18 May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 49 of the trial, May 18, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
6358 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7) 98 Cr. 1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 May 18, 2001 9:30 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 6359 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 KENNETH KARAS PAUL BUTLER 5 Assistant United States Attorneys 6 ANTHONY L. RICCO 7 EDWARD D. WILFORD CARL J. HERMAN 8 SANDRA A. BABCOCK Attorneys for defendant Mohamed Sadeek Odeh 9 FREDRICK H. COHN 10 DAVID P. BAUGH LAURA GASIOROWSKI 11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 12 DAVID STERN DAVID RUHNKE 13 Attorneys for defendant Khalfan Khamis Mohamed 14 SAM A. SCHMIDT 15 JOSHUA DRATEL KRISTIAN K. LARSEN 16 Attorneys for defendant Wadih El Hage 17 18 19 20 21 22 23 24 25 6360 1 (Deliberations resumed) 2 (Time noted, 10:30 a.m.; counsel for government and 3 defendants Odeh and Al-'Owhali present) 4 THE COURT: The jury is all present. They have been 5 here since about 10:30 and have resumed their deliberations. 6 Are there any matters? Do you know what the status is on the 7 military discovery? 8 MR. KARAS: I don't, Judge. I can talk to Mr. 9 Fitzgerald who is trying to reach Mr. Ailey. 10 MR. COHN: We are trying to track down Mr. Baugh, 11 your Honor. I reminded your courtroom deputy that I am due in 12 front of Judge Chin at 11:30. I can be reached in his 13 courtroom. It should be a short proceeding. 14 THE COURT: We will await something further from the 15 jury. 16 (Recess) 17 (Time noted, 12:10 p.m., all counsel and defendants 18 present) 19 THE COURT: The jury says that there is a seeming 20 contradiction between the sentence at the bottom of page 77 21 which says, in other words, a defendant may be held criminally 22 responsible for certain acts of conduct even if the evidence 23 does not show that the defendant personally committed those 24 acts. Whereas the first sentence on page 79 says to aid and 25 abet another to commit a crime, it is necessary that the 6361 1 defendant willfully and knowingly associate himself in some 2 way with the crime and that he willfully and knowingly seek by 3 some act to help the crime succeed. 4 I don't believe that there is a contradiction, 5 although perhaps the trouble lies with the language a 6 defendant may be held criminally responsible. What I would 7 propose to say to the jury is, a defendant may be guilty, that 8 is, be criminally responsible, if he either (a) actually 9 committed the crime himself -- by committing the crime we mean 10 that his conduct satisfies all of the elements of the crime as 11 set forth in the charge; or (b) someone else actually 12 committed the crime, that is, that someone else, that the 13 conduct of someone else satisfies all of the elements of the 14 crime, and that the defendant whom you are considering aided 15 and abetted in the commission of that crime. To determine 16 whether the defendant aided and abetted in the commission of 17 the crime, you should ask the questions set forth on pages 79 18 and 80. 19 MR. FITZGERALD: Your Honor, I might suggest adding 20 something in addition. It struck me from the note that the 21 jurors may be confused by the fact that the word act appears 22 in both quoted sections. So one section seems to say a 23 defendant can be held criminally responsible even though he 24 did not participate in an act, and then the next section says 25 that the defendant must seek by some act to make the venture 6362 1 succeed. So the word act may be the source of confusion. 2 I have roughed out something to suggest that if we 3 instruct the jury that if the defendant commits some act 4 willfully and knowingly for the purpose of helping another 5 person or persons commit a different act which is a crime, 6 then the defendant may be criminally responsible for the 7 second act, and perhaps give them an example which would say, 8 if a person or group of persons rob a bank and the defendant 9 provides them with assistance for the purpose of helping them 10 carry out the bank robbery, then the defendant can be guilty 11 of aiding and abetting the bank robbery even though he or she 12 did not participate in the physical act of robbing the bank. 13 THE COURT: Let me reserve on that. 14 MR. COHN: Your Honor, I think Mr. Fitzgerald in a 15 sense pointed out my position, which is that I think we are 16 speculating on why they are confused. 17 THE COURT: What else should we do? 18 MR. COHN: We should ask them to clarify it, and tell 19 them that there does not appear to be a conflict and would 20 they clarify their confusion. 21 THE COURT: I will do both. I will adopt Mr. 22 Fitzgerald's suggestion and your suggestion. 