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

This is the transcript of Day 50 of the trial, May 21, 2001.

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

                                                                    6390

       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 21, 2001
                                                   11:15 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

                                                                    6391

       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
                Attorneys for defendant Wadih El Hage
       8
           ANTHONY L. RICCO
       9   EDWARD D. WILFORD
           CARL J. HERMAN
      10        Attorneys for defendant Mohamed Sadeek Odeh

      11   FREDRICK H. COHN
           DAVID P. BAUGH
      12   LAURA GASIOROWSKI
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
      13
           DAVID STERN
      14   DAVID RUHNKE
                Attorneys for defendant Khalfan Khamis Mohamed
      15

      16            (In open court; jury not present)

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

      18   Sand, question B2 of Count Eight (page 11) of the verdict form

      19   pertains to KK Mohamed, but the question is in regard to

      20   Nairobi instead of Dar es Salaam.

      21            Can we please have this typographical error corrected

      22   and a new page 11 sent to us for voting.

      23            Thank you.

      24            Juror No. 1.

      25            MR. RUHNKE:  Yes, I agree.

                                                                    6392

       1            THE COURT:  This juror is absolutely correct and,

       2   indeed, the preceding matters all relate to Dar es Salaam.

       3   It's a purely typographical error, and unless anyone objects

       4   to it, we'll simply send in a new page 11.

       5            MR. COHN:  And a stapler.

       6            THE COURT:  And a statement?

       7            MR. COHN:  And a stapler.

       8            MR. SCHMIDT:  Your Honor, there is another issue that

       9   I wish to raise with my client present concerning the MCC

      10   visits and conditions of confinement.

      11            THE COURT:  Where are the defendants?

      12            MR. COHN:  I assume they're in back and nobody chose

      13   to bring them.  And I waive my client's presence for this

      14   small technical matter.

      15            MR. RUHNKE:  We do as well.

      16            MR. SCHMIDT:  For this portion.

      17            MR. HERMAN:  We join.

      18            THE COURT:  The note was read to me on the telephone

      19   and the correction is being made in my chambers, and the

      20   corrected page 11 is in en route, and as soon as it arrives we

      21   will send it into the jury, without any further comment,

      22   except maybe, we apologize for the typographical error.  Is

      23   that agreeable?

      24            Insofar as just let me know then when, is it

      25   appropriate for other defendants to be present or is this a

                                                                    6393

       1   matter that relates solely to Mr. El Hage?

       2            MR. SCHMIDT:  Well, it relates solely to Mr. El Hage.

       3   It's not inappropriate that the other inmate defendants be

       4   here if they wish to be brought out.

       5            MR. COHN:  Your Honor, I know what it's about.  You

       6   do not have to bring out Mr. Al-'Owhali.

       7            MR. RUHNKE:  You do not have to bring out Mr. Khalfan

       8   Mohamed.

       9            MR. HERMAN:  Same here.

      10            THE COURT:  As soon as he and Mr. El Hage is out we

      11   will address that matter.

      12            (Pause)

      13            THE COURT:  All right.  We have the substitute pages.

      14   This says:  This will correct the typographical error.

      15   Substitute pages are attached.

      16            (Recess)

      17            (In open court; jury not present)

      18            THE COURT:  Mr. Cohn, the form that the jury has is

      19   clipped, not stapled.

      20            MR. COHN:  I was sort of semi-joking, but I most

      21   always am and it's hard to know when to take me seriously.

      22            THE COURT:  Mr. Schmidt.

      23            MR. SCHMIDT:  Thank you, your Honor.

      24            Your Honor, as your Honor is aware we've been trying

      25   to arrange visits for Mr. El Hage during the time that his

                                                                    6394

       1   wife has been present in New York, and the difficulty because

       2   Mrs. El Hage has been here two weeks, she saw her husband

       3   approximately three hours two weeks ago, and was planning to

       4   see him again on Saturday.

       5            THE COURT:  Yes.

       6            MR. SCHMIDT:  Meantime there was one issue that had

       7   arisen that Mrs. El Hage was trying to deal with, and that was

       8   her desire because of her faith not to remove her head scarf

       9   for the visit unless in the presence of a Muslim female

      10   officer.  There are times during the week that there was

      11   another female officer present.  On the weekend apparently

      12   there is not.

