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

This is the transcript of Day 48 of the trial, May 17, 2001.

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

                                                                    6321

       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 17, 2001
                                                   9:30 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6322

       1                            APPEARANCES

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

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

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

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

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6323

       1            (Deliberations resumed)

       2            (Time noted, 9:45 a.m.; jury not present)

       3            THE COURT:  Are there any disagreements as to what

       4   should be read to the jury in response to the note?

       5            MR. COHN:  There are, your Honor.

       6            MR. WILFORD:  Your Honor, my client is not able to

       7   hear anything.

       8            MR. COHN:  The government agrees with those portions

       9   which I think are relevant but they have additional portions

      10   which I think are not.  Therefore, let me give you the ones

      11   that we believe that we are in agreement on and then obviously

      12   you will want to hear from the government.

      13            THE COURT:  Yes.

      14            MR. COHN:  Page 2020, line 23 --

      15            THE COURT:  I tell you what.  I am not so much

      16   interested in those that you are agreed upon.  That is a

      17   matter of giving that list to the reporter.  I think we should

      18   focus on those things where there is disagreement.

      19            MR. COHN:  Except, your Honor, that the disagreement

      20   is conceptual, I think, and I believe that the question

      21   addressed to the bombing, the motive for the bombing of the

      22   embassies --

      23            THE COURT:  The language of the note is what he said

      24   regarding why embassies are targeted.  What is the date of the

      25   transcript?

                                                                    6324

       1            MR. COHN:  The date of it, your Honor, is March 7.

       2            THE COURT:  Is it all on that day?

       3            MR. KARAS:  Yes.

       4            THE COURT:  You are in agreement with page 2020 --

       5            MR. COHN:  Line 23, through 2021, line 11.  Then we

       6   are in further agreement on page 2023, line 19, through 2024,

       7   line 6.  The government then has further material.

       8            THE COURT:  The government wants what?

       9            MR. KARAS:  There are two additional questions, your

      10   Honor, that are responsive to the note that the jury has

      11   brought out.  The first one is on page 2021, beginning on line

      12   12.  It goes down to line 24.

      13            THE COURT:  That deals with when rather than why.

      14            MR. KARAS:  The only thing, in particular, line 21,

      15   on page 2021, what Al-'Owhali explained to Agent Gaudin was

      16   that the group wanted to attack American targets outside the

      17   United States, which we think is responsive to why embassies

      18   are targeted, so that it could weaken the United States.

      19            THE COURT:  Where is that?

      20            MR. KARAS:  Page 2021, line 21, the sentence that

      21   begins with first, and he says first, we must first, Saleh

      22   explains to Al-'Owhali that we have to have many attacks

      23   outside the United States, and this will weaken the US and

      24   make way for our ability to strike within the United States.

      25            THE COURT:  That does relate to why embassies are

                                                                    6325

       1   targeted.

       2            MR. COHN:  You say does or doesn't?

       3            THE COURT:  It does.

       4            MR. COHN:  It talks about undifferentiated targets

       5   and could include all sorts of things, including military

       6   bases and all the things that are sort of off campus.  I don't

       7   think it is specific enough.  Your Honor said at the beginning

       8   of this process that we would give a close literal reading of

       9   the request.  I don't think that is responsive.  I think it is

      10   too broad.

      11            MR. KARAS:  Your Honor, all this has to be viewed in

      12   context.  This is right after Al-'Owhali has explained why the

      13   embassy in Nairobi was to be targeted, and then right after he

      14   gives that answer, the next question and answer deals with the

      15   types of training they received, and at the top of page 2022,

      16   the answer given is that Al-'Owhali explained to me during his

      17   training they emphasize priorities of attacks, three of those

      18   to be US missions or diplomatic posts and kidnapping

      19   ambassadors.

      20            So I don't think in context it can be read as a very

      21   vague abstract.

      22            THE COURT:  I agree.  So that is 2020 -- I disagree

      23   with the government with respect to the line prior line 23 on

      24   page 2020.

