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

This is the transcript of Day 44 of the trial, May 11, 2001.

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


   2   ------------------------------x


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

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

                                               New York, N.Y.
   9                                           May 11, 2001
                                               9:30 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge













   1                            APPEARANCES

            United States Attorney for the
   3        Southern District of New York
   4        KENNETH KARAS
            PAUL BUTLER
   5        Assistant United States Attorneys

            Attorneys for defendant Mohamed Sadeek Odeh
  11        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

  13        Attorneys for defendant Khalfan Khamis Mohamed

  16        Attorneys for defendant Wadih El Hage











   1            (Trial resumed)

   2            THE COURT:  The jury is all present in the jury room.

   3   With respect to the jurors' note of yesterday --

   4            MR. WILFORD:  I am sorry, your Honor.  The

   5   interpreters indicate they can't hear you.

   6            THE COURT:  With respect to the material sought by

   7   the jurors in their note of yesterday, has that material all

   8   been assembled?

   9            MR. KARAS:  It has, your Honor.  There was one

  10   question that we thought we needed to get clarified.  Item No.

  11   6, what the jury lists as Government's Exhibit 659, they say

  12   the notebook with El Hage's print.  659 was a summary chart of

  13   the fingerprint analysis of some of the items.  There is no

  14   notebook that has El Hage's prints.  There is a notebook,

  15   there are several notebooks, and there are individual

  16   documents with El Hage's print, but there is no notebook with

  17   El Hage's print.

  18            MR. DRATEL:  Also 257A?

  19            MR. KARAS:  257 is a map but next to it is written El

  20   Hage's testimony.  So our proposal would be to put in

  21   Government's Exhibit 400 and 420, which is the transcript of

  22   the grand jury testimony from 1997 and 1998.

  23            MR. SCHMIDT:  Yes, your Honor.  I am assuming that

  24   the transcripts have been properly redacted.

  25            MR. KARAS:  Yes.


   1            THE COURT:  Let me put this all in a note to the

   2   jury, which I will read to you.

   3            MR. COHN:  Your Honor, I would ask that all 302's,

   4   and I think there is only one 302 in evidence -- two,

   5   Government's Exhibit 606 --

   6            MR. KARAS:  For the record, Government's Exhibit 306,

   7   from Agent Anticev, which they asked for, and from Agent

   8   Perkins, Government's Exhibit 1071.

   9            MR. COHN:  Perhaps the court ought to notify them

  10   that those are the only two in evidence.

  11            THE COURT:  I will.

  12            The first matter on this list then is item 6.  As to

  13   item 6, the answer is that there is no notebook with El Hage's

  14   print in evidence?

  15            MR. KARAS:  That is correct, your Honor.

  16            THE COURT:  So what do we think they mean?

  17            MR. KARAS:  That is unclear, if they are looking for

  18   the notebook or the individual documents that have El Hage's

  19   prints.

  20            THE COURT:  The next item after 6 is what?

  21            MR. KARAS:  Item No. 17.

  22            THE COURT:  15, all 302 reports?

  23            MR. KARAS:  Yes, 15.

  24            THE COURT:  As to item 15 there is only --

  25            MR. COHN:  There are only two in evidence, which are


   1   Government's Exhibit 6 and 1071.

   2            THE COURT:  There are only two 302's, 6 and 1071,

   3   both of which we are sending in.

   4            MR. RUHNKE:  Your Honor, I have one question about

   5   that, whether they also want the companion notes that go with

   6   1071 when they ask for 302's.

   7            THE COURT:  I have a strict rule:  If they don't ask

   8   for it they don't get it, and we interpret whatever they ask

   9   for in the narrowest way, although we always invite them to

  10   ask for more.

  11            After 15, the next issue related to what?

  12            MR. KARAS:  Item 17.  What the jury has written down

  13   there is GX257A, and next to that El Hage's testimony.  257 is

  14   not the Government's Exhibit number for the transcript of El

  15   Hage's testimony.  They have 420A listed above in item 14,

  16   which 420A and B are the transcripts from the 1998 grand jury

  17   transcript, and 400R is the exhibit number for the 1997 grand

  18   jury testimony.

  19            THE COURT:  So El Hage's grand jury testimony is --

  20   which is the earlier one?

  21            MR. KARAS:  For 1997 it is 400R.

  22            THE COURT:  400R, that is 1997.  And?

  23            MR. KARAS:  1998 and 420A and 420B, A being the

  24   morning and B being the afternoon.