      13            I spoke with the Warden's office.  I spoke to the

      14   executive director to see if we can work out a compromise, and

      15   after speaking to him about a compromise that a female

      16   officer, not Muslim, would be able to feel and search the

      17   whole area, the head, the scarf, as a substitute of forcing

      18   her to take off the scarf, I was told it was satisfactory as a

      19   compromise because it would satisfy the security needs.

      20            On Saturday when she arrived -- she also contacted

      21   the Bureau of Prisons regional office a number of times to try

      22   to arrange for the nonremoval of the head scarf.  As a result

      23   this compromise occurred.

      24            When she arrived on Saturday she was told that she

      25   could not see her husband unless she removed the head scarf.

                                                                    6395

       1   Though this is against her beliefs and embarrassing, she did,

       2   so she could see her husband.

       3            THE COURT:  So the visit in fact took place.

       4            MR. SCHMIDT:  It did not for another reason.  But,

       5   again, I understand the security needs.  It seems that one

       6   representative of the Bureau of Prisons says this satisfies

       7   the security needs and then they do something else.  It's

       8   something that I feel needs to be dealt with because feeling a

       9   head scarf which is a thin scarf on the hair, feeling the

      10   hair, feeling the scarf itself should satisfy security needs

      11   since visitors are not stripped searched, so the other

      12   clothing are not removed.  So I think we need to deal with

      13   that issue as well.

      14            So what happened on Saturday was that Mr. El Hage was

      15   brought to a noncontact room to see his wife and his oldest

      16   son was where there would be a wire barrier and a plastic

      17   barrier between them, and the visitors was not only taken to

      18   that room, but was told that these items were going to be kept

      19   on him.  He was handcuffed.  He was not only handcuffed, he

      20   had the black box which keeps the handcuffs still and cannot

      21   be moved so your hands are in a locked position.  They were

      22   further attached by a metal chain to his waist and his feet

      23   were shackled, placed in the room and expected to see his son,

      24   his 14 year old son and his wife in those conditions in a

      25   noncontact area.

                                                                    6396

       1            He had previously had a problem with just handcuffs

       2   and with counsel in a noncontact room, a room where there is

       3   no access whatsoever to anyone he was required to have

       4   handcuffs.  One counsel, I'm not sure who it was, took care of

       5   that problem and indicated that it would not be necessary to

       6   be handcuffed in a noncontact room.  There apparently was no

       7   Bureau of Prisons or MCC rules saying that he should.

       8   Previously, when counsel went to see Mr. El Hage the

       9   lieutenant on the tenth floor said, no, this is the way we do

      10   it, and he contacted the legal officer and notwithstanding

      11   what the legal officer said to him he said, no.  We left.  We

      12   spoke to legal counselor.  Indeed, the counselor contacted

      13   either the Warden or the Assistant Warden, and was told that

      14   no, we do not have to have handcuffs talking to counsel.  We

      15   were led back up.  We saw Mr. El Hage without him being

      16   handcuffed.  But we believed it was resolved in contact with

      17   counsel at the MCC about that my understanding is when an

      18   inmate is in a noncontact room where it --

      19            THE COURT:  I'm not clear.  Did the visit in fact

      20   take place?

      21            MR. SCHMIDT:  With me it took place after about an

      22   hour and a half of trying to get that done.  This occurred

      23   about four, five weeks ago, and my understanding that issue

      24   was resolved.

      25            THE COURT:  No.  But this Saturday did the visit take

                                                                    6397

       1   place?

       2            MR. SCHMIDT:  This Saturday the visit did not take

       3   place because Mr. El Hage did not want his son to see him with

       4   his hands handcuffed, held in front of him, and shackled

       5   around his waist and his feet.  It seems to me that --

       6            THE COURT:  The other thing that I am trying to find

       7   out was whether this was a bureaucratic misinterpretation

       8   caused by the fact that the staff on Saturday may not have

       9   been fully apprised, or whether it was in fact an official

      10   determination.  Do you have any sense as to that?

      11            MR. SCHMIDT:  I have a sense.  The visit two weeks

      12   earlier, a week earlier, did not have any of the accoutrements

      13   that I mentioned.  It was a visit without being shackled,

      14   without the chains.

      15            THE COURT:  A visit by you or by --

      16            MR. SCHMIDT:  By Mr. El Hage's wife.  There is,

      17   apparently, I heard there is no problem with such visits.  So

      18   this is now also a Saturday.  Mr. El Hage informed me, and

      19   Mrs. El Hage informed me that while they're waiting the

      20   lieutenant on duty said let me check, and about twenty minutes

      21   later he said to Mr. El Hage that he spoke to the Warden and

      22   the Warden says, no, everything remains on.  I do not know if

      23   in fact he spoke to the Warden.

