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 51 of the trial, May 22, 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 22, 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        MICHAEL GARCIA
            Assistant United States Attorneys

   8        Attorneys for defendant Wadih El Hage

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

  15        Attorneys for defendant Khalfan Khamis Mohamed


  17            (In open court; jury not present)

  18            THE COURT:  The Court has received a proposed

  19   response on behalf of Al-'Owhali to the question asked by the

  20   jury yesterday, which I have marked as Court Exhibit A of

  21   today's date.  I have no particular difficulty with it except

  22   that I don't believe it is specific enough in the response to

  23   the question from the jury.  You all have before you the

  24   Court's draft of proposed response.  Does anybody have any

  25   objections with respect to that proposed response?


   1            MR. COHN:  I have one objection and one suggested

   2   addition.  The objection I have, your Honor, is where you say

   3   on the second page:  "If you find beyond a reasonable doubt

   4   that the defendant's conduct did not itself cause the death of

   5   the victim," that, in my view, your Honor, is burden shifting.

   6   Technically if you're going to talk about beyond a reasonable

   7   doubt, you would have to say -- that's why we excluded this

   8   altogether because I thought it was confusing -- you would

   9   have to say that if the government has failed to prove beyond

  10   a reasonable doubt --

  11            THE COURT:  I'll make that change.  That sentence

  12   will now read:  If you find beyond a reasonable doubt that the

  13   government has failed to prove that the defendant's conduct

  14   itself caused the death of the victim but has proven that he

  15   aided and abetted the causing of the death of the victim by

  16   another person and all of the other elements of the crime have

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

  18   abetter.

  19            MR. COHN:  Your Honor, I believe that you've doubled

  20   that up and you sort of shifted to almost where it's supposed

  21   to be, but they are not to find beyond a reasonable doubt that

  22   the government has failed to prove anything.  The government

  23   has either proven it beyond a reasonable doubt or not, and so

  24   when you say, if you find beyond a reasonable doubt that the

  25   government failed to prove, you're imposing on the jury the


   1   duty to be unanimous on the fact that they --

   2            THE COURT:  What language would you have?

   3            MR. COHN:  I had gotten rid of that language

   4   altogether, and left out that reasonable doubt about you know

   5   that issue, but if you need, and technically I believe that

   6   the language, if you are going to engage in that portion of

   7   the charge, is, if the government has failed to prove beyond a

   8   reasonable doubt that --

   9            THE COURT:  The defendant's conduct itself caused the

  10   death of the victims but has proven -- you want beyond a

  11   reasonable doubt again?

  12            MR. COHN:  But you can't put, if you find beyond a

  13   reasonable doubt.  It's if the government has failed to prove

  14   beyond a reasonable doubt the conduct.

  15            THE COURT:  That's easy enough.

  16            MR. COHN:  The second is I would like, if your Honor

  17   please, to refer them back to your aiding and abetting charge

  18   starting on page 77.  You don't have to read it.  Just refer

  19   it to them.

  20            THE COURT:  I've done that.  I've done it twice and

  21   they got a copy of my last remarks.  I suppose I could give

  22   them a copy of this, before I hear from all the defendants

  23   first.

  24            MR. RUHNKE:  Judge, the same correction ought to be

  25   made to the penultimate paragraph of your proposed charge


   1   which begins, if you find the defendant's conduct neither

   2   caused --

   3            THE COURT:  I could strike that paragraph entirely.

   4   Counsel for Mr. Al-'Owhali hasn't requested that paragraph and

   5   it just complicates it.

   6            MR. RUHNKE:  I'll defer to Mr. Al-'Owhali's counsel

   7   if he wants it stricken.  If it's going to go in it should be

   8   reframed to, if you have a reasonable doubt as to whether the

   9   defendant's conduct either directly caused the victim's death

  10   or aided and abetted another person to do so, then the

  11   defendant is not guilty of that charge.

  12            MR. COHN:  I rather like the inclusion of it, your

  13   Honor, and I missed the import, and I thank Mr. Ruhnke for his

  14   help.

  15            THE COURT:  If you find that the government has

  16   failed to prove beyond a reasonable doubt that the defendant's

  17   conduct either directly caused the victim's death or aided and

  18   abetted another defendant, then the defendant is not guilty of

  19   that charge.  Okay.