  25            THE COURT:  And you are sending them both in?


   1            MR. KARAS:  Yes.

   2            THE COURT:  And the next item -- that's it.

   3            MR. KARAS:  I think that's it.

   4            THE COURT:  So my note reads:  Ladies and gentlemen

   5   of the jury, here are the matters you requested yesterday.  As

   6   to item:  6, there is no notebook with El Hage's print in

   7   evidence.  Please clarify what you wish to see.  15.  There

   8   are only two 302 reports in evidence, Government's Exhibits 6

   9   and 1071, both of which are enclosed.  17, El Hage's grand

  10   jury testimony is Exhibit 400R, 1997, and Exhibits 420A and B,

  11   1999, both of which are enclosed.

  12            MR. KARAS:  1998 is 420A and A.

  13            THE COURT:  420A and B is 1998.  That's it?

  14            MR. KARAS:  That's it.  We are also going to send in

  15   a box of gloves.

  16            THE COURT:  Please use gloves when examining items in

  17   Government's Exhibit 535A-I, Nike bag.

  18            I will send this in to the jury with the exhibits and

  19   a copy of their note.

  20            MR. KARAS:  Two other items, with respect to request

  21   No. 4, 402, 535A-I, in parentheses they wrote Nike bag and

  22   with contents.  Our proposal is to send in the Nike bag, which

  23   is Government's Exhibit 529.  And then there were separate

  24   items that had been removed that were tested, which are in

  25   fact 535A through I.  So we would propose to put in the Nike


   1   bag, which still has clothes and other items in it,

   2   Government's Exhibit 529, and the items that were separated

   3   and test, which are 535A through I.

   4            THE COURT:  So it is 535A through I, and what is the

   5   other exhibit?

   6            MR. KARAS:  529, which is the bag, and the items

   7   inside of it.  I don't have the exhibit numbers off the top of

   8   my head.

   9            THE COURT:  With other contents, yes?

  10            MR. KARAS:  Yes.

  11            MR. KARAS:  Then with respect to request No. 6, I

  12   believe your Honor has responded by saying there is no

  13   notebook with El Hage's print.  There are documents with his

  14   present.

  15            THE COURT:  That is what I say.  There is no notebook

  16   with El Hage's print in evidence.  Please clarify what you

  17   wish to see.

  18            I would ask the marshals to bring that material with

  19   this note into the jury room.

  20            The jurors' note of yesterday we will deem marked

  21   Court Exhibit Roman I of May 10, and we will deem marked as

  22   Court Exhibits B, C and D the grand jury indictment, the

  23   court's instructions, and the special verdict form as sent in

  24   to the jury yesterday.

  25            The press is aware that the United States Marshals on


   1   their own initiative have determined to leave the courtroom

   2   open during these proceedings and on behalf of the press I

   3   express our appreciation.

   4            The court has before it the request made on behalf of

   5   K.K. Mohammed for discovery material set forth in letter of

   6   Mr. Ruhnke dated May 2 and the 10th, and the government's

   7   response dated May 7.  Do counsel wish to be heard on that

   8   request?

   9            MR. RUHNKE:  I have no desire to be heard beyond what

  10   was said in the moving papers.  On behalf of the government, I

  11   know Mr. Garcia has been handling the issues and he is not

  12   here in court.

  13            MR. FITZGERALD:  If you would like to hear from the

  14   government, I have just sent Ms. Grant to beep Mr. Garcia.

  15            MR. BAUGH:  Your Honor, we would join in that Mr.

  16   Ruhnke's request.

  17            THE COURT:  What I would really like to do is make a

  18   list of all the open matters so that we utilize the time while

  19   this jury is deliberating and that we do not run into delays

  20   or last minute matters.  I received two letters from Mr. Cohn,

  21   neither of which I believe calls for any action or response on

  22   the part of the government.  Am I wrong in that respect?

  23            MR. COHN:  Yes.  I have asked that certain evidence

  24   that the government intends to offer at the penalty phase,

  25   should one occur, be ruled inadmissible.  So obviously the


   1   government ought to, if they want to respond, be given an

   2   opportunity.

   3            THE COURT:  Is the government prepared to respond?

   4            MR. FITZGERALD:  Not at this time, your Honor.  We

   5   told defense counsel that with regard to the photographs we

   6   would go through and designate which photographs we might use,

   7   and obviously we will not offer anything without showing it to

   8   defense counsel first.

