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

This is the transcript of Day 50 of the trial, May 21, 2001.

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


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


   4              v.                           S(7)98CR1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

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

                                               New York, N.Y.
   9                                           May 21, 2001
                                               11:15 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 Wadih El Hage
  10        Attorneys for defendant Mohamed Sadeek Odeh

            Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
            Attorneys for defendant Khalfan Khamis Mohamed

  16            (In open court; jury not present)

  17            THE COURT:  The note from the jury reads:  Judge

  18   Sand, question B2 of Count Eight (page 11) of the verdict form

  19   pertains to KK Mohamed, but the question is in regard to

  20   Nairobi instead of Dar es Salaam.

  21            Can we please have this typographical error corrected

  22   and a new page 11 sent to us for voting.

  23            Thank you.

  24            Juror No. 1.

  25            MR. RUHNKE:  Yes, I agree.


   1            THE COURT:  This juror is absolutely correct and,

   2   indeed, the preceding matters all relate to Dar es Salaam.

   3   It's a purely typographical error, and unless anyone objects

   4   to it, we'll simply send in a new page 11.

   5            MR. COHN:  And a stapler.

   6            THE COURT:  And a statement?

   7            MR. COHN:  And a stapler.

   8            MR. SCHMIDT:  Your Honor, there is another issue that

   9   I wish to raise with my client present concerning the MCC

  10   visits and conditions of confinement.

  11            THE COURT:  Where are the defendants?

  12            MR. COHN:  I assume they're in back and nobody chose

  13   to bring them.  And I waive my client's presence for this

  14   small technical matter.

  15            MR. RUHNKE:  We do as well.

  16            MR. SCHMIDT:  For this portion.

  17            MR. HERMAN:  We join.

  18            THE COURT:  The note was read to me on the telephone

  19   and the correction is being made in my chambers, and the

  20   corrected page 11 is in en route, and as soon as it arrives we

  21   will send it into the jury, without any further comment,

  22   except maybe, we apologize for the typographical error.  Is

  23   that agreeable?

  24            Insofar as just let me know then when, is it

  25   appropriate for other defendants to be present or is this a


   1   matter that relates solely to Mr. El Hage?

   2            MR. SCHMIDT:  Well, it relates solely to Mr. El Hage.

   3   It's not inappropriate that the other inmate defendants be

   4   here if they wish to be brought out.

   5            MR. COHN:  Your Honor, I know what it's about.  You

   6   do not have to bring out Mr. Al-'Owhali.

   7            MR. RUHNKE:  You do not have to bring out Mr. Khalfan

   8   Mohamed.

   9            MR. HERMAN:  Same here.

  10            THE COURT:  As soon as he and Mr. El Hage is out we

  11   will address that matter.

  12            (Pause)

  13            THE COURT:  All right.  We have the substitute pages.

  14   This says:  This will correct the typographical error.

  15   Substitute pages are attached.

  16            (Recess)

  17            (In open court; jury not present)

  18            THE COURT:  Mr. Cohn, the form that the jury has is

  19   clipped, not stapled.

  20            MR. COHN:  I was sort of semi-joking, but I most

  21   always am and it's hard to know when to take me seriously.

  22            THE COURT:  Mr. Schmidt.

  23            MR. SCHMIDT:  Thank you, your Honor.

  24            Your Honor, as your Honor is aware we've been trying

  25   to arrange visits for Mr. El Hage during the time that his


   1   wife has been present in New York, and the difficulty because

   2   Mrs. El Hage has been here two weeks, she saw her husband

   3   approximately three hours two weeks ago, and was planning to

   4   see him again on Saturday.

   5            THE COURT:  Yes.

   6            MR. SCHMIDT:  Meantime there was one issue that had

   7   arisen that Mrs. El Hage was trying to deal with, and that was

   8   her desire because of her faith not to remove her head scarf

   9   for the visit unless in the presence of a Muslim female

  10   officer.  There are times during the week that there was

  11   another female officer present.  On the weekend apparently

  12   there is not.

  13            I spoke with the Warden's office.  I spoke to the

  14   executive director to see if we can work out a compromise, and

  15   after speaking to him about a compromise that a female

  16   officer, not Muslim, would be able to feel and search the

  17   whole area, the head, the scarf, as a substitute of forcing

  18   her to take off the scarf, I was told it was satisfactory as a

  19   compromise because it would satisfy the security needs.

