6769 4a5esat1 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 5, 2004 8 9:35 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6770 4a5esat1 1 (Trial continuing) 2 (In open court; jury not present) 3 MR. PAUL: We can proceed without Mr. Fallick, your 4 Honor. 5 THE COURT: First, I received Mr. Tigar's October 5th 6 letter relating to Mr. Fitzgerald. I reviewed the letter. The 7 letter concentrates on the addition of a cover letter to 8 Mr. Brave from Mr. Fitzgerald dated March 23, 1998 and the 9 impact of that cover memo. 10 I explained yesterday in the course of the argument 11 that there was a cover letter -- cover memo. The cover memo 12 was described. The existence of the cover memo and the 13 arguments made in the letter do not change my view from 14 yesterday, which I explained, that this material does not 15 warrant a mistrial or striking the Fitzgerald testimony, and 16 those motions are denied. There is no reasonable basis for 17 those motions based upon the late production of this material. 18 Any further use of these materials for purposes of 19 impeachment, which I explained yesterday, is simply not 20 substantial, but if the defendants wish to pursue that, I've 21 indicated that Mr. Fitzgerald can be recalled. And if the 22 defendants wish, Mr. Fitzgerald can be recalled in the 23 government's case. I indicated yesterday he could be recalled 24 in the government's case. The defendants declined that 25 yesterday and they said they reserved the opportunity to call SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6771 4a5esat1 1 Mr. Fitzgerald in their own case. They're certainly welcome to 2 do that, and if they change their view as to having 3 Mr. Fitzgerald recalled now, they should tell me. 4 MR. TIGAR: No, your Honor. There has been no change 5 in that view. I wrote the letter that I did not out of 6 disrespect for what your Honor had already decided, but to 7 raise these additional matters. It had been our request that 8 the letter and those other things be docketed so that there 9 would be a record of our arguments in the clerk's file. 10 THE COURT: Sure. I've already docketed the full 11 letter from Mr. Morvillo with his attachments and I did that 12 last night so it will be filed today. 13 The other letters, your October 5th letter, I'll memo 14 endorse that this can be filed. 15 MR. TIGAR: And then there's my October 3rd letter as 16 well, your Honor. 17 THE COURT: You can file that. And if the clerk's 18 office asks, then it will just come up in a new cover memo and 19 it can be docketed. 20 MR. TIGAR: Thank you. 21 MR. MORVILLO: Your Honor, I just wanted to put on the 22 record that we have never seen Mr. Tigar's October 5th letter. 23 THE COURT: Let me give it to you and -- 24 MR. TIGAR: Actually, your Honor, no need. Ms. Grant 25 is handing it to Mr. Morvillo. We did serve everybody this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6772 4a5esat1 1 morning, I'm sorry if Mr. Morvillo didn't get it. That has not 2 been our intention. 3 One more thing, your Honor. Because Mr. Morvillo had 4 put 3515W on the Elmo yesterday, I did not -- even though it 5 was discovery material, I did not ask that my letter or any of 6 these other things be sealed. It seemed to me that the -- 7 enough had been thrust into the public view that it was 8 that ---they had lost this absence of presumptive First 9 Amendment right of access because they were documents on which 10 a decision was based, but I did not want to let that go by 11 because technically I think an argument could be made they're 12 still under a protective order. I do not see a basis for 13 sealing, but that is a matter of indifference to us. 14 THE COURT: Let me give Mr. Morvillo an opportunity to 15 review the letter, and since the government hasn't responded in 16 writing, I'll certainly listen to anything Mr. Morvillo wishes 17 to say for the record. 18 MR. MORVILLO: Thank you, your Honor. I'll be 19 prepared to respond as soon as I finish reading it, but -- 20 THE COURT: Fine. We've got another issue, and if it 21 doesn't disturb you, the issue concerns another letter that I 22 think is Mr. Dember's. So you can read on and we'll deal with 23 the issue of 2634. 24 Mr. Tigar sent a letter last night dealing with 2634. 25 MR. TIGAR: I have not seen that letter, your Honor -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6773 4a5esat1 1 oh, it's my letter. 2 THE COURT: It's your letter. 3 MR. TIGAR: I thought you said the Dember letter. 4 THE COURT: Do you want an opportunity to read it? 5 MR. TIGAR: I'm consulting my other personalities, 6 your Honor, and collectively we will have an answer for the 7 Court shortly. 8 (Pause) 9 MR. TIGAR: Just a moment, your Honor. We're 10 retrieving it. 11 Yes, your Honor. I wrote two briefs last night; that 12 was the first one. Now I remember. It all comes back. Short 13 term memory is full. 14 I appreciate the Court's indulgence. Should I address 15 the matter or should Mr. Dember, or is the Court ready to rule? 16 THE COURT: Well, I think I have your letter and I 17 think Mr. Dember should address it. 18 MR. DEMBER: Your Honor, to begin with, we certainly 19 stand by our arguments we made yesterday with respect to 20 whether or not the entries in this notebook, which is Exhibit 21 2634, should be admitted into evidence. Those are our primary 22 arguments. 23 But on top of those, your Honor, as well, what's in 24 the notebook, frankly, particularly the July 2001 entries, are 25 essentially irrelevant to the issues in this case. Defense SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6774 4a5esat1 1 refers to Dr. Edwardy's testimony. And clearly, your Honor, 2 Dr. Edwardy was called as a witness to establish that the false 3 dissemination of medical information about Abdel Rahman which 4 was issued by Mr. Sattar and one of his coconspirators claiming 5 that he was not being given his insulin and medication was 6 false. In order to prove the falsity of their representations 7 and their dissemination of any information, we called 8 Dr. Edwardy to testify about the care that he was being given 9 and the fact that he was always given his medications and his 10 insulin. And at times they would just reduce his insulin when 11 he was fasting, but they never would have withheld his insulin 12 from him. 13 That was essentially the primary reason for calling 14 Dr. Edwardy. That doesn't open the door to everything that's 15 written in this notebook, your Honor. 16 Counsel refers to Rules 803, subdivision 1, 3 and 4, 17 none of which apply in this case, your Honor. If one looks 18 through the entries made in July 2001, you have all kinds of 19 complaints written down presumably by Ms. Stewart, that Abdel 20 Rahman makes to her and Mr. Yousry. 21 If your Honor recalls the reading of the July 2001 22 prison visit, many of these things have nothing to do with his 23 medical, emotional or psychological condition. They have to do 24 with his complaining about in general prison conditions, which 25 are not covered by 803 or those subdivisions of 803. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6775 4a5esat1 1 And on top of that, when he does complain about 2 medical conditions, these are more often than not medical 3 conditions in the past, not present medical conditions. So 4 they don't fall within the Rule 803 subdivisions I just cited. 5 Just to point out, your Honor, a number of the 6 complaints that are elicited in this notebook by Mr. Abdel was 7 the fact that Mr. Abdel Rahman doesn't like when he's offered 8 recreation. That's one of his complaints. He complains about 9 when his phone calls are permitted. They're always delayed in 10 coming. 11 He claims he doesn't get his haircuts in a timely 12 manner. He complains that the speaker phone or mechanism in 13 his prison cell apparently doesn't work or that nobody responds 14 to him. He complains that he believes that somebody in the 15 prison among the prison personnel put a bird in his toilet. He 16 complains about not being able to attend Friday prayer. 17 None of these, your Honor, fall within the exception, 18 which is 803. This is just -- he complains, your Honor, about 19 knocking on his second floor window. None of these are medical 20 matters. None of them fall within 803. 21 And as I said, when it comes today to the medical 22 issues that he complains about, those are medical issues that 23 aren't apparently current, according to what he told 24 Ms. Stewart. So 803 doesn't apply. 25 So on top of the arguments we made before, your Honor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6776 4a5esat1 1 yesterday, these two are -- do not fall within the sections 2 that Mr. Tigar cites in his letter. 3 THE COURT: Could I -- go ahead. 4 MR. DEMBER: I'm going to stop there, your Honor. 5 THE COURT: Were you finished? 6 MR. DEMBER: Yes. 7 THE COURT: Was -- how did we arrive at the point of 8 the admissibility of 2634 in toto? 9 MR. DEMBER: The entire -- 10 THE COURT: Right. The government had initially only 11 wanted to introduce the last page. 12 MR. DEMBER: Your Honor, only the last page had 13 cleared the wall by the special masters. We only knew about 14 the last page when we went to offer it. Once that occurred, 15 what we had was a single page, your Honor. I'll hold it up so 16 your Honor could see it. We have a copy of this single page. 17 And so initially I spoke with Ms. Shellow-Levine about 18 coming to some kind of accommodation as to -- because the 19 special master's report had indicated that it was a page from a 20 notebook which apparently had the notes of other prison visits, 21 that we say with some kind of accommodation from the defense, 22 either redacting all the other pages but leaving the dates that 23 were on those pages, which was a possible accommodation. That 24 request by me was rejected. 25 So with that being rejected and them not wanting to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6777 4a5esat1 1 compromise on how this could be presented, we were left with 2 the only option, which was to present the copy of this final 3 last page of what is now marked as 2634. 4 Once your Honor ruled it admissible because they 5 challenged that as one of the Stewart exhibits, then Mr. Tigar 6 said, well, we want the whole notebook to come in. And then we 7 spoke and we reviewed it. We said, fine, the whole notebook 8 can come in. I don't believe, your Honor, at that point it was 9 clear by either side as to any limitations on any parts of the 10 notebook; in other words, whether any page of the notebook 11 would come in under a limiting instruction. 12 Once we reviewed the pages, your Honor, that's after 13 Mr. Tigar offered and suggested either under 106 or for other 14 reasons that the -- that he would agree to the whole notebook 15 coming in, we reviewed it, had the first time to review the 16 notebook, saw what was in it and certainly saw on the number of 17 pages that consist of notes from the July 2001 visit that this 18 was Ms. Stewart's writing down what Abdel Rahman had said 19 during that visit, which we read to the jury when we read in 20 the transcripts of that visit. 21 And certainly when we negotiated that visit with the 22 defense, we certainly made clear that all these complaints, 23 medical -- by Abdel Rahman of his medical condition, of his 24 conditions of confinement, were hearsay, inadmissible, and 25 there would be a limiting instruction with respect to that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6778 4a5esat1 1 That was our view. 2 Once we saw the notebook and saw that this was simply 3 a repetition of those statements by Abdel Rahman written by 4 Ms. Stewart, clearly we take the same view. And so that's 5 where we have arrived at our current position. 6 Frankly, your Honor, if -- first of all, if we have to 7 go now and go back and sort of reinvent this exhibit, I think 8 it's quite crystal clear, your Honor, that this last page of 9 the exhibit would not -- withdrawn. 