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1 1 1 2 2 3 3 4 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 175SWARSAME UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA, v.

AHMED ABDULKADIR WARSAME, Defendant. ------------------------------x July 5, 2011 2:45 p.m. Before: HON. COLLEEN McMAHON, District Judge APPEARANCES PREET BHARARA Acting United States Attorney for the Southern District of New York BENJAMIN NAFTALIS, ADAM HICKEY, Assistant United States Attorneys PRIYA CHAUDHRY, ESQ. Attorney for Defendant ALSO PRESENT: SPECIAL AGENT ABASS GOLFREY (FBI) 11 Cr. 559

175SWARSAME MR. NAFTALIS: Good afternoon, Benjamin Naftalis and Adam Hickey for the government. THE COURT: It's afternoon, Mr. Hickey, and you are always in the morning somehow. MR. NAFTALIS: We are joined by Special Agent Abass Golfrey who is with the FBI. MR. CHAUDHRY: Good afternoon, your Honor, Priya Chaudhry for Mr. Warsame, who is present and is seated to my left. THE COURT: Have a seat please. Mr. Naftalis, or Mr. Hickey. MR. NAFTALIS: Yes, your Honor, we are here for presentment and arraignment of the defendant. He was first arrested yesterday, July 4, and appeared in this district early

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this morning about 1, 2 a.m. He is charged in indictment 11 Cr. 559. THE COURT: All right. Mr. O'Neill, will you arraign the defendant please. BY THE CLERK: Q. Mr. Warsame, please stand, sir. Mr. Warsame, the United States Attorney for the Southern District of New York has filed an indictment, 11 Cr. 559, and it charges nine counts. Counts 1 and 2 charge you with violation of Title 18, United States Code, Section 2339(b), conspiracy to provide material support to a foreign terrorist organization and provision and material support to a foreign terrorist organization causing death, Al-Shabaab. Count 3 charges a violation of Title 18, United States Code, Section 924(c), using, carrying and possessing a firearm, machine guns and destructive devices in furtherance of crimes of violence in Counts 1 and 2. Counts 4 and 5 charge you with violating Title 18, United States Code, Section 2339(b), conspiracy to provide material support to a foreign terrorist organization and provision of material support to a foreign terrorist organization, AQAP. Count 6 charges you with a violation of Title 18, United States Code, Section 924(c), using, carrying and possessing firearms, machine guns and destructive devices in furtherance of crimes of violence in Counts 4 and 5. Count 7 charges you with a violation of Title 18, United States Code, Sections 824(p), 844(n), conspiracy to teach and demonstrate the making of explosives. And in Count 8 you are charged with a violation of Title 18, United States Code, Sections 371 and 2339(d), conspiracy to receive military-type training from a foreign terrorist organization. Finally, Count 9, a violation of Title 18, United States Code, Section 2339(d) receipt of military-type training from a foreign terrorist organization. Have you received a copy of that indictment, Mr. Warsame? MR. CHAUDHRY: Your Honor, I have the sealed indictment. I have read it to Mr. Warsame and gone over the charges. We waive the fuller reading of it and enter a plea of not guilty to each charge. THE COURT: Thank you, Ms. Chaudhry. You may be seated, sir. Let me first ask if there is any foreign language issue that we need to deal with here. Ms. Chaudhry? MR. CHAUDHRY: Your Honor, my understanding is that -THE COURT: You may remain seated. MR. CHAUDHRY: I think that Mr. Warsame speaks several languages, including English, fluently. So I do not need an interpreter to speak to him. THE COURT: That is fine. Has Mr. Warsame, who I gather is not a citizen, been advised of his consular rights? MR. CHAUDHRY: Your Honor, I have advised him and at

