5 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 59 of the trial, June 5, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
7130 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7) 98 Cr. 1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 June 5, 2001 9:30 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 APPEARANCES 16 MARY JO WHITE United States Attorney for the 17 Southern District of New York BY: PATRICK FITZGERALD 18 MICHAEL GARCIA Assistant United States Attorneys 19 20 FREDRICK H. COHN 21 DAVID P. BAUGH Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 22 DAVID RUHNKE 23 Attorneys for defendant Khalfan Khamis Mohamed 24 25 7131 1 (Trial resumes; jury not present) 2 THE COURT: I have been reading the Supreme Court's 3 decision in Henry v. Johnson, which was decided yesterday, to 4 see whether it had any impact on our case, and I am not aware 5 of any alteration in the charge that is required in light of 6 Henry. If anyone is of a contrary view, I would appreciate 7 the advise promptly. 8 We left two matters open with respect to the charge 9 and the special verdict form. One relates to the extent to 10 which the government may argue, with respect to future 11 dangerousness, a lack of remorse, and the government has said 12 that it would cite for lack of remorse the photograph in which 13 Mr. al-'Owhali strikes a pose such as that usually adopted by 14 victors after a contest -- an upraised fist. 15 Is that the extent of the government's claim with 16 respect to lack of remorse, or is the government also relying 17 on the substance of what Al-'Owhali said to Agent Gaudin? 18 MR. FITZGERALD: Your Honor, putting aside any 19 statements he made in the nature of threats, which were 20 suppressed, in addition, he expressed remorse for Azzam, his 21 colleague, or sadness that he died. That was the only person 22 he expressed sadness of. 23 We did not offer, but could offer, there was a later 24 photograph similar to what we call "the champ" photograph 25 taken on the airplane, where he also smiles, coming back to 7132 1 America. 2 THE COURT: Where is the statement that he regretted 3 that the truck didn't go under the embassy so that more damage 4 could be done to the embassy rather than to Kenyans? Where 5 does that appear? 6 MR. FITZGERALD: I believe that's part of the 7 statement that was actually stipulated to by the defense; that 8 his plan had been, he had recommended that Saleh change the 9 plan to put the bomb in the embassy to attack the embassy and 10 kill more Americans. 11 THE COURT: My understanding of the law on the 12 subject, beginning with the Davis case and exemplified by 13 cases that follow, is that there has to be very careful 14 preservation of the defendant's Fifth Amendment right to 15 remain silent, and that a lack of remorse cannot be predicated 16 on silence but can be predicated on affirmative conduct, 17 including statements made by the defendant. 18 And certainly a statement of regret with respect to 19 the driver of the truck and regret that the bombing was not 20 accomplished in the manner which inflicted greater damage on 21 Americans and less damage on Kenyans, coupled with the 22 photograph, I believe satisfies the requirement that a lack of 23 remorse may be predicated on affirmative conduct by the 24 defendant. I reject the claim that the mere passage of time 25 negates that. 7133 1 The other open item related to the paragraph in the 2 special verdict form which seeks to make clear to the jurors 3 that they are not simply to count the number of aggravators 4 and mitigators and that one aggravator or one mitigator may be 5 dominant over a number of other opposing factors, and I see no 6 need in that photograph to go into the need for unanimity or 7 lack of unanimity and so we simply will strike those 8 references. We will have a revised copy of the charge and 9 special verdict form later today. 10 Are there any other matters that have to be addressed 11 before the jury comes in? 12 MR. BAUGH: Yes, your Honor. The last point that you 13 just made is the consideration that -- idea -- the idea that 14 one aggravator could outweigh all the mitigators or one 15 mitigator could outweigh all the aggravators need not be found 16 unanimously. I thought we discussed this yesterday, that 17 there has to be a finding that -- I mean, they have to find -- 18 THE COURT: I deal with that requirement elsewhere. 19 The only question is whether there is a need in that paragraph 20 to deal with that. 21 MR. BAUGH: I would suggest there is, your Honor, in 22 light of the history with this jury, the fact that they 23 tracked the verdict form the way they did. I'm assuming when 24 they get to this, that portion of deliberations, that they are 25 going to need those directions so that they don't do exactly 7134 1 what the Court was concerned with when it put it in there 2 initially. And for those reasons, and to make sure the 3 government enjoys its proper burden, we would ask that the 4 language be retained. 5 THE COURT: When we have the draft in front of us 6 we'll review that again. 7 I am handed a note, it's a typed note, from one of 8 the alternates: "Dear Judge Sand: My primary care 9 physician," whom he names and gives a telephone number, 10 "diagnosed me as hypertensive and prescribed a blood pressure 11 medicine Atenolol and a low-fat, low-sodium diet. The marshal 12 is unable to provide a low-salt meal for me during the 13 sequestered lunch hour and I had no lunch yesterday and on 14 several other occasions. I request that you excuse me for 15 this and other medical reasons." 16 I am inclined to grant that request. 17 MR. COHN: Can your Honor advise us which alternate? 18 THE COURT: The third alternate. 19 MR. COHN: The third alternate. One I think unlikely 20 to be reached. 21 THE COURT: Unlikely to be reached. Well, the third 22 alternate. 23 MR. BAUGH: Your Honor, I have no problem doing it. 24 Being that we keep the same panel for another case, I thought 25 I would invite Mr. Ruhnke to make his comment. 7135 1 MR. RUHNKE: We concur with your Honor's wishes to 2 excuse this alternate. 3 THE COURT: Very well. We will do that. He is 4 excused. 5 Are there matters which require attention before the 6 jury comes in? 7 MR. FITZGERALD: No, Judge. 8 THE COURT: All right. 9 That alternate happens to be the alternate who delays 10 the start each morning. 11 With respect to the book, I take it you are just 12 going to offer those chapters. 13 MR. BAUGH: Yes, your Honor. 14 THE COURT: Next order of business is what? 15 MR. COHN: I'll be reading a stipulation, your Honor. 16 MR. RUHNKE: Your Honor, while the jury is coming in, 17 I understand -- 18 THE COURT: They're right in the hall. 19 MR. RUHNKE: Just before the government presents its 20 rebuttal case, I would like to be heard on a document. 21 THE COURT: All right. 22 (Jury present) 23 THE COURT: Good morning. 24 THE JURY: Good morning. 25 THE COURT: You are aware we have excused the 7136 1 gentleman who sat in the last row, so the numbers are 2 dwindling. Everybody stay healthy, please. 3 Mr. Cohn. 4 MR. COHN: Your Honor, with the Court's permission, I 5 would like to read a stipulation. 6 "It is hereby stipulated and agreed by and between 7 the United States of America, by Mary Jo White, United States 8 Attorney for the Southern District of New York, Patrick J. 9 Fitzgerald and Michael J. Garcia, of counsel, and defendant 10 Mohamed Rashed Daoud Al-'Owhali, by and with the consent of 11 his attorneys, that: 12 (i) Mamdouh Mahmud Salim, a/k/a Abu Hajer al Iraqui, 13 was charged in indictment (S4) 98 CR 1023 (LBS) with 14 conspiracy to kill United States nationals, but not with the 15 bombings of the United States embassies in Kenya and Tanzania. 16 Salim had been arrested on September 16, 1998, in Germany. 17 Based on the charges filed against Salim, he did not face the 18 death penalty. Nonetheless, German authorities would not 19 extradite Salim to the United States unless they were assured 20 that Salim would not face the death penalty. The United 21 States Government assured the German Government in writing 22 that it would not seek the death penalty for the offenses for 23 which Salim was extradited. Salim was extradited from Germany 24 to the United States on December 20, 1998; 25 (ii) Khalid al-Fawwaz, Ibrahim Eidarous, and Adel 7137 1 Abdel Bary were charged in indictment (S7) 98 CR 1023 (LBS). 2 Fawwaz was charged with conspiracy to kill United States 3 nationals and conspiracy to murder (Counts One and Two), but 4 not charged with the bombings of the United States embassies 5 in Kenya and Tanzania. Fawwaz had been arrested on or about 6 September 27, 1998, in the United Kingdom. Based on the 7 charges filed against Fawwaz, he does not face the death 8 penalty; and 9 (iii) Ibrahim Eidarous and Abdel Bary are charged in 10 indictment (S7) 98 CR 1023 (LBS) with various conspiracy 11 charges, including conspiracy to kill United States nationals 12 (Count One), as well as with the various substantive counts 13 arising out of the bombings of the United States embassies in 14 Kenya and Tanzania. Eidarous and Abdel Bary had been arrested 15 on July 12, 1999, in the United Kingdom. The bombing charges 16 filed against Eidarous and Abdel Bary are capital offenses, 17 but to seek the death penalty the government would have to 18 prove sufficient participation in the action to satisfy the 19 "gateway factors" for the death penalty. Without resolving 20 whether that can be done, it is assumed (for purposes of this 21 trial) based on past experience that, as part of the ongoing 22 extradition proceedings, British authorities will insist on a 23 commitment from the United States that it not seek the death 24 penalty against Eidarous and Abdel Bary (as well as Fawwaz) 25 before extraditing any of them to the United States. It is 7138 1 further assumed that at the time such a demand is made, the 2 United States will provide such assurance to the United 3 Kingdom." 4 And then it's signed by the appropriate parties, your 5 Honor. And we offer this as Al-'Owhali GG. 6 THE COURT: Received. 7 MR. COHN: Thank you. 8 (Defendant Al-'Owhali Exhibit GG received in 9 evidence) 10 MR. BAUGH: Good morning, your Honor. Another 11 stipulation offered as Al-'Owhali HH: 12 "It is hereby stipulated and agreed by and between 13 the United States of America, by Mary Jo White, United States 14 Attorney for the Southern District of New York, Patrick J. 15 Fitzgerald and Michael J. Garcia, assistant United States 16 Attorneys of counsel, and defendant Mohamed Rashed Daoud 17 Al-'Owhali, by and with the consent of his attorneys, as 18 follows: 19 "(i) During interviews with Special Agent Gaudin of 20 the Federal Bureau of Investigation during the defendant's 21 interrogation, the defendant stated that during his training 22 he was instructed that attacks on American embassies achieves 23 several objectives, to include striking the United States 24 ambassador, the military attache, the press attache, and, most 25 importantly, the intelligence officers. 7139 1 "It is further stipulated and agreed that this 2 stipulation may be received in evidence as a defense exhibit 3 at trial." 4 And again, your Honor, we would offer it as 5 Al-'Owhali's HH. 6 THE COURT: Received. 7 (Defendant Al-'Owhali Exhibit HH received in 8 evidence) 9 MR. BAUGH: I have also, pursuant to direction, taken 10 an excerpt from the Islam book, which we are offering as 11 Al-'Owhali's DD, chapter 6 called the "Pillars of Islam" from 12 pages 45 through 83, and we have copied the pages. 13 THE COURT: Received. 14 (Defendant Al-'Owhali Exhibit DD received in 15 evidence) 16 MR. BAUGH: Chapter 7 is stuck in there, too, which 17 goes up -- 18 I'm sorry, chapters 6, 7, and 8. The page numbers 19 are the same. 20 I have also been asked to cite the Court and the jury 21 to Exhibit -- I believe it's already been introduced -- 1557E, 22 translation, the same being the Islamic Army for the 23 Liberation of the Holy Places Declaration Number 2, and an 24 Arabic version of it, which may become an issue later. Just 25 making reference to it. 7140 1 At this time, your Honor, we have a videotape. 2 THE COURT: Yes. 3 MR. BAUGH: All right. 4 (Videotape played) 5 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7141 1 MR. BAUGH: I move the introduction of exhibit EE, 2 the videotape. 3 THE COURT: What is the date on which it was made? 4 MR. BAUGH: It's 2000, all I know, your Honor. It's 5 from BBC. After the introduction of EE, the defense will 6 rest. 7 THE COURT: The defense rests, and we'll take a 8 recess. 9 (Jury not present) 10 THE COURT: Is there a government rebuttal case? 11 MR. FITZGERALD: Yes, your Honor. It's one 12 stipulation. 13 THE COURT: One stipulation? 14 MR. FITZGERALD: Yes. 15 THE COURT: That's the entirety of it. 16 MR. FITZGERALD: Yes. 17 THE COURT: All right. Then the government is 18 prepared to begin its closing statement. 19 MR. FITZGERALD: Yes. I believe Mr. Ruhnke. 20 MR. RUHNKE: Your Honor, I wanted to be heard on the 21 stipulation, although I'm not a party to this part of the 22 proceeding. 23 THE COURT: May I see a copy? 24 MR. FITZGERALD: Yes. 25 MR. RUHNKE: The stipulation which was shown to me 7142 1 this morning as a matter of courtesy states in pertinent part 2 that there are X number of inmates who have been subject to 3 the special administrative measures known by it's acronym SAM; 4 that 12 or 13 have been terrorists, and there is a stipulation 5 that two individuals, terrorists, accused terrorists under SAM 6 restrictions made an attack on an officer at an institution 7 while under SAM conditions. Obviously, the reference is to 8 the assault on Officer Pepe in the year 2001. 9 It never, ever made a concession on behalf of Khalfan 10 Mohamed that he participated in the attack on an officer. 11 Indeed, quite the contrary is the case. The evidence will be 12 at trial that he did not participate in it. Now the 13 stipulation is something that neither party knows to be true. 14 Certainly, al-'Owahli -- 15 THE COURT: Isn't the answer to change the language, 16 two of the 12 detainees are alleged by the government to have. 17 MR. BAUGH: No objection from the defendant 18 al-'Owahli, your Honor. 19 MR. RUHNKE: I don't object to that, because that's 20 the fact. 21 MR. BAUGH: That's the fact. 22 MR. FITZGERALD: Could I have one moment, your Honor? 23 (Pause) 24 MR. FITZGERALD: Your Honor, we do contend two 25 inmates engage in the assault. We're not putting on live 7143 1 testimony to avoid those issues. That's why there is a 2 bifurcation. But why should we weaken the government's 3 contention with regard to this defendant when he says that 4 special administrative measures will insulate Mr. Al-'Owahli 5 from being a danger. 6 THE COURT: Because they are alleged to have engaged 7 in that attack, they are presumed innocent. They haven't been 8 proven guilty of that attack. 9 MR. FITZGERALD: For purpose of this trial, for 10 Mr. Al-'Owahli the fact that the assault occurred if we proved 11 in front of the jury that the officer went in a room with two 12 inmates and nearly lost his life and came out, it would be 13 clear to the jury that an assault occurred on the officer but 14 to weaken that, weakens the fact that under special 15 administrative measures an attack occurred. 16 THE COURT: Well, it is merely an attack. You are 17 saying that two of those engaged in serious assault. You're 18 saying as a fact that they did it, and it is not an 19 established fact. It is at this point a matter under 20 indictment which remains to be proven at a trial. 21 MR. FITZGERALD: This stip is the alternative for us 22 putting on witnesses. The fact that we are depriving 23 ourselves of live testimony of the assault -- what if we 24 worded it, an attack occurred in a cell shared by two 25 detainees under special administrative measures where a guard 7144 1 was -- and then wording it that way. 2 MR. RUHNKE: I will not object to that alteration of 3 stipulation. 4 MR. FITZGERALD: The way it would be worded, your 5 Honor, would be the last full sentence on the first page would 6 start with the language: A serious assault on BOP 7 correctional officer occurred in a cell where two of those 12 8 detainees were under special administrative measures. 9 THE COURT: Yes. 10 MR. FITZGERALD: I will show it to Mr. Baugh. 11 THE COURT: All right. Anything else? 12 MR. FITZGERALD: No. 13 THE COURT: Now in terms of closing statements are 14 the parties sufficiently informed as to the nature of the 15 Court's charge to make their closing argument? 16 MR. FITZGERALD: Yes, your Honor. 17 MR. BAUGH: Yes, your Honor. 18 THE COURT: Very well. We'll take a five-minute 19 recess. We'll read the stipulation. The government will 20 proceed to closing statement. 21 (Recess) 22 (In open court; jury present) 23 THE COURT: As you have heard the defendant has 24 rested. Mr. Fitzgerald. 25 MR. FITZGERALD: Yes, your Honor. The government 7145 1 offers one exhibit in rebuttal regarding Al-'Owahli Exhibit R. 2 It is Government Exhibit 2281 which I would offer now and ask 3 to read. 4 THE COURT: Received. 5 (Government's Exhibit 2281 received in evidence) 6 MR. FITZGERALD: It is hereby stipulated and agreed 7 by and between the United States of America, and defendant 8 Mohammed Rashed Daoud al-'Owahli by and with the consent of 9 his attorneys, that Title 28 Code of Federal Regulations 10 Section 501.3 which concerns special administrative measures 11 hereafter, the special administrative measures which may be 12 imposed on persons detained in Bureau of Prisons BOP 13 facilities became effective in 1996. 14 Since that time 21 detainees in the BOP system have 15 been placed under special administrative measures pursuant to 16 Title 28 Code of Federal Regulations Section 501.3. Currently 17 there are in excess of one hundred thousand detainees in the 18 BOP system. As of the present time there are 13 persons 19 detained in the BOP system subject to special administrative 20 measures pursuant to Section 501.3, 12 of them because their 21 involvement in terrorism offenses. 22 A serious assault on a BOP correctional officer 23 occurred in a cell where two of those 12 detainees were under 24 special administrative measures. As a result of that assault 25 the correctional officer was badly maimed and suffered 7146 1 permanent disability. 2 Signed by both parties. The government rests its 3 rebuttal case. 4 THE COURT: The government rests. 5 All right, ladies and gentlemen, so as you have heard 6 both sides have rested, and the next order of business then 7 are closing arguments. As was the case in the prior 8 proceeding the government goes first, followed by the 9 defendant and the government then has an opportunity for a 10 brief rebuttal. 11 Mr. Garcia. 12 MR. GARCIA: Thank you, Judge. Good morning. 13 In his opening here before you last weeks Pat 14 Fitzgerald told you that up to that point before we began this 15 penalty phase you had heard little about what the embassy 16 bombing did to human beings, and he told you that over the 17 next day or so you would learn about that, you would hear from 18 victims, and you would have a better understanding of what 19 al-'Owhali's crimes did to those victims. After hearing from 20 just 26 of those victims sadly, sadly the impact of his crimes 21 are much more real. 22 If we could call up Government Exhibit 2140. This is 23 Joyce Manguriu. You heard her father testify here in this 24 courtroom. And what do you know about her now? You know that 25 this photograph was a photo she had taken for her passport 7147 1 because she was planning on coming to the United States to 2 attend college, but you know that Joyce will never attend 3 college because this defendant murdered her. She'll never 4 attend college. She'll never get married. She'll never have 5 children. 6 If we could have Government Exhibit 2035. You know 7 after hearing Deborah Hobson testify that this is a photograph 8 of her husband, Kenneth Ray Hobson, and that's his daughter, 9 Megan. You know from Deborah Hobson that Ken liked to bake 10 bread with his daughter on the counter of their home in 11 Nairobi. And you know from when she testified that eight 12 months after the bombing, eight months after this defendant 13 killed her husband, she had another child and she named that 14 child Abigail whose name means my father rejoices. 15 Those are two of the victims you heard from. Those 16 are two of the 26 victims that took the stand, and after their 17 testimony the suffering and the pain caused by this defendant 18 can now be associated with real family, with real lives lost, 19 lives that were stolen by this defendant. And it can also be 20 associated this crime with courageous survivors who live with 21 blindness and with paralysis and the emotional scars that 22 never heal. 23 You heard not only about the bombing, but the hours 24 and the days after the bombing when wives learned they had 25 lost their husbands, when parents were told they had lost 7148 1 children, and where children had to be told that a mother or a 2 father would never be coming home. 3 You heard it, and you have seen the devastating pain, 4 you felt it, you felt it when those witnesses came in here, 5 they took the stand, and they told you their story. Those 6 witnesses were brought into the room by this defendant, by the 7 crimes he committed, and that death and the pain and the 8 suffering that he caused when he detonated, when he caused 9 that bomb to be detonated on August 7, 1998. 10 For each of the victims that the government called in 11 here, for each of the victims that testified here there are 12 dozens more that you didn't hear from. For each of the 13 injured and the maimed, remember there are hundreds more you 14 didn't hear from. Because this defendant he killed 213 15 people, injured 4,000 people, and these are only the direct, 16 the physical injuries. There are thousands more, relatives, 17 and friends of those who were killed and those who were maimed 18 who had to live through that horror, who had to see it, who 19 had to experience it and who still live with it. Those are 20 also victims. And now al-'Owahli must be held accountable for 21 his crimes. He must face the full measure of justice. 22 On August 7, 1998, Al-'Owahli jumped from the cab of 23 that truck. He threw his grenades, and he ran. He ran fast 24 and he ran hard across that parking lot and he saved himself. 25 He ran past windows where people had come to look at the 7149 1 commotion, and he made it to safety. 2 And after he had killed those 213 people and blinded 3 Ellen Bomer and blinded Sandi Patel he went to the hospital 4 and he got treated for his injuries. The largest injury he 5 had was on his back, because his back was facing the embassy 6 as he ran from it. Yes, he ran away. 7 And now it's time for Al-'Owahli to face justice. 8 He's had his trial, a thorough and a fair trial that began in 9 this courtroom in February of 2001. He was found guilty, 10 found guilty of 213 murders, unanimously, and the past week 11 he's had his penalty phase, and now it's time for Al-'Owahli 12 to be sentenced, time to be sentenced to the punishment he 13 deserves, punishment that does justice to the victims of his 14 crimes. It's time for Al-'Owahli to receive the only 15 sentence, we submit, that fits his crime, the death sentence. 