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

This is the transcript of Day 71 of the trial, June 28, 2001.

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

                                                                    8369

       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                                           June 28, 2001
                                                   9:20 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

                                                                    8370

       1                            APPEARANCES

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

       6   DAVID RUHNKE
           DAVID STERN
       7        Attorneys for defendant Khalfan Khamis Mohamed

       8

       9

      10

      11

      12

      13

      14

      15

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      17

      18

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      22

      23

      24

      25

                                                                    8380

       1            (Trial resumed)

       2            (Pages 8371-8379 sealed)

       3            (In open court; jury present)

       4            THE COURT:  Very well.  The defense may call its next

       5   witness.

       6            MR. RUHNKE:  Jill Miller, please.

       7    JILL MILLER,

       8        called as a witness by the defense,

       9        having been duly sworn, testified as follows:

      10   DIRECT EXAMINATION

      11   BY MR. RUHNKE:

      12   Q.  Ms. Miller, what is the nature of your professional

      13   occupation?

      14   A.  I am a forensic social worker in private practice in

      15   Madison, Wisconsin.

      16   Q.  How long have you been a social worker?

      17   A.  I have been a social worker at the master's degree level

      18   for 30 years and got my BA in social work 34 years ago.

      19   Q.  At what institution did you earn your BA in social work?

      20   A.  At the University of Wisconsin in Madison.

      21   Q.  What year was that?

      22   A.  1967.

      23   Q.  Did you then go on to earn a graduate degree in social

      24   work?

      25   A.  Yes, I did.

                                                                    8381

       1   Q.  What year did you earn your graduate degree?

       2   A.  1971.

       3   Q.  At what institution?

       4   A.  At the University of Wisconsin in Madison, Wisconsin.

       5   Q.  Do you live and practice in Madison, Wisconsin?

       6   A.  Yes, I do.

       7   Q.  Have you had post master's degree credits and training in

       8   social work?

       9   A.  Yes.  I did some doctoral work and then have gone to

      10   training programs over the years.

      11   Q.  Have you ever served in a faculty position in your area of

      12   social work?

      13   A.  Yes.  I was on the faculty of the School of Social Work at

      14   the University of Wisconsin from 1973 until 1985.

      15   Q.  What sorts of things have you done as a social worker?

      16   What kind of jobs have you held up to the point when you went

      17   into private practice?

      18   A.  After receiving my master's degree in 1971, I worked at

      19   the Legal Services Center of Dayne County in the juvenile

      20   program.  So I worked in juvenile court from '71 to '73, when

      21   I joined the faculty.  While I was teaching I had a limited

      22   private practice as well, working on juvenile criminal family

      23   mental health cases.

      24            From 1976 to 1978, I was the associate director of

      25   the Youth Policy and Law Center, which was an agency involved

                                                                    8382

       1   in juvenile justice policy issues.  From 1979 to 1984 I was

       2   the client services director of the office of the public

       3   defender system, state public defender system in Wisconsin,

       4   and was in charge of their social services component.  I went

       5   into private practice in 1984.

       6   Q.  Prior to going into private practice did you appear in

       7   court as a witness from time to time?

       8   A.  Yes.

       9   Q.  In what sorts of matters?

      10   A.  Initially juvenile matters, my first two years, many

      11   juvenile matters, and then criminal sentencing proceedings,

      12   mental health commitment proceedings, family types of

      13   proceedings, divorce custody issues, termination of parental

      14   rights issues, some guardianship matters.

      15   Q.  Are there times when you have been appointed by judges to

      16   provide an independent evaluation of, for example, a child

      17   custody matter?

      18   A.  Yes.

      19   Q.  Since 1984 when you have been in private practice, have

      20   you specialized in a particular kind of case?

      21   A.  Initially I primarily worked on sentencing matters in

      22   criminal cases and juvenile cases and some divorce custody

      23   matters.  Beginning in 1986, I started working on capital

      24   cases.

      25   Q.  Approximately how many capital cases have you worked on

                                                                    8383

       1   since then?

       2   A.  Around 80 or so.

       3   Q.  Have you testified in connection with capital cases in

       4   various court systems?

       5   A.  Yes.

       6   Q.  Approximately how many times have you testified and been

       7   qualified to testify as an expert in social work?

       8   A.  About 25 or so.

       9   Q.  In what levels of court?

      10   A.  In state courts in both trial and post-conviction

      11   proceedings, in federal cases in trial cases, and in a

      12   military case.

      13   Q.  When you say military case, you mean within the military

      14   court system?

      15   A.  Correct.

      16   Q.  Dealing with the military death penalty?

      17   A.  Yes.

      18   Q.  I show you a document that is marked KKM31 -- may I

      19   approach, your Honor?

      20            THE COURT:  Yes.

      21   Q.  Is that a copy of your current curriculum vitae, your

      22   resume?

      23   A.  Yes, it is.

      24            MR. RUHNKE:  Your Honor, I offer KKM31.

      25            MR. FITZGERALD:  No objection.

                                                                    8384

       1            THE COURT:  Received.

       2            (Defense Exhibit KKM31 received in evidence)

       3   Q.  Ms. Miller, in connection with this case were you asked to

       4   prepare a family history of Khalfan Khamis Mohamed?

       5   A.  Yes, I was.

       6   Q.  Did you prepare such a history?

       7   A.  Yes.

       8            MR. RUHNKE:  Your Honor, I show the witness a

       9   document marked KKM30, although I am not going to offer it at

      10   this time, for identification.

      11   Q.  Is that the family history that you prepared regarding

      12   Khalfan Khamis Mohamed?

      13   A.  Yes, it is.

      14   Q.  How did you go about preparing his family history?

      15   A.  There are a number of things I do in developing any family

      16   history and then some special things I had to do here because

      17   of cultural issues.  So I initially did some cultural

      18   research.  I then met with Khalfan Mohamed.

      19   Q.  Let me stop you there for a minute.  Have you met with

      20   Mr. Mohamed and interviewed Mr. Mohamed?

      21   A.  Yes, I have.

      22   Q.  Did those interviews take place either at the Metropolitan

      23   Correctional Center on 10 South or in the interview room that

      24   is behind this courtroom?

      25   A.  Yes.

                                                                    8385

       1   Q.  Approximately how many times have you met with

       2   Mr. Mohamed?

       3   A.  I have met with him 11 times.

       4   Q.  Do you recall when it was that you first met with him?

       5   A.  It was early March of 2000.

       6   Q.  At the time you first met with Mr. Mohamed in March of

       7   2000, did you meet on 10 South?

       8   A.  Yes.

       9   Q.  Were there.

      10   Q.  Was any contact made?

      11   A.  Yes.

      12   Q.  Were those conditions of meetings with Mr. Mohamed in the

      13   sense that it was a contact visit up until what happened on

      14   November 1, 2000?

      15   A.  Correct.  My last contact visit was in October of 2000.

      16   Q.  You said you did some research on cultural issues.  Let me

      17   ask you a question about names and how people's names are

      18   determined within, let's limit it to the Islamic community in

      19   Zanzibar.  How do names work?

      20   A.  A person has a given name, which we think of as the first

      21   name.  Their second name is the given name of their father and

      22   the third name is the given name of the paternal grandfather.

      23   It is a patrilineal lineage.  The line goes through the

      24   father.

      25   Q.  So with respect to Khalfan Khamis Mohamed, Khalfan would

                                                                    8386

       1   be a name that his parents chose?

       2   A.  Correct.

       3   Q.  Khamis would be whose name?

       4   A.  That would be the father's first name.

       5   Q.  And the last name Mohamed would come from?

       6   A.  His paternal grandfather.

       7   Q.  So his father's father's first name?

       8   A.  Correct.

       9   Q.  In the course of your preparing a history, did you have

      10   occasion to travel to East Africa, specifically to Zanzibar

      11   and Dar es Salaam?

      12   A.  Yes, I traveled there twice.

      13   Q.  When was the first approximate time frame of your travel

      14   there, the first time you went there?

      15   A.  We left in the latter part of April and returned in early

      16   May.  It was about a 10 or 11-day trip, I believe, with the

      17   travel time.

      18   Q.  April of?

      19   A.  2000.

      20   Q.  Was there a second trip you made to Zanzibar and East

      21   Africa in December of 2000?

      22   A.  Yes.

      23   Q.  If we could have map 1 displayed through our system.  We

      24   are displaying a map showing the continent of Africa, showing

      25   Tanzania just south of Kenya in East Africa, just below the

                                                                    8387

       1   Equator.  Obviously that is Tanzania and obviously that's

       2   where you went; is that true?

       3   A.  Yes.

       4   Q.  If we could have the map of Zanzibar.  The map we are

       5   looking at right now shows Tanzania, it shows an island -- we

       6   see the designation Pemba Island?

       7   A.  Yes.

       8   Q.  Do you see the designation of Zanzibar?

       9   A.  Yes.

      10   Q.  Below Zanzibar is Dar es Salaam?

      11   A.  Yes.

      12   Q.  In fact, do you recall the video yesterday where the

      13   gentleman was talking about the Morogoro Road?

      14   A.  Yes.

      15   Q.  Do you see in fact Morogoro on the map outside of Dar es

      16   Salaam?

      17   A.  Yes.

      18   Q.  When you went to East Africa on both occasions, did you

      19   travel to Zanzibar?

      20   A.  Yes.

      21   Q.  On each of those occasions did you have a chance to meet

      22   with and talk with and interview members of Mr. Mohamed's

      23   family?

      24   A.  Yes.

      25   Q.  Where was Mr. Mohamed born?

                                                                    8388

       1   A.  He was actually born on Pemba though the family was living

       2   in Zanzibar at the time.  His mother went to the home of her

       3   mother on Pemba to give birth.  She knew she was going to have

       4   twins and went to her mother's home to give birth.

       5   Q.  Was it common or uncommon, at least at the time Mohamed

       6   was born, for women to give birth at home?

       7   A.  Yes.  Even today 75 percent of the births are at home.

       8   Q.  What is the recordkeeping like in Zanzibar and Tanzania

       9   generally?

      10   A.  By our standards very poor.  One of the things that I do

      11   in a social history study is try to get as many records as

      12   possible, birth and medical and school records and that sort

      13   of thing.  But it is very difficult there.  They don't keep

      14   records of a lot of things.  Many births are not registered.

      15   So you really can't get the kinds of records that we

      16   ordinarily get here.

      17   Q.  Is it common or uncommon for someone, especially somebody

      18   who is now in their fifties or sixties, not to know the date

      19   of their birth?

      20   A.  That is correct.  Many births are not registered and

      21   several members of his family do not know the date of their

      22   birth.

      23   Q.  Particularly with regard to Mr. Mohamed's mother, Hidaya,

      24   does she know exactly what her birthdate is?

      25   A.  No.

                                                                    8389

       1   Q.  Is that based on conversations that you had with her?

       2   A.  Yes.

       3   Q.  After Mr. Mohamed was born on Pemba, where did his family

       4   move to or where did his family grow up and live?

       5   A.  His parents had married on Pemba and grown up there, but

       6   they had moved to Zanzibar, to the Kidimni area, several years

       7   before he was born.  She only went to Pemba to give birth and

       8   returned with the baby.

       9   Q.  Can we have the map -- what village did he grow up in?

      10   A.  Village of Kidimni.

      11   Q.  That is map No. 6.  We will print out copies of that

      12   later, your Honor.

      13            Does Kidimni show up -- it is a highlighted area and

      14   could we have that area highlighted on the screen.

      15   A.  Yes.

      16   Q.  That is the town or village in which Mr. Mohamed was

      17   raised, is that correct?

      18   A.  Yes.

      19   Q.  Did Mr. Mohamed grow up in the area of Kidimni and attend

      20   schools in Kidimni?

      21   A.  Yes.

      22   Q.  Do you know the name of his elementary school?

      23   A.  Yes.  Dunga Primary School.

      24   Q.  If we could have photo number 19 displayed.  Showing you

      25   what has been marked KKM page 19, what does that show?

                                                                    8390

       1   A.  This is a classroom in the old building at Dunga

       2   Elementary.  There are two buildings there, an old building

       3   and a new building.  In the early standards, students would be

       4   in the old building.  So this was a classroom that he would

       5   have gone to the first few standards of primary school there.

       6   The man standing there is Madli Khamis, who was his teacher

       7   for the first to the third standards.

       8   Q.  When you talk about standards, could you translate that

       9   for the American system.

      10   A.  The system there is based on the English system.  So there

      11   is a primary school of eight standards, which would be like to

      12   our close to eighth grade.  The second is like our high

      13   school, which is three standards.

      14   Q.  If we could show photo 22, and could you show us what that

      15   shows.

      16   A.  That is a classroom in the new building where he would

      17   have gone in the higher standards of primary school.  These

      18   photos were shown during Ramadan, which is their major school

      19   break, so there is no furniture in either of them.  In the

      20   older building where he went to the first standards, the

      21   students actually sat on logs, I think a coconut tree.  So

      22   there wasn't regular furniture.  In this newer room, it did

      23   actually have desks and chairs.

      24   Q.  What was the name of Mr. Khalfan Khamis Mohamed's father?

      25   A.  Khamis Mohamed Khalfan.

                                                                    8391

       1   Q.  Did he die when Khalfan Mohamed was a relatively young

       2   age?

       3   A.  Yes.  As best we can determine he died in 1980 and Khalfan

       4   would have been 6 or 7, depending upon the time of year.

       5   Q.  What had he done for a living, or how had he supported his

       6   family?

       7   A.  He had originally been a farmer on Pemba, and when the

       8   term farmer is used there it is not as we think of a farm here

       9   where you have a plot of land on which you grow crops.  You

      10   may have that.  But also it is just going into the bush and

      11   picking crops that are there like bananas or coconuts.  Then,

      12   when the family moved to Zanzibar, which we think was in about

      13   1966, he got a job for the Ministry of Road Repairs.  So he

      14   had a job working on roads but then continued to do some

      15   farming and harvesting of coconuts.

      16   Q.  You made reference to Kidimni and the village in which he

      17   grew up in Kidimni.  Could we look at photograph 68.  What is

      18   shown in photograph 68?