23 MR. COHN: I object. 24 THE COURT: Your objection is a little premature. 25 MR. COHN: No, because I think Mr. Fitzgerald's 6363 1 suggestion may be goes over the edge in charging guilt. 2 MR. WILFORD: Your Honor, I don't think Mr. 3 Fitzgerald's suggestion is appropriate at this point. I would 4 suggest that you go with the language you just dictated to us, 5 with the charge of aiding and abetting. I think that would be 6 sufficient. 7 THE COURT: Not only do they have it before them but 8 they give specific references to pages 77 and 79, so simply to 9 read to them page 77 and page 79 is to be of no assistance. 10 MR. WILFORD: Rather than read page 77 and 79, the 11 court specifically refers to page 79 and 80. I would also 12 request that the court bring the jury out, as I suggested 13 before. 14 THE COURT: I will bring them out. 15 Mr. Fitzgerald, do you think that the problem is 16 the -- I must say that this language does not originate with 17 me. This is language, which is time honored, and this is the 18 first instance I have had where a jury has found there to be 19 some confusion. Do you think the problem is with the word 20 act, that we use actions at the bottom of page 77 and act on 21 page 79? 22 Would you read again your language slowly, please. 23 MR. FITZGERALD: Yes. If a defendant commits some 24 act willfully and knowingly for the purpose of helping another 25 person commit a different act which is a crime -- 6364 1 THE COURT: Yes. 2 MR. FITZGERALD: -- then the defendant may be held 3 criminally responsible for the second act which is a crime. 4 Then I would suggest the example -- 5 THE COURT: There is a problem with examples. 6 Examples are really frowned on. But I think what I would do 7 is, I would say if a defendant commits some act or acts, which 8 acts are themselves a crime, satisfying all of the elements of 9 the crime, then he may be found guilty. If a person commits 10 some other act which is not in and of itself a crime but which 11 is knowingly and willfully intended to aid another person to 12 commit those acts, then he is criminally responsible. 13 MR. FITZGERALD: If we could just modify that in two 14 respects. The first half should state if the person commits 15 acts which are themselves a crime, then he is guilty as a 16 principal. 17 THE COURT: Yes. 18 MR. FITZGERALD: The second time I think we should 19 say if a person commits acts which helps others commit 20 different acts which are a crime. 21 THE COURT: Then he is criminally responsible, that 22 is, he may be found guilty. We call such persons principals. 23 If a person commits acts or. 24 (Pause) 25 THE COURT: So that the totality of my remarks would 6365 1 be: A defendant may be found guilty, that is, criminally 2 responsible -- criminally responsible may be a phrase which 3 they don't equate with guilt. A defendant may be guilty, that 4 is, be criminally responsible, if he either (a) actually 5 committed the crime himself -- by committing the crime we mean 6 that his conduct satisfied all of the elements of the crime as 7 set forth in the charge, or (b) someone else actually 8 committed that crime, that is, that the conduct of someone 9 else satisfied all the elements of the crime and that the 10 defendant whom you are considering aided and abetted in the 11 commission of that crime. To determine whether the defendant 12 aided and abetted in the commission of the crime, you should 13 ask yourself the questions set forth on pages 79 and 80. And 14 I will read them. 15 Then I will say, in other words, to make it clear 16 that this is not an addition but a restatement, if a defendant 17 commits some act willfully and knowingly for the purpose of 18 helping another person to commit some act which is a crime, 19 then the defendant may be held criminally responsible for the 20 second act, which is a crime. Thus, if a person commits an 21 act which is in itself a crime, then that person is criminally 22 responsible, that is, he may be found guilty. We call such 23 persons principals. If a person commits act or acts which are 24 not in themselves a crime but are knowingly and willfully 25 intended to assist that person to commit the crime, then he is 6366 1 also criminally responsible. That is, he is guilty. We call 2 such persons aiders and abettors. 3 Anything further? And then I will say that if this 4 still does not clarify the matter for you, send us another 5 note. 6 MR. FITZGERALD: I only have one small suggestion. 7 You used the language several times engages in conduct which I 8 think is helpful with respect to act. I thought if we say at 9 the end engages in act to knowingly help others commit a 10 crime. 11 MR. COHN: Can I hear the last piece of the 12 government's. 13 THE COURT: The last portion? 