   9            MR. COHN:  No.  The two letters that the judge is

  10   referring to are the letter about the El Hage incident in

  11   court and Pepe as part of the government's rebuttal, should we

  12   put forward certain information.  I would ask that that last

  13   letter be sort of sealed.  So I think we ought to deal with

  14   that in a different place.

  15            THE COURT:  Life is complicated enough.  Sort of

  16   sealed --

  17            MR. COHN:  I ask that it not be filed because I don't

  18   know -- I see no reason that the press shouldn't see it but

  19   later --

  20            MR. FITZGERALD:  The order of business today were

  21   that Mr. Garcia and I would sit down and go through the

  22   letters and let counsel and the court know at the end of the

  23   today.

  24            THE COURT:  We have on our agenda now the Al-'Owhali

  25   in limine motion as to the two items, and can we schedule that


   1   for Monday morning?  Tuesday morning maybe?  I don't want to

   2   have the -- the leitmotif of the proceedings about which the

   3   jury is deliberating now, with the Somalia stipulation which

   4   never occurred, there is no reason why we shouldn't address

   5   these things.

   6            MR. FITZGERALD:  Could I let you know after lunch so

   7   we can figure out what we are doing?  We want to get this

   8   resolved.

   9            THE COURT:  All right.  There were issues raised also

  10   on behalf of Al-'Owhali with respect to discovery.  One was of

  11   the military, and then I was asked not to confront that issue

  12   because efforts were being made to resolve it consensually,

  13   efforts which I certainly encourage.  What is the status of

  14   that?

  15            MR. BAUGH:  Your Honor, the military last contacted

  16   me on Monday.  They said they would give me the information we

  17   reduced it down to.  I sent them another letter Wednesday.  At

  18   this juncture it is in the air.  I intend to go back and call

  19   them right now to find out what is the status.  They haven't

  20   called me back.

  21            THE COURT:  I have already set a date for the

  22   defendants listing mitigation factors and requests to charge.

  23            MR. RUHNKE:  Your Honor, I assume that in that

  24   package you probably also want our proposed preliminary

  25   instructions to the jury, introduction to the penalty phase.


   1            THE COURT:  On the 17th.  That is with respect to

   2   both KKM and Al-'Owhali?

   3            MR. RUHNKE:  That's what you said, yes.

   4            THE COURT:  It's what I meant.  Also on the 17th is

   5   the special verdict form.

   6            MR. BAUGH:  Yes.  Your Honor, we have been given

   7   today -- this was yesterday? -- the listing of the victim

   8   impact information that was going to be offered to the jury.

   9   After seeing this we will file a Payne motion as to how much

  10   will be added.  The victim issue was left open until there was

  11   a tender made as to what the government would introduce.  The

  12   government has now tendered it and we have an idea of its

  13   magnitude, so we will have to set a hearing to determine how

  14   much the court will permit to be admitted.  It is pretty

  15   voluminous.

  16            MR. COHN:  Your Honor, they gave it to us yesterday,

  17   Judge.

  18            THE COURT:  I am trying to set a time --

  19            MR. COHN:  I don't want the government inadvertently

  20   disadvantaged by giving it to us later than they did.  They

  21   gave it to us -- I want to be fair to the government.

  22            THE COURT:  With I am not dealing with the merits.  I

  23   just want to know what is on the plate.

  24            Some of the material that you have sought to subpoena

  25   includes things like photographs of wounds.


   1            MR. BAUGH:  Yes.

   2            THE COURT:  Don't I have to see what both sides are

   3   going to do in that regard?

   4            MR. BAUGH:  Your Honor, I will make it real easy for

   5   you.  I won't introduce any photographs of wounds if they

   6   don't introduce any photographs of wounds.  I am sure the

   7   court, having been a trial lawyer, knows it has to attempt to

   8   counterbalance what the government has to offer.  I am trying

   9   to get this information to determine what to counterbalance.

  10   Believe me, I do not wish to use any of that unless I have to.

  11            THE COURT:  What is a reasonable date early next week

  12   for me to address that issue?

  13            MR. BAUGH:  I would say Tuesday or Wednesday.

  14            Mr. Garcia is here.

  15            THE COURT:  Tuesday then, the admissibility of victim

  16   impact testimony and exhibits.  Tuesday, 10 a.m.

