7339 4APMSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 October 25, 2004 8 9:15 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 STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 (Pages 7340-7387 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7388 4APMSAT1 1 (In open court; jury present) 2 THE COURT: Good morning again, ladies and gentlemen. 3 It is as always good to see you all. 4 Ladies and gentlemen, you may have read, heard or seen 5 press reports relating to bombings in Egypt that took place on 6 October 7th. That was the reason that I spoke to you 7 individually. The bombings are obviously not part of this 8 case, and you will hear no evidence in this case about those 9 bombings. None of the defendants is accused of having anything 10 to do with those bombings. 11 I want to take this opportunity to remind you that you 12 took an oath at the start of this trial to decide this case 13 involving Mr. Sattar, Ms. Stewart and Mr. Yousry based only on 14 the evidence presented in this courtroom. Although publicity 15 regarding the October 7th incident has largely died down, I'm 16 going to instruct you to avoid any publicity or discussions 17 regarding the October 7 bombings. 18 Similarly, the reasons for our adjournment since the 19 close of the government's case has nothing to do with what you 20 have to decide in this case. You should not speculate about it 21 and you should not discuss it with your fellow jurors. It is 22 my responsibility to determine the trial schedule and it must 23 not affect any of your determinations in this case in any way. 24 Our obligation under the law -- and by "our" I mean 25 your obligations, my obligation and the obligation of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7389 4apesat2 1 lawyers -- is to try this case according to the law. All of 2 the parties here, the government and each of the three 3 individuals on trial, have a right to have this case decided 4 based only on the evidence that is presented in this courtroom. 5 At this juncture in the case, you have only heard from one 6 side: The government. As the case proceeds, it remains 7 important that you continue to follow my instructions. 8 Let me emphasize again my continuing instructions: 9 Please, please, do not talk about this case at all among 10 yourselves or with anyone when you go home. Please remember, 11 don't look at or listen to anything to do with this case. If 12 for some reason you should see or hear something inadvertently, 13 simply turn away. As I've said, you're here, you hear all of 14 the evidence. There is nothing else that can affect what you 15 do in this case. Please, don't look at or listen to anything 16 to do with the case. 17 Always remember to keep an open mind, as I've told 18 you, until you have heard all of the evidence, I have 19 instructed you on the law and you've gone to the jury room to 20 begin your deliberations. Fairness and justice to the parties 21 requires that you do that. 22 Ladies and gentlemen, when we adjourned, we had 23 reached that point in the trial where the government had 24 rested. And as I explained, that concluded the portion of the 25 trial in which the government was given the opportunity to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7390 4apesat2 1 present evidence and the defendants were given the opportunity 2 to cross-examine. 3 We now turn to the portion of the trial in which the 4 defendants have the opportunity to present evidence to you. 5 But I emphasize, the defendants have absolutely no obligation 6 to present any evidence to you. The burden of proof always 7 rests upon the government, and the defendants need not present 8 any evidence at all to you. This portion of the trial is the 9 opportunity for the defendants to present any evidence for you 10 but, as I emphasized, they are under absolutely no obligation 11 to do so. 12 All right. And in terms of order, I believe that the 13 first defendant with the opportunity is Ms. Stewart. 14 Mr. Tigar? 15 MR. TIGAR: That's correct, your Honor. Lynne Stewart 16 calls FBI Agent Michael Elliott. 17 MICHAEL ELLIOTT, 17 18 called as a witness by the Defendant, 19 having been duly sworn, testified as follows: 20 DIRECT EXAMINATION 21 BY MR. TIGAR: 22 Q. Mr. Elliott, you were previously here on the 6th of July, 23 2004? 24 A. Yes. 25 Q. And you are a special agent with the Federal Bureau of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7391 4apesat2 Elliott - direct 1 Investigations, is that correct? 2 A. Yes. 3 Q. And at that time you were proffered and accepted as an 4 expert on the FBI's automatic recording systems used to conduct 5 telephone surveillance, is that correct, sir? 6 A. Yes. 7 Q. And, sir, you had spent some time preparing for your 8 reappearance here today? 9 A. Yes. 10 Q. Did you have an opportunity to discuss the subjects upon 11 which you might be examined with members of the prosecution 12 team before coming here this morning? 13 A. Yes, I did. 14 Q. About how long did you spend doing that? 15 A. I was in New York a few weeks ago and I was probably with 16 them for a couple of hours. And maybe some conversations on 17 the phone, not a lot of time. 18 Q. Did you have some opportunity to spend time with them 19 within the last couple of days? 20 A. Only this morning prior to coming to court. 21 Q. And you declined an opportunity to meet with the defense, 22 is that correct? 23 A. Yes. 24 Q. Since you were last here the government has provided you 25 with documents relating to problems with the systems used to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7392 4apesat2 Elliott - direct 1 record calls for this case, have they not? 2 A. Yes. 3 Q. And you have reviewed other documents in the course of 4 assisting the government in complying with various document 5 requests, is that correct? 6 A. Yes. 7 Q. Before I show you some of those documents, sir, I'd like to 8 ask you about the goals of an electronic surveillance system, 9 the subject about which you testified the last time you were 10 here. 11 Sir, an optimal system for recording telephone calls 12 would accurately and completely record all the calls on the 13 target telephone, correct? 14 A. No. It would only record the calls that were presented to 15 the collection system. 16 Q. So it would accurately and completely record the calls that 17 were over -- that were designed to be overheard on the target 18 telephone, correct? 19 A. Yes. Yes. 20 Q. It would accurately determine whether a call it was 21 recording was incoming or outgoing, correct? 22 A. That was the intent. 23 Q. Pardon? 24 A. That was the intent of the system. 25 Q. Yes. It would accurately determine the telephone number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7393 4apesat2 Elliott - direct 1 the calling party, correct? 2 A. Yes. 3 Q. To the extent permitted by the phone systems the calling 4 party was calling, it would accurately determine the telephone 5 number of the called party? 6 A. Are you referencing caller ID? 7 Q. Yes. 8 A. Yes. 9 Q. And you recall telling us last time that some foreign 10 telephone systems did not permit the FBI's equipment to record 11 the telephone number of the called party, do you remember that? 12 A. Yes, I remember. 13 Q. An optimal system would not break the recorded calls into 14 multiple parts, would it? 15 A. No, that's not necessarily true. 16 Q. Is it your goal to record a call without gaps in the 17 recording? 18 A. Yes, that is true. 19 Q. So an optimal system would not have gaps in any calls that 20 it recorded, correct? 21 A. No, that's not true either. 22 Q. All right. Under what circumstances would an optimal 23 system permit there to be gaps in the parts of the calls that 24 were being recorded? 25 A. The -- whether the recorder is on or off is determined by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7394 4apesat2 Elliott - direct 1 the device that's in the field that I previously testified 2 about called the loop extender. That loop extender emits a 3 tone. That tone determines whether a recorder comes on or the 4 recorder goes off. It's not the collection system. It's the 5 tone that's there. 6 The presence of the tone coming from that loop 7 extender that's on the telephone pole tells the recorder to go 8 off. The absence of the tone causes the recorder -- the 9 recording system to come on. It's that tone that causes breaks 10 in conversations or breaks in recordings. 11 Q. Now, when you say "the loop extender," you're talking, sir, 12 about a circumstance where someone depresses the -- what we 13 call a switch hook on the telephone, correct? 14 A. No, sir. 15 Q. What are you talking about? 16 A. In my previous testimony I -- there was a graphic that was 17 displayed. And we showed where a technical agent of the FBI 18 would go to the telephone pole or the pedestal box nearest the 19 telephone that's to be intercepted and they would apply a 20 device called a loop extender. That's the device that isolates 21 the target telephone line and allows the FBI to listen in on 22 those telephone calls. And it's that device that emits this 23 tone that turns the recorders on and turns the recorders off. 24 Q. And isn't -- but isn't it a fact, sir, that what -- well, 25 let me ask you this: The target telephone is the telephone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7395 4apesat2 Elliott - direct 1 you're trying to record, correct? 2 A. That would be the -- the target telephone would be the 3 telephone that is mentioned in the court order that the 4 intercept is against. 5 Q. And when the person on that telephone takes the phone off 6 hook, something happens, correct? 7 A. Yes, sir. 8 Q. What happens is that the voltage drops, correct? 9 A. That's correct. 10 Q. And the voltage drop is the thing that triggers the 11 recording device back at FBI headquarters, correct? 12 A. No, sir. The voltage drop is what signals the tone to go 13 away. It's the tone that's on the line back to the FBI field 14 office. It's the absence of that tone that causes the recorder 15 to go on and go off. 16 Q. So we put in another step. When the target telephone is 17 off the hook, there's a voltage drop, correct? 18 A. Yes, sir. 19 Q. The voltage drop in turns causes something to happen with 20 the bridging device, correct? 21 A. That's correct. 22 Q. And that's the tone, correct? 23 A. Yes, sir. 24 Q. Now, in the course of a telephone call, if a person calling 25 depresses their switch hook to activate call waiting or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7396 4apesat2 Elliott - direct 1 three-way calling, that also causes a voltage drop, correct? 2 A. What the switch hook does is it simulates an onhook/offhook 3 instance. If one holds it long enough, if you hold the switch 4 hook long enough and you're not quick with it, the voltage can 5 return. So it's not a voltage drop. It's like you're going 6 back on hook so the voltage would return if they hold the 7 switch hook too long. If they don't, if they do the switch 8 hook very quick, then thus you get that conference call or that 9 three-way call. 10 Q. Now, when you were last here, sir, you told us about that 11 and you said that a system could stop recording after a 12 disruption very temporarily for a second or two or three, 13 correct? 14 A. Yes. 15 Q. An optimal system would not permit gaps in recording of let 16 us say a minute, right? 17 A. I don't know that. 18 Q. As an investigator, an experienced investigator, you 19 wouldn't want a system that causes gaps in recordings of a 20 minute, would you? 21 A. Well, my preference would be to have a system that would 22 record an entire telephone call. That would be the best 23 evidence. 24 Q. So that was my question, sir. As an investigator, you 25 wouldn't want there to be gaps, correct, of a minute? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7397 4apesat2 Elliott - direct 1 A. I would not want there to be gaps. 2 Q. Now, your optimal system, returning to that, would 3 accurately archive all the recorded calls so that they could be 4 retrieved later, correct? 5 A. That would be the intent of the system. 6 Q. And you want to be able to retrieve the calls later because 7 the prosecutors that were going to present a case would want 8 them, correct? 9 A. Yes, sir. 10 Q. And you would want to retrieve them all later because if a 11 case is brought, defendants, whose liberty is involved and 12 they're in a trial, you want to make production to them, 13 correct? 14 A. Yes, sir. 15 Q. And you would want to be able to retrieve all of the 16 archived materials, right? 17 A. Yes. 18 Q. And in that archiving you want to have the calls archived 19 on reliable storage media, correct? 20 A. Yes. 21 Q. And when you take that storage media, be it a tape or an MO 22 disk out, you want to have it accurately reproduce the archived 23 calls so that the recordings can be played and understood, 24 correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7398 4apesat2 Elliott - direct 1 Q. You want a system that minimizes software failures, 2 correct? 3 A. Yes. 4 Q. You want a system that minimizes hardware failures, 5 correct? 6 A. Yes. 7 Q. You want a system that if there are software or hardware 8 failures has redundancy so that no calls are lost, correct? 9 A. Redundancy is determined by the office, but, yes, you would 10 like to be able to ensure that no telephone calls are lost. 11 Q. And in a secured system, you want the system to have 12 security, correct? 13 A. Please repeat that. 14 Q. You want your system to be secure from outside tampering, 15 correct? 16 A. Yes, sir. 17 Q. And you want to be able to know that any outside tampering 18 that took place would be detectable, even if it was done by 19 cleared personnel, correct? 20 A. Yes, sir. 21 Q. And your optimal system would also have an external 22 database, would it not, so that a -- one could tell if a call 23 or recording period was missing? 24 A. Not necessarily. 25 Q. You don't regard that as necessary, external database? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7399 4apesat2 Elliott - direct 1 A. I -- the system is what it is. And I'm not -- I don't 2 understand your question. 3 Q. Would you as a person in charge of meeting the FBI's needs 4 want there to be a database of calls that were recorded that is 5 external to the system; that is, external to the archived media 6 and keeps a record of what was recorded? 7 A. No. That was the purpose of the archived media, so that we 8 would not have to have a huge external database forever. The 9 archived media was intended for that. 10 Q. And so the archived media -- external to the archived 11 media, you didn't have a database, correct? 12 A. It was not designed with a database, that's correct. 13 Q. Now, sir, I'd like to show you, if I may, some exhibits. 14 Have you listened to or reviewed any of the recordings that 15 were introduced in evidence in this case? 16 A. No, sir. 17 Q. I'm going to show you now what I have marked as LS1000, 18 LS1001, LS1003, LS1004, LS1005, LS1006, LS1007, LS1009, LS1010, 19 LS1011, LS1012, LS1013. 20 MR. TIGAR: May I approach, your Honor. 21 THE COURT: Yes. 22 Q. I'm going to place the exhibits that I've mentioned in 23 front of you, sir. And I want to begin by asking, when you 24 were here last, you described something called the Lockheed 25 Martin system, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7400 4apesat2 Elliott - direct 1 A. Yes, I did. 2 Q. And you described something called the Raytheon system, 3 correct, sir? 4 A. Yes, sir. 5 Q. Now, the Lockheed Martin system in FBI parlance was known 6 as Double Dagger, correct? 7 A. Yes. 8 Q. And the Raytheon system was known as SpiderNet, right? 9 A. Yes. 10 Q. The documents I'm going to show you have those names on 11 them, and I wanted to be sure of that. 12 In addition to that, there is an acronym in the 13 documents I'm going to show you, DARRS. What does that refer 14 to? 15 A. It's -- I'm not exactly sure what the A is for, but it's -- 16 I think it's digital automated remote recording system or 17 something like that. 18 Q. Would it refresh your recollection if I suggested digital 19 audio recorder retrieval system? 20 A. I -- I don't remember. 21 Q. But whatever the acronym -- 22 A. We use the term DARRS. 23 Q. DARRS. And DARRS refers to a system, correct? 24 A. It did, yes. 25 Q. And the particular DARRS system we're talking about here is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7401 4apesat2 Elliott - direct 1 Double Dagger or Lockheed Martin, correct? 2 A. I'm not certain if DARRS was the code name that Lockheed 3 Martin used or not. 4 Q. Well, would you take a look, please -- would you look 5 through the exhibits one at a time that I placed before you. 6 And I'm going to ask you whether or not those are monthly 7 project status reports for Lockheed Martin. 8 A. The folder that you have marked LS1000 -- 9 Q. Yes. 10 A. -- appears to be a Lockheed Martin monthly project status 11 report. 12 Q. Let's stay with LS1000 for a minute. 13 MR. TIGAR: I offer LS1000, your Honor. 14 MS. BAKER: Your Honor, there are issues relating to 15 this document that were previously discussed. I can voir dire 16 or we can take them up later. 17 THE COURT: If you want to voir dire on admissibility, 18 I'll allow a voir dire. 19 MS. BAKER: Your Honor, it relates to specific 20 portions of the document. 21 MR. TIGAR: May I confer with Ms. Baker, your Honor. 22 THE COURT: Yes. 23 (Counsel conferred) 24 BY MR. TIGAR: 25 Q. Mr. Elliott, would you turn, please, to a Bates numbered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7402 4apesat2 Elliott - direct 1 page 229 there, OK. 2 A. In the top right-hand corner? 3 Q. Yes, that page. Do you see the number five there, item 4 number five? 5 A. Yes, I do. 6 Q. Is it your understanding that that number five item has 7 anything to do with the conversion of archived files for use in 8 this case? Do you know one way or another? 9 A. Yes, I do. 10 Q. All right. And does it have anything to do with the 11 conversion of files in this case? 12 A. No, it does not. 13 Q. Now, Mr. Elliott, do you know what system on the Double 14 Dagger apparatus was used to record calls for use in this 15 investigation? 16 A. I have learned in preparing for this case that it was 17 the -- you're saying system, but it would have been number 18 three. 19 Q. So, within the Double Dagger hardware, there were multiple 20 systems, correct? 21 A. Yes. 22 Q. And those systems, each system was separate and the one 23 used for this case was called system 3, correct? 24 A. It was my understanding that it was referred to as MAP 3. 25 Q. MA three. But would you look at page 228, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7403 4apesat2 Elliott - direct 1 A. I am. 2 Q. And do you see the reference there to system 3? 3 A. Yes. 4 Q. Does that refer to the system used to record the calls for 5 this case? 6 A. Only in the fact that I believe -- I've learned that system 7 3 was used for this case. I did not write this report. 8 Q. I understand. 9 A. So I don't know that to be true. 10 Q. You've learned because you're an expert, right? 11 A. I have learned in preparing for this trial that system 3 or 12 MAP 3 was used in this case. 13 Q. My question is this, sir: As a supervising person for 14 electronic surveillance, you get information from a number of 15 people so you can do your job, correct? 16 A. Yes, I do. 17 Q. And one of the things that you do as a part of your job is 18 to explain to people how these systems work, is that correct? 19 A. Yes, sir. 20 Q. And in order to do your job of explaining this to the jury, 21 you found out something about the Double Dagger system, 22 correct? 23 A. You said I found out something. What -- 24 Q. You found out something about system 3? 25 A. That that was the main -- that was the system that was used SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7404 4apesat2 Elliott - direct 1 or that MAP was used for the recordings in this case. 2 Q. And where did you learn that? 3 A. From looking at these documents and talking with the 4 prosecution. 5 Q. So, the prosecution -- now, when you talked to the 6 prosecution to tell you that, did they show you some archived 7 tapes or archive tape codes or numbers that would have 8 demonstrated that this is system 3? 9 A. I think when you looked at the tapes, the way they were 10 labeled and named, and you start to break that apart, then 11 that's where it pops out that it would have been MAP 3 or 12 system 3 that was used for these recordings from that naming 13 nomenclature. 14 Q. And that naming and nomenclature, is it your understanding, 15 was something that Agent Kerns has been telling us about? 16 A. I don't know what Agent Kerns has been telling you. 17 Q. Well, you found out it was system 3, correct? 18 A. Yes. 19 MR. TIGAR: Your Honor, then with respect to 1000, I 20 would offer and I would ask permission to publish to the jury 21 at this time only the portion that relates to system 3 on Bates 22 page 228. 23 THE COURT: All right. 24 MR. TIGAR: Is that -- 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7405 4apesat2 Elliott - direct 1 MR. TIGAR: All right. 2 THE COURT: LS1000 received in evidence with respect 3 to the portion relating to system 3 on page 0228. 