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

This is the transcript of Day 73 of the trial, July 3, 2001.

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

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

       4   UNITED STATES OF AMERICA

       5              v.                           S(7) 98 Cr. 1023

       6   USAMA BIN LADEN, et al.,

       7                  Defendants.

       8   ------------------------------x

       9
                                                   New York,
      10     N.Y.
                                                   July 3, 2001
      11                                           9:45 a.m.

      12

      13
           Before:
      14
                         HON. LEONARD B. SAND,
      15
                                                   District Judge
      16
                              APPEARANCES
      17
           MARY JO WHITE
      18        United States Attorney for the
                Southern District of New York
      19   BY:  PATRICK FITZGERALD
                MICHAEL GARCIA
      20        Assistant United States Attorneys

      21

      22   DAVID RUHNKE
           DAVID STERN
      23        Attorneys for defendant Khalfan Khamis
             Mohamed
      24

      25

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       2               (In open court)

       3               THE COURT:  Good morning, ladies and

       4     gentlemen.

       5               THE JURY:  Good morning, your Honor.

       6               THE COURT:  For reasons which you are

       7     aware of, we are going to sit only half a day

       8     today.  We'll probably break around noon.  I am

       9     not exactly sure when my charge will be

      10     completed, but if you actually begin

      11     deliberations today, why, we will excuse the

      12     alternates.  If you don't begin deliberations

      13     today, we'll ask the alternates to return on

      14     Thursday, and I will discuss that before you

      15     leave.

      16               The procedures that we will follow

      17     with respect to the charge are those that we

      18     followed twice in the past.  It is just your

      19     option whether you want to read along with me

      20     or just listen, whatever you find to be most

      21     helpful.  And again, you have before you the

      22     Court's charge and the Special Verdict Form,

      23     and I believe you already have in the jury room

      24     the copy of the Indictment and the Court's

      25     instructions with respect to the guilt phase of

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       2     the case.  You have those documents, I assume.

       3     If you don't have those documents for any

       4     reason, please let the marshal know.

       5               Much of what you will hear this

       6     morning you will find repetitious, because

       7     indeed the law that applies at this penalty

       8     phase is the same law that applied in the last

       9     penalty phase.  There are differences, however.

      10     And because the law requires that you make

      11     separate findings as to all of the issues in

      12     this case, we thought it best to lay it all out

      13     again.  So if things sound familiar, it's just

      14     because you have become such experienced

      15     jurors.  But the fact that there is repetition

      16     does not in any way diminish their importance.

      17               Members of the jury, it is again my

      18     duty to instruct you as to the law applicable

      19     to the sentencing phase of this case.

      20               I am on page 1 of the instructions.

      21               The sole question before you is

      22     whether Khalfan Khamis Mohamed should be

      23     sentenced for his capital offenses to either

      24     (1) the death penalty or (2) life imprisonment

      25     without the possibility of release.  The

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       2     selection between these two very serious

       3     choices is yours and yours alone to make.  If

       4     you determine, as to a particular count, that

       5     Mr. Mohamed should be sentenced to death, or

       6     instead to life imprisonment without the

       7     possibility of release, the Court is required

       8     to impose whichever sentence you choose as to

       9     that count.  There is no parole in the federal

      10     system.

      11               Remember that you have previously

      12     found Mr. Mohamed guilty of the following

      13     capital counts in the indictment, all of which

      14     arise out of the August 7, 1998 bombing of the

      15     United States Embassy in Dar es Salaam,

      16     Tanzania:  Counts 6, 8, 222 through 232, 275,

      17     and 276.  Even though there are a total of 15

      18     capital counts at issue here, you must still

      19     approach the sentencing decision before you

      20     separately as to each count and, of course,

      21     with an open mind.  I cannot stress to you

      22     enough the importance of your giving careful

      23     and thorough consideration to all the evidence.

      24     And regardless of any opinion you may have as

      25     to what the law may be -- or should be -- it

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       2     would be a violation of your oaths as jurors to

       3     base your sentencing decision upon any view of

       4     the law other than that which is given to you

       5     in these instructions.

       6               Most of the legal principles that you

       7     must apply to your sentencing decision

       8     duplicate those you followed in the prior

       9     sentencing proceeding as to defendant

      10     Al-'Owhali.  Others are different.  The

      11     instructions I am giving you now are a complete

      12     set of instructions on the law applicable to

      13     the sentencing decision as to Mr. Mohamed;

      14     during your deliberations you should thus rely

      15     on these instructions.  I have also prepared,

      16     as before, a Special Verdict Form that you must

      17     complete.  The form, by detailing the special

      18     findings you must make, will aid you in

      19     properly performing your deliberative duties.

      20               Now, although Congress has left it

      21     wholly to you, the jury, to decide

      22     Mr. Mohamed's proper punishment, it has

      23     narrowed and channeled your discretion in

      24     specific ways -- particularly by making you

      25     consider and weigh any "aggravating" and

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       2     "mitigating" factors present in the case.  As I

       3     explained previously, these factors have to do

       4     with the circumstances of the crime, or the

       5     personal traits, character, or background of

       6     Mr. Mohamed, or anything else relevant to the

       7     sentencing decision.  Aggravating factors are

       8     those that would tend to support imposition of

       9     the death penalty.  By contrast, mitigating

      10     factors are those that suggest that life in

      11     prison without the possibility of release is an

      12     appropriate sentence in this case.

      13               Of course, your task is not simply to

      14     decide what aggravating and mitigating factors

      15     exist here.  Rather, you are called upon to

      16     evaluate any such factors and to make a unique,

      17     individualized choice between the death penalty

      18     and life in prison without the possibility of

      19     release.  In short, the law does not assume

      20     that every defendant found guilty of committing

      21     murder should be sentenced to death.  Nor does

      22     the law presume that Mr. Mohamed, in

      23     particular, should be sentenced to death.

      24     Rather, your decision on the question of

      25     punishment is a uniquely personal judgment

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       2     which the law, in the final analysis, leaves up

       3     to each of you.

       4               The government, at all times and as

       5     to all the capital counts, has the burden of

       6     proving beyond a reasonable doubt that the

       7     appropriate sentence for Mr. Mohamed is in fact

       8     the death penalty.  Specifically, that means

       9     that the government must prove as to each

      10     capital count all of the following beyond a

      11     reasonable doubt:  (1) the existence of at

      12     least one gateway factor; (2) the existence of

      13     at least one statutory aggravating factor; (3)

      14     the existence, if any, of non-statutory

      15     aggravating factors; and (4) that all the

      16     aggravating factors found to exist sufficiently

      17     outweigh all of the mitigating factors found to

      18     exist as to make a sentence of death

      19     appropriate, or, in the absence of any

      20     mitigating factor, that the aggravating factors

      21     found to exist alone make a sentence of death

      22     appropriate.

      23               A "reasonable doubt" is a doubt based

      24     upon reason and common sense after careful and

      25     impartial consideration of all the evidence.

