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1

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

) November 29, 2006

Defendants. ) 9:15 o'clock a.m.

VOLUME TWENTY-FIVE

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 H. 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

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APPEARANCES (Cont'd):

Also Present: S/A BRADLEY BENAVIDES, FBI

S/A JILL PETTORELLI, FBI

Court Reporter: MR. JOSEPH RICKHOFF

Official Court Reporter

219 S. Dearborn St., Suite 1232

Chicago, Illinois 60604

(312) 435-5562

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

PROCEEDINGS RECORDED BY

MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED BY COMPUTER

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Karas - direct

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

Abdelhaleem Ashqar. Jury trial continues.

* * * * *

KENNETH KARAS, PLAINTIFF'S WITNESS, SWORN

DIRECT EXAMINATION

BY MR. FERGUSON:

Q. Good morning, sir.

Would you please state your name and spell your last

name for the court reporter?

A. Yes. My name is Kenneth M., as in Michael, Karas,

K-a-r-a-s.

Q. Mr. Karas, how are you presently employed?

A. I'm currently a U.S. District Judge in the Southern

District of New York.

Q. And approximately how long have you been a judge?

A. A little over two years.

Q. And prior to that, what did you do for a living?

A. I was an assistant United States attorney in the U.S.

Attorney's Office in the Southern District of New York from

1992 until about June of 2004.

Q. An assistant U.S. attorney, does that mean you were a

federal prosecutor?

A. Yes, sir.

Q. Was there or were there particular types of cases or

subject matters that you were principally assigned to at the

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U.S. Attorney's Office in New York?

A. Yes. From beginning in about the spring of 1995, I

focused almost exclusively on international terrorism matters

working in the Terrorism/Organized Crime Unit in the U.S.

Attorney's Office.

Q. And at some time, in the context of that general

assignment, were you assigned a federal grand jury

investigation regarding the organization known as Hamas?

A. Yes.

Q. And approximately when was it that you were assigned to

the Hamas investigation?

A. Approximately late July of 1995.

Q. And was there some precipitating event that triggered this

particular investigation?

A. Yes. I was assigned the case the day that Mr. Mousa

Mohammed Abu Marzook was detained at JFK Airport in New York.

Q. And that was in July of 1995?

A. Yes. It was a Saturday, actually, in July of '95.

Q. And you indicated that you were assigned to the case at

that time. Did the case already exist?

A. No. It was -- the case began when we learned that

Mr. Marzook was at JFK Airport.

Q. And would you please describe for the jury, in general

terms, the nature of the investigation that was opened and

then proceeded?

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A. Well, the investigation initially focused on Mr. Abu

Marzook because he was detained initially, I think, on

administrative charges. There were immigration matters that

were being investigated not by me or my office, but we wanted

to look at any possible criminal involvement he had. That

initially focused on his leadership role in Hamas and, then,

also his fundraising activities.

Eventually, that investigation broadened to include

others, principally in the United States -- who we believed

might be part of what we labeled an American Hamas network --

to look at financial transactions that we thought were

intended to help facilitate Hamas terrorist activities.

Q. And were there particular types of federal violations that

you were exploring in the investigation?

A. Yes. Our principal focus was on the money laundering

statute, which criminalizes financial transactions which are

designed to promote -- specified unlawful activity, is the

legal term. We were looking at the specific unlawful activity

of murder and kidnapping.

Q. You've mentioned that the investigation expanded to look

at certain other individuals. Were there some individuals

principal among those that you were looking at beyond

Mr. Marzook?

A. Yes. We began to look at Muhammad Salah, Abdelhaleem

Ashqar, Ismail Elbarasse, Alaa Abdelwahab, and the name Nasser

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Al-Khatib rings a bell. And there were others, but those are

the ones that come to mind.

Q. And was your investigation conducted through a federal

grand jury sitting in New York?

A. Yes.

Q. And did there come a time that the investigation in the

Southern District of New York sought grand jury testimony from

Mr. Abdelhaleem Ashqar?

A. Yes.

Q. Approximately when was it that Mr. Ashqar's testimony was

first sought?

A. I believe we issued the subpoena to Mr. Ashqar in late

November, early December of 1997.

Q. And was it important to the investigation that you obtain

testimony from Mr. Ashqar?

A. Yes, it was very important. At that time, we had run into

some dead ends. We --

MR. DEUTSCH: Objection. He asked for a "Yes" or

"No" question and he's now giving some kind of narrative

beyond that.

MR. FERGUSON: That's fine, Judge.

THE COURT: You can ask your next question.

BY MR. FERGUSON:

Q. Why was it important?

A. It was important because we were looking to put some meat

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to the bones of the documentary evidence that we had

accumulated to that point. We were aware of substantial

financial transactions involving a number of people, including

Abu Marzook and Ashqar and Elbarasse. But what we were trying

to do is put those transactions into context. And, in

particular, we were looking to get an insider's view to tell

us that the intent behind these transactions was, in fact, to

promote terrorist activities conducted by Hamas members and

associates.

Q. And you used the term "insider's view." Was there a

significant number of people who fell into the category of

potential insiders that could provide information of the type

that you just explained?

MR. MOFFITT: Objection. Hearsay.

THE COURT: Overruled. It is a "Yes" or "No."

BY THE WITNESS:

A. I'm sorry, if you could repeat the question?

BY MR. FERGUSON:

Q. How many people were there who fell into the category of

"insider" at the time you called Mr. Ashqar to the grand jury

who could provide, or who you understood might be able to

provide, information of the nature that you just explained?

A. Well, there was a handful of people because some of the

names that had popped up on the financial transactions, we had

no reason to believe they were in the United States. So, we

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had no ability to subpoena them, for example. So, we were

looking at principally Mr. Ashqar and maybe one or two others.

Q. You indicated that a subpoena was served on Mr. Ashqar

approximately in November of 1997. What specifically did the

subpoena require of him?

A. It required that he come to provide testimony to the grand

jury that was involved in the money laundering investigation.

Q. And was the initial scheduled appearance for Mr. Ashqar

approximately December 3rd of 1997?

A. That sounds about right.

Q. Did he appear before the grand jury at that time?

A. He did not.

Q. Why not?

A. What had happened was an attorney on his behalf, Mr.

Michael Kennedy, reached out and indicated that Mr. Ashqar was

going to invoke his right not to incriminate himself. So, we

adjourned the grand jury proceeding.

Q. And did you take some specific action in response to the

information provided to you by Mr. Kennedy, who was Mr.

Ashqar's lawyer?

A. Yes. What we did after that was, in consultation with

some of my supervisors and other officials at the Justice

Department in Washington, we decided to seek an order

providing Mr. Ashqar with immunity from any testimony that he

gave before the grand jury.

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Q. And would you just explain generally to the jury what the

process is that you go through in order to be able to seek

immunity for an individual before the grand jury?

A. As I recall, the process involved a review that had to

take place in the U.S. Attorney's Office. And I think the

U.S. Attorney, herself, had to sign the request or initial the

request that would then be sent to the Justice Department.

There was a unit in the Justice Department that would

evaluate whether or not to approve the request for immunity.

And, so, that was sent to the appropriate officials in

Washington.

And, then, once that approval is obtained, then I had

to go and get a judge to sign the immunity order.

Q. And did you, in fact, go to a federal judge in order to

get an immunity order signed respecting Mr. Ashqar?

A. Yes. I went to Judge Denise Cote, C-o-t-e.

Q. And approximately when was it you went to Judge Cote with

the request for an immunity order?

A. I believe it was mid-February of 1998. Early to

mid-February of '98.

Q. And did Judge Cote sign such an order?

A. She did.

Q. And, in general terms, what did the order provide?

A. The order provided that Mr. Ashqar would testify; and, if

he testified, that nothing he said could be used against him

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in any criminal proceedings, either directly or indirectly.

Q. And would you explain a little bit what you mean by

"indirectly"?

A. Sure.

The term is "use immunity." And what it means is

that nothing that Mr. Ashqar would say to the grand jury could

either be quoted back to him in any prosecution of him, nor

could anything he said be used to get other information which

could then be used against him in any criminal prosecution.

Q. And is there any condition as to the nature of his

testimony for which this protection attaches?

A. Well, he'd have to tell the truth. It does not protect

false statements.

Q. Directing your attention -- well, once you got the order,

how did you proceed, then, with respect to Dr. Ashqar?

A. I then contacted Mr. Kennedy and advised him that I had an

order -- an immunity order -- from a judge; and, so, we were

going to re-issue the subpoena to have Mr. Ashqar come testify

before the grand jury.

Q. And did Mr. Ashqar, in fact, appear before the grand jury

subsequently?

A. He did. He appeared on February 23rd of 1998.

Q. And at the time that he appeared on February 23rd, was he

accompanied by his lawyer, Mr. Kennedy?

A. Yes.

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Q. And at the point that he appeared, did you have an

understanding as to how Mr. Ashqar intended to proceed in

light of the immunity order?

A. I did have an idea of how he intended to proceed, yes.

Q. And from whom did you have that understanding?

A. From Mr. Kennedy.

Q. And what was that understanding?

A. Mr. Kennedy sent me a letter indicating that Mr. Ashqar,

notwithstanding the immunity order, was going to refuse to

testify before the grand jury.

Q. And directing your attention to February 23rd, 1998, were

you personally present when Mr. Ashqar appeared at the grand

jury pursuant to further subpoena?

A. Yes. I conducted the inquiry.

Q. The person who you understood to be Mr. Ashqar when he

appeared on February 23rd, 1998, do you see him in the

courtroom today?

MR. MOFFITT: I'll stipulate that Dr. Ashqar is in

the courtroom today.

THE COURT: Would you like the witness to identify

him or are you --

MR. FERGUSON: I would like the witness to identify

him.

THE COURT: Okay.