  20            On Saturday when she arrived -- she also contacted

  21   the Bureau of Prisons regional office a number of times to try

  22   to arrange for the nonremoval of the head scarf.  As a result

  23   this compromise occurred.

  24            When she arrived on Saturday she was told that she

  25   could not see her husband unless she removed the head scarf.


   1   Though this is against her beliefs and embarrassing, she did,

   2   so she could see her husband.

   3            THE COURT:  So the visit in fact took place.

   4            MR. SCHMIDT:  It did not for another reason.  But,

   5   again, I understand the security needs.  It seems that one

   6   representative of the Bureau of Prisons says this satisfies

   7   the security needs and then they do something else.  It's

   8   something that I feel needs to be dealt with because feeling a

   9   head scarf which is a thin scarf on the hair, feeling the

  10   hair, feeling the scarf itself should satisfy security needs

  11   since visitors are not stripped searched, so the other

  12   clothing are not removed.  So I think we need to deal with

  13   that issue as well.

  14            So what happened on Saturday was that Mr. El Hage was

  15   brought to a noncontact room to see his wife and his oldest

  16   son was where there would be a wire barrier and a plastic

  17   barrier between them, and the visitors was not only taken to

  18   that room, but was told that these items were going to be kept

  19   on him.  He was handcuffed.  He was not only handcuffed, he

  20   had the black box which keeps the handcuffs still and cannot

  21   be moved so your hands are in a locked position.  They were

  22   further attached by a metal chain to his waist and his feet

  23   were shackled, placed in the room and expected to see his son,

  24   his 14 year old son and his wife in those conditions in a

  25   noncontact area.


   1            He had previously had a problem with just handcuffs

   2   and with counsel in a noncontact room, a room where there is

   3   no access whatsoever to anyone he was required to have

   4   handcuffs.  One counsel, I'm not sure who it was, took care of

   5   that problem and indicated that it would not be necessary to

   6   be handcuffed in a noncontact room.  There apparently was no

   7   Bureau of Prisons or MCC rules saying that he should.

   8   Previously, when counsel went to see Mr. El Hage the

   9   lieutenant on the tenth floor said, no, this is the way we do

  10   it, and he contacted the legal officer and notwithstanding

  11   what the legal officer said to him he said, no.  We left.  We

  12   spoke to legal counselor.  Indeed, the counselor contacted

  13   either the Warden or the Assistant Warden, and was told that

  14   no, we do not have to have handcuffs talking to counsel.  We

  15   were led back up.  We saw Mr. El Hage without him being

  16   handcuffed.  But we believed it was resolved in contact with

  17   counsel at the MCC about that my understanding is when an

  18   inmate is in a noncontact room where it --

  19            THE COURT:  I'm not clear.  Did the visit in fact

  20   take place?

  21            MR. SCHMIDT:  With me it took place after about an

  22   hour and a half of trying to get that done.  This occurred

  23   about four, five weeks ago, and my understanding that issue

  24   was resolved.

  25            THE COURT:  No.  But this Saturday did the visit take


   1   place?

   2            MR. SCHMIDT:  This Saturday the visit did not take

   3   place because Mr. El Hage did not want his son to see him with

   4   his hands handcuffed, held in front of him, and shackled

   5   around his waist and his feet.  It seems to me that --

   6            THE COURT:  The other thing that I am trying to find

   7   out was whether this was a bureaucratic misinterpretation

   8   caused by the fact that the staff on Saturday may not have

   9   been fully apprised, or whether it was in fact an official

  10   determination.  Do you have any sense as to that?

  11            MR. SCHMIDT:  I have a sense.  The visit two weeks

  12   earlier, a week earlier, did not have any of the accoutrements

  13   that I mentioned.  It was a visit without being shackled,

  14   without the chains.

  15            THE COURT:  A visit by you or by --

  16            MR. SCHMIDT:  By Mr. El Hage's wife.  There is,

  17   apparently, I heard there is no problem with such visits.  So

  18   this is now also a Saturday.  Mr. El Hage informed me, and

  19   Mrs. El Hage informed me that while they're waiting the

  20   lieutenant on duty said let me check, and about twenty minutes

  21   later he said to Mr. El Hage that he spoke to the Warden and

  22   the Warden says, no, everything remains on.  I do not know if

  23   in fact he spoke to the Warden.