      25            MR. KARAS:  Or line 21, at the end of the line there,

                                                                    6326

       1   first we must?

       2            THE COURT:  Where would you begin?

       3            MR. KARAS:  Line 21, the sentence that begins with

       4   first.

       5            MR. COHN:  This is on page what?

       6            MR. KARAS:  2021.

       7            THE COURT:  Page 2021, what line?

       8            MR. KARAS:  At the very beginning it would be, as

       9   your Honor noted, page 2020, line 23.

      10            THE COURT:  So you would begin on 21, first we

      11   must --

      12            MR. KARAS:  I may have misunderstood your question,

      13   your Honor.  When you ask where would we begin, the bottom of

      14   page 2020, line 23.

      15            THE COURT:  That's clear, right?  There is no

      16   disagreement as to that.

      17            MR. COHN:  No, and we are in agreement through line

      18   11 on the next page.  The government wishes to continue.

      19            MR. KARAS:  I think, your Honor, in terms of context

      20   to make it clear, I think we go through to page 2022, line 5.

      21            THE COURT:  To line 5, I agree.

      22            MR. COHN:  Note my objection.

      23            THE COURT:  So it will be 2020, line 23, through

      24   2022, line 5.

      25            MR. COHN:  Just so the record is clear --

                                                                    6327

       1            THE COURT:  Yes.

       2            MR. KARAS:  The next one where we do agree is page

       3   2023, line 19, through to page 2024, line 6.  That was where

       4   we agreed.  And then the last area of disagreement is, turning

       5   to page 2037, beginning with line 8, through to 2038, line 2.

       6   And there Agent Gaudin asks Al-'Owhali what it is that it

       7   would take for this to stop, referring to the embassy

       8   bombings, and Al-'Owhali explains again the motives as to why

       9   American embassies are targeted, and he lists the three

      10   conditions in which those attacks would stop.

      11            MR. COHN:  Your Honor, he is asking questions about

      12   policy and it is not directed to the embassy.

      13            THE COURT:  You would read to where?  What line?

      14            MR. KARAS:  We would seek to have read back page

      15   2037, line 8, to 2038, line 2.

      16            THE COURT:  No, I will sustain the objection to that.

      17   I think the question is why embassies, and this is more

      18   general.

      19            So that's it?

      20            MR. KARAS:  That's it.

      21            MR. COHN:  That appears to be it.

      22            THE COURT:  We will bring the jury in.  I will tell

      23   the jury that if there is anything else they want of the

      24   testimony of Agent Gaudin, they should send us another note.

      25            MR. SCHMIDT:  Your Honor, before we bring the jury

                                                                    6328

       1   in, I also request your Honor that before you have this

       2   material read that you give the limiting instruction

       3   concerning the use of the statement made by Mr. Al-'Owhali as

       4   to the other defendants.

       5            THE COURT:  That is appropriate.  I will do that.

       6            MR. WILFORD:  Your Honor, is it your intent to

       7   reiterate the last paragraph of your charge on admissions of

       8   defendants?

       9            THE COURT:  I intend to say I remind you that the

      10   testimony of the agent with respect to postarrest statements

      11   by Mr. Al-'Owhali were received only with respect to him.

      12            If they want the totality of his testimony, there is

      13   the alternative, of course, of sending in the transcript.

      14            MR. COHN:  I don't think so.  My client wishes to put

      15   on the record that he disagrees with my interpretation of the

      16   question and does not believe that the question requires an

      17   answer in regard to the specific Nairobi embassy bombing, and

      18   that it is only general.

      19            THE COURT:  Very well.  The record will so indicate.

      20            (Time noted 10:00 a.m., jury present)

      21            THE COURT:  Good morning.

      22            JURORS:  Good morning.

      23            THE COURT:  Your last note reads:  For tomorrow --

      24   meaning today -- we would like to have Special Agent Gaudin's

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

                                                                    6329

       1   he said regarding why embassies are targeted.