BY THE WITNESS:

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A. He is sitting in the back table near the projector screen

wearing the -- I don't know, it's a maroon or dark orange

shirt and a tie and glasses and a beard.

MR. FERGUSON: I ask the record to reflect that the

witness has identified the defendant Abdelhaleem Ashqar.

THE COURT: The record will so reflect.

BY MR. FERGUSON:

Q. Once you're in the grand jury room -- let me ask you,

besides yourself and Dr. Ashqar, who else was in the grand

jury room that day?

A. The grand jurors and the court reporter.

Q. And once Dr. Ashqar was present in the grand jury room

before this group, was he sworn in?

A. He was.

Q. All right.

And how did you proceed from that point?

A. I began by advising Mr. Ashqar about what the grand jury's

function was. I explained to him that the grand jury could --

conducts investigations and, also, is empowered to return

indictments where they believe that probable cause supports

criminal charges.

I also advised him of the nature of the

investigation. And I also advised him of his rights,

including his right not to incriminate himself and his right

to consult with his attorney, who I knew was outside the grand

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jury room.

Q. And since you had an immunity order, did you do anything

with respect to explaining to him his rights, given the

immunity order?

A. I did. I actually gave him a copy of the immunity order,

and I also explained to him what use immunity was. I

explained to him that, as I explained earlier, that nothing he

said directly could be used against him or indirectly. And I

also allowed him to take the immunity order, to go outside and

show it to his attorney.

Q. And did you then proceed to question defendant Ashqar?

A. I did.

Q. What was the nature of the initial questions that you

asked him?

A. The initial questions were mostly just personal

information -- pedigree information -- about where he was

born, where he was educated, where he worked, things like

that.

Q. And did he answer those questions?

A. He largely did. He started to indicate he was going to

refuse to testify when we got to his then-current employment.

Q. Did he indicate who he was employed by at the time?

A. He indicated that he worked for -- I know the acronym is

UASR. I don't remember what it stands for. But he indicated

he did some research for a group called UASR. Now, he didn't

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use "UASR," but that's the group that I recall.

Q. And did you proceed with further questioning of Dr. Ashqar

on that subject?

A. Well, what happened was -- the answer is "Yes," but what

happened was, I -- when I asked him a question about where he

worked, I think he answered that; and, then, I asked him about

either what he did there or who he worked for, and that's when

he -- I think he -- read a statement. But he might have gone

to ask to speak to his lawyer before he read the statement.

There were times when even though he answered my

questions, he did so only after going outside and speaking

with Mr. Kennedy.

Q. And, so, Mr. Ashqar was afforded the opportunity to step

outside the grand jury room and consult with counsel on

multiple occasions on this day?

A. Of course. And he took advantage of that opportunity.

Q. And from that point forward, did you attempt to question

Dr. Ashqar about various individuals who you were pursuing in

the context of your criminal money laundering investigation?

A. Yes. I asked -- I asked -- Mr. Ashqar about his knowledge

of Mousa Mohammed Abu Marzook, Ismail Elbarasse, Alaa

Abdelwahab. I might have also asked him about Nasser

Al-Khatib. And there may have been a couple of others.

Q. And these were subjects of your investigation?

A. They were.

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Q. And did Mr. Ashqar answer any of those questions?

A. He refused.

MR. FERGUSON: Permission to approach, Judge?

THE COURT: You may.

BY MR. FERGUSON:

Q. I'm showing you, Mr. Karas, what's marked as Government

Exhibit Ashqar 2-23-98 Grand Jury Transcript --

(Document tendered.)

BY MR. FERGUSON:

Q. -- and ask that you take a moment to examine that

document.

(Brief pause.)

BY MR. FERGUSON:

Q. Is this document familiar to you?

A. Yes.

Q. In general terms, what is it?

A. This is a transcript of the grand jury proceedings on

February 23rd of 1998.

Q. The grand jury proceedings in which Dr. Ashqar refused to

answer questions put to him by you regarding subjects of your

investigation after having been immunized?

A. That's correct.

Q. And was this transcript part of the official grand jury

record and court record utilized and relied upon in subsequent

proceedings?

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A. Yes.

Q. Does the document constitute a fair and accurate

transcription of Dr. Ashqar's appearance before the grand jury

that day in your presence?

A. To the best of my recollection, yes.

MR. FERGUSON: Judge, I'd move admission of

Government Exhibit Ashqar 2-23-98 Grand Jury Transcript.

THE COURT: Any objection?

MR. MOFFITT: No objection.

MR. DEUTSCH: No.

THE COURT: So admitted.

(Government Exhibit Ashqar 2-23-98 Grand Jury

Transcript received in evidence.)

BY MR. FERGUSON:

Q. After Mr. Ashqar refused to answer questions with respect

to specific subjects of your investigation on February 23rd of

1998, what happened next?

A. Well, I had asked the foreperson of the grand jury to

direct Mr. Ashqar to answer the questions, which she -- which

she -- did.

Q. And did he answer the questions?

A. He did not.

Q. And what happened next?

A. I then adjourned the grand jury proceeding -- or I sought

permission from the foreperson to adjourn the grand jury

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proceeding -- and the foreperson, myself, Mr. Kennedy and

Mr. Ashqar, and maybe one or two others and I, went to see

Judge Cote, who was sitting in what we call Part 1 Duty --

Miscellaneous Duty -- to seek relief from her.

Q. And Judge Cote was the judge who had signed the immunity

order?

A. That's correct.

Q. And was this appearance before Judge Cote an open or

closed session?

A. That one, I believe, was a closed session.

Q. And once before Judge Cote, what happened?

A. I had -- I advised Judge Cote of what had happened in the

grand jury room, that questions had been posed and Mr. Ashqar

had refused to answer the questions, even though Judge Cote

had signed an immunity order.

Judge Cote then made some inquiry to confirm that

that's, in fact, what had happened. And there was a colloquy

back and forth between Mr. Kennedy and Judge Cote, the result

of which Judge Cote made sure herself to explain on the record

to Mr. Ashqar about what the immunity order required him to do

and the consequences of not complying with the order.

Q. And, at that point, did Dr. Ashqar return to the grand

jury room?

A. He did not. Mr. Kennedy, I think, advised that it was not

necessary for him to go back and, once again, made clear his

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refusal to testify.

Q. And what action, if any, did you take at that point?

A. At that point, I believe I asked the foreperson of the

grand jury to request of Judge Cote that Mr. Ashqar be held in

contempt for his refusal to answer the questions.

Q. And how did Judge Cote rule on that request?

A. Judge Cote granted the request, held Mr. Ashqar in

contempt and elected to use the remedy of imprisonment to

attempt to change Mr. Ashqar's mind to testify.

Q. Was this -- what type of contempt was Mr. Ashqar held in?

A. Civil contempt.

Q. All right.

And you indicated that he was imprisoned by the

judge. Was this a form of punishment for his refusal to

comply with the Court's order?

A. Not at all.

Q. Would you please explain to the grand jury exactly what

the purpose of the incarceration was, then?

A. The purpose, pursuant to a congressional statute, is to

use imprisonment to try to persuade somebody to testify. The

statute provides that somebody can be imprisoned as a method

of coercion for up to 18 months or the life of the grand jury

conducting the investigation.

Q. And is there any act or circumstance in the witness'

control that would bring an end to the civil contempt?

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A. Yes. The witness can testify.

Q. And once Mr. Ashqar was imprisoned, held in contempt by

the judge, did he continue to refuse to testify for

approximately six months until Judge Cote entered a subsequent

order releasing him, based on a finding that further

incarceration would not have the effect that was sought?

A. That sounds about right, yes.

Q. While Dr. Ashqar was being held in civil contempt in New

York, did your investigation seek grand jury testimony from an

individual by the name of Ismail Elbarasse?

A. Yes.

Q. And, in general, why was it important to the investigation

to try to obtain Mr. Elbarasse's testimony?

A. It was the same reason that we had issued a subpoena to

Mr. Ashqar. He was one of a handful of people left in the

United States who we believed could provide an insider's view

to the financial transactions that we suspected were being

used to promote Hamas terrorist activity.

Q. And was Mr. Elbarasse subpoenaed to appear before the same

grand jury as Dr. Ashqar had been?

A. Yes.

Q. And approximately when was it that Mr. Elbarasse was

subpoenaed to the grand jury?

A. I believe it was in late March of 1998.

Q. And did Mr. Elbarasse appear before the grand jury in

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March of 1998?

A. He did not.

Q. And do you have an understanding as to why?

A. Yes. His attorney, Mr. Stanley Cohen, indicated to me,

that Mr. Elbarasse intended to invoke his right not to

incriminate himself.

Q. And, in light of that, what action did you take, if any?

A. I, again, went through the process of consulting with my

supervisors in the U.S. Attorney's Office and others in the

Justice Department and ultimately sought their permission to

seek an immunity order for Mr. Elbarasse.

Q. And did you, in fact, get that authorization?

A. Yes, I did.

Q. And did you appear before a district court judge to obtain

an immunity order for Mr. Elbarasse's testimony?

A. Yes. I went to Judge Mukasey.

Q. And approximately when was it that Judge Mukasey signed

this order?

A. Late March or early April of 1998.

Q. And this is the same type of order as you've described

with respect to Dr. Ashqar?

A. Yes.

Q. And once you had the order in hand, did you renew the

subpoena for Mr. Elbarasse?

A. I did.

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Karas - direct

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Q. And approximately when was it that Mr. Elbarasse was to

come to the grand jury?

A. I believe it was April 6th of 1998.

Q. And were you present for Mr. Elbarasse's appearance before

the grand jury that day?

A. Yes.

Q. Did you lead the questioning of him?

A. I did.

Q. Who else was present in the grand jury?

A. Mr. Elbarasse, the grand jurors and a court reporter.

Q. And Mr. Elbarasse was sworn in at the beginning of this

session?

