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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, ) Docket No. 03 CR 978

)

Plaintiff, )

)

vs. )

)

MUHAMMAD HAMID KHALIL SALAH AND )

ABDELHALEEM HASAN ABDELRAZIQ ASHQAR, ) Chicago, Illinois

) January 5, 2007

Defendants. ) 10:30 o'clock a.m.

EXCERPT OF TRIAL PROCEEDINGS

BEFORE THE HONORABLE AMY J. ST. EVE, AND A JURY

APPEARANCES:

For the Plaintiff: HON. PATRICK J. FITZGERALD

United States Attorney

BY: MR. REID J. SCHAR

MS. CARRIE E. HAMILTON

219 S. Dearborn St., Suite 500

Chicago, Illinois 60604

For Deft. Salah: PEOPLE'S LAW OFFICES

BY: MR. MICHAEL EDWARD DEUTSCH

MS. ERICA THOMPSON

1180 North Milwaukee Avenue

Chicago, Illinois 60622

For Deft. Ashqar: MR. KEITH ALLAN SPIELFOGEL

20 North Clark Street, Suite 1200

Chicago, Illinois 60602

MR. WILLIAM MOFFITT

11582 Greenwich Point Road

Reston, Virginia 20194

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APPEARANCES (Cont'd):

Also Present: S/A BRADLEY BENAVIDES, FBI

S/A JILL PETTORELLI, FBI

Court Reporter: MR. JOSEPH RICKHOFF

Official Court Reporter

219 S. Dearborn St., Suite 1232

Chicago, Illinois 60604

(312) 435-5562

* * * * * * * * * * * * * * * * * *

PROCEEDINGS RECORDED BY

MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED BY COMPUTER

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THE CLERK: 93 CR 978, USA vs. Muhammad Salah and

Abdelhaleem Ashqar.

MR. SCHAR: Good morning, Judge. Reid Schar and

Carrie Hamilton on behalf of the United States.

THE COURT: Good morning.

MR. DEUTSCH: Michael Deutsch and Erica Thompson on

behalf of Muhammad Salah.

MR. MOFFITT: William Moffitt and Keith Spielfogel on

behalf of Dr. Ashqar.

THE COURT: Good morning.

Dr. Ashqar is present.

THE DEFENDANT ASHQAR: Good morning.

THE COURT: Is Mr. Salah coming?

MR. DEUTSCH: No, he's not, Judge.

THE COURT: I will waive his appearance for today.

I am giving you some instructions that I have

revised.

MR. MOFFITT: And we will be giving you -- we're

having them printed right now, your Honor, a series of cases.

MR. SCHAR: Judge, I -- we went ahead and tried to

clean up the indictment.

THE COURT: Okay.

MR. SCHAR: Taking out Marzook, changing things

around, renumbering things. I've handed them to the

defendants. I'm going to give you a copy.

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(Document tendered to the Court.)

THE COURT: I am going to go through with you the

instructions I took under advisement from the other day and

some instructions that I have drafted. Then I will hear what

you have to say on certain issues.

Starting with government instructions, Government

Instruction 16, Mr. Deutsch, you had proposed that I include

within that instruction the language from the admission about

the birds.

I told you at our last conference I didn't think it

was appropriate to include it in there, but I would give a

separate instruction on it, which I undertook to draft based

on what you gave me. I gave you one yesterday. I've given

you another revised one to make the language consistent with

Government Instruction 16.

All I did with the one I gave you today was change

"You may give this information obtained by the birds such

weight as you feel it deserves. "

MR. DEUTSCH: Judge, the only thing that I would

request adding to this instruction was --

THE COURT: Now, just so -- are you working off of

Revised Salah Paragraph 3 of 12-27-06 Letter?

MR. DEUTSCH: Yes.

THE COURT: At the top.

MR. DEUTSCH: Yes.

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THE COURT: Okay.

MR. DEUTSCH: I mean, I'm working off the other one,

but the suggestion I have applies to both.

It says, "You have received" -- first sentence says,

"You have received an admission by the government concerning

the use of Israeli interrogators with defendant Salah

Palestinians working called birds." I would add to the next

sentence, "according to the admission" and then I would put in

quotes the actual admission.

THE COURT: Sure.

MR. DEUTSCH: Okay.

Because we, of course, have a position that admission

doesn't go far enough. So, with that addition, that would be

fine with us.

THE COURT: Okay.

"According to the admission."

MR. DEUTSCH: And then quote --

THE COURT: Quote.

MR. DEUTSCH: Put in quotes, "The following."

THE COURT: Yes. That makes sense.

Mr. Schar, on behalf of the government, do you want

to --

MR. SCHAR: Judge, as a general matter, we would

object to this. I just want to give your Honor an analogy;

and, that is, obviously, there are lots of cases in which

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information is obtained from either confidential informants or

other individuals with backgrounds that are of questionable

character, and that information is put into evidence in gang

cases and all types of cases. And in those cases where there

isn't the actual testimony of the individual, which is what

the caution and great care instruction, I think, typically

goes to, there isn't an additional instruction saying, well,

you've received certain pieces of evidence that were obtained

in a particular manner, you should consider that evidence, an

actual instruction regarding the evidence, with caution and

great care. Obviously, the fact of how the evidence was

obtained and received come in and the jury can determine how

it wants to view that.

So, in the sense of instructing the jury specifically

that the information was obtained from the birds who were

prisoners in jail for non-violent crimes and who received

particular things, which was the information that was in the

admission, I understand the instruction in that regard. It's

the concern the government has that you are now instructing

the jury as to particular evidence that they should consider

with caution and great care, which I think takes it beyond

where those instructions normally go and would be applicable,

I think, in a number of cases where the evidence comes in.

THE COURT: The problem with your analogy, Mr. Schar,

is as you said it, evidence comes in about how that other

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evidence was obtained, and under CIPA that wasn't -- they

didn't get that benefit here. So, I'm overruling your

objection. I will give what I have deemed Revised Salah

Paragraph 3 of 12-27-06 letter, which will read as follows:

"You have received an admission by the government concerning

the use by the Israeli interrogators with defendant Salah of

Palestinians working with the ISA/GSS called birds. According

to the admission, 'the participants in the birds exercise with

defendant Salah were prisoners in jail for non-violent crimes

who received reduced sentences, better prison conditions,

and/or money based on their participation in the birds

exercise.' You may give this information obtained by the

birds such weight as you feel it deserves, keeping in mind

that it must be considered with caution and great care."

MR. SCHAR: And I would put that after the Shorbagi

instruction.

THE COURT: That -- I haven't figured out where I'm

going to order all these yet, but that is likely where I will

put it.

MR. SCHAR: Okay.

THE COURT: Okay. Government 28 I took under

advisement. I am overruling defendants' objections. I will

give Government 28, which is a pattern, and accurately sets

forth the elements required to find RICO conspiracy.

The issue of First Amendment issues you've raised and

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other issues, I think, are better in either separate

instructions or a separate theory of the defense instruction.

So, your objections to Government 28 are overruled.

Government 36, which I took under advisement -- okay.

I took 36 under -- well, I didn't take it under advisement. I

asked you to submit a revised 36, which the government did.

I have taken that revised and tinkered with it. I

know, Mr. Deutsch and Mr. Moffitt, you have agreed this is

beneficial to the defendants. I'm looking to you to see, and

certainly, Mr. Schar, I will hear back from you, based on my

proposed language what your thoughts are.

MR. SCHAR: Judge, can I just have one moment to --

THE COURT: Sure. You can have two moments if you

need. I know this takes a little while to digest.

(Brief pause.)

THE COURT: Thoughts, comments, suggestions,

preferences for one of the two versions?

MR. DEUTSCH: Judge --

THE COURT: Do you need more time?

MR. DEUTSCH: I probably need more time. But in the

last sentence, it seems to me --

THE COURT: Which one, Mr. Deutsch, are you working

off of, mine or the government's?

MR. DEUTSCH: Yours.

THE COURT: Okay.

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MR. DEUTSCH: "In other words, it is sufficient for

purposes of Count One that you find that a defendant agreed

that at least two of the same type of racketeering acts

occurred."

THE COURT: Yes. I like that change.

MR. MOFFITT: Your Honor, I'd ask that with respect

to the first sentence, "As to each defendant, you must be

unanimous that the government has proven beyond a reasonable

doubt the defendant agreed that some member of the

racketeering conspiracy" --

THE COURT: Or how about "the charged conspiracy" to

be consistent with language we've used throughout.

