3 July 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 73 of the trial, July 3, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
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2 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3 ------------------------------x
4 UNITED STATES OF AMERICA
5 v. S(7) 98 Cr. 1023
6 USAMA BIN LADEN, et al.,
7 Defendants.
8 ------------------------------x
9
New York,
10 N.Y.
July 3, 2001
11 9:45 a.m.
12
13
Before:
14
HON. LEONARD B. SAND,
15
District Judge
16
APPEARANCES
17
MARY JO WHITE
18 United States Attorney for the
Southern District of New York
19 BY: PATRICK FITZGERALD
MICHAEL GARCIA
20 Assistant United States Attorneys
21
22 DAVID RUHNKE
DAVID STERN
23 Attorneys for defendant Khalfan Khamis
Mohamed
24
25
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2 (In open court)
3 THE COURT: Good morning, ladies and
4 gentlemen.
5 THE JURY: Good morning, your Honor.
6 THE COURT: For reasons which you are
7 aware of, we are going to sit only half a day
8 today. We'll probably break around noon. I am
9 not exactly sure when my charge will be
10 completed, but if you actually begin
11 deliberations today, why, we will excuse the
12 alternates. If you don't begin deliberations
13 today, we'll ask the alternates to return on
14 Thursday, and I will discuss that before you
15 leave.
16 The procedures that we will follow
17 with respect to the charge are those that we
18 followed twice in the past. It is just your
19 option whether you want to read along with me
20 or just listen, whatever you find to be most
21 helpful. And again, you have before you the
22 Court's charge and the Special Verdict Form,
23 and I believe you already have in the jury room
24 the copy of the Indictment and the Court's
25 instructions with respect to the guilt phase of
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2 the case. You have those documents, I assume.
3 If you don't have those documents for any
4 reason, please let the marshal know.
5 Much of what you will hear this
6 morning you will find repetitious, because
7 indeed the law that applies at this penalty
8 phase is the same law that applied in the last
9 penalty phase. There are differences, however.
10 And because the law requires that you make
11 separate findings as to all of the issues in
12 this case, we thought it best to lay it all out
13 again. So if things sound familiar, it's just
14 because you have become such experienced
15 jurors. But the fact that there is repetition
16 does not in any way diminish their importance.
17 Members of the jury, it is again my
18 duty to instruct you as to the law applicable
19 to the sentencing phase of this case.
20 I am on page 1 of the instructions.
21 The sole question before you is
22 whether Khalfan Khamis Mohamed should be
23 sentenced for his capital offenses to either
24 (1) the death penalty or (2) life imprisonment
25 without the possibility of release. The
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2 selection between these two very serious
3 choices is yours and yours alone to make. If
4 you determine, as to a particular count, that
5 Mr. Mohamed should be sentenced to death, or
6 instead to life imprisonment without the
7 possibility of release, the Court is required
8 to impose whichever sentence you choose as to
9 that count. There is no parole in the federal
10 system.
11 Remember that you have previously
12 found Mr. Mohamed guilty of the following
13 capital counts in the indictment, all of which
14 arise out of the August 7, 1998 bombing of the
15 United States Embassy in Dar es Salaam,
16 Tanzania: Counts 6, 8, 222 through 232, 275,
17 and 276. Even though there are a total of 15
18 capital counts at issue here, you must still
19 approach the sentencing decision before you
20 separately as to each count and, of course,
21 with an open mind. I cannot stress to you
22 enough the importance of your giving careful
23 and thorough consideration to all the evidence.
24 And regardless of any opinion you may have as
25 to what the law may be -- or should be -- it
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2 would be a violation of your oaths as jurors to
3 base your sentencing decision upon any view of
4 the law other than that which is given to you
5 in these instructions.
6 Most of the legal principles that you
7 must apply to your sentencing decision
8 duplicate those you followed in the prior
9 sentencing proceeding as to defendant
10 Al-'Owhali. Others are different. The
11 instructions I am giving you now are a complete
12 set of instructions on the law applicable to
13 the sentencing decision as to Mr. Mohamed;
14 during your deliberations you should thus rely
15 on these instructions. I have also prepared,
16 as before, a Special Verdict Form that you must
17 complete. The form, by detailing the special
18 findings you must make, will aid you in
19 properly performing your deliberative duties.
20 Now, although Congress has left it
21 wholly to you, the jury, to decide
22 Mr. Mohamed's proper punishment, it has
23 narrowed and channeled your discretion in
24 specific ways -- particularly by making you
25 consider and weigh any "aggravating" and
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2 "mitigating" factors present in the case. As I
3 explained previously, these factors have to do
4 with the circumstances of the crime, or the
5 personal traits, character, or background of
6 Mr. Mohamed, or anything else relevant to the
7 sentencing decision. Aggravating factors are
8 those that would tend to support imposition of
9 the death penalty. By contrast, mitigating
10 factors are those that suggest that life in
11 prison without the possibility of release is an
12 appropriate sentence in this case.
13 Of course, your task is not simply to
14 decide what aggravating and mitigating factors
15 exist here. Rather, you are called upon to
16 evaluate any such factors and to make a unique,
17 individualized choice between the death penalty
18 and life in prison without the possibility of
19 release. In short, the law does not assume
20 that every defendant found guilty of committing
21 murder should be sentenced to death. Nor does
22 the law presume that Mr. Mohamed, in
23 particular, should be sentenced to death.
24 Rather, your decision on the question of
25 punishment is a uniquely personal judgment
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2 which the law, in the final analysis, leaves up
3 to each of you.
4 The government, at all times and as
5 to all the capital counts, has the burden of
6 proving beyond a reasonable doubt that the
7 appropriate sentence for Mr. Mohamed is in fact
8 the death penalty. Specifically, that means
9 that the government must prove as to each
10 capital count all of the following beyond a
11 reasonable doubt: (1) the existence of at
12 least one gateway factor; (2) the existence of
13 at least one statutory aggravating factor; (3)
14 the existence, if any, of non-statutory
15 aggravating factors; and (4) that all the
16 aggravating factors found to exist sufficiently
17 outweigh all of the mitigating factors found to
18 exist as to make a sentence of death
19 appropriate, or, in the absence of any
20 mitigating factor, that the aggravating factors
21 found to exist alone make a sentence of death
22 appropriate.
23 A "reasonable doubt" is a doubt based
24 upon reason and common sense after careful and
25 impartial consideration of all the evidence.
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2 Proof beyond a reasonable doubt must be proof
3 of such a convincing character that a
4 reasonable person would rely and act upon it
5 without hesitation in the most important
6 matters of his or her own affairs. Yet proof
7 beyond a reasonable doubt does not mean proof
8 beyond all possible doubt.