A. He was.

Q. And what happened next?

A. As I did with Mr. Ashqar, I advised Mr. Elbarasse of the

purpose of the grand jury. I advised him of his rights: His

right not to incriminate himself and his right to consult with

an attorney. And I knew that Mr. Cohen was outside the grand

jury room.

I explained to him that I had an immunity order; and,

I explained to him, again, use immunity, what it provided for

him by way of immunity; and, I explained to him that he had to

testify truthfully to get the protections of the immunity

order.

Q. You mentioned the name "Mr. Cohen" -- "Stanley Cohen" -- a

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Karas -

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couple times. Was Mr. Cohen involved in any of the related

proceedings surrounding your investigation?

MR. MOFFITT: Objection. Relevance.

THE COURT: What is the relevance, Mr. Ferguson?

MR. FERGUSON: I'm not sure I should speak in front

of the jury, Judge.

THE COURT: Okay. We can do a sidebar.

(Proceedings had at sidebar:)

MR. FERGUSON: Judge, Mr. Cohen was counsel for

Mr. Marzook at the very same time that Mr. Elba- -- he was

representing Mr. Elbarasse in the parallel criminal

proceedings that were an investigation of Mr. Marzook,

himself, among others. And Mr. Marzook -- sorry, Mr. Cohen --

has generally referred to himself in the public as "the house

lawyer for Hamas." The fact that Mr. Elbarasse chose a lawyer

who was representing Mr. Marzook at the time, I think, is

evidence of the conspiracy that existed and the association of

the Hamas conspiracy, in fact, in the United States.

THE COURT: Do you plan on bringing out that he

represented Dr. Ashqar in this case?

MR. MOFFITT: No.

Mr. Cohen?

THE COURT: At the very beginning he did. He

appeared here.

MR. SCHAR: It's already in evidence.

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MR. FERGUSON: It's in evidence, Judge, I think.

THE COURT: Is it? Okay. I do not --

MR. SCHAR: In the transcript.

MR. FERGUSON: Yeah, it's in the transcript that

Mr. Cohen was who Mr. Ashqar consulted while he was in the

grand jury for his appearance in Chicago.

THE COURT: Okay.

Yes?

MR. MOFFITT: The fact that he chose Mr. Kennedy, is

that not a fact? On the fact that he chose me, is that not --

is that not in furtherance? Does that show that he's not a

part of the conspiracy?

I mean, I don't understand this. I mean, he has a

right to choose any lawyer that he wants. If the government

had a problem with Mr. Cohen representing Dr. Ashqar, they

could have filed a motion --

MR. FERGUSON: Well, actually --

MR. MOFFITT: -- to have Mr. --

MR. FERGUSON: Actually, we did file a motion.

THE COURT: They did.

MR. FERGUSON: There were multiple motions both in

the civil contempt proceedings and, then, in the criminal

proceedings at the outset of this case.

MR. DEUTSCH: Judge --

THE COURT: Did you want to add something?

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MR. DEUTSCH: Yes.

Well, I don't know if you are finished.

MR. MOFFITT: Go ahead.

MR. DEUTSCH: This is very troubling to me because

it's trying to tie the conspiracy through what lawyer somebody

chooses. And he tried to do that last week with Ms. Jarad,

who represented her -- some relative.

MR. MOFFITT: Ms. Jarad, yeah.

MR. DEUTSCH: And I don't think we're about trying to

prove criminal activity by the lawyer you choose. Obviously,

these are very unpopular people. There's only a small group

of lawyers that are willing to come forward at that particular

time and represent them. And the fact that there's some

overlap of lawyers is really not credible evidence, and I

think it's prejudicial.

MR. FERGUSON: Judge --

MS. THOMPSON: I think it, also, is an attempt to

prejudice defense counsel here today because we are

representing people, and I think that prejudice is going to

spill over to the jury about current counsel. And if

Mr. Cohen wasn't charged with anything and hasn't been

charged, isn't included in the indictment, then to suggest

that he has been engaged in some kind of criminal activity is

simply an attempt to prejudice everything about this case and

current --

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MR. FERGUSON: We see no prejudice with respect to

counsel in the room right now. No counsel present in this

room has taken the course of representing Mr. Marzook or

representing other -- representing Mr. Elbarasse or any of the

other --

MR. MOFFITT: I represented Sami Al-Arian.

MR. FERGUSON: -- indicted or unindicted

co-conspirators. There isn't the same connection.

This is absolutely -- there has been, I think, raised

in the opening argument by Mr. Moffitt, implications that the

government was -- in its dealings with Mr. Ashqar back in the

early 1990s -- had made statements to Mr. Ashqar to try to

encourage certain actions on his part that included the type

of representation that he got and whether that representation

was going to be somebody who was actually representing the

organization rather than him individually.

The choice to take on as your counsel the individual

who is representing the leader of Hamas is, obviously, a

significant fact.

Judge Mukasey subsequently -- in his order in which

he ultimately released Mr. Elbarasse after eight months of

incarceration, having determined that no -- that further

incarceration would not have a coercive effect -- made

specific note of the fact in the public record that his choice

of counsel was significant in this matter. And the fact that

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Karas -

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he was being represented by the political leader of Hamas at

that time actually factored into Judge Mukasey's decision to

release him because it was indicative to Judge Mukasey of the

fact that this was somebody who really was a high-level figure

in a terrorist organization that was not going to budge from

his position.

THE COURT: I am not going to let you go into Judge

Mukasey's order.

MR. FERGUSON: And I have no intention.

THE COURT: Okay.

The objection is overruled. I will let the witness

answer this question.

I do not think that by answering this there is any

implication that anybody here is doing anything wrong. If you

think an instruction at the end of the case is appropriate, I

will certainly consider one because I do not want that effect.

I do not think anything about this particular answer causes

it, but I will consider an instruction later on.

MR. DEUTSCH: Judge, what troubles me is that this is

fuel for closing argument about lawyers and, "He had the same

lawyer and -- " that's what troubles me.

THE COURT: I can take that --

MR. DEUTSCH: Okay.

THE COURT: I understand where you are going; but,

given the Marzook connection -- which is different than the

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Karas - direct

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objection I sustained that you made the other day -- I will

allow this.

(Proceedings had in open court:)

THE COURT: The objection is overruled.

Do you want the question read back?

MR. FERGUSON: Please, Judge.

(Whereupon, the record was read by the Court.)

THE COURT: You may answer that.

THE WITNESS: Thank you.

BY THE WITNESS:

A. Yes. Mr. Cohen represented Mr. Abu Marzook in connection

with an extradition proceeding that was also ongoing in the

Southern District of New York.

BY MR. FERGUSON:

Q. Once you explained to Mr. Elbarasse his general rights in

the situation before the grand jury and the nature of your

investigation, did you proceed to pose to him specific

questions?

A. Yes. I think, as with Mr. Ashqar, I began with some

general questions about himself.

Q. And did Mr. Elbarasse answer any of your questions?

A. No, he refused.

Q. And did you nevertheless proceed to ask him questions

about subjects of your investigation at the time?

A. Yes. Later on in the grand jury proceeding, I did, yes.

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Karas - direct

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Q. And he refused in all instances?

A. He did.

MR. FERGUSON: Permission to approach, Judge?

THE COURT: You may.

BY MR. FERGUSON:

Q. Mr. Karas, I'm showing you what's marked Government

Exhibit Elbarasse 4-6-98 Grand Jury Transcript, and ask if you

would take a quick look at that and let us know if you are

familiar with it.

(Document tendered.)

(Brief pause.)

BY THE WITNESS:

A. Yes, I'm familiar with it.

BY MR. FERGUSON:

Q. What is it?

A. This is a transcript of the grand jury proceeding on April

6th, 1998, where Mr. Elbarasse was brought as a witness.

Q. And this was the appearance on April 6th at which you were

present questioning Mr. Elbarasse?

A. That's correct.

Q. In which he refused to answer despite being immunized and

compelled by an order of the court?

A. Yes.

Q. And was this transcript part of the official grand jury

court record utilized and relied upon in further proceedings

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Karas - direct

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related to your investigation?

A. Yes.

Q. And does this document constitute a fair and accurate

transcription of the appearance of Mr. Elbarasse as questioned

by you and others before the grand jury on April 6th of 1998?

A. Yes, to the best of my recollection.

MR. FERGUSON: Judge, I'd move admission of

Government Exhibit Elbarasse 4-6-98 Grand Jury Transcript.

THE COURT: Any objection, Mr. Moffitt?

MR. MOFFITT: No, ma'am.

THE COURT: Mr. Deutsch?

MR. DEUTSCH: No.

THE COURT: So admitted.

(Government Exhibit Elbarasse 4-6-98 Grand Jury

Transcript received in evidence.)

BY MR. FERGUSON:

Q. After Mr. Elbarasse refused to answer your questions to

him, what was the next step that was taken?

A. Well, as I did with Mr. Ashqar, I asked that the

foreperson direct Mr. Elbarasse to answer the questions.

Q. And did the foreperson do that?

A. She did.

Q. And did Mr. Elbarasse change his position?

A. No.

Q. Did you attempt to explain to Mr. Elbarasse at that time

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Karas - direct

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the consequences of his refusal to answer questions?

A. I did.

Q. And what generally did you explain to him?

A. I explained to him -- I think I even read him the statute,

but I explained to him -- the consequences or the possibility

of being held in civil contempt, which could include

imprisonment for up to 18 months or the life of the grand

jury.

Q. And when he continued to refuse, what was the next thing

that occurred?

A. I had asked that the grand jury proceeding be adjourned;

and, myself, Mr. Elbarasse, the foreperson and Mr. Cohen and

maybe a colleague and I, went up to see Judge Mukasey, who had

signed the immunity order.

Q. And what happened at that point in time before Judge

Mukasey?