MR. MOFFITT: Or -- I obviously would like the word

"racketeering" there.

THE COURT: Okay. "Of the charged RICO conspiracy,"

that's fine.

MR. MOFFITT: I would rather racketeering.

THE COURT: All right.

MS. THOMPSON: I think that is what has been used is

racketeering conspiracy.

THE COURT: Let me just go back to 28 and see.

Okay. That's fine.

Charged -- okay, racketeering conspiracy. All right.

I've put that in.

MR. MOFFITT: In the next sentence, you must be

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unanimous as to the type of racketeering activity that each of

the defendants must apply to both defendants it seems to me.

MR. SCHAR: Yes, Judge, probably should be in the

second sentence as to each --

THE COURT: I think that's better, yes, okay. "As to

each" --

MR. MOFFITT: Those are the only two suggestions that

I have, Judge.

THE COURT: Okay.

And I take it then that --

MR. MOFFITT: I don't object to Mr. Deutsch's

suggestion.

THE COURT: Okay.

And do you agree -- do you like this version better

than --

MR. MOFFITT: Yes, ma'am.

THE COURT: Okay.

Anything else on Revised Government 36?

Let me know when you want me to move on.

MR. SCHAR: Judge, my only concern is the confusion

that could occur, given what's also in Government Instruction

35, which is the pattern.

Obviously, Government Instruction 35 -- well, the

pattern on pattern intermixes the concept of acts of

racketeering to include both type and actual specific acts.

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THE COURT: Okay.

MR. SCHAR: So, at the top what you have is -- which

is obviously the accurate statement of law, "In order to find

a pattern of conspiracy to Count One, you might find beyond a

reasonable doubt the defendant agreed that some member of the

conspiracy would commit at least two acts of racketeering,"

referring to the type, obviously, not the specific acts

because when you get down to the last paragraph, "The United

States does not have to prove the defendant agreed that two or

more specific acts would actually be committed."

And my only concern with the revised 36 is whether

there will be any confusion that somehow the jury needs to

think that they do need to find a defendant agreed to a

particular specific act itself as opposed to a type of

racketeering activity.

THE COURT: Okay.

What do you propose? I tried to make that clear, and

under Salinas, the Supreme Court opinion in Salinas and

consistent with the pattern. What do you propose? Work off

of the revised.

MR. SCHAR: Well, I'm working off the revised, but

the two acts of racketeering activity need not be different

types of racketeering activity. I'm wondering whether --

THE COURT: But the two -- I see. Two -- but the two

racketeering activities need not be different types?

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MR. SCHAR: It's hard to come up with good language.

THE COURT: I know.

How about "but they need not be different types."

MR. SCHAR: That probably solves it.

THE COURT: All right.

MR. SCHAR: Yes.

THE COURT: All right.

MR. DEUTSCH: Can you read that again?

THE COURT: Sure.

I'll start the with second sentence. "You must be

unanimous as to the type of racketeering activity that the

defendant agreed that some member of the conspiracy would

commit, but they need not be different types of racketeering

activity."

MS. THOMPSON: I thought we added at the beginning,

"As to each defendant, you must be unanimous" --

THE COURT: We did. I'm sorry. I've got that on the

screen and not on my written.

MS. THOMPSON: All right.

THE COURT: Let me do that again.

"As to each defendant" --

MS. THOMPSON: Then it's the same.

THE COURT: -- "you must be unanimous as to the type

of racketeering activity that some member of the conspiracy

would commit" --

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MS. THOMPSON: I actually think that it needs to

maintain the language that "the defendant agreed that some

member of the conspiracy would commit;" in other words, add

the beginning, "As to each defendant," but then leave it the

same. Otherwise, I think it makes it unclear that there has

to be an agreement.

THE COURT: I agree.

"As to each defendant, you must be unanimous as to

the type of racketeering activity" --

MS. THOMPSON: -- "that the defendant" --

THE COURT: -- "that the defendant agreed that some

member of the conspiracy would commit, but they need not be

different types of racketeering activity."

I think that does it.

And then the agreed language is picked up in the last

sentence again.

Okay.

So, the government -- I am going to give Revised 36

instead of Government 36.

Government 58.

MR. DEUTSCH: 58, did you say?

THE COURT: 58.

I am overruling your objection, Mr. Moffitt, because

hostage taking was a specified unlawful activity during the

entirety of the relevant time period. Hostage taking was

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included as specified unlawful activity in the initial 1986

act that created 1956. Your objection was just legally not

correct.

In addition, "An offense against a foreign national

involving kidnapping became a specified unlawful activity on

October 28th, 1992." It was not in '96.

So, your objection to Government 58 is overruled.

Government 63, I am still working on a withdrawal

instruction. I don't have -- I don't have one for you yet. I

don't have a final version.

So, I think you -- I know Mr. Deutsch submitted one.

I can't recall -- I think you submitted one, as well. I

just -- I've read many withdrawal cases, but I don't have a

ruling for you yet.

So, I am going to keep withdrawal under advisement

and will give you -- if I have one ready for you today, I will

have it faxed over to you. Otherwise, I'll give it to you

Monday morning.

There will be a withdrawal instruction. I'm just not

sure what it's going to --

MR. MOFFITT: I think a fairer statement is we did

not object to this instruction.

THE COURT: You did not? Okay.

MR. MOFFITT: This was in the government's packet,

and we did not object to this.

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THE COURT: Then Mr. Deutsch objected.

MR. DEUTSCH: Yes, I did.

THE COURT: Okay.

I'll get one for you.

MR. DEUTSCH: Just so we're clear, as the Court

recalls, we said that we're entitled to put in the specific

evidence that we rely on.

THE COURT: Yes, yes. I have your proposals.

MR. DEUTSCH: Yeah, okay.

THE COURT: I just don't have a final ruling.

MS. THOMPSON: Last time we were here, Mr. Schar had

articulated something about the government's position on the

withdrawal. And I just wanted to get some clarity on the view

of the law, which was that he seemed to articulate the

position -- and correct me if I'm wrong -- that one could

withdraw effectively from Count One but aid and abet it after

withdrawal. So, in other words, withdraw and then be right

back into Count One. And I don't think that's an accurate

view of the law, and maybe I misunderstood the government's

position.

MR. SCHAR: Well, I think that's -- I think that --

that was the government's position. You understood it. I

think that's theoretically correct. You can be part of a

conspiracy, withdraw from it, and then later take actions that

aid and abet obviously what you knew was a clear conspiracy

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because you were part of it at one point. I mean

theoretically that's possible.

THE COURT: I think that's theoretically, but that's

not what you're arguing.

MR. SCHAR: That's not what we're arguing, but I

think this came up in the context of the instruction related

to how do you talk about evidence that would come in if a jury

found withdrawal occurred and then there was evidence after

that, somehow suggesting that it wouldn't be relevant to a

Count One. I think that's how the issue came up, but --

THE COURT: Okay. Well, I will consider what you

have given to me and give you a final ruling.

There will be a withdrawal instruction. That's the

most I can say at the moment.

All right. 65. I don't have a final ruling for you

on 65. I've read the government cases that were cited to me.

I've read the defendant's brief. I've read every possible

case I could get my hands on. And there is nothing directly

on point in terms of precedent.

The Snowden case, which was relied upon by the

defendants, and talks about predicates that are added after

the commission of the conspiracy, isn't on point because that

deals with a substantive 1962(c) RICO case where the

predicates have to actually be committed, not just agreed to.

So, I'm working on this. You'll get a revised

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version. This one you probably will not get by the end of the

day.

I have your e-mails. I may e-mail it to you over the

weekend. Otherwise, I'll give you one on Monday morning. I'm

still working on it.

But there was one point raised in Dr. Ashqar's brief.

Section 1543, that was not included within Instruction 65.

You referenced 1203 and 1956(a)(1), but not 1543.

MR. SCHAR: Yes, Judge, because that's resolved via

the withdrawal instruction. Once the withdrawal instruction

is given, if the defendants are convicted, I think it was Opa

(phonetic) and Caporale, one of those two cases dealt with a

similar situation as here, where they found that because of

the withdrawal instruction, the jury necessarily found the

charged conspiracy continued into a period after that

predicate was added.