14 MR. COHN: Yes. 15 THE COURT: Thus, if a person engages in conduct 16 which is not itself a crime, then that person is criminally 17 responsible, that is, he may be found guilty -- we call such 18 persons criminal. If a person engages in conduct which is not 19 in and of itself a crime but which is knowingly and willfully 20 intended to assist that other person to commit the crime, then 21 he is also criminally responsible, that is, he is guilty, and 22 we call such persons aiders and abettors. 23 MR. COHN: Your Honor, I believe that it is 24 unbalanced and I would suggest -- and without accepting the 25 fact that you are going to give this charge at this particular 6367 1 time in this way, you should indicate that the activity has to 2 have in fact furthered the commission of the crime. It 3 doesn't say that anywhere. 4 THE COURT: Which knowingly assists that other person 5 to commit the crime and furthers its commission? 6 MR. COHN: Yes. 7 THE COURT: I don't have any problem with that. Then 8 I will say reasonable doubt. 9 All right, let's bring in the jury, please. 10 (Pause) 11 THE COURT: I think I have to add that if they have 12 found aiding and abetting, they must also consider the other 13 elements as set forth in the charge, because we do tell them 14 that aiding and abetting is not in and of itself -- they are 15 working hard, and they don't see any reason why we shouldn't 16 work hard also. 17 (Jury present) 18 THE COURT: Good afternoon, ladies and gentlemen. 19 JURORS: Good afternoon. 20 THE COURT: You have asked for some clarification 21 with respect to aiding and abetting and have said that there 22 seems to be some inconsistency between language on page 77 and 23 79. We have been reviewing that and discussing it amongst 24 ourselves and will offer some further elaboration. If we 25 don't answer your question, then send us another question. We 6368 1 are trying to make this as clear as we can, but of course we 2 are steeped in these concepts, in things which we know by 3 years and years of experience. It may not be as clear to 4 others as they appear to be to us. 5 A defendant may be guilty, that is, criminally 6 responsible -- when we use the phrase "criminally 7 responsible," that's the same as saying may be guilty. A 8 defendant may be guilty if he either: (a) actually commits 9 the crime himself -- and by committing the crime we mean that 10 his conduct satisfies all of the elements of the crime as set 11 forth in the charge, in other words, he himself, the conduct 12 in which he has engaged, he has personally engaged, satisfies 13 the elements of the crime as set forth in the charge; or (b) 14 someone else actually commits the crime, that is, that the 15 conduct of someone else satisfies all the elements of the 16 crime and that the defendant whom you are considering aided 17 and abetted in the commission of the crime. 18 To determine whether the defendant you are 19 considering aided and abetted in the commission of the crime, 20 you should ask the questions which we set forth at the bottom 21 of page 79: Did he participate in the crime charged as 22 something he wished to bring about? Did he associate himself 23 with a criminal venture knowingly and willfully? Did he seek 24 by his actions to make the criminal venture succeed? If he 25 did, then the defendant is an aider and abettor and therefore 6369 1 guilty of the offense. If, on the other hand, your answers to 2 these questions are no, then the defendant is not an aider and 3 abettor, and you must find him not guilty. 4 In other words, if a defendant engages in conduct 5 unlawfully and willfully, for the purpose of helping another 6 person to engage in conduct which is the crime, which 7 satisfies all the elements of the crime, then that defendant 8 may be held criminally responsible for the second act, which 9 is a crime. 10 Two-stage process. Did the defendant you are 11 considering himself personally engage in conduct which 12 satisfies all of the elements of the crime? If he did not, 13 but you find that some other person engaged in conduct, which 14 conduct satisfies all of the elements of the crime, then he 15 would be an aider and abettor. 16 Thus, if a person engages in conduct which is not 17 itself, looking only at the conduct of that person is not 18 itself conduct which satisfies all of the elements of the 19 crime, then you should consider whether or not he is an aider 20 and abettor. 21 A person whose conduct itself satisfies all of the 22 elements of the crime we call a principal. He is a person who 23 has committed the crime. If you look at just what that person 24 did and you find all of the elements as set forth in the 25 charge have been satisfied, then that person is guilty as a 6370 1 principal. But if a person engages in conduct which is not in 2 and of itself the crime but which knowingly and willfully is 3 intended to assist that other person to commit the crime, to 4 further the commission of the crime by that other person, then 5 he is also criminally responsible. He is guilty then, and we 6 call such persons aiders and abettors. 