4 (Defendant's Exhibit LS1000 received in evidence) 5 BY MR. TIGAR: 6 Q. Now, this portion, Mr. Elliott, relates to something called 7 DARRS program activities, correct? Do you see that there at 8 the top of the page? 9 A. Yes, sir. 10 Q. All right. System 3. It says here, does it not, system 3, 11 investigated a problem where AP2 indicated a track allocation 12 failure. Disk 4D had to be formatted and software reinstalled. 13 Post IPL of AP2. Reports home requiring the IPL of both MAPS. 14 Do you see that? 15 A. Yes, sir. 16 Q. What does that mean? 17 A. I don't know. 18 Q. It means some problem with -- do you know what an IPL is? 19 A. No, sir. 20 Q. Do you know what an MAP is? 21 A. The MAP is the actual record part of that system. 22 Q. Do you know what a track allocation failure is? 23 A. No, I don't. 24 Q. Do you know what disk 4D had to be formatted means? 25 A. No, I do not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7406 4apesat2 Elliott - direct 1 Q. Do you know what it means to format a disk? 2 A. Yes, I do. 3 Q. Disk 4D was a part of system 3, correct? 4 A. Yes. 5 Q. Do you know what reinstalling software means? 6 A. Yes. 7 Q. You had to reinstall the software on disk 4D in system 3, 8 is that what that means? 9 A. It's what it says, yes. 10 Q. Would you turn, please, to LS10001. This is another 11 monthly product status report on Double Dagger for September of 12 '98, sir? 13 A. The one that I have is labeled August of 1998. 14 Q. 1001. Is that 1001? 15 MR. TIGAR: May I approach, your Honor? 16 THE COURT: Yes. 17 MR. TIGAR: Thank you. 18 Q. The cover letter is September 98, correct, sir? 19 A. Yes, sir. 20 Q. And the report is for August '98, correct, sir? 21 A. Yes. 22 Q. And at page 0203 and 0204 do you see references to 23 system 3? 24 A. Yes, I do. 25 MR. TIGAR: Your Honor, we offer the portions of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7407 4apesat2 Elliott - direct 1 LS1001 that identify it and that relate to system 3, 2 specifically the material at pages 0203 and 0204. 3 THE COURT: All right. Those portions admitted in 4 evidence. 5 (Defendant's Exhibit LS1001 received in evidence) 6 BY MR. TIGAR: 7 Q. Sir, looking at the 0203, do you see where it says, 8 system 3 was reporting errors. The disk was verified and 9 sectors reassigned. Correct? 10 A. Yes. 11 Q. Do you know what that means? 12 A. No. When you look at these reports, my level of management 13 of this system was not at that level. I was not responsible 14 for understanding and knowing each of these individual errors 15 that are reported here. So outside of the general term of 16 being able to recognize the terms, I don't really know what 17 this report says those errors are. 18 Q. When you were here last, sir, you described the process of 19 a changeover from Lockheed Martin or Double Dagger to Raytheon 20 or SpiderNet. Did -- during that process did people bring to 21 your attention problems that they were having with this 22 hardware that was recording telephone calls in the New York 23 field office? 24 A. During the changeover of the system? 25 Q. Yes, during the period 19 -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7408 4apesat2 Elliott - direct 1 A. Please restate the question. 2 Q. Of course, sir. 3 A. There was a narrative there and I didn't get the question. 4 Q. During the period 1998 and 1999, when you were functioning 5 in a responsible position, did anyone bring to your attention 6 that there were hardware and software problems in the telephone 7 recording collection in the New York field office? 8 A. Not outside of just normal maintenance of the system. I 9 was not aware that there were any problems that -- of any 10 significance. 11 Q. Were you aware of any disk failures in that period of time? 12 A. No. Things at that level would not have been brought to my 13 attention. 14 Q. Would you look at 0204. And do you see there table 2-1? 15 A. Yes. 16 Q. And it says, site disk failure status, correct? Do you see 17 that? 18 A. Yes. 19 Q. And there's a reference to system 3. It says sector 20 reassigned but no data lost, correct? 21 A. Correct. 22 Q. If you turn now to LS1003. Is that another one of these 23 monthly status reports for October 1998? 24 A. Appears to be. 25 Q. And looking at page 0178, do you see references to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7409 4apesat2 Elliott - direct 1 system 3, two references? 2 A. Yes, I do. 3 MR. TIGAR: We offer the portion of LS1003 that 4 identifies it and relates to system 3, your Honor. 5 THE COURT: All right. Those portions are admitted in 6 evidence. 7 (Defendant's Exhibit LS1003 received in evidence) 8 MR. TIGAR: Your Honor, may I put on the Elmo just 9 a -- the cover page for the monthly report. 10 THE COURT: All right. 11 BY MR. TIGAR: 12 Q. This is from 1003, sir, is it not? And this is the monthly 13 project status report, correct? Do you see that cover page 14 there? 15 I'll show you the page number at the top, 0174. Do 16 you see that in yours? 17 A. Yes. 18 Q. Now, to whom would these documents be sent on a monthly 19 basis? Who would get them? 20 A. That part's not included on my transmittal letter. It was 21 not me. 22 Q. Well, would you look at the first page there, sir. 23 A. 0172? 24 Q. Yes, 0172. And you notice that the name of the recipient 25 here has been redacted in the process of production, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7410 4apesat2 Elliott - direct 1 A. That's correct. 2 Q. Well, do you know where these documents were found when the 3 government went looking for them? 4 A. No, I do not. 5 Q. You just -- you do know that they were produced to us after 6 your appearance here on July the 6th, correct? 7 A. I know they were produced to you, but I don't know if they 8 were prior to my previous testimony or after. 9 Q. But you don't know where they were kept in the normal 10 course of things, right? 11 A. No, I don't. 12 Q. All right. Now would you look at 0178. And just check if 13 I'm reading correctly, system 3, AP 5 disk 4C required a format 14 and software installation. Do you see that, sir? 15 A. Yes. 16 Q. And we've already discussed what a format is, correct? 17 A. You mentioned that earlier, yes. 18 Q. And it required software installation, right? 19 A. Yes. 20 Q. That's disk 4C, correct? 21 A. Yes. 22 Q. Now, disk 4D was the one that had a problem in May of '98, 23 correct, in LS100? We talked about that? 24 A. Was that in the previous report? 25 Q. Yes, that would be at page 0228 of LS1000. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7411 4apesat2 Elliott - direct 1 A. OK. 2 Q. Now, going back to 0178, do you see the other reference to 3 system 3, correct? 4 A. At the bottom of the page? 5 Q. Yes, at the bottom. And it says, the entire system was 6 brought down by, and then that's been redacted out, what 7 brought it down, correct? 8 THE COURT: I'm sorry. Before you go on, just so that 9 I'm clear, 0228 referred to 4D and 0178 refers to 4C? 10 MR. TIGAR: Yes, your Honor. 11 THE COURT: OK. 12 MR. TIGAR: And now I'm back on 0178 and asking 13 Mr. Elliott about this second reference on that page, your 14 Honor. 15 THE COURT: All right. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7412 4APMSAT3 Elliott - direct 1 Q. System 3. The entire system was brought down by blank, 2 correct? 3 A. Yes. 4 Q. And something has been redacted out. All processors 5 indicated a halt condition of 5555. And IPL of all the 6 processors was required, perform IM clean on all MAPS? 7 A. Yes. 8 Q. Now, you know what brought -- you know what brought down 9 means, correct? 10 A. Correct. 11 Q. When a computer system is brought down, that means that it 12 stops working, correct? 13 A. It means it doesn't record. 14 Q. And it says, all processors indicated a halt condition. 15 That means it stops, correct? 16 A. Yes. 17 Q. And do you know what IM CLEAN is, that acronym? 18 A. No. 19 Q. Would you take a look, please, at 1004, LS1004. This is a 20 document that has a cover page with an FBI heading on it, 21 correct? 22 A. Yes. 23 Q. And does that help you to tell us where this would have 24 been kept? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7413 4APMSAT3 Elliott - direct 1 Q. Where was it kept? 2 A. From the to line and the from line it indicates to me that 3 this would have been a document that was created and kept in 4 New York field office. 5 Q. Now, does that let you know that these monthly DARRS 6 reports were sent to the New York field office? 7 A. At least this one was. 8 Q. Now, sir, would you please turn to LS1005. Excuse me, sir. 9 Would you please turn to LS1006. Had you ever seen that 10 document before today? 11 A. I have seen this document, but only in preparation for this 12 trial. I don't recall seeing it prior to this. 13 Q. Do you know what it is? 14 A. It appears to be a checklist of procedures that one would 15 go through for the Lockheed Martin system. 16 Q. And do you know whether it is a record of the FBI or of 17 Lockheed Martin? 18 A. I don't know. 19 Q. But you're satisfied that this is a checklist that shows 20 how the system is supposed to be maintained, correct? 21 A. Well, when you look at it, the heading is routine systems 22 operations documentation. As you look down through it, it 23 refers to manuals and basic capability system manager details. 24 The bottom of it is DARRS systems problems. 25 Q. Would you turn, please, to Exhibit No. 1009. Now, this is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7414 4APMSAT3 Elliott - direct 1 a document that shows error messages on Double Dagger, correct? 2 A. Yes. 3 Q. When is the first time you saw that document, sir? 4 A. In preparation for this trial. 5 Q. And is it your understanding that this is a document 6 maintained by the New York field office as they were using this 7 Double Dagger Lockheed Martin system? 8 A. Yes. 9 MR. TIGAR: We offer the portions of LS1009 that is 10 the cover paper, your Honor, and the portions that deal with 11 system 3. 12 THE COURT: Those portions are admitted in evidence. 13 (Defendant's Exhibit LS1009 received in evidence) 14 Q. Sir, let's turn the second page, page 0357. You see the 15 references to system 3, right? 16 A. Yes. 17 Q. At the top there is a line that says processor failure 18 detected. Do you see that? 19 A. Yes. 20 Q. And then under system 3 there are numbers that relate to 21 processor failure detected, correct? 22 A. Yes. 23 Q. What do those numbers mean? 24 A. I don't know. 25 Q. Do they mean to you as you look at this in your capacity as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7415 4APMSAT3 Elliott - direct 1 an FBI person that there were processor failures on system 3 2 during the week April 4 to April 10 of 1999? 3 A. I have to review this document and I do not know what those 4 numbers mean. 5 Q. Would you turn to the next page. You see on page 0358 6 system 3 and it says down time. Do you see that? 7 A. Yes. 8 Q. And then under system 3 it says, MAPS APs, two hours, 9 right? 10 A. Yes. 11 Q. Does that mean to you that the MAPS and the APs were down 12 for two hours on system 3? 13 A. If that's what that's intended to mean, that makes sense. 14 That would mean that there was no -- if the system was down 15 that it was not recording for those two hours. 16 Q. Let's look at page 0360, again, system 3. It says, entire 17 system two and a half hours as down time. Do you see that? 18 A. Yes, I see that. 19 Q. And then up above it says, API, three minutes, right? 20 A. AP1, three minutes. 21 Q. Later under system 3 entire system, five and a half hours, 22 right. You see that? 23 A. Yes. 24 Q. And then AP3, 23 hours, right? 25 A. Yes, I see that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7416 4APMSAT3 Elliott - direct 1 Q. And then there are other times with AP3 and MAP1 down 2 times, correct? 3 A. Yes. 4 Q. And that's all for system 3, right? All that I mentioned 5 is related to system 3, correct? 6 A. Yes, sir. 7 Q. And that's only during the week of April 11 to 17, 1999, 8 right? 9 A. According to this report, yes, sir. 10 Q. And then under system 3 down below here in that same week 11 we have, tapes would not reload, right? 12 A. I see that. 13 Q. You see that? 14 A. Yes. 15 Q. The only tapes that system 3 used were those 16 electromagnetic tapes, correct? 17 A. Those eight millimeter tapes. 18 Q. That's right, the eight millimeter tapes. System 3 had 19 only two methods to get things, one was hard drive and one was 20 electromagnetic tapes, correct? 21 A. Say that again. 22 Q. System 3 had only two ways to record data, hard drive and 23 electromagnetic tape, correct? 24 A. It would be recorded to the hard drive first. 25 Q. And then archived, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7417 4APMSAT3 Elliott - direct 1 A. To these tapes. 2 Q. And the tapes would not reload and then it lists two tapes. 3 You see that numbers, 9909, November 31 is the first one. 4 A. I see that number, but I am not certain that's what it 5 stands for. 6 Q. And down below there is an entry that says 99104, H3, 7 rebuild after reload, and then archive, something like that. 8 Do you see that? You see the words, correct? 9 A. I see the words. 10 Q. Do these words indicate to you that there were some 11 problems with these archived tapes that were developing back in 12 1999? 13 A. It would indicate that there was some problems in reloading 14 the audio from those archived tapes back onto the system. 15 Q. When you were here on July 6, you said the problems you had 16 with archived tapes was breakage, correct? 17 A. I don't recall exactly what I said, but I think I did say 18 that there was a problem with those tapes due to breakage and 19 degradation. 20 Q. Didn't you say that an engineer came to your office and 21 told you that tapes had broken. Do you remember that? 22 A. I remember saying the question you had asked was, how did I 23 know that we were having problems with tapes in New York? And 24 my response was something like that, for example, an engineer 25 would come to my office and tell we were having problems with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7418 4APMSAT3 Elliott - direct 1 tapes in New York. I didn't recall having a memo that said 2 that or something. 3 Q. And you never saw these memos that I'm showing you now, 4 correct? 5 A. No, sir. 6 Q. At that time? 7 A. I never saw these. 8 Q. Now, would you please look at -- 9 MR. TIGAR: May I approach, your Honor. 10 THE COURT: Yes. 11 Q. I'm going to show you, sir, what I have marked as LS1008. 12 That's a memo you approved, is it not, sir? 13 A. Yes, it is. 14 Q. And that is a memo in April of 1999, right? 15 A. Yes. 16 Q. And did you approve that at or about the date that is 17 reflected at the top of it? 18 A. Yes. 19 MR. TIGAR: We offer LS1008, your Honor. 20 THE COURT: LS1008 received in evidence. 21 (Defendant's Exhibit LS1008 received in evidence) 22 Q. There is only one section that I want to bring to your 23 attention, sir. 24 MR. TIGAR: May I show the witness, please, and place 25 on the Elmo the second page of this document, your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7419 4APMSAT3 Elliott - direct 1 THE COURT: Yes. 2 Q. Now, the part that's blacked out here, those are redactions 3 made by the government, correct? 4 A. Yes. 5 Q. And just looking at where my finger is, am I reading this 6 correctly, the current systems in the New York and blank 7 offices are in need of upgrades or replacement. The New York 8 system is based on 15-year-old computer technology which is no 9 longer manufactured, correct? 10 A. That's what it says, yes. 11 Q. Did you agree with that assessment in 1999? 12 A. Yes. 13 Q. And it was your agreement with that assessment that led you 14 to want to replace this Double Dagger system, correct? 15 A. Yes. 16 Q. Now, would you please look at the files you have there, 17 LS1010. 18 A. Okay. 19 Q. This is another one of these monthly project status 20 reports, correct? 21 A. Yes, it is. 22 Q. It is for Double Dagger, correct? 23 A. Yes. 24 Q. And on page -- 25 MR. TIGAR: We offer the portions of it that deal with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7420 4APMSAT3 Elliott - direct 1 system 3, your Honor. 2 THE COURT: All right. Those portions admitted in 3 evidence. 4 (Defendant's Exhibit LS1010 received in evidence) 5 Q. There was no data loss on the problems with system 3 in 6 that month, correct? 7 A. I don't know. I'd have to go through. 8 Q. Could you look at the last page, 279. 9 A. Are you referring to the table? 10 Q. Yes, the table. 11 A. Okay. 12 Q. Would you look at the previous page, sir, page 278, page 13 278. You see that system 3 had a power supply failure, a 14 diskette drive power supply failure, and then there was a 15 format and software reinstallation, correct? 16 A. Yes. 17 Q. Sir, would you please turn to page 281 in this document. 18 Now, just with respect to system 3, which is the only thing 19 this is in evidence for, do you see the heading archive failure 20 summary by tape? Do you see that table? 21 A. What page are we on? 22 Q. I'm on page 0281. 23 A. Table 2-3? 24 Q. Yes, 2-3. 25 A. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7421 4APMSAT3 Elliott - direct 1 MR. TIGAR: Your Honor, may I display page 281 with an 2 instruction to the jurors that the only part that is relevant 3 here is the system 3 part? 4 THE COURT: Yes. 5 Q. Here is the table. And this is for this month of April 6 1999, correct? And the archive failures on system 3 total for 7 that month two, correct? 8 A. Yes. 9 Q. And then the kind of failure is indicated here on system 3 10 a periodic directory update and an archive error. Do you see 11 that listed on table 2-4? 12 A. Yes. 13 Q. And then -- what's an archive error? 14 A. It is when attempting to archive the audio from the hard 15 drive to the removable media, that would indicate that there 16 was an error or a mistake. 17 Q. But it doesn't tell you what exactly that error was, right? 18 A. Not on this chart, I don't see that. 19 Q. At that time did people in the New York field office bring 20 to your attention that this system was making archive errors? 21 A. I don't recall receiving that information. 22 MR. TIGAR: May I approach, your Honor? 23 THE COURT: Yes. 24 Q. I am going to place in front of you, sir, if I may, what we 25 marked as LS1002, LS1014, LS1016A, LS1016B, LS1017, LS1018, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7422 4APMSAT3 Elliott - direct 1 LS1020, LS1021, LS1022, and 1023. 2 Now, LS1002, would you please start with that one, 3 sir. That is a memorandum that you approved, correct? 4 A. It is a memorandum that was written, but my signature and 5 initials are not here next to my name. 6 Q. It says approved by Michael Elliott, right? 7 A. There is no initials by my name. I don't know if this was 8 a draft. I don't recall. Or if this in fact was a copy that 9 was prior to my signature. But this is a report that would 10 have been sent to me for my approval. 11 Q. The fact that it doesn't have -- 12 MS. BAKER: I am not sure that the witness is looking 13 at the exhibit number that you said in your question. 14 MR. TIGAR: Thank you. 15 May I approach, your Honor? 16 THE COURT: Yes. 17 MR. TIGAR: This does appear to be LS1002. 18 MS. BAKER: The transcript reflects 1022. Were you 19 asking about 1002? 20 Q. We are all in the same document now. This comes out of the 21 FBI files, correct? 22 A. Yes. 23 Q. And you did go to a meeting on the 21st of September 1998 24 to discuss Spider Net, correct? 25 A. Yes, so reflected in this draft report. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7423 4APMSAT3 Elliott - direct 1 Q. And looking at it, that appears to be an accurate summary 2 of the meeting that you attended, correct? 3 A. Yes. 4 MR. TIGAR: We offer 1002, your Honor. 5 THE COURT: LS1002 received in evidence. 6 (Defendant's Exhibit LS1002 received in evidence) 7 MR. TIGAR: May I retrieve the document, your Honor? 8 THE COURT: Yes. 9 MR. TIGAR: Thank you. 10 May I place it on the Elmo, your Honor? 11 THE COURT: Yes. 12 Q. Putting this up, this is a standard report of a meeting to 13 discuss a new system, correct? 14 A. Yes. 15 Q. And this was -- this is dated the 2nd of October of '98 and 16 refers to a meeting on the 21st of September '98 -- 17 THE COURT: Mr. Tigar, before we go on, it is about 18 noon and we have not taken a mid-morning break. Would this be 19 a convenient time to take a break? 20 MR. TIGAR: Yes, your Honor, fine. 21 THE COURT: Ladies and gentlemen, we will take a break 22 for 10 minutes. Please remember my continuing instructions. 23 Please, please, remember, don't talk about the case at all. 24 Always remember to keep an open mind. 25 Have a good break. See you shortly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7424 4APMSAT3 Elliott - direct 1 All rise, please. Please follow Mr. Fletcher to the 2 jury room. 3 (Jury not present) 4 THE COURT: See you shortly. 5 (Recess) 6 (Page 7425 SEALED by order of the Court) 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 7426 4APMSAT3 Elliott - direct 1 (In open court) 2 THE COURT: Mr. Elliott is on the stand. 3 MS. BAKER: Your Honor, I did want to raise one issue. 