8569 4BA5SAT1 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 November 10, 2004 8 8:58 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 (Page 8570 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8571 4BA5SAT1 1 (In open court) 2 THE COURT: The marshal advised that the jury has 3 arrived. 4 I tried to dispose of issues by fax last night, faxed 5 orders, so that people would know in advance of today where 6 things were. 7 Is there anything to be raised with me? 8 MR. DEMBER: Your Honor, just with respect to your 9 ruling regarding the interview of Ms. Stewart by -- 10 MS. SHELLOW-LAVINE: We can't hear you at all. 11 MR. DEMBER: Sorry. 12 Your Honor, with respect to the ruling that you made 13 last night with respect to the interview tape of Ms. Stewart by 14 Ms. Van Susteren, we are going to comply, obviously with your 15 order in terms of redacting the tape. I doubt we will be able 16 to have that completed before the completion of my 17 cross-examination. 18 It is our intention at this point, your Honor, to 19 merely move the recording as redacted, as it will be, into 20 evidence. We can do that, certainly, before the jury. And 21 then we will deal with it later in the case rather than to ask 22 your Honor to hold the proceedings or to delay continuing with 23 the examinations until that's done. 24 It may take some time, frankly, because of the amount 25 of work that needs to be done on the tape in order to make it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8572 4BA5SAT1 1 compliant with your order. 2 So, that's our intention. I just wanted your Honor to 3 know that and obviously the defense to know it as well. 4 MR. TIGAR: Your Honor, I would not be in a position 5 to react to an offer, in evidence, of an item that I have not 6 seen. And I respectfully request that the Court not rule on 7 the admissibility of an item that the Court has not seen. 8 THE COURT: True. But if the tape complies with my 9 order, I would intend to rule in accordance with the order that 10 the tape is admissible. And certainly the parties can look and 11 see if the tape complies with my order. 12 I will accept your suggestion that I can't rule on it 13 until we all see it, but that's what I would intend to do. 14 MR. DEMBER: Your Honor, because of the amount of 15 technical work that would need to be done to the recording in 16 order to make it compliant with your order, I simply don't want 17 to lose the opportunity to offer it into evidence and I just 18 don't think it is practical to delay this trial and the -- you 19 know, the questioning of witnesses because of the fact that 20 just, mechanically, it will take some time to adopt the tape to 21 your Honor's order. 22 And so, my only concern, frankly, is not losing that 23 opportunity to offer it into evidence. Whether I do it on the 24 record conditionally now or, and am permitted by your Honor to 25 do it once all the parties have seen the redactions to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8573 4BA5SAT1 1 recording as well as your Honor and determined that it is 2 consistent with your Honor's ruling; as long as I retain that 3 right and we retain that right to be able to do that, then I 4 have no problem with not offering it at this very moment or 5 today. 6 That's our only concern. 7 MR. TIGAR: I understand that the government may 8 eventually offer it and that if it complies with the Court's 9 order, it comes in. I understand that part. 10 I will say that we had, given the fact that the 11 government had opened this up, we had prepared a redacted 12 transcript of the interview in accordance with your Honor's 13 order. And in redirect examination I intend to go through that 14 redacted transcript in its entirety with Ms. Stewart in order 15 that she is afforded the opportunity to explain or deny the 16 prior inconsistent statements in accordance with Rule 613B. 17 MR. DEMBER: Your Honor, I too have a redacted 18 transcript consistent with your order from last night. I 19 certainly have no objection to any of that questioning 20 whatsoever and will not object to such question. There is 21 nothing wrong with that. So, if that's the only concern there 22 shouldn't be an issue here. 23 THE COURT: All right. Well, then the parties can, at 24 the very least, at an appropriate time, offer the tape if it 25 were -- I don't know when it will be available but it can go in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8574 4BA5SAT1 1 as part of the government's rebuttal case. 2 MR. DEMBER: Exactly, your Honor. 3 Just one clarification. I heard Mr. Tigar mention 4 about he prepared a transcript. Obviously this is an interview 5 in English. I assume he is not intending to offer the 6 transcript because we certainly would object to that. Or 7 display it to the jury for that matter. 8 THE COURT: I assume the transcript would be used to 9 question whether the witness was also asked these questions and 10 gave these answers? 11 MR. TIGAR: Yes, your Honor. 12 I intend to read the transcript. That's what we are 13 going to do. We are going to go back and forth -- And were you 14 asked this question and gave this answer? 15 At the time the recording is offered we will offer our 16 transcript as an aid to the jury. 17 THE COURT: I assume that the transcript that you have 18 is the same as transcript that the government has. 19 MR. TIGAR: It was furnished to us by the government, 20 your Honor. 21 MR. DEMBER: Your Honor, the new transcript, which I 22 prepared this morning, consistent with your order, certainly 23 will be available when we offer it, most likely as your Honor 24 suggested or indicated, in the rebuttal case. And we may, very 25 well, may display it while the recording is played for the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8575 4BA5SAT1 1 at that time. 2 My only point is that at this point in time, if 3 Mr. Tigar wishes to question Ms. Stewart about the other parts 4 of that interview, he shouldn't be permitted to do it by 5 displaying that transcript. 6 I didn't display the transcript yesterday when I 7 questioned Ms. Stewart. If it's a document that he needs to 8 refresh her recollection on, with, in order to assist her in 9 answering his questions, that's perfectly fine. But that 10 doesn't mean it gets displayed to the jury. 11 THE COURT: I agree with that. 12 I mean the transcript -- and I don't think there is 13 disagreement -- the transcript can be an aid to the jury in 14 listening to the tape only if they were listening to the tape. 15 And so long as there is an objection to playing the tape 16 itself, then the transcript is used for questions and answers 17 with the witness. 18 MR. TIGAR: Yes, your Honor. The tape doesn't exist 19 as of now, so there is no question about that. 20 I had intended to ask Ms. Stewart to look at that and 21 actually read out from the transcript the past recollection 22 recorded. That's the procedure I had intended to follow. 23 If that's not permitted, then I will ask it in the 24 form of, Do you recall? And so on. 25 MR. DEMBER: Your Honor, we don't believe that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8576 4BA5SAT1 1 transcript prepared by the government and provided to the 2 defense is a past recollection recorded by Ms. Stewart. So to 3 allow her to read off of it would not be appropriate under that 4 exception to, essentially, the rule. 5 Your Honor, just so it is clear, I have no objection 6 to Mr. Tigar doing what I did yesterday which is saying, or 7 questioning her by saying did you, were you asked this question 8 during the interview and did you give this answer, just as I 9 did with Ms. Stewart yesterday. I have no objection if he does 10 the same thing with Ms. Stewart this morning when he questions 11 her about it. 12 THE COURT: And I assume that if you have further 13 questions about that, or if Mr. Tigar had further questions 14 about that, either side could give Ms. Stewart the transcript 15 and ask, were you asked this question and what did you say? 16 Does the document refresh your recollection as to what you said 17 as? 18 And then there would be an answer. Probably not as 19 precise as in the transcript, but probably similar. 20 MR. DEMBER: Right, your Honor. 21 THE COURT: To the best of the witness' current 22 recollection refreshed; a subject eventually the jury will have 23 the tape to listen to, so. 24 MR. DEMBER: Your Honor, I thought my offer was more 25 generous. I wouldn't object if Mr. Tigar does what I did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8577 4BA5SAT1 1 yesterday, read Ms. Stewart the question and ask if in fact she 2 was asked the question and gave that answer. 3 So, obviously they can do it either way but she 4 shouldn't be reading off of a document that's not in evidence. 5 That's my only point. 6 MR. TIGAR: My position, your Honor, was that this is 7 a memorandum or record concerning a matter about which the 8 witness once had knowledge and therefore the memorandum or 9 record may be read into evidence. The rule doesn't say who 10 gets to read it. That's the question. 11 And I don't want to trespass on your Honor's ruling so 12 I would like to be clear. It is our request that Ms. Stewart 13 be able to read it because I think that's what the rule 14 permits. 15 But if your Honor doesn't see it that way, obviously 16 we won't even start down that road. 17 THE COURT: It doesn't -- the transcript made by the 18 government is not a document that was made or adopted by the 19 witness when the matter was fresh in the witness' recollection, 20 in the witness' memory and to reflect that knowledge correctly. 21 And it is also not shown and it would be difficult to 22 show, I think, in view of the witness' testimony yesterday, 23 that this is a matter that the witness has insufficient 24 recollection to enable the witness to testify fully and 25 accurately in view of the fact that the witness was able to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8578 4BA5SAT1 1 testify fully and accurately yesterday in response to the 2 government's questions: Were you asked this question, did you 3 give this answer? Yes. Yes, that's what I said as. 4 To suggest that it's only the in-between questions 5 that the witness lacks sufficient knowledge to be able to 6 testify that way would be not apparent. 7 MR. TIGAR: Then I will do it the way Mr. Dember did 8 it. 9 THE COURT: All right. 10 MR. TIGAR: Thank you. 11 THE COURT: How long does it take to -- everyone would 12 be advantaged if they actually had the tape. 13 MR. DEMBER: I'm sorry, your Honor? 14 THE COURT: How long does it take. 15 MR. DEMBER: To do? 16 THE COURT: The tape. 17 MR. DEMBER: Your Honor, as you recall from your 18 order, you have also directed us to remove some graphics on the 19 bottom and that is what I believe to be a far more complicated 20 process than simply cutting and cutting through a recording and 21 recording certain sections and not others. 22 Frankly our technical person, who we paged last night 23 and left messages, for just hasn't come in yet, so I'm probably 24 the least technical person in the courtroom. 25 So, I'm concerned about that, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8579 4BA5SAT1 1 And plus there is, your Honor ordered the removal of 2 any images of Sheikh Abdel Rahman. 3 THE COURT: I thought there was only about one? 4 MR. DEMBER: There was only one, your Honor, in the 5 portions that your Honor has ordered that could be played. But 6 the problem with that is from viewing the videotape this 7 morning, again, there is conversation -- there is conversation 8 going on when the image is on the screen. 