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

This is the transcript of Day 51 of the trial, May 22, 2001.

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

                                                                    6419

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

       3   UNITED STATES OF AMERICA

       4              v.                           S(7)98CR1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           May 22, 2001
                                                   9:30 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6420

       1                            APPEARANCES

       2   MARY JO WHITE
                United States Attorney for the
       3        Southern District of New York
           BY:  PATRICK FITZGERALD
       4        KENNETH KARAS
                PAUL BUTLER
       5        MICHAEL GARCIA
                Assistant United States Attorneys
       6

       7   SAM A. SCHMIDT
           JOSHUA DRATEL
       8        Attorneys for defendant Wadih El Hage

       9   ANTHONY L. RICCO
           EDWARD D. WILFORD
      10   CARL J. HERMAN
                Attorneys for defendant Mohamed Sadeek Odeh
      11
           FREDRICK H. COHN
      12   DAVID P. BAUGH
           LAURA GASIOROWSKI
      13        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

      14   DAVID STERN
           DAVID RUHNKE
      15        Attorneys for defendant Khalfan Khamis Mohamed

      16

      17            (In open court; jury not present)

      18            THE COURT:  The Court has received a proposed

      19   response on behalf of Al-'Owhali to the question asked by the

      20   jury yesterday, which I have marked as Court Exhibit A of

      21   today's date.  I have no particular difficulty with it except

      22   that I don't believe it is specific enough in the response to

      23   the question from the jury.  You all have before you the

      24   Court's draft of proposed response.  Does anybody have any

      25   objections with respect to that proposed response?

                                                                    6421

       1            MR. COHN:  I have one objection and one suggested

       2   addition.  The objection I have, your Honor, is where you say

       3   on the second page:  "If you find beyond a reasonable doubt

       4   that the defendant's conduct did not itself cause the death of

       5   the victim," that, in my view, your Honor, is burden shifting.

       6   Technically if you're going to talk about beyond a reasonable

       7   doubt, you would have to say -- that's why we excluded this

       8   altogether because I thought it was confusing -- you would

       9   have to say that if the government has failed to prove beyond

      10   a reasonable doubt --

      11            THE COURT:  I'll make that change.  That sentence

      12   will now read:  If you find beyond a reasonable doubt that the

      13   government has failed to prove that the defendant's conduct

      14   itself caused the death of the victim but has proven that he

      15   aided and abetted the causing of the death of the victim by

      16   another person and all of the other elements of the crime have

      17   been proven, then you will have found him to be an aider and

      18   abetter.

      19            MR. COHN:  Your Honor, I believe that you've doubled

      20   that up and you sort of shifted to almost where it's supposed

      21   to be, but they are not to find beyond a reasonable doubt that

      22   the government has failed to prove anything.  The government

      23   has either proven it beyond a reasonable doubt or not, and so

      24   when you say, if you find beyond a reasonable doubt that the

      25   government failed to prove, you're imposing on the jury the

                                                                    6422

       1   duty to be unanimous on the fact that they --

       2            THE COURT:  What language would you have?

       3            MR. COHN:  I had gotten rid of that language

       4   altogether, and left out that reasonable doubt about you know

       5   that issue, but if you need, and technically I believe that

       6   the language, if you are going to engage in that portion of

       7   the charge, is, if the government has failed to prove beyond a

       8   reasonable doubt that --

       9            THE COURT:  The defendant's conduct itself caused the

      10   death of the victims but has proven -- you want beyond a

      11   reasonable doubt again?

      12            MR. COHN:  But you can't put, if you find beyond a

      13   reasonable doubt.  It's if the government has failed to prove

      14   beyond a reasonable doubt the conduct.

      15            THE COURT:  That's easy enough.

      16            MR. COHN:  The second is I would like, if your Honor

      17   please, to refer them back to your aiding and abetting charge

      18   starting on page 77.  You don't have to read it.  Just refer

      19   it to them.