       2            Let me say a few things before we read that.  The

       3   first, I want to remind you that Agent Gaudin's testimony as

       4   to what Mr. Al-'Owhali said after his arrest was received in

       5   evidence solely against Mr. Al-'Owhali, and that of course

       6   applies.

       7            Second, with respect to this note, as with respect to

       8   all of the notes we receive from you, we try to limit the

       9   response to what it is that you ask for, giving that a fairly

      10   strict interpretation.  But please, if what we read or what we

      11   send you does not include everything you want, just simply

      12   send us a note.

      13            So what we will have now read is the portions of the

      14   testimony specifically addressed to the testimony as to why

      15   embassies are targeted.  If there is anything else in his

      16   testimony that you would like to have reread, just send us a

      17   note.

      18            (Record read)

      19            THE COURT:  That is the testimony specifically

      20   related to why embassies are targeted.  As I say, if there is

      21   anything else you want read, please send us a note.

      22            MR. SCHMIDT:  Your Honor, what we discussed prior

      23   to --

      24            THE COURT:  I said that.

      25            (Jury excused)

                                                                    6330

       1            THE COURT:  Does it create any special hardship for

       2   counsel if we begin at 9:30?  Because in fact this jury is

       3   arriving at 9:00.  We will begin each day at 9:30.  They

       4   arrive at 9, and I think they have a little breakfast.

       5            With respect to the victim impact testimony, is that

       6   now ripe for adjudication?

       7            MR. COHN:  Yes.

       8            THE COURT:  The court has received various documents

       9   which have been furnished to counsel.  These include the bill

      10   of particulars by cover letter dated May 10, specifying the

      11   particularized categories of "injury, harm and loss" that will

      12   be proffered at sentencing, and that consists of redacted

      13   302's.

      14            MR. GARCIA:  Names and identifying details.

      15            THE COURT:  And that will be furnished --

      16            MR. GARCIA:  Yes, Judge, except for the telephone

      17   numbers and addresses.

      18            THE COURT:  In addition, there is a chart that I take

      19   it is in response to the request for a summary, one for Kenya

      20   and one for Tanzania.  There is also the government's

      21   response, which deals with, in particular deals with

      22   photographs, Exhibit A being photographs the government

      23   intends to introduce with respect to Nairobi, B with respect

      24   to Kenya, and Exhibit C, which I take it is by way of

      25   comparison, photographs which the government does not intend

                                                                    6331

       1   to introduce, I take it for reasons which include gruesome

       2   character.

       3            With respect to victim impact testimony, is there

       4   anything --

       5            MR. COHN:  There is also a tape, your Honor.

       6            THE COURT:  There is the tape, which I have watched,

       7   although I am not sure I watched it to its conclusion.  I

       8   watched it to the point where foreign service officers were

       9   summarizing who was killed or injured in the -- who had

      10   accompanied her on a mountain climb.  Is that the end of the

      11   tape?

      12            MR. GARCIA:  I think then just the scroll of names of

      13   Americans and foreign service nationals who were killed in

      14   both bombings.

      15            THE COURT:  My first question is, by way of discovery

      16   is there anything further which the defendants require in

      17   terms of what the government intends to offer at each of the

      18   two --

      19            MR. COHN:  Your Honor, we would --

      20            THE COURT:  Let me finish the sentence.  I like when

      21   there is a sentence where you can put a period.  Sometimes

      22   there is a pause.

      23            MR. COHN:  I apologize.  It seems to be my nature to

      24   interrupt virtually everybody, no matter how powerful.

      25            It is our contention that what we got was not

                                                                    6332

       1   sufficient, for the reasons set we set forth.

       2            THE COURT:  Just to focus, what is there about what

       3   the government intends to introduce with respect to victims

       4   and victim impact that you don't have?

       5            MR. COHN:  What we have is what there is.  That may

       6   seem to be a distinction without a difference.  But unless we

       7   are to get advisory opinions from you on objectionable

       8   material in each of the 302's, it seems to me that we should

       9   be entitled to a precis of the expected testimony, not of the

      10   available information.  There is material in a number of the

      11   302's that if introduced into evidence would call for an

      12   objection and too late.

