6 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 60 of the trial, June 6, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
7273 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 6, 2001 9:55 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 7274 1 (In open court) 2 THE COURT: Good morning. 3 The jury arrived at 9:15 this morning and the 4 exhibits that they requested yesterday, which have been 5 reviewed by counsel, were sent in at that time. 6 The Court received by hand delivery this morning a 7 letter dated June 6th from Mr. Ruhnke, moving on behalf of 8 Khalfan Khamis Mohamed that the present jury be discharged at 9 the conclusion of its penalty phase deliberations, and that a 10 new jury be selected to hear the penalty proceedings regarding 11 Khalfan Khamis Mohamed. 12 Mr. Ruhnke, this motion is made prior to any verdict 13 by this jury, and I take it this is independent of any verdict 14 by this jury. 15 MR. RUHNKE: That's right. The timing was, in 16 essence, deliberate, and we understand that -- 17 THE COURT: So that if this jury determines that the 18 death penalty should not be imposed, you would still have this 19 jury discharged? 20 MR. RUHNKE: Yes, your Honor. 21 THE COURT: And is there anything you want to add to 22 your letter? 23 MR. RUHNKE: The only thing I would add is this. 24 Someone reading this letter this morning said, "Is this 25 further evidence of making the observation that no good deed 7275 1 goes unpunished?" in the sense that your Honor had ordered 2 separate penalty phases on my urging and that of co-counsel. 3 As I stated in the letter, however, given the 4 powerful nature of the victim impact evidence in this case 5 that the jury has heard, had we had a joint penalty trial, we 6 would have moved for a severance at that point on the theory 7 that we don't think it is possible for a jury to 8 compartmentalize that evidence as to Mr. al-'Owhali and give 9 it no consideration as to Mr. Khalfan Mohamed. 10 THE COURT: I have not had any occasion to regret the 11 decision to sever the trial, because I do think that the 12 defendants are quite different and that positions, I think, 13 that are taken on behalf of Mr. al-'Owhali may or may not be 14 those invoked on behalf of K.K. Mohamed. 15 Is that a note from the jury? 16 THE COURT: A note from the jury says. "Because the 17 book 'Teach Yourself Islam' makes references to the Koran, the 18 jury requests a copy of the Koran in English, if possible. 19 Thank you." 20 Well, it is possible, but neither party has 21 introduced the Koran, and the Koran in English is not a very 22 simple document to read and it requires a great deal of 23 exposition. 24 What does counsel view as to the response? 25 MR. FITZGERALD: Your Honor, the government's view 7276 1 would be that the Koran should not be sent into the jury, both 2 it was not received as information at this proceeding and the 3 danger of confusing the jury and leading them astray is great. 4 The purpose of the book "Teaching Islam" or 5 "Understanding Islam" was to make those concepts in the Koran 6 that are relevant plain to the jury, and in fact, they 7 received more than was technically admitted at this phase and 8 I think that is the most that should happen. And to the 9 extent there are issues relevant to what they need to know, 10 they are set forth in that book. 11 MR. BAUGH: I would point out, your Honor, if it's 12 viewed as reference material, such as if the jury would ask 13 for a dictionary or something like that, something to help 14 them understand something else, then I assume -- it's never 15 come up directly -- but it would be sent back. 16 THE COURT: I'm not so sure that's a correct 17 assumption. 18 MR. BAUGH: No no. 19 THE COURT: In a trial I'm not sure that is a correct 20 assumption, and obviously we're not at a trial, we're at a 21 hearing for information. But the difference is that a 22 dictionary is written, an English dictionary is written for an 23 English-speaking reader and is directed to that reader. It 24 itself is explanatory. 