9 So, it is a question of cutting out -- not just 10 cutting out that section of the recording itself but just 11 cutting out just the photograph without redacting the voices 12 themselves. That, I think, may be more complicated than what 13 we are capable of doing ourselves in our office. It may take 14 some time to do. 15 That's the concern, your Honor. That -- the graphics 16 and that portion. 17 I mean I frankly -- of course it is only one image and 18 the jury has seen photographs of Abdel Rahman in the past. I 19 don't want to -- I'm not asking your Honor to reconsider that 20 part of the decision but it seems hardly prejudicial to have 21 his image which is only up there for a second or two, during 22 the interview, to have that redacted or require that redaction. 23 It is certainly going to cause us, I think, some additional 24 work getting the tape prepared. 25 THE COURT: Do the parties care about that image in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8580 4BA5SAT1 1 view of the dialogue that's going to go in? 2 I feel on the spectrum it's clear to me that the 3 reference to terror in the graphics must be redacted. As to 4 the image of Sheikh Rahman there was an objection. The image 5 is otherwise before the jury. There was an objection to the 6 image. 7 MR. TIGAR: Yes, your Honor, we did object. And if 8 indeed the technical person says that the marginal difficulty 9 of removing that is great once you get started on working on 10 it, then we will be in a position to say, okay, we will give up 11 on that. 12 But without knowing whether this is really the same 13 process, once you set up their machine it's the same process, 14 then we would like to stick where we are. 15 THE COURT: I understand -- I can understand that 16 there would be a process to selecting portions of the tape and 17 that that's probably not a very difficult process. I can 18 understand that there must be another process to redact the 19 bottom portion and that might well be a different process. 20 And then there could be a third process, too, to what 21 to do with the image while the dialogue is still on. If that 22 is a problem the defendants say they don't feel as strongly 23 about that and I have already indicated to you that the Court 24 doesn't either. 25 So, you should let us know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8581 4BA5SAT1 1 MR. DEMBER: I will, your Honor. 2 THE COURT: Anything else? 3 May I talk to the lawyers at side bar? 4 (Pages 8582-8583 SEALED by order of the Court) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8584 4BA5SAT1 1 (In open court) 2 MR. FALLICK: Your Honor, may we go side bar? 3 THE COURT: Sure. 4 (Page 8585 SEALED by order of the Court) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8586 4BA5SAT1 1 (In open court) 2 THE COURT: Are we ready for the jury? 3 MR. TIGAR: Shall Ms. Stewart take the stand? 4 THE COURT: Yes, Ms. Stewart will take the stand. 5 Is everyone ready? 6 OFFICIAL REPORTER: Yes. 7 THE COURT: All right, bring in the jury. 8 The jury is still filling out forms. (Pause) 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8587 4BA5SAT1 1 (Jury present) 2 THE COURT: Good morning, ladies and gentlemen. 3 THE JURY: Good morning. 4 THE COURT: Good to see you all. 5 THE JURY: Thanks. 6 THE COURT: Ms. Stewart is on the stand. 7 Mr. Fletcher? 8 THE DEPUTY CLERK: Ms. Stewart, you are reminded that 9 you are still under oath. 10 THE WITNESS: Yes. 11 LYNNE STEWART, resumed. 12 THE COURT: Mr. Dember, you may proceed. 13 MR. DEMBER: Thank you, your Honor. 14 CROSS EXAMINATION (Continued) 15 BY MR. DEMBER: 16 Q. Good morning, Ms. Stewart. 17 A. Good morning, Mr. Dember. 18 Q. Ms. Stewart, I think we left off yesterday talking about 19 events that preceded your visit with your client, Abdel Rahman, 20 in July of 2001, is that correct? 21 A. Yes. 22 Q. And I think you told us yesterday and on previous days that 23 you had not seen your client before that July 2001 visit since 24 May of 2000, correct? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8588 4BA5SAT1 Stewart - cross 1 Q. And I believe you told us you had not spoken to him before 2 the July 2001 visit since June 27th, 2000? 3 A. I believe that's right. There might have been one call but 4 I'm not remembering it if there was. 5 Q. Over a year's period of time since you have seen him or 6 spoken to him, correct? 7 A. Right. 8 Q. And I believe you told us in your direct testimony that 9 before you went on the visit in July 2001, that you met with 10 Mr. Sattar, which was your usual practice? 11 A. I think so. I don't have a distinct memory of it but I 12 believe we did meet. 13 Q. Well, do you remember that he gave you letters and 14 correspondence that he wished for you to read to Abdel Rahman 15 and get responses to? 16 A. Right. I just don't remember whether we actually met or he 17 dropped it off or how it happened, but we definitely had that 18 when we went into the prison. 19 Q. Is it your recollection that you got those documents from 20 Mr. Sattar? 21 A. That would be -- yes, that would be the source. 22 Q. And when you brought those letters and correspondence into 23 the prison, did you submit any of those letters or 24 correspondence through the procedures that were laid out in the 25 SAMs as to how letters or correspondence may be permitted to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8589 4BA5SAT1 Stewart - cross 1 come into the prison to Abdel Rahman? 2 A. No, for the reasons I explained earlier. 3 Q. And you did, in fact, did you not, have Mr. Yousry read 4 those letters to Abdel Rahman during the course of the two-day 5 visit? 6 A. Yes. 7 Q. And in a number of cases Abdel Rahman in fact did respond 8 to a number of those letters and correspondence? 9 A. Yes. 10 Q. And when you got those responses from Abdel Rahman, did you 11 put those responses through the procedures that were described 12 in the SAMs before you took them out of the prison or 13 disseminated them to the persons they were addressed to? 14 A. No; for the reasons I had given earlier in the testimony. 15 MR. DEMBER: May I display Government Exhibit number 16 12 in evidence, your Honor? 17 THE COURT: Yes. 18 Q. Ms. Stewart, this is, just to remind you, your attorney 19 affirmation. And I turn the page, this is the one that you 20 signed on May 7th, 2001, is that correct? 21 A. That's correct. 22 Q. And this is the one that you signed, I think you told us, 23 provisionally, in order to get the visit with Abdel Rahman to 24 see whether or not he wanted you to continue to -- to sign the 25 affirmation to continue to operate under its requirements? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8590 4BA5SAT1 Stewart - cross 1 A. Yes. Basically for him to review it and to advise me as to 2 what he thought about it. 3 Q. And I asked you yesterday to read from the third paragraph 4 of the affirmation and let me just read the first two sentences 5 on paragraph three. It says: 6 "I further understand that neither I nor any member of 7 my office shall forward any mail received from inmate Abdel 8 Rahman to a third person. Nor shall I use my meetings, 9 correspondence or phone calls with Abdel Rahman to pass 10 messages between third parties (including, but not limited to, 11 the media) and Abdel Rahman." 12 MR. DEMBER: Your Honor, may I display for the jury a 13 section of Government Exhibit 1716X, which is the transcript of 14 a July 13th, 2001 visit, for purposes of questioning the 15 witness? 16 THE COURT: Yes. 17 Q. Ms. Stewart, let me show you. I will display the front 18 page, and that indicates it is the visits in Minnesota on July 19 13th, 2001 -- 20 A. Mr. Dember, would you happen to have a hard copy? When I 21 turn to read I lose my mic. 22 Q. I don't think I have an extra copy with me. 23 A. Let me just rearrange myself. 24 Q. Sure. Take your time. 25 A. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8591 4BA5SAT1 Stewart - cross 1 Q. Now, what I am going to do is direct our attention to page 2 23 of the transcript, just to orient you to the conversation 3 that you had on that day. 4 It indicates, on the bottom of page 23, do you see it, 5 Mr. Yousry is talking in Arabic to Abdel Rahman at that point. 6 Do you see that? 7 A. I do. 8 Q. It reads: These are the ones Lynne brought today; she 9 didn't want to bring Nasser's nor his wife's letters because 10 she didn't know how the inspection outside would go. 11 And then, on the top of the next page it reads: Okay, 12 good. 13 And then Mr. Yousry, then speaking in Arabic says: 14 She brought some, and tomorrow she will bring the others. 15 And Abdel Rahman says: Good. 16 And then Mr. Yousry -- all of this is in Arabic, of 17 course, states: I read these things outside, but I prefer to 18 read to you, sir, your wife's letter in particular. 19 And Abdel Rahman said: Yeah, read it to me. 20 Now, do you recall before going in for the visit or 21 before Mr. Yousry was speaking to Abdel Rahman, about letters 22 that you and Mr. Yousry had some kind of a conversation about 23 which letters to bring into the facility that day? 24 A. Yes. 25 Q. And in fact did you tell Mr. Yousry before entering the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8592 4BA5SAT1 Stewart - cross 1 facility that you didn't want to bring all the letters in? 2 A. Yes, because -- 3 Q. I'm sorry. Continue. 4 A. Because we or I recognized that this was the first visit by 5 any lawyer since the new affirmation, the new SAMs actually had 6 gone into effect and -- actually it was the new affirmation. 7 And, as I say, we traveled 1,500 miles to do these visits and 8 we didn't want anything to interrupt them. 9 So, we thought that perhaps that we would go through 10 and select out -- we had no idea whether there would be a 11 heightened, what I call it security check before we went into 12 the prison, so rather than show up with a sheaf of letters we 13 brought in the ones that we were going to work with that day 14 and the next day brought the next ones. 15 Q. Ms. Stewart, were all the letters you brought in in the 16 Arabic language? 17 A. Yes. 18 Q. None of them were in English? 19 A. That's right. But, you know, guards can speak Arabic. 20 Q. Well, I think you told us before that you were not aware of 21 any guards at the Rochester facility speaking Arabic, is that 22 right? 23 A. Yes. We had a sense that if there was some concerted 24 effort to keep us from going in this could be used as some kind 25 of excuse. I have already explained my position on it but we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8593 4BA5SAT1 Stewart - cross 1 didn't want anything to interfere with that visit. 2 Q. My question was, though, was it not your understanding that 3 there were no guards at the facility that spoke Arabic, wasn't 4 that your understanding? 5 A. Well, yeah. But I mean it could be changed between the 6 year that I had been there before. 7 Q. Well, wasn't one of your complaints and one of the 8 complaints about the conditions of confinement that Mr. Abdel 9 Rahman was under was the fact that he had nobody to speak to in 10 Arabic? 11 A. Yes. But things change. 12 Q. Well, did they change? To your knowledge? 13 A. Not that they told us about. 14 Q. So you had no understanding that they had changed and that 15 there were Bureau of Prisons officials or personnel who spoke 16 Arabic at the time? 17 A. No. 18 Q. Now, Ms. Stewart, let me go down a bit and to page 62 of 19 the same day's transcript; do you remember bringing to the 20 facility a letter from Mr. Sattar on that visit? 