  20            MR. KARAS:  Your Honor, we have no objection.  The

  21   only suggestion we have is if you would when you bring the

  22   jury in if they'd like this in writing, they can ask for it.

  23            MR. COHN:  No objection to that, your Honor.

  24            THE COURT:  Yes.  I might as well just send it in

  25   without them asking for it.  They arrived.  They're a little


   1   late.  They may be having their breakfast.

   2            MR. COHN:  Your Honor, at some time today --

   3            THE COURT:  Some time today matters we'll take up at

   4   some time today.  Let's finish this.

   5            MR. COHN:  I thought we were finished.

   6            Let me find out if the jury is ready.

   7            (Recess)

   8            (In open court; jury present)

   9            THE COURT:  Good morning.  I am now going to respond

  10   to the question you asked yesterday and as soon as it comes

  11   back from the typist we'll send in a copy of these remarks

  12   also so you will have it in writing as well as orally.

  13            With respect to the language in the second paragraph

  14   on page 88 that the "government must prove that the defendant

  15   inflicted an injury or injuries upon the victim from which the

  16   victim died," you asked whether this means and I quote from

  17   your question:  "caused by the weapon," and you underlined

  18   weapon used by the defendant or by his participation and you

  19   underlined participation in the bombing ("acting as a

  20   diversion").

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

  22   conduct in which you find the defendant engaged with respect

  23   to the attack on the embassy.  This includes the nature of the

  24   weapon used, a bomb, and the defendant's role in the bombing.

  25   After considering all of the acts which you find the defendant


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

   2   whether the defendant's conduct directly caused the infliction

   3   of injury or injuries to the victim which resulted in death or

   4   aided and abetted another person to cause such injuries.

   5            Now the definition of "directly caused" here is the

   6   same as that found in the first two sentences on page 70 and

   7   what we say there is "directly caused" means the conduct of

   8   the defendant you are considering directly resulted in the

   9   death in question.

  10            If you find that the defendant's conduct itself

  11   caused the death of the victim and all of the other elements

  12   of the crime have been proven, all beyond a reasonable doubt,

  13   then you will have found that he "himself killed," the victim.

  14   If the government has failed to prove beyond a reasonable

  15   doubt that the defendant's conduct itself caused the death of

  16   the victim but has proven beyond a reasonable doubt that he

  17   aided and abetted the causing of the death of the victim by

  18   another person, and all of the other elements of the crime

  19   have been proven, then you will have found him to be an aider

  20   and abetter.

  21            If you find that the government has failed to prove

  22   beyond a reasonable doubt that the defendant's conduct either

  23   directly caused the victim's death or aided and abetted

  24   another person to do so, then the defendant is not guilty of

  25   that charge.


   1            That concludes my answer to your question.  I remind

   2   you that if you wish to see any other exhibits or wish to hear

   3   any other testimony, you should not hesitate to send us a

   4   note.  Bear with me just a moment.

   5            All right.  You may return to the jury room and have

   6   copies of what I have just said.

   7            (Jury not present)

   8            THE COURT:  Mr. Cohn, you said sometime today you'd

   9   like to take up something.

  10            MR. COHN:  Yes, your Honor, and I'm sure we have to

  11   wait for the government to get its copies of the papers and

  12   stuff.  We have still on the floor the resolution of when, if

  13   ever, the government will be allowed to prove the Pepe

  14   incident in response to whatever it is we do, and we've given

  15   them a proffer of what we intend our case to be on future

  16   dangerousness, and we've gotten a firm, "we'll see," from

  17   them.

  18            THE COURT:  Just a moment, please.

  19            (Pause)

  20            MR. COHN:  So at sometime when the government is

  21   prepared for that, we'd like to see if your Honor will rule on

  22   the issue.

  23            MR. FITZGERALD:  Your Honor, we've been in contact

  24   with the Bureau of Prisons and we're gathering rebuttal

  25   information to the defendants' proffer to show that


   1   notwithstanding what I understand the defense would seek to

   2   prove the existence of secured units and certain regulations

   3   that violent incidents have happened both in secure

   4   institutions and pursuant or by defendants who are subject to

   5   the Code of Federal Regulations.

   6            We've gotten some of the materials back.  We've

   7   copied them last night to produce to the defense today.  We're

   8   waiting for the balance so we can address when and under what

   9   circumstances the Pepe assault incident would at all be

  10   relevant, but I think the more important question is probably

  11   in what form the assault will be relevant.  It may be that

  12   it's not important who it was that carried out the attack, but

  13   the fact that under the special administrative measures an

  14   attack can still be carried out.