10 It's our position, your Honor, that the pages that 11 consist of Ms. Stewart's writing from the July 2001 visit would 12 not be admissible under Rule 106, if we offered the last page. 13 The last page has nothing to do with the writings that are on 14 those previous pages, not to mention the fact it's written in a 15 completely different form of ink, whereas -- so it's likely it 16 wasn't even written on that particular day. 17 This notebook, your Honor, has in it, from what best 18 we can tell, notes from other visits Ms. Stewart apparently 19 made to Abdel Rahman when he was in prison. The first page 20 is -- reads Sheikh Omar and has a date, 9/98. From our review 21 of the notebook your Honor, it appears either this is a 22 notebook she had which she used when she visited Abdel Rahman 23 or perhaps when she also spoke to him on the telephone during 24 her prison calls. That seems to be what this notebook was used 25 for, with exception of the May 2000 visit, which there's no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6779 4a5esat1 1 indication there's any notes here. 2 THE COURT: Could you pass the notebook up. 3 MR. DEMBER: Yes, sir. 4 Your Honor, may I just clarify one point Mr. Barkow 5 brings to my attention. He reminds me that we were looking at 6 the videotape, the brief portion of the videotape that we did 7 play of the July 2001 visit. He reminded me that Ms. Stewart 8 actually put a number of pens on the table. So I'm -- I can't 9 say that -- 10 THE COURT: On the first day of the visit? 11 MR. DEMBER: Yes. 12 THE COURT: Yes. 13 MR. DEMBER: Yes, I'm just making clear to the Court 14 that I'm not -- I can't represent to the Court that the last 15 page wasn't written during the July 2001 visit. I don't 16 want -- that's -- I don't know when it was written, your Honor. 17 We don't know when it was written, but I don't want to -- to 18 the extent I'd indicated I thought it wasn't, I can't say when 19 it was written. 20 But whenever it was written, your Honor, it's our view 21 under 106, none of the rest of the entries in that notebook 22 need to be admitted with that last page. 23 That's all, your Honor. 24 MR. TIGAR: Your Honor, first, the government did 25 offer the whole book. And as I understand it, that was its SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6780 4a5esat1 1 decision. 2 However, let's look just at this first page. Every so 3 often interrupts to give an English translation. Unless that 4 was written during a visit to Sheikh Abdel Rahman at a federal 5 penal institution, then it has nothing to do with the 6 allegations of this indictment. And -- 7 THE COURT: And the government has argued in its 8 correspondence to me and to the -- my recollection to the 9 special master that, in fact, the inferences are that it was 10 written during the July 2001 prison visit, an inference that is 11 supported by the transcript and I believe what I saw, unless my 12 memory fails me, on the -- no, I'd have to go back and check 13 whether it was also supported by the video that we saw of the 14 July 2001 prison visit. There plainly was a discussion at the 15 beginning of the first day of that visit, which is correct. 16 MR. TIGAR: Yes, your Honor, there's no question, 17 Ms. Stewart says to Mr. Yousry at several points, do some 18 translations. That's what she said and that's been a matter 19 that's been discussed. And we don't think there's anything 20 wrong with her saying that, but that is the government's 21 theory, and we'll address it at the appropriate time. 22 THE COURT: Mr. Dember rose to say something. 23 MR. DEMBER: I'm informed this sort of predates any 24 entry to this case, but Ms. Baker reminds me we have never 25 represented to the Court or to the special master when that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6781 4a5esat1 1 last page was written. We've indicated -- I think I believe 2 the special master may have drawn that conclusion on his own, 3 but we never made that representation or advocated that 4 particular -- that it was that particular visit or that 5 particular time when that happened. 6 I would note, your Honor, that just from my 7 recollection of what's in the book, there's an entry for March 8 '99 in that book, and Ms. Stewart paid a visit to Abdel Rahman 9 in March of '99 as well at the Federal Medical Center at 10 Rochester. So it's -- you know, it could be at least one of 11 those two visits. 12 MR. TIGAR: Then of course, your Honor, the first 13 question would be, and I'll have to refresh my recollection, 14 which of the prison visits it is alleged that Ms. Stewart 15 engaged in improper covering conduct, whether it was the May or 16 July 2000 or when it was, because my recollection is there was 17 only one of them. But I'll check the indictment to see that. 18 Then the next -- if indeed she wrote at some point 19 during some visit, right, every so often interrupted to give an 20 English translation, the question of why she did that and 21 whether the fact that she wrote that supports any allegation of 22 the indictment about what was going on creates a further 23 problem, because there's no allegation that as of the 1998 24 visit that Ms. Stewart was engaged in trying to pass a message 25 or do anything of that sort about -- with respect to the events SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6782 4a5esat1 1 that happened in May of 2000. 2 There is an allegation the conspiracy begins in 1997, 3 but a free-floating allegation that at some point during some 4 visit she wrote that, we suggest, is irrelevant. The 5 relevancy, therefore, if any, derives from what? Not just 6 what's on the screen. That might be sufficient for your Honor 7 to make a conditional relevancy determination under 104. That 8 would be your Honor's decision and we've discussed those facts. 9 But a conditional relevancy determination under 104 is 10 not solely within the Court's province. The question of 11 whether this was written, when it was written the context in 12 which it was written and, therefore, its relevancy to the 13 government's or the defense theory of the case has to do, we 14 suggest, with the book as a whole. That is why we have taken 15 the position consistently that it all ought to come in and the 16 government agreed with us. 17 So far yesterday that was the state of play. The 18 government agreed it should all come in. Now the government 19 says, well, no, not if we're not going to get an instruction 20 that nothing comes in for the truth of the matter asserted. 21 My problem is this, your Honor: Suppose Ms. Stewart 22 takes the stand and says, this is my book. I was with Sheikh 23 Abdel Rahman and he said in the present tense, looking now at 24 page 005573, I have sufferings, I am suffering. At that point 25 the jury should be able to say, oh, that's for the truth, he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6783 4a5esat1 1 had sufferings. And that's, your Honor, that's the issue that 2 we confront here. 3 We agreed -- we did an agreement about the videotape. 4 And maybe my letter tries to state a more cosmic theory than is 5 necessary. It would not be the first time I've done that and 6 then forgot completely that I had, of course. 7 THE COURT: You're really arguing against a prospect 8 that what I will do eventually is to say, OK, none of the book 9 comes in except the last page, and that's a possibility. It's 10 a possibility because there are lots of ways to redact this 11 book; having read the whole book, to allow the last page in 12 without all of the remaining items in the book, which, taken 13 together, are overwhelmingly materials that the defendant would 14 want and not the government, because they reflect the entire 15 period of consultation between the lawyer and others in 16 connection with Sheikh Rahman. And that's a possibility, but 17 I'm not inclined to do that. 18 I'm faced with a more limited question, which is the 19 limiting instruction that I gave yesterday after listening to 20 the parties. And I am prepared to continue with that limiting 21 instruction, and I'll explain why, and I'll explain a couple 22 of -- what I think of as a -- as clarifications in response to 23 the letter. 24 Let me ask another question: There is an assertion in 25 the letter that Sheikh Rahman is "unavailable." My SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6784 4a5esat1 1 understanding from the correspondence before trial was that he 2 was made available and no one has asked for a subpoena -- 3 MR. TIGAR: That's right, your Honor. 4 THE COURT: -- to bring him in. 5 MR. TIGAR: Your Honor, my statement in the letter was 6 that he's available to the United States by simply arranging. 7 He's unavailable, except upon the most onerous and difficult 8 conditions imposed by the United States as a condition of 9 confinement. 10 That doesn't say we couldn't subpoena him. I concede 11 we could subpoena him. In order to have a consultation with 12 him, we were required to take a wall team translator, all sorts 13 of conditions that I regard as onerous under the circumstances. 14 I don't want to litigate those. And if I seem to be stating 15 something that was beyond what was so, then I apologize, but 16 that is what I meant. 17 May I say this, your Honor: If the Court is -- I hear 18 the Court. The Court does not find my hearsay analysis 19 persuasive. I'm prepared to desist from my letter, to accept 20 the situation as it was yesterday with the limiting 21 instruction, knowing that when Ms. Stewart takes the stand -- 22 it's understood, when Ms. Stewart takes the stand, she may very 23 well be able to establish as a matter of Rule 104 conditional 24 relevancy a basis to say, oh, now that particular thing comes 25 in, now that particular thing comes in. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6785 4a5esat1 1 And if she takes the stand and if we do that, it would 2 then be my intention out of the hearing of the jury, having 3 laid that foundation, to make that application. And if that's 4 because -- I don't -- 5 THE COURT: That's fine. 6 MR. TIGAR: I don't want to get into an argument with 7 the Court. 8 THE COURT: That's fine. 9 MR. TIGAR: -- that ultimately I'll -- in which the 10 Court and I would disagree about something that in the grand 11 scheme of things does not matter very much. I hear the Court's 12 view, and if it is the Court's view that I would not be 13 disrespectful by seeking to reopen it when we lay the 14 foundation later on if we did, then I desist. 15 THE COURT: OK. No, you're not being disrespectful, 16 nor would it be disrespectful to raise the issue with 17 respect -- at a later point with respect to an individual 18 statement that fell within a hearsay exception. 19 But the blanket statement that all of the statements 20 by Omar Abdel Rahman should come in and that there shouldn't be 21 a limiting instruction with respect to the statements by Sheikh 22 Rahman, particularly given the history of the negotiations with 23 respect to the transcript of the entire visit and the way in 24 which this exhibit was coming in with respect to completeness, 25 for all of these statements that Ms. Stewart wants in and not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6786 4a5esat1 1 the government, is not well taken. 2 So you're not disrespectful to reserve rights to raise 3 the issue at a future time with respect to specific statements 4 by Sheikh Rahman, at which time I will have to examine the 5 issue. 6 MR. TIGAR: We had not asked in our letter that all of 7 the statements be admitted. We just said those that were 8 subject to the hearsay rule. I didn't wish to be 9 misunderstood. 10 THE COURT: But there was no effort to go through the 11 exhibit and to -- 12 MR. TIGAR: I did not in that letter do that, your 13 Honor. 14 Now, with respect to the transcript of the visit, I am 15 limiting by my agreement with the government -- our agreement, 16 all the lawyers -- as to what we can ask for later on. I'm not 17 so limited with respect to the book. And that was -- to that 18 distinction, what we agreed never to raise again and what we 19 did not, we will of course adhere. 