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

This is the transcript of Day 44 of the trial, May 11, 2001.

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

                                                                    6231

       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 11, 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

                                                                    6232

       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

                                                                    6233

       1            (Trial resumed)

       2            THE COURT:  The jury is all present in the jury room.

       3   With respect to the jurors' note of yesterday --

       4            MR. WILFORD:  I am sorry, your Honor.  The

       5   interpreters indicate they can't hear you.

       6            THE COURT:  With respect to the material sought by

       7   the jurors in their note of yesterday, has that material all

       8   been assembled?

       9            MR. KARAS:  It has, your Honor.  There was one

      10   question that we thought we needed to get clarified.  Item No.

      11   6, what the jury lists as Government's Exhibit 659, they say

      12   the notebook with El Hage's print.  659 was a summary chart of

      13   the fingerprint analysis of some of the items.  There is no

      14   notebook that has El Hage's prints.  There is a notebook,

      15   there are several notebooks, and there are individual

      16   documents with El Hage's print, but there is no notebook with

      17   El Hage's print.

      18            MR. DRATEL:  Also 257A?

      19            MR. KARAS:  257 is a map but next to it is written El

      20   Hage's testimony.  So our proposal would be to put in

      21   Government's Exhibit 400 and 420, which is the transcript of

      22   the grand jury testimony from 1997 and 1998.

      23            MR. SCHMIDT:  Yes, your Honor.  I am assuming that

      24   the transcripts have been properly redacted.

      25            MR. KARAS:  Yes.

                                                                    6234

       1            THE COURT:  Let me put this all in a note to the

       2   jury, which I will read to you.

       3            MR. COHN:  Your Honor, I would ask that all 302's,

       4   and I think there is only one 302 in evidence -- two,

       5   Government's Exhibit 606 --

       6            MR. KARAS:  For the record, Government's Exhibit 306,

       7   from Agent Anticev, which they asked for, and from Agent

       8   Perkins, Government's Exhibit 1071.

       9            MR. COHN:  Perhaps the court ought to notify them

      10   that those are the only two in evidence.

      11            THE COURT:  I will.

      12            The first matter on this list then is item 6.  As to

      13   item 6, the answer is that there is no notebook with El Hage's

      14   print in evidence?

      15            MR. KARAS:  That is correct, your Honor.

      16            THE COURT:  So what do we think they mean?

      17            MR. KARAS:  That is unclear, if they are looking for

      18   the notebook or the individual documents that have El Hage's

      19   prints.

      20            THE COURT:  The next item after 6 is what?

      21            MR. KARAS:  Item No. 17.

      22            THE COURT:  15, all 302 reports?

      23            MR. KARAS:  Yes, 15.

      24            THE COURT:  As to item 15 there is only --

      25            MR. COHN:  There are only two in evidence, which are

                                                                    6235

       1   Government's Exhibit 6 and 1071.

       2            THE COURT:  There are only two 302's, 6 and 1071,

       3   both of which we are sending in.

       4            MR. RUHNKE:  Your Honor, I have one question about

       5   that, whether they also want the companion notes that go with

       6   1071 when they ask for 302's.

       7            THE COURT:  I have a strict rule:  If they don't ask

       8   for it they don't get it, and we interpret whatever they ask

       9   for in the narrowest way, although we always invite them to

      10   ask for more.

      11            After 15, the next issue related to what?

      12            MR. KARAS:  Item 17.  What the jury has written down

      13   there is GX257A, and next to that El Hage's testimony.  257 is

      14   not the Government's Exhibit number for the transcript of El

      15   Hage's testimony.  They have 420A listed above in item 14,

      16   which 420A and B are the transcripts from the 1998 grand jury

      17   transcript, and 400R is the exhibit number for the 1997 grand

      18   jury testimony.

      19            THE COURT:  So El Hage's grand jury testimony is --

      20   which is the earlier one?

      21            MR. KARAS:  For 1997 it is 400R.

      22            THE COURT:  400R, that is 1997.  And?

      23            MR. KARAS:  1998 and 420A and 420B, A being the

      24   morning and B being the afternoon.