      24            The problem is, your Honor, when it happened one time

      25   and it's corrected the first time, you can understand that

                                                                    6398

       1   there could be a bureaucratic misunderstanding.  This has not

       2   happened once.  It's happened with other counsel seeing their

       3   clients.  This has happened repeatedly, and it's happening in

       4   a manner that it appears to be especially on the weekends when

       5   there is less oversight done in a way to humiliate Mr. El Hage

       6   and punish him, Mr. El Hage.

       7            THE COURT:  Let me now make inquiry of the

       8   appropriate personnel at the MCC because before I can deal

       9   with it or issue any order or pass any judgment I have to know

      10   what the answer to that is, and if the answer is that it was a

      11   bureaucratic foul up, then I have to make sure that there is

      12   no occurrence of that.  If the answer is that it was

      13   intentional and policy, then I have to address that.  But it

      14   seems to me I have to know the answer to that before we can

      15   deal with it.

      16            MR. SCHMIDT:  Your Honor, I saw Ms. Raia first thing

      17   this morning, and her reaction was that -- at that time I only

      18   had known that it was handcuffs, I did not know that it was

      19   also the black box and chain on the waist -- and her reaction

      20   was that she thought she dealt with that problem twenty times

      21   already in MCC, so to her it appeared to me that she did not

      22   expect that to happen.

      23            But as your Honor indicated, I think it's way past

      24   the time to give this as a bureaucratic mishap because it

      25   specifically happened too many times.

                                                                    6399

       1            THE COURT:  So steps have to be taken to assure that

       2   what is in fact the appropriate policy for the MCC is

       3   implemented.  Let me make immediate inquiry, and we'll deal

       4   with it, but it seems to me that there is no point in further

       5   rhetoric, nor anything else until I know what the position of

       6   Bureau of Prisons is on the matter.

       7            MR. SCHMIDT:  I understand.

       8            THE COURT:  I will do that immediately.

       9            MR. SCHMIDT:  I have one further request because

      10   Mrs. El Hage has been here two weeks and seen her husband

      11   once, that we schedule for this evening or tomorrow evening

      12   after court an opportunity, notwithstanding the concern of MCC

      13   as to overtime, extraordinary conditions of confinement

      14   extraordinary situation.  Thank you.

      15            THE COURT:  Very well.  All right.  We will recess

      16   pending something further from the jury, and pending my

      17   inquiry as to the causes for Saturday's occurrence.

      18            I take it the government has no comment on this.

      19            MR. FITZGERALD:  No, Judge.

      20            (Recess)

      21            (In open court; jury not present; 2:15 p.m.)

      22            The note from the jury reads:  The jury would like to

      23   request the photos taken of Al-'Owhali after his arrest -

      24   particularly the ones that show his injuries.

      25            Thank you.

                                                                    6400

       1            PS.  Please include exhibit Al-'Owhali I.

       2            So there are two questions to respond to.  One is the

       3   photos, and the other that would include the photos taken of

       4   him while he was in custody showing his wounds; photos taken

       5   by Agent Gaudin, the information, identification parade, the

       6   photo taken for the newspaper by the newspaper.

       7            MR. COHN:  Your Honor, I've gone through it and we

       8   have all of them I believe and I'm going to identify them with

       9   the government and read the numbers into the record in about

      10   40 seconds.

      11            THE COURT:  Very well, okay.

      12            (Pause)

      13            While you're doing that, just because the other

      14   matters were on the record, with respect to Mr. El Hage and

      15   the question of the visit, my understanding was that the MCC

      16   had two facilities in which visits are held.

      17            One has a bare mesh barrier, and the other doesn't.

      18   And one is in an area which requires walking through 9 South

      19   and the other doesn't.  And in the area which requires walking

      20   through 9 South, there is no requirement of the inmate being

      21   handcuffed.  In the other facility there is a requirement of

      22   handcuffing.

      23            The explanation I was given, which was based on Ms.

      24   Raia, based on conversations with the Warden, was that he

      25   thought that walking to 9 South was inappropriate for a young

                                                                    6401

       1   boy, but that it's a decision to be made by Mr. El Hage.

