewart's 7 request for a mistrial, to deny her request to strike the 8 testimony of Mr. Elliot, Special Agent Kerns and Ms. Banout, to 9 deny her request to strike from evidence the recorded telephone 10 conversations, and to deny her request to recall any of those 11 three witnesses in the government's case. 12 Of course, Ms. Stewart may in her case, should she 13 choose to present one, call any witnesses she deems 14 appropriate. 15 The arguments that Ms. Stewart makes in support of the 16 relief, the various forms of relief that she requests are 17 simply not supported by the documents or by the record to date. 18 She alleges that there are Jencks Act violations with respect 19 to each of the three witnesses who I just named. 20 With respect to Agent Kerns and Ms. Banout, the 21 government, of course, denies that there were ever any such 22 violations in that we believe that documents that were not 23 initially disclosed but were disclosed later did not relate to 24 the subject matter of the witness's direct testimony. But, in 25 any event, were the Court to disagree with the government's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6564 4A1MSAT2 1 analysis on that point, those issues were already addressed 2 because after those documents were disclosed the witnesses were 3 recalled and were cross-examined about them. 4 And although there are multiple-page sections in 5 Ms. Stewart's latest motion that address those two witnesses 6 and documents relating to them, those pages address only the 7 documents that were already disclosed about which there has 8 already been cross-examination, and no additional documents 9 that were written by or adopted or otherwise approved by either 10 of those witnesses have been disclosed since those witnesses 11 testified and were cross-examined. So those parts of 12 Ms. Stewart's motion have no merit whatsoever. 13 THE COURT: Let me just stop you there. There is a 14 request in the memo at page 29 for a summary prepared by 15 Ms. Banout. It says defendants have checked. Ms. Banout 16 referred in the one e-mail to a summary. And they asked that 17 that summary be produced. 18 MS. BAKER: Your Honor, to the extent that Ms. Banout 19 prepared any summaries of any telephone calls, those are 20 attorney work product because any summaries that she prepared 21 were prepared specifically at the request of myself or another 22 AUSA prosecuting the case for the specific purpose of us 23 determining whether a particular call should be offered as part 24 of the evidence in the government's case. So those summaries 25 have not been disclosed because they are protected by the work SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6565 4A1MSAT2 1 product doctrine. 2 As to Ms. Stewart's allegation that there have been 3 Jencks Act violations with respect to Mr. Elliot, since 4 Mr. Elliot testified Ms. Stewart has made a variety of document 5 requests and as a result of those document requests, the 6 government has disclosed a number of documents over time on a 7 rolling basis. By my count, four documents out of all that the 8 government has voluntarily disclosed bear Mr. Elliot's name. 9 The government has no reason to believe that any other document 10 has any connection to Mr. Elliot, i.e., was written by him, 11 adopted by him or otherwise -- approved by him or otherwise 12 adopted by him. 13 As to the four that bear his name, it is my 14 understanding, based on what the FBI has told me about its 15 procedures, that when a lower-level FBI employee drafts that 16 type of document, they draft it and they list in a section the 17 higher-level FBI supervisors who they would request to review 18 and approve the document, but that does not necessarily always 19 happen. 20 And so although Mr. Elliot's name appears on certain 21 documents after the phrase approved by, unless the document in 22 fact bears his initials next to his typed name, he may not in 23 fact have approved it. So although there are only four 24 documents that bear his name, I want to be clear that I am not 25 representing that in fact he actually approved any of those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6566 4A1MSAT2 1 unless they bear his initials, and my recollection is that at 2 least two of them on the copies that were provided to my office 3 by FBI, there are no initials by anyone. Apparently, the 4 copies were retrieved from the FBI's word processing system. 5 So I just want to be clear that I'm not conceding that in fact 6 any document was in fact approved by him. In any event, 7 assuming arguendo -- 8 THE COURT: Which are the numbers of the four 9 documents that you're referring to? 10 MS. BAKER: My recollection -- and I will double-check 11 this later and advise the Court if I am wrong -- is that two of 12 the documents were marked as 3500 material for Special Agent 13 Kerns. So instead of bearing Bates numbers they bear 3500 14 markings for Special Agent Kerns and specifically those are 15 3525X, which was a document that was declassified in redacted 16 form and turned over, and then subsequently, on your Honor's 17 direction, it was unredacted further and disclosed again. 18 And similarly, Government Exhibit 3525Y. And then 19 from the sets of Bates numbered documents that have been rolled 20 out with the government's various letters, my recollection is 21 that it is the document that begins with the page Bates 22 numbered 1001 and then the document that begins with a page 23 Bates numbered either 1004 or 1005. 24 THE COURT: The defendant also makes a specific 25 request in the memo for any memo that constitutes a statement SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6567 4A1MSAT2 1 by Mr. Elliot about the changeover from the Lockheed Martin 2 system. 3 MS. BAKER: This is an issue that the government 4 addressed in one of the letters. There are memoranda along the 5 lines that -- now I'm not positive that what I'm about to say 6 is one that bears Mr. Elliot's name, but just to give an 7 example of a document that say things like, because of the 8 square footage available to put in the new equipment, or the 9 square footage needed to put in the new equipment, we will 10 follow the following logistical plan as far as removing the old 11 equipment. 