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

This is the transcript of Day 76 of the trial, July 10, 2001.

The transcript for Day 75 was not sent by the Court Reporter. By difference of page numbers of Day 74 and 76 it appears to consist of 2 pages.

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

                                                                    8752

       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                                           July 10, 2001
                                                   10:00 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15                            APPEARANCES

      16   MARY JO WHITE
                United States Attorney for the
      17        Southern District of New York
           BY:  PATRICK FITZGERALD
      18        MICHAEL GARCIA
                Assistant United States Attorneys
      19

      20

      21   DAVID RUHNKE
           DAVID STERN
      22        Attorneys for defendant Khalfan Khamis Mohamed

      23

      24

      25

                                                                    8753

       1            (The jury was assembled at 10:00 a.m. and

       2   deliberations resumed.)

       3            THE COURT:  Good morning.

       4            THE JURY:  Good morning.

       5            THE COURT:  Mr. Kenneally, will you take attendance,

       6   please.

       7            DEPUTY CLERK:  Ladies and gentlemen of the jury,

       8   please answer to your presence as your name is called.

       9            (July roll called; all present)

      10            DEPUTY CLERK:  Madame Forelady, has the jury reached

      11   a verdict on the Special Verdict Form?

      12            THE FORELADY:  Yes, we have.

      13            DEPUTY CLERK:  On Section I, The Gateway Factors,

      14   Part A, Question 1, your answer is?  How do you find?

      15            THE FORELADY:  The first one:  We unanimously find

      16   that this factor has been proved beyond a reasonable doubt

      17   with regard to all of the capital counts.

      18            DEPUTY CLERK:  With the continuation on Part A of

      19   Section I, Question 2.

      20            THE FORELADY:  Yes.  2, also the first one:  We

      21   unanimously find that this factor has been proved beyond a

      22   reasonable doubt with regard to all of the capital counts.

      23            DEPUTY CLERK:  Question 3 of Part A, Section I.

      24            THE FORELADY:  Question 3, also the first one:  We

      25   unanimously find that this factor has been proved beyond a

                                                                    8754

       1   reasonable doubt with regard to all the capital counts.

       2            DEPUTY CLERK:  Part A, Question 4.

       3            THE FORELADY:  Question 4, the first one also:  We

       4   unanimously find that this factor has been proved beyond a

       5   reasonable doubt with regard to all of the capital counts.

       6            DEPUTY CLERK:  Going to Section II, Statutory

       7   Aggravating Factors, Part A, what is your answer?

       8            THE FORELADY:  The first one:  We unanimously find

       9   that this factor has been proved beyond a reasonable doubt

      10   with regard to all the capital counts.

      11            DEPUTY CLERK:  Part A, Question 2.

      12            THE FORELADY:  Also the first one:  We unanimously

      13   find that this factor has been proved beyond a reasonable

      14   doubt with regard to all of the capital counts.

      15            DEPUTY CLERK:  Part A, Question 3, your answer is?

      16            THE FORELADY:  Also the first one:  We unanimously

      17   find that this factor has been proved beyond a reasonable

      18   doubt with regard to all of the capital counts.

      19            DEPUTY CLERK:  Continuing on Part A, Question 4.

      20            THE FORELADY:  Question 4, also the first one:  We

      21   unanimously find that this factor has been proved beyond a

      22   reasonable doubt with regard to all of the capital counts.

      23            DEPUTY CLERK:  Skipping Part B, we go to Section III,

      24   the Non-Statutory Aggravating Factors, Part A.

      25            THE FORELADY:  Part A is the last one:  We do not

                                                                    8755

       1   unanimously find that this factor has been proved beyond a

       2   reasonable doubt with regard to any of the capital counts.

       3            DEPUTY CLERK:  Continuing on Section III, Part B,

       4   your answer is?

       5            THE FORELADY:  Is the first one:  We unanimously find

       6   that this factor has been proved beyond a reasonable doubt

       7   with regard to all of the capital counts.

       8            DEPUTY CLERK:  Continuing Part A, Question C.

       9            THE FORELADY:  Question C is the first one:  We

      10   unanimously find that this factor has been proved beyond a

      11   reasonable doubt with regard to all of the capital counts.

      12            DEPUTY CLERK:  Section IV, the Mitigating Factors,

      13   how do you find as to A(1) through (3)?

      14            THE FORELADY:  A(1) through (3), the number of jurors

      15   is ten.

      16            DEPUTY CLERK:  Part B, the number of jurors?

      17            THE FORELADY:  B, number of jurors is 11.

      18            DEPUTY CLERK:  Part C(1) through (3)?

      19            I'm sorry.  Part C, Question C(1) through (3), number

      20   of jurors?