      20            THE COURT:  I've done that.  I've done it twice and

      21   they got a copy of my last remarks.  I suppose I could give

      22   them a copy of this, before I hear from all the defendants

      23   first.

      24            MR. RUHNKE:  Judge, the same correction ought to be

      25   made to the penultimate paragraph of your proposed charge

                                                                    6423

       1   which begins, if you find the defendant's conduct neither

       2   caused --

       3            THE COURT:  I could strike that paragraph entirely.

       4   Counsel for Mr. Al-'Owhali hasn't requested that paragraph and

       5   it just complicates it.

       6            MR. RUHNKE:  I'll defer to Mr. Al-'Owhali's counsel

       7   if he wants it stricken.  If it's going to go in it should be

       8   reframed to, if you have a reasonable doubt as to whether the

       9   defendant's conduct either directly caused the victim's death

      10   or aided and abetted another person to do so, then the

      11   defendant is not guilty of that charge.

      12            MR. COHN:  I rather like the inclusion of it, your

      13   Honor, and I missed the import, and I thank Mr. Ruhnke for his

      14   help.

      15            THE COURT:  If you find that the government has

      16   failed to prove beyond a reasonable doubt that the defendant's

      17   conduct either directly caused the victim's death or aided and

      18   abetted another defendant, then the defendant is not guilty of

      19   that charge.  Okay.

      20            MR. KARAS:  Your Honor, we have no objection.  The

      21   only suggestion we have is if you would when you bring the

      22   jury in if they'd like this in writing, they can ask for it.

      23            MR. COHN:  No objection to that, your Honor.

      24            THE COURT:  Yes.  I might as well just send it in

      25   without them asking for it.  They arrived.  They're a little

                                                                    6424

       1   late.  They may be having their breakfast.

       2            MR. COHN:  Your Honor, at some time today --

       3            THE COURT:  Some time today matters we'll take up at

       4   some time today.  Let's finish this.

       5            MR. COHN:  I thought we were finished.

       6            Let me find out if the jury is ready.

       7            (Recess)

       8            (In open court; jury present)

       9            THE COURT:  Good morning.  I am now going to respond

      10   to the question you asked yesterday and as soon as it comes

      11   back from the typist we'll send in a copy of these remarks

      12   also so you will have it in writing as well as orally.

      13            With respect to the language in the second paragraph

      14   on page 88 that the "government must prove that the defendant

      15   inflicted an injury or injuries upon the victim from which the

      16   victim died," you asked whether this means and I quote from

      17   your question:  "caused by the weapon," and you underlined

      18   weapon used by the defendant or by his participation and you

      19   underlined participation in the bombing ("acting as a

      20   diversion").

      21            The answer is that you must look at all of the

      22   conduct in which you find the defendant engaged with respect

      23   to the attack on the embassy.  This includes the nature of the

      24   weapon used, a bomb, and the defendant's role in the bombing.

      25   After considering all of the acts which you find the defendant

                                                                    6425

       1   to have done in connection with the bombing, the question is

       2   whether the defendant's conduct directly caused the infliction

       3   of injury or injuries to the victim which resulted in death or

       4   aided and abetted another person to cause such injuries.

       5            Now the definition of "directly caused" here is the

       6   same as that found in the first two sentences on page 70 and

       7   what we say there is "directly caused" means the conduct of

       8   the defendant you are considering directly resulted in the

       9   death in question.

      10            If you find that the defendant's conduct itself

      11   caused the death of the victim and all of the other elements

      12   of the crime have been proven, all beyond a reasonable doubt,

      13   then you will have found that he "himself killed," the victim.

      14   If the government has failed to prove beyond a reasonable

      15   doubt that the defendant's conduct itself caused the death of

      16   the victim but has proven beyond a reasonable doubt that he

      17   aided and abetted the causing of the death of the victim by

      18   another person, and all of the other elements of the crime

      19   have been proven, then you will have found him to be an aider

      20   and abetter.

      21            If you find that the government has failed to prove

      22   beyond a reasonable doubt that the defendant's conduct either

      23   directly caused the victim's death or aided and abetted

      24   another person to do so, then the defendant is not guilty of

      25   that charge.

