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

This is the transcript of Day 63 of the trial, June 12, 2001.

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

                                                                    7318

       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 12, 2001
                                                   9:15 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    7319

       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   FREDRICK H. COHN
           DAVID P. BAUGH
       7   LAURA GASIOROWSKI
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
       8
           DAVID STERN
       9   DAVID RUHNKE
                Attorneys for defendant Khalfan Khamis Mohamed
      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    7320

       1            (Deliberations resumed)

       2            (Time noted, 10:30 a.m.; in open court, jury not

       3   present)

       4            THE COURT:  The record will reflect that the jury

       5   arrived and began deliberations at 9:15.  The jury requests

       6   Exhibit Al-'Owhali Q.  What is that?  We have no government

       7   attorney?

       8            MS. GRANT:  We are getting them.

       9            MR. COHN:  I will hand your Honor a copy of the

      10   exhibit.

      11            (Defendant present)

      12            THE COURT:  They would also like to hear the

      13   transcript with regard to Salim as entered into evidence by

      14   Mr. Cohn on June 4.  What is that?

      15            MR. COHN:  We had a number of transcript references.

      16   We have those references for the court reporter and they are

      17   all very short extracts.  I assume the government is going to

      18   want to check them over and see for completeness sake whether

      19   they want any other part of that extract.

      20            THE COURT:  This will require bringing the jury back

      21   in.

      22            MR. COHN:  I believe it will, yes, your Honor.  I

      23   don't believe we can extract those physically from the

      24   transcript and send them back.

      25            THE COURT:  Please let me know when the government

                                                                    7321

       1   attorney arrives.

       2            MR. COHN:  Your Honor, evidently we were more

       3   prepared than ever.  We actually made extracts but I don't

       4   know whether the government will agree with them.  At least

       5   this is what we had prepared for ourselves.

       6            (Pause)

       7            (Government counsel present)

       8            THE COURT:  The question is whether these excerpts

       9   may be sent in to the jury rather than bringing the jury in

      10   and having them read.

      11            MR. COHN:  If they are all right with the government,

      12   your Honor, we will take the check marks, handwritten check

      13   marks, and white them out and make copies for the jury so they

      14   will be clean.

      15            (Pause)

      16            MR. FITZGERALD:  Your Honor, since it may take a few

      17   minutes, we can send Q in, make a copy of that.

      18            THE COURT:  Let me know when you have resolved that.

      19            (Recess)

      20            THE COURT:  I understand they are just xeroxing.

      21            MR. FITZGERALD:  Yes, and we have to make some

      22   corrections on the computer to send in.  So your Honor

      23   understands, there was one reference taken out as not

      24   referring to Abu Hajer.  Then there was one reference where

      25   three lines were taken out because they didn't make sense and

                                                                    7322

       1   one was added in.  The reason we have to type is that there

       2   were three different witnesses on the exhibit, so we want to

       3   list al-Fadl, al Ridi and Kherchtou so the jury knows whose

       4   testimony there is, and then we will be done.

       5            MR. COHN:  And the corrections can be made very

       6   quickly on our transcript.

       7            MR. FITZGERALD:  One thing for the record.  There are

       8   a few typos that may be in the transcript that don't pertain

       9   directly to Mr. Salim.  I have shown them to Mr. Cohn.  I

      10   don't think they are dispositive of the issue and I don't

      11   think we need to take up time making corrections.

      12            THE COURT:  I have distributed a schedule for the

      13   remaining proceedings.  If there are any problems let me know.

      14   The most significant change is that assuming that the verdict

      15   is sometime this week, we will start K.K. Mohamed on Tuesday,

      16   allowing Monday for us to take up the various matters listed

      17   there.

      18            MR. FITZGERALD:  The only thing I should alert you

      19   to, Mr. Ruhnke was here earlier and I had a discussion with

      20   him.  We did not know if it was possible to have any of

      21   Monday's proceedings later this week, the issues on

      22   aggravating and mitigating factors resolved later this week,

      23   because it may affect openings and the rest of the case.

      24            THE COURT:  That was the reason for providing Monday

      25   to deal with these matters rather than starting K.K. Mohamed

                                                                    7323

       1   on Monday.

       2            MR. FITZGERALD:  Yes, Judge.  I think Mr. Ruhnke and

       3   I had the thought that if any of these were resolved earlier

       4   than the weekend, the parties could adjust over the weekend

       5   any witnesses not being called and the case getting longer or

       6   shorter.  I didn't know if the court was available.

       7            THE COURT:  I am trying to accommodate -- the

       8   judicial conference is on Friday, Thursday afternoon and

       9   Friday, and I would like to attend that.  We can play it by

      10   ear as the week goes on.  I also thought that this verdict

      11   might impact on the next proceeding and there would be some

      12   advantage in giving counsel an opportunity to consider fully

      13   the implications of this verdict before beginning the KKM

      14   matter.

      15            MR. FITZGERALD:  I will discuss the matter further

      16   with Mr. Ruhnke and advise him of the schedule and the

      17   schedule of the judicial conference.