  24            The problem is, your Honor, when it happened one time

  25   and it's corrected the first time, you can understand that


   1   there could be a bureaucratic misunderstanding.  This has not

   2   happened once.  It's happened with other counsel seeing their

   3   clients.  This has happened repeatedly, and it's happening in

   4   a manner that it appears to be especially on the weekends when

   5   there is less oversight done in a way to humiliate Mr. El Hage

   6   and punish him, Mr. El Hage.

   7            THE COURT:  Let me now make inquiry of the

   8   appropriate personnel at the MCC because before I can deal

   9   with it or issue any order or pass any judgment I have to know

  10   what the answer to that is, and if the answer is that it was a

  11   bureaucratic foul up, then I have to make sure that there is

  12   no occurrence of that.  If the answer is that it was

  13   intentional and policy, then I have to address that.  But it

  14   seems to me I have to know the answer to that before we can

  15   deal with it.

  16            MR. SCHMIDT:  Your Honor, I saw Ms. Raia first thing

  17   this morning, and her reaction was that -- at that time I only

  18   had known that it was handcuffs, I did not know that it was

  19   also the black box and chain on the waist -- and her reaction

  20   was that she thought she dealt with that problem twenty times

  21   already in MCC, so to her it appeared to me that she did not

  22   expect that to happen.

  23            But as your Honor indicated, I think it's way past

  24   the time to give this as a bureaucratic mishap because it

  25   specifically happened too many times.


   1            THE COURT:  So steps have to be taken to assure that

   2   what is in fact the appropriate policy for the MCC is

   3   implemented.  Let me make immediate inquiry, and we'll deal

   4   with it, but it seems to me that there is no point in further

   5   rhetoric, nor anything else until I know what the position of

   6   Bureau of Prisons is on the matter.

   7            MR. SCHMIDT:  I understand.

   8            THE COURT:  I will do that immediately.

   9            MR. SCHMIDT:  I have one further request because

  10   Mrs. El Hage has been here two weeks and seen her husband

  11   once, that we schedule for this evening or tomorrow evening

  12   after court an opportunity, notwithstanding the concern of MCC

  13   as to overtime, extraordinary conditions of confinement

  14   extraordinary situation.  Thank you.

  15            THE COURT:  Very well.  All right.  We will recess

  16   pending something further from the jury, and pending my

  17   inquiry as to the causes for Saturday's occurrence.

  18            I take it the government has no comment on this.

  19            MR. FITZGERALD:  No, Judge.

  20            (Recess)

  21            (In open court; jury not present; 2:15 p.m.)

  22            The note from the jury reads:  The jury would like to

  23   request the photos taken of Al-'Owhali after his arrest -

  24   particularly the ones that show his injuries.

  25            Thank you.


   1            PS.  Please include exhibit Al-'Owhali I.

   2            So there are two questions to respond to.  One is the

   3   photos, and the other that would include the photos taken of

   4   him while he was in custody showing his wounds; photos taken

   5   by Agent Gaudin, the information, identification parade, the

   6   photo taken for the newspaper by the newspaper.

   7            MR. COHN:  Your Honor, I've gone through it and we

   8   have all of them I believe and I'm going to identify them with

   9   the government and read the numbers into the record in about

  10   40 seconds.

  11            THE COURT:  Very well, okay.

  12            (Pause)

  13            While you're doing that, just because the other

  14   matters were on the record, with respect to Mr. El Hage and

  15   the question of the visit, my understanding was that the MCC

  16   had two facilities in which visits are held.

  17            One has a bare mesh barrier, and the other doesn't.

  18   And one is in an area which requires walking through 9 South

  19   and the other doesn't.  And in the area which requires walking

  20   through 9 South, there is no requirement of the inmate being

  21   handcuffed.  In the other facility there is a requirement of

  22   handcuffing.

  23            The explanation I was given, which was based on Ms.

  24   Raia, based on conversations with the Warden, was that he

  25   thought that walking to 9 South was inappropriate for a young


   1   boy, but that it's a decision to be made by Mr. El Hage.