       2            I spoke to Mr. Schmidt who expressed his view that

       3   this was all after the fact rationalization for what had

       4   occurred, but that Mr. El Hage's preference is for the visit

       5   which does not require him to be handcuffed, and such a visit

       6   is scheduled for 5:30 today in the area where handcuffs will

       7   not be required, but which will require walking through 9

       8   South.

       9            Ms. Raia says there may be some delay.  It will be

      10   scheduled for 5:30.  There may be some delay because the count

      11   down takes place at that time, and the visit will follow the

      12   completion of the count down.

      13            Going back to the juror's request.

      14            MR. COHN:  Your Honor, the government and I have

      15   agreed we have exhibit B and B1 through B8 which are pictures

      16   of the injuries.  We have exhibit C which is the newspaper

      17   photo.  We have exhibit D which is the parade photo, and we

      18   have I, J and K which are pictures taken of Agent Gaudin, the

      19   client, and in one situation one other person post-arrest.

      20            MR. FITZGERALD:  And the Government Exhibits in

      21   addition are 551-A through I.

      22            MR. COHN:  Are they in, because they're the same

      23   photographs as B1 through B8.

      24            MR. FITZGERALD:  But they are in evidence.

      25            MR. COHN:  Not a problem.

                                                                    6402

       1            THE COURT:  Very well.  We'll send them in.

       2            We reconfirm 11 o'clock Wednesday for the charging

       3   conference with respect to the death penalty phase as to both

       4   defendants.

       5            MR. SCHMIDT:  Your Honor, Mr. El Hage and I want to

       6   thank your Honor for the effort.  I would just like to make

       7   one other thing clear.  One of the problems seemed to be the

       8   change of policy in MCC about visits.

       9            Mr. El Hage did have a visit, did have other visits

      10   not on 10 South, on other floors where he was not required to

      11   have to be handcuffed and where he saw his children.  The fact

      12   that the institute now says that those other locations

      13   requires handcuffs, they've actually changed from the visit

      14   that occurred nine days ago, and I just want your Honor to be

      15   aware this is one of the problems.  We have certain

      16   expectations based on what's happened before.  We're not

      17   informed.  The policy has changed and then something happens

      18   that is different than that has been the concern of Mr. El

      19   Hage.  We want your Honor to be aware that this is not

      20   necessarily how they arranged these visits a week and a half

      21   ago.

      22            THE COURT:  Very well.

      23            MR. COHN:  Your Honor, may I raise one thing which

      24   may seem picayune, and I'm not exactly sure what it means, but

      25   the juror's inquiry refers, after the arrest.

                                                                    6403

       1            As I recollect the record he was not arrested until

       2   he was on the airplane, and these photos all precede that and

       3   we are assuming that means when Kenyan CID took him into

       4   custody.  If my recollection is right, it may mean that the

       5   jurors should be told that, although I believe that's what

       6   they are asking for, and they should get what they're asking

       7   for.  It's a question of how they construe the information.

       8            MR. FITZGERALD:  Your Honor, I think it's clear from

       9   the text on the note, they're referring to his detention in

      10   Kenya because they say, include exhibit I which are photos

      11   taken before he's ever put on an airplane plain.

      12            THE COURT:  We have used the post-arrest, for

      13   example, with respect to admissibility of statements, we've

      14   used the phrase post-arrest.

      15            MR. COHN:  I believe there is no question as to what

      16   they are asking for, and I am not objecting to it going in.

      17   What I am inquiring about, and I truly say that I don't know

      18   where I come out on this, is whether or not, and I'm asking in

      19   a sense for the Court's advice, that no arrest really took

      20   place until he was put on the airplane, and perhaps while the

      21   jury gets this information they ought to be told that.

      22            THE COURT:  I don't know that that's accurate.  No

      23   arrest by what, American authorities?

      24            MR. COHN:  And there is no --

      25            THE COURT:  If you used the classic definition of

                                                                    6404

       1   arrest, that is whether somebody was free to leave, he clearly

       2   was not free to leave.

       3            MR. COHN:  Well, on the other hand, your Honor, he

       4   was taken into custody because allegedly he had no

       5   documentation as to his presence, and it was as I recall the

       6   testimony both at the suppression hearing and at the trial, it

       7   was an inquiry, and it is unclear as to when that changed.

