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

This is the transcript of Day 43 of the trial, May 10, 2001.

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

                                                                    6157

       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 10, 2001
                                                   1:00 p.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6158

       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
           SAM A. SCHMIDT
       7   JOSHUA DRATEL
           KRISTIAN K. LARSEN
       8   MARSHALL MINTZ
                Attorneys for defendant Wadih El Hage
       9
           ANTHONY L. RICCO
      10   EDWARD D. WILFORD
           CARL J. HERMAN
      11   SANDRA A. BABCOCK
                Attorneys for defendant Mohamed Sadeek Odeh
      12
           FREDRICK H. COHN
      13   DAVID P. BAUGH
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
      14
           DAVID STERN
      15   DAVID RUHNKE
                Attorneys for defendant Khalfan Khamis Mohamed
      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6159

       1            (In open court)

       2            THE COURT:  Please be seated and inquire:  Somebody

       3   wanted to call something to my attention?

       4            MR. COHN:  It had nothing to do with the cases.

       5            THE COURT:  It had nothing to do with the case.

       6            MR. COHN:  We'll wait until you have a more opportune

       7   moment.

       8            THE COURT:  We'll pick a more opportune moment.

       9            Comparing the charge and the transcript and what

      10   people have told me, there are one or two corrections that

      11   I'll have to make or possible ambiguities that I will have to

      12   clarify, which I will do.

      13            Apparently, in the transcript in the standard

      14   "reasonable doubt" which says "cause a reasonable person to

      15   hesitate to act," "to hesitate" was left out.  I'm sure I said

      16   it.  I say it in my sleep.  Okay.

      17            MR. COHN:  We've already had one case in the circuit

      18   about the transcript in reality.

      19            THE COURT:  I have that very much in mind, which is

      20   why I will resolve any possible doubts that I'm aware of.

      21            This motion in limine on behalf of Al-'Owhali, I take

      22   it it has been served on the government.

      23            MR. COHN:  It should have been.  I don't know which

      24   one it is, whether those are the ones Mr. Baugh filed or

      25   whether the one we're filing.

                                                                    6160

       1            THE COURT:  Introduction of photographs.

       2            MR. FITZGERALD:  Yes, we just received it.

       3            THE COURT:  There is a slight delay in the jury

       4   coming out.  Nothing serious.

       5            MR. HERMAN:  Judge, there's a request that the first

       6   break be a prayer break this afternoon, if that's convenient.

       7            THE COURT:  Yes.

       8            MR. HERMAN:  Thank you.

       9            (Jury present)

      10            THE COURT:  Good afternoon.

      11            I have been reviewing what I said yesterday, what I

      12   intended to say yesterday and with the transcript, and there

      13   are one or two instances in which there is some variation.

      14   And of course, I don't know whether I misspoke, which is

      15   highly possible, or whether there was an error in

      16   transcription, but in any event, the simplest thing is to

      17   clear it up.

      18            When I talked to you about reasonable doubt, and

      19   that's on page 11 of the charge, I said, "Proof beyond a

      20   reasonable doubt must, therefore, be proof of such a

      21   convincing character that a reasonable person would not

      22   hesitate to rely and act on it in the most important of his

      23   own affairs."  I said earlier, talking about a reasonable

      24   doubt, "It is a doubt that would cause a reasonable person to

      25   hesitate to act in a matter of importance in his or her

                                                                    6161

       1   personal life."

       2            Some words were omitted in the transcript, which is

       3   on page 6048 for those who have a transcript.  I think the

       4   meaning was clear, but in case there is any question about it,

       5   understand that it is a doubt that would cause a person to

       6   hesitate to act in a matter of importance.

       7            And then on page 21 when I was talking about the fact

       8   that some witnesses who have testified have pleaded guilty, I

       9   meant to say, "The decision of that witness to plead guilty

      10   was based on a personal decision of his concerning his own

      11   guilt, and in light of the benefits afforded by the government

      12   to a cooperating witness."  And if in fact I said anything

      13   else, understand that that's what I intended to say.

      14            And finally, along these lines, on page 37, talking

      15   about multiple conspiracies and talking about what the

      16   defendants claim, let me read the whole paragraph.

      17            "Here, some of the defendants contend that the

      18   government's proof fails to show under any of the four

      19   conspiracy counts that there existed only one overall

      20   conspiracy.  Rather, they claim that, as to each of the four

      21   conspiracy counts, to the extent the government has proven the

      22   existence of any conspiracy, there are actually several

      23   separate and independent conspiracies with various groups of

      24   members."

      25            When we left off yesterday, I drew your attention to

                                                                    6162

       1   the page in the special verdict form, which is page 28,

       2   regarding Counts 222 through 232, and that special verdict

       3   form is similar to the verdict form with respect to the

       4   preceding counts except it relates to K.K. Mohamed and the

       5   embassy in Dar es Salaam, Tanzania, and calls upon you to

       6   indicate whether you find K.K. Mohamed guilty or not guilty

       7   with respect to each of those counts and whether, if you find

       8   him guilty, whether you find that he himself killed the victim

       9   or whether he aided and abetted another to kill the victim.

      10            With respect to Counts Nine through 221, there is a

      11   stipulation marked Government Exhibit 39 which lists the

      12   persons who were allegedly killed during the bombing in

      13   Nairobi, Kenya, and there is a similar stipulation marked

      14   Government Exhibit 54 which is relevant to Counts 222 through

      15   232 and which indicates those persons who were allegedly

      16   killed during the bombing in Dar es Salaam, Tanzania, all of

      17   which brings us to page 92 of my charge.

      18            And there are going to be, on a few occasions, some

      19   changes in stipulation numbers.  Apparently there was some

      20   confusion with respect to stipulation numbers.  So that if you

      21   are taking notes or if you have a writing instrument, you may

      22   want to note the changed stipulation numbers.

      23            Counts 233 through 273 of the indictment charge

      24   defendants Mohamed Odeh and Mohamed Rashid Daoud Al-'Owhali

      25   with the murder of officers and employees of the United States

                                                                    6163

       1   in Nairobi, Kenya.  Specifically, Counts 233 through 273

       2   charge that:

       3            On or about August 7, 1998, in Nairobi, Kenya, and

       4   outside the jurisdiction of any particular state or

       5   district, ... defendants Odeh and Al-'Owhali, ... at least one

       6   of whom was first brought to and arrested in the Southern

       7   District of New York, and others known and unknown,

       8   unlawfully, willfully, deliberately, and maliciously, and with

       9   a malice aforethought and with premeditation, did murder

      10   officers and employees of the United States Government, while

      11   such officers and employees were engaged in and on account of

      12   the performance of their official duties, and persons

      13   assisting such United States Government officers and employees

      14   in the performance of their duties, on account of that

      15   assistance.

      16            These counts appear in paragraph 38 of the

      17   indictment, and each count corresponds to an employee of the

      18   United States killed in the explosion at the United States

      19   Embassy in Nairobi, Kenya, on August 7, 1998.  In this regard,

      20   the stipulation marked Government Exhibit 42 -- not 39, as

      21   appears there, 42 -- is relevant.

      22            Counts 275 and 276 of the indictment charge defendant

      23   K.K. Mohamed with the murder of officers and employees of the

      24   United States in Dar es Salaam, Tanzania.  Specifically,

      25   Counts 275 and 276 charge:

                                                                    6164

       1            On or about August 7, 1998, in Dar es Salaam,

       2   Tanzania, and outside the jurisdiction of any particular state

       3   or district, ... K.K. Mohamed ... [who] was first brought to

       4   and arrested in the Southern District of New York, and others

       5   known and unknown, unlawfully, deliberately, and maliciously,

       6   and with malice aforethought and with premeditation, did

       7   murder officers and employees of the United States Government,

       8   while such officers and employees were engaged in and on

       9   account of their official duties, and the persons assisting

      10   such United States Government officers and employees in the

      11   performance of their duties, on account of that assistance.

      12            These Counts appear in paragraph 42 of the

      13   indictment, and each count corresponds to an employee of the

      14   United States killed in the explosion at the United States

      15   Embassy in Dar es Salaam, Tanzania on August 7, 1998.  And in

      16   this regard, the stipulation marked Government Exhibit 55 --

      17   55 -- is relevant.

      18            The statute that the defendants are charged with

      19   violating in these Counts provides:

      20            Whoever kills ... any officer or employee of the

      21   United States or of any agency in any branch of the United

      22   States Government (including any member of the uniformed

      23   services) while such officer or employee is engaged in or on

      24   account of the performance of official duties, or any person

      25   assisting such an officer or employee in the performance of

                                                                    6165

       1   such duties or on account of that assistance is guilty of a

       2   crime.

       3            In these counts, the government further alleges that

       4   the defendants committed the killings with malice aforethought

       5   and with premeditation.

       6            To satisfy its burden of proof as to Counts 233

       7   through 273 and Counts 275 and 276, the government must prove

       8   each of the following elements beyond a reasonable doubt:

       9            First, that the defendant you are considering killed,

      10   or aided and abetted the killing of, the victim charged in the

      11   that count;

      12            Second, that the victim was an officer or employee of

      13   the United States Government or of any agency in any branch of

      14   the United States Government and was engaged in or killed on

      15   account of the performance of his official duties at the time

      16   in question;

      17            Third, that the defendant acted unlawfully;

      18            Fourth, that the defendant acted with malice

      19   aforethought; and

      20            Fifth, that the defendant acted with premeditation.

      21            The first element of these counts that the government

      22   must prove beyond a reasonable doubt is that the defendant you

      23   are considering killed, or aided and abetted the killing of,

      24   the victim charged in that count of the indictment.

      25            As I explained to you earlier, it is the government's

                                                                    6166

       1   burden to prove that the defendant's conduct was the direct

       2   cause of the victim's death.  That means simply that the

       3   government must prove that the defendant inflicted an injury

       4   or injures upon the victim from which the victim died, or

       5   aided and abetted another to inflict such injures.  The

       6   definition of "aiding and abetting" provided in Counts Five

       7   and Six is applicable to this element of these counts, as

       8   well.  Recall that with respect to the defendant Odeh, the

       9   government's theory is that he aided and abetted the

      10   commission of the crime.  The government does not allege that

      11   defendant Odeh physically carried out the crimes charged in

      12   Counts 233 through 273.

      13            The second element of these counts that the

      14   government must prove beyond a reasonable doubt is that the

      15   victim in the count you are considering was an officer or

      16   employee of the United States Government or any agency or

      17   branch of the United States Government and was engaged in or

      18   killed on account of the performance of official duties at the

      19   time in question.  The law criminalizing the murder of

      20   officers and employees of the United States is designed to

      21   protect federal employees and federal functions.  I instruct

      22   you that individuals employed by United States embassies are

      23   officers and employees of the United States.