4 I don't know if it would matter if the witness is here. The 5 government would ask the Court at an appropriate time to 6 instruct the jury about the redactions to these documents, that 7 those redactions were approved by the Court, or something along 8 those lines done for legal reasons that they shouldn't 9 speculate about or concern themselves with. 10 THE COURT: At an appropriate time I'll tell the 11 jurors that I have previously instructed them what redaction 12 means. It means that things are taken out for legal reasons. 13 Of course, that doesn't affect anything that they do and they 14 are not to speculate about it. 15 MS. BAKER: The agent is getting Mr. Elliott. 16 THE COURT: Let's bring in the jury. 17 (Jury present) 18 THE COURT: Mr. Elliott is on the stand. 19 Mr. Fletcher. 20 THE DEPUTY CLERK: Mr. Elliott, you are reminded 21 you're still under oath. 22 THE WITNESS: Yes. 23 THE COURT: Mr. Tigar, you may proceed. 24 MR. TIGAR: Thank you, your Honor. 25 BY MR. TIGAR: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7427 4APMSAT3 Elliott - direct 1 Q. Mr. Elliott, during the break I took all those papers off 2 your desk there, but I'll bring the ones back that I want to 3 ask you about. 4 Up to now we have been talking about mostly this 5 Double Dagger system of Lockheed Martin, correct? 6 A. Yes. 7 Q. In the year 2000 the FBI began to install the Spider Net 8 Ratheyon system in the New York field office, correct? 9 A. Yes. 10 Q. And this was a project with which you had been involved 11 since that meeting in 1998 that we talked about before the 12 break, correct? 13 A. Yes. 14 Q. As a part of this Spider Net installation there had to be 15 tests of the system to make sure that it was going to meet the 16 contract requirements, correct? 17 A. Yes. 18 Q. And in doing that you were concerned about the matters that 19 I asked you about at the beginning, what you wanted the system 20 to be able to do? 21 A. Yes. 22 MR. TIGAR: May I approach, your Honor? 23 THE COURT: Yes. 24 Q. I am going to show you what has been marked as LS1014, 25 which is a document produced to us by the government. You have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7428 4APMSAT3 Elliott - direct 1 seen that before today, have you not, sir? 2 A. Yes, I have. 3 Q. Now, that is a redacted document, correct? 4 A. Yes. 5 Q. And the reason it is redacted is things that are irrelevant 6 to what we are talking about were taken out of it, right? 7 A. In part, yes. 8 Q. And there were other reasons, but basically those are all 9 good legal reasons for taking out of there whatever is not in 10 there, right? 11 A. Yes. 12 THE COURT: Let me pause just for a moment. 13 Ladies and gentlemen, you've heard a discussion of 14 redaction and I have previously instructed you about redaction. 15 Matters are redacted from documents for legal reasons and 16 you're not to speculate about what's redacted. There is 17 nothing in the redactions that affects anything that you do in 18 the case. 19 MR. TIGAR: Thank you, your Honor. 20 Q. This report, LS1014, was prepared for your section, 21 correct? 22 A. Yes. 23 Q. And did you see it at or about the time it was prepared? 24 A. I don't recall if I did or not. 25 Q. But you don't have any doubt that it is the initial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7429 4APMSAT3 Elliott - direct 1 production acceptance test plan for that Spider Net system, 2 right? 3 A. That's correct. 4 MR. TIGAR: We offer 1014, your Honor. 5 THE COURT: All right. LS1014 received in evidence. 6 (Defendant's Exhibit LS1014 received in evidence) 7 Q. So that people can follow what is in there, if the jurors 8 ever want to look at the whole thing, at Bates page 1125 there 9 is a list of acronyms, correct? 10 A. Yes. 11 Q. The purpose of this report was to outline the test 12 activities and to prepare for an acceptance of the system, 13 right? 14 A. Yes. 15 Q. Would you please turn to page 1280. Or have I made a 16 mistake here? I'm sorry. 1118. I had a senior moment. 17 Now, you have 1118, sir? 18 A. Yes. 19 Q. Now, this defines -- 20 MR. TIGAR: May I show that to the jury, your Honor? 21 THE COURT: Yes. 22 Q. This defines what's going to happen for ITPs, correct? You 23 see that ITP priority level? 24 A. Yes. 25 Q. What are ITPs? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7430 4APMSAT3 Elliott - direct 1 A. Integration test problems. 2 Q. So this is a way that you would classify the kinds of 3 problems that they are looking for in the system, correct? 4 A. Yes. 5 Q. Priority 1, 2, 3, and 4? 6 A. Yes. 7 Q. Now, do you see in the documents you have there appendix D, 8 page 1318 in the Bates production, right? 9 A. Yes. 10 Q. And that is an appendix -- 11 MR. TIGAR: May I show this page to the jury, your 12 Honor? 13 THE COURT: Yes. 14 Q. This says list of open ITPs at the end of the acceptance 15 test, is that right? 16 A. That's correct. 17 Q. So that at the end of the acceptance test these were open 18 issues with this new Spider Net system, correct? 19 A. That's correct. 20 MR. TIGAR: May I show the next page, your Honor? 21 THE COURT: Yes. 22 Q. Among those problems were call direction not functioning 23 properly, correct? You see the top one there? 24 A. It shows that one is closed. 25 Q. That was a problem that did arise, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7431 4APMSAT3 Elliott - direct 1 A. Yes. 2 Q. And you say it was closed. That means it was resolved as 3 of that time, correct? 4 A. Yes. 5 Q. Then another closed one is a particular file dies 6 periodically, correct? 7 A. Yes. 8 Q. And that was raised and that was resolved, right? 9 A. Yes. 10 Q. And we can go down here and look and see what these 11 problems were as the system first came and what was done in an 12 attempt to resolve them, right? 13 A. Yes. 14 Q. Now, this report that we have that we are looking at -- 15 MR. TIGAR: May I show the first page, your Honor? 16 THE COURT: Yes. 17 Q. -- was dated March 31, 2000, correct? 18 A. Yes. 19 Q. Testing continued on the Spider Net system after March 31, 20 2000, right? 21 A. March 31, 2000 is the date at the acceptance test plan was 22 written. 23 Q. Then was there an acceptance test report? 24 A. There would have been, yes. 25 MR. TIGAR: May I approach, your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7432 4APMSAT3 Elliott - direct 1 THE COURT: Yes. 2 Q. I am going to show you now what we have marked as LS1015. 3 That's the acceptance test report, correct? 4 A. Yes, it is. 5 Q. And that's dated April 14, 2000, correct? 6 A. Yes. 7 Q. And that's a document that was prepared in conjunction with 8 the installation of this system, correct? 9 A. It was a document that was done prior to installation 10 because it was the acceptance test which would have occurred at 11 the Lockheed Martin lab. 12 Q. At the Ratheyon lab? 13 A. I apologize, yes, the Ratheyon lab. 14 Q. And as a result of this document you all concluded that -- 15 MR. TIGAR: We offer 1015, your Honor. 16 THE COURT: All right. 17 MS. BAKER: Your Honor, may we be heard about this? 18 MR. TIGAR: May I confer with Ms. Baker, your Honor? 19 THE COURT: Sure. 20 MR. TIGAR: Thank you, your Honor. We offer page 1, 21 your Honor, and so much of the content as will be reflected in 22 questions that I am going to ask. 23 THE COURT: All right. To that extent, LS1015 is 24 received in evidence. 25 (Defendant's Exhibit LS1015, page 1 received in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7433 4APMSAT3 Elliott - direct 1 evidence) 2 MR. TIGAR: May I show that to the jury, your Honor? 3 THE COURT: Yes. 4 Q. There is your test report, correct, April 14? 5 A. Yes. 6 Q. And then you performed a number of tests, correct? 7 A. Yes. 8 Q. And there were a certain number of tests that the system 9 had a problem with, correct? 10 A. Yes. 11 Q. In your opinion, did any of those system problems that 12 developed then have to do with the system's ability to record 13 calls? 14 A. I think there were two problems that had to do with 15 recording that was involved in those test failures. 16 Q. I want to confine myself to those. I don't want to ask 17 things that didn't have to do with that. Can you tell the 18 jury, please, what were those two problems that were still 19 there on this April 2000 test that was being done? 20 A. I'm trying to look for it in this report. One of those -- 21 I can't find it here -- one of those would have had to do with 22 the ability to record in stereo and to play that back. And I 23 think the other one had to do with that tone again, the ability 24 to receive -- 25 Q. I'm sorry. I didn't hear you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7434 4APMSAT3 Elliott - direct 1 A. The other one would have had to do with the tone that we 2 were talking about earlier and the system's ability to detect 3 flash hooks and caller ID and telephone numbers. I think 4 that's where those two failures were isolated to. 5 Q. Stereo versus mono, that wasn't too important, was it? 6 A. In terms of the fact that you could still record on the 7 system, so it was not a significant problem for us. 8 Q. Now, this tone hook situation, that has to do with the 9 system's ability to understand, if I could anthropomorphize it, 10 what happens when somebody depresses the switch on the phone, 11 right? 12 A. That's one thing, yes. 13 Q. And we talked about that earlier because if I'm talking 14 along with somebody and I get a call waiting and I depress my 15 switch hook and I keep it down a certain amount, the system 16 might interpret that as a terminated call? 17 A. And a new call. 18 Q. And a new call? 19 A. Yes. 20 Q. And there might be then some gap, as we have discussed, of 21 whatever time in the recording, right? 22 A. There could be. 23 Q. And what other reasons would you be concerned about that in 24 this new system you were putting in? 25 A. I would be concerned that the system had the ability to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7435 4APMSAT3 Elliott - direct 1 listen for that tone, which is important because that tone 2 controls the on/off recording of the system. I would also be 3 concerned about the device that actually emits that tone, the 4 loop extender. 5 Q. And the loop extender, that's not a part of the Ratheyon 6 system, is it? 7 A. No, it is not. 8 Q. That's something that in the old days you used to put on 9 the telephone pole? 10 A. You still do that today, too. 11 Q. That's not a part of this thing where the phone company 12 pulls the switch and does it? 13 A. You can do it both ways. 14 Q. You talked about that earlier under CALEA, the law 15 enforcement agent. Somebody from the phone company does things 16 that you all used to have to do, by climbing the pole? 17 A. Yes, sir. 18 Q. After the Spider Net system was installed, there were 19 problems connected with it, correct? 20 A. There were some problems. 21 MR. TIGAR: May I approach, your Honor? 22 THE COURT: Yes. 23 Q. I am going to show you now what's been marked as LS1018. 24 And that's a memo of a visit by someone named Barbara 25 Wordsworth, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7436 4APMSAT3 Elliott - direct 1 A. Yes, it is. 2 Q. And she is from Ratheyon, correct? 3 A. Yes, she is. 4 Q. And that was a memorandum that she created for problems she 5 had seen, correct? 6 A. Yes. 7 MR. TIGAR: We offer 1018, your Honor. 8 THE COURT: LS1018 received in evidence. 9 (Defendant's Exhibit LS1018 received in evidence) 10 MR. TIGAR: May I display it to the jury, your Honor? 11 THE COURT: Yes. 12 Q. These are some things that Ms. Wordsworth found and this is 13 November of 2000, right? 14 A. Yes. 15 Q. And this system has now been installed in your New York 16 field office and is recording since when? 17 A. The acceptance test was in April, so some time after April. 18 I don't recall the date that we actually started recording. 19 Q. And there have been, as the Court has explained, some 20 redactions here. Showing page 2 of the document that was 21 furnished to us, do you see this paragraph: He mentioned the 22 now infamous archive server problem where the advisory was 23 being logged once a second for several days before anyone 24 called the help desk. He also mentioned that unlike Double 25 Dagger, health monitoring and archive management were very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7437 4APMSAT3 Elliott - direct 1 cumbersome. 2 What does that mean to you? 3 A. That means that you have a user who preferred one system 4 over another. 5 Q. What's the infamous archive server problem? 6 A. There was an archive server on the Ratheyon system that had 7 a problem. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7438 4apesat4 Elliott - direct 1 BY MR. TIGAR: 2 Q. And then there it says, when asked, blank told that there 3 is no real log of the user problems. 4 Did that come to your attention at or about that time? 5 A. No, I have not seen this report before. 6 Q. So no one brought to your attention that there was no real 7 log of the user problems, right? 8 A. That's correct. 9 Q. Now, you see down here, blank told blank that he was still 10 working on the, quote, system problem EC that was requested two 11 weeks ago by Quantico. When asked, he was not sure when it 12 would be done. 13 What's that system problem? 14 A. I don't recall. 15 Q. But Quantico refers to your place, right? 16 A. Yes. 17 Q. Then there's a statement here, the LSs were very candid. 18 LSs are language specialists, right? 19 A. Yes. 20 Q. Several are frustrated with the system. And then 21 especially the Word Perfect macro and the front-end related 22 problems, see below. Right? 23 A. Yes. 24 Q. They expressed that unless they were reporting a line 25 problem, most of their other complaints, questions, went SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7439 4apesat4 Elliott - direct 1 unanswered. The de facto support system has become the LSSs, 2 was mentioned by several LSs, including those who do not work 3 for him or other users. In the meeting in blank office, no one 4 could answer question concerning who was responsible for 5 answering user questions about system operation. 6 Did you have that brought to your attention at that 7 time? 8 A. No, I did not. 9 Q. And do you see at the bottom that the in-out direction 10 indicator is incorrect, right? 11 A. Yes, I see that. 12 Q. Now, was that problem brought to your attention at that 13 time? 14 A. No, it was not. 15 Q. Now, for this page, one more, calls being run together, in 16 all cases shown the on-hook time was less. 17 What does that mean, "calls being run together"? 18 A. I don't know. I did not write this report. 19 Q. I'm sorry. And this report was not brought to your 20 attention at or about that time, is that right? 21 A. That's correct. 22 MR. TIGAR: May I approach, your Honor. 23 THE COURT: Yes. 24 MR. TIGAR: May I have just a moment, please. 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7440 4apesat4 Elliott - direct 1 BY MR. TIGAR: 2 Q. I'm going to show you now, sir, what has been marked as 3 LS1021 and LS1022. Will you take a look, first, at 1022, sir. 4 That's your memorandum, is it not, or approved by you? 5 A. It is a memorandum that came from Quantico to the New York 6 office, yes. 7 Q. All right. 8 MR. TIGAR: We offer it, your Honor. 9 THE COURT: All right. 10 MS. BAKER: Your Honor, I object because of the bottom 11 paragraph on the first page. 12 MR. TIGAR: The bottom paragraph on the first page? 13 THE COURT: Could the parties take a moment just to 14 confer. 15 MR. TIGAR: Of course. 16 (Pause) 17 MR. TIGAR: Your Honor, we offer 1022, with the 18 understanding that before it's displayed to the jury, we'll 19 redact the sentence, the material that begins, the TICTU. 20 THE COURT: OK. All right. With that redaction 21 LS1022 received in evidence. 22 (Defendant's Exhibit LS1022 received in evidence) 23 MR. TIGAR: Now, this is a memorandum -- let me 24 just -- may I display the top portion, your Honor -- 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7441 4apesat4 Elliott - direct 1 MR. TIGAR: -- of that first page. 2 BY MR. TIGAR: 3 Q. This is a memorandum dated October 10, 2000, correct? 4 A. Yes, it is. 5 MR. TIGAR: All right. Now, may I display the second 6 page, your Honor. 7 THE COURT: All right. 8 Q. Then you say the referenced EC identified the target symbol 9 number and telephony data as problematic fields, correct? 10 A. Yes. 11 Q. Now, what was problematic then about that, the telephony 12 data? What was that? 13 A. Those were fields that you fill in the name of the target, 14 the symbol number, which could be a court order number, or the 15 telephony data, something else about that. Those are all 16 administrative things that are put in. It has no impact on the 17 ability to record; just the ability to have that data put into 18 the file. 19 Q. It is important to you to know whose telephone number is 20 being used, right? 21 A. Oh, certainly. 22 Q. And how about target? 23 A. Could be the name of the individual the recorder was 24 against, but more than likely it would be a telephone number, 25 something that describes the facilities that are being SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7442 4apesat4 Elliott - direct 1 intercepted. 2 Q. When you want to retrieve a file off your system, you'd 3 like to know whose telephone number was being recorded, right? 4 A. Oh, yes. 5 Q. You would not want to make a mistake and produce, you know, 6 somebody's telephone tap that was not involved in the case, 7 right? 8 A. Yes. 9 Q. Now, sir, would you take a look, please, at 1021. This is 10 a document that was produced to us. 11 Was this created by the FBI or by Raytheon? 12 A. Just glancing at it, there is no indication of whether it 13 was FBI or Raytheon. 14 Q. But it was produced from the FBI's files, correct? 15 A. I don't know that. It could have been retrieved from 16 Raytheon files. 17 Q. And it does reflect issues with respect to the Raytheon 18 system, correct? 19 A. Yes. 20 MR. TIGAR: We offer 1021, your Honor. 21 THE COURT: All right. 22 MS. BAKER: I'm sorry, your Honor. I don't seem to 23 have a copy of it here. May I just look at Mr. Tigar's copy 24 for a minute. 25 THE COURT: Sure. Take a minute to consult. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7443 4apesat4 Elliott - direct 1 MS. BAKER: No objection. 2 THE COURT: All right. LS1021 received in evidence. 3 (Defendant's Exhibit LS1021 received in evidence) 4 BY MR. TIGAR: 5 Q. Now, do you remember ever seeing this document before you 6 were preparing to testify today? 7 A. No, I don't. 8 MR. TIGAR: May I display it, your Honor. 9 THE COURT: Yes. 10 Q. Now, do you see where it says health monitoring? Do you 11 see that? 12 A. Yes. 13 Q. Currently there is no user-friendly way for nonsystem 14 administrators to check the system component status. The lack 15 of said capability is being blamed for some extended downtime 16 when the afterhours walk-through monitors saw nothing wrong 17 with the system, though parts were not functioning. 18 Do you see that? 19 A. Yes. 20 Q. Now, at or about this time, the fall of 2000, did anyone 21 bring to your attention that people were able to tell after 22 hours that the system wasn't functioning? 23 A. Say that again, please. 24 Q. During this period in the fall of 2000, did anyone bring to 25 your attention that people were not able to tell when the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7444 4apesat4 Elliott - direct 1 system was not functioning? 2 A. I was not aware. 3 Q. Now, then you see postmortem on crash, right? Do you see 4 that down there? 5 A. Yes. 6 Q. Now, "postmortem" means something that happens after 7 something dies, right? 8 A. Yes. 9 Q. And then it says, no diagnostic information is collected 10 when a system crashes, making identification and correction 11 more difficult. 12 Did anyone bring that to your attention in the 2000 13 period? 14 A. No, they did not. But I think when you're looking at the 15 things on this report below the topic that says hoped for 16 enhancements, those are things that when -- more than likely a 17 Raytheon person was in New York. They're walking around, 18 talking to users, and the users are providing input for them 19 for things they would like to see or have. So this falls into 20 things that they would like to see for future enhancements 21 there. 22 Q. That has -- 23 A. So it may or may not be something that's a problem, because 24 that particular language specialist who says this may not know 25 what the issue is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7445 4apesat4 Elliott - direct 1 Q. Let's look at that. Your impression is that this is a 2 document created when somebody walked around and talked to 3 people, right? 4 A. I said it's the appearance of -- this looks to be someone's 5 personal notes. You know, there's no name here, there's no -- 6 Q. Right. 7 A. -- date. And these hoped for enhancements are things that 8 were to be -- that whoever was talked to or whoever this 9 information come from -- came from, it was things that they 10 wanted to add to the system. The person who's providing this 11 information may or may not know whether this exists in the 12 system or not. Does that make sense? 13 Q. I understand. Now, you don't have -- nobody has access to 14 that system SpiderNet that doesn't know what they're doing, 15 right? 