I posted about it earlier, did you miss it?
Day 21: 12/8/04
Sutherland-cross-Berke
4446
Q And sir, the issues of Middle Eastern charities -- when
you say a point in the interview, the point after you were
questioning him about his excess cash in Lebanon;
correct?
A Yes.
Q And sir, the issue of Middle Eastern charities being
investigated by the FBI, that was in the news in May of '02,
in April of '02, wasn't it?
A I don't know what was in the news at that time.
Q Sir, let me show you, if you want to look at --
MR. BREEN: Objection. Scope.
THE COURT: Sustained.
Q Well, sir, let me ask you this. You knew that -- you
had seen a fair amount of Mr. Elgindy's chat discussions;
correct?
A Yes, I have.
Q Sir, you were aware that there was chat discussions
about Mr. Elgindy having given money to a company called
Mercy International, and there being two Mercy
Internationals, including one that was being investigated for
being an improper Middle Eastern charity, correct?
MR. BREEN: Objection.
THE COURT: What is the objection, scope?
MR. BREEN: The objection is scope. Form. 403.
THE COURT: Are you familiar with this chat that
Burton H. Sulzer, OCR, CRR, CSR, CM
Sutherland-cross-Berke
4447
Mr. Berke alludes to?
THE WITNESS: No, I am not.
THE COURT: All right. Move on.
Q Sir, you learned as the case agent that Mr. Elgindy had
given money to a charity called Mercy International that was
a U.S. approved charity and was not in any way involved in
anything improper, correct?
MR. BREEN: Objection. Scope.
THE COURT: Please, Mr. Breen, just sit down.
Overruled.
Did you know anything about this?
THE WITNESS: I knew it was part of the
investigation of Mr. Elgindy at the time.
THE COURT: Okay.
Q And you knew that the Mercy International that
Mr. Elgindy had given money to was the U.S. approved Mercy
International; correct?
A No, I did not.
Q Do you recall that there were documents seized from
Mr. Elgindy, when he was arrested, regarding the Mercy
International that was U.S. approved?
THE COURT: Beyond the scope. Next question.
Q Sir, you knew that there had been -- did you know, sir,
before the interview, that this issue about the -- whether
the Mercy that Mr. Elgindy had given money to and discussed,
Burton H. Sulzer, OCR, CRR, CSR, CM
Sutherland-cross-Berke
4448
whether that was the other Mercy that had been in the news
about being a Mercy that may be involved in somehow giving
money to terrorists, some sort of terrorism related
individuals?
A I believe -- I wasn't involved in this part of the
investigation, but I believe that part of that was being
investigated with relation to that, yes.
Q So that was something Mr. Elgindy knew about because
that was something that had been raised with him prior to his
arrest on May 21, 2002; correct?
A I believe not.
THE COURT: How would he know that?
Q Maybe I misunderstood your answer. I apologize. Did
you understand that the issues regarding Mercy -- well, sir,
let me ask you this. The FBI had been monitoring
Mr. Elgindy's Website since December of 2001, correct?
MR. BREEN: Objection. Scope.
THE COURT: Sustained. It goes well beyond the
scope of this man's direct testimony.
Q Well, sir, were you reviewing chat discussions involving
Mr. Elgindy prior to his arrest?
MR. BREEN: Objection. Scope.
THE COURT: Same ruling.
MR. BERKE: If I could try once more.
Q Sir, do you recall every seeing chat discussions prior
Burton H. Sulzer, OCR, CRR, CSR, CM
Sutherland-cross-Berke
4449 to Mr. Elgindy's arrest regarding these Mercy entities?
MR. BREEN: Objection. Scope.
THE COURT: Let's get an answer to that question
and then we'll call it a day.
Do you recall any of that?
THE WITNESS: Not with regard to Mercy
International.
THE COURT: All right. Thank you very much.
Ladies and gentlemen, we'll resume at 9:30 in the morning.
Don't discuss the case.
(Jury leaves.)
(Continued next page.)
Burton H. Sulzer, OCR, CRR, CSR, CM
Sutherland-cross-Berke
4450
THE COURT: You can step down.
(Witness leaves.)
THE COURT: Yes. What is it?