  15            THE COURT:  I'm not sure that I understand the

  16   relationship between the two.  What Mr. Cohn is seeking, I

  17   think, is clarification of what claims made on behalf of his

  18   client would, in the government's opinion, trigger a response

  19   which includes the attack on the guard.

  20            Now, let me see if I can focus a little more.  And I

  21   just was reading in this morning's Times about the incidents

  22   of violence on death row in San Quentin.  But if Al-'Owhali

  23   says to the jury in substance, you need have no concern about

  24   future dangerousness because in maximum security facilities to

  25   which Mr. Al-'Owhali will doubtless be sent that is not a


   1   problem, then what happens?

   2            MR. FITZGERALD:  Then, your Honor, we would seek to

   3   prove, and, in fact, we handed over some videotapes -- going

   4   other this morning I haven't received them yet -- video tapes

   5   that in maximum security facilities there have been violent

   6   incidents where inmates have attacked and in some cases killed

   7   fellow inmates, and also showing that it puts guards in a

   8   dangerous position when those incidents happen since they have

   9   to respond.

  10            My understanding is that Al-'Owhali was also

  11   intending to introduce the Code of Federal Regulations that

  12   establishes that there are special administrative measures

  13   that can be taken to make sure that a defendant poses no risk

  14   to others, and then the assault on Officer Pepe would be

  15   directly relevant to show that not only in the high security

  16   wing, but under special administrative measures an assault was

  17   still carried out.

  18            The question would then become in what form that

  19   evidence was offered.  It would not be the evidentiary details

  20   certainly that will be offered at the independent phase on

  21   Khalfan Mohamed, but the fact that notwithstanding the

  22   existence of special administrative measures a guard can be

  23   maimed I think would be relevant to rebut the offer by the

  24   defense that the existence of maximum security facilities and

  25   those measures would assure the jury that no violence could


   1   occur.

   2            MR. COHN:  Your Honor, without previewing the other

   3   evidence that they're talking about, this was addressed to

   4   this assault on a guard, and if I understand the government's

   5   position that what they may do in rebuttal is to bring in the

   6   facts of it without identification of the guard or the clients

   7   being at the MCC.

   8            If that is the position I maintain is still not quite

   9   sufficient because while it may insulate the defendant from

  10   the onus of the attack, the issue then will become whether or

  11   not the special administrative measures were being actually

  12   observed at that time.

  13            And I want to put this in the proper character.

  14   Every time we raise this we get a nasty letter that says we're

  15   trying to blame Pepe and the MCC for the attack.  We're not.

  16   But the fact is that our information, without spreading it on

  17   the record for various reasons --

  18            THE COURT:  He says is --

  19            MR. COHN:  I'm not going to do it with particularity.

  20   I'm going to say that our information is that the special

  21   administrative remedies were being notoriously not observed at

  22   the time creating a dangerous condition and which we don't

  23   want to have a collateral trial on.  That's the issue.

  24            THE COURT:  But fairness to the issue, which is

  25   appropriate, right --


   1            MR. COHN:  Yes, we're trying.

   2            THE COURT:  -- are two things.  One is that in any

   3   system which depends on adherence to rules by human beings

   4   there is a risk of deviation from those rules, and the other

   5   is whether there is sufficient similarity in motivation and

   6   training between KK Mohamed and Al-'Owhali that the attack has

   7   a greater relevance.

   8            MR. COHN:  Perhaps we ought to do this the rest of

   9   this in the robing room because I think to fully ventilate the

  10   issue I mean I really do have to refer to specific facts.

  11            THE COURT:  All right.  I'm prepared to do that.  Do

  12   you want to say something?

  13            MR. RUHNKE:  Your Honor, in this discussion we're

  14   work shopping this issue right now on the record.  I'd like to

  15   be heard on it at the time as well.