   2            I spoke to Mr. Schmidt who expressed his view that

   3   this was all after the fact rationalization for what had

   4   occurred, but that Mr. El Hage's preference is for the visit

   5   which does not require him to be handcuffed, and such a visit

   6   is scheduled for 5:30 today in the area where handcuffs will

   7   not be required, but which will require walking through 9

   8   South.

   9            Ms. Raia says there may be some delay.  It will be

  10   scheduled for 5:30.  There may be some delay because the count

  11   down takes place at that time, and the visit will follow the

  12   completion of the count down.

  13            Going back to the juror's request.

  14            MR. COHN:  Your Honor, the government and I have

  15   agreed we have exhibit B and B1 through B8 which are pictures

  16   of the injuries.  We have exhibit C which is the newspaper

  17   photo.  We have exhibit D which is the parade photo, and we

  18   have I, J and K which are pictures taken of Agent Gaudin, the

  19   client, and in one situation one other person post-arrest.

  20            MR. FITZGERALD:  And the Government Exhibits in

  21   addition are 551-A through I.

  22            MR. COHN:  Are they in, because they're the same

  23   photographs as B1 through B8.

  24            MR. FITZGERALD:  But they are in evidence.

  25            MR. COHN:  Not a problem.


   1            THE COURT:  Very well.  We'll send them in.

   2            We reconfirm 11 o'clock Wednesday for the charging

   3   conference with respect to the death penalty phase as to both

   4   defendants.

   5            MR. SCHMIDT:  Your Honor, Mr. El Hage and I want to

   6   thank your Honor for the effort.  I would just like to make

   7   one other thing clear.  One of the problems seemed to be the

   8   change of policy in MCC about visits.

   9            Mr. El Hage did have a visit, did have other visits

  10   not on 10 South, on other floors where he was not required to

  11   have to be handcuffed and where he saw his children.  The fact

  12   that the institute now says that those other locations

  13   requires handcuffs, they've actually changed from the visit

  14   that occurred nine days ago, and I just want your Honor to be

  15   aware this is one of the problems.  We have certain

  16   expectations based on what's happened before.  We're not

  17   informed.  The policy has changed and then something happens

  18   that is different than that has been the concern of Mr. El

  19   Hage.  We want your Honor to be aware that this is not

  20   necessarily how they arranged these visits a week and a half

  21   ago.

  22            THE COURT:  Very well.

  23            MR. COHN:  Your Honor, may I raise one thing which

  24   may seem picayune, and I'm not exactly sure what it means, but

  25   the juror's inquiry refers, after the arrest.


   1            As I recollect the record he was not arrested until

   2   he was on the airplane, and these photos all precede that and

   3   we are assuming that means when Kenyan CID took him into

   4   custody.  If my recollection is right, it may mean that the

   5   jurors should be told that, although I believe that's what

   6   they are asking for, and they should get what they're asking

   7   for.  It's a question of how they construe the information.

   8            MR. FITZGERALD:  Your Honor, I think it's clear from

   9   the text on the note, they're referring to his detention in

  10   Kenya because they say, include exhibit I which are photos

  11   taken before he's ever put on an airplane plain.

  12            THE COURT:  We have used the post-arrest, for

  13   example, with respect to admissibility of statements, we've

  14   used the phrase post-arrest.

  15            MR. COHN:  I believe there is no question as to what

  16   they are asking for, and I am not objecting to it going in.

  17   What I am inquiring about, and I truly say that I don't know

  18   where I come out on this, is whether or not, and I'm asking in

  19   a sense for the Court's advice, that no arrest really took

  20   place until he was put on the airplane, and perhaps while the

  21   jury gets this information they ought to be told that.

  22            THE COURT:  I don't know that that's accurate.  No

  23   arrest by what, American authorities?

  24            MR. COHN:  And there is no --

  25            THE COURT:  If you used the classic definition of


   1   arrest, that is whether somebody was free to leave, he clearly

   2   was not free to leave.

   3            MR. COHN:  Well, on the other hand, your Honor, he

   4   was taken into custody because allegedly he had no

   5   documentation as to his presence, and it was as I recall the

   6   testimony both at the suppression hearing and at the trial, it

   7   was an inquiry, and it is unclear as to when that changed.

   8   While it is clear that were we're talking about in custody

   9   under usual United States law and when Miranda became

  10   available, we would be talking about the time he was no longer

  11   free to leave which is about thirty seconds after CID came

  12   into his room, but I don't know that what the jury is

  13   referring to in terms of arrest, and I wonder whether or not

  14   they --

  15            THE COURT:  You really don't know what they mean when

  16   they say, particularly the ones which show his injuries and

  17   identify --

  18            MR. COHN:  I know what photos they're talking about,

  19   Judge, but they're using a technical term, and it troubles me.

  20            THE COURT:  They are using it, but they're using it

  21   in a nontechnical sense.  Tell me specifically what it is that

  22   you think the Court should do.

