7854 4asesat1 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 28, 2004 8 10:30 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 7855 4asesat1 1 (Trial continuing) 2 (In open court; jury not present) 3 MR. TIGAR: Ms. Shellow-Lavine will be here 4 momentarily. We have no objection to starting without her. 5 She's just getting some water for Ms. Stewart. 6 THE COURT: That's all right, I'll wait. 7 When I was coming in, one of the jurors was about to 8 open the door so the guard kept the juror in and I said, whoa. 9 MR. TIGAR: Your Honor, we have tendered to the 10 government this morning two exhibits. One, LS407 is the same 11 as Government Exhibit 500. It's a Joe Freed article from the 12 New York Times. And I don't know what the government's 13 position is on that. 14 This is an article Ms. Stewart saw during the time of 15 the Sheikh's trial in its New York Times version. It is 16 offered obviously not for the truth. 17 The second exhibit which we have marked, LS308, is a 18 letter that Ms. Stewart recalls writing to the defense team on 19 July 30, 2001, relating to the plans for a challenge to the 20 prison conditions. And obviously that's not offered for the 21 truth, but simply as reflecting her state of mind at that time. 22 I do not know if we tendered copies of those to the 23 Court before the morning began. I believe -- I'm told that we 24 did. 25 THE COURT: The only thing that I have is LS407. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7856 4asesat1 1 cover letter indicates other things attached but -- 2 MR. TIGAR: I'm sorry, your Honor. May I tender to 3 Mr. Fletcher a copy of 308. 4 MR. DEMBER: Your Honor, with respect to Exhibit 5 LS407, just so that your Honor's aware, there is no Government 6 Exhibit 500 in evidence. So let me just make that clear to 7 begin with. 8 This is an article, your Honor, which -- first of all, 9 it's hearsay, obviously. Even to the extent it might be 10 offered for her state of mind, it contains much irrelevant 11 material. It also contains prior consistent statements to some 12 things she has said on the witness stand, and there's been no 13 claim of recent fabrication that would make those statements 14 admissible. As I said before, it has quite a lot of irrelevant 15 material. And if it's frankly not irrelevant, then frankly 16 it's simply prior consistent statements. I don't see anything 17 else that would justify it coming into evidence as I look at 18 it. 19 With respect to Exhibit LS308, this is a pure hearsay 20 statement, your Honor, made by the defendant about matters that 21 are not in dispute in this case and not relevant to this case, 22 meaning Abdel Rahman's conditions of confinement and the fact 23 that a lawsuit is intended at some point in time. Again, there 24 has been some evidence or -- presented in this case that is 25 consistent or similar to the information in this memo letter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7857 4asesat1 1 Again, there's no indication there's any kind of recent 2 fabrication on anybody's part and no other basis for 3 introducing this letter or memo, which is dated July 30, 2001. 4 MR. TIGAR: Your Honor, we had not -- I did not intend 5 to suggest that this was -- that Government Exhibit 500 was in 6 evidence. It was simply on their exhibit list. 7 Your Honor, will recall that with respect to 8 relevance, there is a pending New York Times -- subpoena to the 9 New York Times with respect to this very article. And the 10 position we had taken in supporting the Times' position was 11 that we believed that the statements attributed to Ms. Stewart 12 in the article, which formed the basis of the government 13 seeking to overcome the Times' objections, were ones as to 14 which Ms. Stewart would be willing to testify on her direct. 15 She could be cross-examined about it and that would obviate the 16 need for the Times' subpoena. 17 I don't think that has anything to do with the 18 admissibility decision particularly, but that was something 19 that was discussed at the time that Mr. Schultz was here. 20 The article is offered on the same basis that all the 21 other newspaper articles, or most or many of the other 22 newspaper articles -- let me correct that -- have been offered, 23 which is for its effect on Ms. Stewart's knowledge, intent and 24 state of mind at this juncture of the trial in which she 25 participated. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7858 4asesat1 1 With respect to 308, it is hearsay, and we're not 2 claiming that it fits under any of the exceptions to the 3 hearsay rule. We are claiming that it is offered for a 4 nonhearsay purpose. The only exception would be we could argue 5 with respect to some of these paragraphs that they express an 6 intention, state of mind under 803(3). But so as not to 7 complicate the evidentiary instruction that the Court would 8 give, we think that it does indicate her state of mind, 9 particularly because it tracks so clearly the subjects that 10 were discussed in the prison visit, the July 2001 prison visit 11 that is in evidence. 12 MR. DEMBER: If I may, your Honor. 13 THE COURT: But if you're not relying on 802(3) and 14 you say it's offered for a nonhearsay purpose, then it's 15 inadmissible. It's -- I'll look at it more carefully, but it's 16 a statement by the defendant. It's not something that's 17 offered for the effect on the defendant's state of mind. You 18 say it's offered for a nonhearsay purpose. But -- 19 MR. TIGAR: Yes, your Honor. It -- I mean, I -- 20 THE COURT: What's the nonhearsay purpose? 21 MR. TIGAR: To illuminate her state of mind as it 22 existed following the prison visit that is in evidence. That 23 is to say -- your Honor, I may not be understanding or saying 24 correctly the hearsay rule, but as I understand it, a statement 25 under 801 would be a statement by a declarant other than as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7859 4asesat1 1 witness while testifying offered for the truth of the matters 2 asserted, right? This is not offered for the truth of that she 3 is very, very busy, that her visit was uneventful, but rather 4 for her belief that there were certain legal steps that should 5 be taken to represent her client. And, now, if that -- 6 THE COURT: But that's, then, offered for the truth of 7 her statements at the time as to what she believed should be 8 done, out-of-court statement by the defendant being offered for 9 the truth that she believed these things at the time. As you 10 would -- 11 MR. TIGAR: I take your Honor's point. 12 I would add the additional point that we offer this, 13 then, as a statement of her state of mind with respect to the 14 decisions she was making on behalf of her client at the time, 15 but not for the truth of the matters remembered or believed. 16 And then we do offer additionally, I would give the additional 17 basis of 803(3) and a catchall hearsay exception. 18 MR. DEMBER: Your Honor, just briefly, with respect to 19 that exhibit, the issue then becomes, what's the relevance of 20 it? And the fact that that's her intent or her state of mind, 21 that she intends to do something has no relevance to the 22 charges Ms. Stewart faces in this case. Whether she intended 23 or not to file a lawsuit to challenge his conditions doesn't go 24 to any of those charges, so it's irrelevant. That's the 25 purpose. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7860 4asesat1 1 May I just go back to Exhibit LS407 for a moment, your 2 Honor. I should have made clearer, there are some statements 3 in that article that Ms. Stewart essentially has testified 4 about. And they include -- or, you know, they consist of her 5 statements about the use of violence. I think she may have 6 used the phrase directed violence in her testimony here. And 7 her disagreement with -- and the fact that she believed that 8 under certain circumstances it is appropriate. And she 9 definitely testified that she didn't believe in anarchistic 10 violence. 11 Those statements appear in this article, your Honor. 12 So to the extent that Mr. Tigar's offering this article to 13 prove that those statements had previously been made by her, 14 those are prior consistent statements which are hearsay and 15 inadmissible obviously. 16 Obviously those statements are relevant to us. 17 Clearly they're relevant to this case in a sense that whether 18 or not she believes in the use of violence certainly is 19 relevant to Counts 4 and 5 of this particular indictment. 20 THE COURT: Well, could I ask a question. I would 21 have to study the article, since there is a question -- I wish 22 this, you know -- I'm always prepared to come out early, if the 23 parties had let me know that there were evidentiary issues to 24 be decided. And I take that -- I don't like delaying the jury 25 coming out. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7861 4asesat1 1 If there is an objection with respect to relevance 2 among other things in 407, then the question becomes, all 3 right, it's an article that Ms. Stewart saw at the time. Are 4 there -- and the government says there are passages in there 5 which the government thinks are, quote, relevant. The article 6 would have to be parsed to ask the question, if it's being 7 offered by the defendants for the effect on Ms. Stewart's state 8 of mind, I have to look at the individual portions of the 9 article and ask, is it relevant to an issue in the case as to 10 Ms. Stewart seeing this article and having the article affect 11 her state of mind? If it is -- one would question if you -- if 12 the article is reporting a statement by Ms. Stewart, whether 13 Ms. Stewart sees the article and says, oh, reading my statement 14 affects my state of mind, or whether the article is being 15 offered not for the effect on the state of mind. 16 Other articles have come in with respect to state of 17 mind because they affect a relevant state of mind with respect 18 to the charges in the case. Now, it would seem to me that the 19 parties may agree to portions of this article if they sit down 20 and talk about it, and maybe not. If not, then I'll go through 21 the article. And I'll go through LS308. 22 MR. DEMBER: Your Honor, may I add one thing, which I 23 apologize for not mentioning in my argument. But essentially 24 this article is an interview of Ms. Stewart. We are familiar 25 with this article, your Honor. It was the subject, obviously, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7862 4asesat1 1 of motions on a member of the media -- I'm sorry, a subpoena 2 served on a member of the media. We are quite familiar with 3 it. It is essentially an interview of Ms. Stewart as opposed 4 to an article written about her without any participation by 5 her. We're very familiar with it. 6 We object to it, any of it coming in, frankly, your 7 Honor, because of our familiarity with it and because it's 8 hearsay. 9 MR. TIGAR: Your Honor, I want to begin by saying 10 this -- 308 just came to our attention yesterday. It was in 11 some materials that -- I know we had them, but because it 12 didn't have Bates stamps and for a lot of reasons it was -- we 13 found it. And then we had to go and find out, where did it 14 come from and is it authentic? So that's the reason that we 15 didn't get it until this morning. 16 With respect to 407, we've known since the government 17 served its subpoena on the Times in which it referenced this 18 very article at some length that this was something in which 19 the government was interested. And they put it on their 20 exhibit list, the whole article. It's not in evidence. 21 In reviewing yesterday where we were, I decided at 22 about 8:30 this morning that this was something that was 23 important and that thereafter I discussed it, obviously, with 24 my client. And we made the decision that we wanted to offer 25 it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7863 4asesat1 1 I'm not sure of the relevance of the observation that 2 it contains an interview with Ms. Stewart. This trial, as your 3 Honor knows, began in January and ended in October of 1995; 4 that is, the trial of the Sheikh. And when there is midtrial 5 publicity, particularly when a lawyer's words are quoted, 6 that's the sort of thing that any intelligent lawyer ought to 7 pay attention to. 8 Different lawyers have different views about whether 9 they'll talk to the media in the course of a trial and what 10 they'll say. And that's the Supreme Court's decision in 11 Gentile, and that's a lawyer decision. 12 Ms. Stewart has testified that one of the things that 13 she does is to try to look at some media coverage from 14 responsible media to get that take on how things are going. 15 And I can say to the Court, personal observation, not 16 admissible but it's an inadmissibility decision, that I do 17 that, too. And I do it particularly when it's in the Times, 18 the Post; that is to say, papers that have a certain standing 19 in the community. If it's another town, you maybe do it 20 somewhere else. Washington Post, not the New York Post, your 21 Honor. Thank you. 22 So, yes, your Honor, we offer it unabashedly, and in 23 pursuance of the same theory that we thought along here 24 consistently, that's its effect. As I say, I, too, wish that I 25 had made this call earlier about what to do, but this is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7864 4asesat1 1 thing that happens when you're going through the last of a long 2 examination. 3 THE COURT: Can I take this up at the break after I've 4 read the article, considered the arguments. It's not -- 5 MR. TIGAR: We have certainly no objection to that, 6 your Honor. We have a number of things that we would do before 7 that. 8 THE COURT: All right. 9 MR. TIGAR: We're going to start this morning, your 10 Honor, by playing two conversations, LS701 and 702. And I'll 11 be offering those and so much of the CD that goes with them and 12 asking permission to display on the Elmo the transcript. 13 THE COURT: All right. 14 MR. DEMBER: Your Honor, may I consult with Mr. Tigar 15 for a moment. 16 THE COURT: Sure. 17 (Recess) 18 (Pages 7865 through 7874 sealed by order of the Court) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7875 4asesat1 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. It's 3 good to see you all. 4 At the outset, ladies and gentlemen, let me give you 5 the schedule, because I have listened to the various issues 6 with respect to the various dates, and so let me explain where 7 we are. 8 We will not sit on Fridays. That was not a good 9 suggestion on my part. We will not sit on election day, which 10 is next Tuesday. On next Thursday, November 4, we will end at 11 1:00. The following week, we will not sit on Veteran's Day, 12 which is November 11th. As I say, we will not be sitting 13 Fridays. 14 The following week is Thanksgiving week, and we will 15 break on November 24th, which is Wednesday, at noon. And 16 obviously we will not sit on Thanksgiving or on Friday after 17 Thanksgiving. So it will be a long weekend. 