      13            THE COURT:  I suppose it would be helpful if the

      14   government were to state what the function of these charts is.

      15   Maybe we should mark them in evidence as Court Exh GARCIA:  Your Honor, yes.  To be perfectly clear,

      22   on this photograph, she won't be able to respond because she

      23   can't see now.

      24            THE COURT:  She is blind.

      25            MR. GARCIA:  She is blind.  The other photographs

                                                                    6343

       1   that I believe there was objection to all deal with injured

       2   victims, which go directly to what we were speaking about, the

       3   category of aggravating factors.  I think it is very limited

       4   considering that hundreds of people were injured, many far

       5   more seriously than those depicted in the photographs.

       6            MR. COHN:  Just let me point out, your Honor, that

       7   what we usually call a 403 analysis here is much less

       8   burdensome to the defendant than it is under the general rules

       9   of evidence, and that McVeigh certainly indicates to us that

      10   the court should exercise some balance in the amount of this

      11   stuff that comes in.  That is what we are really addressing.

      12            THE COURT:  What is a fair balance?  You start to do

      13   the arithmetic of McVeigh and the number of witnesses and the

      14   number of victims and you set up a formula?

      15            MR. COHN:  No, Judge.  I believe that everyone in

      16   this courtroom on this side of the bar is an experienced trial

      17   lawyer or experienced judge, and you understand impact, if not

      18   better than I do, and I think that 42 victims testifying, 12

      19   before and 30 now, is a bit much, and that particularly, if

      20   you look at their chart, many are duplicative in terms of

      21   categories.  How many blind people do you need to testify?  I

      22   don't mean to be grotesque but that is what it is about.  It

      23   is a parade of people who have serious injuries.  Every family

      24   suffered from all of this and we all know it.  How much of it

      25   is reasonable is something that is within your sound

                                                                    6344

       1   discretion.

       2            You are never going to be reversed on what you do, I

       3   know that.

       4            THE COURT:  That is not my criterion.

       5            MR. COHN:  And I know it is not, but it is not ours

       6   either.  I just think it is too much.  We had the film.  Yes,

       7   the government was nice about it and didn't put in a lot of

       8   the stuff that they could have, but they got a lot for it.

       9   They didn't have to bring irrelevant witnesses from Nairobi

      10   and do all that stuff.

      11            THE COURT:  And that was a benefit to the government?

      12            MR. COHN:  Yes.

      13            THE COURT:  Unilateral benefit?

      14            MR. COHN:  Unilateral, no.  I said they got something

      15   for it.  It was a quid pro quo.  While they are all nice young

      16   men individually is hardly being charitable.

      17            THE COURT:  Wait a minute.  First of all, ad hominem

      18   comments, and there have been very few during the course of

      19   the trial, should not be made even at this stage as the trial

      20   winds down.

      21            MR. COHN:  It is not an attack on any of these people

      22   personally.  The government does what it does.

      23            THE COURT:  The government has an obligation.  It has

      24   an obligation to fulfill its mission.  It has an obligation to

      25   present to this jury a fair and reasonable depiction of what

                                                                    6345

       1   occurred.  What occurred was not a bloodless event.  You

       2   recall that when we voir-dired this jury they were alerted to

       3   the fact that the evidence might include photographs -- I

       4   don't have the exact language before me now, but basically

       5   gory.  As I look through these photographs, I don't find that

       6   blood is being displayed in an excessive fashion.  Blood was

       7   spilled.  Part of the agony of the victims and the agony of

       8   members of their families and others who were observing was

       9   that.  I think that the government's submission insofar as the

      10   photographs are concerned are reasonable, appropriate, within

      11   the scope of Payne and McVeigh, and insofar as the objections

      12   are directed to that, they are denied.

      13            With respect to the video, what is the government's

      14   intent?  I take it the video was not prepared for the trial.