9 A defendant never has the burden of
10 disproving the existence of anything which the
11 government must prove beyond a reasonable
12 doubt. The burden is wholly upon the
13 government; the law does not at all require
14 Mr. Mohamed to produce evidence that a
15 particular aggravating factor does not exist or
16 that death is not an appropriate sentence.
17 As such, Mr. Mohamed is not required
18 to assert or establish any mitigating factors.
19 However, if one or more mitigating factors are
20 asserted, it is Mr. Mohamed's burden to
21 establish any mitigating factors by a
22 preponderance of the evidence. To prove
23 something by a preponderance of the evidence is
24 a lesser standard of proof than proof beyond a
25 reasonable doubt. To prove something by a
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2 preponderance of the evidence is to prove that
3 it is more likely true than not true. It is
4 determined by considering all of the evidence
5 and deciding what of the evidence is more
6 believable. If, however, the evidence is
7 equally balanced, you cannot find that the
8 mitigating factor has been proved.
9 The preponderance of the evidence is
10 not determined by the greater number of
11 witnesses or exhibits presented by the
12 government or the defendant. Rather, it is the
13 quality and persuasiveness of the information
14 which controls.
15 In making all the determinations you
16 are required to make in this phase of the
17 trial, you may consider any information
18 presented during this penalty phase and the
19 guilt phase, but excluding any evidence which
20 was introduced solely against another
21 defendant. Also, recall that for our purposes
22 here the terms "evidence" and "information"
23 have the same meaning.
24 In deciding what the facts are, you
25 may have to decide which testimony you believe
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2 and what testimony you do not believe. You may
3 believe all of what a witness said, or only
4 part of it, or none of it. In deciding what
5 testimony of any witness to believe, consider
6 the witness's intelligence, the opportunity the
7 witness had to see or hear the things testified
8 about, the witness's memory, any motives that
9 witness may have for testifying in a certain
10 way, the manner of the witness while
11 testifying, whether that witness said something
12 different at an earlier time, the general
13 reasonableness of the testimony, and the extent
14 to which the testimony is consistent with other
15 evidence that you believe.
16 Additionally, because the law does
17 not permit any witness to state whether he or
18 she favors or opposes the death penalty in this
19 case, you should draw no inference either way
20 from the fact that no witnesses have testified
21 as to their views on this subject.
22 Mr. Mohamed did not testify in this
23 case. He has a right not to do so and there is
24 no burden upon Mr. Mohamed to prove that he
25 should not be sentenced to death. Instead, the
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2 burden is entirely on the prosecution to prove,
3 beyond a reasonable doubt, that a sentence of
4 death is in fact justified. Accordingly, that
5 Mr. Mohamed did not testify must not be
6 considered by you in any way, or even
7 discussed, in arriving at any aspect of your
8 sentencing decision, including the existence or
9 nonexistence of an alleged aggravating or
10 mitigating factor.
11 You must deliberate and determine the
12 appropriate sentence for each of the capital
13 counts separately. Although I will be
14 discussing the capital counts as a group, your
15 findings regarding gateway factors, aggravating
16 factors, and all other issues pertaining to
17 these counts must treat each of these counts
18 separately. It is possible that, even though
19 all of the counts are connected with the
20 bombing of the Dar es Salaam embassy, you may
21 find differences which would justify different
22 sentences on different counts.
23 The instructions I am about to give
24 you, as well as the Special Verdict Form you
25 will be completing, will first address your
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2 findings, if any, regarding the four so-called
3 "gateway factors" and the statutory aggravating
4 factors identified by the government with
5 regard to each capital count. The instructions
6 and the Special Verdict Form thereafter address
7 your findings, if any, as to each capital count
8 regarding the existence of non-statutory
9 aggravating factors and mitigating factors, as
10 well as the weighing of aggravating and
11 mitigating factors.
12 Finding of gateway factors: Before
13 you may consider the imposition of the death
14 penalty for any capital count, you must first
15 unanimously find, beyond a reasonable doubt,
16 the existence as to that count of at least one
17 of the four gateway factors identified by the
18 government. The gateway factors are as
19 follows:
20 1. That the defendant intentionally
21 killed the victim or victims of the particular
22 capital offense charged in the respective count
23 of the indictment; or
24 2. That the defendant intentionally
25 inflicted serious bodily injury that resulted
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2 in the death of the victim or victims of the
3 particular capital offense charged in the
4 respective count of the indictment; or
5 3. That the defendant intentionally
6 participated in an act, contemplating that the
7 life of a person would be taken or intending
8 that lethal force would be used in connection
9 with a person, other than one of the
10 participants in the offense, and the victim or
11 victims of the particular capital offense
12 charged in the respective count of the
13 indictment died as a direct result of the act;
14 or
15 4. That the defendant intentionally
16 and specifically engaged in an act of violence,
17 knowing that the act created a grave risk of
18 death to a person, other than one of the
19 participants in the offense, such that
20 participation in the act constituted a reckless
21 disregard for human life and the victim or
22 victims of the particular capital offense
23 charged in the respective count of the
24 indictment died as a direct result of the fact.
25 Your findings as to whether the
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2 government has proven the existence, beyond a
3 reasonable doubt, of a particular factor from
4 among these four gateway factors must be
5 separate and unanimous as to each capital
6 count.
7 And with regard to your findings, you
8 may not rely solely upon your first-stage
9 verdict of guilt or your factual determinations
10 therein. Instead, you must now each decide
11 this issue for yourselves again.
12 Any finding that a gateway factor has
13 been proven as to a particular capital count
14 must be based on Mr. Mohamed's personal actions
15 and intent. Intent or knowledge may be proven
16 like anything else. You may consider any
17 statements made and acts done by Mr. Mohamed,
18 and all the facts and circumstances in evidence
19 which may aid in a determination of
20 Mr. Mohamed's knowledge or intent. You may,
21 but are not required to, infer that a person
22 intends the natural and probable consequences
23 of acts knowingly done or knowingly omitted.
24 In the event that you unanimously
25 find, beyond a reasonable doubt, that a
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2 particular gateway factor exists as to all the
3 capital counts, you are to indicate that
4 finding on the appropriate line in Section I,
5 Part A of the Special Verdict Form. In the
6 event that you unanimously find, beyond a
7 reasonable doubt, that a particular gateway
8 factor exists as to some but not all of the
9 capital counts, you are to indicate that
10 finding on the appropriate line in Section I,
11 Part A of the Special Verdict Form, and also
12 identify on the line provided, by count number,
13 the specific capital counts as to which you
14 find that gateway factor applies. If you do
15 not unanimously find that a particular gateway
16 factor has been proven beyond a reasonable
17 doubt with respect to any of the capital
18 counts, you should mark the appropriate space
19 in Section I, Part A.