18 And, given all of that schedule, we remain on schedule 19 to conclude in December before the holidays. So I wanted to 20 lay all of that out for you at the outset because I had raised 21 these issues with you at the end of the day yesterday. 22 OK. Ms. Stewart is on the stand, Mr. Fletcher. 23 LYNNE STEWART, resumed. 24 THE DEPUTY CLERK: Ms. Stewart you are reminded you 25 are still under oath. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7876 4asesat1 1 THE WITNESS: Yes. 2 THE COURT: Mr. Tigar. 3 MR. TIGAR: Your Honor, at this time we offer and 4 would like to display on the Elmo and read a stipulation which 5 is marked as LS806S as in Sierra. 6 THE COURT: All right. LS806S received in evidence. 7 (Defendant's Exhibit LS806S received in evidence) 8 MR. TIGAR: May I display it, your Honor, and read it. 9 THE COURT: Yes. 10 MR. TIGAR: LS806S, this is a stipulation. The 11 parties hereby stipulate and agree that if called as a witness, 12 Kathleen E. Cassidy, a law student clerk for the Lynne Stewart 13 defense team, would testify as follows: 14 One, she created LS805. 15 Two, she started with a DVD that is identified as 16 LS801C2. 17 Three, from the DVD shown in LS801C2 she copied what 18 has been labeled LS702 (2000616_144033_7184298539.voc) to a 19 file folder labeled LS805 on the desktop of a properly working 20 computer. 21 Four, using GoldWave she removed the portion of LS702 22 that is not reflected in LS702X. She entitled the new audio 23 file as 20000616_144033_17184298539_excerpt.voc. 24 Five, she copied 25 20000616_144033_17184298539_excerpt.voc on to a CD and marked SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7877 4asesat1 1 and initialed the CD as LS805. 2 And then it's agreed to and stipulated by David N. 3 Kelley, United States Attorney, and then by all the parties and 4 their counsel. 5 Based on that stipulation and on the earlier 6 stipulations, your Honor, at this time we offer so much of 7 LS801, a CD, that is reflected in a transcript, 701T. 8 We offer 701T as an aid to the jurors and subject to a 9 limiting instruction. 10 We offer so much of LS805 as is reflected in 702X. 11 And we offer 702X, each of those preceded with the 12 initials LS, as a transcript in -- as an aid to the jurors, 13 these being English language telephone calls. 14 MR. DEMBER: Excuse me, your Honor. May I voir dire 15 first? 16 THE COURT: All right. 17 VOIR DIRE EXAMINATION 18 BY MR. DEMBER: 19 Q. Good morning, Ms. Stewart. 20 A. Good morning. 21 Q. Ms. Stewart, the recording that corresponds to the 22 transcript Mr. Tigar just referred to as LS701T, can you -- do 23 you have the transcript in front of you there? Why don't you 24 turn to it. 25 A. I do. I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7878 4asesat1 Stewart - voir dire 1 Q. Why don't you turn to it for a moment. 2 A. I have it. 3 Q. That will help you orient which conversation I'm talking 4 about, is that correct? 5 A. Yes. 6 Q. OK. And that's a conversation that took place on June 16, 7 2000? 8 A. It did. 9 Q. At about 8:57 in the morning? 10 A. Apparently, yes. 11 Q. OK. Do you remember that conversation? 12 A. I remember the conversation, not necessarily the time. 13 Q. OK. You listened to the recording that Mr. Tigar just 14 referred to, did you not? 15 A. Yes. 16 Q. Did you listen to it more than once? 17 A. Perhaps. 18 Q. OK. You listened to it from the beginning of the recording 19 to the very end? 20 A. I believe so. 21 Q. And the recording contained your entire conversation with 22 the other party you spoke to, is that right? 23 A. Yes. 24 Q. And that was Mr. Yousry? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7879 4asesat1 Stewart - voir dire 1 Q. And to the best of your recollection there weren't any 2 sentences or words or phrases from your conversation with 3 Mr. Yousry that didn't appear in the recording, is that 4 correct? 5 A. It's very hard to remember many, many years ago, but I'm 6 relying on the transcript and on my own memory to say yes. 7 Q. To the best of your recollection that recording contains 8 your entire conversation with Mr. Yousry on that day at that 9 time, is that correct? 10 A. As far as my memory serves me, yes. 11 Q. Let's just turn to the next recording that Mr. Tigar just 12 referred to, which is reflected up -- before I do that, let me 13 just ask you a question: To the best of your recollection, is 14 the recording that corresponds to the transcript that is 15 LS701T, to the best of your recollection, is that a fair and 16 accurate recording of that conversation that day? 17 A. A recording? 18 Q. Yes. 19 A. Yeah, the recording is what the machine does, yeah. 20 Q. I'm saying the recording is a fair and accurate 21 reproduction to the best of your recollection of the actual 22 conversation you had with Mr. Yousry that day, is it not? 23 A. Yes. 24 Q. Now let's turn to the conversation that's reflected on the 25 transcript, which is LS702X. Do you have that transcript SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7880 4asesat1 Stewart - voir dire 1 before you? 2 A. Yes. 3 Q. OK. And that was a conversation you had with Mr. Yousry 4 also on June 16, 2000? 5 A. That's correct. 6 Q. And that was later in the day, is that correct? 7 A. Yes. 8 Q. Now, did you listen to the recording that corresponds to 9 this particular transcript before coming to Court? 10 A. Yes. 11 Q. And did you do that more than once or do you remember just 12 doing that once? 13 A. Probably at the early days of the case, and then again -- 14 Q. More recently? 15 A. More recently. 16 Q. And by the way, when you listened to the conversation, did 17 you listen to it at any time with the aid of the transcript 18 that's prepared? 19 A. Probably. 20 Q. And to the best of your recollection, did that recording 21 contain your entire conversation with Mr. Yousry on that 22 particular occasion? 23 A. As far as my memory serves me, yes, it did. 24 Q. And to the best of your recollection, were there any words 25 or sentences or phrases that didn't appear in the recording SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7881 4asesat1 Stewart - voir dire 1 that you recall independently from your conversation with 2 Mr. Yousry? 3 A. No. 4 Q. And is the recording that you listened to that corresponds 5 to this particular call, to the best of your recollection, a 6 fair and accurate recording of the conversation you had with 7 Mr. Yousry? 8 A. Yes. 9 MR. DEMBER: Thank you, your Honor. We have no 10 objections to either of those recordings coming into evidence. 11 THE COURT: All right. With the limitations that were 12 given when they were introduced, LS801CD and LS805CD are 13 received in evidence. 14 (Defendant's Exhibits LS801CD and LS805CD received in 15 evidence) 16 THE COURT: And 701T and 702X are received. 17 (Defendant's Exhibit 701T and 702X received in 18 evidence) 19 THE COURT: And those are transcripts, ladies and 20 gentlemen, and they're aids to your listening to the 21 recordings. And they're received in evidence as aids to your 22 listening to the recordings. They're received as aids. And, 23 ladies and gentlemen, the exhibits are received not for the 24 truth of any of the matters asserted in the exhibits. 25 All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7882 4asesat1 Stewart - voir dire 1 DIRECT EXAMINATION (continued) 2 BY MR. TIGAR: 3 Q. Ms. Stewart, before we begin playing these calls, could you 4 please turn to LS701T. 5 A. Yes. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7883 4ASMSAT2 Stewart - direct 1 Q. Do you recall reviewing that transcript before coming here 2 today? 3 A. Yes. 4 MR. TIGAR: Your Honor, may I display pages from 701T 5 and ask about them? 6 THE COURT: Yes. 7 Q. Now, do you see where I'm pointing, the UI and then further 8 down -- sorry. I'm not doing that correctly. Another UI, you 9 see that, those two on page 3 of your transcript? 10 A. I do. 11 Q. Now, wherever the terms UI appear in the transcript, what 12 is your understanding of what that means? 13 A. That the language is unintelligible to the person preparing 14 the transcript. 15 Q. Now, do you remember of your own memory today what those -- 16 what words you were speaking back in the year 2000 where the 17 recording was unintelligible? 18 A. No. 19 MR. TIGAR: Your Honor, at this time we would like to 20 play for the jury 701T and display the transcript to the jurors 21 as the conversation is played, and we would ask that the 22 earphones be available for that purpose. 23 THE COURT: Yes. 24 Ladies and gentlemen, you can put your earphones on, 25 dot facing out, turn them on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7884 4ASMSAT2 Stewart - direct 1 MR. TIGAR: This is a call, as has been pointed out, 2 on the 16th of June 2000 at 8:57:01 a.m. 3 MR. MORVILLO: Your Honor. 4 THE COURT: Stop. We have got two earphones. 5 (At this point, Defendant's Exhibit LS-701 in 6 evidence, displayed and played to the jury) 7 Q. Ms. Stewart, I want to ask you some questions about this 8 telephone call. This was the 16th of June? 9 A. Yes. 10 Q. And to put a reference here, that's two days after the 11 Reuters story appeared? 12 A. Yes. 13 Q. And from that telephone call what did you understand the 14 Middle East press was saying about the Reuters story? 15 A. Apparently, they were questioning the source of the story, 16 me, and also they were saying that the source was Mr. Sattar, 17 who was working for the CIA. I think that that was a release 18 that was made by Mr. Al-Zayyat. 19 Q. Now, in fact, from 1997 onwards, to your knowledge, did 20 Mr. Sattar ever speak to Sheikh Abdel Rahman directly? 21 A. No, never did. 22 Q. And to your knowledge, were his contacts confined to his 23 wife, who he did call, and to the members of the legal team, 24 that is, the lawyers and the translator? 25 A. Yes. The Sheikh could only speak to the legal team and to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7885 4ASMSAT2 Stewart - direct 1 his wife in Egypt. 2 Q. And your discussion of thinking about what to do about the 3 stories that were going around, what was your view of what was 4 the appropriate thing to do at that time, given this situation? 5 A. My first reaction as expressed in this conversation was to 6 call the media in the Middle East or in Egypt and just make it 7 very clear that I was the lawyer for the Sheikh and that 8 Mr. Sattar was not speaking to him at all and to clarify that 9 without going into any of the substance of the statement that 10 he had given. 11 Q. And there is a reference here to a Tuesday thing or 12 something that's going to happen on the Tuesday. And you -- 13 and going to Ramsey's office. What's that about? 14 A. That was the call. I first asked Mr. Yousry if there was 15 going to be a call on Friday. He told me no. It would be 16 Tuesday at Ramsey's office. I said I'm going to go. First of 17 all, because we wanted to clarify things with the Sheikh and, 18 second of all, because I wanted to see if there was going to be 19 any problem with me speaking to the Sheikh since that was 20 sort -- what was explicitly said in the SAMs about being unable 21 to speak to him. 22 MR. TIGAR: May I show Ms. Stewart the transcript, 23 your Honor? 24 THE COURT: Yes. 25 Q. The transcript at page 5 -- and the jurors will hear what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7886 4ASMSAT2 Stewart - direct 1 they heard, but the transcript that's an aid says: I'm risking 2 my whole career to bring this out. 3 What did you mean by that? 4 A. I meant by that that I thought there could be a 5 repercussion that they would not cut me off from the Sheikh, 6 but I could be barred for a period of time from visiting other 7 clients in federal prison and that indeed would have affected 8 my career in a very negative way. I probably once again 9 overstating things, but that's what I believed. 10 Q. Ms. Stewart, do you recall having had a conversation with 11 Mr. Yousry later on that same day, the 16th of June, 2000? 12 A. I do. 13 MR. TIGAR: Your Honor, may we play now for the jury 14 and display -- play now for the jury LS-702 in evidence and 15 display the excerpted transcript of the portion being played, 16 LS-702X? 17 THE COURT: Yes. 18 Ladies and gentlemen, you can put the headphones on, 19 dot out. 20 MR. TIGAR: May I have just a minute before we start 21 that, your Honor, to remove the staple. 22 (At this point, Defendant's Exhibit LS-702 in 23 evidence, displayed and played to the jury) 24 Q. Ms. Stewart, I want to go over some parts of this call. 25 First, you did participate in a phone call with your client on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7887 4ASMSAT2 Stewart - direct 1 the 20th of June? 2 A. Yes. 3 Q. And again on the 23rd? 4 A. Yes. 5 Q. And again on the 27th of June? 6 A. Yes. 7 Q. Now, putting this in context, what did you think was the 8 confusion that's being talked about here that Mr. Yousry is 9 relating to you? 10 A. We are discussing the fact that apparently Muntasir 11 al-Zayyat, after visiting the historic leaders that were 12 imprisoned, put out a press release saying this can't be so, 13 this isn't so, and then maligning Mr. Sattar. We felt, given 14 that and given what the actual reports had been, that it needed 15 clarification, but it was better that it come directly from the 16 Sheikh, that it was not my role at that point to clarify 17 certainly an accusation against Mr. Sattar. 18 Q. Now, you knew who Mr. Al-Zayyat was, correct? 19 A. Yes. 20 Q. And did you think it was important that someone communicate 21 with him about what your client's real views are? 22 A. I said I would call him. And as I recall, I tried to call 23 him, but I could not get the call through. 24 Q. Now, there is a reference in this call right at the end to 25 the idea that you delayed it because of that and you discussed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7888 4ASMSAT2 Stewart - direct 1 something to do with danger. Do you see that at page 8? Let 2 me -- 3 MR. TIGAR: May I display it on the screen, your 4 Honor? 5 THE COURT: Yes. 6 Q. We can remember we have heard the portion of the call that 7 relates to this transcript a few minutes ago. And there is 8 Lynne Stewart saying: Even though I said, Sheikh, you know it 9 is very dangerous, he said, well, I want it done, you have to 10 use your own judgment. What are you referring to there? 11 A. I advised him -- we talked about that time and earlier that 12 if we put out a press release it could be dangerous to 13 maintaining the attorney-client relationship, that there was a 14 restriction in the government's mind, at any rate, and we could 15 be asking for a problem here. Dangerous to being able to visit 16 him and remain in contact is what I meant when I said that. 17 Q. Did that danger, being cut off from your client, actually 18 come to pass? 19 A. It did, actually, in August of that year. 20 Q. Now, when we looked yesterday at letters you got from Mr. 21 Fitzgerald and we went over that in detail -- and we won't 22 again -- what was your concern about being cut off from contact 23 with your client until that later period when you reached 24 agreement on a new affirmation? 