16 A. Well, no, sir. 17 Q. I mean, everybody that has access to it knows their job and 18 knows how to do their job, right? 19 A. Well, the language specialists would have access to being 20 able to play back recorded voices. They would not have access 21 to that part of the system that input the targets, so each 22 person that worked on the system would have different access 23 levels. 24 Q. Now, language specialists are the first line of 25 investigation in foreign intelligence recordings, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7446 4apesat4 Elliott - direct 1 A. In this particular case or this -- not this case but in 2 this subject matter, it would be a language specialist who 3 would listen to those recordings first, particularly if they 4 were in a foreign language. 5 Q. That's right. And the language specialist is supposed to 6 spot what's pertinent and what's not, right? 7 A. Based upon the guidelines that they're given, they are to 8 provide to the analyst and to the investigative agent the 9 information they think matches in the calls that they're 10 listening to. 11 Q. And they're supposed to report problems that they have in 12 being able to do their job, right? 13 A. Yes, they are. 14 MR. TIGAR: And now, may I show page two, your Honor. 15 THE COURT: Yes. 16 Q. User notes. Now, that would indicate that there is a user 17 talking, right? 18 A. Yes. 19 Q. On -- do you see this one? On-hook time too short. One 20 call broken into 11 sessions. 21 Do you know of any calls in this case that were broken 22 into 11 sessions? 23 A. I'm not certain if there was. 24 Q. But if there was a call that was broken into 11 sessions, 25 it would be the language specialist that would be the first one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7447 4apesat4 Elliott - direct 1 to spot that, right? 2 A. It could. It could also be one of the systems 3 administrators or one of the people providing maintenance on 4 the system. I'm not there so -- 5 Q. And if a language specialist reported that problem, that 6 would be something that people who are responsible would have 7 the duty to investigate, right? 8 A. It would. And typically it would be something that would 9 go back to the technical agent. If there is one call broken 10 into 11 sessions, that indicates there's a problem with that 11 loop extender in the field at that telephone pole. And we need 12 to go examine that and determine if it needs to be replaced 13 because it goes back to that problem of the tone being present 14 or the tone not being present. That's what causes the 15 recording to stop, and that's what causes new sessions. 16 Q. So your -- based on your experience, you say they reported 17 to a technical person. Now, is that technical person somebody 18 that works for you? 19 A. No. We have -- each FBI office have what we call 20 technically trained agents. And the New York office has that 21 as well. It's a technically trained agent that whoever the 22 system administrator here -- or this system would report back 23 to one of those technically trained agents and he would go and 24 verify and check this loop extender to see if it was operating 25 normally. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7448 4apesat4 Elliott - direct 1 Q. So as a part of the proper way to do things, if a language 2 specialist reported that a call was broken into 11 segments, 3 you would expect that the technically trained agents would send 4 somebody out, climb the pole and make sure the loop extender 5 was working, right? 6 A. Yes. And if you recall, in one of the previous reports 7 that you showed me, the language specialist said that they 8 report problems but they only get people to respond to those 9 that have to do with recording or line problems. Well, this is 10 a line problem. And that would be one of the those where 11 they're sent to the investigator to determine why those 12 sessions are occurring that way. 13 Q. Now, when the technically trained agent goes out there 14 after the call's been broken into 11 segments, and somebody 15 learns about it and goes and climbs the pole and changes the 16 loop extender, would a record be created of that event? 17 A. Not likely. Not at that level of detail. Those loop 18 extenders are not serialized. There's no serial number on 19 them, and I would not expect that a record would have been kept 20 there. I did not keep those records when I did that job. 21 Q. So in other words, the loop extender's a pretty important 22 piece of gear, though, isn't it; because without that loop 23 extender functioning properly, you're not going to get good 24 information from the target telephone, right? 25 A. Well, whether the loop extender functions properly or not, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7449 4apesat4 Elliott - direct 1 when it is functioning properly, you're going to get the 2 information that goes across the telephone line. If the loop 3 extender fails, and the tone does not turn the recorder on and 4 off, you're going to get no recordings. And I'm not aware that 5 we're introducing any nonrecordings. I'm not aware that the 6 government's introducing nonrecordings in this case. So if the 7 loop extender fails, there's nothing to record. 8 Q. Well, this report of error, if I can put this back up -- 9 MR. TIGAR: May I put it back up, your Honor. 10 THE COURT: Yes. 11 Q. -- says that one call is broken into 11 sessions. Now, 12 you interpret that as meaning that there were 11 pieces of what 13 was recorded, right? 14 A. Yes. And there was stuff in between that didn't get 15 recorded. 16 Q. Right. 17 A. If that's what this says. 18 Q. So, therefore, there would be gaps, right, in what wasn't 19 recorded, right? 20 A. Yes, there would be nonrecordings. 21 Q. That's your inference from this, right? So it's possible, 22 therefore, to have a loop extender he -- if the loop extender 23 is the problem, the loop extender can be intermittent, correct? 24 A. Yes, it could be. 25 Q. And when a loop extender is intermittent, that would cause SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7450 4apesat4 Elliott - direct 1 situations where there's simply a technical problem on the tape 2 because this call's broken into 11 sessions, right? 3 A. Well, all it does is breaks the call into 11 sessions. The 4 audio that you have recorded is still good audio. That's 5 conversation. It's there. The 11 sessions just makes it look 6 like it was a -- maybe 11 different phone calls, when in 7 actuality your telephone record, when you look at the telephone 8 bills or telephone numbers, it doesn't support that. So you 9 didn't lose anything except what was not recorded. You got 10 what was recorded. 11 Q. And the way to tell how much you lost on any given call 12 would be to look at the SRIs and look at the in-time of each 13 segment and the beginning time of the next segment, right? 14 A. That makes sense. 15 MR. TIGAR: No further questions. 16 MS. BAKER: No questions. 17 THE COURT: All right. Ladies and gentlemen, we are 18 just about at the lunch break. And when we're in the process 19 of breaking, I always dismiss the jury first and then dismiss 20 the witness. So after you leave, I will excuse the witness and 21 the witness can step down. 22 But we're going to break for lunch. And so it's very, 23 very important, ladies and gentlemen, to follow all of my 24 instructions. Please, don't talk about this case at all. And 25 I repeat the instruction now, also, because I want to make sure SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7451 4apesat4 Elliott - direct 1 that you not only don't talk about the case, but don't talk 2 about anything that I spoke to you about this morning. And 3 obviously, I may not continue to repeat that every time we 4 break, but you're to continue to follow that instruction. 5 So, please, don't talk about this case at all. Always 6 remember to keep an open mind until you've heard all of the 7 evidence, I've instructed you on the law and you've gone to the 8 jury room to begin your deliberations. Fairness and justice 9 requires that you do that. 10 It's about 1:00 so we'll break until 2:15. Have a 11 very good lunch and I look forward to seeing you after lunch. 12 (Jury excused) 13 THE COURT: Mr. Elliott is excused. You may step 14 down. 15 (Witness excused) 16 THE COURT: If the parties would be back after lunch 17 at five after 2:00. Have a good lunch. 18 (Luncheon adjournment) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7452 4apesat4 Elliott - direct 1 AFTERNOON SESSION 2 2:15 p.m. 3 (In open court; jury not present) 4 THE COURT: I have previously ruled on various 5 objections to proposed exhibits. After I ruled on those 6 objections there was a series of additional exhibits and a 7 letter from Mr. Dember dated October 16th as to which there's 8 been no argument and no response. And I don't know whether any 9 of those exhibits might come up this afternoon. 10 And I also note that there were a couple of other 11 exhibits as to which there was an issue as to whether the 12 transcripts, whether they were being offered for the truth of 13 anything that was said in those transcripts or not. And the 14 defense was also going to check with Mr. Yousry's counsel as to 15 the position on those transcripts. 16 MR. TIGAR: As to the transcripts, your Honor, we have 17 no objection to offering them not for the truth of what's in 18 them, but for state of mind, with the one exception. And that 19 is there is a phone call -- we're not going to get to it 20 today -- on May 17, 2000, in which Ms. Stewart says, I have the 21 thing, I'm going to sign it now, or words to that effect. 22 And under United States vs. Annunciando, which is 23 Judge Friendly's opinion, that is admissible for the truth of 24 the matter asserted, and as he points out under Mutual Life 25 Insurance Company vs. Hillmon as proving that she thereafter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7453 4apesat4 1 did what she said she intended to. 2 THE COURT: Well, if we're not going to get to the 3 transcripts, I can listen to the government on those at another 4 point. 5 I can tell you the exhibits that were raised in 6 Mr. Dember's letter were LS307, which was a February 23, 2001, 7 memo from Ms. Stewart to Stanley Cohen -- 8 MR. TIGAR: Withdrawn. 9 THE COURT: LS705, which you just mentioned. 10 MR. TIGAR: Yes, your Honor. I should have said that. 11 That was LS705, yes. 12 THE COURT: LS706, which I can hear from you about 13 later. 14 And the last exhibit was LS46, which the government 15 just pointed out that I hadn't ruled on. The reason I hadn't 16 ruled on it was the defense position was they were not offering 17 LS46. 18 MR. TIGAR: That's correct, your Honor. 19 Now, with respect to these phone calls and other 20 electronic evidence, Mr. Yousry's team has been negotiating 21 with the government in an effort to work out globally how these 22 things are to be dealt with. We're not going to get to it 23 today. It's our hope that we will avoid any need for 24 intervention by the Court on it. That's the reason that we 25 haven't kept the Court apprised, which I apologize, and we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7454 4apesat4 1 certainly haven't decided to create a dispute where none may 2 turn out to exist. 3 THE COURT: That's fine. I had just not wanted to 4 leave something up in the air that could interrupt something 5 that otherwise might be proceeding. 6 All right. 7 MR. TIGAR: We have a request, your Honor. 8 THE COURT: Yes. 9 MR. TIGAR: We're going to be -- I'm going to be 10 asking Ms. Stewart fairly early in the examination about her 11 representing Sheikh Abdel Rahman. And I would ask the Court 12 either at the opening of the examination or five minutes into 13 it to repeat the judicial notice that you took at transcript 14 pages 2310 and 2311; that the date of conviction, the 15 conviction affirmation, the fact that it's not -- defendants 16 are not bound by it. It was an agreed judicial notice, your 17 Honor. 18 And given the amount of time that's elapsed since that 19 was done, we would appreciate the Court repeating it. And I 20 don't want to be in a position, if the Court doesn't want, of 21 saying, your Honor, would you now repeat that because, you 22 know, it's not my house and I don't make the rules. But -- so 23 but at some convenient time, if your Honor would do that. 24 THE COURT: I have no problem reminding the jury of 25 the full judicial notice. And if -- I don't keep all of my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7455 4apesat4 1 transcripts here. If someone could pass me up the pages. 2 MR. TIGAR: Yes, your Honor. I have the -- just a 3 minute, let me look and make sure. 4 I have the pages, your Honor. May I hand them to 5 Mr. Fletcher. 6 THE COURT: Sure. 7 MR. TIGAR: Through Mr. Morvillo to Mr. Fletcher. 8 THE COURT: OK. I should -- there was another issue 9 that was raised, which was the issue of completeness with 10 respect to the cross-examination of Emad Salem. 11 MR. TIGAR: We've withdrawn that exhibit, your Honor. 12 THE COURT: OK. 13 MR. TIGAR: Ms. Shellow-Levine reminds me, your Honor, 14 we did address a letter to the Court of October 17, 2004, with 15 respect to some of these issues. Does your Honor have a record 16 of having received that? 17 THE COURT: I don't believe so. 18 MR. TIGAR: We only have it on the computer screen, 19 but all the matters your Honor has raised are in there. And 20 there is no information in the letter that we have not 21 discussed at this point. 22 THE COURT: If you want to give me another copy of it 23 later today, that's fine. 24 MR. TIGAR: We'll do that, your Honor. 25 THE COURT: Anything about the letter that should SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7456 4apesat4 1 change anything that I've done? 2 MR. TIGAR: No. 3 MR. DEMBER: Your Honor, I don't believe we've 4 received that letter either. So if we can get a copy as well, 5 that would be helpful. 6 MS. SHELLOW-LAVINE: Of course, your Honor. 7 THE COURT: OK. It's up to you, with respect to the 8 procedure with respect to your next witness. 9 MR. TIGAR: Your Honor, we'd ask for a break every 10 hour or so. 11 As to the rest of the procedure, Ms. Stewart will have 12 with her on the witness stand, with your Honor's permission, a 13 book that contains the exhibits about which I want to ask her. 14 And that way she isn't compelled to keep turning and looking at 15 that screen. 16 THE COURT: That's fine. 17 MR. TIGAR: We will be laying a foundation for each of 18 the new exhibits that we intend to show, that we intend to 19 offer in her testimony, and all of those are exhibits on which 20 the Court has ruled. 21 In addition to that, we will be showing Ms. Stewart 22 some of the Government Exhibits in evidence and will -- I'll 23 try to say each time the exhibit number and in evidence and ask 24 permission to show it. That is the procedure that we had 25 intended to follow. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7457 4apesat4 1 THE COURT: OK. Do you want to call the witness or 2 put the witness on the stand? 3 MR. TIGAR: I would like to call the witness, your 4 Honor. 5 THE COURT: All right. I'll allow that. Are we ready 6 to bring in the jury? All right. 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 7458 4apesat4 1 (In open court; jury present) 2 THE COURT: Good afternoon, ladies and gentlemen. 3 It's good to see you all. 4 Mr. Tigar, you may call your next witness. 5 MR. TIGAR: Defense calls Lynne Stewart. 6 LYNNE STEWART, 6 7 called as a witness by the Defendant, 8 having been duly sworn, testified as follows: 9 DIRECT EXAMINATION 10 BY MR. TIGAR: 11 Q. Ms. Stewart, what do you do for work? 12 A. I'm a lawyer and I defend persons who the government has 13 accused of criminal acts. 14 Q. Do you do that work now? 15 A. I do, although I am diminished since April of 2002, when I 16 was arrested in this case. 17 Q. In connection with your work and the representation you're 18 doing now, do you visit clients in prison? 19 A. I do. There was, for a short period of time, a question 20 about whether I would be allowed into the prisons, but I 21 regularly visit the prisons, both state and federal. 22 Q. Now, in this case two clients of yours have been mentioned. 23 The first is someone named Nasser Ahmed. Did you represent 24 him? 25 A. I did in connection with an immigration matter in which he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7459 4apesat4 Stewart - direct 1 was ordered deported. And then he asked for asylum. And we 2 won that case. I should say he won that case. I'm the lawyer; 3 I don't exactly win or lose. 4 MR. TIGAR: Now, your Honor, may I show the witness 5 Government Exhibit 2666 in evidence? 6 THE COURT: Yes. 7 Q. Ms. Stewart, I'm placing on the Elmo, which is this 8 overhead projector, Government Exhibit 2666 in evidence. Is 9 that the decision of the immigration judge? 10 A. That is the decision of the immigration Judge, rendered, I 11 believe, in 1999. 12 Q. We'll talk more about that later. 13 Ms. Stewart, the other client that's been discussed 14 here is Sheikh Omar Abdel Rahman. You are his counsel? 15 A. I was, in a federal proceeding in a courtroom on the third 16 floor just above us. 17 Q. And did he win or lose? 18 A. We fought the case for ten months and we lost, or I should 19 say he lost. Once again, I'm the lawyer, but one becomes a 20 part of a case one does, especially in a trial that lasts ten 21 months. 22 MR. TIGAR: Your Honor, at this time we would ask the 23 Court to reread for the jury the judicial notice that your 24 Honor read at transcript pages 2310 and 2311 with respect to 25 Rahman. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7460 4apesat4 Stewart - direct 1 THE COURT: All right. Ladies and gentlemen, I have 2 previously taken judicial notice of certain facts and I'll 3 repeat that for you now. 4 I have taken judicial notice of certain facts which I 5 believe are not subject to reasonable dispute. Specifically, 6 that: One, Sheikh Omar Abdel Rahman was convicted on 7 January 17, 1996, of seditious conspiracy, solicitation of 8 crimes of violence, conspiracy to murder and bombing 9 conspiracy, and was sentenced by Judge Michael B. Mukasey of 10 this court to a term of life imprisonment. 11 Two, his conviction was affirmed by the United States 12 Court of Appeals for the Second Circuit on August 16, 1999. 13 And three, the Supreme Court of the United States 14 declined to review his case on November 1, 1999. 15 I have accepted these facts to be true, even though no 16 evidence has been introduced proving them to be true. The 17 facts of which I have taken judicial notice do not bind you to 18 conclude that Sheikh Omar Abdel Rahman was, in fact, guilty of 19 those offenses. You may, but are not required to, agree that 20 the facts of which I have taken judicial notice are true. The 21 fact of conviction and the subsequent appellate review is not 22 evidence of the guilt of Sheikh Abdel Rahman, and none of the 23 defendants are bound by those determinations, because none of 24 the defendants was a party in that case. 25 All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7461 4apesat4 Stewart - direct 1 Q. Now, are you Sheikh Abdel Rahman's lawyer today? 2 A. No. As a condition of being released in this case, I 3 withdrew as his attorney. 4 Q. Who is his lawyer, if you know? 5 A. Ramsey Clark and Abdeen Jabara and Larry Schilling continue 6 to represent them, and I continue to support them in whatever 7 ways I can. 8 Q. When did you first hear about the case of Omar Abdel 9 Rahman? 10 A. It was the fall of 1994 -- well, I should go back a little. 11 Of course everyone I think in the city heard about the 12 case at the point of the arrest, which took place sometime, I 13 believe, in '93. And also there was a lot of publicity 14 surrounding the initial arrest of people before the Sheikh was 15 arrested. So I knew about it, but only in that glancing way 16 that you know about a case from the media. 17 I did receive a call, and -- sometime in the fall, I 18 would say October of '94, from Ron Kuby, who was a partner of 19 William Kunstler. And he indicated that there were several 20 people, including the Sheikh, who were looking for lawyers in a 21 case that was scheduled to begin at the beginning of January. 22 Q. Let me stop there. Had you known Ron Kuby before that 23 time? 24 A. Yes, very well. Because I had done a great deal of work 25 with William Kunstler, and of course Ron was the first son of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7462 4apesat4 Stewart - direct 1 Bill Kunstler. By that I mean he was there, he was helpful, he 2 was always on the job for us. 3 Q. And did you meet with Mr. Kuby in person or talk to him on 4 the telephone about the Sheikh Abdel Rahman case? 5 A. No. He basically -- we spoke on the telephone, and 6 sometime thereafter I received a second call. This one was 7 from Abdeen Jabara. 8 Q. Let me stop there, if I can. At that time had Sheikh Abdel 9 Rahman been indicted? 10 A. Yes. He was indicted. He was appearing pro se. 11 Mr. Kunstler had represented him in the past, but for at least 12 a year before I received this phone call, he was representing 13 himself with the aid of a court-appointed lawyer. 