16 We'll walk through the factors, the factors you must 17 weigh in your decision, and although this can never be an easy 18 decision, it's one of the hardest decisions one can make, it 19 is the right decision in this case. 20 Let's talk a little bit about the law. Now, Judge 21 Sand gave you some preliminary instructions on the law. He'll 22 talk to you again about the law. His are the instructions 23 that you must follow. He'll talk to you about aggravating and 24 about mitigating factors, and the statute provides a framework 25 for you to follow in making your decision. 7150 1 What I'd like to do now is look at these factors, 2 these preliminary factors. I think Judge Sand referred to 3 them as gateway factors. And he said that you must find at 4 least one of them as to each count. You must find unanimously 5 and agree on at least one that the government has proved one 6 beyond a reasonable doubt. And these deals with al-'Owhali's 7 intention and his conduct. And the government submits that it 8 has proven all four beyond a reasonable doubt. 9 Looking at them quickly. 1. That the defendant 10 intentionally killed the victim or victims. 2. That the 11 defendant intentionally inflicted serious bodily injury that 12 resulted in death. 3. Defendant intentionally participated 13 in an act contemplating that the life of a person would be 14 taken or that lethal force would be used, and the victim or 15 victims of a particular count died as a result of the act, or 16 the defendant engaged in violent conduct, knowing that the 17 acts created grave risks of death to a person such that the 18 act constituted a reckless disregard for human life, and the 19 victims died as a result of the act. 20 Defendant's conduct satisfies all four of these 21 elements. You've already found him guilty that he himself 22 killed 213 people, the people that died in the bombing. He 23 took a truck full of explosives, he drove it into a downtown 24 area, and he inflicted death and destruction. He knowingly 25 and intentionally participated in this crime, a plot to bomb, 7151 1 a plan to kill. He created a grave risk of death to all these 2 in the vicinity of the embassy that day. He wanted to kill. 3 He intended to kill and he did kill. 4 The government submits that the proof overwhelmingly 5 establishes each and every one of those four gateway factors, 6 and, again, you need find only one in order to continue with 7 the process. 8 Once that is done for each count that it is done, you 9 can move on to what are call the statutory aggravating 10 factors, and, again, as to each capital count you must all 11 agree unanimously that the government has proved at least one 12 statutory aggravating factor beyond a reasonable doubt. Then 13 you can go on to the nonstatutory aggravating factors and the 14 weighing process. Before we get to that, I'd like to just say 15 a word about the process, the weighing process. 16 In the beginning of this case you took an oath as 17 jurors that if you found Al-'Owahli guilty of the murder 18 charge, the capital counts, you could fairly and carefully 19 deliberate in a penalty phase. You were told that the law 20 provides in certain circumstances that murders can be punished 21 by death, that in some cases that is the appropriate 22 punishment. This is one of those rare cases. 23 These aggravating factors narrow the pool of those 24 eligible for the death penalty. They narrow the scope of 25 those who have already been found guilty of the worst crime of 7152 1 murder. They narrow that group so you get to the worst of 2 that group and in this case as we go through the aggravating 3 factors and we look at any mitigating factors you will see 4 that Al-'Owahli is the rare exception, the criminal, the 5 murderer, who deserves the ultimate penalty that is authorized 6 by our law. 7 Now, let's look at the first aggravating factor. 8 That the deaths and injuries resulting in death of the victim 9 or victims of the particular count you are considering, 10 occurred during the commission or attempted commission of 11 another offense, namely, the list of offenses under Title 18, 12 bombing of property leased to the United States government, 13 killing or attempted killing of internationally protected 14 persons, terrorists acts abroad against US nationals and use 15 of a weapon of mass destruction. 16 Judge Sand will explain as to each count you must 17 determine if the victims were killed during the commission of 18 certain other crimes, depending on the count you are 19 considering. The government has proved these crimes beyond a 20 reasonable doubt. It's proved this factor beyond a reasonable 21 doubt, and you can give it as much weight as you see fit. 22 The second factor involves substantial planning, and 23 premeditation, that the defendant committed the offense listed 24 in the particular count you are considering after substantial 25 planning and premeditation to cause the death of one or more 7153 1 persons or to commit an act of terrorism. 2 Well, you know from the evidence at the guilt phase 3 that Al-'Owahli engaged in long-term substantial planning for 4 the embassy bombing. First, when he gets a call from Azzam 5 and he's told that he's going to go on a mission and he agrees 6 and he accepts that mission, he gets more training. He's 7 already been trained, but he gets more training now for this 8 mission, training in how to operate and manage the terrorist 9 cell. 10 And when he's finished with that training, he gets a 11 false passport, one of many aliases he used, takes that 12 passport and he travels to Yemen and in Yemen he gets another 13 fake identity, a Yemenis passport, this one in the name of 14 Khalid Bin Rashed, the name Al-'Owahli would use to go on his 15 mission to go on the bombing in Nairobi. And when he gets the 16 Yemenis passport he goes back to Pakistan and in Pakistan he's 17 given a further briefing on his mission. He's told what his 18 role will be, to assist the driver, the driver of a bomb-laden 19 truck, the truck that will be driven into an American target. 20 And on July 31, Al-'Owahli take his fake Yemenis 21 passport. He gets on a plane and he travels to Nairobi. And 22 by the 4th of August he's down at the center of Nairobi, 23 center of the city, scouting out the embassy, scouting out his 24 target. And he's shown photographs, and he's shown sketches 25 of the target. He's preparing himself for August 7, 1998. 7154 1 And that day he takes his stun grenades and he takes 2 his pistol, goes down to that area that he's familiar with, 3 familiar with because he saw it, familiar with it because he 4 saw sketches of it, and he goes down there and he helps Azzam 5 bring the bomb truck. Oh, yes, there was substantial planning 6 and training; fake names, documentation, passports, and 7 premeditation. He intended to kill as many people as 8 possible. His stated goal was terror to further the terrorist 9 goals of his organization. This wasn't a crime committed on a 10 sudden impulse. It wasn't done in the heat of any argument. 11 It was a long and it was a complex and detailed plan. It was 12 mass murder committed in cold blood. He prepared for it, he 13 studied for it, he trained for it, and he carried it out. 14 If we could go to the third factor. The defendant in 15 the commission of the offense in the particular capital count 16 knowingly created a grave risk of death to one or more persons 17 in addition to the victim or victims in that count. 18 Yes, he did. You heard the evidence of that during 19 both phases, in the guilt phase and in the penalty phase. You 20 saw how many people he placed in immediate threat of death in 21 that downtown Nairobi area on the morning of August 7. In the 22 guilt phase you heard from a witness called Frank Pressley 23 took the stand and told you that morning he was chatting with 24 a few of his colleagues in the office. Frank Pressley 25 survived, other people in that office like Jay Bartley, like 7155 1 Michelle O'Connor, died. And Frank Pressley had part of his 2 jaw ripped off but he survived. 3 Lydia Sparks came at the penalty phase. She told you 4 she saw her colleagues Joe Kionga and Lydia Mayaka up by the 5 window. The bomb went off, they disappeared. They were 6 killed. Lydia Sparks she survived, but she was cut from head 7 to toe by flying glass. 8 Flying glass maimed Pinoma Muhuhu and Tobias Otenyo 9 who came and testified at the guilt phase, Moses Kanui who 10 testified had part of his head blown off in the blast. But 11 perhaps the story that most exemplifies the risk of death to 12 everyone in that area came from Sami Ingaga, who testified 13 here in the guilt phase. He told you that he was in the 14 Ufundi House and when the bomb went off and these floors 15 collapsed like a house of cards he was trapped in a small 16 space, four foot by four feet for two days, for two days while 17 he could see the bones sticking out of his pants leg and he 18 waited and he talked to his rescuers and he talked to somebody 19 else, he talked to a woman name Roslyn Huruwang, and he tried 20 to comfort Roslyn. He tried to steer rescuers towards her. 21 Sami was pull out of the rubble. Roslyn died. Some were 22 rescued, some were not. 23 There was a grave risk of death to all the people 24 that were in the vicinity of the downtown Nairobi area on the 25 morning of August 7th when al-'Owhali's massive bomb went off. 7156 1 And you heard some of the witnesses who came in here and they 2 testified at the guilt, penalty phase, and they told you they 3 were far away from the downtown area, far away and the window 4 rattled or they heard a thud, they heard a bang, they heard 5 that massive bomb go off so far away from the site. And at 6 10:30 a.m. on August 7th the difference between standing two 7 feet this way or two feet that way could mean the difference 8 between life and death. 9 And the further factor that the defendant 10 intentionally killed or attempted to kill more than one person 11 in a single episode. 12 Well, you know he did that. You found him guilty of 13 213 murders, 212 murdered and look at the evidence, look at 14 that stipulation. They ranged in age from 16, 16 to 66, and 15 pretty much every age in between. 213 killed in one act. 16 It's a number that's difficult to comprehend. One way you got 17 an idea of the number of the carnage was when you heard from 18 the victim's relatives who testified here, and they talked to 19 you about trying to find the people that were killed, trying 20 to find their loved ones and finally they had to go to the 21 morgues, and they went to the morgue and they went down row 22 after row of bodies looking at socks, looking at clothes, 23 trying to look at faces. And many of those bodies were 24 mangled, many of them were burned beyond recognition. 25 Al-'Owahli killed multiple victims. He killed 213 7157 1 and he attempted to kill many more. And these are the 2 statutory aggravating factors: Death during the commission of 3 another crime, substantial planning and premeditation, grave 4 risk of death to other persons, and multiple killings and 5 attempted killings, and the government submits that it has 6 proven all four beyond a reasonable doubt. 7 Now let's look at the nonstatutory aggravating 8 factors. The victims and intended victims of the particular 9 count included high-ranking public officials of the United 10 States serving abroad and the offense was motivated by such 11 status. 12 Well, you know from al-'Owhali's own statement that 13 he was targeting the ambassador, Ambassador Bushnell. You 14 know why. He said he targeted her because she was a woman and 15 because if she died it would bring more attention to the 16 story, bring more attention to his terrorist cause. He tried 17 to kill Ambassador Bushnell. He came close. He did kill 18 high-ranking public officials, and he killed Julian Bartley 19 the counsul general. 20 And the government is not suggesting in this factor 21 that one life is more valuable than another life. It's not 22 saying because some person holds a position that should count 23 more. We are saying that people like Julian Bartley, people 24 who you heard Sue Bartley testify was interested in building 25 bridges, and using his position to help people, that people 7158 1 like that should be able to do that job in safety so that 2 others will follow, that others will follow his example of 3 service and dedication. And that should be a factor, it 4 should be an aggravating factor, that this defendant 5 Al-'Owahli would murder people like Ambassador Bushnell and 6 Julian Bartley just because their deaths would better serve 7 his terrorist mission, and he would hope to scare off the 8 Julian Bartleys, scare them from building bridges. In a world 9 as complicated and as dangerous as the one we live in we need 10 more Julian Bartleys, not less. 11 I'd like now to look at the second factor, 12 nonstatutory factor. That the defendant poses a continuing 13 and serious threat to the lives an safety of others with whom 14 he will come in contact. 15 Let's look at that. Let's look at it in two parts. 16 First, this defendant, his training, his intentions, and his 17 mind set, and next who it is he will come in contact with, who 18 it is that will be at risk. First al'-Owhali's own training. 19 What make him dangerous? Well, he had three rounds of 20 training. First when he went up to Afghanistan when he heard 21 about Bin Laden and answered the call the call for violence 22 against America, and he was such a good student in that first 23 round of training that he got to meet Bin Laden himself, and 24 then he went and he got more advanced training, more 25 specialized training in terrorist operations, in hijackings, 7159 1 highjackings of every buses and planes, in kidnapping, in 2 taking hostages, in taking and holding buildings. 3 And then he had a third round of training in the 4 operation and management of terrorist cells, which even by his 5 own account was the most advanced training he had ever had. 6 Al-'Owahli was highly trained, highly motivated, and 7 at some level willing to give his life to achieve his goals to 8 strike at the United States. When he went to Nairobi and he 9 met Saleh and Harun, he heard about the Tanzania bombing, he 10 scouted his target in a busy downtown area and he bombed it. 11 And then after he bombed that embassy. After he 12 threw the grenade and saved himself, he went to get treatment 13 for his cuts and bruises, he went to get himself fixed up. 14 And where did he go? He went to M.P. Sha Hospital. He walked 15 into the MP Sha Hospital and he saw the carnage that he had 16 created and you heard Dr. Patel testify that this is a sample 17 of the types of injuries that he saw that day. And Dr. Patel 18 worked at M.P. Sha Hospital. This isn't a photograph of M.P. 19 Sha Hospital, but it's injuries, injuries like the ones he 20 saw, injuries that were so common that day. 21 In the middle of all that, in the middle of that 22 scene were Sandi Patel and M.P. Sha Hospital, was where Sandi 23 Patel is having his eye operated, where Sandi Patel's eight 24 year old brother sits on the floor and cries because as Sandi 25 Patel told you he had too much pain, too much pain from the 7160 1 glass, and the gashes caused by al-'Owhali's bomb. 2 In the middle of that, in the middle of the scene at 3 M.P. Sha Hospital, and this is a photograph of a boy being 4 treated at M.P. Sha Hospital, and this is the intensive care 5 unit at that hospital, in the middle of all this, Al-'Owahli 6 walked in, walked into that hospital, and got himself patched 7 up. This is a very dangerous and a very cold blooded killer. 8 And even if you credit his later statement, the 9 statement that he only meant to kill Americans and the Kenyans 10 inside the embassy base, only those 200 people, he showed no 11 remorse, no remorse for the 213 that he did kill. And how do 12 you know that? Well, you've seen the photograph, the champ 13 photograph posing for the media, posing with that smile after 14 he's just killed 213 people, more than 200 Kenyans. 15 He showed no remorse for his victims, but he did shed 16 some tears after the bombing and you heard about that. When 17 he was being interviewed by Agent Gaudin he was shown a 18 picture of the bomber Azzam, the guy who blew himself up while 19 he killed 200 innocent people and Al-'Owahli cried for Azzam. 20 Al-'Owhali cried for him and Al-'Owhali kissed his photograph, 21 and he sang a little chant about maybe, maybe some day I'll 22 meet Azzam in Paradise, my friend. That's the emotion 23 Al-'Owahli showed after the bombing. He's fully committed, 24 he's fully trained. 25 And now let's talk about who al-'Owahli will come in 7161 1 contact with. Now, the government's not here to say that 2 Al-'Owahli if he doesn't receive the death sentence will be 3 walking around on the street. No. Mr. Baugh told you that 4 he'll spend forty or fifty years in prison, forty or fifty 5 years in American prison with American guards, guards that he 6 views in his twisted way as the enemy, the representative of 7 his enemy the United States. Guards that are a way for him to 8 achieve the thing that Azzam achieved, and what does he have 9 to lose, he's already killed 200 people? He's trained in 10 hostage taking, he's trained in taking over buildings and 11 everyday, everyday for 50 years those guards are going to be 12 on the alert for Mr. Al-'Owahli. Those guards are going to 13 have to watch him because he's trained, and he's looking at 14 them, he's looking at them as the enemy. 15 Now, you heard some evidence about the special 16 administrative measures and let's take a second to talk about 17 those. They're good for 120 days, four months. Then they can 18 be renewed. They are subject to challenge. But most 19 important of all, as you just heard, they are not fool proof. 20 You've just heard a stipulation that of the few prisoners in 21 the Federal Bureau of Prisons system, the few prisoners under 22 those measures under that tight security that a guard was 23 badly maimed and permanently disabled in a cell shared by two 24 of those prisoners under those tight special administrative 25 measures. So much for the SAMs. 7162 1 Al-'Owahli poses a serious and continuing threat in 2 prison, make no mistake about that, and that should carry 3 great, great weight in your deliberations, but there is more. 4 The final, and the government submits the most weighty and 5 compelling of all the aggravating factors in this case. As 6 demonstrated by the deceased victims' personal characteristics 7 as individual human beings and the impact of the deaths upon 8 the deceased victims' families, the defendant caused injury, 9 harm and loss to those victims and their families and the 10 defendant caused serious physical and emotional injury and 11 grievous economic hardship to numerous individuals who 12 survived the bombing. 13 That's an understatement, an understatement. Pain 14 and loss cased by Al'-Owahli to the victims and their 15 families, impact that continues to this day, impact that will 16 never end. I'm not going to summarize the testimony you heard 17 over that one day, over that afternoon and that morning. I 18 could never speak with the same eloquence as those witnesses, 19 I could never adequately express to you their feelings, their 20 pain, their suffering, their emotions. No one who heard that 21 testimony could ever forget it. The pain and the suffering 22 and the loss that you heard here almost three years later, 23 your impression of what those witnesses said, how they said it 24 should guide your deliberations. 25 You are asked to determine how much weight to give it 7163 1 and as you do consider the importance of that factor. 2 Remember, remember that Fahat Sheikh should be raising his 3 sons today. His sons shouldn't be drawing pictures of the 4 embassy where their father was killed. Remember that Teresia 5 Karanja shouldn't have to come in here in a wheelchair to tell 6 her story, a wheelchair where this defendant put her, and 7 where she will spend the rest of her life, everyday, and Ellen 8 Bomer, Ellen Bomer shouldn't have to be afraid of the darkness 9 afraid of the darkness because she was blinded by this 10 defendant, and Deborah Hobson's daughter Abigail should see 11 her father rejoice. And Mordecai Onuno, he should be spending 12 Sunday afternoons in the family pew at church. He shouldn't 13 be carrying around his anniversary card and reading the last 14 message he wrote to his wife, and Nathan Aligana he should 15 still be carrying his country's flag, he should not have been 16 carried out of that embassy wrapped in one. 17 Remember those stories, remember the lives that were 18 shattered by this man, what he took away from each and every 19 one of these and of 200 others from communities, from friends, 20 from loved ones, because Al-'Owahli chose to kill them. 21 You heard testimony about other victims, other 22 victims who survived and who were blinded and who were maimed. 23 These are examples of the injuries he caused. You heard about 24 carnage in the hospitals people lying on floors, wards 25 overflowing. You heard about searches being done for loved 7164 1 ones, searches through hospitals and later searches through 2 morgues. You heard about people going up to boards and trying 3 to find names. You heard one witness tell you unknown African 4 male. I'm looking for him. All I see is list after list of 5 unknown African male. It's not right. It's not right. These 6 families looking at a board trying to find the name of someone 7 they loved among the missing or among the dead. And you heard 8 about the identifications, the identifications that in some 9 cases had to be made through clothing, through a T-shirt that 10 said Thank God Jesus Loves Me, through DNA testing in one 11 case. 12 And these were hard-working people who came here, 13 working hard to get by under difficult conditions, and you 14 heard family members, they are asked tell us something about 15 your loved one and a lot of time they said, well, they were 16 good provider, they took care of us, the took care of the 17 family, and now we're lost, now we're lost, because of the 18 pain, because of the pain that Al-'Owahli brought into their 19 lives. 20 In an instant in the morning of August 7th the 21 defendant changed those lives forever. They came face to face 22 with the horror and with the terror that's difficult to 23 understand, even after you heard it told. That's impact. 24 That is victim impact. Impact that began that day with the 25 defendant's bomb and impact that continues to this day. And 7165 1 there is no more weighty factor than that one measured by the 2 pain of 213 victims and their families. There must be justice 3 for the victims of this crime. 4 And when you are weighing those aggravating factors 5 you are also to consider any mitigating factors this defendant 6 has proved by a preponderance of the evidence and let's look 7 briefly at some of the mitigators that Al-'Owahli has 8 proposed. 9 He says that other members of the conspiracy who were 10 arrested are cooperating with the government who are guilty or 11 charged with planning, bombing embassies, and killing of US 12 nationals will not be punished by death. Cooperating. 13 Cooperating witness Al Fadl he walked into the Americans. He 14 hadn't been charged with the crime. He pled guilty. He came 15 in here and he testified. He doesn't face the death penalty. 16 Is that an injustice? Moma du Salim who is not charged in any 17 case with any capital counties in the getting the death 18 penalty. Usama Bin Laden, he's not here to face justice 19 neither his lieutenant Mohamed Atef. They may be some day. 20 That's not the issue. 