      24            This element may be satisfied in one of two ways.

      25   First, it is sufficient to satisfy this element for the

                                                                    6167

       1   government to show you that, at the time in question, the

       2   victim you are considering was in fact an officer or employee

       3   of the United States engaged in the performance of his or her

       4   official duties.  Here, the government does not have to prove

       5   that the defendant you are considering knew that the victim

       6   was an officer or employee of the United States Government;

       7   nor must the government show that the defendant knew that the

       8   victim was engaged in the performance of his or her official

       9   duties.

      10            The second and alternative way for the government to

      11   satisfy this element is by showing that, at the time in

      12   question, the victim you are considering was an officer or

      13   employee of the United States who was killed on account of the

      14   performance of his or her official duties.  I instruct you

      15   that a person performs an "official duty" when acting within

      16   the scope of what he or she is employed to do.  Here, the

      17   government must prove that the defendant you are considering

      18   was motivated to kill the victim by that victim's performance

      19   of his or her official duties.

      20            The third element of these counts that the government

      21   must prove beyond a reasonable doubt is that the defendant you

      22   are considering acted unlawfully.

      23            As I told you earlier, an act is done unlawfully if

      24   it is done without valid justification or excuse.  While the

      25   taking of a human life is a most serious matter, not all

                                                                    6168

       1   killing, even when intentional, is unlawful.  In the context

       2   of Counts 233 through 273, and Counts 275 and 276, the law

       3   forbids killings done without valid justification or excuse.

       4   If you find that the defendant you are considering committed a

       5   killing without valid justification or excuse, this element is

       6   satisfied.

       7            The fourth element of these counts that the

       8   government must prove beyond a reasonable doubt is that the

       9   defendant you are considering acted with malice aforethought.

      10   As I instructed you earlier when explaining the elements of

      11   Counts Nine through 232, malice is a state of mind that would

      12   cause a person to act without regard to the life of another.

      13   To satisfy this element, the defendant must have acted

      14   consciously, with the intent to kill another person.

      15            To show malice, the government must prove that the

      16   defendant acted willfully, with a bad or evil purpose to break

      17   the law.  However, the government need not prove spite,

      18   malevolence, hatred, or ill will to the victim.

      19            The fifth and final element of these counts that the

      20   government must prove beyond a reasonable doubt is that the

      21   defendant you are considering acted with premeditation.

      22            Again, I defined "premeditation" for you earlier, but

      23   I will reiterate it here.  An act is done with premeditation

      24   if it is done upon deliberation.  The government, to show

      25   premeditation, must show that the defendant killed the victim

                                                                    6169

       1   only after thinking the matter over, deliberately,

       2   deliberating whether to act before committing the crime.

       3   There is no requirement that the government prove that the

       4   defendant deliberated for any particular period of time.  It

       5   is sufficient to satisfy this element if you find that before

       6   he acted, the defendant had a period of time to become fully

       7   aware of what he intended to do and to think it over.

       8            If you find that the defendant killed a victim, or

       9   aided and abetted the killing of a victim, as a result of a

      10   premeditated design to effect the death of a different person,

      11   then the requirement of premeditation as to the victim you are

      12   considering is satisfied.

      13            On the special verdict form, you must indicate your

      14   unanimous verdict as to each defendant for each of these

      15   counts.

      16            And if we look at page 29 of the special verdict

      17   form, you will see it says Counts 233 through 273 charge

      18   defendants Odeh and Al-'Owhali with the murder of officers and

      19   employees of the United States in Nairobi, Kenya.

      20            And then again, it goes on to explain that you are to

      21   find the defendant guilty or not guilty, and that with respect

      22   to the defendant Al-'Owhali, if you find him guilty, you are

      23   also to indicate whether your finding of guilt was based on

      24   your determination that he himself killed the victim or

      25   whether he aided and abetted another to kill the victim.

                                                                    6170

       1            Counts 274 and 277, also, if you look at page 34 of

       2   the special verdict form, that covers Counts 275 and 276, the

       3   defendant K.K. Mohamed, the victims as listed there, and the

       4   places for you to indicate your finding as to guilt or not

       5   guilt; and if your finding is one of guilty, a finding as to

       6   whether you find it based on a finding that he himself killed

       7   or whether he aided and abetted in the killing.

       8            Counts 274 and 277, which we begin to address on page

       9   98, charge defendants Odeh and Al-'Owhali with the attempted

      10   murder of officers and employees of the United States by

      11   bombing the United States Embassy in Nairobi, Kenya, on August

      12   7, 1998.

      13            Specifically, Count 274 and alleges that they, and

      14   others known and unknown, unlawfully, willfully, deliberately

      15   and maliciously and with malice aforethought and premeditation

      16   did attempt to murder officers and employees of the United

      17   States Government, while such officers and employees were

      18   engaged in and on account of the performance of their official

      19   duties, and persons assisting such United States Government

      20   officers and employees in the performance of their duties by

      21   bombing the United States Embassy in Nairobi, Kenya.

      22            Count 277 similarly charges defendant K.K. Mohamed

      23   with the attempted murder of officers and employees of the

      24   United States by bombing the United States Embassy in Dar es

      25   Salaam, Tanzania.  And the language in 277 parallels that in

                                                                    6171

       1   274, except the name of the defendant and the identification

       2   of the embassy.

       3            The statute that the defendants are charged with

       4   violating in Counts 274 and 277 provides:

       5            Whoever... attempts to kill any officer or employee

       6   of the United States or of any agency in any branch of the

       7   United States Government ... while such officer or employee is

       8   engaged in or on account of the performance of official

       9   duties, or any person assisting such an officer or employee in

      10   the performance of such duties or on account of that

      11   assistance is guilty of a crime.

      12            To satisfy its burden of proof as to Counts 274 and

      13   277, the government must prove each of the following elements

      14   beyond a reasonable doubt:

      15            First, that on or about August 7, 1998, the defendant

      16   you are considering unlawfully, with malice aforethought, and

      17   with premeditation attempted to murder officers or employees

      18   of the United States, or that he unlawfully, with malice

      19   aforethought, and with premeditation, aided and abetted

      20   another to do so; and

      21            Second, that the officers or employees of the United

      22   States whom the defendant attempted to murder were engaged in

      23   or were targeted because of the performance of their official

      24   duties at the time in question.

      25            The first element that the government must prove

                                                                    6172

       1   beyond a reasonable doubt is that on or about August 7, 1998,

       2   the defendant you are considering unlawfully, with malice

       3   aforethought, and with premeditation attempted to murder

       4   officers or employees of the United States in Nairobi, Kenya

       5   (as to Count 274), or Dar es Salaam, Tanzania (as to Count

       6   277), or that he, unlawfully, with malice aforethought, and

       7   with premeditation, aided and abetted another person to do so.

       8   Recall, again, that the government's theory with respect to

       9   defendant Odeh is that he aided and abetted the commission of

      10   the offense.  The government does not allege that defendant

      11   Odeh physically carried out the crime charged in Count 274.

      12   The definition of "aiding and abetting" that I gave you

      13   earlier applies to this element of these counts.

      14            To satisfy the first element of Counts 274 and 277,

      15   you must find that the government has proven beyond a

      16   reasonable doubt both of the following two sub-elements:

      17            First, that on or about August 7, 1998, the defendant

      18   unlawfully, with malice aforethought, and with premeditation

      19   intended to cause the death of United States officers or

      20   employees; and

      21            Second, that on or about August 7, 1998, the

      22   defendant willfully took some action that was a substantial

      23   step in an effort to bring about or accomplish the murder.

      24            And you should refer to my previous instructions as

      25   to what it means to act "unlawfully," "with malice

                                                                    6173

       1   aforethought," and "with premeditation," and those definitions

       2   apply here.

       3            A person intends to cause the death of another person

       4   when his conscious objective is to cause the death of that

       5   person.  He need not know who the person is to have such an

       6   intent.

       7            Mere intention to commit a serious crime does not

       8   amount to an attempt.  To convict a defendant of an attempt,

       9   you must find beyond a reasonable doubt that the defendant

      10   intended to commit the crime charged, and that he took some

      11   steps, some action that was a "substantial step" toward the

      12   commission of that crime.

      13            In determining whether the defendant's actions

      14   amounted to a substantial step toward the commission of the

      15   crime, you must distinguish between mere preparation on the

      16   one hand, and the actual doing of the criminal deed on the

      17   other.  Mere preparation, which may consist of planning or of

      18   devising, obtaining or arranging a means for its commission,

      19   is not an attempt, although some preparations may amount to an

      20   attempt.  The acts of a person who intends to commit a crime

      21   will constitute an attempt where the acts themselves clearly

      22   indicate an intent to willfully commit the crime, and the acts

      23   are a substantial step in a course of conduct planned to

      24   culminate in the commission of the crime.

      25            The second element of Counts 274 and 277 that the

                                                                    6174

       1   government must prove beyond a reasonable doubt is that on or

       2   about August 7, 1998, individuals present in the United States

       3   embassies in Nairobi, Kenya and Dar es Salaam, Tanzania were

       4   officers or employees of the United States and were engaged in

       5   or targeted on account of the performance of official duties.

       6   Again, I instruct you that individuals employed by United

       7   States embassies are officers or employees of the United

       8   States.

       9            Please note, however, that to satisfy this element of

      10   Count 274, the government must prove that any persons that you

      11   find to be officers or employees of the United States for

      12   purposes of Count 274 are persons other than those persons

      13   identified in Counts 233 to 273.  Likewise, to satisfy this

      14   element for Count 277, the government must prove that any

      15   persons that you find to be officers or employees of the

      16   United States for purposes of Count 277 must be persons other

      17   than those persons identified in Counts 275 and 276.  This is

      18   because the offense of attempted murder does not apply to

      19   victims who were actually killed.

      20            So if the victim was actually killed, it is dealt

      21   with in the earlier Count.  These Counts deal with persons who

      22   were not actually killed.

      23            This element may be satisfied in one of two ways.

      24   First, it is sufficient to satisfy this element for the

      25   government to show that, at the time in question, the

                                                                    6175

       1   individuals were in fact officers or employees of the United

       2   States engaged in the performance of their official duties.

       3   Here, the government does not have to prove that the defendant

       4   you are considering knew that the individuals were officers or

       5   employees of the United States Government; nor must the

       6   government show that the defendant knew that the individuals

       7   were engaged in the performance of their official duties.

       8            The second and alternative way for the government to

       9   satisfy this element is by showing that, at the time in

      10   question, the individuals were officers or employees of the

      11   United States who were targeted on account of the performance

      12   of official duties.  I instruct you that a person performs an

      13   "official duty" when acting within the scope of what he or she

      14   is employed to do.  Here, the government must prove that the

      15   defendant you are considering was motivated to target the

      16   individuals by their performance of their official duties.