      19   A.  This is a road in Kidimni.  It is actually the road

      20   between his mother's house and his brother Rubeya's house,

      21   which one can walk down to visit the whole family.

      22   Q.  Can we look at photo 72 as well.  What does photo 72 show?

      23   A.  That is also a road in Kidimni.  When we were there it was

      24   just at the end of the rainy season the first time, so there

      25   had been a lot of rain, and this is typically what the roads

                                                                    8392

       1   looked like.

       2   Q.  The house he grew up in initially when they moved back

       3   from Pemba, can you describe that house, and do you happen to

       4   have a photo number of that house?

       5   A.  I think it is 94.  I don't have the photo numbers with me.

       6   The family had built a house actually before he was born that

       7   he lived in until he was about 16.  It was essentially a mud

       8   house.

       9   Q.  Was it a typical mud stick and thatch type house?

      10   A.  Right, with thatched roof.  Actually there was, which it

      11   isn't there any longer, a small one-room detached mud house

      12   similarly made where the men slept, because in Muslim practice

      13   the men sleep separately from the women.

      14   Q.  Could we have photo 94 displayed only to counsel and not

      15   to the jury, to make sure we have the right photo.

      16            OK.  Could we have that displayed to the jury now,

      17   please.

      18            What is depicted in photo 94?

      19   A.  That is the house that Khalfan grew up in, that the family

      20   lived in when he was born and lived in until he was about 16

      21   or so.

      22   Q.  Did there come a time where they moved to a newer house?

      23   A.  Yes.  That's the house that his mother lives in now.

      24   Q.  Could we have photo 93.  Is that the house where Khalfan

      25   lives now?

                                                                    8393

       1   A.  Where his mother lives, yes.  So he lived there for a

       2   while before he left Dar es Salaam.

       3   Q.  You mentioned that people would farm and take crops to

       4   market.  Can we have photo 38.  What does photo 38 display?

       5   A.  This is the main market in Zanzibar town.  It is kind of

       6   on the edge of town.  That is the main market that they would

       7   take crops to.  There also was a small village market that

       8   they occasionally sold things in.  But they would bring things

       9   to this market to sell and also buy the things that they

      10   needed there.

      11   Q.  In moving crops and things from the farms -- would you

      12   describe what you mean by a farm in terms of how things are

      13   done in Zanzibar.

      14   A.  There are two ways of the family farm.  They did have a

      15   small plot of land on which they grew things like cassava,

      16   sweet potatoes, some fruit.  Then they also would go into what

      17   is referred to as the bush in the areas near their home or

      18   with the permission of the landowner and pick things like

      19   bananas and coconuts and bring those to market.

      20   Q.  In transporting items to market, if we look at number 43,

      21   do you know what the term dhala dhala means?

      22   A.  Dhala dhala is the standard form of public transportation

      23   there.  It would be like a small bus.  So it's a bus to

      24   transport people around but also people would typically take

      25   their crops in to market on the dhala dhala.  They would put

                                                                    8394

       1   their crops on the top of the dhala dhala and take them to

       2   town.

       3   Q.  Do people also commonly use carts drawn by animals to

       4   bring things to town?

       5   A.  You do see carts, yes.

       6   Q.  Look at photo number 9, please.  Do you see a cart pulled

       7   by some kind of bull or animal of some kind?

       8   A.  Yes, and that was something actually that Khalfan and his

       9   brothers did, or primarily he and Rubeya.  One of the things

      10   they did to earn money after his father died was something

      11   called cow farming, and that is, they took care of somebody

      12   else's cows.  If you took care of them for a certain length of

      13   time you would be paid by being given a cow.  In this way they

      14   got a cow and built a cart.  Rubeya and his brother and

      15   Khalfan would bring crops in from the field or the bush and

      16   they would take them to the local market in that.  They didn't

      17   go into town because that was a pretty long way to go.  They

      18   used the dhala dhala for that.

      19   Q.  As Mr. Mohamed was growing up in Kidimni -- we can take

      20   that photo down -- did he attend religious schools, something

      21   called the Madrasa?

      22   A.  Yes.

      23   Q.  Generally speaking, what is a Madrasa?

      24   A.  The Madrasa is a religious school where they study the

      25   Koran.  What he would generally do is go to the regular

                                                                    8395

       1   school, Dunga or Mwera, in the early morning until the early

       2   afternoon, go home for a period to have lunch, about

       3   midafternoon go to Madrasa for two, two and a half hours,

       4   generally four days a week Monday to Thursday.  It was in, he

       5   described, not a regular building but a kind of shelter that

       6   the teacher held this Madrasa in and students could come and

       7   study the Koran.

       8   Q.  Did his brothers and sisters also attend that Madrasa?

       9   A.  Some did, some not.  I don't think anybody attended as

      10   long as he did.  His sister Zuhura did.  I think Fatuma

      11   attended for a while.  He attended the longest.

      12   Q.  In terms of Mr. Mohamed's family, did you find them or did

      13   they describe themselves as a particularly religious family?

      14   A.  He described them as not particularly religious sort of by

      15   his standards, because he is very religious, and everyone

      16   described him as always having been very serious about

      17   religion.  So the rest of the family was less serious, I would

      18   say, than he was.

      19   Q.  Did there come a time when Mr. Mohamed attended secondary

      20   school?

      21   A.  Yes.

      22   Q.  What was the name of that secondary school?

      23   A.  Mwera secondary school.

      24   Q.  If we could look at photograph 51.  What is shown in

      25   photograph 51?

                                                                    8396

       1   A.  This is one of the buildings at the Mwera Secondary

       2   School.  Like the primary school, they had more than one

       3   building.

       4   Q.  Based on your findings in social history, did Mr. Mohamed

       5   complete secondary school?

       6   A.  No, he did not.

       7   Q.  How far did he go in secondary school?

       8   A.  He attended for two years.

       9   Q.  How many standards are needed to complete a secondary

      10   school education in Zanzibar?

      11   A.  Three.

      12   Q.  In setting up a social history, did you actually have a

      13   chance to talk to school officials at the Mwera school in

      14   Zanzibar?

      15   A.  I didn't actually speak to anyone, but we did receive a

      16   letter from the current principal of the school.

      17   Q.  I show you a document that has been marked KKM28.  Would

      18   you tell the jury what KKM28 is.

      19   A.  That is the letter written by the principal of the school

      20   verifying his attendance at Mwera Secondary School.

      21   Q.  Is there a translation attached to KKM28?

      22   A.  Yes.

      23   Q.  That is MMK28T.  Would you read it to the jury.

      24   A.  To whom it may concern.  With reference to Khalfan Khamis

      25   Mohamed, I beg respectfully, beg to refer to the above matter.

                                                                    8397

       1   I confirm that this young man was a student in my school

       2   from -- it has the date 2/6/89, and I will explain something

       3   about that in a minute -- when he was in his first year until

       4   he left school in 1990, when he was in his second year.  His

       5   student number was 4358.  I received this boy from Dunga

       6   school when he had completed eighth grade.  I hope I have been

       7   clear.  Mwera School Zanzibar.  Thank you.  Ms. M. Kugu.

       8   Q.  In terms of the date in East Africa generally, do they

       9   follow the European convention of reading dates, by which I

      10   mean it starts with the day, the month and the year?

      11   A.  They generally do, but in all my discussions with Khalfan

      12   and everyone in his family, they are quite certain he began in

      13   January of '89, and January is the time that school years

      14   begin there.  So I am not certain about that date, whether it

      15   was supposed to be done the European way or whether this

      16   person came to the school the mid-year.  But they are quite

      17   certain that he started in January.

      18   Q.  Regardless when the school year started, the records that

      19   have been provided to us show that he completed two years or

      20   less school in his second year of what we would consider high

      21   school, although it is a three-year high school program in

      22   Zanzibar; is that correct?

      23   A.  Yes.

      24   Q.  At age approximately 17, did Mr. Mohamed go somewhere off

      25   Zanzibar?

                                                                    8398

       1   A.  Yes.  He left Zanzibar and went to Dar es Salaam to live

       2   with and work for his older brother Mohamed.

       3   Q.  What kind of enterprise did his brother Mohamed have?

       4   A.  Mohamed had a small dry goods shop at the front of his

       5   house in the Ilala area in Dar es Salaam.  He also did some

       6   wholesaling things like rice.

       7   Q.  Could we have photo number 8.  What is shown in photo

       8   number 8?

       9   A.  This is the house at No. 8 Kutuya Street in Ilala, where

      10   his brother and his family lived, and the front of it had been

      11   a shop at the time.

      12   Q.  It appears that it was no longer a shop when this

      13   photograph was taken?

      14   A.  That is correct.

      15   Q.  While he was in Dar es Salaam, according to what you

      16   learned in your social history, did Mr. Mohamed begin to

      17   attend a particular mosque in Dar es Salaam?

      18   A.  Yes.  There were actually two mosques he attended in the

      19   Ilala area but the one on Arusha Street that he primarily went

      20   to and there was one on Bongoni Street that he occasionally

      21   went to.

      22   Q.  Could we have photograph number 5, please.  What is

      23   depicted in photo number 5?

      24   A.  This is the mosque on Arusha Street.

      25   Q.  Prior to beginning to attend this mosque in Dar es Salaam,

                                                                    8399

       1   had Mr. Mohamed been a particularly serious student of Islam?

       2   A.  According to his family he had always been more serious

       3   than the others in the family about religion, and he had

       4   attended Madrasa.  When he went to Dar es Salaam, he became

       5   even more serious about his religious studies.

       6   Q.  You have reviewed, or have you reviewed among other

       7   documents the FBI statement that is attributed to Mr. Mohamed

       8   and that is in evidence in this case as Government Exhibit

       9   1071?  Have you looked at that statement?

      10   A.  Yes, I have.

      11   Q.  This is the FBI recitation as represented by the FBI that

      12   Mr. Mohamed told them; is that correct?

      13   A.  Yes.

      14   Q.  Did you also interview members of, as you say,

      15   Mr. Mohamed's immediate family?

      16   A.  Yes, I did.

      17   Q.  In some cases were you able to take pictures of members of

      18   the family?

      19   Q.  Could we have photo number 29 and could you tell the jury

      20   who is in this picture.

      21   A.  This is his brother Mohamed, who is the next --

      22   Q.  Mohamed or Rubeya?

      23   A.  I am sorry, Rubeya Khamis Mohamed, who is the next in age

      24   over Khalfan, and his wife Amina and their son.

      25   Q.  Could we have photograph number 14.  Who is in this

                                                                    8400

       1   photograph?

       2   A.  This is his twin sister Fatuma and her husband Salum, and

       3   their children.

       4            (Continued on next page)

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       9

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      12

      13

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      16

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      20

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      22

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                                                                    8401

       1            MR. RUHNKE:  Could we have photograph number 12.

       2   Q.  Who is in this photograph?

       3   A.  This is his younger sister Zuhura, she was the youngest in

       4   the family; her husband Salum, and one of their three

       5   children.

       6            MR. RUHNKE:  Could we have photograph number 31,

       7   which may be not particularly clear.

       8   Q.  But would you look at 31.  Are you able to tell who that

       9   is?

      10   A.  Yes.  That's his sister Salma.  She's actually the oldest

      11   child of the marriage.

      12   Q.  Now, is Salma actually in the United States now?

      13   A.  Yes.

      14   Q.  After she arrived here, did one of the children she had

      15   traveling with her become ill?

      16   A.  Yes.  She brought her baby with her and the baby

      17   developed -- became ill and was taken to the hospital and is

      18   being treated for malaria.

      19   Q.  And for that reason will Salma not be here today?

      20   A.  That's correct.

      21            MR. RUHNKE:  And may we look at photograph number 32.

      22   Q.  Who is in photograph number 32?

      23   A.  This is his mother, Hidaya Rubeya Juma.

      24   Q.  Now, there came a time when Mr. Mohamed became involved

      25   with a group of people in Dar es Salaam, and at the end of

                                                                    8402

       1   that process the American Embassy was bombed, correct?

       2   A.  Yes.

       3   Q.  And you have discussed that with him and it's in the FBI

       4   302 report, correct?

       5   A.  Yes.  I have not discussed it at great length with him.

       6   Q.  Your role was not to discuss the offense; is that correct?

       7   A.  That's correct.

       8   Q.  But you have reviewed some of the underlying documents?

       9   A.  Yes, I have.

      10   Q.  According to the FBI 302, after the embassy was bombed,

      11   Mr. Mohamed traveled to South Africa; is that correct?

      12   A.  Yes.

      13   Q.  And do you recall, according to the 302, what plans he had

      14   made for travel?  Initially was there a plan, according to the

      15   statement, to travel to South Africa?

      16   A.  No, I believe his initial plan was to go to Yemen.

      17   Q.  That changed and he got a visa to go, according to the

      18   statement, to South Africa; is that correct?

      19   A.  Yes.

      20   Q.  And according to the statement and other information, why

      21   did he choose Cape Town?

      22   A.  He had a friend from Zanzibar living in Cape Town, so he

      23   thought he would know someone there.  I think initially he was

      24   going to go to Cape Town and then perhaps leave there at some

      25   point, but he ended up staying there.

                                                                    8403

       1   Q.  And in Cape Town, according to your investigation -- first

       2   of all, have you actually gone to Cape Town to interview

       3   people?

       4   A.  No, I haven't.

       5   Q.  Have you seen certain videotaped interviews of people in

       6   Cape Town?

       7   A.  I have seen video interviews and I have done telephone

       8   interviews.

       9   Q.  When he got to Cape Town, did he find work?

      10   A.  Yes.

      11   Q.  Do you remember the name of the place that he found work?

      12   A.  He found work at a restaurant called Burger World, which

      13   was actually an Indian restaurant.

      14   Q.  Do you know who the owners of the Burger World restaurant

      15   are?

      16   A.  Yes.  Sharhima and Abin Dalvie.

      17   Q.  And did Mr. Mohamed eventually move into the home of

      18   Mr. and Mrs. Dalvie?

      19   A.  Yes, after several months.  He started working there in

      20   September of '98 and he move into a room behind their home in

      21   the summer of '99.

      22   Q.  By the way, to your knowledge, are there any photographs

      23   at all that exist of Mr. Mohamed's father?