14 Q. So you were saying you met with a Mr. Abdeen Jabara? 15 A. Yes. 16 Q. And who is -- had you ever met Abdeen Jabara before that 17 time? 18 A. Not before I received a phone call and he asked if -- well, 19 he asked if he could come over to my office and bring me the 20 papers from the case to look over. 21 Q. Now, did you later on work with Abdeen Jabara in 22 representing Sheikh Abdel Rahman? 23 A. Yes. I came to learn that Abdeen Jabara was -- had been an 24 attorney in Detroit; that he was currently residing in New York 25 in a -- well, he had come to New York because he had met a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7463 4apesat4 Stewart - direct 1 woman that he cared about a great deal. And he was sharing 2 space with Ramsey Clark. And he was bringing over the papers 3 and going to talk to me a little bit about the case of Sheikh 4 Omar Abdel Rahman. 5 Q. And did he do that? 6 A. And he did. 7 Q. Now, did there come a time when you met Ramsey Clark in 8 connection with this case? 9 A. Yes. I spoke first with Ramsey Clark on the telephone, and 10 then later I did meet with him to just discuss with him the 11 sort of -- the parameters of what was exactly going on with the 12 case at the current moment; where things were at and what was 13 the future outlook for this case, in his opinion. So I did 14 meet with him, maybe a week after I got the papers. 15 Q. This is the fall of 1994? 16 A. This is the fall, October I would say. 17 Q. Have you learned some things about Islamists and the Middle 18 East and -- since '94 that you didn't know then? 19 A. I would say that in 1994 I was basically untutored in the 20 ways of Islam. And I was a political person, I guess, so I 21 could say I had knowledge of events and politics in the Middle 22 East, mainly around Palestine. But as far as the Islamic 23 fundamentalist political, I really knew next to nothing at the 24 point that -- at the point we're talking about. 25 Q. Do you expect Mr. Clark to be a witness in this case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7464 4apesat4 Stewart - direct 1 MR. DEMBER: Objection, your Honor. 2 THE COURT: Sustained. 3 Q. Did you have to consider -- well, were you asked to take on 4 the representation of Sheikh Abdel Rahman? 5 A. Well, first I was asked if I was interested in the case. 6 And then they said, well, would you go down to the jail, to the 7 MCC and visit with Dr. Abdel Rahman and consult with him, have 8 a consult. This is customary for lawyers. This is what we do. 9 This is how we meet our clients in my line of work by and 10 large. We go to the jail and we visit. 11 Q. Now, he was confined at that time? 12 A. He was. 13 Q. Where was he confined? 14 A. It's the Metropolitan Correction Center. It's located 15 directly behind this courthouse, actually. 16 Q. It's that -- can you describe it for the jury? Is it the 17 one that has bars on the windows? 18 A. It's the one with bars. They're not that noticeable. 19 They're not Sing Sing-type bars, but they're definitely bars 20 and it's a five-story building. I think it's on Park Row. 21 There are visiting rooms. It's pretty much a general layout of 22 a jail. 23 He, of course, was confined on a special wing that was 24 more restrictive than other wings, but I did not learn that 25 until I went to visit him. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7465 4apesat4 Stewart - direct 1 Q. Now, in order to prepare to meet with Sheikh Abdel Rahman, 2 what did you do? 3 A. Well, I think that when you go in to see a client the first 4 time, as part of the lawyerring process, you educate yourself 5 about their case. You educate yourself about the person. He, 6 of course, had been receiving tremendous publicity, both in the 7 press and the New Yorker in particular had covered him 8 extensively. I also spoke, of course, as I said, to Ramsey and 9 to Abdeen. I read the indictment cover to cover. I read some 10 of the motions that had been filed, not only by him but by 11 cocounsel in the case. 12 It was a large case. There were 11 codefendants. And 13 I also -- I did some reading on my own in my own materials, 14 things that I searched out that were recommended to me. I know 15 I particularly wanted to be somewhat cognizant of Egypt. I 16 knew that had been his main focus for many years. 17 So when I went to the jail, I was familiar with the 18 charges against him. I had reviewed some of the evidence that 19 Ramsey had given me that had been given over by the government 20 to him and his assigned counsel. So I went with some 21 knowledge. I wouldn't say I was as knowledgeable as I became 22 thereafter. 23 Q. Now, about when was this that you first met with Sheikh 24 Abdel Rahman? 25 A. I would say it was early November. I don't know the exact SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7466 4apesat4 Stewart - direct 1 date, but it was early November. I visited him. I'm not 2 certain who came or met me there to interpret. I have a memory 3 that it might have been Mr. Sattar, but it also might have been 4 one of the other paralegals who was translating that day. 5 Q. Was there a trial date set at that time? 6 A. There was. It was set for early December. Could have been 7 late November. It was either right after Thanksgiving or maybe 8 the first week in December. 9 Q. Now, eventually you decided to represent Sheikh Abdel 10 Rahman? 11 A. I did. 12 Q. Now, did you think it was a good idea -- withdrawn. 13 You said he had been representing himself, right? 14 A. Yes. 15 Q. Now, did you have an understanding of how that came about? 16 MR. DEMBER: Objection, your Honor. Irrelevant. 17 THE COURT: Overruled. 18 A. My understanding was that he had been represented by 19 Mr. Kunstler and Mr. Kuby. They were representing other people 20 in the case. They had represented other people who were in 21 that case. They were relieved. 22 At that point it was recommended to him that he should 23 be his own lawyer because he stood as the symbol for what was 24 in the view of the codefendants and the other counsel the 25 overreaching of the government. He had assumed this role with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7467 4apesat4 Stewart - direct 1 help, and the Court gave him interpreters, paralegals, a great 2 deal of help. 3 And -- but the fact still remained that he was a blind 4 man. He was from a very different culture. He had defended 5 himself in the Sadat trial and been acquitted in Egypt. But 6 this was a different scenario. He was representing himself 7 under conditions which were different for him than they would 8 be for anyone else, and not just because he was blind and from 9 a different culture and didn't speak English. 10 Q. I want to go through with you the considerations that led 11 you to take on this representation, the questions you asked 12 yourself. 13 Why did you think, if you did, that this was a case 14 that you should do or could do? 15 A. All -- 16 MR. DEMBER: Objection, your Honor. 17 THE COURT: Overruled. 18 A. I think every case that comes to a lawyer, you are in -- 19 you're basically holding yourself out to represent people under 20 the rules of ethics, which is what we operate under. We are 21 bound to accept cases, even those of people who are hated by 22 the general public. We also, though, have personal 23 considerations, such as scheduling; are there other big trials 24 on our horizon; financial considerations; family 25 considerations. Getting into a trial that's projected as being SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7468 4apesat4 Stewart - direct 1 many, many months means that basically the lawyer is cut off 2 from doing all those normal weekends in the country and 3 vacations. You're sort of -- my relatives are farm people, and 4 they always used to say they were tied to the tail of a cow. 5 When you're doing a big trial, you're tied to that client. 6 Then it's seven days a week and many, many hours. 7 So all of those considerations, along with the fact 8 that -- the particular nature of this case, the fact that it 9 was dealing with Islamic terrorism, that many colleagues and 10 friends thought it would not be a good idea for me to do this 11 case; that it might hurt my career; that, in fact, I should 12 stay with homegrown politics and not branch out. All of those 13 things were a consideration, but I listened. 14 I talked to a lot of people -- my husband, Ralph; 15 my -- Ramsey Clark, at that point, and learned why he was as 16 persuasive as an Attorney General as he was -- and ultimately 17 made my decision, which ultimately had to be that this was a 18 case I wanted to work on, that I thought I had talent that 19 could be lent to it. And I thought that at this point in my 20 career and perhaps in history, if I can be so bold, it was a 21 case I wanted to do. 22 Q. Now, what kind of a staff of people had been working on the 23 case? You mentioned there was a court-appointed lawyer and you 24 mentioned paralegals. Why don't we -- let's start with the 25 materials. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7469 4apesat4 Stewart - direct 1 Were there a lot of documents in that case? 2 A. There were a lot of documents, but there were a gazillion, 3 hundreds and hundreds of tapes. And this was -- and many, many 4 of them were in Arabic. Many of them had been -- this was not 5 a wiretap case as such, but it was a case where the informant 6 had taped himself on hundreds of conversations. My cocounsel 7 in the case had been working for almost two years on the case 8 at the point that I came into it. So there was a tremendous 9 amount of work to accomplish in this case. 10 Q. Now, you said that a lot of this material was in Arabic. 11 Now, based on your observation, did Sheikh Abdel Rahman have a 12 command of English such that he could deal with complex issues 13 in the English language? 14 A. No. He did not. He did not have the background to -- I 15 remember one of the things that was done was we translated a 16 book about the Constitution explaining the Constitution and how 17 it operated and why it was the Supreme Court law of the land, 18 because he came from a very different form of justice, if it 19 could be called that. 20 But at any rate, we also -- we had interpreters for 21 just about everything. I think he -- of course, he was trained 22 to read Braille in Arabic. He was not trained to read it in 23 English. So Braille was no solution for us. So nearly 24 everything had to be translated to him, and then translated 25 back to me so we could have a discussion about it, if it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7470 4apesat4 Stewart - direct 1 something we thought was worthy of discussion. So it was layer 2 upon layer of translation all the time. 3 Q. Was he blind at that time? 4 A. He was blind. He had been blind since he was, I think, an 5 infant, just about. 6 Q. Now, you met with him? 7 A. I met him. 8 Q. And did you decide to take his case at that point after you 9 met him? 10 A. No. I went to the MCC. We talked. We had probably met 11 for a couple of hours. We talked about the case. I recall 12 that he asked me what I thought was the worst thing in his 13 case. And I told him -- 14 Q. What did you say? 15 A. Pardon me? 16 Q. What did you say? 17 A. I don't -- is that -- I guess I can talk about it. You 18 know, we're still -- I'm still a tenderfoot here in the sense 19 that we criminal defense lawyers don't talk about what our 20 clients tell us. 21 But I guess I told him that he had had a conversation 22 that was taped with the informant that I thought would sound 23 very, very bad in court. And unless there was some reasonable 24 explanation for this, that would be the most difficult thing in 25 his case. He agreed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7471 4apesat4 Stewart - direct 1 Q. Did you understand at that time that Sheikh Abdel Rahman 2 had advocated violence? 3 A. I knew that that was part of his background and program. I 4 knew that he certainly had spoken out and advocated it while in 5 Egypt. I don't think there was much question about that. Yes, 6 at that point I would say I knew that. But, you know, it's 7 funny, I've represented many people, and that's part of what 8 comes with the lawyerring, is you take the clients where they 9 are. You defend them whatever their advocacy is. 10 Q. Now, you knew that he was an Islamic cleric, did you not? 11 A. Yes. 12 Q. Did you think it was in his interest to have a woman 13 lawyer? 14 A. I thought it was in his interest. I thought it was in his 15 interest because, you know, we are charged with zealously 16 working for our clients within the law and within the rules of 17 ethics. And, of course, we bend every effort towards 18 presenting that client in a manner that is most efficient and 19 most telling to a jury. 20 And I would say that I did think it was a good idea 21 because, of course, the sentiment or the widely-held belief is 22 that women in Islam are relegated to the veil and they are not 23 permitted to act as human beings. And here was probably the 24 leading cleric, the leading Islamist, and he was hiring a woman 25 lawyer. I'm not sure that he shared these sentiments, however, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7472 4apesat4 Stewart - direct 1 but he certainly shared them at certain points of the -- of my 2 representation, I do believe. 3 Q. Without going into detail, were there cases that you had 4 done in the past representing people who were charged with 5 violent acts that you thought prepared you to enter this case? 6 A. Yes. I think I -- 7 MR. DEMBER: Objection, your Honor. 8 THE COURT: Sustained. 9 MR. TIGAR: May we be heard at the break on that. 10 THE COURT: Sure. 11 BY MR. TIGAR: 12 Q. Did you understand that Sheikh Abdel Rahman had been a 13 political figure in Egypt before coming to the United States? 14 A. Political, but I think even more important, certainly to 15 him, a religious figure. I think that his eminence, and of 16 course the word emir, which is used very frequently, stemmed 17 from him being -- I guess the analogy would be sort of a prince 18 of the church; that his outspokenness was a religious 19 outspokenness, and that as such he had become a leader sometime 20 I think in the late '70s in Egypt. 21 Q. Did your representation of him in your view involve 22 furthering his political goals? 23 A. No. I'm my own person. I have my own politics. They are 24 not fundamentalist. 25 And the only way that his politics entered into the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7473 4apesat4 Stewart - direct 1 representation was because we needed to explain to the jury how 2 he happened to be before them. And to that extent we did need 3 to explain what his politics were, but I'm not an adherent of 4 fundamentalism. 5 Q. Now, when you say you're not an adherent of fundamentalism, 6 in your role as a lawyer, did you think it was a part of that 7 to be someone who would adopt the client's political view? 8 A. No. The danger, or I guess the thing that is very 9 important in lawyerring is you have to take a step to the side. 10 You have to be able to view the case dispassionately. You 11 cannot be too close to the client, or certainly not close to 12 their cause, whatever it may be. 13 Q. Now, you mentioned something that you wanted to convey to 14 the jury, explain to the jury. In a case like this, how did 15 that figure in to your decision-making about taking the case, 16 that task of explaining to the jury? 17 A. My task to the jury was to translate this person who had 18 basically been demonized in all the media basically from almost 19 the point at which he came to this country, and to ask them to 20 focus on him; to neutralize, if you will, all of that which was 21 sort of in the court, in their minds flying around. And in 22 order to do that I felt it was necessary to humanize him. 23 One of the things that he is most remembered for -- 24 and I think the photograph that the government showed of him 25 showed him with these heavy, dark glasses on. I came to learn SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7474 4apesat4 Stewart - direct 1 after I had taken on the case that it was at the suggestion of 2 the informant in this case, an informant that was working for 3 both the FBI and the Egyptian government, that he started 4 wearing these dark glasses. And there is nothing that is more 5 formidable, I guess, than speaking to someone who is hiding 6 allegedly behind the dark glasses. 7 So I said, do you need to wear those? Are they 8 necessary? Do they help you? No. I said, then, please, don't 9 ever wear them again. People can cope with blindness. They 10 can't cope with that kind of otherness that they convey. 11 And so from day one I knew my job was to convey to the 12 jury and, indeed, in a certain sense, in even maybe a more 13 universal way, that this was a person whose case had to be 14 judged solely on what happened in the courtroom; and that there 15 was a very possible chance that he had been targeted by the 16 government, and certainly by the Egyptian government. 17 Q. Did you -- you knew there had been media coverage of the 18 case? 19 A. Yes. 20 Q. Had you experience with high-profile cases before this one 21 that influenced how you approached this particular high-profile 22 case? 23 MR. DEMBER: Objection, your Honor. 24 THE COURT: I'll allow it. 25 A. High-profile cases are difficult because, as a lawyer, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7475 4apesat4 Stewart - direct 1 must obey the strictures of the ethical rules, which do not 2 permit press so as to influence a potential jury or to 3 influence the outcome of the case. 4 I spoke to the press. I tried to be extremely 5 circumspect about what I said because I realized that there was 6 a danger inherent here. But I also know that we were also 7 enjoined to answer the government. And when the government has 8 had a press conference to announce an indictment; when things 9 are leaked to the press; when the press is naturally interested 10 in a case of this kind, they're going to get ahold of the most 11 salacious -- or shall I say what sells papers. The things that 12 sell papers are not the kindness and goodness or charity of the 13 defendant, but usually, you know, the violence or the 14 pronouncements of the defendant. 15 So I felt that that needed to be answered, and I did 16 answer it. I had learned in other cases where the media was 17 very, very high, cases that I had handled in the Bronx 18 involving Larry Davis, cases up in Rockland County involving 19 the Brinks hold-up and the subsequent accusations of murder of 20 political people who were arrested at the scene; all of these 21 cases had had a suffocating media, almost. And yet it was 22 something the lawyer needed to do, which was to lighten that 23 atmosphere, to put something there that would neutralize it. 24 As I said, that was a large part of representation in 25 this case; not just the nuts and bolts, not doing just the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7476 4apesat4 Stewart - direct 1 cross-examinations, but neutralizing the territory in which we 2 were working. 3 Q. As you understood what Mr. Jabara, Mr. Kuby and Mr. Clark 4 were asking you, what role were they asking you to have in this 5 trial? 6 A. Well, I was asked to be lead counsel. Mr. Clark was very, 7 very -- had a heavy, heavy schedule, could not take off nine or 8 ten months to try a case such as this. Mr. Jabara, although he 9 had been active and indeed founded the Arab-American 10 Anti-Defamation League, he was not a trial lawyer. He was 11 willing to second-seat me in the case and did ultimately 12 second-seat me, but I was asked -- 13 Q. When you say "second-seat me," what does that mean? 14 A. A second seat is a person who shares with you the burdens 15 of preparation and may take an active role and may not take an 16 active role in the actual oral part of the case, the vocal part 17 of the case, but necessarily is another lawyer to take on part 18 of the work. And Abdeen agreed to do that. And indeed, Abdeen 19 was the point person for our defense, which we never 20 unfortunately were allowed to present. 21 MR. DEMBER: Objection, your Honor. I ask that be 22 stricken, your Honor. 23 THE COURT: All right. Overruled. 24 Q. Now, did Mr. Jabara speak Arabic? 25 A. He did, but he learned that at the University of Michigan. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7477 4apesat4 Stewart - direct 1 He was born in -- outside of Detroit, so he took it as -- for 2 his own interest almost at that point. But then later he 3 improved, but he was still -- it was not his first language, 4 let us put it that way. 5 Q. Now, as you approached the case, you said there were 6 paralegals and a court-appointed lawyer. Now, the Sheikh was 7 pro se; that is to say, he was representing himself. 8 What role did the court-appointed lawyer have, then, 9 if he was representing himself? 10 A. His role was basically to act as an advisor, but, of 11 course, in my view, in order to be an advisor, the client has 12 to know what questions to ask. And the client has to know what 13 his legal rights may or may not be. It was the court-appointed 14 lawyer to -- job to ask those questions and to help, and also 15 to delineate for the client what the charges were, how best to 16 defend. In other words, to act as a lawyer but not to actually 17 do the work in court or make the lawyer decisions, because, of 18 course, we do ultimately make decisions about the clients and 19 the cases we handle. 