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

This is the transcript of Day 47 of the trial, May 16, 2001.

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

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

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           May 16, 2001
                                                   9:15 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

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                                                                    6284

       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        Assistant United States Attorneys

       6
           ANTHONY L. RICCO
       7   EDWARD D. WILFORD
           CARL J. HERMAN
       8   SANDRA A. BABCOCK
                Attorneys for defendant Mohamed Sadeek Odeh
       9
           FREDRICK H. COHN
      10   DAVID P. BAUGH
           LAURA GASIOROWSKI
      11        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

      12   DAVID STERN
           DAVID RUHNKE
      13        Attorneys for defendant Khalfan Khamis Mohamed

      14
           SAM A. SCHMIDT
      15   JOSHUA DRATEL
           KRISTIAN K. LARSEN
      16        Attorneys for defendant Wadih El Hage

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       1            (Deliberations resumed)

       2            (Time noted, 10:00 a.m.; counsel for Odeh and

       3   al-'Owhali only present, defendants not present)

       4            THE COURT:  The record should reflect the fact that

       5   the jury is all in attendance and has been in attendance since

       6   shortly after 9:00 and is deliberating.

       7            THE COURT:  There is a memorial service for Judge

       8   Edelstein at 4:00 today which I would like to attend but would

       9   give priority to anything related to this case.  The

      10   defendants are not here and there is nobody here for --

      11            MR. COHN:  For scheduling, your Honor, I believe that

      12   I can speak for Mr. Ruhnke.

      13            THE COURT:  All that I want to inquire about is the

      14   status of the open matters.  The Brady motions --

      15            MR. COHN:  That is Mr. Ruhnke.

      16            THE COURT:  I think the ball is in the government's

      17   court?

      18            MR. BUTLER:  I will check with Mr. Karas.

      19            THE COURT:  And the in limine motions, but if

      20   everybody is ready I would rather do it this morning.

      21            MR. COHN:  We can do it this morning.  There are

      22   other open matters.  There is the issue of the El Hage

      23   courtroom incident, which there is an in limine motion from me

      24   on.

      25            THE COURT:  I received a letter which specifically

                                                                    6286

       1   said I am not asking for any action on the part of the court.

       2            MR. COHN:  I don't think I said that.  The government

       3   said they were going to use El Hage's conduct and my client's

       4   alleged participation in their case in chief, with the court

       5   as an intended victim and we were going to request that you

       6   bar --

       7            THE COURT:  Let's not get into the merits.

       8            MR. COHN:  I thought I was asking for a ruling.

       9            THE COURT:  Can we deal with that also?

      10            MR. COHN:  Yes, and there is the question of the Pepe

      11   testimony, if we argue the testimony on the Pepe incident and

      12   we argue the questions of confinement.  Finally there is the

      13   ruling of April 2 that left issues open as to the government's

      14   aggravators.

      15            THE COURT:  Yes.  I thought that I would deal with

      16   those matters post-verdict, and after I received your

      17   submissions due tomorrow with respect to opening statements

      18   and so on.

      19            MR. COHN:  Fine, Judge.  I am just reminding you of

      20   what is open.

      21            THE COURT:  I am aware of that.  With respect to

      22   everything other than that, the other issues -- the Brady

      23   issues, the victim impact, the Al-'Owhali, El Hage matter and

      24   the Pepe matter, we will take them all up at 11:00 today?

      25            MR. BUTLER:  Fine, your Honor.  I will get

                                                                    6287

       1   Mr. Garcia.

       2            MR. BAUGH:  Your Honor, you wanted with respect to

       3   opening statements --

       4            THE COURT:  The court's opening statement to the jury

       5   in the penalty phase.

       6            We will adjourn until 11:00 unless we hear something

       7   from the jury.

       8            (Recess)

       9            (Continued on next page)

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                                                                    6288

       1            THE COURT:  The note from the jury reads:  Judge

       2   Sand:  The jury requests the following items to help in our

       3   deliberations:  1.  160S-T (A.R.C.)

       4            2.  Government's Exhibit 35 and anything related to

       5   the second fatwah.

       6            3.  Transcript of CNN interview.

       7            4.  GX1677-T.

       8            As always, we thank you for your assistance.  Juror

       9   No. 1.

      10            What is 160S-T?

      11            MR. KARAS:  We think that is actually 1605-T, your

      12   Honor.

      13            THE COURT:  Yes, that could be.

      14            MR. KARAS:  That is one of the London exhibits and I

      15   think it is the ARC resolution, which is what the jury has in

      16   parenthesis there.

      17            THE COURT:  Government's Exhibit 35, and anything

      18   related to the second fatwah.

      19            MR. KARAS:  Government Exhibit 35, your Honor, is a

      20   stipulation regarding the Al-Qud article that contained the

      21   February '98 fatwah, and those exhibits are 93, the Al-Qud

      22   article itself, and 93-T, which is the translation.