      24   A.  Not to my knowledge.

      25            MR. RUHNKE:  Could we have photograph number 96,

                                                                    8404

       1   please.

       2   Q.  Can you tell me who is shown in this photograph, to the

       3   best of your ability to know?

       4   A.  These are members of the Dalvie family, appear to be

       5   eating in a restaurant.  You can see Sharhima Dalvie's

       6   parents, Yakoub and Asma.

       7   Q.  Starting with the -- going around the table, there's a

       8   child in the lower left corner of the photograph.  Do you know

       9   who that child is?

      10   A.  It's the youngest daughter, whose name I can't remember.

      11   The other two daughters are Nisha and Farah.

      12   Q.  The woman, as we go around clockwise, with her hair in

      13   braids is?

      14   A.  It's not -- it appears to be Sharhima.  It's not a real

      15   good photo of her in terms of the videos I have seen.

      16   Q.  And the next child is?

      17   A.  Nisha, I think.

      18   Q.  The gentleman at the head of the table with the grayish

      19   beard?

      20   A.  Is Yakoub Hendricks.  That's Sharhima Dalvie's father.

      21   Q.  And the woman next in the photograph?

      22   A.  Is Asma, and it's A-S-M-A.  In my report, my spell check

      23   seemed to make it asthma, but it's Asma.

      24   Q.  And who is Asma?

      25   A.  That's Sharhima Dalvie's mother.

                                                                    8405

       1   Q.  And the final person in the photograph?

       2   A.  Farah.

       3            MR. RUHNKE:  Could we have photo number 83.

       4   Q.  Would you tell the jury what that shows?  Who is the

       5   gentleman on the left?

       6   A.  That's Abin Dalvie.

       7   Q.  And the gentleman on the right is Mr. Mohamed?

       8   A.  Yes, and they appear to be in the restaurant.

       9            MR. RUHNKE:  Could I have also photo number 102.

      10   Q.  Who is shown, who is the gentleman on the left in that

      11   photograph?

      12   A.  That is, again, is Yakoub Hendricks, Sharhima Dalvie's

      13   father.  He is with Khalfan.

      14   Q.  And with regard to Yakoub, or without going into the

      15   details, is he currently ill and unable to travel?

      16   A.  Yes.

      17            MR. RUHNKE:  We can take the photo down now, if you

      18   like, please.

      19   Q.  To the best of your ability to ascertain from your

      20   investigation, did Mr. Mohamed continue to work and live with

      21   the Dalvie family in South Africa up to the date of his arrest

      22   in October of 1999?

      23   A.  Yes.

      24   Q.  Did he use a false name while in South Africa particularly

      25   Zahran Nassor Maulid?

                                                                    8406

       1   A.  I think that was the name that he used.  Sharhima just

       2   said he gave her a long name and was hard to remember and

       3   pronounce, so the family just always called him Nassor.

       4   Q.  So they referred to him as Nassor?

       5   A.  Yes.

       6   Q.  But there is no issue that he did not tell them his real

       7   name?

       8   A.  That's correct.

       9   Q.  And just by way of a final bit of background, is it your

      10   understanding from your review of documents and social

      11   history, that in approximately January of 1998 Mr. Mohamed had

      12   applied for a passport using the identification documents of

      13   his friend Zahran Nassor Maulid?

      14   A.  Yes.  I'm not sure of the date.  I know it was early in

      15   1998.

      16   Q.  And was it his plan, according to the 302 statement, at

      17   least, to travel to London and basically start a new life?

      18   A.  Yes.

      19            MR. RUHNKE:  I have no further questions.

      20            MR. FITZGERALD:  I have no questions.

      21            THE COURT:  No questions.  Thank you.  You may step

      22   down.

      23            MR. RUHNKE:  Your Honor, I offer K.K.M. 28, which is

      24   the school record.

      25            MR. FITZGERALD:  No objection.

                                                                    8407

       1            THE COURT:  Received.

       2            (Defendant's Exhibit K.K.M. 28 received in evidence)

       3            MR. STERN:  We call Sharhima Dalvie.

       4            THE COURT:  Will we need an interpreter?

       5            MR. STERN:  Pardon me?

       6            THE COURT:  Will we need an interpreter?

       7            MR. STERN:  We will not.  She speaks English.

       8    SHARHIMA DALVIE,

       9        called as a witness by the defendant,

      10        having been duly sworn, testified as follows:

      11   DIRECT EXAMINATION

      12   BY MR. STERN:

      13   Q.  Ms. Dalvie, if you would pull the microphone close to you

      14   so everyone can hear you.

      15   A.  Is that close enough?

      16   Q.  I don't know.  Can people hear?

      17   A.  Close enough?

      18   Q.  Yes.  Good.

      19            Ms. Dalvie, where are you from?

      20   A.  South Africa, Cape Town.

      21   Q.  How long have you lived there?

      22   A.  All my life.

      23   Q.  And do you have a family there?

      24   A.  Yes, I do.

      25   Q.  Who are the members of your family?

                                                                    8408

       1   A.  I have four children, my husband.

       2   Q.  And your parents?

       3   A.  Excuse me?

       4   Q.  Your parents, are they still around?

       5   A.  Yes, they are.

       6   Q.  Who are your parents?

       7   A.  Asma and Yakoub.

       8   Q.  When did you come to the United States?

       9   A.  This morning.

      10   Q.  What time did you arrive?

      11   A.  7:00.

      12   Q.  Have you had a chance to sleep or anything yet?

      13   A.  No, I didn't.

      14   Q.  I want to talk to you about how your family makes a living

      15   in South Africa a little.

      16            Why don't you tell the jury what you do for a living.

      17   A.  We have a fast food business called Dalvie's Burger World.

      18   Q.  And do you have any other businesses?

      19   A.  Dalvie's Candy World.  We manufacture sweets.

      20   Q.  What part of Cape Town do you live in?

      21   A.  Rylands.

      22   Q.  Now I want to talk to you about a time when a young man

      23   came to apply for a job at Burger World, and I'm talking about

      24   a young man named Nassor.  Why don't you tell us what

      25   happened.

                                                                    8409

       1   A.  He came to the shop and he was looking for a job, and my

       2   husband employed him.  He worked there as a chef.

       3   Q.  When you say he worked as a chef, what exactly was the

       4   work that he did?

       5   A.  He cooked for us.

       6   Q.  What exactly?  Did he chop things?  Did he serve things?

       7   A.  He made different dishes every day.

       8   Q.  And did he have a chance to meet not only you but other

       9   members of your family?

      10   A.  Yes, he did.

      11   Q.  Who else did he know in your family?

      12   A.  He knew my whole family.

      13   Q.  What kind of an employee was he?

      14   A.  He was very hard-working.

      15   Q.  Would he fight with people?

      16   A.  Never.  He always held everything together at work.  He

      17   was always the one that everyone would look up to.  Even back

      18   home, you know, he would come and play with the kids.  And he

      19   would do things, he would always do special things, especially

      20   for my parents.  He would cook a special meal for her, which

      21   was chicken and garlic potato.

      22            On Tuesday he would be off from work and he would

      23   come home and help me, instead of taking his time off, he

      24   would spend it with me, helping me in the kitchen, baking, and

      25   thereafter he would go take his bath and then go off to mosque

                                                                    8410

       1   to pray.

       2   Q.  You say he went off to mosque to pray.  Did you know if he

       3   was a religious person or not?

       4   A.  Yes, he was.

       5   Q.  And how do you know that?

       6   A.  Because all he would do is pray.  He would pray.  He would

       7   walk around with his prayer book all day long, and he would

       8   tell me to also pray, that if I give, then I will get.  He was

       9   very good in that way.  He sat with my son Abu-Taalib every

      10   day for one hour after work, he would sit and teach

      11   Abu-Taalib.

      12   Q.  And did he --

      13   A.  For one hour he would sacrifice his time from work.  He

      14   wouldn't rest for anything.  He would come home, have a bath,

      15   and sit with Abu-Taalib and teach Abu-Taalib for one hour

      16   every day.

      17   Q.  Did he teach anyone else in your family?

      18   A.  My mom, yes.

      19   Q.  What did he do for your mom?

      20   A.  The day he left South Africa, that was the day my mom

      21   graduated through him.  Thanks to him.

      22   Q.  When he first came to South Africa, do you know where he

      23   lived?

      24   A.  In Rylands, yes.  He lived in Zharia State first when he

      25   first came to South Africa.

                                                                    8411

       1   Q.  Did there come a time when he moved in with your family?

       2   A.  And then he moved over to our place, yes.

       3   Q.  How did that happen that he came to live with your family?

       4   A.  We didn't want him to -- he's a very good person.  You

       5   know, he's the kind of person that a parent would want, a

       6   child that a parent would want.  And we just felt that he was

       7   a good guy, that we needed to take him in and take care of

       8   him.  And that was our reason for taking him.

       9   Q.  And after you took him in, how did that go?

      10   A.  Sorry?

      11   Q.  How did it go once he moved in with your family?

      12   A.  It went very, very well.  He would take all his time and

      13   his energies and spend it with the family.  He would never go

      14   out.  He would always be home, go to mosque, come home.  That

      15   was his life.  On his time off, every Tuesday he was off on

      16   from work, he would go spend the morning with me in the

      17   kitchen and then off to mosque he would go and come back.  He

      18   didn't have much of a social life.

      19   Q.  There was a time when he was arrested, correct?

      20   A.  Yes.

      21   Q.  And brought back here to the United States, right?

      22   A.  Right.

      23   Q.  And sometime after that, one of the members of the team

      24   defending him came to South Africa, right?

      25   A.  Correct.

                                                                    8412

       1   Q.  And you were present when videotapes were made of various

       2   member of your family and friends of your family, correct?

       3   A.  That's correct, yes.

       4   Q.  And since that time you have come to know that this jury

       5   will have to decide whether or not he should be executed.

       6            Could you tell me what effect his execution would

       7   have on you and your family?

       8            MR. GARCIA:  Objection.

       9            THE COURT:  I'll allow it.

      10   A.  That would be terrible, because Nassor is not that kind of

      11   person.  He deserves a chance.  He's been a good guy.  He's

      12   really proven himself.  We've seen that.  He's been with us

      13   for a year, and in that time there was no traces of anything

      14   at all, anything bad about him at all.  We went as far as

      15   saying that Nassor is the kind of guy that we would marry to

      16   our daughters.  That's how much we think of Nassor.

      17            MR. STERN:  Your Honor, I would like to introduce

      18   K.K.M. CD1 into evidence without objection.

      19            MR. GARCIA:  No objection.

      20            MR. STERN:  And have it played for the jury now.

      21            THE COURT:  Yes.

      22            (Defendant's Exhibit K.K.M. CD-1 received in

      23   evidence)

      24            THE COURT:  The exhibit number?

      25            MR. STERN:  K.K.M. CD-1.

                                                                    8413

       1            (Videotape played)

       2   BY MR. STERN:

       3   Q.  You heard a person referred to as Nassor by many people in

       4   that videotape, correct?

       5   A.  Yes.

       6   Q.  And is this person here the person they were referring to?

       7   A.  Nassor, yes.

       8   Q.  When was the last time you saw him?

       9   A.  The Tuesday he went to Home Affairs was the last I seen

      10   him, the day they nabbed him.  They came back in the afternoon

      11   to tell me that they have taken him under the Aliens Act.

      12   Q.  So it's been a few years now since you have seen him?

      13   A.  I think two years.

      14   Q.  And have your feelings about him changed?

      15   A.  Not at all.  It will never change.

      16   Q.  Thank you.

      17   A.  Thank you.

      18            MR. GARCIA:  Nothing.  Thank you.

      19            THE COURT:  Thank you, ma'am.  You may step down.

      20            (Witness excused)

      21            MR. STERN:  Judge, could we take a break now, please?

      22            THE COURT:  Yes, we'll take our midmorning recess.

      23            (Jury not present)

      24            THE COURT:  We will take a recess and there is being

      25   distributed a document titled "Proposed Penalty Phase Charge

                                                                    8414

       1   to the Jury" with today's date, which we'll mark as Court

       2   Exhibit A, and a proposed special verdict form, which we'll

       3   mark as Court Exhibit B.  And we'll take a recess.

       4            MR. RUHNKE:  Your Honor, after the recess we're going

       5   to ask the Swahili interpreter to come up and assist the next

       6   witness.

       7            THE COURT:  All right.

       8            MR. RUHNKE:  We fully anticipate concluding by the

       9   lunch break, if not before.

      10            THE COURT:  Okay.

      11            (Recess)

      12            (Jury not present)

      13            THE COURT:  I have a note from Juror No. 9 which

      14   reads:  "I need to go to (deleted) on Monday at 1:45.  I have

      15   to see my landlord for a pending petition.  Will that be

      16   possible?"  I propose to send the following response:  "Can

      17   this matter be postponed?  Please furnish details.  If you

      18   would like me to try to obtain a brief adjournment."

      19            I have no idea what that is, but if that's some

      20   matter in housing court, that could kill the afternoon.

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

      22            THE COURT:  All right.  Let's give that note to the

      23   juror and let's have the jury come in.

      24            MR. FITZGERALD:  Judge, can we approach the sidebar?

      25            (Page 8415 filed under seal)

                                                                    8415

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                                                                    8416

       1            (In open court)

       2            (Jury present)

       3            THE COURT:  Mr. Stern.

       4            MR. STERN:  We would like to call Rebeya Khamis

       5   Mohamed.

       6            MR. RUHNKE:  Your Honor, the Swahili interpreter is

       7   coming.

       8    RUBEYA KHAMIS MOHAMED,

       9        called as a witness by the defendant,

      10        having been duly sworn, testified

      11        through the interpreter as follows:

      12   DIRECT EXAMINATION

      13   BY MR. STERN:

      14   Q.  Rubeya, how old are you?

      15   A.  29.

      16   Q.  Do you know who this is sitting over here?

      17   A.  Yes, I know him.

      18   Q.  Who is it?

      19   A.  My brother.

      20   Q.  Are you older or younger than your brother?

      21   A.  I am older.

      22   Q.  How much older are you than he?

      23   A.  About two.

      24   Q.  Do you have other brothers and sisters?

      25   A.  Yes.

                                                                    8417

       1   Q.  Who are they?

       2   A.  I have brothers and sisters.

       3   Q.  Who are they?  Tell me what their names are.

       4   A.  I have Mohamed and Nassor, they are my brothers, same

       5   mother and the same father, Salma, Fatuma and Zuhura.

