6 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 60 of the trial, June 6, 2001.

See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm

                                                                    7273

       1   UNITED STATES DISTRICT COURT
           SOUTHERN DISTRICT OF NEW YORK
       2   ------------------------------x

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

       7   ------------------------------x

       8
                                                   New York, N.Y.
       9                                           June 6, 2001
                                                   9:55 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15                            APPEARANCES

      16   MARY JO WHITE
                United States Attorney for the
      17        Southern District of New York
           BY:  PATRICK FITZGERALD
      18        MICHAEL GARCIA
                Assistant United States Attorneys
      19

      20
           FREDRICK H. COHN
      21   DAVID P. BAUGH
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
      22
           DAVID RUHNKE
      23        Attorneys for defendant Khalfan Khamis Mohamed

      24

      25

                                                                    7274

       1            (In open court)

       2            THE COURT:  Good morning.

       3            The jury arrived at 9:15 this morning and the

       4   exhibits that they requested yesterday, which have been

       5   reviewed by counsel, were sent in at that time.

       6            The Court received by hand delivery this morning a

       7   letter dated June 6th from Mr. Ruhnke, moving on behalf of

       8   Khalfan Khamis Mohamed that the present jury be discharged at

       9   the conclusion of its penalty phase deliberations, and that a

      10   new jury be selected to hear the penalty proceedings regarding

      11   Khalfan Khamis Mohamed.

      12            Mr. Ruhnke, this motion is made prior to any verdict

      13   by this jury, and I take it this is independent of any verdict

      14   by this jury.

      15            MR. RUHNKE:  That's right.  The timing was, in

      16   essence, deliberate, and we understand that --

      17            THE COURT:  So that if this jury determines that the

      18   death penalty should not be imposed, you would still have this

      19   jury discharged?

      20            MR. RUHNKE:  Yes, your Honor.

      21            THE COURT:  And is there anything you want to add to

      22   your letter?

      23            MR. RUHNKE:  The only thing I would add is this.

      24   Someone reading this letter this morning said, "Is this

      25   further evidence of making the observation that no good deed

                                                                    7275

       1   goes unpunished?" in the sense that your Honor had ordered

       2   separate penalty phases on my urging and that of co-counsel.

       3            As I stated in the letter, however, given the

       4   powerful nature of the victim impact evidence in this case

       5   that the jury has heard, had we had a joint penalty trial, we

       6   would have moved for a severance at that point on the theory

       7   that we don't think it is possible for a jury to

       8   compartmentalize that evidence as to Mr. al-'Owhali and give

       9   it no consideration as to Mr. Khalfan Mohamed.

      10            THE COURT:  I have not had any occasion to regret the

      11   decision to sever the trial, because I do think that the

      12   defendants are quite different and that positions, I think,

      13   that are taken on behalf of Mr. al-'Owhali may or may not be

      14   those invoked on behalf of K.K. Mohamed.

      15            Is that a note from the jury?

      16            THE COURT:  A note from the jury says.  "Because the

      17   book 'Teach Yourself Islam' makes references to the Koran, the

      18   jury requests a copy of the Koran in English, if possible.

      19   Thank you."

      20            Well, it is possible, but neither party has

      21   introduced the Koran, and the Koran in English is not a very

      22   simple document to read and it requires a great deal of

      23   exposition.

      24            What does counsel view as to the response?

      25            MR. FITZGERALD:  Your Honor, the government's view

                                                                    7276

       1   would be that the Koran should not be sent into the jury, both

       2   it was not received as information at this proceeding and the

       3   danger of confusing the jury and leading them astray is great.

       4            The purpose of the book "Teaching Islam" or

       5   "Understanding Islam" was to make those concepts in the Koran

       6   that are relevant plain to the jury, and in fact, they

       7   received more than was technically admitted at this phase and

       8   I think that is the most that should happen.  And to the

       9   extent there are issues relevant to what they need to know,

      10   they are set forth in that book.

      11            MR. BAUGH:  I would point out, your Honor, if it's

      12   viewed as reference material, such as if the jury would ask

      13   for a dictionary or something like that, something to help

      14   them understand something else, then I assume -- it's never

      15   come up directly -- but it would be sent back.

      16            THE COURT:  I'm not so sure that's a correct

      17   assumption.

      18            MR. BAUGH:  No no.

      19            THE COURT:  In a trial I'm not sure that is a correct

      20   assumption, and obviously we're not at a trial, we're at a

      21   hearing for information.  But the difference is that a

      22   dictionary is written, an English dictionary is written for an

      23   English-speaking reader and is directed to that reader.  It

      24   itself is explanatory.

