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

This is the transcript of Day 49 of the trial, May 18, 2001.

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

                                                                    6358

       1   UNITED STATES DISTRICT COURT
           SOUTHERN DISTRICT OF NEW YORK
       2   ------------------------------x

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

       7   ------------------------------x

       8
                                                   New York, N.Y.
       9                                           May 18, 2001
                                                   9:30 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6359

       1                            APPEARANCES

       2   MARY JO WHITE
                United States Attorney for the
       3        Southern District of New York
           BY:  PATRICK FITZGERALD
       4        KENNETH KARAS
                PAUL BUTLER
       5        Assistant United States Attorneys

       6
           ANTHONY L. RICCO
       7   EDWARD D. WILFORD
           CARL J. HERMAN
       8   SANDRA A. BABCOCK
                Attorneys for defendant Mohamed Sadeek Odeh
       9
           FREDRICK H. COHN
      10   DAVID P. BAUGH
           LAURA GASIOROWSKI
      11        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

      12   DAVID STERN
           DAVID RUHNKE
      13        Attorneys for defendant Khalfan Khamis Mohamed

      14
           SAM A. SCHMIDT
      15   JOSHUA DRATEL
           KRISTIAN K. LARSEN
      16        Attorneys for defendant Wadih El Hage

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6360

       1            (Deliberations resumed)

       2            (Time noted, 10:30 a.m.; counsel for government and

       3   defendants Odeh and Al-'Owhali present)

       4            THE COURT:  The jury is all present.  They have been

       5   here since about 10:30 and have resumed their deliberations.

       6   Are there any matters?  Do you know what the status is on the

       7   military discovery?

       8            MR. KARAS:  I don't, Judge.  I can talk to Mr.

       9   Fitzgerald who is trying to reach Mr. Ailey.

      10            MR. COHN:  We are trying to track down Mr. Baugh,

      11   your Honor.  I reminded your courtroom deputy that I am due in

      12   front of Judge Chin at 11:30.  I can be reached in his

      13   courtroom.  It should be a short proceeding.

      14            THE COURT:  We will await something further from the

      15   jury.

      16            (Recess)

      17            (Time noted, 12:10 p.m., all counsel and defendants

      18   present)

      19            THE COURT:  The jury says that there is a seeming

      20   contradiction between the sentence at the bottom of page 77

      21   which says, in other words, a defendant may be held criminally

      22   responsible for certain acts of conduct even if the evidence

      23   does not show that the defendant personally committed those

      24   acts.  Whereas the first sentence on page 79 says to aid and

      25   abet another to commit a crime, it is necessary that the

                                                                    6361

       1   defendant willfully and knowingly associate himself in some

       2   way with the crime and that he willfully and knowingly seek by

       3   some act to help the crime succeed.

       4            I don't believe that there is a contradiction,

       5   although perhaps the trouble lies with the language a

       6   defendant may be held criminally responsible.  What I would

       7   propose to say to the jury is, a defendant may be guilty, that

       8   is, be criminally responsible, if he either (a) actually

       9   committed the crime himself -- by committing the crime we mean

      10   that his conduct satisfies all of the elements of the crime as

      11   set forth in the charge; or (b) someone else actually

      12   committed the crime, that is, that someone else, that the

      13   conduct of someone else satisfies all of the elements of the

      14   crime, and that the defendant whom you are considering aided

      15   and abetted in the commission of that crime.  To determine

      16   whether the defendant aided and abetted in the commission of

      17   the crime, you should ask the questions set forth on pages 79

      18   and 80.

      19            MR. FITZGERALD:  Your Honor, I might suggest adding

      20   something in addition.  It struck me from the note that the

      21   jurors may be confused by the fact that the word act appears

      22   in both quoted sections.  So one section seems to say a

      23   defendant can be held criminally responsible even though he

      24   did not participate in an act, and then the next section says

      25   that the defendant must seek by some act to make the venture

                                                                    6362

       1   succeed.  So the word act may be the source of confusion.

       2            I have roughed out something to suggest that if we

       3   instruct the jury that if the defendant commits some act

       4   willfully and knowingly for the purpose of helping another

       5   person or persons commit a different act which is a crime,

       6   then the defendant may be criminally responsible for the

       7   second act, and perhaps give them an example which would say,

       8   if a person or group of persons rob a bank and the defendant

       9   provides them with assistance for the purpose of helping them

      10   carry out the bank robbery, then the defendant can be guilty

      11   of aiding and abetting the bank robbery even though he or she

      12   did not participate in the physical act of robbing the bank.

      13            THE COURT:  Let me reserve on that.

      14            MR. COHN:  Your Honor, I think Mr. Fitzgerald in a

      15   sense pointed out my position, which is that I think we are

      16   speculating on why they are confused.