7 If you find that someone is an aider and abettor, 8 then you have to consider that together with all of the other 9 elements as set forth in the charge. 10 All of these findings, of course, must be unanimous 11 and beyond a reasonable doubt. 12 If that doesn't answer your question, ask another 13 question, and if it doesn't satisfy your question, please try 14 in a further question to be as specific as you can about what 15 is troubling you. Thank you. 16 MR. RICCO: Your Honor, could we have a brief 17 sidebar? 18 THE COURT: Yes. 19 (Discussion off the record at the sidebar) 20 THE COURT: The suggestion is made that if it would 21 be helpful to you to have what I just said in writing, we can 22 do that. Just let us know if you want that. The court 23 reporter will be delighted to give up her lunch hour. 24 (Deliberations resumed) 25 THE COURT: As long as we are assembled, can I have a 6371 1 status report on other open matters? 2 MR. FITZGERALD: I spoke to Mr. Ailey's office this 3 morning and he was at a meeting. I said we needed a letter or 4 phone call today. He said he was trying to get a letter out 5 or a phone call with myself and Mr. Baugh today. I am hoping 6 to have a message over lunch. 7 THE COURT: You have my authority, if it would be 8 helpful in lighting a fire, to tell him that the judge has 9 ordered a very prompt response and that if a prompt response 10 is not forthcoming the judge will have to consider what 11 actions to take. 12 MR. BAUGH: I called Mr. Ailey this morning and also 13 got a message. 14 THE COURT: Anything else that is open that we should 15 deal with? 16 (Recess) 17 (Continued on next page) 18 19 20 21 22 23 24 25 6372 1 AFTERNOON SESSION 2 2:30 p.m. 3 (All parties present) 4 THE COURT: We have a number of notes. We are 5 requesting in writing what you said to us this morning about 6 aiding and abetting. That is a note not from the forelady, 7 and the juror signs his name, which I am obliterating, and we 8 will send in -- 9 MR. COHN: Can your Honor identify the juror by his 10 seat, or her seat, and would you? 11 THE COURT: I can't. No. It doesn't say juror 12 number so and so, it just says the name. 13 MR. COHN: Your Honor, may be able to attach a seat 14 to it. 15 THE COURT: I can't. 16 We will send it in. 17 Next note: We thank you for your explanation of 18 aiding and abetting, but we still have some questions 19 regarding the subject. On page 77 of the charge last 20 paragraph, section 2A, the aiding and abetting statute 21 provides that whoever commits an offense against the United 22 States or aids -- underlined -- abets, counsels -- 23 underlined -- is punishable as a principal. Question: Do the 24 terms aids and counsels equal an act? What constitutes aid 25 and counsel? 6373 1 From page 79 of the charge first paragraph, to aid 2 and abet another to commit a crime, it is necessary that the 3 defendant willfully and knowingly seek by some act -- 4 underlined some act -- to help make the crime succeed. How 5 concrete an act is required? Examples? 6 Regarding questions at the bottom of page 79, does 7 the answer to all three questions have to be yes in order to 8 find the defendant guilty of aiding and abetting? 9 In addition, we would like to request the following: 10 Government's Exhibit 518, Hilltop Hotel register. 2. Any 11 evidence regarding Odeh's prints. 3. Exhibits regarding PETN 12 and TNT residue on Odeh's belongings. Thank you. Juror No. 13 1, foreperson. 14 You are right that act seems to be what they are hung 15 up on. 16 Page 77 of the charge, last paragraph. And they 17 underline the word counsels. 18 The specific question is how could know create an act 19 is required? Examples? The second question is do all three 20 have to be answered yes, which is a very interesting question, 21 which I have mused over in the past, and I think the answer is 22 yes, because it's clear, did he associate himself with the 23 criminal venture knowingly and willfully is not enough, as we 24 tell them. Mere association without participation is not 25 enough. 6374 1 Does anybody take issue with that? 2 MR. FITZGERALD: Yes, Judge. Can we have a brief 3 pause in addressing that question and do a little research? 4 If they are focused on acts and aids and counsels, it may be 5 what is throwing them off is the third question, did he seek 6 by his actions and not knowing how concrete an act is 7 required. 