20 THE COURT: All right. 21 OK, Ms. Baker. 22 MS. BAKER: Your Honor, I have what I hope is a very 23 brief matter in the nature of housekeeping. 24 Earlier in its case the government introduced and 25 presented to the jury a recording in evidence as Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6787 4a5esat1 1 Exhibit 1034. That is a primarily English language recording 2 of a call that has now been testified about several times. It 3 starts with Mr. Sattar and Mr. Yousry on the phone and then 4 they get Mr. Clark on the phone in his office, and then later 5 Mr. Clark gets off the phone and Mr. Sattar -- sorry, 6 Mr. Yousry gets off the phone and Mr. Sattar and Mr. Clark have 7 a three-way call with a reporter. 8 When the government presented that recording, in the 9 corresponding transcript, the transcript was characterized on 10 the record as being presented as an aid to the jury because the 11 call is in English, which is true as to perhaps 95 percent of 12 it or a little more than that. But there are several lines of 13 Arabic in the call which were translated in the transcript, and 14 the government offers into evidence those portions of the 15 transcript that are the translation of the few lines of Arabic, 16 and that is something that we neglected to do at the time that 17 the call and the transcript were presented. 18 THE COURT: What is the document number for the 19 transcript? 20 MS. BAKER: 1034X. 21 MS. SHELLOW-LAVINE: Your Honor, according to my notes 22 of the limiting instruction, the exhibit was admitted, I think, 23 on the 26th of July. And my note says that the transcript is 24 an aid except for those portions in Arabic as to which there is 25 evidence. I have not checked the transcript, but that's what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6788 4a5esat1 1 my cryptic note of the limiting instruction says. 2 MS. BAKER: If that is the case, obviously that's 3 sufficient. I had checked the transcript and didn't see 4 that that clarification was in there. 5 THE COURT: OK. Could you check at the break. We'll 6 have someone check, and if so, we can come back again. 7 Let me return to Government Exhibit 2634. 8 Mr. Morvillo? 9 MR. MORVILLO: Thank you, your Honor. 10 I just wanted to respond to Mr. Tigar's October 5, 11 2004, letter. The government disputes the characterization by 12 Mr. Tigar of the inferences that could be reasonably drawn from 13 the memos for the reasons largely set forth yesterday. And the 14 government also agrees with the Court's ultimate resolution of 15 this issue for the reasons stated by the Court earlier today. 16 And I have nothing further to add. 17 I would also with respect to the order of proof of the 18 Yousry search materials that we'll be getting to later this 19 morning, I'd like to hand up to the Court a chart which lists 20 all of the exhibits and what, if any, limiting instruction 21 would be applicable. 22 THE COURT: All right. There are, by the way, a 23 couple of outstanding issues which are still out there which 24 don't have to be addressed at the moment. 25 One was Ms. Shellow-Levine's letter that included a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6789 4a5esat1 1 motion in limine with respect to precluding some testimony or 2 examination, and the second was Ms. Shellow-Levine's letter 3 seeking to admit the Hawk memo. 4 MR. TIGAR: There's also the 9/11 memo, your Honor. 5 THE COURT: That was the first item. 6 MR. TIGAR: I thought -- 7 THE COURT: I was -- that was the motion in limine I 8 was referring to. 9 MS. BAKER: Your Honor, as to 1034X, we found the 10 portion of the transcript, which is at transcript pages 4314 to 11 15. And Ms. Shellow-Levine is correct that when the Court 12 addressed the jury about this exhibit, the Court said that 13 the -- well -- I'm sorry, it's not clear to me whether the 14 Court is speaking to the jury or just to counsel, but on page 15 4315 the Court says "and the transcript was an aid to the jury 16 except for those Arabic portions which are themselves in 17 evidence." 18 So that is what the Court said; I believe to the jury, 19 although the transcript -- the trial transcript does not 20 explicitly indicate that any portion of 1034X is in evidence, 21 although that is what the Court said. So the government's 22 view, as long as no defendant has any issue with it, is that 23 its submission -- 24 THE COURT: I'm not sure what distinction you're 25 drawing between what I said and what I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6790 4a5esat1 1 MS. BAKER: No, it's a matter of the notations that 2 the court reporter is making in the transcript. In other 3 words, usually it would say in parentheses that an exhibit is 4 received or a portion is received, and it doesn't say that for 5 this exhibit. 6 THE COURT: Thank you. All right. Let's bring in the 7 jury. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6791 4a5esat1 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. Good 3 to see you all. And, again, I appreciate your indulgence on 4 letting us deal with various issues first before you come in. 5 Good to see you all. 6 All right. Mr. Dember. 7 MR. DEMBER: Your Honor, with your permission, we're 8 going to continue reading from Exhibit 2666, resuming on the 9 top of page eight. May we display that for the jury, your 10 Honor. 11 THE COURT: Yes. 12 MR. DEMBER: Your Honor, this is the exhibit with a 13 limiting instruction. May I proceed. 14 THE COURT: Yes. 15 MR. DEMBER: Haggag interview. 16 After hearing the testimony in this case, the parties 17 were permitted to submit additional argument and to make 18 further offer of proof. The INS submitted an affidavit from 19 New York City Police Department Detective Thomas F. Corrigan. 20 Attached to Detective Corrigan's affidavit is a five-page 21 summary of an interview with Abdo Rahman Haggag. The affidavit 22 has been heavily redacted to preserve the privacy of persons 23 other than the respondent. Detective Corrigan offers no 24 opinion on the credibility of Mr. Haggag. 25 Detective Corrigan explained that Mr. Haggag is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6792 4a5esat1 1 former confidant of Sheikh Rahman and previously testified in 2 the federal prosecution against Sheikh Rahman and others. 3 Haggag's interview discloses that an unnamed person had argued 4 with the respondent over respondent's management of the Abu 5 Bakr mosque. Further, the interview included a description of 6 a meeting at Sheikh Rahman's apartment involving seven people, 7 including Haggag and the respondent. At that meeting hijacking 8 an airplane was discussed. However, talk of hijacking was 9 terminated "as hijackings for the most part are unsuccessful." 10 Finally, Haggag indicated that he was unaware of any of 11 al-Gama'a's contacts at "the airport." 12 The offered evidence is too ambiguous and too 13 irrelevant to have much importance in these proceedings. The 14 fact that Mr. Haggag is aware of an argument between the 15 respondent and another person is simply insignificant. Even 16 more insignificant is the statement that Mr. Haggag is unaware 17 of al-Gama'a's contacts at the airport. 18 The portion of the interview describing a meeting at 19 Sheikh Rahman's apartment is curious. Although it contains an 20 ominous reference to airplane hijacking, it seems that the idea 21 was completely rejected by those assembled. Although the INS 22 apparently offers the document to support its claim that the 23 respondent is a danger to the security of the US, the document 24 appears to be mildly contradictory to that claim. According to 25 the offered document, the respondent was present when the use SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6793 4a5esat1 1 of violence was thoroughly rejected. Although the document 2 states that the reason for rejecting the hijacking idea was its 3 unfeasibility, no alternative operations were proposed. The 4 most that could be made from this document is that some 5 irresponsible comments about airplane hijacking were made and 6 the idea was rejected. There certainly were no objective steps 7 taken in furtherance of any plan to hijack an airplane. This 8 incident cannot be seen as any form of direct or indirect 9 threat to the security of this country. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6794 4A5MSAT2 1 The respondent has countered the government's offer of 2 proof with portions of a transcript of Mr. Haggag's testimony 3 at Sheikh Rahman's trial. The transcript shows clearly that 4 Mr. Haggag agreed to burn down a restaurant for $3,000. He 5 actually set fire to the restaurant which did in fact burn down 6 (respondent's post hearing brief. Attachment D, transcript 7 pages 9871-9873) 8 District court indictment. 9 The INS introduced a copy of an indictment against the 10 respondent which is in the record as Exhibit R-6s. The 11 indictment was filed in the U.S. District Court for the 12 Southern District of New York on December 4, 1998 (98 Cr. 13 1397). By this indictment, the respondent is accused of making 14 a false application under the Special Agricultural Worker (SAW) 15 provisions of the Immigration and Nationality Act, 8 U.S.C. 16 1160 (INA Section 210). The respondent is accused of 17 submitting a certification containing false statements of fact 18 as well as submitting a false affidavit of employment. 19 Subsequent to the testimony in this case, the INS informed the 20 Court that on June 8, 1999, the respondent was found guilty of 21 violating 18 U.S.C. 1426(b). 22 Footnote 5. 23 This offense may qualify as an aggravated felony if 24 the respondent is sentenced to at least 12 months. INA section 25 101(a)(43(P). If that were the case, the respondent would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6795 4A5MSAT2 1 ineligible for asylum. 8 CFR 208.13(c)(2)(i)(D)(1999). He 2 would also be presumed ineligible for withholding of 3 deportation. 8 CFR 208.16(c)(2)(1999) referring to prior INA 4 section 243(h)(2). See matter of Q-T-M-T, Int. decision, 3300 5 (BIA 1996). However, because the respondent has not been 6 sentenced, the offense does not now qualify as an aggravated 7 felony and it does not make the respondent presently ineligible 8 for the relief he requests. 9 Back to the text. 10 The offense carries a maximum penalty of five years in 11 prison and a fine. The Court was informed that sentencing was 12 scheduled for 7, 1999. 13 In its decision of May 5, 1997, this Court discussed 14 the significance of respondent's application under the SAW 15 provisions. The respondent had claimed the Fifth Amendment 16 privilege against self-incrimination concerning certain 17 questions about his manner of entry. Inasmuch as it was clear 18 that the respondent could not have qualified under the SAW 19 program, this court took into consideration the possibility 20 that "the respondent obtained counterfeit documents or obtained 21 immigration status by fraud or mistake." The failure to 22 explain this situation was viewed by the Court as "a 23 substantial failure of proof with respect to the respondent's 24 requests for discretionary relief." (Decision, page 6). 25 The recent guilty verdict is consistent with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6796 4A5MSAT2 1 court's earlier assessment of the respondent's SAW application. 2 The fraudulent nature of respondent's SAW application was 3 assumed by the court in its evaluation of respondent's 4 credibility and his suitability for a favorable exercise of 5 discretion. The substantial favorable factors in respondent's 6 case were balanced against the highly negative assumption that 7 "the respondent knowingly submitted false documents and made 8 material misrepresentations in order to gain entry into this 9 country." (Decision, pages 17-18). The recent verdict is based 10 on an indictment that describes conduct already assumed by this 11 court to have occurred. Thus, despite the indictment and 12 guilty verdict, this court's prior analysis of respondent's 13 credibility and his suitability for discretionary relief will 14 not be changed. 