25 A. On one hand I knew that he would be adequately served by, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7889 4ASMSAT2 Stewart - direct 1 of course, Ramsey Clark and Abdeen Jabara. I also knew that he 2 more or less depended on me in a way different. We were closer 3 because of having done the trial, because of having been ten 4 months in the same defensive position, I guess, in court and in 5 the jail. 6 And so to be cut off from him and not to have me to 7 speak to or me to be alerted to any problems he might be having 8 could be a problem to him. And I felt he was under so much 9 stress from the isolation and the conditions that any more 10 stress could really indeed be -- I don't want to use the word 11 fatal. That's overstating it. Could lead to bigger or worse 12 problems for him. And so for that reason I felt that this 13 could be a real big problem. 14 Q. When you refer to the time you spent with your client 15 during the trial, you were with him during the trial day, which 16 was -- was it like the trial days that we have here? 17 A. It was. 18 Q. During the days that you weren't actually in the courtroom 19 on trial, how many days a week did you see him? 20 A. We sat for four days. We also did not sit on Fridays. And 21 I would usually visit him at least one of the two weekend days, 22 talk about what was coming up in the coming week and what our 23 plans were for dealing with it. 24 Q. By this time, in the year 2000, his conviction had been 25 affirmed? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7890 4ASMSAT2 Stewart - direct 1 A. Yes. 2 Q. How did it feel to be sitting in jail with somebody that 3 had been convicted of terrorism and whose conviction had been 4 affirmed? What was your approach to somebody that had -- as to 5 whom the law had said that? 6 A. Well, it was the year 2000. It was not post 9/11. We 7 might have had a slightly different point of view on a lot of 8 this stuff. 9 I said earlier in my testimony that I did believe he 10 was wrongfully convicted and I still believe that. However, to 11 be in jail with him it was still -- as the tapes revealed, we 12 were close. We talked. We laughed a lot. Not because there 13 was a laughable situation to be in jail for the rest of his 14 life under the conditions he was, but because it is also part 15 of the lawyer role to lighten the burden to the degree possible 16 and to serve the client by being an outlet, by listening, by 17 hearing, by talking, by exchanging ideas about the future of 18 the case and indeed about the future for him period. 19 So I didn't find it any differently -- different from 20 preconviction, and he remained the intelligent person that I 21 had always found him to be. 22 Q. During the time you were cut off from your client did you 23 come to learn that a statement had been issued in his name, 24 denominated a fatwah? 25 A. I didn't hear the end of what you said, Mr. Tigar. I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7891 4ASMSAT2 Stewart - direct 1 sorry. 2 Q. I turned away. I apologize. 3 Did you come to learn during the time you were cut off 4 from him that a statement had been issued in his name? 5 A. Yes. 6 MR. TIGAR: Your Honor, may I display to Ms. Stewart a 7 transcript that's been received, Government Exhibit 1193X, in 8 evidence, which is of a call in English? So it was received as 9 an aid to the jury. 10 THE COURT: Yes. 11 Q. Ms. Stewart, just to put some context and refresh your 12 recollection, do you remember having had a conversation with 13 Mr. Yousry in or about -- or on about the 11th of October 19 -- 14 11th of October of the year 2000? 15 A. I do. 16 Q. And do you remember Mr. Yousry telling you about a 17 conversation which he had participated as a translator with 18 your client? 19 A. I do remember this. 20 Q. Now, this is the statement -- tell us what was your 21 understanding of what this statement was that had been issued 22 in your client's name. 23 A. I was told -- and, of course, it is repeated on the tape -- 24 that this was a client, that the client had issued a statement, 25 it was reported, that was a fatwah; in other words, a religious SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7892 4ASMSAT2 Stewart - direct 1 command. And that that fatwah was to kill Zionists, to kill 2 the supporters of Zionists, fight to the very end wherever you 3 find them, and I think Mr. Yousry said blah blah blah, but 4 understanding that to mean that the edict was very broad and 5 very connected. 6 Q. What did you think when you heard about that? 7 A. Well, I thought this is very bad for the Sheikh's case, for 8 whatever case we are trying to make to get him moved, to make 9 the United States Government open or perhaps even sympathetic 10 to the notion of getting him out of this country. 11 I also thought how totally inconsistent it was with 12 all the statements that he had been making up until that point 13 without knowing any context of it. He had been talking peace 14 at the time that he had first went -- condemned Luxor, at the 15 time that he supported the peace initiative. These were all 16 peaceful statements. 17 Now, all of a sudden, we are back to square one again 18 and he is making exceedingly violent statements. So those are 19 two thoughts that originally went through my head. 20 The third one was, but I can't verify any of this, I 21 can't talk to him. I have to rely on the conversations that 22 Mr. Clark or Mr. Schilling or Mr. Jabara are having with him 23 without being able to talk to him firsthand. 24 Q. Did you think about withdrawing from the representation at 25 that point? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7893 4ASMSAT2 Stewart - direct 1 A. No. You know, we take our clients where we find them. We 2 don't consider withdrawing because they do something that hurts 3 their case or do things in a certain way. We attempt to cope 4 with whatever it is that they have done. 5 Q. If your client had asked you, you know, my lawyer, Lynne 6 Stewart, would you please help me get out a message to kill 7 Jews or Zionists wherever they were found, what would you have 8 said? 9 MR. DEMBER: Objection, your Honor, speculation, 10 relevance. 11 THE COURT: Overruled. 12 A. I would have said no, it is bad for your case, it is not 13 the right thing to be saying. It may even -- it could be 14 considered in some ways a hate crime, criminal in the very 15 essence of the statement. I would have advised him strongly 16 against it and I would not have done it for him. 17 Q. Now, did you know at that point whether or not your client 18 had actually issued the statement, of your personal knowledge? 19 A. No, I did not. 20 MR. TIGAR: May I display again 1193X, your Honor? 21 THE COURT: Yes. 22 Q. This is the point where -- and the jurors will recall 23 what's on the tape. I'm using a transcript to help move along. 24 Mr. Yousry says: Let's put it this way and um, you 25 know, when I was reading it I was kind of like surprised so I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7894 4ASMSAT2 Stewart - direct 1 said to him: How did he do this, you know? And then he said 2 in English: Mr. Yousry, this is none of your business. 3 Stewart: Um. And then after I finished the whole thing he 4 said: "Tell Mr. Clark and tell Abdeen that I don't want 5 anybody to come out and say this didn't take place. Stewart: 6 Okay. Yousry: Um, you know, he said that uh, I just don't 7 want anybody to come out and say: "We didn't see him, we 8 didn't talk to him." Just say you know, no comment. 9 As a lawyer did you think that it was your duty to 10 follow his direction to not make any comment? 11 A. Well, for two reasons. First of all, I thought it was my 12 duty as a lawyer in this instance because it certainly 13 conformed with my own instinct to say, no comment, since I knew 14 nothing about the situation. 15 The second reason being I thought that was a better 16 position to be in than perhaps trying to defend this really 17 horrible statement. 18 Q. Did you then discuss with Mr. Yousry and speculate as to 19 how this statement might have gotten out? 20 A. Yes. 21 Q. Now, based on your -- were you trying to figure out how 22 this happened? 23 A. Yes. 24 Q. And based on your experience, what realistic options did 25 you think there were as to how something like this had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7895 4ASMSAT2 Stewart - direct 1 happened? 2 A. Well, jails are sometimes porous. By that, I mean, people 3 in the jails have ways of communicating with each other. 4 People who are incarcerated are sometimes able to gain a 5 friendly ear that will sometimes do things for them that, I 6 guess, are not strictly within the rules, a guard, a medical 7 worker, perhaps a translator in this case. I had no idea 8 because we fortunately know one of the lawyers or the legal 9 group staff that had done it. And it occurred to me that 10 perhaps he had some other resource at the jail in Rochester. 11 Q. Now, did you later find out how the statement came to be 12 issued? 13 A. I don't think I ever knew that until this trial, actually. 14 Q. Now, on one of the telephone calls the words that are on 15 the tape say, well, if he is for it, then I'm for it, words to 16 that effect. 17 What did you mean by that? 18 A. Well, this is part of being a representative. If he is for 19 us not saying anything and not have us deny it, that's what we 20 have to be for, too. We can't make this decision on our own. 21 As bad as the statement is, as bad as I thought it would be for 22 his case, I'm not allowed to substitute my decision making for 23 his in this way. And so that's what I meant. If he is for it, 24 I'm for it. Not obviously for the substance of this statement, 25 but for the reaction to it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7896 4ASMSAT2 Stewart - direct 1 Q. If your client had been charged with a crime based on 2 having participated in issuing a statement of this kind, and if 3 a court had appointed you to represent him, would you have felt 4 an obligation to do that? 5 MR. DEMBER: Objection, your Honor. 6 THE COURT: Sustained. 7 Q. Did you feel at that time an obligation to represent your 8 client's interests, legal concerns based on what was happening 9 in this situation? 10 A. Yes. 11 Q. Now, did there come a time where you heard about your 12 client's medical condition? 13 A. I am not sure I understand. 14 Q. Let me put this into some kind of a context. 15 Do you recall hearing here in court a telephone 16 conversation, a recording of a telephone conversation with 17 Mr. Sattar and yourself from January of 2001? 18 A. Yes. 19 Q. And was -- 20 MR. TIGAR: May I show the witness, your Honor, the 21 telephone call from January 8, 2001, the transcript in evidence 22 of this English language call, Government 1220X? 23 THE COURT: Yes. 24 Q. The recording of that call that was played for the jury 25 shows that Mr. Sattar called you in your office. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7897 4ASMSAT2 Stewart - direct 1 Do you recall that? 2 A. Yes. 3 Q. Do you remember the telephone call? 4 A. Yes, I remember the telephone call. 5 Q. And do you remember Mr. Sattar telling you that he had 6 talked to the Sheikh's wife? 7 A. Yes. 8 Q. What was your understanding about Mr. Sattar's role with 9 respect to the Sheikh -- to your client's family? 10 A. I think actually he told me he spoke to the Sheikh's son, 11 who had spoken to the Sheikh's wife, who had spoken to the 12 Sheikh. It was, once again, the old game telephone, but this 13 also involved a foreign language and different cultures. I 14 think that's what he reported to me. I remember it was that 15 that call came in the late afternoon, usually the busiest time 16 of the day for me, and we only spoke for a fairly brief time, 17 as I remember. 18 And I think I lost the thread of your question, 19 Mr. Tigar. 20 MR. TIGAR: Your Honor, may we take a brief break at 21 this point? 22 THE COURT: All right. We will take ten minutes. 23 Ladies and gentlemen, please remember my continuing 24 instructions. Please, please don't talk about this case at 25 all. Always remember to keep an open mind until you have heard SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7898 4ASMSAT2 Stewart - direct 1 all of the evidence, I have instructed you on the law, and 2 you've gone to the jury room to begin your deliberations. 3 Have a good break and see you shortly. 4 All rise, and please follow Mr. Fletcher to the jury 5 room. 6 (Jury not present) 7 THE COURT: See you shortly. 8 (Recess) 9 (At the side bar) 10 THE COURT: One of the jurors, Mr. Fletcher thinks it 11 is juror No. 7, thanked me for my decision on the schedule. I 12 bring it to your attention. 13 MR. RUHNKE: Thank you, your Honor. 14 THE COURT: I don't think I have to put that under 15 seal. 16 (In open court) 17 THE COURT: Before the jury comes back, I reviewed 18 LS308 and LS407. 19 With respect to LS-308, the document is hearsay. It 20 is an out-of-court statement by Ms. Stewart offered by 21 Ms. Stewart. Originally it was not offered for the truth of 22 anything that was said, but, as such, it was irrelevant. The 23 defendant then proffered that it was admissible under 803(3). 24 Almost the entire document, however, is not admissible under 25 803)(3). It is a historical recounting about what happened in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7899 4ASMSAT2 Stewart - direct 1 the prison visit, or other statements which are not statements 2 of an existing state of mind. 3 The three exceptions in the exhibit are the first and 4 last sentence of the second paragraph and the first sentence of 5 the second paragraph on page 2 which express then existing 6 state of mind. So I would allow those sentences in the 7 documents. 8 MR. TIGAR: Your Honor, would we then be able to 9 introduce -- pursuant to your Honor's ruling, I think I also 10 cited 807, your Honor. I said residual exception because I 11 could never remember when 8203(24) came out and when 807 came 12 in. 13 THE COURT: It does not fall within 807 because it 14 doesn't meet all the qualifications for 807. 15 MR. TIGAR: I wasn't attempting to argue the ruling. 16 Your Honor, may we then admit a redacted document that 17 has the letterhead, memorandum, to, from, and so much of the 18 heading as would make clear that we would respectfully ask down 19 to the date July 30, and redact everything except the first and 20 last sentences of the second paragraph on the second page and 21 the -- was it the first sentence of the third paragraph? 22 THE COURT: First sentence of the second paragraph on 23 page 2: My outlook. 24 MR. TIGAR: That is permissible. What other portion, 25 your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7900 4ASMSAT2 Stewart - direct 1 THE COURT: That's it. 2 MR. TIGAR: That's the only portion. 