                                                                    6426

       1            That concludes my answer to your question.  I remind

       2   you that if you wish to see any other exhibits or wish to hear

       3   any other testimony, you should not hesitate to send us a

       4   note.  Bear with me just a moment.

       5            All right.  You may return to the jury room and have

       6   copies of what I have just said.

       7            (Jury not present)

       8            THE COURT:  Mr. Cohn, you said sometime today you'd

       9   like to take up something.

      10            MR. COHN:  Yes, your Honor, and I'm sure we have to

      11   wait for the government to get its copies of the papers and

      12   stuff.  We have still on the floor the resolution of when, if

      13   ever, the government will be allowed to prove the Pepe

      14   incident in response to whatever it is we do, and we've given

      15   them a proffer of what we intend our case to be on future

      16   dangerousness, and we've gotten a firm, "we'll see," from

      17   them.

      18            THE COURT:  Just a moment, please.

      19            (Pause)

      20            MR. COHN:  So at sometime when the government is

      21   prepared for that, we'd like to see if your Honor will rule on

      22   the issue.

      23            MR. FITZGERALD:  Your Honor, we've been in contact

      24   with the Bureau of Prisons and we're gathering rebuttal

      25   information to the defendants' proffer to show that

                                                                    6427

       1   notwithstanding what I understand the defense would seek to

       2   prove the existence of secured units and certain regulations

       3   that violent incidents have happened both in secure

       4   institutions and pursuant or by defendants who are subject to

       5   the Code of Federal Regulations.

       6            We've gotten some of the materials back.  We've

       7   copied them last night to produce to the defense today.  We're

       8   waiting for the balance so we can address when and under what

       9   circumstances the Pepe assault incident would at all be

      10   relevant, but I think the more important question is probably

      11   in what form the assault will be relevant.  It may be that

      12   it's not important who it was that carried out the attack, but

      13   the fact that under the special administrative measures an

      14   attack can still be carried out.

      15            THE COURT:  I'm not sure that I understand the

      16   relationship between the two.  What Mr. Cohn is seeking, I

      17   think, is clarification of what claims made on behalf of his

      18   client would, in the government's opinion, trigger a response

      19   which includes the attack on the guard.

      20            Now, let me see if I can focus a little more.  And I

      21   just was reading in this morning's Times about the incidents

      22   of violence on death row in San Quentin.  But if Al-'Owhali

      23   says to the jury in substance, you need have no concern about

      24   future dangerousness because in maximum security facilities to

      25   which Mr. Al-'Owhali will doubtless be sent that is not a

                                                                    6428

       1   problem, then what happens?

       2            MR. FITZGERALD:  Then, your Honor, we would seek to

       3   prove, and, in fact, we handed over some videotapes -- going

       4   other this morning I haven't received them yet -- video tapes

       5   that in maximum security facilities there have been violent

       6   incidents where inmates have attacked and in some cases killed

       7   fellow inmates, and also showing that it puts guards in a

       8   dangerous position when those incidents happen since they have

       9   to respond.

      10            My understanding is that Al-'Owhali was also

      11   intending to introduce the Code of Federal Regulations that

      12   establishes that there are special administrative measures

      13   that can be taken to make sure that a defendant poses no risk

      14   to others, and then the assault on Officer Pepe would be

      15   directly relevant to show that not only in the high security

      16   wing, but under special administrative measures an assault was

      17   still carried out.

      18            The question would then become in what form that

      19   evidence was offered.  It would not be the evidentiary details

      20   certainly that will be offered at the independent phase on

      21   Khalfan Mohamed, but the fact that notwithstanding the

      22   existence of special administrative measures a guard can be

      23   maimed I think would be relevant to rebut the offer by the

      24   defense that the existence of maximum security facilities and

      25   those measures would assure the jury that no violence could

                                                                    6429

       1   occur.