25 The Koran is a far more complex and difficult 7277 1 document, and there are many versions and many scholars. And 2 the version of the Koran that I have been reading has three 3 lines of text and footnotes for the balance of the page on 4 virtually every page. 5 If there is no objection, I'm going to tell them that 6 it is not available to them. 7 MR. BAUGH: No objection from the defense. 8 MR. FITZGERALD: None here. 9 THE COURT: And I think without extensive exposition, 10 simply say -- 11 MR. COHN: If I may suggest, your Honor, that you say 12 that, so that we don't appear to be consciously depriving them 13 of an accurate state of the law, that we may not send back 14 anything that is not in evidence. 15 THE COURT: Except that we sent the full text of the 16 book. 17 MR. COHN: Pardon? 18 THE COURT: Except that we sent the full text of the 19 book. 20 We are not able to. How about "we are not able to 21 grant you..." 22 MR. COHN: Fine, your Honor. 23 And while we're doing that, there was a typographical 24 error in the text of the charge which I caught, and so that 25 the oral version was accurate. But since they don't have the 7278 1 oral version, it's on page 22, the last line, the first full 2 paragraph reads, "that life in prison without the possibility 3 of release is the a appropriate," and it should read "is the 4 more appropriate." 5 MR. COHN: I actually saw notes to that to prevent 6 problems that have occurred in the past. I agree that that is 7 a proper change that should be made. 8 THE COURT: Yes. We'll tell them that. 9 MR. COHN: Judge, just for the record while you read 10 the note, we would waive the presence of your client for that. 11 THE COURT: The record will so note. 12 So the note then reads: "We are unable to grant your 13 request for the Koran. 14 "Please correct a typographical error in the penalty 15 phase charge so that the last line of the first paragraph of 16 page 22 reads as follows: 'of release is the more appropriate 17 punishment than a sentence of death.'" 18 Very well, that can be given. The note can be given 19 to the marshal to be brought in to the jury. 20 MR. COHN: As a matter of information, does your 21 Honor have a Xerox, before we send that in, so that if they 22 are inadvertently lost by the jurors and, therefore, we don't 23 have a full record. 24 THE COURT: Yes. 25 Mr. Ruhnke, you were saying that you thought the 7279 1 impact of the testimony of the Kenyan victims -- 2 MR. RUHNKE: That it would be impossible, virtually 3 impossible or too difficult to run the risk, given what is at 4 stake, that a member of the jury or all the members of the 5 jury or some of the members of the jury would be unable to 6 follow an instruction from your Honor saying "you may not 7 consider that evidence in any way as to Khalfan Mohamed." 8 That's the basis for the motion. In terms of timing 9 of the motion, your Honor, we could have waited on it. We 10 could have waited to see what the jury does. We have not done 11 that. 12 THE COURT: Because, of course, if the jury votes 13 against the death penalty, that would be -- 14 MR. RUHNKE: That's right. 15 THE COURT: That would undermine the basic premise of 16 your motion. 17 MR. RUHNKE: Yes, your Honor. Yes, it will. If we 18 wait until -- 19 THE COURT: But you are a skilled advocate to say, "I 20 move for this relief if, but only if, the decision is 21 adverse." 22 MR. RUHNKE: Particularly that the moral thrust of 23 the motion would have been seriously undercut if we had waited 24 and a death verdict had been returned, then all of a sudden it 25 struck us as an epiphany that a jury could not 7280 1 compartmentalize that effort. So I'm not unaware of those 2 considerations. 3 THE COURT: What is the government's position? 4 MR. FITZGERALD: We oppose the application. I would 5 note, first of all, that we think the victim impact evidence 6 that was admitted was properly admitted. It was not of 7 excessive scope. 8 I think in the McVeigh decision they found that the 9 number of witnesses and the length of the presentation of 10 victim impact testimony was appropriate. 11 THE COURT: I don't think Mr. Ruhnke is challenging 12 that. He is saying, regardless of whether it was appropriate 13 or not, it's something which had an impact on the jury. 14 MR. FITZGERALD: And your Honor, in that regard, I 15 would point out that, first of all, by bifurcating the trial, 16 nothing could be clearer to this jury, when they come back to 17 listen to the K.K. Mohamed penalty phase, that it is not 18 admitted against K.K. Mohamed. At any time that they would 19 deliberate, it would likely be about three weeks after they 20 heard the testimony of the victims from Nairobi. 