20 I instruct you that any gateway
21 factor found by you to exist is not an
22 aggravating factor and may not be weighed by
23 you in deciding whether or not to impose a
24 sentence of death.
25 For any capital count, if you do not
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2 unanimously find that the government has proven
3 beyond a reasonable doubt the existence as to
4 that count of any of the four gateway factors,
5 your deliberative task as to that capital count
6 will be over and the Court will impose a
7 mandatory sentence on that count of life
8 imprisonment without the possibility of
9 release. Section I, Part B of the Special
10 Verdict Form provides a space for you to
11 indicate those counts, if any, for which you
12 have not unanimously found that the government
13 has proven beyond a reasonable doubt the
14 existence of any gateway factor.
15 I might say here that with respect to
16 the Special Verdict Form, the sections with
17 respect to gateway factors, statutory factors
18 and non-statutory factors are the same as they
19 were with respect to the prior proceedings.
20 The only differences are with respect to the
21 names and the count numbers. And so I won't go
22 over with you again those portions of the
23 Special Verdict Form. It doesn't mean they are
24 not important, that you don't have to
25 conscientiously complete them, but I just won't
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2 bother to re-read them again because you are
3 quite familiar with them already.
4 Turning, then, to statutory
5 aggravating factors.
6 If and only if you unanimously find
7 that the government has proven, beyond a
8 reasonable doubt, that at least one of the four
9 gateway factors exists as to a particular
10 capital count, you must then proceed to
11 determine whether the government has proven,
12 beyond a reasonable doubt, the existence of any
13 of the following four statutory aggravating
14 factors with respect to that same count:
15 1. The deaths, and injuries
16 resulting in death, occurred during the
17 commission or attempted commission of another
18 offense, namely, one of the following offenses
19 listed under Title 18, United States Code:
20 Section 844(f)(bombing of property leased to
21 the United States Government); Section 1116
22 (killing or attempted killing of
23 internationally protected persons); Section
24 2332 (terrorist acts abroad against United
25 States nationals); or Section 2332a (use of a
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2 weapon of mass destruction).
3 2. The defendant, in the commission
4 of the offense, knowingly created a grave risk
5 of death to one or more persons in addition to
6 the victims of the offense.
7 3. The defendant committed the
8 offense after substantial planning and
9 premeditation to cause the death of one or more
10 persons or to commit an act of terrorism.
11 4. The defendant intentionally
12 killed or attempted to kill more than one
13 person in a single episode.
14 At this point the law directs you to
15 consider and decide -- separately as to each of
16 the capital counts for which you have
17 unanimously found the existence of at least one
18 gateway factor -- the existence or nonexistence
19 of the statutory aggravating factors
20 specifically claimed by the government. You
21 are reminded that to find the existence of a
22 statutory aggravating factor as to a particular
23 count, your decision must be unanimous and
24 beyond a reasonable doubt. Any finding that
25 one or more of these factors has been proven
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2 must be based on Mr. Mohamed's personal actions
3 and intent.
4 In the event that you unanimously
5 find, beyond a reasonable doubt, that a
6 particular statutory aggravating factor exists
7 as to all the capital counts for which you have
8 found the existence of at least one gateway
9 factor, you are to indicate that finding on the
10 appropriate line in Section II, Part A of the
11 Special Verdict Form. In the event that you
12 unanimously find, beyond a reasonable doubt,
13 that a particular statutory aggravating factor
14 exists as to some but not all of the capital
15 counts for which you have found the existence
16 of at least one gateway factor, you are to
17 indicate that finding on the appropriate line
18 in Section II, Part A of the Special Verdict
19 Form, and also identify on the line provided,
20 by count number, the particular counts as to
21 which you find the statutory aggravating factor
22 applies. If you do not unanimously find that a
23 particular statutory aggravating factor has
24 been proven beyond a reasonable doubt with
25 respect to any of the capital counts you are
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2 considering, you should mark the appropriate
3 space in Section II, Part A of the Special
4 Verdict Form.
5 For any capital count for which you
6 unanimously found the existence of at least one
7 gateway factor, if you do not also unanimously
8 find as to that same count the existence of at
9 least one statutory aggravating factor, then
10 your deliberative task as to that count will be
11 over and the Court will impose a mandatory
12 sentence on that count of life imprisonment
13 without the possibility of release. Section
14 II, Part B of the Special Verdict Form provides
15 a space for you to indicate those counts, if
16 any, for which you have not unanimously found
17 that the government has proven beyond a
18 reasonable doubt the existence of any
19 aggravating factor.
20 Let me now instruct you in detail on
21 the specific elements necessary for the
22 government to prove each of these four
23 statutory aggravating factors beyond a
24 reasonable doubt.
25 The first statutory aggravating
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2 factor alleged by the government with regard to
3 the various counts is that the deaths or
4 injuries resulting in death of the victim or
5 victims identified in a particular count
6 occurred during the commission of a crime other
7 than the crime charged in that particular
8 count. Thus, as to each count, you must
9 determine if the victim or victims identified
10 was killed during the commission of certain
11 other crimes, as those other crimes are set
12 forth in the Special Verdict Form. Depending
13 on the particular count, the other crimes
14 alleged are one or more of the following
15 offenses: 18 U.S.C. 844(f)(bombing of property
16 leased to the United States Government); 18
17 U.S.C. 1116 (killing or attempted killing of
18 internationally protected persons); 18 U.S.C.
19 2332 (terrorist acts abroad against United
20 States nationals); and 18 U.S.C. 2332a (use of
21 a weapon of mass destruction).
22 In order to prove that the deaths or
23 injuries resulting in death occurred during the
24 commission of the separate offense of bombing
25 of property leased to the United States
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2 Government (in violation of 18 U.S.C. Section
3 844(f)), the government must prove beyond a
4 reasonable doubt exactly that, that the death
5 or injury resulting in death of the victim or
6 victims identified in the particular count
7 occurred during the commission of a violation
8 of 18 U.S.C. Section 844(f). You have
9 previously found that Mr. Mohamed violated 18
10 U.S.C. 844(f), as reflected in your guilty
11 verdict on Count 6. Accordingly, solely as to
12 Count 6, you may not consider the commission of
13 the violation of 18 U.S.C. Section 844(f) as
14 "another crime."