      17            On the special verdict form, you must indicate your

      18   unanimous verdict as to these counts, with respect to the

      19   defendants you are considering.

      20            And you will see that Count 274 calls for you to

      21   indicate whether you find the defendant Odeh guilty or not

      22   guilty, reminds you that as to him the charge is only that he

      23   aided and abetted, that with respect to Al-'Owhali, you are to

      24   find whether he is guilty or not guilty; and if you find him

      25   guilty, you are to answer whether you find that he himself

                                                                    6176

       1   committed the offense in Count 274 or aided and abetted the

       2   commission of the offense in Count 274.  And I remind you, you

       3   answer one, but not both.  If you find that somebody himself

       4   committed the offense, you need not consider whether he aided

       5   or abetted another in the commission of the offense.

       6            We turn then to Counts 278 and 279, which charge the

       7   defendants Odeh and Al-'Owhali with the murder of

       8   internationally protected persons by bombing the United States

       9   Embassy in Nairobi, Kenya, on August 7, 1998.  The Count

      10   charges that on or about August 7, 1998, in Nairobi, Kenya,

      11   and outside the jurisdiction of any particular state or

      12   district, ... defendants Odeh and Al-'Owhali -- skipping the

      13   jurisdictional language which we'll talk about later -- and

      14   others known and unknown, unlawfully, willfully, knowingly,

      15   deliberately, and maliciously, and with malice aforethought

      16   and with premeditation, did murder representatives, officers,

      17   employees and agents of the United States Government, who at

      18   the time and place concerned were entitled pursuant to

      19   international law to special protection against attack upon

      20   their persons, freedom and dignity.

      21            The statute in question provides "[w]hoever

      22   kills ... [an] internationally protected person" is guilty of

      23   a crime.  As I have previously explained, an "internationally

      24   protected person" is defined to include a "representative,

      25   officer, employee, or agent of the United States Government

                                                                    6177

       1   ... who at the time and place concerned is entitled pursuant

       2   to international law to special protection against attack upon

       3   his person, freedom or dignity."

       4            In these counts, the government further alleges that

       5   the defendants committed the killings with malice aforethought

       6   and with premeditation.

       7            To satisfy its burden of proof as to Counts 278 and

       8   279 with respect to the defendant you are considering, the

       9   government must prove each of the following elements beyond a

      10   reasonable doubt:

      11            First, that the defendant killed, or aided and

      12   abetted the killing of, the victim as charged;

      13            Second, that the victim was a representative,

      14   officer, employee, or agent of the United States Government

      15   who at the time and place concerned was entitled pursuant to

      16   international law to special protection against attack upon

      17   his person, freedom, or dignity;

      18            Third, that the defendant acted unlawfully;

      19            Fourth, that the defendant acted with malice

      20   aforethought; and

      21            Fifth, that the defendant acted with premeditation.

      22            The first element of Counts 278 and 279 that the

      23   government must prove beyond a reasonable doubt is that the

      24   defendant you are considering killed, or aided and abetted the

      25   killing of, the victim charged in that count of the

                                                                    6178

       1   indictment.

       2            As I explained to you earlier, it is the government's

       3   burden to prove that the defendant's conduct was the direct

       4   cause of the victim's death.  That means simply that the

       5   government must prove that the defendant inflicted an injury

       6   or injuries upon the victim from which the victim died, or

       7   aided and abetted another to inflict such injuries.

       8            The definition of "aiding and abetting" provided

       9   earlier applies to this element of these counts.  Recall that

      10   with respect to these counts and defendant Odeh, the

      11   government's theory is that he aided and abetted the

      12   commission of the offenses charged.  The government does not

      13   allege that defendant Odeh physically carried out the crimes

      14   charged in Counts 278 and 279.

      15            The second element of these counts that the

      16   government must prove beyond a reasonable doubt is that the

      17   victim was a representative, officer, employee, or agent of

      18   the United States Government who at the time and place

      19   concerned was entitled pursuant to international law to

      20   special protection against attack upon his person, freedom, or

      21   dignity.

      22            The parties have stipulated -- and it's not in the

      23   text, but the stipulation is Government Exhibit 40, 4-O -- the

      24   parties have stipulated in Government Exhibit 40 that Julian

      25   Leotis Bartley, Sr., and Prabhi Gutpara Kavaler, were

                                                                    6179

       1   employees of the United States Government entitled to such

       2   special protection under international law on August 7, 1998.

       3   As I have already instructed you, the government does not have

       4   to prove that the defendants knew the identity of these

       5   internationally protected persons, or that the defendants knew

       6   that these individuals were internationally protected persons.

       7            The third element of Counts 278 and 279 that the

       8   government must prove beyond a reasonable doubt is that the

       9   defendant you are considering acted unlawfully.

      10            As I told you earlier, an act is done unlawfully if

      11   it was done without justification or excuse.  While the taking

      12   of a human life is a most serious matter, not all killing,

      13   even when intentional, is unlawful.  In the context of Counts

      14   278 and 279, the law forbids killings done without valid

      15   justification or excuse.  And if you find that the defendant

      16   you are considering committed a killing without valid

      17   justification or excuse, this element is satisfied.

      18            The fourth element that the government must prove

      19   beyond a reasonable doubt is that the defendant you are

      20   considering acted with malice aforethought.

      21            As I instructed you earlier, malice is a state of

      22   mind that would cause a person to act without regard to the

      23   life of another.  To satisfy this element, the defendant must

      24   have acted consciously, with the intent to kill another

      25   person.

                                                                    6180

       1            To establish this element, the government must prove

       2   that the defendant acted willfully, with a bad or evil purpose

       3   to break the law.  However, the government need not prove

       4   spite, malevolence, hatred, or ill will to the victim.

       5            And the fifth element as to these two counts, 278 and

       6   279, is that the government must prove beyond a reasonable

       7   doubt that the defendant you are considering acted with

       8   premeditation.

       9            I defined that earlier, but I'll repeat it.  An act

      10   is done with premeditation if it is done upon deliberation.

      11   To satisfy this element, the government must prove the

      12   defendant killed the victim, or aided and abetted the killing

      13   of the victim, only after thinking the matter over,

      14   deliberating whether to act before committing the crime.

      15   There is no requirement that the government prove that the

      16   defendant deliberated for any particular period of time.  It

      17   is sufficient to satisfy this element if you find that before

      18   he acted, the defendant had a period of time to become fully

      19   aware of what he intended to do and to think it over.

      20            With respect to each of the defendants you are

      21   considering, you must indicate your unanimous verdict for

      22   Counts 278 and 279 on the special verdict form, which appears

      23   on page 36.

      24            While we're looking at the special verdict form, if

      25   you turn back to Count 277 and to the previous page, you will

                                                                    6181

       1   see that there is a provision for your findings with respect

       2   to Count 277 and the defendant K.K. Mohamed, which asks the

       3   question of whether you find him guilty or not guilty; and if

       4   you find him guilty, whether you find that he himself

       5   committed the offense or aided and abetted the commission of

       6   the offense.

       7            For Counts 278 and 279, you will see there is a

       8   provision for you to find with respect to Odeh whether he is

       9   guilty or not guilty, that the other two boxes are blacked out

      10   because there is no claim that he himself caused the death,

      11   killed the victim.  The only allegation with respect to Odeh

      12   is that he aided and abetted the commission of that crime.

      13            With respect to Al-'Owhali, the government contends

      14   that he is guilty because he himself killed the victim or,

      15   alternatively, that he aided and abetted another in the

      16   killing of the victim.

      17            Now, Counts 280 and 281 deal with attempted murder of

      18   internationally protected persons.  And again, I'm sure you

      19   realize the pattern here, beginning in the earlier counts,

      20   which were the conspiracy counts, and then the substantive

      21   counts, which deal with the allegations of the actual

      22   commission of the crime, and now we have this count and other

      23   counts that deal with attempt, attempted murder, where the

      24   intended victim was not actually killed, but there was an

      25   attempt to do so.

                                                                    6182

       1            So I'm sure you're aware of the repetition, there is

       2   a similarity with respect to these counts, but the differences

       3   are what the status of the victim was, whether the victim

       4   actually died or not, or whether there was an attempt to kill

       5   the victim.

       6            And Counts 280 and 281 deal with attempted murder of

       7   internationally protected persons.

       8

       9            (Continued on next page)

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6183

       1            THE COURT:  (Continuing) Count 280 of the indictment

       2   charges the defendants Odeh and Al-'Owhali with the attempted

       3   murder of the ambassador of the United States to Kenya, and

       4   other representatives, officers, employees, and agents of the

       5   United States government by bombing the United States Embassy

       6   in Nairobi, Kenya, on August 7, 1998, and charges that they,

       7   and others known and unknown, unlawfully, willfully,

       8   knowingly, deliberately and maliciously, and with malice

       9   aforethought and with premeditation, did attempt to murder the

      10   ambassador of the United States to Kenya and other

      11   representatives, officers, employees and agents of the United

      12   States government, who at the time and place concerned were

      13   entitled pursuant to international law to special protection

      14   against attack upon their persons, freedom and dignity, by

      15   bombing the United States Embassy in Nairobi, Kenya.

      16            Count 281 of the indictment charges defendant K.K.

      17   Mohamed with the attempted murder of the ambassador of the

      18   United States to Tanzania and other representatives, officers,

      19   employees, and agents of the United States government by

      20   bombing the United States Embassy in Dar es Salaam, Tanzania,

      21   on August 7, 1998.  And you have the language of the count of

      22   the indictment there before you, and of course you understand

      23   with all of these excerpts from the indictment, you have the

      24   indictment itself before you during your deliberations.

      25            The statute that the defendants are charged with

                                                                    6184

       1   violating in Counts 280 and 281 provides that:  Whoever

       2   attempts to kill ... an internationally protected is guilty of

       3   a crime.  "Internationally protected person" has the same

       4   definition that I gave you earlier.

       5            To satisfy its burden of proof as to Counts 280 and

       6   281, the government must prove each of the following elements

       7   beyond a reasonable doubt:

       8            First, that on or about August 7, 1998, the defendant

       9   you are considering unlawfully, with malice aforethought and

      10   with premeditation, attempted to murder internationally

      11   protected persons or that he unlawfully, with malice

      12   aforethought and with premeditation, aided and abetted another

      13   to do so;

      14            Second, that the individuals whom the defendant

      15   attempted to murder were internationally protected persons.