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       2     Proof beyond a reasonable doubt must be proof

       3     of such a convincing character that a

       4     reasonable person would rely and act upon it

       5     without hesitation in the most important

       6     matters of his or her own affairs.  Yet proof

       7     beyond a reasonable doubt does not mean proof

       8     beyond all possible doubt.

       9               A defendant never has the burden of

      10     disproving the existence of anything which the

      11     government must prove beyond a reasonable

      12     doubt.  The burden is wholly upon the

      13     government; the law does not at all require

      14     Mr. Mohamed to produce evidence that a

      15     particular aggravating factor does not exist or

      16     that death is not an appropriate sentence.

      17               As such, Mr. Mohamed is not required

      18     to assert or establish any mitigating factors.

      19     However, if one or more mitigating factors are

      20     asserted, it is Mr. Mohamed's burden to

      21     establish any mitigating factors by a

      22     preponderance of the evidence.  To prove

      23     something by a preponderance of the evidence is

      24     a lesser standard of proof than proof beyond a

      25     reasonable doubt.  To prove something by a

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       2     preponderance of the evidence is to prove that

       3     it is more likely true than not true.  It is

       4     determined by considering all of the evidence

       5     and deciding what of the evidence is more

       6     believable.  If, however, the evidence is

       7     equally balanced, you cannot find that the

       8     mitigating factor has been proved.

       9               The preponderance of the evidence is

      10     not determined by the greater number of

      11     witnesses or exhibits presented by the

      12     government or the defendant.  Rather, it is the

      13     quality and persuasiveness of the information

      14     which controls.

      15               In making all the determinations you

      16     are required to make in this phase of the

      17     trial, you may consider any information

      18     presented during this penalty phase and the

      19     guilt phase, but excluding any evidence which

      20     was introduced solely against another

      21     defendant.  Also, recall that for our purposes

      22     here the terms "evidence" and "information"

      23     have the same meaning.

      24               In deciding what the facts are, you

      25     may have to decide which testimony you believe

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       2     and what testimony you do not believe.  You may

       3     believe all of what a witness said, or only

       4     part of it, or none of it.  In deciding what

       5     testimony of any witness to believe, consider

       6     the witness's intelligence, the opportunity the

       7     witness had to see or hear the things testified

       8     about, the witness's memory, any motives that

       9     witness may have for testifying in a certain

      10     way, the manner of the witness while

      11     testifying, whether that witness said something

      12     different at an earlier time, the general

      13     reasonableness of the testimony, and the extent

      14     to which the testimony is consistent with other

      15     evidence that you believe.

      16               Additionally, because the law does

      17     not permit any witness to state whether he or

      18     she favors or opposes the death penalty in this

      19     case, you should draw no inference either way

      20     from the fact that no witnesses have testified

      21     as to their views on this subject.

      22               Mr. Mohamed did not testify in this

      23     case.  He has a right not to do so and there is

      24     no burden upon Mr. Mohamed to prove that he

      25     should not be sentenced to death.  Instead, the

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       2     burden is entirely on the prosecution to prove,

       3     beyond a reasonable doubt, that a sentence of

       4     death is in fact justified.  Accordingly, that

       5     Mr. Mohamed did not testify must not be

       6     considered by you in any way, or even

       7     discussed, in arriving at any aspect of your

       8     sentencing decision, including the existence or

       9     nonexistence of an alleged aggravating or

      10     mitigating factor.

      11               You must deliberate and determine the

      12     appropriate sentence for each of the capital

      13     counts separately.  Although I will be

      14     discussing the capital counts as a group, your

      15     findings regarding gateway factors, aggravating

      16     factors, and all other issues pertaining to

      17     these counts must treat each of these counts

      18     separately.  It is possible that, even though

      19     all of the counts are connected with the

      20     bombing of the Dar es Salaam embassy, you may

      21     find differences which would justify different

      22     sentences on different counts.

      23               The instructions I am about to give

      24     you, as well as the Special Verdict Form you

      25     will be completing, will first address your

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       2     findings, if any, regarding the four so-called

       3     "gateway factors" and the statutory aggravating

       4     factors identified by the government with

       5     regard to each capital count.  The instructions

       6     and the Special Verdict Form thereafter address

       7     your findings, if any, as to each capital count

       8     regarding the existence of non-statutory

       9     aggravating factors and mitigating factors, as

      10     well as the weighing of aggravating and

      11     mitigating factors.

      12               Finding of gateway factors:  Before

      13     you may consider the imposition of the death

      14     penalty for any capital count, you must first

      15     unanimously find, beyond a reasonable doubt,

      16     the existence as to that count of at least one

      17     of the four gateway factors identified by the

      18     government.  The gateway factors are as

      19     follows:

      20               1.  That the defendant intentionally

      21     killed the victim or victims of the particular

      22     capital offense charged in the respective count

      23     of the indictment; or

      24               2.  That the defendant intentionally

      25     inflicted serious bodily injury that resulted

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       2     in the death of the victim or victims of the

       3     particular capital offense charged in the

       4     respective count of the indictment; or

       5               3.  That the defendant intentionally

       6     participated in an act, contemplating that the

       7     life of a person would be taken or intending

       8     that lethal force would be used in connection

       9     with a person, other than one of the

      10     participants in the offense, and the victim or

      11     victims of the particular capital offense

      12     charged in the respective count of the

      13     indictment died as a direct result of the act;

      14     or

      15               4.  That the defendant intentionally

      16     and specifically engaged in an act of violence,

      17     knowing that the act created a grave risk of

      18     death to a person, other than one of the

      19     participants in the offense, such that

      20     participation in the act constituted a reckless

      21     disregard for human life and the victim or

      22     victims of the particular capital offense

      23     charged in the respective count of the

      24     indictment died as a direct result of the fact.

      25               Your findings as to whether the

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       2     government has proven the existence, beyond a

       3     reasonable doubt, of a particular factor from

       4     among these four gateway factors must be

       5     separate and unanimous as to each capital

       6     count.

       7               And with regard to your findings, you

       8     may not rely solely upon your first-stage

       9     verdict of guilt or your factual determinations

      10     therein.  Instead, you must now each decide

      11     this issue for yourselves again.

      12               Any finding that a gateway factor has

      13     been proven as to a particular capital count

      14     must be based on Mr. Mohamed's personal actions

      15     and intent.  Intent or knowledge may be proven

      16     like anything else.  You may consider any

      17     statements made and acts done by Mr. Mohamed,

      18     and all the facts and circumstances in evidence

      19     which may aid in a determination of

      20     Mr. Mohamed's knowledge or intent.  You may,

      21     but are not required to, infer that a person

      22     intends the natural and probable consequences

      23     of acts knowingly done or knowingly omitted.

      24               In the event that you unanimously

      25     find, beyond a reasonable doubt, that a

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       2     particular gateway factor exists as to all the

       3     capital counts, you are to indicate that

       4     finding on the appropriate line in Section I,

       5     Part A of the Special Verdict Form.  In the

       6     event that you unanimously find, beyond a

       7     reasonable doubt, that a particular gateway

       8     factor exists as to some but not all of the

       9     capital counts, you are to indicate that

      10     finding on the appropriate line in Section I,

      11     Part A of the Special Verdict Form, and also

      12     identify on the line provided, by count number,

      13     the specific capital counts as to which you

      14     find that gateway factor applies.  If you do

      15     not unanimously find that a particular gateway

      16     factor has been proven beyond a reasonable

      17     doubt with respect to any of the capital

      18     counts, you should mark the appropriate space

      19     in Section I, Part A.

