16 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 47 of the trial, May 16, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
                                                                6283
   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 16, 2001
                                               9:15 a.m.
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  12   Before:
  13                       HON. LEONARD B. SAND,
  14                                           District Judge
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                                                                6284
   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
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                                                                6285
   1            (Deliberations resumed)
   2            (Time noted, 10:00 a.m.; counsel for Odeh and
   3   al-'Owhali only present, defendants not present)
   4            THE COURT:  The record should reflect the fact that
   5   the jury is all in attendance and has been in attendance since
   6   shortly after 9:00 and is deliberating.
   7            THE COURT:  There is a memorial service for Judge
   8   Edelstein at 4:00 today which I would like to attend but would
   9   give priority to anything related to this case.  The
  10   defendants are not here and there is nobody here for --
  11            MR. COHN:  For scheduling, your Honor, I believe that
  12   I can speak for Mr. Ruhnke.
  13            THE COURT:  All that I want to inquire about is the
  14   status of the open matters.  The Brady motions --
  15            MR. COHN:  That is Mr. Ruhnke.
  16            THE COURT:  I think the ball is in the government's
  17   court?
  18            MR. BUTLER:  I will check with Mr. Karas.
  19            THE COURT:  And the in limine motions, but if
  20   everybody is ready I would rather do it this morning.
  21            MR. COHN:  We can do it this morning.  There are
  22   other open matters.  There is the issue of the El Hage
  23   courtroom incident, which there is an in limine motion from me
  24   on.
  25            THE COURT:  I received a letter which specifically
                                                                6286
   1   said I am not asking for any action on the part of the court.
   2            MR. COHN:  I don't think I said that.  The government
   3   said they were going to use El Hage's conduct and my client's
   4   alleged participation in their case in chief, with the court
   5   as an intended victim and we were going to request that you
   6   bar --
   7            THE COURT:  Let's not get into the merits.
   8            MR. COHN:  I thought I was asking for a ruling.
   9            THE COURT:  Can we deal with that also?
  10            MR. COHN:  Yes, and there is the question of the Pepe
  11   testimony, if we argue the testimony on the Pepe incident and
  12   we argue the questions of confinement.  Finally there is the
  13   ruling of April 2 that left issues open as to the government's
  14   aggravators.
  15            THE COURT:  Yes.  I thought that I would deal with
  16   those matters post-verdict, and after I received your
  17   submissions due tomorrow with respect to opening statements
  18   and so on.
  19            MR. COHN:  Fine, Judge.  I am just reminding you of
  20   what is open.
  21            THE COURT:  I am aware of that.  With respect to
  22   everything other than that, the other issues -- the Brady
  23   issues, the victim impact, the Al-'Owhali, El Hage matter and
  24   the Pepe matter, we will take them all up at 11:00 today?
  25            MR. BUTLER:  Fine, your Honor.  I will get
                                                                6287
   1   Mr. Garcia.
   2            MR. BAUGH:  Your Honor, you wanted with respect to
   3   opening statements --
   4            THE COURT:  The court's opening statement to the jury
   5   in the penalty phase.
   6            We will adjourn until 11:00 unless we hear something
   7   from the jury.
   8            (Recess)
   9            (Continued on next page)
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                                                                6288
   1            THE COURT:  The note from the jury reads:  Judge
   2   Sand:  The jury requests the following items to help in our
   3   deliberations:  1.  160S-T (A.R.C.)
   4            2.  Government's Exhibit 35 and anything related to
   5   the second fatwah.
   6            3.  Transcript of CNN interview.
   7            4.  GX1677-T.
   8            As always, we thank you for your assistance.  Juror
   9   No. 1.
  10            What is 160S-T?
  11            MR. KARAS:  We think that is actually 1605-T, your
  12   Honor.
  13            THE COURT:  Yes, that could be.
  14            MR. KARAS:  That is one of the London exhibits and I
  15   think it is the ARC resolution, which is what the jury has in
  16   parenthesis there.
  17            THE COURT:  Government's Exhibit 35, and anything
  18   related to the second fatwah.
  19            MR. KARAS:  Government Exhibit 35, your Honor, is a
  20   stipulation regarding the Al-Qud article that contained the
  21   February '98 fatwah, and those exhibits are 93, the Al-Qud
  22   article itself, and 93-T, which is the translation.
  23            THE COURT:  And you would construe "and anything
  24   related to the second fatwah" to refer to those two exhibits
  25   referred to in the stipulation?
                                                                6289
   1            MR. KARAS:  Yes, your Honor.
   2            THE COURT:  Anybody object to that?
   3            MR. DRATEL:  No, your Honor.
   4            THE COURT:  Very well.  Transcript of CNN interview,
   5   that is clear enough.