waive consular identification. COURT: Okay. Naftalis. NAFTALIS: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. 1 I can set forth a discovery plan or I can answer 2 questions that you have. 3 THE COURT: I read the sealed indictment too. It's 4 reasonably informative as these things go. So, yes, let's set 5 forth whatever we need to take care today. 6 MR. NAFTALIS: Okay. 7 Let me go over what the discovery is, your Honor, and 8 proposal for a discovery plan in this case. This case 9 charges -- may I have a moment with Mr. Hickey? 10 THE COURT: Yes. 11 (Pause) 12 MR. NAFTALIS: Your Honor, let me set forth the 13 discovery and a proposed discovery plan that the government has 14 for the court and has briefly discussed, although has not gone 15 over too thoroughly, with defense counsel. 16 The discovery in this case consists principally of 17 electronic media, and by that I mean a computer and hard 18 drives, USB thumb drives, and the like, that were on Mr. 19 Warsame when he was apprehended in mid-April 2011. 20 In addition, there are lab reports and analyses of 21 these items, including explosives analyses for explosive 22 residue. There are handwriting comparison and accompanying 23 reports. There are photographic identifications of the 24 defendant and, lastly, there are the defendant's Mirandized 25 statements to FBI agents which took place over a period of 1 about a week in late June. 2 Your Honor, since the case does charge 3 terrorism-related defenses there is a body of material that is 4 classified. So the government proposes that by the end of the 5 first week of August the government produce all available and 6 unclassified discovery to the defendant and thereafter on a 7 regular rolling basis make additional productions of 8 unclassified materials but also produce as quickly as possible 9 any and all classified materials that it can or seeks clearance 10 to provide. This will entail Ms. Chaudhry going through a 11 background check, and we briefly discussed with her the process 12 to start that. 13 I think that is the bulk of the discovery, your Honor. 14 THE COURT: Okay. 15 First of all, let me do something I probably should 16 have done previously. 17 Mr. Warsame, I am Judge McMahon. I am the judge who 18 has been assigned to this case. And what I wanted to tell you, 19 I know that the agents, or at least I was informed by Mr. 20 Naftalis that the agents gave you certain warnings before they 21 talked to you. That may become an issue later in the case, I 22 don't know. But I want to advise you that you have been 23 accused of some very serious crimes. You have a right to an 24 attorney. You have a right to counsel, and you have a right to 25 have counsel appointed to represent you without any cost to you if you cannot afford an attorney. 2 I know that Ms. Chaudhry has been appointed this

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this time we THE Mr. MR.

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morning from the CJA panel and I assume that whatever paperwork is necessary I will get in due course from Ms. Chaudhry, right? MR. CHAUDHRY: Yes, your Honor. THE COURT: Thank you so much. But I did want to get that warning on the record. Now, I gather since Ms. Chaudhry is going to have to undergo a background check and Mr. O'Neill will also be undergoing a background check, that this is a case that ultimately we are going to have to have some kind of secure precedures for, is that correct? And we will have the rules that Judge Kaplan was subjected to in the Ghailani case? MR. NAFTALIS: Yes, there will be a sealed room for your Honor and the government to review any and all classified materials. THE COURT: It's premature to discuss all the details of that now but I wanted to make sure that that was the case that we are looking to. We know that is in the future and we can hopefully expedite the clearance process of both counsel. Ms. Chaudhry, I know you are even newer at this than I am apparently by 15 or 20 minutes. What, if anything, do you need to have me deal with today? MR. CHAUDHRY: Nothing at this time, your Honor. The government has proven very helpful in providing a lot of information. THE COURT: Okay, fine. I was presented with a draft of an order that Mr. Naftalis I gather or Mr. Hickey -- hello, Mr. Hickey. MR. HICKEY: Good afternoon, your Honor. THE COURT: I gather there is no request pending at the present time? MR. HICKEY: I do move pursuant to the rules for sealing, and on the government's behalf I want to be candid with the court that this is a fairly fast-moving situation. The basis for sealing that exists now may change so even now I am asking the court to seal as laid out in that affirmative proposed order but we may be coming back to the court fairly quickly. THE COURT: To unseal fairly quickly. MR. HICKEY: Correct. THE COURT: I am very happy to see the six-month review proviso here because I am always a little reluctant, and without that I would be very reluctant to sign at least that part of the order that talks about if the defendant is ever sentenced maybe then we would unseal the file. I think I need to be more on top of it than that. I hear what you are saying about fast moving. I have signed this order. It is like all sealing orders subject to vacatur if the circumstances warrant. MR. HICKEY: Understood, your Honor. If I may, one more thing. THE COURT: What that would mean, of course, is that this transcript is under seal and it will not be filed. It will not be docketed. The government can have a copy. Ms. Chaudhry can have a copy. The court can have a copy. MR. HICKEY: If I may, your Honor, we have prepared a letter. It doesn't add much, but it fills out the materials that constitute discovery in this case just so we have it in

