7 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 61 of the trial, June 7, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
7286 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 7, 2001 11:35 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 23 24 25 7287 1 (In open court) 2 THE COURT: Good morning. I take it you have all 3 seen the note from the jury. 4 (Jury note marked as Court Exhibit I of today's date) 5 MR. COHN: We have, your Honor. 6 THE COURT: Does somebody propose a reply? 7 MR. FITZGERALD: Yes, your Honor. I think we had 8 language both parties agreed upon to suggest to your Honor. 9 THE COURT: All right. May I hear it, please? 10 MR. FITZGERALD: With regard to the first question, 11 the regulations regarding the special administrative measures 12 were offered as a defense exhibit concerning the issue of 13 future dangerousness. 14 Their question had been, "Does future dangerousness 15 relate to the measures?" and I think the inverse is true, the 16 measures relate to the dangerousness. 17 THE COURT: Then it says, "Are they applied 18 automatically?" 19 MR. FITZGERALD: The next part of the answer would 20 be, in the event of a life sentence, special administrative 21 measures are not automatically applied. See the regulations. 22 And then the third part, "Is it intended as an 23 argument for the death penalty?," because "it" is unclear, the 24 proposed answer would say: The non-statutory aggravating 25 factor of future dangerousness is offered by the government as 7288 1 a factor in favor of imposing the death penalty. And then it 2 continue: The regulations concerning the special 3 administrative measures were offered by the defense to rebut 4 that aggravating factor. 5 THE COURT: All right. I have no problem with the 6 substance of that. I would like to try some other language. 7 Give me a moment. 8 (Pause) 9 THE COURT: I thought the answer called for a little 10 more of a background, and what I have written so far is: The 11 first non-statutory aggravating factor as to future 12 dangerousness relates to whether Al-'Owhali will be a threat 13 even though he will be sentenced to life imprisonment. 14 Al-'Owhali contends that he will be subject to rigorous 15 security measures (the special administrative measures) and 16 will not be a future threat. The government contends that, 17 despite these measures, Al-'Owhali will still be dangerous. 18 The special administrative measures are not applied 19 automatically, but in accordance with their provisions. 20 Whether or not Al-'Owhali will pose a continuing and serious 21 threat while incarcerated is the issue for you to determine. 22 MR. COHN: Your Honor, on some reflection, it seems 23 to me that what is missing from that and what was offered 24 before is that the preamble should say, "The government seeks 25 to prove that he is a future danger." The way we are 7289 1 answering the question seems to presume that it has been 2 proven. 3 THE COURT: I have no problem with that. 4 MR. FITZGERALD: Your Honor, I think it would be more 5 appropriate to say "the government contends it proved." 6 THE COURT: The government contends. 7 MR. COHN: Well, then it should be reflected with our 8 contention that it was rebutted. 9 THE COURT: I wonder whether, you know, the suggested 10 language was that the defendant has introduced the SAM and 11 whether that's -- 12 MR. COHN: I'm justing looking, the government's 13 contention, if you are putting contentions -- 14 THE COURT: As to the second non-statutory -- 15 MR. FITZGERALD: First. 16 THE COURT: As to the -- yes, as to the first 17 non-statutory aggravating factor, the government contends that 18 Al-'Owhali poses a continuing and serious threat even though 19 he will be imprisoned for life. Al-'Owhali contends that he 20 will be subject to rigorous security (the special 21 administrative measures), and will, therefore, not constitute 22 a threat. The government contends that, despite these 23 measures, the threat will be present. It is for you to decide 24 whether the defendant would or would not pose a continuing and 25 serious threat. 7290 1 The special administrative measures are not 2 automatically applied, but are applied in accordance with 3 their provisions. 4 Is there an exhibit number? Should I have that? 5 MR. COHN: It's Defense Al-'Owhali -- 6 THE COURT: Is that an exhibit they have asked for? 7 MR. FITZGERALD: No, Judge. 8 MR. BAUGH: They have not asked for the exhibit. 9 MR. COHN: They haven't asked for that exhibit. 10 THE COURT: Let me read this again: As to the first 11 non-statutory aggravating factor, the government contends that 12 Al-'Owhali poses a continuing and serious threat even though 13 he will be imprisoned for life. Al-'Owhali contends that he 14 will be subject to rigorous security (the special 15 administrative measures), and will, therefore, not constitute 16 a threat. The government contends that, despite these 17 measures, the threat will be present. It is for you to decide 18 whether the defendant would or would not pose a continuing and 19 serious threat. 20 The special administrative measures are not 21 automatically applied, but are applied in accordance with 22 their provisions. 23 MR. COHN: If your Honor please, which have been 24 submitted as Al-'Owhali Exhibit R. 25 THE COURT: Al-'Owhali Exhibit R. 7291 1 MR. FITZGERALD: Your Honor, I believe it is R. If 2 we're going to reference the Al-'Owhali exhibit, which is a 3 regulation, I think we should also reference the stipulation 4 concerning the government's response to that regulation, which 5 is 2281. 6 THE COURT: Why don't I say Al-'Owhali Exhibit R and 7 stipulation -- 8 What's the number? 9 MR. FITZGERALD: 2281. 10 THE COURT: -- 2281 deal with these issues. 11 Let me read it again: As to the first non-statutory 12 aggravating factor, the government contends that Al-'Owhali 13 poses a continuing and serious threat even though he will be 14 imprisoned for life. Al-'Owhali denies that he constitutes 15 such a threat and contends that he will be subject to rigorous 16 security (the special administrative measures), and will, 17 therefore, not constitute a threat. 18 No, that's redundant. 19 The government contends that, despite these measures, 20 the threat will be present. It is for you to decide whether 21 defendant Al-'Owhali would or would not pose a continuing and 22 serious threat. 23 The special administrative measures are not 24 automatically applied, but are applied in accordance with 25 their provisions. Al-'Owhali Exhibit R and Stipulation 2281 7292 1 deal with these issues. 2 Is that acceptable? 3 MR. COHN: Yes. 4 MR. FITZGERALD: Yes. 5 THE COURT: All right. I will put that in legible 6 form and we'll send it in to the jury. 7 This has let us know exactly where they are in the 8 Special Verdict Form. 9 All right. Maybe I could even get a scribe with 10 clearer handwriting. We'll await further word from the jury. 11 MR. BAUGH: Are you going to bring them out and read 12 it to them, or are you going to send it back, or both? 13 THE COURT: I'm going to send it back. 14 MR. BAUGH: Okay. 15 THE COURT: Is that acceptable? It takes ten minutes 16 for them to come in and ten minutes for them to go back. 17 (Recess pending verdict; time noted: 12:00 p.m.) 18 19 20 21 22 23 24 25
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