21 The issue is responsibility for this defendant's 22 crimes and punishment for this defendant's crimes. In a 23 similar way Al-'Owahli says, well, he's less culpable, less 24 culpable than others that planned the bombing. That's an odd 25 argument to make. Less culpable in the murder of 213 people, 7166 1 less culpable although he trained for it, he planned for it, 2 he wanted the mission, he asked for a mission to kill, he 3 scouted the target, he knew the entire plan, including the 4 Tanzania bombing. He helped deliver the bomb to the target. 5 Focus on his actions, on his crimes, on his active and central 6 role in this atrocity. 7 Next, al-'Owahli claims as mitigation that he has no 8 criminal record and that he was young in age when he bombed 9 the embassy. Well, we concede he has no criminal record. 10 Factually, that's not the issue here. The issue is how much 11 weight do you give that factor? He has no criminal record. 12 Well, the Judge will tell you it's not numbers, you 13 don't add up the numbers of the factors. It's the weight of 14 the factors and how much weight do these mitigating factors 15 get. Well, Al-'Owahli never been arrested before, never been 16 arrested before he bombed the embassy and killed 213 people 17 and injured 4,000 more. 18 But take a look what he was doing while he compiled 19 this exemplary record. He was in Afghanistan. He was going 20 to terrorist training and terrorist camps. He was getting 21 false documentation, false passport so he could travel and 22 bomb the US embassy. 23 And keep in mind when you think about this that 24 Al'-Owahli said he came from a privileged background in Saudi 25 Arabia. He said it was a very prominent and a very wealthy 7167 1 family, and that he attended university in Rhiad. He was 2 young, he was wealthy, he was educated, young in age, he was 3 21. There is a stipulation to that. He was 21 when he 4 committed this act of mass murder. Not a sheltered 21, but an 5 educated and a hardened 21. And at some point you have to 6 take responsibility for your actions. 7 Sandi Patel was 12 when Al-'Owahli blinded him when 8 he stole his youth. His brother was eight when he was cut and 9 bleeding because of the bomb. Joyce Manguriu was 17 when she 10 was planning on going to the embassy, when she was planning on 11 going to the United States to study. She was young. She had 12 no choice about dying. Al-'Owahli was twenty-one and he had a 13 choice and he chose to kill. He chose to kill Joyce and he 14 chose to kill 212 others. 15 And remember although Al-'Owahli was twenty-one, he 16 had a will and he showed it. He wasn't brain washed. Yes, he 17 had training. Yes, he listened to lectures. He listened to 18 tapes. And after he had done with that training and after he 19 had listened to those tapes, what did he do? He said, no, and 20 who did he say no to? He said no to Bin Laden. He said no 21 I'm not going to pledge bayat. No, I'm not going to take an 22 oath. Why not? Because all he wanted was a mission. He 23 wanted a terrorist mission. He didn't want to get stuck out 24 of the action. He wanted control. He wanted to kill. And he 25 got what he wanted and 213 people died as a result terrible 7168 1 and horrible deaths. Al-'Owahli made a choice and he should 2 be held responsible for that choice. 3 Al-'Owahli also points as mitigation that although he 4 intentionally committed this act contemplating that he would 5 kill Americans, he did not intend to kill or injure Kenyan 6 victims not employed in the embassy. Well, this is totally 7 uncompelling for three reasons. One, that's what he claimed 8 after he got caught after he learned he had killed 200 9 Kenyans. He claimed he didn't mean it. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7169 1 He claimed he didn't mean it. 2 Two, assume there's some truth to it. Assume that he 3 just wanted to kill Americans, that's okay. He just meant to 4 kill Tom Shah. He just meant to kill Jay Bartley. He just 5 meant to kill the other people that you saw on that CD-ROM we 6 played during Mrs. Bartley's testimony. He just meant to kill 7 Lydia Sparks and Allen Bomer. 8 And finally, as Ambassador Bushnell told you, on any 9 given day in Nairobi there were 200 people in the embassy, 200 10 people, and most of them, most of them were Kenyans. So 11 Al-'Owhali only intended to murder those 200 people, those 12 Kenyans and those Americans who were inside the building. 13 He only intended to murder Americans and Fahat 14 Sheikh, Nathan Aliganga, Ken Hobson, Prabhi Kavaler, and if 15 Titus Wamai, who happened to be a foreign service national, 16 was working as a commercial specialist in the embassies, well, 17 if he was in there, he intended to kill him, too. 18 You know his concern for the Kenyans came after he 19 was caught, after he surveilled that embassy. He knew exactly 20 what the target was like. And, yes, he said to Saleh, well, 21 can we get the bomb closer to the embassy? Can we get it 22 underneath the embassy and kill more Americans? And Saleh 23 said no. He didn't change the plan. 24 And three days later, Al-'Owhali brought that bomb 25 back to the embassy, brought it down to the downtown area, and 7170 1 watched Azzam position it outside the embassy. And then he 2 ran. And when he ran, he gave no warning to the Kenyans 3 outside. He didn't yell. He didn't shout. He just ran and 4 he saved himself. 5 And the stun grenades to warn, he threw those stun 6 grenades at the guards to get them out of the way. You know 7 what the effect was? They brought people to the windows, 8 people to the windows of the embassy and the buses, where they 9 were maimed and they were massacred. 10 What weight should you give this factor? Even seen 11 in the best light that he intended to kill only the 200 people 12 inside the embassy, the Americans and the Kenyans, and he made 13 a mistake and killed a hundred people outside the embassy, the 14 government submits this is no mitigation at all, zero. 15 Let's look at another proposed mitigator. 16 Al-'Owhali's motivation. He said he committed these murders 17 to save his religious community from genocide and from terror. 18 Well, on August 1998 he told Agent Gaudin what the conditions 19 would be to stop the acts of terror, and he never mentioned 20 protecting his community, his ummah. He said the U.S. had to 21 get out of Saudi Arabia, the land of the two holy places. He 22 said the U.S. had to stop supporting the enemies of Islam, 23 like Serbia and Israel, and he they should stop using its 24 influence to stop the spread of Islamic law around the world. 25 He didn't mention Iraqi children, he didn't mention 7171 1 the oil embargo. That wasn't on his mind in August of 1998. 2 It isn't prominent in the fatwahs because of Bin Laden, the 3 Iraqi embargo. It's not a burning issue. It's to get people 4 out of Saudi Arabia, the holy place. Look at the claims of 5 responsibility. That's the primary goal. 6 But coming in here and showing you photos of American 7 troops stationed in the Arabian Peninsula would not have the 8 same effect as coming in here and showing Iraqi children. And 9 we heard a lot about Iraq and the Iraqi people and the U.N. 10 sanctions. And there's no doubt that those are very complex 11 issues and painful issues. 12 The issue of sanctions the United Nations and the 13 delegates and the leaders and the U.S. government is to 14 consider. They have to consider those issues, and Saddam 15 Hussein and biological and chemical weapons and the impact of 16 an embargo on the civilian population and why the U.S. 17 implemented no fly zones in the first place. 18 But this is not that forum. The government did not 19 join these issues. The government does not concede the 20 defendant's position on the history of these issues, of what 21 they mean, the position of Ramsey Clark, who came in here and 22 testified. No, those issues are important and they are 23 complicated, but they have no place here, not in this penalty 24 proceeding, where the focus and the purpose must be on the 25 appropriate penalty for this defendant and for the crimes that 7172 1 he committed. 2 Al-'Owhali claims his crimes were mandated by his 3 religion. Don't believe that for a minute. One of his 4 victims, Fahat Sheikh, who was buried in the embassy, was one 5 of over 1 billion Muslims who peacefully practice their 6 religion in this world, a highly respected religion, defamed 7 by this defendant, who would use it as an explanation for 8 killing 200 people. 9 When you think about Islam, think about Fahat 10 Sheikh's son on the morning of August 8th, 5:00 a.m. He wants 11 to go to the mosque and he wants to sing the call to prayer 12 because he thinks it will call his father home. That's an 13 example of a boy using his religion to show love for his 14 father. 15 And later you heard that the religion teachers, that 16 boy's religion teacher said, why does he hate religion? He 17 hates religion because this defendant would twist it, because 18 this defendant would use it as an excuse to kill, would use it 19 as an explanation for killing. 20 And when you look at the pages of that book that was 21 put in by Mr. Baugh, the pages of the book on Islam, you won't 22 find a call to violence, you won't find a call to bomb 23 embassies or murder innocents. No. You will find the 24 religion of Fahat Sheikh and his sons, not the murderous and 25 cowardly conduct of this defendant. 7173 1 And lastly, Al-'Owhali claims that he attacked the 2 embassy in a belief it was an intelligence and military 3 target. Al-'Owhali did say if you hit the embassy, you hit 4 the ambassador, you hit the military attache, the press 5 attache, and, yes, you hit intelligence officers. He said 6 that. This isn't a military goal. He didn't strike at a 7 military target. Yes, he killed a marine. He killed Nathan 8 Aliganga, who was going in to cash a check to go shopping. He 9 killed Ken Hobson, who was in the Army. 10 He didn't kill them on a battlefield. Al-'Owhali is 11 too much of a coward. He attacked them with a huge bomb in 12 the middle of the day, without warning, in downtown Nairobi, 13 where civilians -- men, women and children -- were. This is 14 not a military operation, as he would say, it's murder. It's 15 a crime and he's responsible. 16 In the end, the penalty phase is about Al-'Owhali, 17 about his actions, about the defendant and about his bomb -- 18 what that bomb did to flesh and bone and what that bomb did to 19 the lives of the survivors. They have to keep going. They 20 have to keep going even if they are maimed by that bombing and 21 even if they lost a loved one. Whatever mitigation he has 22 proven has little weight. 23 This is the rare case of a death penalty. Here, 24 beyond any reasonable doubt, the aggravating factors outweigh 25 the mitigating factors, overwhelmingly outweigh and justify a 7174 1 sentence of death. 2 Think for a moment of the morning of August 7th, 3 1998, the moment before the bombing, when Howard Kavaler said 4 good-bye to his wife for the last time, when Surendra Patel 5 was riding on his school bus after his last day of school, 6 when Teresia Rungu walked into her office in the co-op 7 building, when Ruth and Peter Rungu went to the Ufundi House 8 so she could register for her first day of secretarial school 9 and when Nathan Aliganga ran into the embassy to cash his 10 check, where Fahat Sheikh was a cashier on duty that day. 11 Freeze that moment and the lives of all those people, 12 and then there's a noise, a noise, a popping sound. That's 13 probably the last sound those 213 people will hear. It's the 14 sound of this defendant's grenades going off and it's the 15 first sign that something is wrong. 16 And people come to the windows at the embassy, at the 17 Ufundi House, at the bank and the buses, and the bomb goes 18 off. And the bomb brings death and blindness and paralysis, 19 and in that violent moment, the lives of 213 people end. 20 Al-'Owhali ended their lives without warning, without giving 21 them time to say good-bye to their loved ones, without giving 22 them time, like he had time, like he made his good-bye video. 23 He didn't give them that same time. They never got a chance 24 to say their last good-bye. 25 You heard from a small number of relatives of those 7175 1 killed in the bombing, 20 witnesses about one day. Twenty 2 witnesses. And for each one of those witnesses you heard 3 from, there are ten more behind them that you didn't -- ten 4 more victims that were killed, ten more families. 5 Now that you have heard those victims, those 6 representative victims, you have heard the pain in their 7 voices, now you should see, really see the list of names, the 8 names and, where there is one available, a photo. Three 9 seconds. Three seconds for each one. Some you will 10 recognize. 11 Mary Khahenzi told you about her identifying her 12 husband, Thomas, from the t-shirt; Doreen Ruto's husband, 13 Wilson, and she said he was a handsome man, a courageous man; 14 Joyce Ng'ang'a's passport photo; Amos Karimi's wife, who was 15 killed in the Ufundi Building. 16 But the photo and a name is all you are going to know 17 for some. Three seconds. Three seconds to capture those 18 lives, to honor those victims. And when you see those 19 photographs and when you see those names, think about the 20 families behind those names and those photos, the lives, the 21 children, the parents. And they were killed only because they 22 were near this defendant's bomb when it went off on August 23 7th. Think of the lives lost when the defendant killed each 24 and every one of them. 25 (The name and/or photograph of each victim is 7176 1 displayed on the monitor) 2 MR. GARCIA: Those are Al-'Owhali's victims, and he 3 didn't know a single thing about any one of them. He didn't 4 know a single thing about the 213 people that he murdered. 5 On that day, on August 7th, 1998, Al-'Owhali ran 6 away. He escaped with cuts on his back, and now it's time, 7 it's time for him to face justice. He must now be sentenced, 8 as justice cries out he be sentenced, a punishment he deserves 9 for the pain he has inflicted and for the suffering by those 10 whose lives have been scarred by his murderous act. 11 The crime, Al-'Owhali's crime, is mass murder, murder 12 of 213 individuals with families, with lives, with hopes, with 13 dreams, and the penalty, the penalty that does justice for the 14 victims of those crimes, the only penalty that fits those 15 crimes is the death penalty. 16 Thank you. 17 THE COURT: We'll take a very brief recess. 18 (Jury not present) 19 MR. BAUGH: Your Honor, before you bring the jury 20 back, however, Mr. Cohn has -- when we come back, Mr. Cohn has 21 some motions. 22 MR. COHN: I just have some things I want to preserve 23 for the record. 24 THE COURT: Go ahead. 25 MR. COHN: I would just like the government to give 7177 1 us a list at some time of the photos and exhibits that they 2 showed so we can preserve that for the appellate record. And 3 if this was on a disk, the pictures of the victims, we would 4 like a copy of the disk. 5 THE COURT: Yes. 6 MR. COHN: I just want to make sure that the record 7 is clear later on as to what was shown. 8 THE COURT: Mr. Garcia is nodding his head. 9 MR. GARCIA: Yes, Judge, we will. 10 MR. COHN: Thank you. 11 (Recess) 12 (Jury present) 13 MR. COHN: Your Honor, just for the record, the 14 government has already given us Exhibit 2002-2, which is, with 15 one substitution, the pictures of all the victims that were on 16 the screen. So that part has been satisfied, the record 17 should reflect. 18 THE COURT: Mr. Baugh, I will leave it to you when 19 you get past 1:30 when you want to break for lunch. I am 20 assuming you will be finished before. 21 MR. BAUGH: I would rather start after lunch so that 22 my opponent doesn't have a -- 23 THE COURT: Have a what? A surprise? Is there a 24 single surprise in this case? 25 MR. COHN: Your Honor, I hope that question was 7178 1 rhetorical. Otherwise, there's a long answer for it. 2 (Jury present) 3 THE COURT: Mr. Baugh. 4 MR. BAUGH: Thank you, your Honor. 5 May it please the Court, counsel. 6 This is a really scary case. It's really scary 7 because its implications go beyond any case I have ever done 8 in my life. Twelve of you, who will determine what happens in 9 the next few days, are literally going to make a statement, an 10 individual statement, to the entire world. 11 In all probability, your decision will be in the 12 headlines of every newspaper in the world. To a certain 13 extent, I guess you should feel lucky that you had this thrust 14 upon you, but I assure you, from the seriousness I have seen 15 and we have seen for the last few days, I know you appreciate 16 the seriousness of what's going on here. 17 Also, to a certain extent it's kind of scary. It's 18 also scary, because, one, as I got into this case and as the 19 evidence developed, I realized how ignorant I was about an 20 entire portion of the world, and to divorce what has happened 21 in this case from what goes on in that portion of the world is 22 hypocrisy. 23 You have heard fatwahs. I know you have had them 24 read to you. We have introduced some again. In every one of 25 those fatwahs, from every organization, there is a list of 7179 1 things about which the Middle Eastern population, Middle 2 Eastern people, Bin Laden, specifically, is opposed. They 3 mention Qana, you have heard that enough times, Shattila, they 4 mentioned Libya. I know in the defendant's statement he 5 mentioned Libya. They mentioned Iraq. They mention the 6 occupation of the land of the two shrines. They mention the 7 United States control of oil and oil prices and puppet 8 governments. It's throughout all of those statements. And 9 that is the canvas upon which this is painted and you have to 10 look at it. 11 Also, you have to look at it because, unlike every 12 death case I have ever done before, most death cases, a person 13 is motivated to commit the crime for passion, greed, crazy, 14 somebody is in love with somebody, somebody is making money, 15 something like that. This is the first crime I have ever been 16 involved in where the purpose given is to stop killing. 17 Killing to stop killing. It's just a living example that 18 killing always makes more killing. It always does, and you 19 can't get around it. 20 Why did we choose Iraq versus Libya or Chechnya or 21 anything else? Iraq, I tell you, is the one that you can find 22 the most information on. When you go in the U.N. websites, 23 you go to UNICEF, you can find evidence. You can't get over 24 there to investigate, so therefore you are dependent upon what 25 information you can get. So, we chose that one. 7180 1 I will concede by your verdict that the defendant 2 voluntarily chose to do that which he did. He voluntarily 3 gave up his life in Saudi Arabia and went to Afghanistan to 4 fight that government as a member of the mujahadeen. He 5 risked his life to defend his religion and his community and 6 to fight the influences in Afghanistan. 7 While he was there, he obviously met people who 8 impressed him. He listened. He had been reading since he 9 was -- at a young age -- we stipulated to that -- writings and 10 books and listening to tapes about conservative fundamental 11 Muslim teachings. The sacrifice of martyrs, dying in Jihad, 12 the attainment of paradise, and -- you ready for this? 13 According to Mr. Al-Fadl, there are hundreds, even thousands 14 like him. He is one of thousands. He is one of thousands of 15 young men, and sometimes women, who are so offended by what 16 they perceive is happening in that part of the world that they 17 are willing to kill themselves. 18 Now, again, as I did during my opening, when we 19 mention Iraq, it is not offered as a justification. And I 20 don't want anyone to think for a moment that that evidence 21 means that what happened in Kenya on August the 7th, 1998 was 22 excusable. And it wasn't. Every one of those people who died 23 in Kenya, as I said during my opening, died as an innocent. 24 They died as an innocent because, no matter what personal 25 traits or attributes they might have had, they did not die 7181 1 because of them. They did nothing personally that led to 2 their deaths. 3 However, I do want you to understand, and I want you 4 to appreciate, that there is a lot of sorrow over there and 5 there are a lot of deaths, and how anyone can stand up here 6 and look at the suffering of these people, that these victims, 7 realizing the suffering they are going to go through from this 8 day forward, and not appreciate the children we are killing is 9 a hypocrite. 10 It doesn't make sense to pour any more blood on all 11 that which has already been spilled, and that's what I'm 12 trying to show. When I talk about these victims, I want you 13 to know, and believe me, how anyone cannot understand their 14 pain, how anyone who's ever raised a child, anyone whoever 15 loved a spouse, anyone whoever missed a loved one cannot 16 appreciate what they are going through, they're a very shallow 17 person. It hurts, and it will hurt in the future. 18 One thing you should learn from this case, from 19 listening to argument of counsel, Madeleine Albright on 20 television, everybody has a good, logical reason why they 21 should be allowed to kill people. Everybody always has a good 22 reason why they, why when they kill people, it's not bad. 23 Everybody does. Oh, no, you killed one of us. We can kill 24 one of you. You killed ten of us. We can kill a hundred of 25 you. You killed eight of us. We can kill 200 of you. 7182 1 Everybody has always got a good reason to kill, but it only 2 makes more killing, period. 3 In fact, each of you individually today is going to 4 be asked to kill. That's right, to kill. Now, I will tell 5 you this. You will debate it amongst yourselves, as you have 6 with every other issue. You will discuss it. I pray you will 7 show respect for each other, because my client is entitled to 8 12 individual jurors debating his life, not six real strong 9 ones and overpowering six real quiet ones, not one real big 10 muscle-bound person who makes everybody else do what they want 11 to do, each person in this box. No place else in the world is 12 there more equality than this box. 13 And the reason it is, is that unless each one of you 14 vote to kill, individually, it can't happen. The judge can't 15 make it happen. These gentlemen can't make it happen. No one 16 can. In fact, if 11 of you -- well, only you can do that. 17 We've not been able to offer you any direct evidence 18 about the defendant's life. However, you do understand some 19 things. One, he's deeply religious, and that is a given. 20 Now, there are people in his own religion who disagree with 21 his interpretation of his religion. Well, there are people in 22 my religion who disagree with my interpretation of my 23 religion. That's not a big thing. 24 You know he's concerned with his nation. You know 25 he's concerned with the plight of his community. You know 7183 1 that because of when he was 14, he was reading this. When 2 he's 18, he's on his way to Afghanistan to fight and get shot 3 at. 4 You know that his motive for killing doesn't involve 5 greed or amorous or any of those things. Perhaps the 6 attainment of paradise, but there's no lust for blood. In 7 fact, when the government says, well, after he was caught he 8 said he didn't want to kill the Kenyans. No, we know when 9 this plan was hatched, he suggested the bomb be placed 10 differently. 