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writing. With the court's permission I will hand it up to Mr. O'Neill and defense counsel. We ask, also, that this letter be filed under seal under the same terms as the rest of this proceeding. THE COURT: And that is ordered. Until I unseal, everything in this proceeding is sealed. MR. HICKEY: Thank you, your Honor. THE COURT: For your information, the sealed material in chambers will be retained in Mr. O'Neill's office where we have a secure file. Okay. Anything else that we need to do today? MR. NAFTALIS: The only other thing, your Honor, would be perhaps setting a next conference and the government -- I have not talked to Ms. Chaudhry but we propose coming back in 6 weeks to update the court on where things are. THE COURT: Could I ask that it be toward the end of but not on Friday of the first week in August? Beyond that we get into my vacation. MR. HICKEY: That would that be the 24th and 26th? THE COURT: Actually the 3rd or the 4th of August. MR. HICKEY: It's certainly fine with the government. MR. CHAUDHRY: I will be out on vacation until the 4th of August. THE COURT: I will be on a plane on the 5th of August, although I can change that and we can change that later in the day. MR. HICKEY: The week of the 8th? THE COURT: The week of the 8th I am going to be gone. Also, the week of the 15th to the 29th. MR. HICKEY: So earlier. THE COURT: The problem is Ms. Chaudhry will be gone. We are running into a problem. Can we do this right after Labor Day? Is that acceptable? MR. CHAUDHRY: That is fine. MR. NAFTALIS: Fine with the government, your Honor. THE COURT: There is a reason why I am reluctant to commit to a particular date during the month of August to return, though I do hope to return sometime during the month of August. All right. So we will be here on September 6 I believe. MR. HICKEY: Would you consider making it the 8th? Because my vacation ends -THE COURT: Of course, Mr. Hickey. For you anything. September 8 at 2 o'clock. Time excluded until then in the interest of justice because the defendant's interest in a speedy trial is outweighed by the need for his attorney to review discovery, receive and review discovery from the government, to obtain necessary clearances so that she can review and review with the defendant classified discovery and, frankly, so that the court's senior law clerk can get the same clearance. Okay, do we have anything else to do today? MR. NAFTALIS: No, your Honor. Thank you. THE COURT: Thank you very much. MR. CHAUDHRY: Thank you, your Honor. THE COURT: We are back on the record, the sealed

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record. point. remanded.

MR. NAFTALIS:

As always Mr. Hickey makes an excellent

THE COURT: Mr. Hickey always makes excellent points. MR. NAFTALIS: If the court can order the defendant

THE COURT: That would be useful. That is usually done before I see the defendants, but I do order the defendant remanded. Mr. Hickey, is there anything else that the magistrate judge normally does besides remand and advise the defendant of his right to counsel and make sure that consular rights are taken care of in the case of a defendant who is not a citizen of the United States that I haven't done, because I rarely do this sort of thing? MR. HICKEY: I think that covers it, your Honor. THE COURT: Thank you so much, Mr. Hickey. Okay. See you in September.