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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 3, 2007

Defendants. ) 2:00 o'clock p.m.

TRANSCRIPT OF TRIAL PROCEEDINGS

BEFORE THE HONORABLE AMY J. ST. EVE

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, U.S. vs. Abdelhaleem Ashqar

and Muhammad Salah.

MR. DEUTSCH: Judge, I wanted to go back to just one

instruction.

Just one, she says.

THE COURT: I didn't say that.

Which one?

MR. DEUTSCH: Instruction 66, which is the aiding and

abetting instruction.

THE COURT: Just bear with me a second.

MR. DEUTSCH: Okay.

THE COURT: Because I have a lot of documents.

Yes.

MR. DEUTSCH: If you look at it, what disturbs me

about this instruction is, is that it talks about a -- the

second paragraph -- defendant's guilty of aiding and abetting

a charged conspiracy if he or she tries to help the conspiracy

succeed by committing an act in furtherance of the conspiracy

and had knowledge of the conspiracy's -- and I think we have

to put unlawful in there because -- because otherwise we're

really going to get involved with people aiding and abetting

Hamas, and that could mean anything.

That could mean, you know, giving money, writing an

article, standing up in a crowd and saying I support Hamas,

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all those things that are within the law.

And if you look at Government 28, which is the

definition of a conspiracy, it says, "A conspiracy is an

agreement between two or more persons to accomplish an

unlawful purpose."

So, all I'm asking for is to take that unlawful

language and stick it in there, as well.

MR. FERGUSON: I'm stepping on Mr. Schar's point

here. The reference here in this instruction is to the

charged conspiracy, which takes you to exactly what illegal

acts are before the jury, as opposed to the initial general

instruction, which is general.

THE COURT: What's the harm in putting "unlawful" in

there?

MR. SCHAR: Judge, I think charged conspiracy is the

issue. Conspiracy's unlawful purpose, again, suggests that

there's lawful purposes to a criminal conspiracy and unlawful

purposes, where the definition of a criminal conspiracy is an

unlawful purpose. I think charged conspiracy addresses the

issue.

MR. DEUTSCH: But we have a conspiracy here which is

defined as Hamas, and we know --

MR. SCHAR: No.

MR. FERGUSON: No.

MR. SCHAR: That's the enterprise. That's not the

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conspiracy.

MR. DEUTSCH: Well, if you can --

MR. MOFFITT: The conspiracy is to aid the

enterprise.

MR. DEUTSCH: Enterprise.

Well, it still should be you're aiding an unlawful

purpose. If you are aiding and abetting it should be aiding

and abetting --

MR. SCHAR: I think the charged conspiracy.

MS. THOMPSON: But it also --

MR. FERGUSON: Through the commission, through the

agreement that there be committed two or more.

THE COURT: What's the harm in putting unlawful

there? I think that's an accurate statement of the law.

MR. SCHAR: Because there suggests that -- in this

case, the word conspiracy is a criminal conspiracy. That's

how it's defined earlier. Conspiracy is an agreement to

commit an unlawful act.

And, so, it suggests that conspiracies, which are by

definition an agreement to commit an illegal act, have both

lawful and unlawful purposes. But the conspiracy is itself

the unlawful agreement. So, I think it's -- it somehow

suggests that there are multiple purposes to a criminal

conspiracy which there aren't.

MR. DEUTSCH: Well, it doesn't say criminal

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conspiracy. It just says --

THE COURT: Yeah, maybe should it say charged?

MR. SCHAR: Charged conspiracy.

MS. THOMPSON: But the second time it comes up, it

doesn't say that. I mean, it says it repeatedly without

unlawful or without criminal in front of it, and the original

instruction on 28 defines a criminal conspiracy as having to

have an unlawful purpose, and then it goes on to talk about

the common purpose but there it's okay because they can refer

up to the prior paragraph.

But here, it sort of disappeared many instructions

away from the original when defining conspiracy, and it just

seems like there's no harm in putting unlawful purpose there.

MR. SCHAR: Judge, if you look at the end of this, it

does say charged conspiracy; and if it would resolve the issue

to put "charged" in front of each of the conspiracies in the

instruction, that's -- we don't have a problem with that.

That clarifies it.

But I think to --

THE COURT: Okay. Put "charged" in front of each

time.

MR. SCHAR: Okay.

THE COURT: That will address it.

Okay. I want to move to the defendants'

instructions.

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Mr. Deutsch, we have addressed your withdrawal

instructions. I'll start with yours because you may have

addressed all of them.

MR. DEUTSCH: No. 1 you've taken under advisement,

right?

THE COURT: Correct. I'm sorry.

MR. DEUTSCH: 2 --

THE COURT: I'll be there in one second.

MR. DEUTSCH: Okay.

THE COURT: I am still sifting through all my jury

instruction documents.

(Brief pause.)

THE COURT: Okay. No. 1 I have taken under

advisement.

No. 2 I am going to use the pattern instruction,

pattern 4.06, which is in the government's. So, I will not

give Salah 2.

Attempt instruct -- your Instruction 3.

MR. SCHAR: I'm sorry, Judge, what do you have as

defendant Salah's Instruction 3?

THE COURT: Your cover letter.

MR. DEUTSCH: December 6th cover letter attached.

THE COURT: December 6th cover letter, although

Proposed Instruction 3 deals with prior inconsistent

statements --

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MR. SCHAR: I think those are --

THE COURT: -- which I think we've addressed.

MR. DEUTSCH: Yeah.

THE COURT: So I will not give Salah 3. I will give

the government's version to which I sustained your objections,

which is the pattern.

Impeachment of a witness with convictions, I will

give the government's version, which is very similar to yours

and the pattern 3.11.

Salah Instruction 5. Which one does this correspond

to?

MR. SCHAR: Judge, Government 12.

THE COURT: Thank you.

The real issue here is what you have at Paragraph 3

of this. The other is essentially similar to what is in

Government 12.

MR. DEUTSCH: Although we do say in Paragraph 2 of

Salah 5 that they should consider such a statement with

caution and great care and should give it such weight as you

feel it deserves under all circumstances.

THE COURT: I don't think that language is

appropriate with respect to all of the statements. Whether or

not I give it in connection with the birds statement, I'm

going to tweak that and give something back.

But the caution and great care language goes to

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cooperating defendants who are getting benefits in exchange

for their testimony, and that is not the case or applicable to

the statements made by defendant Salah to the Israeli

authorities. It's a separate issue with the birds, which,

again, I will take up in our other proposed instruction.

MR. SCHAR: Judge, I --

THE COURT: So I will not give that language.

MR. SCHAR: This was addressed by Ms. Hamilton last

time we were in court.

THE COURT: Yes.

MR. SCHAR: My understanding is you were going to

give the government's version because it says to consider all

circumstances without highlighting any particular one.

THE COURT: Right. Ms. Hamilton's point was if you

give some of these circumstances, then you should give others,

as well. I am not going to give Defendant's Instruction 5,

although you are free to argue all of those issues in

addressing the statements. I will give the pattern, which is

set forth in Government's 12.

Instruction on classified material, I think that is

moot now, as well, in light of 12-A, which is with your

modification. So, I will not give Salah 6. I will give 12-A

with your sustained objection to it.

Missing witness, Instruction 7.

MR. SCHAR: Judge, we object to this instruction. I

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think the pattern -- the Seventh Circuit's fairly clear that

missing witness instructions are inappropriate, generally

speaking, and you've dealt with this issue in particular

repeatedly over and over again in pretrial dealings.

We do not control these particular witnesses. They

are here pursuant to our request just as a request, as I

understand, was put in by the defense to be addressed with --

this is not -- these witnesses were not pragmatically just

available to us. And on top of that, I think it would be

required, if there was some suggestion that somehow they would

have benefitted the defense and there's no indication that any

of these witnesses were going to benefit the defense

whatsoever.

MR. DEUTSCH: Judge, I think essentially what the

Court, Seventh Circuit said in Mahone is particularly

appropriate here. They are -- they were pragmatically

available to the prosecution and not to the defense.

We're still waiting for our response to the letters

rogatory, which now has been submitted over three months.

The government had -- they cannot deny that any one

of those ISA agents they wanted to come here they could have

had come here. And they chose those two, and they could have

had all the others. There was no limitation on what witnesses

they could bring.

So, I understand on one level that we don't know

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whether they would be helpful or not to the defense. But what

I'm concerned about is, is that arguing in front of the jury

where are all those other witnesses that were witnesses to the

interrogation of Mr. Salah and the government saying, oh, they

could have got those witnesses, as well. Those witnesses

don't belong to us. The defense could have called those

witnesses, I think that would be an unfair argument in these

circumstances.