   6            MR. KARAS:  Yes.  That is 80-T, for the record.
   7            THE COURT:  And Government's Exhibit 1677-T is?
   8            MR. KARAS:  The manual found in Manchester.  It is a
   9   computer document.
  10            THE COURT:  What are the numbers of the two exhibits
  11   related to the second fatwah?
  12            MR. KARAS:  93, which is the Al-Qud article, and
  13   93-T, which is the translation.
  14            THE COURT:  So my note reads:  "Ladies and gentlemen,
  15   here are the exhibits you requested.  We enclose Exhibits 93
  16   and 93T as related to Government's Exhibit 35."  Is that
  17   agreeable to everyone?
  18            MR. KARAS:  And as before, your Honor, we will send
  19   in the originals and then make 12 copies.
  20            THE COURT:  Very well, that would be helpful.
  21            The marshal tells me that the jury has advised him of
  22   its desire to leave at 4:30 today.
  23            MR. SCHMIDT:  Your Honor, I would like to raise an
  24   additional issue, your Honor, that is not relevant to
  25   deliberations.
                                                                6290
   1            THE COURT:  Can we get this --
   2            MR. SCHMIDT:  Yes, we can.  Mr. El Hage's wife and
   3   son have been present in the court since the end of last week.
   4   She has been trying to see Mr. El Hage on visits to the MCC.
   5   As you know, they are in Texas and she has been up here on
   6   rare occasions to see Mr. El Hage.  She was able to see Mr. El
   7   Hage last Saturday.  I have been dealing with MCC and trying
   8   to see if we can get the visit of Mr. El Hage with his wife
   9   and child this week.  Since they have been here this week they
  10   have not been able to see him.  I was informed earlier today
  11   that the only time they will allow a visit will be Saturday
  12   for approximately an hour and a half.  Mr. El Hage, since he
  13   is in court all day, every day, waiting for a verdict, and it
  14   is a very stressful time --
  15            THE COURT:  With whom at the MCC have you discussed
  16   this?
  17            MR. SCHMIDT:  I have discussed it with Ms. Raia and
  18   Warden Parks.  The final answer came from Ms. Raia.
  19            I would ask your Honor to intercede to see if,
  20   because of the difficulty in travel for his wife and this very
  21   stressful situation that we are under now, if they could get
  22   an additional visit tomorrow evening after court or today
  23   after court, as well as the Saturday visit.
  24            THE COURT:  I will make inquiry.
  25            MR. SCHMIDT:  Thank you very much.
                                                                6291
   1            THE COURT:  Anything else?  Then we are adjourned
   2   until we hear further from the jury, or until 2:15, when we
   3   will take up the various open matters.
   4            (Recess)
   5            (Continued on next page)
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                                                                6292
   1                         AFTERNOON SESSION
   2                             2:15 p.m.
   3            THE COURT:  Mr. Schmidt, I have been playing
   4   telephone tag with the MCC.
   5            The note from the jury reads:  Dear Judge Sand.
   6   Please provide us with the following exhibits:  1528-T, 1537,
   7   1557D-T, 1557E-T, 1580A-T, 1580E-T, 1580E-T.  Thank you.
   8   Juror No. 1.
   9            Any problem?  What are these exhibits?
  10            MR. KARAS:  1557 and 1580 are the different claims of
  11   responsibility.  1528 and 1537 I will have to doublecheck.
  12            1528 is a letter that was found in London from Ashraf
  13   to Abu Abdallah.  1537 is also a London bomb, the Islamic
  14   nuclear bomb, a communique issued by the Islamic Front.
  15            THE COURT:  Do we have them all?
  16            MR. KARAS:  We have them all, and as before, we would
  17   propose to put in both the Arabic originals and the
  18   translations.
  19            THE COURT:  Yes.
  20            (Court Exhibits I and II of this date duly marked)
  21            THE COURT:  So we will send them in to the jury with
  22   a note saying herewith the exhibits you requested in your
  23   latest note.
  24            This morning we listed a number of matters to be
  25   taken up at this time.  I understand that there has been some
                                                                6293
   1   consensual resolution of some of these issues.
   2            MR. COHN:  Your Honor, there has been consensual
   3   resolution as to one.  The other, from my point of view, is on
   4   the cusp.  The third one, they have given us submissions that
   5   address some of the issues which are photographic evidence,
   6   not other parts of our application, but they have been kind
   7   enough to ask that we be able to review this before we have
   8   that argument tomorrow.
   9            So as far as I know, if your Honor is prepared to
  10   hear it tomorrow, the issue on victim impact is still open and
  11   that will be argued tomorrow morning.  As to the others, one
  12   is resolved and one is probably resolved.