      18            MR. COHN:  Your Honor, may I ask you a mundane

      19   question about the judicial conference that need not be on the

      20   record?

      21            THE COURT:  Your question relates to the fact that

      22   the schedule calls for the jury to be deliberating on Friday.

      23            (Recess)

      24            (Time noted, 11:15)

      25            THE COURT:  A note from the jury reads as follows:

                                                                    7324

       1   "Judge Sand, an unusual request by the jury.  Can you give us

       2   the proper wording of the oath we took as jurors, particularly

       3   with regard to the penalty phase of this trial.  Thank you.

       4   PS.  A note to this effect would be fine."

       5            MR. COHN:  Before you send for it, Judge, is it

       6   really proper to do that?  I am thinking out loud.  I have

       7   never heard such a request and it sounds to me like somebody

       8   saying you're not following your oath and then we have an

       9   interpretation in the jury what it means.  I don't think that

      10   is appropriate.  They took an oath to follow the law.

      11            MR. FITZGERALD:  If they are asking what the oath is

      12   they are to follow, I think it would be derelict not to give

      13   that to them.

      14            THE COURT:  The fact that the reporter as a matter of

      15   judicial practice doesn't record it doesn't negate the fact

      16   that it is something that they are told in open court.

      17            MR. COHN:  I am not relying on the absence of a

      18   transcript to say that you can't give it.

      19            THE COURT:  Mr. Kenneally, what is the oath that you

      20   gave to the panel?

      21            THE CLERK:  You and each of you do solemnly swear

      22   that you will well and truly try this issue now on trial and a

      23   true verdict give according to the law and the evidence, so

      24   help you God.

      25            THE COURT:  There is no specific reference to the

                                                                    7325

       1   penalty.

       2            MR. FITZGERALD:  I think what they may be referring

       3   to may be in the questionnaire as to discussion on what they

       4   would have to do, but there was no oath in the questionnaire.

       5            THE COURT:  Let me draft something.  In the meantime,

       6   I take it the other materials are still being prepared.

       7            MR. FITZGERALD:  Yes.

       8            (Pause)

       9            THE COURT:  I propose the following:  Ladies and

      10   gentlemen.  The oath administered to the jury was:  You and

      11   each of you do solemnly swear that you will well and truly try

      12   this issue now on trial and a true verdict give according to

      13   the law and the evidence, so help you God.  There was no

      14   separate oath in connection with the penalty phase but the

      15   oath taken before the guilt phase remains applicable.

      16            MR. BAUGH:  I think you should also make reference to

      17   the fact that all they need follow is the previously given

      18   instructions.

      19            THE COURT:  I don't think there is any need to gild

      20   the lily.  I think this answers their question.  Any

      21   objection?

      22            MR. FITZGERALD:  No, Judge.

      23            MR. BAUGH:  Your Honor, we would object.  I don't

      24   believe it is complete.  It seems to convey to the jury

      25   that -- because the appropriate language is contained in this

                                                                    7326

       1   instruction, whether or not death is appropriate doesn't have

       2   the usual standard that other legal issues have.

       3            THE COURT:  Are you talking about burden of proof,

       4   unanimity, things of that sort?

       5            MR. BAUGH:  Yes, your Honor.

       6            THE COURT:  But that is not their question.  Their

       7   question relates solely to the oath.  If this doesn't answer

       8   the question, this jury has shown that it will not hesitate to

       9   ask another question.

      10            MR. COHN:  Your Honor, the problem I have with it is,

      11   it seems clear to me, as much as anything seems clear to me in

      12   this proceeding so far, that they believe that in the jury

      13   room somebody is saying, one juror is saying to another juror

      14   you're not following your oath.

      15            THE COURT:  We shouldn't assume one juror.

      16            MR. COHN:  I should say at least one juror.  It may

      17   be 11 jurors saying that to one or one juror saying that to

      18   11.  We don't have a clue.  But at least that is going on.

      19   What you are doing, your Honor, is, you are sending them back

      20   the oath without any explanation that they should not be

      21   interpreting the oath.  The oath is the oath.  They are now

      22   going to be in there talking about what this oath means in the

      23   context of the case, and it seems to me that following that

      24   oath is a very personal thing that is not subject to broad

      25   rules because it says you should follow the law and the facts.

                                                                    7327

       1   You have sent back all sorts of notes talking about how they

       2   follow the law and the facts.

       3            THE COURT:  What would you propose as the answer?

       4            MR. COHN:  I suppose I would say, if I had to send it

       5   back, that the interpretation of that oath is a personal

       6   matter.

       7            THE COURT:  Yes, but they don't know what the oath

       8   is.  That's what they are asking.  They are obviously under

       9   the impression that there is some specific reference to a

      10   penalty phase in the oath.  So your proposals are simply not

      11   responsive.

      12            MR. COHN:  Perhaps.

      13            THE COURT:  And to say that they should disregard the

      14   oath is --

      15            MR. COHN:  I am not saying that at all.  I am just

      16   saying that they should not each be interpreting the oath or

      17   the law for each other.  It is a matter of personal

      18   interpretation how they do it.  What I am trying to avoid,

      19   Judge, is their using the specific language as a club against

      20   some recalcitrant juror.  I think that is a problem that has

      21   announced itself.