So, we need to somehow address that issue. And this

is what I'm trying to get at.

THE COURT: Did you plan on arguing that?

MR. DEUTSCH: Of -- I plan on arguing it.

THE COURT: No, I am talking to Mr. Schar. Sorry.

MR. SCHAR: No, Judge. That --

THE COURT: That they could have gotten them just as

easily as you?

MR. SCHAR: No, I don't think we plan on making that

argument.

THE COURT: In rebuttal?

MR. SCHAR: No, Judge, that is not part of my

rebuttal as it stands right now. I don't expect it to be.

I think what's at issue here, though, is the

instruction in particular is a suggestion that somehow their

testimony would have been unfavorable. And I think that

certainly it's fair to argue in rebuttal that their testimony

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would not have been unfavorable. But the issue of who could

have gotten them, I'm not going to argue one way or the other.

THE COURT: I don't know how we could say that an

inference of their testimony would be unfavorable should be

given.

MR. DEUTSCH: Is there some argument which would --

which basically says that -- I can understand that. I

understand not putting that in an instruction because we can't

really say that.

But, again, I think there is a problem here when you

call two out of twelve interrogators, and it's certainly

something I intend to argue to the jury.

THE COURT: And you are free to argue that.

MR. DEUTSCH: But I don't want Mr. Schar on rebuttal

to get up and say, like I said, oh, they could have brought

them. If they were helpful to them, they could have got them

here, you know, we didn't have control over them.

MR. SCHAR: Let's put aside --

MR. DEUTSCH: That's just not true.

MR. SCHAR: Legally, they have the right to attempt

to call them. But I don't anticipate saying that. I mean, I

think this argument is made all the time about what evidence

is presented, what evidence is presented. I think I should be

free to argue that focusing on evidence that's not here and

focusing on individuals that aren't here is not something the

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jury should be doing. But that doesn't --

THE COURT: That's separate, though.

MR. SCHAR: Yes.

THE COURT: Mr. Deutsch's point is well taken that

given the legalities of getting these witnesses here through

letters rogatory through Israel and the huge hurdles of going

through that, even assuming they had filed those letters

rogatory two years ago, I don't think you could fairly argue

that they could have gotten them here just as easily as you

could have.

MR. FERGUSON: Well, one of the premises of what

Mr. Deutsch -- look that way, Mike.

The premises of what Mr. Deutsch is arguing here is

that the government could have had all these witnesses in the

courtroom. And he said the government can't deny.

Well, let me tell you as an officer of the court, as

the lawyer for the government, yeah, I can deny. We could not

have all those witnesses here. It's absolutely not the truth,

and he has no basis for saying otherwise. So, that premise is

incorrect.

And the fact of the matter is, Judge, that the

government repeatedly on the record made clear that there were

procedures available through which to obtain evidence that

were not triggered until the eve of trial. And the failure of

the defense to have done that and then to get the benefit of

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their own laxness in that regard really seems improper.

THE COURT: But --

MR. SCHAR: The only other thing -- I'm sorry, Judge.

The only other thing I would add onto that is what this

instruction and what -- putting the instruction aside, the

argument doesn't really address in part also are the strenuous

requirements the government had to attempt to obtain lawfully

in order to allow these witnesses to appear, which the defense

repeatedly objected to.

And to suggest that we were all on even playing

fields -- not that we were on even playing fields, but simply

that somehow it's our fault for not having gotten them, given

the fact that we had to overcome all the objections to getting

them as well, is a little bit of an issue that, I guess,

certainly isn't going to be addressed in an instruction but

raises some argument issues.

THE COURT: I think it's appropriate for Mr. Deutsch

to argue that, look, there were twelve other witnesses to his

statements, and you -- you didn't call them. You only called

two. I think that is appropriate.

I also think your proposed response that, look, you

decide the case based on the evidence presented here, and

whether or not we've met our burden based on what's presented

here is appropriate. But I agree with Mr. Deutsch, and you've

said you don't plan on doing this, Mr. Schar, but it does seem

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to be unfair if you plan on arguing anything along the lines

that they could have gotten them just as easily as we could

have, given all of the hurdles here.

So, I am going to preclude you from making that

particular argument.

I also don't think the missing witness instruction is

appropriate here and will sustain the government's objection

to Salah Instruction 7. But I think by argument you will

achieve the purpose you had hoped to with Salah 7.

Salah 8 I will give -- I'm not going to give Salah 8.

I am going to give the Pattern Instruction 4.06, which is in

the government's instructions that I've already addressed.

Salah 9, multiple conspiracies. I think defendant

Ashqar has proposed a multiple conspiracy, as well.

Haven't you, Mr. Moffitt? I think I saw that.

MR. MOFFITT: Yes, ma'am, I have.

MR. SPIELFOGEL: Is it the same?

MR. DEUTSCH: I know.

THE COURT: That's what I want to see.

Do you remember which number it is?

MR. MOFFITT: I'm looking for it now.

MR. FERGUSON: No. 4.

THE COURT: No. 4? Thank you.

They are different. I guess, first of all, what is

the government's position with respect to a multiple

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conspiracies instruction?

MR. SCHAR: I think we would object. I don't think

there's evidence of multiple conspiracies here. Their own

expert suggested it was all one large, overarching conspiracy;

and I don't think that there's been, as the evidence has come

in, any evidence of a multiple conspiracy that would support

this type of instruction.

To the extent there is, the government has proposed

an instruction, as well, because I don't think either of the

ones that were necessarily provided are accurate.

But, again, it's got to be supported by actual

evidence in the case in order to get there in the first

instance; and I'm not sure what evidence there is to support a

multiple conspiracy instruction, given what both the experts

have said and what the evidence has been.

THE COURT: Is there a pattern on multiple

conspiracies?

MR. SCHAR: There is not, Judge.

MR. SPIELFOGEL: No.

THE COURT: What's the evidence of multiple

conspiracies?

MR. DEUTSCH: You know, Judge, each action that could

have been a conspiracy of certain different people. It

doesn't -- there could have been a conspiracy to carry out

suicide bombings, but the conspiracy that Mr. Salah was

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involved in was not -- didn't involve that. You know, I don't

see where just -- they can just charge an overarching

conspiracy when they have all these different actions and

activities.

MR. MOFFITT: A few moments ago, we were talking

about it as an overarching enterprise, as opposed to an

overarching conspiracy. Now we've shifted back to conspiracy.

Certainly Dr. Ashqar could be involved in something

that was different from what Mr. Salah was involved in.

And second of all, I would suggest to you that I

believe that there's a burden on the government to establish

that post-1995, when the last of their acts against Dr. Ashqar

occurred, that Dr. Ashqar's involvement after that was in the

same conspiracy that existed before that.

MR. DEUTSCH: I think that the evidence suggests that

there was a different goal and strategy of Hamas post-'94,

which then they -- the military, rather than target military

targets and armed soldiers, they were -- began to target

civilians. And that could have been a whole different

conspiracy that Mr. Salah was not involved in. He was in

prison at the time.

THE COURT: I think a multiple conspiracy instruction

probably is appropriate here.

Mr. Deutsch or Mr. Moffitt, do you --

MR. SCHAR: Judge, can I hand up a proposal, as well?

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I think this one is supported by --

THE COURT: This one is what?

MR. SCHAR: Supported by United States vs. Mansoori

in large part, which actually in that case laid out an

instruction which I think is closer to Mr. Moffitt's, but

not --

THE COURT: Mr. Deutsch, do you --

MR. DEUTSCH: I would defer to Mr. Moffitt so we

don't have to be dealing with three different --

THE COURT: All right. So you will withdraw Salah

No. 9?

MR. DEUTSCH: Yeah, I will adopt Mr. Moffitt's.

THE COURT: Let me -- you've just handed Government

Instruction No. -- I don't know where you are number-wise.

I will look at defendant Ashqar's 4 and the

government's multiple conspiracy instruction in light of

Mansoori and give one of these or some version.

MR. SCHAR: We can make it 84, I guess, it would be.

THE COURT: Okay. Government Instruction 84.

Finally for defendant Salah, First Amendment freedom

of speech and association, and then this corresponds -- you

have at least one instruction on this.

MR. DEUTSCH: I know Mr. Moffitt had submitted some.

I'm just trying to get that -- those points in.

THE COURT: Do you want to leave yours in or -- there

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are --

MR. DEUTSCH: Not necessarily.

THE COURT: Or join in.

MR. DEUTSCH: Join in. I'll join in, and let's see

if we can cover it. You can put mine --

THE COURT: You will withdraw?

MR. DEUTSCH: Put mine in abeyance for now.