20 So, his advisor was -- I think worked hard, but I 21 think he was really in a position where he was deemed to be an 22 advisor but had very little groundwork in which to advise. So, 23 he did some of that work. He made some decisions about motions 24 and etc. But the case was not ready to be tried. That was my 25 view when I first came into it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7478 4apesat4 Stewart - direct 1 Q. At that time when you read this indictment, how many 2 defendants were charged in that case? 3 A. I just said -- I said 12. I'm pretty sure there were 12. 4 It could have been 13. One dropped out at the very beginning 5 of the case. So it could have been 13, but it was at least 12 6 defendants. Most of whom -- some of whom had more than one 7 lawyer. 8 Q. And each defendant then was separately represented? 9 A. Each defendant was separately represented. 10 Q. Now, after you read the indictment, after you thought about 11 this, after you went to see the client, did you make a 12 decision? 13 A. Yes. I said I can't possibly do this case because there is 14 no time to prepare. 15 Q. But you did it? 16 A. But I was talked into it, yes. I was convinced that I was 17 the right person to do it, and I thought about it and I thought 18 about that point in my career where I was that I had done some 19 very, very big and important cases. I had achieved a certain 20 level among my community of lawyers and also of friends. I had 21 graduated all my children from college and I wanted a new 22 challenge, and I decided this would be it. 23 Q. Now, I want to go into more detail about the trial itself, 24 but first I'd like to spend a short time talking about your 25 background. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7479 4apesat4 Stewart - direct 1 A. May I have a second. Thank you. 2 Q. OK? 3 A. OK. 4 Q. Where were you born? 5 A. I'm not hearing you. 6 Q. We're having communication problem here. Where were you 7 born? 8 A. Oh, where I was I born. I was born in Brooklyn, New York, 9 in October '39. 10 Q. And where did you grow up? 11 A. I grew up in Queens in a town called Belrose right on the 12 border of Nassau County. I lived there, went to the public 13 schools until I was about 18 years of age. 14 Q. And what did your mom do for work? 15 A. My mother was a high school English teacher. She was well 16 read, intellectual and a very happy suburban house wife with 17 all of that. 18 Q. And what did your father do for work? 19 A. Well, initially he was a -- he was a high school dropout. 20 He went back and got his diploma, then served in World War II. 21 Came out of the Army and went to college at Queens College on 22 the GI bill. He, too, became a teacher and taught in the 23 public schools as well, but the lower grades he taught. 24 Q. Now, you say you went to high school. Was that in Queens? 25 A. I went to Martin Van Buren High School, City High School, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7480 4apesat4 Stewart - direct 1 first graduating class. 2 Q. And what was your first contact with anything to do with 3 the law or the legal profession? 4 A. Well, I think while I was in high school they put on some 5 skit about knowing your rights. It was for either Constitution 6 day or law day or something. And I played the role of a 7 lawyer. And I liked it. It was fun. So that was my first 8 contact. 9 I also wrote an essay for the B'nai B'rith and one the 10 prize of a fountain pen, Schaeffer fountain pen for the 11 Constitution and what it means to us today. That was in I 12 think 1955. 13 Q. I'm sorry? 14 A. I think that was in 1955. 15 Q. Did you work at a law firm? 16 A. During the summers my uncle was a stenographer in a Wall 17 Street law firm, Cravath, Swaine & Moore. And at the age of 16 18 he got me a job there, mainly -- and I don't know whether 19 people will remember this -- but putting carbon in between 20 paper so that the secretaries could type things up that were 21 carbonized. And I did that for one summer. 22 They found out I could read and so I became a 23 proofreader. And then they found out I could really read and I 24 ended up, not without some counterattempts from some of the 25 older partners, in the law library at Cravath, Swaine & Moore, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7481 4apesat4 Stewart - direct 1 where I worked my summer of 17, 18, 19, 20 and 21, I believe. 2 Q. Where did you go to college? 3 A. I went to college in the Midwest. I went to a small but 4 highly rated school called Hope College. It was a college that 5 was run by, I would have to say, a fundamentalist Christian 6 group, the Reform Church in America. And in 1957, when I 7 arrived there, women could not wear pants on campus, nor smoke, 8 nor be out of the dorms after 8:00. We could not go downtown 9 except with someone else along with us. We couldn't go alone, 10 that is. 11 So I had a -- I guess a taste of fundamentalism in 12 college. Didn't care too much for it. 13 Q. Now, did you graduate from Hope College? 14 A. I did not. I left Hope to go on an honors political 15 science semester at American University in Washington, DC, a 16 marvelous program in which we met Justice Douglas and 17 ex-Secretary of State Dean Acheson and studied. 18 And I also met, during that semester, my 19 husband-to-be, Robert Stewart. And we were married in the fall 20 of that year and I did not return to Hope College. 21 Q. Now, you -- after your marriage and after getting your -- 22 you eventually got a bachelor degree? 23 A. I got a bachelor's degree in political science. I 24 hadn't -- I had actually thought I was going to be a history 25 major, but I ended up in political science and Spanish. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7482 4apesat4 Stewart - direct 1 Q. Now, what was your -- after you got out of college, you 2 were looking for work? 3 A. After I got out of college, my -- I worked at Cravath the 4 summer I got out. I was expecting my first child in October, 5 my daughter, Brenna. And my husband was going to start medical 6 school in Philadelphia, so we moved to Philadelphia. And 7 Brenna was born in Philadelphia in October of 1961. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7483 4APMSAT5 Stewart - direct 1 Q. What was your first job out of college? 2 A. My first job out of college was as a librarian in a public 3 school on 135th and Lenox Avenue in Harlem. It was also the 4 beginning of a lifelong involvement, commitment, if you will, 5 to a movement I really had no idea at that point even existed. 6 Q. As a librarian at 135th Street and Lenox, what school was 7 that? 8 A. It was P.S. 175, the Henry Highland Garnett School. It was 9 K through 6, kindergarten through sixth grade, and I was hired 10 on as the librarian, the children's librarian, the teacher of 11 library. 12 Q. Was that job at P.S. 175 the first time you had spent a 13 great deal of time in a diverse community? 14 A. It wasn't diverse, Mr. Tigar. It was an all black 15 community, which came as a surprise to me. I had grown up 16 probably not ten miles from Harlem and never knew it existed. 17 It was the way that things were done in those days, I think, 18 that we just were not made aware. That was not part of our 19 social studies. And so I came to Harlem to teach and was 20 amazed at what I saw there, amazed, wanted to know more, 21 wanting to find out more, was very -- became very angry that no 22 one had ever told me that there was a problem, that racism 23 existed, that the world was not as I had expected it and a 24 place where one could rise because one had the ability to do 25 so. This was now 1962, the fall of 1962, and it was a time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7484 4APMSAT5 Stewart - direct 1 when the civil rights and the human rights movement was just 2 beginning to get under way. 3 Q. How long did you work at P.S. 175? 4 A. I was at P.S. 175 until the year 1965, when I then went to 5 teach as teacher of library on the lower east side of Manhattan 6 where I also lived. 7 Q. To fast forward, would you open your book, please, to 8 LS102. Is that a picture of people taken in your law offices? 9 A. Yes, it is. 10 Q. When was that taken, approximately? 11 A. That was taken approximately -- I would say it was around 12 Christmas time 1996, I would say, or maybe 7. Because it is 13 used on our Christmas card that year. 14 MR. TIGAR: Your Honor, we offer 102. 15 THE COURT: LS102 received in evidence. 16 (Defendant's Exhibit LS102 received in evidence) 17 MR. TIGAR: May I display it, your Honor? 18 THE COURT: Yes. 19 Q. I want to fast forward to 1999 to see who folks are. I can 20 zoom in. 21 Now, can you tell us who these people are? We will 22 know more as the case goes on, but who are these folks? 23 A. Some of their names have already been mentioned in the 24 courts. 25 Q. Who is the gentleman right there? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7485 4APMSAT5 Stewart - direct 1 A. That gentleman is my husband of almost 40 years, Ralph 2 Pointer in court. 3 Q. Who is this right here? 4 A. This is my son Geoffrey. He was born in 1965. I shouldn't 5 give it away, maybe. '64 rather. He is also in court. He is 6 a lawyer. He and I practice law together. 7 Q. He was born while you were working at P.S. 175? 8 A. He was. 9 Q. Going over from where Ralph Pointer is, can you tell us who 10 the rest of these folks are? 11 A. Next to Ralph is Sabrina Schroff, a young lawyer who was 12 recommended to me to intern with me, I guess I would say -- 13 although she was already a member of the bar -- by a judge of 14 this court, Judge Mary Johnson Lowe, who asked her, told her to 15 come study with me. Next to her is Pat Levasseur, who at an 16 earlier time had been a codefendant in a case that I had 17 defended and came to work for me after she was -- 18 Q. That's a codefendant of one of your clients? 19 A. Codefendant of one of my clients, yes, of one of my 20 clients. Yes, indeed. Next to her is Jennifer Cole. She is a 21 young woman who came and was our secretary. Pat acted 22 basically as a paralegal. She worked for us and other lawyers. 23 And Jennifer was our secretary. She -- her husband had been a 24 client of mine erstwhile. Next to her is John Libbey, a 25 graduate of CUNY law school who worked on some appeals for us SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7486 4APMSAT5 Stewart - direct 1 within the office and is now a public defender out in San 2 Diego, California. 3 Q. I wanted to fast forward on that. You say you worked at 4 P.S. 175 until June '65, right? 5 A. Right. 6 Q. And did you then transfer then to another school? 7 A. Yes. 8 Q. Where was that -- by that time, 1965, what was your family 9 situation? 10 A. By '65, my first husband and I had been divorced. I had 11 two children. I was living in the projects on Pitt Street on 12 the lower east side of Manhattan between Rivington and Stanton 13 Streets. 14 Q. And what school were you working at, if any, at that time? 15 A. I transferred to P.S. 64. I had also, in the intervening 16 years, become very active in the school's movement, as we 17 called it. That was in the early '60s. There was a push in 18 the black community for community control of their schools. 19 Started at I.S. 201 in Harlem. And Ralph, my husband, was 20 very, very involved in that. He was also a teacher. We had 21 met at P.S. 175. And we went from there to having other 22 branches at the lower east side and in Williamsburg, Bedford 23 Stuyvesant, the movement for change in the schools, which is 24 still very dear to my heart. 25 Q. Did there come a time when you decided you wanted to go to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7487 4APMSAT5 Stewart - direct 1 law school? 2 A. Yes. In 1971, I was teaching on the lower east side, Ninth 3 Street and Avenue B. It was a point -- did I say 1971 or did I 4 say '75? In '71, anyway, it was a point at which the movement 5 for change in the schools had basically been coopted in my 6 view. The people who had fought for change basically became 7 part of the great society. They basically were behind desks. 8 And there was not much push anymore to change the schools. And 9 I felt that I was somewhat of an anachronism. I was a 10 librarian at a school where nobody could read. It broke my 11 heart and I thought to myself, I always wanted to be a lawyer. 12 Maybe this is the time to take my principles and my ideas and 13 my ambition and do that. 14 MR. TIGAR: Your Honor, this is a transition point. 15 We have been going for I think little more than an hour. If we 16 could take a break now, I would appreciate it. 17 THE COURT: Fine. 18 Ladies and gentlemen, we will break for 10 minutes. 19 Please remember my continuing instructions. Please don't talk 20 about this case at all. Always remember to keep an open mind. 21 All rise, please. The jury may go to the jury room. 22 (Jury not present) 23 THE COURT: The witness may step down. 24 MR. TIGAR: Your Honor, there was that one matter that 25 I wanted to be heard on now or before the jury comes back. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7488 4APMSAT5 1 MR. DEMBER: Your Honor, there is a matter I would 2 like to be heard on as well. 3 MR. TIGAR: Your Honor, I felt -- I did regard as 4 relevant to Ms. Stewart's state of mind as she approached the 5 representation of Sheikh Abdel Rahman as she evaluated the 6 meaning of evidence about his danger -- 7 Shall I step over here, your Honor, so we are not 8 seeing each other over the monitor. 9 -- as she evaluated this evidence about his danger. 10 And as she attempted to communicate what these attitudes meant 11 in their cultural context and that to do that she did reach 12 back to cases such as the Larry Davis case in which these 13 sorts -- in which this sort of cultural divide between a 14 defendant charged with violence and the attitudes of jurors was 15 also an issue. That was the purpose of the inquiry. This is 16 to say, bearing on state of mind, not to retry that case, but 17 just how did she decide. 18 THE COURT: Government. 19 MR. DEMBER: Your Honor, our position is the same as 20 when Mr. Tigar tried to offer -- presented with us exhibits 21 or -- that he wanted to offer relating to that particular case. 22 Our position is no different, that it is irrelevant; even if 23 for some reason your Honor thought there was some relevance to 24 that type of material, that under 403 it should be excluded. 25 Frankly, our position is, it is totally irrelevant to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7489 4APMSAT5 1 charges in this case. And whether that was part of her 2 thinking in taking on the defense of Abdel Rahman, frankly, is 3 so remote that it can't be considered relevant. 4 THE COURT: I agree with that. And any relevance is 5 substantially outweighed by confusion, unfair prejudice and, 6 moreover, the defendant actually testified about that in 7 connection with relations with the media. I was actually 8 surprised that the defendant pressed the point at the break, 9 because the substance of the answer I thought was already 10 developed in response to other questions. 11 MR. TIGAR: The reason I pressed the point, your 12 Honor, I understand that Larry Davis was mentioned. The 13 government has introduced over our objections a lot of evidence 14 about state of mind. And the Court has been confident that the 15 jurors would know what to do with it. We have heard about 16 Islamabad, Luxor, Osama Bin Laden, and so on. I am therefore 17 respectfully disagreeing with the Court's 403 weighing as it 18 applies to this defendant's effort to defend her liberty and to 19 explain her actions. 20 THE COURT: I've allowed great leeway in the defendant 21 expressing background state of mind with respect to many 22 issues. And if there are questions which go toward the 23 specific issues and charges in the case and what the 24 defendant's state of mind is with respect to those, I will 25 similarly allow the defendant to develop that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7490 4APMSAT5 1 The government had an issue. 2 MR. DEMBER: Your Honor, at some point while 3 Ms. Stewart was testifying about the Abdel Rahman trial, she 4 said that she was not permitted to put forth his defense in 5 that case. I objected. Your Honor overruled my objection. 6 What I believe she is referring to is, frankly, 7 proffers of evidence that Judge Mukasey ruled inadmissible and 8 that the Second Circuit Court of Appeals -- and the Second 9 Circuit Court of Appeals found Judge Mukasey's rulings correct. 10 We are left with the jury believing that somehow he 11 was deprived of his constitutional right to a fair trial. By 12 that question and that answer. That's why I objected to it. 13 THE COURT: Mr. Tigar. 14 MR. TIGAR: Your Honor, there was much evidence that 15 Judge Mukasey excluded. Ms. Stewart had the good-faith belief 16 that that evidence related to the alleged propensities of 17 violence for her client. It is how she evaluated things. And 18 at that trial she attempted to present things in the defense 19 that, as Judge Mukasey did rule, yes, the Second Circuit ruled. 20 She is not bound by any of that. We are talking about her 21 state of mind. How did you represent this person? What 22 decisions did you make when you were representing this person? 23 That's the question. And if there is an instruction that she 24 is bound by the result, we say that. We are bound by the 25 result. She lost. As far as her state of mind is concerned, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7491 4APMSAT5 1 what she thought was important in making those decisions. It 2 strikes us as very relevant. 3 THE COURT: I agree with that. In fact, I have 4 already ruled on the same subject on a couple of occasions. 5 The issue here is the state of mind of defendant. And the 6 defendant was not required to believe that, as we have gone 7 over before, that any particular evidence in the case was 8 truthful or not truthful or that any evidence presented or 9 attempted to be presented in opposition to the evidence that 10 was presented was not, in fact, truthful. 11 The issue is the defendant's state of mind with 12 respect to the offenses in this case. There has been evidence 13 of what the evidence was in the first trial and the defendant 14 can testify about what her knowledge was as a result of what 15 was presented in the first trial, that she brought to the 16 offenses that are charged in this case, which is why I allowed 17 that question and answer. 18 MR. PAUL: Your Honor, just a scheduling matter. I 19 would ask that we break promptly at 4:30. This is one of those 20 Mondays. 21 (Recess) 22 MR. TIGAR: Your Honor, over the break I agreed with 23 Mr. Barkow that the temperature did seem to be very hot -- 24 pretty hot in here. Now I feel drafts of cold air. It appears 25 to be cooling down, but the room had become quite warm. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7492 4APMSAT5 1 THE COURT: If you ever have a problem with the 2 temperature, please bring it to Mr. Fletcher's attention. We 3 will try and accommodate. And I certainly prefer it cooler 4 rather than warmer, too. 5 MR. TIGAR: Your Honor, one request. I was reminded 6 that there were times when I dropped my voice asking a question 7 and then Ms. Stewart would drop her voice in response. There 8 seemed -- and they wondered if the jurors could hear. If your 9 Honor could say, if anybody does have trouble hearing, please 10 raise their hand. I'm not conscious of the fact that I 11 sometimes do that. But if you could do that, we would 12 appreciate knowing. 13 THE COURT: Sure. I'll tell that to the jury. 14 Ms. Stewart is on the stand. 15 MR. TIGAR: May I stand at the lecturn, your Honor? 16 THE COURT: Yes. Bring in the jury. 17 (Jury present) 18 THE COURT: Ladies and gentlemen, if at any time you 19 can't hear either the question or the answer, just raise your 20 hand. As you know, sometimes the acoustics are not good in the 21 courtroom. 22 Also, I believe that at the moment our screens are 23 off, so there is nothing on the screens. There is no 24 significance to anything that's on the screens. The system is 25 simply off at the moment. You may proceed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7493 4APMSAT5 Stewart - direct 1 MR. TIGAR: Thank you, your Honor. 2 THE DEPUTY CLERK: Ms. Stewart, having been previously 3 sworn, you are reminded that you are still under oath. 4 THE COURT: You may proceed. 5 BY MR. TIGAR: 6 Q. Ms. Stewart, just before we took a break you had decided to 7 go to law school? 8 A. Yes. 9 Q. And that was in the year 1971, correct? 10 A. It was. 11 Q. What law schools did you apply to? 12 A. Well, the consideration was that I had a very young baby at 13 the time, my third child had been born, and I wanted to be 14 close to home. And so I applied to NYU and Fordham and Rutgers 15 Law School. Rutgers wasn't so close, but it was financially a 16 place I wanted to go to. It was the first consideration. 