       2            MR. COHN:  Your Honor, without previewing the other

       3   evidence that they're talking about, this was addressed to

       4   this assault on a guard, and if I understand the government's

       5   position that what they may do in rebuttal is to bring in the

       6   facts of it without identification of the guard or the clients

       7   being at the MCC.

       8            If that is the position I maintain is still not quite

       9   sufficient because while it may insulate the defendant from

      10   the onus of the attack, the issue then will become whether or

      11   not the special administrative measures were being actually

      12   observed at that time.

      13            And I want to put this in the proper character.

      14   Every time we raise this we get a nasty letter that says we're

      15   trying to blame Pepe and the MCC for the attack.  We're not.

      16   But the fact is that our information, without spreading it on

      17   the record for various reasons --

      18            THE COURT:  He says is --

      19            MR. COHN:  I'm not going to do it with particularity.

      20   I'm going to say that our information is that the special

      21   administrative remedies were being notoriously not observed at

      22   the time creating a dangerous condition and which we don't

      23   want to have a collateral trial on.  That's the issue.

      24            THE COURT:  But fairness to the issue, which is

      25   appropriate, right --

                                                                    6430

       1            MR. COHN:  Yes, we're trying.

       2            THE COURT:  -- are two things.  One is that in any

       3   system which depends on adherence to rules by human beings

       4   there is a risk of deviation from those rules, and the other

       5   is whether there is sufficient similarity in motivation and

       6   training between KK Mohamed and Al-'Owhali that the attack has

       7   a greater relevance.

       8            MR. COHN:  Perhaps we ought to do this the rest of

       9   this in the robing room because I think to fully ventilate the

      10   issue I mean I really do have to refer to specific facts.

      11            THE COURT:  All right.  I'm prepared to do that.  Do

      12   you want to say something?

      13            MR. RUHNKE:  Your Honor, in this discussion we're

      14   work shopping this issue right now on the record.  I'd like to

      15   be heard on it at the time as well.

      16            THE COURT:  We'll do that.

      17            MR. FITZGERALD:  If I can make one suggestion.  Since

      18   we're still waiting to get some information back from the

      19   Bureau of Prisons it might make sense to go over the list of

      20   things to address tomorrow perhaps after the charge, because I

      21   still have some --

      22            MR. RUHNKE:  Fine.  Your Honor, the one caveat to

      23   this whole discussion we've got to be absolutely certain that

      24   we're comparing like situations.  There is a substantial

      25   difference between, for example, the conditions in confinement

                                                                    6431

       1   at the control unit at the administrative maximum unit at

       2   Florence and the conditions of confinement in a typical

       3   maximum security United States penitentiary, and we can't

       4   bring in statistics from a typical general population

       5   situation and they are apt to make a meaningful comparison,

       6   for example, to the conditions that prevailed in the control

       7   unit in administrative maximum unit at the penitentiary in

       8   Florence, Colorado, so that's a general caveat on that whole

       9   issue.

      10            MR. COHN:  Your Honor.

      11            THE COURT:  If we're going to do it in the robing

      12   room, let's do it in the robing room.

      13            MR. COHN:  I checked with my boss and that's fine.

      14   There is a suggestion for tomorrow.  If we want do that

      15   tomorrow in the robing room when the government has the rest

      16   of its material it makes some sense.

      17            THE COURT:  Let me go over a list of some other

      18   items.  Mr. Cohn in a letter to me yesterday attached a chart

      19   with reference to portions of the 3500 material related to

      20   proposed victim impact testimony to which Al-'Owhali objected,

      21   and I believe we have a response from the government today.

      22            MR. FITZGERALD:  I can save you time.  I believe a

      23   response went out late last night both to Mr. Ruhnke and Mr.

      24   Cohn.

      25            THE COURT:  It's in the rear of the courtroom.  So

                                                                    6432

       1   we'll add that to tomorrow's agenda.