THE COURT: Okay. I will consider yours withdrawn.

MR. DEUTSCH: Okay.

THE COURT: Your No. 10.

MR. DEUTSCH: All right.

THE COURT: Then we will turn to Ashqar's.

Let's go through these.

MR. DEUTSCH: Actually, Judge, we may have to get

back to ours because mine is a little bit more specific for

the facts of our case, which has to do with the right to

raise, donate, distribute money. It may get -- I'll step back

and let -- see what happens.

THE COURT: All right. I'll hold onto yours then

until we get to the First Amendment ones of Ashqar.

Defendant Ashqar's Proposed Jury Instruction 1. Is

there any objection to this?

MR. SCHAR: Judge, the mere presence?

THE COURT: No, two defendants on trial.

MR. SCHAR: I'm sorry.

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THE COURT: This seems appropriate to me.

MR. SCHAR: That's fine, Judge.

MR. DEUTSCH: Judge, just so we're clear, there

was -- we did submit a theory of defense instruction. I don't

know if -- it was submitted later. But actually, it's

entitled Salah Instruction 13. I don't know if you have it.

But based on what you're ruling now, we want to look at it and

submit something tomorrow or Friday.

THE COURT: Submit something tomorrow. We're going

to have another conference on Friday where I hope to resolve

these issues. I don't have 13 before me.

MR. DEUTSCH: Okay. Well, we're going to submit

something different. It's called theory of defense.

THE COURT: Okay.

MR. MOFFITT: What did the government decide with

respect to Ashqar No. 1?

MR. SCHAR: We have no objection.

THE COURT: No objection.

Mr. Deutsch, I assume you don't have an objection to

this.

MR. DEUTSCH: No.

THE COURT: All right. I will give Ashqar 1.

Mere presence instruction, mere association. Mere

association, this is pattern 5.11.

Before I get the government's view on this,

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Mr. Moffitt, you have included language from both 5.11(a) and

(b) and the committee comment indicates that they are

alternative instructions. So, you have not proposed them

alternatively. You are proposing them together.

MR. SPIELFOGEL: Well, it says as a general rule they

should be alternative instructions. Sometimes it just works

out that they shouldn't be alternatives, and under the facts

of this case, these are the ones that apply.

THE COURT: Mr. Schar?

MR. SCHAR: Judge, I think -- well, first, I think it

is an alternative, and I think (a) particularly the second

paragraph, the bracketed paragraph, as in the pattern would be

the one that would be appropriate here regarding, as I

understand the arguments, the involvement in criminal

enterprise.

But more to the point, mere presence instructions, at

least as I understand the law generally, are properly given

where there's some possibility that the elements aren't clear

and that the individual defendant would have to be an actor.

In this case, when you -- obviously, mere presence would only

be applicable to the RICO conspiracy, if at all, and that

actually requires a finding that the defendant wasn't merely

present but that agreed to run the affairs of the enterprise

through a pattern of racketeering activity.

So the instructions for the racketeering conspiracy,

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in order to find guilt, necessarily include a finding of not

mere presence. I don't think it's necessary, but to the

extent it's going to be given, it would be the -- I think (a),

the bracketed paragraph, related to involvement with criminal

enterprise.

THE COURT: Although, I think, their position is, and

don't let me put words in your mouth, but defendant Ashqar's

association with other individuals who are co-conspirators who

were also members of Hamas, that alone doesn't prove his

membership in Hamas, that he might -- these phone calls with

others who are alleged co-conspirators, that alone isn't

enough, just his association.

Mr. Moffitt, is that --

MR. MOFFITT: Well, I didn't treat this as a mere

presence. This is --

THE COURT: Mere association.

MR. MOFFITT: Or mere association. Physical presence

wasn't the issue in this.

THE COURT: Right.

MR. MOFFITT: In that an individual could associate

not just with Hamas but any conspiracy.

THE COURT: Now --

MR. MOFFITT: But the problem here goes further than

that because membership in Hamas is not a crime.

THE COURT: Which brings me to my next question for

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you. Why did you take out the bracketed language "or persons

involved in a criminal enterprise"?

The proposed instruction under (a) pattern

instruction, reads, "A defendant's association with

co-conspirators or persons involved in a criminal enterprise

is not by itself sufficient to prove his or her participation

or membership in a conspiracy or criminal enterprise."

MR. MOFFITT: Because I'm stupid.

THE COURT: That's on the record, Mr. Moffitt.

MR. MOFFITT: I know, because I should have -- it

should have been taken out.

THE COURT: Okay. I don't think it should have.

So I also think that these are alternative

instructions. I will give (a) as I have just read it with the

language "or persons involved in criminal enterprise."

So, Mr. Schar, when you are redoing the instructions,

that -- make that modification, and I will give --

MR. SCHAR: You're giving both paragraphs (a) just so

I know what to put in or --

THE COURT: No, not the presence, the association.

MR. SCHAR: Okay. Yes, Judge.

THE COURT: The second full paragraph, which is one

sentence.

But Mr. Moffitt's proposal left out what I see is key

language --

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MR. SCHAR: Yes.

THE COURT: -- that should go back in.

Okay. No. 3, strictissimi juris instruction.

Mr. Schar?

MR. SCHAR: Judge, we're objecting to each -- this is

kind of compacted into the issue of the bifarious nature and

the specific intent instructions.

So, all our objections related to the Scales standard

we're reincorporating, and that also goes to the issue of the

First Amendment. First Amendment is not a defense in any way

whatsoever in this case because this isn't, again, a mere

association or a mere speech crime.

What the First Amendment says is the government shall

pass no laws that abridge these crimes, and the racketeering

conspiracy doesn't abridge them in any particular way.

And there's, I mean, numerous cases that deal with

the fact that First Amendment instructions are not appropriate

when the crime itself doesn't implicate guilt by a finding

purely of speech, which is the Scales standard essentially.

Obviously, if this was a Scales case and there was some issue

about speech, these would be appropriate, but you have all

types of cases. I mean, the one that maybe perhaps sums it up

best is an Eighth Circuit case, 152 F.3d 756, United States

vs. Hildebrand.

THE COURT: 152 F.3d 756?

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MR. SCHAR: 756 at 764. "The defendants argue that

the district court erred in refusing their proposed

instruction that advised the jury of the First Amendment

freedom of expression. The defendants argue that refusing

this instruction denied them the defense that their actions

were motivated by" --

MR. MOFFITT: Mr. Schar --

MR. SCHAR: Slow it down? -- "motivated by political

objective. However, they were charged with mail fraud and

money laundering, not anti-government speech. Their speech

was challenged only to the extent that they fraudulently

solicited claims. Where speech becomes an integral part of

the crime, a First Amendment defense is foreclosed even if the

prosecution rests on words alone."

Likewise, a Fifth Circuit case, United States vs.

Clark, 139 F.3d, 485 at 490, "Clark also contends the district

court erred in not instructing the jury on her First Amendment

defense. There was, however, no foundation for such an

instruction because the charged conduct, conspiracy to

defraud, was not protected by the First Amendment."

And lastly, a slightly older case, United States vs.

Barnett, Ninth Circuit, 667 F.2d 835 at 842, "Defendant

appears to argue as follows: The First Amendment protects

speech, including the printed word. Barnett," who is the

defendant, "sells printed instructions for the manufacture of

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phencyclodine; therefore, the First Amendment protects

Barnett's sale of printed instructions. The specious

syllogism finds no support in the law. The First Amendment

does not provide a defense to a criminal charge simply because

the actor uses words to carry out his illegal purpose.

Crimes, including that of aiding and abetting, frequently

involve the use of speech as part of the criminal transaction.

The use of a printed message to a bank teller requesting money

coupled with a threat of violence, the placing of a false

representation in a written contract, the forging of a check

and the false statement to a government official are all

familiar acts which constitute crimes despite the use of

speech as an instrumentality for the commission thereof."

Judge, this case is no different from any of these

other cases. The crimes charged do not criminalize speech or

association. A finding of guilt requires an agreement to run

the affairs of an enterprise through a pattern of

racketeering.

And to begin to attempt to instruct the jury on First

Amendment, not only is it not supported by the law, but it

runs into obviously the slippery slope of then having to

define what the First Amendment does not protect and how all

of the things that have been said and all of the evidence

they've received related to what was possessed can be

significant evidence of the crimes that, in fact, are charged.

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So, this comes down to an issue, Judge, of it not

being supported by the law, it not being a valid defense in

this case and basically inappropriate and impossible really to

come up with an instruction that would tell the jury what the

First Amendment protects in a case where it's not a defense,

while also trying to explain what it does not protect.