12 Documents of that nature that related to very specific 13 logistical points of transitioning from using the Lockheed 14 Martin system on a day-to-day basis to using the Ratheyon 15 system on a day-to-day basis are, in the government's view, not 16 related to Mr. Elliot's testimony; if in fact they bear his 17 name, are not related to Mr. Elliot's testimony that the FBI 18 used to use the Lockheed Martin system and then at a certain 19 point it started using the Ratheyon system. I mean, the fact 20 that there was one system used and then a second system used 21 doesn't mean that it is 3500 material for the witness every 22 single very specific logistical detail relating to stopping the 23 use of the old system versus starting the use of the new 24 system. 25 So there may be additional documents that bear SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6568 4A1MSAT2 1 Mr. Elliot's name that meet the sort of description that I just 2 gave, that the government has not provided to Ms. Stewart or to 3 the Court. But it is the government's position for the reason 4 I just explained that those are not 3500 material of 5 Mr. Elliot. And in our letter to the Court dated August 21 of 6 2004, we cited some law about the scope of 3500 and the fact 7 that it was not intended to open the government's files to the 8 defense and make available to the defense sort of peripheral 9 issues that aren't fairly implicated by the import of the 10 witness's direct testimony. And that is our view as to 11 documents of the nature that I just described. 12 THE COURT: If there is a request and an issue -- and 13 we have come across this before -- should I not review those 14 documents? 15 MS. BAKER: Obviously, if the Court directs the 16 government to provide those documents for review, we will do 17 so. It was my belief -- essentially, it sort of puts the Court 18 in a position that if I had decided that the right way to 19 respond to Ms. Stewart's requests was for me to go to FBI 20 headquarters and page through the files cabinets and look at 21 all the documents myself -- and I left some documents behind 22 because I made the judgment that they were outside the scope of 23 the case -- then the Court should take a trip down to Quantico 24 and go through the filing cabinets to look at the same things I 25 looked at. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6569 4A1MSAT2 1 In my prior experience, these issues of submitting 2 documents to the Court for review usually arise in the context 3 of, is a document a "statement" of the witness or not, given 4 the nature of the document? And that's not the issue we have 5 here. The issue that we have here is scope. And therefore, we 6 think that there is a rational basis for treating the 7 situations differently, but obviously if the Court directs us 8 to provide those documents for review, we will. 9 I will say, you know, we have various interrelated 10 issues here. It is the government's view that there may be 11 documents perhaps within this category that even if they would 12 otherwise constitute 3500 material, if they address specific 13 logistical technological issues relating to these systems that 14 the law enforcement privilege should apply because there is no 15 necessity for disclosure of such peripherally related 16 logistical technological details. There is nothing that 17 Ms. Stewart could accomplish by having those documents. They 18 don't give rise to any meaningful cross-examination and, 19 therefore, the FBI's need to protect this sensitive technology 20 that it uses to conduct foreign intelligence investigations to 21 protect the national security means that the qualified law 22 enforcement privilege tips in favor of not disclosing the 23 documents because there is very specific sensitive information 24 and there is not any necessity for the disclosure. 25 Again, as I said, if the Court wants to be provided SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6570 4A1MSAT2 1 with additional documents, we will do that. But we submit that 2 they are not 3500 material because they are not fairly within 3 the scope of the witness's direct examination, and there may 4 be -- at least some of them, if not all of them, as to which 5 application of the law enforcement privilege would be 6 appropriate. 7 THE COURT: When there is a request and there is a set 8 of documents as to which there is a specific issue raised, and 9 the contention is, this is outside the scope of 3500, I should 10 at least check, so provide me with those documents. 11 MS. BAKER: We will provide those to the Court this 12 afternoon. 13 Unless the Court has a further question on that point, 14 I will resume on where I was. 15 Going back to the four, I believe it is, documents 16 that have been disclosed that bear Mr. Elliot's name, none of 17 those documents relate to the subject matter of Mr. Elliot's 18 direct testimony as that phrase is fairly construed and 19 construing fairly the scope of his direct testimony versus what 20 he was cross-examined about and then what was explored on 21 redirect. So, therefore, the fact that those four documents 22 have been disclosed since he was initially tendered for 23 cross-examination do not give rise to a Jencks Act violation. 24 As to Ms. Stewart's invocation of Brady and Giglio, 25 her allegation of fraud on the Court, or her accusation that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6571 4A1MSAT2 1 the government trial team has failed to act in a just manner, 2 those allegations fail because no document that has now been 3 disclosed by the government provides any reason to believe that 4 any recording made by either of these systems and introduced 5 into evidence at this trial is not an accurate recording of 6 what was actually said in the recorded conversation. Yes, 7 there may be portions where there is clearly words being said 8 that are unintelligible, or there may be portions when there 9 are technical problems. I will come back to that in a moment. 