       8   While it is clear that were we're talking about in custody

       9   under usual United States law and when Miranda became

      10   available, we would be talking about the time he was no longer

      11   free to leave which is about thirty seconds after CID came

      12   into his room, but I don't know that what the jury is

      13   referring to in terms of arrest, and I wonder whether or not

      14   they --

      15            THE COURT:  You really don't know what they mean when

      16   they say, particularly the ones which show his injuries and

      17   identify --

      18            MR. COHN:  I know what photos they're talking about,

      19   Judge, but they're using a technical term, and it troubles me.

      20            THE COURT:  They are using it, but they're using it

      21   in a nontechnical sense.  Tell me specifically what it is that

      22   you think the Court should do.

      23            MR. COHN:  I think they ought to be told that they

      24   are being sent the pictures after CID took him into custody

      25   but he was not arrested until he got on the plane.

                                                                    6405

       1            MR. FITZGERALD:  Judge, I think they're just asking

       2   for photographs.  I don't think we need to confuse them,

       3   particularly since Mr. Cohn made an argument in summation

       4   about the conditions of confinement.  I think they're simply

       5   describing what they want in plain English.

       6            THE COURT:  I think that's fair, and I don't know

       7   that Mr. Cohn disputes the fact that we know exactly what it

       8   is that they are asking for, and I think I agree that it would

       9   simply confuse matters to elaborate on arrest.

      10            MR. RUHNKE:  Your Honor, I had other scheduling

      11   matters to talk to you about, pending matters.  I hand

      12   delivered a file to the chambers over lunch hour and I'm

      13   wondering when you want to take up that matter.

      14            THE COURT:  Is the government prepared to deal with

      15   that now or does the government want to respond to that?

      16            MR. RUHNKE:  I think the government just got my

      17   papers, your Honor.

      18            MR. FITZGERALD:  I prefer to deal with it if I could

      19   to look at it further.  Obviously, it's a letter.  We oppose

      20   the application.  We'd like to focus on the proposed charge.

      21            THE COURT:  We have --

      22            MR. RUHNKE:  Excuse me.  I couldn't hear you for a

      23   moment, please.

      24            MR. COHN:  I'm sorry, Judge.

      25            THE COURT:  Can we deal with that say at 10:30 on

                                                                    6406

       1   Wednesday?

       2            MR. RUHNKE:  That's fine, your Honor.

       3            THE COURT:  All right.  We'll await further from the

       4   jury.

       5            (Recess)

       6            (In open court; jury not present; 2:50 p.m.)

       7            THE COURT:  The note from the jury reads:

       8            Judge Sand.  Thank you for your prompt response to

       9   our previous questions.  We have a few more questions for the

      10   Court.

      11            1.  We request the reading of the testimony of

      12   government witness number 24, Charles Mwaka Mula 2.

      13            We also request that Special Agent Gaudin's testimony

      14   be read in its entirety.  A portion was previously read.

      15            Finally, we would like a clarification of the second

      16   paragraph on page 88 on the first element which reads:  Quote

      17   three dots, the defendant inflicted an injury or injuries upon

      18   the victim from which the victim died or that the defendant

      19   aided and abetted another person to do so.

      20            Does this mean that the injuries/death were caused by

      21   the weapon caused by the defendant or by his participation in

      22   the bombing quote acting as a diversion.

      23            Thank you for your help.

      24            My only question with respect to 1 and 2 is whether

      25   we should have that read to the jury or whether at least with

                                                                    6407

       1   respect to Agent Gaudin it is so lengthy that we should send

       2   in 12 copies of the transcript.

       3            MR. COHN:  Is your Honor finished or waiting for a

       4   response?

       5            THE COURT:  Excuse me?

       6            MR. COHN:  Are you finished or waiting for a

       7   response?

       8            THE COURT:  All right, I'm finished as to that.

       9            MR. COHN:  Your Honor, I believe it has to be read.

      10            THE COURT:  Does anybody disagree with that?

      11   Everybody agrees.

      12            Should we do that, and then we can discuss the

      13   implications of the third question.

      14            MR. COHN:  Your Honor, but in terms of the readback

      15   of the testimony the way it's been going on, and what's been

      16   asked for I would ask that as it's read back exhibits which

      17   were put up on the screens at the time and are referred to in

      18   the testimony should be put up again.  I believe they're

      19   asking for a readback which in this case requires a readback

      20   with the pictures as they were put up.

      21            THE COURT:  I'll ask them that.  We'll bring them in,

      22   we'll start to read, and the first time it comes up, we'll ask

      23   them that.

