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

This is the transcript of Day 52 of the trial, May 23, 2001.

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

                                                                    6445

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

       3   UNITED STATES OF AMERICA

       4              v.                           S(7)98CR1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           May 23, 2001
                                                   10:30 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

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                                                                    6446

       1                            APPEARANCES

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

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

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

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

      16

      17            (In the robing room; classified - to be transcribed

      18   under separate cover)

      19            (In open court; jury not present)

      20            THE COURT:  The jury began deliberations at

      21   approximately the 9:15 this morning, and we received a note

      22   from the jury which says:  Judge Sand, the jury would like to

      23   request Wadih El Hage's passport which we believe is in

      24   evidence, but we don't know the exhibit number.  We also

      25   request the following:  Government Exhibit 611 letter from El

                                                                    6447

       1   Hage, Government Exhibit 437A, letter from El Hage, Government

       2   Exhibit 621C-13, call from El Hage satellite phone, Government

       3   Exhibit 632 fax to Abu Khadija in Germany, and ID for El Hage

       4   as quote investigative reporter close quote.

       5            Are there any problems in identifying those?

       6            MR. KARAS:  No, Judge.  Everything is ready to go.

       7   I'm ready to give it to Mr. Kenneally and Mr. Dratel has seen

       8   the exhibits.

       9            THE COURT:  Very well.  All right.  Just send it into

      10   the jury.

      11            MR. KARAS:  In the meantime we'll have copies made

      12   and we're sending the originals in.

      13            THE COURT:  We'll await further from the jury and

      14   we'll take a five minute recess, and then I'll continue with

      15   counsel on the classified matters in the robing room.

      16            (Recess)

      17            (Continued on next page)

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                                                                    6489

       1                 A F T E R N O O N    S E S S I O N

       2                             2:15 p.m.

       3            (In open court; jury not present)

       4            THE COURT:  A juror developed a serious dental

       5   problem.  Efforts to arrange for immediate emergency treatment

       6   were not successful, and the juror said that her pain was such

       7   that she could not continue deliberating.  Indeed, I saw that

       8   half of her face was considerably swollen, and so we sent the

       9   jury home.  The juror said that she had every hope that she

      10   would be able to attend tomorrow.

      11            There was no alternative.  You weren't here.  In any

      12   event, I didn't think there would be an objection to excusing

      13   the jury.  It was clear that the juror could not continue.

      14   There is every hope that she'll be able to come to court

      15   tomorrow.  But we're adjourned for the day insofar as the jury

      16   is concerned, and in about ten minutes I'll resume in the

      17   robing room with counsel.

      18            MR. COHN:  Your Honor, considering the balance of

      19   what we have to consider in the robing room you might want to

      20   inquire whether the clients wish to go back?

      21            THE COURT:  Why don't you inquire of your clients.

      22            MR. COHN:  Yes.  Mr. Al-'Owhali would like to return.

      23            THE COURT:  If all of the defendants wish to return.

      24            MR. BAUGH:  Mr. Odeh would like to go back to the

      25   MCC.

                                                                    6490

       1            MR. STERN:  Khalfan Mohamed would like to return.

       2            MR. DRATEL:  Mr. El Hage would like to go back.

       3            (Continued on next page)

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                                                                    6491

       1            (Pages 6449 through 6488 sealed)

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                                                                    6489

       1                 A F T E R N O O N    S E S S I O N

       2                             2:15 p.m.

       3            (In open court; jury not present)

       4            THE COURT:  A juror developed a serious dental

       5   problem.  Efforts to arrange for immediate emergency treatment

       6   were not successful, and the juror said that her pain was such

       7   that she could not continue deliberating.  Indeed, I saw that

       8   half of her face was considerably swollen, and so we sent the

       9   jury home.  The juror said that she had every hope that she

      10   would be able to attend tomorrow.

      11            There was no alternative.  You weren't here.  In any

      12   event, I didn't think there would be an objection to excusing

      13   the jury.  It was clear that the juror could not continue.

      14   There is every hope that she'll be able to come to court

      15   tomorrow.  But we're adjourned for the day insofar as the jury

      16   is concerned, and in about ten minutes I'll resume in the

      17   robing room with counsel.

      18            MR. COHN:  Your Honor, considering the balance of

      19   what we have to consider in the robing room you might want to

      20   inquire whether the clients wish to go back?

      21            THE COURT:  Why don't you inquire of your clients.

      22            MR. COHN:  Yes.  Mr. Al-'Owhali would like to return.

      23            THE COURT:  If all of the defendants wish to return.

      24            MR. BAUGH:  Mr. Odeh would like to go back to the

      25   MCC.

                                                                    6490

       1            MR. STERN:  Khalfan Mohamed would like to return.

       2            MR. DRATEL:  Mr. El Hage would like to go back.

       3            (Continued on next page)

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                                                                    6529

       1            (Pages 6492 through 6528 sealed)

       2            (In open court; jury not present)

       3            THE COURT:  Have the parties now had an opportunity

       4   to review the preliminary instructions?

       5            MR. GARCIA:  Yes, your Honor.

       6            THE COURT:  I suppose one question which we should at

       7   least articulate is the appropriateness of any preliminary

       8   instructions at all.  In McVeigh I think there weren't any.

       9            MR. FITZGERALD:  In McVeigh we had given your Honor

      10   the preliminary instructions from McVeigh.

      11            THE COURT:  Wasn't it just two or three paragraphs?

      12            MR. FITZGERALD:  Yes.

      13            THE COURT:  It was very short.  It was certainly not

      14   as detailed as this.  I'm inclined to favor having preliminary

      15   instructions simply because this process is not something that

      16   would be commonly known by a jury.  Does anybody think we

      17   should not have preliminary instructions?