      22            THE COURT:  I think they have asked a simple factual

      23   question as to what was the oath and we should give them the

      24   simple factual answer, and that with respect to the penalty

      25   phase we ought to indicate, as I have, that there was no

                                                                    7328

       1   separate oath but that this oath that they took at the

       2   beginning of the guilt trial continues in force.  The

       3   objections are overruled.

       4            MR. COHN:  On the other note, your Honor, we are just

       5   giving the government our corrections to check.

       6            (Recess)

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    7329

       1                         AFTERNOON SESSION

       2                             2:30 p.m.

       3            THE COURT:  The note from the jury reads:  "The jury

       4   has reached a verdict with regard to Al-'Owhali in the penalty

       5   phase."

       6            (Jury present)

       7            THE COURT:  Ladies and gentlemen, your note says that

       8   you have reached a verdict.  Mr. Kenneally, would you take the

       9   attendance of the jury, please.

      10            THE CLERK:  Ladies and gentlemen of the jury, please

      11   answer to your presence as your number is called.

      12            (Roll called; all present)

      13            THE CLERK:  Madam forelady, has the jury reached a

      14   verdict on the penalty phase of the special verdict form?

      15            THE FOREPERSON:  Yes, we have.

      16            THE CLERK:  Section 1, gateway factors.  How have you

      17   found on question 1?

      18            THE FOREPERSON:  On question 1, we find the first

      19   one.  We unanimously find that this factor has been proved

      20   beyond a reasonable doubt with regard to all of the capital

      21   counts.

      22            THE CLERK:  How have you found on question 2?

      23            THE FOREPERSON:  Question 2, also the first one.  We

      24   unanimously find that this factor has been proved beyond a

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

                                                                    7330

       1            THE CLERK:  How have you found as to question 3?

       2            THE FOREPERSON:  Question 3, also the first one.  We

       3   unanimously find that this factor has been proved beyond a

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

       5            THE CLERK:  How have you found on question 4?

       6            THE FOREPERSON:  On question 4 also the first one.

       7   We unanimously find that this factor has been proved beyond a

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

       9            THE CLERK:  Section 2, statutory aggravating factors.

      10   Madam forelady, how have you found on question, part A,

      11   question 1?

      12            THE FOREPERSON:  Part A, question 1, we find the

      13   first one.  We unanimously find that this factor has been

      14   proved beyond a reasonable doubt with regard to all of the

      15   capital counts.

      16            THE CLERK:  Part A, question 2 of section 2, how have

      17   you found?

      18            THE FOREPERSON:  On question 2, again the first one,

      19   we unanimously find that this factor has been proved beyond a

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

      21            THE CLERK:  Part A of section 2, question 3, how have

      22   you found?

      23            THE FOREPERSON:  Question 3, again, it's the first

      24   one.  We unanimously find that this factor has been proved

      25   beyond a reasonable doubt with regard to all of the capital

                                                                    7331

       1   counts.

       2            THE CLERK:  Question 4 of part A, section 2, how have

       3   you found?

       4            THE FOREPERSON:  On question 4 it is again the first

       5   one.  We unanimously find that this factor has been proved

       6   beyond a reasonable doubt with regard to all of the capital

       7   counts.

       8            THE CLERK:  Section 3, nonstatutory aggravating

       9   factors.  Part A of section 3?

      10            THE FOREPERSON:  Part A of section 3, it is the last

      11   one.  We do not unanimously find that this factor has been

      12   proved beyond a reasonable doubt with regard to any of the

      13   capital counts.

      14            THE CLERK:  Continuing on section 3, part B?

      15            THE FOREPERSON:  Part B, it's the first one.  We

      16   unanimously find that this factor has been proved beyond a

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

      18            THE CLERK:  Continuing on section 3, part C?

      19            THE FOREPERSON:  Part C it's again the first one.  We

      20   unanimously find that this factor has been proved beyond a

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

      22            THE CLERK:  Section 4, the mitigating factors.  How

      23   have you found on question A?

      24            THE FOREPERSON:  On question A, number of jurors who

      25   so find is 8.

                                                                    7332

       1            THE CLERK:  On B?

       2            THE FOREPERSON:  The number of jurors who so find is

       3   zero.

       4            THE CLERK:  On C?

       5            THE FOREPERSON:  On C, the number of jurors who so

       6   find is zero.

       7            THE CLERK:  On D?

       8            THE FOREPERSON:  On D, the number of jurors who so

       9   find is zero.

      10            THE CLERK:  And on E, 1, 2 and 3?  How do you answer?

      11            THE FOREPERSON:  E 1, 2 and 3 total, we find, number

      12   of jurors who find is 10.

      13            THE CLERK:  How do you answer on F?

      14            THE FOREPERSON:  On F, the number of jurors who so

      15   find is zero.