A. I explained to Judge Mukasey what had happened in the

grand jury proceeding and Judge Mukasey heard from Mr. Cohen,

who was told that Mr. Elbarasse would have refused to testify.

Judge Mukasey advised Mr. Elbarasse of the

possibility of being held in civil contempt and directed that

we all go back to the grand jury to give Mr. Elbarasse another

chance to answer the questions.

Q. And did you all go back to the grand jury?

A. We did.

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Karas - direct

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Q. And when Judge Mukasey advised Mr. Elbarasse as to the

situation, his obligations, was his lawyer present?

A. Oh, yes.

Q. And when you all returned to the grand jury room, was

Mr. Elbarasse's lawyer present outside the grand jury room?

A. Yes.

Q. And once back in the grand jury room, what happened?

A. I asked Mr. Elbarasse some more questions and he refused.

He read a statement in refusing.

Q. And after he again refused, what was the next step you

took?

A. We then went back to Judge Mukasey and, through the

foreperson, I asked that Mr. Elbarasse be held in contempt and

that he be imprisoned as part of that contempt.

Q. And did Judge Mukasey rule at that time on your request?

A. Yes. He held Mr. Elbarasse in contempt and instructed

that he be imprisoned for up to 18 months or the life of the

grand jury.

Q. And was he -- and, again, this is the same type of

contempt: Civil contempt?

A. Yes.

Q. And was Mr. Elbarasse jailed on that day?

A. No. At Mr. Cohen's request and with my consent, Judge

Mukasey adjourned it, I believe, for about a week.

Q. And did Mr. Elbarasse ultimately report to prison?

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Karas - cross by Moffitt

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A. Yes.

Q. And where was he civilly confined?

A. At the Metropolitan Correctional Center in Lower

Manhattan.

Q. In approximately December of 1998, did Judge Mukasey enter

an order releasing Mr. Elbarasse from the civil contempt order

after concluding that further incarceration would not coerce

his testimony?

A. Yes.

Q. From the -- and throughout the period April 6th of 1998

into December of 1998, when he's released, did Mr. Elbarasse

have it in his power to terminate the civil contempt and the

incarceration on the civil contempt that was ordered against

him?

A. Yes.

Q. And what was it that he would have needed to do in order

to release himself from the contempt?

A. Testify in the grand jury.

Q. And did he testify at any point in time?

A. He did not.

MR. FERGUSON: I have no further questions.

THE COURT: Cross-examination.

MR. MOFFITT: I am going to go first, your Honor.

THE COURT: Okay.

CROSS-EXAMINATION ON BEHALF OF DEFENDANT ASHQAR

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Karas - cross by Moffitt

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BY MR. MOFFITT:

Q. Good morning, sir.

A. Good morning.

Q. When a witness is subpoenaed before a grand jury, he or

she has several choices to make; isn't that right?

A. That's correct.

Q. And, certainly, among the choices that that witness has to

make is whether or not they testify, correct?

A. That's correct.

Q. Whether they refuse to testify on the basis of their Fifth

Amendment right, correct?

A. That's correct.

Q. Whether they answer the subpoena -- show up -- right?

A. Correct.

Q. All right.

Whether they lie, correct?

You are familiar that people have gone into the grand

juries and lied --

A. I am --

Q. -- correct?

A. -- quite familiar.

Q. Okay.

Or whether they remain mute, correct?

A. Correct.

Q. Now, if they don't answer the subpoena, they're subject to

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Karas - cross by Moffitt

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being chased to get them to answer the subpoena, right?

A. Well, they're subject to the contempt power, yes.

Q. Right.

If they lie, they're subject to a perjury charge,

correct?

A. Correct.

Q. So, there aren't a lot of good choices in that situation,

correct?

A. I don't know what situation you mean. You mean, in

general?

Q. In general.

A. Sure. Testify truthfully.

Q. All right.

But some people sometimes don't testify truthful --

or testify -- or stand mute because other principles in their

mind might be involved; am I right?

A. It's very hard to answer that in the abstract, frankly.

Q. All right.

Well, in this case, you were told -- with respect to

Dr. Ashqar, you were told -- that there were other principles

involved here, correct?

A. That's what was represented, yes.

Q. Now, let me talk to you about the immunity -- the

obtaining of immunity -- for Dr. Ashqar.

Dr. Ashqar, you said, was one of the people that came

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Karas - cross by Moffitt

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up on your radar screen; am I right?

A. That's correct.

Q. Well, when you decided to obtain immunity, you decided

that it was more important to get his testimony than it was to

prosecute him; isn't that right?

A. No, that's not the choice that's necessarily being made.

Q. Well, you know that it would be extremely difficult to

prosecute an individual after you had obtained immunity for

them and they had testified, correct?

A. It's certainly harder because you can't use their

statements, right.

Q. All right.

Well, are you saying to me that you still intended to

prosecute Dr. Ashqar if he had testified before the grand

jury?

A. I don't know what I was gonna do because I didn't know

where the chips were gonna fall.

Q. So, if Dr. Ashqar testified, that might not have avoided

prosecution for him, correct?

A. I certainly could not have promised that.

Q. All right.

But what you're saying today is it would not have

necessarily avoided prosecution for Dr. Ashqar to come in and

testify truthfully, correct? That's what you're saying to me?

A. I'm sorry, can you repeat that?

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Karas - cross by Moffitt

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Q. That it would not have avoided prosecution for Dr. Ashqar

to have come into the grand jury and testified truthfully?

A. That's correct.

Q. All right.

Now, when you made your immunity decision with

respect to Dr. Ashqar, you were aware -- you can answer this

"Yes" or "No" -- that Dr. Ashqar had had several meetings with

the FBI in Oxford, Mississippi?

A. I had been told that there had been meetings in Oxford,

Mississippi, yes.

Q. And you had been told that the meetings in Oxford,

Mississippi, Dr. Ashqar had cooperated in many of those

meetings, weren't you?

A. Well, if you mean by cooperation that he met with law

enforcement officials and answered their questions, yes.

Q. All right.

And you, in fact, even had available to you what

questions were asked and what answers he had given, correct?

A. I did not have a verbatim transcript, no.

Q. Well, you had what is called an FBI 302 to that effect,

didn't you?

A. That's correct.

Q. You also had the ability to get on the telephone and call

the FBI agents that were involved, correct?

A. I had that ability, yes.

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Karas - cross by Moffitt

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Q. You, also, were aware that the head of the Criminal

Division in Oxford, Mississippi, was a participant in the

questioning, correct?

A. That's correct.

Q. Now, you were -- you didn't call anybody with regard to

it, did you?

A. I'm sorry, I didn't call anybody with regard to, what?

Q. His meetings with the FBI and the U.S. Attorney in Oxford,

Mississippi.

A. I did not have any conversations with any of the FBI

agents, but I might have spoken to Mr. Hailman.

Q. Mr. Hailman was who?

A. He was the person you referred to, the person from the

U.S. Attorney's Office in Mississippi.

Q. All right.

And were you aware of certain promises that were made

to Dr. Ashqar as a result of his meetings in Oxford,

Mississippi?

A. Well, when you say "aware," I was not personally aware of

anything that happened down there, no.

Q. So, were you aware or were you not aware?

A. Well, I'm trying to understand what you mean by "aware."

Are you asking whether or not somebody told me that or whether

or not I read that?

Q. I'm asking whether you were conscious of it, of promises

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Karas - cross by Moffitt

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that were made to Dr. Ashqar in Oxford, Mississippi.

A. I don't recall any promises, no.

Q. All right.

Did you read the 302s?

A. I read them many years ago. I haven't read them since

1998.

Q. So, you don't remember what was in them?

A. I do not remember what was in them, that's correct.

Q. Do you recall in a 302 that -- someone suggesting to

Dr. Ashqar that it might be very bad for him if Hamas found

out that he was giving information?

A. I don't remember that from the 302s. I remember that, I

think, from statements that Mr. Ashqar made.

Q. All right.

And you were aware that Dr. Ashqar had made

statements to the FBI?

A. Yes.

Q. All right.

And what he was asked, you had no information at all

that he lied about when he talked to the FBI in Oxford,

Mississippi?

A. You know what? I'd have to see the 302s. I'm not sure I

have that recollection.

Q. You have to see the 302s.

(Brief pause.)

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Karas - cross by Moffitt

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BY MR. MOFFITT:

Q. Was Mr. Hailman the only person that you talked to?

A. Well, we have to get time frame straight here because in

terms of the convers- --

Q. Before Dr. Ashqar was called to your grand jury while you

were dealing with the idea that you were going to get him

immunity.

A. Well, let me -- let me -- try to clarify that. When you

say "before," I had meetings with the FBI agents from

Mississippi, but I don't recall whether or not I spoke to them

about their meetings with Mr. Ashqar.

So, earlier, when I said conversations with them

about those meetings --

Q. Well, I --

A. -- I'm pretty sure I spoke to Mr. Hailman, but I think

that was it.

Q. Let me ask you, you weren't curious about those meetings

that he had with the FBI?

A. Sure.

Q. And, so, you don't know whether or not you had

conversations with the FBI about the meetings they had with

Dr. Ashqar?

A. No, because I had the 302s. So, I mean, my curiosity was

satisfied by reading the 302s.

Q. All right.

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Karas - cross by Moffitt

40

So, you wouldn't have called them and asked whether

they thought he was a good witness, whether he was reporting

to them correctly or anything like that? You wouldn't have

done that?

A. I just don't remember that I spoke -- I may have spoken to

them about it. I don't recall it. I do recall speaking to

Mr. Hailman about it.

Q. Well, this was an important witness for you; was it not?

A. Yes. I'm just saying I don't recall --

Q. Do you --

A. -- eight years ago.

Q. -- recall how many meetings Dr. Ashqar had with the FBI in

Mississippi?

A. I would say -- my recollection is 11 or 12.

Q. Where was Dr. Ashqar living when you issued your subpoena

for him?