And, likewise, in this case, the withdrawal

instruction deals with everything that would have occurred

prior to August of 1999. It does not, however, deal with 1203

and 956, which were added in October, 2001.

So, we need a special instruction, which this is,

that instructs they need to find the individual defendants

continued into the charged conspiracy after October of 2001.

THE COURT: So, the 1543 that was effective in April

of '96, you're saying if they find withdrawal --

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MR. SCHAR: If they find no withdrawal.

THE COURT: If they find no withdrawal, that that

satisfies that?

Explain that to me again, Mr. Schar.

MR. SCHAR: If they find no withdrawal, Judge, they

have, by definition, found these defendants continued with the

conspiracy until a point after August of 1999. That doesn't

necessarily mean they found that they continued until October,

2001.

THE COURT: Okay.

MR. SCHAR: But it would mean that they were in the

conspiracy at least as of August, 1999.

In order to use hostage taking in 956, the jury needs

to make a finding that the individual defendants continued in

the charged conspiracy after October, 2001, and that does need

a special instruction.

THE COURT: Okay. I see your point.

Which goes along with your argument that as long as

they remained in the conspiracy post the date of one of these

statutes becoming law, that it can come in.

MR. SCHAR: Correct.

THE COURT: Okay. I'll give you a ruling on it.

Yes?

MR. MOFFITT: Maybe I'm a little thick, but it seems

to me that they cannot rely then on the 1546 as a predicate

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act.

THE COURT: 1543?

MR. MOFFITT: 1543 --

THE COURT: Okay.

MR. MOFFITT: -- as a predicate act unless they find

that they remained in the conspiracy after 2001.

THE COURT: Well, it's not 2001 because 1540 -- I

agree with you on the 956 and 1203, but 1543 was not part of

racketeering acts in '01. It became part in '96.

MR. MOFFITT: Okay.

THE COURT: So, the '01 date wouldn't apply.

MR. MOFFITT: Right, okay.

THE COURT: Under their theory, the '01 date wouldn't

apply to 1503.

MR. MOFFITT: Okay.

MS. THOMPSON: See, I wonder, Judge, whether or not

it might make this instruction, which is kind of complicated,

a little bit more understandable for the jury if up in the top

paragraph we tell them that they didn't become law or sort of

reflect that concept for them so that they understand that,

oh, I can only not consider it because it wasn't the law at

that time. Like maybe even just in the first sentence.

MR. MOFFITT: Which instruction are we on?

MS. THOMPSON: Or the second sentence, "In order to

consider violations of 1203 and 9 --

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THE COURT: Which instruction is that what you said?

MR. MOFFITT: 65.

MS. THOMPSON: 65.

In order to consider the violations as types of

racketeering, you know, to somehow reflecting that they didn't

become law.

MR. SCHAR: Well, we actually tried -- believe it or

not, I understand --

MS. THOMPSON: I understand that's why the date and

why the whole instruction.

THE COURT: Right, but let them know.

MR. SCHAR: I understand Ms. Thompson's point. We

actually did something similar to that with the money

laundering and the change of SUAs over time. We tried to come

up with something that would demonstrate that.

The difficulty is with money laundering, it was easy.

Once it became an SUA, that was it. You could explain the

SUAs changed over time. Here with RICO, it's a little bit

different because even though it wasn't a RICO predicate, it

was a crime.

THE COURT: Right.

MR. SCHAR: And it's hard to instruct the jury in a

way that says, well, it became a RICO predicate on a

particular date, but you can actually consider it as a crime

prior to that date, which you can.

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So, we just -- after playing around with it for a

while, it was just difficult to come up with a way that wasn't

actually more confusing without having to also explain but you

can still go back and consider the criminal act prior to it

being included as a predicate, et cetera, et cetera.

THE COURT: All right. Let me -- when I am tinkering

with this, I will factor in your point, Ms. Thompson.

MS. THOMPSON: Thank you, Judge.

THE COURT: Government 72, I am overruling your

objection based on the Seventh Circuit's opinion in United

States vs. Cueto, 151 F.3d at 630 and 631.

Cueto has part -- this exact instruction as an

instruction that was given in that case and approved by the

Seventh Circuit. So, it has been -- this explicit language

has been approved by the Seventh Circuit. I will give

Government 72.

Government 77, I am sustaining defendants' objection

to the first sentence. "It is not a defense to contempt that

a defendant feared the use of his statements by a foreign

country or in a prosecution in a foreign country."

I have gone back and read Balsys, B-A-L-S-Y-S, the

Supreme Court opinion that you are relying on for that. And I

don't read Balsys like that. I think you are carrying it too

far. Balsys says that the Fifth Amendment privilege can apply

equally to asserting it to be protected from prosecution in a

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foreign jurisdiction, as well as in the United States. But I

don't read it to go as far as the contempt situation that you

are trying to put it into here.

So, that objection is sustained.

MR. SCHAR: Judge, also, I'm sorry, take --

THE COURT: And Brummitt didn't stand for that,

either.

MR. SCHAR: The -- I think the Seventh Circuit in

Dr. Ashqar's appeal, actually, cited Balsys, and I'm just

wondering if, before you make an absolute final ruling, we

didn't cite that.

THE COURT: You didn't cite that.

MR. SCHAR: We didn't cite that. If you go back and

see if that changes your opinion in any way.

THE COURT: I will look at it. Do you have the exact

cite for that?

MR. SCHAR: Unfortunately, I do not have it with me,

although --

THE COURT: Okay.

MR. SCHAR: -- I can get that to you, Judge.

THE COURT: All right. Call me with that.

Balsys doesn't support -- I didn't read it that far,

but I will -- I'm bound by the Seventh Circuit, so give me the

Seventh Circuit cite, and I will look at it with that.

Now, Mr. Spielfogel, I asked you at our last

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instruction conference about the burden issue and how you

squared your position with Dixon on vs. United States, which

was decided six months ago.

MR. SPIELFOGEL: Yeah. Your Honor, I read over Dixon

again and the issue of burden of proof on the contempt charge.

I see, obviously, what your point is.

In Dixon, though, they talk about that as the -- in

one of the footnotes that as the government recognized in oral

argument, there may be crimes where the nature of the mens rea

would require the government to disprove the existence of

duress beyond a reasonable doubt, and they cite certain cites

here and they say, explaining that some common law crimes

require the crime be done maliciously.

It seems to me that coercion would be a defense to

the 1503 charge and that under 1503, we actually have kind of

a malicious state of mind that's required under 1503 when you

look at the committee comments to 1503, where they cite the

fact that several cases have held that the term "corruptly"

means that the defendant acted with an improper motive or with

an evil or wicked purpose.

So, coercion, the burden -- my position would be that

the burden of proof in a -- as far as coercion goes as to the

1503 would be that the burden remains on the government.

THE COURT: Mr. Schar.

MR. SPIELFOGEL: Under that exception that you see in

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'04 in Dixon.

MR. SCHAR: There was not actually -- I know the

footnote Mr. Spielfogel speaks of, and there wasn't a specific

objection set out. They said in the future they may be for a

malicious crime. I don't think that the elements of

obstruction of justice meet the definition in that particular

footnote. So, I would disagree with that assessment and that

reading of Dixon.

MR. SPIELFOGEL: Well, I think there is case law,

Judge, that supports it. Actually, those cases are cited in

committee comments that support the fact that you need that

evil, improper motive.

MR. SCHAR: But that's --

MR. SPIELFOGEL: So --

MR. SCHAR: That's --

THE COURT: But the Seventh Circuit hasn't adopted

that, and I'm not instructing on that.

I will look --

MR. SPIELFOGEL: Your Honor, the other argument that

I would make on that is that we have a pattern jury

instruction that, you know, it seems to me since it exists,

that's the one that should be given.

THE COURT: Well, that's easy because if it exists

and the Supreme Court has overruled it, then it should not be

given.

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I will look at the footnote in Dixon again and give

you a final ruling on that. I didn't bring Dixon out with me.

MR. SPIELFOGEL: Your Honor, just as one final, I

don't think there's anything in 6.08 that is actually -- I

mean, when you just read what it says here, what the coercion

instruction is, I don't think there's anything in that that's

overruled by Dixon. I mean, it just states what coercion is

without going into burden of proof.