11 And also, remember that when he threw the grenades, 12 not one lab person came in and said they found fragmentation 13 parts from the grenades. There are two different types of 14 grenades. There are grenades with fragmentation that blows 15 out and kills people, and then there are things that are just 16 explosives that make noise. That's what he had. 17 Also, it's strange in a death case because of this: 18 If I am able to convince you to think about those issues and 19 help you to vote not to kill, not to make the individual 20 decision to kill, my client will spend the rest of his life in 21 prison. He's going to miss things that he doesn't even know 22 he's going to miss. 23 I know that and you know that because he's 25, and I 24 used to be, he's not going to smell that new baby. He's not 25 going to be there to see his children walk, just like those 7184 1 victims are not going to be able to see it. Everything that 2 makes life worth living will be gone. There will be no 3 difference from day-to-day. 4 When you get a chance, do the math. Do 60 years 5 times 365 and realize how many sunrises and sunsets it is. 6 And that's if I'm able to convince you not to kill him. 7 I'm not going to use Power Point. I'm not going to 8 show you any pictures of any dead children. I'm not going to 9 show you any videotapes. And I know you got tired of 10 videotapes, but believe me, those videotapes saved you weeks 11 of extremely boring lectures by some very boring people and I 12 think it's important that you do understand the background of 13 the case. 14 For instance, for the government to stand up and say 15 that one of the reasons for Mr. al-'Owhali to die is that he's 16 been trained in terrorist techniques, remember the last tape 17 when you saw people like Stansfield Turner talking about how 18 did Bin Laden's people get terrorist training; we taught them. 19 We sent CIA people there to teach them, and then they in turn 20 taught others. The reason he knows those tactics is because 21 we opened the bottle and gave them to them. So, yes, he knows 22 it. He knows as much as probably the people in the CIA do 23 because they were his teachers. 24 Another reason I'm not going to show you any pictures 25 is, on a situation like this, it's very easy to get involved 7185 1 in emotion and I'm making a conscious effort not to. When you 2 talk about victims and you talk about children, even as old 3 and grizzled and experienced as I am, you do sometimes kind of 4 mist up, you do want to cry. But understanding the sorrow of 5 the victims does not mean that that emotion that you have is 6 license to make your decision based on emotion, and I don't 7 plan to ask you to base a decision on emotion. 8 One of the advantages you have in this case is that, 9 as I told you in opening, there are very few factual 10 disagreements on the aggravators and the mitigators, the 11 gateways. For instance, as Mr. Garcia pointed out, the 12 gateway that the defendant intentionally killed the victim or 13 victims of the particular capital offense charged in the 14 respective count of the indictment. Well, by finding him 15 guilty, you've sort of proven that. You sort of found that 16 and there's nothing I can say about it. 17 That the defendant intentionally inflicted serious 18 bodily injury that resulted in the death of the victim or 19 victims of particular capital charges or offense charged in 20 the respective count of the indictment. 21 Number three, that the defendant intentionally 22 participated in an act contemplating the life of a person 23 would be taken or intending that lethal force would be used in 24 connection with a person other than one of the participants in 25 the offense, and the victim or victims of the particular 7186 1 capital offense charged in the respective count of the 2 indictment died as a direct result. 3 And four, that the defendant intentionally and 4 specifically engaged in an act of violence, knowing that the 5 act created a grave risk of death to a person other than one 6 of the participants in the offense, and it reads on. 7 By finding the defendant guilty of these charges, you 8 found that he did those, and I don't even plan to try to tell 9 you that didn't happen. However, in weighing the impact of 10 this, and you're going to have to -- once you decide this 11 exists, you are going to have to go to the next step. 12 The next step, and I'll come back, are the 13 aggravators. Now, first are the statutory aggravators. First 14 one: That the deaths and injuries resulting in death occurred 15 during the commission or attempted commission of another 16 offense. And they're spelled out. 17 Two, that the defendant, in the commission of the 18 offense, knowingly created a grave risk of death to one or 19 more persons in addition to his victims. 20 Three, that the defendant committed the offense after 21 substantial planning and premeditation; and, four, the 22 defendant intentionally killed or attempted to kill more than 23 one person in a single episode. 24 Now, according to Mr. Garcia, these factors determine 25 whether or not this case is a rare exception and qualifies for 7187 1 that narrow range of cases that are so egregious and so evil 2 that death -- that citizens should be asked to kill someone, 3 12 ordinary citizens. 4 Once, if you find that these aggravators did occur, 5 you must weigh them, and the only thing I will say on weighing 6 is this: In understanding this offense and understanding the 7 background of it, and that's why we put on that evidence, 8 "that the deaths and injuries resulting in death occurred 9 during the commission and attempted commission of another 10 offense," the death of many of those children in Iraq occurred 11 during the commission of violations of the Geneva Convention. 12 So if it's that important, why haven't these people indicted? 13 That the defendant in the commission of the offense 14 knowingly created a grave risk of death to one or more 15 persons: Somewhere in this world there is a man in the 16 military in the basement of the Pentagon who wrote a memo in 17 1991 stating that if we do what I suggest we do, we can start 18 epidemics in a country. That later turned out to kill over a 19 million people out of a population of 22 million. That's 20 about five percent of every man, woman and child in that 21 nation. Somewhere there's a man sitting in a room who came up 22 with this plan. 23 The defendant committed the offense after substantial 24 planning and premeditation: That same man started a plan 25 that's lasted ten years. 7188 1 The defendant intentionally killed or attempted to 2 kill more than one person: Anytime you sit down and talk 3 about epidemics starting, to say nothing of the fact -- 4 remember this. We've also embargoed insulin, medicine. 5 Mr. Clark talked about, during the Gulf War, watching an 6 11-year-old have her leg amputated without benefit of 7 anesthesia because we had embargoed the anesthesia back in 8 August of 1990. And our tax dollars knew this was going on 9 and our press didn't tell us about it. 10 Now, I don't believe that justifies what happened, 11 but does it make it a little more understandable? Imagine 12 having to look at a loved one die over the course because of 13 diabetes or cancer because you can't have medicine. And by 14 the way, affording medicine. Among the documents we filed was 15 a document that says Iraq. It's from the Central Command. It 16 talks about the effect on the economy of that country so 17 people can't buy medicine. 18 In 1990, the rate of exchange was one dinar equals 19 $3, which means that -- say you are getting ready to retire, 20 like Dr. Dalizu. He testified he lost his wife. They were 21 going to buy a piece of property in California. If you had 22 been good and you saved up a million dinars, that's worth 3 23 million U.S. dollars. That's a nice little nest egg. 24 THE COURT: No. Did you say, I think you transposed. 25 If you save -- say it again. 7189 1 MR. BAUGH: One million dinars is worth $3 million in 2 1990. That's the rate of exchange. 3 THE COURT: It's the other way around. 4 MR. BAUGH: No, it's not. I did that, too. Trust 5 me. But you can check my math. If I had better math grades, 6 I would have been a doctor instead of a lawyer. But they can 7 check. 1 dinar equals $3. That means if you had a million 8 dinars, you had $3 million tucked away. The rate of exchange 9 now, according to that document, is 150 dinars to the dollar; 10 which meant that if you had a million dinars tucked away, it's 11 now worth a little more than 650 bucks. That's how you 12 destroy an economy. 13 When weighing these aggravators, weigh them in 14 relation to the world that exists in this offense and 15 determine whether or not these actions in this case require 16 you to make a personal decision to kill someone, because when 17 you put Juror No. 1 or Juror No. 2 on that form, it's going to 18 be like firing the bullet. Because if one signature doesn't 19 go on there, there's no death penalty. 20 By the way, I also want to tell you this. If -- 21 well, I'll come back to that point. Forgive me. 22 Then, after we go through the statutory aggravators, 23 we go to the non-statutory aggravators: The defendant poses a 24 continuing and serious threat to the lives and safety of 25 others with whom he shall come in contact. 7190 1 This young man has been in prison since August of 2 1998. Did anybody come in here and say that he yelled at a 3 guard? Did anyone -- I mean, you have seen him sit here in 4 court all this time next to his lawyers. Does anyone look 5 scared to be in his presence? He's small. 6 As demonstrated by the deceased victims' personal 7 characteristics as individual human beings and the impact of 8 the deaths upon the deceased victims' families, the defendant 9 caused injury, harm and loss. I will concede that one. He 10 has and there's nothing we can do. And if I could, I would. 11 The victims and intended victims included 12 high-ranking public officials of the United States serving 13 abroad: Yep. 14 So I concede all of these except future 15 dangerousness. So you don't even have to decide the rest of 16 them really. You have to vote on them. You have to debate 17 them. Just because I said it doesn't make it true. 18 However, again, if you're going to think about -- I 19 mean, no offense, it is the epitome of bigotry to come in here 20 and say that the suffering of Americans or the suffering of 21 American allies is any different from the suffering of someone 22 we don't like. 23 A mother who loses her child anywhere has the -- 24 remember Mr. Clark talking about walking through a ward and 25 hearing a mother's wail because the child just died? You saw 7191 1 the pictures in the 60 Minutes tape. We're going to get off 2 of that. You heard Mr. Clark talk about the amputation. 3 Imagine if you are a parent what the parent of that child is 4 going through while their daughter was being held down and her 5 limb, her leg, was being amputated. That is suffering. That 6 is suffering, just like these people. 7 And it's all wrong. It's not comparative. It's all 8 wrong. It is all wrong. When you see these victims and you 9 understand what they are going through, you must understand 10 what all victims are going through, and what is happening to 11 them shouldn't happen and what is happening to the others 12 shouldn't happen. We must stop it. 13 The aggravators, as I said, must be proven beyond a 14 reasonable doubt. Now, in determining whether or not the 15 defendant should die, whether or not you should kill him, as 16 far as the aggravators, you are limited to the statutory and 17 non-statutory aggravators that are alleged in the 18 instructions. 19 You can't sit back and say, well, boy, Mr. Garcia 20 should have said this one. I mean, we ought to think -- you 21 can't do that. That's cheating. You are limited to those 22 which are -- if he didn't say what's going to happen in the 23 Middle East by this verdict or anything, you can't consider it 24 in determining aggravators, in determining beyond a reasonable 25 doubt whether or not the aggravators exist. 7192 1 However, in determining mitigators, where the burden 2 is only by a preponderance -- more likely true than not -- you 3 are permitted under the law that if you think there are 4 reasons why he should not be executed that I didn't bring up, 5 you can bring them up, even if it's only one of you who does 6 it. All right? 7 Now, so any issue you feel is appropriate -- and 8 again, he has 12 jurors. If just one of you thinks this is a 9 factor, you should bring it up so we can know if it was 10 considered. 11 You will notice, by the way, when I say that, no one 12 has introduced you, but you know that everyone in this 13 courtroom has been trained to do what they do except you 14 all -- I'm sorry, except you. I mean, we all went to law 15 school. The judge went to law school. He's a judge. The 16 court reporter is writing down just about every word I say. 17 The bailiffs, the clerks, the deputies, they're all trained in 18 this. 19 You will notice, however, that when you go back in 20 that room to deliberate, none of them go with you. Nobody 21 knows what you do back there. We all assume that ordinary 22 citizens will follow the law and do what is required to do. 23 And that's not that amazing, because the idea of democracy is 24 the idea that ordinary people are capable of extraordinary 25 acts. 7193 1 You could go back there and arm wrestle or pitch 2 pennies and we wouldn't know, and we assume that you're not. 3 And I say that so that you understand -- I think you do, but I 4 want you to really appreciate some day how different it is to 5 live in this country and how powerful a citizen is supposed to 6 be and how there's nothing wrong with assuming that a citizen 7 is more powerful than the government, because we are. 8 Now, once you have determined the aggravators and the 9 mitigators and you have determined that the aggravators exist 10 beyond a reasonable doubt, unanimously, you have decided which 11 mitigators exist by a preponderance -- and it doesn't have to 12 be unanimously, now, first -- you then have to decide whether 13 or not the aggravators outweigh the mitigators. Yes. 14 Now, that means are you convinced that when you look 15 at these aggravators and you look at these mitigators, are you 16 convinced that this case is so unique and that these 17 aggravators are so strong that they're outweighed, they 18 outweigh their mitigators. If you say no, if you say I don't 19 think the government has alleged everything they should, I 20 think based on the facts we have in this case the impact of 21 these aggravators has been lessened, if you find that, it 22 stops. If you find that the aggravators do not outweigh the 23 mitigators, it stops. 24 Then, however, if you do, then you find that death is 25 available and then you have to determine whether or not death 7194 1 is the appropriate sentence -- whether death is the 2 appropriate sentence. That's the law. That's what the judge 3 will tell you. 4 The question is, appropriate to what? And no one 5 tells you that. Appropriate to what? Appropriate to the 6 magnitude of the suffering that has been sustained by these 7 victims? No suffering you can do to the defendant would do 8 that. It couldn't happen. You have victims who are suffering 9 a loss the defendant never even knew existed because he hadn't 10 even lived through that yet. So that can't be it. 11 Appropriate to what? Appropriate to the best 12 interests of society and to the world at large? I would 13 submit, yes. 14 Back up for a second. The government says that one 15 of reasons you should kill the defendant is that he has a lack 16 of remorse. If you think you are doing what's right or you 17 think you're doing what's necessary, even if you're wrong, you 18 don't have a lack of remorse. And I would also hesitate to 19 show you this, going back, when Madeleine Albright was on that 20 tape on 60 Minutes and she sat there and said, we know; in 21 response to the death of 500,000 children: We know. We think 22 the price is worth it. Does she think she was right? Yes. 23 Does she show remorse for the death of one-half million 24 children? No. 25 And Mr. Clark said what's going on over there is 7195 1 freely discussed every day. Not just in the Arab world, but 2 in Europe. People talk about the impact of these sanctions. 3 Do you see remorse? And the answer is no. Is he correct not 4 to be remorseful? Maybe not. And perhaps in the next 50 or 5 60 days he will come to understand what he did. 6 But based on the numbers that you have heard from the 7 tapes and from Mr. Clark, 250 children are dying every day. 8 That's one child every ten minutes since 1991, and that 9 doesn't include the old people and the diabetics and the 10 people with terminal illnesses. Since yesterday, when I saw 11 you last, 250 children have died. Now, how long should he 12 wait before he tries to do something? I don't know. 13 Appropriate to what? 14 I would suggest that you consider this in your 15 deliberations: By using my verdict to kill, if I decide I 16 want to sign that paper, if I want to have this young man put 17 to death, if I wish to become a killer -- and by the way, 18 that's what it is. People say you're not being a killer, 19 you're executing. That's different. 20 What's the difference between killing and executing? 21 Well, "executing" means it's approved by the government. It's 22 state-sanctioned. That makes it okay. Well, I will tell you 23 that if state sanctions makes killing okay, I want you to know 24 that the Holocaust was state-sanctioned. 25 So killing, because the state says it's okay, is 7196 1 still killing. But if you wish to use your verdict to take 2 another life, what is your verdict accomplishing? That 3 determines whether or not it's appropriate, what is your 4 verdict going to accomplish? 5 Now, you can't consider factors that are not alleged 6 in the list of aggravators, statutory or non-statutory, by the 7 government, and they haven't listed any. What are you going 8 to pull off by becoming killers? What kind of message are we 9 going to send in? 10 And that's the question, because asking to kill 11 somebody when there is no message, or just because you're 12 angry or just because you want these people to feel better -- 13 and by the way, when someone has hurt you badly, when someone 14 has hurt you, you feel that if you can hurt them back, you 15 will feel better. But when you get gray hair like I have, you 16 know that's not true. You think your pain turns into anger, 17 your anger turns into hate, and you realize if I can hurt the 18 person I hate, my sorrow will go away. And it won't. And it 19 won't. 20 And by the way, another victim, another victim that 21 no one talks about that Mr. al-'Owhali generated are all those 22 people who look at what he did and now hate; people who say, 23 look what Mohamed Al-'Owhali did. I hate them. The last tape 24 you saw, that little child holding the AK-47, 25 rat-tat-tat-tat-tat, rat-tat-tat-tat-tat, is he learning hate? 7197 1 We're making people hate more with this killing. 2 Now, I'm fortunate in this case. I'm fortunate and 3 Mr. Cohn and my co-counsel, we're fortunate, because we get to 4 come in here and argue for life. We get to argue for peace. 5 We get to argue for reconciliation. No one else does. If you 6 vote to kill, the judge has to sign the order, period. He has 7 to. So he will sign a death order. The only people who can 8 walk out of here without killing anybody is counsel. Well, 9 you could if you vote the wrong way -- if you vote the way I 10 think you should. 11 I can tell you that by arguing against violence, by 12 arguing against killing, because I'm opposed to it, I'm 13 opposed to it in this case, I'm opposed to it always, anybody 14 can kill. 15 THE COURT: Personal views of counsel are irrelevant. 16 MR. BAUGH: You're right. 17 Anybody can kill. It's easy. It's amazingly easy 18 sometimes. Sometimes it's harder to live with it afterwards, 19 but not all the time. Anybody can kill. 20 What is appropriate? Is it appropriate that we make 21 another martyr? Please notice, I'm not going through all 22 these mitigators, because I think you will concede that the 23 majority of them, I mean, he did learn this stuff at a young 24 age. And he was told by Bin Laden that, you know, those 25 places are spy shops, and you did see the model and you saw 7198 1 the photographs of the embassy and you saw antennas on top of 2 it. And so if you thought it was a spy shop, you're getting 3 evidence that it is, so both mitigators are there, no problem. 4 I'm not talking about those, though. I'm assuming you have 5 already found that. 6 What is the appropriate sentence? Remember that when 7 I sit down, by the way, Mr. Fitzgerald gets the last word. He 8 does. I don't get to say anything in rebuttal to it. But 9 what is most appropriate? Now, of course we could say, well, 10 it's appropriate to the victims that they get justice. What 11 is the difference between justice and revenge? I'm serious. 12 When you go back there ask that question, because they can't 13 be the same thing. What is the difference between justice and 14 revenge, because that's the decision you are going to have to 15 make because each of you is going to have to decide whether or 16 not to kill somebody. 17 So we make another martyr. But I will tell you this, 18 that if you believe that death is the appropriate sentence, if 19 you are convinced of that, putting emotion aside, if you are 20 convinced of that, then you have sworn an oath to consider 21 death. You haven't said you will give it, because you can 22 refuse to give death no matter what, but you have said you 23 will consider it. 24 But if you have a reasonable doubt as to the 25 appropriateness of death, if you have a only doubt, remember 7199 1 that, if you are not convinced beyond a reasonable doubt that 2 death is what must happen in this case, you cannot vote for 3 death without violating your oath. 4 I hope that each of you here appreciate the 5 opportunity you have been given. I can't overly emphasize 6 that. In determining what is appropriate, whenever your 7 verdict comes back, there could be headlines that 8 Mr. al-'Owhali got the death penalty. And there also could be 9 headlines that Americans returned a life sentence. And I 10 would trust -- and if you have a question about it, I would 11 suggest you add it in your mitigators -- that if that were 12 your verdict, it would be a prayer for peace. 13 Too many people have died. Now, can I guarantee or 14 can anyone guarantee that it will have any impact on stopping 15 this killing? Probably not. But can it hurt? Could it 16 possibly change one mind that thinks that America is 17 indifferent to the suffering of those people? Yes. Could it 18 make the mother of that child in the video with the AK-47 say: 19 Look at this, son. The Americans didn't kill. It might 20 change. 21 When you have to make difficult decisions, sometimes 22 you have to divorce yourself from the emotion, the anger, the 23 passion. And some people say, well, you can't do that, but 24 yes, you can. There are people who do. There are people who 25 make decisions based on the facts and upon the law every day. 7200 1 I know that sometimes if you don't know what to do, 2 one of the good reasons about having heroes is if you don't 3 know what to do, you think about what your hero would do. Oh, 4 there are lots of heroes. I mean, there's Martin Luther King. 5 I think he was a hero. I think Gandhi was a hero. I think 6 Jesus was a hero. I do. I think the Pope -- I'm not even 7 Catholic. I think the Pope is a hero. 8 I think "Pee Wee" Reese is a hero. "Pee Wee" Reese 9 was a man, a Southerner, who said that he wanted Jackie 10 Robinson on his team. That's bold. He stood up against his 11 friends and said this is right. That's a hero. A hero is 12 somebody who goes against their friends to do what's right. 