15 In order to prove that the deaths or
16 injuries resulting in death occurred during the
17 commission of the separate offense of killing
18 or attempted killing of internationally
19 protected persons (in violation of 18 U.S.C.
20 Section 1116), the government must prove beyond
21 a reasonable doubt exactly that, that the death
22 or injury resulting in death of one or more of
23 the victims of the Dar es Salaam bombing
24 occurred during the commission or attempted
25 commission of a violation of 18 U.S.C. Section
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2 1116. You have previously found that
3 Mr. Mohamed violated 18 U.S.C. Section 1116, as
4 reflected in your guilty verdict on Count 281.
5 In order to prove that the deaths or
6 injuries resulting in death occurred during the
7 commission of the separate offense of terrorist
8 acts abroad against United States nationals (in
9 violation of 18 U.S.C. Section 2332), the
10 government must prove beyond a reasonable doubt
11 exactly that, that the death or injury
12 resulting in death of one or more of the
13 victims of the Dar es Salaam bombing occurred
14 during the commission of a violation of 18
15 U.S.C. 2332. You have previously found that
16 Mr. Mohamed violated 18 U.S.C. 2332, as
17 reflected in your guilty verdict on Count 1.
18 Excuse me just a moment.
19 (Pause)
20 THE COURT: In order to prove that
21 the deaths or injuries resulting in death
22 occurred during the commission of the separate
23 offense of use of a weapon of mass destruction
24 against United States nationals, (in violation
25 of 18 U.S.C. 2332a) the government must prove
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2 beyond a reasonable doubt exactly that, that
3 the death or injury resulting in death of one
4 or more of the victims of the Dar es Salaam
5 bombing occurred during the commission of a
6 violation of 18 U.S.C. 2332a. You have
7 previously found that Mr. Mohamed violated 18
8 U.S.C. 2332a, as reflected in your guilty
9 verdict on Count 8. Accordingly, solely as to
10 Count 8, you may not consider the commission of
11 the violation of 18 U.S.C. 2332a as "another
12 crime."
13 For each of the capital counts you
14 are considering, in order to find that the
15 government has satisfied its burden of proving
16 beyond a reasonable doubt that the deaths or
17 injuries resulting in death of the victims of
18 the Dar es Salaam bombing occurred during the
19 commission of one or more of these other
20 offenses, you must unanimously agree on which
21 other offenses were committed by Mr. Mohamed.
22 Your finding as to this statutory aggravating
23 factor must be indicated in the appropriate
24 space in Section II, Part A.1 of the Special
25 Verdict Form.
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2 The second statutory aggravating
3 factor alleged by the government with regard to
4 the capital counts is that, in the commission
5 of the particular offenses, the defendant
6 knowingly created a grave risk of death to one
7 or more persons in addition to the deceased
8 victim or victims identified in that particular
9 count.
10 To establish the existence of this
11 factor, the government must prove beyond a
12 reasonable doubt that Mr. Mohamed, in
13 committing the offense described in the capital
14 count you are considering, knowingly created a
15 grave risk of death to one or more persons in
16 addition to the deceased victim or victims
17 identified in the particular count.
18 "Knowingly" creating such a risk
19 means that Mr. Mohamed was conscious and aware
20 that his conduct in the course of committing
21 the offense might have this result.
22 Mr. Mohamed's conduct cannot merely have been
23 the product of ignorance, mistake or accident.
24 Knowledge may be proved like anything else.
25 You may consider any statements made and acts
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2 done by Mr. Mohamed, and all the facts and
3 circumstances in evidence which may aid in a
4 determination of Mr. Mohamed's knowledge.
5 "Grave risk of death" means a
6 significant and considerable possibility that
7 another person might be killed. In order to
8 find that the government has proven this factor
9 beyond a reasonable doubt, you must unanimously
10 agree on a particular person or a class of
11 persons who were placed in danger by
12 Mr. Mohamed's actions.
13 "Persons in addition to the victims"
14 include innocent bystanders in the zone of
15 danger created by the defendant's acts, but do
16 not include other participants in the offense.
17 Your finding as to this statutory
18 aggravating factor must be indicated in Section
19 II, Part A.2 of the Special Verdict Form.
20 The third statutory aggravating
21 factor alleged by the government with regard to
22 the capital counts is that the defendant
23 committed the offenses under the particular
24 counts after substantial planning and
25 premeditation to cause the death of a person or
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2 to commit an act of terrorism.
3 "Planning" means mentally formulating
4 a method for doing something or achieving some
5 end.
6 "Premeditation" means thinking or
7 deliberating about something and deciding
8 whether to do it beforehand.
9 "Substantial" planning and
10 premeditation means a considerable or
11 significant amount of planning and
12 premeditation.
13 An "act of terrorism" is an act
14 calculated to influence or affect the conduct
15 of government by intimidation or coercion, or
16 to retaliate against government conduct.
17 To find that Mr. Mohamed -- strike
18 that. I misspoke.
19 To find that the government has
20 satisfied its burden of proving beyond a
21 reasonable doubt that Mr. Mohamed engaged in
22 substantial planning and premeditation either
23 to cause the death of a person or to commit an
24 act of terrorism, you must unanimously agree on
25 the particular object of the substantial
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2 planning and premeditation, either to cause the
3 death of a person, to commit an act of
4 terrorism, or to do both. Your finding as to
5 this statutory aggravating factor must be
6 indicated in the appropriate space in Section
7 II, Part A.3 of the Special Verdict Form.
8 The fourth and final statutory
9 aggravating factor alleged by the government
10 with regard to the capital counts is that the
11 defendant intentionally killed or attempted to
12 kill more than one single person in a single
13 criminal enterprise.
14 To establish the existence of this
15 factor, the government must prove beyond a
16 reasonable doubt that Mr. Mohamed intentionally
17 killed or attempted to kill more than one
18 person in a single criminal episode. You must
19 unanimously agree on the particular actual or
20 intended victims or a class of intended victims
21 in order to find that this factor has been
22 proven beyond a reasonable doubt.
23 "Intentionally killing" a person
24 means killing a person on purpose, that is:
25 Willfully, deliberately, or with a conscious
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2 desire to cause a person's death (and not just
3 accidentally or involuntarily).
4 "Attempting to kill" a person means
5 purposefully doing some act which constitutes a
6 substantial step (beyond mere preparation or
7 planning) toward killing a person, and doing so
8 with the intent to cause a person's death. You
9 may not find that the defendant attempted to
10 kill a person who was actually killed.
11 "A single criminal episode" is an act
12 or series of related criminal acts which occur
13 within a relatively limited time and place, or
14 are directed at the same person or persons, or
15 are part of a continuous course of conduct
16 related in time, place, or purpose.