THE COURT: I agree in the instruction itself. The

committee comments are just wrong as a matter of the law to

the extent they're talking about the burden being on the

government. And I thought that's what you were referencing

the committee comments --

MR. SPIELFOGEL: No, I'm referencing the fact that we

do have a coercion instruction that has been set forth, and

although the burden may have changed, it's not like in the

instruction they're setting forth what the burden is.

THE COURT: What about that, Mr. Schar? Just going

with the committee instruction without the burden in it.

MR. SCHAR: My only concern with that, Judge, is the

burden is over and over and over again on the government, and

under Dixon, the burden in this particular case is on the

defendant. So, I think it would be appropriate to

differentiate the two.

MR. SPIELFOGEL: Well, I would think that if the

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committee thought that that was a problem, they would have put

in the recommended instruction that, in this particular one,

we've got to say who the burden is on, and they didn't do

that.

THE COURT: Okay. I'll give you -- I'll go back and

look at the footnote and give you the final version.

MR. SCHAR: Judge --

THE COURT: Government --

MR. SCHAR: I just want to -- because we went

through, I just wanted to note it, Government Instruction No.

62 I put one additional change in for clarification. It's

just the -- in this new section. I didn't note it, so I'm not

sure everyone caught it.

But this is 1952, travel in aid of racketeering, and

it uses the term unlawful activity to mean money laundering.

To avoid confusion with unlawful activity in the actual money

laundering statute, I just added "for purposes of Section

1952" for clarification. It's not substantive.

THE COURT: Yes, I think that's fine.

Is there any objection to that?

MR. MOFFITT: No.

THE COURT: Okay.

Government 84, this is the multiple conspiracy

instruction. This was provided -- we didn't talk about this

last time, and I asked you to look at it. I have -- I read

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Mansoori, and this is -- the one the government submitted is

directly from Mansoori. That particular instruction was

approved.

I've made some changes and I hand wrote them in, so,

you have my chicken scratch on Government 84, that I thought

made it more accurate.

MR. SCHAR: We have no objection.

THE COURT: Pardon?

MR. SCHAR: We have no objection to this.

THE COURT: Okay.

The obvious ones the government has to prove, not

just if you find beyond a reasonable doubt. I thought it made

sense to add in that the government has to prove.

And, then, the second-to-last paragraph, this is the

one where I think substantively it does matter.

If you find -- I took out "beyond a reasonable doubt

that there were two or more conspiracies" because that's not

what they have to find beyond a reasonable doubt. They have

to find the charged conspiracy beyond a reasonable doubt.

So, I have changed it to, "If you find that there

were two or more conspiracies and that" -- this is what I

added the -- "the government" -- that's what that G stands

for -- "has proved beyond a reasonable doubt" -- and then left

the rest in.

So, I don't know what your thoughts are on this.

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MS. THOMPSON: Well, one of the things that we noted

in it was that we thought that, again -- and I think it's

consistent with the other instructions, that we should refer

each time we say "conspiracy" to "racketeering conspiracy"

particularly on this one when we're talking about multiple

conspiracies. We would ask for the language "racketeering

activity," and then in the --

THE COURT: "Racketeering conspiracy."

MS. THOMPSON: Right. Or "charged racketeering

conspiracy," which I think is in there several times.

And the other thing is the second-to-last paragraph,

the one that you were just talking about, we thought that in

the last phrase, it actually should be "only if you further

find beyond a reasonable doubt" -- oh, no, that's -- I think

that's taken care of because you struck the original

reasonable.

THE COURT: Exactly.

MS. THOMPSON: I see what you're saying. Okay.

THE COURT: Okay. Is there any objection to this as

I -- with the changes to Government 84 with the changes add in

the "racketeering" before the word "conspiracy" and then the

changes I've included?

MR. SCHAR: For every single instance of conspiracy,

we're going to add in racketeering?

THE COURT: I'm just reading it again.

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I would put it in the second paragraph, "Proof that

there were multiple conspiracies is not necessarily proof of a

single racketeering conspiracy nor is it inconsistent with the

existence of a single racketeering conspiracy."

And, then, the fourth paragraph, "If you find that

the government has proved beyond a reasonable doubt that there

was one overall racketeering conspiracy as alleged in Count

One and" --

MR. MOFFITT: Your Honor, I think we need to point

out that if you do not find beyond a reasonable doubt that a

particular defendant was a member of any conspiracy --

THE COURT: Wait a minute, wait a minute, wait a

minute. Where are you? The last -- where are you,

Mr. Moffitt?

Let me go back to the next -- the second-to-last

paragraph, "If you find that there were two or more

conspiracies and that the government has proved beyond a

reasonable doubt that a particular defendant was a member of

or aided and abetted one or more racketeering conspiracies,

you may find the defendant guilty of Count One if you further

find beyond a reasonable doubt that this proven racketeering

conspiracy" -- or "that this further conspiracy was included

within the racketeering," put it there instead of the other

one.

Did you get that, Mr. Schar? That this proven

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conspiracy was included within the racketeering conspiracy

charged, I would put, in Count One.

MR. SCHAR: One moment, Judge.

THE COURT: And then the last paragraph, Mr. Schar,

I'd put it in, "If, on the other hand, the proven conspiracy

is not included within the racketeering conspiracy" --

actually, you can leave it alleged in Count One. That's fine.

MR. SCHAR: The only question is the paragraph right

before that whether or not it should be racketeering

conspiracy in the second line or just conspiracy, instead of

racketeering conspiracy, I understand, at the bottom.

THE COURT: Yes, I think you can take that out of the

second line.

Okay. Mr. Moffitt, was there something else on this

instruction?

MR. MOFFITT: We're struggling with something right

now, your Honor. I'm not sure that we've resolved it.

THE COURT: Do you want to let me know?

MR. MOFFITT: Yes.

Well --

THE COURT: I might be able to help you resolve it.

MR. MOFFITT: Just the language in the first section.

MS. THOMPSON: Yeah. "If you do not find beyond a

reasonable doubt that a particular defendant was a member of

any conspiracy, you should find the defendant was not guilty

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of Count One."

I mean, it may be fine, but there's a part of that

that's making me think the jury's been instructed to find --

if you struggle -- the same problem we had in the other

paragraph, that they're being told go find beyond a reasonable

doubt which conspiracy they're a member of.

THE COURT: Which paragraph are you on?

MS. THOMPSON: We're on the one that's under the one

that starts with "proof."

THE COURT: Okay. So the third paragraph.

MS. THOMPSON: Yeah. There seems to me to be an

implication about that they need to be looking to put them in

some conspiracy, like, from jump.

THE COURT: I don't think so.

MS. THOMPSON: It seems like it should be the charged

conspiracy there, like we should start with the charged one.

"If you do not find beyond a reasonable doubt a defendant was

a member of the charged racketeering conspiracy, you should

find him guilty of Count One."

MR. MOFFITT: Not guilty.

MS. THOMPSON: Not guilty, sorry. Not guilty.

THE COURT: Mr. Schar?

MR. SCHAR: Actually, I think this was the same

objection that was raised with the instruction in Mansoori,

and the Seventh Circuit approved this language.

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THE COURT: Yeah, this is identical to what the

Seventh Circuit has approved.

MS. THOMPSON: Okay.

MR. SCHAR: I don't think it's unclear. I guess I

just don't see it as being that unclear.

MS. THOMPSON: There's something about it that

strikes me that it's suggesting that the very first thing they

ought to do is go back there and find whether or not he's

guilty of any conspiracy, rather than be focusing on the

charged conspiracy.

THE COURT: Is there any harm in changing it,

Mr. Schar?

MR. SCHAR: To?

THE COURT: "If you do not find that the government

has proved beyond a reasonable doubt that a particular

defendant was a member of the charged racketeering

conspiracy" --

MS. THOMPSON: Because I think that makes sense to

then talk about you go into the idea of multiples.

THE COURT: Mr. Moffitt, do you --

MR. SCHAR: If that's the change, we have no

objection.

MR. MOFFITT: I would agree with that.

THE COURT: Okay.

MR. SCHAR: So, what -- "was a member of the charged

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racketeering conspiracy"?

THE COURT: Yes. Let me read the changes that I have

just so we're all on the same page.

Nothing in the first paragraph.

Paragraph 2, "Proof that there were multiple

conspiracies is not necessarily proof of a single conspiracy,

nor is it necessarily inconsistent with the existence of a

single conspiracy."