      20               I instruct you that any gateway

      21     factor found by you to exist is not an

      22     aggravating factor and may not be weighed by

      23     you in deciding whether or not to impose a

      24     sentence of death.

      25               For any capital count, if you do not

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       2     unanimously find that the government has proven

       3     beyond a reasonable doubt the existence as to

       4     that count of any of the four gateway factors,

       5     your deliberative task as to that capital count

       6     will be over and the Court will impose a

       7     mandatory sentence on that count of life

       8     imprisonment without the possibility of

       9     release.  Section I, Part B of the Special

      10     Verdict Form provides a space for you to

      11     indicate those counts, if any, for which you

      12     have not unanimously found that the government

      13     has proven beyond a reasonable doubt the

      14     existence of any gateway factor.

      15               I might say here that with respect to

      16     the Special Verdict Form, the sections with

      17     respect to gateway factors, statutory factors

      18     and non-statutory factors are the same as they

      19     were with respect to the prior proceedings.

      20     The only differences are with respect to the

      21     names and the count numbers.  And so I won't go

      22     over with you again those portions of the

      23     Special Verdict Form.  It doesn't mean they are

      24     not important, that you don't have to

      25     conscientiously complete them, but I just won't

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       2     bother to re-read them again because you are

       3     quite familiar with them already.

       4               Turning, then, to statutory

       5     aggravating factors.

       6               If and only if you unanimously find

       7     that the government has proven, beyond a

       8     reasonable doubt, that at least one of the four

       9     gateway factors exists as to a particular

      10     capital count, you must then proceed to

      11     determine whether the government has proven,

      12     beyond a reasonable doubt, the existence of any

      13     of the following four statutory aggravating

      14     factors with respect to that same count:

      15               1.  The deaths, and injuries

      16     resulting in death, occurred during the

      17     commission or attempted commission of another

      18     offense, namely, one of the following offenses

      19     listed under Title 18, United States Code:

      20     Section 844(f)(bombing of property leased to

      21     the United States Government); Section 1116

      22     (killing or attempted killing of

      23     internationally protected persons); Section

      24     2332 (terrorist acts abroad against United

      25     States nationals); or Section 2332a (use of a

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       2     weapon of mass destruction).

       3               2.  The defendant, in the commission

       4     of the offense, knowingly created a grave risk

       5     of death to one or more persons in addition to

       6     the victims of the offense.

       7               3.  The defendant committed the

       8     offense after substantial planning and

       9     premeditation to cause the death of one or more

      10     persons or to commit an act of terrorism.

      11               4.  The defendant intentionally

      12     killed or attempted to kill more than one

      13     person in a single episode.

      14               At this point the law directs you to

      15     consider and decide -- separately as to each of

      16     the capital counts for which you have

      17     unanimously found the existence of at least one

      18     gateway factor -- the existence or nonexistence

      19     of the statutory aggravating factors

      20     specifically claimed by the government.  You

      21     are reminded that to find the existence of a

      22     statutory aggravating factor as to a particular

      23     count, your decision must be unanimous and

      24     beyond a reasonable doubt.  Any finding that

      25     one or more of these factors has been proven

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       2     must be based on Mr. Mohamed's personal actions

       3     and intent.

       4               In the event that you unanimously

       5     find, beyond a reasonable doubt, that a

       6     particular statutory aggravating factor exists

       7     as to all the capital counts for which you have

       8     found the existence of at least one gateway

       9     factor, you are to indicate that finding on the

      10     appropriate line in Section II, Part A of the

      11     Special Verdict Form.  In the event that you

      12     unanimously find, beyond a reasonable doubt,

      13     that a particular statutory aggravating factor

      14     exists as to some but not all of the capital

      15     counts for which you have found the existence

      16     of at least one gateway factor, you are to

      17     indicate that finding on the appropriate line

      18     in Section II, Part A of the Special Verdict

      19     Form, and also identify on the line provided,

      20     by count number, the particular counts as to

      21     which you find the statutory aggravating factor

      22     applies.  If you do not unanimously find that a

      23     particular statutory aggravating factor has

      24     been proven beyond a reasonable doubt with

      25     respect to any of the capital counts you are

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       2     considering, you should mark the appropriate

       3     space in Section II, Part A of the Special

       4     Verdict Form.

       5               For any capital count for which you

       6     unanimously found the existence of at least one

       7     gateway factor, if you do not also unanimously

       8     find as to that same count the existence of at

       9     least one statutory aggravating factor, then

      10     your deliberative task as to that count will be

      11     over and the Court will impose a mandatory

      12     sentence on that count of life imprisonment

      13     without the possibility of release.  Section

      14     II, Part B of the Special Verdict Form provides

      15     a space for you to indicate those counts, if

      16     any, for which you have not unanimously found

      17     that the government has proven beyond a

      18     reasonable doubt the existence of any

      19     aggravating factor.

      20               Let me now instruct you in detail on

      21     the specific elements necessary for the

      22     government to prove each of these four

      23     statutory aggravating factors beyond a

      24     reasonable doubt.

      25               The first statutory aggravating

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       2     factor alleged by the government with regard to

       3     the various counts is that the deaths or

       4     injuries resulting in death of the victim or

       5     victims identified in a particular count

       6     occurred during the commission of a crime other

       7     than the crime charged in that particular

       8     count.  Thus, as to each count, you must

       9     determine if the victim or victims identified

      10     was killed during the commission of certain

      11     other crimes, as those other crimes are set

      12     forth in the Special Verdict Form.  Depending

      13     on the particular count, the other crimes

      14     alleged are one or more of the following

      15     offenses:  18 U.S.C. 844(f)(bombing of property

      16     leased to the United States Government); 18

      17     U.S.C. 1116 (killing or attempted killing of

      18     internationally protected persons); 18 U.S.C.

      19     2332 (terrorist acts abroad against United

      20     States nationals); and 18 U.S.C. 2332a (use of

      21     a weapon of mass destruction).

      22               In order to prove that the deaths or

      23     injuries resulting in death occurred during the

      24     commission of the separate offense of bombing

      25     of property leased to the United States

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       2     Government (in violation of 18 U.S.C. Section

       3     844(f)), the government must prove beyond a

       4     reasonable doubt exactly that, that the death

       5     or injury resulting in death of the victim or

       6     victims identified in the particular count

       7     occurred during the commission of a violation

       8     of 18 U.S.C. Section 844(f).  You have

       9     previously found that Mr. Mohamed violated 18

      10     U.S.C. 844(f), as reflected in your guilty

      11     verdict on Count 6.  Accordingly, solely as to

      12     Count 6, you may not consider the commission of

      13     the violation of 18 U.S.C. Section 844(f) as

      14     "another crime."