      15            MR. GARCIA:  No, it was prepared for the one-year

      16   anniversary of the bombing.

      17            THE COURT:  Does the government plan to play any or

      18   all of that tape?

      19            MR. GARCIA:  Yes, your Honor.  So the record is

      20   clear, we redacted the end of the video, which is available

      21   for your review, if you care to, which has Ambassador Bushnell

      22   giving a speech and things like that.  The government would

      23   seek to play the video as we submit it to your Honor.  If

      24   there is an objection to the portion of it describing the

      25   victims, then the government would contemplate only using the

                                                                    6346

       1   photographic images and putting it in, authenticating it in a

       2   different way without any narrative.

       3            THE COURT:  Have defense counsel seen the video?

       4            MR. COHN:  My colleague has, I have not.

       5            MR. BAUGH:  I have, your Honor.

       6            THE COURT:  Are there objections to the video?

       7            MR. BAUGH:  Yes, your Honor.

       8            THE COURT:  What are the objections?

       9            MR. BAUGH:  Several, your Honor.  As the tape opens,

      10   there is a list of words that fade in and out, with sort of a

      11   kind of spiritual and patriotic theme to them that we believe

      12   is not dispositive of any issue that is in controversy.

      13            MR. GARCIA:  We can redact that, Judge.

      14            MR. BAUGH:  Additionally, the rest of the tape

      15   appears to have been -- I don't know if the people who are

      16   speaking on the tape wrote it all themselves, other than those

      17   portions they attribute to poetry, but it certainly appears

      18   that they are reading off of something.  More importantly,

      19   citing specific language in Payne, it goes way beyond showing

      20   what is lost.  It is taking the jury to a memorial service,

      21   taking the jury to a funeral.

      22            THE COURT:  It varies.  In some instances it seemed

      23   to me that the testimony, what the person said on the video

      24   could have been said on the witness stand.  It fell within the

      25   scope of the aggravators, within the scope of Payne and

                                                                    6347

       1   McVeigh, in some instances.  The reading of the poetry, I

       2   suppose, would not.  The description of a crime as a crime of

       3   hate, it is about the first 10 minutes.  And the end, which is

       4   sort of an exhortation to foreign service officers to duty and

       5   the calls of duty, I think, would not be permitted.

       6            Why don't you do, with respect to the tape, the same

       7   thing as you are doing with respect to the 302's.  Maybe you

       8   can watch it together and agree on what could be redacted.

       9            MR. COHN:  We will try, Judge, but I am less sanguine

      10   about that than I am with the 302's.

      11            THE COURT:  You haven't seen it, right?

      12            MR. COHN:  No.

      13            THE COURT:  You are making that statement not having

      14   seen it.  I am saying that, having watched it, there are some

      15   which in their totality would be permitted on the stand.  If

      16   the defendants think it is to their advantage to have a longer

      17   parade of live victim witnesses, that's an alternative.

      18            MR. COHN:  It is not the only alternative, Judge,

      19   because what I was going to point out to the court was that if

      20   those people -- and I don't know how many there are --

      21            THE COURT:  You know what, Mr. Cohn, maybe it would

      22   really be more useful for you to have seen the tape before you

      23   venture your views on its admissibility.

      24            MR. COHN:  Perhaps, your Honor, but I think given

      25   your description of it I could have said what I was about to

                                                                    6348

       1   say, but if the court doesn't want to hear it, that works for

       2   me.

       3            MR. BAUGH:  And I would agree with Mr. Cohn that if

       4   the government is going to put the live witnesses on and have

       5   them on videotape --

       6            THE COURT:  Not the same, right?  Is there

       7   duplication?

       8            MR. BAUGH:  Yes, your Honor, there is.  We have 302's

       9   from people who are on the tape.

      10            MR. GARCIA:  Your Honor, we will redact out so there

      11   is no overlap.

      12            MR. BAUGH:  However, we are still permitted to go

      13   through and point out to you those portions which we say

      14   should be excised as well.