  16            THE COURT:  We'll do that.

  17            MR. FITZGERALD:  If I can make one suggestion.  Since

  18   we're still waiting to get some information back from the

  19   Bureau of Prisons it might make sense to go over the list of

  20   things to address tomorrow perhaps after the charge, because I

  21   still have some --

  22            MR. RUHNKE:  Fine.  Your Honor, the one caveat to

  23   this whole discussion we've got to be absolutely certain that

  24   we're comparing like situations.  There is a substantial

  25   difference between, for example, the conditions in confinement


   1   at the control unit at the administrative maximum unit at

   2   Florence and the conditions of confinement in a typical

   3   maximum security United States penitentiary, and we can't

   4   bring in statistics from a typical general population

   5   situation and they are apt to make a meaningful comparison,

   6   for example, to the conditions that prevailed in the control

   7   unit in administrative maximum unit at the penitentiary in

   8   Florence, Colorado, so that's a general caveat on that whole

   9   issue.

  10            MR. COHN:  Your Honor.

  11            THE COURT:  If we're going to do it in the robing

  12   room, let's do it in the robing room.

  13            MR. COHN:  I checked with my boss and that's fine.

  14   There is a suggestion for tomorrow.  If we want do that

  15   tomorrow in the robing room when the government has the rest

  16   of its material it makes some sense.

  17            THE COURT:  Let me go over a list of some other

  18   items.  Mr. Cohn in a letter to me yesterday attached a chart

  19   with reference to portions of the 3500 material related to

  20   proposed victim impact testimony to which Al-'Owhali objected,

  21   and I believe we have a response from the government today.

  22            MR. FITZGERALD:  I can save you time.  I believe a

  23   response went out late last night both to Mr. Ruhnke and Mr.

  24   Cohn.

  25            THE COURT:  It's in the rear of the courtroom.  So


   1   we'll add that to tomorrow's agenda.

   2            Also, you say in the letter, this should not be

   3   interpreted as our having abandoned our request to strike such

   4   testimony as collateral to the issues that are relevant in the

   5   penalty phase.  The Court will note that we have not

   6   specifically highlighted testimony regarding the financial

   7   impact of the bombing on its victims.  And then you say,

   8   having interpreted the Court's silence as to this matter as a

   9   denial of our request, we merely assert our continuing

  10   objection to such testimony as irrelevant to whether the

  11   client should live or die.

  12            That caused me to go back to your earlier letter, and

  13   I must say I did not find in it a specific objection with

  14   respect to financial data, and the notion of interpreting the

  15   Court's silence as a denial is not an appropriate procedure.

  16   I am not adverse to letting you know when I grant or deny, and

  17   if there is something that you think I have neither granted

  18   nor denied, then it should be specifically called to my

  19   attention, and, therefore, in preparation for tomorrow's

  20   conference with respect to other matters in the 3500 material

  21   will you specifically enumerate those references to financial

  22   impact of the bombing on its victims to which you take

  23   exception?

  24            MR. COHN:  Yes, sir.

  25            THE COURT:  Very well.


   1            Now, with respect to the revised death notices, and I

   2   think this was a problem we had the other day when we talked

   3   about maiming language, that the government has not yet

   4   submitted a revised death notice consistent with the Court's

   5   January 2001 ruling.  Perhaps you're waiting for the verdict

   6   to do that, but I think that's a cause of confusion.

   7            Also, on tomorrow's agenda is the discovery

   8   admissibility of plea agreements.

   9            MR. COHN:  Your Honor, two things if I may.  Number

  10   one, formally I mean we're aware of Mr. Ruhnke's last

  11   application.  We're still piggybacking on this and we're in

  12   the same position.

  13            THE COURT:  Which application is it?

  14            MR. COHN:  His response to the government's turnover

  15   of secret information the CIPA matter, Judge.  I want you to

  16   know that we're piggybacking on that.  The other is that your

  17   Honor talking about the revised death notice, my understanding

  18   is that if there is a verdict this week, we're starting

  19   Tuesday no matter what.

  20            THE COURT:  Yes.

  21            MR. COHN:  If the government is allowed to delay much

  22   more we're going to not have time to really respond to an

  23   amended death notice, and so I suggest respectfully that you

  24   set a deadline or make our start date somewhat more fluid.

  25            MR. FITZGERALD:  Your Honor, with all due respect my


   1   understanding is the death notice is not like an indictment

   2   that goes into the jury.  The purpose was to give notice to

   3   the defendants.  What your Honor did was strike some items,

   4   and then also confine some items.  So creating a revised

   5   notice does nothing to change what it is the defense is

   6   anticipating.