21 A. Yes, I believe so. 22 Q. And by the way, did you go through the routine that you 23 described for us previously that Mr. Yousry, on the trip to 24 Minnesota or at some point before you entered the facility, 25 would translate for you all the letters or correspondence that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8594 4BA5SAT1 Stewart - cross 1 were being sent or were given to you, so that you could 2 determine whether or not you should read any or all? 3 A. That's right. 4 Q. Was that done before this particular trip? 5 A. Yes. 6 Q. Were you aware, or do you recall that in Mr. Sattar's 7 letter, there being part of his letter included -- included 8 some, essentially, message from Abdel Rahman's son Mohammed? 9 A. Yes. I believe that was there. 10 Q. And do you recall, I'm referring now to page 62 of the same 11 transcript, and do you recall Mr. Yousry, before the visit, 12 translating Mr. Sattar's letter and part of that letter reading 13 as follows? And I will start on line 20 there. Do you see 14 that where Mr. Yousry is reading to Abdel Rahman? 15 A. Yes. 16 Q. Obviously, in Arabic: "Honorable Sheikh, please be 17 informed that we are 'the weak' to the greatest extent and that 18 we get the power and might from God, His Majesty, then from 19 your holding on to truth. 20 "Honorable Sheikh, please be informed that anything 21 you say, especially if we sense some weakness in it, affects us 22 all and weakens us, particularly among our brothers with whom 23 we say. Maybe you know how -- maybe you know how proud and 24 dignified we felt when you announced your withdrawal of support 25 to the initiative. You are the weak and sick prisoner, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8595 4BA5SAT1 Stewart - cross 1 neither withhold nor suppress a word of truth even when you are 2 behind bars. For this reason, we were greatly astonished when 3 Muntasir wrote in the newspapers that you urge to go forth with 4 the initiative. These words had a severe influence on us. 5 Please explain this to us, your eminence. If any of the 6 brothers, like Muntasir, needs to be told some encouraging 7 words to strengthen him -- then unintelligible -- not have it 8 published in newspapers. Words like these weaken, especially 9 because you, Your Eminence, do not belong to a certain group. 10 All the people look up to you and at what you issue and convey 11 it to each other. He closed the brackets [reading] Mohammed's 12 words end here." 13 Do you remember Mr. Yousry translating that portion of 14 Mr. Sattar's letter to you? 15 A. That is actually the words of the Sheikh's son. 16 Q. Correct; do you remember that being a part of Mr. Sattar's 17 correspondence or letter to, that was given to you? 18 A. Yes. 19 Q. And do you remember Mr. Yousry translating those words for 20 you? 21 A. Yes. 22 Q. Now, during the course of this visit in July, did you 23 discuss the lawsuit that you were planning on bringing, 24 challenging Abdel Rahman's conditions of confinement? 25 A. Yes; at great length. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8596 4BA5SAT1 Stewart - cross 1 Q. At great length. 2 Did you tell Abdel Rahman, during the visit, that you 3 were going to file that lawsuit? 4 A. Yes. 5 Q. Now, do you recall the second day of the visit, that being 6 July 14th, 2001, is that the date? 7 A. I think so, yes. 8 Q. Do you remember having a conversation either that day or 9 the day before, another conversation with Warden Reese? 10 A. Yeah. I think it was after the first visit in the -- we 11 would end the visit at 3:00 which was the time, and then one of 12 the guards would say, The warden would like to see you; and 13 escort me to her office, which was in a different place. 14 Q. Was that the second time you had met Warden Reese? 15 A. I think it was. I think so, yes. When -- I met her when 16 she first got there and I remember this time because there was 17 an issue about tapes involved so, yes, there were two meetings. 18 Q. When you talk about tapes, you are talking about tapes that 19 were sent to Abdel Rahman for him to listen to? 20 A. That's correct, cassette tapes. 21 Q. With Arabic language on it of some kind? 22 A. Yes, religious -- religious stuff. 23 Q. And is it your recollection that Warden Reese is the one 24 who essentially made the request to speak with you? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8597 4BA5SAT1 Stewart - cross 1 Q. You didn't request to speak to her? 2 A. No. 3 Q. And you had a conversation with her that day, is that 4 right? 5 A. I did. 6 Q. Do you recall telling her that you were again planning to 7 file a lawsuit challenging the conditions of confinement on 8 that day? 9 A. I don't know whether I would have said it again. I might 10 have been embarrassed to say it again since I hadn't done it in 11 a whole year, but it's conceivable that I explained to her that 12 that was one of the main reasons we needed our consultation. 13 MR. DEMBER: Your Honor, may I display a few pages 14 from Government Exhibit 1720X, in evidence? 15 THE COURT: Yes. 16 Q. Ms. Stewart, that is the front page cover of that 17 transcript, it indicates it was a recording made on July 14th, 18 2001. 19 A. Yes. 20 Q. Part of the visit, right? 21 And let me show you page 11 of that transcript first. 22 Now you see, let me start on line 3 here, you are talking in 23 English, obviously, and then you stated: She talked about 24 he -- she knows he doesn't take insulin certain times because 25 of the uh, of fasting, as req -- religiously required, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8598 4BA5SAT1 Stewart - cross 1 that -- 2 And Mr. Yousry makes an uh-huh sound. 3 And then you go on and state: He's got to take his -- 4 and that she an -- she speaks to his wife, Aisha (phonetic) 5 about it, if he doesn't take his -- 6 Is the "she" you are referring to Warden Reese? 7 A. Yes. 8 Q. And then a few lines down, line 15, do you see line 15 9 there? You state: And, uh I told her that we are probably 10 going to bring a lawsuit, based on the SAMs. 11 Do you remember saying that to Warden Reese now? 12 A. Yes. 13 Q. And do you remember also saying, in your conversation as 14 you are talking during the visit, this is, you are talking to 15 Mr. Yousry -- at that point is it your intention that he be 16 translating your words to Abdel Rahman? 17 A. Well, I note that it says here that he is writing so 18 obviously he is taking the whole thing, he is writing it in his 19 notebook in order to translate the whole thing to the Sheikh as 20 soon as I finish. 21 Q. Your intention was to inform Sheikh Abdel Rahman about what 22 you were saying, is that right? 23 A. Oh yeah. 24 Q. And then below that you said -- after you said I told 25 her -- I told her that we are probably going to bring a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8599 4BA5SAT1 Stewart - cross 1 lawsuit, based on the SAMs, you state: That, uh, the Sheikh is 2 a world figure, that people have a right to hear his points of 3 view, and that, uh, it's not personal to her, but that we think 4 that it's unconstitutional to hold a person like this. 5 Is that what you told Warden Reese? 6 A. Yes. 7 Q. And do you remember telling her that? 8 A. Yes. 9 Q. Now, do you remember during the course of the second day -- 10 this was the second day of the visit, that in fact you did 11 bring into the facility the letters, Nasser Ahmed's letter to 12 read to Abdel Rahman, is that correct? 13 A. Yes. 14 Q. And you also brought his wife's letter in as well, is that 15 correct? 16 A. That's correct. 17 Q. Do you remember during the course of the visit Abdel Rahman 18 dictating a letter to a number of people, sort of a single 19 letter to a number of people including Mr. Sattar, Mr. Nabil 20 Elmasry, and Nasser Ahmed, and a fourth individual, Osama 21 Al-Tuji? 22 A. Yes, that's the chicken supplier. 23 Q. The chicken salesman? 24 A. Yes. 25 Q. Was it Halal chicken salesman? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8600 4BA5SAT1 Stewart - cross 1 A. That's correct. 2 Q. Do you remember Abdel Rahman dictating letter to four of 3 those people? 4 A. Yes. 5 Q. Now at some point during the visit did you actually -- you 6 asked your client, did you not, whether you should sign the 7 affirmation, right? 8 A. Yes. 9 Q. And that was part of the visit -- the purpose of the visit 10 was to discuss that very issue with him and get his views, is 11 that right? 12 A. That's correct. 13 Q. And he said you should sign the affirmations, right? 14 A. That's right. 15 Q. Because he wanted you to continue to be able to visit him 16 and talk to him, correct? 17 A. Correct. 18 Q. Ms. Stewart, you mentioned in your testimony the last 19 several days, I think, about these letters being part of the, 20 what's called the attorney-client privilege in your view, is 21 that right? The letters that you were bringing in to the 22 facility and that you were bringing out of the facility were 23 what, what you considered to be subject to the, what's called 24 the attorney-client privilege and that's why you didn't put 25 them through the procedures that the SAMs required, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8601 4BA5SAT1 Stewart - cross 1 right? 2 A. Yes. I saw them as being information that my client was 3 entitled to have under the rules of ethics and that certainly 4 when I discussed them with him and talked to him about them or 5 he talked to me about them and told me what he wanted done, 6 then they became privileged as a matter of law. And this is, 7 you know, the rule of ethics is larger than the evidentiary 8 rule, that is, the definition of attorney-client. 9 Q. Well, what rule of ethics are you talking about? 10 A. The duty to preserve client confidences. 11 Q. And the duty to preserve client confidences is based on the 12 attorney-client privilege, is that right? 13 A. No, it's broader than that. 14 In other words, as I understand it -- not to talk like 15 a lawyer, but, the privilege, if there is a third-party 16 involved, it no longer is a privileged matter so that a letter, 17 perhaps, because it's from a third-party, might not be 18 privileged in and of itself. 19 But when it becomes part of the lawyer's investigation 20 and discussion with the client, that part becomes privileged. 21 And the duty to preserve the confidence or the secret, if you 22 will of the client, is part of the rule of ethics. 23 Q. Right. And the duty to preserve your client's confidential 24 communications involves his confidences -- in this case Abdel 25 Rahman -- he shares with you, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8602 4BA5SAT1 Stewart - cross 1 A. Yes, basically. But it's broader than that even, so. 2 It is not just the evidentiary, what could be received 3 as evidence or protected by the privilege, it's broader than 4 that. 5 Q. Well, Ms. Stewart, let me just show you -- 6 May I display, your Honor, part of Government Exhibit 7 11, which is in evidence? 8 THE COURT: Yes. 9 Q. Ms. Stewart, this is the March -- the first page is the 10 March 26, 2001 SAMs, is that right? 11 A. Yes. 12 Q. And this is the one, when you signed the affirmation on May 13 7th, 2001, these are the version of the SAMs that you promised 14 to abide by, is that correct? 15 A. I believe so. 16 MR. DEMBER: May I approach the witness, your Honor? 17 THE COURT: Yes. 18 Q. Ms. Stewart, I'm going to hand you Government Exhibit 19 number 12, in evidence. 