      17            THE COURT:  What else should we do?

      18            MR. COHN:  We should ask them to clarify it, and tell

      19   them that there does not appear to be a conflict and would

      20   they clarify their confusion.

      21            THE COURT:  I will do both.  I will adopt Mr.

      22   Fitzgerald's suggestion and your suggestion.

      23            MR. COHN:  I object.

      24            THE COURT:  Your objection is a little premature.

      25            MR. COHN:  No, because I think Mr. Fitzgerald's

                                                                    6363

       1   suggestion may be goes over the edge in charging guilt.

       2            MR. WILFORD:  Your Honor, I don't think Mr.

       3   Fitzgerald's suggestion is appropriate at this point.  I would

       4   suggest that you go with the language you just dictated to us,

       5   with the charge of aiding and abetting.  I think that would be

       6   sufficient.

       7            THE COURT:  Not only do they have it before them but

       8   they give specific references to pages 77 and 79, so simply to

       9   read to them page 77 and page 79 is to be of no assistance.

      10            MR. WILFORD:  Rather than read page 77 and 79, the

      11   court specifically refers to page 79 and 80.  I would also

      12   request that the court bring the jury out, as I suggested

      13   before.

      14            THE COURT:  I will bring them out.

      15            Mr. Fitzgerald, do you think that the problem is

      16   the -- I must say that this language does not originate with

      17   me.  This is language, which is time honored, and this is the

      18   first instance I have had where a jury has found there to be

      19   some confusion.  Do you think the problem is with the word

      20   act, that we use actions at the bottom of page 77 and act on

      21   page 79?

      22            Would you read again your language slowly, please.

      23            MR. FITZGERALD:  Yes.  If a defendant commits some

      24   act willfully and knowingly for the purpose of helping another

      25   person commit a different act which is a crime --

                                                                    6364

       1            THE COURT:  Yes.

       2            MR. FITZGERALD:  -- then the defendant may be held

       3   criminally responsible for the second act which is a crime.

       4   Then I would suggest the example --

       5            THE COURT:  There is a problem with examples.

       6   Examples are really frowned on.  But I think what I would do

       7   is, I would say if a defendant commits some act or acts, which

       8   acts are themselves a crime, satisfying all of the elements of

       9   the crime, then he may be found guilty.  If a person commits

      10   some other act which is not in and of itself a crime but which

      11   is knowingly and willfully intended to aid another person to

      12   commit those acts, then he is criminally responsible.

      13            MR. FITZGERALD:  If we could just modify that in two

      14   respects.  The first half should state if the person commits

      15   acts which are themselves a crime, then he is guilty as a

      16   principal.

      17            THE COURT:  Yes.

      18            MR. FITZGERALD:  The second time I think we should

      19   say if a person commits acts which helps others commit

      20   different acts which are a crime.

      21            THE COURT:  Then he is criminally responsible, that

      22   is, he may be found guilty.  We call such persons principals.

      23   If a person commits acts or.

      24            (Pause)

      25            THE COURT:  So that the totality of my remarks would

                                                                    6365

       1   be:  A defendant may be found guilty, that is, criminally

       2   responsible -- criminally responsible may be a phrase which

       3   they don't equate with guilt.  A defendant may be guilty, that

       4   is, be criminally responsible, if he either (a) actually

       5   committed the crime himself -- by committing the crime we mean

       6   that his conduct satisfied all of the elements of the crime as

       7   set forth in the charge, or (b) someone else actually

       8   committed that crime, that is, that the conduct of someone

       9   else satisfied all the elements of the crime and that the

      10   defendant whom you are considering aided and abetted in the

      11   commission of that crime.  To determine whether the defendant

      12   aided and abetted in the commission of the crime, you should

      13   ask yourself the questions set forth on pages 79 and 80.  And

      14   I will read them.

      15            Then I will say, in other words, to make it clear

      16   that this is not an addition but a restatement, if a defendant

      17   commits some act willfully and knowingly for the purpose of

      18   helping another person to commit some act which is a crime,

      19   then the defendant may be held criminally responsible for the

      20   second act, which is a crime.  Thus, if a person commits an

      21   act which is in itself a crime, then that person is criminally

      22   responsible, that is, he may be found guilty.  We call such

      23   persons principals.  If a person commits act or acts which are

      24   not in themselves a crime but are knowingly and willfully

      25   intended to assist that person to commit the crime, then he is

                                                                    6366

       1   also criminally responsible.  That is, he is guilty.  We call

       2   such persons aiders and abettors.

       3            Anything further?  And then I will say that if this

       4   still does not clarify the matter for you, send us another

       5   note.

       6            MR. FITZGERALD:  I only have one small suggestion.

       7   You used the language several times engages in conduct which I

       8   think is helpful with respect to act.  I thought if we say at

       9   the end engages in act to knowingly help others commit a

      10   crime.