   7            THE COURT:  You know, and I say this over and over

   8   again, this is a complicated case, but there has not been a

   9   single surprise in this case.  There has not been an issue

  10   which has arisen which would cause people to be burning

  11   midnight oil in the library which was not known a long time

  12   ago, and it doesn't take a great genius to look at the special

  13   verdict form and consider all the possible combinations and

  14   permutations.

  15            You know I don't like to appear to be a tyrant, but I

  16   am concerned that things move expeditiously in consideration

  17   of the jury and selfishly for all of us.  You know the longer

  18   things drag out, the greater the risk there is of some juror

  19   becoming ill or otherwise unavailable, and this huge

  20   investment of time, effort and money in this jury is something

  21   that we can't take lightly.

  22            So the answer is that if the jury comes in with a

  23   verdict this week, and we're not sitting on Friday, yes, we

  24   will start on Tuesday.

  25            MR. COHN:  I understand and I wasn't trying to


   1   postpone it.  What I was asking is for an advance of the

   2   government's death notice.  We're, you know -- look, Judge, I

   3   seem to be -- it seems to me if you don't like playing the

   4   tyrant, I don't like being the person who is always pressing

   5   you to be it.  But the fact is that if we had not spent the

   6   night looking at your charge for this morning, which you

   7   resisted and I proposed, we would not have had as good a

   8   charge, and that's the reality of it.  And the reality is that

   9   there are fair notions of notice pleading that we're trying to

  10   get some minimal time to respond to, to prepare our case.  I

  11   don't care whether --

  12            THE COURT:  There are certain matters that I

  13   specifically left open until this point, and we'll add that to

  14   the agenda.

  15            MR. COHN:  Thank you.

  16            MR. FITZGERALD:  There is only one other matter to

  17   avoid unfair surprise.  The other day Mr. Baugh mentioned that

  18   he viewed himself as not having invoked Rule 16 discovery

  19   which is found to be not comment since the discovery all along

  20   has been noticed that it was a capital defendant.  We have

  21   produced the records regarding the assault on Officer Pepe as

  22   part of discovery, and my only concern is that if we let that

  23   statement lie I assume that counsel is not withholding any

  24   reverse discovery on the theory that he never invoked Rule 16,

  25   but I think we should just clarify that.


   1            MR. BAUGH:  It was my position, your Honor, that we

   2   had not filed Rule 16 and that there was no Rule 16 reciprocal

   3   discovery obligation at this time.  The information that's

   4   been tendered has been tendered in response to Mr. Ruhnke and

   5   Mr. Cohn's notice request.

   6            THE COURT:  Your opinion is that you have not done so

   7   because you elected not to, is that what you are saying?

   8            MR. BAUGH:  Have not asked for Rule 16 discovery and

   9   when the government mentioned Rule 16 I wanted to let them

  10   know that we were under the impression we had not triggered

  11   it, and if they wish to make an application to the Court now

  12   as to whether or not we have, that's fine.

  13            THE COURT:  As a consequence of that is there any

  14   reverse discovery that you have withheld?

  15            MR. BAUGH:  We've not withheld any.  It's our

  16   position at this time that there is no discovery request and

  17   as such there is no reverse discovery obligation.  If the

  18   Court is going to rule that there is, that's fine, but,

  19   regardless, it has not been raised.

  20            THE COURT:  You say two things.  You say, one, you

  21   have not withheld anything, and, two, you say there is no

  22   reverse discovery obligation, and if there were a reverse

  23   discovery obligation is there material that you would furnish?

  24            MR. BAUGH:  Yes.  Meaning exhibits that we were going

  25   to introduce?  Yes.


   1            MR. FITZGERALD:  Your Honor, prior counsel for

   2   Mr. Al-'Owhali demanded discovery early on in the case.  We

   3   had discovery protective order.  We've turned over hundreds of

   4   thousands of page.  It was pointed out in prior correspondence

   5   that it was a capital case and they wanted discovery.

   6            There was a deal with the issue of whether the death

   7   penalty should be sought.  We were asked to provide the

   8   records regarding the assault on Officer Pepe which was

   9   specifically produced because of the capital prosecution and

  10   not produced to noncapital defendants.

  11            It is crystal clear all along, and it wasn't until

  12   the other day we first hear a claim that Rule 16 was not

  13   invoked, and I think we should just cut to the chase.  Rule 16

  14   has been invoked and we're entitled to reverse discovery.