8 THE COURT: In the meantime, let's do Government's 9 Exhibit 518, the Hilltop Hotel register, any evidence 10 regarding Odeh's prints, and exhibits regarding PETN and TNT 11 residue on Odeh's belongings. 12 Let me also share with you another note. This is in 13 a different handwriting. Dear handwriting. This is juror No. 14 9. This is a note to say maybe it would be good to get 15 outside every day during lunchtime for 30 minutes after eating 16 in order to get air. Lord knows, this is quite tedious. 17 Also, if by some dilemma we are still here on Friday, June 8, 18 2001, I will not be able to sit. My daughter is graduating. 19 Then he identifies what she is graduating from. I will be 20 attending and bringing her home. Thank you for your attention 21 to these matters. I will await your response. 22 So we have to address ourselves to the following 23 questions. One is counsels, because counsels is a statutory 24 language which is quoted in the underlying counts. The other 25 is all three. 6375 1 We will take a recess while somebody assembles the 2 exhibits, and somebody can look into the answers to those 3 questions. 4 MR. WILFORD: Your Honor, I have a question. 5 THE COURT: Let's xerox this because the punctuation 6 and the underlying may have some relevance. 7 MR. WILFORD: The jury's second request, when they 8 say in addition to, any evidence regarding Odeh's prints would 9 seem to me to also include testimony, not just exhibits. They 10 have listed specific exhibits and they have said in evidence. 11 To me any evidence would also include testimony. 12 MR. FITZGERALD: Our suggestion, Judge, is, if they 13 don't know the exhibit numbers, we could send them a note 14 saying we are assembling exhibit numbers, please let us know 15 if you wish testimony. 16 THE COURT: I agree with that. Let's do it 17 sequentially. Let's give them the physical evidence. Let's 18 indicate also, as Mr. Fitzgerald suggested -- let's also ask 19 them if they wish to hear the testimony. 20 MR. WILFORD: Your Honor, if you look at the language 21 of the note, they request specific exhibits, they also request 22 exhibits regarding PETN and TNT, and the second question is 23 any evidence. The jury has been specific enough to identify 24 exhibits when they want exhibits. It would appear to me when 25 we say evidence that they mean testimony as well. They did 6376 1 not ask for specific exhibits and I would suggest we send in 2 the testimony as well. 3 THE COURT: Let's see what it is. Let's identify 4 what it is. We will take a brief recess. 5 (Recess) 6 (Time noted, 3:10 p.m.) 7 THE COURT: Let me put on the record what I propose 8 to say, and when Mr. Fitzgerald comes back, we can read it 9 back to him. Is everybody else here? I propose the following 10 answer. 11 You ask how concrete an act is required to be an 12 aider and abettor. The answer is that the defendant you are 13 considering must be more than a passive observer with 14 knowledge that a crime is contemplated. He must be a 15 participant, taking some action to further the commission of 16 the crime. For example, and only as an example, if he 17 knowingly and willfully takes some act such as providing 18 material necessary for the commission of the crime, or 19 otherwise facilitates the commission of the crime by the 20 others, he will be said to aid and abet. Thus we told you, 21 page 79, first paragraph, to aid and abet another to commit a 22 crime, it is necessary that the defendant willfully and 23 knowingly associate himself in some way with the crime and 24 that he willfully and knowingly seek by some act to help make 25 the crime succeed. The act which is required need not itself 6377 1 be a criminal act. It need only be some action taken by the 2 defendant which further the commission of the crime by 3 another. The language in the statute which you quote, whoever 4 counsels, is consistent with what I have just said. By 5 counsel, the statute means provide actual advice or assistance 6 to enable the other person to commit the crime. 7 The emphasis we have placed on the term "act" is 8 designed to emphasize that the aider and abettor must do 9 something beyond being a casual observer. The precise nature 10 of the act is not important. What is important is that it be 11 some specific conduct on the part of the defendant knowingly 12 and willfully taken to further the commission of the crime by 13 another. 14 As to the three questions on page 79, the answers to 15 all three questions must be yes. These questions are simply 16 designed to make clear what we have stated. To be an aider 17 and abettor, one must knowingly and intentionally act so as to 18 further the criminal venture. If you find that the defendant 19 did knowingly and intentionally act so as to further the 20 criminal venture, you will have found that the answers to the 21 three questions will be yes. 22 All right. 