  23            MR. COHN:  I think they ought to be told that they

  24   are being sent the pictures after CID took him into custody

  25   but he was not arrested until he got on the plane.


   1            MR. FITZGERALD:  Judge, I think they're just asking

   2   for photographs.  I don't think we need to confuse them,

   3   particularly since Mr. Cohn made an argument in summation

   4   about the conditions of confinement.  I think they're simply

   5   describing what they want in plain English.

   6            THE COURT:  I think that's fair, and I don't know

   7   that Mr. Cohn disputes the fact that we know exactly what it

   8   is that they are asking for, and I think I agree that it would

   9   simply confuse matters to elaborate on arrest.

  10            MR. RUHNKE:  Your Honor, I had other scheduling

  11   matters to talk to you about, pending matters.  I hand

  12   delivered a file to the chambers over lunch hour and I'm

  13   wondering when you want to take up that matter.

  14            THE COURT:  Is the government prepared to deal with

  15   that now or does the government want to respond to that?

  16            MR. RUHNKE:  I think the government just got my

  17   papers, your Honor.

  18            MR. FITZGERALD:  I prefer to deal with it if I could

  19   to look at it further.  Obviously, it's a letter.  We oppose

  20   the application.  We'd like to focus on the proposed charge.

  21            THE COURT:  We have --

  22            MR. RUHNKE:  Excuse me.  I couldn't hear you for a

  23   moment, please.

  24            MR. COHN:  I'm sorry, Judge.

  25            THE COURT:  Can we deal with that say at 10:30 on


   1   Wednesday?

   2            MR. RUHNKE:  That's fine, your Honor.

   3            THE COURT:  All right.  We'll await further from the

   4   jury.

   5            (Recess)

   6            (In open court; jury not present; 2:50 p.m.)

   7            THE COURT:  The note from the jury reads:

   8            Judge Sand.  Thank you for your prompt response to

   9   our previous questions.  We have a few more questions for the

  10   Court.

  11            1.  We request the reading of the testimony of

  12   government witness number 24, Charles Mwaka Mula 2.

  13            We also request that Special Agent Gaudin's testimony

  14   be read in its entirety.  A portion was previously read.

  15            Finally, we would like a clarification of the second

  16   paragraph on page 88 on the first element which reads:  Quote

  17   three dots, the defendant inflicted an injury or injuries upon

  18   the victim from which the victim died or that the defendant

  19   aided and abetted another person to do so.

  20            Does this mean that the injuries/death were caused by

  21   the weapon caused by the defendant or by his participation in

  22   the bombing quote acting as a diversion.

  23            Thank you for your help.

  24            My only question with respect to 1 and 2 is whether

  25   we should have that read to the jury or whether at least with


   1   respect to Agent Gaudin it is so lengthy that we should send

   2   in 12 copies of the transcript.

   3            MR. COHN:  Is your Honor finished or waiting for a

   4   response?

   5            THE COURT:  Excuse me?

   6            MR. COHN:  Are you finished or waiting for a

   7   response?

   8            THE COURT:  All right, I'm finished as to that.

   9            MR. COHN:  Your Honor, I believe it has to be read.

  10            THE COURT:  Does anybody disagree with that?

  11   Everybody agrees.

  12            Should we do that, and then we can discuss the

  13   implications of the third question.

  14            MR. COHN:  Your Honor, but in terms of the readback

  15   of the testimony the way it's been going on, and what's been

  16   asked for I would ask that as it's read back exhibits which

  17   were put up on the screens at the time and are referred to in

  18   the testimony should be put up again.  I believe they're

  19   asking for a readback which in this case requires a readback

  20   with the pictures as they were put up.

  21            THE COURT:  I'll ask them that.  We'll bring them in,

  22   we'll start to read, and the first time it comes up, we'll ask

  23   them that.