17 You may, but are not required to,
18 infer that a person of sound mind intended the
19 ordinary, natural, and probable consequences of
20 his knowing and voluntary acts. Thus, you may
21 infer from Mr. Mohamed's conduct that he
22 intended to kill a person if you find: (1)
23 that Mr. Mohamed was a person of sound mind;
24 (2) that the victim's death was an ordinary,
25 natural, and probable consequence of
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2 Mr. Mohamed's acts (even if the victim's death
3 did not actually result, in the case of an
4 attempt); and (3) that Mr. Mohamed committed
5 these acts knowingly and voluntarily. But once
6 again, you are not required to make such an
7 inference. Your finding as to this statutory
8 aggravating factor must be indicated in the
9 appropriate space in Section II, Part A.4 of
10 the Special Verdict Form.
11 Please let me reiterate that if, with
12 respect to any capital count, you do not
13 unanimously find that the government has proven
14 beyond a reasonable doubt at least one
15 statutory aggravating factor, your
16 deliberations as to that particular count are
17 concluded. And please identify any such counts
18 in Section II, Part B of the Special Verdict
19 Form.
20 Let me give the court reporter a
21 minute's respite.
22 Let me see counsel at the side,
23 without the reporter.
24 (Discussion at sidebar off the
25 record)
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2 THE COURT: Non-statutory aggravating
3 factors: If but only if you have unanimously
4 found that the government has proven beyond a
5 reasonable doubt the existence as to a
6 particular capital count of at least one
7 gateway factor and at least one statutory
8 aggravating factor alleged by the government,
9 you must then consider whether the government
10 has proven the existence of any non-statutory
11 aggravating factors with regard to that same
12 count. You must agree unanimously, and
13 separately as to each count, that the
14 government has proven beyond a reasonable doubt
15 the existence of any of the alleged
16 non-statutory aggravating factors before you
17 may consider that non-statutory aggravating
18 factor in your deliberations.
19 The law permits you to consider and
20 discuss only the three non-statutory
21 aggravating factors specifically claimed by the
22 government in advance and listed below. You
23 are not free to consider any other factors in
24 aggravation that you conceive of on your own.
25 The non-statutory aggravating factors
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2 alleged by the government with regard to each
3 of the capital counts are as follows:
4 A. The defendant poses a continuing
5 and serious threat to the lives and safety of
6 others with whom he will come in contact.
7 B. As demonstrated by the deceased
8 victims' personal characteristics as individual
9 human beings and the impact of the deaths upon
10 the deceased victims' families, the defendant
11 caused injury, harm, and loss to those victims
12 and their families, and the defendant caused
13 serious physical and emotional injury and
14 grievous economic hardship to numerous
15 individuals who survived the bombing.
16 C. The victims and intended victims
17 included high-ranking public officials of the
18 United States serving abroad and the offense
19 was motivated by such status.
20 These non-statutory aggravating
21 factors are self-explanatory and do not require
22 substantive instruction. Note that the
23 non-statutory aggravating factor of future
24 dangerousness may only be considered by you in
25 the context of both the mandatory life sentence
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2 without the possibility of release that must be
3 imposed by the Court if Mr. Mohamed is not
4 sentenced to death, and the conditions of
5 confinement that may likely be imposed by the
6 United States Bureau of Prisons.
7 Again, your findings regarding these
8 factors must be separate and unanimous with
9 regard to each capital count you are
10 considering. You also must unanimously agree,
11 beyond a reasonable doubt, that the
12 non-statutory aggravating factor alleged by the
13 government is in fact aggravating. As I
14 mentioned at the beginning of this sentencing
15 hearing, an aggravating factor is a fact or
16 circumstance that would tend to support
17 imposition of the death penalty.
18 In the event that you unanimously
19 find, beyond a reasonable doubt, that a
20 particular non-statutory aggravating factor
21 applies to all of the capital counts for which
22 you have found at least one gateway factor and
23 at least one statutory aggravating factor, you
24 are to indicate that finding on the appropriate
25 line in Section III of the Special Verdict
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2 Form. In the event that you unanimously find
3 that a particular non-statutory aggravating
4 factor applies to some but not all of these
5 counts, you are to indicate that finding on the
6 appropriate line in Section III of the Special
7 Verdict Form, and also indicate on the line
8 provided, by count number, the particular
9 counts as to which you find the non-statutory
10 aggravating factor applies.
11 If you do not unanimously find that a
12 non-statutory aggravating factor has been
13 proven beyond a reasonable doubt with regard to
14 any capital count, you should so indicate in
15 Section III of the Special Verdict Form.
16 Unlike with gateway factors and
17 statutory aggravating factors, you are not
18 required to find a non-statutory aggravating
19 factor with regard to a particular count before
20 you may consider the death penalty as the
21 possible sentence for that count. Rather, the
22 law only requires that before the jury may
23 consider an alleged non-statutory aggravating
24 factor in its sentencing decision as to any
25 capital count, the jury must first unanimously
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2 agree that the government has proven beyond a
3 reasonable doubt the existence of that factor
4 as to that count.
5 After you have completed your
6 findings regarding the existence or
7 nonexistence of non-statutory aggravating
8 factors, you should proceed to Section IV of
9 the Special Verdict Form, to consider whether
10 any mitigating factors exist. Remember, unless
11 you are unanimous that the existence of a
12 particular statutory or non-statutory
13 aggravating factor has been proven by the
14 government beyond a reasonable doubt, you may
15 not give that factor any further consideration
16 during any of your deliberations.
17 And then we turn to mitigating
18 factors.
19 Before you may consider the
20 appropriate punishment for any of the capital
21 counts for which you have unanimously found the
22 existence of at least one gateway factor and at
23 least one statutory aggravating factor, you
24 must consider whether Mr. Mohamed has proven
25 the existence of any mitigating factors with
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2 regard to those counts. A mitigating factor is
3 not offered to justify or excuse Mr. Mohamed's
4 conduct. Instead, a mitigating factor is a
5 fact about Mr. Mohamed's life or character, or
6 about the circumstances surrounding the
7 particular capital offense, or anything else
8 relevant that would suggest, in fairness, that
9 life in prison without the possibility of
10 release is a more appropriate punishment than a
11 sentence of death.
12 Unlike with aggravating factors,
13 which you must unanimously find proven beyond a
14 reasonable doubt in order for you even to
15 consider them in your deliberations, the law
16 does not require unanimity with regard to
17 mitigating factors. Any one juror who is
18 persuaded of the existence of a mitigating
19 factor must consider it in his or her
20 sentencing decision.