23 I would like as well, for Mr. Fitzgerald's benefit, 24 would you read slowly back what I have just read. 25 (Record read) 6378 1 THE COURT: Comments. Any objections? 2 MR. FITZGERALD: No, Judge. If I could wait one 3 moment, Mr. Karas may have found a Supreme Court definition of 4 aiding and abetting, if I could just check. He is in the 5 hallway. No objection but we might want to supplement that. 6 MR. HERMAN: We have no objection with two 7 supplemental additions. With respect to the defendant do 8 something, we would suggest that it be affirmatively do 9 something. 10 THE COURT: Must affirmatively, all right. I have no 11 problem with that. 12 MR. HERMAN: Thank you, Judge. The other suggestion 13 we would make is that when your Honor talks about provide 14 actual advice, we would suggest the word knowingly provide 15 actual advice. That has to do with the definition of counsel. 16 THE COURT: Counsel is what is confusing. 17 MR. HERMAN: Thank you, Judge. 18 MR. FITZGERALD: My only concern about the 19 affirmatively, I don't want to confuse the jury. If the 20 person finds that the person provides advice, that can be 21 conduct. Affirmative may be understood as doing something 22 with your hands, for instance. The Supreme Court case 23 included discussion or other actions. My concern is that by 24 affirmatively do something that means that they have to 25 physically pick something up or carry it. If I could hear 6379 1 that. 2 THE COURT: The emphasis we have placed on the term 3 act is designed to emphasize that the aider and abettor must, 4 bracket, affirmatively, bracket, do something beyond being a 5 casual observer. 6 Do you want affirmatively do or say? 7 MR. FITZGERALD: Yes. 8 THE COURT: Wouldn't you rather have affirmatively do 9 or say? 10 MR. HERMAN: Yes, I would prefer the former than the 11 latter. 12 THE COURT: I think there is no other Supreme Court 13 case. We have looked also. Of course we realize that we are 14 simply restating -- 15 (Pause) 16 MR. FITZGERALD: Mr. Karas gets a steak dinner. 17 THE COURT: Where are we with respect to those other 18 exhibits? 19 MR. WILFORD: We have them. There is a point that I 20 wanted to raise. There is contention between the parties. 21 Your Honor, I would submit to the court that we should include 22 Exhibit 1461 and 1462. 23 THE COURT: What are they? 24 MR. WILFORD: 1461 is a summary chart of prints from 25 Dar es Salaam which have the print on the flour mill, the 6380 1 grinder. Also, 1462, which has the TNT and PETN residue that 2 was uncovered. The reason I state that, your Honor, we argued 3 to the jury in summation that the print of Fahad -- that the 4 PETN and TNT that a plausible explanation was that a 5 contamination occurred on the basis of Fahad's handling in Dar 6 es Salaam of the grinder. The Humsafar magazine was recovered 7 in Mr. Odeh's bag. 8 THE COURT: Which question of the jury do you think 9 encompasses that material? They ask for exhibits regarding 10 PETN and TNT residue on Odeh's belongings. 11 MR. WILFORD: Yes, your Honor. I think in response 12 to that question and also any evidence regarding Odeh's 13 prints. The reason I am saying that is as follows. 1461 is a 14 summary chart -- 15 THE COURT: Let's do this in two stages. Is there 16 anything you want on aiding and abetting? 17 MR. WILFORD: No. 18 MR. FITZGERALD: This is what the Supreme Court said 19 in a civil RICO case in Reeves v. Ernst & Young in discussing 20 the term participate. It said that would be a term of breadth 21 indeed, for aid and abet comprehends all assistance rendered 22 by words, acts, encouragement, support or presence, citing 23 Black's Law Dictionary. 24 THE COURT: I think this is consistent with that. 25 Let's bring in the jury. 6381 1 We will tell the jurors that we won't sit on June 8. 2 The request for a breath of fresh air I will have to take up 3 with the marshals. 4 The three questions of course are Learned Hand's 5 three questions. 6 You know, they have distinguished between evidence 7 and testimony in previous questions. I think I will tell them 8 we will gather the exhibits and send them in, and if they wish 9 to hear the testimony, they should send us another note. 10 MR. WILFORD: Your Honor, we have isolated the 11 appropriate testimony. 