3 THE COURT: The first and second sentences of the 4 second paragraph on page 1. My visit to the Sheikh was 5 uneventful except I had a grave concern and the last sentence 6 which says: In any event, I am concerned. And the first 7 sentence of the second paragraph on page 2 which says: My 8 outlook on the suit. 9 MR. TIGAR: Thank you, your Honor. I had not kept 10 track. 11 May we redact the document and present it to the jury 12 in that form? 13 THE COURT: Yes. 14 LS-407. The objection is sustained. The article is 15 hearsay. It could not reasonably be viewed as admissible for 16 its effect on any relevant state of mind and any relevance is 17 outweighed by confusion and unfair prejudice, including many 18 references in the article to details the Court has previously 19 excluded in the trial. So the objection is sustained. 20 MR. BARKOW: Your Honor, just to make sure we are 21 clear, because we are reading the transcript on the first 22 document, 308, the second paragraph on the first page, did the 23 Court admit the first and last sentences only, not the first 24 and second sentences of that paragraph, right? 25 THE COURT: Correct. If I was inarticulate, it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7901 4ASMSAT2 Stewart - direct 1 the first sentence, which begins: My visit to the Sheikh, 2 which is allowed, and the last sentence, which says, in any 3 event, I am concerned. And the first sentence of the second 4 paragraph on page 2, which says: My outlook on the suit. 5 MR. TIGAR: Your Honor, in the middle of this article 6 is a statement attributed to Ms. Stewart that the government 7 has presented a great deal of argument about before your Honor. 8 I want to ask you about that. 9 THE COURT: Well, the statement is hearsay, 10 out-of-court statement by the defendant. Now, the defendant 11 can testify under oath here in court what her relevant state of 12 mind was at the time and not what she said to someone her state 13 of mind was, but if it is a relevant state of mind and there is 14 some statements about it already, the defendant can testify to 15 that. 16 Now, the government says some of the statements in the 17 article about what the witness said at the time are hearsay. 18 And that so far it doesn't fall within a prior consistent 19 statement made before the motive for falsification arises. So 20 sufficient unto the day, I have to wait to see what the rest of 21 direct is. I have to wait to see what the cross is. 22 MR. TIGAR: Your Honor, as I read the rule, as I read 23 803(3) I can ask her if she made a statement of belief at a 24 past time and I can ask her -- we respectfully submit we can 25 ask her if she made it to a man named Freed and what the date SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7902 4ASMSAT2 Stewart - direct 1 was. 2 THE COURT: If it is then existing state of mind. 3 MR. TIGAR: Yes, as to her then existing state of 4 mind. 5 I would also point out, your Honor, that Mr. Dember 6 made much of the prior statement rule under 801 and it says: 7 Express or implied charge against the declarant. Your Honor, 8 we are charged with false statements in this indictment. 9 THE COURT: There is not an allegation that this 10 statement was false so far. 11 MR. TIGAR: Excuse me, your Honor. I'm not trying to 12 quibble with the Court. I am just trying to make my record as 13 to how we read the rule. I understand your Honor reads it 14 differently. 15 THE COURT: Mr. Dember. 16 MR. DEMBER: I have nothing to add, your Honor. 17 MR. TIGAR: Your Honor, it is clear to me they intend 18 to use this on cross, tactically speaking I'm trying to draw 19 the nettle. 20 THE COURT: It is not clear to me how the article 21 would be used or whether the article would be used on cross. 22 But, in any event, all I can do is to follow the rules as I 23 read them. 24 Now, the article is hearsay. It is an out-of-court 25 statement by the reporter about what was said. So the article SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7903 4ASMSAT2 Stewart - direct 1 is hearsay and doesn't come in. 2 Now, you say, well, I can ask Ms. Stewart whether she 3 says something which is an expression of her then existing 4 state of mind under 803(3). And if it is a statement of then 5 existing state of mind, it is an exception to the hearsay rule 6 and isn't barred. It is an exception under 803(3) so that 7 question, to the extent that it is a question about a 8 out-of-court statement about then existing state of mind to be 9 asked, that doesn't put the article in yet. So I think that's 10 where we are. 11 MR. TIGAR: Your Honor, I understand. One of the 12 things I was trying to do here is deal with a position we had 13 taken when Mr. Schults was here. We supported the Times. We 14 don't think Mr. Freed should be called and we think that one of 15 the elements that your Honor has to consider in evaluating that 16 issue on which we have taken a position is whether or not 17 Mr. Freed's appearance could be pretermitted by what the 18 parties would be permitted to do in the presentation of this 19 evidence. That's a context, your Honor. 20 THE COURT: The government did not press the subpoenas 21 for any of the reporters other than Mr. Salaheddin in the 22 course of this direct case. It is not at all clear to me that 23 any of the subpoenas for any of the other reporters would ever 24 be pursued in the course of the trial at this point. And it 25 certainly isn't a basis for the admission of the article that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7904 4ASMSAT2 Stewart - direct 1 there are concerns about what might happen down the line. I'll 2 deal with those concerns when they come up. At this point all 3 I can do is to apply the rules as I read them. 4 MR. TIGAR: Your Honor, the only reason that I raise 5 that -- two. First, I did take a position. But I would 6 respectfully submit that the pendency of those subpoenas has to 7 do with the balancing test under Rule 807. I understand your 8 Honor has rejected our 807 position. I am going to stop 9 arguing with the Court now. I appreciate the Court's patience. 10 We know what the rules are. And we are ready to go. 11 THE COURT: The government indicates it is also ready. 12 If Ms. Stewart can take the stand and go get the jury. 13 MR. DEMBER: Your Honor, may I consult with Mr. Tigar 14 for a moment? 15 THE COURT: We will wait for the jury until you finish 16 your conversation. 17 MR. TIGAR: May I have a moment with Mr. Barkow, 18 please. 19 THE COURT: If Ms. Stewart could take the stand. 20 MR. TIGAR: Your Honor, the first event will be, we 21 are going to play that call. I will be asking permission that 22 that take place, that 1220 call, 1220 in evidence. 23 (Jury present) 24 THE COURT: Ms. Stewart is on the stand. 25 Mr. Fletcher. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7905 4ASMSAT2 Stewart - direct 1 THE DEPUTY CLERK: Ms. Stewart, you are reminded 2 you're still under oath. 3 THE WITNESS: Yes. 4 THE COURT: Mr. Tigar, you may proceed. 5 BY MR. TIGAR: 6 MR. TIGAR: With the Court's permission, we are going 7 to play that call that the jurors have heard. Your Honor, may 8 we ask that the government folks who have agreed to do this, to 9 play for us Government 1220 in evidence and scroll the 10 transcript which is in evidence as 1220X, this being a call on 11 the 8th of January 2001, and may the jurors be asked to put the 12 earphones on. 13 THE COURT: Ladies and gentlemen, put please put the 14 earphones on, dot facing forward, turn them on. 15 (At this point, Government Exhibit 1220 in evidence, 16 displayed and played to the jury) 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7906 4ASMSAT2 Stewart - direct 1 THE COURT: All right. Take the headphones off. 2 Remember to turn them off, ladies and gentlemen. 3 BY MR. TIGAR: 4 Q. Ms. Stewart, I'd like to spend some time going through that 5 call to talk about these references. We started that before 6 the break. 7 First, your Honor, may I display 1220X on the Elmo. 8 THE COURT: Yes. 9 Q. This is the transcript, Ms. Stewart -- let me start. 10 Do you remember independently of the transcript having 11 a phone call with Mr. Sattar on that date in the year 2001? 12 A. I do. 13 Q. And do you remember it being at about this time, 4:27 p.m. 14 in the afternoon? 15 A. Yes. 16 Q. 4:17 in the afternoon. 17 Now, the first thing, if I can display this, 18 Mr. Sattar is saying at line 10, I just spoke to the Sheikh's 19 wife. She actually called me from Egypt. 20 And was it a part of Mr. Sattar's responsibility to 21 talk to your client's family? 22 A. Yes. That was part of his role as a paralegal on the team. 23 Q. Had you ever met any of the Sheikh's wife or his son or any 24 of those family members? 25 A. I met his wife when she came to visit, to see him SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7907 4asesat3 Stewart - direct 1 sometime -- I couldn't tell you the year but at a social 2 gathering for her. 3 Q. What languages did she speak that you observed? 4 A. She actually was a university professor and did speak some 5 English, but we did utilize a translator to talk. 6 Q. Did you have a substantive conversation? 7 A. No. It was a -- an informal exchange. 8 Q. Now -- and then he says, Mr. Sattar says, and, you know, I 9 think he's getting so he's not doing very good. And he goes on 10 to say, yes, and, you know, he's saying things, you know, that 11 I, uh, know to be said to the newspapers and stuff. And I said 12 "don't," I told him not to. 13 What did you interpret Mr. Sattar as telling you at 14 that point? 15 A. First of all, I heard him say I told "her" not to, meaning 16 that he told the wife not to talk to the newspapers. But I 17 really -- the transcript does say "him" but -- so my 18 understanding was that, you know, very often people in jail, 19 when they talk to their nearest and dearest, emote about the 20 hardness of what's happening to them. And apparently the 21 Sheikh at this point, when he had no lawyers to talk to at all, 22 on a weekly basis was telling his wife that the lawyers were 23 conspiring against him now, too, and he wanted her to release 24 that to the papers. 25 Q. Now, did you think that was a good idea for the Sheikh's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7908 4asesat3 Stewart - direct 1 wife to issue some statement to the papers? 2 A. No, because as I said a few lines further on, then he'll 3 have no one to talk to. He can't call the lawyers because the 4 lawyers -- this is Ramsey Clark, Abdeen Jabara and Larry 5 Schilling -- had all refused to sign the SAMs because they 6 contained that same paragraph the SAM that had been submitted 7 to me contained, concerning the Sheikh and the background. 8 So he was cut off at that point from all of the 9 lawyers. And the only person he could speak to once a month 10 was his wife. 11 Q. Was it your understanding that Mr. Clark was during that 12 time period having a negotiation with the government also about 13 the affirmations? 14 A. Yes. 15 Q. Now, here at page three we see, exactly, exactly, I said 16 don't say anything right now. 17 And you say right. 18 And Mr. Sattar: Do not say anything, do not do 19 anything. 20 Do you remember him saying that? 21 A. Yes. 22 Q. Now, your answers during this time, mmm, right, and so on, 23 are somewhat monosyllabic. Do you remember what else you were 24 doing about this time? 25 A. Specifically, I could not tell you, but I know it's a time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7909 4asesat3 Stewart - direct 1 of the day in a busy law office when we're trying to get a lot 2 done, either for the next day or based on what you've done 3 during the day. So I know it's very perfunctory in some parts 4 of these conversations, conversation. 5 Q. You do say in line 12 that's up here now, well, listen, 6 Stanley is back today. 7 Mr. Sattar: Yeah. 8 Ms. Stewart: So I will, I'm going to have him call 9 Pat Fitzgerald. 10 Yeah. 11 And say along with getting the right to visit, and so 12 on. 13 That -- who's Stanley? 14 A. Well, Stanley is Stanley Cohen, who is the lawyer that was 15 handling this matter for me that I had first contacted back in 16 August. And he had been away, and he was on his way into the 17 country. And I suggested that we could try to get one phone 18 call at least under the provisional, as I understood it was 19 going to be, signing of the SAMs. 20 Q. Now, when had you first asked Mr. Stanley Cohen to 21 represent you in dealing with Mr. Fitzgerald over this issue of 22 a new affirmation? 23 A. That would have been soon -- either as soon as I got the 24 call in July or in early August when I received a letter from 25 Mr. Fitzgerald. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7910 4asesat3 Stewart - direct 1 Q. Why would you get -- hire somebody or retain somebody -- 2 let me start. 3 Had you known Stanley Cohen before that? 4 A. Yes, for many, many years. 5 Q. And is he a member of the bar? 6 A. Yes, he is. 7 Q. Why would you retain a lawyer to interact with 8 Mr. Fitzgerald about the content of a new affirmation rather 9 than doing it yourself? 10 A. The old -- the old saying about having a fool for a client, 11 but also it is very useful to have someone that is a step away 12 from what is happening; someone very skilled; someone who knew 13 Mr. Fitzgerald from other work with him to be able to talk to 14 him about where we were going, what was this leading to, and 15 to, in fact, negotiate. When you try to do it yourself, your 16 investment is very different, I think. 17 Q. Now, looking now at page five of the transcript, Mr. Sattar 18 is again saying, you know -- excuse me. Mr. Sattar is saying, 19 you know, do not, you know, do not say anything to the 20 newspaper. And he said, you know, call Muntasir. I said, I 21 said, if you call Muntasir, that will be it. 22 Now, what is your impression about who Mr. Sattar -- 23 what was your impression at that time, who is Mr. Sattar 24 referring to about "he said, you know, call Muntasir"? 25 A. Well, that is Montasser Al-Zayyat, the lawyer in Egypt, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7911 4asesat3 Stewart - direct 1 it was known to us, of course, that Mr. Al-Zayyat had a lot of 2 media sources in Egypt. And if this is said, then that will be 3 what is put out in the media, in the television, radio, 4 newspapers, and that it would not be a good thing in our view. 5 Q. Now, when you saw that this was -- let me go back to page 6 three here. 7 When you saw that Mr. Sattar's reporting, now -- and 8 I'm putting this, this is page three -- now they are the, the, 9 they are the one body with the government, and you know, they 10 all like gang up on me. 11 What did you understand from that? 12 A. Well, I understood the Sheikh Omar had spoken to his wife 13 and said that the lawyers weren't taking his calls anymore. I 14 have no idea what they told him the reason was for our not 15 taking the calls, but apparently he believed or he communicated 16 to her that we were aligning ourselves with the government in 17 assuring his isolation by not taking any more calls. 