20 A. Thank you. 21 Q. That in fact is the, what I just handed you, Exhibit 12, is 22 the attorney affirmation that you signed, is that correct? 23 A. That's right. 24 Q. And that's signed in May of 2001? 25 A. That is right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8603 4BA5SAT1 Stewart - cross 1 Q. And in that affirmation you promise to abide by the March 2 26, 2001 SAM, is that correct? 3 A. Yes. 4 Q. And just on the screen here, I am going to turn the page on 5 this version of the SAMs, to page 6 of the SAMs at the bottom, 6 and that's the section that talks about mail, and it 7 distinguishes legal mail, does it not, and it has what is 8 described in the SAMs as nonlegal mail and how did the SAMs 9 define that. Is that right? 10 A. Yes. 11 Q. Did you ever, at any point, challenge the version of the 12 SAMs that dealt with the mail provision? 13 A. No. 14 Q. Did you ever call up Pat Fitzgerald and discuss with him 15 the mail provision of the SAMs? 16 A. No. 17 Q. Did you ever talk to anybody at the Department of Justice 18 or the Bureau of Prisons about the mail provision of the SAMs? 19 A. No. 20 Q. Now, would you agree with me, Ms. Stewart, that with the 21 following legal definition or definition, essentially, of what 22 the attorney-client privilege is? And I will read it to you. 23 I will read a definition for you, and just tell me if you agree 24 with that, that that's the law or that's your understanding of 25 what the law is, okay? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8604 4BA5SAT1 Stewart - cross 1 A. Sure. 2 Q. That communications are privileged under the 3 attorney-client privilege where legal advice of any kind is 4 sought from a professional legal advisor in his or her capacity 5 as such, are at his or her instant permanent -- excuse me. Let 6 me start again. 7 Your legal advice of any kind is sought from a 8 professional legal advisor in his or her capacity as such but 9 communications relating to that purpose made in confidence by 10 the client are at his or her instance, permanently protected 11 from disclosure by the client or by the legal advisor. 12 Is that your understanding of what the attorney-client 13 privilege is? 14 A. I don't think that's the privilege. 15 Q. Well -- 16 A. Isn't that the -- that seems to go further than the 17 privilege and -- I thought it was the client's right to be able 18 to disclose them if he wanted to. I just thought that the 19 persons to whom they were made, the legal advisor or the legal 20 team, had a duty to protect them. 21 Q. Right. Well, the client can certainly waive the privilege, 22 right? 23 A. Yes. 24 Q. That's the client's right, not the attorney's right? 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8605 4BA5SAT1 Stewart - cross 1 Q. Is that right? 2 A. Yes. 3 Q. So do you agree with that additional part of it? Do you 4 agree that that's the definition of the attorney-client 5 privilege? 6 A. I think it's not quite as broad as I would think it was but 7 as a working definition, yes. 8 MR. DEMBER: May I approach the witness, your Honor? 9 THE COURT: Yes. 10 Q. Ms. Stewart, I'm going to hand you a document that's marked 11 for identification as Government Exhibit 612, okay? Now, I ask 12 you to turn to page 4 of that document and just look at it. In 13 fact, look at the bottom right-hand corner of page 4 of that 14 document. Read it to yourself, if you would. 15 Ms. Stewart, I saw you turn the page, did you get a 16 chance to look at the bottom of page 4? 17 A. I was trying to get the facts upon which that was based 18 because of course, as we know -- 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8606 4BAESAT2 Stewart - cross 1 BY MR. DEMBER: 2 Q. Well, I'm sorry. I think I only asked you, did you read 3 the bottom portion of the right-hand corner portion of page 4 four of that document? 5 A. Yes, but the thousands of opinions that I've read in my 6 career, I know that if you take one snippet out, it doesn't 7 really make much sense without knowing about what that snippet 8 is kind of based on. 9 Q. All I asked you to read is -- I just asked you to read that 10 section. Did you read that section? 11 A. Oh, yes. 12 Q. And is that -- before I ask you anything further, when we 13 lawyers -- withdrawn. 14 The attorney-client privilege is a legal principle, is 15 that correct? 16 A. I guess you could describe it as such. It's a privilege. 17 Q. And it's defined a certain way, correct? 18 A. Yes. 19 Q. And we as lawyers, when we really want to get to understand 20 perhaps some more in-depth what is meant by the privilege, is 21 it not usually what we do is go to the court decisions and 22 review those court decisions to get an understanding or a clear 23 understanding of what the privilege or what legal principle 24 that actually stands for? 25 A. Yes, or consult in this case the canons of ethics. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8607 4BAESAT2 Stewart - cross 1 Q. Well, is the attorney-client privilege defined in the 2 canons of ethics? 3 A. It is defined insofar as it is stated that it is -- that 4 the obligation to the client is broader than the evidentiary 5 privilege. 6 Q. And when we -- in this district where this court exists, we 7 frequently will refer to cases decided by something called the 8 Second Circuit Court of Appeals, is that right? 9 A. Yes. 10 Q. And the Second Circuit Court of Appeals is actually the 11 Court that decided Abdel Rahman's appeal, is that right? 12 A. Yes. 13 Q. And that's the Court that -- whose legal rulings lawyers 14 who practice within this district are required to follow, is 15 that correct? 16 A. I'm not quite sure what you mean by that. 17 Q. Well, is it not the Second Circuit Court of Appeals, when 18 they decide cases, don't those cases become precedent, and are 19 not those decisions made in those cases and legal principles 20 announced in those cases binding on lawyers -- 21 MR. TIGAR: Excuse me, your Honor. I object to this, 22 and I'd like to be heard. 23 THE COURT: All right. Ladies and gentlemen, this is 24 the time for us to take a break. Why don't we take a break. 25 Please, please remember my continuing instructions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8608 4BAESAT2 Stewart - cross 1 Don't talk about the case at all. Please always remember to 2 keep an open mind until you've heard all of the evidence, I've 3 instructed you on the law, you've gone to the jury room to 4 begin your deliberations. All right. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8609 4BAESAT2 Stewart - cross 1 (In open court; jury not present) 2 THE COURT: All right. 3 MR. TIGAR: Your Honor, I have no difficulty with the 4 idea that counsel will have a dialogue with Ms. Stewart about 5 what she thought the law was. We started and he's on his way, 6 provided she's given a fair opportunity to respond to 7 questions. 8 But what he just -- counsel just said was, well, is it 9 not the Second Circuit Court of Appeals, when they decide 10 cases, don't those cases become precedent, and are not those 11 decisions made in those cases and legal principles announced in 12 those cases binding on lawyers? 13 That's what he said. And they're not. The Court has 14 instructed the jury that the Abdel Rahman case -- which counsel 15 just put in a question just before this one, didn't they decide 16 the Abdel Rahman case, isn't that binding on lawyers? -- your 17 Honor has told the jury that it's not binding on anybody that's 18 not a party to it. And so while we have no objection to the 19 discussion of principles, that statement is misleading. And it 20 is contrary to what the Court has told the jury and is 21 susceptible of being misinterpreted. 22 If Mr. -- as I say, if he wants to ask Ms. Stewart how 23 she thinks about the privilege and the ethical considerations, 24 they've embarked on that. But I object to that question, and I 25 ask the jury -- it be stricken, that the jury be instructed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8610 4BAESAT2 Stewart - cross 1 that, in fact, that is not the correct statement. 2 THE COURT: I'm sorry? 3 MR. TIGAR: I ask that the question be stricken and 4 that the jury be instructed that counsel's statement is simply 5 not correct; that those decisions made are not binding on 6 lawyers. The interpretation of precedent is something about 7 which reasonable people can disagree as they read cases. But 8 that statement carries a particular capacity to mislead. 9 THE COURT: I'm prepared to sustain the objection to 10 the last question. Objection is sustained, question is 11 stricken. Jury is instructed to disregard. 12 Examination can continue. 13 MR. DEMBER: Your Honor, I simply will propose -- may 14 I propose a question to be asked? Might as well, if there's 15 objections to it, discuss it now before I leave this line of 16 questioning. 17 And the question I propose to ask is Ms. Stewart's 18 understanding of whether it's the province of the judiciary to 19 say what the law is. That's, we believe, a perfectly 20 appropriate question. I don't see the objection to it, but 21 that's a question that we propose to ask. 22 MR. TIGAR: Well, Ms. Stewart can certainly state her 23 understanding. It is not the sole province of the judiciary to 24 state what the law is. And the New York ethical considerations 25 are quite clear that it is emphatically the province of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8611 4BAESAT2 Stewart - cross 1 lawyers to advise clients about the applicability of the law. 2 But we'll see what the answers are. 3 THE COURT: Yeah, there is no objection to that 4 question? 5 MR. TIGAR: Provided Ms. Stewart gets an opportunity 6 to answer it. 7 THE COURT: Yes. I assume that when the question is 8 asked, that Mr. Dember will pause for the answer. 9 MR. DEMBER: Your Honor, that is my usual practice. 10 And occasionally I interrupt, but it's not intentional. And 11 I'll make a point of waiting for the answer when I pose the 12 question. 13 THE COURT: All right. Let me talk to the lawyers at 14 the side bar. 15 (Page 8612 sealed by order of the Court) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8613 4BAESAT2 Stewart - cross 1 (In open court; jury present) 2 THE COURT: All right. When we broke, there was a 3 question. There has been an objection to the question. The 4 objection is sustained, so the last question is stricken and 5 the jury is instructed to disregard it. 6 And Ms. Stewart is on the stand. Mr. Fletcher? 7 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 8 are still under oath. 9 THE WITNESS: Yes. 10 THE COURT: All right. Mr. Dember, you may proceed. 11 MR. DEMBER: Thank you, your Honor. 12 BY MR. DEMBER: 13 Q. Ms. Stewart, would you agree with the proposition that it's 14 the province of the judiciary or the courts in our country to 15 say what the law is? 16 A. I think that the judiciary -- to my understanding, there 17 are cases presented by litigants, by people who need a 18 resolution of a legal issue, and the courts ultimately decide 19 those issues. However, there is reserve to the lawyers under 20 the way we operate, the system operates, including the rules of 21 ethics, a certain decision-making with regard to whether to 22 bring a case, whether it's frivolous or not, whether a good 23 faith belief makes one able to bring a case, even though it may 24 not be the law at that moment. Certainly we can think of in 25 the history of this country the laws regarding Jim Crowe and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8614 4BAESAT2 Stewart - cross 1 such as that. Those were not the law at the time but by 2 bringing cases, a lot of that got overturned. 