10 But there has been no allegation that the 11 conversations are not what they purport to be, and that is the 12 authenticity issue here. And so as to authenticating the 13 recordings, which was the purpose of the testimony of the 14 witnesses, there is no Brady or Giglio material or fraud on the 15 Court or failure by the prosecution to act in a just manner 16 and, therefore, none of those bodies of law, to the extent that 17 they are bodies of law, support any of the drastic relief that 18 Ms. Stewart seeks. 19 To very briefly give what is from the government's 20 perspective the relevant background, the Court has already 21 recognized more than once that the authenticity of the audio 22 files in this case, that is, both the recordings of the 23 conversations, the spoken words, and the nonaudio data or 24 signal related information in the audio files, the authenticity 25 of those materials has been demonstrated by the totality of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6572 4A1MSAT2 1 following. Mr. Elliot's testimony that the systems were 2 acquired by the FBI for the purpose of accurately recording 3 telephone calls and that in fact they do that, the contents of 4 the individual recordings, namely, that any individual 5 recording is internally consistent and continuous and makes 6 sense, even where there may be words, phrases, even sentences 7 that are unintelligible, the surrounding intelligible portions 8 of the conversations make clear that individually the 9 recordings seemed to be what they purport to be. 10 Moreover, the recordings relate to each other in a way 11 that authenticates them; that is, there are conversations that 12 explicitly refer to each other. For example, Mr. Sattar may 13 report to Mr. Taha in one call about a conversation that he had 14 with someone else where the conversation with that someone else 15 was a separate audio file that the government introduced, or, 16 even if there are not explicit cross references, the 17 conversations, the separate recordings follow logically from 18 one to another and the contents of them build on each other and 19 are consistent with each other. 20 The authenticity is also demonstrated by the 21 relationship of the recordings to other evidence in the case. 22 For example, the recorded telephone conversations relate to the 23 recordings of the prison visits which were recordings made by 24 completely separate technology. The recorded telephone calls 25 also relate to documents found in searches, news articles, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6573 4A1MSAT2 1 Taha, Bin Laden, Al-Zawahiri videotape and various other 2 evidence. Finally, there was the analysis of the telephone 3 records introduced into evidence through Agent Sorrells, which 4 is Government Exhibits 1800A through 1800U. 5 So the authenticity of the recordings is very clearly 6 established by the totality of the evidence in the case. And 7 that matters because -- and some of this sort of criticisms, I 8 guess I would call them, of Ms. Stewart's arguments that I'm 9 about to make matter because what we are doing here, what we 10 should be doing here is not an intellectual exercise. This is 11 not a forum for exploring the pros and cons or strengths and 12 weaknesses of the FBI's technology. This is a trial and the 13 function of the trial is for relevant evidence to be presented 14 to the jury. 15 And in order for that relevant evidence to be 16 presented to the jury, it has to be authenticated. And, yes, 17 the defense has the right to take issue with the weight to be 18 accorded to the evidence, but all of it has to be done in a way 19 that relates specifically to the evidence itself, and that is 20 meaningful within the internal context of the trial and not in 21 the broader context of what do we think of the FBI in the world 22 at large and how well or poorly it is fulfilling its 23 intelligence-gathering mission. That's not the issue here. 24 The issue here is the recorded calls that are in evidence. 25 Let's look at the issues that Ms. Stewart has raised SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6574 4A1MSAT2 1 with respect to the recorded calls in evidence and how that 2 relates to what is already before the jury versus what is in 3 some of the documents that the government has now voluntarily 4 disclosed, albeit in redacted form, voluntarily disclosed 5 notwithstanding the fact that the government does not believe 6 that the disclosure of those statements was required. They are 7 not 3500 material of any witness. They are not material to the 8 defense, which will become clear as I go through my next series 9 of points. Or are they Brady or Giglio for the same reasons? 10 So the disclosure wasn't required, but we have turned them over 11 anyway. What I am about to demonstrate is, they don't change 12 the record that already exists. They don't add anything that 13 the jury -- they don't add anything meaningful that the jury 14 doesn't already know. And here is why. 15 Ms. Stewart makes various complaints about the 16 recording systems and how they operated and what effect that 17 had on the recordings that the government has introduced into 18 evidence, and Mr. Tigar repeatedly in his argument spoke about 19 the unintelligibles and the technical problems. Every time a 20 recording is unintelligible, it is noted in the transcript. 21 Every time there was a technical problem that affected the 22 translator's ability to hear what was going on in the 23 recording, it is noted in the transcript. 24 So the jury knows, it is abundantly clear to the jury 25 that there were times when the recordings were unintelligible SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6575 4A1MSAT2 1 or had technical problems. That a particular technical problem 2 was because of widget A versus widget B in the FBI's recording 3 system would not, I respectfully submit, change the jury's 4 calculus of the weight to be given to the calls. 