      23            THE COURT:  And you would construe "and anything

      24   related to the second fatwah" to refer to those two exhibits

      25   referred to in the stipulation?

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       1            MR. KARAS:  Yes, your Honor.

       2            THE COURT:  Anybody object to that?

       3            MR. DRATEL:  No, your Honor.

       4            THE COURT:  Very well.  Transcript of CNN interview,

       5   that is clear enough.

       6            MR. KARAS:  Yes.  That is 80-T, for the record.

       7            THE COURT:  And Government's Exhibit 1677-T is?

       8            MR. KARAS:  The manual found in Manchester.  It is a

       9   computer document.

      10            THE COURT:  What are the numbers of the two exhibits

      11   related to the second fatwah?

      12            MR. KARAS:  93, which is the Al-Qud article, and

      13   93-T, which is the translation.

      14            THE COURT:  So my note reads:  "Ladies and gentlemen,

      15   here are the exhibits you requested.  We enclose Exhibits 93

      16   and 93T as related to Government's Exhibit 35."  Is that

      17   agreeable to everyone?

      18            MR. KARAS:  And as before, your Honor, we will send

      19   in the originals and then make 12 copies.

      20            THE COURT:  Very well, that would be helpful.

      21            The marshal tells me that the jury has advised him of

      22   its desire to leave at 4:30 today.

      23            MR. SCHMIDT:  Your Honor, I would like to raise an

      24   additional issue, your Honor, that is not relevant to

      25   deliberations.

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       1            THE COURT:  Can we get this --

       2            MR. SCHMIDT:  Yes, we can.  Mr. El Hage's wife and

       3   son have been present in the court since the end of last week.

       4   She has been trying to see Mr. El Hage on visits to the MCC.

       5   As you know, they are in Texas and she has been up here on

       6   rare occasions to see Mr. El Hage.  She was able to see Mr. El

       7   Hage last Saturday.  I have been dealing with MCC and trying

       8   to see if we can get the visit of Mr. El Hage with his wife

       9   and child this week.  Since they have been here this week they

      10   have not been able to see him.  I was informed earlier today

      11   that the only time they will allow a visit will be Saturday

      12   for approximately an hour and a half.  Mr. El Hage, since he

      13   is in court all day, every day, waiting for a verdict, and it

      14   is a very stressful time --

      15            THE COURT:  With whom at the MCC have you discussed

      16   this?

      17            MR. SCHMIDT:  I have discussed it with Ms. Raia and

      18   Warden Parks.  The final answer came from Ms. Raia.

      19            I would ask your Honor to intercede to see if,

      20   because of the difficulty in travel for his wife and this very

      21   stressful situation that we are under now, if they could get

      22   an additional visit tomorrow evening after court or today

      23   after court, as well as the Saturday visit.

      24            THE COURT:  I will make inquiry.

      25            MR. SCHMIDT:  Thank you very much.

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       1            THE COURT:  Anything else?  Then we are adjourned

       2   until we hear further from the jury, or until 2:15, when we

       3   will take up the various open matters.

       4            (Recess)

       5            (Continued on next page)

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                                                                    6292

       1                         AFTERNOON SESSION

       2                             2:15 p.m.

       3            THE COURT:  Mr. Schmidt, I have been playing

       4   telephone tag with the MCC.

       5            The note from the jury reads:  Dear Judge Sand.

       6   Please provide us with the following exhibits:  1528-T, 1537,

       7   1557D-T, 1557E-T, 1580A-T, 1580E-T, 1580E-T.  Thank you.

       8   Juror No. 1.

       9            Any problem?  What are these exhibits?

      10            MR. KARAS:  1557 and 1580 are the different claims of

      11   responsibility.  1528 and 1537 I will have to doublecheck.

      12            1528 is a letter that was found in London from Ashraf

      13   to Abu Abdallah.  1537 is also a London bomb, the Islamic

      14   nuclear bomb, a communique issued by the Islamic Front.

      15            THE COURT:  Do we have them all?

      16            MR. KARAS:  We have them all, and as before, we would

      17   propose to put in both the Arabic originals and the

      18   translations.

      19            THE COURT:  Yes.

      20            (Court Exhibits I and II of this date duly marked)

      21            THE COURT:  So we will send them in to the jury with

      22   a note saying herewith the exhibits you requested in your

      23   latest note.

      24            This morning we listed a number of matters to be

      25   taken up at this time.  I understand that there has been some

                                                                    6293

       1   consensual resolution of some of these issues.

       2            MR. COHN:  Your Honor, there has been consensual

       3   resolution as to one.  The other, from my point of view, is on

       4   the cusp.  The third one, they have given us submissions that

       5   address some of the issues which are photographic evidence,

       6   not other parts of our application, but they have been kind

       7   enough to ask that we be able to review this before we have

       8   that argument tomorrow.