17 Other things entered in later. 18 Q. And what law school did you wind up going to? 19 A. I ended up going to Rutgers after NYU wanted a substantial 20 down payment in August of the year I was no longer teaching. 21 We had a fledgling business, motorcycle shop on the lower east 22 side, and we just couldn't come up with that kind of money. 23 Rutgers gave me a full scholarship. They were anxious to have 24 a class equally balanced, male and female, so they were willing 25 to give us the way to do that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7494 4APMSAT5 Stewart - direct 1 Q. At that time were you still living in the projects? 2 A. Yes, on Pitt Street, same place. 3 Q. How did you get to New Jersey to the law school? 4 A. Well, it was various transportation. I did take the PATH 5 train which used to leave from Greenwich Village, Eighth Street 6 and Ninth Street, and go over that way. For a period of time 7 there were sometimes cars available that usually didn't last 8 very long. And I also rode a motorcycle to Rutgers from 9 Manhattan. And people probably remember me more for that than 10 anything else at Rutgers. 11 Q. Now, Rutgers Law School in 1971, did they have some 12 particular approach to the law that had an influence on the way 13 you dealt with things later on down the road? 14 A. Rutgers in 1971 was a place that was a client-centered 15 approach. It was also a place that taught you mainly through 16 the efforts of their great constitutional law professor, 17 Earnest Kanoy, to give back, to go to court to change the 18 world, in essence. He believed that by bringing the right 19 cases and fighting the good fight you could change the world 20 through the law, and that spirit infused the entire law school. 21 Q. When did you graduate from Rutgers? 22 A. I took an extra year because I had to drop out due to some 23 family medical problems. But I came back and I graduated 24 actually in 1975, in the spring of 1975. 25 Q. Now, you talked about the difference of approach to the law SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7495 4APMSAT5 Stewart - direct 1 at Rutgers. How did you see it as different from what you 2 might get at some other law school to prepare you for a career? 3 A. They had a very -- as I said, I came to find out that the 4 class was composed of 51 percent women, many of whom were like 5 me, had been in the world for a period of time before coming to 6 law school. It also had a very aggressive policy of 7 affirmative action, black, Latino students attended. And it 8 had a series of clinical education, poverty law clinic, 9 basically as a service, that the law was to serve the people. 10 It was called I think the people's electric law school. Those 11 were the T-shirts we wore. 12 Q. When you say a clinical program, what is clinical legal 13 education as distinct from classroom legal education? 14 MR. DEMBER: Objection, your Honor, relevance. 15 THE COURT: Sustained. 16 Q. You graduated in what year? 17 A. I graduated in the spring of 1975. 18 Q. During the time you were in law school did you do any 19 law-related work? 20 A. I did. Through our motorcycle shop I had met a criminal 21 defense lawyer who indicated that he needed some help in the 22 summertime. And I went to work for Stanley Siegel, who had 23 offices over here at 401 Broadway. 24 Q. What kind of work did you do for Stanley Siegel? 25 A. Stanley represented people mainly who were accused of drug SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7496 4APMSAT5 Stewart - direct 1 crimes; in those days, mostly marijuana and cocaine, which was 2 interestingly enough considered a soft drug in those days. He 3 also represented the Hell's Angels, and I was hired on to be 4 the "law man," if you will; that is, the person who wrote the 5 briefs, who did the motion work, who basically was the 6 researcher and writer and carried on that part of the practice 7 for him and his partner, Herman Graber, who is still practicing 8 law. 9 Q. In terms of what lawyers do, what's a motion? 10 A. That was my first question. An application to the Court 11 asking the Court to take an action legally on behalf of the 12 client, or to prevent something on behalf of the client. But 13 it is a legal -- it is a request for a legal order. 14 Q. Now, did there come a time when you went out on your own, 15 away from Mr. Siegel and his law practice? 16 A. Well, I worked there for a number of years. I had a sense 17 that they would be very happy to keep me as the law person 18 doing the motions, doing the briefs. I had been successful for 19 them. And I decided -- I was at the ripe old age at that point 20 of 36 or 37 and it was time for me to have my own practice and 21 to try to put some of the reasons why I had become a lawyer in 22 the first place into practice, and so I basically left. I hung 23 up my own shingle in the far west side of Greenwich village, 24 162 Charles Street. My husband had the motorcycle shop 25 downstairs. I was on the second floor. This was in the year, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7497 4APMSAT5 Stewart - direct 1 I would say, 1976, 1977, somewhere in there. 2 Q. And what kind of law practice did you have in your solo 3 office on the second floor above the motorcycle shop? 4 A. Well, I did any case that came through the door I did. I 5 did wills, I bought -- I represented people who were selling 6 Chinese restaurants. I did a lot of divorce work. I also 7 volunteered to do some battered wife's work in a time when it 8 was not a popular field to be in. I did closings on -- I did 9 everything that came through the door. And I also did become 10 on an appointed panel known as the 18(b) panel for misdemeanor 11 crimes in the state court. And I wanted to do the criminal 12 defense work, but one has to build a practice. And that's what 13 I was attempting to do in those years. 14 Q. Now, let's take a point along here, say 1980, 1981. What 15 percentage of your practice at that time was criminal defense, 16 would you say? 17 A. By that time I had been practicing for a while. I was 18 known in my own community to do this kind of work. I had had 19 some successes. The practice had grown. Sadly enough, I was 20 representing children I once taught in school. 21 But at any rate, I would say my practice was probably 22 somewhere in the neighborhood of 60 to 70 percent of criminal 23 work and the rest was this miscellaneous whatever came through 24 the door. 25 Q. Now, did there come a time when you began to get experience SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7498 4APMSAT5 Stewart - direct 1 representing people who were charged with conduct that they, 2 the defendant, said had a political motivation? 3 A. Yes. 4 Q. And about when was that? 5 A. I would say, in the early '80s. I was -- wanted to reach 6 out to the political community that I had been part of during 7 the '60s, the antiwar movement, the people who were trying to 8 make change. Let's define it that way. And I have -- I was 9 busy earning a living. We had been busy earning a living, my 10 husband and I. By the '80s I had run into a friend that I knew 11 from state court and I knew she was involved in representing 12 people accused of crime who were asserting some political 13 defenses. And I mentioned to her that if there was a case and 14 they needed a lawyer I would be interested in doing that case. 15 And would she please contact me. That was Susan Tipograph. 16 And sure enough a little while later she did contact me. 17 Q. And do you remember what that first case was that was of 18 that nature? 19 A. I remember it very well. It was a case where there had 20 been a demonstration at Kennedy Airport against the Spring Box, 21 which was a rugby team from South Africa that had toured the 22 United States to tremendous amounts of disapprobation. 23 Demonstrations weren't able to take the field in certain places 24 because it was, of course, in those days, an all-white team 25 from this country that was so blatantly practicing apartheid. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7499 4APMSAT5 Stewart - direct 1 The demonstrators, a number of them had been arrested -- 2 MR. DEMBER: Objection, your Honor, as to relevance. 3 THE COURT: Sustained. 4 MR. DEMBER: I ask that the question and answer be 5 stricken, your Honor. 6 THE COURT: No. That's enough. Sustained. 7 Q. This is about 1981, correct? 8 A. That's right. 9 Q. Now, at that time, how would you describe your practice? 10 Let me ask, was it a high-volume practice, low-volume? How 11 would you describe how busy your office was? 12 A. I would say I always had a high-volume practice, a lot of 13 cases, maybe sometimes more than I should have because I'm very 14 cognizant of being able to spend enough time to do really well 15 by every client. But it is very hard for me, at any rate, to 16 turn down people who ask for me to represent them. And so it 17 was a high-volume, a lot of clients, a lot of cases. And not a 18 lot of money. That's certain, too. 19 Q. Now, I want -- in talking about what lawyers do, in 20 addition to going to court on behalf of a client, do you also 21 negotiate on behalf of clients? 22 A. I would say that we do probably more negotiating than we do 23 trying of cases. I think as my career has progressed over 24 these 30 years, certainly today I would say a large part of 25 criminal defense work is negotiating. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7500 4APMSAT5 Stewart - direct 1 Q. What percentage of the cases in which you represent someone 2 does your client wind up pleading guilty to something? 3 A. I would say probably 70, 75 percent, at least, maybe even 4 higher than that. 5 Q. Does that mean that the person pleads guilty to all of the 6 charges? 7 A. No. It says -- you say it is a negotiation. You're 8 putting forth the best possible scenario for the client and 9 trial to encourage the prosecutor or the district attorney, 10 whoever your adversary is, that he should well be interested in 11 making a deal for this person. 12 Q. In your experience, do prosecutors ever -- as you're 13 dealing with them, is it your perception that they portray 14 their case sometimes stronger than it really is? 15 MR. DEMBER: Objection, your Honor. 16 THE COURT: Sustained. 17 Q. As a part of your negotiating position, how do you try to 18 improve your negotiating position if you're dealing with the 19 prosecutors? 20 MR. DEMBER: Objection, your Honor. 21 THE COURT: I'll allow it. 22 A. Well, it is a delicate balance, but I think in being 23 charged by the rules of ethics to vigorously defend, zealously 24 defend, you want to put the case in the best possible light 25 without ever going over the line and lying to anyone, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7501 4APMSAT5 Stewart - direct 1 obviously. But you want to present that you really do believe 2 that the policeman who stopped your client conducted an illegal 3 search and that the prosecutor should certainly see this. It 4 is not bluffing. That's too strong a word. But it certainly 5 is making sure that the prosecutor understands that you've done 6 your homework, you know his case probably better than he does, 7 and that there are really grounds to consider that this case is 8 probably not as strong as he or she may think it is. 9 Q. As a lawyer are you involved in the adversary system? 10 A. Yes. 11 Q. What does the adversary system mean to you? What did the 12 adversary system mean to you as you embarked on representing 13 Sheikh Rahman? 14 A. Well, we have seen it here for the last months. It is a 15 system in which there are a champion for the defendant who 16 rises to the defense on each and every occasion where he or she 17 is called to do that. There is a prosecution which must 18 vigorously but fairly prosecute a case. There is a judge who 19 makes the legal rulings along with a jury. So it is a 20 triangular type of operation. And we are adjured by the ethics 21 to fight as hard and as vigorously and as zealously as we 22 possibly can for our clients. 23 Actually, as you know, Mr. Tigar, go back to medieval 24 days when someone picked a champion to go out and joust for 25 them or tilt for them or do whatever. When we do this, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7502 4APMSAT5 Stewart - direct 1 become very, very adversarial. We are one team, they are 2 another team, and we fight and the judge makes the decisions 3 ultimately and the jury. 4 Q. As you approached a decision to represent or not represent 5 Omar Abdel Rahman, were you comfortable with your role in the 6 adversary process? 7 A. Yes. I had my personal -- this is separate from my 8 representing anyone. I have a sense of antiauthoritarian view 9 of the world. I believe that government is best when 10 government is littled. So I'm always watching and being very, 11 very aware. My politics also inform my view that a government 12 can overreach, a government that is very, very powerful can 13 overreach. All of these things were part of the background, my 14 state of mind, if you will, that led me into this case and led 15 me to be as vigorous and as, I hope, as effective as I was in 16 representing him. 17 Q. You said you started your practice. You were on Charles 18 Street? 19 A. Yes. 20 Q. Later you moved where? 21 A. We were on Charles Street for almost 20 years. The 22 building was sold; once again, a victim of real estate in New 23 York. It was sold. We moved down to Warren Street, which is 24 right by City Hall. That building, likewise, was made into 25 condos a few years later. And we then ended up at 351 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7503 4APMSAT5 Stewart - direct 1 Broadway, and we are now at 350 Broadway. All in this downtown 2 area, close to the courts. 3 Q. You heard FBI Stump testify about the search? 4 A. I did. 5 Q. Would you take a look at your book at what's been marked as 6 LS-104. 7 A. I would like to, Mr. Tigar, but I don't think it appears 8 here. 9 MR. TIGAR: May I approach, your Honor? 10 THE COURT: Yes. 11 A. I'm sorry. It does appear, out of order. 12 Q. Is that a picture of the exterior of your 351 Broadway 13 office at about the time of the events that Agent Stump 14 testified about? 15 A. It is. 16 MR. TIGAR: We offer LS104, your Honor. 17 THE COURT: LS104 received in evidence. 18 (Defendant's Exhibit LS104 received in evidence) 19 MR. TIGAR: May I display it, please? 20 THE COURT: Yes. 21 Q. I am going to place on the screen what's now been received 22 in evidence as LS104. I am going to zoom out a little bit. 23 Now am I pointing to your office suite? 24 A. That is the third floor. That is where we were located, 25 yes. My office was on the other side. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7504 4APMSAT5 Stewart - direct 1 Q. And there is the number where my finger is, 351, correct? 2 A. That's correct. 3 Q. You're over the New Fancy Food place? 4 A. Yes, two floors over New Fancy Food. 5 Q. Where I have my finger now, is that your office? 6 A. That was my office, yes. 7 MR. TIGAR: Your Honor, may I display government 2690 8 in evidence? 9 THE COURT: Yes. 10 Q. This is a picture, Ms. Stewart. Would you tell the jury 11 what that is? That's already in evidence as a government 12 exhibit. 13 A. Well, that is my desk as positioned in front of those same 14 windows you just pointed out, piled up, as usual, with a lot of 15 pending cases, family photographs on the windowsill. I was not 16 at the time of this picture being taken particularly computer 17 literate, so that particular screen I don't think is hooked up 18 even. That was my office. 19 Q. You have 2690? 20 A. I have 2689. 21 Q. Could we try 2690. We will get to 2689. It is my fault. 22 This is your office? 23 A. This is the office. 24 Q. We are looking basically where we would be if you were 25 looking at your desk and standing up, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7505 4APMSAT5 Stewart - direct 1 A. Exactly. 2 Q. Now, would you please turn to 2691. 3 MR. TIGAR: May I show that, your Honor? 4 THE COURT: Yes. 2691 is in evidence? 5 MR. TIGAR: In evidence, your Honor. Thank you. 6 Q. That is just a slightly different view of that same office, 7 correct? 8 A. Yes. 9 Q. And all of these things over here, these boxes and so on, 10 what's in those? 11 A. They were cases that either were finished cases or cases 12 that I was working on stored in the box in my office to be 13 readily available when I had time to work on them. The bag was 14 what I carried back and forth to court, carried materials in. 15 Papers piled up. 16 MR. TIGAR: May I put that back up here, your Honor, 17 2691 in evidence? 18 THE COURT: All right. 19 Q. This is your briefcase here? 20 A. So as to speak. 21 MR. TIGAR: May I display 2689 in evidence, your 22 Honor? 23 THE COURT: Yes. 24 Q. 2689 in evidence, I know it is kind of a dark photograph 25 here. But this is your desk, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7506 4APMSAT5 Stewart - direct 1 A. That is the desk. 2 Q. On the back on the credenza here are pictures? 3 A. Yes. Mostly of my grandchildren and children and some 4 client's children even I see here. 5 Q. Now, at the time of that search, how many active cases did 6 you have in your office for which you had some responsibility? 7 A. Well, as I mentioned earlier, when we were looking at the 8 picture, my son and I practiced together, but we have separate 9 and distinct clients, although we help each other and work on 10 each other's cases. I would say at that point I probably had 11 60, 65, 70 cases pending at that moment. 12 Q. Was that a typical case load for you in the period 1994 13 through 2000? 14 A. Yes. You have to understand, some of these are fairly 15 minor cases; that is, not requiring tremendous amount of work, 16 preparation, et cetera; mainly requiring appearances in the 17 lower criminal courts such as a shoplifting case or what we 18 know as a fare beat when somebody jumps over the subway stile. 19 They went all the way up to very complex federal matters; and 20 in the state courts to murders and murders for hire. They ran 21 the gamut, but I cannot say that each of them took an equal 22 amount of time. 23 Q. What percentage of those active cases at any given time 24 were appointed as opposed to fee cases? 25 A. I would say at least half. It may have been more than SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7507 4APMSAT5 Stewart - direct 1 that, but at least half the cases were appointed cases. 2 Q. Could you turn to LS45, please, in your book. Is that a 3 photograph of your conference room and law library at the time, 4 April 2002? 5 A. Yes. 6 MR. TIGAR: We offer LS45, your Honor. 7 THE COURT: I think LS45 is already in evidence. 8 MR. TIGAR: Your Honor, I stand corrected. I believe 9 it is. 10 May I show the jury LS45 in evidence, your Honor? 11 THE COURT: To the extent it is not, LS45 received in 12 evidence. 13 MR. TIGAR: May I display it? 14 THE COURT: Yes. 15 Q. That's the law office with the books, right? 16 A. That's the law office with the books. 17 Q. What are these books? What's in these books? 18 A. Well, I've heard lawyers recently say books are now 19 wallpaper because everything is on the computer. But when I 20 became a lawyer, the case law, the case law by which we do our 21 work is located in those books. That is what has gone before, 22 what is precedent, what we may cite. I think it was Darrah who 23 first said: First he decides on the issues in the case, then 24 he looks at the law. This is the law. This is New York State 25 here. The federal works were slightly out of the picture. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7508 4APMSAT5 Stewart - direct 1 Q. Ms. Stewart, with that background, I want to go back to 2 this period in late 1994 and now into 1995 and talk about the 3 trial of Sheikh Omar Abdel Rahman. 4 When did the trial begin? 5 A. The trial began in early January with the selection of a 6 jury. And it began, as I said, in this very courthouse, and 7 that took about a month. 8 Q. Earlier you had said that there had been a trial setting, 9 date set in December. Was that adjourned? 10 A. That was adjourned. My client had some medical problems. 11 And the Court felt it was pushing things to start at that point 12 and they adjourned it until early January. 13 Q. The process of jury selection, that was where jurors would 14 fill out a questionnaire and come in and answer questions? 15 A. Exactly. 16 Q. When did the jury return its verdict, so we can put a book 17 end on this? 18 A. The verdict was returned October 1, 1995, 10 months later, 19 about. 20 Q. I want to take you back to what we know and understood back 21 in 1995. What was the courtroom? Which courtroom was it? 22 A. It is a courtroom in this building on the third floor. It 23 is very similar to this courtroom. 24 Q. It has these high ceilings and similar in layout -- 25 A. Similar in layout. But because of the number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7509 4APMSAT5 Stewart - direct 1 defendants, we also took up the front three rows on the 2 right-hand side, my right-hand side, defendants, and their 3 lawyers sat over there as well as at the tables at the well. 4 Q. When the trial began how many defendants were in it? 5 A. My recollection is there were 12 when we first started and 6 then one pled at the very beginning of the trial. 