      15            MR. GARCIA:  And we will indicate which we will

      16   redact so there is no duplication.

      17            MR. BAUGH:  And we will have that by the close of

      18   business tomorrow.

      19            Your Honor, could I have until noon tomorrow on the

      20   instructions so I can do this today?

      21            THE COURT:  Yes.  I don't know how you divide your

      22   work up.

      23            MR. COHN:  I take some comfort in the fact that

      24   neither do we -- never mind, Judge, another smart remark.

      25            MR. BAUGH:  Cocounsel points out, because as you

                                                                    6349

       1   know, we are working a lot here, even though Mr. Cohn has

       2   kindly consented that we would present our objections to the

       3   printed material by the close of business tomorrow, could we

       4   submit ours with Mr. Ruhnke as well?

       5            THE COURT:  Yes.

       6            MR. BAUGH:  Thank you.

       7            THE COURT:  Anything else?

       8            MR. RUHNKE:  Your Honor, there is some victim impact

       9   evidence that we have not discussed with respect to K.K.

      10   Mohammed.  Just by way of preamble to this, the danger here is

      11   that natural human emotion takes over what a juror's

      12   responsibilities are to the law.

      13            THE COURT:  You know, we know something -- I have the

      14   rest of the day.  I have the rest of the day to listen to you,

      15   but I wanted to say, we know something now that we didn't know

      16   before.  We know something about this jury.  We know that this

      17   is a jury which hasn't had a kneejerk reaction to the

      18   magnitude of the losses.  We know this is a jury which has

      19   already demonstrated that it is carefully considering,

      20   meticulously reviewing the evidence, and there is no reason to

      21   think that the response will change.

      22            MR. RUHNKE:  The danger that has been identified and

      23   associated with victim impact evidence is that it has a

      24   tendency to overwhelm reason with emotion.

      25            THE COURT:  You know, you are arguing against

                                                                    6350

       1   yourself, you see, because one of the arguments was that it is

       2   duplicative.  This jury has already seen the blood and the

       3   gore.  But the seeing of the blood and the gore has not led

       4   this jury to say what a horrible catastrophe this was and to

       5   just check the box.

       6            Anyhow, I will now be quiet.

       7            MR. RUHNKE:  Your Honor, anytime, obviously.  There

       8   was a time in our history when the United States Supreme Court

       9   said this type of evidence is so entirely inflammatory that it

      10   cannot be allowed in a capital case.  What happened is, two

      11   years later, the only thing that changed was the makeup of the

      12   United States Supreme Court, which said now it can come into

      13   evidence and it is perfectly fine that it come into evidence.

      14            What we are guided by, accepting Payne and Gaithers

      15   and the Booth, Gaithers, Payne history, is that the laws

      16   enacted by Congress talk not in terms of evidence but

      17   information at a penalty phase that seems otherwise relevant.

      18   What Mr. Cohn alluded to before is that Congress, whether, God

      19   bless them, this was a conscious choice or they just didn't

      20   know what they are they were doing on that particular day,

      21   enacted a statute which says evidence may be excluded if its

      22   probative value is outweighed by the danger of creating unfair

      23   prejudice, confusing the issues or misleading the jury.

      24   Whether that is a conscious effort to make the standard

      25   broader than Rule 403, which talks about substantially

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       1   outweighing the danger, I don't know.  The legislative history

       2   of this particular enactment is not anything that would take a

       3   long time to read, and there is no discussion of this

       4   particular change in the history of legislation.

       5            So we come to a penalty phase where a jury is going

       6   to be required to decide whether or not to sentence someone to

       7   life or death.  That is the issue at penalty.  Then the

       8   argument becomes do, for example, photographs bear a relevant

       9   relation to that process, and if the answer to that is yes,

      10   whether there is danger of unfair prejudice from the

      11   photographs.  That's the analysis that we need to undertake,

      12   accepting that Payne is the law and accepting what Congress

      13   did when it enacted the relevance exclusion of information

      14   standard that it did.