MR. LEVINE: Your Honor, as I think this
cross-examination is demonstrating, the defense is going to
seek to try to discredit different portions --
THE COURT: You better be careful, Mr. Berke. You
are teeter-tottering on the edge of disaster.
MR. LEVINE: Your Honor, I don't think that
there's anymore tetter-tottering on the edge.
We have been required by this court, for all the
reasons the court stated, to not put in information about
this investigation from different sources that have not come
in that are very compelling.
Mr. Berke is now going through, talking about
essentially how Mr. Elgindy must have known about this and
there are other sources, even suggesting through this
witness, frankly, without any basis, that he must have been
talking about Mercy International, suggesting to the jury
that the information that they heard about some of it in
these files was public and therefore this is all much ado
about nothing. As the court knows, we have a lot of
compelling evidence that has been precluded on this very
point. It goes to the core of our case. You have instructed
us before that if the door is open --(Continued next page)
Burton H. Sulzer, OCR, CRR, CSR, CM
4451
MR. BERKE: If I could address there issue, I feel
very strongly, this question, what the government has said
the way they're going to show Mr. Elgindy was tipped off
about the investigation --
THE COURT: I understand.
MR. BERKE: You know that. Mercy International,
chat log in September of '01, the government has, in the
chat, Mr. Elgindy is saying they're all these accusations
about Mercy, there's the good Mercy, that's me, painting
everybody with the terrorism brush. To think the money I
gave in this good organization, it's in chat. There's other
discussion. It's so much not an accurate allegation by the
government we believe to say his statement about Middle
Eastern charities shows he was tipped off about the
investigation and we can prove it. I don't think there's
anything inconsistent.
THE COURT: Prove it with the right witness,
that's the problem. You'll have ample opportunity to put
whatever evidence about Mercy being a chat, in the public,
press release, newspaper accounts to do what you want to do,
to argue to the to the jury, no secret, Mercy International,
that's what prompted Mr. Elgindy to make that spontaneous
utterance.
The theory, much to do about nothing. You're
getting on dangerous ground.
SS, OCR, CSR, CM, CRR
4452
MR. BERKE: The theory about Mercy International,
it was much ado about nothing. I believe the FBI's own files
show that Mercy was much ado about nothing. Mr. Tyson came
in, I believe. We cited a lot of things in the brief. This
issue, it's necessary to show what Mercy was about because
they're suggesting it reflects guilty conscious about being
tipped off. That's why he volunteers. I don't believe
that's consistent with the facts.
Again, to come back to the issues we were
discussing on side bar, I want to be very clear. We don't
dispute, won't dispute Agent Royer gave all this information
to Derrick Cleveland. It's the next leg.
THE COURT: That's why it takes on some
significance.
MR. BERKE: It's the next part --
THE COURT: You have an explanation, want to try
to sell the jury. The government has an explanation they
want to address. Be careful.
MR. BERKE: The issue is this does not go to
whether or not Royer told Cleveland. The only issue is
whether Royer told Mr. Elgindy.
THE COURT: Of course.
MR. BERKE: That's the point we dispute. I don't
think any of this other stuff, because I think it's clear and
I think it's clear from both Mr. Gerzog and myself, we don't
SS, OCR, CSR, CM, CRR
4453 challenge that and I don't believe that aspect of it was
challenged or will be.
MR. BREEN: One point. Let me be perfectly clear.
THE COURT: Everybody wants to be clear, if only.
MR. BREEN: This idea there's a good and bad
Mercy, incorrect. If they want to open the door on this,
that's not something they want to do. I want to put them on
notice.
MR. BERKE: That is the record we have before us.
When I say the record we have before us, there's chat.
There's discussion from Mr. Elgindy about this, what he
believed about Mercy. We also have references in the
see confidential, not planning on putting any evidence what
Mercy is. We do have evidence --
THE COURT: You're testifying in the form of
questions you're putting to the witness about U.S. approved
charities.
MR. BERKE: It is.
THE COURT: You're not a witness, Mr. Berke. I
perhaps should have told you that about seven weeks ago.
MR. BERKE: I know. My reason for thinking this
witness knew is because he does say they were monitoring the
site, reviewing this stuff, reviewing all the logs. He was a
case agent for a long time. I would have expected on this
issue he would have seen this.