12 (Jury present) 13 THE COURT: You have three notes. I will try and 14 deal with them. 15 With respect to aider and abettor you ask, how 16 concrete an act is required to be an aider and abettor? The 17 answer is that the defendant you are considering must be more 18 than a passive observer with knowledge that a crime is 19 contemplated. He must be a participant, taking some action to 20 further the commission of the crime. For example, and only as 21 an example, if he knowingly and willfully takes some act, such 22 as providing material necessary for the commission of the 23 crime, or otherwise facilitates commission of the crime by the 24 others, he will be said to aid and abet. 25 Thus we told you on page 79 at the first full 6382 1 paragraph, to aid and abet another to commit a crime, it is 2 necessary that the defendant willfully and knowingly associate 3 himself in some way with the crime and that he willfully and 4 knowingly seek by some act to help make the crime succeed. 5 The act which is required need not itself be a 6 criminal act. It need only be some action taken by the 7 defendant which furthers the commission of the crime by 8 another. The language in the statute which you quote, 9 "whoever counsels," is consistent with what I have just said. 10 By "counsel," the statute means to knowingly provide actual 11 advice or assistance to further the commission of the crime by 12 another person. 13 The emphasis we have placed on the term "act" is 14 designed to emphasize that the aider and abettor must do 15 something beyond being a casual observer. The precise nature 16 of the act is not important. What is important is that it be 17 some specific conduct on the part of the defendant knowingly 18 and willfully taken to further the commission of the crime by 19 another. 20 As to the three questions on page 79, the answer to 21 all three questions must be yes. But the questions are 22 designed simply to make clear what we have stated. To be an 23 aider and abettor, one must knowingly and intentionally act so 24 as to further the criminal venture. If you find that the 25 defendant you are considering did knowingly and intentionally 6383 1 act so as to further the criminal venture, you will have found 2 that the three questions will be answered yes. 3 If you want further guidance on aiding and abetting, 4 please send us another note. 5 With respect to the request that we not sit on June 8 6 should you be deliberating on June 8, we will not sit on 7 Friday, June 8. You will recall we are not sitting on Friday, 8 the 25th. 9 With respect to a breath of fresh air after lunch, I 10 will talk to the marshals and see whether that is possible. 11 I would also ask that when you send a note to the 12 court, please don't give your name, because we still want to 13 preserve your anonymity. 14 We are in the process of collecting the physical 15 exhibits that you asked for, and we are not sure whether you 16 want just the physical exhibits or you also want the 17 testimony, because previously in your notes you have 18 distinguished between testimony and evidence. If you want to 19 hear as well the testimony with respect to Odeh's prints, 20 please send us another note. Thank you. 21 (Deliberations resumed) 22 THE COURT: Anything further from anyone? 23 MR. WILFORD: Your Honor, I would like to finish my 24 point. 25 THE COURT: Yes, please. 6384 1 MR. WILFORD: The point I was making, your Honor, is 2 that the jury seemed to indicate that they wanted testimony 3 with respect to fingerprints. 4 THE COURT: No. I just asked them that. They said 5 any evidence. 6 MR. WILFORD: I am sorry, the exhibits. One of the 7 exhibits that we have gathered is a summary chart which 8 includes the Humsafar magazine from which Fahad's prints were 9 taken. I think that in conjunction with that, Exhibits 1461 10 and 1462 should also go in. 11 THE COURT: What is the objection to that going in? 12 MR. KARAS: Your Honor, the summary chart that Mr. 13 Wilford is talking about has the fingerprints for Mr. Odeh, 14 which is what is responsive to the second point. So there is 15 no problem with the whole chart going in. What Mr. Wilford is 16 asking for under the third category is to put in the summary 17 charts regarding the PETN and TNT found on the items in Dar es 18 Salaam, which is not responsive to the note. The note says 19 exhibits regarding PETN and TNT residue on Odeh's belongings, 20 which we will give them, which deals with the items found on 21 the Nike bag and so forth. Nothing of Odeh's was found in 22 Tanzania and that goes way beyond what they asked for. 23 MR. WILFORD: I differ for this reason. That was 24 taken in a vacuum. There was vigorous argument from both 25 sides as to where that residue came from, and part of our 6385 1 argument to the jury was that that residue came from Fahad's 2 handling of the magazine, Fahad being in Dar es Salaam, and 3 that PETN and TNT were both found -- there was no PETN found 4 at the bomb site. Those exhibits deal with that based upon 5 the arguments that were tendered to this jury on both sides. 