18 Q. Now, later on in the call, this is page 10 of that 19 transcript, Mr. Sattar says, I spent -- this is line 10 -- I 20 spent an hour with his wife and another hour with his son 21 trying to explain it to them. 22 Now, what did you understand had happened here? 23 A. He was attempting to explain to the wife and son that we 24 weren't refusing to take the calls but that we did not think we 25 could. Or not "we," because I had not been taking calls, of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7912 4asesat3 Stewart - direct 1 course, since early August. But he was explaining that 2 Mr. Jabara, Mr. Clark and Mr. Schilling were no longer taking 3 calls because they had been asked to sign this onerous fourth 4 paragraph of the SAM in which we were asked to agree with the 5 government that the Sheikh was responsible for all manner of 6 things. And they, too, had refused to sign that. 7 And that that was the reason why there were no calls. 8 It wasn't because we were aligning ourselves with the 9 government. 10 Q. At that point did you have any personal knowledge about 11 whether your client was refusing his medicine -- well, about 12 why his -- why your client wasn't taking his medicine or if he 13 was taking it. 14 A. I not only didn't have personal knowledge, I didn't even 15 have secondhand knowledge. I hadn't spoken with him personally 16 since June of 2000 at that point. 17 Q. And when Mr. Sattar says, he's saying that -- I'm looking 18 at page 11 of the transcript -- he's saying that, that they are 19 not giving him his medicine, and Mr. Sattar recounts that he 20 said, I said, I know the Sheikh here, I said they will offer 21 him the medicine, but you know he will say no. 22 And you say, that's right, they don't know that on the 23 outside so that's safe enough. 24 First. Well, I'll ask the question: Looking back at 25 that conversation, what were you communicating to Mr. Sattar? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7913 4asesat3 Stewart - direct 1 A. That no one knows what the situation is, including what his 2 surmise was at that point about whether it was being offered or 3 not being offered. We have no way of knowing. We're getting 4 even this thirdhand. So as a result you can probably make a 5 release, good faith release to the press about his condition 6 with nothing more, because no one knows what's going on in 7 there. 8 Q. Did you intend to induce anybody to make a knowingly false 9 statement about the Sheikh's medical condition? 10 A. Absolutely not. 11 Q. Now, did there come a time, Ms. Stewart, when you did sign 12 the SAM affirmation so that you could -- the government would 13 once again let you visit with your client? 14 A. I didn't hear the end of that. I'm sorry. 15 Q. I'm sorry, I did it again. 16 Ms. Stewart, did there come a time when you signed a 17 SAM affirmation so that you could visit your client again? 18 A. There did, yes. 19 Q. And was that the one that we looked at yesterday that -- 20 and we went over the various provisions that you had changed in 21 order to be able to do it? 22 A. That was the one I signed before I went to see him. 23 Q. Now, did you think that was going to be the last word on 24 SAM affirmations? What was the reason for agreeing with the 25 government to sign that particular document? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7914 4asesat3 Stewart - direct 1 A. Stanley Cohen on my behalf had told Mr. Fitzgerald that we 2 had to see him in order to have him tell us -- meaning him, the 3 Sheikh -- whether or not he wanted us to sign on to this, even 4 as it was then constituted. He very well might have said no, I 5 don't want you to, although his position pretty regularly was 6 sign anything, but please come see me. But at least we had put 7 this to Pat Fitzgerald that we had to get to see him in order 8 to get his input into this. 9 So it was a provisional signing; by that I mean we 10 signed it, but he understood that he could, after the visit, 11 withdraw the signature. In fact, that did not happen. The 12 Sheikh did tell us on the visit as we hear, sign it, it's OK 13 with me. 14 MR. TIGAR: Your Honor, may I exhibit for Ms. Stewart 15 and the members of the jury Government Exhibit 1716X in 16 evidence, which is the transcript of the July 13, 2001, prison 17 visit. 18 THE COURT: Yes. 19 Q. Ms. Stewart, I want to go through some of these things with 20 you briefly. Now, first I want to look at page 15. And 21 beginning at line 3, your client says, what is the agenda? 22 And then Mr. Yousry translates. 23 And you say, do I have an agenda? 24 Well, we have some things to talk about, and then it 25 continues on, that on personal level, then there are personal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7915 4asesat3 Stewart - direct 1 things she likes to talk to you about, sir. 2 And then simultaneously, from his family and from. 3 And there are translations and so on. 4 And then you say later on down the page that you want 5 to talk about the lawsuit and the conditions, and at line 19, 6 what they want me to sign and should I sign. 7 Did you have an agenda in the sense of something that 8 you'd written out? 9 A. I'm not sure whether I had it as -- when I entered the 10 jail, I think I may have written it down in my notebook that I 11 had on that occasion. It may have been written down 12 contemporaneously with the listing this for the Sheikh. It was 13 in my head certainly. I knew these were the subjects we needed 14 to discuss. 15 Q. The first matter I want to turn to here begins when -- if 16 folks are going to look back at the transcript -- at a notary. 17 And this begins at page 20. 18 And there's a discussion there, and I'm only showing 19 part of it just for reference, about getting the signature 20 notarized. Now, what did you understand was it that these 21 documents related to? 22 A. It was a proxy, in fact, to marry for the Sheikh. 23 Apparently at some point he divorced his second wife and 24 apparently she wanted to be remarried. This was a proxy, a 25 sworn statement that he was giving his proxy for that to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7916 4asesat3 Stewart - direct 1 happen. 2 Q. And did you regard the making out of this document, getting 3 it notarized and so on, as a part of the legal representation 4 of your client? 5 A. Yes, because this is a necessity. There was no one else 6 who visited or could visit, and this was something that was 7 necessary to further his life. 8 Q. Now, beginning at about page 25 of the transcript, there 9 was -- this is the visit -- there was a long letter from Fatim, 10 someone named Fatim. Do you recall that translation of that 11 portion of the transcript being displayed to the jury? 12 A. Yes. 13 Q. And had you talked to Mr. Yousry before the visit started 14 about that letter from that person that was being addressed to 15 your client? 16 A. We followed our usual manner, our protocol, if you will; 17 that when we were on our way to Minnesota, that we went over 18 all of the things that were going to be read to him or given to 19 him orally, starting with letters and going through newspaper 20 articles. 21 And I also would tell Mr. Yousry what I was proposing 22 to talk about, so if he had to look it over, I think I gave him 23 a copy of the SAM on the way out so that he could see the 24 verbiage, the language, what he was going to be translating. 25 We went over everything in advance. He translated everything SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7917 4asesat3 Stewart - direct 1 to me in advance, and I approved or disapproved of whatever it 2 was we were going to read to him. 3 Q. Now, what was the basis for your judgment that a letter -- 4 and I'm going to display page 24 -- Mr. Yousry is saying, I 5 read these things outside but I prefer to read to you, sir, 6 your wife's letter in particular. 7 Your client says, yeah, read it to me. 8 Mr. Yousry continues, instead of summarizing it. This 9 letter is about [counting the pages as he picks them up] one, 10 two, three, four, it is six pages. 11 Now, what was the basis for your judgment that it was 12 all right to convey to your client this letter from this -- I 13 say this person, his wife. Did you understand your client had 14 more than one wife? 15 A. Yes, I did understand that. Culture very different from 16 our own, and but perfectly allowable under the religion that he 17 believed in. 18 Q. Now, what was the basis for your judgment it was all right 19 to read this letter about her conditions? 20 A. Well, I guess, as I've said a couple of times now, we 21 operate on a parallel universe for people in jail; that is, we 22 are going to discuss legal issues with them, but their personal 23 issues are also very much of concern, to them certainly. 24 This was someone who was out of -- could not 25 communicate with him any other way. She did not receive phone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7918 4asesat3 Stewart - direct 1 calls. Seemed to me the issues that she was talking about here 2 were things that he would want to resolve personally and which 3 he would want to know about personally, and that in my view 4 family matters, personal family matters are something that you 5 share confidentially with your lawyer. And so I thought it was 6 appropriate to read this rather lengthy and in some ways very 7 touching letter. 8 Q. Now, looking at page 26 of what's in evidence, you say, 9 good, and we of course, it's good we went over this in advance. 10 Mr. Yousry: Absolutely. 11 Ms. Stewart: So that we don't have to consult every 12 five minute -- you don't have to retranslate it to me. You 13 translated it to me before. 14 Were you referring to that letter? 15 A. Yes. 16 Q. And are you referring there to the practice you discussed 17 of preparing for the meeting with your client? 18 A. Yes. 19 Q. Now, in that same prison visit, there is a discussion about 20 money. And this is a discussion that -- and I'd like to show 21 you now page 52. Let me start, because the money discussion on 22 that page begins at line 14. 23 Do you remember during this visit a great deal of 24 discussion or discussion about your client's medical condition, 25 what -- the pills he was taking and so on? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7919 4asesat3 Stewart - direct 1 A. Yes. And he actually -- this was the visit in which he 2 dictated to us maybe 15 or 20 points that he had committed to 3 memory about his condition. That was later on in the visit, 4 however. 5 Q. All right. Now let's now focus on this. You may be able 6 to recall, sir, there was an amount of money you gave to 7 someone to invest for you. 8 Now -- and then there's a great deal of discussion on 9 that; folks probably remember that was shown on the transcript. 10 What was that conversation about, so far as you acting as a 11 lawyer for your client was concerned? What was going on there? 12 A. This was an amount of money that the Sheikh had loaned 13 to -- I think it was a newspaper dealer in Jersey City. And he 14 had asked me to try to liquidate this, since there was such a 15 shortage of money in his particular circumstance. And we did, 16 in fact, liquidate it. And the money, approximately $70,000, 17 was given to me as the lawyer and deposited in my escrow 18 account. 19 Q. First, you got the money and you say you deposited it in an 20 escrow account. What's an escrow account? 21 A. Lawyers are required when they are stake holders -- that 22 is, they are holding money that is not their money but money 23 that belongs to a client -- to deposit that money in a separate 24 account from their own, no commingling -- from their own 25 account. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7920 4asesat3 Stewart - direct 1 The State of New Jersey, where I'm also admitted to 2 practice, had a rule, an iron-clad rule that you must maintain 3 an escrow account. New York does not have an iron-clad rule 4 that you must maintain one at all times rather relying on if 5 you need one, you should open one. 6 Since I had the account and it was of good standing in 7 New Jersey, in Hoboken, I deposited the check into that account 8 and that is where it remained, into the trust account, the 9 escrow account of Lynne Stewart, attorney. 10 Q. Now, when the money is in the escrow account, then how do 11 you get authority, you as the lawyer, to disburse it, to send 12 it out? 13 A. From the client. 14 Q. And in your dealings with your client, how did he authorize 15 you to use these funds? 16 A. I think at the time that he authorized me to collect it, he 17 laid out a certain number of things that he thought should be 18 done with it. And we basically wanted to use the money to 19 hopefully make more money so that his commissary, so that his 20 family in Egypt would be able to be compensated. And we 21 discussed various ways in which that could happen. 22 Q. And out of that escrow account did people connected with 23 the defense team receive funds? 24 A. Yes, they did. Mohammed Yousry received, I believe, in the 25 neighborhood of 30,000, some of which was disbursed further to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7921 4asesat3 Stewart - direct 1 Mr. Sattar. There was -- I received money for expenses that I 2 had incurred, mainly telephone bills and some other incidental 3 things that I had. 4 And Mr. Sattar got an investment into his baby formula 5 business, which I think has been discussed on other pages. And 6 from that investment he then used the -- what would you call 7 it -- his profit to send money to the Sheikh's family and to 8 put money in the commissary. 9 Q. Now, a moment ago you mentioned that this was the visit 10 where your client listed the matters about which he was 11 concerned with respect to his treatment. What were your views 12 about the prospects for a lawsuit, if any, that related to his 13 conditions? 14 A. Realistically I thought we had -- we would have some 15 problems, given the notoriousness of the client; the fact that 16 he was pretty widely viewed as dangerous and hated; that I 17 thought the Bureau of Prisons would certainly come back at us 18 with a very negative view. 19 But I also believed that it was important to do this 20 lawsuit for his state of mind. There is something about 21 translating your problems into concrete action, into taking 22 them into court and to exposing them and to stating them and to 23 doing this which would be very positive. 