       6   Q.  Do Mohamed and Nassor live on Zanzibar with you now?

       7   A.  No.

       8   Q.  But is that where you live, on Zanzibar?

       9   A.  Yes, I live on Zanzibar.

      10   Q.  Before coming to New York to testify in your brother's

      11   case, how many times had you been away from Zanzibar?

      12   A.  Between five to ten times I left.

      13            (Continued on next page)

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    8418

       1   Q.  And those times where had you gone?

       2   A.  Most of the times I went to Dar es Salaam, once I went to

       3   Pemba.

       4   Q.  Pemba is part of Zanzibar, right?

       5   A.  Yes.

       6   Q.  That is the island where your mother was born?

       7   A.  Yes.

       8   Q.  Dar es Salaam is about a two-hour ferry ride from where

       9   you live on Zanzibar, right?

      10   A.  Yes.

      11   Q.  Other than those trips, have you been anywhere else?

      12   A.  Only once I went to Tabora, which is part of Dar es

      13   Salaam.  Other than that, no.

      14   Q.  Do you have your own family, that is, a a wife and

      15   children?

      16   A.  Yes, I have a wife and one child.

      17   Q.  Who is that in the picture?

      18   A.  One person is me, the other my son, and my wife.

      19   Q.  What is your son's name?

      20   A.  Eunice.

      21   Q.  And your wife?

      22   A.  Amina.

      23   Q.  When you were living in Zanzibar, did you have any

      24   schooling?

      25   A.  I just went for a few days.

                                                                    8419

       1   Q.  Why did you stop going?

       2   A.  I just felt bad.  I never felt, I never had the desire to

       3   learn.

       4   Q.  How about your brother Khalfan?  Did he go to school?

       5   A.  Yes, he did.

       6   Q.  Do you know how he did in school?

       7   A.  I know he did well.  I don't know exactly how well,

       8   because myself I did not study.

       9   Q.  I want you to think back when you were growing up with

      10   Khalfan, OK?

      11   A.  How long did you and he live together, growing up?

      12   A.  Many years.

      13   Q.  How old was he when you left home?  Do you remember?

      14   A.  I am not really sure how old he was when he left, but when

      15   he finished school he left.

      16   Q.  Did you two play soccer together?

      17   A.  Yes, we played together.

      18   Q.  What position did you play?

      19   A.  I was number 7.

      20   Q.  How about him?  What position did he play?

      21   A.  Khalfan played number 6, the wing.

      22   Q.  Who was better, you or Khalfan?

      23   A.  Khalfan was better.

      24   Q.  Do you remember any particular thing about what it was

      25   like to play soccer with him, what he would act like, what he

                                                                    8420

       1   would do?

       2   A.  Yes.

       3   Q.  What is that?

       4   A.  If there was ever any fouls played against Khalfan, he

       5   would always approach the person who had fouled him and

       6   explain to him that that wasn't the fair way to play.

       7   Q.  Would he fight with other people during the games?

       8   A.  Never.

       9   Q.  How about if other people started fighting?  What would he

      10   do?

      11   A.  He would go and try to settle them down and encourage them

      12   not to fight.

      13   Q.  While Khalfan was still staying on Zanzibar, was there a

      14   time that you became sick?

      15   A.  Yes.

      16   Q.  What happened?  Tell me.

      17   A.  There was a time when I was very sick and I fell flat, and

      18   Khalfan was there to help me, bringing me water for bathing,

      19   until he took me to the hospital.

      20   Q.  How long was it that he took care of you?

      21   A.  About three or four days I was very sick, but I didn't

      22   take very long to recover.

      23   Q.  You know that this jury is going to have to decide whether

      24   Khalfan is executed or spends the rest of his life in jail,

      25   right?

                                                                    8421

       1   A.  Yes, I know.

       2   Q.  How will it affect you and your family if Khalfan is

       3   executed?

       4   A.  We will feel very bad.

       5   Q.  Will you feel bad about him?

       6   A.  Very much.

       7            MR. STERN:  Thank you.

       8            MR. FITZGERALD:  No questions.

       9            THE COURT:  Thank you.  You may step down.

      10            (Witness excused)

      11            MR. RUHNKE:  Your Honor, we next call Msellem Shiney

      12   Msellem.

      13    MSELLEM SHINEY MSELLEM,

      14        called as a witness by the defense,

      15        having been duly sworn, testified through

      16        an interpreter as follows:

      17   DIRECT EXAMINATION

      18   BY MR. RUHNKE:

      19   Q.  Msellem, you speak English to some degree, is that

      20   correct?

      21   A.  Yes.

      22   Q.  Would you prefer to be questioned in Swahili, your native

      23   language?

      24   A.  Yes.

      25   Q.  You are the brother-in-law of Khalfan Khamis Mohamed?

                                                                    8422

       1   A.  Yes.

       2   Q.  Do you see Khalfan in court today?

       3   A.  Yes, I see him.

       4   Q.  Over there between the attorney and the woman?

       5   A.  Yes.

       6   Q.  Indicating Mr. Mohamed.

       7            Are you married to Mr. Mohamed's twin sister Fatuma?

       8   A.  Yes.

       9   Q.  How long have you and Fatuma been married?

      10   A.  About 11 years.

      11   Q.  Could we have PH12, I believe it is, photograph displayed.

      12   Can you see that picture?

      13   A.  Yes.

      14   Q.  Who is in that picture?

      15   A.  Myself, my three children, and my wife.

      16   Q.  Starting on the left, who is the young boy on the left?

      17   What is his name?

      18   A.  The one on the left here is Saad Msellem Shiney.

      19   Q.  And the small boy that you are holding in your arms, what

      20   is his name?

      21   A.  That one is called Shiney Msellem Shiney.

      22   Q.  Next to your wife Fatuma, the young girl, what is her

      23   name?

      24   A.  That one is Maia Msellem Shiney.

      25   Q.  Is this photograph taken outside your home near Zanzibar

                                                                    8423

       1   town?

       2   A.  Yes, behind my house.

       3   Q.  Of all the people who are in Mr. Khalfan Mohamed's family

       4   who live on Zanzibar, are you the only one who has a

       5   telephone?

       6   A.  There are others, but they use mine.

       7   Q.  What do you do for a living?  How do you support yourself?

       8   A.  Right now I am a businessman.

       9   Q.  Do you actually travel out of Tanzania and all around the

      10   world frequently?

      11   A.  Yes, I travel all the time to other countries.

      12   Q.  Do you have a store in Zanzibar that sells clothing?

      13   A.  Yes, I have one.

      14   Q.  Do you travel abroad to buy clothing to bring back to your

      15   store for sale in Zanzibar?

      16   A.  Yes.

      17   Q.  Is your wife Fatuma here with you in the United States?

      18   A.  Yes, she is here.

      19   Q.  Is this the first time she has left Tanzania?

      20   A.  Yes, the first time.

      21   Q.  Is this the first time she has ever been on an airplane?

      22   A.  Yes.

      23   Q.  You know that the jury here will have to decide soon

      24   whether Mr. Mohamed is to be executed or to spend the rest of

      25   his life in prison.  First, how do you think that would affect

                                                                    8424

       1   your wife Fatuma if her twin brother were executed here in the

       2   United States?

       3   A.  Truthfully, it will affect her very badly because even now

       4   she is very badly affected.

       5   Q.  When was the last time that you had seen your

       6   brother-in-law Khalfan before the last week or so?

       7   A.  He came to Zanzibar to celebrate the holidays of the third

       8   month.

       9   Q.  Is that holiday Ramadan?

      10   A.  It's the Hidra holiday.

      11   Q.  In the third month of 1998?

      12   A.  March or April, the third or the fourth month.

      13   Q.  Of 1998?

      14   A.  Yes.

      15   Q.  How would it affect you if your brother-in-law were to be

      16   executed?

      17   A.  It would affect me very badly also.

      18            MR. RUHNKE:  Thank you for coming.  I have no more

      19   questions.

      20            MR. FITZGERALD:  No more questions.

      21            THE COURT:  Thank you.  You may step down.

      22            (Witness excused)

      23            MR. RUHNKE:  Your Honor, we next call Fatuma Khamis

      24   Mohamed.

      25            (Continued on next page)

                                                                    8425

       1    FATUMA KHAMIS MOHAMED,

       2        called as a witness by the defense,

       3        having been duly sworn, testified as follows:

       4   DIRECT EXAMINATION

       5   BY MR. RUHNKE:

       6   Q.  Fatuma, good morning.  You are Khalfan's twin sister, is

       7   that right?

       8   A.  Yes, I am his twin.

       9   Q.  You two grew up together in Kidimni, right?

      10   A.  Pemba.

      11   Q.  As you grew up together, did you play together?

      12   A.  Yes, we played together.

      13   Q.  Did you attend school together?

      14   A.  Yes, we went to school together.

      15   Q.  Were you a very good student at school or not a very good

      16   student?

      17   A.  I was not a good student.

      18   Q.  Was your brother Khalfan a good student?

      19   A.  He was a very good student.

      20   Q.  Did he try to help you in school?

      21   A.  Yes, he did help me.

      22   Q.  Did you leave school before graduating?

      23   A.  Yes, I left school.

      24   Q.  How many years of school did you go to?

      25   A.  I am not even sure how many years.

                                                                    8426

       1   Q.  Can I have photo 14, please.

       2            Do you see the picture of your husband Msellem and

       3   your children in that photograph?

       4   A.  Yes.

       5   Q.  Was that taken on Zanzibar?

       6   A.  Yes.

       7   Q.  Fatuma, how many times in your life have you left the

       8   island of Zanzibar?

       9   A.  Two times.

      10   Q.  Had you ever been on an airplane or in America before a

      11   few days ago?

      12   A.  No, never.

      13   Q.  Do you like it here in America?  Are you enjoying your

      14   visit in America?

      15   A.  Yes, I like it.

      16   Q.  Fatuma, you know the jury must decide soon whether Khalfan

      17   is to be executed or whether he will spend his life in prison

      18   here in the United States.  If this jury were to vote --

      19   sorry -- if your brother were to be executed, how would that

      20   affect you and your family?

      21   A.  It will affect me badly.

      22            MR. RUHNKE:  Fatuma, thank you for coming.  I have no

      23   more questions for you.

      24            THE WITNESS:  OK, thank you.

      25            THE COURT:  You may step down.

                                                                    8427

       1            (Witness excused)

       2            MR. STERN:  We call Zuhura Khamis Mohamed.

       3    ZUHURA KHAMIS MOHAMED,

       4        called as a witness by the defense,

       5        having been duly sworn, testified as follows:

       6   DIRECT EXAMINATION

       7   BY MR. STERN:

       8   Q.  Zuhura, how old are you?

       9   A.  Twenty-four.

      10   Q.  Are you the youngest child in your family?

      11   A.  Yes.

      12   Q.  Do you know who this is?

      13   A.  Yes.

      14   Q.  Who is it?

      15   A.  My brother.

      16   Q.  Did you grow up with your brother?

      17   A.  Yes.

      18   Q.  Zuhura, do you now have your own family?

      19   A.  Yes.

      20   Q.  Who is this person in the picture?

      21   A.  Me, my husband and my child.

      22   Q.  As you were growing up, did you go to school of any kind?

      23   A.  Yes.

      24   Q.  Did you go to both a regular school and a religious

      25   school?

                                                                    8428

       1   A.  Yes.

       2   Q.  Did Khalfan go with you?

       3   A.  Yes.

       4   Q.  Would you and he go to school together?

       5   A.  Sometimes.

       6   Q.  And sometimes come home together?

       7   A.  Yes.

       8   Q.  How did you do in school?

       9   A.  I did well.

      10   Q.  How about Khalfan?  How did he do?

      11   A.  Also well.

      12   Q.  Were the two of you the best students in your family?

      13   A.  Yes.

      14   Q.  Growing up did you play together, you and Khalfan?

      15   A.  Yes.

      16   Q.  What kind of things would you play?

      17   A.  We used to play things like ball.

      18   Q.  Khalfan has met your children, hasn't he?

      19   A.  Yes, he knows some of them.

      20   Q.  What was he like as an uncle?

      21   A.  He was a very good uncle to my children.

      22   Q.  What would he do?

      23   A.  He used to play with them and he also helped to teach them

      24   religion very well.

      25   Q.  I suppose you know that in the near future this jury is

                                                                    8429

       1   going to have to decide whether Khalfan should be in prison

       2   for the rest of his life or should be executed.  Tell me what

       3   effect his execution would have on you and your family.

       4   A.  We will have -- we will be -- we will have a lot of

       5   problems and it will affect us all very badly.

       6            MR. STERN:  Thank you, Zuhura.

       7            MR. FITZGERALD:  No questions.

       8            THE COURT:  You may step down.

       9            (Witness excused)

      10            MR. RUHNKE:  Your Honor, we call as our final witness

      11   Hidaya Rubeya Juma.

      12    HIDAYA RUBEYA JUMA,

      13        called as a witness by the defense,

      14        having been duly sworn, testified as follows:

      15            THE WITNESS:  Yes, I pledge to tell the truth to the

      16   jury and the judge, so help me God.

      17   DIRECT EXAMINATION

      18   BY MR. RUHNKE:

      19   Q.  Ma'am, are you the mother of Khalfan Khamis Mohamed?

      20   A.  Yes.

      21   Q.  Do you know approximately how old you are?

      22   A.  No, I don't know my age.

      23   Q.  What was the name of Khalfan's father?

      24   A.  Khamis Mohamed Khalfan.

      25   Q.  When Khalfan, your son, was maybe 6 or 7 years old, did

                                                                    8430

       1   your husband, his father, pass away?

       2   A.  Yes, that's when he died.

       3   Q.  As Khalfan grew up, did he help with the family, help

       4   bring money to the family, help with things around the house,

       5   help with farm chores?