THE COURT: I will take this under advisement. This

overlaps with the government's elements on RICO instruction

and raises some of the same issues that you've raised there.

So, I will look at these cases you've cited and take

this under advisement with that one.

Government Instruction -- I'm sorry -- defendant

Ashqar Instruction 5.

I'm sorry, Mr. Moffitt?

MR. MOFFITT: Yes, ma'am. This is the

multi-conspiracy. You've already taken this under advisement.

THE COURT: No. 4 I did. I moved on to No. 5.

I will -- again, this overlaps with the government's

own instruction that I have taken under advisement, and I will

take this under advisement with the elements instruction.

MR. MOFFITT: Your Honor, I just want to say

something. There is no question that Dr. Ashqar wanted to

accomplish the goal of getting rid of the occupation. That in

and of itself is not an illegal goal.

And certainly there is no question that he performed

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acts that would get -- would attempt to get rid of the

occupation.

The government simply says because they charged

something in one way, it doesn't implicate the First

Amendment.

We've heard in this case about his association with

people. We've heard in this case about his religion. We've

heard in this case about his speech and his possession of

documents.

I would suggest to you that each of those things

implicate the First Amendment. Whether it is charged as a

violation of the First Amendment and the way the government

seeks to structure this doesn't mean that it doesn't implicate

the First Amendment. And they simply can't hide behind the

notion of how they charged it and be blind to the First

Amendment implications of what is happening here.

They have sought to prove this case by his

association with people in Philadelphia, his comments that

were made in a public meeting in Philadelphia, which was

public based upon the testimony of the agents who said the

meeting wasn't closed. They have sought to prove it by a

resort to suggestion that a reliance on a particular religion

means certain things about violence. They have sought to do

all of those things in this case.

I suggest to you that each one of those things

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implicate First Amendment conduct. And the mere fact that

they charge the case like they did does not say -- does not

tell the world that this doesn't implicate First Amendment

activity.

The activity, depending on how you look at the

activity in Philadelphia, that clearly is associational

activity. Depending upon how you describe the activity in

possessing documents and getting information from the news.

If you remember, Mr. Shorbagi said he was tasked to get

information from the news and give that information to someone

else.

So, now the suggestion is that reading the newspaper

and giving that information to Mr. Deutsch by me is an act in

furtherance of a RICO conspiracy. Those are the things that

they're seeking to prove as overt acts in furtherance of the

RICO enterprise. Each one of those things implicate the First

Amendment.

He has the absolute right to share that information

with another person. He has an absolute right to share that

information with another person in support of arguing against

or resistance to the occupation. He has an absolute right to

do that.

So, the suggestion here is all you look to is the

charge, and you ignore all the rest of that. And I suggest to

you that that's wrong. That's absolutely wrong. None of that

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conduct, I would suggest -- I would say each piece of that

conduct implicates a First Amendment right. So, what a person

would have to do to avoid being found guilty here, it seems to

me, because each of those things can be acts in furtherance of

support of the organization, and the government can argue and

will argue that each of those things furthered the cause of

Hamas, which is the enterprise, I would suggest to you that if

you ever expressed any interest in Hamas at all, the only

person that you can talk to is yourself in the mirror because

anything you do with any other person who has a likewise

interest who believes that they have the right to associate

with people in Hamas would be an act that the government would

argue was in furtherance of the conspiracy, and that's exactly

what they intend to do and they don't intend to limit it to

just kidnapping or what have you.

They're going to claim that if Mr. Shorbagi sat down

and read a newspaper and talked to Dr. Ashqar after that about

what he thought was important for Hamas to know, they are

going to suggest that that furthered the illegal goals of

Hamas. They've already suggested it. And I can hear

Mr. Ferguson arguing that right now.

And if that doesn't implicate the First Amendment,

then we don't have a First Amendment.

MR. SCHAR: It's not --

MR. MOFFITT: We're not free to do anything.

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MR. SCHAR: It's not an issue of implicating the

First Amendment, Judge. It is -- I am hard pressed to think

of a criminal case that doesn't implicate the First Amendment

at some level because the evidence obtained is often through

people's exercising the First Amendment.

What Mr. Moffitt continues to want to do or to think

that the jury is going to do, and I don't know why because

they won't be instructed that way, is to read out the

elements; that somehow the exercise of the First Amendment,

while it is in fact evidence of the criminal conspiracy and

defendant Ashqar's role in it, isn't going to get the

government anywhere unless the jury ultimately finds that each

of these defendants, they'll have to find it individually,

agreed, agreed to run Hamas through a pattern of racketeering

activity. Everything --

THE COURT: I'm taking this -- I'm taking this under

advisement.

Ashqar Instruction 5-A I am not going to give. I'm

going to give the pattern instruction on enterprise for the

reasons I stated when we were on that pattern instruction

instead.

MR. MOFFITT: It will be offered, and our objection

to that will be noted for the record.

THE COURT: Certainly.

No. 6 I am overruling -- I am sustaining, I'm sorry,

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any objections. I'm not going to give Ashqar No. 6 because I

don't think it accurately states the law. I am going to give

the pattern instruction on the interstate commerce definition

for the reasons I've previously stated when we addressed that

pattern instruction.

We're going to take a quick break. I will be back in

about five, ten minutes.

(Brief recess.)

THE COURT: Yes.

MR. FERGUSON: Judge, if there was a -- unless there

was a specific matter for which the Court wanted my personal

presence, I was going to absent myself and leave matters to

Mr. Schar.

MR. MOFFITT: If I've got to stay, he should have to

stay.

(Laughter.)

THE COURT: Wait a minute, if I have to stay.

The only thing -- the State Department documents,

since you are the author of the letter to me, let me give you

my ruling.

Essentially, your only remaining dispute, as I

understand it, comes down to Document No. 6, my numbering of

documents, not yours. Bates page 9500. And the admission of

one paragraph starting with "Finally."

That paragraph may be introduced with the exception

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of the last statement commenting on the due process. That's

my ruling.

Now you're excused.

Okay. Wait, one more thing before I let you go, just

to make sure we're all on the same page. Mr. Deutsch,

tomorrow you have Dr. Basoglu. What about Mr. Peers?

MR. DEUTSCH: No, we're not calling Mr. Peers.

THE COURT: Okay. And then you have some documents?

MR. DEUTSCH: Yes.

THE COURT: State Department documents, at least one

stipulation. We will take up the other stipulation. I

couldn't find that in my materials before I came out here.

But I will take that up with you. Anything else?

MR. DEUTSCH: We have these redacted country reports

that you -- and those are also going to be read.

THE COURT: Yes, those two paragraphs, I think.

MR. DEUTSCH: Yes.

MS. HAMILTON: Judge, actually with respect to those

two paragraphs, in light of your rulings on the other

Department of State documents, I guess we'd just be looking

for clarification as to under what exception those are coming

in for because they are entirely hearsay.

THE COURT: I don't have that before me. I would

have to -- let me take it up after jury instructions.

MS. HAMILTON: Okay.

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THE COURT: Anything else, Mr. Deutsch?

MR. DEUTSCH: No, Judge.

THE COURT: Okay. So, you -- and you still do not

anticipate that Mr. Salah will testify, correct?

MR. DEUTSCH: Yes.

THE COURT: Okay. After all of that occurs, I will

admonish him outside the presence of the jury and confirm

that. Then you will rest your case, correct?

MR. DEUTSCH: Yes.

THE COURT: Mr. Ferguson, do you anticipate any

rebuttal?

MR. FERGUSON: We do, Judge. There is a financial

document, singular, that we anticipate introducing by 902(11)

certification. And there are -- it is unclear to us at the

moment exactly which of the State Department documents the

defense, the Salah defense, intends to actually introduce into

evidence. It's unclear as to whether all of those that have

been put before your Honor for redaction are going to be

admitted.

To the extent that only certain of them are and the

government at this point, on the basis of the Court's rulings

as to the admissibility of these reports, generally wishes to

put some of them in, we would. And depending on which ones

the Salah defense actually puts in, there may be a couple of

others which we would be proposing redactions for in accord

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with the Court's prior rulings with respect to the State

Department consulate records.

And then beyond that, I don't think we're

anticipating anything else.

MR. MOFFITT: Financial document in rebuttal to what?

MR. FERGUSON: I'll show you the document.

THE COURT: Ms. Thompson, do you plan on putting in

all of the documents, the State Department documents that we

went through last week?

MS. THOMPSON: Judge, there was one that had been

redacted so heavily that we were considering not putting that

particular document in.

THE COURT: Okay.

Let Mr. Ferguson know which one that is. Did you

plan on putting the rest of them in?

MS. THOMPSON: We were going to put the rest of them

in.