24 I also hoped that it would garner some positive 25 publicity as well; that, yes, he may be all of these things the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7922 4asesat3 Stewart - direct 1 government has convicted him of, but that does not mean that we 2 deal with him in an inhumane or, indeed, a torturous way. 3 So -- I felt that the lawsuit did not have great 4 chances of succeeding in its entirety; that is, to lift the 5 SAMs and to make him in some low security prison. But I think 6 we thought that once the lawsuit was instituted, it would at 7 least open a door through which we could negotiate, perhaps, at 8 least moving him to a place where the lawyers could get to him 9 more easily, where it would be possible for family to visit him 10 more easily and not to have him be in the middle of Minnesota. 11 And ultimately, of course, as I've said many times, 12 our goal was to induce both the government and the United 13 States and the government of Egypt to take him back there. 14 Q. Did you recognize at this time -- and this is July of 15 2001 -- that there was a perception out there that would not be 16 sympathetic to any lawsuit or claim that you would bring? 17 A. Yes, absolutely. 18 Q. Going to show you now, again, from this transcript -- and 19 this is page 72 -- beginning at line 8, it was necessary to get 20 the New York Times to write articles and, uh. 21 Mr. Yousry: Um. 22 Other things before we were able to uh -- but we have 23 some inroads there. We can still get ahold of some of the 24 people who wrote about Nasser, and hopefully maybe they'll 25 be -- it's a little different -- obviously a lot different but, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7923 4asesat3 Stewart - direct 1 uh, you know. 2 And then Mr. Yousry translates. 3 Then Ms. Stewart goes on to say, but I can't report 4 that the, uh, conditions for people to be sympathetic are 5 better now than they were the last time we spoke. I don't 6 think they are. 7 Now, the last time you spoke was? 8 A. In the May 2000 visit, and then the June telephone 9 conversations. 10 Q. All right. And to some degree that due to the African 11 bombing case and what happened to the guard at MCC, and then 12 the latest round of what's happening in Palestine, and then 13 lately and the -- Saudi Arabian bombing that they now have 14 arrested people, but it doesn't, it's not clear what's ever 15 going to happen. 16 And then Mr. Yousry translates. 17 A. Yes. 18 Q. What was your view about this sentiment about -- around the 19 issues that you were talking about that would affect what you 20 would do or advise your client to do? 21 A. I wanted my client to be very clear that, yes, we could 22 invest in a lawsuit, yes. It could be brought before the Court 23 as a conditions lawsuit, but that the outlook was far from 24 positive. That far from retreating from a position where 25 Muslims were demonized, in fact, there were obviously concrete SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7924 4asesat3 Stewart - direct 1 events from which people were drawing the worst conclusions. 2 And that that permeate -- would permeate any government answer 3 to our request to ease up on his conditions, to make him, say, 4 able to make more phone calls; to make him able to have a wider 5 visiting list or allow him to attend the religious services; 6 that this would all be used against him to show that there was 7 a necessity for, quote, people like him to be restrained. 8 We, of course, would argue differently, but this was 9 the climate we faced. And he had a right to know that before 10 we engaged in this lawsuit. 11 Q. And then you say, and the other factor to be considered now 12 is that Pat Fitzgerald is going to be leaving that New York 13 office probably to become the US attorney in Chicago. 14 Now, to your knowledge did that happen? 15 A. That did happen, yes. 16 Q. And you're talking then about -- your client says, so what. 17 You say, well, he is the one that controls the SAMs. 18 He is the one that, that dictates -- and later on in the midst 19 of the translation, what happens with regard to the important 20 issues of visitation and communication. 21 Now, then we continue, there's the Arabic 22 conversation, but when it comes back to you in English, 23 Mr. Yousry is saying, did he leave, did he move already? 24 Stewart: Not yet, no. He just finished the bombing 25 case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7925 4asesat3 Stewart - direct 1 And -- translation. And then Ms. Stewart, and he did 2 not get death penalties in either case. 3 Do you see that? 4 A. Yes. 5 Q. Now, first, what is -- to you, what's the significance of 6 the person with whom you're going to have to deal on these 7 issues? I mean, Patrick Fitzgerald as distinct from somebody 8 else. 9 A. Well, Patrick Fitzgerald was a known quantity to us. We 10 knew he took a very hard line on these issues. And if he was 11 going to be our adversary in a conditions lawsuit, we knew we 12 were definitely facing an uphill battle from a very smart, very 13 skilled, very knowledgable prosecutor who was in this case 14 doubling as a witness for the Bureau of Prisons. As always, 15 one hopes that we would get someone perhaps a little more 16 reasonable that could appreciate a sick, blind man who really 17 was defensible, let's put it that way; who was not -- did not 18 pose a threat to anyone, in our view, and that we would be able 19 to perhaps engage in some negotiation with a reasonable or more 20 reasonable -- I won't say unreasonable, but with a more reason 21 person. 22 Q. And a reference to, he just finished the bombing case, what 23 bombing case is that? 24 A. That would be the embassy bombings in Africa. 25 Q. And the reference to, he did not get death penalties in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7926 4asesat3 Stewart - direct 1 either case, was that a reference to the jury verdict? 2 A. Yes, that was. 3 Q. Now, then you talk about the Cole, right. And here's a 4 discussion, we never told him about, and then in lower voice, 5 Cole. 6 And, Stewart, you say, what? 7 And then Mr. Yousry says, the Cole exploded, you know, 8 the ship, the destroyer Cole. We never told him about the call 9 that Ahmed got. You want to tell him while we're here? 10 And then Ms. Stewart says, uh, I guess so. I'm not 11 sure. 12 Yousry: You know what I am talking about? 13 Stewart: No. 14 Yousry: Remember when we went for the book signing 15 and Ahmed told me that somebody called him, and they said that 16 they destroyed the ship because of the Cole, unintelligible. 17 And then Ms. Stewart: Oh, yeah, yeah, yeah. 18 Mr. Yousry: We never told him. 19 Stewart: Yeah, we probably ought to tell him. 20 There's been no profession, but -- and then the next page. 21 Yousry: Hmm? 22 But let's just finish with Pat Fitzgerald and then 23 we'll talk about that. 24 Now, what are you referring to there? 25 A. The incident with the Cole, the USS Cole, the destroyer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7927 4asesat3 Stewart - direct 1 that was bombed when it was in Yemen had occurred I think in 2 October of 2000. As I said, there had been no visits to the 3 Sheikh. There had been very limited phone conversations, none 4 by me, during this intervening year. 5 And there had been a time when Ahmed Sattar had 6 received a telephone call and then told us about it at a book 7 signing that we all attended that was actually hosted by 8 Mr. Jabara. And it occurred to me -- at first I didn't know 9 what Mr. Yousry was referring to. But then when he gave me a 10 little more help, I remembered what it was about. And it 11 seemed to me that he should -- that the Sheikh should know 12 about this, that this should be something that should be within 13 his store house of knowledge, if you will, background material 14 for the future of the case. 15 Q. Did you -- had Mr. Sattar told you about that -- excuse me. 16 What do you remember learning about the telephone call 17 that Mr. Sattar had received? 18 A. Mr. Sattar said he had received a telephone call. We 19 didn't know who it was from or what it was about, but someone 20 on the phone said, you know, people close to us or something 21 like that were responsible for the Cole. And you should call 22 the State Department and start telling them that there will be 23 more like this if they don't release Sheikh Omar. That was the 24 nature of the call he received. 25 Q. What did you think of that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7928 4asesat3 Stewart - direct 1 A. Well, it seemed to me it could be almost anything. He was 2 very frightened, as I recall, when he told me about it. And I 3 thought it was -- it could be anything. It could be the -- 4 someone who was acting on behalf of an agency of the United 5 States trying to lure him in to something. It didn't have much 6 of a ring of truth to me, I'll tell you. I thought that this 7 was some -- almost a setup, something that was engineered 8 rather than real. 9 Q. Did you think it would be a good idea to make any call like 10 that? 11 A. No. This is not anything we would make a call. We know 12 better, that this is not the kind of negotiating that we are 13 empowered to do or would want to do; that the government is not 14 susceptible to that kind of threat. 15 Q. Now, did you then go on to discuss with your client what he 16 would have to do in order to bring a lawsuit? 17 A. Yes. 18 Q. And let me just show you here, at page 82, yes, we -- yeah, 19 we have to have the entire list of everything we are raising 20 about -- as part of this lawsuit. 21 A. Give me one minute here. 22 Q. Yes, page 82. If you could look for that, please. 23 A. I have it, yes. 24 Q. All right. And then at the bottom of the page here, in 25 that part of the conversation, your client asks, first it says, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7929 4asesat3 Stewart - direct 1 tell her, the lawyer, Mr. Yousry, a specific question, how much 2 your client, how much will the lawyer who will handle this 3 matter charge. 4 And then you say, well, I think he probably, the 5 lawyer, will want at least $10,000 to get the case. And then 6 we get some translation -- excuse me, there it is. 7 And then you say, started, and then Mr. Yousry 8 translates. 9 Ms. Stewart: Go from there, I guess. 10 And then Ms. Stewart, it seems to me that he might, or 11 she might be able to sue for lawyer's fees at the end of the 12 case, but I think that the people involved have [gesticulating] 13 to keep the case going by being prepared to give up front money 14 and then money per ev -- every month. Translation, Mr. Yousry, 15 I believe that. 16 Ms. Stewart, to fund the case. 17 Now, when you talk about the money it takes to do a 18 case and the process of getting the fee at the end, why pick a 19 number like -- why pick $10,000? 20 A. I had spoken with some people that do prison conditions 21 lawsuits, people within my acquaintance. They had indicated 22 that this is what they would require to start such a lawsuit. 23 If we could get it into the Southern District or -- this is not 24 expenses, but what they would require to at least do the 25 paperwork, do the administrative remedies, all of this to get SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7930 4asesat3 Stewart - direct 1 the case going. And I reported that to the Sheikh. 2 I myself was not going to do the case. I didn't feel 3 it was particularly within my own expertise, but I was willing 4 to work with the lawyers that we would hire on his behalf, or 5 that he would approve of on his behalf, and further the suit in 6 that way. 7 MR. TIGAR: Your Honor, is this a convenient time for 8 the luncheon recess? 9 THE COURT: Yes. 10 Ladies and gentlemen, we'll break for lunch. We'll 11 break until 2:00. Please, please, remember my continuing 12 instructions. Please, don't talk about this case at all or 13 anything to do with it. 14 Please, always remember to keep an open mind until 15 you've heard all of the evidence, I have instructed you on the 16 law, you've gone to the jury room to begin your deliberations. 17 Fairness and justice to the parties requires that you do that. 18 With that, have a very good lunch. I look forward to 19 seeing you after lunch. 20 (Pages 7931 and 7932 sealed by order of the Court) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7931 4ASMSAT4 Stewart - direct 1 AFTERNOON SESSION 2 2:05 p.m. 3 THE COURT: Ms. Stewart will take the stand, please. 4 (Jury present) 5 THE COURT: Good afternoon, ladies and gentlemen. It 6 is always good to see you. 7 Ms. Stewart is on the stand. 8 Mr. Fletcher. 9 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 10 are still under oath. 11 THE WITNESS: Yes. 12 THE COURT: Mr. Tigar, you may proceed. 13 MR. TIGAR: Thank you, your Honor. 14 May I continue to display to the witness page 1716X in 15 evidence, government exhibit? 16 THE COURT: Yes. 17 BY MR. TIGAR: 18 Q. Ms. Stewart, as we broke for lunch I was asking you about 19 your discussion of the prospects for a lawsuit that you were 20 discussing with your client on the 13th of July 2001 in the 21 prison at Rochester. 22 Did you think you had a good chance to get success in 23 that lawsuit in a hurry? 24 A. As I explained, to answer the first part of the question, I 25 did not think we had good chances of success, and as far as in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7932 4ASMSAT4 Stewart - direct 1 a hurry, I was certainly aware of other cases such as losses 2 that were borne on behalf of defendant Mumia Abu Jamal to get 3 access to his mail without allowing the prison to read it ahead 4 of time. That is his attorney-client mail. That lawsuit took 5 three years to resolve just on that single issue. I did not 6 think we were going to get a decision right away. 7 Q. Ms. Stewart, I want to show you a page, two pages actually 8 from this transcript of what was played for the jury. This is 9 page 49. And we see Mr. Yousry saying, you know, he doesn't 10 want to admit it. But Ramsey Clark is of the opinion that we 11 should not. And then UF2 in background, to another female 12 guard, I'll read that, too. Then turning to page 50, 13 Mr. Yousry says, remind him of and UF3 laughs and says, it is 14 so nice outside. 15 Are those guards in the room with you? 16 A. No. This was a point at which the Sheikh had been exited, 17 taken out to use the bathroom. But it does show, I think, how 18 close the guards were to us, that when the door was open, the 19 microphone that was capturing our conversations could capture 20 their conversation in the hallway which, as I had said earlier, 21 was about a foot outside of where we were sitting. With the 22 door closed, it was different, but it shows how close they 23 were. 24 MR. TIGAR: Your Honor, may I display to Ms. Stewart 25 and the jury on the Elmo the transcript which is in evidence as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7933 4ASMSAT4 Stewart - direct 1 Government Exhibit 1717X? 2 THE COURT: Yes. 3 Q. Ms. Stewart, this is a continuation of the July 13, 2001 4 prison visit. And I wanted to ask you, there is a discussion 5 here of someone named Nosair. Who is Mr. Nosair? 6 A. He was a codefendant in the 1995 case. He had been 7 acquitted in New York State Court of the murder of Meir Kahana, 8 but that count was brought into the federal case as part of a 9 separate conspiracy, and he was convicted of it in federal 10 court, murder of Meir Kahana. 