      16            The first element the government must prove beyond a

      17   reasonable doubt is that on or about August 7, 1998, the

      18   defendant you are considering unlawfully, with malice

      19   aforethought and with premeditation, attempted to murder

      20   internationally protected persons at the United States Embassy

      21   in Nairobi, Kenya (as to Count 280), and Dar es Salaam,

      22   Tanzania (as to Count 281), or that he, unlawfully, with

      23   malice aforethought and with premeditation, aided and abetted

      24   another person to do so.  The definition of "aiding and

      25   abetting" which was provided earlier is applicable to this

                                                                    6185

       1   element.  Recall that with respect to these counts and the

       2   defendant Odeh, the government's theory is that he aided and

       3   abetted the commission of the offense charged.  The government

       4   does not allege that he physically carried out the crimes

       5   charged in Counts 280 and 281.

       6            The government, to satisfy the first element of

       7   Counts 280 and 281, must prove beyond a reasonable doubt both

       8   of the following two sub-elements:

       9            First, that on or about August 7, 1998, the defendant

      10   unlawfully, with malice aforethought and with premeditation,

      11   intended to cause the death of internationally protected

      12   persons;

      13            Second, that on or about August 7, 1998, the

      14   defendant willfully took some action that was a substantial

      15   step in an effort to bring about or accomplish the murder.

      16            As I have previously instructed you, a person intends

      17   to cause the death of another person when his conscious

      18   objective is to cause the death of that person.  He need not

      19   know who the person is to have such an intent.  You should

      20   refer to my previous instructions as to what it means to act

      21   "unlawfully," "with malice aforethought," and "with

      22   premeditation," and apply those definitions here.

      23            In the instructions to Counts 274 and 277, I provided

      24   you with a definition of "substantial step," and you should

      25   apply those instructions to this element of these counts as

                                                                    6186

       1   well.

       2            The second element of Counts 280 and 281 the

       3   government must prove beyond a reasonable doubt is that on or

       4   about August 7, 1998, individuals present in the United States

       5   embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were

       6   internationally protected persons.  The term "internationally

       7   protected person" was defined in the instructions on Counts

       8   278 and 279.

       9            The crime of attempted murder of internationally

      10   protected persons is designed, in part, to protect federal

      11   employees and federal functions, and therefore it is

      12   sufficient for the government to show that the defendants

      13   intended to perform the acts which are charged upon

      14   individuals who in fact were internationally protected

      15   persons.  The government does not have to prove that the

      16   defendant you are considering knew the identity of these

      17   internationally protected persons, or that the defendant knew

      18   that these individuals were internationally protected persons.

      19            The parties have stipulated that the United States

      20   ambassador to Kenya and the acting United States ambassador to

      21   Tanzania, as well as other employees of the United States

      22   government present at the United States embassies in Nairobi,

      23   Kenya, and Dar es Salaam, Tanzania, were internationally

      24   protected persons on August 7, 1998.  Whether the defendants

      25   knew that these individuals were internationally protected

                                                                    6187

       1   persons at the time of the alleged attempted murder is

       2   irrelevant to your determination as to this element of these

       3   counts.

       4            Please note, however, that to satisfy this element

       5   for Count 280, any persons that you find to be internationally

       6   protected persons for the purposes of Count 280 must be

       7   persons other than those identified in Counts 278 and 279,

       8   that is, Julian Leotis Bartley, Sr., and Prabhi Gutpara

       9   Kavaler, who were actually killed.  Again, this is because the

      10   offenses of attempted murder do not apply to victims who were

      11   actually killed.

      12            You will see that the verdict form for Count 280 is

      13   contained on page 37.

      14            I want to go back and correct something I said a

      15   little earlier when I was talking about defendant Odeh and the

      16   definition of "aiding and abetting."  I made reference to two

      17   counts, and what I meant to say is, recall that with respect

      18   to Count 280 the government's theory is that he aided and

      19   abetted the commission of the offense.  The government does

      20   not allege that the defendant Odeh physically carried out the

      21   crime charged in Count 280.  The reference to Count 281 and

      22   Odeh should be stricken.

      23            The special verdict form, as I say, is the road map.

      24   I hesitate to say the bible but some people may characterize

      25   it as that.  It is all very important, but certainly the

                                                                    6188

       1   instructions contained in the charge are the critical

       2   instructions that you must follow, not the summary here.  But

       3   as to what it is that you are to decide, what are the issues

       4   as to which you should deliberate and reach your verdict, the

       5   special verdict form is the road map.

       6            There you will see Count 280 calls for you to make

       7   your finding as to guilt or not guilty as to the defendant

       8   Odeh and defendant Al-'Owhali, and with Odeh on the theory of

       9   aiding and abetting only, and with respect to Al-'Owhali to

      10   indicate, if you have found him guilty, whether you found that

      11   he himself committed the offense or whether you find he aided

      12   and abetted the commission of the offense, and only one of

      13   those is to be checked.

      14            Count 281 on the next page follows the same pattern.

      15            We will take a breather, a standing stretch.

      16            (Pause)

      17            THE COURT:  Ladies and gentlemen, there is some

      18   question about whether on page 101 when I was talking about

      19   attempt I said mere intention to commit a specific crime does

      20   not amount to an attempt.  If I said something else, it was

      21   unintentional.

      22            We are on page 114 and Count 282 of the indictment,

      23   which charges the defendants Odeh, Al-'Owhali and K.K. Mohamed

      24   with using and carrying an explosive during the commission of

      25   the crime of conspiracy to murder United States nationals as

                                                                    6189

       1   charged in Count 1.  Count 282 charges:

       2            From at least 1991 until the date of the filing of

       3   this indictment, May 8, 2000, in the various countries listed

       4   there, defendants Odeh, Al-'Owhali and K.K. Mohammed -- I am

       5   skipping the jurisdictional matters that we will talk about

       6   later -- together with other members of Al Qaeda, Egyptian

       7   Islamic Jihad, and others known and unknown to the grand jury,

       8   unlawfully, willfully and knowingly did use and carry an

       9   explosive, as that term is defined in the relevant statute,

      10   during the commission of a felony for which they might be

      11   prosecuted in a court of the United States, namely, the

      12   conspiracy to murder United States nationals, in violation of

      13   the relevant statute, as set forth in Count 1 of this

      14   indictment ... to wit, the defendants used and carried bombs

      15   in connection with the attacks on the United States embassies

      16   in Nairobi, Kenya, and Dar es Salaam, Tanzania.

      17            The statute relevant here provides:

      18            Whoever uses fire or an explosive to commit any

      19   felony which may be prosecuted in a court of the United

      20   States, or carries an explosive during the commission of any

      21   felony which may be prosecuted in a court of the United

      22   States, is guilty of a crime.

      23            To satisfy its burden of proof as to Count 282, the

      24   government must prove each of the following elements beyond a

      25   reasonable doubt:

                                                                    6190

       1            First, that the defendant you are considering

       2   committed a felony for which he may be prosecuted in a court

       3   of the United States; and

       4            Second, that the defendant used an explosive to

       5   commit that felony or carried an explosive, or aided and

       6   abetted another person to do so, during the commission of that

       7   felony.

       8            The first element the government must prove beyond a

       9   reasonable doubt is that the defendant you are considering

      10   committed a felony for which he may be prosecuted in a court

      11   of the United States.

      12            Defendants Odeh, Al-'Owhali and Mohamed are charged

      13   in Count 1 with committing the crime of conspiracy to murder

      14   United States nationals.  I instruct you that the crime of

      15   conspiracy to murder United States nationals is a felony for

      16   which the defendants might be prosecuted in a court of the

      17   United States.  However, it is for you to determine that the

      18   government has proven beyond a reasonable doubt that the

      19   defendants you are considering committed the crime of

      20   conspiracy to murder United States nationals as charged.

      21            If upon all the evidence you find that the government

      22   has failed to prove Count 1 beyond a reasonable doubt as to a

      23   particular defendant, then you are not to consider Count 282

      24   as to that defendant.  Count 282 is to be considered as to a

      25   defendant only if you first find him guilty under Count 1 as

                                                                    6191

       1   charged.

       2            The second element the government must prove beyond a

       3   reasonable doubt is that the defendant you are considering

       4   used an explosive to commit the crime charged in Count 1, or

       5   carried an explosive during the -- let me start that again.

       6            The second element the government must prove beyond a

       7   reasonable doubt is that the defendant you are considering

       8   used an explosive to commit the crime charged in Count 1, or

       9   carried an explosive during the commission of the crime

      10   charged in Count 1, or aided and abetted another person to do

      11   so.  Where, as here, the indictment charges the defendant with

      12   both using and carrying an explosive, the government need only

      13   prove one or the other, not both.

      14            To use an explosive to commit a crime means to use it

      15   in such a way that it was an integral part of the commission

      16   of the crime.  To establish that the defendant you are

      17   considering used an explosive to commit a felony, the

      18   government must prove beyond a reasonable doubt that the

      19   defendant actively employed the explosive during and in

      20   relation to the commission of the underlying felony.  Mere

      21   possession of an explosive, even with intent to use it later,

      22   is insufficient to establish active employment or use of an

      23   explosive.

      24            The term "explosive" is defined by the statute.  I

      25   gave you that definition in connection with Count 4 and I will

                                                                    6192

       1   not repeat it here.

       2            To carry an explosive means to have it within your

       3   control so that it was available in such a way that it could

       4   further the commission of the crime.  The defendant did not

       5   necessarily have to hold the explosive physically, that is,

       6   have actual possession of it on his person.  If you find that

       7   the defendant had dominion and control over the place where

       8   the explosive was located, and had the power and intention to

       9   exercise control over the explosive, you may find that the

      10   government has proven that the defendant carried the

      11   explosives.

      12            To satisfy this element, you must also find that the

      13   defendant you are considering knowingly used or carried the

      14   explosive.  This means he used or carried the explosive

      15   purposely and voluntarily, and not by accident or mistake.

      16            With respect to this element of the count, the

      17   principle of aiding and abetting that I described earlier

      18   applies.  Thus, if you find that some other person actually

      19   committed the crime of using an explosive to commit a felony

      20   or carrying an explosive during a felony, you may convict the

      21   defendant you are considering of that same offense if you find

      22   that he aided and abetted that other person's commission of

      23   the crime.  To convict the defendant as an aider and abettor

      24   on Count 282, the government must establish that he aided and

      25   abetted another person's use or carrying of the explosive in

                                                                    6193

       1   connection with the attacks on the United States embassies in

       2   Nairobi, Kenya, and Dar es Salaam, Tanzania.  I caution you,

       3   however, that to convict the defendant as an aider and

       4   abettor, it is not sufficient that you find him to have aided

       5   and abetted the underlying felony, that is, the conspiracy to

       6   murder United States nationals alleged in Count 1.  The

       7   government must prove that he aided and abetted another

       8   person's use or carrying of the explosive.