  13            THE COURT:  I think you have to be more specific than
  14   that.  There was an issue raised with respect to the
  15   government's views of Al-'Owhali's alleged role with respect
  16   to the incident involving El Hage.
  17            MR. COHN:  Resolved.  That is resolved.  We need not
  18   address that as far as I understand the government's position.
  19            MR. FITZGERALD:  Judge, based upon the
  20   representations of counsel, which I think we can put them on
  21   the record in the robing room as to what evidence they are not
  22   offering and what issues they are not raising, the government
  23   does not intend to elicit the alleged role of al-'Owhali in
  24   the courtroom incident at the penalty phase proceeding.  We do
  25   not intend to offer proof of that.
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   1            THE COURT:  And the issue with respect to the Pepe
   2   matter --
   3            MR. COHN:  We have told the government what it is
   4   that we intend to prove by way of our submission on jail
   5   conditions and security in terms of future dangerousness.  The
   6   government is considering that in determining how much they
   7   will respond vis a vis Pepe, and that is open discussion.  I
   8   think it is resolved.
   9            MR. FITZGERALD:  Judge, we are not going to offer the
  10   incident involving Officer Pepe on our direct case.  We
  11   discussed with the Al-'Owhali team what their defense will be
  12   on the issue of dangerousness.  We are figuring out what we
  13   can say as to what our likely rebuttal case will be.  So it
  14   will not be on our direct case.
  15            MR. COHN:  We have at least told the government what
  16   our position is going to be so we can know how they will
  17   respond.  My own feeling is that that is probably resolved.
  18   We will know that tomorrow.
  19            THE COURT:  Is there any issue with respect to victim
  20   impact other than photographs?
  21            MR. COHN:  Yes.  Well, there may be.  They have given
  22   us all these photographs which we really want to deal with,
  23   and we think that for everybody's sake it is probably better
  24   that we resolve that tomorrow morning.
  25            THE COURT:  I have no problem deferring.  I just want
                                                                6295
   1   to make sure what is open and what isn't open.
   2            There were requests for summaries, for additional
   3   information with respect to the victims, and the government
   4   has submitted redacted 3500's with respect to the victims and
   5   a chart with a summary of the victims' testimony --
   6            MR. COHN:  Our request was after the government's
   7   submission.  We regard that as insufficient.  I don't know
   8   whether the government has responded to that in this
   9   submission that they made today or not.  If they haven't, we
  10   will have to resolve that tomorrow.
  11            MR. GARCIA:  We have, Judge.  I think there are three
  12   issues on the victim impact material.  One is
  13   photographic/videotapes of victims and deceased victims.  The
  14   second issue is the amount of victim witness testimony.  The
  15   third issue is the disclosure made to date by the government
  16   in response to your Honor's order for the bill of particulars.
  17   All those issues are addressed in the covering memorandum
  18   attached to the actual photographic exhibits the government
  19   intends to offer.
  20            THE COURT:  So we will adjourn until 10 a.m. tomorrow
  21   for matters relating to victim impact. 
                                                                6219
   1            (Time noted, 4:15 p.m.)
   2            THE COURT:  The note from the jury reads --
   3            MR. WILFORD:  Excuse me, your Honor.  There is nobody
   4   here for Khalfan Khamis Mohamed.
   5            THE COURT:  It requires no decision-making, no
   6   action.  I will repeat it when Mr. Ruhnke returns:  For
   7   testimony, we would like to have Special Agent Gaudin's
   8   testimony read to us.  Specifically, we are interested in what
   9   he said regarding why embassies are targeted.  Again we thank
  10   you.
  11            What I would suggest that we do is we identify and
  12   read to them only that portion of his testimony, and I will
  13   explicitly say to them if there is anything further with
  14   respect to Agent Gaudin's testimony that you would like,
  15   please send us another note.
  16            Let us get together tomorrow at 9:45 to make sure
  17   that there is consensus on what portions of the testimony are
  18   to be read.
  19            Has somebody called Mr. Ruhnke?
  20            (Pause)
  21            (All counsel and defendants present)
  22            THE COURT:  Counsel for K.K. Mohamed has arrived and
  23   the defendants are present.  Madam Reporter, would you read
  24   the last colloquy.
  25            (Record read)
                                                                6220
   1            THE COURT:  So we will adjourn then until 9:45
   2   tomorrow, at which time I hope counsel will have agreed on
   3   what portions of Gaudin's testimony, direct and cross, deal
   4   with the questions of why embassies are targeted.  Subject to
   5   receiving another note from the jury within the next 10
   6   minutes, we are adjourned until tomorrow at 9:45.
   7            (Proceedings adjourned until 9:45 a.m., Thursday, May
   8   17, 2001)
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