      15            The government has proffered five photographs in

      16   connection with the bombing in Dar es Salaam.  There are tabs

      17   behind Exhibit B in the materials that were submitted.  I

      18   lodge an objection to the second photograph, which depicts a

      19   charred and disfigured corpse lying on the ground -- they are

      20   in different order?  There is a photograph among the five of a

      21   charred corpse.

      22            THE COURT:  With burned out automobiles in the

      23   background.

      24            MR. RUHNKE:  Yes, and the embassy fence in the

      25   background.

                                                                    6352

       1            If this was a case, for example, where the government

       2   had argued a statutory aggravating factor that the murder was

       3   accomplished in a manner that was heinous, atrocious and

       4   cruel, there might be some relevance to this photograph.  But

       5   all this photograph does is show a horribly disfigured body of

       6   somebody who was killed in the bombing.  It does not prove or

       7   move forward any of the aggravating factors alleged by the

       8   government that are not already in this case.  So I object to

       9   that photograph.

      10            I object as well to what is photograph number 4 in my

      11   set, which is what I can only describe as a pile of human

      12   corpses on the floor, it appears probably of some morgue in

      13   downtown Dar es Salaam, Tanzania.  I argue that that proves

      14   nothing other than that people died, something which is part

      15   of the atmosphere of this case, something the jury will have

      16   decided if we are to move on to the penalty phase.  I

      17   particularly argue that there is a danger of unfair prejudice,

      18   that simply there is a danger of unfair prejudice, not

      19   substantially outweighing probative value, but that there is a

      20   danger and that your Honor ought to exclude both of those two

      21   photographs.

      22            THE COURT:  All the photographs?

      23            MR. RUHNKE:  Those two photographs, two out of the

      24   five.

      25            THE COURT:  The pile of bodies and the charred

                                                                    6353

       1   corpse.

       2            MR. RUHNKE:  Yes.

       3            MR. GARCIA:  Your Honor, I don't quarrel with Mr.

       4   Ruhnke's statement of the rule and the statute --

       5            MR. RUHNKE:  Could you keep your voice up.

       6            MR. GARCIA:  -- which is a different standard than

       7   403.  We have five proposed photographs for Dar es Salaam,

       8   including the two Mr. Ruhnke specifies.  We have noticed an

       9   aggravating factor of multiple killings.  It is the same

      10   analysis as the government doesn't have to stip the cause of

      11   death.  They are multiple killings.  It is an aggravating

      12   factor that the government has to prove.

      13            In addition, especially the photograph of the body

      14   lying outside the embassy, this is not a government

      15   photograph.  This is what the scene looked like as other

      16   victims were walking out of the embassy.  This is what

      17   happened in Dar es Salaam and this is an impact on the

      18   survivors, as well as the individual who was killed in this

      19   manner depicted in the photograph.  There were 11 people

      20   killed in Dar es Salaam.  These photographs show that and they

      21   also show the impact.  This is a morgue photo of people going

      22   there and seeing this.  It is also impact on survival victims.

      23   Sometimes it is seen in light of the Nairobi bombing but it is

      24   still a case of mass murder.

      25            I think these photos are relevant and restrained and

                                                                    6354

       1   that the jury should see them.

       2            THE COURT:  The motion to preclude use of the

       3   photographs is denied.

       4            Anything else on our agenda?

       5            MR. COHN:  Does your Honor wish to discuss at all the

       6   sheer number of witnesses or do you want to await the

       7   analysis --

       8            THE COURT:  The government has told us -- how many

       9   witnesses, how long?

      10            MR. COHN:  They said about 30, maybe 29, maybe 31

      11   victim witnesses.

      12            THE COURT:  And the estimated length of time?

      13            MR. GARCIA:  Two days, Judge.  Two to four, building

      14   in some cross or some delay.  But they will be very short,

      15   victim impact testimony.  Very short direct.

      16            MR. COHN:  I understand there are a lot --

      17            THE COURT:  Is there really an objection in the

      18   context of this case that that is excessive?