13 That's a hero. 14 And you say, what would your hero do? Are heroes 15 capable of feeling the sorrow and suffering of the victims? 16 Yes, they are. But what would your hero do? If you did not 17 have the weakness that all of us have of sorrow, anger, 18 hatred, if you were one of those people, what would your hero 19 do? Seriously, in this situation, what would your hero do in 20 this situation, making the decision you have to make as 21 individuals? 22 It's going to be hard for you to make the decision, 23 and it should be, because just as you have the benefit of 24 being citizens and just as you have the presumption of being 25 able to fulfill those obligations as a citizen, you also have 7201 1 a duty; and the duty is to make hard decisions. And as a 2 citizen, that's a sacrifice we must all make. 3 When you go back there, if you -- now, I don't want 4 you to think that I am appealing to your sense of sympathy or 5 I'm trying -- and I'm not. I am not, because I don't think I 6 can take the situation in Iraq and overcome this. And beside 7 that, it would be wrong. You know, I'm not going to show you 8 any more pictures. None. 9 I want you to base this decision, I want you to 10 contemplate the decision with seriousness. Anytime there's a 11 death case, it's serious, but this case is probably more 12 serious. In fact, to a certain extent -- and I may pay for 13 this statement one day -- in many ways the verdict in this 14 case is more important than my client. The ramifications go 15 way beyond him and way beyond this courthouse. Literally, you 16 have the power to speak to the world, and you're not even 17 elected. You don't have to worry about getting reelected. 18 It may be hard. It will be hard. We know that. I 19 think you can do it. Why do I think you can do it? Because 20 I'm getting old. We've all been doing this a long time. 21 Jurors are remarkable people. You ask any lawyer, any lawyer, 22 criminal lawyer, they will tell you jurors are remarkable. 23 We know that you were back there deliberating. We 24 sat out here waiting for your every word. We knew that you 25 would come out of that room. You all looked whipped. You all 7202 1 did. I assume you weren't back there running; you were 2 working back there in a very orderly and logical manner. And 3 believe me, it is a appreciated. No one in this case thinks 4 for a moment that you are running slipshod over anyone's 5 rights. You have always, everything we have seen -- and I'm 6 not just talking for the defense now. I mean, even the 7 prosecution has commented. And that's wonderful. It means 8 the system works. 9 It feels funny to argue to give my client a sentence 10 of life in a room until he dies, and that's what we're asking 11 for -- not on emotion, but on good logic. What is 12 appropriate, appropriate to what? Appropriate to what? And 13 what's the answer? I don't know. I've given you some 14 suggestions, but you have to come up with it. 15 Give me just one second. 16 (Pause) 17 MR. BAUGH: To a certain extent, I envy you, your 18 role. To a certain extent, I pity you. But I have every 19 confidence, and I'm sure everyone else in this courtroom does 20 as well, that when you go back there to deliberate, each of 21 you, individually, will give these issues the consideration 22 they deserve. And no matter what your verdict is, everyone 23 will know that you really worked at it, and you should take 24 pride in that. Other than that, I can think of no better 25 group of people to make this decision. 7203 1 Thank you. 2 THE COURT: Thank you, Mr. Baugh. 3 We'll break for lunch. Remember you have not heard 4 the government's rebuttal and the Court's charge, so please 5 refrain from discussing the case. 6 (Jury not present) 7 THE COURT: We'll have the revised charge and the 8 special verdict form on your table when you return. There is 9 only one item as to which an objection was raised, and I said 10 we would deal with it when we had the text in front of us. 11 MR. BAUGH: Yes, your Honor, the issue was the -- 12 Oh, you know what it is. Okay. 13 THE COURT: You will find it on page 26. The way it 14 will read is -- and you will have it before you, but things 15 are moving a little faster than I anticipated. I don't object 16 to that. It says: "The law contemplates that different 17 factors may be given different weights or values by different 18 jurors. Thus, you may find that one mitigating factor 19 outweighs all aggravating factors combined, or that the 20 aggravating factors proved do not, standing alone, justify 21 imposition of a sentence of death beyond a reasonable doubt. 22 Similarly, you may instead find that a single aggravating 23 factor sufficiently outweighs, beyond a reasonable doubt, all 24 mitigating factors combined so as to justify a sentence of 25 death." 7204 1 MR. GARCIA: No objection, Judge. 2 MR. BAUGH: That's fine. 3 THE COURT: You have another issue? 4 MR. FITZGERALD: Yes, your Honor. I just wanted to 5 note on the record the government's objection to some of the 6 things that were said during Mr. Baugh's summation. 7 Even though we inquired last week whether or not 8 Mr. Baugh would do any personal vouching, he vouched for 9 certain things, including his own view of the death penalty. 10 He repeatedly asked the jurors or called the jurors, in 11 essence, killers if they voted for the death penalty. 12 I think he played games with your Honor's ruling 13 yesterday that the Jones decision would be respected and the 14 jurors would not be told that if one juror voted the other 15 way, what would happen. And in addition, he blatantly talked 16 about safety of the courtroom after it was agreed that we 17 would not prove up the incident in the courtroom. 18 He didn't try to argue that he's been engaged in good 19 conduct since he was arrested, and yet he stood up in front of 20 jury and argued, where is the proof that he ever engaged in 21 bad conduct, and at the same time he turned around and said, 22 "Is anyone in the courtroom afraid of this man?" when we all 23 know it's been hidden from the jury; he's been chained to the 24 table. And I still would not say people were not afraid of 25 him. I think that was blatantly improper. 7205 1 MR. BAUGH: Your Honor, I have sat next to this man, 2 and I have my associate sitting next to him, and there has 3 never, ever been anything and there's not a problem. That's 4 what I'm talking about. 5 THE COURT: You know what? 6 MR. BAUGH: Yes, your Honor. 7 THE COURT: Officer Pepe probably could make the same 8 comment about Mr. Salim. 9 Now, just one moment. 10 MR. BAUGH: I'm not making any comment about officer 11 Pepe. 12 THE COURT: Just one moment. 13 With respect to counsel's stating his personal views 14 on the death penalty, I did -- 15 MR. BAUGH: I apologize. When I said I'm opposed to 16 violence, I -- 17 THE COURT: No, that's not what you said. You said 18 you oppose the death penalty. It was improper and you made 19 the comment. 20 With respect to your comments about the defendant's 21 good conduct in the proceedings and in the courtroom, in fact, 22 the defendant is shackled. In fact, we spent hours and hours 23 making clear what the consequence of any misconduct would be. 24 MR. BAUGH: Yes, your Honor. 25 THE COURT: And the government's objection is, I 7206 1 think, well-taken. Being well-taken, however, I don't believe 2 that any worthwhile purpose would be served by any further 3 statement to the jury. 4 Is the government seeking some further statement by 5 the Court? 6 MR. FITZGERALD: Not from the Court. 7 MR. BAUGH: Your Honor, there is one -- 8 THE COURT: Meaning what? 9 MR. FITZGERALD: I think it is appropriate for the 10 government to say "you have no evidence whatsoever either way 11 what people think of whether or not he's dangerous." He has 12 vouched that the marshals in this courtroom do not think he is 13 dangerous, misleading the jury. I'm not going to comment, 14 obviously, on the -- 15 MR. BAUGH: I would like the record to be read back. 16 THE COURT: You want the record read back? That's 17 easy enough. 18 (Record read) 19 MR. FITZGERALD: Obviously the defendant is someone 20 who, in a prior proceeding, interfered with a marshal in the 21 jury box when Mr. El Hage ran across the courtroom on an 22 occasion and so the fact is that he is shackled to the table. 23 THE COURT: Well, you know what I could do is I could 24 strike those remarks, but I don't know that that really -- 25 MR. FITZGERALD: Your Honor, I think the fair 7207 1 response is for the government to point out "and you have 2 heard no testimony about what people think about whether he's 3 dangerous or not and weigh that with -- 4 THE COURT: What does that mean, "what people think 5 about" -- 6 MR. FITZGERALD: He said no one in the courtroom is 7 afraid of his safety. He argued that to the jury. There is 8 no evidence one way or the other. 9 THE COURT: I don't think that's clear. I don't 10 think the thrust of that is -- 11 MR. FITZGERALD: Judge, we have a situation where 12 someone asked us to refrain from offering the courtroom 13 incident. We haven't put in, obviously, the shackles. Then 14 he takes advantage of that to argue to the jury that 15 Mr. al-'Owhali has behaved well in court, when he knows that 16 to be wrong, and we withheld proof on that basis. 17 He knows that he's shackled to the table. He now 18 wants to make the argument to the jury, leaves them with the 19 impression that he has been a good, model defendant in the 20 courtroom, and then simply have it withdrawn. 21 I think that the appropriate measure is for the 22 government to argue to the jury, to the extent that anyone 23 would want you to believe that no one is afraid of him and 24 he's had good conduct, that he could have called someone on 25 the preponderance of the evidence standard. They didn't. 7208 1 They just disregarded that. 2 THE COURT: You see, you get into problems of casting 3 a burden on the defendant. I think it was an improper 4 comment. I think it was an improper comment. I think it was 5 in violation of the understandings that previously existed. 6 I'm going to instruct the jury that those remarks are 7 stricken and that they are to disregard them. 8 MR. BAUGH: Your Honor, then we have this one last 9 issue: The Officer Pepe statement you just made. 10 THE COURT: Yes. 11 MR. BAUGH: It is obvious that the Officer Pepe 12 incident is still a problem in relation to this defendant, 13 and -- 14 THE COURT: No. Let me make that statement clear. 15 What you were saying was you have been sitting next to your 16 client and that you have no fear of your client because he has 17 not in any way indicated any animosity toward you. You are 18 not afraid that, if he had an opportunity, he would not seize 19 you and use you as a hostage to achieve some other object. 20 Fine. But what I'm just saying is that, at the same time, you 21 have made arguments to the Court that, or arguments have been 22 made to the Court that Officer Pepe suffered his grievous 23 injuries because he was too lax and he didn't handcuff the 24 inmate and so on. 25 MR. BAUGH: Excuse me, your Honor. I cannot sit here 7209 1 and allow you to put false statements in my mouth. I have 2 never said that. 3 THE COURT: I certainly don't do that intentionally. 4 MR. BAUGH: Thank you. Well, you did. 5 THE COURT: Yes. 6 MR. BAUGH: We filed a Brady request asking what 7 those circumstances were and you denied it. I have never said 8 that, because the broad brush you paint this young man with 9 because he's Arab, and the people who attacked Officer Pepe 10 were, is improper. 11 THE COURT: Now, Mr. Baugh? 12 MR. BAUGH: Yes, sir. 13 THE COURT: Do not accuse me of being a racist, 14 because there is no justification for that, and for you to say 15 that I reach any conclusion because a defendant is an Arab is 16 unspeakable. 17 MR. BAUGH: Your Honor, to me, it is not unspeakable 18 and I don't mind saying it. If it offended you, well -- 19 However, we are concerned about it. And with that 20 Officer Pepe statement you just made, it just came up again, 21 and that is my concern. And I would ask the Court to try 22 everything it can to view this as Mr. al-'Owhali and base your 23 determinations of on what he is entitled to on what he is 24 doing in here. 25 THE COURT: When the jury returns at 2:15, I will 7210 1 strike the comments made with respect to the defendant's 2 demeanor in the courtroom and incarceration. 3 We're adjourned until 2:15. 4 (Luncheon recess) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7211 1 A F T E R N O O N S E S S I O N 2 2:15 p.m. 3 (In open court; jury present) 4 THE COURT: Good afternoon. We're now at the stage 5 in the proceeding where the government is permitted to make a 6 rebuttal argument. Mr. Fitzgerald. 7 MR. FITZGERALD: Thank you, Judge. 8 THE COURT: Before he does that, ladies and 9 gentlemen, during the closing arguments made on behalf of the 10 defendant Al-'Owahli reference was made with respect to the 11 subject of future dangerousness to his behavior while he was 12 in custody and in the courtroom, and those remarks are 13 stricken from the record. 14 MR. FITZGERALD: Thank you, Judge. 15 Good afternoon. In dealing with the most serious 16 question you could imagine, the question of the appropriate 17 punishment, I suggest to you that Mr. Baugh took three tacks 18 this afternoon or this morning with you. First, he tried to 19 distract you from the real issue. Second, he tried to blame 20 other people for the situation that Al-'Owahli has put 21 everyone in, and, third, I submit he was inviting you not to 22 follow your sworn oath to follow the law and vote for or 23 against the death penalty if the circumstances justify it. 24 Let's talk about the distraction. The main 25 distraction Mr. Baugh pointed to was Iraq, and what is 7212 1 happening in Iraq with the embargo and the food for oil 2 program and the sanctions. Let us talk about what that issue 3 is and what it is not. 4 What it is is a serious issue that ought to be 5 addressed in the appropriate forum, in the United Nations in 6 the congresses, in the legislatures of countries they should 7 bring forward the people with those points of view to explain 8 why they think there should be no embargo or why some of the 9 embargo should be lifted. They should bring forward those 10 other people with a different point of view who are worried 11 about the countervailing interests, the poison gases, 12 biological weapons, chemical weapons, nuclear weapons, what 13 we've done to the Kurds and Iraq and treat the issue 14 seriously. No one is taking that lightly. But that issue has 15 nothing to do with the issue of what is the just punishment 16 for the crime that Al-'Owahli committed on August 7th, 1998. 17 In fact, if you recall al-'Owhali's statement he 18 mentioned nothing about the embargo, nothing about the food 19 for oil program. 20 The other distraction is to talk about someone who 21 wrote a report about water treatment and predicted what the 22 consequences would be if things did not change. The report 23 does not advocate destroying water treatment plants. It talks 24 about what will happen if nothing is done. Distract by 25 focusing on Madeline Albright brief question and answer and 7213 1 accuse her of genocide. Blame the CIA for the fighting in 2 Afghanistan. No showing Al-'Owahli was ever trained by anyone 3 from the CIA. Al-'Owahli went a decade later to Afghanistan 4 for training. No showing that the CIA trained people how to 5 blow up embassies. 6 What I submit to you, America's actions are not on 7 trial here. We are on trial here because this man committed a 8 crime. This man made a cold blooded calculated decision to 9 kill 213 people and felt no remorse about it. And when you're 10 in a courtroom and you realize that the law says that some 11 murders are so horrible, some crimes are so evil that the 12 death penalty is justified, when you look and you compare this 13 person convicted of murder to all of those other murderers, 14 that David Baugh told you about, who do it for greed or 15 something like that, and you recognize that the thought that 16 comes to mind is if there is a law that says that some crimes 17 deserve a death penalty, if not this case, then when? And 18 when you realize that you seek to distract. 19 Think about this. In trying to numb all of us to the 20 pain that al-'Owahli caused, Al-'Owahli can't point to another 21 human being committing a crime. He has to assert war crimes 22 by nations, war crimes on such a scale that he alleges nations 23 carried them out in order to have a comparison to the awful 24 things he did, mass slaughter. 25 Mr. Baugh talked to you about hypocrisy. Hypocrisy 7214 1 is handing up a copy of the Geneva Convention on behalf of a 2 defendant who committed genocide by truck. What I submit to 3 you is you learned something about Iraq. Keep that with you, 4 but Iraq does not have to do with this defendant's motivation. 5 What we have to focus on is the circumstance of this crime. 6 Other distractions, bring up the opposite. Bring up 7 Martin Luther King and Pee Wee Reese, hide behind them. Well, 8 what do you your heroes do? You're asked to think what your 9 heroes would do in the jury room. Your heroes, he or she 10 would stand up at the beginning of the trial, during jury 11 selection and say, can I follow my oath? Can I vote for or 12 against the death penalty as appropriate? And the hero would 13 say, if I can, I'll tell the Judge yes, and I'll follow 14 through. And that's what we ask you to do, follow your oath. 15 You've been told here that Al-'Owahli is a youth. 16 Well, he had a free will, he had a choice, he made a decision, 17 he sought out a mission, he made sure that in his role he got 18 to do a violent mission and kill people. He didn't want to 19 wash cars or clean the tables at a training camp. He traveled 20 internationally to carry out that mission. He saw what was 21 going to happen and carried out the bombing. 22 You've heard he used a stun grenade. There is no 23 fragmentation. I submit to you the stun grenade was to get 24 the guard away to get it closer to the embassy, closer to the 25 building. If he wanted to scare away Kenyans why not yell out 7215 1 bomb, run for your life, bomb. The only person's life that he 2 sought to protect when he ran was his. 3 Mr. Baugh told you that everybody has a good reason 4 to kill. The only person's reasons to kill who is on trial 5 here is Mr. Al-'Owahli. He had no good reason. He had no 6 reason to put Teresia Rungu in a wheelchair he. Had no reason 7 to blind Ellen Bomer. He had no reason to kill Julian Bartley 8 or his son or some of the other people. And that's what this 9 trial is about. 10 Remember one thing when you focus on justice in this 11 case. The one thing that's clear, this defendant is clearly 12 guilty. The evidence was overwhelming, he admitted it. You 13 are looking at a person who is so guilty, and what Mr. Baugh 14 tells you is, well, if he's sent for life imprisonment think 15 about it, sixty years times 365 days. And I submit to you 16 think 60 years times 365 days times three eight hour shifts 17 for all the guards who have to guard him for those 60 years, 18 for all the guards who are going to have to guard someone who 19 hates America so much he kills with no remorse, for all the 20 guards who will be viewed from his eyes as the enemy, for all 21 the guards he thinks should die. Sixty times 365 times 24, 22 times 3. You have to get through all those shifts to make 23 sure that an innocent man, a guard, does not die. 24 You heard reference to the fact that he wished to be 25 a martyr. Now I think for a moment, well, if he wanted to be 7216 1 a martyr although he ran away, you give him what he wants or 2 what he doesn't want. Let me make a suggestion. Give him no 3 vote. He killed 213 people. You do justice for the crime he 4 committed, and for the victims he killed, so mercilessly. 5 And also remember something; we talk about the word 6 revenge. Mr. Baugh would like you to think that a sentence of 7 death is revenge and let's stop the killing. Revenge is when 8 you kill someone else for something that someone around them 9 did. Retribution is legitimate. 213 people had their lives 10 snuffed out. All their family lives around them were ruined. 11 The four thousand injured, included maimed, blinded, crippled 12 people who have to deal with life. Their lives are ruined. 13 There are two 213 people who never lived another day 14 after that bombing. Mr. Al'-Owahli being sentenced to death 15 he'll be given a sentence no worse than a sentence he imposed 16 on 213 people without any sense of due process, without any 17 right, without any decency. 18 You've been told that if you vote for death you want 19 to be a killer, and I submit to you by saying that no one 20 wants to be a killer. No one is asked to be a killer. We are 21 sitting here in a system of law that says some crimes are so 22 horrible, some murders are so egregious, sometimes the cause 23 is so great, the person should face the death penalty and you 24 agreed to fairly weigh that, and if you fairly weigh that in 25 this case with this crime committed, I submit to you that the 7217 1 only punishment that does justice for the victims is the death 2 penalty. The person who is responsible for Al-'Owahli's death 3 is Al-'Owahli. He knew what he was doing. He had a free 4 choice, and he went ahead and did it, and don't let anyone put 5 that weight on you. 6 When you look at the mitigating factors and you see 7 discussion of other persons more culpable or equally culpable 8 not facing death, think about the persons who have no 9 culpability, Nathan Algana, buried beneath the rubble and they 10 all face death and they had no choice. Mr. Baugh said to you 11 you have to think at the end as to what is appropriate, and 12 then he said, appropriate as to what? I submit to you your 13 verdict should be appropriate as to the law, as to justice, 14 and to your oath, an oath you gave and you can vote for or 15 against the death penalty. 16 Let's be frank. It's not easy to ask you to vote for 17 the death penalty. It's not easy to vote for the death 18 penalty. No one claims it is. It's extremely hard. It 19 should be hard. Thank God it's hard. But sometimes in life 20 the hard things are what you have to do. Sometimes the hard 21 things are difficult, but the answer is clear. I submit to 22 you when you go in the jury room bring in a sense of 23 Al-'Owahli, bring in a sense of the prison guards, and bring 24 in a sense of the victims, and when you look at al-'Owahli 25 recognize that he's the one who put himself here. He had a 7218 1 free mind, he had a free will, he had a choice. He made that 2 choice. He killed. He must be held accountable. 3 Think about the prison guards who will have to guard 4 him for those 60 times 365 times eight, times three, and don't 5 tell them he's small. Don't tell Ellen Bomer he's small. 6 Don't tell Howard Kavaler's children he's small, because if he 7 proved anything in this case, he proved that small people 8 kill. 9 Think about the victims. We submit to you the single 10 most important factor in this case are those victims. What 11 they went through, their pain, their loss, and their 12 suffering. We won't show you any pictures, videotapes. You 13 know what they said. You know what they said and you saw the 14 pain, and Mrs. Bartley who lost a husband and a son. The 15 pride, the carriage of Teresia Rungu to wheel herself in here 16 with so much dignity after what was done to her. For the 17 people, the hundred bodies, people who died beneath the 18 rubble, from Mordecai Thomas Onuno who carries around that 19 anniversary card, because that's all that he has left to hold 20 on to. For Clara Aliganga who has nothing to hold on to, no 21 Nathan, because Al-'Owahli decided to steal all these people 22 from their loved ones to kill them brutally. 