A. He was living, I believe, in Northern Virginia.

Q. So, he had moved from Mississippi?

A. That's correct.

Q. Were you aware that in 1993, while the FBI was talking to

Dr. Ashqar, there was a search of his home?

A. Yes, I was aware of that.

Q. Were you aware that while Dr. Ashqar was talking to the

FBI, that his phone was tapped?

MR. FERGUSON: Judge, I think that assumes an

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Karas - cross by Moffitt

41

incorrect fact here, with respect to the time frame of when

the FBI was speaking to Dr. Ashqar.

THE COURT: Rephrase your question.

BY MR. MOFFITT:

Q. When was the first time that you can recall the FBI had a

conversation with Dr. Ashqar?

A. When was the first time I learned about it or when was the

first time they had a conversation.

Q. When they actually had the conversation, as best you can

recollect.

A. You know, I really don't remember that. I know that there

were conversations in, I believe, October of '96. There were

a series of meetings. But I'm not sure that that's the

earliest that they began.

Q. Now, you applied for immunity to the Department -- the

Justice Department; am I right? That was what you did?

A. Yeah. I can't go to a judge until I get the Justice

Department's approval, right.

Q. And you have to get approval, correct?

A. That's correct.

Q. And there was a series of forms that you filled out to get

that approval; am I right?

A. Now that you mention it, yes, that's right.

Q. Do you know where those forms are?

A. No.

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Karas - cross by Moffitt

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Q. Have you seen those forms in your preparation for your

testimony today?

A. No, sir.

Q. All right.

Do you recall some of the things that are on those

forms to fill out?

A. I really don't, no.

Q. Do you recall how long the form is that you've got to fill

out to make this application for immunity?

A. No, I don't.

Q. Do you know where they are today?

A. I don't.

Q. Have my colleagues, Mr. Ferguson or Mr. Schar, showed you

the forms that you filled out during that time?

A. No, sir.

Q. They are both employees of the Justice Department,

correct?

A. As far as I know, yes.

MR. MOFFITT: Your Honor, can we take a break? I

have a few things I need to get.

THE COURT: Sure.

We will take a morning break.

(Jury out.)

THE COURT: We will pick up in about ten, fifteen

minutes.

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(Brief recess.)

THE COURT: Did you find what you needed, Mr.

Moffitt? Are you ready?

MR. MOFFITT: Yes, ma'am.

MR. SPIELFOGEL: Do you need another minute, Bill,

for us to tab this?

MR. MOFFITT: Yeah.

Just one moment.

THE COURT: Okay.

MR. FERGUSON: Before we start, Judge, I just want to

raise an issue with the Court based on Mr. Moffitt's offerings

during the break.

THE COURT: With or without the witness?

MR. FERGUSON: I think it should be without the

witness.

THE COURT: Okay.

(Witness excused from courtroom.)

MR. FERGUSON: Mr. Moffitt has shown me a February

19th, 1998, letter directed to Mr. Karas from -- purporting to

be from -- Michael Kennedy, Mr. Ashqar's lawyer at the time,

stating Mr. Ashqar's intent to refuse to testify,

notwithstanding any immunity order and stating, at great

length, the reasons.

Additionally, Mr. Moffitt has indicated his intention

to present to Mr. Karas a series of reports or FBI 302s dating

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44

back to 1996 and early 1997 out of Mississippi. Exactly what

his objective is at the moment isn't entirely clear.

My concern is that all of this is hearsay and,

really, what this is, is an attempt to get in through this

witness what are hearsay statements.

With respect to the Kennedy letter specifically,

there is a very long offering and: One, it's hearsay because

it's Mr. Kennedy's statements; second of all, to the extent

he's purporting to speak on behalf of Dr. Ashqar, it's double

hearsay. And, so, the content of these and the content of the

302s themselves really should not be elicited through this

witness.

And if Mr. Moffitt wants to call the individuals for

a proper purpose in his case, I think that's appropriate; but,

it's not appropriate to attempt to elicit the substance

through this witness.

THE COURT: What are you -- let us start with the

letter, Mr. Moffitt.

MR. MOFFITT: Well, it was Mr. Ferguson who

introduced the letter into this mix here by suggesting that he

had gotten a letter from Mr. Kennedy, and eliciting from him

that Dr. Ashqar wasn't going to testify and there was other --

there were reasons that were stated in the letter.

The letter is -- I have the letter that was sent.

I intend to show him the letter, ask him is this the letter

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45

that he got from Mr. Kennedy, and move it into evidence.

MR. FERGUSON: Judge --

THE COURT: How do you get around hearsay?

MR. MOFFITT: Well, it's not hearsay. Mr. Kennedy is

the agent for Dr. Ashqar as his lawyer. It's not hearsay. He

has the right to make those representations on behalf of

Dr. Ashqar.

THE COURT: But it is an out-of-court statement being

offered for the truth of the matter, and it is also --

MR. MOFFITT: But it was --

THE COURT: Wait.

Through the agency argument, it is a statement of

your client, who is not a party opponent. How do you get that

in?

MR. MOFFITT: It was already offered for the truth,

except --

THE COURT: No. The statements did not come through.

MR. FERGUSON: Judge, all that --

THE COURT: The fact that a letter came out came --

MR. MOFFITT: But he --

THE COURT: Or that he had a communication from

Mr. Kennedy --

MR. MOFFITT: Well, no, but he specifically elicited

what was in the letter.

MR. FERGUSON: No, Judge.

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THE COURT: No, he did not.

MR. FERGUSON: That's absolutely not right. I

indicated whether he had an understanding as to what

Mr. Ashqar's position was going to be with respect to

testifying once the immunity order was issued. And he said he

did have an understanding from Mr. Kennedy that Mr. Ashqar was

not going to testify.

MR. MOFFITT: And that there were --

MR. FERGUSON: That was it.

MR. MOFFITT: There were other statements made in the

letter. He elicited that from this witness.

THE COURT: But he did not go into the content of

them, coming back to how do you get around hearsay?

MR. MOFFITT: I don't think it's hearsay when a

person who has the right to make a statement on behalf of

another individual makes a statement on behalf of that

individual. It would be admissible if the government wanted

to prove it because of the agency relationship between Mr.

Kennedy and Dr. Ashqar.

THE COURT: But if the government sought to introduce

it, it would be a statement of a party opponent -- which makes

it different -- through an agent. You are not a party --

statements of your client --

MR. MOFFITT: I could --

THE COURT: -- are not party-opponent statements.

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MR. MOFFITT: But, again, I was not going to put the

letter in until the government sought to get information

regarding it. They didn't need to do that. They didn't need

to discuss anything that Mr. Kennedy did. They've accepted it

as a representation of Mr. Kennedy that Dr. Ashqar was not

going to testify. So, they accepted the agency relationship

with respect to the statement that Mr. Ashqar is not going --

Dr. Ashqar wasn't going to testify.

I don't understand how they get a full loaf and we

don't get any. Because they put it in for the purpose of

saying that Dr. Ashqar wasn't going to testify. Now, all I'm

trying to do is put in the entire statement that was made.

MR. FERGUSON: We introduced no loaf whatsoever. And

what this really is, is an offering of -- by Mr. Moffitt's own

representation -- basically, Mr. Ashqar's words and positions

through his agent, and there is no party -- there is no

party-opponent avenue to do it. I think this is entirely

improper, Judge.

THE COURT: You may show him the letter. You can ask

him if that is what he received and if that is what he is

referring to. I will sustain any objection to admitting it

into evidence, or trying to elicit the statements that are in

the letter, because they are hearsay.

MR. MOFFITT: All right.

THE COURT: Now, with respect --

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48

MR. MOFFITT: May I have it marked and made a part of

the record?

THE COURT: You can have it marked and -- it can be

part of the record, but not an exhibit.

MR. MOFFITT: I understand. I understand. I just

want to -- if we have to go to a court of appeals, I want

to --

THE COURT: Certainly. Certainly.

And now the FBI 302s.

MR. MOFFITT: I'm going to show him the FBI 302s.

I'm going to ask him if that refreshes his recollection with

regard to the 302s. And I'm going to ask him not what is

said; I might ask him a question about what an asset is.

THE COURT: Okay.

I will take those questions as they come, then.

MR. MOFFITT: Okay.

THE COURT: I take it you do not -- you are not going

to try to introduce those into evidence, Mr. Moffitt?

(No response.)

THE COURT: Mr. Moffitt?

MR. MOFFITT: I'm sorry.

THE COURT: I take it you are not going to seek to

introduce the 302s into evidence.

MR. MOFFITT: I'm trying to see if there's some way

that I can do that.

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49

(Laughter.)

THE COURT: Mr. Spielfogel, maybe I should ask you.

(Laughter.)

MR. FERGUSON: The 302s or the contents, the

substance of the 302s.

Additionally, Mr. Moffitt's representation that he's

going to ask the witness whether he's familiar with the term

"asset" and what it is would appear to be a predicate question

to a subject that this Court has already ruled on as not

something that's in play here at all. So, I'm not -- I don't

believe it's relevant in this circumstance.

MR. MOFFITT: Well, you ruled that I couldn't use it

in opening statement. But I'm telling you that I can make it

relevant right now.

THE COURT: Okay.

I will hear the questions; and, if there is an

objection, I will take them.

So, back to my 302 question.

MR. MOFFITT: At this point, I'm not going to try to

introduce the whole set of 302s, but I am going to show them

to him.

THE COURT: Okay. That is fine, to refresh

recollection.

Bring in the witness, please, and then the jury.

(Jury in.)

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Karas - direct

50

THE COURT: You may be seated.

Mr. Moffitt, you may continue.

BY MR. MOFFITT:

Q. I'm going to show you what has been marked as Ashqar

Letter.

(Document tendered.)

BY MR. MOFFITT:

Q. Would you examine that, please?

A. Sure.

(Brief pause.)