15 Classified information. 16 As discussed in the court's May 5, 1997 decision, the 17 immigration court is authorized by regulation to receive 18 classified information in camera in connection with 19 applications for asylum and withholding of removal. When such 20 evidence is received, the respondent must be notified and the 21 agency which provided the information "may provide an 22 unclassified summary of the information" to the respondent. 23 "The summary should be as detailed as possible, in order that 24 the applicant may have an opportunity to offer opposing 25 evidence." 8 CFR 240.11(c)(3)(IV)(1999). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6797 4A5MSAT2 1 When this case was initially heard by the immigration 2 court in 1997, the unclassified summary of the information 3 consisted solely of pedigree information and the brief 4 statement that the evidence included "information concerning 5 respondent's association with a known terrorist organization." 6 The court concluded that this summary was largely useless. 7 While the matter was pending on appeal to the Board of 8 Immigration Appeals, the INS made significant additional 9 disclosure of the evidence presented in camera. In light of 10 the expanded disclosure, the board deemed it appropriate for 11 the matter to be remanded to the immigration court to allow the 12 respondent an opportunity to respond to the additional 13 unclassified information. Additionally, the board instructed 14 the immigration judge to request reexamination by the INS of 15 the classified information "to assure that the unclassified 16 summary of information provided to the respondent is as 17 complete as possible." (BIA decision, page 2). 18 While the matter was on remand the INS presented 19 additional classified information in camera and ex parte. 20 Additionally, the service submitted all of the classified 21 material for "declassification review." The result of this 22 effort was a significant increase in disclosure. 23 Footnote 6. 24 Although the regulation refers to "unclassified 25 summary," that term is not defined. In this case, most of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6798 4A5MSAT2 1 material provided to respondent was "declassified material." 2 Most of the declassified materials were redacted versions of 3 documents or verbatim transcripts. However, some declassified 4 material took the form of an "unclassified summary," apparently 5 because the original material was an oral presentation which 6 was not recorded. See Exhibit R-2-3. 7 Back to the text. 8 Dozens of pages of previously classified material were 9 disclosed to the respondent. The Court expresses its thanks to 10 the INS attorneys who worked on this matter to secure the 11 declassification reviews. I believe that the INS has now done 12 its best to secure disclosure which "is as complete as 13 possible" given the time constraints inherent in a case 14 involving a detained respondent. As a result of the expanded 15 disclosure, the respondent was able to present a more focused 16 defense to the allegation that he is a danger to the security 17 of the United States. 18 Armed with a better understanding of the government's 19 case, the respondent was successful in rebutting most of the 20 factual allegations underlying the charge that he is a danger 21 to the security of the United States. Although the respondent 22 was unable to divine all of the evidence presented in secret, 23 the more focused presentation at the remanded proceeding was 24 useful to the Court in formulating questions and identifying 25 areas of concern regarding the classified information. As set SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6799 4A5MSAT2 1 forth in the classified attachment -- 2 Footnote 7. 3 After classification review of this document, it was 4 determined that nearly all of the information in this 5 attachment should be considered unclassified at the present 6 time. A redacted version of this attachment should be 7 available through Freedom of Information Act procedures. 8 Back to the text. 9 As set forth in the classified attachment, the 10 evidence presented in camera can no longer be viewed as 11 sufficiently reliable to support a finding that the respondent 12 is a danger to the United States. 13 A persistent concern of the court was the reason for 14 classification of much of the secret evidence. It appears that 15 some of the classified information could be gathered from 16 nonconfidential sources. If the information could be presented 17 in open court as coming from an unclassified source, the 18 respondent would be able to confront the evidence against him. 19 This is certainly a desirable feature of any court proceeding. 20 Indeed, the Court is concerned about the possibility for abuse 21 in this area. Imagine, for example, an agency which has two 22 sources of evidence of a particular fact. One source is 23 classified and the other source is public. If the agency 24 chooses to present the information through the public source, 25 the respondent will have an opportunity to confront the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6800 4A5MSAT2 1 evidence. However, if the agency chooses to present the 2 evidence through a classified source, the evidence could remain 3 unassailable. Imagine further the situation where an agency 4 has classified information of a certain fact, but does not yet 5 have a public source for that fact. If the agency knows it can 6 present the classified information in camera, what is the 7 incentive to spend investigatory resources on developing a 8 public source for that evidence? 9 In the instant case, the specific reasons for 10 classifying the information remained generally unstated. The 11 INS commissioner's determination which accompanies the 12 classified information provides only a pro forma justification 13 for the classification: "I have determined that this 14 information is relevant to the present case and was provided by 15 another agency which had classified it pursuant to Executive 16 Order 12958 as requiring protection from unauthorized 17 disclosure in the interest of national security." (Exhibit R-3, 18 citation omitted). As this case vividly demonstrates, much 19 classified information bearing commissioner's determination can 20 be "declassified" if there is the will to do so. Most of the 21 court's questions regarding the reasons for classifying certain 22 evidence were answered with simple "boilerplate" phrases, 23 denial of knowledge or denial of authority to discuss the 24 matter. The court does not ascribe any improper motives to the 25 agency's reluctance to discuss its inner workings. Yet, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6801 4A5MSAT2 1 possibilities for abuse, albeit inadvertent, are manifest. 2 Accordingly, where the Court has determined that there are no 3 expressed and no apparent reasons for classification of a 4 particular piece of evidence, it is fundamentally unfair to 5 present that evidence ex parte. To use such evidence against 6 the respondent would deprive him of due process of law. See 7 Matter of Velasquez, 19I&N, Decision 377,380 (BIA 1986). The 8 matter is discussed more fully in the classified attachment. 9 Footnote 8. 10 This discussion indicates that there is a 11 constitutional basis for rejecting a specific piece of evidence 12 presented by the INS in camera. However, apart from 13 constitutional objection, that specific piece of evidence was 14 also found by the court to be insufficiently reliable to 15 support any factual findings. 16 As a final note on the topic of confidential 17 information, the Court's previous decision touched on two 18 issues which were resolved in the remanded proceedings. The 19 first issue concerned the Court's inability to store classified 20 material which has been resolved with delivery to the court of 21 the appropriate equipment. Accordingly, all materials in this 22 record is now being maintained by the court consistent with the 23 regulatory requirements 8 CFR 3.36(1999). The second issue 24 concerned the possibility of limited security clearances for 25 respondent's attorneys so that they could participate in the in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6802 4A5MSAT2 1 camera proceedings. When the court introduced this topic at a 2 prehearing conference in the remanded proceeding, the 3 respondent's attorneys were not interested in pursuing the 4 matter. They expressed the general opinion that such procedure 5 would be unworkable. There would be an unbearable tension 6 between the attorneys' need to communicate with their client 7 and the attorneys' promise not to disclose the classified 8 information to anyone without the appropriate security 9 clearance. 10 Withholding of deportation-convention against torture. 11 By letter dated April 15, 1999, the respondent 12 requested the immigration court to consider his application 13 under the Convention Against Torture ("CAT"). That application 14 had originally been filed with the district director in June of 15 1997 when the immigration courts did not have jurisdiction over 16 CAT claims. See matter of H-M-V, interim decision 3365 (BIA 17 1998). However, a recent regulatory change has assigned to the 18 immigration courts jurisdiction over CAT claims, 64 FR 8478 19 (February 19, 1999). 20 Under the interim regulations, the immigration court 21 is to decide whether the respondent has met his burden of proof 22 "to establish that it is more likely than not that he or she 23 would be tortured if removed to the proposed country of 24 removal." 8 CFR 208.16(c)(1). This decision is not difficult 25 for this court to make at this time. The court has previously SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6803 4A5MSAT2 1 found that the evidence in this case shows that the 2 "respondent's association with Sheikh Rahman will result in his 3 detention and will likely result in his torture if he is 4 returned to Egypt." (Decision, page 16). Thus, the court has 5 already made an essential factual finding that establishes the 6 respondent's eligibility for the relief of withholding of 7 deportation under the CAT. There was no substantial evidence 8 adduced on remand which would cause the Court to reconsider 9 this finding. Indeed, the testimony of witness Neil Hicks 10 convincingly shows the human rights situation in Egypt remains 11 essentially unchanged. "There has been no improvement in such 12 basic areas as the right to a fair trial, the right not to be 13 tortured, and even the right not to be extra-judicially killed. 14 The State Security Intelligence Service operates with impunity 15 for its disregard of the rights of its citizens suspected of 16 political opposition to the government." (Exhibit R-8, page 1). 17 Accordingly, the court finds the respondent is eligible for the 18 relief of withholding of deportation under the Convention 19 Against Torture. 20 Asylum discretion. 21 In its posthearing memorandum, the service correctly 22 points out that the Court must deny asylum and withholding of 23 deportation if there are reasonable grounds for regarding 24 respondent as a danger to the security of the United States. 25 Footnote 9. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6804 4A5MSAT2 1 The CAT, however, does not exclude such persons from 2 relief. If the respondent were found ineligible for asylum and 3 "straight" withholding, he would still be eligible for 4 "deferral of removal" under the interim regulations 8 CFR 5 208.17 (1999). In that case, although the respondent could not 6 be deported to Egypt, the INS would not be required to release 7 the respondent and could keep him in custody indefinitely. 8 Back to the text. 9 The service observes that the term "danger" is not 10 expressly modified in the statute. Accordingly, the service 11 argues that this disqualification provision should apply 12 regardless of the degree of danger which the respondent poses. 