      25            THE COURT:  And you are sending them both in?

                                                                    6236

       1            MR. KARAS:  Yes.

       2            THE COURT:  And the next item -- that's it.

       3            MR. KARAS:  I think that's it.

       4            THE COURT:  So my note reads:  Ladies and gentlemen

       5   of the jury, here are the matters you requested yesterday.  As

       6   to item:  6, there is no notebook with El Hage's print in

       7   evidence.  Please clarify what you wish to see.  15.  There

       8   are only two 302 reports in evidence, Government's Exhibits 6

       9   and 1071, both of which are enclosed.  17, El Hage's grand

      10   jury testimony is Exhibit 400R, 1997, and Exhibits 420A and B,

      11   1999, both of which are enclosed.

      12            MR. KARAS:  1998 is 420A and A.

      13            THE COURT:  420A and B is 1998.  That's it?

      14            MR. KARAS:  That's it.  We are also going to send in

      15   a box of gloves.

      16            THE COURT:  Please use gloves when examining items in

      17   Government's Exhibit 535A-I, Nike bag.

      18            I will send this in to the jury with the exhibits and

      19   a copy of their note.

      20            MR. KARAS:  Two other items, with respect to request

      21   No. 4, 402, 535A-I, in parentheses they wrote Nike bag and

      22   with contents.  Our proposal is to send in the Nike bag, which

      23   is Government's Exhibit 529.  And then there were separate

      24   items that had been removed that were tested, which are in

      25   fact 535A through I.  So we would propose to put in the Nike

                                                                    6237

       1   bag, which still has clothes and other items in it,

       2   Government's Exhibit 529, and the items that were separated

       3   and test, which are 535A through I.

       4            THE COURT:  So it is 535A through I, and what is the

       5   other exhibit?

       6            MR. KARAS:  529, which is the bag, and the items

       7   inside of it.  I don't have the exhibit numbers off the top of

       8   my head.

       9            THE COURT:  With other contents, yes?

      10            MR. KARAS:  Yes.

      11            MR. KARAS:  Then with respect to request No. 6, I

      12   believe your Honor has responded by saying there is no

      13   notebook with El Hage's print.  There are documents with his

      14   present.

      15            THE COURT:  That is what I say.  There is no notebook

      16   with El Hage's print in evidence.  Please clarify what you

      17   wish to see.

      18            I would ask the marshals to bring that material with

      19   this note into the jury room.

      20            The jurors' note of yesterday we will deem marked

      21   Court Exhibit Roman I of May 10, and we will deem marked as

      22   Court Exhibits B, C and D the grand jury indictment, the

      23   court's instructions, and the special verdict form as sent in

      24   to the jury yesterday.

      25            The press is aware that the United States Marshals on

                                                                    6238

       1   their own initiative have determined to leave the courtroom

       2   open during these proceedings and on behalf of the press I

       3   express our appreciation.

       4            The court has before it the request made on behalf of

       5   K.K. Mohammed for discovery material set forth in letter of

       6   Mr. Ruhnke dated May 2 and the 10th, and the government's

       7   response dated May 7.  Do counsel wish to be heard on that

       8   request?

       9            MR. RUHNKE:  I have no desire to be heard beyond what

      10   was said in the moving papers.  On behalf of the government, I

      11   know Mr. Garcia has been handling the issues and he is not

      12   here in court.

      13            MR. FITZGERALD:  If you would like to hear from the

      14   government, I have just sent Ms. Grant to beep Mr. Garcia.

      15            MR. BAUGH:  Your Honor, we would join in that Mr.

      16   Ruhnke's request.

      17            THE COURT:  What I would really like to do is make a

      18   list of all the open matters so that we utilize the time while

      19   this jury is deliberating and that we do not run into delays

      20   or last minute matters.  I received two letters from Mr. Cohn,

      21   neither of which I believe calls for any action or response on

      22   the part of the government.  Am I wrong in that respect?

      23            MR. COHN:  Yes.  I have asked that certain evidence

      24   that the government intends to offer at the penalty phase,

      25   should one occur, be ruled inadmissible.  So obviously the

                                                                    6239

       1   government ought to, if they want to respond, be given an

       2   opportunity.

       3            THE COURT:  Is the government prepared to respond?

       4            MR. FITZGERALD:  Not at this time, your Honor.  We

       5   told defense counsel that with regard to the photographs we

       6   would go through and designate which photographs we might use,

       7   and obviously we will not offer anything without showing it to

       8   defense counsel first.

       9            MR. COHN:  No.  The two letters that the judge is

      10   referring to are the letter about the El Hage incident in

      11   court and Pepe as part of the government's rebuttal, should we

      12   put forward certain information.  I would ask that that last

      13   letter be sort of sealed.  So I think we ought to deal with

      14   that in a different place.