I don't think we need the racketeering in there,

Ms. Thompson.

MS. THOMPSON: I don't know that we need it in that

one. I would think we need it in the first one.

THE COURT: I put it in the other ones. I had

originally said to put it in there, Mr. Schar, but take it

out.

MR. SCHAR: Yes, Judge.

THE COURT: I think that's just a general --

MS. THOMPSON: Is it going in the first paragraph

though? Beyond a reasonable doubt, the existence of a

particular racketeering conspiracy charged. I can see it's

not going in the one that starts with proof, but it seems to

me it should be in the first paragraph.

THE COURT: That's fine. You can put in first

paragraph, second sentence, "the existence of the particular

racketeering" --

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MS. THOMPSON: Conspiracy charged.

THE COURT: -- "conspiracy charged."

Okay. So, no changes in the second paragraph.

Third paragraph, "If you do not find that the

government has proved beyond a reasonable doubt that a

particular defendant was a member of the charged racketeering

conspiracy, you should find that defendant not guilty of Count

One."

"If you find that the government has proved beyond a

reasonable doubt that there was one overall racketeering

conspiracy as alleged in Count One and that a particular

defendant was a member of that conspiracy, then you should

find that defendant guilty of Count One."

"If you find that there were two or more conspiracies

and that the government has proved beyond a reasonable doubt

that a particular defendant was a member of or aided and

abetted one or more conspiracies, you may find the defendant

guilty of Count One if you further find beyond a reasonable

doubt that this proven conspiracy was included within the

racketeering conspiracy alleged in Count One."

"If, on the other hand, the proven conspiracy is not

included within the racketeering conspiracy alleged in Count

One, you should find the defendant not guilty of Count One."

Everybody okay with that.

MR. MOFFITT: Yes.

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MR. SCHAR: Yes, Judge.

THE COURT: Okay.

So, give -- I will give Government 84 with my -- with

the revisions we've all just done.

Okay. So, I have -- I still have under advisement

No. 63, the withdrawal one, No. 77 and No. 65.

The government filed a revised set of what previously

had been Instructions 38 through 45 dealing with Illinois

murder.

Were there any objections to the revisions? I think

they addressed all of your concerns.

MR. MOFFITT: I think there's still an issue of venue

or jurisdiction. I don't -- I still don't think that the

Illinois conspiracy statute is extraterritorial. They've got

to find an act committed in Illinois.

THE COURT: Okay. Can you point me to the particular

instruction you're referring to?

MR. MOFFITT: If you look at 41, your Honor.

THE COURT: Okay. Government Instruction 41, I am

looking at 41 of the third amended draft jury instructions.

Yes?

MR. MOFFITT: And then 42 talks about the elements.

There's got to be -- I think in order for the

conspiracy to have jurisdiction in Illinois, there's got to be

an act committed in Illinois in furtherance of the conspiracy.

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THE COURT: What about that?

MR. SCHAR: Judge, Government Instruction 46-A.

THE COURT: 46-A.

Okay. That takes care of that. "In order to charge

conspiracy to commit Illinois first-degree murder or

solicitation of Illinois first-degree murder, an act related

to the conspiracy or solicitation must occur in Illinois."

MR. MOFFITT: What is an act related to the

conspiracy? Because I don't know.

THE COURT: Mr. Schar?

MR. MOFFITT: It seems to me that it ought to be an

overt act, not an act related to the conspiracy.

THE COURT: But solicitation doesn't have overt act

as an element.

MR. SCHAR: That's the issue, the conspiracy and

solicitation both -- conspiracy has an overt act; but that

overt act wouldn't necessarily have to occur in Illinois if

there was an agreement or one of the actors were in Illinois.

The point is -- first of all, there's no actual --

the crime is the RICO. So it's the agreement to do this. I

think the jury needs to be instructed that if Illinois

first-degree conspiracy murder or solicitation were to

actually have been crimes, there has to be an act for venue

jurisdiction purposes, and that's all related to those crimes

in Illinois. And that's what this gets at. This is not an

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element --

THE COURT: But what -- Mr. Moffitt's objection is

what act does it --

MR. SCHAR: It doesn't have to be -- it just needs to

be an act. It needs to be something that occurred. The

agreement could occur here without no overt act.

On the other hand, the --

MR. MOFFITT: Well --

MR. SCHAR: -- agreement could occur elsewhere with

an overt act here for purposes of the conspiracy for the

solicitation.

THE COURT: Is it -- does --

MR. DEUTSCH: Is there evidence --

THE COURT: Should it be more -- pardon?

MR. DEUTSCH: Is there evidence in this case about an

act related to --

THE COURT: Well, the agreement.

MR. DEUTSCH: Well, is there -- this is what I'm

asking. Is there evidence in this record of whether there was

any act related, using their language, to conspiracy to commit

murder or solicitation for murder occurring in Illinois?

MR. SCHAR: Again, first, there doesn't have to be an

act because it's the agreement to run the affairs of the

enterprise through conspiracy.

THE COURT: An act related to the conspiracy or

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solicitation. What evidence is there, is Mr. Deutsch's

question, of an act related to the Illinois conspiracy?

MR. SCHAR: Sure. I mean, you've got Mr. Salah

getting money into his bank accounts in Illinois. You've got

Mr. Salah having conversations in Illinois. Mr. Salah saying

he's getting phone calls in Illinois. There are all types of

things related to actual acts that occurred in Illinois,

specifically in Chicago, that would be arguably acts related

to conspiracy solicitation if, in fact, there actually had to

be one.

But, again, all the parties need to do is to agree

that conspiracy to commit murder and solicitation to commit

murder would be part of the types of activity that would be

used to run the affairs of the enterprise.

Now, that would, if it were to be charged, require an

act; but there's lots of evidence that there were acts related

to that in Illinois.

MR. MOFFITT: In order -- in order for it to be a

RICO conspiracy, I understand what Mr. Schar is saying. But

in order for it to be a conspiracy in Illinois, as opposed to

just a RICO conspiracy, there has to be some act that occurs

in Illinois.

THE COURT: But that's what this says. An act must

occur in Illinois.

MR. MOFFITT: Yeah, but it says an act related.

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THE COURT: Okay.

MR. MOFFITT: It doesn't say either the agreement or

an act in furtherance. It says an act related, and I --

there's nothing else in these instructions that talk about

this in terms of an act related to a conspiracy. So, how is

the jury supposed to know what in effect is an act related to

a conspiracy? We've always talked --

THE COURT: So it's the -- it's the "related to"

that's your problem?

MR. MOFFITT: Well --

THE COURT: I'm trying to figure out exactly what

your objection is.

MR. MOFFITT: That's what I said. I don't know what

related to means --

THE COURT: Okay.

MR. MOFFITT: -- because we don't discuss it anywhere

else.

THE COURT: Okay.

MR. MOFFITT: Okay.

THE COURT: I have to make sure I understand.

I'm thick, as you put it. I didn't understand

because first you objected that there has to be an act in

Illinois, but that's what this says.

MR. MOFFITT: Right.

THE COURT: But now it looks like your objection is

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the "related to" language is too vague.

Mr. Schar?

MR. SCHAR: Again, Judge, it's not an element issue

as much as it is a venue jurisdiction issue. And, so, I'm

happy to try and work on the language that makes it clearer;

but I don't want to be misleading, trying to add an element to

conspiracy or solicitation that, in fact, doesn't exist. For

solicitation, there needs to be no overt act at all.

MR. MOFFITT: Don't you have to solicit the act in

Illinois?

MR. SCHAR: No, you wouldn't have to solicit the act

in Illinois.

MR. MOFFITT: Oh, you mean I could solicit murder in

New York and be charged in Illinois?

MR. SCHAR: Sure, if there's an act related to the

solicitation that occurs in Illinois.

THE COURT: Find some Illinois case law or tinker

with the language.

MR. SCHAR: If the concern is "act related" what if

we changed it to "an act in furtherance of" if that's the --

THE COURT: That seems more --

MR. MOFFITT: I can agree to that.

MR. SCHAR: That's fine.

THE COURT: Mr. Moffitt can agree to that. That

seems more appropriate, "an act in furtherance of."

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Okay. Any other objections to --

MR. SCHAR: Judge, the only thing I would add is

because now it is beginning to sound like an overt act

requirement. I would ask then that there be language added to

this saying that the act in furtherance need not be illegal

itself, which is typically the overt act.