       6   A.  Yes, things in the house, things outside the house, he

       7   helped when he returned from school.

       8   Q.  Was Khalfan a good son?

       9   A.  Yes, he was a good child, with his friends and going to

      10   school.

      11   Q.  Other than recently, when was the last time you saw your

      12   son?

      13   A.  The last time I saw him was at the holiday in the third

      14   month.

      15   Q.  In 1998, if you know?

      16   A.  I don't know.

      17   Q.  Did you have occasion to be able to visit your son in the

      18   federal jail here in New York last week?

      19   A.  Yes, I did.

      20   Q.  How did it make you feel to see your son again?

      21   A.  Yes.  We sat in a room where there was something between

      22   us, and we touched each other like that, but I couldn't touch

      23   him.

      24   Q.  Are you saying there was a screen or a piece of metal

      25   between you and your son, you were not able to touch his hands

                                                                    8431

       1   or touch him?

       2   A.  Yes, there was something between us and he sat like this

       3   and I sat like this.

       4   Q.  Was this in that place where you have seen the pictures in

       5   the courtroom on 10 South, at what is called 10 South?  Is

       6   that where your visit took place?

       7   A.  Yes, it's like the place I was shown.

       8   Q.  It is true that the people there, the people in the prison

       9   treated you with respect and courtesy, didn't they?

      10   A.  Yes, they respected me very well.

      11   Q.  How long did your visit with your son last, do you know?

      12   A.  About an hour.

      13   Q.  Had you ever been off the island of Pemba or Zanzibar

      14   before coming here to the United States?

      15   A.  No, I never did.

      16   Q.  Had you ever been on an airplane before you flew from

      17   Africa to New York?

      18   A.  First time now.

      19   Q.  After you leave and return to Africa next week, do you

      20   know whether you will ever see your son again?

      21   A.  I don't even know.

      22   Q.  Do you know what this is about, and that the people here

      23   have to decide whether your son is to be executed or put in

      24   prison for life?  And I want to ask you a very difficult

      25   question, which is, if your son were executed, what would that

                                                                    8432

       1   do to you?

       2   A.  It will hurt me.  He is my son.

       3            (Continued on next page)

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    8433

       1            MR. RUHNKE:  Thank you for coming.  I have no more

       2   questions.

       3            THE COURT:  Thank you, ma'am.  You may step down.

       4            (Witness excused)

       5            MR. RUHNKE:  Your Honor, subject to some open issues,

       6   stipulations, documents and matters of that nature, we rest

       7   our defense in the case for Khalfan Khamis Mohamed.

       8            THE COURT:  Ladies and gentlemen, let me tell you

       9   where we are.  First of all, again you have the option to

      10   remain for your lunch or not, in which case, as I have

      11   indicated before, the food will not be wasted.

      12            The likelihood is that closing statements will take

      13   place on Monday and that on Tuesday the court will give you

      14   its charge and you will begin your deliberations on Tuesday.

      15   Wednesday we do not sit, and we will sit Thursday and Friday.

      16   It's been a while since I reminded you, although I am sure you

      17   remember, please don't read, listen to, discuss with anybody

      18   any aspect of this case, and we are adjourned until Monday

      19   morning.  I would like to take up the matter of a juror who

      20   has a problem with timing next week, and we will take that up.

      21   Otherwise we are adjourned until Monday morning.

      22            (Jury excused)

      23            THE COURT:  Any objection if I take up the matter

      24   with the juror?

      25            MR. RUHNKE:  We did want to see you after that.

                                                                    8434

       1            THE COURT:  Yes.

       2            (Pause)

       3            THE COURT:  The juror is going to phone the details

       4   in to the marshal and I will attempt to get the matter

       5   adjourned.

       6            You have some matters you want to take up now?

       7            MR. RUHNKE:  Yes, your Honor, in the robing room.

       8            MR. RUHNKE:  Your Honor, although there is a charge

       9   conference this afternoon, there is no reason for Mr. Mohamed

      10   to be here for that.

      11            THE COURT:  Mr. Mohamed waives his presence at the

      12   charging conference?

      13            MR. RUHNKE:  Yes.

      14            MR. FITZGERALD:  Your Honor, may I have one moment

      15   with Mr. Ruhnke?

      16            THE COURT:  Sure.  The record should indicate the

      17   defendant nodded his head in the affirmative.

      18            MR. FITZGERALD:  Your Honor, if the marshals could

      19   just hold Mr. Mohamed for one moment until we raise one issue

      20   in the robing room.

      21            (Continued on next page)

      22

      23

      24

      25

                                                                    8436

       1            (In open court)

       2            THE COURT:  Mr. Mohamed, your attorney is telling me

       3   that it is your present intention not to testify in this

       4   proceeding.  Is that correct?

       5            THE DEFENDANT:  Correct.

       6            THE COURT:  Mr. Kenneally, would you place

       7   Mr. Mohamed under oath.

       8            (Defendant sworn)

       9            THE COURT:  Mr. Mohamed, do you understand that you

      10   have the right, if you wish, to take the stand and testify

      11   before this jury?

      12            THE DEFENDANT:  Yes, I do.

      13            THE COURT:  Do you understand that right, and have

      14   you considered and discussed that matter with your counsel?

      15            THE DEFENDANT:  Yes, I have.

      16            THE COURT:  Is it your desire to testify or not to

      17   testify in this matter?

      18            THE DEFENDANT:  Not to testify.

      19            THE COURT:  But you understand that you have the

      20   right to do so?

      21            THE DEFENDANT:  Yes, I do.

      22            THE COURT:  Am I correct that your decision not to

      23   testify is made by you voluntarily and without any duress or

      24   pressure?

      25            THE DEFENDANT:  Yes, your Honor.

                                                                    8437

       1            THE COURT:  Anything further?

       2            MR. FITZGERALD:  No, Judge.

       3            THE COURT:  We are adjourned until Monday morning,

       4   and I will see counsel again in the robing room.

       5            (Pages 8438-8466 sealed)

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    8467

       1            (In open court; defendant and jury not present)

       2            THE COURT:  All right now, the charging conference.

       3   I have distributed earlier today a proposed penalty phase

       4   charge to the jury which we have marked as a court exhibit,

       5   and the bold type, which of course will not appear in the copy

       6   which the jury gets, is to call attention to matter which had

       7   been added since the Al-'Owhali trial.  I also have Mr.

       8   Ruhnke's letter dated June 28, suggesting additional charges.

       9   The government's requests to charge are reflected in Court

      10   Exhibit A.  Does the government have any objections to

      11   either -- let's do the charge -- we have to do them together.

      12   Does the government have any objections to the court's

      13   proposed charge to the jury and the proposed penalty phase?

      14            MR. FITZGERALD:  Yes, Judge.  The first point, which

      15   is minor in this context, is on page 1 of the charge.

      16   Following your Honor's view, if we turn to the special verdict

      17   form, the last page, or page 17, is what tees it up.  If I

      18   could just explain the government's view, obviously the jury

      19   can reach a verdict, a unanimous verdict that death is the

      20   appropriate sentence.  They can reach a unanimous verdict that

      21   life imprisonment is the appropriate sentence.  Or they cannot

      22   reach a verdict, which is a deadlock.  I think we ought to

      23   recognize that.  I think on page 17 of the verdict that the

      24   last option should say we the jury are unable to reach a

      25   unanimous verdict in favor of a life sentence or a death

                                                                    8468

       1   sentence.  Then, we understand that the consequence of this is

       2   that Khalfan Mohamed will be sentenced to life imprisonment

       3   without the possibility of release.

       4            THE COURT:  I think there is some value to that.  It

       5   makes clear that if there is a unanimous verdict either way,

       6   then there should have been an answer to previous questions.

       7   It makes clear this is the gap that existed.  May I have that

       8   again.

       9            MR. FITZGERALD:  We the jury are unable to reach a

      10   unanimous verdict either in favor of a life sentence or in

      11   favor of the death penalty, or death sentence.  Then the

      12   second sentence is the same.

      13            THE COURT:  Mr. Ruhnke?

      14            MR. RUHNKE:  Yes, Judge.  We see no reason why you

      15   should change the wording that the prior jury was asked to

      16   consider, and I point out that to say we do not unanimously

      17   find for a life sentence or a death sentence and we understand

      18   the consequence of this is that he will serve a life sentence

      19   without possibility of release, that is the same consequence

      20   of unanimously finding a life sentence.  It doesn't seem to

      21   make --

      22            THE COURT:  But if they did that, then they should

      23   have answered an earlier question.  I think in terms of

      24   symmetry and completeness the government is saying here is

      25   what we have not previously addressed.  We have not previously

                                                                    8469

       1   addressed a lack of unanimity either way, and I think that is

       2   a good suggestion.  We the jury are unable to reach a

       3   unanimous verdict either as to a death sentence or a life

       4   sentence, for any of the capital counts.  That would drop

       5   beyond a reasonable doubt, but I think that is clear.  We the

       6   jury are unable to reach a unanimous verdict either as to a

       7   death sentence or a life sentence for any of the capital

       8   counts.  We understand the consequence of this is that K.K.

       9   Mohamed will be sentenced to life imprisonment without the

      10   possibility of parole.  I will adopt that change.

      11            MR. FITZGERALD:  I have no other changes to the

      12   special verdict form.  Going to the charge, on page 1, I think

      13   the last sentence we should just say, the last line on the

      14   page, duplicate those that followed in the prior sentencing

      15   proceeding, for the reason that otherwise, one, I don't mean

      16   to be technical, but there was a deadlock, not a decision, but

      17   also we don't want to say the same principles that guided your

      18   last decision --

      19            THE COURT:  You want prior instead of --

      20            MR. FITZGERALD:  No, just to say those you followed

      21   in the prior sentencing proceeding.

      22            THE COURT:  I see.

      23            MR. FITZGERALD:  As to the defendant Al-'Owhali.

      24            THE COURT:  Any objection to that change?

      25            MR. RUHNKE:  No.

                                                                    8470

       1            MR. FITZGERALD:  The next thing I have is page 4.

       2            THE COURT:  I have a question.  The jury, I believe,

       3   has in the jury room the instructions on the guilt phase, the

       4   instructions on Al-'Owhali, and probably the verdict forms as

       5   to Al-'Owhali.  My question is to alone, where it says during

       6   your deliberations you should thus rely on these instructions

       7   alone.  There is an awful lot that we don't have in here, such

       8   as how you judge credibility, bias of a witness, things of

       9   that sort.  I am afraid that that may be too broad a

      10   statement, that is, the bold face there.

      11            MR. FITZGERALD:  But you could say, your Honor,

      12   should rely on these instructions, periods.

      13            THE COURT:  Strike the alone.

      14            MR. FITZGERALD:  Yes, and say to the extent any prior

      15   instructions are inconsistent -- I don't think we have to

      16   worry about that, but any other legal instruction -- or you

      17   can just take out alone.

      18            THE COURT:  Any objection to taking out alone?

      19            MR. RUHNKE:  No, your Honor.

      20            THE COURT:  I am on page 4.  Anything before page 4?

      21            MR. FITZGERALD:  No.

      22            THE COURT:  As to page 4, you may consider any

      23   information presented during this penalty phase, the guilt

      24   phase -- I have no problem with 1 or 2, but I do have a

      25   question as to 3.

                                                                    8471

       1            MR. RUHNKE:  Yes, your Honor.  I can answer that, I

       2   think.

       3            THE COURT:  Yes.

       4            MR. RUHNKE:  There will be, we are discussing now,

       5   evidence that was offered at the Al-'Owhali penalty phase

       6   which we would like to adopt by reference.  One that comes to

       7   mind is the tape that was played on the Koran and the

       8   Kalashnikov, about the rise of the Mujahedeen and the

       9   background of the Mujahedeen.  Over Friday, Saturday and

      10   Sunday, we are going to be meeting with the government and we

      11   will be reviewing what was presented at Al-'Owhali and making

      12   sure our exhibits are in order.  By Monday morning we will

      13   tell you exactly what we wish to adopt by reference to the

      14   Al-'Owhali phase.

      15            THE COURT:  Will you have a stipulation that covers

      16   those matters?

      17            MR. RUHNKE:  Pardon me.

      18            THE COURT:  It came up today when there was a

      19   reference, I think, to Miss Miller, whether she had read the

      20   FBI reports and statements and so on.

      21            MR. FITZGERALD:  But that's in the guilt phase.

      22            THE COURT:  In the guilt phase.  So how should 3

      23   read?

      24            MR. RUHNKE:  I think what you should say at that

      25   point is, in this case the parties have expressly adopted the

                                                                    8472

       1   following evidence and exhibits from the Al-'Owhali penalty

       2   phase.

       3            THE COURT:  Why don't you put that in a document and

       4   give it a stipulation, and say here to the extent --

       5            MR. FITZGERALD:  Actually, your Honor, if we adopt

       6   it, the stipulation says a certain video --

       7            THE COURT:  Just 1 and 2 and eliminate 3 because you

       8   will deal with it otherwise.  That is splendid.

       9            MR. RUHNKE:  Your Honor, I can't imagine it would

      10   make much difference, but I think we should say something,

      11   that unless it is specifically adopted by stipulation or

      12   otherwise, you can't consider it.  I don't know if there are

      13   aspects in the case where a juror might say, you know, they

      14   had all this information about Iraq in that case and he

      15   doesn't seem to have that kind of evidence here, and they

      16   should not be able --

      17            THE COURT:  So then we should say the Al-'Owhali

      18   penalty phase but only to the extent indicated in stipulation

      19   X.

      20            MR. RUHNKE:  That is fine, your Honor.

      21            MR. FITZGERALD:  OK.

      22            THE COURT:  You see there are some minor language

      23   changes.  I am incapable of reading an instruction without

      24   trying to tickle the language.

      25            MR. FITZGERALD:  I have nothing again till page 25.

                                                                    8473

       1            THE COURT:  Anybody have anything prior to 25?

       2            MR. RUHNKE:  Yes, your Honor.  At the section that

       3   begins with the instruction on -- maybe I am going to 25 --

       4   it's before 25.  At the bottom of page 18, or in that last

       5   paragraph of page 18, I would ask that we insert at that point

       6   our supplemental request number 1, with the change that I

       7   would strike the gateway factor component of that instruction,

       8   since they are not really weighing gateway factors.  Gateway

       9   factors are not a concern.