      25            The Koran is a far more complex and difficult

                                                                    7277

       1   document, and there are many versions and many scholars.  And

       2   the version of the Koran that I have been reading has three

       3   lines of text and footnotes for the balance of the page on

       4   virtually every page.

       5            If there is no objection, I'm going to tell them that

       6   it is not available to them.

       7            MR. BAUGH:  No objection from the defense.

       8            MR. FITZGERALD:  None here.

       9            THE COURT:  And I think without extensive exposition,

      10   simply say --

      11            MR. COHN:  If I may suggest, your Honor, that you say

      12   that, so that we don't appear to be consciously depriving them

      13   of an accurate state of the law, that we may not send back

      14   anything that is not in evidence.

      15            THE COURT:  Except that we sent the full text of the

      16   book.

      17            MR. COHN:  Pardon?

      18            THE COURT:  Except that we sent the full text of the

      19   book.

      20            We are not able to.  How about "we are not able to

      21   grant you..."

      22            MR. COHN:  Fine, your Honor.

      23            And while we're doing that, there was a typographical

      24   error in the text of the charge which I caught, and so that

      25   the oral version was accurate.  But since they don't have the

                                                                    7278

       1   oral version, it's on page 22, the last line, the first full

       2   paragraph reads, "that life in prison without the possibility

       3   of release is the a appropriate," and it should read "is the

       4   more appropriate."

       5            MR. COHN:  I actually saw notes to that to prevent

       6   problems that have occurred in the past.  I agree that that is

       7   a proper change that should be made.

       8            THE COURT:  Yes.  We'll tell them that.

       9            MR. COHN:  Judge, just for the record while you read

      10   the note, we would waive the presence of your client for that.

      11            THE COURT:  The record will so note.

      12            So the note then reads:  "We are unable to grant your

      13   request for the Koran.

      14            "Please correct a typographical error in the penalty

      15   phase charge so that the last line of the first paragraph of

      16   page 22 reads as follows:  'of release is the more appropriate

      17   punishment than a sentence of death.'"

      18            Very well, that can be given.  The note can be given

      19   to the marshal to be brought in to the jury.

      20            MR. COHN:  As a matter of information, does your

      21   Honor have a Xerox, before we send that in, so that if they

      22   are inadvertently lost by the jurors and, therefore, we don't

      23   have a full record.

      24            THE COURT:  Yes.

      25            Mr. Ruhnke, you were saying that you thought the

                                                                    7279

       1   impact of the testimony of the Kenyan victims --

       2            MR. RUHNKE:  That it would be impossible, virtually

       3   impossible or too difficult to run the risk, given what is at

       4   stake, that a member of the jury or all the members of the

       5   jury or some of the members of the jury would be unable to

       6   follow an instruction from your Honor saying "you may not

       7   consider that evidence in any way as to Khalfan Mohamed."

       8            That's the basis for the motion.  In terms of timing

       9   of the motion, your Honor, we could have waited on it.  We

      10   could have waited to see what the jury does.  We have not done

      11   that.

      12            THE COURT:  Because, of course, if the jury votes

      13   against the death penalty, that would be --

      14            MR. RUHNKE:  That's right.

      15            THE COURT:  That would undermine the basic premise of

      16   your motion.

      17            MR. RUHNKE:  Yes, your Honor.  Yes, it will.  If we

      18   wait until --

      19            THE COURT:  But you are a skilled advocate to say, "I

      20   move for this relief if, but only if, the decision is

      21   adverse."

      22            MR. RUHNKE:  Particularly that the moral thrust of

      23   the motion would have been seriously undercut if we had waited

      24   and a death verdict had been returned, then all of a sudden it

      25   struck us as an epiphany that a jury could not

                                                                    7280

       1   compartmentalize that effort.  So I'm not unaware of those

       2   considerations.

       3            THE COURT:  What is the government's position?

       4            MR. FITZGERALD:  We oppose the application.  I would

       5   note, first of all, that we think the victim impact evidence

       6   that was admitted was properly admitted.  It was not of

       7   excessive scope.

       8            I think in the McVeigh decision they found that the

       9   number of witnesses and the length of the presentation of

      10   victim impact testimony was appropriate.

      11            THE COURT:  I don't think Mr. Ruhnke is challenging

      12   that.  He is saying, regardless of whether it was appropriate

      13   or not, it's something which had an impact on the jury.