      21            THE FORELADY:  Number of jurors is nine.

      22            DEPUTY CLERK:  E, number of jurors you so find?

      23            THE FORELADY:  Number of jurors for E is nine.

      24            DEPUTY CLERK:  F?

      25            THE FORELADY:  Number of jurors for F is 12.

                                                                    8756

       1            DEPUTY CLERK:  G?

       2            THE FORELADY:  For G the number of jurors is zero.

       3            DEPUTY CLERK:  Continuing on Section IV, Mitigating

       4   Factors, H?

       5            THE FORELADY:  For H, number of jurors is nine.

       6            DEPUTY CLERK:  I'm sorry, nine?

       7            THE FORELADY:  Nine.

       8            DEPUTY CLERK:  Going to I.

       9            THE FORELADY:  I, the number of jurors is 12.

      10            DEPUTY CLERK:  J?

      11            THE FORELADY:  J, the number of jurors is seven.

      12            DEPUTY CLERK:  L?  That's L(1) through (3).

      13            THE FORELADY:  L(1) through (3) is ten.

      14            DEPUTY CLERK:  Madame Forelady, do you have

      15   additional mitigating factors?

      16            THE FORELADY:  Yes, there were two additional

      17   mitigating factors.  The first one is that Khalfan Mohamed's

      18   last psychological report dated March 2001 judged his

      19   potential of harm to others to be low.

      20            DEPUTY CLERK:  Continue.

      21            THE FORELADY:  And the number of jurors who so find

      22   is nine.

      23            DEPUTY CLERK:  Any further mitigating factors?

      24            THE FORELADY:  Yes.  The next one, the last one, is

      25   that life imprisonment is a harsher punishment than being put

                                                                    8757

       1   to death, and the number of jurors who so find is three.

       2            DEPUTY CLERK:  Three.

       3            Section V, Determination of Sentence.  Madame

       4   Forelady, can you please read out loud your determination of

       5   sentence?

       6            THE FORELADY:  Certainly.  It's the last one:  We,

       7   the jury, are unable to reach a unanimous verdict either in

       8   favor of a life sentence or in favor of a death sentence for

       9   any of the capital counts.  We understand that the consequence

      10   of this is that Khalfan Khamis Mohamed will be sentenced to

      11   life imprisonment without the possibility of release.

      12            THE COURT:  Ladies and gentlemen, let me summarize

      13   your findings and make sure that we have reported them

      14   correctly.

      15            With respect to the gateway factors, you have

      16   answered that you have unanimously found the gateway factors

      17   to have been proven beyond a reasonable doubt with regard to

      18   all of the capital counts, and you made a similar finding with

      19   respect to the statutory aggravating factors.

      20            With respect to the non-statutory aggravating

      21   factors, you do not unanimously find that the defendant poses

      22   a continuing and serious threat to the life and safety of

      23   others with whom he will come in contact.  You do find that

      24   the non-statutory aggravating factors B and C have been proven

      25   beyond a reasonable doubt.

                                                                    8758

       1            With respect to the mitigating factors, with respect

       2   to A, ten jurors so found; B, eleven jurors; C, nine jurors;

       3   E, nine jurors; F, twelve jurors; no jurors found as to G;

       4   nine as to H; twelve as to I; seven as to J; ten as to L.

       5            You have found as two additional mitigating factors

       6   that K.K. Mohamed's last psychological report showed that

       7   danger of harm to others was low, and nine jurors so found.

       8            THE FORELADY:  Correct.

       9            THE COURT:  And you also found as a mitigating factor

      10   that life imprisonment was a harsher punishment than death,

      11   and three jurors so found.

      12            THE FORELADY:  Yes.

      13            THE COURT:  And with respect to sentence, you are

      14   unable to reach a unanimous verdict either in favor of a life

      15   sentence or in favor of death sentence for any of the capital

      16   counts.  You understand that the consequence of this is that

      17   Khalfan Khamis Mohamed will be sentenced to life imprisonment

      18   without the possibility of release.

      19            THE FORELADY:  Correct.

      20            THE COURT:  And have each of you put your number on

      21   the last sheet, indicating that that reflects your unanimous

      22   determination; and have you completed the certification which

      23   appears as Section VI, dated and signed the special Special

      24   Verdict Form?

      25            THE FORELADY:  Yes, sir.

                                                                    8759

       1            THE COURT:  Have you also signed your real name and

       2   placed that certificate in the envelope?

       3            THE FORELADY:  Yes, sir.

       4            THE COURT:  Mr. Kenneally, will you poll the jury?

       5            DEPUTY CLERK:  Ladies and gentlemen of the jury, you

       6   have heard your verdict as it has been --

       7            JUROR NO. 7:  I'm sorry, your Honor.  I'm sorry.  I

       8   need clarification.  In the polling of the jury, are you

       9   asking us individually how we voted or if we are in agreement

      10   that this is the sentence that is being imposed?

      11            THE COURT:  The question is whether this is an

      12   accurate statement of the verdict reached by the jury.