7 Q. When you say one pled, what do you mean by that? 8 A. His lawyer and he spoke with the government and he pleaded 9 guilty and was no longer in the case. 10 We then proceeded to trial -- 11 Q. Let me stop there and ask, you said you have negotiated 12 with prosecutors and negotiated guilty pleas. As a part of 13 those pleas, have you ever advised your client to cooperate or 14 become a government witness? 15 A. Of course. To give good and quality service, you have to 16 tell the client everything that is available to him. I think 17 there is even case law saying it is in effective assistance of 18 counsel not to advise a client that he may indeed become part 19 of the government's team, that he may indeed cooperate, is the 20 word of art, and I have many, many clients who have cooperated 21 with both the Federal Government and the state government. 22 Q. So how many defendants did you have after that one pleaded 23 out? I'm sorry. 24 A. I think it was 11 were left. 25 Q. I want to ask about your defense team. What role did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7510 4APMSAT5 Stewart - direct 1 Mr. Clark play as the trial unfolded? 2 A. Mr. Clark was, as I said, he has a very busy schedule, an 3 international schedule. He would come to court occasionally 4 when there was something that was -- he was certainly there for 5 the opening statements. He was certainly on the scene. 6 Basically, he was there in a consultative role. He would come 7 with me and visit the Sheikh if there was something to be 8 discussed, all those roles. But an active role in the 9 courtroom, he did not have an active role in the courtroom. 10 Q. In this case, at the beginning, were you retained counsel 11 or appointed counsel? 12 A. Retained counsel. The case had come to me as I described 13 to you earlier, through the series of phone calls. I also came 14 to find that the inquiry was initiated by the Sheikh through 15 people who supported him who felt he should be represented. He 16 should not be pro se. Money had been gathered -- collected on 17 his behalf to pay for a lawyer. It was a modest amount, but it 18 was sufficient. 19 Q. Now, did there come a time when you became appointed by the 20 Court? 21 A. Yes. That was at the end of the case, at the point where 22 he was convicted. After the jury verdict Judge Mukasey brought 23 me into chambers -- I think it was in the robing room, the room 24 behind the courtroom -- and told me that my client was going to 25 be helicoptered out of the MCC. He was going to be taken to a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7511 4APMSAT5 Stewart - direct 1 medical facility at Springfield, and that he wanted to tell me 2 this he didn't want people worried, upset, where was he, he is 3 being spirited away. I said, Judge, we are preparing for a 4 sentence now. Do I meet with my client? How do we work on 5 this appeal? He says, I understand and I am going to appoint 6 you because I believe you must have exhausted the resources. 7 So I said indeed. That is how that came about. 8 Q. Approximately, if you can remember, what fee did you 9 receive for your work from the fall of '94 on up through that 10 verdict? 11 A. I know that I received -- 12 MR. DEMBER: Objection, your Honor, as to relevance. 13 THE COURT: Overruled. 14 A. I received $35,000 before the case began. And that was an 15 amount that we shared, Dean Ramsey and myself. Thereafter, 16 during the case I received I believe two other payments. One 17 may have been $7,000 some time in July, and another one of 18 maybe 5 some time in August. That's the best of my 19 recollection, and I tried to check it out, but I have not had 20 much success in figuring it. 21 Q. We already know about Abdeen Jabara. Was someone named 22 Lawrence or Larry Schilling involved in the defense? 23 A. Larry Schilling is Ramsey Clark's partner. While he wasn't 24 active in the defense of the trial matter, he was -- played a 25 large role in the appeal, worked on it steadily and was, of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7512 4APMSAT5 Stewart - direct 1 course, as Ramsey's partner, part of the sort of consultative 2 group that would get together and try to figure out where we 3 were going with the case. 4 (Continued on next page) 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 7513 4APMSAT5 Stewart - direct 1 BY MR. TIGAR: 2 Q. And was someone named Ben Cheney involved in the defense? 3 A. Ben Cheney was a paralegal who worked for Ramsey Clark. 4 His brother was one of the three young men that died in 5 Mississippi, James Cheney. 6 Q. Now, in addition to those people you mentioned, there were 7 paralegal assistants. Had the Court appointed paralegal 8 assistants? 9 A. The Court -- before I even came into the case the 10 paralegals had been appointed. They were in place at the time 11 that I arrived in mid-November to pick up the case and start 12 working on it. Mr. Sattar was one of them and Nasser Ahmed, 13 who we mentioned earlier, he was another. 14 Q. Let me stop you there. Was that the first time you'd met 15 Mr. Sattar? 16 A. It was. 17 Q. And did you then work with him in his capacity as a 18 paralegal throughout the case? 19 A. Throughout the case, yes. 20 Q. And Nasser Ahmed, had you ever met him before? 21 A. No, I had never met him before. 22 Q. And he worked as a paralegal throughout the case? 23 A. He worked as a paralegal throughout the case. 24 Q. Now, who were the prosecutors in this case? One is 25 Mr. Fitzgerald? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7514 4apesat6 Stewart - direct 1 A. Right. The lead prosecutor was Andrew McCarthy. He -- as 2 I said, he was the lead. Mr. Fitzgerald, I'm trying to 3 remember, was second, I believe. And Mr. Robert Khuzami was 4 the third prosecutor in the case. 5 Q. Now, as this trial began and after the jury was seated, 6 what was the fundamental issue with -- as you saw it with 7 respect to portraying Abdel Rahman to the members of this 8 jury -- that jury? 9 A. Well, I knew we had a main point of attack upon the 10 informant, who formed the gravamen of the evidence against the 11 Sheikh. 12 And I'd just like to say that I didn't start out 13 calling him Sheikh or Sheikh Omar; I called him Dr. Abdel 14 Rahman for a very long time, because he was -- 15 Q. Let me ask you about that. When you call somebody in a 16 trial, you name your client, you could call them by their first 17 name or last name or give them an honorific title. Is there 18 some tactic about that that lawyers do when they choose how to 19 call somebody? 20 A. Well, I prefer to think that it's opening up in the 21 courtroom some window of truth, perhaps. This was a man who 22 had earned a doctorate from the oldest university in the world. 23 He had done so under conditions of being a blind person, not 24 coming from a particularly well-heeled background. He had, 25 nonetheless, persevered and done that. He had a doctorate. He SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7515 4apesat6 Stewart - direct 1 was renowned within his own -- I came to learn, within the 2 sphere of the Middle East, as a scholar, as a person who was 3 widely respected. 4 So I also came to learn that his name, which is Abdel 5 Rahman, the last name, is so constructed within the Arabic 6 usage because the name Rahman is one of the names of God, of 7 Allah. And the Abdel implies that you are but a servant of 8 God; certainly can't name yourself -- be named God. 9 So we -- before the trial began we had a short meeting 10 with Judge Mukasey. I explained this to him and explained that 11 he was indeed an earned doctorate. And I'm happy to say that 12 Judge Mukasey for the remainder of the trial did refer to him 13 as Dr. Abdel Rahman. 14 Q. Now, the word Rahman, spelled R-A-H-M-A-N, such as it is, 15 that's an Arabic word that means God? 16 A. I assume so. I don't speak Arabic. 17 Q. Rahmanis is a word in Hebrew. Is it a related word -- 18 A. You're -- I can't answer that question, Mr. Tigar. 19 Q. Now, you had to make an opening statement on behalf of your 20 client that summarized or set out what you thought the evidence 21 was going to show, correct? 22 A. I did. 23 MR. TIGAR: Your Honor, at this time we were going to 24 go and ask permission to exhibit a portion of Government 25 Exhibit 2009A in evidence, but it's almost 4:30. This would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7516 4apesat6 Stewart - direct 1 a convenient breaking time. 2 THE COURT: All right. Ladies and gentlemen, we'll 3 break for the day. 4 Ladies and gentlemen, please, please remember to 5 follow all of my instructions with great care. Please don't 6 talk about this case at all among yourselves or with anyone 7 else when you go home this evening. Please, please remember, 8 don't look at or listen to anything to do with the case. If 9 you should see or hear something inadvertently, simply turn 10 away. 11 As I repeatedly told you, you are in the best position 12 to hear everything that is relevant to your decision in this 13 case. So please don't look at or listen to anything. If you 14 should see or hear something inadvertently, simply turn away. 15 And finally, always remember to keep an open mind 16 until you've heard all of the evidence, I've instructed you on 17 the law and you've gone to the jury room to begin your 18 deliberations. Fairness and justice to the parties requires 19 that you do that. 20 With that, have a very good evening, and I look 21 forward to seeing you at 9:30 tomorrow morning. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7517 4apesat6 Stewart - direct 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, that letter of October 17th, 3 for some reason it never left our office. I apologize to the 4 Court, but we'll make sure that everybody gets a copy. 5 THE COURT: OK. Are there any issues that have to be 6 decided at this point? 7 MR. DEMBER: Yes, your Honor. 8 If Mr. Tigar intends to ask Ms. Stewart tomorrow 9 morning to introduce or read her opening statement in the trial 10 of Abdel Rahman, it's our position, as I stated in one of my 11 October 16th, 2004, letters, that under the rule of 12 completeness, she should also be required to read, which is 13 also part of the same exhibit that Mr. Tigar I believe wants to 14 read from, the opening statement of the government. 15 We at some point much earlier in this case, your 16 Honor, were about to introduce and read to the jury the 17 government's opening statement in Abdel Rahman's trial. 18 Mr. Barkow was about to do that, and when he did, before he 19 could start the reading, Mr. Tigar went up to him at the podium 20 and said to him -- and certainly Mr. Barkow can account for 21 this -- that if we, the government, were going to read the 22 government's opening statement to the jury in that case, then 23 we had to also read Ms. Stewart's opening statement to the same 24 jury under the rule of completeness. That's what Mr. Tigar 25 said to Mr. Barkow at the podium. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7518 4apesat6 Stewart - direct 1 At that point we decided not to read either of the 2 openings. So, if that's the next order of business, the 3 exhibit, your Honor, is Government Exhibit 2009A. And both 4 opening statements are part of that same exhibit. It was 5 introduced from the search of Mr. Sattar's apartment and is in 6 evidence. And we ask under the rule of completeness that if 7 that's going to be done at this point in time -- in other 8 words, if Ms. Stewart's going to read to the jury her opening 9 statement, she should also be reading the government's opening 10 statement at the same time. 11 THE COURT: All right. Mr. Tigar? 12 MR. TIGAR: Your Honor, it is true that during the 13 government case I took the position that if they were going to 14 read the opening statement of Mr. I think it is Khuzami, that 15 they should read Ms. Stewart's as well. 16 We do intend to publish Ms. Stewart's opening 17 statement. And if the Court believes that under Rule 106 we 18 should at that time publish the rest, we will publish the rest. 19 However, the opening statement in question relates to all of 20 the defendants. So I would respectfully suggest that if your 21 Honor is going to rule that as a matter of fairness -- and I 22 don't want to be -- I don't want to take an advantage here that 23 the Court thinks is unfair, then the government should be 24 required to tell us what portions they believe relate to Sheikh 25 Abdel Rahman. And that can be worked out, I would say, fairly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7519 4apesat6 Stewart - direct 1 quickly. 2 It had been our intention that our application would 3 be that I would read to the jury the portions that they have 4 identified from the government prosecutor and that Ms. Stewart 5 will read her opening statement. 6 MR. DEMBER: I'm sorry, your Honor. I didn't hear the 7 last part. 8 Your Honor, all of the defendants in that case were 9 charged and I believe convicted of Count 1 in that indictment. 10 And as so, it's our belief that the entire government opening 11 should be read to this jury, since all of those -- all that was 12 argued to the jury is relevant as to Abdel Rahman, and since 13 all the other defendants with him in the case were 14 coconspirators. So with respect to how much should be read, 15 the entire part should be read, in our view. 16 With respect to who reads, as long, your Honor, as 17 Mr. Tigar is reading the government's opening, either before or 18 right after Ms. Stewart reads hers, we have no objection to 19 that. 20 MR. TIGAR: Your Honor, it's true that it was a 21 conspiracy case, but each defendant was entitled to separate 22 consideration. And it would be unfair to say that Ms. Stewart 23 should be chargeable as a matter of her knowledge, intent and 24 state of mind, somehow with knowledge that the Sheikh 25 associated with people whom the government regarded as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7520 4apesat6 Stewart - direct 1 dangerous, independent of the Sheikh. That's the impermissible 2 inference that I was trying to avoid. 3 THE COURT: When 2009A was admitted in evidence, was 4 it admitted subject to any limiting instruction? 5 MR. TIGAR: Admitted as to Mr. Sattar and Ms. Stewart, 6 your Honor, but not as to Mr. Yousry. 7 THE COURT: Well, the same limitation should go now, 8 should it not? 9 MR. RUHNKE: We think so, your Honor. 10 MR. DEMBER: Yes, your Honor. And we -- 11 MR. RUHNKE: I know you're looking my way, your Honor. 12 MR. DEMBER: We agree on that. 13 THE COURT: And second, the defendant said that only a 14 portion of the opening statement was going to be read, or 15 intended to be read as part of Ms. Stewart's testimony. And it 16 would -- the parties should give me this evening -- the 17 reasonable way to work this issue out is to find out exactly 18 what Ms. Stewart had intended to read as part of her opening 19 statement, and then for the government to make a responsive 20 cross designation to be read by someone at the same time. 21 Now, it really seems to me to be a little like the 22 issue of the Emad Salem cross designation for fairness. The 23 fact that originally the defendant wanted to admit part of the 24 cross-examination of Emad Salem for the -- for Ms. Stewart's 25 state of mind with respect to the credibility of Emad Salem did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7521 4apesat6 Stewart - direct 1 not, as the government originally thought, open up all of the 2 evidence in Sheikh Rahman's trial. And, in fact, I really 3 didn't get a chance to rule on what portions of the Emad Salem 4 examination by the government would be a fair cross designation 5 for fairness. 6 But I would suggest to you that you should be able to 7 look at what the defendant intends to offer and then for the 8 government to make a reasonable cross designation without my 9 being involved in it. But if I have to be involved, I will. 10 It would seem to me that the real issue, as I understand it, 11 that the defendant would be designating a portion of the 12 opening would be with respect to the dangerousness of Sheikh 13 Rahman; at least that's what I infer from some of the 14 back-and-forth. 15 The cross designation would reasonably be the -- those 16 portions that relate directly to the dangerousness of Sheikh 17 Rahman. Without prejudicing the fact that the whole -- both 18 openings are in evidence for the parties to read, whether it be 19 on further cross or in rebuttal, the issue is what portions 20 should be read at the same time in fairness to the jury. 21 MR. TIGAR: Your Honor, I may have -- I hope I didn't 22 misstate when I spoke to the Court. It had been our intention 23 to publish the entire opening statement. It's very short, 12 24 transcript pages. 25 THE COURT: I'm sorry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7522 4apesat6 Stewart - direct 1 MR. TIGAR: It's 12 transcript pages or so, so it had 2 been our intention to publish the entire thing. And I'll wait 3 for the government's cross designation, if the Court believes 4 that's the way to do it. We'll be happy to hear what they have 5 to say -- 6 THE COURT: I did think that you had said you were 7 only going to use a portion of the opening. But I could have 8 misheard. 9 If the opening is 12 pages and it's concentrated on 10 Sheikh Rahman, who Ms. Stewart was representing at the time, 11 how long is the government's opening? 12 MR. DEMBER: Your Honor, I don't recall off the top of 13 my head. It certainly was longer. 14 May I suggest, your Honor, that I review it and then 15 submit a letter and those portions to the Court this evening so 16 a ruling can be made. 17 THE COURT: That's fine. I would think that the 18 parties could work this out without me, because if you ask 19 yourself what in fairness should be read at the same time, in 20 fairness to a 12-page opening is probably not the entire 21 opening with respect to 12 defendants and their relationship. 22 But there ought to be some portion of the opening that focuses 23 on what Sheikh Rahman's alleged dangerousness or role was. 24 And I suggest that you talk about it, and you're 25 certainly welcome to give me a letter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7523 4apesat6 Stewart - direct 1 MR. DEMBER: Your Honor, I will gladly do that, but I 2 don't want to put -- you know, after reviewing it I will talk 3 to Mr. Tigar or Ms. Shellow-Lavine. If, by the time we try to 4 resolve it, if it can't be resolved -- and I don't know what 5 time that will be this evening -- it may cause a delay in your 6 Honor getting a chance to review it, and, therefore, the 7 defense presenting it tomorrow morning, since this seems to be 8 the first order of business. 9 I'm happy to review it and to discuss it with 10 Mr. Tigar and Ms. Shellow-Lavine first. I have no problem 11 doing that, your Honor. 12 MR. TIGAR: Your Honor, I'm confident we can work this 13 out in a way that doesn't delay proceedings. We don't regard 14 it as in our interest to delay the flow of what we're trying to 15 do here, we just don't. 16 THE COURT: OK. Next, are there other issues that 17 have to be worked out? Mr. Ruhnke was working out the issue of 18 transcripts, which I take it will be up tomorrow. 19 MR. PAUL: Your Honor, before we continue, may my 20 client be excused? 21 THE COURT: I'm sorry. I broke early for exactly that 22 reason. And I'm -- if you wish me to break now because your 23 client is going to be gone, that's fine. I'll break now and 24 simply adjourn until 9:00 tomorrow morning. 25 MR. PAUL: That would be my request, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7524 4apesat6 Stewart - direct 1 MR. TIGAR: We don't need to persist, your Honor. We 2 have several ways to work around this transcript issue so as 3 not to interrupt the flow no matter where it winds up. And I 4 know Mr. Ruhnke's working on it. I really think we could break 5 now without any risk that we would delay proceedings tomorrow 6 on that issue or any other that I know of. 7 THE COURT: OK. I'll see you all at 9:00 tomorrow 8 morning. 9 (Adjourned to Tuesday, October 26, 2004, at 9:00 a.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7525 1 INDEX OF EXAMINATION 2 Examination of: Page 3 MICHAEL ELLIOTT 4 Direct By Mr. Tigar . . . . . . . . . . . . 7390 5 LYNNE STEWART 6 Direct By Mr. Tigar . . . . . . . . . . . . 7458 7 DEFENDANT EXHIBITS 8 Exhibit No. Received 9 LS1000 . . . . . . . . . . . . . . . . . 7405 10 LS1001 . . . . . . . . . . . . . . . . . 7407 11 LS1003 . . . . . . . . . . . . . . . . . 7409 12 LS1009 . . . . . . . . . . . . . . . . . 7414 13 LS1008 . . . . . . . . . . . . . . . . . 7418 14 LS1010 . . . . . . . . . . . . . . . . . 7420 15 LS1002 . . . . . . . . . . . . . . . . . 7423 16 LS1014 . . . . . . . . . . . . . . . . . 7429 17 LS1015, page 1 . . . . . . . . . . . . . 7432 18 LS1018 . . . . . . . . . . . . . . . . . 7436 19 LS1022 . . . . . . . . . . . . . . . . . 7440 20 LS1021 . . . . . . . . . . . . . . . . . 7443 21 LS102 . . . . . . . . . . . . . . . . . . 7484 22 LS104 . . . . . . . . . . . . . . . . . . 7503 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300