      10            THE COURT:  You have lost me.

      11            MR. RUHNKE:  What I would ask is that at that point,

      12   unless all 12 of you agree that an aggravating factor has been

      13   proven beyond a reasonable doubt --

      14            THE COURT:  What page are you on?

      15            MR. RUHNKE:  Your Honor, I am reading my page 18.

      16            THE COURT:  Page 18 of the charge?

      17            MR. RUHNKE:  Of the charge, which talks about the

      18   finding of aggravating factors.

      19            THE COURT:  Yes.

      20            MR. RUHNKE:  As the final statement before the page

      21   turns, I would ask that we insert my supplemental request

      22   number 1, striking out of that supplemental request the

      23   reference to gateway factors.

      24            THE COURT:  I see what you are saying.

      25            MR. RUHNKE:  So it would read unless all 12 of you

                                                                    8474

       1   agree that an aggravating factor has been proved beyond a

       2   reasonable doubt, none of you may consider that factor in your

       3   deliberations, even if the --

       4            THE COURT:  We don't really have to gild the lily as

       5   to what unanimous means.

       6            MR. RUHNKE:  I am not sure we are gilding the lily.

       7   It is emphasizing the fact that a juror -- it is

       8   contradistinctive from mitigating factors, where a single

       9   juror can consider a mitigating factor, that that single juror

      10   has found that the situation is not the converse, in fact even

      11   if it is 11 to 1 in favor of an aggravating factors, none of

      12   the 11 jurors who find the factor to exist are permitted to

      13   consider, and they are told explicitly by way of example.

      14            THE COURT:  We do say at the bottom of page 10, to

      15   find existence of a statutory aggravating factor you must be

      16   unanimous, and beyond a reasonable doubt.  You want to add the

      17   thought that unless you are unanimous as to a statutory

      18   aggravating factor, it may not be considered for any other

      19   purpose in this proceeding.

      20            MR. RUHNKE:  That's a different way of saying it.  I

      21   think my way of saying it, respectfully, is more clear,

      22   because it tells the jury even if 11 of you think this is

      23   true --

      24            THE COURT:  I don't want to do it in this instance

      25   because -- I get confused by anonymous and unanimous.  We have

                                                                    8475

       1   an anonymous jury that has to be unanimous.

       2            MR. RUHNKE:  The point is to emphasize to this jury

       3   that this one time, no matter what 11 of you think, you are

       4   not to consider it as a jury and you are not to consider it as

       5   an individual.

       6            MR. FITZGERALD:  I think the first sentence, unless

       7   you are unanimous you can't consider it.  It is in the charge,

       8   it is superfluous, we don't object, but I don't think we ought

       9   to start singling out counts that the jury clearly understood

      10   the last time.

      11            THE COURT:  I am considering adding the last sentence

      12   on page 18, unless you are unanimous that a particular

      13   statutory aggravating factor has been proven, you may not give

      14   any consideration to that factor in any of your further

      15   deliberations.

      16            MR. FITZGERALD:  Your Honor, actually, for Mr.

      17   Ruhnke's benefit, I think you should strike statutory.  That

      18   is true for all aggravating factors.

      19            MR. RUHNKE:  It should go really, I thought, at the

      20   earlier point where you are introducing the discussion.

      21            MR. FITZGERALD:  I am sorry, right.

      22            MR. RUHNKE:  Mr. Fitzgerald is quite correct.  We

      23   then go on to discussion of nonstatutory.

      24            THE COURT:  So I should move this to page 21.

      25            You know, it gets hard.  The other alternative is to

                                                                    8476

       1   repeat it.

       2            MR. FITZGERALD:  I think, Judge, if we put it on page

       3   2 and say as to both statutory and nonstatutory aggravating

       4   factors, it will make the point without --

       5            THE COURT:  Is that all right, Mr. Ruhnke?

       6            MR. RUHNKE:  Yes, Judge.

       7            THE COURT:  So that we will now insert on page 21 as

       8   a last sentence, unless you are unanimous that a particular

       9   statutory or nonstatutory aggravating factor has been proven,

      10   you may not give any consideration to that factor in any of

      11   your further deliberations.

      12            Next point?

      13            MR. FITZGERALD:  From the government, on page 25.

      14   That has to do, your Honor, with the South African issue.  Mr.

      15   Ruhnke has drafted a stipulation to me which I was marking up

      16   and we will try to work out.  So your Honor hasn't seen the

      17   stipulation but the stipulation will be in the record on

      18   Monday.  I think then that basically repeating the stipulation

      19   in your charge -- your Honor may have assumed that your Honor

      20   had to instruct the jury on the South African issue, but we

      21   were to deal with that by stipulation.  So I don't think we

      22   need to --

      23            THE COURT:  You say we don't need this -- this is

      24   taken from a conference in which I ruled --

      25            MR. FITZGERALD:  Exactly.  I thought we were going to

                                                                    8477

       1   then take this language as modified by the parties and make a

       2   stipulation.  We are discussing that.

       3            MR. RUHNKE:  That is correct, your Honor.  I think we

       4   need, though, to revisit where we are, especially the end of

       5   it.  I have difficulty with your Honor telling the jury what

       6   they may or may not consider the circumstance for.  Jurors may

       7   consider it in terms of just is it fair to apply the death

       8   penalty, not as if random or arbitrary, but is it simply fair

       9   to apply the death penalty under these circumstances.

      10            THE COURT:  I don't understand what the distinction

      11   is that you are trying to make.

      12            Would it be appropriate to vote against the death

      13   penalty to punish America for its complicity in the procedures

      14   leading to his arrival in the United States?  No, that would

      15   be inappropriate.

      16            MR. RUHNKE:  That is not anyone's contention.  The

      17   fact is that a stipulation has been drafted.  I include

      18   language that says explicitly the South African decision was

      19   not critical of the actions of American officials.

      20            THE COURT:  If this is going to be sufficiently

      21   covered by a stipulation to which you both agree so that what

      22   appears on page 25 and in the bold face on top of 26, I would

      23   be delighted to strike 25 and 26.

      24            MR. RUHNKE:  I believe we will work it out by

      25   stipulation, your Honor.

                                                                    8478

       1            MR. FITZGERALD:  The next comment I had was just at

       2   the bottom of 26 --

       3            THE COURT:  Give me a moment, please.  Yes.

       4            MR. FITZGERALD:  The last paragraph, after the

       5   underlined word weight, I would suggest the phrase if any.

       6            THE COURT:  I have no problem with if any.

       7            MR. FITZGERALD:  Then nothing again till page 31.

       8            MR. RUHNKE:  Your Honor, I have a problem with if

       9   any.

      10            THE COURT:  You have a problem with if any?

      11            MR. RUHNKE:  I do.

      12            THE COURT:  What is your problem with if any, if any?

      13            MR. RUHNKE:  The problem with it is that it sort of

      14   telegraphs the position to the jury that even though you may

      15   find something mitigating, of course you may not give it any

      16   weight at all.

      17            THE COURT:  That's exactly the purpose of if any, to

      18   tell them that they have the option, which in fact in

      19   Al-'Owhali they exercised.

      20            MR. RUHNKE:  It is a stylistic objection which

      21   prejudices the defendant, and I object to it.

      22            THE COURT:  Overruled.

      23            MR. RUHNKE:  Can we go back and add that to the

      24   findings on the aggravating factors, if any?

      25            MR. FITZGERALD:  There is language in the aggravating

                                                                    8479

       1   factors section that the jury has to find that the factor is

       2   in fact aggravating.  So if we wish to be parallel, we can

       3   strike if any and tell the jurors before they consider a

       4   mitigating factor, they should consider whether that factor is

       5   in fact mitigating.

       6            THE COURT:  We want to do exactly the opposite,

       7   right?

       8            MR. FITZGERALD:  Right.

       9            THE COURT:  We want to tell them there are two

      10   separate steps.  One, as a factual matter, is this something

      11   which is out there, apart from how much weight you give it.

      12            MR. FITZGERALD:  Then we can make a long sentence to

      13   parallel the aggravating factors to say consider whether it is

      14   mitigating.  We thought it would be easier to put if any.

      15            THE COURT:  I agree.

      16            MR. RUHNKE:  A lot of words over if any, I agree,

      17   your Honor.

      18            THE COURT:  Yes.

      19            MR. FITZGERALD:  Then to page 31, and this lines up

      20   with the last page of the verdict sheet.  I would suggest

      21   after the sentence that says the court has no other sentencing

      22   option, that we make it a new paragraph and then say before

      23   you reach a conclusion that a unanimous verdict in favor of

      24   the death sentence or in favor of life imprisonment cannot be

      25   reached, comma, then continue the sentence, you should

                                                                    8480

       1   continue your discussions until you are fully satisfied that

       2   no further discussion will lead to a unanimous decision.

       3            THE COURT:  I think you just changed the sequence

       4   around, I don't think you have changed the meaning.

       5            MR. FITZGERALD:  What I was trying to say is that --

       6   OK.  Give me a moment.

       7            MR. RUHNKE:  Your Honor, I object to the mildly Allen

       8   nature of this instruction, that they should continue their

       9   discussions until fully satisfied that no further discussion

      10   will lead to --

      11            THE COURT:  Didn't we do this the last time?  I think

      12   we did.

      13            MR. FITZGERALD:  Not this, your Honor.  We did not

      14   have this language in the last charge.

      15            THE COURT:  No, no, no, but when the jury raised the

      16   question, we sent the response.

      17            MR. FITZGERALD:  We did, right.

      18            THE COURT:  We sent an instruction back to the jury.

      19            MR. FITZGERALD:  Let me tell you what I am trying to

      20   get at.  As I read and in the prior instruction, it seems if

      21   they are unanimously in favor of death a death sentence is

      22   returned, if not, it is life, almost as if there are two

      23   options.  What the jury should be working to is that the jury

      24   is working unanimously to find death, unanimously to find

      25   life, or they can't go either way.  The result of the

                                                                    8481

       1   deadlocked may be life, but wink we should --

       2            THE COURT:  I think I understand what you mean.  What

       3   I did say, before you reach any conclusion based on a lack of

       4   unanimity in favor of death on any count, you should continue

       5   your discussions until you are fully satisfied that no further

       6   discussion will lead to a unanimous verdict in favor of death.

       7   Mr. Cohn did object that it was in the nature of an Allen

       8   charge.

       9            MR. RUHNKE:  And, your Honor, I would reiterate that

      10   objection here, telling the jury before they have given any

      11   indication that they are not able to come to a unanimous

      12   result.  The reality is that jurors across the country are

      13   told if they fail to agree that is the decision.  Then we have

      14   the 5 to 4 Jones decision.

      15            MR. FITZGERALD:  Your Honor, what I would say is,

      16   3593(e) says the jury shall recommend whether the defendant

      17   shall be sentenced to death or life imprisonment.  If they

      18   cannot recommend, we know what the result is but that is not a

      19   recommendation.  I think we should make clear, if they should

      20   come to the decision that there are 6-6 for death or life and

      21   there is no way they would ever vote for death, they should

      22   still work, because if they come to life unanimously that is a

      23   different result and it is an important difference.  They

      24   should understand that they should try to come to a unanimous

      25   decision either way, and if they give up, they give up, and we

                                                                    8482

       1   know what the result is.

       2            THE COURT:  I think we should consider what

       3   experience this jury has already had.

       4            MR. FITZGERALD:  Your Honor, when I cited 3593(e), I

       5   should have cited the language that says the jury by unanimous

       6   vote shall recommend, and then it continues, life or death.

       7   The only point, I think my language suggested may not have

       8   been the best language.  I just think we ought to change the

       9   phrase to say before you decide that you could not be

      10   unanimous either way, you should continue your discussions

      11   until you are fully satisfied.

      12            THE COURT:  I am looking at the change we made to the

      13   special verdict form and whether we shouldn't use some of this

      14   language here.

      15            MR. RUHNKE:  Your Honor, could I make a comment?

      16            THE COURT:  Yes.

      17            MR. RUHNKE:  Your Honor before made reference to

      18   balancing and completeness.  I make a plea for consistency.

      19            THE COURT:  Yes.

      20            MR. RUHNKE:  What you said earlier was, this jury has

      21   the instructions from the prior penalty phase with them.

      22   Presumably that includes the instruction that you just read

      23   that had been given to the Al-'Owhali jury during the penalty

      24   phase.  Why should you change that?

      25            THE COURT:  Do you want that language?

                                                                    8483

       1            MR. RUHNKE:  Why should you tell them something is

       2   different now?

       3            THE COURT:  Do you want that language?

       4            MR. RUHNKE:  Yes, your Honor.

       5            THE COURT:  That language was, before you reach any

       6   conclusion based on lack of unanimity in favor of death on any

       7   count, you should continue discussions until you are fully

       8   satisfied that no further discussion will lead to a unanimous

       9   verdict in favor of death.  You prefer that language?

      10            MR. RUHNKE:  I prefer that language because it does

      11   not carry the second prong of Mr. Fitzgerald's argument, which

      12   is that they should strive until they reach a unanimous

      13   verdict.  To require them to try to get to 12 on the issue is

      14   absurd and is without distinction.

      15            THE COURT:  One thing that I think we ought to do in

      16   any event is to make the change that we made in the last

      17   paragraph of the special verdict form, page 17.  In other

      18   words, it should read, before you reach any conclusion based

      19   on a lack of unanimity, either in favor of a death sentence or

      20   in favor of a life sentence, on any count -- are you with me?

      21   And the second sentence of that paragraph should read,

      22   balancing process leads you to a conclusion of a sentence of

      23   death or life.  So that it applies equally.  It applies to a

      24   lack of unanimity in favor of life.

      25            MR. RUHNKE:  Which is now inconsistent with what they

                                                                    8484

       1   were told earlier.

       2            THE COURT:  I don't know why you are enamored of the

       3   language that I gave, which I thought was stronger.