3 So, yes, the judiciary pronounces the law, but 4 actually the law is made by bringing cases and presenting 5 facts. And we have a certain obligation as lawyers -- I know 6 you know this -- that -- to broaden the law, to make it grow, 7 to make it stay current with what's current in our lives and in 8 our everyday -- our everyday life, I guess I would say. 9 Q. Would you agree with me that as lawyers we don't pronounce 10 what the law is? That's what the courts do? 11 A. No, but we make decisions. You know, it's interesting that 12 the -- more than interestingly, ethical rules say that there 13 are not hard-line rules here to govern everything a lawyer must 14 do, and that you have to interpret the ethical rules in an 15 autonomous way and decide based on your obligations to the 16 client and also make -- if there's an issue as to whether it 17 goes in favor of the client or the other way, that all things 18 should be resolved in favor of the client. 19 Q. Ms. Stewart, I'm simply asking you, is it not the job of 20 the courts to determine what the law is? 21 A. Yes, in the case or controversy before it, yes, absolutely. 22 Q. And, in fact, the definition I read before to you about 23 what constitutes the attorney-client privilege was a definition 24 announced by the Court of Appeals that covers this district, is 25 that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8615 4BAESAT2 Stewart - cross 1 A. It was, but I think it dealt with corporate rather than 2 personal. And I think it also is bound pretty much by the 3 facts having to do with the union and overseeing of a union, 4 rather than saying, well, this is exactly what we're talking 5 about here. The privilege is not rigid, it's flexible, as I 6 see it. 7 Q. Well, isn't it actually -- hasn't the Second Circuit Court 8 of Appeals said that the privilege is to be decided or be 9 applied very narrowly? Has the Second Circuit said that? 10 A. They may be saying that in this one paragraph you asked me 11 to read, but I think that reasonable people can differ on that, 12 and reasonable lawyers can differ on that. And that I 13 certainly -- there's a difference between the corporate 14 privilege and the personal privilege. And I think that also, 15 when I'm talking about the ethics and I say it's wider than 16 just the evidentiary privilege, which is what this case is 17 turning on, I think that's also part of the broader picture of 18 this. 19 Q. But the disciplinary rules are created by whom? 20 A. They are created by the appellate division of the state in 21 which we practice law. 22 Q. And is not the privilege, the attorney-client privilege, 23 based on -- pertains to only communications that relate to the 24 obtaining and the giving of legal advice? Isn't that true? 25 A. Yes, but then I think you have to look at what pertains to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8616 4BAESAT2 Stewart - cross 1 the giving of legal advice. And that is a very broad 2 definition, that the client has the right to know about 3 anything that affects his case, anything. And that is, when we 4 bring letters to the prison and we discuss them, that's part of 5 my outside investigation as his lawyer: What are the people 6 who supported him thinking at this point? 7 Q. So their thoughts are -- 8 A. I'm sorry. 9 Q. I'm sorry, please. I'm sorry. 10 A. Then we discussed them in the prison. That conversation, 11 I'm sure you wouldn't argue, is privileged, because we're 12 talking about matters between attorney and client. Of course 13 we were listened in to, but I'm just saying in the usual course 14 of events, that is a privileged conversation. 15 Q. Well, the mere fact that somebody writes a letter on its 16 own, standing alone, to your client discussing what's happening 17 in the community, standing alone, without any other further 18 discussion, would you agree with me that is not a privileged 19 communication? 20 A. Between my client and that person, you mean? 21 Q. No. A person sending a letter to your client, just 22 discussing their daily life, would that be privileged? If -- 23 not going beyond that, simply a letter written by a person to 24 your client talking about personal matters, would that fall 25 within the attorney-client privilege as you understand it, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8617 4BAESAT2 Stewart - cross 1 without any further discussions as you've talked about here, 2 between you and your client about that letter? 3 A. In other words, I'm completely out of the picture in other 4 words? 5 Q. Correct. 6 A. No, it would not, of course. 7 Q. Now, Ms. Stewart, after the July 2001 visit you continued 8 to sign attorney affirmations, is that correct? 9 A. I think there may have been a couple more. 10 MR. DEMBER: May I approach the witness, your Honor. 11 THE COURT: Yes. 12 Q. Ms. Stewart, I'm going to hand you up two exhibits which 13 have been introduced into evidence as Government Exhibits 14 14 and 17. 15 MR. DEMBER: May I display Exhibit 14, your Honor. 16 THE COURT: Yes. 17 Q. Ms. Stewart, do you have 14 in front of you? 18 A. I do. 19 Q. That's an attorney affirmation you signed, is that right? 20 A. It is. 21 Q. And you signed that after your July 2001 visit, is that 22 right? 23 A. That was signed in October. 24 Q. Let me just turn the page. That's your signature and the 25 date is October 8, 2001, when you signed it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8618 4BAESAT2 Stewart - cross 1 A. That's right. 2 Q. And is this affirmation identical to the one that you 3 signed before your visit in July of 2001? 4 A. I believe so. 5 Q. Why don't you turn to Exhibit 17. 6 MR. DEMBER: May I display 17, your Honor. 7 THE COURT: Yes. 8 Q. Ms. Stewart, this is another attorney affirmation that you 9 signed, is that right? 10 A. That's right. 11 Q. After the July 2001 visit? 12 A. That's correct. 13 Q. Let me turn to the second page. That's an affirmation you 14 signed on January 9, 2002? 15 A. That's the date, yes. 16 Q. Now, Ms. Stewart, after your visit on July -- in July of 17 2001, you never saw your client again, is that right? 18 A. That's correct. 19 Q. You never made another visit before you were charged in 20 this case? 21 A. No. 22 Q. In fact, you never even spoke to him on the phone after 23 that date, did you? 24 A. No. There were some communications difficulties. The 25 phones at my office were out after 9/11 for almost two months, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8619 4BAESAT2 Stewart - cross 1 so all the calls were taken at Mr. Clark's office. 2 Q. And you did not participate in any of those calls, did you? 3 A. No, I did not. 4 Q. So from July of 2001 when you visited him until you were 5 charged in this case, you had no communications with your 6 client, Abdel Rahman, is that correct? 7 A. Not that I remember, no. 8 Q. Now, Ms. Stewart, let me just -- we talked a lot about the 9 lawsuit that you were planning to bring, is that right? 10 A. Yes. 11 Q. And you talked to a number of people about it. You 12 mentioned it to Warden Reese, is that correct? 13 A. Correct. 14 Q. You mentioned it to your client a number of times, there 15 were discussions about that during the various visits, is that 16 right? 17 A. Correct. 18 Q. Did you discuss the lawsuit that you planned to bring in 19 telephone conversations with him whenever you spoke to him? 20 A. We well may have. 21 Q. Now, you were aware of the fact, of course, that back in 22 1997 a lawsuit challenging Abdel Rahman's conditions of 23 confinement were filed, was filed, is that right? 24 A. Yes, by Ramsey Clark in Springfield. 25 Q. And that was filed in the federal courts in Springfield, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8620 4BAESAT2 Stewart - cross 1 Missouri? 2 A. Yes. I'm not sure the court was located there, but at any 3 rate, it was with regard to the prison at Springfield, 4 Missouri. 5 Q. Were you not also listed as an attorney representing Abdel 6 Rahman on that case? 7 A. Yes, but I did not appear and I did not take part in any of 8 the paperwork that enabled him to bring a lawsuit. I may have 9 done some work on exhausting the administrative remedies, but I 10 did not prepare, serve, appear on the actual lawsuit itself. 11 Q. And did you understand that the gist of the lawsuit was to 12 challenge his conditions that included the Special 13 Administrative Measures? 14 A. Yes. 15 Q. And did you understand or did you know that the -- that a 16 federal district court judge in Missouri actually issued a 17 decision in that case? Did you know that? 18 A. My understanding was that it had been stopped, the case had 19 been not adjudicated, that he dismissed it without prejudice. 20 Q. Well, did you ever see a decision in that case? 21 A. No. 22 Q. Did Mr. Clark ever talk to you about a decision that was 23 made in that case? 24 A. No. I thought that what had happened was -- my 25 understanding was that there was a negotiation as a result of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8621 4BAESAT2 Stewart - cross 1 the bringing of the lawsuit and that the government moved him 2 to what was considered a better jail in Rochester, and that the 3 lawsuit could no longer be sustained because he was no longer 4 within the jurisdiction of the Springfield, Missouri, court. 5 And so, therefore, it was dismissed without prejudice. 6 Q. Well, Ms. Stewart, are you telling us that you never saw a 7 decision where the federal district court judge actually dealt 8 with the merits of that case? 9 A. No, I never did. 10 Q. And you're telling us Mr. Clark never told you that a 11 decision had been issued by a federal district court in 12 Missouri dealing with the merits of that case? 13 A. I never knew that until you said it here. 14 Q. Now, Ms. Stewart, after -- let me ask you this: At any 15 point in time did you ever obtain those BP9 forms that you had 16 been required, or your client would have been required through 17 you to fill out in order to exhaust those administrative 18 remedies, the predicate for filing a civil lawsuit? 19 A. Yes, I've seen them. They're supplied by the prison 20 itself. They're part of their stationery, has to be done on 21 their forms. 22 Q. Did you ever fill out those forms in order to start the 23 lawsuit process for your client? Did you ever fill out those 24 forms in 1999? 25 A. No. As I said, I worked with Mr. Clark. We filled them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8622 4BAESAT2 Stewart - cross 1 out together based on what the client had told us and then they 2 were read to him, I believe, over the phone. And he approved 3 them. And then they were sent in with the notation that 4 because of his blindness, he could not do this himself. 5 Q. I'm sorry. I didn't make myself clear. I apologize. 6 Let's go back for a moment. The lawsuit that you said 7 was filed by Mr. Clark, that you really didn't have a great 8 deal of involvement in, was that filed in 1997? 9 A. Yes. 10 Q. And was it your understanding that sometime in 1999 that 11 case was either withdrawn or dismissed or ended in some 12 fashion? 13 A. It was before he went to Springfield, yes. 14 Q. Well, did you mean -- 15 A. I'm sorry. I mean before he went to Rochester, yes. 16 Q. And do you recall him going to Rochester in 1998? 17 A. Yes. 18 Q. And my -- what I meant by my previous question was after he 19 was at Rochester in '98 or 1999 or 2000 or 2001, did you ever 20 fill out those forms, those BP9 forms you told us about? 21 A. No, that never was done. 22 MR. DEMBER: May I approach the witness, your Honor. 