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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 10, 2007

Defendants. ) 9:13 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. JOSEPH M. FERGUSON

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

MR. BENJAMIN ELSON

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

Also Present: S/A BRADLEY BENAVIDES, FBI

S/A JILL PETORELLI, FBI

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APPEARANCES (Cont'd):

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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(Proceedings heard in open court:)

THE CLERK: 03 CR 978, USA vs. Muhammad Salah and

Abdelhaleem Ashqar. Jury trial continues.

THE COURT: Good morning.

MR. SCHAR: Good morning, Judge.

THE COURT: We're still a couple of jurors short.

I handed to you this morning revised theory of

defense instructions. I took yours and tried to comply them

with Seventh Circuit law.

Do you have any comments, Mr. Spielfogel?

MR. SPIELFOGEL: Yes, Judge.

Judge, on the -- in the last paragraph, where you

talk about Count Four, it appears that you've limited it to

the fear of immediate bodily harm, which is, I believe,

correct as to the criminal contempt.

But on the issue of the 1503, the impeding the due

administration of justice, I don't think it should be limited

to just the bodily harm. In other words, there can be several

purposes that the jury could find for why he didn't testify,

and they could say that it was because of his religious

beliefs, his political beliefs, and that would mean that he

wasn't doing it for the purpose of impeding the due

administration of justice.

THE COURT: But that's argument.

MR. SPIELFOGEL: Well, but this --

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THE COURT: Maybe we need to change this and not make

it so limiting to give you room to argue.

MR. SPIELFOGEL: Right.

THE COURT: Mr. Schar?

MR. SCHAR: I agree, it is. And this, to me, falls

into the issue of whether they want that part in the

instruction or not.

THE COURT: Right.

MR. SCHAR: They don't need to have it. They can

take out words as to Count Four and argue it more generally;

but you also have the last sentence, which says, "The failure

to testify was not for the purpose of impeding the due

administration of justice," which leaves it more open.

THE COURT: And maybe, Mr. Spielfogel, that's the way

to do it is rather than picking up the coercion language on

Count Four --

MR. SPIELFOGEL: Eliminate that.

THE COURT: -- is to eliminate and have it read, "It

is Dr. Ashqar's defense to Count Four that his failure to

testify in the grand jury was not for the purpose of impeding

the due administration of justice."

MR. SPIELFOGEL: That's fine, Judge.

THE COURT: Okay. I will make that change.

MR. SPIELFOGEL: Okay.

THE COURT: Any other changes?

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MR. SPIELFOGEL: No, that's it, Judge.

THE COURT: Okay.

MR. SCHAR: Judge, on the jury instructions, in

relation to coercion, I think it's referenced in relation to

contempt right now. I think you have the final copy.

THE COURT: I do. Hold on.

MR. SCHAR: And maybe -- so we don't run into an

issue when we start reading them to the jury -- I don't have a

copy.

THE COURT: Hold on. I'll pull it up.

Got a lot of stuff in this file.

Okay. I am looking at Government Instruction 77, and

it does read -- this is the only coercion -- "If the defendant

engaged in the criminal contempt only because he reasonably

feared immediate serious bodily injury, then he is not guilty

because he was coerced."

So, you're suggesting to put in if the -- if the

defendant engaged in the criminal contempt or obstruction of

justice?

MR. SPIELFOGEL: Yes.

MR. SCHAR: I assume --

MR. SPIELFOGEL: Yes, that should be in there,

absolutely.

THE COURT: Do you want it -- should it be in this

instruction or because the -- should there be a separate

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instruction because this instruction follows the elements of

criminal contempt. And I know I can move these around. But

does it make sense instead of adding it to that to do a

separate instruction?

And, Mr. Deutsch, I'll throw this to you, as well,

since obstruction of justice is something your client is

charged with, as well, is to do a separate instruction if the

defendant engaged in obstruction of justice only because he

reasonably feared, and so on?

MR. SPIELFOGEL: Judge, we'd ask for two

instructions.

THE COURT: Okay. The way these are laid out, and

given I think we're up to 110 pages of instructions now, it

might make sense for clarity purposes to do a separate

instruction.

Mr. Schar?