       9            The government may prove the defendant's commission

      10   of the crime charged in Count 282 by showing either that he

      11   actually committed the crime himself or that he aided and

      12   abetted another person's commission.  It is not required that

      13   both be established, but neither may be established unless the

      14   government has proven the required elements beyond a

      15   reasonable doubt.  However, let me remind you that the

      16   government's theory under Count 282 with respect to Odeh is

      17   not that he himself used or carried an explosive in connection

      18   with the felony charged in Count 1, but that he aided and

      19   abetted another in doing so.  Therefore, you need not consider

      20   whether Odeh personally used or carried an explosive in

      21   connection with the felony in Count 1.

      22            On the special verdict form, you must indicate your

      23   unanimous verdict as to Count 282 with respect to the

      24   defendants you are considering.  Count 282 spells out the

      25   questions that you are called upon to answer with respect to

                                                                    6194

       1   that count as to each of those defendants, that is, guilty or

       2   not guilty, and then with respect to Al-'Owhali and Mohamed,

       3   whether your finding of guilt, if you have found guilt, is

       4   based on himself used or carried or aided and abetted another

       5   to do so.

       6            Which takes us to Counts 283 and 284.  Count 283 of

       7   the indictment charges Odeh and Al-'Owhali with using and

       8   carrying a firearm during the commission of a crime of

       9   violence in connection with the bombing of the American

      10   Embassy in Nairobi, and the language of Count 283 is set

      11   forth, and the critical language is unlawfully, willfully and

      12   knowingly, in and during and in relation to a crime of

      13   violence for which they may be prosecuted in a court of the

      14   United States, namely, the bombing of the United States

      15   Embassy in Nairobi, Kenya, as set forth in Count 5 of this

      16   indictment, did use and carry a firearm as that term is

      17   defined to include any destructive device, to wit, the

      18   defendants did use and carry an explosive device during and in

      19   relation to the bombing of the United States Embassy in

      20   Nairobi, Kenya, set forth in Count 5 of this indictment.

      21            Count 284 similarly charges the defendant K.K.

      22   Mohammed in relation to the bombing of the United States

      23   Embassy in Dar es Salaam, Tanzania, as set forth in Count 6 of

      24   the indictment.

      25            The statute that the defendants are charged with

                                                                    6195

       1   violating in Counts 283 and 284 provides in relevant part:

       2            Any person, who, during and in relation to any crime

       3   of violence ... for which the person may be prosecuted in a

       4   court of the United States, uses or carries a firearm is

       5   guilty of a crime.

       6            To satisfy its burden of proof as to Counts 283 and

       7   284, the government must prove each of the following elements

       8   beyond a reasonable doubt:

       9            First, that the defendant you are considering

      10   committed a crime of violence for which he may be prosecuted

      11   in a court of the United States; and

      12            Second, that the defendant knowingly used or carried

      13   a firearm, that is, a destructive device, during and in

      14   relation to the commission of that crime of violence, or that

      15   he knowingly aided and abetted another person to do so.

      16            The first element the government must prove beyond a

      17   reasonable doubt is that the defendant you are considering

      18   committed a crime of violence for which he might be prosecuted

      19   in a court of the United States.

      20            Defendants Odeh and Al-'Owhali are charged in Count

      21   283 with using and carrying a firearm during the commission of

      22   the crime of explosive damage or destruction of federal

      23   property charged in Count 5.  Defendant K.K. Mohammed is

      24   charged in Count 284 with using and carrying a firearm during

      25   the commission of the crime of explosive damage or destruction

                                                                    6196

       1   of federal property charged in Count 6.  I instruct you that

       2   explosive damage or destruction of federal property is a crime

       3   of violence.  However, it is for you to determine whether the

       4   government has proven beyond a reasonable doubt that the

       5   defendant you are considering committed that crime as charged.

       6            If upon all of the evidence you find, with respect to

       7   the defendant you are considering, that the government has

       8   failed to prove Count 5 beyond a reasonable doubt, then you

       9   are not to decide Count 283 as to that defendant.  Likewise,

      10   if you find with respect to defendant K.K. Mohamed that the

      11   government has failed to prove Count 6 beyond a reasonable

      12   doubt, then you are not to decide Count 284.  In other words,

      13   Count 283 is to be considered as to a particular defendant

      14   only if you first find him guilty under Count 5, and Count 284

      15   is to be considered only if you find the defendant guilty

      16   under Count 6.

      17            In reaching your verdict on Count 283, you may

      18   consider the evidence of Count 5 only for the purpose of

      19   determining whether the elements have of Count 283 have been

      20   satisfied.  Similarly, as to Count 284, you may consider the

      21   evidence of Count 6 only for the purpose of determining

      22   whether the elements of Count 284 have been established.

      23            The second element the government must prove beyond a

      24   reasonable doubt is that the defendant you are considering

      25   knowingly used or carried a firearm during and in relation to

                                                                    6197

       1   the commission of the underlying crime of violence, or that he

       2   knowingly aided and abetted another person to do so.  The

       3   statutory definition of "firearm" includes a "destructive

       4   device."  To satisfy this element, the government must prove

       5   beyond a reasonable doubt that the firearm used or carried

       6   during the commission of the crime of violence was a

       7   destructive device.  As I told you earlier, a "destructive

       8   device" is defined in the statute to include an explosive,

       9   incendiary or poison gas bomb, an explosive, incendiary or

      10   poison gas grenade, an explosive, incendiary or poison gas

      11   rocket, an explosive, incendiary or poison gas mine, or any

      12   similar device.

      13            Counts 283 and 284 allege that the defendants did

      14   "use and carry" a destructive device.  Where, as here, both

      15   using and carrying are charged, the government need only prove

      16   one or the other, not both.

      17            To prove that the defendant you are considering used

      18   a destructive device, the government must prove beyond a

      19   reasonable doubt that the defendant actively employed the

      20   destructive device during and in relation to the commission of

      21   the crime of violence.  Mere possession of the destructive

      22   device, even with an intent to use it later, is insufficient

      23   to establish active employment or use of a destructive device.

      24            To prove that the defendant you are considering

      25   carried a destructive device, the government must prove beyond

                                                                    6198

       1   a reasonable doubt that the defendant had the device within

       2   his control in such a way that it furthered the commission of

       3   the crime of violence or was an integral part of the

       4   commission of the crime of violence.  The defendant need not

       5   necessarily have to hold the device physically, that is, have

       6   actual possession of it on his person.  If you find that the

       7   defendant had dominion and control over the place where the

       8   destructive device was located, and had the power and the

       9   intention to exercise control over the destructive device in

      10   such a way that it furthered the commission of the crime of

      11   violence, you may find that the government has proven that the

      12   defendant carried the destructive device.

      13            It is not sufficient to prove carrying if all the

      14   government has proven is that the destructive device was

      15   transported in a vehicle in which the defendant was riding.

      16   There must be proof that the defendant knew of the device's

      17   presence and had the power and intention to exercise control

      18   over the destructive device so that it was available for his

      19   use in the commission of the crime if the need arose.

      20            To satisfy this element, you must also find that the

      21   defendant acted knowingly, that is, that he used or carried

      22   the destructive device purposely and voluntarily, and not by

      23   accident or mistake.  It also means that he knew that the

      24   weapon was a destructive device.  However, the government is

      25   not required to prove that the defendant knew that he was

                                                                    6199

       1   breaking the law.

       2            As before, the principles of aiding and abetting that

       3   I have previously defined, described, apply to this element.

       4   Thus, if you find that some other person actually committed

       5   the crime of using or carrying a destructive device during and

       6   in relation to a crime of violence, you may convict the

       7   defendant of that same offense if you find that he aided and

       8   abetted that other person's use or carrying of the destructive

       9   device.  To convict the defendant you are considering as an

      10   aider and abettor on Count 283 or 284, the government must

      11   establish that he aided and abetted another person's use or

      12   carrying of the destructive device during and in relation to

      13   the bombing of the United States Embassy in Nairobi, Kenya,

      14   Count 283, or in relation to the bombing of the United States

      15   Embassy in Dar es Salaam, Tanzania, Count 284.

      16            I caution you, however, that to convict the defendant

      17   as an aider and abettor it is not sufficient that you find him

      18   to have aided and abetted the underlying violent crime, that

      19   is, explosive destruction of federal property.

      20            The government may prove the defendant's commission

      21   of the crime charged in Count 283 or 284 by showing either he

      22   actually committed the crime himself or that he aided and

      23   abetted another person's commission of the crime.  It is not

      24   required that both be established, but neither may be

      25   established unless the government has proved the required

                                                                    6200

       1   elements beyond a reasonable doubt.  However, with respect to

       2   Count 283, the government only alleges that defendant Odeh

       3   acted as an aider and abettor.  Therefore, you need not

       4   consider whether he personally used or carried a destructive

       5   device in connection with Count 5.

       6            The special verdict form for Counts 283 and 284

       7   appears on pages 41, 42 and 43, and they follow the pattern

       8   which we have used with respect to the preceding counts.

       9            Ladies and gentlemen, I have now completed my

      10   instructions to you concerning the substantive offenses of the

      11   indictment arising out of the embassy bombings in Kenya and

      12   Tanzania.  But before I move on to the third and final group

      13   of counts in the indictment, that is, the counts involving

      14   alleged perjury by defendant Wadih El Hage, I have to mention

      15   a word about venue.

      16            Federal law provides certain rules that govern the

      17   location where a criminal prosecution may be brought by the

      18   United States government, and these are known as venue rules.

      19   As you have heard throughout this trial, many of the acts

      20   alleged to have taken place occurred overseas, in Africa and

      21   in the Middle East.  Nevertheless, American law provides that

      22   the defendants charged with committing those acts may be

      23   prosecuted here in the Southern District of New York, so long

      24   as you the jury find certain facts to be true.

      25            In other words, as to each of the counts of the

                                                                    6201

       1   indictment I have discussed with you thus far -- that is,

       2   Counts 1 through 284 -- you the jury must find that venue

       3   properly existed in the Southern District of New York.  Venue

       4   is just a fancy word for the place where somebody may be

       5   tried.

       6            The government's burden of proof with respect to

       7   establishing venue under each count of the indictment where

       8   venue is at issue is by a preponderance of the evidence.  To

       9   prove something by a preponderance of the evidence means to

      10   prove that something is more likely true than not true.  It is

      11   determined by considering all the evidence and deciding which

      12   evidence is more convincing.  If the evidence appears to be

      13   equally balanced, or if you cannot say on which side it weighs

      14   heavier, you resolve the question of venue against the

      15   government.

      16            Now, as to Counts 1 through 284 of the indictment,

      17   venue will be established with respect to a particular count

      18   if you find, by a preponderance of the evidence, that at least

      19   one of the defendants charged in the count you are considering

      20   was first brought to or arrested in the Southern District of

      21   New York in connection with that count.  In other words, the

      22   government must prove, by a preponderance of the evidence,

      23   that when one or more of the defendants charged in the count

      24   you are considering was first brought to or arrested in the

      25   United States in connection with that count, that event took

                                                                    6202

       1   place within the Southern District of New York.