SS, OCR, CSR, CM, CRR
4454
THE COURT: Testified about a statement he took of
your client, period, end of discussion.
MR. BERKE: If we have to recall we will.
I have another issue, the photos he took of the
interview which we have not received.
MR. LEVINE: October 2nd we had a discussion about
this, informed the defense we were not going to provide notes
on anything where we have 302s. It covered the field. Never
heard a single word about it since. To raise it in front of
the jury, it's inappropriate, cheap shot.
MR. BERKE: We did request of the government --
a post-arrest statement is different than a witness interview
of 302. Post-arrest statement is obviously very important
evidence that's being admitted in and of itself, not simply
as impeachment, admitted specifically for the statement of
the defendant for the truth. If they're notes I assume we
did not receive notes. I don't know other than that request,
I don't know that we have specifically asked for notes. I
haven't received notes. I know it's often the practice of
the FBI not to maintain notes after they do the 302s. If
there are notes, we have a right to get it.
MR. LEVINE: We discussed it, sent them a letter.
There was an understanding up to this moment. We believe the
302s represent the material in these interviews. We don't
think we should be required to produce anything else.
SS, OCR, CSR, CM, CRR
4455
MR. BERKE: Never anything about the post-arrest
statements.
MR. TIRSCHWELL: The debate is whether it's a
statement when an agent interviews a witness. Is it the
witness' statement? That's the debate. I don't think
there's any debate when an agent takes notes, testifies about
what's in his own notes. His own notes are his own
statements.
MR. BREEN: I'll check with the FBI.
THE COURT: You would be foolish not to turn them
over. What are you afraid of?
MR. LEVINE: Not afraid of anything. It's just
raised in this way. They've known it. To raise it in front
of the jury, it's not appropriate.
MR. BREEN: To turn to me, ask for the notes in
front of the jury?
MR. BERKE: I expected his answer to be there were
no notes because I didn't have notes.
THE COURT: Then he spoke privately to you, asked
to see me at the side bar.
MR. BREEN: Loud enough for the jury to hear.
MR. LEVINE: This other point, if we're going to
have questions, why is it at this point that the defense is
able to -- cherry pick Mercy which we're not going to join
issue on what he knew about this investigation, the question
SS, OCR, CSR, CM, CRR
4456
the jury is going to ask themselves what information could
have been communicated, how serious it was. There were so
many things we're not able to tell the jury. Now we have to
have a witness challenged on Mr. Berke says much ado about
nothing, but we can't respond by saying what to do about
something, no reason given this line the full scope of this
investigation didn't come out.
THE COURT: Other than the contributing to
charities, is this any other indication, affirmative
indication from Mr. Elgindy's post-arrest statement or
anything else he received any more details about those
reports? You can draw an inference he did but is there
anything more specific than that?
MR. LEVINE: Post-arrest statement?
THE COURT: Or any other indication in the
evidence.
MR. LEVINE: Mr. Cleveland testified at a minimum
Mr. Royer said he provided information about the
investigation to Mr. Elgindy. You can communicate in two or
three seconds virtually the whole investigation.
THE COURT: Two, three seconds? Mr. Berke could
give you the Encyclopedia Britannica in three seconds.
MR. BREEN: In addition we have a lot of testimony
as to the way Mr. Elgindy was acting at the point in time
when it was communicated to him about this investigation.
We SS, OCR, CSR, CM, CRR
4457
have Mr. Elgindy say to Mr. Royer in front of Mr. Cleveland
what happens if I just flee, not just go, flee to Lebanon
plus all the other wire transfers, behavior, everything else.
THE COURT: I've sounded my warning siren. I have
a conference call in two minutes.
MR. TIRSCHWELL: Very quick, are you going to
entertain this argument when the government rests on Rule 29?
THE COURT: We'll do it in a somewhat abbreviated
fashion. I'm sure if there's a need to revisit the question
of sufficiency, we'll do it in a more extended, detailed way.
Your charges, any revisions?
MR. BREEN: One revision.
THE COURT: Any deletion?
MR. LEVINE: Yes.
THE COURT: I thought there might be one or two or
three. Good night.
(Whereupon this matter concluded for this date.)
SS, OCR, CSR, CM, CRR
Message 21739331 |