      11            MR. COHN:  Can I hear the last piece of the

      12   government's.

      13            THE COURT:  The last portion?

      14            MR. COHN:  Yes.

      15            THE COURT:  Thus, if a person engages in conduct

      16   which is not itself a crime, then that person is criminally

      17   responsible, that is, he may be found guilty -- we call such

      18   persons criminal.  If a person engages in conduct which is not

      19   in and of itself a crime but which is knowingly and willfully

      20   intended to assist that other person to commit the crime, then

      21   he is also criminally responsible, that is, he is guilty, and

      22   we call such persons aiders and abettors.

      23            MR. COHN:  Your Honor, I believe that it is

      24   unbalanced and I would suggest -- and without accepting the

      25   fact that you are going to give this charge at this particular

                                                                    6367

       1   time in this way, you should indicate that the activity has to

       2   have in fact furthered the commission of the crime.  It

       3   doesn't say that anywhere.

       4            THE COURT:  Which knowingly assists that other person

       5   to commit the crime and furthers its commission?

       6            MR. COHN:  Yes.

       7            THE COURT:  I don't have any problem with that.  Then

       8   I will say reasonable doubt.

       9            All right, let's bring in the jury, please.

      10            (Pause)

      11            THE COURT:  I think I have to add that if they have

      12   found aiding and abetting, they must also consider the other

      13   elements as set forth in the charge, because we do tell them

      14   that aiding and abetting is not in and of itself -- they are

      15   working hard, and they don't see any reason why we shouldn't

      16   work hard also.

      17            (Jury present)

      18            THE COURT:  Good afternoon, ladies and gentlemen.

      19            JURORS:  Good afternoon.

      20            THE COURT:  You have asked for some clarification

      21   with respect to aiding and abetting and have said that there

      22   seems to be some inconsistency between language on page 77 and

      23   79.  We have been reviewing that and discussing it amongst

      24   ourselves and will offer some further elaboration.  If we

      25   don't answer your question, then send us another question.  We

                                                                    6368

       1   are trying to make this as clear as we can, but of course we

       2   are steeped in these concepts, in things which we know by

       3   years and years of experience.  It may not be as clear to

       4   others as they appear to be to us.

       5            A defendant may be guilty, that is, criminally

       6   responsible -- when we use the phrase "criminally

       7   responsible," that's the same as saying may be guilty.  A

       8   defendant may be guilty if he either:  (a) actually commits

       9   the crime himself -- and by committing the crime we mean that

      10   his conduct satisfies all of the elements of the crime as set

      11   forth in the charge, in other words, he himself, the conduct

      12   in which he has engaged, he has personally engaged, satisfies

      13   the elements of the crime as set forth in the charge; or (b)

      14   someone else actually commits the crime, that is, that the

      15   conduct of someone else satisfies all the elements of the

      16   crime and that the defendant whom you are considering aided

      17   and abetted in the commission of the crime.

      18            To determine whether the defendant you are

      19   considering aided and abetted in the commission of the crime,

      20   you should ask the questions which we set forth at the bottom

      21   of page 79:  Did he participate in the crime charged as

      22   something he wished to bring about?  Did he associate himself

      23   with a criminal venture knowingly and willfully?  Did he seek

      24   by his actions to make the criminal venture succeed?  If he

      25   did, then the defendant is an aider and abettor and therefore

                                                                    6369

       1   guilty of the offense.  If, on the other hand, your answers to

       2   these questions are no, then the defendant is not an aider and

       3   abettor, and you must find him not guilty.

       4            In other words, if a defendant engages in conduct

       5   unlawfully and willfully, for the purpose of helping another

       6   person to engage in conduct which is the crime, which

       7   satisfies all the elements of the crime, then that defendant

       8   may be held criminally responsible for the second act, which

       9   is a crime.

      10            Two-stage process.  Did the defendant you are

      11   considering himself personally engage in conduct which

      12   satisfies all of the elements of the crime?  If he did not,

      13   but you find that some other person engaged in conduct, which

      14   conduct satisfies all of the elements of the crime, then he

      15   would be an aider and abettor.

      16            Thus, if a person engages in conduct which is not

      17   itself, looking only at the conduct of that person is not

      18   itself conduct which satisfies all of the elements of the

      19   crime, then you should consider whether or not he is an aider

      20   and abettor.

      21            A person whose conduct itself satisfies all of the

      22   elements of the crime we call a principal.  He is a person who

      23   has committed the crime.  If you look at just what that person

      24   did and you find all of the elements as set forth in the

      25   charge have been satisfied, then that person is guilty as a

                                                                    6370

       1   principal.  But if a person engages in conduct which is not in

       2   and of itself the crime but which knowingly and willfully is

       3   intended to assist that other person to commit the crime, to

       4   further the commission of the crime by that other person, then

       5   he is also criminally responsible.  He is guilty then, and we

       6   call such persons aiders and abettors.