5 The relevant issue, if it is in fact relevant, if the 6 jury would find it relevant, is that there are a particular 7 number of unintelligibles or a particular number of technical 8 problems in particular recordings and where those events appear 9 in the recordings relative to the intelligible transcribed 10 portions. 11 The use of recordings at this trial is because as 12 human beings when we listen to conversations, they have meaning 13 to us. And some conversations, if they are in English, the 14 jury will listen to directly. Other conversations, if they are 15 in Arabic, the jury can't understand them. Then it is a 16 different human being. It is the language specialist that 17 listens to the conversation and says essentially through the 18 transcript, here is what I believe it means, and I have noted 19 every time that I couldn't hear something or I couldn't 20 understand something. The fact that it was widget A that 21 caused a particular technical problem at a particular point or 22 widget B that caused a different technical problem at a 23 different point doesn't affect how a person, whether it is an 24 individual juror or whether it is a language specialist, 25 listening to that call would understand and respond to that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6576 4A1MSAT2 1 call. Those are not relevant facts. 2 Because every unintelligible and every technical 3 problem is already there in plain view for the jury to see. 4 The very highly technical details set forth in the documents 5 that the government has now disclosed adds nothing to the 6 overall calculus and the overall questions that this jury needs 7 to ask itself and decisions that this jury needs to make. 8 The same is true about the fact that certain calls 9 were recorded in more than one audio file or, conversely, that 10 certain audio files contain less than an entire call. Where 11 that happened, that is apparent from either listening to the 12 audio file or reading the transcript, and in certain instances 13 where that has happened that has been pointed out at excessive 14 length to the jury through cross-examination of multiple 15 witnesses. So, again, the fact that that breaking up of what 16 was in the real world one calling event into multiple audio 17 files, the fact that that might have been caused by one type of 18 technical issue with the recording system versus a different 19 type of issue with the recording system isn't material. It 20 doesn't add anything to the relevance, the really relevant 21 point which is already abundantly before the jury. 22 Mr. Tigar also reminds the Court about a point that 23 was litigated before trial. And that is that there are certain 24 periods of time for which there are no recordings or that 25 recordings could not be retrieved by the FBI. The jury has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6577 4A1MSAT2 1 been made aware of that. Indeed, it was my recollection it was 2 Mr. Paul who cross-examined Special Agent Kerns about that 3 during his very first appearance. So the jury knows that there 4 are some periods of time for which there are no recordings. To 5 the extent that's relevant to the jury for some reason, they 6 know that. And so the fact that documents that the government 7 has now voluntarily disclosed may indicate reasons why there 8 were no recordings during particular periods of time, again, 9 why does it matter to the jury whether it was reason X or 10 reason Y, why there were no recordings. It does. All that 11 really matters is that there were in fact no recordings for a 12 particular period of time and that has already been 13 established. 14 Obviously, for any period of time for which there were 15 no recordings, the government is not offering the nonexisting 16 recordings into evidence because they don't exist. 17 All of this is information that is already available 18 to Stewart has already been presented at this trial in many 19 instances repeatedly. And there is nothing in any of these 20 documents that have now been disclosed that suggests that these 21 systems, when they do record, as opposed to when there is a 22 crash -- and that was brought out, too, during 23 cross-examination of Agent Kerns and or Mr. Elliot, but there 24 were times when the system crashed. When the systems were 25 operating and were making recordings, nothing in the documents SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6578 4A1MSAT2 1 suggests that the recordings that were made did not accurately 2 reflect the words actually spoken by the parties in the 3 conversations. Again, to the extent that some of those words 4 end up being unintelligible because of the way the party is 5 speaking, that is already abundantly clear from the recordings 6 in the transcripts. 7 For all of these reasons, these documents that have 8 now been disclosed aren't material to Stewart's defense and 9 therefore their disclosure is not required under Rule 16. They 10 aren't materially exculpatory or material, meaning 11 significantly important for impeachment purposes as far as 12 cross-examining the witnesses. They are not 3500 material of 13 the witnesses. So disclosure of them was not required and, 14 thus, there has been no violation of any legal duty by the 15 government. 16 As I said, if Stewart wishes in her case to call 17 witnesses and seek to explore some of these issues, Mr. Tigar 18 raises compulsory process. Okay, he cites the Aaron Burr case 19 from 1807 and no other law, so I'm somewhat doubtful that there 20 really is the sort of legal basis that he is asserting here. 21 But assuming arguendo that there is some compulsory process 22 right, then that right would be that he would serve a subpoena 23 and he would get documents and he could use them in his case. 24 That's the point of the trial that we are coming to. 25 He has been given the documents without having to go through SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6579 4A1MSAT2 1 the technical step of issuing a subpoena. And to the extent 2 that the documents are admissible, he can seek to use them in 3 his case. Although, again, this brings us back to the issue of 4 the law enforcement privilege. And so to the extent that use 5 of any of these documents were to be sought, because of the 6 government's assertion of the law enforcement privilege -- 7 which our concern all along is what prompted the protective 8 order -- we would ask that Mr. Tigar indicate in advance the 9 specific areas that he seeks to cross-examine about so that we 10 could determine whether he is making any showing of need such 11 that it would be appropriate to allow that cross-examination to 12 be conducted, notwithstanding the assertion of the law 13 enforcement privilege. 