      15            THE COURT:  Life is complicated enough.  Sort of

      16   sealed --

      17            MR. COHN:  I ask that it not be filed because I don't

      18   know -- I see no reason that the press shouldn't see it but

      19   later --

      20            MR. FITZGERALD:  The order of business today were

      21   that Mr. Garcia and I would sit down and go through the

      22   letters and let counsel and the court know at the end of the

      23   today.

      24            THE COURT:  We have on our agenda now the Al-'Owhali

      25   in limine motion as to the two items, and can we schedule that

                                                                    6240

       1   for Monday morning?  Tuesday morning maybe?  I don't want to

       2   have the -- the leitmotif of the proceedings about which the

       3   jury is deliberating now, with the Somalia stipulation which

       4   never occurred, there is no reason why we shouldn't address

       5   these things.

       6            MR. FITZGERALD:  Could I let you know after lunch so

       7   we can figure out what we are doing?  We want to get this

       8   resolved.

       9            THE COURT:  All right.  There were issues raised also

      10   on behalf of Al-'Owhali with respect to discovery.  One was of

      11   the military, and then I was asked not to confront that issue

      12   because efforts were being made to resolve it consensually,

      13   efforts which I certainly encourage.  What is the status of

      14   that?

      15            MR. BAUGH:  Your Honor, the military last contacted

      16   me on Monday.  They said they would give me the information we

      17   reduced it down to.  I sent them another letter Wednesday.  At

      18   this juncture it is in the air.  I intend to go back and call

      19   them right now to find out what is the status.  They haven't

      20   called me back.

      21            THE COURT:  I have already set a date for the

      22   defendants listing mitigation factors and requests to charge.

      23            MR. RUHNKE:  Your Honor, I assume that in that

      24   package you probably also want our proposed preliminary

      25   instructions to the jury, introduction to the penalty phase.

                                                                    6241

       1            THE COURT:  On the 17th.  That is with respect to

       2   both KKM and Al-'Owhali?

       3            MR. RUHNKE:  That's what you said, yes.

       4            THE COURT:  It's what I meant.  Also on the 17th is

       5   the special verdict form.

       6            MR. BAUGH:  Yes.  Your Honor, we have been given

       7   today -- this was yesterday? -- the listing of the victim

       8   impact information that was going to be offered to the jury.

       9   After seeing this we will file a Payne motion as to how much

      10   will be added.  The victim issue was left open until there was

      11   a tender made as to what the government would introduce.  The

      12   government has now tendered it and we have an idea of its

      13   magnitude, so we will have to set a hearing to determine how

      14   much the court will permit to be admitted.  It is pretty

      15   voluminous.

      16            MR. COHN:  Your Honor, they gave it to us yesterday,

      17   Judge.

      18            THE COURT:  I am trying to set a time --

      19            MR. COHN:  I don't want the government inadvertently

      20   disadvantaged by giving it to us later than they did.  They

      21   gave it to us -- I want to be fair to the government.

      22            THE COURT:  With I am not dealing with the merits.  I

      23   just want to know what is on the plate.

      24            Some of the material that you have sought to subpoena

      25   includes things like photographs of wounds.

                                                                    6242

       1            MR. BAUGH:  Yes.

       2            THE COURT:  Don't I have to see what both sides are

       3   going to do in that regard?

       4            MR. BAUGH:  Your Honor, I will make it real easy for

       5   you.  I won't introduce any photographs of wounds if they

       6   don't introduce any photographs of wounds.  I am sure the

       7   court, having been a trial lawyer, knows it has to attempt to

       8   counterbalance what the government has to offer.  I am trying

       9   to get this information to determine what to counterbalance.

      10   Believe me, I do not wish to use any of that unless I have to.

      11            THE COURT:  What is a reasonable date early next week

      12   for me to address that issue?

      13            MR. BAUGH:  I would say Tuesday or Wednesday.

      14            Mr. Garcia is here.

      15            THE COURT:  Tuesday then, the admissibility of victim

      16   impact testimony and exhibits.  Tuesday, 10 a.m.