       7            If you find that someone is an aider and abettor,

       8   then you have to consider that together with all of the other

       9   elements as set forth in the charge.

      10            All of these findings, of course, must be unanimous

      11   and beyond a reasonable doubt.

      12            If that doesn't answer your question, ask another

      13   question, and if it doesn't satisfy your question, please try

      14   in a further question to be as specific as you can about what

      15   is troubling you.  Thank you.

      16            MR. RICCO:  Your Honor, could we have a brief

      17   sidebar?

      18            THE COURT:  Yes.

      19            (Discussion off the record at the sidebar)

      20            THE COURT:  The suggestion is made that if it would

      21   be helpful to you to have what I just said in writing, we can

      22   do that.  Just let us know if you want that.  The court

      23   reporter will be delighted to give up her lunch hour.

      24            (Deliberations resumed)

      25            THE COURT:  As long as we are assembled, can I have a

                                                                    6371

       1   status report on other open matters?

       2            MR. FITZGERALD:  I spoke to Mr. Ailey's office this

       3   morning and he was at a meeting.  I said we needed a letter or

       4   phone call today.  He said he was trying to get a letter out

       5   or a phone call with myself and Mr. Baugh today.  I am hoping

       6   to have a message over lunch.

       7            THE COURT:  You have my authority, if it would be

       8   helpful in lighting a fire, to tell him that the judge has

       9   ordered a very prompt response and that if a prompt response

      10   is not forthcoming the judge will have to consider what

      11   actions to take.

      12            MR. BAUGH:  I called Mr. Ailey this morning and also

      13   got a message.

      14            THE COURT:  Anything else that is open that we should

      15   deal with?

      16            (Recess)

      17            (Continued on next page)

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6372

       1                         AFTERNOON SESSION

       2                             2:30 p.m.

       3            (All parties present)

       4            THE COURT:  We have a number of notes.  We are

       5   requesting in writing what you said to us this morning about

       6   aiding and abetting.  That is a note not from the forelady,

       7   and the juror signs his name, which I am obliterating, and we

       8   will send in --

       9            MR. COHN:  Can your Honor identify the juror by his

      10   seat, or her seat, and would you?

      11            THE COURT:  I can't.  No.  It doesn't say juror

      12   number so and so, it just says the name.

      13            MR. COHN:  Your Honor, may be able to attach a seat

      14   to it.

      15            THE COURT:  I can't.

      16            We will send it in.

      17            Next note:  We thank you for your explanation of

      18   aiding and abetting, but we still have some questions

      19   regarding the subject.  On page 77 of the charge last

      20   paragraph, section 2A, the aiding and abetting statute

      21   provides that whoever commits an offense against the United

      22   States or aids -- underlined -- abets, counsels --

      23   underlined -- is punishable as a principal.  Question:  Do the

      24   terms aids and counsels equal an act?  What constitutes aid

      25   and counsel?

                                                                    6373

       1            From page 79 of the charge first paragraph, to aid

       2   and abet another to commit a crime, it is necessary that the

       3   defendant willfully and knowingly seek by some act --

       4   underlined some act -- to help make the crime succeed.  How

       5   concrete an act is required?  Examples?

       6            Regarding questions at the bottom of page 79, does

       7   the answer to all three questions have to be yes in order to

       8   find the defendant guilty of aiding and abetting?

       9            In addition, we would like to request the following:

      10   Government's Exhibit 518, Hilltop Hotel register.  2.  Any

      11   evidence regarding Odeh's prints.  3.  Exhibits regarding PETN

      12   and TNT residue on Odeh's belongings.  Thank you.  Juror No.

      13   1, foreperson.

      14            You are right that act seems to be what they are hung

      15   up on.

      16            Page 77 of the charge, last paragraph.  And they

      17   underline the word counsels.

      18            The specific question is how could know create an act

      19   is required?  Examples?  The second question is do all three

      20   have to be answered yes, which is a very interesting question,

      21   which I have mused over in the past, and I think the answer is

      22   yes, because it's clear, did he associate himself with the

      23   criminal venture knowingly and willfully is not enough, as we

      24   tell them.  Mere association without participation is not

      25   enough.

                                                                    6374

       1            Does anybody take issue with that?

       2            MR. FITZGERALD:  Yes, Judge.  Can we have a brief

       3   pause in addressing that question and do a little research?

       4   If they are focused on acts and aids and counsels, it may be

       5   what is throwing them off is the third question, did he seek

       6   by his actions and not knowing how concrete an act is

       7   required.

       8            THE COURT:  In the meantime, let's do Government's

       9   Exhibit 518, the Hilltop Hotel register, any evidence

      10   regarding Odeh's prints, and exhibits regarding PETN and TNT

      11   residue on Odeh's belongings.