  17            On the subject of timing, the jury arrives at 9:15,

  18   and the problem -- I realized when talking to the jury

  19   yesterday that there is no  problem of not deliberating until

  20   all the jurors are present because they arrive together.  Is

  21   there any reason the jury shouldn't start deliberating at

  22   9:15?  Silence is acquiescence.  So the instruction will be

  23   that the jury can start deliberating as soon as they are all

  24   present.

  25            MR. COHN:  Your Honor, you left open two issues with


   1   respect to the statutory mitigators -- aggravating.  Sorry.

   2            THE COURT:  Mr. Baugh, you also had subpoenas to

   3   individuals, and what is the status of that?

   4            MR. BAUGH:  General Franks, central command, has not

   5   been served.  Secretary Albright has been served last week.

   6            THE COURT:  Anything else that is open?

   7            MR. RUHNKE:  Your Honor, on the issue of victim

   8   impact evidence, your Honor did order in January that the

   9   United States provide the defense with a bill of particulars

  10   as soon as practicable, setting forth their victim impact

  11   presentation.  I understand that the Al-'Owhali group has been

  12   served with that document as of yesterday.  I am asking when

  13   the K.K. Mohammed is going to get the same documents, seeing

  14   that you ordered this in January.

  15            MR. FITZGERALD:  I think it's coming today.

  16            MR. GARCIA:  Today, Judge.

  17            MR. RUHNKE:  That answers my question.  Thank you.

  18            THE COURT:  Should the victim impact issue which we

  19   have now scheduled for Tuesday include both Al-'Owhali and

  20   K.K. Mohamed?

  21            MR. RUHNKE:  We would certainly want to be in on that

  22   issue, your Honor.  I wonder if Tuesday is too early.  It is

  23   not as simple or as complex as it seems.

  24            THE COURT:  Why don't we make it Wednesday at 3:00,

  25   for both.  We have bifurcated, but certainly some of these


   1   issues arise with respect to both defendants, and to the

   2   extent to which they can be combined, that would be useful.

   3            Anything else?

   4            Mr. Garcia has arrived.  Can we now address the Brady

   5   request made now on behalf of both K.K. Mohamed and

   6   Al-'Owhali, and the essence of that request is for agreements

   7   with the United States, or foreign governments with the

   8   knowledge of the United States, that limits the exposure of

   9   anything less than death of persons viewed by the government

  10   to have been members of the conspiracy set forth in Count 1 of

  11   the indictment now on trial.

  12            Mr. Garcia, in your May 7 response, you limit it to

  13   persons who have been named in death-eligible counts?

  14            MR. GARCIA:  No, Judge.  That was our original

  15   response.

  16            THE COURT:  Have you filed something subsequent to

  17   your May 7 letter?

  18            MR. GARCIA:  No, Judge, but I think our position in

  19   the May 7 letter is named or unnamed in death-eligible, not

  20   necessarily counts but actions taken in furtherance of that

  21   conspiracy along the lines of the Beckfort decision, I think

  22   is the correct name, and Feliciano, where they had RICO counts

  23   and underlying drug counts, and the discovery had to do with

  24   murders or other death-eligible crimes committed in

  25   furtherance of the underlying conspiracy.


   1            THE COURT:  That was a specific narcotics conspiracy?

   2            MR. GARCIA:  It was a RICO count and underlying

   3   narcotics, and I think Feliciano was under Title 18.

   4   Feliciano and I think Beckfort added that it isn't only the

   5   crime in the one death-eligible count, it can also be other

   6   death-eligible crimes in the overarching conspiracy.  But in

   7   neither case does it say that because it relates to the

   8   overarching conspiracy that would entitle the defense to any

   9   agreement that the government might have with them.

  10            THE COURT:  Why?  Why not?

  11            MR. GARCIA:  Because of the language of the

  12   aggravators, and I think the government goes through the

  13   language in the letter and I won't do it here.  The language

  14   refers to the offense, the crime.  I think Mr. Ruhnke in his

  15   letter, his mitigating factors are couched in terms of the

  16   embassy bombing or the offense.

  17            THE COURT:  The government has to live with the

  18   breadth of Count 1, and Count 1 is a conspiracy to kill

  19   Americans anywhere.  Your position is that one looks to what

  20   counts?