THE COURT: Okay.

MS. THOMPSON: But we would like to know which ones

the government is proposing now.

THE COURT: That's what I was just going to tell you.

If you plan on putting in other ones, that redaction process

took -- I think we were here three hours last week. I want to

do all of this with the jury tomorrow so they're not coming

back on Friday for anything because I don't think Dr. Basoglu

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is going to be that long. May take up the morning, but I

don't think he's going to go all day.

MS. THOMPSON: I don't think he's going to be that

long, Judge, at all.

THE COURT: So, let Ms. Thompson know at the end of

the day. Send her which ones you would seek to propose to see

if you can agree on redactions.

MS. THOMPSON: Because the other issue would be that

if the ones proposed by the government, whether or not we

agree on redactions or not, then we believe open the door to

others that we think should go in. That would be the other

thing we'd need to be concerned about.

THE COURT: Well, it's their rebuttal right. But

send which ones in advance.

MR. FERGUSON: Yes, Judge.

THE COURT: And you know my rulings on the

redactions. So, -- anything else you plan on doing in

rebuttal?

MR. FERGUSON: I don't think so.

THE COURT: Okay.

So, sounds like everybody will rest tomorrow and then

Monday on closings. Here's the latest.

Mr. Lapertosa said he thinks it will take about an

hour. The judge has a half hour scheduled. Based on my

experience with fairness hearings, I can't imagine it taking

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more than a half hour.

He would really like to be there. He thinks he could

get another lawyer to come in at the half hour point but wants

to be there for the first half hour.

So I'll leave it to you. We can start at 9:00 and

break at 10:00 for a half hour, or we can start at 10:30 and

just go through. If the jury can stay without a problem until

5:30, I'll go until 5:30. Again, my concern is the two people

that travel three hours each way if they're going to miss a

train schedule.

MR. FERGUSON: Understood.

Judge, my preference still would be to begin at

10:30.

THE COURT: Okay.

We'll do that then on Monday. We'll start closings

with 10:30. Hopefully we can get through yours in one day.

If not, we'll go over into the next day.

Mr. Deutsch, you will be up next after Mr. Ferguson.

So certainly you will go on Tuesday. We'll see where

Mr. Deutsch is.

Mr. Moffitt, if there's one hour left, we can carry

yours into Wednesday. I won't put you in a position where you

can't complete yours in one day.

MR. MOFFITT: Okay.

THE COURT: I think you -- how long do you

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anticipate, Mr. Deutsch? Did you say three hours roughly?

MR. DEUTSCH: Tops, two to three hours.

Mr. Moffitt?

MR. MOFFITT: About the same. I don't anticipate it

being much more than that.

THE COURT: All right.

I think either way, we will end up going into

Wednesday, at least for the instructions. These instructions

are complicated. They are going to take me a while to read.

My preference is often to instruct the jury when they're fresh

the next day, not after listening to arguments.

So, you are excused.

MR. FERGUSON: Thank you, Judge.

MS. HAMILTON: Judge, there was one issue I wanted to

raise on Dr. Basoglu. I don't know if you want to wait and do

that after the instructions.

THE COURT: Yes. I would prefer to.

No. 7, agreement to commit pattern of activities. I

have -- you have modified Instruction 3.18. I am going to

give 3.18 as I've already ruled with the exception that I have

taken the date issue of certain statutes under advisement that

I will rule on.

MR. SCHAR: Just so --

MR. MOFFITT: Which one was that, your Honor?

MR. SCHAR: -- the government's instruction will be

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given.

THE COURT: Correct.

MR. MOFFITT: Which?

THE COURT: No. 7.

No. 8, I think, is moot now in light of the

government's representation that they're going to take out

Illinois first-degree murder as a predicate. So, I will moot

that.

If you need to, once you've seen the indictment or

the superseding information -- I'm sorry, not superseding

information. Once you've seen the revised indictment, sorry,

I misspoke, if we need to revisit this, we certainly can, but

I will consider this moot at this point.

The No. 9, No. 10, or at least No. 9, in light of the

government reworking its murder instructions, I will hold off

on that until I see the revised.

The conspiracy to commit murder abroad.

MR. MOFFITT: That has the issue of the dates.

THE COURT: The dates, which is -- I need to see your

law from both of you. So, I will -- I will take this under

advisement until I resolve the legal issue of acts that took

place before that particular statute was amended as

racketeering activity.

Okay. Instruction 11, money laundering.

Mr. Schar?

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MR. SCHAR: We object. The instruction we gave, I

think the government's instruction lays out everything. The

bolded portion, again, gets into this complicated issue of

legal versus illegal, the executive order. No one's charged

with 2339(b) IEEPA violation in this particular case.

So I think the government's money laundering

instructions account for everything and make sure the jury is

properly informed as to what's required for money laundering

to be a RICO predicate.

MR. MOFFITT: Your Honor, it's not just -- the

problem is that this is a conspiracy to commit a RICO. When

you take the RICO predicates, it's not that you have to commit

money laundering, but you have to do something in aid -- to

further money laundering.

So, you're not required to commit an act of money

laundering. So, if Dr. Ashqar solicits money for educational

purposes, how does the jury know that that's not money

laundering? What does the jury know about that to say that

that doesn't further the RICO enterprise here, the mere

solicitation of money for purposes of "to buy books"?

THE COURT: Wouldn't the specified unlawful activity

aspect of the 1956 instruction cover that?

MR. MOFFITT: Well, but the specified unlawful

activity would be the furtherance of Hamas.

THE COURT: No, the specified unlawful activity is

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defined by the statute.

MR. SCHAR: Judge, it's Government's Instruction 58.

THE COURT: I am going to give the government's money

laundering instruction. The bolded language you have here I

think is appropriate for a 2339, what was in Count Two, which

is no longer in there.

No. --

MR. MOFFITT: May I look at 58 for a second?

THE COURT: Pardon me?

MR. MOFFITT: May I look at 58 for a second?

THE COURT: Sure.

58, there were a series of them after 58 all dealing

with the money laundering under 56(a)(2).

MR. MOFFITT: Sorry, I was looking at Page 58.

I maintain my objection, your Honor.

THE COURT: Okay. Your objection will be noted.

Instruction 12, for the reasons I've already

addressed, I am going to give the government's instruction

under Macari, the Seventh Circuit opinion that I cited

previously. And there were a couple of instructions in a row,

and I've already addressed those.

There's a lot of overlap between what you're

proposing in those instructions, but the Seventh Circuit has

specifically approved the instruction proposed by the

government, which is the pattern.

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No. 13 I will take under advisement until I resolve

the date issue, which you are going to give me law on today.

14, I think this had a date -- did this have a date

issue?

MR. SCHAR: No.

THE COURT: No.

MR. SCHAR: Racketeering does not, Judge. I think

it's the bolded paragraph that's at issue. We'd object to.

THE COURT: What's your objection to the bolded?

MR. SCHAR: Judge, I think the elements of travel in

aid of racketeering lay this out, and, again, it's the same

issue. You can't violate -- you can't agree to violate travel

in aid of racketeering if you're supporting legal goals of

Hamas. I think it has to go to unlawful activity which is

specifically money laundering, and that's the series of

instructions that the government -- in the government's

instructions dealing with 19 -- Section 1952.

THE COURT: Mr. Moffitt, was this instruction given

in the Al-Arian case? In fact, you cite Al-Arian with respect

to multiple of these instructions, but it wasn't clear to me

that these were actually given in Al-Arian.

MR. MOFFITT: Most of these specific intent

instructions were given in Al-Arian.

THE COURT: They were given.

MR. MOFFITT: There's a ruling by the judge with

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regard to specific intent in Al-Arian I think you're aware of.

THE COURT: I have -- yes, I am aware of that.

MR. MOFFITT: So, there were a lot of relations to

specific intent in the Al-Arian case, and because of the

bifarious nature of what the government described as a more

crazy group of people than Hamas.

MR. SCHAR: Judge, if you look at Government

Instruction No. 61 and 62 together again. It's kind of the

equivalent of the money laundering issue.

In order to find -- you can't find that you traveled

to give money to education. It's either the distribution or

attempted distribution of money that's from unlawful

activities or to commit the carrying out of unlawful activity.

And unlawful activity is specifically defined and can only be

defined for this particular case in Instruction 62 as money

laundering.

So, again, it's not -- I don't think it's an accurate

statement of the law, and I don't think the jury could be --

the jury's not going to be misinformed about this.

THE COURT: I am going to sustain the government's

instruction and give the pattern instruction; and I think as I

have said multiple times today, the specific intent issue goes

to the elements on the RICO that I have taken under advisement

and I will address that on Friday when we meet again.