23 THE COURT: Yes. 24 Q. Ms. Stewart, I'm going to hand up to you two documents 25 we've marked for identification as Government Exhibit 2616 and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8623 4BAESAT2 Stewart - cross 1 2617. Why don't we start with 2616. Do you recognize the 2 document? 3 A. Yes. 4 Q. Is that a letter that you wrote? 5 A. Yes. 6 Q. And you wrote that letter in July 2001 to Warden Reese? 7 A. Yes. 8 Q. And that in the letter you discuss some matters about some 9 tapes, Koranic tapes, is that correct? 10 A. That's correct. 11 Q. And you also asked the warden at that time to send you the 12 forms that you needed to fill out to exhaust the administrative 13 remedies, is that right? 14 A. That's right. 15 Q. Those would have been the BP9 forms? 16 A. That's right. 17 MR. DEMBER: Your Honor, the government offers 18 Government Exhibit 2616 into evidence. 19 MR. TIGAR: No objection, your Honor. 20 THE COURT: All right. Government Exhibit 2616 21 received in evidence. 22 (Government's Exhibit 2616 received in evidence) 23 MR. DEMBER: May I display it, your Honor. 24 THE COURT: Yes. 25 - - - - - SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8624 4BAESAT2 Stewart - cross 1 BY MR. DEMBER: 2 Q. Ms. Stewart, the letter that we just described is dated 3 July 19, 2001? 4 A. That's right. 5 Q. That's a few days after your visit with Abdel Rahman in 6 July? 7 A. That's correct. 8 Q. And it's in the second paragraph here that you request that 9 the warden send you the forms? 10 A. Yes. 11 Q. Ms. Stewart, why don't we turn to Exhibit 2617. Do you 12 have that before you? 13 A. I do. 14 Q. And do you recognize the exhibit? Why don't you take a 15 look at it. It's a few pages. 16 A. Yes. 17 Q. Do you recognize the document? 18 A. I do. 19 Q. Is that a letter that was sent to you in response to the 20 letter we just talked about? 21 A. It is. 22 Q. And does that piece of correspondence also have attached to 23 it copies of the BP9 forms? 24 A. It does. 25 MR. DEMBER: Your Honor, the government offers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8625 4BAESAT2 Stewart - cross 1 Government Exhibit 2617 into evidence. 2 MR. TIGAR: No objection, your Honor. 3 THE COURT: Government Exhibit 2617 received in 4 evidence. 5 (Government's Exhibit 2617 received in evidence) 6 MR. DEMBER: May I display that for the jury, your 7 Honor. 8 THE COURT: Yes. 9 BY MR. DEMBER: 10 Q. Ms. Stewart, this is a letter in response to your letter 11 which is Government Exhibit 2616, is that right? 12 A. Yes, it is. 13 Q. And basically the writer of the letter is essentially 14 sending you the forms and explaining where the forms have to be 15 filed, is that correct? 16 A. Exactly. 17 Q. Turn to the second page. And this letter was sent by a 18 Mary Benning, who is an attorney advisor at the facility at 19 Rochester? 20 A. I don't think I ever met her but I -- that's her title and 21 that's why she was sending the forms, yeah. 22 Q. She signed the letter, correct? 23 A. Yes. 24 Q. And for the jury's benefit, that's -- it's not very easy to 25 see, but there are forms attached to the letter, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8626 4BAESAT2 Stewart - cross 1 correct? 2 A. There are. 3 Q. These are the BP9 forms? 4 A. They are. 5 Q. And there's a copy of one of them right there. 6 Ms. Stewart, you never filled these forms out, did you? 7 A. No. I knew that they were sent to me in August. I think I 8 had said to the Sheikh we were going to move on this at the end 9 of August after I got back, or during August I would 10 investigate it and we would hopefully be able to move beginning 11 in September. 12 Q. But as I said, you never filled them out, you never filed 13 them with the prisons, is that correct? 14 A. No, we never did that. 15 Q. And these documents were seized from your office during the 16 search in April of 2002, is that right? 17 A. That's right. 18 Q. Ms. Stewart, let me just ask you some very general 19 questions. I think I may have -- we may have touched on this 20 earlier in the examination. I'm getting towards the end. 21 And one of the things I think we talked a little bit 22 about was what happens when an attorney like yourself is 23 representing a client and your client gets charged with a 24 crime. And what's turned over in the process, in the legal 25 process when you go to court, is something we call discovery, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8627 4BAESAT2 Stewart - cross 1 is that right? 2 A. Yes. 3 Q. And that typically happens after a client is formally 4 charged in a case. 5 The government, whether it's a state prosecutor or 6 federal prosecutor, is obligated to provide to you and your 7 client materials that include, for example, essentially the 8 evidence in the case; documents, recordings, other types of 9 physical items that might be introduced against your client, 10 should he or she go to trial, correct? 11 A. It varies. The state is much more -- keeps its secrets 12 more than the federal government does. But, yes, a fair number 13 of documents pertaining to the case necessary to the conducting 14 of a case are turned over. 15 Q. And in a case where there are intercepted recordings -- in 16 other words, a client or another person related to the case is 17 intercepted on recordings -- those recordings would be turned 18 over to you for review, certainly before you go to trial, is 19 that right? 20 A. Yes. 21 Q. And in instances where those recordings would be in a 22 foreign language, you would be provided with copies of 23 translations of those recordings at some point in time as well, 24 is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8628 4BAESAT2 Stewart - cross 1 Q. And that enables you as the defense attorney with your 2 client to review such materials and prepare your case for 3 trial, is that right? 4 A. That's the ostensible purpose, yes, for trial or for plea, 5 depending on the case and the evidence. 6 Q. Now, at some point I think you mentioned a number of times 7 in your testimony that you represented Mr. Ahmed in an 8 immigration court, is that right? 9 A. Nasser Ahmed, yes, I did. 10 Q. And you mentioned there was some secret evidence in that 11 case, is that right? 12 A. When the case began, it was all secret. We knew nothing 13 about what was the evidence against him. 14 Q. Now, that case was -- it was called the immigration court, 15 is that right? 16 A. That's immigration court, yes. 17 Q. It wasn't a criminal case, is that right? 18 A. It was not a criminal case. 19 Q. In criminal cases, in the criminal cases you've represented 20 clients in, there is no -- there can't be used -- you have to 21 be provided with the evidence beforehand -- recordings, 22 documents, exhibits -- so that you can prepare your defense, is 23 that right? 24 A. Yes, unless -- sometimes the government does try and get or 25 gets a protective order for some of the evidence. And also, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8629 4BAESAT2 Stewart - cross 1 Mr. Ahmed's case, of course, he was held in jail. So it had 2 the -- some of the trappings of a criminal case, although it 3 was not a criminal case. 4 Q. And that was the case that you dealt with just simply with 5 a judge alone; you didn't deal with a jury? 6 A. Right. 7 Q. Correct? 8 A. Yes. 9 Q. It wasn't a criminal case with the various protections and 10 requirements of a criminal case, is that right? 11 A. That's correct. 12 Q. Now, I think I've asked you this but let me be sure, 13 because I'm almost done. I think you indicated you reviewed a 14 number of the -- much of the discovery provided in this case, 15 whether it be recordings, transcripts, documents, what have 16 you, is that right? 17 A. Well, there was a lot of it. I reviewed some of it, I hope 18 most of it, yes. 19 Q. And is it fair to say that most of the recordings were in 20 the Arabic language, is that right? 21 A. That's right. 22 Q. So you couldn't really listen to those, could you? 23 A. No. 24 Q. Were you aware of the fact that there were essentially 25 thousands of recordings provided in discovery? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8630 4BAESAT2 Stewart - cross 1 A. I think the number was 90,000 or something like that. 2 MR. DEMBER: Your Honor, may I -- 3 Q. Ms. Stewart, you asked -- I'm sorry. You testified I think 4 towards the end of your testimony on direct about the fact that 5 there was some money that you held for your client, Abdel 6 Rahman, in an attorney's escrow or trust account, is that 7 right? 8 A. That's right. 9 Q. And I think you said something like you held about $70,000 10 of that money, is that right? 11 A. Yes. 12 Q. And where did you get that money from? 13 A. The -- there was a -- an investment that the Sheikh had 14 made in a small business in New Jersey. And the -- he asked if 15 I would collect that debt for him, and we did so. 16 Q. And that was how you got 70,000? 17 A. Yes. 18 Q. And I think you testified that that -- either you provided 19 or Mr. Yousry got approximately $30,000 from that 70,000, is 20 that right? 21 A. I think that's the figure. I'm not positive at this 22 moment, but I think that's the figure. 23 Q. And you said that he distributed some of that, or disbursed 24 some of that to Mr. Sattar, is that right? 25 A. Some of it to Mr. Sattar, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8631 4BAESAT2 Stewart - cross 1 Q. Why did Mr. Yousry get that amount of money? 2 A. Well, he was due to be compensated for the work he had 3 done. He was -- he really did a lot of work, and he was hardly 4 in a financial position to be able to donate at that time. He 5 had also -- once the appeal had been decided, there was no more 6 money from the court to pay him. And so this was the Sheikh's 7 wish, that the money go partially to him. 8 Q. And do you have a sense of when that was? 9 A. When? 10 Q. When the -- well, let me backtrack for a second. 11 Was he given the 30,000 roughly in a lump sum? 12 A. No. It was per'd out, as I remember. 13 Q. Your testimony was it was done to compensate him for his 14 services? 15 A. Partially. The other reason was some of it was used, as I 16 understood it, to be placed in the commissary which we heard so 17 much of on the tapes; that some of it was recycled into the 18 Sheikh's commissary, but the majority was for payment for him. 19 Q. Let me stop you. You mentioned a commissary. Was 20 Mr. Yousry given the responsibility of sending money to Abdel 21 Rahman to pay -- so Abdel Rahman could pay for his commissary? 22 A. No. It happened on occasion, is all I'm saying. And I 23 believe some of that money was used for that purpose when we 24 would get an emergency call, say, that the commissary was 25 depleted or that somebody's check didn't go through or money SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8632 4BAESAT2 Stewart - cross 1 order didn't go through. Some of that money was used for that 2 purpose. 3 Q. Well, do you recall on the government's case, when we read 4 through the transcript of the July 2001 visit, that Mr. Yousry 5 engaged in a conversation with your client, Abdel Rahman, where 6 he -- he sort of insisted upon not being paid for his services? 7 Do you recall that? 8 A. I do. 9 Q. Do you recall when we read through the transcript that 10 Mr. Yousry stated that essentially you and I believe Mr. Sattar 11 put the money in his account? 12 A. I think he said that. I'm not certain of how he said it, 13 but I think that was said, yes. 14 Q. And did he not say during either that recording or some 15 other recordings that Mr. Yousry was the one who started to 16 provide to Abdel Rahman the payments for his commissary 17 account? 