  21            MR. GARCIA:  Your Honor, we don't look to any counts.

  22   You look to death-eligible crimes or actions, and I think that

  23   is what Beckfort and Feliciano said.  If that were the case,

  24   anyone in Count 1 would be death-eligible.  The government is

  25   not bargaining away anything.  If they give someone a plea to


   1   life who is charged in Count 1 as a maximum of life, I don't

   2   think that fits into any mitigating factor or what Mr. Ruhnke

   3   is asking for.

   4            THE COURT:  Mr. Ruhnke?

   5            MR. RUHNKE:  Judge, there is some confusion in what

   6   the government is saying.  Beckfort dealt strictly with the

   7   statutory mitigating factor that others equally culpable in

   8   the murder will not be punished by death.  That is, clearly,

   9   obviously, if the government has made deals with people whom a

  10   jury can find equally culpable in the murders who will not be

  11   punishable by death, obviously that should be disclosed by the

  12   government.  What was not decided or apparently raised in

  13   Beckforth, or Feliciano for that matter, by the defense was a

  14   different nonstatutory mitigating factor, and I can summarize

  15   it this way.  If there are people who are leaders or

  16   organizers or members of this overarching conspiracy as to

  17   whom a jury could find a greater culpability than Mr. Mohamed

  18   in the general overall plan in terms of being a leader, an

  19   organizer or whatever role was played, and that person has

  20   dealt with the government and been given a deal that exposes

  21   them to less than death, or indeed less than life, in terms of

  22   exposure -- and I include in that category people who have

  23   made 5K1.1 type deals, where although they may have pled to a

  24   life exposure the government has promised to seek a downward

  25   departure from that life exposure if the person provides a


   1   promise of substantial assistance to the support of others --

   2   it is in support of an argument to the jury that not only was

   3   Mr. Mohamed not a leader or organizer of this overarching

   4   conspiracy but others who were, not only do not face the death

   5   penalty, they do not even face a sentence of life

   6   imprisonment, and that is a reason why Mr. Mohamed should not

   7   be sentenced to death.

   8            THE COURT:  What's wrong with that?

   9            MR. GARCIA:  Your Honor, I think what Mr. Ruhnke

  10   starts off with, leaders, organizers, and then he gets to

  11   members, I think what he is seeking is any agreement that the

  12   government might have with anyone who at any time became any

  13   type of member of Count 1 of the conspiracy which the

  14   government is not seeking the death penalty on, or a

  15   cooperation agreement with somebody like that, and it doesn't

  16   fit into any mitigating factors.  Mitigating factors, as

  17   defined in the statute and as the government went through in

  18   its letter and as the language of Mr. Ruhnke's letter makes

  19   clear, is the crime, and the crime here, other death-eligible

  20   crimes or murders or other acts done in furtherance of those

  21   conspiracies.  I don't think because the government has

  22   charged a larger conspiracy here it makes it any different

  23   than the larger conspiracies in the other cases cited.  That

  24   was a larger conspiracy as well.

  25            THE COURT:  I don't agree with the government's


   1   position on this.  I think that that too narrow a definition

   2   of what is discoverable here would be inappropriate.  The

   3   government is not, at least thus far is not invoking any

   4   security concerns.  If there are security concerns then I

   5   should address them in an appropriate fashion.  But I think

   6   that if the government has entered into agreements -- we know

   7   they have with respect to certain individuals -- who fall

   8   within the outlines of the conspiracy which the government has

   9   set forth in the indictment in the background, which the jury

  10   has and will read, the defendants should have the opportunity

  11   to consider whether to present to the jury the possible

  12   disparity in treatment of equally culpable people.

  13            Are we dealing here with a vast number of people?

  14            MR. GARCIA:  Judge, the government would rather not

  15   make any comment with respect to that on the public record.

  16   Perhaps we will discuss it and perhaps submit something under

  17   seal to your Honor.

  18            THE COURT:  As I say, if there are security concerns,

  19   either to the individuals involved or to the national

  20   interest, then we will deal with that as a very separate

  21   issue, entirely removed from those in the cases dealing with

  22   drug dealers.  But otherwise I would grant the discovery

  23   requests made on behalf of K.K. Mohammed, joined in on behalf

  24   of Al-'Owhali.  When can we expect something further from the

  25   government?