      15               In order to prove that the deaths or

      16     injuries resulting in death occurred during the

      17     commission of the separate offense of killing

      18     or attempted killing of internationally

      19     protected persons (in violation of 18 U.S.C.

      20     Section 1116), the government must prove beyond

      21     a reasonable doubt exactly that, that the death

      22     or injury resulting in death of one or more of

      23     the victims of the Dar es Salaam bombing

      24     occurred during the commission or attempted

      25     commission of a violation of 18 U.S.C. Section

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       2     1116.  You have previously found that

       3     Mr. Mohamed violated 18 U.S.C. Section 1116, as

       4     reflected in your guilty verdict on Count 281.

       5               In order to prove that the deaths or

       6     injuries resulting in death occurred during the

       7     commission of the separate offense of terrorist

       8     acts abroad against United States nationals (in

       9     violation of 18 U.S.C. Section 2332), the

      10     government must prove beyond a reasonable doubt

      11     exactly that, that the death or injury

      12     resulting in death of one or more of the

      13     victims of the Dar es Salaam bombing occurred

      14     during the commission of a violation of 18

      15     U.S.C. 2332.  You have previously found that

      16     Mr. Mohamed violated 18 U.S.C. 2332, as

      17     reflected in your guilty verdict on Count 1.

      18               Excuse me just a moment.

      19               (Pause)

      20               THE COURT:  In order to prove that

      21     the deaths or injuries resulting in death

      22     occurred during the commission of the separate

      23     offense of use of a weapon of mass destruction

      24     against United States nationals, (in violation

      25     of 18 U.S.C. 2332a) the government must prove

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       2     beyond a reasonable doubt exactly that, that

       3     the death or injury resulting in death of one

       4     or more of the victims of the Dar es Salaam

       5     bombing occurred during the commission of a

       6     violation of 18 U.S.C. 2332a.  You have

       7     previously found that Mr. Mohamed violated 18

       8     U.S.C. 2332a, as reflected in your guilty

       9     verdict on Count 8.  Accordingly, solely as to

      10     Count 8, you may not consider the commission of

      11     the violation of 18 U.S.C. 2332a as "another

      12     crime."

      13               For each of the capital counts you

      14     are considering, in order to find that the

      15     government has satisfied its burden of proving

      16     beyond a reasonable doubt that the deaths or

      17     injuries resulting in death of the victims of

      18     the Dar es Salaam bombing occurred during the

      19     commission of one or more of these other

      20     offenses, you must unanimously agree on which

      21     other offenses were committed by Mr. Mohamed.

      22     Your finding as to this statutory aggravating

      23     factor must be indicated in the appropriate

      24     space in Section II, Part A.1 of the Special

      25     Verdict Form.

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       2               The second statutory aggravating

       3     factor alleged by the government with regard to

       4     the capital counts is that, in the commission

       5     of the particular offenses, the defendant

       6     knowingly created a grave risk of death to one

       7     or more persons in addition to the deceased

       8     victim or victims identified in that particular

       9     count.

      10               To establish the existence of this

      11     factor, the government must prove beyond a

      12     reasonable doubt that Mr. Mohamed, in

      13     committing the offense described in the capital

      14     count you are considering, knowingly created a

      15     grave risk of death to one or more persons in

      16     addition to the deceased victim or victims

      17     identified in the particular count.

      18               "Knowingly" creating such a risk

      19     means that Mr. Mohamed was conscious and aware

      20     that his conduct in the course of committing

      21     the offense might have this result.

      22     Mr. Mohamed's conduct cannot merely have been

      23     the product of ignorance, mistake or accident.

      24     Knowledge may be proved like anything else.

      25     You may consider any statements made and acts

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       2     done by Mr. Mohamed, and all the facts and

       3     circumstances in evidence which may aid in a

       4     determination of Mr. Mohamed's knowledge.

       5               "Grave risk of death" means a

       6     significant and considerable possibility that

       7     another person might be killed.  In order to

       8     find that the government has proven this factor

       9     beyond a reasonable doubt, you must unanimously

      10     agree on a particular person or a class of

      11     persons who were placed in danger by

      12     Mr. Mohamed's actions.

      13               "Persons in addition to the victims"

      14     include innocent bystanders in the zone of

      15     danger created by the defendant's acts, but do

      16     not include other participants in the offense.

      17               Your finding as to this statutory

      18     aggravating factor must be indicated in Section

      19     II, Part A.2 of the Special Verdict Form.

      20               The third statutory aggravating

      21     factor alleged by the government with regard to

      22     the capital counts is that the defendant

      23     committed the offenses under the particular

      24     counts after substantial planning and

      25     premeditation to cause the death of a person or

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       2     to commit an act of terrorism.

       3               "Planning" means mentally formulating

       4     a method for doing something or achieving some

       5     end.

       6               "Premeditation" means thinking or

       7     deliberating about something and deciding

       8     whether to do it beforehand.

       9               "Substantial" planning and

      10     premeditation means a considerable or

      11     significant amount of planning and

      12     premeditation.

      13               An "act of terrorism" is an act

      14     calculated to influence or affect the conduct

      15     of government by intimidation or coercion, or

      16     to retaliate against government conduct.

      17               To find that Mr. Mohamed -- strike

      18     that.  I misspoke.

      19               To find that the government has

      20     satisfied its burden of proving beyond a

      21     reasonable doubt that Mr. Mohamed engaged in

      22     substantial planning and premeditation either

      23     to cause the death of a person or to commit an

      24     act of terrorism, you must unanimously agree on

      25     the particular object of the substantial

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       2     planning and premeditation, either to cause the

       3     death of a person, to commit an act of

       4     terrorism, or to do both.  Your finding as to

       5     this statutory aggravating factor must be

       6     indicated in the appropriate space in Section

       7     II, Part A.3 of the Special Verdict Form.

       8               The fourth and final statutory

       9     aggravating factor alleged by the government

      10     with regard to the capital counts is that the

      11     defendant intentionally killed or attempted to

      12     kill more than one single person in a single

      13     criminal enterprise.

      14               To establish the existence of this

      15     factor, the government must prove beyond a

      16     reasonable doubt that Mr. Mohamed intentionally

      17     killed or attempted to kill more than one

      18     person in a single criminal episode.  You must

      19     unanimously agree on the particular actual or

      20     intended victims or a class of intended victims

      21     in order to find that this factor has been

      22     proven beyond a reasonable doubt.

      23               "Intentionally killing" a person

      24     means killing a person on purpose, that is:

      25     Willfully, deliberately, or with a conscious

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       2     desire to cause a person's death (and not just

       3     accidentally or involuntarily).

       4               "Attempting to kill" a person means

       5     purposefully doing some act which constitutes a

       6     substantial step (beyond mere preparation or

       7     planning) toward killing a person, and doing so

       8     with the intent to cause a person's death.  You

       9     may not find that the defendant attempted to

      10     kill a person who was actually killed.

      11               "A single criminal episode" is an act

      12     or series of related criminal acts which occur

      13     within a relatively limited time and place, or

      14     are directed at the same person or persons, or

      15     are part of a continuous course of conduct

      16     related in time, place, or purpose.