       2            Of course, in those counts between Count 1 and Count

       3   284 where only one defendant is charged, you must find that

       4   the government has proven venue as to that one defendant.

       5            This requirement is met as long as at least one

       6   defendant -- not necessarily all the defendants -- named in

       7   the count you are considering was first brought into or

       8   arrested in the United States within the Southern District of

       9   New York.

      10            I instruct you that Newburgh, New York, where Stewart

      11   Air Force Base is located, is in Orange County, New York,

      12   which is within the Southern District of New York.  So too is

      13   New York County, better known as Manhattan, which contains

      14   both the United States Courthouse and the Metropolitan

      15   Correctional Center.

      16            Understand that venue must be independently proven by

      17   a preponderance of the evidence for each of the 284 counts in

      18   the indictment, from Counts 1 through 284.  And whatever it is

      19   you find to be the basis for venue in the Southern District of

      20   New York, you the jury must unanimously agree on the specific

      21   basis for your finding as to each count of the indictment

      22   where venue is at issue.  But if you find, as to any defendant

      23   and as to any counts where venue is an issue, that venue has

      24   not been proven, then you must find the defendant you are

      25   considering not guilty as to that count.

                                                                    6203

       1            As for the remaining counts of the indictment, that

       2   is, Counts 285 to 302, the offense elements of which I will

       3   tell you after we take our midafternoon break, venue is not an

       4   issue separately before you.

       5            We will take our midafternoon break at this point.

       6            (Recess)

       7            (Continued on next page)

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6204

       1            (In open court)

       2            MR. COHN:  Your Honor, was I mistaken or did you

       3   allow them to take the materials home with them last night?

       4            THE COURT:  I did not allow them.

       5            MR. COHN:  Pardon?

       6            THE COURT:  I did not allow them.

       7            MR. COHN:  I thought I heard you say take them home,

       8   and I probably missed the "don't."

       9            (Pause)

      10            (Jury present)

      11            THE COURT:  We're in the home stretch.

      12            And we turn to the perjury counts with respect to

      13   defendant Al-'Owhali.  And yesterday I think I suggested that

      14   you put the indictment aside, but do you have it with you?

      15   Because with respect to these counts, we may want to refer to

      16   the actual indictment itself.  And if you're reading along

      17   with me, I'm on page 128.

      18            The third category of charges in the indictment --

      19   the first is conspiracy, the second is the substantive

      20   offenses -- the third category of charges in the indictment

      21   are the perjury charges against the defendant Wadih El Hage

      22   which are included in Counts 285 through 302.  And defendant

      23   El Hage has denied that he is guilty of these charges.

      24            Counts 285 through 302 charge defendant Wadih El Hage

      25   with making false declarations before a federal Grand Jury,

                                                                    6205

       1   that is, with perjury.  Simply stated, perjury is the willful

       2   giving of false testimony, before a competent tribunal while

       3   under oath, knowing the testimony is false as to a material

       4   matter.

       5            The indictment charges El Hage with 18 counts of

       6   committing perjury before a federal Grand Jury, in violation

       7   of a statute that provides in pertinent part, "[w]hoever under

       8   oath ... in any proceeding before ... any ... Grand Jury of

       9   the United States knowingly makes any false material

      10   declaration" is guilty of a crime.

      11            The administration of justice depends upon respect

      12   for the sanctity of an oath.  It is essential to the

      13   administration of justice and the enforcement of the laws that

      14   those called upon to testify before competent tribunals

      15   empowered by law to administer oaths give truthful testimony.

      16            This federal court is such a tribunal, and there are

      17   other such bodies, such as a Grand Jury or a regular jury,

      18   like yours.  Witnesses appearing before such bodies, whether

      19   voluntarily or under the compulsion of the subpoena, take an

      20   oath or affirm that they will tell the truth, the whole truth,

      21   and nothing but the truth, just as you have heard that oath or

      22   affirmation administered in this courtroom to every witness

      23   who testified before you.

      24            Once under such an oath or affirmation, the witness

      25   is bound to tell what he knows in answer to the questions

                                                                    6206

       1   asked, for the purpose of bringing out the truth of the matter

       2   under inquiry.

       3            Now, please turn to Counts 285 and 302 of the

       4   indictment.  Actually, turn to page 70 of the indictment.

       5            The government's allegations as to the background of

       6   the investigation in connection with which defendant El Hage

       7   testified and the alleged testimony he gave are detailed from

       8   paragraphs 57 to 82 of the indictment.

       9            I remind you that the indictment is not evidence, and

      10   is just an accusation.

      11            These counts charge that on or about September 24,

      12   1997 and September 16, 1998, defendant El Hage committed

      13   perjury by testifying falsely before a Grand Jury sitting in

      14   this district.  In the indictment, the underlined responses

      15   are those which the government alleges are false material

      16   declarations.

      17            Now, you notice that on beginning on page 70,

      18   paragraphs 57 and 58, and 59, 60, 61, 62, going on to

      19   paragraph 64 on page 76, the indictment sets forth the

      20   background of the alleged perjury, just as it has a background

      21   prior to Count One, and this sets forth the government's

      22   version of the context in which the alleged perjuries took

      23   place.  And you should read them.  You should read those,

      24   understanding that that is not evidence; that is part of the

      25   indictment, which is an accusation, not evidence.

                                                                    6207

       1            And then I am not going to read all of these, but I

       2   will read 285, page 76, which says that, "On or about

       3   September 24, 1997" -- and let me stop there, because you will

       4   see some counts relate to the appearance before the Grand Jury

       5   on that date and some relate to the appearance on September

       6   16, 1998, and the first line of each count will tell you which

       7   date is involved -- "in the Southern District of New York, the

       8   defendant Wadih El Hage," and then it lists his aliases or

       9   other names by which he is known, "having taken an oath to

      10   testify truthfully in a proceeding before a Grand Jury sitting

      11   in the Southern District of New York, unlawfully, willfully,

      12   knowingly, and contrary to such oath, did make false material

      13   declarations, to wit, he gave the following underlined

      14   testimony."

      15            And then you see the questions asked and the answers

      16   given, and you will see that there is a letter in the margin,

      17   A:

      18   "Q.  When was the last time you saw Usama Bin Laden in person?

      19   "A.  In '94."

      20            And that's underlined.  And as we have just said, in

      21   the indictment the underlined responses are those which the

      22   government alleges are false material declarations.  And then

      23   it continues, and you will see wherever there is an underlined

      24   passage, that is the answer which the government contends is a

      25   material false statement, and the initial in the margin

                                                                    6208

       1   identifies which false statement is referred to and that

       2   becomes important later when we turn to the special verdict

       3   form.

       4            To satisfy its burden of proof -- I'm on 129 -- as to

       5   Counts 285 to 302, the government must prove beyond a

       6   reasonable doubt each of the following elements, or parts, of

       7   the crime of perjury.

       8            First, that the testimony before the Grand Jury was

       9   given while the defendant was under oath;

      10            Second, that such testimony was false as set forth in

      11   the indictment;

      12            Third, that the matters as to which it is charged

      13   that the defendant gave false testimony were material to the

      14   issues under inquiry by the Grand Jury; and

      15            Fourth, that such false testimony was given

      16   knowingly.

      17            These elements apply individually to each of Counts

      18   285 to 302.  Therefore, in order to sustain its burden of

      19   proof as to any one of those counts, the government must

      20   establish beyond a reasonable doubt each of these four

      21   elements as to that count -- each of these four elements as to

      22   that Count.

      23            The first element of the offense that the government

      24   must prove beyond a reasonable doubt is that the testimony

      25   before the Grand Jury was given while the defendant was under

                                                                    6209

       1   oath.  With respect to the oath element -- that defendant El

       2   Hage took an oath to testify truthfully -- the parties here

       3   have stipulated -- and that's in the stipulation marked

       4   Government Exhibit 189 -- that on or about September 24, 1997

       5   and September 16, 1998, the defendant appeared before a Grand

       6   Jury (impaneled in the Southern District of New York) and took

       7   an oath to testify truthfully.

       8            The second element that the government must prove

       9   beyond a reasonable doubt is that the defendant testified

      10   falsely.  To satisfy this element, the government must prove

      11   that a part of the testimony given by the defendant, as set

      12   forth in each count of the indictment, was false.  Remember

      13   that the responses alleged by the government to be false are

      14   underlined in the indictment.

      15            An answer to a question is false when it is contrary

      16   to the facts; that is, when it is not true.  The truth or

      17   falsity of an answer must be determined by the facts existing

      18   at the time the answer was made.

      19            In reviewing the testimony that is alleged to have

      20   been false, you should consider such testimony in the context

      21   of the sequence of questions asked and answers given.  The

      22   words used should be given their common and ordinary meaning

      23   unless the context clearly indicates that a different meaning

      24   was understood by both the questioner and the witness.

      25            The burden is upon the government to establish beyond

                                                                    6210

       1   a reasonable doubt that the declarations made or answers given

       2   by defendant El Hage were in fact false.

       3            Many of these counts contain answers given by the

       4   defendant reciting more than one fact.  It is not necessary

       5   that the government prove that each of the factual statements

       6   in a particular count were false.  The government satisfies

       7   its burden of proving falsity if it proves beyond a reasonable

       8   doubt that any of the factual statements recited in the Count

       9   are false.

      10            However -- and this is important -- you may not find

      11   defendant El Hage guilty of the count you are considering

      12   unless you all agree, unanimously, that one particular answer

      13   is false.  It is not enough that you all believe that some

      14   answer given by the defendant is false; that is, you cannot

      15   find the defendant guilty if some of you think that only

      16   answer A is false and the rest of you think that only answer B

      17   is false.  There must be at least one specific answer in the

      18   count you are considering that all of you believe beyond a

      19   reasonable doubt is false before you may find the defendant

      20   guilty on that count.  Your unanimous finding must, for each

      21   count, be indicated in the appropriate place on the special

      22   verdict form.

      23            If you find that a particular question was imprecise

      24   or ambiguous -- that is, subject to more than one

      25   interpretation -- and that the defendant truthfully answered

                                                                    6211

       1   one reasonable interpretation of the question under the

       2   circumstances presented, then such answer would not be false.

       3   Similarly, if you find that the question was clear but the

       4   answer was imprecise or ambiguous, and one reasonable

       5   interpretation of such answer would be truthful, then such

       6   answer would not be false.