21 Furthermore, it is Mr. Mohamed's
22 burden to establish a mitigating factor only by
23 a preponderance of the evidence. As I have
24 told you, this is a lesser standard of proof
25 under the law than proof beyond a reasonable
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2 doubt. A factor is established by a
3 preponderance of the evidence if its existence
4 is shown to be more likely so than not so. In
5 other words, a preponderance of the evidence
6 means such evidence as, when considered and
7 compared with that opposed to it, produces in
8 your mind the belief that what is sought to be
9 established is, more likely than not, true.
10 If, however, the evidence is equally balanced,
11 you cannot find that the factor has been
12 proved.
13 Mr. Mohamed urges as mitigating
14 factors two undisputed matters of law, which
15 you are to consider during the weighing
16 process. Extrapolating, saying something that
17 isn't here, there are certain other matters of
18 fact which are undisputed, such as his age, but
19 these two we single out because these are
20 undisputed matters of law which you are to
21 consider during the weighing process.
22 These factors are, and it was listed
23 as D in the original listing: If Khalfan
24 Mohamed is not sentenced to death, the law
25 mandates that he will spend the rest of his
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2 life in a United States prison without any
3 possibility of release.
4 K. As a matter of South African law,
5 Khalfan Mohamed should not have been released
6 to American officials without assurances that
7 he would not face the death penalty in the
8 United States.
9 In addition to those two undisputed
10 matters of law, the following are mitigating
11 factors alleged by Mr. Mohamed as to which you
12 will be called upon to render a verdict
13 indicating whether you find the factors to
14 exist:
15 A. Khalfan Mohamed's role in the
16 offense and relative culpability, as set out
17 below:
18 (1) Khalfan Mohamed was not a leader
19 or organizer of the conspiracy which led to the
20 bombing of the Dar es Salaam embassy.
21 (2) Although Khalfan Mohamed is
22 guilty of the murders, his participation was
23 relatively minor.
24 (3) Khalfan Mohamed was recruited by
25 others as someone who was an expendable member
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2 of the conspiracy.
3 B. Others of equal or greater
4 culpability in the murders will not be
5 sentenced to death.
6 C. Khalfan Mohamed's postarrest
7 statement was:
8 (1) complete and truthful.
9 (2) demonstrated acceptance of
10 responsibility.
11 (3) provided the interviewing agents
12 with valuable information.
13 E. Khalfan Mohamed has no prior
14 history of criminal behavior.
15 F. Executing Khalfan Mohamed will
16 cause his family to suffer grief and loss.
17 G. Khalfan Mohamed is remorseful for
18 the deaths, injuries and other consequences of
19 the bombing of the embassy and would not
20 participate in such a crime in the future.
21 H. Khalfan Mohamed acted out of
22 sincere religion belief.
23 I. At the time of the offense,
24 Khalfan Mohamed was 25 years old.
25 J. If Khalfan Mohamed is executed,
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2 he will be seen as a martyr and his death may
3 be exploited by others to justify future
4 terrorist acts.
5 L. Khalfan Mohamed's personal
6 characteristics as an individual human being
7 include the following:
8 (1) Khalfan Mohamed has exhibited
9 responsible conduct in other areas of his life.
10 (2) Khalfan Mohamed has shown himself
11 to be a person capable of kindness, friendship
12 and generosity.
13 (3) Khalfan Mohamed lost his father
14 at an early age, and worked to help his family,
15 which struggled financially after the death of
16 the major breadwinner.
17 In Section IV of the Special Verdict
18 Form, you are asked to report the total number
19 of jurors who individually find a particular
20 mitigating factor to be established by a
21 preponderance of the evidence.
22 And let's just look briefly at the
23 Special Verdict Form on page 12, and you will
24 see there it has the instructions with respect
25 to the various mitigating factors.
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2 D and K, which are the undisputed
3 matters of law, appear in the second paragraph
4 because there is no need for you to make any
5 finding as to that. And then below you will
6 see the various alleged mitigating factors and
7 the spaces for you to indicate the number of
8 jurors who find that those enumerated
9 mitigating factors existed.
10 I am on the last line on page 24:
11 In addition to the 12 mitigating
12 factors specifically raised by the defendant,
13 the law permits you to consider anything about
14 the circumstances of the offense, or anything
15 about Mr. Mohamed's background, record, or
16 character, or anything else relevant that you
17 individually believe mitigates against the
18 imposition of the death penalty. As such, if
19 there are any mitigating factors not argued by
20 the attorneys for Mr. Mohamed but which any
21 juror, on his or her own or with others, finds
22 to be established by a preponderance of the
23 evidence, that juror is free to consider it in
24 his or her sentencing determination. And in
25 Section IV of the Special Verdict Form, you are
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2 to identify any such additional mitigating
3 factors that one or more of you independently
4 find to exist by a preponderance of the
5 evidence.
6 And you will see at the bottom of
7 page 14 of the Special Verdict Form, it says:
8 The law does not limit your consideration of
9 mitigating factors to those that can be
10 articulated in advance. Therefore, you may
11 consider during your deliberations any other
12 factor or factors in Khalfan Mohamed's
13 background, record, character, or any other
14 circumstances of the offense that mitigate
15 against imposition of a death sentence.
16 And the following extra spaces are
17 provided to write in additional mitigating
18 factors if found by one or more jurors, and if
19 more space is needed, write "continued" and
20 there is a space for you to write in mitigating
21 factor, which one or more juror finds exists,
22 although not alleged or argued by counsel, and
23 then the number of jurors who have so found.
24 At this time, I wish to make a
25 clarifying point: The existence of a
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2 mitigating factor is a predicate and distinct
3 consideration from whatever weight, if any,
4 should ultimately be given that factor in your
5 deliberations. For example, any number of
6 jurors might first find that a particular
7 mitigating factor is factually true, that is,
8 that the factor exists, but those jurors as
9 individuals might later choose to give that
10 same mitigating factor differing levels of
11 significance during the weighing process. With
12 this distinction in mind, Section IV of the
13 Special Verdict Form only asks you to report
14 the total number of jurors who individually
15 find the existence of a particular mitigating
16 factor to be established by a preponderance of
17 the evidence.
18 After you have completed your
19 findings regarding the existence or
20 nonexistence of mitigating factors, you should
21 proceed to Section V of the Special Verdict
22 Form, to weigh the aggravating factors and
23 mitigating factors with regard to each of the
24 counts for which you have unanimously found at
25 least one gateway factor and at least one
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2 statutory aggravating factor.