13 The service believes that "any" degree of danger is sufficient 14 to trigger disqualification. Under this reading of the 15 statute, an alien could be denied asylum upon a finding that he 16 poses a "minimal" degree of danger, a "slight" degree of danger 17 or perhaps even if he is regarded as a "possible" danger to the 18 United States. 19 The service's position is made even more clear in its 20 discussion of the issue of discretion. An asylum application 21 may be denied in the exercise of discretion and the service 22 urges the Court to deny this respondent a favorable exercise of 23 discretion because there are national security concerns present 24 in this case. In the service's opinion, where evidence 25 "suggests" that the respondent is a danger to national SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6805 4A5MSAT2 1 security, a grant of discretionary relief is "unthinkable." 2 (INS memorandum, pages 34-35). Following the service's 3 argument, asylum should be denied where there is a suggestion 4 of minimal danger to the security of the United States. 5 Further, the service argues that the quantum of 6 evidence needed to create the suggestion of danger is "slight." 7 The government need only provide enough evidence to show an 8 "articulable suspicion" of danger (INS memorandum, page 35). 9 And the INS believes that it is appropriate for the immigration 10 court "to defer to the experience and expertise of government 11 agents charged with protecting national security." (INS 12 memorandum, page 36). 13 Distilled to its essence, the INS position is that the 14 Court should deny asylum where law enforcement agents suggest 15 that the respondent may pose at least some minimal risk of 16 danger to the security of the United States. That suggestion 17 may be communicated without the opportunity of 18 cross-examination by the respondent and, as shown in the 19 classified attachment, without answering the court's questions 20 concerning the source of the information. Simply stating the 21 INS position in this way is to reject it. The INS seems to be 22 asking the Court to abdicate its statutory and regulatory duty 23 to decide the respondent's asylum claim based on the evidence 24 presented at the hearing. The court will respect the expertise 25 of law enforcement personnel and their dedication to protecting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6806 4A5MSAT2 1 our country. But the court will not defer to their credibility 2 findings, their weighing of the evidence or their 3 interpretations of law. When a case has been assigned to the 4 immigration court, these issues are to be resolved by the court 5 which will make its own findings and conclusions based on the 6 evidence presented. 7 The service analogizes the "reasonable ground" 8 standard to be the "reason to believe" standard developed in 9 the stop and frisk arena. Terry v. Ohio, 392 U.S. 1 (1968) 10 (INS memorandum, page 23). I believe the analogy is 11 appropriate. The court will look at the evidence presented to 12 determine if there is reason to believe the respondent is a 13 danger to the security of the United States. There must be 14 evidence of sufficient quality that the court can believe the 15 respondent is a danger to the United States. 16 THE COURT: The first line is: Service analogizes the 17 reasonable ground standard to the reason to believe. 18 MR. DEMBER: I'm sorry. Although a "suggestion" of 19 danger is insufficient to require denial of asylum, where the 20 evidence "indicates" that a ground of disqualification exists, 21 the burden shifts to the respondent to show by a preponderance 22 of the evidence that the disqualification does not apply. 8 23 CFR 208.13(c)(2)(II). In this case, the classified 24 information, when originally presented, was sufficient to 25 indicate the applicability of the ground of disqualification. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6807 4A5MSAT2 1 Without a useful summary of the classified information 2 presented in the 1997 proceedings, the respondent was unable at 3 that time to meet the preponderance of the evidence standard. 4 However, in the remanded proceedings, the respondent had the 5 benefit of vastly improved disclosure. As set out above, he 6 was able to focus on known areas of concern and was able to 7 successfully rebut most of the evidence, including most of the 8 classified evidence, presented by the service. I conclude, 9 therefore, that the record in this case no longer contains 10 reliable evidence sufficient to regard the respondent as a 11 danger to the security of the nation. 12 As the evidence in this matter does not establish that 13 the respondent is a danger to national security, I conclude 14 that there are not sufficient negative factors in this case to 15 warrant denial of asylum in the exercise of discretion. "The 16 danger of persecution should generally outweigh all but the 17 most egregious of adverse factors." Matter of Pula, 19I&N 18 decision 467,474 (BIA 1987). In the May 5, 1997 decision, the 19 court balanced the positive and negative factors in this case 20 and found that the respondent did merit a favorable exercise of 21 discretion. It appears that since the date of that decision, 22 the discretionary factors have not changed substantially. 23 Although respondent has been found guilty of a crime, which is 24 a powerful negative factor, the court has already generally 25 allowed for the facts which form the basis of the crime. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6808 4A5MSAT2 1 respondent's U.S. citizen children are now two years older, and 2 the respondent has spent two more years in confinement. Both 3 of those facts would militate even more strongly for a 4 favorable exercise of discretion. Additional support for a 5 positive exercise of discretion is found in the regulation at 8 6 CFR 208.16(d)(1999). That provision calls for reconsideration 7 of a discretionary denial of asylum where the alien is to be 8 granted withholding of deportation. The provision applies 9 where the alien has a spouse or children who would be 10 effectively precluded from admission to the United States by a 11 discretionary denial. The provision applies in this case due 12 to respondent's wife having been previously denied 13 asylum/withholding of deportation (See Exhibit R-5-14) and this 14 court's finding that the respondent qualifies for withholding 15 of deportation. 16 The respondent has now been detained for more than 17 three years while the court and counsel wrestle with the issues 18 involved in the use of classified information in a court 19 setting. Although some may believe that this procedure is a 20 valuable tool in fighting terrorism, this tool is unsuited for 21 use in a courtroom. Handling this tool outside the 22 investigative environment has proved to be extremely awkward. 23 Special procedures are required at every step and the 24 proceedings are necessarily protracted. Moreover, despite the 25 professionalism of all counsel appearing in this case, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6809 4A5MSAT2 1 poisonous atmosphere created by secret accusation is impossible 2 to completely eradicate. A recent decision by the U.S. 3 District Court for the Eastern District of Virginia sums up the 4 situation aptly. "The use of secret evidence against a party, 5 evidence that is given to, and relied on, by the U" -- 6 THE COURT: IJ. 7 MR. DEMBER: "IJ and BIA but kept entirely concealed 8 from the party and the party's counsel is an obnoxious 9 practice, so unfair that in any ordinary litigation context, 10 its unconstitutionality is manifest." Haddam v. Reno F.Supp.2d 11 1999 WL 258420 (E.D. Virginia, Ellis J.). 12 Accordingly, for the reasons set forth in the court's 13 decision on May 5, 1997, as modified and expressed herein and 14 in the classified attachment hereto, the previous order of this 15 court is withdrawn and the following order shall be entered. 16 Order. 17 The respondent's application for withholding of 18 deportation to Egypt is granted, and it is further ordered that 19 the respondent's application for asylum in the United States is 20 granted. 21 At the bottom Donn Livingston, Immigration Judge, and 22 purports to be the signature of Judge Livingston. 23 Next page. United States Department of Justice, 24 Executive Office for Immigration Review, Immigration Court, 205 25 Varrick Street, New York, New York. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6810 4A5MSAT2 1 THE COURT: 201. 2 MR. DEMBER: File No. A90 674 238, July 30, 1999. 3 In the matter of Nasser Ahmed, a/k/a Nasser Ahmed El 4 Hommosany, respondent, in bond redetermination proceedings. 5 Louis M. Bograd, American Civil Liberties Union 6 Foundation, Washington D.C.; David Cole, Georgetown University 7 Law Center, Washington D.C.; Abdeen Jabara, Lawrence Schilling, 8 Lynne Stewart, New York, New York, for respondent. 9 Suzanne McGregor, Assistant Regional Counsel, Anne E. 10 Gannon, Assistant District Counsel; John Mulrooney, Assistant 11 District Counsel, for the Immigration and Naturalization 12 Service. 13 Decision on motion to reconsider custody status. 14 Previously this court has ruled that the respondent 15 may be detained by the Immigration and Naturalization Service 16 without bond because he was determined to be a threat to 17 national security and likely to abscond. The decision to 18 continue detention without bond was affirmed by the Board of 19 Immigration Appeals on the national security ground. 20 Respondent's motion for a subsequent bond redetermination was 21 denied. 22 In connection with remanded deportation proceedings, 23 the respondent has renewed his request for release from 24 custody. Matter of Uluocha, 20 I&N decision 133,134 (BIA 25 1989). Following remanded deportation proceedings, the court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6811 4A5MSAT2 1 has determined that the respondent can no longer be regarded as 2 a danger to the security of the United States. Respondent has 3 been granted asylum and withholding of removal, and so he can 4 no longer be considered likely to abscond. Accordingly, there 5 is no longer any reason to maintain the respondent in 6 Immigration and Naturalization Service custody. 7 Order. 8 The respondent's request for reconsideration of his 9 custody status is granted and he is ordered released from 10 Immigration and Naturalization Service custody. 11 Donn Livingston, Immigration Judge, and the signature 12 of Donn Livingston. 13 Your Honor, at this time the government requests 14 permission to display and read to the jury Government Exhibit 15 2620, which is in evidence. It requires an instruction, your 16 Honor. 17 THE COURT: Ladies and gentlemen, this exhibit is a 18 newspaper article. It is received not for the truth of any of 19 the matters asserted, but solely with respect to the knowledge, 20 intent, and state of mind of Ms. Stewart. 21 MR. DEMBER: Your Honor, on top it reads: By Judith 22 Miller and Neil MacFarquhar. 23 The portion begins as follows: Clinton administration 24 officials are also reported to be looking closely at a 25 videotape broadcast on September 21 by Al-Jazeera, an Arabic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6812 4A5MSAT2 1 satellite television network based in Qatar. On the tape, 2 Mr. Bin Laden and Ayman al-Zawahari. Mr. Bin Laden's top 3 deputy for military operations condemned the United States' 4 presence in the Middle East and threatened a "holy war." 5 American military and Middle Eastern officials said 6 they believed that the tape was recorded "some time between 7 March and May," although the Taliban government in Afghanistan, 8 under pressure from the United States to hand over Mr. Bin 9 Laden, has asserted that the tape was made four or five years 10 ago. 11 On the tape Mr. Zawahari said: "The time has come for 12 us and for all mujahedeen to confront this heathen, tyrannical 13 power which has trampled upon our holy sites and occupied our 14 two holy mosques." 