      17            On the subject of timing, the jury arrives at 9:15,

      18   and the problem -- I realized when talking to the jury

      19   yesterday that there is no  problem of not deliberating until

      20   all the jurors are present because they arrive together.  Is

      21   there any reason the jury shouldn't start deliberating at

      22   9:15?  Silence is acquiescence.  So the instruction will be

      23   that the jury can start deliberating as soon as they are all

      24   present.

      25            MR. COHN:  Your Honor, you left open two issues with

                                                                    6243

       1   respect to the statutory mitigators -- aggravating.  Sorry.

       2            THE COURT:  Mr. Baugh, you also had subpoenas to

       3   individuals, and what is the status of that?

       4            MR. BAUGH:  General Franks, central command, has not

       5   been served.  Secretary Albright has been served last week.

       6            THE COURT:  Anything else that is open?

       7            MR. RUHNKE:  Your Honor, on the issue of victim

       8   impact evidence, your Honor did order in January that the

       9   United States provide the defense with a bill of particulars

      10   as soon as practicable, setting forth their victim impact

      11   presentation.  I understand that the Al-'Owhali group has been

      12   served with that document as of yesterday.  I am asking when

      13   the K.K. Mohammed is going to get the same documents, seeing

      14   that you ordered this in January.

      15            MR. FITZGERALD:  I think it's coming today.

      16            MR. GARCIA:  Today, Judge.

      17            MR. RUHNKE:  That answers my question.  Thank you.

      18            THE COURT:  Should the victim impact issue which we

      19   have now scheduled for Tuesday include both Al-'Owhali and

      20   K.K. Mohamed?

      21            MR. RUHNKE:  We would certainly want to be in on that

      22   issue, your Honor.  I wonder if Tuesday is too early.  It is

      23   not as simple or as complex as it seems.

      24            THE COURT:  Why don't we make it Wednesday at 3:00,

      25   for both.  We have bifurcated, but certainly some of these

                                                                    6244

       1   issues arise with respect to both defendants, and to the

       2   extent to which they can be combined, that would be useful.

       3            Anything else?

       4            Mr. Garcia has arrived.  Can we now address the Brady

       5   request made now on behalf of both K.K. Mohamed and

       6   Al-'Owhali, and the essence of that request is for agreements

       7   with the United States, or foreign governments with the

       8   knowledge of the United States, that limits the exposure of

       9   anything less than death of persons viewed by the government

      10   to have been members of the conspiracy set forth in Count 1 of

      11   the indictment now on trial.

      12            Mr. Garcia, in your May 7 response, you limit it to

      13   persons who have been named in death-eligible counts?

      14            MR. GARCIA:  No, Judge.  That was our original

      15   response.

      16            THE COURT:  Have you filed something subsequent to

      17   your May 7 letter?

      18            MR. GARCIA:  No, Judge, but I think our position in

      19   the May 7 letter is named or unnamed in death-eligible, not

      20   necessarily counts but actions taken in furtherance of that

      21   conspiracy along the lines of the Beckfort decision, I think

      22   is the correct name, and Feliciano, where they had RICO counts

      23   and underlying drug counts, and the discovery had to do with

      24   murders or other death-eligible crimes committed in

      25   furtherance of the underlying conspiracy.

                                                                    6245

       1            THE COURT:  That was a specific narcotics conspiracy?

       2            MR. GARCIA:  It was a RICO count and underlying

       3   narcotics, and I think Feliciano was under Title 18.

       4   Feliciano and I think Beckfort added that it isn't only the

       5   crime in the one death-eligible count, it can also be other

       6   death-eligible crimes in the overarching conspiracy.  But in

       7   neither case does it say that because it relates to the

       8   overarching conspiracy that would entitle the defense to any

       9   agreement that the government might have with them.

      10            THE COURT:  Why?  Why not?

      11            MR. GARCIA:  Because of the language of the

      12   aggravators, and I think the government goes through the

      13   language in the letter and I won't do it here.  The language

      14   refers to the offense, the crime.  I think Mr. Ruhnke in his

      15   letter, his mitigating factors are couched in terms of the

      16   embassy bombing or the offense.

      17            THE COURT:  The government has to live with the

      18   breadth of Count 1, and Count 1 is a conspiracy to kill

      19   Americans anywhere.  Your position is that one looks to what

      20   counts?