14 I am doubtful for the reasons that I have just argued 15 that any need could be demonstrated, but we would submit that 16 the appropriate procedure would be for there to be basically an 17 indication of the areas as to which cross-examination be sought 18 and the issue could then be addressed more specifically. 19 Again, the government has a concern about public 20 cross-examination about these very specific, very, very 21 sensitive matters. 22 And this is what I alluded to in my letter of last 23 night. I did not specifically request in my letter filing 24 under seal because I was operating on the assumption that 25 generally letters do not get filed unless the parties SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6580 4A1MSAT2 1 specifically request that. I was not requesting that the 2 letter get filed. Therefore, I did not question filing under 3 seal, but I would ask that should, for example, Mr. Tigar seek 4 to submit my letter as an exhibit, but should it somehow end up 5 being filed, notwithstanding the fact that I'm not asking for 6 it, that it should be filed under seal for the very reasons 7 that I say already in the letter itself. 8 THE COURT: Let me pause on that for a moment. The 9 way in which the records on this issue should be handled, it 10 seems to me, the initial letter, which started from the 11 defendant, was specifically a request that two of the exhibits 12 be filed under seal. And the subsequent letters and the most 13 recent memo indicates that they are referring to materials 14 subject to the protective order. All of those, to the extent 15 that they are filed, should be filed under seal. The defendant 16 asked that the last memo be filed under seal. Of course, that 17 can be filed under seal. 18 Go ahead. 19 MS. BAKER: Now, again, just turning back to the 20 overall scope of Ms. Stewart's motion and the various forms of 21 relief she now seeks, a number of her current arguments have 22 already been rejected by the Court, and the government 23 respectfully submits that there is no reason for the Court to 24 reconsider any of those issues at this time. For example, the 25 government has already ruled that the fact that the FBI could SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6581 4A1MSAT2 1 not retrieve -- 2 THE COURT: The Court. 3 MS. BAKER: I'm sorry. The Court has already ruled 4 that the fact that the FBI could not retrieve audio files for 5 certain periods of time did not entitle Ms. Stewart to any 6 relief. The Court has already rejected Ms. Stewart's 7 authenticity challenges based on the facts that the Lockheed 8 Martin system made compressed recordings and that those 9 recordings are now being utilized in a different format. And 10 the Court has already rejected Ms. Stewart's request for any 11 relief relating to Special Agent Kerns and Ms. Banout and the 12 documents relating to them, relief beyond the recall of the 13 witnesses which already happened. 14 One additional point with respect to Special Agent 15 Kerns and Ms. Stewart's repeated references -- 16 THE COURT: Where in the record did I deal 17 specifically with the issue of Special Agent Kerns and the trip 18 to Minnesota? 19 MS. BAKER: Your Honor, that was on August 13 of 20 2004 -- at least, this is what I believe to be the right 21 date -- beginning at page 4433. And the sequence of events at 22 that point in time was that Ms. Stewart had made a motion in 23 the form of a letter with multiple exhibits attached to it. 24 And that was a letter dated August 5 of 2004 from Mr. Tigar. 25 And then the government responded by letter dated August 12 of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6582 4A1MSAT2 1 2004. And then on August 13, that was a day -- it may have 2 been a Friday. I am not sure. It was a day when the jury was 3 not present and it was just counsel and the Court having legal 4 argument on a whole variety of issues. 5 And at the end of that session the Court raised the 6 status of these issues at that time and the fact that the 7 government had submitted its letter the night before, and that 8 led into a discussion of these issues. And I believe that that 9 was the day that related to Special Agent Kerns -- definitely 10 related to Special Agent Kerns. But I believe that that was 11 the day that related to the Minnesota documents and the 12 government saying at that point that it was going to be 13 recalling Special Agent Kerns the following week, and that we 14 had no objection to cross-examination of Special Agent Kerns 15 relating to the Minnesota documents occurring at that time. 16 But I will double-check the record. And if it turns 17 out that I have directed the Court to the wrong transcript, I 18 will supply the right transcript. 19 THE COURT: With respect to Ms. Banout, what portion 20 of the transcript are you referring to? 21 MS. BAKER: Your Honor, I do not have the citations. 