15 The reference was to Islam's most sacred shrines in 16 Mecca and Medina Saudi Arabia. "These heathens have spread 17 their forces in Egypt, Yemen and the gulf, killing our 18 children, persecuting our scholars, soiling our holy shrines 19 and stealing our wealth, Mr. Zawahari said. 20 The tape also showed Mr. Bin Laden preaching for a 21 holy war. He -- a number of these words on the end are cut off 22 of this particular exhibit. His followers should do all they 23 something to establish Islamic law in word M-U-S something 24 countries and "to expel the Jews -- the letter A follows -- the 25 Christians from the S-A-C-R places, and to endeavor to -- the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6813 4A5MSAT2 1 word R-E-L-E-A and the word cut off, our ulema from the 2 United -- appears to be states, from Egypt, from Riyadh, and it 3 appears to be from all holy Islamic lands." 4 Ali al-Kaadi, acting head of N-E -- what looks like a 5 W gathering for the network and the letter T there, showed the 6 tape, said in an inter-- appears to be interview today that the 7 tape has been -- and the word mail -- to the network with no 8 return, what appears to be address. A title on the video says 9 it -- the letter W, produced by the Jihad media, S-E-N-S, in 10 Afghanistan which Middle -- what appears to be Eastern 11 officials said was a D-U-B-I-O name intended to disguise what 12 appears to be identities. 13 Middle Easterns and what appears to be American 14 sources said they believed that -- the letter T sermons were 15 delivered at what appears to be meeting of militant Islamic 16 Groups to what appears to be discuss ways to free Sheikh Omar, 17 what appears to be Abdel Rahman. Mr. Rahman is the -- what 18 appears to be blind Egyptian cleric who is serving a -- appears 19 to be life sentence, in a federal penitentiary, the United 20 States for his role in, then the letter T, World Trade Center 21 bombing in 199. Then it is cut off. 22 At one point the tape focuses on hand-painted banner 23 on the wall, what appears that says: "The release of the what 24 appear to be prisoner Omar Abdel Rahman is a duty to, then the 25 letter A, those capable of it." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6814 4A5MSAT2 1 Among those at the meeting, what appears to be was, 2 Mr. Rahman's son, Assadullah, then what appears to be the word 3 who, is heard off camera calling, appears to be the word for 4 armed action to release his father, then the letter O, 5 according to one account, to "what appears to be the word shed 6 blood." Until his father is what appears to be released from 7 prison. 8 Your Honor, at this time may we display and read to 9 the jury what is Government Exhibit 2671? 10 THE COURT: Yes. Ladies and gentlemen, this is also a 11 newspaper article and it is subject to the same instruction 12 that it is not received for the truth of any of the matters 13 asserted but solely with respect to the knowledge, intent, and 14 state of mind of Ms. Stewart. 15 MR. DEMBER: I will start reading from the top. In 16 the left-hand corner it is what appears to be No. 1 and on top 17 it reads, Al-Hayat, 10/26/98. 18 THE COURT: Before you begin again, it is Government 19 Exhibit 2671 in evidence, right? 20 MR. DEMBER: Yes, your Honor, it is. 21 THE COURT: Go ahead. You can start from the top. 22 MR. DEMBER: It reads Al-Hayat 10/26/98. He assured 23 the "offer" to stop violence is being under study. Rifa'i Taha 24 to Al-Hayat, no change in the Islamic Group strategies. 25 Cairo, Mohammed Salah. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6815 4A5MSAT2 1 Rifa'i Taha (Abu Yasir) member of the "Islamic Group", 2 shura counsel, has but an end to the reactions caused by the 3 "Islamic Group" leaders Dr. Omar Abdel Rahman's declaration 4 from his prison in the United States and was explained as 5 "change" that prohibited in organization strategies (ranked as 6 an Islamist -- let me start again. The next line is Al-Hayat 7 has interviewed Taha and then there is a caret there indicating 8 the above should be put in. (Ranked as an Islamist live 9 outside Egypt) yesterday over the phone he announce (declared) 10 that the "Islamic Group" shura counsel is still studying 11 initiated the "offer" to stop violence which was by the 12 historical leaders of the organization in July of last year. 13 He added "It is still under study by the Islamic 14 Group's shura counsel. And he said "We still studying the 15 offer. And the more there is a freedom on the ground, that 16 will find a reception by us. Originally, we want to call for 17 Allah. If that achieved by any means, we welcome it." But he 18 added "if we have prevented from our call what we will do 19 except to defend ourselves." What appears to be the word the 20 or he consider the "Gamaat" along the left-hand side is the 21 words less of. It then starts "will not accept the less of -- 22 appears to be a word in a different language. And what we want 23 is to open "field of Da'Awa (call to Allah) in front of us. 24 Taha, who was sentenced to death in absentia, from a 25 military court in a case known by the Afghan returnee" in 1998, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6816 4A5MSAT2 1 has discussed the conflict around Abdel Rahman's declaration 2 and what was said about his call to unite all the Muslim groups 3 and factions to "form and peaceful international Islamic 4 coalition." 5 He clarified that the declaration did not conclude 6 what reflect that point, "but that came in a message directed 7 to the lawyer when Muntasir al-Zayyat attached to the 8 declaration." He added "I have followed up on the message and 9 the declaration and it was clear that the Sheikh has declared 10 in the message his acceptance to Muntasir al-Zayyat, invitation 11 to form a coalition. And the Sheikh was not the one who start 12 to call for that. In the same message he also call to form an 13 international Islamic court to look into the differences 14 between the Islamic countries. I believe that the Sheikh 15 actually wanted to sponsor that subject, not mentioning that 16 has led to meanings that he did not intend or meant. Excuse 17 me. 18 Taha, who left Egypt in 1988, mentioned that the 19 message and the declaration meant to "assure an Islamic 20 meaning, to call for Allah, enjoy the good and forbid the 21 evil." He also mentioned the Sheikh opinion regarding the 22 Islamic coalition subject which was initiated by al-Zayyat to 23 face the dangers against Islam. 24 He spoked to Al-Hayat about the views that concluded 25 that then is signer or signs of changes in the Islamic Group SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6817 4A5MSAT2 1 strategies through the Sheikh declaration and message. 2 And he assured that the Gamaat "did not change its 3 strategies or its "call" following the "self enjoining of the 4 good and forbidding the evil and Jihad." 5 Your Honor, the final exhibit we intend to present at 6 this time, your Honor, is Government Exhibit 2634. There is 7 also an instruction required for this exhibit. 8 THE COURT: Ladies and gentlemen, this exhibit is not 9 offered for the truth of any of the statements by Sheikh Omar 10 Abdel Rahman that appear in this exhibit. It is not offered 11 and received for that purpose. 12 MR. DEMBER: Your Honor, before I put the pages up on 13 of this exhibit on the Elmo, could I simply hold it up for the 14 jury so they can see what it is? 15 THE COURT: Yes. 16 MR. DEMBER: Your Honor, at this time, I will simply 17 display the pages that are in this notebook that have writing 18 on them for the jury. This is the front page, actually. 19 MR. TIGAR: May I confer with Mr. Dember, your Honor? 20 THE COURT: Yes. 21 MR. DEMBER: Thank you, your Honor. 22 THE COURT: Ladies and gentlemen, we will take our 23 mid-morning break. Please remember my continuing instructions. 24 Don't talk about the case at all, please. Always remember to 25 keep an open mind until you have heard all of the evidence and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6818 4A5MSAT2 1 I have instructed you on the law. 2 All rise, please, and the jurors will follow 3 Mr. Fletcher to the jury room. 4 (Jury not present) 5 THE COURT: See you shortly. 6 (Recess) 7 (Pages 6819-6820 SEALED by order of the Court) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6821 4a5esat3 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, the exchange at side bar will 3 be sealed? 4 THE COURT: If the parties would prefer, that's fine. 5 I'll seal it. I don't recall if I sealed a similar one. 6 MR. RUHNKE: Your Honor, I think it's probably the 7 government who would want it sealed or not. We're indifferent 8 to whether it's sealed or not. 9 MR. TIGAR: Your Honor -- 10 MR. DEMBER: Your Honor, we're not requesting -- I'm 11 sorry. 12 MR. TIGAR: Your Honor, the transcript identifies the 13 juror by seat number. 14 THE COURT: That's fine, I'll seal it. I'll seal it. 15 Thank you. 16 With respect -- I have the list that Mr. Morvillo gave 17 me with respect to the exhibits that are coming up, and I -- 18 when the -- I just want to make sure that I understand what the 19 parties have given me. It says, if there is nothing in the 20 column that says defendants offered against, I -- 21 MR. MORVILLO: Your Honor, my understanding, at least 22 my intent is that that only applies to translations. 23 THE COURT: Oh, OK. And if the list says Yousry, the 24 only instruction is this exhibit is offered only against 25 Mr. Yousry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6822 4a5esat3 1 MR. MORVILLO: That's correct, your Honor. And if it 2 also says not for the truth, with respect to Mr. Yousry, for 3 example, like Government Exhibit 2406-1 -- 4 THE COURT: Keep your voice up. 5 MR. MORVILLO: Which is Government Exhibit 2406-1, 6 that's a newspaper article, it would be offered only against 7 Mr. Yousry and not for the truth of any of the matters asserted 8 in the article. 9 THE COURT: And with respect to newspaper articles, I 10 usually say that it's not only not offered for any of the truth 11 of the matters asserted but it's offered solely with respect to 12 the knowledge, intent and state of mind of Mr. Yousry. 13 MR. MORVILLO: That's the government's view. 14 MR. RUHNKE: That's our position, your Honor. 15 Just one clarification: On Exhibit 2421-2, which is 16 on the first page, this is described as a large envelope 17 labeled Luxor incident, in quotes. The agreement was as part 18 of negotiations the government is not going to offer the 19 contents of the envelope, but there is a stipulation that 20 simply indicates that there was such an envelope containing 21 large remarks about Luxor which provided or stated in part in 22 the stipulation. When I first looked at it, I was wondering 23 why it was not offered for -- appeared to be offered for the 24 truth, and I've forgotten the stipulation so I wanted to bring 25 that to your Honor's attention. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6823 4a5esat3 1 THE COURT: Well, the only instruction it's offered 2 solely against -- it is only the envelope that's being offered 3 and only against Mr. Yousry, not its contents. 4 MR. RUHNKE: That's correct. 5 MR. MORVILLO: Yes, your Honor. And I believe our 6 agreement is I would just publish the envelope to the jury by 7 holding it up at the time we reach this exhibit. 8 THE COURT: And if the exhibit -- if the list says 9 Mr. Yousry, Mr. Sattar, similarly that exhibit is offered only 10 against Mr. Yousry and Mr. Sattar, it's not offered for the 11 truth of any of the matters asserted. It's offered only with 12 respect to the knowledge, intent and state of mind, that of 13 Mr. Yousry and Mr. Sattar? 14 MR. MORVILLO: Yes, your Honor, that's the requested 15 instruction. 16 There's going to come a point in time, your Honor, 17 when we get to some newspaper articles. And I think the first 18 one would be the first exhibit on page four of my list, which 19 is 2405-2, where we are offering the handwriting for the truth 20 of the matter asserted but not the contents of the article. 