      17               You may, but are not required to,

      18     infer that a person of sound mind intended the

      19     ordinary, natural, and probable consequences of

      20     his knowing and voluntary acts.  Thus, you may

      21     infer from Mr. Mohamed's conduct that he

      22     intended to kill a person if you find:  (1)

      23     that Mr. Mohamed was a person of sound mind;

      24     (2) that the victim's death was an ordinary,

      25     natural, and probable consequence of

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       2     Mr. Mohamed's acts (even if the victim's death

       3     did not actually result, in the case of an

       4     attempt); and (3) that Mr. Mohamed committed

       5     these acts knowingly and voluntarily.  But once

       6     again, you are not required to make such an

       7     inference.  Your finding as to this statutory

       8     aggravating factor must be indicated in the

       9     appropriate space in Section II, Part A.4 of

      10     the Special Verdict Form.

      11               Please let me reiterate that if, with

      12     respect to any capital count, you do not

      13     unanimously find that the government has proven

      14     beyond a reasonable doubt at least one

      15     statutory aggravating factor, your

      16     deliberations as to that particular count are

      17     concluded.  And please identify any such counts

      18     in Section II, Part B of the Special Verdict

      19     Form.

      20               Let me give the court reporter a

      21     minute's respite.

      22               Let me see counsel at the side,

      23     without the reporter.

      24               (Discussion at sidebar off the

      25     record)

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       2               THE COURT:  Non-statutory aggravating

       3     factors:  If but only if you have unanimously

       4     found that the government has proven beyond a

       5     reasonable doubt the existence as to a

       6     particular capital count of at least one

       7     gateway factor and at least one statutory

       8     aggravating factor alleged by the government,

       9     you must then consider whether the government

      10     has proven the existence of any non-statutory

      11     aggravating factors with regard to that same

      12     count.  You must agree unanimously, and

      13     separately as to each count, that the

      14     government has proven beyond a reasonable doubt

      15     the existence of any of the alleged

      16     non-statutory aggravating factors before you

      17     may consider that non-statutory aggravating

      18     factor in your deliberations.

      19               The law permits you to consider and

      20     discuss only the three non-statutory

      21     aggravating factors specifically claimed by the

      22     government in advance and listed below.  You

      23     are not free to consider any other factors in

      24     aggravation that you conceive of on your own.

      25               The non-statutory aggravating factors

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       2     alleged by the government with regard to each

       3     of the capital counts are as follows:

       4               A.  The defendant poses a continuing

       5     and serious threat to the lives and safety of

       6     others with whom he will come in contact.

       7               B.  As demonstrated by the deceased

       8     victims' personal characteristics as individual

       9     human beings and the impact of the deaths upon

      10     the deceased victims' families, the defendant

      11     caused injury, harm, and loss to those victims

      12     and their families, and the defendant caused

      13     serious physical and emotional injury and

      14     grievous economic hardship to numerous

      15     individuals who survived the bombing.

      16               C.  The victims and intended victims

      17     included high-ranking public officials of the

      18     United States serving abroad and the offense

      19     was motivated by such status.

      20               These non-statutory aggravating

      21     factors are self-explanatory and do not require

      22     substantive instruction.  Note that the

      23     non-statutory aggravating factor of future

      24     dangerousness may only be considered by you in

      25     the context of both the mandatory life sentence

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       2     without the possibility of release that must be

       3     imposed by the Court if Mr. Mohamed is not

       4     sentenced to death, and the conditions of

       5     confinement that may likely be imposed by the

       6     United States Bureau of Prisons.

       7               Again, your findings regarding these

       8     factors must be separate and unanimous with

       9     regard to each capital count you are

      10     considering.  You also must unanimously agree,

      11     beyond a reasonable doubt, that the

      12     non-statutory aggravating factor alleged by the

      13     government is in fact aggravating.  As I

      14     mentioned at the beginning of this sentencing

      15     hearing, an aggravating factor is a fact or

      16     circumstance that would tend to support

      17     imposition of the death penalty.

      18               In the event that you unanimously

      19     find, beyond a reasonable doubt, that a

      20     particular non-statutory aggravating factor

      21     applies to all of the capital counts for which

      22     you have found at least one gateway factor and

      23     at least one statutory aggravating factor, you

      24     are to indicate that finding on the appropriate

      25     line in Section III of the Special Verdict

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       2     Form.  In the event that you unanimously find

       3     that a particular non-statutory aggravating

       4     factor applies to some but not all of these

       5     counts, you are to indicate that finding on the

       6     appropriate line in Section III of the Special

       7     Verdict Form, and also indicate on the line

       8     provided, by count number, the particular

       9     counts as to which you find the non-statutory

      10     aggravating factor applies.

      11               If you do not unanimously find that a

      12     non-statutory aggravating factor has been

      13     proven beyond a reasonable doubt with regard to

      14     any capital count, you should so indicate in

      15     Section III of the Special Verdict Form.

      16               Unlike with gateway factors and

      17     statutory aggravating factors, you are not

      18     required to find a non-statutory aggravating

      19     factor with regard to a particular count before

      20     you may consider the death penalty as the

      21     possible sentence for that count.  Rather, the

      22     law only requires that before the jury may

      23     consider an alleged non-statutory aggravating

      24     factor in its sentencing decision as to any

      25     capital count, the jury must first unanimously

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       2     agree that the government has proven beyond a

       3     reasonable doubt the existence of that factor

       4     as to that count.

       5               After you have completed your

       6     findings regarding the existence or

       7     nonexistence of non-statutory aggravating

       8     factors, you should proceed to Section IV of

       9     the Special Verdict Form, to consider whether

      10     any mitigating factors exist.  Remember, unless

      11     you are unanimous that the existence of a

      12     particular statutory or non-statutory

      13     aggravating factor has been proven by the

      14     government beyond a reasonable doubt, you may

      15     not give that factor any further consideration

      16     during any of your deliberations.

      17               And then we turn to mitigating

      18     factors.

      19               Before you may consider the

      20     appropriate punishment for any of the capital

      21     counts for which you have unanimously found the

      22     existence of at least one gateway factor and at

      23     least one statutory aggravating factor, you

      24     must consider whether Mr. Mohamed has proven

      25     the existence of any mitigating factors with

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       2     regard to those counts.  A mitigating factor is

       3     not offered to justify or excuse Mr. Mohamed's

       4     conduct.  Instead, a mitigating factor is a

       5     fact about Mr. Mohamed's life or character, or

       6     about the circumstances surrounding the

       7     particular capital offense, or anything else

       8     relevant that would suggest, in fairness, that

       9     life in prison without the possibility of

      10     release is a more appropriate punishment than a

      11     sentence of death.

      12               Unlike with aggravating factors,

      13     which you must unanimously find proven beyond a

      14     reasonable doubt in order for you even to

      15     consider them in your deliberations, the law

      16     does not require unanimity with regard to

      17     mitigating factors.  Any one juror who is

      18     persuaded of the existence of a mitigating

      19     factor must consider it in his or her

      20     sentencing decision.