  24            MR. COHN:  Very well, your Honor.

  25            MR. FITZGERALD:  Judge, there is only one logistical


   1   issue.  My understanding is that as to the transcripts errata

   2   sheets were sent to the Court reporters to correct any

   3   typographical errors.  I believe that the corrected

   4   transcripts came back, and then they were recently proofed

   5   against the errata sheets and there may have been a couple of

   6   typographical errors that are still outstanding.

   7            We were getting the sheets that went over this

   8   morning to compare that.  I don't know if any of this is

   9   significant or not, but I think we should just resolve any

  10   disagreement with the transcript before we bring the jury in.

  11            MR. COHN:  I think that's fair, your Honor, and what

  12   I would suggest what we do is because of the hour and when

  13   they generally want to quit, I would read Mr. Mwaka Mula's

  14   testimony first, which is the shorter of the two, and that

  15   might run us out to close to 4:30, if that's when they want to

  16   go home, and then we can resolve the other question.

  17            MR. FITZGERALD:  I still think we have the transcript

  18   issue as to both witnesses.

  19            MR. COHN:  We'll deal with that one first is all I'm

  20   suggesting, that we try and deal with it that way, the

  21   government is absolutely correct, that we should read them as

  22   accurate.

  23            THE COURT:  Why don't you see whether you can resolve

  24   any transcript errors with respect to the Mwaka Mula testimony

  25   and let me know as to that, and in the meantime I'll try to


   1   address both questions, which I'll deal with you.  The jury

   2   wants to go home at 4:30.  So we have an hour and a half.

   3            MR. COHN:  Thank you, your Honor.

   4            (Recess)

   5            (In open court; jury not present)

   6            THE COURT:  Let me run by you my proposed response to

   7   the third question.  Do you physically have a xerox of the

   8   question before you?

   9            MR. FITZGERALD:  Yes, Judge.

  10            THE COURT:  I think that in the next to last

  11   paragraph the second line there should mean were caused by the

  12   weapon used by.  Does everybody agree with that?

  13            MR. FITZGERALD:  Yes.

  14            MR. COHN:  Where is that?

  15            THE COURT:  Does this mean that the injury/deaths

  16   were caused by the weapon, underlined, caused by the defendant

  17   or by his participation in the bombing acting as a diversion.

  18            MR. COHN:  Your Honor, I believe that cause is

  19   improper allocution and probably a mistake.  What it means,

  20   I'm not prepared to say and I would ask the jury.

  21            THE COURT:  And you would ask for what?

  22            MR. COHN:  I would ask the jury what they mean by

  23   cause as opposed to  --

  24            THE COURT:  For the time being I think we will assume

  25   that means it was caused by the weapon used by the defendant.


   1   It's the only thing that make sense.  So I think they are hung

   2   up.  You see they've underlined weapon and participation.  And

   3   what I propose to say to them is the following:

   4            With respect to the language on the second paragraph

   5   on page 88 that quote government must prove that the defendant

   6   inflicted an injury or injuries upon the victims from which

   7   the victim died, you asked whether this means quote caused by

   8   the weapon, underlined, and I put brackets, used, by the

   9   defendant or by his participation, underlined, in the bombing

  10   acting as a diversion.

  11            And I go on:  The answer is that you must look at all

  12   of the conduct of the defendant with respect to the attack on

  13   the embassy.  This includes the nature of the weapon used -a

  14   bomb- and the defendant's role in the bombing.  After

  15   considering all of the acts which you find that the defendant

  16   to have done in connection with the bombing, the question is

  17   whether the defendant's conduct caused the infliction of

  18   injury or injuries by the victim or aided and abetted another

  19   person to cause such injury.

  20            MR. COHN:  Your Honor, we will have until tomorrow

  21   morning to consider that, and I would ask that you give me

  22   that in writing and we talk about it in the morning.

  23            THE COURT:  Denied.  I don't think that that is

  24   necessary.  We can't deal with that now in --

  25            MR. COHN:  Why not?  Does it cost us any time to wait


   1   until the morning, so that counsel can consider what is I

   2   think not an uncomplicated question.  I mean what does it cost

   3   us to wait?  We're going to have plenty to do to read

   4   transcripts.

   5            THE COURT:  What it costs is leaving the doubt in the

   6   jurors' minds until sometime tomorrow.  Yes, we'll do it

   7   tomorrow.

   8            MR. COHN:  Thank you.

   9            THE COURT:  We'll do it tomorrow.  We'll do it

  10   promptly tomorrow.