      16            THE CLERK:  On G?  Number of jurors?

      17            THE FOREPERSON:  Number of jurors on G is five.

      18            THE CLERK:  Are there any other mitigating factors?

      19            THE FOREPERSON:  Yes, there are five.

      20            THE CLERK:  Proceed.

      21            THE FOREPERSON:  The first one is that executing

      22   Al-'Owhali could make him a martyr for Al Qaeda's cause and

      23   the number of jurors who so find is 10.

      24            THE COURT:  Would make him a martyr --

      25            THE FOREPERSON:  -- for Al Qaeda's cause.

                                                                    7333

       1            THE COURT:  Next one?

       2            THE FOREPERSON:  The next mitigating factor is that

       3   executing Al-'Owhali may not necessarily alleviate the

       4   victims' or victims' families' suffering, and the number of

       5   jurors who so find is nine.

       6            THE CLERK:  Proceed.

       7            THE FOREPERSON:  The next one is that lethal

       8   injection is very humane and the defendant will not suffer.

       9   The number of jurors who so find is four.

      10            The next one is that life in prison is a greater

      11   punishment since his freedom is severely curtailed and the

      12   number of jurors who so find is five.

      13            And the last one is that Al-'Owhali was raised in a

      14   completely different culture, society and belief system, and

      15   the number of jurors who so find is four.

      16            THE CLERK:  Anything further on the mitigating?

      17            THE FOREPERSON:  That's it as far as mitigating

      18   factors.

      19            THE CLERK:  Going to section 5, determination of

      20   sentence.  How have you found, and please read out loud your

      21   jury determination.

      22            THE FOREPERSON:  We the jury do not unanimously find

      23   that the death sentence is appropriate.  We understand that

      24   the consequence of this is that Al-'Owhali will be sentenced

      25   to life imprisonment without the possibility of release.

                                                                    7334

       1            THE COURT:  Madam forelady, have the jurors signed

       2   their numbers at the bottom of page 16?

       3            THE FOREPERSON:  Yes, they have.

       4            THE COURT:  Has each juror signed his name on a

       5   separate certification and put it in a sealed envelope?

       6            THE FOREPERSON:  Yes, they have.

       7            THE COURT:  I have one question.  With respect to

       8   some of the mitigators, you have answered zero, that the

       9   defendant does not have a prior history of criminal conduct.

      10   Did you mean zero or did you mean 12?  Do you mean that all of

      11   the jurors so find or that none of the jurors so find?

      12            THE FOREPERSON:  None of the jurors find that he did

      13   not have a prior history of criminal --

      14            JUROR:  That it's not a mitigator.

      15            THE COURT:  Not a mitigator?

      16            THE FOREPERSON:  Correct.

      17            THE COURT:  Listen, ladies and gentlemen, to your

      18   verdict.  Your verdict is that with respect to the four

      19   gateway factors, you have found that each of the four gateway

      20   factors have been proven.  With respect to the statutory

      21   aggravating factors, you find that all of them have been

      22   proven.  With respect to the nonstatutory aggravating factors,

      23   you do not unanimously find that the defendant poses a

      24   continuing and serious threat.  And you otherwise find that

      25   all of the other nonstatutory aggravating factors have been

                                                                    7335

       1   proven.

       2            With respect to mitigating factors, you find eight as

       3   to A.  How did you find as to B?

       4            THE FOREPERSON:  Zero.

       5            THE CLERK:  And as to C zero?

       6            THE FOREPERSON:  Zero.

       7            THE COURT:  And as to D zero.  As to E 10.  As to F

       8   zero.  As to G five.

       9            THE FOREPERSON:  Correct.

      10            THE COURT:  You have also found the following other

      11   mitigating factors which I will summarize:  10, that executing

      12   Al-'Owhali would make him a martyr; that executing Al-'Owhali

      13   would not necessarily alleviate the suffering of the victims,

      14   and nine so found; that lethal injection is very humane and

      15   the defendant will not suffer, four so found; that life

      16   imprisonment is a greater punishment than a death sentence,

      17   five so found; and that Al-'Owhali was raised in a completely

      18   different culture and belief system, and four so found.  And

      19   with respect to the determination of the sentence you found

      20   that you do not unanimously find that death is an appropriate

      21   sentence, with a consequence that the sentence to be imposed

      22   will be life imprisonment.

      23            THE FOREPERSON:  Correct.

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

      25            THE CLERK:  Ladies and gentlemen of the jury, you

                                                                    7336

       1   have heard your verdict as it has been recorded.

       2            (Jury polled; each answered in the affirmative)

       3            THE COURT:  Is there anything further of the jury

       4   before I excuse them with the thanks of the court and the

       5   parties?

       6            MR. COHN:  No, your Honor.

       7            MR. FITZGERALD:  No, your Honor.

       8            THE COURT:  Ladies and gentlemen, again I want to

       9   thank you for your conscientious discharge of your duties as

      10   jurors.  I promised you that we would try to give you a little

      11   rest.  We are going to adjourn now until Tuesday, the 19th, at

      12   which time the alternates will join us again, we hope, and we

      13   will then proceed with the penalty phase with respect to the

      14   defendant K.K. Mohamed.