      21               Furthermore, it is Mr. Mohamed's

      22     burden to establish a mitigating factor only by

      23     a preponderance of the evidence.  As I have

      24     told you, this is a lesser standard of proof

      25     under the law than proof beyond a reasonable

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       2     doubt.  A factor is established by a

       3     preponderance of the evidence if its existence

       4     is shown to be more likely so than not so.  In

       5     other words, a preponderance of the evidence

       6     means such evidence as, when considered and

       7     compared with that opposed to it, produces in

       8     your mind the belief that what is sought to be

       9     established is, more likely than not, true.

      10     If, however, the evidence is equally balanced,

      11     you cannot find that the factor has been

      12     proved.

      13               Mr. Mohamed urges as mitigating

      14     factors two undisputed matters of law, which

      15     you are to consider during the weighing

      16     process.  Extrapolating, saying something that

      17     isn't here, there are certain other matters of

      18     fact which are undisputed, such as his age, but

      19     these two we single out because these are

      20     undisputed matters of law which you are to

      21     consider during the weighing process.

      22               These factors are, and it was listed

      23     as D in the original listing:  If Khalfan

      24     Mohamed is not sentenced to death, the law

      25     mandates that he will spend the rest of his

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       2     life in a United States prison without any

       3     possibility of release.

       4               K.  As a matter of South African law,

       5     Khalfan Mohamed should not have been released

       6     to American officials without assurances that

       7     he would not face the death penalty in the

       8     United States.

       9               In addition to those two undisputed

      10     matters of law, the following are mitigating

      11     factors alleged by Mr. Mohamed as to which you

      12     will be called upon to render a verdict

      13     indicating whether you find the factors to

      14     exist:

      15               A.  Khalfan Mohamed's role in the

      16     offense and relative culpability, as set out

      17     below:

      18               (1) Khalfan Mohamed was not a leader

      19     or organizer of the conspiracy which led to the

      20     bombing of the Dar es Salaam embassy.

      21               (2) Although Khalfan Mohamed is

      22     guilty of the murders, his participation was

      23     relatively minor.

      24               (3) Khalfan Mohamed was recruited by

      25     others as someone who was an expendable member

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       2     of the conspiracy.

       3               B.  Others of equal or greater

       4     culpability in the murders will not be

       5     sentenced to death.

       6               C.  Khalfan Mohamed's postarrest

       7     statement was:

       8               (1) complete and truthful.

       9               (2) demonstrated acceptance of

      10     responsibility.

      11               (3) provided the interviewing agents

      12     with valuable information.

      13               E.  Khalfan Mohamed has no prior

      14     history of criminal behavior.

      15               F.  Executing Khalfan Mohamed will

      16     cause his family to suffer grief and loss.

      17               G.  Khalfan Mohamed is remorseful for

      18     the deaths, injuries and other consequences of

      19     the bombing of the embassy and would not

      20     participate in such a crime in the future.

      21               H.  Khalfan Mohamed acted out of

      22     sincere religion belief.

      23               I.  At the time of the offense,

      24     Khalfan Mohamed was 25 years old.

      25               J.  If Khalfan Mohamed is executed,

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       2     he will be seen as a martyr and his death may

       3     be exploited by others to justify future

       4     terrorist acts.

       5               L.  Khalfan Mohamed's personal

       6     characteristics as an individual human being

       7     include the following:

       8               (1) Khalfan Mohamed has exhibited

       9     responsible conduct in other areas of his life.

      10               (2) Khalfan Mohamed has shown himself

      11     to be a person capable of kindness, friendship

      12     and generosity.

      13               (3) Khalfan Mohamed lost his father

      14     at an early age, and worked to help his family,

      15     which struggled financially after the death of

      16     the major breadwinner.

      17               In Section IV of the Special Verdict

      18     Form, you are asked to report the total number

      19     of jurors who individually find a particular

      20     mitigating factor to be established by a

      21     preponderance of the evidence.

      22               And let's just look briefly at the

      23     Special Verdict Form on page 12, and you will

      24     see there it has the instructions with respect

      25     to the various mitigating factors.

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       2               D and K, which are the undisputed

       3     matters of law, appear in the second paragraph

       4     because there is no need for you to make any

       5     finding as to that.  And then below you will

       6     see the various alleged mitigating factors and

       7     the spaces for you to indicate the number of

       8     jurors who find that those enumerated

       9     mitigating factors existed.

      10               I am on the last line on page 24:

      11               In addition to the 12 mitigating

      12     factors specifically raised by the defendant,

      13     the law permits you to consider anything about

      14     the circumstances of the offense, or anything

      15     about Mr. Mohamed's background, record, or

      16     character, or anything else relevant that you

      17     individually believe mitigates against the

      18     imposition of the death penalty.  As such, if

      19     there are any mitigating factors not argued by

      20     the attorneys for Mr. Mohamed but which any

      21     juror, on his or her own or with others, finds

      22     to be established by a preponderance of the

      23     evidence, that juror is free to consider it in

      24     his or her sentencing determination.  And in

      25     Section IV of the Special Verdict Form, you are

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       2     to identify any such additional mitigating

       3     factors that one or more of you independently

       4     find to exist by a preponderance of the

       5     evidence.

       6               And you will see at the bottom of

       7     page 14 of the Special Verdict Form, it says:

       8     The law does not limit your consideration of

       9     mitigating factors to those that can be

      10     articulated in advance.  Therefore, you may

      11     consider during your deliberations any other

      12     factor or factors in Khalfan Mohamed's

      13     background, record, character, or any other

      14     circumstances of the offense that mitigate

      15     against imposition of a death sentence.

      16               And the following extra spaces are

      17     provided to write in additional mitigating

      18     factors if found by one or more jurors, and if

      19     more space is needed, write "continued" and

      20     there is a space for you to write in mitigating

      21     factor, which one or more juror finds exists,

      22     although not alleged or argued by counsel, and

      23     then the number of jurors who have so found.

      24               At this time, I wish to make a

      25     clarifying point:  The existence of a

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       2     mitigating factor is a predicate and distinct

       3     consideration from whatever weight, if any,

       4     should ultimately be given that factor in your

       5     deliberations.  For example, any number of

       6     jurors might first find that a particular

       7     mitigating factor is factually true, that is,

       8     that the factor exists, but those jurors as

       9     individuals might later choose to give that

      10     same mitigating factor differing levels of

      11     significance during the weighing process.  With

      12     this distinction in mind, Section IV of the

      13     Special Verdict Form only asks you to report

      14     the total number of jurors who individually

      15     find the existence of a particular mitigating

      16     factor to be established by a preponderance of

      17     the evidence.

      18               After you have completed your

      19     findings regarding the existence or

      20     nonexistence of mitigating factors, you should

      21     proceed to Section V of the Special Verdict

      22     Form, to weigh the aggravating factors and

      23     mitigating factors with regard to each of the

      24     counts for which you have unanimously found at

      25     least one gateway factor and at least one

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       2     statutory aggravating factor.