MR. SCHAR: That's fine, Judge.

THE COURT: Okay. I will add a separate obstruction

of justice and coercion defense instruction, and I will make

the modifications to your theory of the defense.

MR. SPIELFOGEL: Thank you, Judge.

THE COURT: Ms. Thompson or Mr. Deutsch, on your

theory of defense --

MS. THOMPSON: Yes, Judge.

THE COURT: -- instruction as revised.

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MS. THOMPSON: Well, one concern we have is with

regard to the new one, the last paragraph, with regard to the

interrogatory answers?

THE COURT: Yes.

MS. THOMPSON: I notice that all of the language

about being -- the acts being in furtherance of the charged

conspiracy or that they operated to aid and abet the charged

conspiracy has come out.

THE COURT: That's argument. You are free --

MS. THOMPSON: Okay.

THE COURT: -- to argue that. I have tried to,

again, make it a theory of the defense consistent with Seventh

Circuit law, like U.S. vs. Scott that I cited to you

yesterday. Because the obstruction is charged both as a

racketeering act and a separate charge, you are free to argue

this with respect to both. And if you want me -- I put in,

"It is the theory of the defense as to Count Two." If you

want me to add something along the lines "as to the

obstruction, racketeering act and Count Two."

MS. THOMPSON: I think that would make sense, Judge.

THE COURT: As to the obstruction, racketeering act

in Count One --

MS. THOMPSON: Uh-huh.

THE COURT: -- and as to Count Two. I can do that.

MS. THOMPSON: And with regard to the amended first

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paragraph, we would like to be able to work in, which we had

in our original draft, the idea that it's protected by the

First Amendment of the Constitution, which obviously, if it is

a legal goal, it would be.

THE COURT: I did not put a separate First Amendment

portion in for either defendant because you have the whole

First Amendment instruction that I've given already; and as

U.S. vs. Scott says, the theory of defense instruction should

not reflect a theory which is already part of another charge.

And since there's a whole instruction on First Amendment, I

did not reiterate it here.

Again, you are free to argue and in closings explain

that this is a theory of the defense. You have other

defenses. This is just your theory instruction. You're free

to make that clear to the jury.

MS. THOMPSON: Could we add at the end in the last

sentence of the first paragraph that begins, "It is further

Mr. Salah's theory that his financial transactions," could we

amend that to be "that his financial transactions were for

lawful purposes and in aid of the legal goals of the

Palestinian people"? Because "lawful purposes" being the key

language that is mirrored throughout the instructions with

regard to Count One.

THE COURT: Mr. Schar?

I think that --

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MS. THOMPSON: We would just like to use that

language which they're going to see over and over again.

THE COURT: I think that's fine because --

MR. SCHAR: That's fine, that's fine.

THE COURT: -- that is in other instructions.

MR. SCHAR: That's fine.

THE COURT: I will add that.

MS. THOMPSON: Other than that, I think it's fine.

THE COURT: Okay.

Mr. Spielfogel, on your theory of the defense

instruction, the contempt and obstruction are also

racketeering acts in Count One. You did not propose, but

consistent with what Ms. Thompson suggested, it seems like it

would make sense in your third and fourth paragraphs to have

"as to the racketeering act in Count One and Count Three" and

then the same for the last paragraph.

Would you like me to insert that?

MR. SPIELFOGEL: I would, Judge. Thank you.

MR. SCHAR: The contempt is not a racketeering act.

THE COURT: Pardon me?

MR. SCHAR: The contempt is not a racketeering act,

only the obstruction would be.

THE COURT: Okay. So, as to the last one.

MR. SCHAR: Right.

THE COURT: All right. I will add that on the last

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one.

MR. SPIELFOGEL: That's great.

THE COURT: Anything else on the theory of defense

instructions?

MS. THOMPSON: No, Judge.

THE COURT: All right. I will make those changes and

give you a set either today or tomorrow of the instructions in

the order that I plan on giving them. I am going to work on

that today.

(End of excerpt.)

CERTIFICATE

I certify that the foregoing is a correct excerpt from the

record of proceedings in the above-entitled matter.

/s/Joseph Rickhoff September 3, 2008

Joseph Rickhoff Date

Official Court Reporter

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