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
6419 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7)98CR1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 May 22, 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 6420 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 MICHAEL GARCIA Assistant United States Attorneys 6 7 SAM A. SCHMIDT JOSHUA DRATEL 8 Attorneys for defendant Wadih El Hage 9 ANTHONY L. RICCO EDWARD D. WILFORD 10 CARL J. HERMAN Attorneys for defendant Mohamed Sadeek Odeh 11 FREDRICK H. COHN 12 DAVID P. BAUGH LAURA GASIOROWSKI 13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 14 DAVID STERN DAVID RUHNKE 15 Attorneys for defendant Khalfan Khamis Mohamed 16 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? 6421 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 6422 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 6423 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 6424 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 6425 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. 6426 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 6427 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 6428 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 6429 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 -- 6430 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 6431 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 6432 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. 6433 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 6434 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 6435 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. 6436 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. 6437 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 6438 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 6439 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 6440 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 6441 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? 6442 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. 6443 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 6444 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.) 14 15 16 17 18 19 20 21 22 23 24 25
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