THE COURT: Yeah, that's fine.

MR. MOFFITT: I don't have a problem with that.

THE COURT: Okay. That's fine.

Any other objections to the Revised Government's 38

through 46-A, I guess it is?

MR. DEUTSCH: No.

THE COURT: Okay.

MR. MOFFITT: Your Honor, I think we probably ought

to say in 46-A --

THE COURT: Pardon me?

MR. MOFFITT: In 46-A.

THE COURT: You have another objection?

MR. MOFFITT: It's not actually an objection. I

would just like to make it clear that the word "conspiracy" in

the last clause of the sentence relates to the Illinois

conspiracy and not to the RICO conspiracy.

THE COURT: That's true. I thought that was clear,

but if you -- I think it's fine to add Illinois before there.

MR. MOFFITT: Okay. Thank you.

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MR. SCHAR: "Act in furtherance of the Illinois

conspiracy or solicitation."

THE COURT: Yes, as opposed to the racketeering.

That's fine.

MR. SCHAR: I just don't -- can we put Illinois

murder conspiracy or solicitation?

MR. MOFFITT: That would be fine.

MR. SCHAR: Okay.

THE COURT: Okay.

That takes care of -- I know I have three under

advisement. That takes care of all of my rulings, and I've

ruled on all of the objections to the government's

instructions.

Mr. Salah's.

Okay. Your Salah Instruction 10 I took under

advisement, and I have tinkered with it and given you a

Revised Salah 10.

MR. DEUTSCH: Judge, I think it's fine.

THE COURT: Okay.

MR. SCHAR: Judge, we would -- here would be our

concern.

The issue is legal -- in particular, legal purposes.

I mean, what really changed in 1995 is that at that point, it

became illegal to donate any money, period. It became an

automatic crime to do that.

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Prior to that time, it was legal to donate money as

long as it did not violate existing criminal laws in the

United States.

And our concern here, again, is the issue of legal

purposes because that's not further defined, and very easily

one could envision an argument either raised by the defense or

the government that, well, this individual gave money for the

family of a suicide bomber. That giving of the money to a

family may arguably be a legal purpose -- again, without

clarification as to what legal purpose means -- but obviously,

could very well be evidence of illegal activity.

I'm wondering -- we have one of two thoughts. Either

to flip it to say exactly what it is that became illegal in

January of 1995, which is that United States citizens and

residents could -- it became illegal to provide any money at

all to Hamas, or try to take out the legal purposes language,

which I think is confusing, and say something along the lines

of "United States citizens and residents could raise, donate

and/or distribute money so long as such acts did not violate

existing criminal laws of the United States."

THE COURT: I like your second idea better than your

first.

MR. SCHAR: Okay.

THE COURT: How about that, Mr. Deutsch? "Prior to

its designation by the United States government, pursuant to

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Executive Order 12947 on January 24th, 1995, United States

citizens and residents could raise, donate and/or distribute

money to Palestinian organizations in the occupied

territories, including Hamas, as long as such acts did not

violate existing criminal laws in the United States."

Is that okay?

MR. DEUTSCH: That's fine.

THE COURT: Okay. Mr. Moffitt?

MR. MOFFITT: Fine. Fine.

THE COURT: Okay. I will make that change.

And, Mr. Schar, I will have -- the ones that I

revised, I'm working on on my computer now. You may want to

take notes just to make sure, but I will have these e-mailed

to you --

MR. SCHAR: Okay.

THE COURT: -- so that you can put them in the

revised.

MR. SCHAR: Thank you, Judge.

THE COURT: Okay.

So, that takes care of Salah 10.

I am now turning, Mr. Deutsch, to -- I have your

letter to me that was faxed on January 2nd with the proposed

withdrawal instructions. As I indicated with the

government's, I don't have a final withdrawal instruction for

you, but I will give you one. So, I'm going to turn back to

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your letter of December 27th, 2006.

Paragraph 3, I've already addressed that with the

proposed instruction.

Paragraph 22 deals with withdrawal again that your

January 2nd fax superseded.

MR. DEUTSCH: Yeah, it replaces that. You don't have

to -- the withdrawal ones are the ones I gave you on the 2nd.

THE COURT: Okay.

And then I -- I think the only thing left are the

First Amendment, strictissimi juris instruction and theory of

defense instructions.

MR. DEUTSCH: Right.

THE COURT: Now, Mr. Deutsch, you indicate here you

have tendered previously a theory of defense instruction.

MR. DEUTSCH: Judge, I withdrew that because as we

begin to talk about the instructions --

THE COURT: You were going to give me a new one.

MR. DEUTSCH: Yeah, and I'm not complete with that.

THE COURT: Okay.

MR. DEUTSCH: Because -- so, I would --

THE COURT: If you finish that over the weekend,

would you e-mail it to Joe?

MR. DEUTSCH: Yes, I'll do that.

THE COURT: And then he will get it on to me.

MR. DEUTSCH: All right.

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THE COURT: And I received the one you handed to me.

I haven't looked at it yet.

MR. MOFFITT: I understand. We wrote that -- we had

about ten of them, and we wrote that one up from the -- we

pieced that one together from the ten of them that we had down

in the cafeteria this morning. So --

THE COURT: I can appreciate that based on what I've

been doing.

I will look at that.

Mr. Schar, you should look at that as well and let me

know if you have any objection to it. You don't have to let

me know right now. I'll give you time to look at it because I

haven't looked at it.

So, First Amendment. I have looked at, Mr. Deutsch,

your various proposals. Mr. Moffitt, I have looked at your

various proposals. I have taken the government's objections

under consideration, and I have given you a revised First

Amendment instruction.

Take a look at that, please. Take whatever time you

need and let me know what you think.

This is -- I've also tried to come up with the

strictissimi juris instruction, and I don't have one of those,

yet. So, I've got my ten versions still laid out back there.

MR. MOFFITT: It took me a whole trial to figure out

how to pronounce it.

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THE COURT: I'm not sure I'm doing it correctly yet.

Take a look at the First Amendment, and let me know.

(Brief pause.)

MR. DEUTSCH: Judge, I would want in that first

sentence, "The First Amendment to the Constitution protects

freedom of speech and freedom of association, including

providing money for political causes." I think that is a

First Amendment protection. I think Buckley vs. Valeo,

although it is a campaign finance case, I understand that,

really specifically recognizes that donating money, raising

money is a First Amendment protected activity.

So, I would want to include that in the definition of

what the First Amendment protects.

THE COURT: Mr. Schar?

MR. SCHAR: Again, we would object. Political causes

is vague on its face. And it then raises the issue whether

Hamas is a political cause in a way that isn't necessarily

charged.

I mean, if he's giving money -- the jury should be

instructed that if someone gives money to Hamas and have

people killed but that's somehow perhaps a political cause --

MS. THOMPSON: No, raising money for lawful purposes.

MR. SCHAR: -- not a violation --

MR. DEUTSCH: For lawful purposes.

THE COURT: For lawful, for political --

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MR. SCHAR: This gives --

MS. THOMPSON: Or just lawful purposes.

MR. SCHAR: This goes back to the issue --

THE COURT: How about taking out the political?

MS. THOMPSON: Yeah.

THE COURT: Including money for lawful purposes?

MS. THOMPSON: Yeah, I mean, we're not -- yeah.

MR. SCHAR: But doesn't this go back to the

instruction that is the issue of what is lawful purposes? And

the very instruction that is -- the issue that was raised --

THE COURT: "Including for activities that do not

violate the laws of the United States"?

MS. THOMPSON: That's fine. We just want to get in

the idea that, in fact, you know, funding or facilitating

financial transactions can, in fact, be protected by the First

Amendment.

MR. SCHAR: Isn't that what Instruction Revised 10

seems to say more directly? "United States citizens and

residents could raise, donate and distribute money, so long as

such acts do not violate criminal laws." I don't see how this

becomes a First --

MS. THOMPSON: That the reason you could do that was

because of the First Amendment, and that deals with the date

of designation; and it's important, I think, for the jury to

understand that if financial transactions don't violate the

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law otherwise, that they're protected by the First Amendment,

not just that they're, you know, generally not illegal, but

that they're, in fact, protected.

THE COURT: Mr. Moffitt, do you have a view on this?

Mr. Spielfogel, you do?

MR. SPIELFOGEL: We would join Mr. Deutsch in his

position.