23 I submit to you when you look at the law, the law 24 that says certain crimes are evil enough to deserve the death 25 penalty, if ever there is a crime, it's this one, the brutal 7219 1 murder of 213 people. 2 I ask you to follow your oath. I ask you to remember 3 that the only justice that can be done for the victims of this 4 case, the only sentence that fits the horrible crime is a 5 sentence of death. It's not easy to say that. It's not easy 6 to vote for it, but I submit you must. 7 Thank you. 8 THE COURT: Thank you, Mr. Fitzgerald. We'll take a 9 very brief recess. 10 (Recess) 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7220 1 (Jury not present) 2 THE COURT: Mr. Cohn. 3 MR. COHN: Your Honor, I wish to object to certain 4 portions of the government's rebuttal which I believe was not 5 responsive to the argument of Mr. Baugh, which I realize is 6 somewhat generalized, but most particular I am concerned with 7 his notion the jury should punish the crime instead of 8 Mr. Al-'Owahli. He said, this is a crime that cries out for 9 punishment essentially. I mean I'm paraphrasing in essence 10 the last few minutes. That's not the test. 11 The test is whether or not this person has committed 12 crime with all the aggravators and mitigators, if the 13 aggravates substantially outweigh the mitigators it is 14 deserving of the death penalty. I don't suggest he should 15 have said this that way, that is somewhat dry, but for him 16 just to invoke the crime itself which is naturally horrendous 17 and the mere commission of does not warrant the death penalty 18 substantially misstates the law, and essentially it is a cry 19 for legalism, and I object to it and ask the Court for a 20 curative instruction. 21 THE COURT: What would you suggest by way of curative 22 instruction? 23 MR. COHN: Well, I don't know, your Honor. I always 24 from time to time I'm not always sure the cure isn't worse 25 than the disease. 7221 1 THE COURT: I think the argument was a fair argument, 2 that the salient factor in the jury's consideration was the 3 magnitude of the impact on the victims and I think that was -- 4 MR. COHN: And although I disagree and reserve for 5 another forum the amount of the impact that could have been 6 impressed on the jury that's not my argument. I made it to 7 you. My argument here is he said this is a crime, if no other 8 crime calls out for this penalty, this is the one, and I think 9 that that ignores and calls for the jury to ignore a whole 10 host of other factors which this Court has been very careful 11 to impress on them in the charge that you are about to 12 deliver. 13 And I think quite frankly, your Honor, the respect 14 they have for Mr. Fitzgerald and his work in this case 15 obfuscates the issue and needs some redress. What it is I 16 can't say I'm smart enough to say in ten seconds, but if you 17 give me a few seconds I'll think about it, if you're inclined 18 to do something. If you're not inclined to do something, then 19 I shouldn't waste what little gray power I have left. 20 THE COURT: Mr. Fitzgerald. 21 MR. FITZGERALD: The arguments made by Mr. Baugh 22 about world events, in any event, I think we're about to give 23 the jury the explanation of the law. I did not misstate the 24 law. In fact, I think I hewed to it quite closely, certainly 25 by comparison. 7222 1 THE COURT: I don't think any action by the Court is 2 appropriate. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7223 1 (Jury present) 2 THE COURT: Ladies and gentlemen, you will find on 3 your seats a few documents. Two documents are the Court's 4 instructions to you with respect to the law to be applied at 5 this phase of the case, and the special verdict form that you 6 are to complete. The envelope contains a certificate that 7 you're each to sign with your own name and then seal, and I'll 8 talk about that later. 9 Again, as was the case with the guilt phase, I have 10 given you a written copy of my remarks and I will deliver them 11 orally, and it is for you to decide whether you wish to read 12 along or just listen, or read along for a while and then just 13 listen. It is whatever you feel most comfortable. 14 Members of the jury, it is now my duty to instruct 15 you as to the law applicable to the sentencing phase of this 16 case. As I mentioned to you in my preliminary remarks, the 17 sole question presently before you is whether Mohammed Rashed 18 Daoud Al-'Owahli should be sentenced for his capital offenses 19 to either (1) the death penalty or (2) life imprisonment 20 without the possibility of release. 21 The selection between these two very serious choices 22 is yours and yours alone to make. If you determine as to a 23 particular count that Mr. Al-'Owahli should be sentenced to 24 death, or instead to life imprisonment without the possibility 25 of release, the Court is required to impose whichever sentence 7224 1 you choose as to that count. There is no parole in the 2 federal system. 3 Remember that you have previously found 4 Mr. Al-'Owahli guilty of the following capital counts in the 5 indictment, all of which -- and I interrupt to say you should 6 have with you in the jury room copies of the indictment, 7 copies of the charge with respect to the guilt phase. 8 You have previously found Mr. Al-'Owahli guilty of 9 the following capital counts in the indictment all of which 10 arise out of the August 7, 1998 bombing of the United States 11 Embassy in Nairobi Kenya: 12 Counts 5, 7, 9 through 221, 233 through 273, 278 and 13 279. Even though there are a total of 258 capital counts at 14 issue here, you must still approach the sentencing decision 15 before you separately as to each count and, of course, with an 16 open mind. I cannot stress to you enough the importance of 17 your giving careful and thorough consideration to all the 18 evidence. And regardless of any opinion you may have as to 19 what the law may be, or should be, it would be a violation of 20 your oaths as jurors to base your sentencing decision upon any 21 view of the law other than that which is given to you in these 22 instructions. 23 Some of the legal principles that you must apply to 24 your sentencing decision duplicate those you followed in 25 reaching your verdict as to guilt or innocence. Others are 7225 1 different. The instructions I am giving you now are a 2 complete set of instructions on the law applicable to the 3 sentencing decision. I have prepared them to ensure that you 4 are clear in your duties at this important stage of the case. 5 I have also prepared, as before, a special verdict form that 6 you must complete. The form, by detailing the special 7 findings you must make, will aid you in properly performing 8 your deliberative duties. 9 Now, although Congress has left it wholly to you, the 10 jury, to decide Mr. Al-'Owhali's proper punishment, it has 11 narrowed and channeled your discretion in specific ways, 12 particularly by making you consider and weigh any aggravating 13 and mitigating factors present in this case. 14 As I explained previously, these factors have to do 15 with the circumstances of the crime, or the personal traits, 16 character, or background of Mr. Al-'Owahli, or anything else 17 relevant to the sentencing decision. Aggravating factors are 18 those that would tend to support imposition of the death 19 penalty. By contrast, mitigating factors are those that 20 suggest that life in prison without the possibility of release 21 is an appropriate sentence in this case. 22 Of course, your task is not simply to decide what 23 aggravating and mitigating factors exist here, if any. 24 Rather, you are called upon to evaluate any such factors and 25 to make a unique, individualized choice between the death 7226 1 penalty and life in prison without the possibility of release. 2 In short, the law does not assume that every 3 defendant found guilty of committing murder should be 4 sentenced to death. Nor does the law presume that 5 Mr. Al-'Owahli, in particular, should be sentenced to death. 6 Rather, your decision on the question of punishment is a 7 uniquely personal judgment which the law, in the final 8 analysis, leaves up to each of you. 9 As to the burden of proof. The government, at all 10 times and as to all of the capital counts, has the burden of 11 proving beyond a reasonable doubt that the appropriate 12 sentence for Mr. Al-'Owahli is in fact the death penalty. 13 Specifically, that means that the government must prove as to 14 each capital count all of the following beyond a reasonable 15 doubt: 16 (1). The existence of at least one gateway 17 factor,(2); the existence of at least one statutory 18 aggravating factor; (3) the existence, if any, of nonstatutory 19 aggravating factors, and (4), that all the aggravating factors 20 found to exist sufficiently outweigh all the mitigating 21 factors found to exist as to make a sentence of death 22 appropriate, or, in the absence of any mitigating factor, that 23 the aggravating factors found to exist alone make a sentence 24 of death appropriate. 25 A reasonable doubt is a doubt based upon reason and 7227 1 common sense after careful and impartial consideration of all 2 the evidence. 3 Proof beyond a reasonable doubt must be proof of such 4 a convincing character that a reasonable person would rely and 5 act upon it without hesitation in the most important matters 6 of his or her own affairs. Yet proof beyond a reasonable 7 doubt does not mean proof beyond all possible doubt. 8 A defendant never has the burden of disproving the 9 existence of anything which the government must prove beyond a 10 reasonable doubt. The burden is wholly upon the government, 11 the law does not at all require Mr. Al-'Owahli to produce 12 evidence that a particular aggravating factor does not exist 13 or that death is not an appropriate sentence. 14 As such, Mr. Al-'Owahli is not required to assert or 15 establish any mitigating factors, however, if one or more 16 mitigating factors are asserted, it is Mr. Al-'Owhali's burden 17 to establish any mitigating factors by a preponderance of the 18 evidence. 19 To prove something by a preponderance of the evidence 20 is to prove it by a lesser standard of proof than proof beyond 21 a reasonable doubt. To prove something by a preponderance of 22 the evidence is to prove that it is more likely true than not 23 true. It is determined by considering all of the evidence and 24 deciding what of the evidence is more believable. If, 25 however, the evidence is equally balanced, you cannot find 7228 1 that the mitigating factor has been proved. 2 The preponderance of the evidence is not determined 3 by the greater number of witnesses or exhibits presented by 4 the government or the defendant. Rather, it is the quality 5 and persuasiveness of the information which controls. 6 In making all the determinations you are required to 7 make in this phase of the trial, you may consider any evidence 8 that was presented during the guilt phase as well as 9 information that was presented at this sentencing phase. 10 You may thus consider the testimony, exhibits and 11 stipulations offered by both sides during the guilt phase; the 12 parties were not required to re-offer that evidence. However, 13 you may not consider any evidence from the guilt phase that 14 was received solely against someone other than Mr. Al-'Owahli. 15 In deciding what the facts are, you may have to 16 decide what testimony you believe and what testimony you do 17 not believe. You may believe all of what a witness said, or 18 part of it or none of it. In deciding what testimony of any 19 witness to believe, consider the witness' intelligence, the 20 opportunity the witness had to see or hear the things 21 testified about, the witness' memory, any motives that witness 22 may have for testifying a certain way, the manner of the 23 witness while testifying, whether that witness said something 24 different at an earlier time, the general reasonableness of 25 the testimony, and the extent to which the testimony is 7229 1 consistent with other evidence that you believe. 2 Also, recall that for our purposes here the terms 3 "evidence" and "information" have the same meaning. 4 Mr. Al-'Owahli did not testify in this case. There 5 is, however, no burden upon Mr. Al-'Owahli to prove that he 6 should not be sentenced to death. Instead, the burden is 7 entirely on the prosecution to prove, beyond a reasonable 8 doubt, that a sentence of death is in fact justified. 9 Accordingly, that Mr. Al-'Owahli did not testify must not be 10 considered by you in any way, or even discussed, in arriving 11 at your sentencing decision. 12 You must deliberate and determine the appropriate 13 sentence for each of the capital counts separately. Although 14 I will be discussing the capital counts as a group, your 15 findings regarding gateway factors, aggravating factors, and 16 all other issues pertaining to these counts must treat each of 17 these counts separately. 18 It is possible that even though all of the counts are 19 connected with the bombing of the Nairobi embassy, you may 20 find differences which would justify different sentencing on 21 different counts. 22 The instructions I am about to give you, as well as 23 the special verdict form you will be completing, will first 24 address your findings, if any, regarding the four so-called 25 gateway factors, and the statutory aggravating factors 7230 1 identified by the government with regard to each capital 2 count. 3 The instructions and the Special Verdict Form 4 thereafter address your finding, if any, as to each capital 5 count regarding the existence of nonstatutory aggravating 6 factors and mitigating factors as well as the weighing of 7 aggravating and mitigating factors. 8 With respect to gateway factors. Before you may 9 consider the imposition of the death penalty for any capital 10 count, you must first unanimously find, beyond a reasonable 11 doubt, the existence as to that count of at least one of the 12 four gateway factors identified by the government. The 13 gateway factors are as follows: 14 1. That the defendant intentionally killed the 15 victim or victims of the particular capital offense charged in 16 the respective count of the indictment, or. 17 2. That the defendant intentionally inflicted 18 serious bodily injury that resulted in the death of the victim 19 or victims of the particular capital offense charged in the 20 respective count of the indictment, or. 21 3. That the defendant intentionally participated in 22 an act, contemplating that the life of a person would be taken 23 or intending that lethal force would be used in connection 24 with a person, other than one of the participants in the 25 offense, and the victim or victims of the particular capital 7231 1 offense charged in the respective count of the indictment died 2 as a direct result of the act, or. 3 4. That the defendant intentionally and specifically 4 engaged in an act of violence, knowing that the act created a 5 grave risk of death to a person, other than one of the 6 participants in the offense, such that participation in the 7 act constituted a reckless disregard for human life and the 8 victim or victims of the particular capital offense charged in 9 the respective count of the indictment died as a direct result 10 of the act. 11 Your findings as to whether the government has proven 12 the existence, beyond a reasonable doubt, of a particular 13 factor from among these four gateway factors must be separate 14 and unanimous as to each capital count. 15 And with regard to your findings, you may not rely 16 solely upon your first-stage verdict of guilt or your factual 17 determinations therein. Instead, you must now decide each 18 issue for yourselves again. 19 Any finding that a gateway factor has been proven as 20 to a particular count must be based on Mr. Al-'Owhali's 21 personal actions and intent. Intent or knowledge may be 22 proven like anything else. You may consider any statements 23 made and acts done by Mr. Al-'Owahli, and all the facts and 24 circumstances in evidence which may aid in a determination of 25 Mr. Al-'Owhali's knowledge or intent. You may, but are not 7232 1 required to, infer that a person intends the natural and 2 probable consequences of acts knowingly done or knowingly 3 omitted. 4 In the event that you unanimously find, beyond a 5 reasonable doubt, that a particular gateway factor exists as 6 to all the capital counts, you are to indicate that finding on 7 the appropriate line in Section I, Part A of the Special 8 Verdict Form. 9 In the event that you unanimously find, beyond a 10 reasonable doubt, that a particular gateway factor exists as 11 to some but not all of the capital counts, you are to indicate 12 that finding on the appropriate line in Section I, Part A of 13 the Special Verdict Form, and also identify on the line 14 provided, by count number, the specific capital counts as to 15 which you find that gateway factor applies. 16 If you do not unanimously find that a particular 17 gateway factor has been proved beyond a reasonable doubt with 18 respect to any of the capital counts you should mark the 19 appropriate space in Section I, Part A. 20 I instruct you that any gateway factor found by you 21 to exist is not an aggravating factor and may not be weighed 22 by you in deciding whether or not to impose a sentence of 23 death. 24 For any capital count, if you do not unanimously find 25 that the government has proven beyond a reasonable doubt the 7233 1 existence as to that count of any of the four gateway factors, 2 your deliberative task as to that capital count will be over 3 and the Court will impose a mandatory sentence on that count 4 of life imprisonment without possibility of release. 5 Section I, Part B of the Special Verdict Form 6 provides a space for you to indicate those counts, if any, for 7 which you have not unanimously found that the government has 8 proven beyond a reasonable doubt the existence of any gateway 9 factor. 10 Let's now turn to 1 of the Special Verdict Form. 11 As used in this section the term "capital counts" 12 refers to Counts Five, Seven, 9 through 221, 233 through 273, 13 278, and 279. 14 Please indicate which, if any, of the following 15 gateway factors you unanimously find that the government has 16 proven beyond a reasonable doubt. For each of the four 17 gateway factors listed in Part A below, you must mark one of 18 the responses. Then it lists. Part A. 1. That the 19 defendant intentionally killed the victim or victims of the 20 particular count that you are considering. 21 The choices there are we unanimously find that this 22 factor has been proved beyond a reasonable doubt with regard 23 to all of the capital counts. 24 If you so find you would indicate there. Then it 25 says: We unanimously find that this factor has been proven 7234 1 beyond a reasonable doubt with regard to the following capital 2 counts only. In which case you would identify which of the 3 capital counts that you see listed on the first two lines on 4 that page as to which you have found the factor has been 5 proven beyond a reasonable doubt. 6 The third choice is: We do not unanimously find that 7 this factor has been proven beyond a reasonable doubt with 8 regard to any of the capital counts. 9 And then the form continues in that format with 10 respect to the second, third, and fourth, and it tells you in 11 Part B, after reviewing your finding in Section I, Part A, 12 please identify by count number those capital counts, if any, 13 for which you have not unanimously found that the government 14 has proven beyond a reasonable doubt the existence of any 15 gateway factor. 16 We tell you at the bottom: For each capital count if 17 you did not unanimously find that the government has proven 18 beyond a reasonable doubt at least one of the above gateway 19 factors with respect to that count, then your deliberations 20 are over as to that count. That is to say, you are not to 21 consider in Section II or thereafter on through Section VI any 22 of the counts that are specified above in Section I, Part B. 23 In other words, a gateway is a threshhold. Unless that 24 threshhold is crossed by you unanimously finding one gateway 25 factor applying to that count, consideration with respect to 7235 1 that count is over. 2 If there is no capital count for which you 3 unanimously find the gateway factor has been proven beyond a 4 reasonable doubt, skip forward to Section VI, and complete 5 that Section in accordance with the directions there. Then 6 notify the Court you have completed your deliberations. If 7 you found at least one gateway factor with regard to one or 8 more capital counts, continue on to Section II. 9 We return to charge itself on page 10 and we deal 10 with statutory aggravating factors. 11 If and only if you unanimously find that the 12 government has proven beyond a reasonable doubt that at least 13 one of the four gateway factors exists as to a particular 14 capital count, you must then proceed to determine whether the 15 government has proven beyond a reasonable doubt the existence 16 of any of the following four statutory aggravating factors 17 with respect to that count. 18 1. The deaths, and injuries resulting in death, 19 occurred during the commission or attempted commission of 20 another offense, namely one of the following offenses listed 21 under Title 18, United States Code, Section. Then it lists 22 them. 23 2. The defendant in the commission of the offense 24 knowingly created a grave risk of death to one or more persons 25 in addition to the victims of the offense. 7236 1 3. The defendant committed the offense after 2 substantial planning and premeditation to cause the death of 3 one or more persons or to commit an act of terrorism. 4 4. The defendant intentionally killed or attempted 5 to kill more than one person in a single episode. 6 At this point the law directs you to consider and 7 decide, separately as to each of the capital counts for which 8 you have unanimously found the existence of at least one 9 gateway factor, the existence or nonexistence of the statutory 10 aggravating factors specifically claimed by the government. 11 You are reminded that to find the existence of a 12 statutory aggravating factor as to a particular count, your 13 decision must be unanimous and beyond a reasonable doubt. Any 14 finding that one or more of these factors has been proven must 15 be based on Mr. Al-'Owhali's personal actions and intent. 16 In the event that you unanimously find beyond a 17 reasonable doubt that a particular statutory aggravating 18 factor exists as to all the capital counts for which you have 19 found the existence of at least one gateway factor, you are to 20 indicate that finding on the appropriate line in Section II, 21 Part A of the Special Verdict Form. 22 In the event that you unanimously find beyond a 23 reasonable doubt that a particular statutory aggravating 24 factor exists as to some but not all of the capital counts for 25 which you have found the existence of at least one gateway 7237 1 factor, you are to indicate that finding on the appropriate 2 line in Section II, Part A of the Special Verdict Form, and 3 also identify on the line provided by count number, the 4 particular counts as to which you find the statutory 5 aggravating factor applies. 