      21            MR. GARCIA:  Your Honor, we don't look to any counts.

      22   You look to death-eligible crimes or actions, and I think that

      23   is what Beckfort and Feliciano said.  If that were the case,

      24   anyone in Count 1 would be death-eligible.  The government is

      25   not bargaining away anything.  If they give someone a plea to

                                                                    6246

       1   life who is charged in Count 1 as a maximum of life, I don't

       2   think that fits into any mitigating factor or what Mr. Ruhnke

       3   is asking for.

       4            THE COURT:  Mr. Ruhnke?

       5            MR. RUHNKE:  Judge, there is some confusion in what

       6   the government is saying.  Beckfort dealt strictly with the

       7   statutory mitigating factor that others equally culpable in

       8   the murder will not be punished by death.  That is, clearly,

       9   obviously, if the government has made deals with people whom a

      10   jury can find equally culpable in the murders who will not be

      11   punishable by death, obviously that should be disclosed by the

      12   government.  What was not decided or apparently raised in

      13   Beckforth, or Feliciano for that matter, by the defense was a

      14   different nonstatutory mitigating factor, and I can summarize

      15   it this way.  If there are people who are leaders or

      16   organizers or members of this overarching conspiracy as to

      17   whom a jury could find a greater culpability than Mr. Mohamed

      18   in the general overall plan in terms of being a leader, an

      19   organizer or whatever role was played, and that person has

      20   dealt with the government and been given a deal that exposes

      21   them to less than death, or indeed less than life, in terms of

      22   exposure -- and I include in that category people who have

      23   made 5K1.1 type deals, where although they may have pled to a

      24   life exposure the government has promised to seek a downward

      25   departure from that life exposure if the person provides a

                                                                    6247

       1   promise of substantial assistance to the support of others --

       2   it is in support of an argument to the jury that not only was

       3   Mr. Mohamed not a leader or organizer of this overarching

       4   conspiracy but others who were, not only do not face the death

       5   penalty, they do not even face a sentence of life

       6   imprisonment, and that is a reason why Mr. Mohamed should not

       7   be sentenced to death.

       8            THE COURT:  What's wrong with that?

       9            MR. GARCIA:  Your Honor, I think what Mr. Ruhnke

      10   starts off with, leaders, organizers, and then he gets to

      11   members, I think what he is seeking is any agreement that the

      12   government might have with anyone who at any time became any

      13   type of member of Count 1 of the conspiracy which the

      14   government is not seeking the death penalty on, or a

      15   cooperation agreement with somebody like that, and it doesn't

      16   fit into any mitigating factors.  Mitigating factors, as

      17   defined in the statute and as the government went through in

      18   its letter and as the language of Mr. Ruhnke's letter makes

      19   clear, is the crime, and the crime here, other death-eligible

      20   crimes or murders or other acts done in furtherance of those

      21   conspiracies.  I don't think because the government has

      22   charged a larger conspiracy here it makes it any different

      23   than the larger conspiracies in the other cases cited.  That

      24   was a larger conspiracy as well.

      25            THE COURT:  I don't agree with the government's

                                                                    6248

       1   position on this.  I think that that too narrow a definition

       2   of what is discoverable here would be inappropriate.  The

       3   government is not, at least thus far is not invoking any

       4   security concerns.  If there are security concerns then I

       5   should address them in an appropriate fashion.  But I think

       6   that if the government has entered into agreements -- we know

       7   they have with respect to certain individuals -- who fall

       8   within the outlines of the conspiracy which the government has

       9   set forth in the indictment in the background, which the jury

      10   has and will read, the defendants should have the opportunity

      11   to consider whether to present to the jury the possible

      12   disparity in treatment of equally culpable people.

      13            Are we dealing here with a vast number of people?

      14            MR. GARCIA:  Judge, the government would rather not

      15   make any comment with respect to that on the public record.

      16   Perhaps we will discuss it and perhaps submit something under

      17   seal to your Honor.

      18            THE COURT:  As I say, if there are security concerns,

      19   either to the individuals involved or to the national

      20   interest, then we will deal with that as a very separate

      21   issue, entirely removed from those in the cases dealing with

      22   drug dealers.  But otherwise I would grant the discovery

      23   requests made on behalf of K.K. Mohammed, joined in on behalf

      24   of Al-'Owhali.  When can we expect something further from the

      25   government?

                                                                    6249

       1            MR. GARCIA:  Monday morning, Judge?

       2            THE COURT:  All right.

       3            MR. BAUGH:  One last and very brief issue, your

       4   Honor.  I was reviewing Mr. Fitzgerald's closing at 3:00 this

       5   morning, and he made quite a issue to the jury concerning the

       6   purposes of the U.S. Embassy, namely whether or not

       7   surreptitious spy activity went on there.  He argued on

       8   several pages that that was one of the motivations of Al Qaeda

       9   and that was false.