       3               If and only if you unanimously find,

       4     beyond a reasonable doubt, that the government

       5     has proven the existence of at least one

       6     gateway factor and at least one statutory

       7     aggravating factor with regard to any capital

       8     count; and after you then determine whether the

       9     government has proven beyond a reasonable doubt

      10     the existence of any non-statutory aggravating

      11     factors with regard to that count, and whether

      12     Mr. Mohamed has proven by a preponderance of

      13     the evidence the existence of any mitigating

      14     factors, you must then engage in a weighing

      15     process with regard to that count.  This

      16     weighing process asks whether you are

      17     unanimously persuaded, beyond a reasonable

      18     doubt, that the aggravating factors

      19     sufficiently outweigh any mitigating factors --

      20     or, in the absence of any mitigating factors,

      21     that the aggravating factors are themselves

      22     sufficient -- to call for a sentence of death

      23     on the particular capital count you are

      24     considering.

      25               You are to conduct this weighing

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       2     process separately with regard to each of the

       3     capital counts for which you have found at

       4     least one gateway factor and at least one

       5     statutory aggravating factor.  Each juror must

       6     individually decide whether the facts and

       7     circumstances in this case, and as to each

       8     count, call for death as the appropriate

       9     sentence.

      10               In determining the appropriate

      11     sentence for the capital count you are

      12     considering, all of you must independently

      13     weigh the aggravating factor or factors that

      14     you unanimously found to exist with regard to

      15     that count -- whether statutory or

      16     non-statutory -- and each of you must weigh any

      17     mitigating factors that you individually or

      18     with others found to exist.  You are not to

      19     weigh any of the four gateway factors I

      20     mentioned previously as part of this process.

      21     In engaging in the weighing process, you must

      22     avoid any influence of passion, prejudice, or

      23     any other arbitrary consideration.  Your

      24     deliberations should be based upon the evidence

      25     you have seen and heard, and the law on which I

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       2     have instructed you.

       3               Again, whether or not the

       4     circumstances in this case call for a sentence

       5     of death is a decision that the law leaves

       6     entirely to you.  Remember that all 12 jurors

       7     must agree beyond a reasonable doubt that death

       8     is in fact the appropriate sentence, but that

       9     no juror is ever required by the law to impose

      10     a death sentence.  The decision is yours as

      11     individuals to make.

      12               The process of weighing aggravating

      13     and mitigating factors against each other -- or

      14     weighing aggravating factors alone if you find

      15     no mitigating factors -- in order to determine

      16     the proper punishment, is by no means a

      17     mechanical process.  In other words, you should

      18     not simply count the total number of

      19     aggravating and mitigating factors and reach a

      20     decision based on which number is greater;

      21     rather, you should consider the weight and

      22     value of each factor.  In carefully weighing

      23     these various factors, you are called upon to

      24     make a unique, individual judgment about the

      25     sentence Mr. Mohamed should receive.

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       2               The law contemplates that different

       3     factors may be given different weights or

       4     values by different jurors.  Thus, you may find

       5     one mitigating factor outweighs all aggravating

       6     factors combined, or that the aggravating

       7     factors proved do not, standing alone, justify

       8     imposition of a sentence of death beyond a

       9     reasonable doubt.  Similarly, you may instead

      10     find that a single aggravating factor

      11     sufficiently outweighs, beyond a reasonable

      12     doubt, all mitigating factors combined so as to

      13     justify a sentence of death.

      14               Each juror is individually to decide

      15     what weight or value is to be given to a

      16     particular aggravating or mitigating factor in

      17     the decision-making process.  Bear in mind,

      18     however, that in order to find that a sentence

      19     of death is appropriate for a particular count,

      20     the jurors must be unanimous in their

      21     conclusion, beyond a reasonable doubt, that the

      22     aggravating factor or factors proven as to that

      23     count sufficiently outweigh any mitigating

      24     factors found -- or, in the absence of any

      25     mitigating factors, that the aggravating

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       2     factors alone are sufficient -- to call for a

       3     sentence of death.

       4               If you unanimously find that the

       5     government has failed to prove beyond a

       6     reasonable doubt that death is the appropriate

       7     sentence for Khalfan Khamis Mohamed for any

       8     capital count, please so indicate in Section V

       9     of the Special Verdict Form.  The Court will

      10     then sentence Mr. Mohamed on that count to life

      11     imprisonment without the possibility of

      12     release.  The Court has no other sentencing

      13     option.

      14               In the event that you unanimously

      15     find, beyond a reasonable doubt, that the

      16     balancing process leads you to the conclusion

      17     that a sentence of death is called for as to

      18     all the capital counts, please so indicate in

      19     Section V of the Special Verdict Form.  In the

      20     event that you unanimously find, beyond a

      21     reasonable doubt, that the balancing process

      22     leads you to the conclusion that a sentence of

      23     death is called for as to some but not all of

      24     the capital counts, so indicate in Section V of

      25     the Special Verdict Form and also identify on

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       2     the line provided, by count number, the

       3     particular counts as to which you unanimously

       4     impose the death sentence.

       5               In the event that you are unable to

       6     reach a unanimous verdict either in favor of a

       7     life sentence or in favor of a death sentence

       8     for any of the capital counts, the Court will

       9     then sentence the defendant to life

      10     imprisonment without possibility of release.

      11     The Court has no other sentencing option.

      12     Before you reach any conclusion based on a lack

      13     of unanimity on any count, you should continue

      14     your discussions until you are fully satisfied

      15     that no further discussion will lead to a

      16     unanimous decision.  If you are satisfied that

      17     you cannot reach a unanimous decision either in

      18     favor of a life sentence or in favor of a death

      19     sentence for any of the counts, please so

      20     indicate in the appropriate space in Section V

      21     of the Special Verdict Form.

      22               And let's look at that Special

      23     Verdict Form, Section V.  It's on page 16 and

      24     it tells you that, as used in this section, the

      25     term "capital counts" refers only to those

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       2     counts which you have found at least one

       3     gateway factor in Section I, and at least one

       4     statutory aggravating factor in Section II.

       5     You may not impose a sentence of death on a

       6     particular capital count unless you have first

       7     found with regard to that count, unanimously

       8     and beyond a reasonable doubt, at least one

       9     gateway factor in Section I and at least one

      10     statutory aggravating factor in Section II.

      11               In this section, enter your

      12     determination of the defendant's sentence with

      13     regard to each of the capital counts.  Your

      14     vote as a jury must be unanimous with regard to

      15     each question in this section.

      16               And then your choices:

      17               After considering the information

      18     presented by both sides during the penalty

      19     phase and individually balancing the

      20     aggravating factors found to exist against the

      21     mitigating factors found to exist:

      22               First choice -- first in sequence

      23     listed:  We, the jury, unanimously find that

      24     the government has failed to prove beyond a

      25     reasonable doubt that death is the appropriate

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       2     sentence for Khalfan Khamis Mohamed for any of

       3     the capital counts.  We, therefore, return a

       4     decision that K.K. Mohamed will be sentenced to

       5     life imprisonment without the possibility of

       6     release separately as to each count.