6 If you do not unanimously find that a particular 7 statutory aggravating factor has been proved beyond a 8 reasonable doubt with respect to any of the capital counts you 9 are considering you should mark the appropriate space in 10 Section II, Part A of the Special Verdict Form. 11 For any capital count for which you unanimously find 12 the existence at least one gateway factor, if you do not also 13 unanimously find as to that same count the existence of at 14 least one statutory aggravating factor, then your deliberative 15 task as to that count will be over and the Court will impose a 16 mandatory sentence on that count of life imprisonment without 17 the possibility of release. 18 Section II, Part B of the Special Verdict Form 19 provides a space for you to indicate those counts, if any, for 20 which you have not unanimously found that the government has 21 proven beyond a reasonable doubt the existence of any 22 aggravating factor. 23 Let me now instruct you in detail on the specific 24 elements necessary for the government to prove each of those 25 four statutory aggravating factors beyond a reasonable doubt. 7238 1 As to death or injury resulting in death, during the 2 commission of another offense: 3 The first statutory aggravating factor alleged by the 4 government with regard to the various counts is that the 5 deaths or injuries resulting in death of the victim or victims 6 identified in a particular count occurred during the 7 commission of a crime other than the crime charged in that 8 particular count. Thus, as to each count, you must determine 9 if the victim or victims identified was killed during the 10 commission of certain other crimes, as those other crimes are 11 set forth in the Special Verdict Form. 12 Depending on the particular count the other crimes 13 alleged are one or more of the following offenses: 18 USC 14 Section 844(f), bombing of property leased to the United 15 States government; 18 USC, Section 1116, killing or attempted 16 killing of internationally protected persons. 18 USC, Section 17 2332, terrorist acts abroad against United States nationals, 18 and 18 USC, Section 2332a the use of a weapon of mass 19 destruction. 20 In order to prove that the deaths or injuries 21 resulting in death occurred during the commission of the 22 separate offense of bombing of property leased to the United 23 States government, in violation of 18 USC, Section 844(f), the 24 government must prove beyond a reasonable doubt exactly that, 25 the death or injury resulting in death of the victim or 7239 1 victims identified identification in the particular count 2 occurred during the commission of a violation of 18 USC, 3 Section 844(f). You have previously found that Mr. Al-'Owahli 4 violated 18 USC 844(f) as reflected in your guilty verdict on 5 Count 5. Accordingly, solely as to Count 5, you may not 6 consider the commission of the violation of 18 USC Section, 7 844(f) as "another crime." 8 In order to prove that the deaths or injuries 9 resulting in death occurred during the commission of separate 10 offenses of killing or attempted killing of internationally 11 protected persons, in violation of 18 USC, Section 1116, the 12 government must prove beyond a reasonable doubt exactly that, 13 that the death or injury resulting in death of one or more of 14 the victims of the Nairobi bombing occurred during the 15 commission of a violation of 18 USC, Section 1116. You have 16 previously found that Mr. Al-'Owahli violated 18 USC, Section 17 116 as reflected in your guilty verdicts on Counts 278, 279, 18 and 280. When you consider Counts 278 and 279, you may not 19 consider the commission of the violation of 18 USC, Section 20 116 as "another crime." 21 In order to prove that the death or injuries 22 resulting in death occurred during the commission of the 23 separate offense of terrorist acts abroad against United 24 States nationals in violation of 18 USC, Section 2332, the 25 government must prove beyond a reasonable doubt exactly that, 7240 1 that the death or injury resulting in death of one or more of 2 the victims of the Nairobi bombing occurred during the 3 commission of a violation of 18 USC, Section 2332. 4 You have previously found that Mr. Al-'Owahli 5 violated 18 USC, Section 2332, as reflected in your guilty 6 verdict on Count 1. 7 In order to prove that the deaths or injuries 8 resulting in death occurred during the commission of the 9 separate offense of use of a weapon of mass destruction 10 against United States nationals in violation of 18 USC, 2332a, 11 the government must prove beyond a reasonable doubt exactly 12 that the death or injury resulted in death of one or more of 13 the victims of the Nairobi bombing occurred during the 14 commission or a violation of 18 USC, Section 2332a. 15 You have previously found that Mr. Al-'Owahli 16 violated 18 USC, Section 2332aas reflected in your guilty 17 verdict on Count 7. Accordingly, solely as to Count 7, you 18 may not consider the commission of the violation of 18 US v. 19 2332a as another crime. 20 For each of the capital counts you are considering, 21 in order to find that the government has satisfied its burden 22 of proving beyond a reasonable doubt that the deaths or 23 injuries resulting in death of the victims of the Nairobi 24 bombing occurred during the commission of one or more of these 25 other offenses, you must unanimously agree on which other 7241 1 offenses were committed by Mr. Al-'Owahli. Your finding as to 2 this statutory aggravating factor must be indicated in the 3 appropriate space in Section II, Part A.1 of the Special 4 Verdict Form. 5 The Special Verdict Form, page 5 with respect to 6 statutory aggravating factors spells this out again and 7 reminded you as to which of the counts you may not consider 8 particular crimes. 9 After you've done that, it tells you in the 10 directions on page 8, for each of the capital counts you are 11 considering in this section if you do not unanimously find 12 that the government has proven beyond a reasonable doubt that 13 at least one of the above statutory aggravating factors with 14 respect to that count, then your deliberations are over as to 15 that capital count. 16 In other words, you are not to consider in Section 17 III or thereafter until Section VI, any of the counts you have 18 specified in Section II, Part B. If there is no capital count 19 which you unanimously find that at least one statutory 20 aggravating factor has been proven beyond a reasonable doubt 21 skip forward to Section VI and complete that Section in 22 accordance with the directions there. Notify the Court you 23 have completed your deliberations. 24 If you found one or more statutory aggravating 25 factors with regard to one or more capital counts continue on 7242 1 to Section III. 2 In other words, deviating from there first the 3 gateway and you must find to warrant further consideration 4 with respect to a particular count that at least one gateway 5 factor has been proven. Then with respect to those counts as 6 to which you find that one gateway factor has been proven you 7 must also find one statutory aggravating factor has been 8 proven. If you have found both the gateway factor and the 9 statutory factor as to that count, then you proceed. If you 10 have not found at least one gateway factor and at least one 11 statutory aggravating factor then your deliberations with 12 respect to that count are closed. 13 (Continued on the next page) 14 15 16 17 18 19 20 21 22 23 24 25 7243 1 THE COURT: (Continuing) Turning, then, to the second 2 statutory aggravating factors -- I'm on page 14, if you are 3 following me: 4 The second statutory aggravating factor alleged by 5 the government with regard to the capital counts is that, in 6 the commission of the particular offenses, the defendant 7 knowingly created a grave risk of death to one or more persons 8 in addition to the deceased victim or victims identified in 9 the particular capital count. 10 To establish the existence of this factor, the 11 government must prove beyond a reasonable doubt that 12 Mr. al-'Owhali, in committing the offense described in the 13 capital count you are considering, knowingly created a grave 14 risk of death to one or more persons in addition to the 15 deceased victim or victims identified in the particular count. 16 "Knowingly" creating such a risk means that 17 Mr. al-'Owhali was conscious and aware that his conduct in the 18 course of committing the offense might have this result. 19 Mr. al-'Owhali's conduct cannot merely have been the product 20 of ignorance, mistake or accident. Knowledge must be proved 21 like anything else. You may consider any statements made and 22 acts done by Mr. al-'Owhali, and all the facts and 23 circumstances in evidence which may aid you in the 24 determination of Mr. al-'Owhali's knowledge. 25 "Grave risk of death" means a significant and 7244 1 considerable possibility that another person might be killed. 2 In order to find that the government has proven this factor 3 beyond a reasonable doubt, you must unanimously agree on a 4 particular person or a class of persons who were placed in 5 danger by Mr. al-'Owhali's actions. 6 "Persons in addition to the victims" include innocent 7 bystanders in the zone of danger created by the defendant's 8 acts, but do not include other participants in the offense. 9 Your finding as to this statutory aggravating factor 10 must be indicated in the appropriate space in Section II, Part 11 A.2 of the Special Verdict Form. 12 The third statutory aggravating factor alleged by the 13 government with regard to the capital counts is that the 14 defendant committed the offenses under the particular counts 15 after substantial planning and premeditation to cause the 16 death of a person or to commit an act of terrorism. 17 "Planning" means mentally formulating a method for 18 doing something or achieving some end. 19 "Substantial planning and premeditation" means a 20 considerable or significant amount of planning and 21 premeditation. 22 An "act of terrorism" is an act calculated to 23 influence or affect the conduct of government by intimidation 24 or coercion, or to retaliate against government conduct. 25 I'm told I skipped premeditation, which I didn't 7245 1 premeditatively do that. 2 "Premeditation" means thinking or deliberating about 3 something and deciding whether to do it beforehand. 4 To find that the government has satisfied its burden 5 of proving beyond a reasonable doubt that Mr. al-'Owhali 6 engaged in substantial planning and premeditation either to 7 cause the death of a person or to commit an act of terrorism, 8 you must unanimously agree on the particular object of the 9 substantial planning and premeditation either to cause the 10 death of a person, to commit an act of terrorism, or to do 11 both. Your finding as to this statutory aggravating factor 12 must be indicated in the appropriate space in the Section II, 13 Part A.3 of the Special Verdict Form. 14 The fourth and final statutory aggravating factor 15 alleged by the government with regard to the capital counts is 16 that the defendant intentionally killed or attempted to kill 17 more than one person in a single criminal episode. 18 To establish the existence of this factor, the 19 government must prove beyond a reasonable doubt that 20 Mr. al-'Owhali intentionally killed or attempted to kill more 21 than one person in a single criminal episode. You must 22 unanimously agree on the particular actual or intended victims 23 or a class of intended victims in order to find that this 24 factor has been proved beyond a reasonable doubt. 25 "Intentionally killing" a person means killing a 7246 1 person on purpose, that is: Willfully, deliberately, or with 2 a conscious desire to cause a person's death (and not just 3 accidentally or involuntarily). 4 "Attempting to kill" a person means purposely doing 5 some act which constitutes a substantial step (beyond mere 6 preparation or planning) toward killing a person, and doing so 7 with the intent to cause a person's death. You may not find 8 that the defendant attempted to kill a person who was actually 9 killed. 10 "A single criminal episode" is an act or series of 11 related criminal acts which occur within a relatively limited 12 time and place, or are directed at the same person or persons, 13 or are part of a continuous course of conduct related in time, 14 place, or purpose. 15 You may, but are not required to, infer that a person 16 of sound mind intended the ordinary, natural, and probable 17 consequences of his knowing and voluntary acts. Thus, you may 18 infer from Mr. al-'Owhali's conduct that he intended to kill a 19 person if you find: (1) that Mr. al-'Owhali was a person of 20 sound mind; (2) that the victim's death was an ordinary, 21 natural, and probable consequence of Mr. al-'Owhali's acts 22 (even if the victim's death did not actually result, in the 23 case of an attempt); and (3) that Mr. al-'Owhali committed 24 these acts knowingly and voluntarily. But once again, you are 25 not required to make such an inference. Your finding as to 7247 1 this statutory aggravating factor must be indicated in the 2 appropriate space in Section II, Part A.4 of the Special 3 Verdict Form. 4 Finally, let me reiterate that if, with respect to 5 any capital count, you do not unanimously find that the 6 government has proven beyond a reasonable doubt at least one 7 statutory aggravating factor, your deliberations as to that 8 particular count are concluded. Please identify any such 9 counts in Section II, Part B of the Special Verdict Form. 10 If the requirements of the gateway factor and the 11 statutory aggravating factor are satisfied, that is, you have 12 found at least one of each with respect to the particular 13 count, you must then consider whether the government has 14 proven the existence of any non-statutory aggravating factor 15 with regard to that count. As before, you must agree 16 unanimously, and separately as to each count, that the 17 government has proven beyond a reasonable doubt the existence 18 of any of the alleged non-statutory aggravating factors. 19 The law permits you to consider and discuss only the 20 three non-statutory aggravating factors specifically claimed 21 by the government in advance and listed below. You are not 22 free to consider any other facts in aggravation that you may 23 conceive of on your own. 24 The non-statutory aggravating factors alleged by the 25 government with regard to each of the capital counts are as 7248 1 follows: 2 1. The defendant -- that is, Mr. al-'Owhali -- poses 3 a continuing and serious threat to the lives and safety of 4 others with whom he will come in contact. 5 2. As demonstrated by the deceased victims' personal 6 characteristics as individual human beings and the impact of 7 the deaths upon the deceased victims' families, the defendant 8 caused injury, harm, and loss to those victims and their 9 families, and the defendant caused serious physical and 10 emotional injury and grievous economic hardship to numerous 11 individuals who survived the bombing. 12 3. The victims and intended victims included 13 high-ranking public officials of the United States serving 14 abroad and the offense was motivated by such status. 15 These non-statutory aggravating factors are 16 self-explanatory and do not require substantive instruction. 17 Note that the non-statutory aggravating factor of future 18 dangerousness may only be considered by you in the context of 19 the mandatory life sentence without the possibility of release 20 that must be imposed by the Court if Mr. al-'Owhali is not 21 sentenced to death. 22 Again, your findings regarding these factors must be 23 separate and unanimous with regard to each count that you are 24 considering. You also must unanimously agree, beyond a 25 reasonable doubt, that the non-statutory aggravating factor 7249 1 alleged by the government is in fact aggravating. As I 2 mentioned at the beginning of the sentencing hearing, an 3 aggravating factor is a fact or circumstance that would tend 4 to support imposition of the death penalty. 5 In the event that you unanimously find, beyond a 6 reasonable doubt, that a particular non-statutory aggravating 7 factor applies to all of the capital counts for which you have 8 found at least one gateway factor and at least one statutory 9 aggravating factor, you are to indicate that finding on the 10 appropriate line in Section III of the Special Verdict Form. 11 In the event that you unanimously find that a particular 12 non-statutory aggravating factor applies to some but not all 13 of these counts, you are to indicate that finding on the 14 appropriate line in Section III of the Special Verdict Form, 15 and also identify on the line provided, by count number, the 16 particular counts as to which you find the non-statutory 17 aggravating factor applies. 18 If you do not unanimously find that a non-statutory 19 aggravating factor has been proven beyond a reasonable doubt 20 with regard to any capital count, you should so indicate in 21 Section III of the Special Verdict Form. 22 Unlike with gateway factors and statutory aggravating 23 factors, you are not required to find a non-statutory 24 aggravating factor with regard to a particular count before 25 you may consider the death penalty as the possible sentence 7250 1 for that count. Rather, the law only requires that before the 2 jury may consider an alleged non-statutory aggravating factor 3 in its sentencing decision as to any capital count, the jury 4 must first unanimously agree that the government has proven 5 beyond a reasonable doubt the existence of that factor as to 6 that count. 7 After you have completed your findings regarding the 8 existence or nonexistence of non-statutory aggravating 9 factors, you should proceed to Section IV of the Special 10 Verdict Form, to consider whether any mitigating factors 11 exist. 12 Before you may consider the appropriate punishment 13 for any of the capital counts for which you have unanimously 14 found the existence of at least one gateway factor and at 15 least one statutory aggravating factor, you must consider 16 whether Mr. al-'Owhali has proven the existence of any 17 mitigating factors with regard to those counts. A mitigating 18 factor is not offered to justify or excuse Mr. al-'Owhali's 19 conduct. Instead, a mitigating factor is a fact about 20 Mr. al-'Owhali's life or character, or about the circumstances 21 surrounding the particular capital offense, or anything else 22 relevant that would suggest, in fairness, that life in prison 23 without the possibility of release is the appropriate 24 punishment than a sentence -- is the more appropriate 25 punishment than a sentence of death. 7251 1 Unlike with aggravating factors, which you must 2 unanimously find proven beyond a reasonable doubt in order for 3 you even to consider them in your deliberations, the law does 4 not require unanimity with regard to mitigating factors. Any 5 one juror who is persuaded of the existence of a mitigating 6 factor must consider it in his or her sentencing decision. 7 Therefore, it is Mr. al-'Owhali's burden to establish 8 a mitigating factor -- furthermore, it is Mr. al-'Owhali's 9 burden to establish a mitigating factor only by a 10 preponderance of the evidence. This is a lesser standard of 11 proof under the law than proof beyond a reasonable doubt. A 12 factor is established by a preponderance of the evidence if 13 its existence is shown to be more likely so than not so. In 14 other words, a preponderance of the evidence means such 15 evidence as, when considered and compared with that opposed to 16 it, produces in your mind the belief that what is sought to be 17 established is, more likely than not, true. If, however, the 18 evidence is equally balanced, you cannot find that the factor 19 has been proved. 20 The following are the mitigating factors alleged by 21 Mr. al-'Owhali: 22 1. That other members of the conspiracy, previously 23 arrested or presently cooperating with the United States, 24 guilty of or charged with planning and facilitating the 25 bombings of the United States embassies and the killing of 7252 1 United States nationals will not be punished by death. 2 2. That Mr. al-'Owhali is less culpable than those 3 conspirators who planned and facilitated the bombing of the 4 United States Embassy in Nairobi, Kenya and continue to plan 5 and execute similar acts in the future. 6 3. That Mr. al-'Owhali does not have a prior history 7 of criminal conduct. 8 4. That, although having intentionally participated 9 in an act, contemplating that the lives of Americans be taken, 10 Mr. al-'Owhali did not intend that the Kenyan victims not 11 employed by the United States Embassy be injured or killed. 12 5. A. That Mr. al-'Owhali intended, by the 13 commission of the offenses of which he has been convicted, to 14 save members of his ummah, his religious community, regardless 15 of nationals, from imminent death, injury, terrorism and 16 genocide. 17 B. That Mr. al-'Owhali committed the offenses for 18 which he has been convicted based upon his sincere belief, 19 whether or not you agree with that belief, that his conduct 20 was mandated by his religion. 21 C. That Mr. al-'Owhali believed that the United 22 States embassies were legitimate military targets because he 23 had the sincere belief, as proposed by Usama Bin Laden, that 24 embassies fulfilled military and intelligence surveillance 25 functions which furthered the aims of the United States 7253 1 Government and opposed the aims and objectives of Usama Bin 2 Laden. 3 6. That Mr. al-'Owhali committed the offenses for 4 which he has been convicted while young in age; and 5 7. That Mr. al-'Owhali was indoctrinated in 6 conservative Muslim teachings which promoted jihad and 7 martyrdom during his early and formative years. 8 In Section IV of the Special Verdict Form, you are 9 asked to report the total number of jurors who individually 10 find a particular mitigating factor established by a 11 preponderance of the evidence. 12 Let me deviate. So the contrast, with respect to 13 aggravators, you must be unanimous. It must be beyond a 14 reasonable doubt. With respect to mitigators, you need not be 15 unanimous, and the standard of proof is a lesser proof of 16 preponderance of the evidence. 17 And this is repeated in the Special Verdict Form, and 18 the Special Verdict Form then asks that you indicate the 19 number of jurors who find a particular mitigating factor. If 20 you are unanimous, it would be 12. If one juror believes that 21 the mitigating factor has been proven by a preponderance of 22 the evidence, then the answer is one. Whatever the number is. 23 Additionally, the law permits each of you to consider 24 anything about the circumstances of the offense, or anything 25 about Mr. al-'Owhali's background, record, or character, or 7254 1 anything else relevant that you individually believe mitigates 2 against the imposition of the death penalty. As such, if 3 there are any mitigating factors not argued by the attorneys 4 for Mr. al-'Owhali but which any juror, in his or her own or 5 with others, finds to be established by a preponderance of the 6 evidence, that juror is free to consider it in his or her 7 sentencing determination. In Section IV of the Special 8 Verdict Form, you are to indicate any such additional 9 mitigating factors that one or more of you independently finds 10 to exist by a preponderance of the evidence. 