3 If and only if you unanimously find,
4 beyond a reasonable doubt, that the government
5 has proven the existence of at least one
6 gateway factor and at least one statutory
7 aggravating factor with regard to any capital
8 count; and after you then determine whether the
9 government has proven beyond a reasonable doubt
10 the existence of any non-statutory aggravating
11 factors with regard to that count, and whether
12 Mr. Mohamed has proven by a preponderance of
13 the evidence the existence of any mitigating
14 factors, you must then engage in a weighing
15 process with regard to that count. This
16 weighing process asks whether you are
17 unanimously persuaded, beyond a reasonable
18 doubt, that the aggravating factors
19 sufficiently outweigh any mitigating factors --
20 or, in the absence of any mitigating factors,
21 that the aggravating factors are themselves
22 sufficient -- to call for a sentence of death
23 on the particular capital count you are
24 considering.
25 You are to conduct this weighing
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2 process separately with regard to each of the
3 capital counts for which you have found at
4 least one gateway factor and at least one
5 statutory aggravating factor. Each juror must
6 individually decide whether the facts and
7 circumstances in this case, and as to each
8 count, call for death as the appropriate
9 sentence.
10 In determining the appropriate
11 sentence for the capital count you are
12 considering, all of you must independently
13 weigh the aggravating factor or factors that
14 you unanimously found to exist with regard to
15 that count -- whether statutory or
16 non-statutory -- and each of you must weigh any
17 mitigating factors that you individually or
18 with others found to exist. You are not to
19 weigh any of the four gateway factors I
20 mentioned previously as part of this process.
21 In engaging in the weighing process, you must
22 avoid any influence of passion, prejudice, or
23 any other arbitrary consideration. Your
24 deliberations should be based upon the evidence
25 you have seen and heard, and the law on which I
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2 have instructed you.
3 Again, whether or not the
4 circumstances in this case call for a sentence
5 of death is a decision that the law leaves
6 entirely to you. Remember that all 12 jurors
7 must agree beyond a reasonable doubt that death
8 is in fact the appropriate sentence, but that
9 no juror is ever required by the law to impose
10 a death sentence. The decision is yours as
11 individuals to make.
12 The process of weighing aggravating
13 and mitigating factors against each other -- or
14 weighing aggravating factors alone if you find
15 no mitigating factors -- in order to determine
16 the proper punishment, is by no means a
17 mechanical process. In other words, you should
18 not simply count the total number of
19 aggravating and mitigating factors and reach a
20 decision based on which number is greater;
21 rather, you should consider the weight and
22 value of each factor. In carefully weighing
23 these various factors, you are called upon to
24 make a unique, individual judgment about the
25 sentence Mr. Mohamed should receive.
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2 The law contemplates that different
3 factors may be given different weights or
4 values by different jurors. Thus, you may find
5 one mitigating factor outweighs all aggravating
6 factors combined, or that the aggravating
7 factors proved do not, standing alone, justify
8 imposition of a sentence of death beyond a
9 reasonable doubt. Similarly, you may instead
10 find that a single aggravating factor
11 sufficiently outweighs, beyond a reasonable
12 doubt, all mitigating factors combined so as to
13 justify a sentence of death.
14 Each juror is individually to decide
15 what weight or value is to be given to a
16 particular aggravating or mitigating factor in
17 the decision-making process. Bear in mind,
18 however, that in order to find that a sentence
19 of death is appropriate for a particular count,
20 the jurors must be unanimous in their
21 conclusion, beyond a reasonable doubt, that the
22 aggravating factor or factors proven as to that
23 count sufficiently outweigh any mitigating
24 factors found -- or, in the absence of any
25 mitigating factors, that the aggravating
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2 factors alone are sufficient -- to call for a
3 sentence of death.
4 If you unanimously find that the
5 government has failed to prove beyond a
6 reasonable doubt that death is the appropriate
7 sentence for Khalfan Khamis Mohamed for any
8 capital count, please so indicate in Section V
9 of the Special Verdict Form. The Court will
10 then sentence Mr. Mohamed on that count to life
11 imprisonment without the possibility of
12 release. The Court has no other sentencing
13 option.
14 In the event that you unanimously
15 find, beyond a reasonable doubt, that the
16 balancing process leads you to the conclusion
17 that a sentence of death is called for as to
18 all the capital counts, please so indicate in
19 Section V of the Special Verdict Form. In the
20 event that you unanimously find, beyond a
21 reasonable doubt, that the balancing process
22 leads you to the conclusion that a sentence of
23 death is called for as to some but not all of
24 the capital counts, so indicate in Section V of
25 the Special Verdict Form and also identify on
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2 the line provided, by count number, the
3 particular counts as to which you unanimously
4 impose the death sentence.
5 In the event that you are unable to
6 reach a unanimous verdict either in favor of a
7 life sentence or in favor of a death sentence
8 for any of the capital counts, the Court will
9 then sentence the defendant to life
10 imprisonment without possibility of release.
11 The Court has no other sentencing option.
12 Before you reach any conclusion based on a lack
13 of unanimity on any count, you should continue
14 your discussions until you are fully satisfied
15 that no further discussion will lead to a
16 unanimous decision. If you are satisfied that
17 you cannot reach a unanimous decision either in
18 favor of a life sentence or in favor of a death
19 sentence for any of the counts, please so
20 indicate in the appropriate space in Section V
21 of the Special Verdict Form.
22 And let's look at that Special
23 Verdict Form, Section V. It's on page 16 and
24 it tells you that, as used in this section, the
25 term "capital counts" refers only to those
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2 counts which you have found at least one
3 gateway factor in Section I, and at least one
4 statutory aggravating factor in Section II.
5 You may not impose a sentence of death on a
6 particular capital count unless you have first
7 found with regard to that count, unanimously
8 and beyond a reasonable doubt, at least one
9 gateway factor in Section I and at least one
10 statutory aggravating factor in Section II.
11 In this section, enter your
12 determination of the defendant's sentence with
13 regard to each of the capital counts. Your
14 vote as a jury must be unanimous with regard to
15 each question in this section.
16 And then your choices:
17 After considering the information
18 presented by both sides during the penalty
19 phase and individually balancing the
20 aggravating factors found to exist against the
21 mitigating factors found to exist:
22 First choice -- first in sequence
23 listed: We, the jury, unanimously find that
24 the government has failed to prove beyond a
25 reasonable doubt that death is the appropriate
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2 sentence for Khalfan Khamis Mohamed for any of
3 the capital counts. We, therefore, return a
4 decision that K.K. Mohamed will be sentenced to
5 life imprisonment without the possibility of
6 release separately as to each count.