11 Q. Looking at this transcript, this is page 3. And Mr. Yousry 12 says: Patel is his lawyer or is it Roger Stans? Who is being 13 referred to there? Do you have that page, page 3? 14 A. This is Nosair. He was represented by -- Andrew Patel was 15 one lawyer and Roger should be Stavis. 16 Q. Lynne Stewart says: The point here is is Nosair having all 17 these interviews. Um-hum, says Mr. Yousry. He's allowed to 18 talk to the press totally freely and put all of this out. You 19 know. 20 Why are you raising that issue with your client? 21 A. I think it had come to our attention that there was certain 22 press that Mr. Nosair had brought up and was carried by the 23 Egyptian Arabic press and also that he was saying that he was 24 asking at that point Yasir Arafat, who was about to make a 25 visit to the U.S., to ask for repatriation of the prisoners SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7934 4ASMSAT4 Stewart - direct 1 that were held in the U.S. back to their Arabic homes. 2 And I'm talking about this because apparently Nosair, 3 who was convicted of murder and convicted indeed of the same 4 conspiracy the Sheikh was, is allowed to talk to the press 5 absolutely freely. There is no SAMs on him, who was convicted 6 of violence; as opposed to the Sheikh, who was never convicted, 7 per se, of violence. 8 Q. Now, did Mr. Yousry, before he informed your client about 9 this publicity concerning Nosair, did he ask your permission to 10 inform the client about Mr. Nosair's situation? 11 A. As far as I knew, Mr. Yousry never spoke to the Sheikh 12 without getting permission for what he was going to read to him 13 without passing it through one of the lawyers for approval. 14 Q. Now, would you look at page 2 of the transcript, please. I 15 am going to put this on the board. 16 Let me start with page 1. I'm sorry. And one other 17 interesting thing that I realize, you know with this, uh, does 18 the Sheikh know about Nosair and all of these, uh? No, he 19 doesn't, Mr. Yousry said. Abdeen told me not to read it. And 20 then you say: Oh, really, why is that? The client says um. 21 Yousry says: Shall I tell him now? Yes, definitely. 22 What is going on here, as you understood it? 23 A. He was telling him about the news that we had previously 24 discussed about Nosair, and he informed me that Abdeen had told 25 him not to read it. And even though I had approved it earlier SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7935 4ASMSAT4 Stewart - direct 1 in the day, I guess, and I said, why is that, and there was no 2 answer. But to me, here was a codefendant making statements 3 being carried in the press. It was indeed significant that the 4 Sheikh should know about this. And for that reason we thought 5 it should be -- I thought it should be included in what was 6 being told to him that afternoon or morning. 7 MR. TIGAR: Your Honor, may I show the witness an 8 exhibit on the Elmo, pages from 1720X in evidence, the 9 continued transcript? 10 THE COURT: 1720X? 11 MR. TIGAR: Yes, your Honor. 12 THE COURT: Yes. 13 Q. Ms. Stewart, this is, if you look at the first page, a 14 videotape from July 14, 2001, the second day of your visit. 15 A. Yes. 16 Q. And based on the agenda that you had discussed the day 17 before, what was the second day of the visit devoted to? 18 A. The Sheikh had wanted to list for us his problems in 19 confinement, his problems in the prison, things that he wanted 20 us to make note of and to utilize in the -- in this prisoner's 21 lawsuit. There were also letters to be read that had not been 22 gone over the day before. 23 Q. Did you approve the reading of all of those letters? 24 A. I did. 25 Q. Now, did you attempt to influence -- did you discuss your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7936 4ASMSAT4 Stewart - direct 1 client's medical condition with Warden Reese? 2 A. I am not remembering whether I met with Warden Reese on 3 this occasion or not. 4 Q. Could you take a look, please, at page 12 and 13 of the 5 transcript. 6 A. Yes. 7 Q. Now, looking at page 12, Ms. Stewart, this is after a long 8 translation by Mr. Yousry. And the part where this begins 9 Mr. Yousry is translating: Lynne heard this from her and we 10 told her that we were probably to bring a lawsuit because of 11 SAM because the Sheikh is an individual and have a right to 12 hear what he has to say. This is nothing personal against the 13 warden or against the prison, but we believe treating the 14 Sheikh in this manner is unconstitutional and we must bring it 15 to the Courts. That's what Mr. Yousry is saying. And then she 16 told me the other last thing she talked about his diet and urge 17 him not to eat candy, but we have been telling him that for 18 years. 19 Have you been attempting to influence your client's 20 diet in the prison? 21 A. Well, we always warned him -- he had a sweet tooth. And we 22 said: Diabetics shouldn't be scarfing down these Baby Ruths 23 like you're doing, sir. But he seemed to think that he knew 24 best and so after a while we just insisted in stop saying 25 anything about it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7937 4ASMSAT4 Stewart - direct 1 Q. Without going back through the transcript, do you remember 2 some discussion with your client about a defense committee? 3 A. Oh, yes. 4 Q. And do you remember him naming people and places, people 5 that might be on this committee and places from which they 6 might come? 7 A. Yes. 8 Q. Had there been efforts by people forming committees that 9 would express their opinions about your client and his 10 confinement? 11 A. Yes. I think we mentioned yesterday, perhaps, Kaukab 12 Siddique, who had this small Muslim newspaper, he definitely 13 was part of that committee. And there was even at some point a 14 pamphlet published by that committee about the case and why 15 they felt it should not have been -- the verdict was wrong. 16 But I would just say I permitted the comment on the Sheikh's 17 list of people for his defense committee. Part of that was 18 people that he knew were committed to helping him. Part of it 19 was sort of a wish list on his behalf, the inclusion of Cat 20 Stevens, who we kept calling Ringo, and George Harrison and all 21 of that, I think was a wish on his part. I don't think there 22 was any realistic hope that this man would join his defense 23 committee. 24 Q. Did you know the various names that your client mentioned 25 in these different countries that he was talking about? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7938 4ASMSAT4 Stewart - direct 1 A. No. Some I knew perhaps from the fact that they were names 2 that were public figures. But other than that, I did not know 3 them at all. 4 Q. When he said -- if I can show you page 46, it says: Four. 5 Contact the Islamic magazines and newspapers in America. 6 That's at line 20. And Mr. Yousry says: Interrogatively, as 7 he writes in America. 8 Did Mr. Yousry later talk to you that your client 9 wants you to contact newspapers and magazines? 10 A. Yes. 11 Q. Did you think there was any good purpose to be served by 12 that kind of publicity? 13 A. Well, as I said, one of our goals in representing the 14 Sheikh as zealously as we could under the circumstances was to 15 keep him alive for the general public and for the public here 16 in the United States. We felt that his greatest source of 17 support would be in the Muslim community where he was well 18 known and where he was someone that they would just treat 19 differently than perhaps Americans. By that, I mean, 20 second-generation or fourth-generation Americans would. So it 21 was important to us to do that. 22 However, most of the Muslim magazines and press in 23 this country of which there are very few are fairly -- I would 24 call them conservative in their outlook. And we are not really 25 interested in doing anything with regard to this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7939 4ASMSAT4 Stewart - direct 1 Q. Was a committee of this kind ever formed? 2 A. We did have an informal committee and Mr. Sattar was part 3 of it and Mr. Nasser Ahmed was a part of it. And I think we 4 had a couple of meetings. There were other people whose names 5 escape me at this point. But there was a committee formed, but 6 we never really -- I don't recall doing very much on behalf of 7 the Sheikh or the conditions. I know there was a discussion of 8 doing a blank page in Mr. Kaukab's newspaper to say: We can't 9 talk about the Sheikh because the government doesn't let us, 10 just to bring it home to the readers, the kind of imposition on 11 rules and regulations there were. I don't know whether that 12 ever actually got published or not. 13 Q. Did you regard press statements saying the Sheikh's 14 condition should be changed, the government should do something 15 as being in violation of the SAMs or of your affirmation 16 concerning the SAMs? 17 A. No. And actually that part of the Federal Register, which 18 gave opinions out that were expressed about the SAMs, when the 19 regulations were first promulgated, put out there, actually 20 said that it should not be seen as any infringement upon an 21 inmate's right to question his conditions under the 22 Constitution. 23 Q. Did the discussion then turn on that day, the 14th of July 24 2001, to your client listing the conditions of which he 25 complained? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7940 4ASMSAT4 Stewart - direct 1 A. Yes. 2 Q. When your client told you that -- let me start -- 3 MR. TIGAR: Your Honor, may I display to the jury and 4 ask the defendant, Ms. Stewart, about Government Exhibit 1721X 5 in evidence? 6 THE COURT: Yes. 7 Q. Ms. Stewart, when he told you that there is a machine in my 8 arm to give me the -- excuse me. Did Mr. Yousry -- 9 THE COURT: I'm sorry. Could you stop just for a 10 moment. You said 1721X, but you didn't indicate what page. 11 MR. TIGAR: I'm sorry, your Honor. I'm at page 18. 12 And I see that I misspoke in asking the question. 13 MR. DEMBER: Your Honor, may we just get an 14 instruction with respect to any complaints that are read to the 15 jury or that are made by Abdel Rahman in this transcript? 16 MR. TIGAR: Yes, your Honor, please. 17 THE COURT: Ladies and gentlemen, I have previously 18 instructed you that any statements by Sheikh Omar Abdel Rahman 19 in the transcript are not received for the truth of any of the 20 matters asserted by Sheikh Omar Abdel Rahman. 21 Q. Ms. Stewart, after your client and you and Mr. Yousry had 22 gone through this list, the list that we are going to get to in 23 a minute, did you, as his lawyer, believe everything he told 24 you had happened to him? 25 A. No. As a factual matter I didn't believe everything. But SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7941 4ASMSAT4 Stewart - direct 1 what I believed was that in his own mind these were concrete 2 issues that he believed. And so for that matter I, too, had to 3 evaluate how to use them with regard to bringing up a 4 conditions lawsuit. 5 For example, there were experts on what sensory 6 deprivation or indeed isolation do to people psychologically. 7 While I had questions as to whether there was indeed a bird in 8 his toilet that had been put there by the guards, I knew that 9 it was -- it might be important to a psychologist to evaluate 10 that and try to understand where that came from and why he 11 believed. 12 Was this as a result of being deprived of sound? Was 13 this as a result of being -- living in this isolation as he 14 was? 15 So for all those reasons, even though they weren't in 16 and of themselves all believable or did write facts, they were 17 important to get an understanding of his state of mind at this 18 point and to understand the conditions under which he believed 19 he was being -- 20 Q. Did you at that time believe that a lawyer had an 21 obligation to check into facts before filing a lawsuit? 22 A. Yes, definitely. 23 Q. Now, looking at this transcript, this is page 18. He is 24 talking about a machine and then Mr. Yousry translates: 25 Sometimes I am hooked to antibi -- antibiotic, a reply he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7942 4ASMSAT4 Stewart - direct 1 actually says in English? 2 A. Mr. Tigar, I am not sure I'm with you. 3 Q. Page 18. 4 A. Which exhibit? 5 Q. I have 1721X. 6 A. I am one behind. I'm sorry. Thank you. I'm on the right 7 page. 8 Q. He is listing talking about this machine, the 9 antiintravenous that he is talking about. He says: When it 10 stops, I call them, but they don't answer. Then Mr. Yousry 11 translates. And then he says -- he goes on to say, what number 12 is this, five? Mr. Yousry says: You have now number five. 13 You say to five. He says couple of lines further down at line 14 18: They try to scare me. Mr. Yousry translates: They try to 15 scare me. Ms. Stewart says: Um-hum. 16 Here is page 19. And the English at line 2 Mr. Yousry 17 is translating: Once they put a dead bird in my toilet bowl. 18 And he then relates and continues talking about this situation. 19 Is that what you were referring to when you said that 20 this was something you were going to have to look into? 21 A. Yes, exactly. 22 Q. As you heard your client talking about the sounds that were 23 disturbing him, what effect, as you were evaluating those, did 24 his lack of sight have on your evaluation? 25 A. Well, I felt that the fact that he was -- I guess we can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7943 4ASMSAT4 Stewart - direct 1 coin a term here -- sound deprived, because they had shut the 2 window through which he had originally been able to hear at 3 least the sounds of birds and things, he related in an earlier 4 visit that maybe this became exaggerated. In other words, if 5 you don't hear anything day in and day out except perhaps the 6 chiming of your watch, you may begin to hear sounds that aren't 7 there, or are imagined or sounds that are interpreted. 8 He was sound deprived, but he had an extraordinary 9 sensitivity to sound. If you put the two things together, then 10 almost any sound he did hear he would give an interpretation 11 to, and it could be a wrong interpretation. 12 Q. Did you ever visit, actually go to in the prison the cell 13 where he was held in the sally port anteroom? 14 A. No, never permitted to do that in any prison I ever 15 visited. 16 Q. Where did you see him when you saw him in Rochester? Was 17 it always in that same room? 18 A. When he was at MCC we actually did see him in his cell; 19 that is, he did not go to the visiting room. When we saw him 20 at Rochester he was in what we were told at least is the staff 21 lunch room; that is, the place where the staff would eat lunch 22 in a separate building from the buildings where -- the regular 23 visiting room, which we had been in many, many visits and which 24 on the days we were there they didn't utilize, apparently. 