       7            In deciding whether or not the defendant's answers

       8   are false, the answer must be given their natural meaning in

       9   the context in which the words were used.  If you find that an

      10   answer given by the defendant was literally true, but

      11   unresponsive to the question asked, you may not find the

      12   answer false or find the defendant guilty because of it.  As

      13   long as a statement, or a reasonable interpretation of a

      14   statement, is narrowly or literally true, there can be no

      15   finding of guilt on that count.  This is so even if you find

      16   that the answer was intentionally misleading.

      17            Defendant El Hage does not have the burden of proving

      18   imprecision or ambiguity; nor does he have the burden of

      19   establishing that an answer was literally true.  Rather, the

      20   government always has the burden of proving beyond a

      21   reasonable doubt that the defendant's answers were false, and

      22   intentionally so.

      23            The third element that the government must establish

      24   beyond a reasonable doubt is that the matters as to which it

      25   is charged that defendant El Hage made false statements were

                                                                    6212

       1   material to the issues under inquiry by the Grand Jury.

       2            A false statement is material if it had the natural

       3   or probable effect or tendency to impede or dissuade the Grand

       4   Jury from pursuing its investigation.  To find that the

       5   testimony was material you need not find that it did in fact

       6   influence the decision of the Grand Jury.  You need only find

       7   that it was capable of influencing that decision.

       8            The fourth and final element that the government must

       9   prove beyond a reasonable doubt is that the defendant gave

      10   those false answers knowingly.  That is, the government must

      11   prove beyond a reasonable doubt that at the time the false

      12   answers were given, the defendant knew and believed that his

      13   answers were false and that he purposely or intentionally gave

      14   the false answers, and that the false answers were not given

      15   because of confusion, mistake, or faulty memory.

      16            The requirement that you find that the defendant

      17   acted knowingly means that you may not find the defendant

      18   guilty of perjury simply because the defendant gave testimony

      19   which is factually incorrect.  A person may give incorrect

      20   testimony because of an honest mistake of fact, confusion,

      21   haste, oversight, or carelessness.  If the defendant made an

      22   erroneous and incorrect statement due to a slip of the tongue

      23   or bad memory or through misunderstanding, he would not be

      24   guilty of making the false statement knowingly.  It is not the

      25   defendant's burden to establish mistake or error; rather, the

                                                                    6213

       1   government must prove beyond a reasonable doubt that the

       2   defendant intentionally made false statements.  If, however,

       3   you find that the government has proven beyond a reasonable

       4   doubt that the defendant intentionally made false statements,

       5   then this element is satisfied.

       6            Your decision whether the defendant acted knowingly

       7   in making any statements you find to be false involves a

       8   decision about the defendant's state of mind at the time the

       9   statements were made.  As I explained earlier, it is obviously

      10   impossible to ascertain or prove directly what the operation

      11   of the defendant's mind was.  But a wise and intelligent

      12   consideration of all the facts and circumstances shown by the

      13   evidence and the exhibits in the case may enable you to infer

      14   with a reasonable degree of accuracy what the defendant's

      15   state of mind was.

      16            In our everyday affairs, we are continuously called

      17   upon to decide from the actions of others what their state of

      18   mind is.  Therefore, you may rely in part on circumstantial

      19   evidence in determining the defendant's state of mind.

      20            Proof of the circumstances surrounding the

      21   defendant's actions can supply an adequate basis for finding

      22   that the defendant acted knowingly.  The actions of an

      23   individual must be set in their time and place.  The meaning

      24   of a particular act may depend on the circumstances

      25   surrounding it.  Thus, you may consider evidence which you

                                                                    6214

       1   recall and believe about the defendant's actual knowledge of

       2   certain facts and occurrences, the extent to which statements

       3   may have been made to conceal facts or events, and, in

       4   general, the manner in which certain actions were undertaken

       5   by the defendant and by others with his knowledge.

       6            You may consider whether the defendant had a motive

       7   to lie or conceal the facts.  The government is not required

       8   to prove the existence of such a motive, let alone exactly

       9   what the motive was.  On the other hand, the absence of any

      10   motive may be relevant as well to your determination whether

      11   the government has proven beyond a reasonable doubt that the

      12   defendant committed perjury.  The government's failure to

      13   prove a motive does not establish lack of guilt.  But if you

      14   do find evidence of a motive, that may help you decide what

      15   the defendant's state of mind was.  Therefore, you may ask

      16   yourselves whether the defendant stood to further any purpose

      17   by concealing the truth.

      18            Your unanimous verdict as to each of the perjury

      19   counts must be indicated on the special verdict form.

      20            And let's have before us the indictment, Count 285,

      21   page 76, and the special verdict form, page 44.

      22            The special verdict form says:  Do you find that

      23   defendant Wadih El Hage is guilty or not guilty of this

      24   offense?  And check whichever box you unanimously find to be

      25   the case.

                                                                    6215

       1            If you find defendant El Hage not guilty as to Count

       2   285, skip the following question.  If you find defendant El

       3   Hage guilty as to Count 285, you must answer the following

       4   question because there must be at least one specific answer

       5   that all of you believe beyond a reasonable doubt is false

       6   before you may find defendant El Hage guilty of Count 285.

       7            Then it says:  The following letters correspond to

       8   the statements or answers set forth in the indictment.  Of

       9   these seven statements or answers, indicate all as to which

      10   you unanimously have found falsity beyond a reasonable doubt.

      11            So if you look at page 76, the first question under A

      12   in the margin:  "When was the last time you saw Usama Bin

      13   Laden in person?  Answer:  "In '94."  And if you unanimously

      14   find that answer to be false, then you check in the A.

      15            And then go on to B, and you see the answer there.

      16   The question is B:

      17   "Q.  Are you positive?

      18   "A.  Yes.

      19   "Q.  Under oath your testimony is that you have not seen Usama

      20   Bin Laden in 1995, 1996 or 197; is that correct?

      21   "A.  Yes."

      22            And if you unanimously find that to be false, then

      23   you check B, and so on with respect to each of the initialed

      24   and underlined answers.  If there is no answer which you

      25   unanimously find to be false, then you must find defendant El

                                                                    6216

       1   Hage not guilty on Count 285.  And that you will see is the

       2   pattern with respect to each of the remaining counts of the

       3   indictment going through Count 302, and the instructions that

       4   I gave you and as to the elements of the crime and how you are

       5   to complete the jury form applies to all of those.  And I'm

       6   finished except to talk about how we proceed from here on.

       7            First let's talk about seeing exhibits and hearing

       8   testimony.

       9            If during your deliberations you want to see any of

      10   the exhibits, they will be sent to you in the jury room upon

      11   request.  If you want any of the testimony read, that can also

      12   be done.  But, please remember that it is not always easy to

      13   locate what you are requesting, so try to be as specific as

      14   possible when asking for an exhibit or portions of testimony

      15   you may want to hear.

      16            Your requests for exhibits and testimony -- in fact,

      17   any communication with the Court -- should be in writing,

      18   signed by the foreperson, and given to one of the marshals.  I

      19   will respond to any questions or requests you have as promptly

      20   as possible, either in writing or by having you return to the

      21   courtroom so that I can speak to you in person.  In any event,

      22   do not tell me or anyone else how the jury stands on the issue

      23   of any defendant's guilt as to any count until after a

      24   unanimous verdict is reached on all counts.

      25            Let me deviate from the text.  Occasionally one gets

                                                                    6217

       1   a note from a jury and which says, "We're nine to three on

       2   Count Four and what we would like to know is ..."  Until you

       3   have reached a unanimous verdict, the status of your

       4   deliberations in the jury room are for you and you alone.

       5            Now, each of you has been provided with a copy of the

       6   indictment to use during your deliberations.  I remind you

       7   that the indictment itself is not evidence.  It merely

       8   describes the charges made against each defendant and is the

       9   means by which each defendant was formally notified of the

      10   charges against him.  It may not be considered by you as

      11   evidence of the guilt of a defendant.  Only the evidence or

      12   lack of evidence decides that issue.

      13            Moreover, you should rely upon my instructions, not

      14   the indictment, in determining whether or not the government

      15   has proven a charge beyond a reasonable doubt.  If you find a

      16   conflict between the language of the indictment and my

      17   instructions, you are to rely on my instructions.

      18            Many of you have, to my encouragement, taken notes

      19   periodically throughout this trial.  I want to emphasize to

      20   you, as you are about to begin your deliberations, the notes

      21   are simply an aid to memory.  Notes that any of you may have

      22   made are solely for the use of the note taker and are not to

      23   be given any greater weight or influence in determination of

      24   the case than the recollections or impressions of other

      25   jurors, whether from notes or memory, that is, with respect to

                                                                    6218

       1   the evidence presented or what conclusions, if any, should be

       2   drawn from such evidence.  Any difference among the jurors as

       3   to what the record contains should be settled by asking the

       4   court reporter back to read the transcript, for it is the

       5   court record, rather than any juror's notes, upon which you,

       6   the jury, must base your determination of the facts in your

       7   verdict.

       8            Let me reiterate a point I emphasized at the outset

       9   of these instructions.  Your function now is to weigh the

      10   evidence in the case and to determine whether the government

      11   has proven each defendant guilty beyond a reasonable doubt,

      12   solely on the basis of such evidence or lack thereof.

      13   Punishment should not, in any sense, enter into or influence

      14   your deliberations.  Under your oath as jurors, you cannot

      15   allow a consideration of the punishment which may be imposed

      16   upon the defendants, if they are convicted, to influence your

      17   verdict in any way or, in any sense, to enter into your

      18   upcoming deliberations.

      19            To prevail, the government must prove the essential

      20   elements by the required degree of proof, as already explained

      21   in these instructions.  If it succeeds, your verdict should be

      22   guilty; if it fails, it should be not guilty.  To report a

      23   verdict, it must be unanimous.

      24            Your function is to weigh the evidence in this case

      25   and determine whether or not each defendant is guilty, solely

                                                                    6219

       1   on the basis of such evidence.

       2            Each juror is entitled to his or her opinion; each

       3   should, however, exchange views with his or her fellow jurors.

       4   That is the very purpose of jury deliberations -- to discuss

       5   and consider the evidence, to listen to the arguments of

       6   fellow jurors, to present your individual views, to consult

       7   with one another, and to reach an agreement based solely and

       8   wholly on the evidence or lack of evidence -- if you can do so

       9   without violence to your own individual judgment.

      10            Each of you must decide the case for yourself, after

      11   consideration with your fellow jurors, of the evidence in this

      12   case.  But you should not hesitate to change an opinion which,

      13   after discussion with your fellow jurors, appears erroneous.

      14   However, if, after carefully considering all the evidence and

      15   the arguments of your fellow jurors, you entertain a

      16   conscientious view that differs from the others, you are not

      17   to yield your conviction simply because you are outnumbered.

      18            Your final vote must reflect your conscientious

      19   conviction as to how the issues should be decided.  Your

      20   verdict as to each defendant with respect to each count,

      21   whether guilty or not guilty, must be unanimous.