      15            Just a few reminders.  You are still under a duty, so

      16   I ask that you not read or listen to or discuss with anyone

      17   anything with respect to this case.  If anyone should contact

      18   you or seek to engage in any discussions with you, simply walk

      19   away, and if they are persistent, just notify the marshal in

      20   control.

      21            Madam forelady, have you dated and signed the special

      22   verdict form?

      23            THE FOREPERSON:  Yes, we have.

      24            THE COURT:  Mr. Kenneally, would you pick that up and

      25   would you pick up the certificates.

                                                                    7337

       1            I told you when you last rendered a verdict that it

       2   is the tradition in the court that the judge not express any

       3   views with respect to the verdict and I will adhere to that

       4   tradition.  But again, I do thank you for your very

       5   conscientious performance as jurors.  Have a good rest, and we

       6   will see you on Tuesday morning.

       7            (3:00 p.m., jury discharged)

       8            THE COURT:  The court sets September 12 at 10:30 a.m.

       9   for sentencing and the court directs that the Probation

      10   Department prepare a presentence report with respect to all of

      11   the counts in the indictment.

      12            Is there anything further with respect to the penalty

      13   phase and defendant Al-'Owhali?

      14            MR. BAUGH:  As to the defendant Al-'Owhali, the

      15   defendant would request his counsel be present during any

      16   interview with probation.

      17            THE COURT:  Very well, a notation will be made to

      18   that effect.  Anything further?

      19            MR. FITZGERALD:  No.

      20            MR. COHN:  No.

      21            THE COURT:  There is a request that the excerpts from

      22   the trial transcript concerning Salim be made a part of the

      23   record, and it is designated Court Exhibit A of today's date

      24   and made part of the record.

      25            We will take a five-minute recess and then we will

                                                                    7338

       1   deal with matters relating to the K.K. Mohamed penalty phase.

       2            (Recess)

       3            (Counsel for the government and defendant Mohamed

       4   present; defendant not present)

       5            THE COURT:  I am sure that the verdict form gives

       6   everybody a great deal to think about in terms of the next

       7   phase of the case.

       8            We scheduled this time for argument with respect to

       9   South Africa.  Mr. Ruhnke, do you wish to be heard on that

      10   subject, the impact of this case of the decision by the

      11   highest court of South Africa?

      12            MR. RUHNKE:  Your Honor, I have no desire to be heard

      13   beyond what I have filed in my papers.  If your Honor has

      14   questions, I will do my best to reply to them.  But I think

      15   both parties have made their positions clear on the papers.

      16            THE COURT:  Is there anything the government wishes

      17   to add to its submissions?

      18            MR. FITZGERALD:  Your Honor, we would also entertain

      19   questions from the court.  It is our view in response to Mr.

      20   Ruhnke's papers that the international covenants cited do not

      21   control, that Alvarez-Machain gives the court jurisdiction

      22   over the defendant, that there is no legal bar to proceeding

      23   with the capital phase, and that when it comes to the

      24   statutory or the possible mitigating factor, that the fact

      25   that K.K. Mohamed is not barred from facing the death penalty

                                                                    7339

       1   is a happenstance not having to do with his character, his

       2   motivation or the way the crime was carried out, and is

       3   therefore not an appropriate mitigating factor before the

       4   jury.

       5            THE COURT:  There are two aspects to this.  One is

       6   whether this court has jurisdiction with respect to K.K.

       7   Mohamed and whether there is any basis for it not to exercise

       8   that jurisdiction.  The court concludes that it has

       9   jurisdiction and that there is no basis upon which the court

      10   should not exercise that jurisdiction.  I have tremendous

      11   respect for the Constitutional Court of South Africa.  It is a

      12   very distinguished court and it has among its members some

      13   outstanding lawyers, jurists, and the matter is of sufficient

      14   importance so that I will deal with it in a formal opinion

      15   which I will file in due course.  The substance of it, of

      16   course, is that insofar as the decision of the Constitutional

      17   Court of South Africa is addressed to matters of diplomacy, of

      18   foreign policy, of exercise of executive discretion, those are

      19   matters to be addressed by branches of the government other

      20   than this court.  This court is not free to exercise an

      21   independent judgment as to the appropriateness of seeking the

      22   death penalty under these circumstances.  The decision of the

      23   Constitutional Court of South Africa is of course the

      24   definitive statement of South African law, but with respect to

      25   the law to be applied in this case, by this court, those are

                                                                    7340

       1   matters of American law, and I of course have to look to the

       2   decisions of the Supreme Court, and I will do so.

       3            Of course, the law is clear that the manner in which

       4   the defendant is brought before the jurisdiction of the court

       5   does not affect the court's jurisdiction.

       6            The argument is made that those decisions were

       7   rendered in cases other than capital cases and that the law

       8   should be different when capital issues are presented in the

       9   case.  I find no authority for that, and as a matter of first

      10   impression I do not find that argument persuasive.

      11            I am advised that the Constitutional Court of South

      12   Africa, in addition to serving this court with a copy of this

      13   decision, caused a copy to be served on the chief judge of

      14   this court and that he has been assured by the United States

      15   Attorney that the decision has or will be brought to the

      16   attention of the appropriate parties in the Attorney General's

      17   office and in the Department of State.