       9            So as far as I know, if your Honor is prepared to

      10   hear it tomorrow, the issue on victim impact is still open and

      11   that will be argued tomorrow morning.  As to the others, one

      12   is resolved and one is probably resolved.

      13            THE COURT:  I think you have to be more specific than

      14   that.  There was an issue raised with respect to the

      15   government's views of Al-'Owhali's alleged role with respect

      16   to the incident involving El Hage.

      17            MR. COHN:  Resolved.  That is resolved.  We need not

      18   address that as far as I understand the government's position.

      19            MR. FITZGERALD:  Judge, based upon the

      20   representations of counsel, which I think we can put them on

      21   the record in the robing room as to what evidence they are not

      22   offering and what issues they are not raising, the government

      23   does not intend to elicit the alleged role of al-'Owhali in

      24   the courtroom incident at the penalty phase proceeding.  We do

      25   not intend to offer proof of that.

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       1            THE COURT:  And the issue with respect to the Pepe

       2   matter --

       3            MR. COHN:  We have told the government what it is

       4   that we intend to prove by way of our submission on jail

       5   conditions and security in terms of future dangerousness.  The

       6   government is considering that in determining how much they

       7   will respond vis a vis Pepe, and that is open discussion.  I

       8   think it is resolved.

       9            MR. FITZGERALD:  Judge, we are not going to offer the

      10   incident involving Officer Pepe on our direct case.  We

      11   discussed with the Al-'Owhali team what their defense will be

      12   on the issue of dangerousness.  We are figuring out what we

      13   can say as to what our likely rebuttal case will be.  So it

      14   will not be on our direct case.

      15            MR. COHN:  We have at least told the government what

      16   our position is going to be so we can know how they will

      17   respond.  My own feeling is that that is probably resolved.

      18   We will know that tomorrow.

      19            THE COURT:  Is there any issue with respect to victim

      20   impact other than photographs?

      21            MR. COHN:  Yes.  Well, there may be.  They have given

      22   us all these photographs which we really want to deal with,

      23   and we think that for everybody's sake it is probably better

      24   that we resolve that tomorrow morning.

      25            THE COURT:  I have no problem deferring.  I just want

                                                                    6295

       1   to make sure what is open and what isn't open.

       2            There were requests for summaries, for additional

       3   information with respect to the victims, and the government

       4   has submitted redacted 3500's with respect to the victims and

       5   a chart with a summary of the victims' testimony --

       6            MR. COHN:  Our request was after the government's

       7   submission.  We regard that as insufficient.  I don't know

       8   whether the government has responded to that in this

       9   submission that they made today or not.  If they haven't, we

      10   will have to resolve that tomorrow.

      11            MR. GARCIA:  We have, Judge.  I think there are three

      12   issues on the victim impact material.  One is

      13   photographic/videotapes of victims and deceased victims.  The

      14   second issue is the amount of victim witness testimony.  The

      15   third issue is the disclosure made to date by the government

      16   in response to your Honor's order for the bill of particulars.

      17   All those issues are addressed in the covering memorandum

      18   attached to the actual photographic exhibits the government

      19   intends to offer.

      20            THE COURT:  So we will adjourn until 10 a.m. tomorrow

      21   for matters relating to victim impact.

                                                                    6219

       1            (Time noted, 4:15 p.m.)

       2            THE COURT:  The note from the jury reads --

       3            MR. WILFORD:  Excuse me, your Honor.  There is nobody

       4   here for Khalfan Khamis Mohamed.

       5            THE COURT:  It requires no decision-making, no

       6   action.  I will repeat it when Mr. Ruhnke returns:  For

       7   testimony, we would like to have Special Agent Gaudin's

       8   testimony read to us.  Specifically, we are interested in what

       9   he said regarding why embassies are targeted.  Again we thank

      10   you.

      11            What I would suggest that we do is we identify and

      12   read to them only that portion of his testimony, and I will

      13   explicitly say to them if there is anything further with

      14   respect to Agent Gaudin's testimony that you would like,

      15   please send us another note.

      16            Let us get together tomorrow at 9:45 to make sure

      17   that there is consensus on what portions of the testimony are

      18   to be read.

      19            Has somebody called Mr. Ruhnke?

      20            (Pause)

      21            (All counsel and defendants present)

      22            THE COURT:  Counsel for K.K. Mohamed has arrived and

      23   the defendants are present.  Madam Reporter, would you read

      24   the last colloquy.

      25            (Record read)

                                                                    6220

       1            THE COURT:  So we will adjourn then until 9:45

       2   tomorrow, at which time I hope counsel will have agreed on

       3   what portions of Gaudin's testimony, direct and cross, deal

       4   with the questions of why embassies are targeted.  Subject to

       5   receiving another note from the jury within the next 10

       6   minutes, we are adjourned until tomorrow at 9:45.

       7            (Proceedings adjourned until 9:45 a.m., Thursday, May

       8   17, 2001)

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