21 And that would apply with respect to any articles on which 22 there is that handwriting. 23 MR. RUHNKE: We are in agreement with that, your 24 Honor. You'll see that in context what they tend to be is 25 where somebody has written approved by Mr. Jabara, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6824 4a5esat3 1 government wants to offer or, in fact, that it was approved by 2 Mr. Jabara, we're happy to have that done. 3 THE COURT: So the instruction would be the contents 4 of the newspaper article are not offered for the truth of the 5 matters asserted? 6 MR. MORVILLO: Yes, your Honor. 7 MR. PAUL: Your Honor, may I ask for a proffer from 8 the government with regard to some of these exhibits that are 9 being introduced against Mr. Sattar. Specifically, I'm 10 referring to 2415-6, which I believe is being introduced 11 against all defendants, and there's a translation for that. 12 And then 2415-5, which is being introduced against Mr. Yousry 13 and Mr. Sattar. 14 MR. MORVILLO: Your Honor, the 2415-6 are handwritten 15 notes in Arabic and English taken by Mr. Yousry during the 16 March 1999 prison visit, at least that's what it appears to be, 17 and would be offered as statements of coconspirators in 18 furtherance of the conspiracy charged in Count 1. And, 19 therefore, they would be admissible against all of the 20 defendants. 21 THE COURT: Which one are you -- 22 MR. MORVILLO: 2415-6. 23 With respect to 2415-5, your Honor, there is a -- it's 24 the government's position that that document was also seen by 25 Mr. Sattar as reflected in a note on the cover of the document SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6825 4a5esat3 1 from Mr. Jabara to Mr. Yousry saying that Ahmed S prepared a 2 translation of this, we're asking you to prepare another one. 3 I have the exhibit, I can read it more precisely. 4 THE COURT: All right. 5 MR. PAUL: I didn't see the note, your Honor. 6 THE COURT: Mr. Paul, do you want to see it? 7 MR. PAUL: I can see it now. 8 THE COURT: Anything else before we bring the jury in? 9 OK, let's bring in the jury. 10 Should I be following this from the Yousry notebook of 11 exhibits? 12 MR. MORVILLO: That does not precede -- the notebook 13 of exhibits, I believe, is in order of exhibit but not in order 14 of presentation. 15 THE COURT: But they're all in there? 16 MR. MORVILLO: Yes, they are. 17 THE COURT: Because I was given another folder with 18 various versions of 2312. 19 MR. MORVILLO: Your Honor, my -- I'm informed that 20 those are additions to what is in your notebook. 21 THE COURT: Thank you. 22 MR. MORVILLO: Your Honor, if you would like us to 23 insert the material in the book, we're happy to do it. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6826 4a5esat3 1 (In open court; jury present) 2 THE COURT: Yes. 3 MR. MORVILLO: May I proceed to the lecturn, your 4 Honor. 5 THE COURT: Yes. 6 MR. MORVILLO: Your Honor, at this time the government 7 would request permission to publish to the jury some of the 8 materials from the Yousry search. And I would like to read 9 portions of a stipulation, Government Exhibit 2400S, which I 10 would offer into evidence at this time. 11 THE COURT: All right. Government Exhibit 2400S 12 received in evidence. 13 (Government's Exhibit 2400S received in evidence) 14 MR. MORVILLO: May I place it on the Elmo and publish 15 it to the jury, your Honor. 16 THE COURT: Yes. 17 MR. MORVILLO: The parties hereby stipulate and agree 18 that, if called as witnesses at trial, qualified, expert 19 Arabic-to-English translators employed by the Federal Bureau of 20 Investigation would testify that, in their opinions: 21 One, Government Exhibits 2300T through 2499T are true 22 and accurate translations from Arabic into English of the 23 Arabic documents with corresponding Government Exhibit numbers. 24 Thus, for instance, a translator would testify that in his or 25 her expert opinion, Government Exhibit 2312-25T is a true and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6827 4a5esat3 1 accurate translation from Arabic into English of Government 2 Exhibit 2312-25. 3 Two, Government Exhibit 2405-8 is identical to 4 Government Exhibit 2000, as to which Government Exhibit 2000T 5 is a true and accurate translation. 6 Your Honor, at this time the government would offer 7 into evidence Government Exhibit 2405-8. 8 THE COURT: All right. Government Exhibit 2405-8 is 9 received in evidence. 10 (Government's Exhibit 2405-8 received in evidence) 11 THE COURT: Ladies and gentlemen, this is a newspaper 12 article. It is not received for the truth of any of the 13 matters asserted in the article, and it's received solely with 14 respect to the knowledge, intent and state of mind of 15 Mr. Yousry and Mr. Sattar. 16 MR. MORVILLO: And, your Honor, as per agreement with 17 counsel, I'd like to read a portion of Government 18 Exhibit 2300S, which is another stipulation that has been 19 previously read to the jury that corresponds to this exhibit. 20 THE COURT: Sure. Since it's been read to the jury, 21 Government Exhibit 2300S is in evidence, correct? 22 MR. MORVILLO: That's correct, your Honor. 23 THE COURT: All right. 24 MR. MORVILLO: The parties hereby stipulate and agree 25 that the following people would testify as follows if called as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6828 4a5esat3 1 witnesses at trial: 2 Two, Special Agent Kimberly Whittle of the Federal 3 Bureau of Investigation would testify that following the 4 seizure and transportation to the FBI of the seized materials, 5 she took possession of the seized materials and prepared a 6 detailed inventory of the seized materials. 7 Special Agent Whittle would further testify that the 8 seized materials did not leave the secure custody and control 9 of the FBI after April 9, 2002. 10 Special Agent Whittle would further testify that -- 11 and I'm skipping down now to subparagraph B -- Government 12 Exhibits in the 2405 series are from a box identified by 13 Special Agent Monaco as a "white Staples box containing 14 miscellaneous documents" found in the office on the second 15 floor of defendant Yousry's residence at 30-51 84th Street, 16 East Elmhurst, New York, and further identified by Special 17 Agent Monaco as having been marked by her as "box No. 5." 18 May I display, your Honor, Government Exhibit 2405-8 19 to the jury. 20 THE COURT: Yes. 21 MR. MORVILLO: Your Honor, now may I read Government 22 Exhibit 2000T to the jury, which as per the stipulation is a 23 translation of Government Exhibit 2000, which is identical to 24 Government Exhibit 2405-8. 25 THE COURT: All right. So Government Exhibit 2000T is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6829 4a5esat3 1 in evidence? 2 MR. MORVILLO: Yes, your Honor. 3 THE COURT: Admitted in evidence. 4 And, ladies and gentlemen, plainly this is a 5 translation. It's subject to the same limiting instruction as 6 the underlying newspaper article. It's not received for the 7 truth of any of the matters asserted in the newspaper article. 8 It's received solely with respect to the knowledge, intent and 9 state of mind of Mr. Yousry and Mr. Sattar. 10 All right. 11 MR. MORVILLO: Reading from the top: Sudan and Taha, 12 G2-3, Government Exhibit 2000-T. Monitor ID: 170. 13 [Thursday 7/6/1995] 14 The secrets of the conspiracy and the gang of Sudan. 15 Five terrorists incubated by Sudan. 16 El-Islambouli, Mustafa Hamza, Othman Al-Siman, Rifa'i 17 Taha and Mustafa Nawawi, the returnees from Afghanistan case, 18 the [Court's] evidence for sentencing [them] to death. 19 The five terrorist leaders who have been incubated by 20 the Turabi regime in Sudan are at large after they were 21 indicted in the 1992 case number 24 of military court. They 22 were sentenced to death in absentia. They alleged that they 23 are leaders of the Islamic thinking, [however Islam] renounces 24 their [terrorists] deeds. 25 "The Events News" [A section in the newspaper] SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6830 4a5esat3 1 exclusively publishes the court's indictment evidence against 2 the five terrorists as it was included in the case file. 3 Mohammed Shawqi El-Islambouli, was sentenced to death 4 based on the admission of accused Sharif Hassan Ahmad Mohammed. 5 [The latter] admitted that he stayed at the home of the accused 6 Mohammed Shawqi El-Islambouli in Peshawar, Pakistan. He 7 [Sharif] overheard his [El-Islambouli] conversation with 8 visitors about Islamic Group, Jihad in Egypt and the 1981 9 events. Following the arrival of [Sharif's] wife El-Islambouli 10 paid [Sharif] 4,000 Pakistani rupees a month. When [Sharif] 11 decided to return to Egypt along with his wife, [El-Islambouli] 12 asked [Sharif] to listen to what the second accused has to say. 13 The second accused, Mustafa Hamza, informed [Sharif] that he 14 wanted to invest in [Sharif's] presence in Egypt, especially 15 that [Sharif] was never apprehended before. [Hamza] provided 16 Sharif with 500 US dollars for personal expenses. The accused 17 Mohammed Shawqi El-Islambouli asked [Sharif] to participate in 18 the military training provided by the Sada camp. 19 [El-Islambouli] planned to find out about [Sharif's] discipline 20 in obeying [orders]. 21 Nasir Ahmad Mohammed Ahmad admitted during 22 interrogation that the accused Mohammed Shawqi El-Islambouli is 23 a member of the Group's leadership in Afghanistan, which 24 included Rafa'i Ahmad Taha and Tala'at Fouad. Issa Basiouni 25 Mohammed Dodge admitted that the accused [El-Islambouli] is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6831 4a5esat3 1 considered one of the top echelon in the group's leadership. 2 Ashraf Ahmad Youssuf waived a videotape "The Group As 3 a Movement and Approach," which comprised the Group's 4 leadership, including Sheikh Mohammed Shawqi El-Islambouli. 5 Mustafa Ahmad Hasan Hamza, a/k/a Abu-Hazim, was 6 sentenced to death based on what the accused Sha'ban Rajab Ali 7 Eid admitted during the interrogation, that the accused Mustafa 8 Hamza, a/k/a Abu-Hazim, met [Sha'ban] in Sudan. He [Hamza] 9 assigned [Sha'ban], once he returns to Egypt, to plan for the 10 assassination of the Interior Minister, and both, the Governors 11 of Souhaj and Daqahleya. [Sha'ban] also admitted that his 12 brother Usama informed him that the accused Mustafa Hamza 13 called [Usama] over to meet an individual at Ain-Shams Metro 14 station. This individual handed [Usama] a bag of weapons, 15 explosives and ammunition. Later, [the bag] was seized at 16 their [Sha'ban and Usama] brother's residence. 17 The accused Mohammad Sa'ad Mohammad Abdu admitted 18 during interrogation that the accused Mustafa Hamza requested 19 him to work under the command of Sha'ban Rajab and to obey his 20 [Sha'ban] orders. 21 The accused Khilaf Mahmoud Abdel Samie admitted during 22 interrogation that the accused Mustafa Hamza stated that the 23 reason for the return of [Khilaf] Sha'ban Rajab, and Mohammad 24 Saad Mohammad Abdu to Egypt was to carry out the assassinations 25 of public figures, such as the Minister of Interior, Minister SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6832 4a5esat3 1 of Information, the Governor of Souhaj and the Governor of 2 Daqahleya. 3 The accused Hisham Hasan Moursi Ahmad admitted that 4 the accused Mustafa Hamza requested to change his home address 5 [Hisham] in Egypt, and to dodge the surveillance of the 6 security forces because the Group will carry out assassinations 7 in Egypt. 8 Fayez Eid Abdel-Rahman Mohammad admitted during 9 interrogation that the accused Mustafa Hamza handed him 1,500 10 US dollars. He [Hamza] asked [Fayez] to meet an individual 11 that Hamza knows across from the Metro movie theater, and asked 12 him to surrender his passport in Libya. 13 Rifa'i Ahmad Taha, a/k/a Abu Yasir, was sentenced to 14 death based on the admission of the accused Mohammad Sa'ad 15 Mohammad Abdu during the public prosecution questioning. 