MR. MOFFITT: Are we going to tell people somewhere

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in this set of instructions that it is not illegal for people

to be members of Hamas or advocate on behalf Hamas?

THE COURT: I have not gotten through all of your

instructions yet. I thought you had something like that in

your First Amendment association one, but --

MR. MOFFITT: I do.

THE COURT: -- we'll get to that.

I also was surprised, I don't think you gave me a

theory of the defense instruction, and it seemed to me that

some of these arguments you're making now might be most

appropriate in a theory of the defense instruction --

MR. MOFFITT: Okay. We'll try to put one together.

THE COURT: -- which I will certainly give you leave

to submit, but let's finish going through these.

Forgery or false passports. We have the date issue,

which I will take under advisement until I see the law you

give me on that.

No. 16, effect of designation on specific intent.

MR. SCHAR: Judge, we'd object.

THE COURT: I'm not sure this is an accurate

statement of the law, and we've heard testimony on this.

I am going to sustain your objection because I don't

think this is an accurate statement of the law. I will not

give No. 16.

No. 17, advocacy of violence protected by First

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Amendment.

Mr. Schar?

MR. SCHAR: Judge, I think this all, again, collapses

into this issue of whether any First Amendment instructions

are appropriate. It's the government's position none are

because these are not Claiborne Hardware, these are not the

cases -- these are not -- it's not a case that makes the

exercise of the First Amendment illegal.

THE COURT: Mr. Moffitt, are you aware of any cases

where these First Amendment instructions or the strictissimi

juris instructions were given that involved RICO conspiracy?

MR. MOFFITT: No, because I'm not -- the association

cases all basically came out of the communist era which was

pre-RICO. They were basically cases that came out of the

notion that advocacy of a takeover of the United States

government, as long as force and violence were not involved,

you could advocate that and it was appropriate and that unless

the government could prove that a member of the Communist

Party advocated overthrow by forceable overthrow and there was

an imminent opportunity to do that.

But I would suggest either Hamas most closely

resembles the Communist Party. There clearly were illicit

goals of the Communist Party, goals that would violate the

law. Goals that you could make a great RICO case out of the

Communist Party; but, yet, still membership, association with

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and advocacy for would all be prevented as criminal activity

under Scales.

So, membership -- mere membership in Hamas is clearly

similar to mere membership in the Communist Party.

MR. SCHAR: Judge, I agree with Mr. Moffitt's

statement of the law. The difficulty with those communist

cases is the criminal violation was the mere association.

THE COURT: Membership.

MR. SCHAR: Exactly, the membership. And that issue

not only is addressed by the fact that this crime is a RICO

conspiracy and the elements therein, but it's also addressed

by what is now going to be the mere association instruction

that's going to be given, which, to the extent it's even

necessary, in conjunction with it is going to be given, it

says mere association isn't sufficient for a crime. You need

to meet the elements.

So, there is -- I think Mr. Moffitt's probably also

right. You could have used the Communist Party as a criminal

enterprise if you could have charged the racketeering

conspiracy, and it wouldn't have implicated the First

Amendment at all. The crime didn't exist then, so it would go

under a different statute which implicated mere membership.

MR. MOFFITT: The real problem that I have, your

Honor, is that acts that have nothing to do -- the simple

act -- for instance, the act of having a meeting in

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Philadelphia becomes in the hands of the skillful prosecutor

in furtherance of the RICO predicate offenses. You simply

argue that it furthered the illegal goals of Hamas to have

this association and to have this meeting and what have you,

and you escape the First Amendment at all and the implications

of suggesting that.

And that activity, it seems to me, by its very

nature, by the type of activity it is, by the fact that it is

association, by the fact that it's advocacy for a political

organization under these theories, you could have made Nelson

Mandela a RICO defendant under this very -- under these very

same theories.

Now, we are a society that opens itself up and says

to the world come to America, be free to speak your mind, be

free to believe what you want, be free; and then we say to

people when they come, if we don't like the organizations that

they're members of -- and remember what we're really talking

about here, it seems to me, is people discussing events and

occurrences that are not actually taking place inside the

United States. They're taking place -- the advocacy involves

another place.

So, at least in the communist cases, the advocacy

involved the United States. Here what we're saying is we open

our doors to people, we profess to have a First Amendment

where people can discuss this kind of political activity, and

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then we say all we need is two acts that further -- overt acts

that further the RICO or what is the specified unlawful

activity and we're charge this as a conspiracy. So, virtually

anything, virtually any act the government chooses to pick can

further -- by argument, can further the unlawful conspiracy.

You can -- you could make a speech and say I support

Hamas, that Hamas is doing a good thing, that Hamas is the

right way for the Palestinian people to go, and the government

could argue and could, based upon what Mr. Schar is

suggesting, could argue successfully that the making of that

speech or the meeting where that speech was made was a RICO

predicate act since it furthered the RICO conspiracy.

And there's no break on the government here,

absolutely not. They can turn this anyway they want because

it is -- there's no substantive RICO that we're talking about.

We're talking about a series of inchoate acts that the

government takes and adds up and says this furthers the RICO

conspiracy.

And I promise you that that's what they're going to

do with Philadelphia. I promise that's what they're going to

say about Philadelphia. They're not going to back off of

that. They're going to say that the Philadelphia meeting

where people got together and discussed, and discussed how

they were going to influence political behavior in the United

States, how they were going to -- this is done by virtually

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everybody. But they're going to suggest in their closing

argument that that furthered the RICO predicates here. And

there's no question about it.

And I suggest to you that that implicates the First

Amendment, no matter what was charged in this case.

THE COURT: Did the judge in Al-Arian give any First

Amendment instructions?

MR. MOFFITT: You know, your Honor, I'd have to go

back, to be frank, and look exactly. There was some we

offered. We certainly argued the First Amendment.

THE COURT: Right.

You didn't cite that as authority here. I will take

17, 18 and 19 under advisement.

MR. DEUTSCH: Judge, can I --

MR. MOFFITT: And I'm not sure, Claiborne Hardware

was not a RICO case, but it was charged under a state statute

and what they charged was -- it was a civil case where a

speech was made, property was destroyed after the speech was

over, and they tried to charge the NAACP with being in a

conspiracy to destruct the property based upon the fact that

the speech involved advocacy of violence.

THE COURT: Okay.

I'll go back. I have not read that case --

MR. DEUTSCH: Judge --

THE COURT: -- but I will.

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MR. DEUTSCH: Your ruling on 16, Ashqar's No. 16 kind

of implicates my Salah 10, and I want to go over that with you

just very briefly.

MR. MOFFITT: Excuse me, I don't mean to interrupt,

but I am reminded that No. 5 was given in Al-Arian.

THE COURT: Mr. Deutsch, let's come back.

MR. DEUTSCH: Okay.

THE COURT: Let me finish these, and then I'll come

back --

MR. DEUTSCH: Okay.

THE COURT: -- as I promised.

MR. DEUTSCH: Okay.

THE COURT: I have taken 5 under advisement. And you

cite Al-Arian there. And that's linked up with the elements

issue.

So, I'm going to take that and the First Amendment

under advisement and invite you to submit a theory of the

defense instruction.

No. 20, corruptly, the definition, Mr. Schar.

MR. SCHAR: Judge, I think this was addressed in the

government's instructions correctly laid out as one of the

elements, which is the wrongful -- corruptly basically is laid

out, and under the case of Macari, I think, those instructions

are supported, and I don't think there should be an additional

definition of corruptly which actually would conflict with

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what's in the pattern.

THE COURT: All right. I am going to sustain your

objection. Again, Macari, I'm relying on that Seventh Circuit

opinion from earlier this year, and the pattern instructions

themselves say that several cases have held that the term

corruptly means that the defendant acted with improper motive

or an evil or wicked purpose. The Seventh Circuit has not yet

addressed this issue.

MR. DEUTSCH: Judge --

THE COURT: I did a lot of research, and they still

haven't addressed that issue, although they have approved the

pattern instruction that I addressed earlier today.

So, I am going to --

MR. DEUTSCH: Judge --

THE COURT: -- sustain your objection.

MR. DEUTSCH: I just wonder whether you read the

Andersen -- the Arthur Andersen Supreme Court cases implying

that there should be some kind of bad motive put in when

you're talking about obstruction.

THE COURT: The Andersen case, which I raised on the

27th when you were here on the State Department case,

addresses really the nexus issue, and Macari found that the

pattern was consistent with Andersen. So, that -- Macari

addressed that.

Coercion I've already addressed, and I'm waiting for

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you, Mr. Spielfogel, to reread Dixon, and I'll hear your

arguments on Friday when we meet again on jury instructions.