MR. SCHAR: Again, Judge, I'm not sure why they would

need to be instructed on that. If that's what's going to

happen, it seems to me that we then also have to add "so long

as the distribution of money does not violate existing

criminal laws in the United States."

THE COURT: "The First Amendment to the Constitution

protects the freedom of speech and the freedom of association,

including raising money for activities that do not violate the

laws of the United States."

MS. THOMPSON: That's fine.

MR. MOFFITT: I agree. I'll accept that.

THE COURT: Okay.

All right. I will add that.

Are you okay on the instruction?

MR. DEUTSCH: Yes.

THE COURT: Anything else?

MR. DEUTSCH: Yes.

MR. SCHAR: Judge, we have some.

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THE COURT: Okay. Mr. Moffitt, let me see, do you

have any objections to the rest of it?

MR. MOFFITT: No. No, ma'am.

THE COURT: Okay.

Mr. Schar?

MR. SCHAR: We don't have an objection to any of the

beginning part. What I think, though, is -- and I understand

the purpose of the last sentence in terms of saying what

speech and expression can be used for. But in fact, in this

case, speech and association can be used as evidence beyond

what's in the last sentence.

And what we would propose is a sentence before the

last sentence that says -- that would say, "In addition,

speech and association" -- I'm sorry, the last -- what would

say, "but speech and association can be considered by you as

evidence, just like any other evidence you have received."

THE COURT: In lieu of what I have?

MR. SCHAR: In addition.

THE COURT: Okay.

So, -- and where are you suggesting placing this?

MR. SCHAR: Before -- and then I've got -- we've got

some changes to the last sentence. But before the last

sentence after the imminent means about to occur at any

moment --

THE COURT: But speech and --

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MR. SCHAR: "Association can be considered by you as

evidence --

THE COURT: Wait a minute.

MR. SCHAR: Sorry.

THE COURT: Can be, as evidence --

MR. MOFFITT: Evidence of what?

MR. SCHAR: "Just like any other evidence you have

received."

In this --

THE COURT: And then give me your last sentence

because I need to --

MR. SCHAR: And then -- that would -- the last

sentence would change from "but speech" to "in addition,

speech and association" and then it would continue with your

language, "including the expression of beliefs or sympathies

may be used by you as evidence in determining the speaker's

knowledge or intent or state of mind."

And I think we need something at the end. If it just

says speaker's knowledge or intent or state of mind, it would

say something along the lines of "in determining whether

criminal activity occurred and whether a defendant was part of

the charged criminal activity."

MR. MOFFITT: I object to that.

THE COURT: Yeah, I --

MR. SCHAR: Because, Judge, again, I mean, this is --

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otherwise, may determine the speaker's knowledge or intent or

state of mind for what?

MR. MOFFITT: For anything. I mean, you obviously

can argue from that that the speech was -- it shows that he

had knowledge of Hamas, that his state of mind was to violate

the law.

To go beyond that is to try to say more than is

appropriate. It clearly may be evidence of the state of mind,

but what else would it be evidence of?

THE COURT: How about the addition of -- I agree.

I'm going to give that last part you tacked onto the last

sentence.

But this does seem appropriate.

"But speech and association can be considered by you

as evidence, just like any other evidence you have received."

And, then, you can argue what you want, and they can

argue what they want from that.

MR. MOFFITT: Fine.

MR. DEUTSCH: That's good.

THE COURT: All right.

So, I will give the First Amendment instruction with

those revisions.

The strictissimi juris, I'm still working on, and

I'll read your theory of the defense. I'll read yours,

Mr. Deutsch, when you give it to me.

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MR. DEUTSCH: Okay.

Judge, there's one additional matter, which I don't

know if the implication is, based on all this work, that

you're -- you haven't reached an opinion on the Rule 29, or

what's your thinking on that?

THE COURT: I will address that on Monday.

MR. DEUTSCH: Okay.

I mean, obviously, if you granted Rule 29 on Count

Two now for Mr. Salah, we wouldn't have to address that in our

closing.

THE COURT: The revised Count Two.

I will give you a final ruling on -- I will give you

a final ruling on Monday.

MR. DEUTSCH: Okay.

THE COURT: Thank you for reminding me.

MR. SCHAR: Judge, I --

THE COURT: Anything else on instructions?

MR. SCHAR: Only the verdict form, as well. I don't

know if we need to address that.

THE COURT: Yes, but before we get to that, anything

else on the instructions?

MR. SCHAR: The only thing I would ask on the

instructions, obviously, Mr. Ferguson plans on beginning his

opening at around 10:30, and I think it would be important to

know what at least the theory of defense instructions --

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THE COURT: I will -- I have Dr. Ashqar's. You can

call if you have objections today, Mr. Schar.

MR. SCHAR: Okay.

THE COURT: And I'll -- I'm going to have you come in

before the 10:30 time on Monday to resolve this.

Mr. Deutsch, as soon as you know, get yours to me.

MR. DEUTSCH: I will e-mail it.

THE COURT: Try to do it by the end of the day so I

can --

MR. DEUTSCH: Okay.

THE COURT: -- tinker with it over the weekend.

MR. DEUTSCH: Okay.

THE COURT: And I -- it's my hope and intention to

give you final instructions before closings start on Monday.

Okay. Anything else on instructions?

Verdict form. I did not receive one from the

defendants. I have one from the government.

Are there any objections to the one proposed by the

government?

MR. DEUTSCH: Yeah, I had a minor objection, but I

can't really find it. Again, it goes to this -- on the

obstruction, it says obstruction of justice. And, again, I

think it should say obstruction of the due administration of

justice.

THE COURT: Yeah, that's --

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MR. SCHAR: That's fine, Judge.

THE COURT: Add that.

MR. DEUTSCH: That should be Count Two and Count

Four.

THE COURT: And Count Four.

MR. DEUTSCH: Otherwise, they're simple and they're

fine.

THE COURT: Okay. Mr. Moffitt?

MR. MOFFITT: I think with that change, your Honor,

I'm okay with it, as well.

THE COURT: Okay.

Make sure that is included on your disk that you give

to the Court.

MR. SCHAR: Yes, Judge.

THE COURT: I will have these revised ones e-mailed

to you, and --

MR. SCHAR: Do you want me to then e-mail --

THE COURT: Make all the other changes. I prefer not

to get a disk or CD with it on until everything's ruled on.

MR. SCHAR: Okay.

THE COURT: So, hold off on that. Get it ready to

go, but hold off on it.

Why don't you come by 10:00 o'clock on Monday. We're

starting closings at 10:30.

Just for the record, I did talk briefly to

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Mr. Lapertosa. He wanted me to -- as I told you I was going

to about the timing, and he wanted me to express his thanks to

everybody for letting him go to this hearing. It really means

a lot to him, so -- the hearing does. He really wanted to be

there for his clients who are coming in from out of town. He

will be here by 10:30.

MR. SCHAR: Are there any other --

THE COURT: No. 10:00 o'clock on Monday.

MR. SCHAR: There are just two quick things we wanted

to address in relation to closings.

One is I know there have been transcripts. We've

ordered transcripts. The defense has ordered transcripts. We

don't think it's appropriate to show the jury transcripts. I

don't know if the defense intended to. We're not going to.

It's obviously not the evidence. It's their recollection.

But I just wanted to make sure that there was an

understanding.

THE COURT: Is that acceptable?

MR. MOFFITT: Yes.

MR. DEUTSCH: Yeah.

THE COURT: Okay.

The other problem with showing them is then they ask

for them, and we don't have them all transcribed and so --

MR. MOFFITT: What is your policy on readbacks if

they ask for them?

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THE COURT: If they ask for it, I will address it on

a question-by-question basis.

MR. MOFFITT: Okay.

MR. SCHAR: The only other issue -- I just want to

make sure I'm aware of what the lines are. When Mr. Moffitt's

case came up, there was a ruling by your Honor related to what

can be commented on in opening. I wasn't sure how broad that

was in relation to Mr. Moffitt's opening and how -- it just --

it was at the end of the day.

THE COURT: You cannot say "Mr. Moffitt promised to

you in opening statements that he would produce FBI witnesses

and he didn't." I didn't say -- he's got a theory of the

defense that's come in through his cross-examination and

through his case. You can certainly comment on the theory of

his defense and say why, in your view, that fails, but you

cannot directly say -- what my ruling was, you can't directly

say he promised you these witnesses in his opening and they

didn't show up, he didn't call them.