  11            MR. COHN:  That's fine.  Could we have a copy of what

  12   your Honor proposes to read?

  13            THE COURT:  The court reporter has taken it down,

  14   right?  Yes.

  15            MR. FITZGERALD:  To save time for tomorrow, might I

  16   just suggest that if you read the last question I think it

  17   could be answered simply by saying the answer is either.  What

  18   it's saying is, does that mean injuries caused by the weapon

  19   by the defendant or caused by his participation in the

  20   bombing.  If a juror finds that a defendant's use of a weapon

  21   or participation in the bombing caused the death that would

  22   suffice.

  23            THE COURT:  I think it's pretty clear that we're on a

  24   Count 9, right?  They asked a question about 8 which we

  25   answered, and I think it's clear now that they are on Count 9.


   1   And I think that what they're looking to is with respect to

   2   Al-'Owhali is whether it's he himself, or aided and abetted.

   3   I think that's where the jury is, and so to say either doesn't

   4   really tell them which box they check.

   5            But we'll take it up tomorrow morning, 9:30 promptly.

   6   Now, where are we with respect to the Mula's testimony?

   7            MR. COHN:  The government has given me a list of

   8   corrections that were not corrected.  I agree that the

   9   government is correct and, therefore, we can read it with the

  10   government's indentations.

  11            THE COURT:  Can we now bring in the jury?

  12            MR. FITZGERALD:  That covers both Gaudin and Mwaka

  13   Mula.  The only thing I was going through was flagging where

  14   colloquy happened or there were objections so we don't have an

  15   issue on that.  I could have it finished in five minutes.

  16            THE COURT:  So we'll bring in the jury in another

  17   five minutes.

  18            Let Mr. Kenneally know when you're ready.

  19            (Recess)

  20            (In open court; jury not present)

  21            THE COURT:  Let me come back to the third question

  22   and respond a little bit to Mr. Fitzgerald's comment and

  23   realization of what it is that is troubling the jury, and I

  24   think it is the language of the special verdict form that has

  25   the alternative himself killed or aided and abetted.  Let me


   1   do it again from the top and I'll do it slowly, and I'll ask

   2   that the court reporter make sure counsel have a copy of this

   3   this evening.

   4            With respect to the language in the second paragraph

   5   on page 88 that the quote government must prove that the

   6   defendant inflicted an injury or injuries upon the victim from

   7   which the victim died unquote, you ask whether this means

   8   quote caused by the weapon, underlined bracket, used, close

   9   bracket, by the defendant or by his participation, underlined,

  10   in the bombing ("acting as a diversion.")

  11            The answer is that you must look at all of the

  12   conduct of the defendant with respect to the attack on the

  13   embassy.  This includes the nature of the weapon used -a bomb-

  14   and the defendant's role in the bombing.

  15            MR. COHN:  Your Honor, the door was open and the jury

  16   was right outside.

  17            THE COURT:  After considering all of the acts which

  18   you find the defendant to have done in connection with the

  19   bombing, the question is whether the defendant's conduct

  20   caused infliction of injury or injuries to the victim, or

  21   aided and abetted another person to cause such injuries.  If

  22   you find that the defendant's conduct itself caused the injury

  23   and all of the other elements of the crime have been proven

  24   all beyond a reasonable doubt then you will have found that he

  25   "himself killed" the victim.


   1            If you find beyond a reasonable doubt that the

   2   defendant's conduct did not itself cause the injuries, but

   3   aided and abetted the causing of the injuries by another

   4   person, and all of the other elements of the crime have been

   5   proven, then you will have found him to be an aider and

   6   abetter.

   7            All right.  We'll take that up at 9:30 tomorrow

   8   morning.  Let's bring in the jury.

   9            MR. FITZGERALD:  You want me to read into the record

  10   what we should start and stop.  I have a list of when we

  11   started and stopped in the transcript.  I don't know if you

  12   wanted me to put that on the record.

  13            THE COURT:  Okay.  Why don't you do that after.  As

  14   long as the jury is standing in the hall, let's do that.

  15            MR. FITZGERALD:  Okay.  I just wanted to make sure

  16   the court reporter knows --

  17            (Jury present)

  18            THE COURT:  You asked for the reading of testimony

  19   which we will read to you.  And you asked a question with

  20   respect to the charge, which we will answer.  With respect to

  21   the question you said, does this mean that the injuries/death

  22   were caused by the weapon, underlined, and then there is

  23   another word says, caused by the defendant.  Do you mean used

  24   by the defendant?