      24            MR. COHN:  Very well, your Honor.

      25            MR. FITZGERALD:  Judge, there is only one logistical

                                                                    6408

       1   issue.  My understanding is that as to the transcripts errata

       2   sheets were sent to the Court reporters to correct any

       3   typographical errors.  I believe that the corrected

       4   transcripts came back, and then they were recently proofed

       5   against the errata sheets and there may have been a couple of

       6   typographical errors that are still outstanding.

       7            We were getting the sheets that went over this

       8   morning to compare that.  I don't know if any of this is

       9   significant or not, but I think we should just resolve any

      10   disagreement with the transcript before we bring the jury in.

      11            MR. COHN:  I think that's fair, your Honor, and what

      12   I would suggest what we do is because of the hour and when

      13   they generally want to quit, I would read Mr. Mwaka Mula's

      14   testimony first, which is the shorter of the two, and that

      15   might run us out to close to 4:30, if that's when they want to

      16   go home, and then we can resolve the other question.

      17            MR. FITZGERALD:  I still think we have the transcript

      18   issue as to both witnesses.

      19            MR. COHN:  We'll deal with that one first is all I'm

      20   suggesting, that we try and deal with it that way, the

      21   government is absolutely correct, that we should read them as

      22   accurate.

      23            THE COURT:  Why don't you see whether you can resolve

      24   any transcript errors with respect to the Mwaka Mula testimony

      25   and let me know as to that, and in the meantime I'll try to

                                                                    6409

       1   address both questions, which I'll deal with you.  The jury

       2   wants to go home at 4:30.  So we have an hour and a half.

       3            MR. COHN:  Thank you, your Honor.

       4            (Recess)

       5            (In open court; jury not present)

       6            THE COURT:  Let me run by you my proposed response to

       7   the third question.  Do you physically have a xerox of the

       8   question before you?

       9            MR. FITZGERALD:  Yes, Judge.

      10            THE COURT:  I think that in the next to last

      11   paragraph the second line there should mean were caused by the

      12   weapon used by.  Does everybody agree with that?

      13            MR. FITZGERALD:  Yes.

      14            MR. COHN:  Where is that?

      15            THE COURT:  Does this mean that the injury/deaths

      16   were caused by the weapon, underlined, caused by the defendant

      17   or by his participation in the bombing acting as a diversion.

      18            MR. COHN:  Your Honor, I believe that cause is

      19   improper allocution and probably a mistake.  What it means,

      20   I'm not prepared to say and I would ask the jury.

      21            THE COURT:  And you would ask for what?

      22            MR. COHN:  I would ask the jury what they mean by

      23   cause as opposed to  --

      24            THE COURT:  For the time being I think we will assume

      25   that means it was caused by the weapon used by the defendant.

                                                                    6410

       1   It's the only thing that make sense.  So I think they are hung

       2   up.  You see they've underlined weapon and participation.  And

       3   what I propose to say to them is the following:

       4            With respect to the language on the second paragraph

       5   on page 88 that quote government must prove that the defendant

       6   inflicted an injury or injuries upon the victims from which

       7   the victim died, you asked whether this means quote caused by

       8   the weapon, underlined, and I put brackets, used, by the

       9   defendant or by his participation, underlined, in the bombing

      10   acting as a diversion.

      11            And I go on:  The answer is that you must look at all

      12   of the conduct of the defendant with respect to the attack on

      13   the embassy.  This includes the nature of the weapon used -a

      14   bomb- and the defendant's role in the bombing.  After

      15   considering all of the acts which you find that the defendant

      16   to have done in connection with the bombing, the question is

      17   whether the defendant's conduct caused the infliction of

      18   injury or injuries by the victim or aided and abetted another

      19   person to cause such injury.

      20            MR. COHN:  Your Honor, we will have until tomorrow

      21   morning to consider that, and I would ask that you give me

      22   that in writing and we talk about it in the morning.

      23            THE COURT:  Denied.  I don't think that that is

      24   necessary.  We can't deal with that now in --

      25            MR. COHN:  Why not?  Does it cost us any time to wait

                                                                    6411

       1   until the morning, so that counsel can consider what is I

       2   think not an uncomplicated question.  I mean what does it cost

       3   us to wait?  We're going to have plenty to do to read

       4   transcripts.

       5            THE COURT:  What it costs is leaving the doubt in the

       6   jurors' minds until sometime tomorrow.  Yes, we'll do it

       7   tomorrow.

       8            MR. COHN:  Thank you.

       9            THE COURT:  We'll do it tomorrow.  We'll do it

      10   promptly tomorrow.