  15            MR. BAUGH:  Your Honor, the prior counsel request was

  16   not penalty discovery that they were doing.  On the Officer

  17   Pepe issue we said we need notice as to what the government

  18   plans to prove as to Officer Pepe.  We didn't do Rule 16.  We

  19   have never filed Rule 16 discovery.

  20            THE COURT:  And the government has never said, we

  21   refuse to turn that over to you because you have not made the

  22   proper motion.

  23            MR. BAUGH:  I'm sorry, your Honor?

  24            THE COURT:  And the government has not said, we

  25   refuse to respond to your discovery request because you have


   1   not specifically invoked Rule 16.

   2            MR. BAUGH:  No, your Honor, that's correct, but under

   3   the Officer Pepe incident, for instance, the first motion we

   4   filed was a Brady issue as to Officer Pepe and it was not

   5   invoking --

   6            THE COURT:  Tell me how -- if I may interrupt you.

   7            MR. BAUGH:  Yes, sir.

   8            THE COURT:  -- how the discovery request that you

   9   have in fact made differs from the discovery requests that

  10   would be made under Rule 16.

  11            MR. BAUGH:  Your Honor, I don't believe we have filed

  12   a discovery request for the penalty phase.  If I'm in error --

  13            MR. COHN:  We haven't.

  14            MR. BAUGH:  We have never filed a Rule 16 penalty

  15   request.

  16            THE COURT:  So I should tell the government now that

  17   if it is in possession of any documents or materials that it

  18   has not furnished to you, it need not do so.

  19            MR. BAUGH:  No, your Honor, because, no, here's why.

  20   If there are documents that must be tendered in compliance

  21   with Brady or notice, then they have to do it.  If it is

  22   general Rule 16 discovery, they do not.  We have couched all

  23   our requests in terms of notice and Brady.

  24            MR. FITZGERALD:  Your Honor, first of all, I think we

  25   should take back the packet we gave over this morning.  I


   1   think we should strike the motion, and I think they should

   2   give back the discovery.  We always understood that this was

   3   discovery in a case of capital prosecution.  No one, until the

   4   other day for the first time, brought up the notion that they

   5   were splitting discovery between the guilt phase and the

   6   punishment phase, and I think it's ridiculous.

   7            THE COURT:  I don't know that that's what it is, but

   8   I would say it's certainly inappropriate in any case but

   9   especially inappropriate when we're talking about a death

  10   penalty case.

  11            The fact that counsel have not insisted on dotting

  12   every I and crossing every T in furnishing material in

  13   response to the urge requests of defendants it seems to me was

  14   commendable.  Now you take the position that you have not

  15   asked for anything which was not compelled by Brady, or you

  16   mentioned something else.

  17            MR. BAUGH:  Notice.

  18            THE COURT:  Or notice.

  19            MR. BAUGH:  Which case law says we're entitled to

  20   which are constitutionally based and are not governed by Rule

  21   16.

  22            THE COURT:  I will advise the government then that

  23   unless required by Brady or 601, the government need not

  24   furnish any material to defense counsel since defense counsel

  25   has explicitly disclaimed any right to any material other than


   1   Brady or 601.

   2            MR. BAUGH:  That's correct.  If I might --

   3            THE COURT:  You have no problem with that.

   4            MR. BAUGH:  Your Honor, and the file --

   5            THE COURT:  Mr. Ruhnke, do you have any problem with

   6   that?

   7            MR. RUHNKE:  Judge, let me --

   8            THE COURT:  Let's take a five minute recess.

   9            MR. RUHNKE:  We consider ourselves engaging in Rule

  10   16 discovery.

  11            THE COURT:  Excuse me?

  12            MR. RUHNKE:  We consider ourselves to be engaging in

  13   Rule 16 discovery and have been.

  14            THE COURT:  Very well.  That does not apply then to

  15   counsel for KK Mohamed.  Isn't this absurd?

  16            MR. BAUGH:  No, your Honor.  We didn't even know

  17   until Mr. Fitzgerald made that statement last week about Rule

  18   16 discovery that anyone was under the impression that had

  19   been triggered.  That's how come I stood up and made the

  20   statement.

  21            THE COURT:  Are you sanguine that when you are second

  22   guessed, and the history of this type of litigation is that

  23   counsel are always second guessed by successor counsel --

  24            MR. BAUGH:  Of course --

  25            THE COURT:  -- that you will not be criticized for


   1   not having sought Rule 16 discovery?  We'll take a five-minute

   2   recess.  I suggest that counsel think about the matter and

   3   discuss it amongst themselves.