BY THE WITNESS:

A. Okay.

BY MR. MOFFITT:

Q. Have you seen that letter before?

A. Yes, sir.

Q. Is that the letter that you referred to receiving from

Dr. Ashqar's lawyer?

A. Yes, where he indicated he would not testify.

Q. And who was that lawyer?

A. Mr. Michael Kennedy.

Q. Okay.

And what year was that?

A. February of 1998.

Q. Okay.

I'm going to show you -- I know this is a lot of work

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Karas - direct

51

for you to do, but I'm --

A. That's what I'm here for.

Q. -- I'm going to show you a notebook. The 302s are tabbed

here.

A. Okay.

Q. Would you take a look at those, please?

A. Which ones are they? Are they -- all these are the 302s

or --

Q. No, not the whole notebook. Just these are --

A. Oh, these here. Okay.

Q. These are tabbed.

A. All right.

Q. There's some of them tabbed, not all of them. But they're

all --

A. But you want me to look at --

Q. They're all in the notebook. Okay? All --

A. Do you want me to look at the ones that are tabbed or --

Q. You can look at any 302 in the notebook, but those are

tabbed. Okay?

MR. FERGUSON: Judge, I think we need a clearer

record here.

First of all, we don't have exactly what's being

shown to the witness, although I do have a general

understanding. But what is being stated right now gives no

indication as to what the witness is actually being shown,

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Karas - direct

52

being asked to look at.

MR. MOFFITT: I'm showing him the 302s that were

prepared by the officers -- the FBI agents -- in Mississippi,

along with letters that were prepared by Mr. Hailman of the

U.S. Attorney's Office in Mississippi regarding Dr. Ashqar.

THE COURT: Mr. Moffitt, you have handed him this

collection of documents and asked him to look at it and saying

he can look at any one without a question on the table.

MR. MOFFITT: Okay. I'll ask him a question.

THE COURT: Okay. That would probably -- you can

leave that with him, if you would like. But --

BY MR. MOFFITT:

Q. If you saw the 302s in this case and the correspondence

from Mr. Hailman, would that refresh your recollection,

perhaps, about them?

A. About?

Q. The 302s.

MR. FERGUSON: Objection, Judge. Refresh his

recollection as to, what?

THE COURT: Rephrase your question to show that he

needs --

BY MR. MOFFITT:

Q. Didn't you just --

THE COURT: -- it refreshed.

BY MR. MOFFITT:

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Karas - direct

53

Q. -- testify, sir, that you couldn't remember the nature of

the 302s, what was in the 302s? Didn't you testify to that on

cross-examination?

A. Well, I don't remember if it was -- if what I said was I

don't remember anything that's in the 302s or if there were --

I think the question earlier was about promises.

Q. That's right.

A. Yeah.

And I don't remember whether or not there's anything

about promises in the 302s. That is true, I do not remember

either way.

Q. All right.

Do you remember about how Dr. Ashqar is referred to

in 302s? What FBI acronym is used to refer to Dr. Ashqar?

MR. FERGUSON: I'm going to object as to relevance

and hearsay.

THE COURT: Overruled.

Do you remember, "Yes" or "No," how he is referred

to?

BY THE WITNESS:

A. Actually, I don't.

BY MR. MOFFITT:

Q. Do you have a remembrance of any of the specifics of the

302s?

A. No.

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Karas - direct

54

Q. Do you think if you saw the 302s, it might refresh your

recollection?

A. Well --

MR. FERGUSON: Objection.

BY THE WITNESS:

A. -- about, what? I'm not sure about --

BY MR. MOFFITT:

Q. About any promises made to Dr. Ashqar, the way Dr. Ashqar

is referred to in the 302s.

Do you --

A. In terms of, for example, how he's referred to, that --

sure, that might refresh my recollection.

Q. All right.

How about the promises?

A. Sure. I'm happy to look at them to see if it refreshes my

recollection. I just don't remember either way.

MR. FERGUSON: Judge, I don't understand the point of

refreshing the recollection here, because the content and the

substance is hearsay.

THE COURT: Mr. Moffitt?

MR. MOFFITT: When he decided to make a decision

about whether to seek information concerning Dr. Ashqar's

immunity, he was aware of these 302s; and, I would suggest

that the information in the 302s were part of his

decision-making process in deciding whether to seek immunity.

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Karas - direct

55

MR. FERGUSON: Judge, that's Mr. Moffitt's

suggestion. The witness hasn't been asked any questions that

would establish that in the first instance.

MR. MOFFITT: Well, ask him --

THE COURT: I will overrule the last objection to the

question, "Would this refresh your recollection?"

Ask your next question.

And if there is an objection, you can raise it.

MR. MOFFITT: All right.

BY MR. MOFFITT:

Q. When you were making an immunity decision regarding --

when you make an immunity decision regarding anybody, you want

as much information as you possibly can get, don't you?

A. Yes.

Q. And it would be important to know what Dr. Ashqar said to

the FBI agents in Mississippi, and whether he spoke to the FBI

agents in Mississippi, in making your immunity decision?

A. Well, I would want to know what he said, but I don't know

that the decision hinged on that.

Q. I'm not asking you did it hinge. I didn't use the word

"hinge," did I?

I asked, wasn't it important to know? That's what I

asked.

A. It was -- well, as I said earlier, it's important to know

anything that I can get by way of information, sure.

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Karas - direct

56

Q. Do you know whether you included the 302s in your

submission to the Department of Justice with respect to your

immunity -- your attempt to get immunity -- for Dr. Ashqar?

A. I don't remember what I sent to the Justice Department.

Q. Might it refresh your recollection that you sent the 302s

to the Justice Department if you looked at them?

A. No, that wouldn't help me.

Q. Would you normally send 302s to the Justice Department,

when you request immunity for a witness --

A. No.

Q. -- of interviews that they had previously?

A. No.

Q. You testified you, at least, were aware that there were

numerous meetings with the FBI in Mississippi, correct?

A. That's what I was led to believe, yes.

Q. Well, you don't think the FBI misled you?

A. No, but I -- I just want to make clear I did not attend

any such meetings. So, I either knew about them because

people told me or because I read reports.

Q. Normally when you read an FBI 302 as an assistant U.S.

attorney, you didn't contest the fact that there had been a

meeting with somebody and that the FBI had written down what

they thought was said at the meeting, did you?

A. That's correct. Normally, I would not contest it.

Q. And you didn't do it in this case, did you?

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Karas - direct

57

A. No, I didn't -- I didn't -- doubt that they had meetings.

I'm just trying to make clear that I was not at them. That's

my only point.

Q. Okay. Let's concede that you were not at them.

Now, you said something earlier about not -- we

talked about prosecuting people that you got immunity for,

correct? Remember we spoke --

A. I remember we talked about that topic, yes.

Q. All right.

Can you recall how many people you prosecuted that

you got immunity for?

A. Well, how many people I prosecuted --

Q. That you --

A. That I charged?

MR. FERGUSON: Judge --

BY MR. MOFFITT:

Q. That you pro- --

THE COURT: Wait, wait, wait. There is an objection.

MR. FERGUSON: Is this with respect to people who

testified under the immunity or simply immunity generally, in

which case this is a hopelessly open question?

THE COURT: Yes, the question is vague.

Ask another question.

Sustained.

BY MR. MOFFITT:

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Karas - direct

58

Q. How many people that testified, that you got immunity for,

did you prosecute?

A. Well, what do you mean by "prosecute"? I'm not sure I

understand.

Q. Bring a charge based upon not the information that they

said in the grand jury, but a charge that was a part of the

information that they said in the grand jury. Not where you

used their testimony, but where you used other evidence to

prosecute those people after having testified in the grand

jury.

A. Actually charged, zero.

Q. So, Dr. Ashqar, if he had testified, might have been an

exception?

A. He might have been.

Q. Do you recall how many conversations you had with Mr.

Hailman?

A. No.

Q. Did you keep notes anywhere with regard to your grand jury

investigation?

A. Did I keep notes with regard to this grand jury

investigation?

Q. Yes.

A. I might have, yes.

Q. Would you have kept notes of your phone calls with Mr.

Hailman?

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Karas - direct

59

A. I doubt it.

Q. Have you examined your file to see if you have any notes

of a phone call with Mr. Hailman?

A. I haven't seen the file in this case in years; so, no.

Q. So, in your preparation for this case, you never -- you

didn't get a chance to look back at the file?

A. I did not look at my file, no.

MR. MOFFITT: Bear with me, your Honor.

THE COURT: Okay.

(Brief pause.)

BY MR. MOFFITT:

Q. Now, in your -- when Dr. Ashqar was taken into the grand

jury and he refused to testify, he stated in the grand jury

that he was concerned that the Israelis might get this

information and it might be used against him, correct?

A. Correct.

Q. Did you tell him anything with regard to that?

A. At that time?

Q. Yes.

A. I don't believe so, no, not in the grand jury.

Q. So, when he was in the grand jury and in front of the

grand jurors, you never said anything to him about that issue?

A. I -- I -- don't have a recollection of doing it in the

grand jury.

MR. MOFFITT: Do you have the grand jury testimony?

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(Brief pause.)

BY MR. MOFFITT:

Q. I'm going to show you the same grand jury testimony that

my colleague did.

THE COURT: What is the exhibit number or label?

MR. FERGUSON: Government Exhibit Ashqar 2-23-98

Grand Jury Transcript.

(Document tendered.)

BY MR. MOFFITT:

Q. Could you examine it for me?

A. Is there a particular page you want me to look at, sir, or

do you want me to just read the whole thing?

Q. I want you to see if you can find anywhere in there where

you said to Dr. Ashqar -- you responded to his notion that

this information might get in the hands of the Israelis.

A. Okay.

(Brief pause.)

MR. FERGUSON: Judge, I'm going to object as to

relevance; and, if further explanation is desired, I can do it

at sidebar.