      11            MR. COHN:  That's fine.  Could we have a copy of what

      12   your Honor proposes to read?

      13            THE COURT:  The court reporter has taken it down,

      14   right?  Yes.

      15            MR. FITZGERALD:  To save time for tomorrow, might I

      16   just suggest that if you read the last question I think it

      17   could be answered simply by saying the answer is either.  What

      18   it's saying is, does that mean injuries caused by the weapon

      19   by the defendant or caused by his participation in the

      20   bombing.  If a juror finds that a defendant's use of a weapon

      21   or participation in the bombing caused the death that would

      22   suffice.

      23            THE COURT:  I think it's pretty clear that we're on a

      24   Count 9, right?  They asked a question about 8 which we

      25   answered, and I think it's clear now that they are on Count 9.

                                                                    6412

       1   And I think that what they're looking to is with respect to

       2   Al-'Owhali is whether it's he himself, or aided and abetted.

       3   I think that's where the jury is, and so to say either doesn't

       4   really tell them which box they check.

       5            But we'll take it up tomorrow morning, 9:30 promptly.

       6   Now, where are we with respect to the Mula's testimony?

       7            MR. COHN:  The government has given me a list of

       8   corrections that were not corrected.  I agree that the

       9   government is correct and, therefore, we can read it with the

      10   government's indentations.

      11            THE COURT:  Can we now bring in the jury?

      12            MR. FITZGERALD:  That covers both Gaudin and Mwaka

      13   Mula.  The only thing I was going through was flagging where

      14   colloquy happened or there were objections so we don't have an

      15   issue on that.  I could have it finished in five minutes.

      16            THE COURT:  So we'll bring in the jury in another

      17   five minutes.

      18            Let Mr. Kenneally know when you're ready.

      19            (Recess)

      20            (In open court; jury not present)

      21            THE COURT:  Let me come back to the third question

      22   and respond a little bit to Mr. Fitzgerald's comment and

      23   realization of what it is that is troubling the jury, and I

      24   think it is the language of the special verdict form that has

      25   the alternative himself killed or aided and abetted.  Let me

                                                                    6413

       1   do it again from the top and I'll do it slowly, and I'll ask

       2   that the court reporter make sure counsel have a copy of this

       3   this evening.

       4            With respect to the language in the second paragraph

       5   on page 88 that the quote government must prove that the

       6   defendant inflicted an injury or injuries upon the victim from

       7   which the victim died unquote, you ask whether this means

       8   quote caused by the weapon, underlined bracket, used, close

       9   bracket, by the defendant or by his participation, underlined,

      10   in the bombing ("acting as a diversion.")

      11            The answer is that you must look at all of the

      12   conduct of the defendant with respect to the attack on the

      13   embassy.  This includes the nature of the weapon used -a bomb-

      14   and the defendant's role in the bombing.

      15            MR. COHN:  Your Honor, the door was open and the jury

      16   was right outside.

      17            THE COURT:  After considering all of the acts which

      18   you find the defendant to have done in connection with the

      19   bombing, the question is whether the defendant's conduct

      20   caused infliction of injury or injuries to the victim, or

      21   aided and abetted another person to cause such injuries.  If

      22   you find that the defendant's conduct itself caused the injury

      23   and all of the other elements of the crime have been proven

      24   all beyond a reasonable doubt then you will have found that he

      25   "himself killed" the victim.

                                                                    6414

       1            If you find beyond a reasonable doubt that the

       2   defendant's conduct did not itself cause the injuries, but

       3   aided and abetted the causing of the injuries by another

       4   person, and all of the other elements of the crime have been

       5   proven, then you will have found him to be an aider and

       6   abetter.

       7            All right.  We'll take that up at 9:30 tomorrow

       8   morning.  Let's bring in the jury.

       9            MR. FITZGERALD:  You want me to read into the record

      10   what we should start and stop.  I have a list of when we

      11   started and stopped in the transcript.  I don't know if you

      12   wanted me to put that on the record.

      13            THE COURT:  Okay.  Why don't you do that after.  As

      14   long as the jury is standing in the hall, let's do that.

      15            MR. FITZGERALD:  Okay.  I just wanted to make sure

      16   the court reporter knows --

      17            (Jury present)

      18            THE COURT:  You asked for the reading of testimony

      19   which we will read to you.  And you asked a question with

      20   respect to the charge, which we will answer.  With respect to

      21   the question you said, does this mean that the injuries/death

      22   were caused by the weapon, underlined, and then there is

      23   another word says, caused by the defendant.  Do you mean used

      24   by the defendant?