      22            Although I know that it is not necessary, it is the

      23   tradition of this court that the judge advise the jurors they

      24   are to be polite and respectful towards each other in the

      25   course of their discussions in the jury room so that each

                                                                    6220

       1   juror may have his or her position made clear, and so that

       2   when you do reach a verdict, you will know that it is a just

       3   one.

       4            In addition to rendering a verdict on whether each

       5   defendant has or has not been proven guilty, as I have already

       6   explained to you, I am asking you to fill out a special

       7   verdict form which contains a series of questions.  Each of

       8   you has a copy of the special verdict form.  Please note,

       9   however, that the foreperson -- and it's the tradition in this

      10   Court that Juror No. 1 serves as the foreperson -- that the

      11   foreperson's copy is to be used as the official record of your

      12   verdict and findings.  After all of you agree on the answers

      13   to the questions in the special verdict form, the foreperson

      14   should write the answer in the official copy of the verdict

      15   form.  The foreperson's juror number and the date should be

      16   written on each page of the verdict form as it is completed.

      17            And again, with respect to the designation of the

      18   foreperson, it's the practice of this court that the juror in

      19   seat number one serves as the foreperson of the jury.  The

      20   function of the foreperson is to preside over the

      21   deliberations, to take and tally the vote, and report the

      22   verdict to the court.

      23            I again say, do not, in any note sent prior to

      24   reaching a unanimous verdict, say how the jury may be divided

      25   at the time the note is sent.

                                                                    6221

       1            When you reach a verdict, the foreperson should then

       2   send me a note stating that you have reached a verdict.  Do

       3   not specify what the verdict is in the note.  Instead, the

       4   foreperson should retain the verdict form and hand it to us in

       5   open court when you are all called in.  The verdict must be

       6   unanimous.

       7            You should be in agreement with the verdict that is

       8   announced in court.  Once your verdict is announced by the

       9   foreperson in open court and officially recorded, it cannot

      10   ordinarily be revoked.

      11            Now I would ask the -- not knowing names, you will

      12   forgive me -- the four people seated in the last row, do you

      13   have belongings in the jury room?  Would you retire now to the

      14   jury room and come back, and then I'll have some special

      15   instructions for you.  But take whatever it is that you wish

      16   to take.

      17            Mr. Kenneally, will you swear the marshal, please.

      18            (Marshal sworn)

      19            MR. SCHMIDT:  Your Honor, may we approach for a

      20   moment?

      21            (Continued on next page)

      22

      23

      24

      25

                                                                    6222

       1            (At the sidebar)

       2            MR. SCHMIDT:  I know it's been a long time, but I'm

       3   not sure if we have the right first alternate or not.

       4            THE COURT:  Excuse me?

       5            MR. SCHMIDT:  I'm not sure if we have the first

       6   alternate.

       7            MR. KARAS:  We do, yes.  That is the first alternate.

       8            MR. SCHMIDT:  Okay.  I just wanted to make sure.

       9   Okay.

      10            THE COURT:  I'm following literally the rules, that

      11   in the order in which called.  Yes.

      12            MR. SCHMIDT:  Okay.

      13            (Continued on next page)

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6223

       1            (In open court)

       2            THE COURT:  So the procedure will be, you will be in

       3   what is usually the jury room and there will be a marshal just

       4   outside and he will take your notes.  And we'll be here

       5   awaiting any questions that you have or requests for evidence

       6   or anything else that you want to tell us, and we'll respond

       7   to them.

       8            And as I said to you a while ago, you decide.  If it

       9   gets to be 4:30 and you think it's time to go home and a good

      10   night's sleep is the best thing, that's fine.  If you want to

      11   stay beyond that a reasonable period of time, that's okay,

      12   too.

      13            I think that I'm -- if you are aboard a ship, there's

      14   a time when the captain turns the command over to the pilot

      15   and the pilot then decides.  Well, this is the moment when I

      16   turn such matters over to you, except that tomorrow we stop at

      17   3:30.

      18            (Alternates return to the courtroom)

      19            THE COURT:  All right, ladies and gentlemen, you may

      20   then --

      21            You may be seated, and you may then retire to the

      22   jury room and begin your deliberations.

      23            (The jury retired to deliberate upon a verdict at

      24   3:45 p.m.)

      25            THE COURT:  I'm probably going to repeat some of the

                                                                    6224

       1   things that I said to you the other day, but they're very

       2   important, so if I am repeating, please forgive me.

       3            You are still on this jury, which means that we may

       4   call you at any time to tell you that, with respect to the

       5   deliberations in which the jurors who have just left are

       6   engaged, that one of them has become unavailable, and you will

       7   have to step in.  And so that you are on call and waiting.

       8   The marshal will check that we have your daytime and nighttime

       9   telephone number so that we can reach you.

      10            Now, after this jury completes its deliberations and

      11   renders its verdict, there may be a second trial dealing with

      12   issues of punishment, and if and when that happens, we will

      13   call on you again and you will sit on that jury.  I can't tell

      14   you when that will be.  I can't tell you if, or when, that

      15   will be.  And I know that that leaves you somewhat in limbo,

      16   and I appreciate that.

      17            We will, as you have seen during this trial, we

      18   really make efforts to move things as rapidly as justice will

      19   permit and the interests of the parties will permit, and we'll

      20   continue to do that.

      21            But you are excused in the sense that you do not have

      22   to come to court tomorrow or again, unless and until you are

      23   called.  And we will call you if you are no longer on call for

      24   any reason; we will let you know.

      25            Now, because you are still on the jury, I ask that

                                                                    6225

       1   you adhere to the instructions that I have given to everybody

       2   else on the jury, and that is that you not listen to anything,

       3   talk to anybody, or do anything which is inconsistent with

       4   your being on the jury.  And I thank you very much and you are

       5   excused.

       6            MR. COHN:  Your Honor, may I just see you for one

       7   second?

       8            THE COURT:  Yes.

       9            (Continued on next page)

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6226

       1            (At the sidebar)

       2            MR. COHN:  I just think because of the nature of

       3   what's going on, that you ought to stress to them that they

       4   not even express opinions to themselves, between themselves

       5   about the case; they're not to sort of pre-deliberate, if you

       6   know what I mean.  I think there's a tendency they might want

       7   to do that.

       8            (Continued on next page)

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

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      25

                                                                    6227

       1            (In open court)

       2            THE COURT:  I just want to remind you that I told the

       3   jurors that they should not discuss the case even amongst

       4   themselves until they have heard the charge and began their

       5   deliberations, and I would ask you also to refrain from any

       6   expression of your views as to how the case should be decided,

       7   or anything about the case until we advise you that it is all

       8   over and that you are not on all.

       9            Thank you very much, and you are excused.

      10            You can leave your material in the jury room.  Just

      11   leave it in the jury room.

      12            (Alternates excused)

      13            THE COURT:  Now, the rules in the Second Circuit are

      14   painfully clear that if the judge receives a note from the

      15   jury, even on the most routine matters, the court has an

      16   obligation to confer with counsel before responding.  And

      17   nothing is more frustrating than to get a note from the jury

      18   and discover that some counsel has wandered to the cafeteria

      19   or elsewhere and you can't respond.  It's especially

      20   frustrating when the note says "we have reached a verdict,"

      21   but any such notes.

      22            We have an abundance of attorneys around the table,

      23   and I do direct that there be one representative of each party

      24   in the courtroom at all times when the jury is in session.

      25            Anything else?

                                                                    6228

       1            MR. SCHMIDT:  Your Honor, we have a room available to

       2   counsel on the third floor that's right around the bend and we

       3   have our telephone numbers.  Would it be possible if we could

       4   remain in the counsel's room?

       5            THE COURT:  And there's a direct line from that to

       6   the --

       7            MR. SCHMIDT:  Yes.

       8            THE COURT:  And on the assurance that the call comes,

       9   somebody will promptly come?

      10            MR. SCHMIDT:  Absolutely.

      11            THE COURT:  Yes.

      12            MR. SCHMIDT:  Thank you.

      13            THE COURT:  All right.  I guess we will await the

      14   jury.

      15            I received a request from members of the press to

      16   meet with me about logistics about the verdict, and I'll be

      17   glad to meet with you in the robing room.  Otherwise, we're in

      18   recess until we hear from the jury.

      19            (Recess pending verdict)

      20

      21

      22

      23

      24

      25

                                                                    6229

       1            (Time noted, 4:30 p.m; defendants and jury not

       2   present)

       3            THE COURT:  I am bringing the jury in to tell them

       4   they can go home and just to caution them not to begin

       5   deliberating until they are all assembled.  Their note

       6   requests the following in order to begin deliberations, and

       7   lists by exhibit number the 19 exhibits that they want to

       8   begin, including the El Hage grand jury testimony,

       9   Government's Exhibit 6 -- take a look at it and we will make

      10   copies.

      11            (Defendants and jury present)

      12            THE COURT:  Thank you for your note.  It was very

      13   helpful to us.  We will compile all this material and

      14   hopefully it will be available to you tomorrow.

      15            You ask for the Nike bag and contents.  We will send

      16   that in.  We will also send in a box of rubber gloves so that

      17   you will have the rubber gloves.

      18            The main reason I brought you back was to tell you

      19   that tomorrow morning -- the law is very strict that the jury

      20   can't deliberate unless all of the jurors are present.  We

      21   don't want to have little groups.  Therefore, tomorrow morning

      22   when you arrive -- you all arrive together, don't you, so it

      23   really isn't a problem.  If for any reason you are not all

      24   together, let me know, and don't deliberate, don't discuss the

      25   case unless you are all present.

                                                                    6230

       1            Have a good evening.  We are adjourned until 10:00

       2   a.m. tomorrow.

       3            I just say, if at some point you would like to start

       4   earlier, that is up to you also.  But don't spend two weeks

       5   debating that.  Have a good evening.

       6            (Jury excused)

       7            MR. KARAS:  There were some exhibit numbers that were

       8   listed that refer to what the exhibit was that don't match.

       9   For instance, there was a request for Government's Exhibit

      10   257A.  There is no 257A.  There is a 257, which is a map.

      11            THE COURT:  I guess we should get together tomorrow

      12   to deal with any problems that may arise in complying with the

      13   note at 9:30.  Will you make sure, Miss Gasiorowski, that Mr.

      14   Cohn knows that we are going to meet at 9:30 tomorrow morning

      15   to deal with any problems that may arise in connection with

      16   responding to it?

      17            MS. GASIOROWSKI:  Yes, your Honor.

      18            THE COURT:  Otherwise we are adjourned until 9:30

      19   tomorrow morning.

      20            (Proceedings adjourned until 9:30 a.m., Friday, May

      21   11, 2001)

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