11 And if you look at page 13 of the Special Verdict 12 Form, at the bottom it says, "The law does not limit your 13 consideration of mitigating factors to those that can be 14 articulated in advance. Therefore, you may consider during 15 your deliberations any other factor or factors in Mohamed 16 Rashed Daoud Al-'Owhali's background, record, character, or 17 any other circumstances of the offense that mitigate against 18 imposition of a death sentence. 19 "The following extra spaces are provided to write in 20 additional mitigating factors, if any, found by any one or 21 more jurors. If more space is needed, write 'continued' and 22 use the reverse side of this page." 23 And you will see there is a space for you to indicate 24 the nature of the additional mitigating factor which you have 25 found to be found, and the number of jurors who so find. 7255 1 After you have concluded your findings regarding the 2 existence or nonexistence of mitigating factors, you should 3 proceed to Section V of the Special Verdict Form, to weigh the 4 aggravating factors and mitigating factors with regard to each 5 of the counts for which you have unanimously found at least 6 one gateway factor and at least one statutory aggravating 7 factor. 8 Which brings us to the weighing of the aggravating 9 and mitigating factors. 10 If, and only if, you unanimously find, beyond a 11 reasonable doubt, that the government has proven the existence 12 of at least one gateway factor and at least one statutory 13 aggravating factor with regard to any capital count; and after 14 you then determine whether the government has proven beyond a 15 reasonable doubt the existence of any non-statutory 16 aggravating factors with regard to that count, and whether 17 Mr. al-'Owhali has proven by a preponderance of the evidence 18 the existence of any mitigating factors, you must then engage 19 in a weighing process with regard to that count. This 20 weighing process asks whether you are unanimously persuaded, 21 beyond a reasonable doubt, that the aggravating factors 22 sufficiently outweigh any mitigating factors -- or, in the 23 absence of any mitigating factors, that the aggravating 24 factors are themselves sufficient -- to call for a sentence of 25 death on the particular capital count you are considering. 7256 1 You are to conduct this weighing process separately 2 with regard to each of the capital counts for which you have 3 found at least one gateway factor and at least one statutory 4 aggravating factor. Each juror must individually decide 5 whether the facts and circumstances in this case, and as to 6 each count, call for death as the appropriate sentence. 7 In determining the appropriate sentence for the 8 capital count you are considering, all of you must 9 independently weigh the aggravating factor or factors that you 10 unanimously found to exist with regard to that count -- 11 whether statutory or non-statutory -- and each of you must 12 weigh any mitigating factors that you individually or with 13 others found to exist. You are not to weigh any of the four 14 gateway factors I mentioned previously as part of this 15 process. In engaging in the weighing process, you must avoid 16 any influence of passion, prejudice, or any other arbitrary 17 consideration. Your deliberations should be based upon the 18 evidence you have seen and heard, and the law on which I have 19 instructed you. 20 Again, whether or not the circumstances in this case 21 call for a sentence of death is a decision that the law leaves 22 entirely to you. Remember that all 12 jurors must agree 23 beyond a reasonable doubt that death is in fact the 24 appropriate sentence, but that no juror is ever required by 25 the law to impose a death sentence. The decision is yours as 7257 1 individuals to make. 2 The process of weighing aggravating and mitigating 3 factors in order to determine the proper punishment is by no 4 means a mechanical process. In other words, you should not 5 simply count the total number of aggravating and mitigating 6 factors and reach a decision based on which number is greater; 7 rather, you should consider the weight and value of each 8 factor. In carefully weighing these various factors, you are 9 called upon to make a unique individual judgment about the 10 sentence Mr. al-'Owhali should receive. 11 The law contemplates that different factors may be 12 given different weights or values by different jurors. Thus, 13 you may find that one mitigating factor outweighs all 14 aggravating factors combined, or that the aggravating factors 15 proved do not, standing alone, justify the imposition of a 16 sentence of death beyond a reasonable doubt. Similarly, you 17 may find that a single aggravating factor sufficiently 18 outweighs, beyond a reasonable doubt, all mitigating factors 19 combined so as to justify a sentence of death. 20 Each juror is individually to decide what weight or 21 value is to be given to a particular aggravating or mitigating 22 factor in the decision-making process. Bear in mind, however, 23 that in order to find that a sentence of death is appropriate 24 for a particular count, the jurors must be unanimous in their 25 conclusion, beyond a reasonable doubt, that the aggravating 7258 1 factor or factors proven as to that count sufficiently 2 outweigh any mitigating factors found -- or, in the absence of 3 any mitigating factors, that the aggravating factors alone are 4 sufficient -- to call for a sentence of death. 5 In the event that you do not unanimously find, beyond 6 a reasonable doubt, that the balancing process leads you to 7 the conclusion that a sentence of death is a called for as to 8 any of the capital counts, please indicate in Section V of the 9 Special Verdict Form. 10 For any capital count, if you unanimously find that 11 the government has failed to prove beyond a reasonable doubt 12 that death is the appropriate sentence for Mohamed Rashed 13 Daoud Al-'Owhali, the Court will then sentence Mr. al-'Owhali 14 on that count to life imprisonment without the possibility of 15 release. The Court has no other sentencing option. 16 In the event that you unanimously find, beyond a 17 reasonable doubt, that the balancing process leads you to the 18 conclusion that a sentence of death is called for as to all 19 the capital counts, please so indicate in Section V of the 20 Special Verdict Form. In the event that you unanimously find, 21 beyond a reasonable doubt, that the balancing process leads 22 you to the conclusion that a sentence of death is called for 23 as to some but not all the capital counts, so indicate in 24 Section V of the Special Verdict Form and also identify on the 25 line provided, by count number, the particular counts to which 7259 1 you unanimously impose the death sentence. 2 If you turn then to page 15 of the Special Verdict 3 Form, it says there are general directions for Section V. As 4 used in the section, the term "capital counts" refers only to 5 those counts for which you found one gateway factor in Section 6 I and at least one statutory aggravating factor in Section II. 7 You may not impose a sentence of death on a particular capital 8 count unless you have first found with regard to that count, 9 unanimously and beyond a reasonable doubt, one gateway factor 10 in Section I and at least one statutory aggravating factor in 11 Section II. 12 In this section, enter your determination of the 13 defendant's sentence with regard to each of the capital 14 counts. Your verdict as a jury must be unanimous with regard 15 to each question in this section. 16 After considering the information presented by both 17 sides during the penalty phase and individually balancing the 18 aggravating factors found to exist against the mitigating 19 factors found to exist, and then the first choice is: 20 "We, the jury, unanimously find that the government 21 has failed to prove beyond a reasonable doubt that death is 22 the appropriate sentence for defendant Mohamed Rashed Daoud 23 Al-'Owhali for any of the capital counts. We, therefore, 24 return a decision that Mohamed Rashed Daoud Al-'Owhali will be 25 sentenced to life imprisonment without the possibility of 7260 1 release, separately as to each count." 2 Or: "We, the jury, unanimously find beyond a 3 reasonable doubt, for all of the capital counts, that the 4 aggravating factor or factors found to exist sufficiently 5 outweigh the mitigating factor or factors found to exist -- 6 or, in the absence of any mitigating factors, that the 7 aggravating factor or factors are themselves sufficient -- so 8 that death is the appropriate sentence for defendant Mohamed 9 Rashed Daoud Al-'Owhali. We vote unanimously that Mohamed 10 Rashed Daoud Al-'Owhali shall be sentenced to death separately 11 as to each count. 12 Or: "We, the jury, unanimously find beyond a 13 reasonable doubt, for some of the capital counts, that the 14 aggravating factor or factors found to exist sufficiently 15 outweigh the mitigating factor or factors found to exist -- 16 or, in the absence of any mitigating factors, that the 17 activating factor or factors are themselves sufficient -- so 18 that death is the appropriate sentence for defendant Mohamed 19 Rashed Daoud Al-'Owhali with regard to each of the following 20 capital counts only." And then you are asked to identify each 21 count by count number. 22 And it says, "With regard to the above-listed capital 23 counts, we vote unanimously that Mohamed Rashed Daoud 24 Al-'Owhali shall be sentenced to death separately as to each 25 count. With regard to each of the remaining capital counts, 7261 1 we sentence the defendant to life imprisonment without the 2 possibility of release separately as to each count." 3 And each juror must sign his or her juror number 4 below, indicating that the above sentence determination 5 reflects the jurors' unanimous decision. And you sign there 6 by juror number. 7 Returning to the charge, I'm on page 29, if you are 8 following me: In your consideration of whether the death 9 sentence is appropriate, you must not consider the race, 10 color, religious beliefs, national origin, or sex of either 11 the defendant or the victims. You are not to return a 12 sentence of death unless you would return a sentence of death 13 for the crime in question without regard to the race, color, 14 religious beliefs, national origin, or sex of either the 15 defendant or any victim. 16 To emphasize the importance of this consideration, 17 Section VI of the Special Verdict Form contains a 18 certification statement. Each juror should carefully read the 19 statement, and sign your juror number in the appropriate place 20 if the statement accurately reflects the manner in which each 21 of you reached your individual decision. 22 And turning, then, to page 18, you see it says, "By 23 signing your juror number below, each of you individually 24 certifies that the consideration of the race, color, religious 25 beliefs, national origin, or sex of Mohamed Rashed Daoud 7262 1 Al-'Owhali or the victims was not involved in reaching your 2 individual decision. Each of you further certifies that you, 3 as an individual, would have made the same recommendation 4 regarding a sentence for the crime or crimes in question 5 regardless of the race, color, religious beliefs, national 6 origin, or sex of the defendant, or the victims." 7 And then on this form, on single copy on this form, 8 you each sign your juror number. Then, after you have 9 completed this form, you will each be given a new 10 certification, and that is the certification that is contained 11 in the brown envelope that you received and it has 12 certification, juror number, and an envelope which bears your 13 juror number on the outside. 14 Please sign that certificate using your real name, 15 place the certificate in the envelope, seal the envelope, and 16 when you render a verdict, give the envelope to the marshal. 17 And all of the certificates bearing your real name will be 18 kept by the court under seal. 19 I'm on page 30. Concluding Remarks: 20 I have now outlined for you the rules of law 21 applicable for your consideration of the death penalty and the 22 process by which you should determine the facts and weigh the 23 evidence, and in a few moments you will retire to the jury 24 room. 25 The importance of your deliberations should be 7263 1 obvious. I remind you that you can return a decision 2 sentencing Mr. al-'Owhali to death only if all 12 of you are 3 unanimously persuaded, beyond a reasonable doubt, that the 4 death sentence is in fact appropriate. 5 When you are in the jury room, please discuss all 6 aspects of these sentencing issues among yourselves with 7 candor and frankness, but also with a due regard and respect 8 for the opinions of one another. Each of you must decide this 9 question for yourself and not merely go along with the 10 conclusion of your fellow jurors. In the course of your 11 deliberations, no juror should surrender his or her 12 conscientious beliefs of what is the truth, of what is the 13 weight and the effect of the evidence, and what should be the 14 outcome as determined by that juror's individual conscience 15 and evaluation of the case. Remember that the parties and the 16 Court are relying upon you to give full consideration and 17 mature consideration to this sentencing. By so doing, you 18 carry out to the fullest your oath as jurors; that you will 19 well and truly try the issues of this case and a just result 20 render. 21 If it becomes necessary during your deliberations to 22 communicate with me for any reason, simply send me a note 23 signed by your foreperson. Do not attempt to communicate with 24 the Court or any other court personnel by any means other than 25 a signed writing. I will not communicate with any member of 7264 1 the jury on any subject touching on your sentencing decision 2 other than in writing or orally here in open court. 3 When you have reached a decision, send me a note 4 signed by your foreperson that you have reached a decision. 5 Do not indicate in the note what the decision is. In no 6 communication with the Court should you have give a numerical 7 count of where the jury stands in its deliberations. 8 Whichever decision you reach, please sign and fill 9 out the Special Verdict Form accordingly. The foreperson must 10 also be prepared to report to the Court your findings as to 11 the gateway, aggravating and mitigating factors, and then of 12 your sentencing decision. 13 Let me remind you again that nothing that I have said 14 in these instructions -- and nothing that I have said or done 15 during the trial -- has been said or done to suggest to you 16 what I think the outcome should be. What the sentencing 17 decision should be is your exclusive duty and responsibility. 18 I would ask of the jurors seated in the last row, do 19 you have any personal belongings in the robing room? Do you 20 have any personal belongings in the robing room? Would you go 21 now to the robing room and come back to court, bringing those 22 personal belongings. 23 Anything else from counsel? 24 MR. BAUGH: Nothing from the defense, your Honor. 25 THE COURT: All counsel said no. 7265 1 Please swear the marshal. 2 (Marshal sworn) 3 THE COURT: Ladies and gentlemen, you are experts in 4 the deliberation process, so I don't think I have to explain 5 at great length what that process is. I remind you what I 6 said last time you began to deliberate: That I feel like a 7 captain turning over the command of the ship to you. So if 8 you want to stay beyond 4:30, that's up to you. If you don't, 9 that's fine. 10 Tomorrow we adjourn at 3:00. Do you want to start at 11 9:30? You get here about that time in any event. I know that 12 the gentleman who had difficulty arriving at 9:30 is no longer 13 with us. Would you rather start at 9:30? You want to leave 14 it the way it is? 15 Just let us know or let the marshal know. We will 16 follow your instructions in that regard. Of course, if there 17 is anything you wish to see or anything you wish to have read 18 again, you just send us a note. We'll be in the courtroom 19 awaiting your instructions. And you may retire to the jury 20 room. 21 (The jury retires to deliberate upon a verdict at 22 4:00 p.m.) 23 THE COURT: It had been my intent to tell the 24 alternates that they are still on-call but that they will not 25 be called prior to the 18th. Is there any objection to that? 7266 1 I think that's so that people are not on tenterhooks. 2 MR. BAUGH: Are you going to give them the usual -- 3 THE COURT: Not to talk to anybody. 4 MR. BAUGH: -- publicity warning? I think it might 5 be -- between now and the 18th, I think it might be 6 particularly heavy. 7 THE COURT: Yes. 8 (Alternates present) 9 THE COURT: Ladies and gentlemen, I'm going to excuse 10 you now and just remind you what I said the last time you were 11 excused: That you are still on this jury. Therefore, you are 12 still to continue not to read or talk or listen to anything 13 with respect to this case or anything related to this case. 14 If anyone should seek to talk to you about the case and 15 persist, if you walk away, then let me know. I say that as a 16 matter of routine, not that I anticipate that it would happen. 17 And you will be on telephone call. I can tell you, 18 however, that you will not be called back before the 18th. So 19 you know that you are not on tap until that day. 20 Thank you very much for your patience and your 21 cooperation, and you are excused. 22 (Alternates excused) 23 THE COURT: I take it that if the jury asks for any 24 exhibits that were referred to, that they are available in a 25 form in which they can be sent. 7267 1 Let me ask another question. I'm merely asking it 2 for information because I don't know the answer, and that 3 relates to the timing of sentencing. For example, the 4 sentence, obviously, is going to be dictated by the verdict, 5 but there is a formal imposition of sentencing which has some 6 significance for timing and other purposes. 7 One possibility is not to actually impose the 8 sentence until the completion of the K.K. Mohamed proceedings, 9 so that those sentences would be on the same timetable for all 10 purposes. 11 Does anybody have any feeling as to (A) what is 12 legally required or (B) as to what would be appropriate here? 13 MR. COHN: I have actually given it some thought, 14 your Honor, and because of the ten-day jurisdictional 15 requirement in filing a notice of appeal, it seems to me that 16 we have got an extension on the Rule 33 filing for 90 days, 17 which I think is the 27th of July. It's in the order, 18 whatever it is. And I would suggest that sentence be 19 adjourned to that day or to the day of decision on those 20 motions. 21 In addition, one of the issues is whether or not, in 22 the case where the sentence is for death, there ought to be a 23 pre-sentence investigation report, which none of us has had 24 any experience, but maybe your Honor has -- 25 THE COURT: I know that the probation department has 7268 1 given that considerable thought. I think there is a 2 pre-sentence report prepared with respect to the other two 3 defendants, but not with respect to these defendants. My 4 preference would be to have one simply because a pre-sentence 5 report, many people don't realize, serves purposes other than 6 sentencing -- that it goes with the defendant to the BOP. 7 MR. COHN: That's my thought as well, your Honor. 8 Since many of the conditions and programs available in jail 9 are dependent on the report, or at least initially informed by 10 the report, it would be my feeling we ought to have one. 11 THE COURT: Your preference, then, is that if the 12 sentence is one other than death, that the Court order a 13 pre-sentence report, whether or not it is mandated, that the 14 Court ask the probation department to prepare one. 15 MR. COHN: That is my preference. We will then work 16 out the mechanics of how that works between myself and the 17 defense team and then the pre-sentence people. 18 THE COURT: Well, the statute says, 3593(c), 19 notwithstanding Rule 32(c) of the Federal Rules of Criminal 20 Procedure, when a defendant is found guilty or pleads guilty 21 to an offense under 3591, no pre-sentence report shall be 22 prepared. 23 MR. COHN: I guess that takes care of my thoughts. 24 THE COURT: I'm not sure just what that mandates in 25 terms of -- 7269 1 MR. COHN: It's something for us to think about 2 anyway. 3 THE COURT: All right. I suppose we ought to consult 4 further with the probation office. Does the government have 5 any feeling? Assuming that it would not be called a 6 pre-sentence report and but that they are willing to prepare 7 it despite the statute, does the government have any objection 8 to its preparation? You don't have to answer now. 9 MR. FITZGERALD: If we can think about it overnight. 10 THE COURT: Think about it overnight and perhaps talk 11 to the probation department. I think they were of the view 12 that they would follow the statute and would not prepare one, 13 but I didn't pursue with them the thought of what would occur 14 if the Court specifically requested it. 15 All right. Anything else? 16 MR. FITZGERALD: If I could just put one thing on the 17 record. Mr. Cohn asked to have a copy provided to him of 18 Government Exhibit 2002, which is the chart of names with some 19 pictures. 20 MR. COHN: We announced we got it. 21 MR. FITZGERALD: I just wanted to note on the record 22 for the record that same exhibit had been referred to by 23 Mr. Baugh in his opening and shown to the jury without 24 objection. 25 MR. BAUGH: So stipulated. 7270 1 MR. COHN: We have it, your Honor. 2 THE COURT: I think Mr. Cohn simply wanted it 3 recorded on the record. You wanted it recorded the exhibit 4 numbers of the photographs that were shown which were not 5 referred to by exhibits. 6 MR. COHN: And the government has given me a list and 7 we'll read it into the record at some appropriate time. 8 THE COURT: Anything else? 9 MR. FITZGERALD: No, thanks. 10 THE COURT: Okay. You remember what I previously 11 said the last time about presence in the courtroom, and we'll 12 await further instructions from the jury, which I would 13 anticipate will be that they would like to go home. 14 (Recess pending verdict) 15 16 (In open court; jury not present) 17 THE COURT: At approximately 4:15 the jury handed me 18 a note which reads: 19 The jury requests the individual copies of the book 20 regarding Islam if possible or if not possible exhibit DD, 21 copies of the chapters received in evidence. 22 What I suggest is we give them both, that is, the 23 book and exhibit DD, just stick exhibit DD in the book. Is 24 that agreeable? 25 MR. GARCIA: Yes, Judge. 7271 1 MR. BAUGH: Yes, your Honor. 2 THE COURT: Also, exhibit AA GG and HH. We don't 3 request these for today. Tomorrow will be fine. Lastly, also 4 Al-'Owahli exhibit U (re: Geneva Convention) Thank you. 5 The jury has left for the day, and so the first thing 6 tomorrow morning which will be 9:30, we'll send in these 7 exhibits to the jury. We're adjourned until that time. 8 (Adjourned to Wednesday, June 6, 2001, 9:30) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7272 1 DEFENDANT EXHIBITS 2 Exhibit No. Received 3 GG .........................................7138 4 HH .........................................7139 5 DD .........................................7139 6 GOVERNMENT EXHIBITS 7 Exhibit No. Received 8 2281 .......................................7145 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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