THE COURT: Mr. Moffitt?

MR. MOFFITT: I'm happy to let him do it at sidebar.

THE COURT: While the witness is looking, we can have

a sidebar.

(Proceedings had at sidebar:)

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MR. FERGUSON: Judge, I think this line of

questioning -- or at least what I'm anticipating is the line

of questioning, but certainly the one that's on the table

already -- is, basically, an attempt to put out a

nullification argument. Dr. Ashqar, with the representation

of counsel, had the opportunity to fully litigate his reasons

and whether or not contempt was appropriate in the

circumstances and he should have to testify.

This is res judicata; collateral estoppel; thoroughly

ruled on by the court in New York; and, whether or not the --

whether or not this witness offered any explanation as to what

the situation was with the Israelis, that issue, generally,

was addressed by the Court. And I just don't think it's

relevant here except as an attempt at nullification.

MR. MOFFITT: There is a reason that it is relevant

here, and Mr. Ferguson knows exactly why it's relevant here.

THE COURT: Well, tell me, please, because I do not.

MR. FERGUSON: I don't.

MR. MOFFITT: Dr. Ashqar was concerned about the

grand jury leaking information. In this very jurisdiction,

with regard to the HLF investigation, there has been articles

in the newspaper about the leak of grand jury material and the

fact that Judith -- that's part of the motion that we gave you

today -- and the fact that Judith Miller, who was a witness in

this case called by the government, is now being investigated

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for leaking information -- secret government information --

about the HLF investigation.

Dr. Ashqar had no assurances from anybody that this

information was not going to be leaked. And I'm worried --

MR. FERGUSON: First of all -- first of all --time

frame. This is 1998 and his appearance before the grand jury

here in Chicago was in 2003. What Mr. Moffitt is referring to

are -- first of all, with respect to the HLF, if my

recollection is correct on this, this is in the 2005 time

frame that this comes into play, first; and, then, with

respect to Judith Miller, I'm not sure how any of that --

which long post-dates this 1998 appearance -- factors into

Dr. Ashqar's frame of mind.

Regardless, whether or not it was his frame of mind

or not, it has been addressed as not a legal defense and not

-- and did not put him in a defensible position with his

refusal to comply with the court's order. It's not relevant.

THE COURT: I will overrule the objection as to this

particular question.

You are certainly not going down any Judith Miller

questions with this witness. That is not appropriate.

MR. MOFFITT: Depends on what he opens up.

THE COURT: I am -- you are not going down --

MR. FERGUSON: You can't open your own door.

THE COURT: I know.

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You are not going down Judith Miller questions with

this particular witness.

MR. MOFFITT: I am not going to ask him about Judith

Miller. But if he opens up anything about grand juries

leaking, I'm going to go that way.

THE COURT: Well, I will see what the answers to the

questions are; and, if there is an objection --

MR. SCHAR: The only relevance -- and I only briefly

looked at the motion, which we will address later -- but there

has to be some connection between some leak and his

understanding.

THE COURT: Right. Right.

MR. SCHAR: And there's been nothing proffered on

that at all.

THE COURT: I will allow this question to be

answered.

(Proceedings had in open court:)

BY THE WITNESS:

A. Can you tell me what the question is?

BY MR. MOFFITT:

Q. I wanted to know if you had --

MR. MOFFITT: Can you read the question so I do it

exactly the way it's -- I said it?

THE COURT: Sure.

Well, I will give you the last question and answer.

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We may need to go back further.

(Whereupon, the record was read by the Court.)

THE COURT: So, why do you not -- you may want to ask

another question from that.

MR. MOFFITT: Okay. I'd like to have that answered

first.

BY THE WITNESS:

A. Okay. I've reviewed the transcript quickly while you were

at the sidebar and the subject did not come up.

MR. MOFFITT: Would you indulge me for a second?

THE COURT: Yes.

(Brief pause.)

MR. MOFFITT: Your Honor, I have no further

questions.

THE COURT: Mr. Deutsch.

CROSS-EXAMINATION ON BEHALF OF DEFENDANT SALAH

BY MR. DEUTSCH:

Q. Good morning, sir.

A. Good morning, sir.

Q. You testified on direct examination that Mr. Elbarasse and

Dr. Ashqar were given use immunity, correct?

A. Yes, sir.

Q. And you explained to the jury that that meant that what

they said could not be used against them in a federal or state

prosecution, correct?

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A. I don't think I specified federal or state. I just said

in a criminal prosecution.

Q. Criminal prosecution.

And you also said that it could not be used

indirectly. In other words, what they said could not lead you

to other evidence that could be used against them, right?

A. Yes, sir.

Q. But, of course, it's true, is it not, that that -- what

they said could be used against them in a prosecution in

Israel, correct?

A. Well, only if the Israelis are given the information.

Q. Right.

And it, also, could be used to arrest him in Israel,

right?

A. Actually -- and I don't know Israeli law; but, as a

precursor, they would have to get it first.

Q. Well, do you know that, in fact, it could not be used

against him?

A. Like I said, I don't know Israeli law.

Q. Well, what about -- does the immunity that was given to

him by your office protect him from a foreign prosecution?

A. The order that Judge Cote signed and Judge Mukasey signed

says nothing about foreign prosecution.

Q. So, it does not protect him from a foreign prosecution,

correct?

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Karas - cross by Deutsch

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A. Like I said, the order does not say anything about foreign

prosecution.

Q. Well, in your experience as a U.S. attorney -- and I'm

sure you've had other cases in which someone was given

immunity -- that immunity does not protect them from any

foreign prosecution, does it?

MR. FERGUSON: Judge, I'm going to object to

relevance on the same grounds that I articulated at the

sidebar.

MR. DEUTSCH: I don't know -- I don't see where that

has --

THE COURT: Overruled.

You can answer.

BY THE WITNESS:

A. If the question is whether or not, in my experience,

immunity would cover foreign prosecutions, my answer -- my

experience -- would say no, it does not.

BY MR. DEUTSCH:

Q. Okay.

And unless the Israelis had some kind of special law

that you don't know about, it wouldn't protect him from a

prosecution in Israel -- Dr. Ashqar or Mr. Elbarasse --

correct?

MR. FERGUSON: Objection.

THE COURT: Sustained to form.

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BY MR. DEUTSCH:

Q. Did you know at the time that you were seeking information

from Mr. Elbarasse that it was a crime in Israel merely to be

associated with Hamas?

A. I don't know that I knew that at the time, no.

Q. So, would it be true that, in fact, if either person had

any assoc- -- testified about any association with Hamas, they

could be prosecuted by the government of Israel merely based

on mere association?

MR. FERGUSON: Objection.

THE COURT: Sustained.

You are asking him to speculate.

BY MR. DEUTSCH:

Q. Now, in the course of your investigation -- this grand

jury investigation -- you were in touch with Israeli

officials; were you not?

A. We -- the answer is "Yes." We were in touch with Israeli

officials.

Q. And I would take it, from time to time, they shared

information with you and you shared information with them?

A. There was only one series of meetings we had, and there

was some sharing of information, mostly by them.

Q. All right.

And you had no specific rule in the U.S. Attorney's

Office that you could not share information with the Israelis

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Karas - cross by Deutsch

68

if it was appropriate, did you?

A. If it was appropriate.

Q. You didn't have an absolute rule against that, right?

A. I could only share what the law allowed me to share,

that's right.

Q. Okay.

And did you know at the time that there was any

prohibition in your office to share information with the

Israelis?

A. At the time I met with them?

Q. Yeah.

A. There was no prohibition beyond whatever the law

proscribed.

Q. Okay.

Now, are you familiar with the use of military

tribunals by the Israelis in prosecuting Palestinians?

A. No.

Q. At the time you're conducting your grand jury

investigation, were you familiar with the methods of

interrogation used by the Shin Bet or Shaba'k, which is the

Israeli secret police?

A. Well, I'm stuck on the word "familiar." I mean, I

certainly had read -- I had read books, I had read articles

about these methods. So, based on that -- I mean, I had read

things, sure. And I think we had some conversations with

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Karas - cross by Deutsch

69

Israeli officials about, mostly, the use of the statements in

court proceedings, and a little bit on how they're taken.

Q. So, based on what you read, you knew that there were

claims that the Shin Bet systematically used coercive torture

methods on detainees; is that right?

MR. FERGUSON: Object. Beyond the scope.

THE COURT: Sustained.

BY MR. DEUTSCH:

Q. At the time that you were conducting your grand jury

investigation in 1998, were you provided with statements that

were alleged to have been given by Mr. Salah?

A. Provided by the Israelis?

Q. Uh-huh.

A. Well, I think what I -- the answer is I reviewed the

extradition request package that the Israelis had sent as part

of the Abu Marzook extradition. So, in that sense, they were

provided by the Israelis, but it wasn't as if I was the

addressee or anything.

Q. Okay.

So, the Israelis provided these statements alleged to

have been by Mr. Salah in support of their request to

extradite Mr. Marzook, correct?

A. Yes.

Q. And as part of your job, you reviewed those, right?

A. As part of the investigation, I reviewed those, yes.

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Karas - cross by Deutsch

70

Q. Now, as part of the investigation, did you do any

independent investigation into the methods under which those

statements were obtained?

A. Well, what I did was -- I think I mentioned when we had

our meetings with them, I made some inquiries; again, mostly

about how the statements are offered in court proceedings.

But I didn't speak, for example, to any of the individuals who

took any of the statements from Mr. Salah.

Q. Or did any independent investigation as to the methods

that were used on Mr. Salah?

A. Well, by asking them questions, I guess that would be

considered my own independent investigation.

Q. But, of course, you would agree with me that just asking

someone whether or not Mr. Salah was coerced or tortured is

not really an independent investigation, if you're just asking

the Israelis themselves, right?

MR. FERGUSON: Object to form.

