7 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 61 of the trial, June 7, 2001.

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

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       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 7, 2001
                                                   11:35 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15                            APPEARANCES

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

      20
           FREDRICK H. COHN
      21   DAVID P. BAUGH
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
      22

      23

      24

      25

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       1            (In open court)

       2            THE COURT:  Good morning.  I take it you have all

       3   seen the note from the jury.

       4            (Jury note marked as Court Exhibit I of today's date)

       5            MR. COHN:  We have, your Honor.

       6            THE COURT:  Does somebody propose a reply?

       7            MR. FITZGERALD:  Yes, your Honor.  I think we had

       8   language both parties agreed upon to suggest to your Honor.

       9            THE COURT:  All right.  May I hear it, please?

      10            MR. FITZGERALD:  With regard to the first question,

      11   the regulations regarding the special administrative measures

      12   were offered as a defense exhibit concerning the issue of

      13   future dangerousness.

      14            Their question had been, "Does future dangerousness

      15   relate to the measures?" and I think the inverse is true, the

      16   measures relate to the dangerousness.

      17            THE COURT:  Then it says, "Are they applied

      18   automatically?"

      19            MR. FITZGERALD:  The next part of the answer would

      20   be, in the event of a life sentence, special administrative

      21   measures are not automatically applied.  See the regulations.

      22            And then the third part, "Is it intended as an

      23   argument for the death penalty?," because "it" is unclear, the

      24   proposed answer would say:  The non-statutory aggravating

      25   factor of future dangerousness is offered by the government as

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       1   a factor in favor of imposing the death penalty.  And then it

       2   continue:  The regulations concerning the special

       3   administrative measures were offered by the defense to rebut

       4   that aggravating factor.

       5            THE COURT:  All right.  I have no problem with the

       6   substance of that.  I would like to try some other language.

       7            Give me a moment.

       8            (Pause)

       9            THE COURT:  I thought the answer called for a little

      10   more of a background, and what I have written so far is:  The

      11   first non-statutory aggravating factor as to future

      12   dangerousness relates to whether Al-'Owhali will be a threat

      13   even though he will be sentenced to life imprisonment.

      14   Al-'Owhali contends that he will be subject to rigorous

      15   security measures (the special administrative measures) and

      16   will not be a future threat.  The government contends that,

      17   despite these measures, Al-'Owhali will still be dangerous.

      18            The special administrative measures are not applied

      19   automatically, but in accordance with their provisions.

      20   Whether or not Al-'Owhali will pose a continuing and serious

      21   threat while incarcerated is the issue for you to determine.

      22            MR. COHN:  Your Honor, on some reflection, it seems

      23   to me that what is missing from that and what was offered

      24   before is that the preamble should say, "The government seeks

      25   to prove that he is a future danger."  The way we are

                                                                    7289

       1   answering the question seems to presume that it has been

       2   proven.

       3            THE COURT:  I have no problem with that.

       4            MR. FITZGERALD:  Your Honor, I think it would be more

       5   appropriate to say "the government contends it proved."

       6            THE COURT:  The government contends.

       7            MR. COHN:  Well, then it should be reflected with our

       8   contention that it was rebutted.

       9            THE COURT:  I wonder whether, you know, the suggested

      10   language was that the defendant has introduced the SAM and

      11   whether that's --

      12            MR. COHN:  I'm justing looking, the government's

      13   contention, if you are putting contentions --

      14            THE COURT:  As to the second non-statutory --

      15            MR. FITZGERALD:  First.

      16            THE COURT:  As to the -- yes, as to the first

      17   non-statutory aggravating factor, the government contends that

      18   Al-'Owhali poses a continuing and serious threat even though

      19   he will be imprisoned for life.  Al-'Owhali contends that he

      20   will be subject to rigorous security (the special

      21   administrative measures), and will, therefore, not constitute

      22   a threat.  The government contends that, despite these

      23   measures, the threat will be present.  It is for you to decide

      24   whether the defendant would or would not pose a continuing and

      25   serious threat.

                                                                    7290

       1            The special administrative measures are not

       2   automatically applied, but are applied in accordance with

       3   their provisions.

       4            Is there an exhibit number?  Should I have that?

       5            MR. COHN:  It's Defense Al-'Owhali --

       6            THE COURT:  Is that an exhibit they have asked for?

       7            MR. FITZGERALD:  No, Judge.

       8            MR. BAUGH:  They have not asked for the exhibit.

       9            MR. COHN:  They haven't asked for that exhibit.

      10            THE COURT:  Let me read this again:  As to the first

      11   non-statutory aggravating factor, the government contends that

      12   Al-'Owhali poses a continuing and serious threat even though

      13   he will be imprisoned for life.  Al-'Owhali contends that he

      14   will be subject to rigorous security (the special

      15   administrative measures), and will, therefore, not constitute

      16   a threat.  The government contends that, despite these

      17   measures, the threat will be present.  It is for you to decide

      18   whether the defendant would or would not pose a continuing and

      19   serious threat.

      20            The special administrative measures are not

      21   automatically applied, but are applied in accordance with

      22   their provisions.

      23            MR. COHN:  If your Honor please, which have been

      24   submitted as Al-'Owhali Exhibit R.

      25            THE COURT:  Al-'Owhali Exhibit R.

                                                                    7291

       1            MR. FITZGERALD:  Your Honor, I believe it is R.  If

       2   we're going to reference the Al-'Owhali exhibit, which is a

       3   regulation, I think we should also reference the stipulation

       4   concerning the government's response to that regulation, which

       5   is 2281.

       6            THE COURT:  Why don't I say Al-'Owhali Exhibit R and

       7   stipulation --

       8            What's the number?

       9            MR. FITZGERALD:  2281.

      10            THE COURT:  -- 2281 deal with these issues.

      11            Let me read it again:  As to the first non-statutory

      12   aggravating factor, the government contends that Al-'Owhali

      13   poses a continuing and serious threat even though he will be

      14   imprisoned for life.  Al-'Owhali denies that he constitutes

      15   such a threat and contends that he will be subject to rigorous

      16   security (the special administrative measures), and will,

      17   therefore, not constitute a threat.

      18            No, that's redundant.

      19            The government contends that, despite these measures,

      20   the threat will be present.  It is for you to decide whether

      21   defendant Al-'Owhali would or would not pose a continuing and

      22   serious threat.

      23            The special administrative measures are not

      24   automatically applied, but are applied in accordance with

      25   their provisions.  Al-'Owhali Exhibit R and Stipulation 2281

                                                                    7292

       1   deal with these issues.

       2            Is that acceptable?

       3            MR. COHN:  Yes.

       4            MR. FITZGERALD:  Yes.

       5            THE COURT:  All right.  I will put that in legible

       6   form and we'll send it in to the jury.

       7            This has let us know exactly where they are in the

       8   Special Verdict Form.

       9            All right.  Maybe I could even get a scribe with

      10   clearer handwriting.  We'll await further word from the jury.

      11            MR. BAUGH:  Are you going to bring them out and read

      12   it to them, or are you going to send it back, or both?

      13            THE COURT:  I'm going to send it back.

      14            MR. BAUGH:  Okay.

      15            THE COURT:  Is that acceptable?  It takes ten minutes

      16   for them to come in and ten minutes for them to go back.

      17            (Recess pending verdict; time noted:  12:00 p.m.)

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