      18            MR. RUHNKE:  No, your Honor.

      19            MR. BAUGH:  No, your Honor.

      20            MR. RUHNKE:  I think, your Honor, there are things

      21   about the penalty phase in the federal death penalty case that

      22   are just not within anyone's average knowledge.  I think a

      23   jury needs to have a preview of what's coming.

      24            THE COURT:  As a result of our conference thus far,

      25   we've left unresolved the standards for determining the

                                                                    6530

       1   weighing of the factors.  We've left unresolved what the

       2   Eighth Circuit would call the mercy instruction, that is, the

       3   instruction to the jury that regardless of their weighing of

       4   the factors they need not find the death penalty.

       5            We've left unresolved what, if anything, the Court

       6   would say in the final instructions with respect to

       7   deterrence.  And we've left unresolved whether there must be

       8   unanimity as to the gateway aggravators not being applicable.

       9   Those four items.

      10            MR. RUHNKE:  I'm sorry.  You dropped your voice at

      11   the end of the last.

      12            THE COURT:  The unanimity as to if the jury finds

      13   that the gateway factors or the aggravators are not

      14   applicable.  Whether they must be unanimous as to that.

      15            MR. RUHNKE:  Your Honor, as to either way, is that?

      16            THE COURT:  Either way, that's right.  In other

      17   words, the Fifth Circuit held that if the jury is undecided

      18   then there is, if the jury is not unanimous, then you impanel

      19   a new jury.  The district court held that.  The Fifth Circuit

      20   said no, that was not right.

      21            MR. RUHNKE:  No, the Fifth Circuit held that if there

      22   was a hung jury there would be a retrial.  United States

      23   Supreme Court said, no, that's not correct.

      24            THE COURT:  But didn't explicitly say what does

      25   happen.  The Supreme Court said you didn't have to

                                                                    6531

       1   affirmatively tell the jury what happened.

       2            MR. RUHNKE:  That's correct.

       3            THE COURT:  And you see I sort of dealt with the

       4   issue in the preliminary instructions by not dealing with it.

       5            MR. RUHNKE:  Yes.

       6            THE COURT:  All right.  So those four items we know

       7   we have to address further with the aid of whatever input

       8   counsel will give us on the timetable we've indicated.

       9            Is there anything else with respect to the proposed

      10   preliminary instructions?

      11            MR. FITZGERALD:  Just one issue regarding language on

      12   page 7.  In the top paragraph which is one sentence the fourth

      13   line the government would suggest that the language be changed

      14   to say, lead a juror to conclude that the defendant should not

      15   receive the death penalty, instead of, be executed.

      16            MR. RUHNKE:  Your Honor, it's getting a little bit

      17   euphemistic.  We're talking about execution, that's what we're

      18   talking about as the alternative to the sentence of life

      19   imprisonment.  It may be not nice to say it out loud, but

      20   that's what we're talking about.

      21            THE COURT:  I think that's the only time we use that

      22   language.  Anything else?  Anybody else?

      23            MR. BAUGH:  Did the Court just rule on the

      24   government's suggestion?

      25            THE COURT:  I think we should have consistent

                                                                    6532

       1   language and I think, yes, I'm adopting the government's

       2   suggestion.

       3            Any other comment with respect to the Court's

       4   proposed preliminary instruction?

       5            MR. BAUGH:  There is one very small issue, your

       6   Honor, on page 5.  Future dangerousness we were talking about

       7   this morning the first sentence is, the defendant is likely to

       8   commit --

       9            THE COURT:  We're going to have a revision of that,

      10   right?

      11            MR. GARCIA:  Yes.

      12            THE COURT:  I mean that's why we dealt earlier in the

      13   day.

      14            MR. BAUGH:  The word likely.

      15            THE COURT:  The government is going to submit a

      16   revised list of aggravators and defendants are going to submit

      17   a revised list of mitigators.

      18            All right.  I think we're finished for the day.

      19            MR. RUHNKE:  I think so, your Honor, yes.

      20            THE COURT:  Except that we all wish the juror with

      21   the toothache a speedy recovery.  Okay, thank you.

      22            You've given me telephone numbers.  If we cannot the

      23   sit tomorrow we'll try and get word out to you as soon as we

      24   know that that's the case.

      25            MR. BAUGH:  Your Honor, as one of the lawyers who is

                                                                    6533

       1   closest to the courtroom, would you like me to be here early?

       2   I'll take the responsibility for calling my co-counsel.

       3            THE COURT:  Fine.  Be here at 9:30.  That will be

       4   fine.

       5            MR. BAUGH:  Do you want me here before that?

       6            THE COURT:  In the past the jurors have been getting

       7   here about ten minutes after 9.

       8            MR. RUHNKE:  I just noted in the past when we had a

       9   juror who was sick there was apparently a mechanism for

      10   contacting the Marshals to tell them they were not going to be

      11   able to come.

      12            THE COURT:  To contact the other jurors?

      13            MR. RUHNKE:  I don't know if there is such a

      14   mechanism.

      15            THE COURT:  I'll leave that to the Marshals.  The

      16   other thing that I've been thinking about is whether we should

      17   contact the alternates and give them some clue that their

      18   lives must be very much in limbo, and I suppose the clue --

      19   let's think about that at the close of business tomorrow.  All

      20   right.  Thank you all.

      21            (Adjourned to 9:30 a.m., Thursday, May 24, 2000)

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