       4            MR. RUHNKE:  I am not enamored of it.  I would rather

       5   not have an instruction that they should strive to reach one

       6   result or another.  However, what your earlier instruction did

       7   was to tell the jury basically, if you can't get to a

       8   unanimous verdict of death after trying for a while and trying

       9   sincerely, let us know that, and the result will be that I

      10   will sentence Mr. Al-'Owhali to life without possibility of

      11   release, and I am seeking a parallel, consistent instruction

      12   in this case.  Every time we change something -- this is a

      13   smart jury.  They notice things.  Your Honor has remarked on

      14   that repeatedly.  To send a message that there are some

      15   different rules in this case than there were in

      16   Mr. Al-'Owhali's case, now I am going to ask you to try to be

      17   unanimous for life or death before you tell me that you are

      18   unable to do so, I am asking for an instruction consistent

      19   with the earlier instruction.

      20            THE COURT:  Tell me again what you want.

      21            MR. RUHNKE:  What your Honor instructed them

      22   previously.  I don't have the language in front of me.

      23            THE COURT:  Let me read it again.  Let me read it in

      24   its entirety.

      25            MR. RUHNKE:  That's the language, your Honor.

                                                                    8485

       1            THE COURT:  Before you reach any conclusion based on

       2   a lack of unanimity in favor of death on any count, you should

       3   continue your discussions until you are fully satisfied that

       4   no further discussion will lead to a unanimous verdict in

       5   favor of death.  This language would now be, before you reach

       6   any conclusion based on lack of unanimity either in favor of

       7   the death sentence or in favor of a life sentence on any

       8   count, you should continue your discussions until you are

       9   fully satisfied that no further discussion will lead to a

      10   unanimous decision.  If you are satisfied that you cannot

      11   reach a unanimous decision in favor of a life or death

      12   sentence on any count, please so indicate.

      13            MR. RUHNKE:  The difference is, and I don't know why

      14   I am not making myself clear, and I apologize if I am not

      15   making myself clear, is that it is different to say -- first

      16   of all, it is obviously different, period.  Just as a matter

      17   of words and grammar, it is different.  And operatively, what

      18   you told the jury was, if you can't be unanimous for death,

      19   please report that fact to us and I will impose a life

      20   verdict.

      21            My first point is, we should not be telling them

      22   anything differently than we did the last time around.  They

      23   are a smart jury, they notice differences, and they may decide

      24   that there are different rules in this case from the last

      25   case.  They will have in the jury room likely the notes that

                                                                    8486

       1   your Honor wrote back from the first stage of the proceedings.

       2            THE COURT:  In fact I don't think they do.

       3            MR. RUHNKE:  If not, I think we can certainly

       4   conclude that they were the first note from your Honor.  This

       5   is a sharp jury.

       6            THE COURT:  You don't want saying life or death?

       7            MR. RUHNKE:  That is correct, I do not want that.

       8            THE COURT:  Does the government object to the

       9   language, before you reach any conclusion based on a lack of

      10   unanimity in favor of death on any count, you should continue

      11   your discussions until you are fully satisfied that no further

      12   discussion will lead to a unanimous verdict in favor of death?

      13   If you are satisfied you cannot achieve unanimity in favor of

      14   death on any count, you should write on the bottom.

      15            MR. FITZGERALD:  I actually think we shouldn't do it,

      16   for the reasons I cited in the statute and in Jones.  There is

      17   a public interest.  The jury isn't going in to vote just for a

      18   death sentence or not a death sentence.  They vote for death

      19   or for life, and if they fail to choose between the two, they

      20   have life.  I think we should say vote for death or for life.

      21   We know what happens if it fails but the jury should go in

      22   there saying we know, and if we can't, we know the

      23   consequence.

      24            MR. RUHNKE:  If we did not follow the law in the last

      25   penalty phase, I do not think it was a serious deviation from

                                                                    8487

       1   law or a deviation from the law at all.

       2            All I am asking for is consistency that this jury not

       3   be told different things about how they go about deciding

       4   whether they are unanimous or unable to reach a unanimous

       5   decision, because we are not talking academically here.  We

       6   knew it was a divided jury --

       7            THE COURT:  But I am just comparing the words.  If we

       8   had the Elmo, we could put them together.

       9            Before you reach any conclusion based on a lack of

      10   unanimity in favor of death on any count -- that's Al-'Owhali.

      11   My proposal:  Before you reach any conclusion based on a lack

      12   of unanimity in favor of the death sentence on any count,

      13   exactly the same, right?  Al-'Owhali:  You should continue

      14   your discussions until you are fully satisfied that no

      15   continued discussion will lead to a unanimous verdict in favor

      16   of death.  Proposed:  You should continue your discussions

      17   until you are fully satisfied that no further discussion will

      18   lead to a unanimous decision.  Al-'Owhali:  If you are

      19   satisfied that you cannot achieve unanimity in favor of death

      20   on any count, you should write so at the bottom.  Proposed:

      21   If you are satisfied that you cannot reach a unanimous

      22   sentence in favor of the death sentence on any count, please

      23   so indicate.

      24            There couldn't be anything more parallel.

      25            MR. RUHNKE:  Somewhere in there there was a life or

                                                                    8488

       1   death --

       2            THE COURT:  All right.  But do you have the

       3   transcript?  Let me lend you 7316, and you will see, it is

       4   exactly parallel.  The change that I am suggesting is that the

       5   desirability for unanimity is present regardless whether the

       6   lack of unanimity is with respect to a life sentence or with

       7   respect to a death sentence.  You do not want that?

       8            MR. RUHNKE:  Do not want that, your Honor, and maybe

       9   it is a good idea for the next time we have one of these cases

      10   but not where a jury has been instructed one way another in a

      11   penalty phase.

      12            THE COURT:  I will strike the life sentence so that

      13   it will now read, in the event that you do not, underlined,

      14   unanimously find beyond a reasonable doubt that the balancing

      15   process leads you to the conclusion that a sentence of death

      16   is called for as to any of the capital counts, the court will

      17   then sentence the defendant to life imprisonment without

      18   possibility of relief.  The court has no other sentencing

      19   option.

      20            Before you reach any conclusion based on a lack of

      21   unanimity in favor of the death sentence on any count, you

      22   should continue your discussions until you are fully satisfied

      23   that no further discussion will lead to a unanimous decision.

      24   If you are satisfied you cannot reach a unanimous decision in

      25   favor of the death sentence on any count, please indicate so

                                                                    8489

       1   in the appropriate space.

       2   Q.  And a correcting change would have to be made on the

       3   verdict sheet, page 17, to conform what your Honor is telling

       4   the jury essentially back to where the language of page 17

       5   should remain the same as it appears in the typed version.

       6            MR. FITZGERALD:  Your Honor, we disagree strenuously.

       7   The public has an interest in having a unanimous verdict and I

       8   don't think we should walk away from the law on that.  We

       9   should tell the jury, you should try to get a unanimous

      10   verdict.  If you decide that you are not unanimous either way,

      11   they should report that to the court.  There is nothing wrong

      12   with doing it, but society prefers a unanimous verdict either

      13   way.

      14            THE COURT:  I think that is right.  I am going to

      15   leave the change we made on page 17, and I am going to leave

      16   the language indicating that they should seek to achieve

      17   unanimity regardless whether it is unanimity for life or for

      18   death, and you have your exceptions.

      19            Anything else?

      20            MR. FITZGERALD:  Not from the government.

      21            MR. RUHNKE:  Your Honor, would you consider the

      22   proposed instructions from the defense?

      23            THE COURT:  With respect to --

      24            MR. RUHNKE:  Number 1 we have already dealt with.

      25            THE COURT:  And the second one relates to whether or

                                                                    8490

       1   not future dangerousness constitutes physical proximity and

       2   future danger for those in physical proximity.

       3            What are the government's views on that change?

       4            MR. FITZGERALD:  I am not sure --

       5            THE COURT:  We are not page --

       6            MR. FITZGERALD:  Yes, I am sorry, I see it.  I didn't

       7   realize that was language -- forget it.  We object.  That goes

       8   to argument.  The factor is what the factor has always been,

       9   and I don't think we need to argue to the jury, have the court

      10   argue to the jury what danger is.

      11            THE COURT:  I don't think you can necessarily equate

      12   future dangerousness to physical proximity.  The government

      13   cited instances of a defendant in one institution causing the

      14   killing of inmates in another institution.  There is the case

      15   of the gang leader who was sentenced to life in solitary

      16   because there was evidence that he was masterminding murders

      17   from a cell of others with whom he was not physically

      18   proximate.

      19            MR. RUHNKE:  Your Honor, the point takes off from the

      20   language of the aggravating factor, the nonstatutory factor

      21   selected by the government, alleged by the government, which

      22   in operative language reads, poses a continuing and serious

      23   threat to the lives and safety of those with whom he will come

      24   into contact.

      25            THE COURT:  Yes.

                                                                    8491

       1            MR. RUHNKE:  I read those with whom he will come into

       2   contact to mean people he is dealing with on a direct and

       3   day-by-day basis.

       4            MR. FITZGERALD:  Your Honor, we pared down the

       5   description of the factors of before not to be duplicative and

       6   generally describe things.  If we had written in multiple

       7   factors, we could say people he would come into contact with

       8   by phone, the guards, medical staff.  We would have been

       9   punished for being verbose.  He will come into contact with

      10   people.  It is what the factor is, and I don't think we should

      11   now go back and start instructing the jury on what aspect of

      12   dangerousness they can consider or not.

      13            THE COURT:  Didn't we have language at one point

      14   which said in considering future dangerousness you had to deal

      15   with it in the context -- yes.  It is first paragraph on page

      16   12.  The nonstatutory aggravating factor of future

      17   dangerousness may only be considered by you in the context of

      18   the mandatory life sentence without the possibility of release

      19   that must be imposed by the court if Mr. Mohamed is not

      20   sentenced to death.

      21            MR. RUHNKE:  Your Honor, I am sorry.  I do not see

      22   this on page 12.

      23            THE COURT:  20.

      24            MR. RUHNKE:  Your Honor had not misspoken, I think we

      25   just misheard.  If your Honor is not inclined to charge what I

                                                                    8492

       1   have requested in my request number 2, I would add a request

       2   that you include at that point the second paragraph sentence

       3   in request number 2, which reads, moreover, in considering

       4   this issue he must consider the context of any potential for,

       5   I say physical violence, if you want to substitute future

       6   danger, including conditions of confinement that may be

       7   imposed by the United States Bureau of Prisons.

       8            THE COURT:  That's just --

       9            MR. RUHNKE:  Not at all, your Honor, not by saying a

      10   life sentence, not in the context of this case.  And any

      11   conditions of confinement that may be imposed by the United

      12   States Bureau of Prisons.  It is the conditions of

      13   confinement, not the mandatory life sentence, that acts as a

      14   hedge to future danger.

      15            MR. FITZGERALD:  And that is argument, Judge.  Shall

      16   we say consider the failures of conditions of confinement,

      17   should we say consider the fact that someone who tried to kill

      18   President Truman was later pardoned?

      19            THE COURT:  I think in the context of a life

      20   sentence.

      21            MR. RUHNKE:  I couldn't disagree more.  A life

      22   sentence is nothing more than not being allowed in society in

      23   the future.  It is the conditions of confinement that serve as

      24   a hedge against future danger.  The government is free to

      25   argue that no matter what the Bureau of Prisons does there are

                                                                    8493

       1   people who are able to present a danger to those around him.

       2   That is argument, I agree.  But we spent a good deal of time,

       3   I wouldn't have spent a good deal of time being beat up by the

       4   government over the fact of the conditions --

       5            THE COURT:  You want to add including the likely

       6   conditions of confinement?

       7            MR. RUHNKE:  Including conditions of confinement that

       8   may be imposed by the United States Bureau of Prisons.

       9            THE COURT:  That is more words than including the

      10   likely condition of confinement, but isn't that the same

      11   thing?

      12            MR. FITZGERALD:  Why should your Honor charge them on

      13   the defense argument and leave out the government argument?

      14   The point, I think, was made before.  This language was

      15   included to make the jury aware that the defendant should

      16   never see the light of day, so viewed in the context of a

      17   prison.  It is not to trot out the defendant's argument as to

      18   what it is that rebuts dangerousness and not have the

      19   government's argument in there.  I think if they view it in

      20   the context of life imprisonment, that is enough.  The rest is

      21   for Mr. Ruhnke to argue and Mr. Stern to argue and the

      22   government as well.

      23            (Continued on next page)

      24

      25

                                                                    8494

       1            THE COURT:  I'll add "including the likely conditions

       2   of confinement."  I'm won't guild the lily beyond that point.

       3            MR. RUHNKE:  Likely conditions of confinement imposed

       4   by the Bureau of Prisons.

       5            THE COURT:  Who else imposes conditions of

       6   confinement?

       7            MR. RUHNKE:  Your Honor, I would like you to say that

       8   so that the jury knows exactly what we're talking about.

       9            THE COURT:  You will have three hours, Mr. Ruhnke.

      10            MR. RUHNKE:  I won't have three hours to instruct the

      11   jury, your Honor.  And hearing it from you is different than

      12   hearing it from us.

      13            THE COURT:  All right.  3 argues -- I'm looking at

      14   page 2 of Mr. Ruhnke's request -- that the jury has to be

      15   unanimous as to each factor which leads it to conclude future

      16   dangerousness.

      17            I have a lot of problems with that, because if it

      18   would include motivation, training, propensity --

      19            MR. RUHNKE:  I don't think there is a propensity

      20   argument.

      21            THE COURT:  Having done it before maybe creates some

      22   suggestion that -- I don't think that that is appropriate and

      23   I --

      24            MR. RUHNKE:  I don't think we should blow by that

      25   argument.  This is a Constitutional argument.  It is an

                                                                    8495

       1   argument based on a requirement of unanimity as if these were

       2   elements of an offense.  It's an argument as if, for example,

       3   a jury in a continuing criminal enterprise case is required to

       4   agree on a series of narcotic transactions individually.  It

       5   is an Apprendi-type argument on unanimity on elements of the

       6   offense.

       7            THE COURT:  It's not an Apprendi argument.

       8            MR. RUHNKE:  I know your Honor disagrees.

       9            THE COURT:  I don't understand Apprendi to require

      10   that there has to be a separate special unanimous verdict with

      11   respect to each consideration which leads to a conclusion.