Okay. I will go back to your 10.

MR. DEUTSCH: Yes.

You indicated on Ashqar 16 that it was not a correct

statement of the law, and I've kind of amended my 10 and see

if this reaches agreement with the government, which says,

"First Amendment freedom of speech and association. Prior to

its designation by the United States government, pursuant to

Executive Order date and Secretary of State date, United

States citizens and residents had the First Amendment right as

an exercise of freedom of speech and association to raise,

donate and/or distribute money to Palestinian organizations in

the occupied territories, including Hamas, as long as such

monies were not provided with the intent to further a pattern

of racketeering activity."

I changed it because I knew that the last part was

going to be somewhat objectionable.

But isn't that an accurate statement now? See, it

seems to me the jury --

THE COURT: Read the last part, so long as the monies

were not provided --

MR. DEUTSCH: With the intent to further a pattern of

racketeering activity.

THE COURT: My concern with that is limiting it to --

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that really limits it to RICO. I don't know if --

MR. DEUTSCH: Well --

THE COURT: -- there are other --

MR. SCHAR: Right and --

THE COURT: -- things they could have given it for

that would have been illegal. I --

MR. SCHAR: There are other things they could have

given it for would have been legal, there are other things

they could have given it for that would have shown the

predicate without specifically having the intent to further a

pattern. You need to have the intent, you need to have agreed

to run the enterprise through a pattern of racketeering

activity. Again, this becomes a slippery slope of trying to

redefine over and over again what the elements essentially are

in this case.

MR. DEUTSCH: Well, the problem that I see is that in

fact it is illegal now to give money to Hamas. And it became

illegal at a certain point. And a jury should know that there

was a point where it wasn't illegal.

THE COURT: And they've heard evidence on that.

MR. DEUTSCH: I guess we'll just argue it.

THE COURT: My question is what do we --

MR. DEUTSCH: But it seems to me that they should

know that -- they've heard evidence, but there's been

objections at certain points, and Mr. Schar has stood up and

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said that's not the law, and, you know --

MR. SCHAR: And I'm concerned, Judge. I will tell

you I'm very concerned about the suggestion that somehow it

was appropriate to give money ahead of time if that's an

argument that's going to be made to this jury. If that giving

of the money is evidence of the violation of other criminal

acts, certainly that would be improper to argue that it was

somehow legal to give money.

Now, it certainly wasn't a violation of 2339(b) and

wasn't a violation of IEEPA until Hamas was designated, but

the reason we've objected repeatedly to this line of inquiry

and suggestion is the notion that you could materially

support, Mr. Deutsch and Mr. Bloom both suggested this,

materially support Hamas and that was completely fine before

1995. Well, if that material support actually demonstrates

the pattern of racketeering activity, it wasn't okay.

THE COURT: But I think Mr. Deutsch's point is prior

to this time, it was okay to -- it was not illegal to

materially support legitimate goals of Hamas, such as building

schools or hospitals, whereas afterwards --

MR. SCHAR: That's right.

THE COURT: -- you couldn't give it for anything.

MR. SCHAR: And that goes exactly to the elements

instruction. That's right. If the argument they want to make

is all the money they were giving was for legitimate purposes

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and that, therefore, there was no agreement to run the affairs

of the enterprise through a pattern of racketeering activity

because there was no crime intended, the government hasn't met

its burden and the government hasn't met the elements of that

crime.

He's trying to turn that into an instruction or to

try and suggest more -- what my concern is they're going to

try and take what happened in '95 and then turn that into,

see, you couldn't materially support, period --

THE COURT: No, but that's --

MR. SCHAR: -- up until that point.

MR. MOFFITT: But we've never said that. In each of

the instructions, we've always said to support the goals of

legitimate --

THE COURT: Well, this instruction doesn't quite say

that, which is why I'm thinking -- and I don't like limiting

it to a pattern of racketeering activity.

Is there some way that would make it an accurate

statement of the law --

MS. THOMPSON: How about just for any unlawful

purpose?

THE COURT: -- to raise, donate and/or distribute

money to Palestinian organizations in the occupied territories

for legal purposes or --

MS. THOMPSON: Provided it's not for an unlawful

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purpose.

MR. SCHAR: Again, why isn't this a theory of defense

instruction, Judge, in the sense it's the theory of the

defendants they were giving money for legal purposes. I don't

see why there seems to be -- particularly raising the issue of

the designation in an instruction.

MR. DEUTSCH: Because the reason is, is because in

the middle of this conspiracy, the law changed and it became

illegal to even raise money and give money. And I think the

jury could be somewhat confused about that.

THE COURT: And we did hear that multiple times.

MR. DEUTSCH: We did, but --

THE COURT: Let me work with this.

MR. DEUTSCH: Okay.

THE COURT: And see --

MR. SCHAR: Also, the First Amendment aspect of this,

Judge, again --

THE COURT: Yes.

MR. SCHAR: -- is problematic.

THE COURT: I don't know that that's correct either,

that it's a First Amendment issue. I agree.

MR. DEUTSCH: Well, that's what Buckley vs. Valeo

said, you could raise money. It was a First Amendment,

different context, of course.

THE COURT: But you're tying it to the Executive

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Order and the designation. I don't think that's -- I think --

MR. DEUTSCH: Well, I guess you could say --

THE COURT: -- maybe had the right --

MR. SCHAR: Well, and Buckley vs. Valeo --

THE COURT: -- to raise, donate. I mean you can

argue it's a First Amendment issue, but I think --

MR. SCHAR: It's an election law case, Judge.

MR. DEUTSCH: Yeah, I know that.

MR. MOFFITT: This is a political organization.

THE COURT: I will work with this.

All right. I have follow-up things to do. You have

follow-up things to do. I've given you -- today I'd love to

see the law. I know it's 20 to 4:00, but if at all possible,

on the date issue of the predicate or the racketeering

activity being included in the RICO statute. I've given you a

deadline of tomorrow to submit some revised instructions and

proposals.

We will have another jury instruction conference at

10:30 on Friday, and it will be my intention to resolve all of

the outstanding issues. I haven't looked at the verdict form

yet, so I'll take that up on Friday. And if you want to

submit a theory of the defense instruction, try to do that by

tomorrow so I have enough time to look at it before Friday.

I have one issue for you, and then I will hear

whatever you have on Dr. Basoglu.

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The jury, as you know, every day has been meeting on

the second floor and then they've been brought up. When they

start deliberating, what's your feeling on just having them

meet here, advising them to take the elevator bank at the

other end. I'll tell them I have other matters going on,

which I will have my morning call and that. But advising them

to take that -- the elevator at the north end of the

building --

MR. SPIELFOGEL: North.

THE COURT: -- thank you, and come directly to the

jury room.

What's your thought on that?

MR. SCHAR: No objection, Judge.

MR. DEUTSCH: That's fine.

MR. MOFFITT: That's fine.

THE COURT: Okay.

I think that will be easier for them when they begin

their deliberations.

I plan to tell them tomorrow after everybody has

rested what the schedule is and that they'll have closings on

Monday, Tuesday, likely be charged on Wednesday and begin

their deliberations.

In light of the note that I got the last time they

were here about do they deliberate on Fridays, I also plan on

telling them tomorrow that their deliberation schedule is up

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to them and may even give them the example of we've been doing

half-day court on Friday. It's up to you if you want to

deliberate on Fridays or deliberate a half day or deliberate a

full day. That's up to you. The only thing they'll be

required to do is let the court security officer know.

MR. SPIELFOGEL: Is Monday a holiday also?

THE COURT: No. The 8th is not -- oh, Monday, the

15th, yes.

MR. SPIELFOGEL: The 15th, so they wouldn't

deliberate Friday or Monday.

THE COURT: And I will tell them that. Yes, they

will not deliberate on the 15th because that is a court

holiday and as I indicated to you, they will not deliberate on

the 19th either because of the Court's schedule.

So, if they're still deliberating then. My guess is

they will be, but --

MR. SCHAR: And, Judge, obviously we have

surprisingly six alternates that made it through. I'm

assuming your policy will be pretty good, given the Ryan case,

that they will be instructed not to, pursuant to the rules,

not to talk about this case and they actually may still be

needed for deliberation.

THE COURT: Yes, yes, and to be available by cell

phone.

MR. SCHAR: And, obviously, we're in the building so

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I don't expect it to be a problem, but given the instructions

as we continue to go through this, it would not surprise me if

we had a question here or there. I assume you will want us

all here.

THE COURT: Absolutely. In a criminal case, it is my

practice that whatever question I get, you have to come in and

the defendants have to come in, even if it's "can I go smoke?"

which I've had before. I want that on the record with

everybody present.