  25            Used by the defendant.  I thought that was the case.


   1            Your first request is for the testimony of witness

   2   24, Charles Mwaka Mula, and what is happening is that counsel

   3   are indicating the pages on which that appears so that the

   4   reporter will know what it is to read.

   5            MR. COHN:  Were you going to ask the question of the

   6   jury about the exhibits that come up?

   7            THE COURT:  During the testimony there is reference

   8   to exhibits, some of which you have and some of which you may

   9   not have, and the question is whether you want to see the

  10   exhibits while the testimony is being read.  Why don't we

  11   begin and you can let us know that tomorrow morning.

  12            (Record read: Line 19, page 2125 through Line 10,

  13   page 2159)

  14            THE COURT:  You've also asked for the testimony of

  15   Agent Gaudin and you said in its entirety.  And maybe what we

  16   ought to do is this.  Maybe we should call it a day.  We will

  17   not finish Agent Gaudin's testimony today even if we start,

  18   and maybe you give some thought to whether you can specify

  19   some portions of Agent Gaudin's testimony that you're

  20   particularly interested in rather than perhaps have

  21   considerable time spent reading testimony which is not of

  22   particular interest to you.

  23            So why don't you give some thought to that and

  24   perhaps send us another note, and if you wish to hear it in

  25   its entirety, no problem, and we will read it all in its


   1   entirety and also give some thought to the question that I

   2   posed with respect to exhibits utilized during the testimony,

   3   and you may return to the jury room, and you may call it a day

   4   at 4:30 if you wish.

   5            (Jury not present)

   6            THE COURT:  Mr. Cohn.

   7            MR. COHN:  Your Honor, I object to your invitation to

   8   the jury to revise their question.

   9            THE COURT:  Excuse me?

  10            MR. COHN:  I object to your invitation to the jury to

  11   revise their request for a readback.  I think it's

  12   inappropriate the reason they asked for what it is, and you

  13   suggest that it's unnecessary in my view respectfully

  14   inappropriate.  As for the morning, that if they have now

  15   changed their view because of your question that you ignore it

  16   and you read back the testimony of Agent Gaudin the entirety

  17   which is what they asked for.

  18            THE COURT:  I don't know how closely you watched the

  19   jury and watched what happened during the reading of the

  20   testimony.  I think it's clear that there is some portion of

  21   that testimony that they're interested in, and there is

  22   portions of the testimony they were not and one of the jurors

  23   sent a note to the foreperson, and --

  24            MR. COHN:  They don't know that until --

  25            THE COURT:  -- made it very clear.  I said at least


   1   twice that if in fact they wish to hear it in its entirety,

   2   there is no problem, and that we would do that.  It is only

   3   that if in fact their interest was focused on some particular

   4   portion of the testimony they could send us another note.

   5   Your objection is noted.

   6            MR. COHN:  Judge, the question said that they

   7   actually recalled that a portion of that testimony had been

   8   read back before.  The notion that we should sit here and read

   9   entrails and decide what we think they mean is frankly

  10   inappropriate.  They asked for it.  And for you to suggest

  11   from the presence of the bench that they may be want to

  12   reconsider it I think is inappropriate.  I've made my record

  13   and you'll do what you do.

  14            THE COURT:  I have.

  15            Anything further?  We're adjourned.  Very promptly at

  16   9:30.  You know the jury gets in a little after 9.

  17            (Pause)

  18            THE COURT:  Judge Sand:  The juror who has requested

  19   to hear Agent Gaudin's testimony has changed her mind after

  20   hearing witness 24's testimony read as she feels this has

  21   answered her question.  Thank you, and good night.  Juror No.

  22   1 Foreperson.

  23            Well, there was in fact a juror who sent a note to

  24   the Forelady and the Forelady sort of shrugged her shoulders

  25   as if there isn't anything that I can do about it.  All right.


   1   We will follow the juror's request.  I'm trying to recall just

   2   at what point in the testimony that the juror thought that her

   3   question was answered, but I didn't note that.  So that at

   4   9:30 tomorrow we will deal with the response to the third

   5   question and we're adjourned until tomorrow.

   6            (Adjourned to Tuesday, May 22, 2001 at 9:30 a.m.)




















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