      12            Does the government have any views on this?

      13            MR. FITZGERALD:  Yes, your Honor.  I think there is

      14   no basis whatsoever to put that requirement there and I think

      15   the fact that we didn't multiply factors, which would have

      16   been an objection for being duplicative and trying to tip the

      17   scale by saying he's dangerous because he participated in the

      18   attack on Officer Pepe, he's dangerous because he struck

      19   officer number 1, he's dangerous because he struck officer

      20   number 2, he's dangerous because he went to the camp for nine

      21   months, he's dangerous because he went to Somalia for nine

      22   months, they would be screaming about being duplicative.  The

      23   jury has to decide his character, based upon all the

      24   information, whether he is a future danger or not.  That's all

      25   they have to decide.

                                                                    8496

       1            THE COURT:  I agree with that.

       2            MR. RUHNKE:  Your Honor, let me just conclude the

       3   argument.

       4            THE COURT:  Yes.

       5            MR. RUHNKE:  We have done very little screaming in

       6   this case.

       7            THE COURT:  Very little what?

       8            MR. RUHNKE:  I'm sorry.  I wasn't speaking loud

       9   enough.  Very little screaming in this case.

      10            THE COURT:  Screaming, okay.

      11            MR. RUHNKE:  The government is excellent at setting

      12   up straw arguments, saying we could have done this, we could

      13   done this, we could have done this, we didn't do it because

      14   they would have been yelling at us.  It actually would have

      15   been bringing legal motions, your Honor would have ruled on

      16   them, and one way or another the issue would have been

      17   resolved.

      18            In this case, for example, suppose you had a

      19   situation where ten jurors, not 12, believed that Mr. Mohamed

      20   played no role in the attack on Mr. Pepe, but 2 jurors do.

      21   Can those two jurors consider that in their overall view of

      22   whether Mr. Mohamed is a future danger?

      23            THE COURT:  Can they consider that he did not?

      24            MR. RUHNKE:  Could those two jurors who find that he

      25   did -- I'm positing --

                                                                    8497

       1            THE COURT:  Two jurors find that he participated?

       2            MR. RUHNKE:  Yes, and ten do not.

       3            THE COURT:  Ten do not.  Yes, then what?

       4            MR. RUHNKE:  It doesn't put an end to the

       5   government's arguments on why Mr. Mohamed poses a future

       6   danger.  Are those jurors now permitted, the two jurors --

       7            THE COURT:  Wait a minute.  Haven't we agreed we are

       8   going to tell the jury, unless you are unanimous that a

       9   particular statutory or non-statutory aggravating factor has

      10   been proven, you may not give any consideration to that factor

      11   in any of your further deliberations?  So unless they are

      12   unanimous --

      13            MR. RUHNKE:  Yes, your Honor.

      14            THE COURT:  -- in a finding that there is future

      15   danger, then it is out of the case.

      16            MR. RUHNKE:  And in some instances, your Honor, it's

      17   easy to have an up or down unanimous factual finding on an

      18   aggravating factor.  For example, did the conduct at issue put

      19   others at grave risk.

      20            THE COURT:  I don't think that -- don't start from

      21   that premise, because it's a totally false premise.  All of

      22   these factors involve multiple considerations.

      23            MR. RUHNKE:  I respectfully disagree.  They do not

      24   all involve multiple considerations to the degree that this

      25   particular argument has elements of multiple independent bases

                                                                    8498

       1   for getting to a final conclusion that Mr. Mohamed poses a

       2   continuing and serious threat to the lives and safety of

       3   others with whom he will come in contact.

       4            THE COURT:  I think what you are doing is saying that

       5   where there are a number of factors, all of which lead to a

       6   conclusion such as dangerousness, that there has to be a

       7   unanimity as to each one.  Now, do we list them all:  Is

       8   dangerous because he has received training; is dangerous

       9   because of what he said to the FBI about how he would do it

      10   again; is dangerous because he, et cetera, et cetera, et

      11   cetera?

      12            MR. RUHNKE:  The answer is yes.  The answer is yes.

      13   I think you have to break these out into sub-elements to avoid

      14   the possibility of jurors not all agreeing on a particularly

      15   important distinct factual allegation and yet a minority of

      16   jurors or a majority of jurors then applying that to the

      17   overall balance, just as in the drug cases, just as in the

      18   carjacking cases.

      19            THE COURT:  Yes.  And do you suggest that in those

      20   cases, that every single evidentiary fact which might lead to

      21   the conclusion that the defendant was trafficking has to be

      22   separately considered?

      23            MR. RUHNKE:  Your Honor is reducing the argument to

      24   an absurd extension.  Those cases don't say that either,

      25   although the government made those arguments in the United

                                                                    8499

       1   States Supreme Court.

       2            THE COURT:  I think instructing the jury that they

       3   must be unanimous in finding a non-statutory aggravator, and

       4   that unless they do so it is not to enter into their further

       5   consideration is all that is appropriate here, and your

       6   objection is overruled.

       7            MR. RUHNKE:  Just so my argument and the basis for

       8   the argument is clear, I urge this argument as a matter of due

       9   process Fifth Amendment, United States Constitution.

      10            THE COURT:  Very well.

      11            MR. RUHNKE:  I'm sorry, your Honor.  And the Eighth

      12   Amendment basis of a heightened reliability fact-finding

      13   process in capital cases.

      14            THE COURT:  Very well.

      15            Now, we had some discussion about the victim

      16   testimony when we were in the other courthouse and I told you

      17   that I had been toying with some language, which is a

      18   modification of paragraph 4 on page 2 of Mr. Ruhnke's letter,

      19   so that it would read, "The parties called several witnesses

      20   at this penalty phase who are either victims of the bombing in

      21   Dar es Salaam or friends or relatives of K.K. Mohamed."  And

      22   then the last sentence would be, the last line of that

      23   paragraph would be, "that that person either favors or is

      24   opposed to a sentence of death for Mr. Mohamed."

      25            MR. RUHNKE:  Your Honor, your Honor proposes to

                                                                    8500

       1   instruct the jury that they should draw an inference or should

       2   think about whether people who were called on behalf of K.K.

       3   Mohamed secretly favored the death penalty, his mother, his

       4   brother, his sisters?  That, respectfully, is absurd, your

       5   Honor.  You have taken this --

       6            THE COURT:  You think it's more absurd --

       7            MR. RUHNKE:  You have taken this argument --

       8            THE COURT:  There are a lot of absurdities.

       9            MR. RUHNKE:  I see more every day.

      10            THE COURT:  Yes.  The mother was brought from

      11   Zanzibar to ask, "How would you feel if your son was

      12   executed?" and she said, "Badly."  I mean, you know.

      13            MR. RUHNKE:  And people were brought from Zanzibar

      14   and Dar es Salaam to say, "How do you feel now that your loved

      15   one has died?" and they said "terrible."  You're right.

      16            THE COURT:  Okay.

      17            MR. RUHNKE:  It does not.  This whole process

      18   sometimes doesn't make any sense whatsoever to anyone,

      19   including me.

      20            And the argument takes off from the decision in the

      21   New Jersey Supreme Court in State v. Koskovich, and as we

      22   argued the other day, in Koskovich, in the course of vacating

      23   a death verdict, the New Jersey Supreme Court had occasion to

      24   discuss the fact that the trial court, over the objection of

      25   the state prosecutors, had allowed the defense to elicit from

                                                                    8501

       1   the mother of the victim, in essence, that she did not want

       2   the death penalty for the person who killed her son.

       3            On appeal, in the New Jersey procedures the Attorney

       4   General's Office was able to raise that issue as a cross

       5   appeal issue.  The New Jersey Supreme Court said, adhering to

       6   earlier decisions -- by way of background, New Jersey had once

       7   outlawed victim impact evidence entirely; had pegged that

       8   decision to the New Jersey State Constitution after Payne was

       9   decided.

      10            The New Jersey legislature then put a constitutional

      11   amendment before the voters of the state to overrule that

      12   decision, to amend the constitution to allow for victim impact

      13   evidence, and that's how we have victim impact evidence in New

      14   Jersey.

      15            In any event, in Koskovich the Court said, adhering

      16   now to our earlier decision saying, yes, victim impact can now

      17   come in, it can no longer be unconstitutional under our

      18   constitution, that it is wrong to elicit that kind of opinion

      19   from anyone.

      20            However, the Court said there is a natural inference

      21   that a jury might improperly draw from the fact that a victim

      22   takes the witness stand, that that person would not be here

      23   testifying unless that person wanted a death sentence for the

      24   person on trial, and that, therefore, in the future, in our

      25   state in New Jersey, trial judges in capital cases should tell

                                                                    8502

       1   juries that the fact that somebody appears who is a victim of

       2   the crime, as a victim impact witness, should not support any

       3   inference that that person wants the death sentence.  And in

       4   fact, neither side is permitted to ask that opinion and a jury

       5   should not draw that inference from the mere fact that that

       6   person appears as a witness.

       7            It's a broad summary of that holding.

       8            THE COURT:  Maybe the answer is simply to make it

       9   much shorter and say:  Because the law does not permit any

      10   witness to state whether he or she favors the death penalty,

      11   you should draw no inference either way from the fact that no

      12   witnesses have stated their views on this subject.

      13            MR. RUHNKE:  At the beginning, your Honor, it should

      14   be "either favors or opposes the death penalty."

      15            THE COURT:  Because the law does not permit any

      16   witness to state whether he or she favors or opposes the death

      17   penalty, you should draw no inference either way from the fact

      18   that no witnesses have testified as to their views on this

      19   subject.

      20            Is that innocuous enough for everybody?

      21            MR. RUHNKE:  The issue is whether favors or opposes

      22   the death penalty for the defendant on trial, not in an

      23   abstract --

      24            THE COURT:  The death penalty in this case, okay.

      25            Try it again:  Because the law does not permanent any

                                                                    8503

       1   witness to state whether he or she favors or opposes the death

       2   penalty in this case, you should draw no inference either way

       3   from the fact that no witnesses have stated their views on the

       4   subject.

       5            MR. RUHNKE:  I would ask that it be confined to

       6   victims for the reason that the New Jersey Supreme Court

       7   pointed out that when someone testifies as a victim impact

       8   evidence -- they may be wrong, and your Honor may disagree

       9   with their view of things, but the New Jersey court's view

      10   was, and the court has been administering capital punishment

      11   cases since the early 1980s and it has a great deal of

      12   experience with the victim impact evidence -- that is an

      13   inference that can be drawn; that victims would not be

      14   appearing and testifying in a penalty phase unless they

      15   favored the death sentence.

      16            THE COURT:  I think there is a limit to how --

      17            Does the government have any objection to this

      18   proposed language?  Do you want me to read it again?

      19            MR. FITZGERALD:  The court's proposed language is

      20   balanced.  It's fine.

      21            THE COURT:  All right.  Now where do we put it?

      22            MR. FITZGERALD:  We do have a witness section where

      23   you talk about credibility.

      24            We could put on it page 5 before defendant's right

      25   not to testify.

                                                                    8504

       1            MR. RUHNKE:  That's a logical place for it, your

       2   Honor.

       3            THE COURT:  All right.

       4            MR. RUHNKE:  My objection, though, stands.  I press

       5   the earlier language.

       6            THE COURT:  Yes.

       7            MR. RUHNKE:  At the risk of --

       8            THE COURT:  You notice what I have done with D and K

       9   in the mitigating -- I have left the lettering in case jurors

      10   were taking notes, and so I have left the lettering.

      11            MR. RUHNKE:  I want to say one more thing, your

      12   Honor.  At the risk of sounding like I'm asking for standing

      13   objection number one and whatever, I am pressing my argument

      14   for the language on the inference from victim testimony on the

      15   due process clause of the Fifth Amendment and also the cruel

      16   and unusual punishment clause of the Eighth Amendment and the

      17   requirement for heightened reliability of fairness in capital

      18   cases.

      19            THE COURT:  You know, it's been weeks and weeks since

      20   you reminded me it was a capital case.

      21            MR. RUHNKE:  I'm not reminding you it's a capital

      22   case.  I'm stating my objection on Constitutional grounds,

      23   which is --

      24            THE COURT:  I understand.

      25            MR. RUHNKE:  My failure to do so would not be good

                                                                    8505

       1   advocacy.

       2            THE COURT:  Anything else anyone has?

       3            MR. FITZGERALD:  No, Judge.

       4            THE COURT:  All right.  I would like to have that

       5   stipulation -- can I have that stipulation tomorrow, the

       6   stipulation that obviates the language with respect to South

       7   Africa?

       8            MR. RUHNKE:  We're working on it, your Honor.  What

       9   we plan to do is meet tomorrow.  Mr. Fitzgerald and Mr. Garcia

      10   apparently have not had the opportunity to review a lot of the

      11   stipulations.  They are going to review them.  We're going to

      12   meet tomorrow midmorning, late morning, and try to resolve all

      13   the stipulation issues that are outstanding.

      14            THE COURT:  All right.  I think we should get

      15   together at 9:00 on Monday to take up the matter which we

      16   discussed in my chambers earlier this afternoon and any

      17   matters with respect to the stipulations.  Otherwise, I think

      18   we are adjourned until 9 a.m. on Monday.

      19            MR. FITZGERALD:  Thank you, Judge.

      20            (Adjourned to July 2, 2001, at 9:00 a.m.)

      21

      22

      23

      24

      25

                                                                    8506

       1

       2                        INDEX OF EXAMINATION

       3   Witness                    D      X      RD     RX

       4   JILL MILLER.............8380

       5   SHARHIMA DALVIE.........8407

       6   RUBEYA KHAMIS MOHAMED...8416

       7   MSELLEM SHINEY MSELLEM..8421

       8   FATUMA KHAMIS MOHAMED...8425

       9   ZUHURA KHAMIS MOHAMED...8427

      10   HIDAYA RUBEYA JUMA......8429

      11                         DEFENDANT EXHIBITS

      12   Exhibit No.                                     Received

      13    KKM31 ......................................8384

      14    K.K.M. 28 ..................................8407

      15    K.K.M. CD-1 ................................8412

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

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