So, you'll have to let me know where I can reach you,

and you shouldn't be too far away.

Okay. Any other just general procedural questions?

Dr. Basoglu issue.

MS. HAMILTON: Yes. Judge, during the break,

Ms. Thompson and I were talking, and we have a difference of

opinion I just wanted to raise for clarification for the

morning.

It was my recollection and understanding that when

your Honor ruled that Dr. Basoglu could testify via video

feed, that one of the conditions was that he would have his

writings with him in light of the difficulties we had

expressed in cross-examining him and that we witnessed

actually in cross-examining both experts, that it was

necessary to confront them with things they had written or

testified about.

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And I think that that was different than what

Ms. Thompson understood. So, I just want to clarify --

MS. THOMPSON: Well, just to let you know, my

understanding was that if we intended to present him with

something that we were going to move into evidence, that we

should provide a copy to the government, as well as make sure

that the witness had it there.

I mean, he has written over a hundred journal

articles and books and conducted studies. I think -- I am not

going to be asking him, specifically presenting him with

anything in order to simplify matters, that I think that all

of his opinions are informed by a 40-year body of work

essentially in the area of trauma studies.

Now --

THE COURT: The issue is on cross-examination.

MS. THOMPSON: And I advised that if there were

documents that they knew they wanted to ask him about, I will

do my best at this last minute to e-mail him, even though it's

getting late there, and say please have those there.

THE COURT: Although he'll have all day tomorrow.

MS. HAMILTON: Well, Judge, but this was actually

raised when we objected, and one of the concerns that was

brought up both with Dr. Basoglu and Dr. Sakr was that we

shouldn't have to provide ahead of time what we plan --

THE COURT: Correct.

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MS. HAMILTON: -- to cross-examine them about.

THE COURT: Correct.

MS. HAMILTON: And also we can't anticipate. It's

possible that he would say something that either contradicts

or further informs something I've read by him. And so, it

would be -- I mean, it's sort of both issues were raised, and

I thought that based on that your Honor said he should be

instructed to have what he's written with him.

THE COURT: I don't recall saying he should have all

of his articles.

MS. THOMPSON: I thought if we were going to be

eliciting and saying -- specifically putting into evidence the

particular study, obviously we would tell him to have that

there.

THE COURT: Right.

MS. THOMPSON: Obviously, we are not doing that.

We're simply establishing his expertise in an area and going

to ask him to give his opinions.

Now, I think his entire body of work, quite frankly,

whether it's on anxiety, PTSD, war trauma, earthquake trauma,

all of that informs his opinions; but we're not specifically

going to be putting in evidence any of those studies.

THE COURT: Is there some way, Ms. Hamilton, you can

narrow it without pinpointing specifically what you might want

to cross him with? I know you may not know everything, and

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I'll certainly give you more leeway on cross into reading his

articles that he has issued.

MS. THOMPSON: I don't think there's a problem if

they want to ask him, you wrote in some particular article she

has in mind, which I have no idea what it is, you wrote the

following and then ask a question about it. We certainly

don't have an objection to that. I think they'd be able to do

that anyway with an expert.

THE COURT: And publish it to the jury.

MS. HAMILTON: I guess there are two things.

THE COURT: I don't remember instructing that.

MR. DEUTSCH: You didn't.

THE COURT: I'm sorry?

MR. DEUTSCH: I said you didn't, Judge. You never

made that instruction.

MS. HAMILTON: I guess that it was my recollection.

I could clearly be wrong.

MS. THOMPSON: I mean it doesn't apply with any

expert that they would bring their entire body of works --

THE COURT: But this is different because they're on

video because if they're personally in here, the government

has it, they could show it to them.

MS. HAMILTON: I think they -- I guess two things.

One, certainly I was actually only focusing on what he had

written with respect to torture and any effects of torture

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because I thought that's what he was being presented on, so

I'm confused as to getting into anxiety disorders and PTSD. I

mean he's written on a category of other things that don't

have anything to do with this case, so --

THE COURT: No, and that's what my ruling was limited

to. I think what Ms. Thompson --

MS. THOMPSON: He is certainly going to --

THE COURT: -- said, all these other areas --

MS. THOMPSON: He's not testifying about all those

areas; but to the extent that the opinions he intends to

render are informed by his research in another area of trauma,

I would simply tend to elicit that in terms of his expertise.

THE COURT: Okay.

MS. THOMPSON: I mean if you studied trauma

associated with war or earthquakes, it's not irrelevant to

your study of torture in terms of giving an opinion about

having studied those individuals. That's all it is.

THE COURT: But you're not going to seek to elicit

any opinions on those other areas.

MS. THOMPSON: No, no.

THE COURT: Okay.

MS. HAMILTON: So I guess -- I mean, what I was

focusing on are only the writings in his CV that deal with

torture.

THE COURT: And I think that's appropriate because

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Ms. Thompson, while going through his qualifications --

MS. THOMPSON: Yes.

THE COURT: -- she may go through some of his other

areas, but she is not going to and I won't let her elicit any

opinions in these other areas outside of the torture.

MS. HAMILTON: Okay.

THE COURT: To the extent if you can identify -- I

don't know how many articles he's written on torture. Maybe

it's just a handful and you can e-mail him that handful and he

can have those ready. If I recall, he had a very recent

study.

MS. THOMPSON: I can ask him by e-mail, which I will

send immediately, that, if possible, to have with him articles

that he has written.

MS. HAMILTON: And he wrote a book, too. He wrote a

book.

THE COURT: And a book, publications on torture.

MS. THOMPSON: Okay.

THE COURT: Yes, see if he can have all of that with

him.

MS. THOMPSON: I'll try to do that. It's quite late,

but I will.

THE COURT: Right. But you'll have -- because when

he testifies, it will be 5:00 o'clock or 5:15 his time. So

he'll have a chunk of tomorrow do that.

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MS. THOMPSON: Yes, that's true.

THE COURT: But e-mail him and see if he can.

And then 9:15 tomorrow.

MS. HAMILTON: The other issue is with respect to the

country reports that Mr. Deutsch raised during Dr. Ginbar's

testimony, there were two paragraphs -- I've got marked-up

ones that I have flagged, and I'm obviously happy to pass them

forward.

THE COURT: I don't have those. I gave mine back to

Mr. Deutsch. And I will also address the stipulation in the

morning, Mr. Deutsch. I don't have it with me, and I couldn't

find it before I came out.

Go ahead.

MS. HAMILTON: We can obviously address this in the

morning if you prefer, but --

THE COURT: Make your argument, and then you can give

me the reports and I will --

MS. HAMILTON: It seemed that in light of the Court's

rulings on the documents that were at issue with respect to

the consulate, that what is coming into evidence are

observations of an employee of the consulate or actions taken

by the consulate.

And these reports are concerning on two grounds.

One, unlike the consulate reports where Ms. Thompson went

through and laid the foundation for how the reports are

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created, purpose of the reports, all of those things, we don't

have the same thing with respect to these two reports. And

even within the substance of the reports themselves, it's not

clear where the information is coming from.

And with respect to the two paragraphs at issue, I

mean, this is -- it's just my assumption, based on reading the

two photographs because there's no way to know, but it doesn't

appear that either of these two paragraphs are observations of

employees of the State Department that they do appear to be

complete hearsay.

And I know your Honor already, I think, struck

certain sentences that are very clearly attributed to human

rights groups or attributed to detainees. But there were some

statements that were a little bit more general that I think

were coming in.

And, so, just in light of your Honor's rulings on the

other -- the other exceptions, it was unclear to the

government what exception these would fall under.

THE COURT: Can you leave those with me?

MS. HAMILTON: Yes.

THE COURT: I don't have a copy.

MR. DEUTSCH: Judge, I can actually give you the ones

as redacted so you can --

THE COURT: Perfect.

MR. DEUTSCH: -- if that would be helpful to you.

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THE COURT: Hand that to me, and I'll take it up

tomorrow morning.

MR. DEUTSCH: But I see this as the government

rearguing something that the Court already decided or looked

through and made that decision. So --

THE COURT: I don't disagree with that, but let me --

I will take these.

MR. DEUTSCH: Those are two paragraphs, one from '93

and one from '94.

THE COURT: Yes. I remember them and they were very

similar, but I'll take this up tomorrow morning.

MS. HAMILTON: Thank you, your Honor.

THE COURT: Anything else?

Okay. 9:15 tomorrow morning. I will see you then.

(Court adjourned, to reconvene at 9:15 a.m. on 1-4-07.)

CERTIFICATE

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

Joseph Rickhoff Date

Official Court Reporter

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