       2            Also, you say in the letter, this should not be

       3   interpreted as our having abandoned our request to strike such

       4   testimony as collateral to the issues that are relevant in the

       5   penalty phase.  The Court will note that we have not

       6   specifically highlighted testimony regarding the financial

       7   impact of the bombing on its victims.  And then you say,

       8   having interpreted the Court's silence as to this matter as a

       9   denial of our request, we merely assert our continuing

      10   objection to such testimony as irrelevant to whether the

      11   client should live or die.

      12            That caused me to go back to your earlier letter, and

      13   I must say I did not find in it a specific objection with

      14   respect to financial data, and the notion of interpreting the

      15   Court's silence as a denial is not an appropriate procedure.

      16   I am not adverse to letting you know when I grant or deny, and

      17   if there is something that you think I have neither granted

      18   nor denied, then it should be specifically called to my

      19   attention, and, therefore, in preparation for tomorrow's

      20   conference with respect to other matters in the 3500 material

      21   will you specifically enumerate those references to financial

      22   impact of the bombing on its victims to which you take

      23   exception?

      24            MR. COHN:  Yes, sir.

      25            THE COURT:  Very well.

                                                                    6433

       1            Now, with respect to the revised death notices, and I

       2   think this was a problem we had the other day when we talked

       3   about maiming language, that the government has not yet

       4   submitted a revised death notice consistent with the Court's

       5   January 2001 ruling.  Perhaps you're waiting for the verdict

       6   to do that, but I think that's a cause of confusion.

       7            Also, on tomorrow's agenda is the discovery

       8   admissibility of plea agreements.

       9            MR. COHN:  Your Honor, two things if I may.  Number

      10   one, formally I mean we're aware of Mr. Ruhnke's last

      11   application.  We're still piggybacking on this and we're in

      12   the same position.

      13            THE COURT:  Which application is it?

      14            MR. COHN:  His response to the government's turnover

      15   of secret information the CIPA matter, Judge.  I want you to

      16   know that we're piggybacking on that.  The other is that your

      17   Honor talking about the revised death notice, my understanding

      18   is that if there is a verdict this week, we're starting

      19   Tuesday no matter what.

      20            THE COURT:  Yes.

      21            MR. COHN:  If the government is allowed to delay much

      22   more we're going to not have time to really respond to an

      23   amended death notice, and so I suggest respectfully that you

      24   set a deadline or make our start date somewhat more fluid.

      25            MR. FITZGERALD:  Your Honor, with all due respect my

                                                                    6434

       1   understanding is the death notice is not like an indictment

       2   that goes into the jury.  The purpose was to give notice to

       3   the defendants.  What your Honor did was strike some items,

       4   and then also confine some items.  So creating a revised

       5   notice does nothing to change what it is the defense is

       6   anticipating.

       7            THE COURT:  You know, and I say this over and over

       8   again, this is a complicated case, but there has not been a

       9   single surprise in this case.  There has not been an issue

      10   which has arisen which would cause people to be burning

      11   midnight oil in the library which was not known a long time

      12   ago, and it doesn't take a great genius to look at the special

      13   verdict form and consider all the possible combinations and

      14   permutations.

      15            You know I don't like to appear to be a tyrant, but I

      16   am concerned that things move expeditiously in consideration

      17   of the jury and selfishly for all of us.  You know the longer

      18   things drag out, the greater the risk there is of some juror

      19   becoming ill or otherwise unavailable, and this huge

      20   investment of time, effort and money in this jury is something

      21   that we can't take lightly.

      22            So the answer is that if the jury comes in with a

      23   verdict this week, and we're not sitting on Friday, yes, we

      24   will start on Tuesday.

      25            MR. COHN:  I understand and I wasn't trying to

                                                                    6435

       1   postpone it.  What I was asking is for an advance of the

       2   government's death notice.  We're, you know -- look, Judge, I

       3   seem to be -- it seems to me if you don't like playing the

       4   tyrant, I don't like being the person who is always pressing

       5   you to be it.  But the fact is that if we had not spent the

       6   night looking at your charge for this morning, which you

       7   resisted and I proposed, we would not have had as good a

       8   charge, and that's the reality of it.  And the reality is that

       9   there are fair notions of notice pleading that we're trying to

      10   get some minimal time to respond to, to prepare our case.  I

      11   don't care whether --

      12            THE COURT:  There are certain matters that I

      13   specifically left open until this point, and we'll add that to

      14   the agenda.