18 A. I'm not sure he said it. I think he talked about 19 Mr. Sattar having the baby formula business and that the money 20 was invested in the baby formula business. And then the 21 profits from that business was what Mr. Sattar used to -- 22 commissary, and also for the Sheikh's family in Egypt. And we 23 heard some of those calls, too, about money being requested of 24 Mr. Sattar. 25 Q. Well, do you recall any of the recordings that we've read SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8633 4BAESAT2 Stewart - cross 1 or played for the jury during the course of the trial where it 2 was indicated that Mr. Yousry was now taking responsibility for 3 passing the money into Mr. Abdel Rahman's commissary account so 4 he could make purchases from the prison commissary? 5 A. No. That, I don't recall at all. 6 Q. You indicated in your testimony that you got some money for 7 some incidentals? 8 A. Yes. 9 Q. I think the word you used were some other incidental 10 things. Was that for expenses or -- what was that for? 11 A. Yes, partially to compensate for phone calls over the 12 years, which you as you may know from prisons cost four times 13 what a normal long distance phone call would cost and all -- 14 because, as you heard, they're all collect calls. 15 We also had other expenses, things we had done which 16 I -- I don't know whether I have records of them or not, but 17 the Sheikh insisted that I should be paid this amount, 18 because -- I think it was a couple of thousand dollars, I'm not 19 sure. I don't remember what it was. 20 Q. Did you ever have a conversation with Mr. Yousry or 21 Mr. Sattar or with both of them where it was agreed upon that 22 Mr. Yousry would hold Abdel Rahman's money and transfer money 23 to him whenever he needed it? 24 A. As I said, I don't remember having a conversation where he 25 agreed to transfer it to him whenever he needed it. I do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8634 4BAESAT2 Stewart - cross 1 recall saying that we would transfer the money to Mr. Yousry 2 and he would transfer some of it to Mr. Sattar. That, I 3 recall. 4 MR. DEMBER: Your Honor, may I approach the witness. 5 THE COURT: Yes. 6 A. Mr. Dember, are you looking for 2661, because I think you 7 may have inadvertently supplied that to me. 8 Q. Thank you. 9 Ms. Stewart, do you recognize -- why don't you take a 10 look at what is marked for identification as Government 11 Exhibit 2661. 12 A. Yes. 13 Q. Have you looked through it? 14 A. I have. 15 Q. Do you recognize what the exhibit is? 16 A. I do. 17 Q. Do you recognize the handwriting in the exhibit? 18 A. Yes, it's my handwriting. 19 Q. It's your handwriting? 20 A. Yeah. 21 Q. Is the exhibit -- does it consist of some check ledger 22 entries, and there's also, I think, a cancelled check as part 23 of this exhibit? 24 A. Yes. 25 MR. DEMBER: Your Honor, government offers into SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8635 4BAESAT2 Stewart - cross 1 evidence Exhibit 2661. 2 MR. TIGAR: No objection, your Honor. 3 THE COURT: All right. Government Exhibit 2661 4 received in evidence. 5 (Government's Exhibit 2661 received in evidence) 6 MR. DEMBER: May I display it, your Honor. 7 THE COURT: Yes. 8 MR. DEMBER: First, let me just get the jury oriented. 9 It's Exhibit 2661. Let me turn the first page sideways. 10 BY MR. DEMBER: 11 Q. Ms. Stewart, this is a -- it says it's a transaction 12 register, and it's got a date of 11/16. It indicates it's 13 check number one, then the name appears, Mohammed Yousry, and 14 the amount of the check is $35,000, is that right? 15 A. Yes. 16 Q. Do you know what year that was written in? It says 11/16. 17 Do you know what year that was? 18 A. I think it was probably '99. I'm -- 19 Q. And -- 20 A. Might have been '98, but I'm pretty sure it was '99. 21 Q. It says check number one. Was this from this trust 22 account, the transaction register for the trust account that 23 you had? 24 A. Yes. What happened was my bank had closed a branch, 25 reopened, so that they wanted me to have a new account in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8636 4BAESAT2 Stewart - cross 1 new branch. So we got a supply and we had this transaction 2 register to use until the actual big checkbook arrived in the 3 mail. 4 Q. Let's turn to the second page. The second page -- let's 5 try to zoom here. The second page appears to be -- would have 6 been a cancelled check, is that right? 7 A. I have a second page of the transaction register but -- 8 Q. Well, I skipped a page. Let me see. I think I have a 9 consistent version. 10 Let's go, see if the second page I have is consistent 11 with yours. Is that the second page, Ms. Stewart, that you 12 have? 13 A. I have -- I have -- 14 Q. Look at it. Do you see it on the screen? 15 A. Yes, that is what I have. 16 Q. We're coordinated here. This is another entry in the 17 transaction register? 18 A. It is. 19 Q. And it's -- again, there's a date, 4/16? 20 A. Yes. 21 Q. There's some kind of markings in the next column. It says 22 M. Yousry, and then in parentheses, an O or a zero? 23 A. Yes. 24 Q. And then the figure 10,000, is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8637 4BAESAT2 Stewart - cross 1 Q. The M. Yousry is Mohammed Yousry? 2 A. Yes. 3 Q. I've zoomed, I'm going to go down a little bit so the jury 4 can see what we're seeing. 5 Let's start with the date. Do you know what year 6 April 16th this entry was made for? 7 A. I believe it's 2000. 8 Q. OK. Let me point to the next column. You have some 9 markings there. Can you decipher that for us? 10 A. Next column? 11 Q. On the same page. 12 A. OK. No, I don't know what that is. I know the O, which it 13 looks like I might have tried to write in the margin, referred 14 to Omar, to distinguish it from other accounts that I held in 15 trust and was disbursing money from. 16 Q. OK. When you say "O," you mean the O in parentheses after 17 M. Yousry? 18 A. Yeah, yeah, and the scribble in the front may have also 19 been that. 20 Q. And the $10,000 figure is -- the 10,000 figure is $10,000? 21 A. Yes. 22 Q. Was there a check issued to Mr. Yousry in that amount? 23 A. As far as I remember. 24 Q. Well, let's turn to the next page, which we'll zoom back 25 into this one. That appears to be a cancelled check or a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8638 4BAESAT2 Stewart - cross 1 check, is that right, Ms. Stewart? 2 A. That's correct. 3 Q. And it's payable to Mr. Yousry, and the date is April 16th. 4 Can you tell the date? Is that 2000? 5 A. That is 2000. 6 Q. OK. You signed the check. On the top there it appears 7 that it was cancelled, is that correct, that there's markings 8 on the top? 9 A. Yes. 10 Q. And the check that you signed, OK. Why don't we go to the 11 next page. 12 Is that consistent with your next page of the exhibit, 13 Ms. Stewart? 14 A. Yes, that is the next page. 15 Q. That's an entry there, it says 11/16/99. To Mohammed 16 Yousry. And it says, this check, $35,000, is that right? 17 A. That's right. 18 Q. Is that the checkbook stub? 19 A. Yeah. I think that's the same as the transaction record. 20 I don't know that that's a different -- it is the same date so 21 I'm assuming that's the same $35,000 that was in that first 22 page of the transaction. 23 Q. Sure. Can you show that to the jury -- 24 A. Yeah. I think I just transferred that to be in the 25 official checkbook. That's why I crossed out the number of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8639 4BAESAT2 Stewart - cross 1 check. 2 Q. That's the first page we looked at, and that appears to be 3 the same. 4 And the next page also appears to be a checkbook stub 5 that reflects the April 16, 2000, check for $10,000 to 6 Mr. Yousry, is that right? 7 A. That's correct. 8 Q. Let's go to the next page. The next page is also a -- what 9 appears to be a checkbook stub for a check that was written? 10 A. That's correct. 11 Q. That's a check that was written on 6 -- June 27, 2000? 12 A. That's right. 13 Q. To Mr. Yousry? 14 A. Yes. 15 Q. For $9,000, is that right? 16 A. Yes. 17 Q. Ms. Stewart, that would be a total of $54,000; 35,000, 18 10,000 and the 9,000, that would be a total of $54,000 that was 19 transferred to Mr. Yousry, is that correct? 20 A. Right. 21 Q. And do you know how much of that was for his services 22 rendered as a translator or interpreter? 23 A. I know that some of this money went to Mr. Sattar. I think 24 it probably was in the amount of around maybe 20,000. So the 25 remainder was either for his services and also for him to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8640 4BAESAT2 Stewart - cross 1 supply commissary money or invest in something that might 2 supply commissary money or -- that was my understanding. I'm 3 not really remembering the exact amounts that went for which 4 things. 5 Q. Let me just clarify one thing, if I can. When you 6 testified a few minutes ago about the fact that after the 7 appeal was over -- you were referring to Abdel Rahman's appeal? 8 A. Yes. 9 Q. Mr. Yousry was paid by the court during the appeal process 10 to assist in the appeal with Abdel Rahman? 11 A. He was, but he actually -- the Court of Appeals saw fit to 12 cut his voucher because of the tremendous amount of time he had 13 spent; I guess they didn't accept it. Nothing nefarious about 14 it, but they do that on occasion. And so he actually was 15 uncompensated, even during the appeal. 16 Q. The Court determined what the compensation should be? 17 A. Well, lawyers and paralegals and interpreters fill out a 18 voucher, I think you've seen some of them here, and then 19 they're signed off on. But the Court of Appeals makes a final 20 decision. 21 Q. Now, is it -- when you refer to the fact that Mr. Yousry 22 was being compensated with some of this money we just talked 23 about, that was after he was no longer working on the appeal 24 and being compensated by the government, is that true? 25 A. I think part of it went for what he didn't get compensated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8641 4BAESAT2 Stewart - cross 1 for by the government, but also it was for his weekly 2 attendance on the phone calls and whatever else was asked of 3 him by us as to lawyers. 4 MR. DEMBER: Your Honor, I'm practically done. May I 5 just have a moment to consult? 6 THE COURT: Sure. 7 (Continued on next page) 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 8642 4BA5SAT3 Stewart - cross 1 MR. DEMBER: Your Honor, I have no further questions. 2 THE COURT: All right. 3 MR. TIGAR: Your Honor, may I just have a brief recess 4 to get my papers together for redirect? 5 THE COURT: Yes. We will take a brief recess. 6 Ladies and gentlemen, we are going to take a brief 7 recess. Please, remember my continuing instructions. Please 8 don't talk about this case at all. Please, please don't talk 9 about the case. 10 Please remember to keep an open mind until you have 11 heard all of the evidence, I have instructed you on the law and 12 you have gone to the jury room to begin your deliberations. 13 And if you would just wait a moment? The jury can go 14 into the jury room. Please remember all of my instructions. 15 . 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8643 4BA5SAT3 Stewart - cross 1 (Jury not present) 2 THE COURT: Ms. Stewart can step down. 3 (Witness steps down) 4 THE COURT: Please be seated, all. 5 The government has finished its cross, were there any 6 other examinations before Mr. Tigar's direct? 