22 But, as I understood Ms. Stewart's motion papers, she is 23 basically rearguing the issue with Ms. Banout and with the 24 13-segment audio file that was recorded in June of 2000. I 25 don't recall the specific date. And there was discussion in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6583 4A1MSAT2 1 various segments on a series of days about whether the 2 government was going to recall Ms. Banout or wanted to simply 3 give up on that evidence and not pursue the offer of it. 4 And the eventual outcome, the eventual decision on the 5 part of the government was to rerecall Ms. Banout. That was 6 done after the e-mails had been disclosed and her trouble 7 reports -- or whatever those other documents were called, those 8 had already been disclosed. And so it was very recently that 9 Ms. Banout was recalled. I don't remember the date. And she 10 took the witness stand and Mr. Barkow stood up and immediately 11 said that we tendered her for cross-examination. I can supply 12 the Court with the citations. I don't know them as I stand 13 here. 14 Again, as I said earlier, assuming arguendo that there 15 is in fact any Sixth Amendment compulsory process right that 16 Ms. Stewart would have to have any of these documents, she may 17 seek to make use of them in her own case. 18 Finally, the only other point from her written motion 19 that I wanted to address is the request that at a minimum, 20 notwithstanding any other relief that she seeks, that she asks 21 the Court to give the jury a spoliation instruction and for 22 that proposition she cites Judge Scheindlin's relatively recent 23 decision in the Zubulake case. 24 There has been no spoliation in this case. I 25 believe -- my best effort to understand the argument is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6584 4A1MSAT2 1 the argument is premised on the belief that for the calls that 2 were recorded with the Lockheed Martin system that at some 3 point there existed uncompressed recordings of those calls and 4 that they were then compressed by the Lockheed Martin system, 5 and that those supposedly originally existing, uncompressed 6 recordings no longer exist. That is not the case. 7 And my recollection is when Mr. Elliot testified, he 8 was asked on cross-examination if he knew whether the Lockheed 9 Martin system originally made the recordings in uncompressed 10 format and then compressed them, or whether the recordings were 11 compressed from the outset. My recollection is that he 12 initially said he didn't know, but then he said something to 13 the effect of that he didn't think or he wasn't sure that the 14 technology had existed back at the time that the Lockheed 15 Martin system was made to make the recordings directly in 16 compressed form. Therefore, he assumed, believed that the 17 recordings perhaps had existed originally in uncompressed form. 18 Since Mr. Elliot has testified, I have inquired of the 19 FBI about this matter, and I have been advised that in fact the 20 Lockheed Martin system compressed the recordings as it first 21 made them on its hard drive. So there never were any 22 uncompressed recordings made by the Lockheed Martin system. 23 Therefore, the original format of recordings made by the 24 Lockheed Martin system is the compressed format, and those 25 original compressed recordings on the electromagnetic tapes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6585 4A1MSAT2 1 still exist and copies of them were given to Ms. Stewart during 2 this trial on her request. 3 Of course, those are not the format in which the 4 government has offered those recordings into evidence because 5 we don't have the technical ability to play back those 6 recordings in that format, and that's why the recordings have 7 been converted to VOC, .VOC files, and introduced in VOC 8 format. 9 But the Court has already recognized that the 10 Capanelli case is one of the cases that bears on this issue. 11 And in Capanelli, that court allowed the use at trial of 12 recordings, even though the recordings in their original format 13 had been destroyed. So those facts are more adverse to the 14 government than the facts at issue here, but yet the recordings 15 were allowed to be used in a different format. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6586 4A1JSAT3 1 MS. BAKER: (Continuing) And similarly for the same 2 legal proposition, I would additionally cite one other case, 3 which is United States versus Balzano, B A L Z A N 0, reported 4 at 687 F.2d, Page 6, and it is a decision by the First Circuit 5 in 1982. 6 In the Balzano case, an undercover agent made a body 7 wire recording using some type of technology that was not 8 capable of playing back the recording, so the government 9 transferred the original recording to a different format, 10 knowing that the transfer would destroy the original, and it 11 did, in fact, destroy the original, but the First Circuit 12 rejected the defense arguments that the district court should 13 not have admitted the second transferred recording into 14 evidence. 15 In other cases, even when there was an original format 16 and destruction of it, the subsequent format recordings have 17 been allowed. Here, as I have now explained, there was not any 18 original format that was destroyed. The original format still 19 exists, although that is not what we're offering, but there is 20 certainly no basis for any spoliation instruction. 21 Just to respond, to move seriatim very briefly to a 22 couple of miscellaneous points Mr. Tigar made during his oral 23 argument, more in the nature of factual inaccuracies, on Page 24 10 of his motion papers where he is quoting from some of the 25 documents that the government has now disclosed, in the 5th SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6587 4A1JSAT3 1 bullet point at the bottom of the page, that relates to 2 summaries, that the summaries referred to there are the tech 3 cuts, that is, the language specialists' written summaries 4 based on their review of recordings. 5 That has nothing to do with the accuracy of the actual 6 recordings themselves. So I single that one out just because 7 Mr. Tigar singled it out in his oral presentation, but that 8 just underscores my point, that these various technical details 9 that are discussed in these documents address the systems in 10 various ways and various functions or components of the systems 11 but do not in any way suggest that recordings that were 12 actually made during times when the system was not crashed for 13 some reason, there is no suggestion that such recordings are in 14 any way inaccurate. 