      10            We have reason to believe that there was spy activity

      11   going on.  You remember I asked Ambassador Bushnell those

      12   questions and we were cut off and not allowed to cross-examine

      13   on that issue.

      14            We are contemplating, only so the judge can schedule

      15   court time next week, there is a possibility, in fact a

      16   probability that we will ask the government to stipulate that

      17   spy activity does occur in those embassies and that is why

      18   they have those antennas on top, just to negate some of the

      19   impact afforded by Mr. Fitzgerald's argument that that

      20   activity does not go on there.

      21            THE COURT:  I don't recall an argument that that

      22   activity did not go on there.

      23            MR. BAUGH:  I have the page numbers.  Unfortunately,

      24   I left it back wherever it is I work, but Mr. Fitzgerald said

      25   Al Qaeda is of the position that the embassies have been used

                                                                    6250

       1   in the past to get information concerning -- and I am really

       2   paraphrasing now.  I don't know the exact language, but the

       3   bottom line was, it was used to gather information that was

       4   used against Al Qaeda.  What was what Mr. Fitzgerald argued.

       5            THE COURT:  And you want a stipulation which says

       6   what?

       7            MR. BAUGH:  That surveillance activity and NISA

       8   activity does occur and did occur in Nairobi.  I read in the

       9   Washington Post this morning that many of these satellite

      10   intercepts occurred out of there because the Sudan embassy had

      11   been closed.

      12            MR. FITZGERALD:  Your Honor, my argument to the jury

      13   was based strictly on Al Qaeda's perception, not whether it

      14   was true or false.  I don't think it is relevant whether it is

      15   true or false.  I am not confirming or denying what Mr. Baugh

      16   reads at 3 a.m. in the Post and I don't think it is relevant.

      17            THE COURT:  You can read to the jury what the

      18   government said in its closing argument.  If you feel that

      19   what the government said in its closing arguments to the same

      20   jury that is going to be hearing any further proceedings in

      21   this case is pertinent, you can simply read it to them.  I

      22   don't see the need for any further stipulation.  Why don't you

      23   simply read it.

      24            MR. BAUGH:  The United States argued that such

      25   activity does not occur.  He said that was their impression,

                                                                    6251

       1   and it does.

       2            THE COURT:  You know, it's been shorter than we

       3   anticipated but it has been a long trial and I don't purport

       4   to have total recall of all the evidence.  I recall some

       5   colloquy with respect to the permissible scope of

       6   cross-examination of the ambassador, and I recall testimony as

       7   to what facilities and what agencies were housed in the

       8   embassy.  But I certainly don't recall any testimony by the

       9   government denying that intelligence activity took place

      10   within an embassy.  Was there any?

      11            MR. FITZGERALD:  We offered no testimony confirming

      12   or denying, and in argument to the jury we cited Al-'Owhali's

      13   statement that his perception was that there was intelligence

      14   activity, Christian missionaries and a woman ambassador, and

      15   we offered it for his perception and understanding.

      16            MR. BAUGH:  Your Honor, I will go back and review it

      17   and get something to you as soon as possible.

      18            THE COURT:  Anything else?  All right, then.  So

      19   counsel will either be in the courtroom or defense counsel

      20   will be by telephone in the building in their counsel room.

      21   We will await further communication from the jury.

      22            (Recess)

      23            (Continued on next page)

      24            (Time noted, 2:35 p.m.; jury not present)

      25            THE COURT:  We have received a note from the jury

                                                                    6252

       1   which we will mark Court Exhibit Roman I of today's date.  It

       2   reads:

       3            Judge Sand, thank you for promptly providing the

       4   items we requested yesterday.  The jury would like to request

       5   the following additional items to assist us in our

       6   deliberations.

       7            And then nine items are listed, and counsel have been

       8   furnished with a copy of the list.

       9            Are there any problems with respect to assembling and

      10   furnishing these exhibits?

      11            MR. KARAS:  There shouldn't be, your Honor.  We are

      12   assembling exhibits with respect to the last two inquiries,

      13   pictures and diagrams and the two locations.  155 and 156 are

      14   actually stipulations that authenticate the records, and what

      15   it looks like they ask for next to the exhibits is Florida and

      16   California phone records.  So the exhibits are not the records

      17   themselves, they are just the stipulations that relate to the

      18   records.