      18            The matter then which does require an immediate

      19   definitive answer is the extent to which the decision of the

      20   Constitutional Court of South Africa is something which can be

      21   brought to the attention of the jury in the penalty phase

      22   concerning K.K. Mohamed.  I am aware that the government takes

      23   a position, as it just stated, that the circumstances

      24   concerning the Constitutional Court of South Africa do not

      25   relate to anything relevant to the background of the defendant

                                                                    7341

       1   or circumstances concerning the commission of the crime.

       2            Counsel for K.K. Mohamed argues that there is another

       3   broader concept, and that is to be assured that the imposition

       4   of the death sentence is not arbitrary or random.  In

       5   addressing that, I thought it would be helpful to put down on

       6   paper some thoughts I had as to what the jury might be told at

       7   the conclusion of the evidentiary presentation and work

       8   backwards from that.  I thought something along these lines

       9   might be appropriate:

      10            With respect to the question whether equally culpable

      11   defendants extradited from foreign countries will or will not

      12   be subject to the death penalty, you are advised that this

      13   decision turns on the law of the country in which the

      14   defendant is first arrested.  For example, England and Germany

      15   and many other countries which do not themselves have the

      16   death penalty will not extradite anyone to the United States

      17   unless the United States agrees that it will not seek to

      18   impose the death penalty.  The United States has agreed with

      19   respect to certain defendants relevant to this case not to

      20   seek the death penalty in order to obtain their extradition.

      21            The evidence discloses that K.K. Mohamed left

      22   Tanzania, which does have the death penalty, and went to South

      23   Africa, which does not have the death penalty.  The procedures

      24   which led to K.K. Mohamed's being brought to the United States

      25   at his request rather than being returned to Tanzania, the

                                                                    7342

       1   other option, the South African authorities did not seek to

       2   obtain American agreement not to seek the death penalty, and,

       3   as you know, the United States thereafter decided to seek such

       4   a penalty.

       5            In a decision rendered the day before your guilt

       6   verdict, the highest court of South Africa overruled an

       7   earlier decision of a lower South African court and held that

       8   as a matter of South African law it was improper for the South

       9   African immigration authorities not to seek an agreement from

      10   the United States not to seek the death penalty.

      11            K.K. Mohamed argues that you should consider this

      12   circumstance as a mitigating factor because it demonstrates

      13   that but for the timing of the South African court's

      14   decisions, he would not now be subject to the death penalty.

      15   You may consider this circumstance in determining whether the

      16   application of the death penalty to K.K. Mohamed would be, as

      17   he contends, arbitrary or random, and whether other equally

      18   culpable defendants are not subject to the death penalty

      19   because of the normal practices with regard to extradition.

      20   You may not consider this circumstance for any other purpose.

      21            What I mean by the last sentence is that I do not

      22   think it would be appropriate, for example, to submit the

      23   South African court's decision as an exhibit for the jury.

      24   Nor do I believe that the issue of America's role vis a vis

      25   the South African authorities is an appropriate issue.  What I

                                                                    7343

       1   would envision would be a simple stipulation giving the

       2   relevant dates and the court holdings, and permit the listing

       3   of this consideration as a separate mitigator, closely allied

       4   to the statutory mitigator with respect to others equally

       5   culpable not being subject to the death penalty.

       6            That would be my proposal with respect to utilization

       7   of this issue at the penalty phase.  Anyone?

       8            MR. FITZGERALD:  Yes, your Honor.  I would object on

       9   the following grounds.  First of all, I understand the

      10   argument to be an argument that we do not want the death

      11   penalty imposed arbitrarily, and my argument would be that if

      12   before K.K. Mohamed would be sentenced to the death penalty

      13   the jury would obviously have to do what they already did,

      14   which is find a capital crime and find all the circumstances

      15   justified, the fact that he was almost relieved of the death

      16   penalty by a foreign nation's laws is an arbitrary absolution

      17   or immunity from facing the death penalty.  The death penalty

      18   would be imposed because of his conduct in committing murder,

      19   committing a capital offense under circumstances that a jury

      20   would have to find unanimously justified the death sentence.

      21   That would not be arbitrary.  The fact that he almost avoided

      22   the death penalty because of the law of a country I think

      23   doesn't mean that facing the death penalty is arbitrary.

      24            If I might point this out, there are a lot of other

      25   factors that could have been different, and if we are going to

                                                                    7344

       1   tell the jury if the law had been different at that time he

       2   would not face the death penalty, we could also tell the jury

       3   that if Officer Pepe had not fought back as strongly as he

       4   did, if Officer Pepe, who came very close to losing his life

       5   had died, he would be facing the death penalty in that charge

       6   as well.  In fact, if that charge had become the murder of

       7   Pepe, the South African decision would be irrelevant.

       8            I think if we are going to look at the facts and

       9   circumstances of how things could have been different, then we

      10   should tell the jury that.  If it could have been different if

      11   the South African law was different, it could have been

      12   different if Officer Pepe had died.