15 Mr. Tigar refers to the recent Department of Justice 16 Inspector General's report. The government respectfully 17 submits that that has no relevance to any of these issues, but 18 in response to Mr. Tigar's specific reference to recordings 19 being deleted from the recording system before they're 20 reviewed, actually the report does make clear that although 21 there were times when recordings were written-over before 22 reviewed, that recordings get archived and can always be -- the 23 way the system is intended to work, recordings get archived and 24 can be reuploaded for review from the archived copy if they are 25 written over. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6588 4A1JSAT3 1 As to the 51-second gap, as Mr. Tigar referred to it 2 in the sequence of calls on November 5th of 1999 that 3 culminates with the audio file in evidence as Government 4 Exhibit 1034, Mr. Tigar asserts that there is missing content 5 during that 51-second gap. At the very end of the day 6 yesterday we had testimony from Ms. Sulliman that the prior 7 segment of the recording, the segment right before the 51 8 second, quote-unquote, gap ends with Mr. Sattar asking 9 Mr. Yousry to hold on, and then the next segment is the placing 10 of the outgoing, three-way call to the Clark residence, where 11 they speak with Mrs. Clark, and are told that Mr. Clark is at 12 the office. 13 There is no reason to believe that there is any 14 content missing there as opposed to Mr. Sattar having 15 Mr. Yousry on hold while he looks for the phone number and 16 dials the call. 17 Finally, Mr. Tigar's reference to the telephone record 18 analysis and the fact that he pointed out, through Agent 19 Sorrells, that the FBI's recording system was wrong as to the 20 call direction for 9 out of the 244 audio files, this just 21 reiterates the point that I made earlier, which is the jury 22 knows that now. 23 And why the system may have registered the call 24 direction wrong sometimes, if that point is even addressed in 25 any of the documents, and I don't know whether it is or isn't, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6589 4A1JSAT3 1 but assuming arguendo that some document gives a reason for 2 that, that isn't relevant for the jury. What is relevant for 3 the jury, if anything, is the fact that the direction was 4 wrong, and they know that now. 5 So overall, there was no Jencks Act violation, there 6 is nothing in these documents that is Brady or Giglio or 7 material to Ms. Stewart's defense or even sufficiently 8 note-worthy or necessary to overcome a law enforcement 9 privilege and be worthy of being used on cross-examination. 10 So the government asks that the court deny Ms. 11 Stewart's motion in its entirety, which leaves open, as I said 12 at the outset, the option that she could call any witness she 13 deems appropriate in her defense case. 14 MR. TIGAR: May I respond briefly, your Honor? 15 THE COURT: Yes. 16 MR. TIGAR: In fact, we have heard for the first time 17 today in a representation of a government lawyer, and not a 18 government witness, that the Lockheed Martin system captured 19 calls in a compressed format. Compressed from what, one would 20 answer? 21 Our examination of the decompression algorithm, as we 22 have said to the court, suggests that compression was achieved 23 by deletion of data, but that is me, the lawyer, talking. 24 I discussed this issue, what is compressed content, at 25 2958 of the transcript, discussing the government's proffer of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6590 4A1JSAT3 1 what went into evidence as Government Exhibit 1309, because 2 that was a chart of how things got to court, and it picked up 3 from Government Exhibit 1307 and 1308, which were charts of how 4 telephone calls got recorded. 5 There was no step in 1309 of 6 uncompressed-to-compressed digital files. As the court is 7 aware, it has been our view throughout that the calls were 8 captured on the computer in a digital file format and that 9 shortly after being captured in that form, were then 10 transferred to these electromagnetic tapes in a compressed 11 format on a compression ratio of 4 to 1. 12 There are a number of places in the transcript where 13 that assumption is repeated. The idea that there is a 14 compression, Mr. Elliot says, the next part of the building 15 .VOC would be -- this is at 3130 of the transcript -- that the 16 content of the call or the audio of the call itself, and that 17 was compressed in the Lockheed Martin file, it was compressed 18 on a 4 to 1 ratio, it was four times smaller than the actual 19 file itself. 20 What that means to me is that there existed at some 21 time something called an actual file -- his words -- and that 22 it was later compressed. If that is not true, if what 23 Mr. Elliot said is not true or accurate, the way to deal with 24 it is not to have an argument in court among lawyers. The way 25 to deal with it is to bring some evidence, and this, if the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6591 4A1JSAT3 1 government has learned this recently from the FBI, after 2 repeated letters asking for the compression algorithm which 3 have gone unanswered, the statement being they didn't have it, 4 then that, too, is a production issue. 5 Now, also with respect to the last point, it's true I 6 cited the Burr case. It is an old case. It was cited, with 7 approval, on August 2, 2004 by the Second Circuit, 380 F.2d 57, 8 I don't have the jump page, but with a CF cite. It was cited 9 with approval by the Supreme Court of the United States in the 10 Geaney case, 124 Supreme Court 2576, discussing, of course, a 11 case with which all of us are familiar, the Nixon case, for a 12 unanimous Supreme Court that also doubled. 