       7               Second choice -- I emphasize second

       8     only in the sequence in which they appear, not

       9     indicating anything else:  We, the jury,

      10     unanimously find beyond a reasonable doubt, for

      11     all of the capital counts, that the aggravating

      12     factor or factors found to exist sufficiently

      13     outweigh the mitigating factor or factors found

      14     to exist -- or, in the absence of any

      15     mitigating factors, that the aggravating factor

      16     or factors are themselves sufficient -- so that

      17     death is the appropriate sentence for Khalfan

      18     Khamis Mohamed.  We vote unanimously that

      19     Khalfan Khamis Mohamed shall be sentenced to

      20     death separately as to each count.

      21               Next choice:  We, the jury,

      22     unanimously find beyond a reasonable doubt, for

      23     some of the capital counts, that the

      24     aggravating factor or factors found to exist

      25     sufficiently outweigh the mitigating factor or

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       2     factors found to exist -- or, in the absence of

       3     any mitigating factors, that the aggravating

       4     factor or factors are themselves sufficient --

       5     so that death is the appropriate sentence for

       6     Khalfan Khamis Mohamed with regard to each of

       7     the following capital counts only (identify

       8     each count by count number).

       9               With regard to the above-listed

      10     capital counts, we vote unanimously that

      11     Khalfan Khamis Mohamed shall be sentenced to

      12     death separately as to each count.  With regard

      13     to each of the remaining capital counts, we

      14     sentence the defendant to life imprisonment

      15     without the possibility of release separately

      16     as to each count.

      17               And the last alternative:  We, the

      18     jury, are unable to reach a unanimous verdict

      19     either in favor of a life sentence or in favor

      20     of a death sentence, for any of the capital

      21     counts.  We understand that the consequence of

      22     this is that Khalfan Khamis Mohamed will be

      23     sentenced to life imprisonment without the

      24     possibility of release.

      25               Returning to the charge, page 31:

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       2               In your consideration of whether the

       3     death sentence is appropriate, you must not

       4     consider the race, color, religious beliefs,

       5     national origin, or sex of either the defendant

       6     or the victims.  You are not to return a

       7     sentence of death unless you would return a

       8     sentence of death for the crime in question

       9     without regard to the race, color, religious

      10     beliefs, national origin, or sex of either the

      11     defendant or any victim.

      12               To emphasize the importance of this

      13     consideration, Section VI of the Special

      14     Verdict Form contains a certification

      15     statement.  Each juror should carefully read

      16     the statement, and sign your juror number in

      17     the appropriate place if the statement

      18     accurately reflects the manner in which each of

      19     you reached your individual decision.

      20               And Section VII calls for you to

      21     complete the certification, signing your name

      22     and placing the certification in an envelope,

      23     which you will have on Thursday, and sealing it

      24     so that your anonymity will be preserved.

      25               I should say -- and that was a

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       2     subject of my conference with the attorneys --

       3     that considering all of the circumstances, we

       4     think it best that you not begin your

       5     deliberations until Thursday, because there is

       6     limited time and understand one of the jurors

       7     isn't feeling well.  So that I am going to ask

       8     on Thursday that all of you return.  If all of

       9     you are here on Thursday, I will then excuse

      10     the three alternates.  But I would ask that the

      11     alternates as well as all the jurors come on

      12     Thursday.

      13               I would also ask that when you arrive

      14     on Thursday, that you not begin your

      15     deliberations until you are all present and I

      16     have said you may begin your deliberations.

      17               Let me just complete the charge,

      18     which is my concluding remarks on page 32.

      19               I have now outlined for you the rules

      20     of law applicable to your consideration of the

      21     death penalty and the process by which you

      22     should determine the facts and weigh the

      23     evidence.  In a few minutes you will retire to

      24     the jury room.  And as I have just said, that

      25     will be on Thursday morning.

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       2               The importance of your deliberations

       3     should be obvious.  I remind you that you can

       4     return a decision sentencing Mr. Mohamed to

       5     death only if all 12 of you are unanimously

       6     persuaded, beyond a reasonable doubt, that the

       7     death sentence is in fact appropriate.

       8               When you are in the jury room, please

       9     discuss all aspects of these sentencing issues

      10     among yourselves with candor and frankness, but

      11     also with a due regard and respect for the

      12     opinions of one another.  Each of you must

      13     decide this question for yourself and not

      14     merely go along with the conclusion of your

      15     fellow jurors.  In the course of your

      16     deliberations, no juror should surrender his or

      17     her conscientious beliefs of what is the truth,

      18     of what is the weight and effect of the

      19     evidence, and what should be the outcome as

      20     determined by that juror's individual

      21     conscience and evaluation of the case.

      22     Remember that the parties and the Court are

      23     relying upon you to give full, considered, and

      24     mature consideration to this sentencing.  By so

      25     doing, you carry out to the fullest your oaths

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       2     as jurors:  That you will well and truly try

       3     the issues of this case and a just result

       4     render.

       5               If it becomes necessary during your

       6     deliberations to communicate with me for any

       7     reason, simply send me a note signed by your

       8     foreperson.  Do not attempt to communicate with

       9     the Court or any other court personnel by any

      10     means other than a signed writing.  I will not

      11     communicate with any member of the jury on any

      12     subject touching on your sentencing decision

      13     other than in writing or orally here in open

      14     court.

      15               When you have reached a decision,

      16     send me a note signed by your foreperson that

      17     you have reached a decision.  Do not indicate

      18     what the decision is in the note.  In no

      19     communications with the Court prior to a

      20     verdict should you ever give a numerical count

      21     of where the jury stands in its deliberations.

      22               Whichever decision you reach, please

      23     sign and fill out the Special Verdict Form

      24     accordingly.  The foreperson must also be

      25     prepared to report to the Court your findings

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       2     as to the gateway, aggravating and mitigating

       3     factors, and then of your sentencing decision.

       4               Let me remind you again that nothing

       5     that I have said in these instructions -- and

       6     nothing that I have said or done during the

       7     trial -- has been said or done to suggest to

       8     you what I think the outcome should be.  What

       9     that sentencing decision should be is your

      10     exclusive duty and responsibility.

      11               That, then, completes the Court's

      12     charge, and I hope you have a happy holiday

      13     tomorrow.  And please remember not to read,

      14     listen to, watch or discuss any aspect of this

      15     case.  And we're adjourned, then, until

      16     Thursday morning.

      17               Please leave everything in the jury

      18     room.  Don't take anything out.

      19               (Jury not present)

      20               THE COURT:  Anything further?

      21               MR. FITZGERALD:  No, Judge.

      22               THE COURT:  We are adjourned, then,

      23     until 9:30 on Thursday.

      24               MR. RUHNKE:  Your Honor, just before

      25     we leave for the day, I would like to adopt

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       2     prior objections to the charge and reiterate

       3     them at this point, and prior requests to

       4     charge that your Honor did not charge.

       5               THE COURT:  Yes.  Very well.  We are

       6     adjourned until Thursday.

       7               (Adjourned until 9:30 a.m. on July 5,

       8     2001)

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