      12            Let me also share with you another note.  This is in

      13   a different handwriting.  Dear handwriting.  This is juror No.

      14   9.  This is a note to say maybe it would be good to get

      15   outside every day during lunchtime for 30 minutes after eating

      16   in order to get air.  Lord knows, this is quite tedious.

      17   Also, if by some dilemma we are still here on Friday, June 8,

      18   2001, I will not be able to sit.  My daughter is graduating.

      19   Then he identifies what she is graduating from.  I will be

      20   attending and bringing her home.  Thank you for your attention

      21   to these matters.  I will await your response.

      22            So we have to address ourselves to the following

      23   questions.  One is counsels, because counsels is a statutory

      24   language which is quoted in the underlying counts.  The other

      25   is all three.

                                                                    6375

       1            We will take a recess while somebody assembles the

       2   exhibits, and somebody can look into the answers to those

       3   questions.

       4            MR. WILFORD:  Your Honor, I have a question.

       5            THE COURT:  Let's xerox this because the punctuation

       6   and the underlying may have some relevance.

       7            MR. WILFORD:  The jury's second request, when they

       8   say in addition to, any evidence regarding Odeh's prints would

       9   seem to me to also include testimony, not just exhibits.  They

      10   have listed specific exhibits and they have said in evidence.

      11   To me any evidence would also include testimony.

      12            MR. FITZGERALD:  Our suggestion, Judge, is, if they

      13   don't know the exhibit numbers, we could send them a note

      14   saying we are assembling exhibit numbers, please let us know

      15   if you wish testimony.

      16            THE COURT:  I agree with that.  Let's do it

      17   sequentially.  Let's give them the physical evidence.  Let's

      18   indicate also, as Mr. Fitzgerald suggested -- let's also ask

      19   them if they wish to hear the testimony.

      20            MR. WILFORD:  Your Honor, if you look at the language

      21   of the note, they request specific exhibits, they also request

      22   exhibits regarding PETN and TNT, and the second question is

      23   any evidence.  The jury has been specific enough to identify

      24   exhibits when they want exhibits.  It would appear to me when

      25   we say evidence that they mean testimony as well.  They did

                                                                    6376

       1   not ask for specific exhibits and I would suggest we send in

       2   the testimony as well.

       3            THE COURT:  Let's see what it is.  Let's identify

       4   what it is.  We will take a brief recess.

       5            (Recess)

       6            (Time noted, 3:10 p.m.)

       7            THE COURT:  Let me put on the record what I propose

       8   to say, and when Mr. Fitzgerald comes back, we can read it

       9   back to him.  Is everybody else here?  I propose the following

      10   answer.

      11            You ask how concrete an act is required to be an

      12   aider and abettor.  The answer is that the defendant you are

      13   considering must be more than a passive observer with

      14   knowledge that a crime is contemplated.  He must be a

      15   participant, taking some action to further the commission of

      16   the crime.  For example, and only as an example, if he

      17   knowingly and willfully takes some act such as providing

      18   material necessary for the commission of the crime, or

      19   otherwise facilitates the commission of the crime by the

      20   others, he will be said to aid and abet.  Thus we told you,

      21   page 79, first paragraph, to aid and abet another to commit a

      22   crime, it is necessary that the defendant willfully and

      23   knowingly associate himself in some way with the crime and

      24   that he willfully and knowingly seek by some act to help make

      25   the crime succeed.  The act which is required need not itself

                                                                    6377

       1   be a criminal act.  It need only be some action taken by the

       2   defendant which further the commission of the crime by

       3   another.  The language in the statute which you quote, whoever

       4   counsels, is consistent with what I have just said.  By

       5   counsel, the statute means provide actual advice or assistance

       6   to enable the other person to commit the crime.

       7            The emphasis we have placed on the term "act" is

       8   designed to emphasize that the aider and abettor must do

       9   something beyond being a casual observer.  The precise nature

      10   of the act is not important.  What is important is that it be

      11   some specific conduct on the part of the defendant knowingly

      12   and willfully taken to further the commission of the crime by

      13   another.

      14            As to the three questions on page 79, the answers to

      15   all three questions must be yes.  These questions are simply

      16   designed to make clear what we have stated.  To be an aider

      17   and abettor, one must knowingly and intentionally act so as to

      18   further the criminal venture.  If you find that the defendant

      19   did knowingly and intentionally act so as to further the

      20   criminal venture, you will have found that the answers to the

      21   three questions will be yes.

      22            All right.

      23            I would like as well, for Mr. Fitzgerald's benefit,

      24   would you read slowly back what I have just read.

      25            (Record read)

                                                                    6378

       1            THE COURT:  Comments.  Any objections?

       2            MR. FITZGERALD:  No, Judge.  If I could wait one

       3   moment, Mr. Karas may have found a Supreme Court definition of

       4   aiding and abetting, if I could just check.  He is in the

       5   hallway.  No objection but we might want to supplement that.