      15            MR. COHN:  Thank you.

      16            MR. FITZGERALD:  There is only one other matter to

      17   avoid unfair surprise.  The other day Mr. Baugh mentioned that

      18   he viewed himself as not having invoked Rule 16 discovery

      19   which is found to be not comment since the discovery all along

      20   has been noticed that it was a capital defendant.  We have

      21   produced the records regarding the assault on Officer Pepe as

      22   part of discovery, and my only concern is that if we let that

      23   statement lie I assume that counsel is not withholding any

      24   reverse discovery on the theory that he never invoked Rule 16,

      25   but I think we should just clarify that.

                                                                    6436

       1            MR. BAUGH:  It was my position, your Honor, that we

       2   had not filed Rule 16 and that there was no Rule 16 reciprocal

       3   discovery obligation at this time.  The information that's

       4   been tendered has been tendered in response to Mr. Ruhnke and

       5   Mr. Cohn's notice request.

       6            THE COURT:  Your opinion is that you have not done so

       7   because you elected not to, is that what you are saying?

       8            MR. BAUGH:  Have not asked for Rule 16 discovery and

       9   when the government mentioned Rule 16 I wanted to let them

      10   know that we were under the impression we had not triggered

      11   it, and if they wish to make an application to the Court now

      12   as to whether or not we have, that's fine.

      13            THE COURT:  As a consequence of that is there any

      14   reverse discovery that you have withheld?

      15            MR. BAUGH:  We've not withheld any.  It's our

      16   position at this time that there is no discovery request and

      17   as such there is no reverse discovery obligation.  If the

      18   Court is going to rule that there is, that's fine, but,

      19   regardless, it has not been raised.

      20            THE COURT:  You say two things.  You say, one, you

      21   have not withheld anything, and, two, you say there is no

      22   reverse discovery obligation, and if there were a reverse

      23   discovery obligation is there material that you would furnish?

      24            MR. BAUGH:  Yes.  Meaning exhibits that we were going

      25   to introduce?  Yes.

                                                                    6437

       1            MR. FITZGERALD:  Your Honor, prior counsel for

       2   Mr. Al-'Owhali demanded discovery early on in the case.  We

       3   had discovery protective order.  We've turned over hundreds of

       4   thousands of page.  It was pointed out in prior correspondence

       5   that it was a capital case and they wanted discovery.

       6            There was a deal with the issue of whether the death

       7   penalty should be sought.  We were asked to provide the

       8   records regarding the assault on Officer Pepe which was

       9   specifically produced because of the capital prosecution and

      10   not produced to noncapital defendants.

      11            It is crystal clear all along, and it wasn't until

      12   the other day we first hear a claim that Rule 16 was not

      13   invoked, and I think we should just cut to the chase.  Rule 16

      14   has been invoked and we're entitled to reverse discovery.

      15            MR. BAUGH:  Your Honor, the prior counsel request was

      16   not penalty discovery that they were doing.  On the Officer

      17   Pepe issue we said we need notice as to what the government

      18   plans to prove as to Officer Pepe.  We didn't do Rule 16.  We

      19   have never filed Rule 16 discovery.

      20            THE COURT:  And the government has never said, we

      21   refuse to turn that over to you because you have not made the

      22   proper motion.

      23            MR. BAUGH:  I'm sorry, your Honor?

      24            THE COURT:  And the government has not said, we

      25   refuse to respond to your discovery request because you have

                                                                    6438

       1   not specifically invoked Rule 16.

       2            MR. BAUGH:  No, your Honor, that's correct, but under

       3   the Officer Pepe incident, for instance, the first motion we

       4   filed was a Brady issue as to Officer Pepe and it was not

       5   invoking --

       6            THE COURT:  Tell me how -- if I may interrupt you.

       7            MR. BAUGH:  Yes, sir.

       8            THE COURT:  -- how the discovery request that you

       9   have in fact made differs from the discovery requests that

      10   would be made under Rule 16.