7 Second choice -- I emphasize second
8 only in the sequence in which they appear, not
9 indicating anything else: We, the jury,
10 unanimously find beyond a reasonable doubt, for
11 all of the capital counts, that the aggravating
12 factor or factors found to exist sufficiently
13 outweigh the mitigating factor or factors found
14 to exist -- or, in the absence of any
15 mitigating factors, that the aggravating factor
16 or factors are themselves sufficient -- so that
17 death is the appropriate sentence for Khalfan
18 Khamis Mohamed. We vote unanimously that
19 Khalfan Khamis Mohamed shall be sentenced to
20 death separately as to each count.
21 Next choice: We, the jury,
22 unanimously find beyond a reasonable doubt, for
23 some of the capital counts, that the
24 aggravating factor or factors found to exist
25 sufficiently outweigh the mitigating factor or
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2 factors found to exist -- or, in the absence of
3 any mitigating factors, that the aggravating
4 factor or factors are themselves sufficient --
5 so that death is the appropriate sentence for
6 Khalfan Khamis Mohamed with regard to each of
7 the following capital counts only (identify
8 each count by count number).
9 With regard to the above-listed
10 capital counts, we vote unanimously that
11 Khalfan Khamis Mohamed shall be sentenced to
12 death separately as to each count. With regard
13 to each of the remaining capital counts, we
14 sentence the defendant to life imprisonment
15 without the possibility of release separately
16 as to each count.
17 And the last alternative: We, the
18 jury, are unable to reach a unanimous verdict
19 either in favor of a life sentence or in favor
20 of a death sentence, for any of the capital
21 counts. We understand that the consequence of
22 this is that Khalfan Khamis Mohamed will be
23 sentenced to life imprisonment without the
24 possibility of release.
25 Returning to the charge, page 31:
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2 In your consideration of whether the
3 death sentence is appropriate, you must not
4 consider the race, color, religious beliefs,
5 national origin, or sex of either the defendant
6 or the victims. You are not to return a
7 sentence of death unless you would return a
8 sentence of death for the crime in question
9 without regard to the race, color, religious
10 beliefs, national origin, or sex of either the
11 defendant or any victim.
12 To emphasize the importance of this
13 consideration, Section VI of the Special
14 Verdict Form contains a certification
15 statement. Each juror should carefully read
16 the statement, and sign your juror number in
17 the appropriate place if the statement
18 accurately reflects the manner in which each of
19 you reached your individual decision.
20 And Section VII calls for you to
21 complete the certification, signing your name
22 and placing the certification in an envelope,
23 which you will have on Thursday, and sealing it
24 so that your anonymity will be preserved.
25 I should say -- and that was a
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2 subject of my conference with the attorneys --
3 that considering all of the circumstances, we
4 think it best that you not begin your
5 deliberations until Thursday, because there is
6 limited time and understand one of the jurors
7 isn't feeling well. So that I am going to ask
8 on Thursday that all of you return. If all of
9 you are here on Thursday, I will then excuse
10 the three alternates. But I would ask that the
11 alternates as well as all the jurors come on
12 Thursday.
13 I would also ask that when you arrive
14 on Thursday, that you not begin your
15 deliberations until you are all present and I
16 have said you may begin your deliberations.
17 Let me just complete the charge,
18 which is my concluding remarks on page 32.
19 I have now outlined for you the rules
20 of law applicable to your consideration of the
21 death penalty and the process by which you
22 should determine the facts and weigh the
23 evidence. In a few minutes you will retire to
24 the jury room. And as I have just said, that
25 will be on Thursday morning.
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2 The importance of your deliberations
3 should be obvious. I remind you that you can
4 return a decision sentencing Mr. Mohamed to
5 death only if all 12 of you are unanimously
6 persuaded, beyond a reasonable doubt, that the
7 death sentence is in fact appropriate.
8 When you are in the jury room, please
9 discuss all aspects of these sentencing issues
10 among yourselves with candor and frankness, but
11 also with a due regard and respect for the
12 opinions of one another. Each of you must
13 decide this question for yourself and not
14 merely go along with the conclusion of your
15 fellow jurors. In the course of your
16 deliberations, no juror should surrender his or
17 her conscientious beliefs of what is the truth,
18 of what is the weight and effect of the
19 evidence, and what should be the outcome as
20 determined by that juror's individual
21 conscience and evaluation of the case.
22 Remember that the parties and the Court are
23 relying upon you to give full, considered, and
24 mature consideration to this sentencing. By so
25 doing, you carry out to the fullest your oaths
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2 as jurors: That you will well and truly try
3 the issues of this case and a just result
4 render.
5 If it becomes necessary during your
6 deliberations to communicate with me for any
7 reason, simply send me a note signed by your
8 foreperson. Do not attempt to communicate with
9 the Court or any other court personnel by any
10 means other than a signed writing. I will not
11 communicate with any member of the jury on any
12 subject touching on your sentencing decision
13 other than in writing or orally here in open
14 court.
15 When you have reached a decision,
16 send me a note signed by your foreperson that
17 you have reached a decision. Do not indicate
18 what the decision is in the note. In no
19 communications with the Court prior to a
20 verdict should you ever give a numerical count
21 of where the jury stands in its deliberations.
22 Whichever decision you reach, please
23 sign and fill out the Special Verdict Form
24 accordingly. The foreperson must also be
25 prepared to report to the Court your findings
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2 as to the gateway, aggravating and mitigating
3 factors, and then of your sentencing decision.
4 Let me remind you again that nothing
5 that I have said in these instructions -- and
6 nothing that I have said or done during the
7 trial -- has been said or done to suggest to
8 you what I think the outcome should be. What
9 that sentencing decision should be is your
10 exclusive duty and responsibility.
11 That, then, completes the Court's
12 charge, and I hope you have a happy holiday
13 tomorrow. And please remember not to read,
14 listen to, watch or discuss any aspect of this
15 case. And we're adjourned, then, until
16 Thursday morning.
17 Please leave everything in the jury
18 room. Don't take anything out.
19 (Jury not present)
20 THE COURT: Anything further?
21 MR. FITZGERALD: No, Judge.
22 THE COURT: We are adjourned, then,
23 until 9:30 on Thursday.
24 MR. RUHNKE: Your Honor, just before
25 we leave for the day, I would like to adopt
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2 prior objections to the charge and reiterate
3 them at this point, and prior requests to
4 charge that your Honor did not charge.
5 THE COURT: Yes. Very well. We are
6 adjourned until Thursday.
7 (Adjourned until 9:30 a.m. on July 5,
8 2001)
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