      13            THE COURT:  The question of the conduct in the

      14   commission of the crime is really not the issue here, and the

      15   fact that other defendants are not subject to the death

      16   penalty because of the terms of their extradition doesn't turn

      17   on the nature of their conduct as contrasted to the conduct of

      18   K.K. Mohamed.  When the court talks about the need to avoid

      19   arbitrary, random or accidental imposition of the death

      20   penalty, obviously the context in which those terms are used

      21   is a context in which people are identified for the death

      22   penalty because of race or ethnicity of either the perpetrator

      23   or the victim.  But it seems to me that it is simply another

      24   aspect of the fact that the selection of who is subject to the

      25   death penalty and who is not subject to the death penalty is

                                                                    7345

       1   to some extent a decision which is made independently of any

       2   evaluation as to culpability.

       3            MR. RUHNKE:  May I just weigh in for a minute, your

       4   Honor?  I understand the government's position to be, or about

       5   to be, people like Salim are not facing the death penalty

       6   really and therefore this doesn't apply.  There is the

       7   argument that at least two of the people in London possibly

       8   face the death penalty.

       9            I don't accept as a matter of law that Salim could

      10   not have faced the death penalty.  It is a charging decision

      11   and the government has to make their charging decisions

      12   however they make them.  Under the government's view of who

      13   can face the death penalty, in very narrow interpretation of

      14   the gateway factors, obviously Usama Bin Laden does not face

      15   the death penalty because he was simply the head of an

      16   organization.  Salim was a member of the council that passed

      17   on matters like this.

      18            What I do want to do is offer one plain simple

      19   example, and that is the example of the defendant who was

      20   recently arrested in France for killing an abortion doctor,

      21   someone the government devoutly wanted to seek the death

      22   penalty against but now cannot simply because France will not

      23   extradite without such an assurance.  Salim is a muddy example

      24   because I think a cogent and accurate argument can be made

      25   that he does face the death penalty if the government wanted

                                                                    7346

       1   to so charge him.

       2            THE COURT:  That is really a different issue, and

       3   with respect to that issue as to the government's narrow

       4   definition of who is equally culpable, which answers that

       5   question in terms of the government's charging decisions, I

       6   agree with the courts that say the question of equal

       7   culpability is really a question that the jury will determine,

       8   this jury having heard of the roles played by some of the

       9   other defendants.

      10            Do you have any objection, Mr. Ruhnke, to dealing

      11   with this by a stipulation indicating the dates and the facts

      12   and making no reference to the statements in the decision

      13   which might be construed to allege American complicity in the

      14   South African immigration procedure?

      15            MR. RUHNKE:  I have no objection to what your Honor

      16   is proposing conceptually.  I don't know if the government is

      17   going to be willing to engage in stipulation discussions.  If

      18   they are, fine.

      19            THE COURT:  I would think that we would have the date

      20   of his arrest, the date of the lower court decision, the date

      21   of the higher court decision, and just a brief statement as

      22   to --

      23            MR. FITZGERALD:  Your Honor, if we could back up a

      24   step, I would like to address the court's ruling.  The

      25   technical aspects always take care of themselves.

                                                                    7347

       1            THE COURT:  Yes.

       2            MR. FITZGERALD:  I am still affirmatively of the view

       3   that it is more relevant to the jury as to the moral

       4   culpability of the defendant, recognizing that we are trying

       5   to make sure that the jury doesn't arbitrarily impose the

       6   death penalty.  It is not relevant to the jury, I submit, it

       7   is not a characteristic of K.K. Mohamed's moral background

       8   what happened after the fact, a year after the crime.  It

       9   seems to me it is more relevant, if we are going to tell the

      10   jury but for something K.K. Mohamed would not have faced the

      11   death penalty, why isn't it more relevant to talk about his

      12   own conduct on November 1, 2000, saying but if Officer Pepe

      13   had died he would be facing the death penalty for that?

      14            THE COURT:  I agree there has to be some cutoff point

      15   in terms of relevance, but if you cross the threshold, as

      16   Congress has done in the statute, and say that the jury may

      17   consider whether others equally culpable are not subject to

      18   the death penalty, and add to that the jurisprudence which

      19   says the selection of those who will or will not be subject to

      20   the death penalty should not be arbitrary or accidental, I

      21   think you reach the decision that I have reached.

      22            MR. FITZGERALD:  I would submit, the decision that

      23   says it is not arbitrary is what the gateway factors provide.

      24   The jurors cannot convict K.K. Mohamed without finding those,

      25   and that the aggravating factors outweigh the mitigators.  The

                                                                    7348

       1   fact that he did not get a windfall or fled to South Africa

       2   does not mean that the government has not arbitrarily sought

       3   the death penalty just as anyone arrested in Oklahoma or New

       4   York would face the death penalty.  I think that the

       5   defendants who get arrested get the windfall where defendants

       6   committing the same crime here do not get that.  That to me

       7   shows a disparity between defendants that is appropriate.

       8            THE COURT:  I understand your position and it

       9   certainly is a reasonable and possible interpretation.  On

      10   balance, however, I reject it.