   1            MR. GARCIA:  Monday morning, Judge?

   2            THE COURT:  All right.

   3            MR. BAUGH:  One last and very brief issue, your

   4   Honor.  I was reviewing Mr. Fitzgerald's closing at 3:00 this

   5   morning, and he made quite a issue to the jury concerning the

   6   purposes of the U.S. Embassy, namely whether or not

   7   surreptitious spy activity went on there.  He argued on

   8   several pages that that was one of the motivations of Al Qaeda

   9   and that was false.

  10            We have reason to believe that there was spy activity

  11   going on.  You remember I asked Ambassador Bushnell those

  12   questions and we were cut off and not allowed to cross-examine

  13   on that issue.

  14            We are contemplating, only so the judge can schedule

  15   court time next week, there is a possibility, in fact a

  16   probability that we will ask the government to stipulate that

  17   spy activity does occur in those embassies and that is why

  18   they have those antennas on top, just to negate some of the

  19   impact afforded by Mr. Fitzgerald's argument that that

  20   activity does not go on there.

  21            THE COURT:  I don't recall an argument that that

  22   activity did not go on there.

  23            MR. BAUGH:  I have the page numbers.  Unfortunately,

  24   I left it back wherever it is I work, but Mr. Fitzgerald said

  25   Al Qaeda is of the position that the embassies have been used


   1   in the past to get information concerning -- and I am really

   2   paraphrasing now.  I don't know the exact language, but the

   3   bottom line was, it was used to gather information that was

   4   used against Al Qaeda.  What was what Mr. Fitzgerald argued.

   5            THE COURT:  And you want a stipulation which says

   6   what?

   7            MR. BAUGH:  That surveillance activity and NISA

   8   activity does occur and did occur in Nairobi.  I read in the

   9   Washington Post this morning that many of these satellite

  10   intercepts occurred out of there because the Sudan embassy had

  11   been closed.

  12            MR. FITZGERALD:  Your Honor, my argument to the jury

  13   was based strictly on Al Qaeda's perception, not whether it

  14   was true or false.  I don't think it is relevant whether it is

  15   true or false.  I am not confirming or denying what Mr. Baugh

  16   reads at 3 a.m. in the Post and I don't think it is relevant.

  17            THE COURT:  You can read to the jury what the

  18   government said in its closing argument.  If you feel that

  19   what the government said in its closing arguments to the same

  20   jury that is going to be hearing any further proceedings in

  21   this case is pertinent, you can simply read it to them.  I

  22   don't see the need for any further stipulation.  Why don't you

  23   simply read it.

  24            MR. BAUGH:  The United States argued that such

  25   activity does not occur.  He said that was their impression,


   1   and it does.

   2            THE COURT:  You know, it's been shorter than we

   3   anticipated but it has been a long trial and I don't purport

   4   to have total recall of all the evidence.  I recall some

   5   colloquy with respect to the permissible scope of

   6   cross-examination of the ambassador, and I recall testimony as

   7   to what facilities and what agencies were housed in the

   8   embassy.  But I certainly don't recall any testimony by the

   9   government denying that intelligence activity took place

  10   within an embassy.  Was there any?

  11            MR. FITZGERALD:  We offered no testimony confirming

  12   or denying, and in argument to the jury we cited Al-'Owhali's

  13   statement that his perception was that there was intelligence

  14   activity, Christian missionaries and a woman ambassador, and

  15   we offered it for his perception and understanding.

  16            MR. BAUGH:  Your Honor, I will go back and review it

  17   and get something to you as soon as possible.

  18            THE COURT:  Anything else?  All right, then.  So

  19   counsel will either be in the courtroom or defense counsel

  20   will be by telephone in the building in their counsel room.

  21   We will await further communication from the jury.

  22            (Recess)

  23            (Continued on next page)

  24            (Time noted, 2:35 p.m.; jury not present)

  25            THE COURT:  We have received a note from the jury


   1   which we will mark Court Exhibit Roman I of today's date.  It

   2   reads:

   3            Judge Sand, thank you for promptly providing the

   4   items we requested yesterday.  The jury would like to request

   5   the following additional items to assist us in our

   6   deliberations.

   7            And then nine items are listed, and counsel have been

   8   furnished with a copy of the list.

   9            Are there any problems with respect to assembling and

  10   furnishing these exhibits?