      11            MR. BAUGH:  Your Honor, I don't believe we have filed

      12   a discovery request for the penalty phase.  If I'm in error --

      13            MR. COHN:  We haven't.

      14            MR. BAUGH:  We have never filed a Rule 16 penalty

      15   request.

      16            THE COURT:  So I should tell the government now that

      17   if it is in possession of any documents or materials that it

      18   has not furnished to you, it need not do so.

      19            MR. BAUGH:  No, your Honor, because, no, here's why.

      20   If there are documents that must be tendered in compliance

      21   with Brady or notice, then they have to do it.  If it is

      22   general Rule 16 discovery, they do not.  We have couched all

      23   our requests in terms of notice and Brady.

      24            MR. FITZGERALD:  Your Honor, first of all, I think we

      25   should take back the packet we gave over this morning.  I

                                                                    6439

       1   think we should strike the motion, and I think they should

       2   give back the discovery.  We always understood that this was

       3   discovery in a case of capital prosecution.  No one, until the

       4   other day for the first time, brought up the notion that they

       5   were splitting discovery between the guilt phase and the

       6   punishment phase, and I think it's ridiculous.

       7            THE COURT:  I don't know that that's what it is, but

       8   I would say it's certainly inappropriate in any case but

       9   especially inappropriate when we're talking about a death

      10   penalty case.

      11            The fact that counsel have not insisted on dotting

      12   every I and crossing every T in furnishing material in

      13   response to the urge requests of defendants it seems to me was

      14   commendable.  Now you take the position that you have not

      15   asked for anything which was not compelled by Brady, or you

      16   mentioned something else.

      17            MR. BAUGH:  Notice.

      18            THE COURT:  Or notice.

      19            MR. BAUGH:  Which case law says we're entitled to

      20   which are constitutionally based and are not governed by Rule

      21   16.

      22            THE COURT:  I will advise the government then that

      23   unless required by Brady or 601, the government need not

      24   furnish any material to defense counsel since defense counsel

      25   has explicitly disclaimed any right to any material other than

                                                                    6440

       1   Brady or 601.

       2            MR. BAUGH:  That's correct.  If I might --

       3            THE COURT:  You have no problem with that.

       4            MR. BAUGH:  Your Honor, and the file --

       5            THE COURT:  Mr. Ruhnke, do you have any problem with

       6   that?

       7            MR. RUHNKE:  Judge, let me --

       8            THE COURT:  Let's take a five minute recess.

       9            MR. RUHNKE:  We consider ourselves engaging in Rule

      10   16 discovery.

      11            THE COURT:  Excuse me?

      12            MR. RUHNKE:  We consider ourselves to be engaging in

      13   Rule 16 discovery and have been.

      14            THE COURT:  Very well.  That does not apply then to

      15   counsel for KK Mohamed.  Isn't this absurd?

      16            MR. BAUGH:  No, your Honor.  We didn't even know

      17   until Mr. Fitzgerald made that statement last week about Rule

      18   16 discovery that anyone was under the impression that had

      19   been triggered.  That's how come I stood up and made the

      20   statement.

      21            THE COURT:  Are you sanguine that when you are second

      22   guessed, and the history of this type of litigation is that

      23   counsel are always second guessed by successor counsel --

      24            MR. BAUGH:  Of course --

      25            THE COURT:  -- that you will not be criticized for

                                                                    6441

       1   not having sought Rule 16 discovery?  We'll take a five-minute

       2   recess.  I suggest that counsel think about the matter and

       3   discuss it amongst themselves.