13 The Burr case, as it has come to understand and is 14 understood by the Second Circuit by the Sira case that I cited, 15 380 F.3d, is not just a case about compulsory process; it is a 16 case about the interrelationship between compulsory process and 17 cross-examination, because Burr sought the letters from the 18 President of the United States in order to meet the 19 government's treason case against him. 20 Your Honor, we don't have a burden here. We don't 21 have to present a case. The Sixth Amendment gives us the right 22 to cross-examine the government's witnesses, to insist that 23 they produce the material to do it by virtue of the compulsory 24 process clause so that I don't have to put on a case. 25 So that if for any reason at all Ms. Stewart says SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6592 4A1JSAT3 1 let's shut it down, there is no case to meet, we have the 2 absolute right to convict, as so we resist the suggestion that 3 it all comes out in the wash because, after all, we have the 4 right to present evidence. I don't have to go in to explore 5 that in any detail. That also has with our right to present 6 translators and our right to do other thing. The fact that we 7 have that right doesn't mean that we should be put in the 8 position of nonproduction of relevant material that we are 9 compelled to exercise it. 10 Now, with respect to this question, what is a 11 statement, what's not, what's relevant, what's not, it is too 12 plain now for argument that these are not decisions that 13 government lawyers can make. There is Smith, 31 F.3d, 1294, at 14 1302 (4th Cir. 1994). That deals with the interrelationship 15 among the various parts of the Jencks Act, the relevance 16 determination is one for the court in-camera. 17 A statement, is it a statement or not a statement, 18 which is what counsel raised, is not typically one that 19 condition be resolved without some form of quasi-adversary 20 inquiry; that is, if the issue is did he adopt it or did he 21 not, or did he approve it or did he not, even whether his 22 initials are on it or not, and is that because it is retrieved 23 from the word processor from some other file, that is the sort 24 of thing about which there must be a factual determination. 25 The Smith case summarizes the Supreme Court law, which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6593 4A1JSAT3 1 Goldberg and Campbell 1 and Campbell 2 and Palermo. All of 2 those cases are cited. 3 I think it is important here in evaluating not just 4 the Jencks issue, but the compulsory process obligation to 5 produce, our right to meet the government's case issue. 6 Mr. Elliot was tendered to us as an expert and 7 authorized to give his opinion, which he did quite wrongly, at 8 Pages 3060 through 3065, particularly 3062, lines 13 and 14, 9 that these systems work just fine. They did work just fine. 10 And so what we come to here, your Honor, is the way 11 the jury can trust or not trust isn't just a question of 12 whether the translators could hear it or not hear it; it's 13 whether or not the government set out with a machine capable of 14 doing the job because, after all, if the reason you couldn't 15 hear a piece of the conversation in the middle is that their 16 machine wasn't the right kind of machine or that it broke all 17 the time, that's relevant for the jurors in assessing the 18 weight. 19 Then with respect to the missing files, if the files 20 are missing, of course, they're missing. Mr. Kerns said on 21 direct examination -- perhaps on redirect -- we're still 22 looking, we will not accept anything less than 100 percent. 23 And the suggestion is thus left with the jury that the 24 FBI and other good faith is just continuing to look for 25 something that it misplaced for some reason that it was able to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6594 4A1JSAT3 1 find. If the reason they can't find it, your Honor, is the 2 system is so screwed up that they can't find it, or that it's 3 got problems that mean they can't find it, then that is an 4 inference. 5 Then there was the other matter, your Honor. I don't 6 know where this will go, but Mr. Kerns testified that there was 7 security with respect to access to those computers so that 8 nobody could monkey with those files because digital files are 9 easy to monkey with. 10 We know now that although there existed in another 11 part of the FBI an access check that would let you know who had 12 been in there, they don't have that over in the part where they 13 store this evidence. I learned that I think from Mr. Grasso, 14 the forensic witness. What we find out in the service reports, 15 your Honor, is that -- 16 MS. BAKER: Before you say whatever you're going to 17 say out loud, would you let me know what it is because I am not 18 sure it is appropriately said on a public record. 19 MR. TIGAR: Oh, it is. 20 MS. BAKER: Well, I appreciate that you think it is. 21 MR. TIGAR: Shall I go outside and tell them what I am 22 going to say or should I say it at sidebar? I await the 23 court's direction, your Honor. 24 THE COURT: Have a conversation with Ms. Baker. 25 (Off-the-record discussion) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6595 4A1JSAT3 1 MR. TIGAR: Because, taken as a whole, your Honor, 2 these service call reports show that everybody and his brother 3 was in there, that there was far more access to those machines 4 and those files and those drives and those keyboards than has 5 been suggested by the direct examination. That is my request. 6 Burr was also cited in the Hominy case, your Honor. 7 THE COURT: All right. Ms. Baker. 8 MS. BAKER: Your Honor, just for the record, the 9 government disputes Mr. Tigar's last point, and a review of the 10 documents would indicate that personnel with specific reasons 11 to have access to specific locations and specific equipment had 12 such access, and the documents indicate nothing more than that. 13 THE COURT: All right. I'll take the motion under 14 advisement. Let's resume on Monday, at 9:00 o'clock, and the 15 government should get me those documents and the letter today. 16 MS. BAKER: Your Honor, for logistical purposes, if it 17 is possible for the court to give us a sense of when the court 18 expects to rule, that would be helpful. If it is not possible, 19 obviously, we understand. 20 THE COURT: I will try to do it by Sunday. 21 MS. BAKER: I am sorry. By? 22 THE COURT: By Sunday. 23 MS. BAKER: Thank you. 24 (Court adjourned until Monday, October 4, 2004, at 25 9:00 o'clock am) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300