  11            MR. KARAS:  There shouldn't be, your Honor.  We are

  12   assembling exhibits with respect to the last two inquiries,

  13   pictures and diagrams and the two locations.  155 and 156 are

  14   actually stipulations that authenticate the records, and what

  15   it looks like they ask for next to the exhibits is Florida and

  16   California phone records.  So the exhibits are not the records

  17   themselves, they are just the stipulations that relate to the

  18   records.

  19            THE COURT:  Should we give them that with a note that

  20   says these are the stipulations, if you would like to see the

  21   underlying records, please advise?

  22            MR. KARAS:  Either the records or the charts, yes, if

  23   they want those.

  24            MR. SCHMIDT:  The records, I think, would be

  25   appropriate, not the charts.


   1            THE COURT:  What are the numbers of the exhibits, the

   2   records themselves?

   3            MR. KARAS:  The records that go with the stipulation

   4   that is marked 155, and this is Southern Bell, are

   5   Government's Exhibit 541A, and this relates to one of the

   6   telephone numbers in Orlando, Florida, and 451B --

   7            THE COURT:  That is the California records?

   8            MR. KARAS:  They are a different set of records for

   9   the same number in Orlando, Florida.  It covers a different

  10   time period.  The Southern Bell records are 451A, 451B -- 451C

  11   is the summary chart -- 452B is the other -- 451A, which for

  12   the record is the subscriber records for 407-363-6981 --

  13            THE COURT:  These are all the exhibit numbers?

  14            MR. KARAS:  I am going to list them again.  451A, the

  15   subscriber records for 407-363-6981, which is for Orlando,

  16   Florida.  451B is the billing records for that number that I

  17   just listed.  452B is the telephone records for a different

  18   number in Orlando, Florida, 658-6371, 407 area code.  And the

  19   records that relate to the stipulation marked as 156 is 364A,

  20   which is the subscriber information for the number

  21   408-244-1209 in California.  364B are the long distance

  22   telephone records for that number.  364C is the summary chart.

  23   365A is subscriber records for a different California number,

  24   916-338-1699.  And 365B is the billing records for that number

  25   and 365C is the summary chart.


   1            THE COURT:  Is there consensus that those records

   2   should be sent in as well as the stipulation?  That was a

   3   question.

   4            MR. SCHMIDT:  No objection.

   5            THE COURT:  So the note will read:  Ladies and

   6   gentlemen of the jury, here are the exhibits you requested.

   7   As to item number 5, GX155 and 156 are stipulations.  The

   8   underlying telephone records are Government's Exhibits 451A,

   9   451B, 452B (Florida) and 364A, 364B, 365A, 365B (California),

  10   also enclosed.

  11            Is everything else assembled?

  12            MR. KARAS:  It won't take much longer.  We will

  13   assemble the exhibits that relate to the photos and sketches

  14   of the two other locations.

  15            THE COURT:  They, together with the note, can be

  16   brought together by the marshals in to the jury.  Let me know

  17   when that is done.

  18            (Recess)

  19            THE COURT:  What was being duplicated?

  20            MR. KARAS:  The two plea agreements and the

  21   stipulation regarding materiality.

  22            THE COURT:  That is so the jury can have 12 copies?

  23            MR. KARAS:  Correct, Judge.

  24            THE COURT:  All right.  Is it agreeable to everyone

  25   that rather than bringing the jury in at 3:30, the court just


   1   knock on the door and tell them that they are excused and to

   2   have a pleasant weekend?

   3            MR. KARAS:  Yes, Judge.

   4            MR. SCHMIDT:  Yes.

   5            THE COURT:  I will do that then at 3:30, and we are

   6   otherwise -- well, let's wait until 3:30.

   7            (Recess)

   8            (Time noted, 3:30 p.m.)

   9            THE COURT:  We are adjourned until Monday morning.

  10   The jury comes in at 9:30, and I think, having just received

  11   those additional requested exhibits, we are not likely to hear

  12   anything from them between 9:30 and 10, but those of you who

  13   have responsibilities in the early morning should bear in mind

  14   that at some point we may meet earlier than 10.

  15            I also want to tell you that on Tuesday, the jury is

  16   not going to begin until 11:00.  A juror has an urgent matter

  17   and to accommodate that juror we won't begin until Tuesday

  18   11:00 on Tuesday.

  19            Otherwise we are adjourned until Monday at 10:00 a.m.

  20            (Proceedings adjourned until 9:30 a.m., Monday, May

  21   14, 2001)





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