      25            Used by the defendant.  I thought that was the case.

                                                                    6415

       1            Your first request is for the testimony of witness

       2   24, Charles Mwaka Mula, and what is happening is that counsel

       3   are indicating the pages on which that appears so that the

       4   reporter will know what it is to read.

       5            MR. COHN:  Were you going to ask the question of the

       6   jury about the exhibits that come up?

       7            THE COURT:  During the testimony there is reference

       8   to exhibits, some of which you have and some of which you may

       9   not have, and the question is whether you want to see the

      10   exhibits while the testimony is being read.  Why don't we

      11   begin and you can let us know that tomorrow morning.

      12            (Record read: Line 19, page 2125 through Line 10,

      13   page 2159)

      14            THE COURT:  You've also asked for the testimony of

      15   Agent Gaudin and you said in its entirety.  And maybe what we

      16   ought to do is this.  Maybe we should call it a day.  We will

      17   not finish Agent Gaudin's testimony today even if we start,

      18   and maybe you give some thought to whether you can specify

      19   some portions of Agent Gaudin's testimony that you're

      20   particularly interested in rather than perhaps have

      21   considerable time spent reading testimony which is not of

      22   particular interest to you.

      23            So why don't you give some thought to that and

      24   perhaps send us another note, and if you wish to hear it in

      25   its entirety, no problem, and we will read it all in its

                                                                    6416

       1   entirety and also give some thought to the question that I

       2   posed with respect to exhibits utilized during the testimony,

       3   and you may return to the jury room, and you may call it a day

       4   at 4:30 if you wish.

       5            (Jury not present)

       6            THE COURT:  Mr. Cohn.

       7            MR. COHN:  Your Honor, I object to your invitation to

       8   the jury to revise their question.

       9            THE COURT:  Excuse me?

      10            MR. COHN:  I object to your invitation to the jury to

      11   revise their request for a readback.  I think it's

      12   inappropriate the reason they asked for what it is, and you

      13   suggest that it's unnecessary in my view respectfully

      14   inappropriate.  As for the morning, that if they have now

      15   changed their view because of your question that you ignore it

      16   and you read back the testimony of Agent Gaudin the entirety

      17   which is what they asked for.

      18            THE COURT:  I don't know how closely you watched the

      19   jury and watched what happened during the reading of the

      20   testimony.  I think it's clear that there is some portion of

      21   that testimony that they're interested in, and there is

      22   portions of the testimony they were not and one of the jurors

      23   sent a note to the foreperson, and --

      24            MR. COHN:  They don't know that until --

      25            THE COURT:  -- made it very clear.  I said at least

                                                                    6417

       1   twice that if in fact they wish to hear it in its entirety,

       2   there is no problem, and that we would do that.  It is only

       3   that if in fact their interest was focused on some particular

       4   portion of the testimony they could send us another note.

       5   Your objection is noted.

       6            MR. COHN:  Judge, the question said that they

       7   actually recalled that a portion of that testimony had been

       8   read back before.  The notion that we should sit here and read

       9   entrails and decide what we think they mean is frankly

      10   inappropriate.  They asked for it.  And for you to suggest

      11   from the presence of the bench that they may be want to

      12   reconsider it I think is inappropriate.  I've made my record

      13   and you'll do what you do.

      14            THE COURT:  I have.

      15            Anything further?  We're adjourned.  Very promptly at

      16   9:30.  You know the jury gets in a little after 9.

      17            (Pause)

      18            THE COURT:  Judge Sand:  The juror who has requested

      19   to hear Agent Gaudin's testimony has changed her mind after

      20   hearing witness 24's testimony read as she feels this has

      21   answered her question.  Thank you, and good night.  Juror No.

      22   1 Foreperson.

      23            Well, there was in fact a juror who sent a note to

      24   the Forelady and the Forelady sort of shrugged her shoulders

      25   as if there isn't anything that I can do about it.  All right.

                                                                    6418

       1   We will follow the juror's request.  I'm trying to recall just

       2   at what point in the testimony that the juror thought that her

       3   question was answered, but I didn't note that.  So that at

       4   9:30 tomorrow we will deal with the response to the third

       5   question and we're adjourned until tomorrow.

       6            (Adjourned to Tuesday, May 22, 2001 at 9:30 a.m.)

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