7 MR. PAUL: We have no questions of Ms. Stewart, your 8 Honor. 9 MR. STERN: We don't either. 10 THE COURT: All right. 11 MR. TIGAR: Your Honor, I listened to the government's 12 last set of inquiries about the finances hoping that there 13 would be some connection to the charges in the case and I find 14 none and I move to strike it. 15 MR. DEMBER: Your Honor, did you ask for a response? 16 THE COURT: Yes. 17 MR. DEMBER: Your Honor, the relevance of that 18 evidence is that Mr. Yousry -- it establishes -- it will go to 19 establishing Mr. Yousry's participation in this relationship as 20 being more than just a translator or interpreter and that his 21 involvement in this conspiracy is more extensive than what he 22 just explains. 23 THE COURT: The application is denied. 24 We will take 10 minutes. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8644 4BA5SAT3 Stewart - cross 1 THE COURT: Please, be seated. 2 MR. TIGAR: Your Honor, while Ms. Stewart was on the 3 stand I set out for the Pacer docket sheet on the Springfield 4 suit and I find that it was indeed, according to Pacer, 5 dismissed without prejudice, which is of course not an 6 adjudication on the merits. And, therefore, I'm puzzled by the 7 question as to whether Ms. Stewart had ever seen some 8 dispositive order by a federal Judge. 9 MR. RUHNKE: Mr. Tigar and I didn't talk during the 10 break. 11 I had just asked the government to produce a copy of 12 whatever it was they were questioning Ms. Stewart on. They 13 apparently don't have one in Court. 14 MR. BARKOW: Actually I think we do. 15 MR. RUHNKE: Actually, now they do have one in Court 16 which strikes me as a little odd. But they've agreed to 17 produce the opinion because it was news to us to that it had 18 been reached, decided on the merits. 19 MR. TIGAR: There is in Pacer one, two -- it's being 20 copied now otherwise I would have it here, two entries -- two 21 Pacer entries above the dismissal without prejudice is a 22 magistrate report recommendation, I know that. 23 MR. BARKOW: Your Honor, I don't know if we have 24 enough copies to distribute but I can assure the Court that 25 there is a written opinion, I have read it, and it addresses SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8645 4BA5SAT3 Stewart - cross 1 all kinds of substantive issues in the written opinion. 2 I don't know if we have enough copies right now, but 3 it's much more extensive than Pacer. 4 MR. TIGAR: May I inquire of Mr. Barkow through the 5 Court is that the magistrate's report recommendation? 6 MR. BARKOW: There is the magistrate's report 7 recommendation and then there is an adoption by the District 8 Court Judge. 9 I don't know if adoption is the right word but there 10 is a dismissal and a reference and incorporation by reference 11 of the magistrate's report and recommendation. 12 MR. TIGAR: Your Honor, that is what is referred to by 13 the line immediately above the dismissal without prejudice. 14 That's not an adjudication on the merits. There is simply no 15 basis to say that there is a Judge's order dismissing the claim 16 because there is not. 17 MR. BARKOW: Your Honor, there is. There is a 18 District Court Judge's order dismissing the claim adopting the 19 Magistrate Judge's findings and Magistrate judge's opinion. 20 MR. TIGAR: Your Honor? 21 THE COURT: Counsel. 22 MR. TIGAR: Regardless of what a District Judge may 23 have done, and -- I now have the docket sheet which I can hand 24 up, if I may -- 25 MR. BARKOW: Your Honor, I have one copy of it here so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8646 4BA5SAT3 Stewart - cross 1 I can pass it or just tell the Court, or I could read it, but 2 it is marked. We are going to make more copies of this, it is 3 marked as Government Exhibit 600. 4 The first two pages of that exhibit is an order and 5 judgment by U.S. District Judge Russell Clark dated March 30th 6 of 1999 and it reads, the last two paragraphs, it is a two-page 7 order: 8 After de novo review of the report and recommendation, 9 and the files and records in this case, it is concluded that 10 the findings of fact, conclusions of law and proposed actions 11 of the Magistrate are correct and should be approved. 12 It is therefore ordered that this complaint be and is 13 hereby dismissed without prejudice. 14 And there is a, in the beginning of the order it 15 refers to the Magistrate Judge's opinion and report and 16 recommendation and the report. The recommendation doesn't have 17 page numbers but it is a rather lengthy report and 18 recommendation, maybe 10, 12 pages, and it's dated March 5 of 19 1999. 20 MR. TIGAR: That is not an adjudication on the merits, 21 your Honor. Nor is it an appealable order. 22 MR. BARKOW: Your Honor, the magistrate's report deals 23 with the merits of the claims and the District Court dismissed 24 the case after approving the Magistrate Judge's report and 25 recommendation after reviewing it de novo. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8647 4BA5SAT3 Stewart - cross 1 THE COURT: The issue, appears to me, to be of no 2 weight. 3 The record, as it stands now is Ms. Stewart understood 4 that the suit was dismissed without prejudice. Ms. Stewart 5 testified, as I recall, that she never saw a decision dealing 6 with the merits of the case for the merits of the SAMs. 7 So, from what I've heard, there may have been an 8 opinion that dealt with the merits of the SAMs. I haven't read 9 the report and recommendation or the adoption by the District 10 Court, but Ms. Stewart says that she was not sent, or she 11 didn't review any of those documents. Her recollection is that 12 the suit was dismissed without prejudice. And she can only 13 testify about what her recollection was and what influenced her 14 recollection. 15 The issue, with respect to the legality or validity of 16 the SAMs is, in any event, not a matter for the jury. 17 So, that's where the matter is. 18 Now there would be -- so that's why I don't attach any 19 weight between the parties at this point, except that there 20 were a good faith basis for the questions. I understand, as I 21 said, what the testimony is at this point. And the witness 22 couldn't testify about documents that she hadn't seen or read 23 or that influenced her state of mind. 24 MR. RUHNKE: Can we have a moment, your Honor? 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8648 4BA5SAT3 Stewart - cross 1 MR. TIGAR: The transcript was: 2 "Q Did Mr. Clark ever talk to you about a decision that was 3 made? You never saw a decision where the Federal District 4 Court actually dealt with the merits of that case? 5 "A No, I never did. 6 "Q You're telling us Mr. Clark never told you that a 7 discussion" -- 8 I mean, the implication is either she's out of the 9 loop, she doesn't know what's going on therefore how could she 10 be acting in good faith. Or that there was this decision that 11 adversely decided the case against her client on the merits and 12 therefore all this talk of another conditions suit is simply a 13 smoke screen. That's the clear implication of the questions, 14 your Honor, otherwise they're not relevant. 15 And that's the misleading impression that's been left 16 with this jury and I respectfully submit that there was no good 17 faith basis for any of that because the decision of the federal 18 judge did not deal with, quote, the merits. 19 The term the merits is a very well understood term, 20 your Honor. And the docket sheet tells us what happened. 21 I'm asking for an instruction, your Honor, that in 22 fact the Court has reviewed the records of its Sister Court and 23 finds that the lawsuit was dismissed without prejudice which 24 means that that did not represent an adjudication on the 25 merits. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8649 4BA5SAT3 Stewart - cross 1 I'm asking the Court to take judicial notice of the 2 records of your Sister Court and instruct the jury as to the 3 meaning of this to end the speculation. 4 MR. BARKOW: Your Honor, the inferences that Mr. Tigar 5 points to are proper inferences and we would offer this into 6 evidence if the jury wants to see this rather than taking 7 judicial notice of this order judgment and report and 8 recommendation. 9 As I said, I only have one copy so I can't distribute 10 them but there is a discussion in here about what the complaint 11 was in the case, what the allegations were. Each one is gone 12 through and rejected. And there was a request for injunctive 13 relief and monetary compensation. Both were denied. 14 So it wasn't just a decision on mere mootness because 15 it wasn't just about injunctive relief, it was a request for 16 money and it was denied. And the order and judgment by the 17 judge reviewed de novo that report and recommendation and 18 adopted, approved the report and recommendation. 19 And so, certainly it goes to state of mind and 20 knowledge of the participants in the suit, if they knew about 21 it, about whether it was appropriate to bring a new suit. It 22 was dismissed without prejudice. 23 But the merits of the claims were addressed. There is 24 a long discussion in here about the merits of the allegations 25 and each one is considered and rejected and that certainly goes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8650 4BA5SAT3 Stewart - cross 1 to state of mind. 2 And if the implication or the inference is that 3 Ms. Stewart was out of the loop, then sobeit, then that's the 4 implication or inference. 5 MR. TIGAR: There you have it, your Honor. They wish 6 to draw, have an inference drawn that is flatly contrary, (A), 7 to the rule that judicial dismissal without prejudice except on 8 the merits except as to procedural matters; (2), that a report 9 and recommendation by a nonArticle III Judge has some weight or 10 meaning that somebody should attach to it; (3), that this 11 decision was, in some sense, binding in any way, which it was 12 not because it wasn't even an appealable order because it 13 wasn't adverse and therefore under the final judgment rule 14 would not have been appealable. 15 And so on. That is it is just a rather difficult set 16 of inferences that are just flatly contrary to what I 17 understand to be the law of judgments. 18 THE COURT: Do you want to take a moment to review the 19 report and recommendation and the Judge's decision and ask 20 whether those should be put into evidence? 21 MR. TIGAR: I would oppose it being put into evidence, 22 your Honor, because they are simply preliminary discussions, 23 one by a nonArticle III judicial officer and the other, however 24 much the parties might have disagreed with what the Judge said, 25 whatever the Judge said, they would be powerless to seek SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8651 4BA5SAT3 Stewart - cross 1 further review in the Eighth Circuit from it. 2 So, I'm aware of what these intermediate decisions 3 are, that's why we went and got the Pacer result. 4 THE COURT: And was there a discussion of the validity 5 of the SAMs in the report and recommendation? 6 MR. TIGAR: I don't recall whether there was or not, 7 your Honor. 8 MR. BARKOW: I don't think so, your Honor. I'm not 9 intimately familiar with it but there was a discussion about 10 denials of constitutional rights to Abdel Rahman because he was 11 denied his free exercise rights, equal process rights, access 12 to legal counsel, adequate medical care and those sorts of 13 constitutional claims. 14 And the defendants raise the defense of qualified 15 immunity and so in the context of that the Court h