      11            MR. FITZGERALD:  My fallback, having lost that, is to

      12   submit to the court, I don't think the jury needs to know the

      13   identity of the South African court that ruled.  If it is

      14   relevant that after --

      15            THE COURT:  The name of the court?

      16            MR. FITZGERALD:  Yes.

      17            THE COURT:  No good deed goes unpunished.  I thought

      18   that it was helpful to the government to indicate that up

      19   until the very day before the verdict the only information we

      20   had from South African courts was that this was a perfectly

      21   legal position.

      22            MR. FITZGERALD:  I wasn't arguing the time.  I just

      23   meant --

      24            THE COURT:  The name of the court?  My expressions of

      25   admiration for the court will not be advanced to the jury.

                                                                    7349

       1            MR. FITZGERALD:  And one last argument, your Honor,

       2   which is, I am also concerned about breaking out the factor,

       3   if we have a factor that other defendants equally culpable may

       4   not face the death penalty and counting this as a separate

       5   mitigator, it seems inconsistent with the way we treated the

       6   government nonstatutory aggravators, victim impact, etc.

       7            THE COURT:  We have Monday an agenda of the list of

       8   aggravators and mitigators, and I hadn't really focused on

       9   that.  What we did with Al-'Owhali, we grouped several

      10   together, and we might do that.  That is something for you to

      11   think about between now and Monday.  But we now know enough

      12   about this jury to know that they are not going to be engaged

      13   in any mechanical process.

      14            I want to take up in the robing room the question of

      15   the plea agreements and I will deal with that.  Is there

      16   anything else which you would rather take up now than on

      17   Monday?

      18            MR. RUHNKE:  Your Honor, I had given the court a list

      19   of matters that essentially we are waiting to hear from the

      20   government on, and these things are not necessarily matters

      21   which we can learn about on Monday to open on Tuesday.

      22   Specifically, we have been asking for weeks for an explanation

      23   or information as to what happened to the videotape of

      24   November 1, and we have never had a response from the

      25   government on that, other than they are checking into it, and

                                                                    7350

       1   the responses that we had from the government have been

       2   inconsistent.  We requested the government provide an

       3   explanation for what happened to this video, which we asked be

       4   preserved on November 2, and we have had no answer.

       5            Second, Mamdouh Salim has put the government on

       6   notice that he will rely on a defense of mental illness for

       7   the stabbing.  For me that means to concede conduct but to say

       8   that he was mentally ill at the time that it occurred.  We

       9   have asked the government weeks ago, is there any kind of Rule

      10   16 disclosure that his counsel have made that bear on that

      11   issue?  Is there any kind of expert reports?  Has the

      12   government had Mr. Salim examined?  Everyone has been busy.  I

      13   don't want to use the word stonewalled.  We have had no reply

      14   to those requests.  These are not things that we can wait till

      15   Monday to find out about.

      16            MR. FITZGERALD:  Your Honor, I have to take exception

      17   to one thing.  First, I told Mr. Ruhnke that we would talk at

      18   the conclusion of this proceeding as to those issues.  Mr.

      19   Ruhnke is in default of Rule 16 material which has been not

      20   been provided to us.  We have been given no notice as to what

      21   Dr. Cunningham intends to produce.  We gave over whatever

      22   tapes we have on the prison.  I told him I would sit down and

      23   talk about what we owe him and what he owes us.  So any

      24   inference that the government is stonewalling, we couldn't

      25   even get exhibits, we had to go and copy his.

                                                                    7351

       1            THE COURT:  Next Tuesday is a week.  There is a week

       2   between the verdict and commencement of the K.K. Mohamed

       3   proceedings.

       4            Incidentally, K.K. Mohamed, do you wish to have him

       5   in court on Monday?

       6            MR. RUHNKE:  Probably not, your Honor.  We will talk

       7   to him between now and Monday, but for various reasons I can

       8   predict that we will be waiving his presence unless you hear

       9   otherwise.

      10            THE COURT:  What I would like you to be thinking

      11   about, as I will be thinking about between now and Monday,

      12   since it's the same jury and they have heard it, whether

      13   anything is required by way of preliminary statement other

      14   than the reading of the final version of the aggravators and

      15   the mitigators?

      16            MR. RUHNKE:  We will think about that, your Honor.

      17            THE COURT:  Does the government have any idea of the

      18   estimated length of its presentation?

      19            MR. FITZGERALD:  If we start on Tuesday, your Honor,

      20   I don't know the extent of Mr. Ruhnke's cross-examination

      21   concerning the assault incident, but my sense is we will

      22   probably not rest until the middle of the following week.

      23            THE COURT:  That is assuming we don't sit on Friday.

      24            MR. FITZGERALD:  Yes, starting Tuesday.

      25            MR. RUHNKE:  Your Honor we would prefer that we

                                                                    7352

       1   continue the practice of not sitting on Fridays concerning

       2   this part as well.

       3            THE COURT:  I will see counsel in the robing room

       4   then, on the plea agreement matter.

       5            (Classified conference follows, filed separately)

       6            (Adjourned until Monday, June 18, 2001, at 10:00

       7   a.m.)

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