      19            MR. COHN:  Yes, your Honor.  You have to put it in

      20   the context of 12 people who already testified.  The jury is

      21   aware of victim impact.  Cumulation mounts and I don't think

      22   it adds anything.  They know that there were 5,000 living

      23   victims.  They know that.  I don't mean to make light of it or

      24   try to be morbidly funny.  I am not.  How many people with the

      25   same injuries need they see?  That is cumulative.  McVeigh

                                                                    6355

       1   seemed to indicate that there ought to be some limit.  One

       2   hundred seventy-six dead people in McVeigh, in the order of

       3   magnitude, a similar amount of injury.

       4            THE COURT:  There is also language which says the

       5   government has the right to enable the jury not to deal with

       6   these as abstractions but to recognize the fact that these are

       7   human beings, and there is specific language which says, both

       8   in Payne and McVeigh, that these are human beings with lives

       9   and families and so on.

      10            I don't want to engage in rhetoric.  One justice has

      11   commented that the position of the defendants is to have sort

      12   of an inverse ratio between the magnitude of the crime and

      13   what it is that the government can show.  That is not

      14   appropriate.  I think two days of testimony, that number of

      15   witnesses does show restraint, appropriate restraint on the

      16   part of the government, and I think it would be inappropriate

      17   for the court to impose any further restraint, inappropriate

      18   in attempting to enable that jury, which, as I have said, has

      19   shown that it is not likely to be stampeded or to be

      20   overwhelmed by emotion, because, as you have already pointed

      21   out, they have already had significant exposure to victim

      22   impact.  But I think they are entitled at this phase of the

      23   case, if we reach it, to have some sense of the trauma, some

      24   sense of the consequences of blowing up these two embassies.

      25            Anything further?

                                                                    6356

       1            MR. BAUGH:  One thing briefly, your Honor.  During

       2   your discussion, several times you mentioned discovery.  I

       3   wanted the court to be reminded that nothing that has been

       4   tendered was pursuant to Rule 16.  It was all done in response

       5   to notice.  We have not figured made Rule 16 discovery

       6   requests in this case.  The court will understand.  Thank you.

       7            THE COURT:  What remains open?  Where are we with the

       8   Brady material?  Is that resolved?

       9            MR. FITZGERALD:  I believe the disclosure, classified

      10   disclosure was made by placing some documents in the secure

      11   facility for the defendants today.  I know it was prepared

      12   yesterday evening.

      13            MR. RUHNKE:  That is fine.  This is the first time I

      14   am learning that.

      15            MR. FITZGERALD:  It is ready to go.  If it is not

      16   physically there we will have someone walk over and make sure.

      17            THE COURT:  Having reviewed that matter, if that

      18   disclosure and the way it is made and the restrictions to

      19   which it is subject does not resolve the matter, then I am

      20   available to hear from counsel.

      21            What is the status with respect to, I guess the

      22   military matter?

      23            MR. BAUGH:  I have not heard from him again.  I will

      24   call him again today.

      25            MR. FITZGERALD:  The last I heard from Mr. Ailey,

                                                                    6357

       1   when Mr. Baugh stated that he had not heard on the Friday, May

       2   11, despite a promise of a letter, Mr. Baugh told me he did

       3   not send a letter because he spoke to him on the 11th.  When I

       4   asked him if he was aware that the focus was not the specific

       5   dates but the frequency, he said he was not aware of that and

       6   would pursue it.  My suggestion is that we try to contact

       7   Mr. Ailey today and send a letter in writing.

       8            THE COURT:  Would you have any objection if Mr.

       9   Fitzgerald was a part of that telephone conversation?

      10            MR. BAUGH:  No, not at all.

      11            THE COURT:  I think it might be useful.  There seem

      12   to be failures of communication here.

      13            Then we are adjourned awaiting some further

      14   communication from the jury.

      15            (Recess)

      16            (Proceedings adjourned at 4:00 p.m. until 10:30 a.m.,

      17   Friday, May 18, 2001)

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