THE COURT: Sustained on form.

BY MR. DEUTSCH:

Q. Did you go to Israel and do any independent investigation

as to the methods that were used on Mr. Salah?

MR. FERGUSON: Judge, again, beyond the scope.

THE COURT: Sustained.

BY MR. DEUTSCH:

Q. Now, do you have in front of you Mr. Elbarasse's grand

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Karas - cross by Deutsch

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jury testimony that was admitted into evidence?

A. No, sir, I don't.

Q. Okay. We're going to provide you with a copy.

MR. DEUTSCH: May I approach, Judge?

THE COURT: You may.

MR. DEUTSCH: Okay.

BY MR. DEUTSCH:

Q. I'm going to turn your attention to Page 16.

(Document tendered.)

BY THE WITNESS:

A. Okay.

BY MR. DEUTSCH:

Q. I'm going to ask you whether or not this is what -- part

of what -- Mr. Elbarasse told the grand jury in response to

your request for him to testify in the face of immunity.

You'll find it at the beginning of the first full

paragraph on Page 16.

THE COURT: Do you want to give a line number?

BY THE WITNESS:

A. Is it Line 8?

BY MR. DEUTSCH:

Q. Oh, yeah, Line 8.

A. Okay.

Q. "As a Palestinian and duty-bound citizen of the United

States, I am compelled to make you aware of the injustice that

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Karas - cross by Deutsch

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is furthered by the U.S. government upon this Grand Jury and

the court through this subpoena.

"I cannot and will not, under any circumstances,

testify before this Grand Jury or any other grand jury. This

process seeks to harass, discriminate against and criminalize

innocent people.

"Having committed no crime, I find myself persecuted

because of my religious ethnicity and nationality. I was born

in Gaza City after World War II and before the brutal Israeli

occupation of my homeland.

"Today Gaza is the most densely populated area in the

world with the poorest of living conditions. We Palestinians

seek only to redress wrongs committed and rights usurped?

"As a Muslim, my religion prohibits me from making

any statements that will be used to further the interests of

falsehood and injustice. For me, it is a matter of paradise

or hellfire.

"I will not betray my religious, personal and

political convictions, even if it means my being incarcerated.

"I choose to practice my constitutionally-granted

rights of freedom of religion, speech, assembly and

association and, accordingly, will not testify before this

Grand Jury or any matter -- " and " -- any, no matter what my

punishment, no matter how long my sentence?"

Did Mr. Elbarasse say that before the grand jury?

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Karas - cross by Deutsch

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A. Yeah, that's the -- I recall roughly that statement, yes.

Q. Okay.

Now, you did testify that you already had the

financial documents which showed transfer of money between

Mr. Elbarasse and others, correct?

A. I had documents to that effect, yes.

Q. Yeah.

And you testified that what you wanted was to show

the intent behind the transfer of the money, correct?

A. Yes. That was the principal objective at that point.

Q. And, in fact, that's one of the things that has to be

proven based on a money laundering or any other crime -- what

is the intent of the person transferring the money or

conveying the money -- correct?

A. Well, my focus was on money laundering; so, yes, intent

was important.

Q. Okay.

And we had some testimony -- let me back up.

Your grand jury didn't indict anyone, did they?

A. In connection with this case?

Q. Yes.

A. No. We didn't ask them to.

Q. And we heard testimony last week that the Northern

District of Illinois grand jury -- U.S. Attorney's Office has

a beyond-a-reasonable-doubt standard before they ask for an

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Karas - cross by Deutsch

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indictment. Does the Southern District U.S. Attorney's Office

have the same standard?

A. No, sir.

Q. So, your standard is whether or not there's probable cause

to believe a crime was committed, right?

A. Well, I don't know if the standard's changed; but, at the

time I was doing this investigation, that's correct.

Q. And part of showing probable cause was to show what the

intent of the person that was transferring the money was,

whether he was transferring it for criminal activity or

non-criminal activity; is that fair?

A. That's fair.

Q. Now, that probable cause standard is a lesser standard or

a more easy -- easier -- standard to make out than beyond-areasonable-doubt standard, right?

A. It's less burdensome.

Q. Yeah.

And you need less evidence to show that than you

would to show beyond a reasonable doubt, right?

A. Well, an indictment can be returned on only a finding of

probable cause.

Q. Right.

Which is a lesser standard of proof than beyond a

reasonable doubt, right?

A. Correct.

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Karas - cross by Deutsch

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Q. Okay.

Now, do you recall, as part of your work in

investigating this case, that you became aware of an affidavit

that was filed on behalf of Mr. Marzook by Mr. Salah?

A. I think there were -- there may have been -- there was at

least one, I think --

Q. Right.

A. -- right?

Q. And do you recall that in that affidavit Mr. Salah, in

great detail, enumerated how he had been tortured under --

MR. FERGUSON: Objection.

BY MR. DEUTSCH:

Q. -- Israeli custody?

THE COURT: Sustained. Asking for hearsay.

BY MR. DEUTSCH:

Q. Did you -- in looking at that affidavit, did you -- take

any steps to investigate the matters in that affidavit?

A. Again, other than what I said earlier, which I considered

taking steps -- I mean, I've already answered that.

Q. Okay.

Basically, what you said earlier is you talked to

some Israeli officials about it?

MR. FERGUSON: Judge, I'm going to object. We are

completely beyond the scope --

THE COURT: Sustained.

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Karas - cross by Deutsch

76

MR. FERGUSON: -- of Dr. Ashqar.

BY MR. DEUTSCH:

Q. And you also testified on direct that prior to Mr. Marzook

being detained on immigration charges, you really didn't have

any kind of investigation that was proceeding in the Southern

District; is that fair?

A. The investigation began the day he came to JFK.

Q. Okay.

And that was in July of 1995?

A. Yes, sir.

Q. And Baruch Weiss, is he somebody that worked with you?

A. Yes. He was an assistant U.S. attorney in the same office

as I was.

Q. Okay.

And do you know whether or not he was involved in

either this grand jury or the Marzook case?

A. Mr. Weiss was the senior prosecutor in charge of the

extradition. What happened was the Israeli government filed

the request with, I believe, the State Department; and, it

filtered down to the U.S. Attorney's Office; and, he was the

principal prosecutor in charge of that.

I headed up the other track, which was the criminal

investigation.

Q. And you would consult from time to time about your

parallel efforts?

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Karas - cross by Deutsch

77

A. Sure. I wanted to, for example, look at the documents

that had been sent over.

Q. Did you know that Mr. Weiss made an inquiry of the State

Department consulate office about whether or not Mr. Salah's

claims of torture were consistent throughout his time in

Israeli custody?

MR. FERGUSON: Judge, I'm going to object. Beyond

the scope.

THE COURT: Sustained.

BY MR. DEUTSCH:

Q. Do you know whether or not Mr. Weiss did any investigation

of the claims of Mr. Salah about torture?

MR. FERGUSON: Same objection.

THE COURT: Sustained.

BY MR. DEUTSCH:

Q. Now, when somebody testifies under an immunity grant, the

determination about --

MR. DEUTSCH: Strike that.

BY MR. DEUTSCH:

Q. When somebody testifies under an immunity grant, that

immunity doesn't cover testifying falsely, correct?

A. Correct.

Q. And, in the first instance, it is you or other U.S.

attorneys that decide whether somebody testified falsely or

not, right?

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Karas - cross by Deutsch

78

A. Well, we might make an assessment at the time the person's

testifying, but that doesn't mean that the grand jurors aren't

also making their own assessment --

Q. Right.

A. -- at the time.

Q. But if you make that assessment, you can go ahead and ask

that grand jury to indict somebody for testifying falsely in

front of them?

A. If there's a basis to believe somebody lied under oath,

yes.

Q. So, you have a tremendous amount of power to make an

initial determination whether someone's being truthful or not

in front of the grand jury, correct?

A. Well, as I said, when anybody -- whenever anybody's

testifying, you know, as prosecutors, we would make an

assessment. And if we thought someone was lying, then we

would decide what, if anything, could be done about it.

Q. Right.

And, of course, you would agree that although the

grand jury is in theory an independent body, the prosecutor,

basically, controls to a great extent whether the grand jury

indicts or not?

A. Well, a grand jury can't indict somebody on its own.

Evidence has to be presented and a request to indict has to be

made.

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79

Q. And when you ask a grand jury to return an indictment, in

more cases than not, they will agree and return an indictment,

right?

A. That was my experience, yes.

Q. In fact, how many years were you with the U.S. Attorney's

Office?

A. I was there about 11-and-a-half years.

Q. Did you ever have a situation where you asked a grand jury

to return an indictment and they said "No"?

A. I don't believe so.

Q. And how many times would you say in those 11 years --

well, how many indictments do you think you asked a grand jury

to return in those 11 years?

A. It would be a pure guess to give an exact number. I would

say maybe over a hundred, and I don't know how much more over

a hundred.

Q. And I think you even testified on direct that you had the

financial documents, the financial transactions, but you

needed to put -- if I'm using your words correctly -- meat on

the bones, right?

A. I don't know that I had every financial document, but I

had financial documents.

Q. Right.

A. Yes.

Q. But without proof -- at least proof of probable cause of

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80

the intent of the people involved in transferring the money --

you didn't really have a case, right?

A. I thought we needed somebody to, sort of, give life to the

documents and tell us what this was all about.

Q. And what the intent of the persons were, right?

A. Correct.

MR. DEUTSCH: I have no further questions.

THE COURT: Mr. Ferguson, any redirect?

MR. FERGUSON: Nothing, Judge.

THE COURT: Thank you, sir.

You may step down.

(Witness excused.)

(Whereupon, there were further proceedings which were

not ordered transcribed.)

* * * * *

I certify that the foregoing is a correct excerpt from the

record of proceedings in the above-entitled matter.

 , 2006

Official Court Reporter

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