25 Q. Now, did your client discuss someone named Dr. Westrick? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7944 4ASMSAT4 Stewart - direct 1 Not in that transcript at all. Do you remember a mention of 2 Dr. Westrick? 3 A. I remember Westrick. I am not sure it was Dr., though. It 4 might have been a guard. 5 MR. TIGAR: Your Honor, may I show to the witness and 6 to Ms. Stewart and display on the Elmo Government Exhibit 1722X 7 in evidence? 8 THE COURT: Yes. 9 Q. Looking at page 10 of 1722, this is a conversation in 10 Arabic and I am first going to ask you, did Mr. Yousry later 11 discuss with you what your client had said? 12 A. Oh, yes. 13 Q. Looking beginning at line 16, I mean some acts, vulgar 14 acts, besides a woman named Dr. Westrick (phonetic). She is an 15 AW. Yousry writing, hm. Abdel Rahman: She is a psychiatrist. 16 She comes to see me at 6:00 every day. She exposes me to the 17 odor. Yousry: Writing, what is her name, sir? And then your 18 client: Westrick, you see. Mr. Yousry says: Yeah, writing. 19 Turning to page 11, Abdel Rahman: She exposes me to 20 the odor. Then she says: Help you or is it called help help 21 you or for you, or whatever the word is, huh. End of the 22 transcript indicates that help you or help help you was uttered 23 in English. Mr. Yousry: Yes. Client: Meaning is there 24 anything I can help you with. Yousry: Does she say, do you 25 need any help? The client: Ah. Mr. Yousry, can I help you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7945 4ASMSAT4 Stewart - direct 1 Have you in this trial had access to the prison 2 logbooks relating to visits with your client? 3 A. Yes, we have had them displayed, yes. 4 MR. TIGAR: Your Honor, may I exhibit to the jury and 5 place on the Elmo Government Exhibit 331 in evidence? 6 THE COURT: Yes. 7 Q. Ms. Stewart, do you recognize that as one of the logbooks 8 that Ms. Christenson or the prison witnesses identified? 9 A. I do. 10 Q. Looking here, the entry, R. Westrick, Ruth Westrick, and a 11 time, some time between 6:15 and 7? 12 A. Yes, I see that here. 13 Q. And then at 6:00 or 6:10 you see 6/23/2000, we see a Ruth 14 Westrick, Ruth Westrick. And then later on that day, patient 15 using toilet and the other exhibits that are on there. 16 A. Yes. 17 Q. Other entries that are there. 18 A. I think Ms. Westrick was an associate warden. That's at 19 least what the Sheikh said. And he told her AW. While she may 20 also have been a psychologist, which I have no way of knowing 21 about, she was a guard, but in the upper levels of the 22 hierarchy. 23 MR. TIGAR: May I display, your Honor, Government 24 Exhibit 333? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7946 4ASMSAT4 Stewart - direct 1 MR. TIGAR: In evidence. This is another entry from 2 the logbook. Here is 6:10 a.m., eating crackers, and then 3 Westrick, R. Westrick. 4 Q. As you've looked through the prison logs, have you seen 5 other entries of where a person named Ruth Westrick was 6 visiting in the morning? 7 A. Yes. And it was interesting to note that many times they 8 were at 6:00 in the morning, just as he had reported. 9 Q. Ms. Stewart, in a couple of the tapes, the videotapes of 10 the prison visit, there is a picture or video picture of you 11 writing in a notebook? 12 A. Yes. 13 Q. Is it your habit to keep notes in a notebook? 14 A. Yes. 15 MR. TIGAR: May I display, your Honor, Government 2634 16 in evidence? 17 THE COURT: Yes. 18 Q. Ms. Stewart, I'm holding up the notebook. Is that the 19 notebook that you recognized as having used to take notes about 20 your client's case? 21 A. It is. And I just say parenthetically that I decide upon 22 using these elementary school type bound notebooks because 23 otherwise papers in this business of ours, where there is so 24 much paper, it has a tendency to get lost or misfiled. And so 25 there was one way of keeping together at least some of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7947 4ASMSAT4 Stewart - direct 1 material about each client. 2 Q. Now, I don't want to do -- 3 MR. TIGAR: May I display portions of this on the 4 Elmo, your Honor? 5 THE COURT: Yes. 6 Q. After the elementary school schedule we have the first 7 note, 9/98. Then there are notes -- 8 A. That would have meant that I began this book in 9 of '98. 9 Q. Where did you keep it? 10 A. It was kept in probably that same wooden box that was on 11 the floor in my room or in '98, I don't think we were at 351 12 Broadway. I think we were on Warren Street. It may have been 13 kept in another place, a Redweld. It could be kept just among 14 the materials we had for the Sheikh. 15 Q. And did you continue to use it over a period of time? 16 A. Yes. 17 Q. Is there anything here that says -- that let's you know 18 what the last time was, last meeting with your client that you 19 used this notebook? 20 A. Well, the last entry seems to begin 7/14/01, which would be 21 the very visit that we are talking about. I would say that was 22 the last notation made in the notebook. 23 Q. Let me start and ask you about some of these entries. You 24 say here: LS report and then Nasser. Was there something you 25 were reporting to your client? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7948 4ASMSAT4 Stewart - direct 1 A. Yes. And at one point in Nasser Ahmed's case, he went on a 2 hunger strike and became so weakened that he had to be moved to 3 a hospital, Methodist Hospital in Brooklyn. It wasn't 4 Methodist. A hospital in Brooklyn. We were asking the Sheikh 5 for his advice as a religious leader and scholar, whether this 6 was a permissible thing, a hunger strike for Nasser to be 7 doing. It wasn't our question. It was a question of Nasser. 8 And I'm blank about the prayer. 9 Q. Let me ask you, the jurors will have this if they want to 10 have it, but would you leaf through, please, and tell us, are 11 there references in here to phone calls? Can you just leaf 12 through, take your time, and tell me whether or not there are 13 what you would call many or regular references to telephone 14 calls? 15 A. I think, first, there is a reference to the SAMs themselves 16 about how he never signs them. They read them to him in 17 English. Then there is a note on that same first page on 9/98 18 about getting a hold of the BOP Office of General Counsel to 19 register some of the complaints that we have of the way he is 20 being treated. There is a note about calling Roy Nanovic, the 21 general counsel of the Bureau of Prisons. 22 On the next page we talk about how he has gone three 23 months without calling his family. First, the interpreter was 24 sick. Then there was apparently -- the interpreter was sick 25 and not at the office for three months. And that they would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7949 4ASMSAT4 Stewart - direct 1 bring the phone to him and then not be able to get through to 2 Egypt. And he wanted us to see if we could do something about 3 that. There is a lot of reference to telephone calls because 4 it was an ongoing problem having someone be available twice a 5 week in the morning to take the calls, to spend an hour or so 6 with him. 7 Lawyers' schedules do not work around that very well. 8 It is a time of the day when most lawyers are busy. They are 9 in court. They are not available in their offices necessarily. 10 There is all sorts of phone calls on time, suggested 11 alternatives to cancel all calls except when he asks for them. 12 He talks about one of the guards, the same Julie Miller that is 13 mentioned in one of the tapes. And if he -- he even goes so 14 far to say if you guarantee me the Tuesday calls, I'll give up 15 the Friday calls. 16 On the March 1, '99 call, he tells us that he did make 17 a phone call finally to his family. He talks again about the 18 SAM regulations, not signing them. 19 Q. Let me stop you for a minute because I think I'd like to 20 summarize this. Did he have access to a radio or television 21 where he would listen to broadcast in his own language? 22 MR. DEMBER: Objection, your Honor. 23 THE COURT: Sustained. 24 Q. To your knowledge, did you discuss with your client whether 25 or not he would have access to such a regular television? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7950 4ASMSAT4 Stewart - direct 1 A. I actually urged him to whatever radio he could get, 2 whatever stations he could get. We had tried to get permission 3 to have a short wave radio so we could get Arabic stations from 4 Canada at least. That was denied. I urged him to get a radio 5 that would pick up American stations for the purpose of 6 learning to speak English. It was possible that he could learn 7 by in some ways listening to the radio. He got a radio. It 8 broke. He asked for it to be replaced. It was never replaced. 9 Somewhere in these many months of visits, many different 10 visits, I should say, not months of visits, I'm sure that's 11 repeated, that the radio was just not available no matter how 12 many times he asked for it or offered to buy it from the 13 commissary. 14 Q. By leafing through this book, would one find notes of 15 events that would track, as you have now seen them, the 16 transcripts of the visits that were recorded? 17 A. Yes. I think there are. I think we only had two visits 18 recorded, and the only one -- I don't think there are any notes 19 from the May visit. 20 Q. The May 2000? 21 A. The May 2000 visit. And we come right back into the -- at 22 the end of the book the July 2001 visit. 23 MR. TIGAR: May I have just a moment, your Honor? 24 THE COURT: Yes. 25 MR. TIGAR: Your Honor, may I state an oral SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7951 4ASMSAT4 Stewart - direct 1 stipulation, please? 2 THE COURT: Yes. 3 MR. TIGAR: It is agreed between the parties that 4 LS-308X is a redacted version of LS308, a memo of 5 Ms. Stewart's. 6 THE COURT: All right. 7 MR. TIGAR: Your Honor, we offer LS-308X. 8 MR. DEMBER: No objection, your Honor. 9 THE COURT: LS-308X received in evidence. 10 (Defendant's Exhibit LS-308X received in evidence) 11 Q. Ms. Stewart, after you got back to your office from the 12 July 2001 prison visit, did you write a memorandum about your 13 plans? 14 A. I did write such a memorandum, yes. 15 MR. TIGAR: Your Honor, may I display 308X? 16 THE COURT: Yes. 17 Q. Is this the memorandum or a redacted version of the 18 memorandum? 19 A. That is a redacted version of the memorandum, yes is. 20 Q. Lynne F. Stewart, attorney at law and your address. 21 Memorandum to Abdel Rahman team from Lynne Stewart, absolutely 22 privileged and confidential, July 30, 2001. 23 My visit to the Sheikh was uneventful except that I 24 have a grave concern for his health, especially the 25 complications of diabetes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7952 4ASMSAT4 Stewart - direct 1 In I event, I am concerned that the conditions of his 2 foot and lack of exercise combined with the diet will be 3 bringing us unhappy news in the very near future. 4 Then on page 2: My outlook on the suit is that we may 5 be able to get them to lighten up on the family calls 6 (frequency and which family members) address the special needs 7 imposed by his disability and permit his religious observance. 8 Ms. Stewart, did you ever actually file a suit with 9 respect to his conditions? 10 A. No, we never did. 11 Q. Why did you decide not to do that? 12 A. Well, this was the end of July 2001. I think I said in 13 that visit that I would work on it during August trying to 14 round up a lawyer. They should also work on finding the 15 funding which, as far as I knew, never ever did come through. 16 And then in early September, of course, that was 9/11, 2001, 17 and it was certainly -- if other times had not been favorable, 18 this made it virtually impossible, we thought, to be able to be 19 heard on these issues in any manner that would deal adequately 20 with them. 21 MR. TIGAR: Your Honor, may I request a brief recess 22 at this time? I will assemble my notes. I think we are about 23 done. 24 THE COURT: Ladies and gentlemen, we will take 10 25 minutes. Please, please, remember my continuing instructions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7953 4ASMSAT4 Stewart - direct 1 not to talk about this case at all. Always remember to keep an 2 open mind until you have heard all of the evidence and I have 3 instructed you on the law. See you shortly. 4 All rise, please, and please follow Mr. Fletcher to 5 the jury room. 6 (Jury not present) 7 THE COURT: See you shortly. 8 (Recess) 9 (Pages 7954 and 7955 sealed by order of the Court) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7956 4ASMSAT4 Stewart - direct 1 (In open court; jury present) 2 THE COURT: Ladies and gentlemen, we're going to break 3 for the day now. It's a scheduling issue, and as I've told 4 you, I always take responsibility for all scheduling issues. 5 And so I just want to tell you that there's nothing about this 6 that affects anything you have to consider. 7 And I also want to tell you that there's nothing about 8 this that affects the schedule that I gave you at the beginning 9 of the day. We're still on schedule. So, with that, you have 10 a little extra time today. And since we're breaking for the 11 weekend, I want to emphasize for you with all of the force that 12 my words can convey, and I give these instructions with 13 increasing vigor as the case goes on, please, please, do not 14 talk about this case at all, among yourselves or with anyone 15 else when you go home over the weekend. 16 Please, don't look at, listen to, read anything to do 17 with the case. If you should see or hear something 18 inadvertently about the case, simply turn away. All of you, 19 ladies and gentlemen, are in the best position to see and hear 20 everything that is possibly relevant to your decision in this 21 case. So, don't look at or listen to anything else. If you 22 should see or hear something inadvertently, simply turn away. 23 And finally, please, always remember to keep an open 24 mind until you've heard all of the evidence, I have instructed 25 you on the law and you've gone to the jury room to begin your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7957 4ASMSAT4 Stewart - direct 1 deliberations. Fairness and justice to the parties requires 2 that you do that. 3 With that, have a very, very good weekend, and I look 4 forward to seeing you on Monday morning at 9:30. 5 (Jury excused) 6 THE COURT: Have a good weekend. I will see you at 7 9:00 on Monday. 8 (Adjourned to Monday, November 1, 2004, at 9:00) 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 7958 1 INDEX OF EXAMINATION 2 Examination of: Page 3 LYNNE STEWART 7875 4 Direct By Mr. Tigar . . . . . . . . . . . . 7882 5 DEFENDANT EXHIBITS 6 Exhibit No. Received 7 LS806S . . . . . . . . . . . . . . . . . 7876 8 LS801CD and LS805CD . . . . . . . . . . . 7881 9 701T and 702X . . . . . . . . . . . . . . 7881 10 LS-308X . . . . . . . . . . . . . . . . . 7951 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300