6 THE COURT: Yes, but those are not exhibits regarding 7 PETN and TNT residue on Odeh's belongings. Those are exhibits 8 which relate to the presence of residue on other objects, and 9 I understand that there is an argument that that may have been 10 the source of residue by virtue of some contamination and so 11 on, but that goes well beyond that. 12 We won't send it in, but if you like I would send in 13 a note saying do you wish anything further with respect to 14 possible sources of PETN and TNT residue? 15 MR. WILFORD: Yes, your Honor. 16 MR. KARAS: Your Honor, we would object to that. 17 THE COURT: Why? 18 MR. KARAS: Because I think we basically signal to 19 the jury about what they should be asking for, and the whole 20 process is that the jury can tell us what they want, and, if 21 there is something unclear, tell us, but to tell them that it 22 is somehow unresponsive is really steering them in a direction 23 that is unnecessary. 24 THE COURT: Let me play with the words. Are the 25 documents ready? 6386 1 MR. WILFORD: Everything else is ready, Judge, to go 2 in. 3 THE COURT: What exhibits are being sent in with 4 respect to residue on Odeh's belongings? 5 MR. KARAS: Your Honor, they already have the Odeh 6 clothing itself and they have the Nike bag. We are sending in 7 now the summary chart, Government's Exhibit 538. 8 THE COURT: Exhibit 538? 9 MR. KARAS: Yes. 10 MR. WILFORD: 538, your Honor, I believe, references 11 back to exhibits that they already have. 12 THE COURT: As to Odeh's prints, what is the exhibit 13 number? 14 MR. KARAS: They already have the Swahili book and 15 the Humsafar magazine. We are sending in Government's Exhibit 16 539, which is the summary chart that discusses the 17 fingerprints found on those two items. Then Exhibit 696, 18 which is the latent print that was lifted, and then 696-LP, 19 which is the enlargement that Mitchell Hollars testified from, 20 and then 697, which is the summary chart of the fingerprint 21 analysis. 22 THE COURT: As to the residue, I want to remind them 23 what they already have that is relevant. 24 MR. KARAS: They have Odeh's clothing and the Nike 25 bag. 6387 1 THE COURT: They know. I don't think it is necessary 2 to tell them about that. 3 MR. WILFORD: I think in Exhibit 539 it refers to the 4 Humsafar magazine and the Swahili book, and there may be some 5 confusion as to whether or not they already have those, but 6 they do have those two exhibits. 7 THE COURT: This is as to the prints? 8 MR. WILFORD: Yes. 9 THE COURT: You already have Exhibits -- 10 MR. WILFORD: Exhibit 536, which is the Teach 11 Yourself Swahili book, and then they also have Exhibit 537 12 which is listed on that summary chart, which is the Humsafar 13 magazine. 14 THE COURT: What is the exhibit? 15 MR. WILFORD: 537, your Honor. 16 THE COURT: I say: Here are the exhibits you 17 requested. As to Exhibits regarding PETN and TNT residue on 18 Odeh's belongings, we have sent in Exhibit 538. If you wish 19 to see any other exhibits with respect to PETN and TNT 20 residue, please advise. As to Odeh's prints, we are sending 21 in Exhibits 539, 696, 696LP and 697. You already have 22 Exhibits 536 and 537. 23 MR. WILFORD: Your Honor, two other points. 24 MR. KARAS: One of which I think we share. There is 25 another exhibit that should go in, Government's Exhibit 193, 6388 1 regarding what Kelly Mount would have testified to regarding 2 her testing of the other clothes that are not contained in the 3 summary chart. 4 THE COURT: So we are sending in with respect to that 5 Exhibit 538 and 193. 6 MR. WILFORD: Just so that it is clear, your Honor, 7 Exhibit 697 is a summary chart related to the fingerprint 8 record from the Hilltop Hotel, which is what the jury 9 specifically asked for. 10 THE COURT: They asked for the Hilltop Hotel 11 register. 12 MR. KARAS: With respect to the instruction at the 13 end, if the jury wants any other exhibits regarding PETN and 14 TNT, again, the risk here is that the request is very clear, 15 and maybe if we could say if there are any other exhibits you 16 wish with respect to this request, because otherwise we are 17 suggesting that they ought to be asking for exhibits regarding 18 the PETN and TNT, but not the fingerprints. 19 THE COURT: I don't think so. We will send in this 20 note and those exhibits. 21 They have already said they wish to go home at 4:30. 22 Anything else? Mr. Ailey has been communicated with? 23 MR. FITZGERALD: Yes, Judge, I believe a letter came 24 from Mr. Ailey while I was here last time, and I will hand it 25 over to Mr. Baugh. 6389 1 MR. BAUGH: You are pronouncing my name correctly. 2 THE COURT: Anything else? All right. 3 (Recess) 4 (Proceedings adjourned at 4:30 p.m. until Monday, May 5 21, 2001, at 9:30 a.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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