       6            MR. HERMAN:  We have no objection with two

       7   supplemental additions.  With respect to the defendant do

       8   something, we would suggest that it be affirmatively do

       9   something.

      10            THE COURT:  Must affirmatively, all right.  I have no

      11   problem with that.

      12            MR. HERMAN:  Thank you, Judge.  The other suggestion

      13   we would make is that when your Honor talks about provide

      14   actual advice, we would suggest the word knowingly provide

      15   actual advice.  That has to do with the definition of counsel.

      16            THE COURT:  Counsel is what is confusing.

      17            MR. HERMAN:  Thank you, Judge.

      18            MR. FITZGERALD:  My only concern about the

      19   affirmatively, I don't want to confuse the jury.  If the

      20   person finds that the person provides advice, that can be

      21   conduct.  Affirmative may be understood as doing something

      22   with your hands, for instance.  The Supreme Court case

      23   included discussion or other actions.  My concern is that by

      24   affirmatively do something that means that they have to

      25   physically pick something up or carry it.  If I could hear

                                                                    6379

       1   that.

       2            THE COURT:  The emphasis we have placed on the term

       3   act is designed to emphasize that the aider and abettor must,

       4   bracket, affirmatively, bracket, do something beyond being a

       5   casual observer.

       6            Do you want affirmatively do or say?

       7            MR. FITZGERALD:  Yes.

       8            THE COURT:  Wouldn't you rather have affirmatively do

       9   or say?

      10            MR. HERMAN:  Yes, I would prefer the former than the

      11   latter.

      12            THE COURT:  I think there is no other Supreme Court

      13   case.  We have looked also.  Of course we realize that we are

      14   simply restating --

      15            (Pause)

      16            MR. FITZGERALD:  Mr. Karas gets a steak dinner.

      17            THE COURT:  Where are we with respect to those other

      18   exhibits?

      19            MR. WILFORD:  We have them.  There is a point that I

      20   wanted to raise.  There is contention between the parties.

      21   Your Honor, I would submit to the court that we should include

      22   Exhibit 1461 and 1462.

      23            THE COURT:  What are they?

      24            MR. WILFORD:  1461 is a summary chart of prints from

      25   Dar es Salaam which have the print on the flour mill, the

                                                                    6380

       1   grinder.  Also, 1462, which has the TNT and PETN residue that

       2   was uncovered.  The reason I state that, your Honor, we argued

       3   to the jury in summation that the print of Fahad -- that the

       4   PETN and TNT that a plausible explanation was that a

       5   contamination occurred on the basis of Fahad's handling in Dar

       6   es Salaam of the grinder.  The Humsafar magazine was recovered

       7   in Mr. Odeh's bag.

       8            THE COURT:  Which question of the jury do you think

       9   encompasses that material?  They ask for exhibits regarding

      10   PETN and TNT residue on Odeh's belongings.

      11            MR. WILFORD:  Yes, your Honor.  I think in response

      12   to that question and also any evidence regarding Odeh's

      13   prints.  The reason I am saying that is as follows.  1461 is a

      14   summary chart --

      15            THE COURT:  Let's do this in two stages.  Is there

      16   anything you want on aiding and abetting?

      17            MR. WILFORD:  No.

      18            MR. FITZGERALD:  This is what the Supreme Court said

      19   in a civil RICO case in Reeves v. Ernst & Young in discussing

      20   the term participate.  It said that would be a term of breadth

      21   indeed, for aid and abet comprehends all assistance rendered

      22   by words, acts, encouragement, support or presence, citing

      23   Black's Law Dictionary.

      24            THE COURT:  I think this is consistent with that.

      25   Let's bring in the jury.

                                                                    6381

       1            We will tell the jurors that we won't sit on June 8.

       2   The request for a breath of fresh air I will have to take up

       3   with the marshals.

       4            The three questions of course are Learned Hand's

       5   three questions.

       6            You know, they have distinguished between evidence

       7   and testimony in previous questions.  I think I will tell them

       8   we will gather the exhibits and send them in, and if they wish

       9   to hear the testimony, they should send us another note.

      10            MR. WILFORD:  Your Honor, we have isolated the

      11   appropriate testimony.

      12            (Jury present)

      13            THE COURT:  You have three notes.  I will try and

      14   deal with them.

      15            With respect to aider and abettor you ask, how

      16   concrete an act is required to be an aider and abettor?  The

      17   answer is that the defendant you are considering must be more

      18   than a passive observer with knowledge that a crime is

      19   contemplated.  He must be a participant, taking some action to

      20   further the commission of the crime.  For example, and only as

      21   an example, if he knowingly and willfully takes some act, such

      22   as providing material necessary for the commission of the

      23   crime, or otherwise facilitates commission of the crime by the

      24   others, he will be said to aid and abet.