      14            MR. FITZGERALD:  And your Honor, in that regard, I

      15   would point out that, first of all, by bifurcating the trial,

      16   nothing could be clearer to this jury, when they come back to

      17   listen to the K.K. Mohamed penalty phase, that it is not

      18   admitted against K.K. Mohamed.  At any time that they would

      19   deliberate, it would likely be about three weeks after they

      20   heard the testimony of the victims from Nairobi.

      21            THE COURT:  Is there going to be victim impact

      22   testimony at the K.K. Mohamed trial?

      23            MR. FITZGERALD:  Yes, your Honor.

      24            THE COURT:  And it will be essentially of the same

      25   nature as that with respect to the Kenyans?

                                                                    7281

       1            MR. FITZGERALD:  Yes, your Honor.  And it will make

       2   it clear, obviously, that that is the victim impact they are

       3   to consider with regard to K.K. Mohamed, and not the victims

       4   of the Nairobi bombing, with which he is not charged and none

       5   of which will be referenced at the penalty phase of K.K.

       6   Mohamed.

       7            MR. RUHNKE:  Your Honor, I would quarrel with the

       8   government's description of the upcoming victim impact

       9   evidence in the K.K. Mohamed penalty phase as it is of the

      10   same nature as has been presented here.  Fortunately, there

      11   were no injuries that even remotely approached the seriousness

      12   of the injuries that occurred in Nairobi.

      13            THE COURT:  People died, right?

      14            MR. RUHNKE:  People died, your Honor, yes.

      15            THE COURT:  And the difference, the quantity is less,

      16   fewer people died?

      17            MR. RUHNKE:  Yes, and fewer people were injured and

      18   the injuries were --

      19            THE COURT:  But the people who were killed and the

      20   families of people killed and the impact on the persons who

      21   were injured in Tanzania is comparable.

      22            MR. RUHNKE:  I agree.  I agree that there will be

      23   victim impact evidence.  I don't agree that it is going to be

      24   comparable, certainly not in the number of witnesses,

      25   certainly not in the kind of injuries.

                                                                    7282

       1            THE COURT:  Other than volume, how is it not going to

       2   be comparable?

       3            MR. RUHNKE:  The nature of injuries of people who

       4   were injured.  There are no people who are blind.  There are

       5   no people in wheelchairs.

       6            THE COURT:  How many people were killed?

       7            MR. FITZGERALD:  Eleven.

       8            THE COURT:  Eleven people.

       9            Anything else you want to tell me?

      10            MR. RUHNKE:  No, your Honor.

      11            THE COURT:  There are a number of factors here.

      12   First of all, the jury selection process in this case was very

      13   painstaking.  It involved 1100 questionnaires being

      14   distributed, 2 weeks of individual voir dire.  It produced a

      15   jury which, as I have already commented, by gender,

      16   socioeconomic status and ethnicity, is a remarkable cross

      17   section of the community.

      18            This jury has demonstrated that it is not discharging

      19   its task as a matter of reflexive response, but has

      20   painstakingly reviewed the evidence as to guilt.  The two

      21   questions we have already received from the jury with respect

      22   to the Al-'Owhali penalty phase would seem to suggest that it

      23   will approach its task here as conscientiously and

      24   deliberatively as it did in the guilt phase, and as one would

      25   hope that it would do here.

                                                                    7283

       1            To discharge this jury would not only require the

       2   additional time, effort of selecting a new jury, but would

       3   require the presentation to a newly impaneled jury of all that

       4   the present jury has already learned.  Indeed, insofar as

       5   victim impact is concerned, the government indicates that it

       6   plans to call, as it has a right to do, witnesses with respect

       7   to the victim impact of the Tanzania bombing.

       8            The fact that 11 people were killed rather than over

       9   200 is something which this jury will know, and the

      10   significance of that numerical disparity is something which

      11   can be argued to the jury.

      12            The motion is denied.  Thank you.

      13            MR. COHN:  Your Honor, may Mr. Baugh and I see you in

      14   an ex parte conversation?  Your Honor will then make a

      15   judgment as to whether or not to disclose it to the

      16   government.  Something that's come up that has nothing to do

      17   with anything that you heard in the courtroom.  I just think

      18   it's appropriate to put it on the record.

      19            THE COURT:  You want something put --

      20            MR. COHN:  On the record.

      21            THE COURT:  On the record, but ex parte.

      22            All right.  Is Mr. Baugh here?

      23            MR. BAUGH:  Yes, sir.

      24            (Pages 7284 through 7285 filed under seal)

      25            (Recess pending verdict)

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