      19            THE COURT:  Should we give them that with a note that

      20   says these are the stipulations, if you would like to see the

      21   underlying records, please advise?

      22            MR. KARAS:  Either the records or the charts, yes, if

      23   they want those.

      24            MR. SCHMIDT:  The records, I think, would be

      25   appropriate, not the charts.

                                                                    6253

       1            THE COURT:  What are the numbers of the exhibits, the

       2   records themselves?

       3            MR. KARAS:  The records that go with the stipulation

       4   that is marked 155, and this is Southern Bell, are

       5   Government's Exhibit 541A, and this relates to one of the

       6   telephone numbers in Orlando, Florida, and 451B --

       7            THE COURT:  That is the California records?

       8            MR. KARAS:  They are a different set of records for

       9   the same number in Orlando, Florida.  It covers a different

      10   time period.  The Southern Bell records are 451A, 451B -- 451C

      11   is the summary chart -- 452B is the other -- 451A, which for

      12   the record is the subscriber records for 407-363-6981 --

      13            THE COURT:  These are all the exhibit numbers?

      14            MR. KARAS:  I am going to list them again.  451A, the

      15   subscriber records for 407-363-6981, which is for Orlando,

      16   Florida.  451B is the billing records for that number that I

      17   just listed.  452B is the telephone records for a different

      18   number in Orlando, Florida, 658-6371, 407 area code.  And the

      19   records that relate to the stipulation marked as 156 is 364A,

      20   which is the subscriber information for the number

      21   408-244-1209 in California.  364B are the long distance

      22   telephone records for that number.  364C is the summary chart.

      23   365A is subscriber records for a different California number,

      24   916-338-1699.  And 365B is the billing records for that number

      25   and 365C is the summary chart.

                                                                    6254

       1            THE COURT:  Is there consensus that those records

       2   should be sent in as well as the stipulation?  That was a

       3   question.

       4            MR. SCHMIDT:  No objection.

       5            THE COURT:  So the note will read:  Ladies and

       6   gentlemen of the jury, here are the exhibits you requested.

       7   As to item number 5, GX155 and 156 are stipulations.  The

       8   underlying telephone records are Government's Exhibits 451A,

       9   451B, 452B (Florida) and 364A, 364B, 365A, 365B (California),

      10   also enclosed.

      11            Is everything else assembled?

      12            MR. KARAS:  It won't take much longer.  We will

      13   assemble the exhibits that relate to the photos and sketches

      14   of the two other locations.

      15            THE COURT:  They, together with the note, can be

      16   brought together by the marshals in to the jury.  Let me know

      17   when that is done.

      18            (Recess)

      19            THE COURT:  What was being duplicated?

      20            MR. KARAS:  The two plea agreements and the

      21   stipulation regarding materiality.

      22            THE COURT:  That is so the jury can have 12 copies?

      23            MR. KARAS:  Correct, Judge.

      24            THE COURT:  All right.  Is it agreeable to everyone

      25   that rather than bringing the jury in at 3:30, the court just

                                                                    6255

       1   knock on the door and tell them that they are excused and to

       2   have a pleasant weekend?

       3            MR. KARAS:  Yes, Judge.

       4            MR. SCHMIDT:  Yes.

       5            THE COURT:  I will do that then at 3:30, and we are

       6   otherwise -- well, let's wait until 3:30.

       7            (Recess)

       8            (Time noted, 3:30 p.m.)

       9            THE COURT:  We are adjourned until Monday morning.

      10   The jury comes in at 9:30, and I think, having just received

      11   those additional requested exhibits, we are not likely to hear

      12   anything from them between 9:30 and 10, but those of you who

      13   have responsibilities in the early morning should bear in mind

      14   that at some point we may meet earlier than 10.

      15            I also want to tell you that on Tuesday, the jury is

      16   not going to begin until 11:00.  A juror has an urgent matter

      17   and to accommodate that juror we won't begin until Tuesday

      18   11:00 on Tuesday.

      19            Otherwise we are adjourned until Monday at 10:00 a.m.

      20            (Proceedings adjourned until 9:30 a.m., Monday, May

      21   14, 2001)

      22

      23

      24

      25

HTML by Cryptome.