      25            Thus we told you on page 79 at the first full

                                                                    6382

       1   paragraph, to aid and abet another to commit a crime, it is

       2   necessary that the defendant willfully and knowingly associate

       3   himself in some way with the crime and that he willfully and

       4   knowingly seek by some act to help make the crime succeed.

       5            The act which is required need not itself be a

       6   criminal act.  It need only be some action taken by the

       7   defendant which furthers the commission of the crime by

       8   another.  The language in the statute which you quote,

       9   "whoever counsels," is consistent with what I have just said.

      10   By "counsel," the statute means to knowingly provide actual

      11   advice or assistance to further the commission of the crime by

      12   another person.

      13            The emphasis we have placed on the term "act" is

      14   designed to emphasize that the aider and abettor must do

      15   something beyond being a casual observer.  The precise nature

      16   of the act is not important.  What is important is that it be

      17   some specific conduct on the part of the defendant knowingly

      18   and willfully taken to further the commission of the crime by

      19   another.

      20            As to the three questions on page 79, the answer to

      21   all three questions must be yes.  But the questions are

      22   designed simply to make clear what we have stated.  To be an

      23   aider and abettor, one must knowingly and intentionally act so

      24   as to further the criminal venture.  If you find that the

      25   defendant you are considering did knowingly and intentionally

                                                                    6383

       1   act so as to further the criminal venture, you will have found

       2   that the three questions will be answered yes.

       3            If you want further guidance on aiding and abetting,

       4   please send us another note.

       5            With respect to the request that we not sit on June 8

       6   should you be deliberating on June 8, we will not sit on

       7   Friday, June 8.  You will recall we are not sitting on Friday,

       8   the 25th.

       9            With respect to a breath of fresh air after lunch, I

      10   will talk to the marshals and see whether that is possible.

      11            I would also ask that when you send a note to the

      12   court, please don't give your name, because we still want to

      13   preserve your anonymity.

      14            We are in the process of collecting the physical

      15   exhibits that you asked for, and we are not sure whether you

      16   want just the physical exhibits or you also want the

      17   testimony, because previously in your notes you have

      18   distinguished between testimony and evidence.  If you want to

      19   hear as well the testimony with respect to Odeh's prints,

      20   please send us another note.  Thank you.

      21            (Deliberations resumed)

      22            THE COURT:  Anything further from anyone?

      23            MR. WILFORD:  Your Honor, I would like to finish my

      24   point.

      25            THE COURT:  Yes, please.

                                                                    6384

       1            MR. WILFORD:  The point I was making, your Honor, is

       2   that the jury seemed to indicate that they wanted testimony

       3   with respect to fingerprints.

       4            THE COURT:  No.  I just asked them that.  They said

       5   any evidence.

       6            MR. WILFORD:  I am sorry, the exhibits.  One of the

       7   exhibits that we have gathered is a summary chart which

       8   includes the Humsafar magazine from which Fahad's prints were

       9   taken.  I think that in conjunction with that, Exhibits 1461

      10   and 1462 should also go in.

      11            THE COURT:  What is the objection to that going in?

      12            MR. KARAS:  Your Honor, the summary chart that Mr.

      13   Wilford is talking about has the fingerprints for Mr. Odeh,

      14   which is what is responsive to the second point.  So there is

      15   no problem with the whole chart going in.  What Mr. Wilford is

      16   asking for under the third category is to put in the summary

      17   charts regarding the PETN and TNT found on the items in Dar es

      18   Salaam, which is not responsive to the note.  The note says

      19   exhibits regarding PETN and TNT residue on Odeh's belongings,

      20   which we will give them, which deals with the items found on

      21   the Nike bag and so forth.  Nothing of Odeh's was found in

      22   Tanzania and that goes way beyond what they asked for.

      23            MR. WILFORD:  I differ for this reason.  That was

      24   taken in a vacuum.  There was vigorous argument from both

      25   sides as to where that residue came from, and part of our

                                                                    6385

       1   argument to the jury was that that residue came from Fahad's

       2   handling of the magazine, Fahad being in Dar es Salaam, and

       3   that PETN and TNT were both found -- there was no PETN found

       4   at the bomb site.  Those exhibits deal with that based upon

       5   the arguments that were tendered to this jury on both sides.

       6            THE COURT:  Yes, but those are not exhibits regarding

       7   PETN and TNT residue on Odeh's belongings.  Those are exhibits

       8   which relate to the presence of residue on other objects, and

       9   I understand that there is an argument that that may have been

      10   the source of residue by virtue of some contamination and so

      11   on, but that goes well beyond that.

      12            We won't send it in, but if you like I would send in

      13   a note saying do you wish anything further with respect to

      14   possible sources of PETN and TNT residue?