MR. SCHAR: And I'm assuming, though, if he did

promise other things; for instance, we have the CIA letter

that's out there, which has nothing to do with those

particular witnesses. Again, I don't want to run afoul of

anything your Honor has ruled; but there was nothing, for

instance, proven up on that.

THE COURT: The relief requested that I granted was

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with respect to the FBI witnesses, and I don't remember if you

made promises about the AUSA in opening, but all related to

that AUSA.

MR. DEUTSCH: Judge, we have a couple of similar

matters.

In the State Department documents, in one document,

there's a reference to Mr. Salah being represented by Jawad

Boulos. And Mr. Salah was not, in fact, represented by Jawad

Boulos, but for some reason, that was put in the document and

we -- and you said we can't change and we should put it in.

It wasn't put in, in our mind, for the truth of the matter.

It was just in there.

I don't think the govern- -- and the government knows

that Mr. Salah was never represented by Jawad Boulos, so I

don't --

THE COURT: Do you plan on arguing that, Mr. Schar?

MR. SCHAR: Certainly not in rebuttal. I will check

with Mr. Ferguson, but I doubt we're going to -- seriously

doubt we're going to be arguing that. It raises obviously

concerns about -- you know, in our mind, it wasn't put in for

the truth of the matter. Well, it was put in for the -- and

then there's issues about --

THE COURT: It's in, and I am not going to revisit --

MR. SCHAR: Right.

THE COURT: -- evidentiary rulings.

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MR. DEUTSCH: Judge --

MR. SCHAR: I'll talk to Mr. Ferguson.

MR. DEUTSCH: However it's in, and it isn't

accurate --

MR. SCHAR: Judge, we're not going to argue it.

MR. DEUTSCH: Okay.

MR. SCHAR: I mean, it's in. It's in the document.

MR. DEUTSCH: Yeah, that's it. We're not going to

say it's not in or it's a lie or anything. We're not going to

go into it; but if the government starts saying, well, he was

represented by Jawad Boulos, we know that's not true.

Okay. If they're not --

THE COURT: I don't know one way or the other, but

what I do know is during the lengthy three-week suppression

hearing, it never came out that he was represented by this

individual.

MR. DEUTSCH: And he wasn't.

THE COURT: The woman's name came out --

MR. DEUTSCH: Right, right.

THE COURT: -- that he was represented by.

MR. DEUTSCH: Exactly.

THE COURT: And I would think if he had been

represented by this individual, I would have heard about it

back in March.

MR. DEUTSCH: Right. So --

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MS. THOMPSON: There's Seventh Circuit law, Judge,

which I didn't bring with us, that if the government has

knowledge from any source that a particular item is not true,

they should not argue it to the jury.

THE COURT: They said they are not going to go into

it.

MS. THOMPSON: Thank you, Judge.

MR. DEUTSCH: The other one is a little more on the

line. We went into this a little bit the other day, and I

told the government we intend to argue that they only called

two out of ten possible interrogators. And they said they

weren't going to argue that we could have called them.

THE COURT: Correct.

MR. DEUTSCH: That's fine.

But I'm wondering are they going to say, well, we

didn't have control over these people. We couldn't bring

them. We just brought whoever the Israelis let us. I don't

know what that argument is going to be, but it seems to me,

again, it kind of gets close to the line.

THE COURT: I think what Mr. Schar said is they're

going to argue based on what was presented in the courtroom,

not what wasn't.

MR. DEUTSCH: That's fine. That's fine then.

MR. SCHAR: I mean, I think it's a fair inference to

say those witnesses wouldn't have been helpful --

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MR. DEUTSCH: Well, that's fine.

MR. SCHAR: -- to defendant Salah. But we are not

going to get into classification issues.

THE COURT: Two other things.

One, the evidence. Have you gotten together on that?

MR. SCHAR: Judge, we are finishing unmarking, trying

to make it clean. We will have it. We can bring it up

probably Monday. Can be looked at pretty much any day the

defendants want to.

THE COURT: Yes. Please spend time because I'm not

going to be happy, and I don't think it's fair to the jury to

wait for it if they want to see it right away, and it can't go

back until everybody has agreed that it is the evidence and

has been admitted.

MR. DEUTSCH: That reminds me of another point.

One of the things that we want to use in our closing

is the bird, original bird statement that the jury looked

at --

THE COURT: Sure.

MR. DEUTSCH: -- quite extensively, so we would ask

that that be brought up.

THE COURT: Make sure it's up here, please.

MR. SCHAR: The evidence will be brought up each day.

MR. DEUTSCH: Okay. And I mentioned this to you. We

are putting together, and I guess we won't really need it to

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present it till Wednesday, a notebook with our exhibits for

each juror.

THE COURT: You mentioned that. That's fine. Just

make sure the government sees is it in advance of your

closing.

MR. DEUTSCH: I'll show -- yes.

THE COURT: You don't have to give it in advance of

theirs, but give it in advance of yours with sufficient time

that they can make sure that everything or agree that

everything there has been admitted in evidence.

MR. DEUTSCH: Okay.

THE COURT: Two other things, just to save you the

trouble of asking the question. I don't care where you stand

when you make your closing arguments. As long as you're not

in the jury box, I don't care what you do.

I will let you know, though, that we are going to

have the live video feed, and the camera is on the podium.

When you walk away from either the -- if you walk away from

the podium, they won't be able to see you.

MR. MOFFITT: Are you going to turn the podium?

THE COURT: But if you are walking away -- pardon me?

MR. MOFFITT: Are you going to turn the podium?

THE COURT: You can do whatever you want. I don't

care.

The microphones, it is important, if you walk away

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from them, that you do keep your voice up if you want the

people in the courtroom on 17 to hear.

Finally, I think almost every jury I have had sends

out a question almost immediately asking for some type of

white board with markers to mark on.

We can wait and see if the question comes. My

proposal is just to put it back there.

MR. MOFFITT: Go ahead and put it back there.

MR. SCHAR: That's fine, Judge.

THE COURT: That will save all of you a trip back

down here when the question comes within the first day.

MS. THOMPSON: Judge, could we likewise, if

necessary, pull back the government's table a little bit

just -- I mean, because always like there's the carts and --

THE COURT: Yeah, if you need to --

MS. THOMPSON: I understand why they're there, but is

it possible for closings --

MR. SCHAR: For closings, we won't have the carts.

MS. THOMPSON: But could you pull back the table?

MR. SCHAR: Somebody could. I don't know if I can.

THE COURT: I think they move. If you need them to

move back, that's fine.

What else?

MR. SCHAR: Judge, the only last thing is, and I know

you're not going to make any rulings on this.

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At the Rule 29 arguments, there were a lot of

arguments made that the government thought went towards

motions in limine you had already resolved. Pre-indictment

delay was a big one. Our motivations in bringing this case

was one. There was apparently some justification defense

argument, and at one point reasons for why RICO was passed and

things of that sort.

I don't expect the defendants are going to get up and

argue that actually in closing, but it certainly isn't clear

to the government. So I just want to make sure that those

motions in limine are at least on everyone's mind because we

will be objecting to arguments like that.

THE COURT: You shouldn't argue anything that is in

violation of one of my prior orders, but you know that.

Why are you smirking, Mr. Spielfogel?

(Laughter.)

MR. SPIELFOGEL: There goes our whole closing, Judge.

THE COURT: If you need me for any reason between now

and Monday morning, the best thing to do is to call chambers

and leave a -- if nobody answers, if you're calling over the

weekend, just leave a voicemail because I do pick those up. I

don't answer that phone, but I do pick those up. So that's

the best way to get me if you need me for any urgent reason.

Please get those outstanding instructions to me, and

I will rule on the final ones I have under advisement soon.

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MR. SCHAR: You will e-mail me for --

THE COURT: Yes, I will probably have Joe e-mail you.

Anything else?

10:00 o'clock on Monday morning. Thank you. Have a

good weekend.

MR. SPIELFOGEL: Thank you, Judge.

MR. DEUTSCH: Thank you, Judge.

MR. MOFFITT: Have a nice weekend now.

THE COURT: Thank you. You, too.

* * * * *

I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter.

/s/ Joseph Rickhoff September 3, 2008

Official Court Reporter

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