16 [Rifa'i] agreed to [Sa'ad's] return to Egypt and was asked to 17 rent out his home in Cairo and to work under the command of 18 Sha'ban Rajab Ali Eid. 19 The accused Sha'ban Rajab admitted that he met with 20 the accused Rifa'i Ahmad Taha, who advised him to join Islamic 21 Group. [Sha'ban] agreed to that after he learned that [the 22 Group's] conditions are to heed, obey and not to address 23 irrelevant [issues]. 24 The accused Sharif Hasan Ahmad Mohammad Hasan admitted 25 that he learned from the accused Rafa'i Ahmad Taha that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6833 4a5esat3 1 accused Mustafa Hamza asked him [Sharif] to be a low profile 2 member once he returns to Egypt, and not to talk to anyone 3 unless otherwise instructed by either [Hamza] or the accused 4 Rafa'i Ahmad Taha. 5 Nasir Ahmad Mohammad Ahmad Dakrouri admitted during 6 the public prosecution questioning that Rifa'i Ahmad Taha asked 7 him to study the route and record down any security obstacles 8 that he could face during his travel to Egypt via Libya. He 9 [Rafa'i] informed him that Sha'ban Rajab and two others will 10 meet him [Nasir] in Libya at the International Communications 11 [LS: Probably a name of a business.] and to execute whatever 12 Sha'ban orders. [Rafa'i] told [Nasir] that he depends on him 13 and a few others who have no arrest history. 14 Ashraf Ahmad Youssuf Al-Badawi admitted that the 15 accused [Rafa'i] asked him to track the movements of the Souhaj 16 governor. [Ashraf] watched [Rafa'i] in a videotape talking as 17 one of its leaders about the Islamic Group. 18 Othman Khalid Ibrahim Al-Siman, a/k/a Shihab El-Din, 19 was sentenced to death based on the admission of Sha'ban Rajab 20 Ali Eid that [Othman] was the one who annotated, using a secret 21 ink, the notebook which was found on [Sha'ban]. [Othman] also 22 taught [Sha'ban] how to decipher it. 23 The accused Nasir Ahmad admitted that the accused 24 [Othman] was one of the leaders of the Group whom he spotted in 25 Afghanistan. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6834 4a5esat3 1 Hisham Hasan Moursi admitted that he met the accused 2 [Othman] along with Mustafa Hamza in Sanaa. 3 The accused Khilaf Mahmoud Issa admitted that he met 4 with Mustafa Hamza and Othman Khalid in Sudan, where [Mustafa] 5 informed [Khilaf] about assassination operations. 6 Ahmad Mustafa Nawara a/k/a Haitham. 7 Khilaf Mahmoud Abdel Samie admitted during the public 8 prosecution questioning that the accused [Nawara] met him in 9 Pakistan and ordered him to go to Sudan along with Sha'ban 10 Rajab and Mohammad Saad. [Khilaf, in Sudan,] met with Mustafa 11 Hamza and Othman Khalid. [Hamza] informed them of their 12 assassination operations, since they were heading back to 13 Egypt. 14 Tala'at Fouad Talal, a/k/a Abu-Talal, was sentenced to 15 death based on the admission of the accused Sha'ban Rajab that 16 the accused [Tala'at], a/k/a Abu-Talal, was considered one of 17 the prominent leaders of the Group. 18 The accused Nasir Ahmad Mohammad admitted that the 19 accused [Tala'at] was one of the group's expatriate leaders. 20 The accused Ashraf Ahmad Youssuf admitted that the 21 accused [Tala'at] along with Rifa'i Taha were in charge of the 22 Egyptian residence [safe house] in Pakistan. 23 Your Honor, at this time the government would offer 24 into evidence and request permission to publish to the jury 25 Government Exhibit 2406-1. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6835 4a5esat3 1 THE COURT: All right. Ladies and gentlemen, 2 Government Exhibit 2406-1 is admitted in evidence. This is a 3 newspaper article. It is not received for the truth of any of 4 the matters asserted in the article, and it's admitted solely 5 with respect to Mr. Yousry. It's admitted solely with respect 6 to the knowledge, intent and state of mind of Mr. Yousry. 7 All right. 8 MR. MORVILLO: Your Honor, I'd also request 9 permission, as per agreement with counsel, to read the relevant 10 portion of Government Exhibit 2300S, which is the stipulation. 11 THE COURT: All right. 12 MR. MORVILLO: Paragraph two, subparagraph C. 13 Government Exhibits in the 2406 series are from a box 14 identified by Special Agent Monaco as a, quote, white Staples 15 box containing miscellaneous documents found in the office on 16 the second floor of defendant Yousry's residence at 30-5,184th 17 Street, East Elmhurst, New York, and further identified by 18 Special Agent Monaco as having been marked by her as box number 19 one. 20 Government Exhibit 2406-1. Egyptian group says it 21 tried to kill Mubarak. In handwriting, NYT, July 8th. 22 By Youssef M. Ibrahim. Jerusalem July 4th. A Muslim 23 militant group battling the Egyptian government for more than a 24 decade took responsibility today for an attempted assassination 25 of President Hosni Mubarak in Ethiopia last week, saying that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6836 4a5esat3 1 killing Mr. Mubarak remained its "sacred duty." 2 The organization, the Islamic Group, said in a 3 statement that it will stop attacks against Egyptian government 4 officials and security force when Mr. Mubarak releases 5 thousands of Islamic militants, lifts emergency security laws 6 and institutes an Islamic theocracy. 7 "The Islamic Group in Egypt announces its 8 responsibility for the attempt to kill this dictator, which 9 took place in Addis Ababa on Monday, June 26th," said the 10 statement faxed to several newspapers. "Our attempts to carry 11 out the sentence of God against this criminal will not stop, 12 God willing." 13 The statement was not authenticated but the Egyptian 14 government seemed to take it seriously, declining to repeat 15 earlier assertions that the Sudanese government was behind the 16 plot. 17 The assassination attempt took place in the Ethiopian 18 capital Addis Ababa as Mr. Mubarak arrived there for a summit 19 meeting of the Organization of African Unity. Two assailants 20 and two Ethiopian police officers were killed in a gun fight 21 after the assassins opened fire on Mr. Mubarak's motorcade. 22 The Egyptian president was unhurt. 23 Egypt immediately asserted that the militant Islamic 24 Government of Sudan was behind the plot, saying a day later 25 that a Sudanese, Mohammed Seraj, was the group's leader. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6837 4a5esat3 1 Egyptian officials last week also hinted strongly that elements 2 of Ethiopian security forces cooperated with the plotters and 3 members of the Sudan's secret intelligence network. 4 The affair has also strained ties with Ethiopia, which 5 issued a scathing condemnation on Monday of what it said were 6 "Egyptian fabrications." Ethiopia asserted that all five of the 7 gunmen killed during and after the attempt were Egyptians. 8 Both the Sudan and Ethiopia said Egypt was seeking to 9 blame outside parties for a domestic dispute that is spilling 10 outside its borders. 11 The statement today by the Islamic Group seems to 12 leave open the question of how its operatives got into Ethiopia 13 and carried out the attempt. 14 The Islamic Group listed a number of other demands, 15 including "an end to Egypt's subservience to American and 16 Zionist policies and an end to the continuing surrender and 17 lack of determination concerning the Palestinian cause." 18 Responding to Ethiopia's assertions Monday that five 19 of the gunmen participating in the assassination attempt -- all 20 shot to death by Egyptian and Ethiopian security guards during 21 and after the attack -- were Egyptians. Egypt's Information 22 Minister and chief government spokesman, Safwat Asharif, said 23 today "there are still big question marks not just over the 24 dirty hands who committed the act but who planned it, who 25 trained them and who is behind those elements, be they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6838 4a5esat3 1 Egyptians or otherwise." 2 Until now the Islamic Group has been active inside 3 Egypt battling police and security forces largely in southern 4 provinces of Asyut and Minya since 1992. Its attacks and the 5 reactions of the Egyptian security forces have resulted in more 6 than 790 deaths. Its victims included policemen, militants 7 intellectuals, Coptic Christians and tourists. 8 The group has also been accused by Egyptian 9 authorities of planning at least two attempts on President 10 Mubarak's life in Egypt. In the United States, federal 11 investigators linked its spiritual leader, Sheikh Omar Abdel 12 Rahman, now on trial on charges of plotting to blow up the 13 World Trade Center, to an aborted plan to kill the Egyptian 14 president during a visit to the United Nations in 1993. The 15 visit was cancelled. 16 Tensions between the Sudan and Egypt are unlikely to 17 diminish as Hasan al-Turabi, spiritual mentor of the Islamic 18 Government of the President Omar al-Bashir of Sudan, threatened 19 to tamper with the Nile, which flows through the Sudan to Egypt 20 and is an essential lifeline for both countries. 21 Egypt's foreign minister, Amr Moussa, warned, "I urge 22 him not to play with fire -- and at the same time not to play 23 with water." 24 Your Honor, at this time the government would offer 25 into evidence Government Exhibit 2415-3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6839 4a5esat3 1 THE COURT: All right. Ladies and gentlemen, 2 Government Exhibit 2415-3 is received in evidence. 3 (Government's Exhibit 2415-3 received in evidence) 4 THE COURT: The exhibit is not received for the truth 5 of any of the matters asserted in the exhibit. It's received 6 solely with respect to the knowledge, intent and state of mind 7 of Mr. Yousry. 8 MR. MORVILLO: May I publish Government Exhibit 2415-3 9 to the jury, your Honor. 10 THE COURT: Yes. 11 MR. MORVILLO: May I read it to the jury, your Honor. 12 THE COURT: Yes. 13 MR. MORVILLO: Miss Griffith, can you highlight the 14 left-hand side. 15 Thank you. In handwriting, political Islam, essays 16 from Middle East. Report 27. What Does the Gama'a Islamiyya 17 want? Tala'at Fouad Qassem interview with Hisham Mubarak 18 edited by Joel Beinin and Joe Stork, 1997. 19 The text. Tala'at Fouad Qassem got his start in the 20 1970s when the al-Gama'a al-Islamiyya (Islamic Group) took 21 control of many student organizations in the Egyptian 22 universities. 23 Just flip to the end of the article, which are the end 24 notes, and read end note one -- which I will just read, you 25 don't have to display it. Footnote end note one, al-Gama'a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6840 4a5esat3 1 al-Islamiyya, (the Islamic Group) shall not be confused with 2 al-Gama'at al-Islamiyya, (Islamic groups) the common term for 3 all the diverse Islamic associations. 4 We turn back to the text. 5 He led the student union in Minya, a hotbed of the 6 Islamist movement, and later was a founding member of the 7 majlis alshura (governing council) of the organization at 8 large. Sheikh Umar Abdel Rahman later became head of the 9 majlis. 10 In 1981 the Gama'a majlis recruited an artillery 11 officer, Khalid El-Islambouli, to carry out its decision to 12 assassinate President Anwar al-Sadat. Qassem, who is 13 El-Islambouli's superior within the Gama'a, had been arrested 14 two weeks before the assassination and incarcerated in Tura 15 prison, but security forces failed to uncover the assassination 16 plot. In the subsequent trials Qassem was sentenced to seven 17 years and was actually incarcerated for eight before escaping 18 and making his way, via Sudan, to Peshawar, Pakistan, and the 19 ranks of the Afghan mujahadeen (fighters against the pro-Soviet 20 regime in Kabul). 21 In Peshawar in 1990 he began publishing Al-Murabitun 22 (The holy fighters), the first magazine of the Gama'a. He was 23 also involved in setting up a mahkama shari'iyya (Islamic 24 court) which passed death "sentences" on various Egyptian 25 officials and secularist personalities in Egypt. It was this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6841 4a5esat3 1 Court which issued the order resulting in the death of Far