   4            MR. BAUGH:  Yes, your Honor.

   5            (Recess)

   6            (In open court; jury not present)

   7            THE COURT:  Is there anything further?

   8            MR. BAUGH:  Yes, several things.  First, your Honor,

   9   during our break the United States has shown me letters from

  10   Mr. Joy, one of the previous attorneys, dated 1998 and also

  11   some stuff from Mr. Bruck dated 1999 and the year 2000, and I

  12   can clearly see how the United States would be under the

  13   impression that Rule 16 discovery for penalty phase has been

  14   triggered.  In light of that, we will say that we will stick

  15   with Mr. Bruck's representations, Mr. Joy's representations

  16   and we agree.

  17            Second issue, however, there are still some notice

  18   issues, and that will determine what we turn over, that's

  19   going to determine what our defense is going to be.  By

  20   example, the United States today, we were just talking about

  21   the officer, the issue we were going to talk about in the

  22   robing room, which perhaps we should still talk about in the

  23   robing room --

  24            THE COURT:  You want to do that after you get some

  25   more material or are you prepared to do that now?


   1            MR. BAUGH:  I think it better to get some material

   2   from them and then discuss it.  The bottom line, your Honor,

   3   is that until such time as the notice is not going to be

   4   amended, the death notice is not going to be amended until

   5   such time as you rule on either.  I was advised today that the

   6   material we have one of the aggravators was removed.

   7            MR. GARCIA:  Judge, we're not seeking to amend the

   8   death notice.  In the materials that we produced today the

   9   government has agreed not to go forward on the simultaneous

  10   act of terrorism which the Court indicated it had a problem

  11   with in its prior decision, but in terms of an intent --

  12            THE COURT:  But by timely acquiescence you prevented

  13   me from doing so.

  14            MR. GARCIA:  One might look at it that way, but we

  15   have no intent to file an amended notice.

  16            THE COURT:  So there is not going to be an amended

  17   notice.

  18            MR. BAUGH:  If there is not going to be an amended

  19   notice then we are now in a position to finalize what we're

  20   going to present and therefore finalize what we have to turn

  21   over.  On the assurance today there is no amendment to the

  22   notice, that's fine.

  23            MR. FITZGERALD:  I don't know what inference counsel

  24   is attaching to an assurance not to amend the notice.  We gave

  25   a notice.  Your Honor changed it.


   1            THE COURT:  I certainly envisioned that there was

   2   going to be another document which said amended notice, and

   3   which combined surviving victims with the deceased victims and

   4   which made some other changes.  Now it is really a matter of

   5   what is most convenient.  Obviously, the rulings that I have

   6   made that are embodied in my January opinion are in full

   7   enforcement.

   8            MR. FITZGERALD:  Can we make one suggestion?  Nothing

   9   substantive is changing from the notice other than our

  10   dropping the one factor we just told you about and complying

  11   with your Honor's decision, so creating a new notice is form

  12   over substance, which I think we should do.  Once we have the

  13   verdict in it may make more sense to do that.

  14            THE COURT:  All right.

  15            MR. BAUGH:  Your Honor.

  16            THE COURT:  So in light of that last comment where we

  17   are is that the death notice consists of the original notice

  18   filed by the government, to be modified as indicated in the

  19   Court's opinion of January, to be further modified by the

  20   government's dropping of simultaneous notice of two bombings,

  21   and whatever further rulings the Court may make after a

  22   verdict.  We all have all of that.  Mr. Fitzgerald says it's

  23   form over substance.  It might be a useful form to have, but

  24   it has no additional legal consequence.

  25            MR. BAUGH:  With that assurance, your Honor, we have


   1   no problem, and we still have an issue for tomorrow.

   2            THE COURT:  I would have a sense of incompleteness if

   3   a day went by without my inquiring about the military

   4   discovery.

   5            MR. BAUGH:  We have received notification from the

   6   United States military that a CD Rom is en route but no one

   7   has seen it yet.

   8            MR. FITZGERALD:  I will check.  I came straight to

   9   court.

  10            THE COURT:  We're adjourned awaiting further word

  11   from the jury.

  12            (Recess)

  13            (Adjourned to May 23, 2001, at 9:30 a.m.)













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