21 THE COURT: Is there going to be victim impact 22 testimony at the K.K. Mohamed trial? 23 MR. FITZGERALD: Yes, your Honor. 24 THE COURT: And it will be essentially of the same 25 nature as that with respect to the Kenyans? 7281 1 MR. FITZGERALD: Yes, your Honor. And it will make 2 it clear, obviously, that that is the victim impact they are 3 to consider with regard to K.K. Mohamed, and not the victims 4 of the Nairobi bombing, with which he is not charged and none 5 of which will be referenced at the penalty phase of K.K. 6 Mohamed. 7 MR. RUHNKE: Your Honor, I would quarrel with the 8 government's description of the upcoming victim impact 9 evidence in the K.K. Mohamed penalty phase as it is of the 10 same nature as has been presented here. Fortunately, there 11 were no injuries that even remotely approached the seriousness 12 of the injuries that occurred in Nairobi. 13 THE COURT: People died, right? 14 MR. RUHNKE: People died, your Honor, yes. 15 THE COURT: And the difference, the quantity is less, 16 fewer people died? 17 MR. RUHNKE: Yes, and fewer people were injured and 18 the injuries were -- 19 THE COURT: But the people who were killed and the 20 families of people killed and the impact on the persons who 21 were injured in Tanzania is comparable. 22 MR. RUHNKE: I agree. I agree that there will be 23 victim impact evidence. I don't agree that it is going to be 24 comparable, certainly not in the number of witnesses, 25 certainly not in the kind of injuries. 7282 1 THE COURT: Other than volume, how is it not going to 2 be comparable? 3 MR. RUHNKE: The nature of injuries of people who 4 were injured. There are no people who are blind. There are 5 no people in wheelchairs. 6 THE COURT: How many people were killed? 7 MR. FITZGERALD: Eleven. 8 THE COURT: Eleven people. 9 Anything else you want to tell me? 10 MR. RUHNKE: No, your Honor. 11 THE COURT: There are a number of factors here. 12 First of all, the jury selection process in this case was very 13 painstaking. It involved 1100 questionnaires being 14 distributed, 2 weeks of individual voir dire. It produced a 15 jury which, as I have already commented, by gender, 16 socioeconomic status and ethnicity, is a remarkable cross 17 section of the community. 18 This jury has demonstrated that it is not discharging 19 its task as a matter of reflexive response, but has 20 painstakingly reviewed the evidence as to guilt. The two 21 questions we have already received from the jury with respect 22 to the Al-'Owhali penalty phase would seem to suggest that it 23 will approach its task here as conscientiously and 24 deliberatively as it did in the guilt phase, and as one would 25 hope that it would do here. 7283 1 To discharge this jury would not only require the 2 additional time, effort of selecting a new jury, but would 3 require the presentation to a newly impaneled jury of all that 4 the present jury has already learned. Indeed, insofar as 5 victim impact is concerned, the government indicates that it 6 plans to call, as it has a right to do, witnesses with respect 7 to the victim impact of the Tanzania bombing. 8 The fact that 11 people were killed rather than over 9 200 is something which this jury will know, and the 10 significance of that numerical disparity is something which 11 can be argued to the jury. 12 The motion is denied. Thank you. 13 MR. COHN: Your Honor, may Mr. Baugh and I see you in 14 an ex parte conversation? Your Honor will then make a 15 judgment as to whether or not to disclose it to the 16 government. Something that's come up that has nothing to do 17 with anything that you heard in the courtroom. I just think 18 it's appropriate to put it on the record. 19 THE COURT: You want something put -- 20 MR. COHN: On the record. 21 THE COURT: On the record, but ex parte. 22 All right. Is Mr. Baugh here? 23 MR. BAUGH: Yes, sir. 24 (Pages 7284 through 7285 filed under seal) 25 (Recess pending verdict)
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