       4            MR. BAUGH:  Yes, your Honor.

       5            (Recess)

       6            (In open court; jury not present)

       7            THE COURT:  Is there anything further?

       8            MR. BAUGH:  Yes, several things.  First, your Honor,

       9   during our break the United States has shown me letters from

      10   Mr. Joy, one of the previous attorneys, dated 1998 and also

      11   some stuff from Mr. Bruck dated 1999 and the year 2000, and I

      12   can clearly see how the United States would be under the

      13   impression that Rule 16 discovery for penalty phase has been

      14   triggered.  In light of that, we will say that we will stick

      15   with Mr. Bruck's representations, Mr. Joy's representations

      16   and we agree.

      17            Second issue, however, there are still some notice

      18   issues, and that will determine what we turn over, that's

      19   going to determine what our defense is going to be.  By

      20   example, the United States today, we were just talking about

      21   the officer, the issue we were going to talk about in the

      22   robing room, which perhaps we should still talk about in the

      23   robing room --

      24            THE COURT:  You want to do that after you get some

      25   more material or are you prepared to do that now?

                                                                    6442

       1            MR. BAUGH:  I think it better to get some material

       2   from them and then discuss it.  The bottom line, your Honor,

       3   is that until such time as the notice is not going to be

       4   amended, the death notice is not going to be amended until

       5   such time as you rule on either.  I was advised today that the

       6   material we have one of the aggravators was removed.

       7            MR. GARCIA:  Judge, we're not seeking to amend the

       8   death notice.  In the materials that we produced today the

       9   government has agreed not to go forward on the simultaneous

      10   act of terrorism which the Court indicated it had a problem

      11   with in its prior decision, but in terms of an intent --

      12            THE COURT:  But by timely acquiescence you prevented

      13   me from doing so.

      14            MR. GARCIA:  One might look at it that way, but we

      15   have no intent to file an amended notice.

      16            THE COURT:  So there is not going to be an amended

      17   notice.

      18            MR. BAUGH:  If there is not going to be an amended

      19   notice then we are now in a position to finalize what we're

      20   going to present and therefore finalize what we have to turn

      21   over.  On the assurance today there is no amendment to the

      22   notice, that's fine.

      23            MR. FITZGERALD:  I don't know what inference counsel

      24   is attaching to an assurance not to amend the notice.  We gave

      25   a notice.  Your Honor changed it.

                                                                    6443

       1            THE COURT:  I certainly envisioned that there was

       2   going to be another document which said amended notice, and

       3   which combined surviving victims with the deceased victims and

       4   which made some other changes.  Now it is really a matter of

       5   what is most convenient.  Obviously, the rulings that I have

       6   made that are embodied in my January opinion are in full

       7   enforcement.

       8            MR. FITZGERALD:  Can we make one suggestion?  Nothing

       9   substantive is changing from the notice other than our

      10   dropping the one factor we just told you about and complying

      11   with your Honor's decision, so creating a new notice is form

      12   over substance, which I think we should do.  Once we have the

      13   verdict in it may make more sense to do that.

      14            THE COURT:  All right.

      15            MR. BAUGH:  Your Honor.

      16            THE COURT:  So in light of that last comment where we

      17   are is that the death notice consists of the original notice

      18   filed by the government, to be modified as indicated in the

      19   Court's opinion of January, to be further modified by the

      20   government's dropping of simultaneous notice of two bombings,

      21   and whatever further rulings the Court may make after a

      22   verdict.  We all have all of that.  Mr. Fitzgerald says it's

      23   form over substance.  It might be a useful form to have, but

      24   it has no additional legal consequence.

      25            MR. BAUGH:  With that assurance, your Honor, we have

                                                                    6444

       1   no problem, and we still have an issue for tomorrow.

       2            THE COURT:  I would have a sense of incompleteness if

       3   a day went by without my inquiring about the military

       4   discovery.

       5            MR. BAUGH:  We have received notification from the

       6   United States military that a CD Rom is en route but no one

       7   has seen it yet.

       8            MR. FITZGERALD:  I will check.  I came straight to

       9   court.

      10            THE COURT:  We're adjourned awaiting further word

      11   from the jury.

      12            (Recess)

      13            (Adjourned to May 23, 2001, at 9:30 a.m.)

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