      13            JUROR NO. 7:  Thank you.

      14            THE COURT:  You are saying no more but no less than

      15   the verdict as announced by the foreperson and as summarized

      16   by the Court is an accurate statement of the verdict rendered

      17   by the jury.

      18            Mr. Kenneally, poll the jury.

      19            (Jury polled; each juror responded in the

      20   affirmative)

      21            THE COURT:  Is there anything further that counsel

      22   requests with respect to the jury before I discharge them with

      23   the thanks of the Court?

      24            MR. FITZGERALD:  No, Judge.

      25            MR. RUHNKE:  No, your Honor.

                                                                    8760

       1            THE COURT:  Ladies and gentlemen, some parting

       2   comment seems appropriate, and I know you have had some

       3   questions that have been relayed to me through the marshal.

       4            First, let me extend my appreciation to all of those

       5   who have enabled these proceedings to move forward

       6   expeditiously and with minimal disruption.  Our thanks to the

       7   deputy marshals, the security officers, court reporters,

       8   interpreters, Mr. Kenneally.

       9            This difficult and emotionally-charged case has

      10   proceeded with no virtually no petty bickering among counsel,

      11   and it has been a rare occasion where we have had to interrupt

      12   the taking of testimony for sidebars or matters that we have

      13   not dealt with before you arrived or after you left.

      14            Above all, and on behalf of all the participants in

      15   this trial, our thanks to you, the jury.  You have been

      16   patient, conscientious and good-natured, as you devoted more

      17   than half a year to this extraordinary civic duty.  Thanks,

      18   too, to your family, your employers, your co-workers, who have

      19   also been called upon to make sacrifices.

      20            We have heard the view expressed, for a variety of

      21   reasons, a case of this type could not receive a fair trial

      22   before an American jury.  You know how wrong that view was.

      23   The amount of time, effort, and resources that have been

      24   expended to protect everyone's rights has been apparent.  No

      25   one who has carefully followed these proceedings can entertain

                                                                    8761

       1   any doubt that you have based your decisions solely on the

       2   meticulous scrutiny of the evidence and the issues.

       3            You have asked about taking material home, and I'm

       4   sorry, but, no, everything should be left in the jury room and

       5   it will all go into the shredder.

       6            One final observation, and that is with respect to

       7   talking to the media, to the press.  First, it should be clear

       8   that once you leave this courthouse, you have every right, if

       9   you wish, to contact the press and discuss what occurred in

      10   the jury room.  You also have an absolute right not to do so.

      11            The press has a right to seek you out and encourage

      12   you to discuss what went on during your deliberations.  That

      13   is the roll of the press, and I intend no criticism of them if

      14   they seek to contact you.  A free and informed press is a

      15   mainstay of our system of government.  I am not questioning

      16   that.  But if you decline to speak to the press, you are not

      17   to be badgered or called repeatedly.  If this occurs, please

      18   advise the marshal and I will take appropriate action.

      19            Having said that you have a right to seek out and to

      20   talk to the press, if you wish to do so, let me urge that you

      21   not do so, for several reasons:  The American jury system is

      22   an amazing institution, and having observed it closely as a

      23   trial judge for over 20 years, I am more and more convinced of

      24   its value and its important role in our society.

      25            One of the keystones of the jury system is the

                                                                    8762

       1   secrecy given to jury deliberations.  Every juror in this case

       2   and every juror in cases that will follow should be secure in

       3   the knowledge that the views he or she candidly expresses

       4   during jury deliberations will not be emblazoned in the print

       5   or the electronic media.

       6            Moreover, for good reason, you are an anonymous jury.

       7   We promised that we would make every reasonable effort to keep

       8   your identity secret.  Obviously, if press accounts begin to

       9   appear and other jurors, perhaps disagreeing with what was

      10   said, begin responding in the press, there is a real danger

      11   that your anonymity will be jeopardized.

      12            As I have said, please leave your notes and papers in

      13   the jury room and they will all be shredded.

      14            I don't know your names and may never see you again,

      15   but I am very appreciative of the service that you have

      16   rendered and I would like to shake your hands and wish you

      17   Godspeed.

      18            (Jury excused)

      19            THE COURT:  We will set September 19th at 10 a.m. in

      20   this courtroom for sentencing.

      21            MR. RUHNKE:  Yes, your Honor.

      22            THE COURT:  We will order a full pre-sentence report.

      23   I assume counsel wish to be present --

      24            MR. RUHNKE:  Yes.

      25            THE COURT:  -- for the interview for the pre-sentence

                                                                    8763

       1   report, and that will be noted.

       2            Is there anything else?

       3            MR. FITZGERALD:  No, Judge.  Thank you.

       4            THE COURT:  That being the case, we are adjourned

       5   until September 19th at 10 a.m.

       6            Thank you all.

       7            (Adjourned)

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