      15            MR. WILFORD:  Yes, your Honor.

      16            MR. KARAS:  Your Honor, we would object to that.

      17            THE COURT:  Why?

      18            MR. KARAS:  Because I think we basically signal to

      19   the jury about what they should be asking for, and the whole

      20   process is that the jury can tell us what they want, and, if

      21   there is something unclear, tell us, but to tell them that it

      22   is somehow unresponsive is really steering them in a direction

      23   that is unnecessary.

      24            THE COURT:  Let me play with the words.  Are the

      25   documents ready?

                                                                    6386

       1            MR. WILFORD:  Everything else is ready, Judge, to go

       2   in.

       3            THE COURT:  What exhibits are being sent in with

       4   respect to residue on Odeh's belongings?

       5            MR. KARAS:  Your Honor, they already have the Odeh

       6   clothing itself and they have the Nike bag.  We are sending in

       7   now the summary chart, Government's Exhibit 538.

       8            THE COURT:  Exhibit 538?

       9            MR. KARAS:  Yes.

      10            MR. WILFORD:  538, your Honor, I believe, references

      11   back to exhibits that they already have.

      12            THE COURT:  As to Odeh's prints, what is the exhibit

      13   number?

      14            MR. KARAS:  They already have the Swahili book and

      15   the Humsafar magazine.  We are sending in Government's Exhibit

      16   539, which is the summary chart that discusses the

      17   fingerprints found on those two items.  Then Exhibit 696,

      18   which is the latent print that was lifted, and then 696-LP,

      19   which is the enlargement that Mitchell Hollars testified from,

      20   and then 697, which is the summary chart of the fingerprint

      21   analysis.

      22            THE COURT:  As to the residue, I want to remind them

      23   what they already have that is relevant.

      24            MR. KARAS:  They have Odeh's clothing and the Nike

      25   bag.

                                                                    6387

       1            THE COURT:  They know.  I don't think it is necessary

       2   to tell them about that.

       3            MR. WILFORD:  I think in Exhibit 539 it refers to the

       4   Humsafar magazine and the Swahili book, and there may be some

       5   confusion as to whether or not they already have those, but

       6   they do have those two exhibits.

       7            THE COURT:  This is as to the prints?

       8            MR. WILFORD:  Yes.

       9            THE COURT:  You already have Exhibits --

      10            MR. WILFORD:  Exhibit 536, which is the Teach

      11   Yourself Swahili book, and then they also have Exhibit 537

      12   which is listed on that summary chart, which is the Humsafar

      13   magazine.

      14            THE COURT:  What is the exhibit?

      15            MR. WILFORD:  537, your Honor.

      16            THE COURT:  I say:  Here are the exhibits you

      17   requested.  As to Exhibits regarding PETN and TNT residue on

      18   Odeh's belongings, we have sent in Exhibit 538.  If you wish

      19   to see any other exhibits with respect to PETN and TNT

      20   residue, please advise.  As to Odeh's prints, we are sending

      21   in Exhibits 539, 696, 696LP and 697.  You already have

      22   Exhibits 536 and 537.

      23            MR. WILFORD:  Your Honor, two other points.

      24            MR. KARAS:  One of which I think we share.  There is

      25   another exhibit that should go in, Government's Exhibit 193,

                                                                    6388

       1   regarding what Kelly Mount would have testified to regarding

       2   her testing of the other clothes that are not contained in the

       3   summary chart.

       4            THE COURT:  So we are sending in with respect to that

       5   Exhibit 538 and 193.

       6            MR. WILFORD:  Just so that it is clear, your Honor,

       7   Exhibit 697 is a summary chart related to the fingerprint

       8   record from the Hilltop Hotel, which is what the jury

       9   specifically asked for.

      10            THE COURT:  They asked for the Hilltop Hotel

      11   register.

      12            MR. KARAS:  With respect to the instruction at the

      13   end, if the jury wants any other exhibits regarding PETN and

      14   TNT, again, the risk here is that the request is very clear,

      15   and maybe if we could say if there are any other exhibits you

      16   wish with respect to this request, because otherwise we are

      17   suggesting that they ought to be asking for exhibits regarding

      18   the PETN and TNT, but not the fingerprints.

      19            THE COURT:  I don't think so.  We will send in this

      20   note and those exhibits.

      21            They have already said they wish to go home at 4:30.

      22   Anything else?  Mr. Ailey has been communicated with?

      23            MR. FITZGERALD:  Yes, Judge, I believe a letter came

      24   from Mr. Ailey while I was here last time, and I will hand it

      25   over to Mr. Baugh.

                                                                    6389

       1            MR. BAUGH:  You are pronouncing my name correctly.

       2            THE COURT:  Anything else?  All right.

       3            (Recess)

       4            (Proceedings adjourned at 4:30 p.m. until Monday, May

       5   21, 2001, at 9:30 a.m.)

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