12 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 63 of the trial, June 12, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
7318 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 12, 2001 9:15 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 7319 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 MICHAEL GARCIA Assistant United States Attorneys 5 6 FREDRICK H. COHN DAVID P. BAUGH 7 LAURA GASIOROWSKI Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 8 DAVID STERN 9 DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7320 1 (Deliberations resumed) 2 (Time noted, 10:30 a.m.; in open court, jury not 3 present) 4 THE COURT: The record will reflect that the jury 5 arrived and began deliberations at 9:15. The jury requests 6 Exhibit Al-'Owhali Q. What is that? We have no government 7 attorney? 8 MS. GRANT: We are getting them. 9 MR. COHN: I will hand your Honor a copy of the 10 exhibit. 11 (Defendant present) 12 THE COURT: They would also like to hear the 13 transcript with regard to Salim as entered into evidence by 14 Mr. Cohn on June 4. What is that? 15 MR. COHN: We had a number of transcript references. 16 We have those references for the court reporter and they are 17 all very short extracts. I assume the government is going to 18 want to check them over and see for completeness sake whether 19 they want any other part of that extract. 20 THE COURT: This will require bringing the jury back 21 in. 22 MR. COHN: I believe it will, yes, your Honor. I 23 don't believe we can extract those physically from the 24 transcript and send them back. 25 THE COURT: Please let me know when the government 7321 1 attorney arrives. 2 MR. COHN: Your Honor, evidently we were more 3 prepared than ever. We actually made extracts but I don't 4 know whether the government will agree with them. At least 5 this is what we had prepared for ourselves. 6 (Pause) 7 (Government counsel present) 8 THE COURT: The question is whether these excerpts 9 may be sent in to the jury rather than bringing the jury in 10 and having them read. 11 MR. COHN: If they are all right with the government, 12 your Honor, we will take the check marks, handwritten check 13 marks, and white them out and make copies for the jury so they 14 will be clean. 15 (Pause) 16 MR. FITZGERALD: Your Honor, since it may take a few 17 minutes, we can send Q in, make a copy of that. 18 THE COURT: Let me know when you have resolved that. 19 (Recess) 20 THE COURT: I understand they are just xeroxing. 21 MR. FITZGERALD: Yes, and we have to make some 22 corrections on the computer to send in. So your Honor 23 understands, there was one reference taken out as not 24 referring to Abu Hajer. Then there was one reference where 25 three lines were taken out because they didn't make sense and 7322 1 one was added in. The reason we have to type is that there 2 were three different witnesses on the exhibit, so we want to 3 list al-Fadl, al Ridi and Kherchtou so the jury knows whose 4 testimony there is, and then we will be done. 5 MR. COHN: And the corrections can be made very 6 quickly on our transcript. 7 MR. FITZGERALD: One thing for the record. There are 8 a few typos that may be in the transcript that don't pertain 9 directly to Mr. Salim. I have shown them to Mr. Cohn. I 10 don't think they are dispositive of the issue and I don't 11 think we need to take up time making corrections. 12 THE COURT: I have distributed a schedule for the 13 remaining proceedings. If there are any problems let me know. 14 The most significant change is that assuming that the verdict 15 is sometime this week, we will start K.K. Mohamed on Tuesday, 16 allowing Monday for us to take up the various matters listed 17 there. 18 MR. FITZGERALD: The only thing I should alert you 19 to, Mr. Ruhnke was here earlier and I had a discussion with 20 him. We did not know if it was possible to have any of 21 Monday's proceedings later this week, the issues on 22 aggravating and mitigating factors resolved later this week, 23 because it may affect openings and the rest of the case. 24 THE COURT: That was the reason for providing Monday 25 to deal with these matters rather than starting K.K. Mohamed 7323 1 on Monday. 2 MR. FITZGERALD: Yes, Judge. I think Mr. Ruhnke and 3 I had the thought that if any of these were resolved earlier 4 than the weekend, the parties could adjust over the weekend 5 any witnesses not being called and the case getting longer or 6 shorter. I didn't know if the court was available. 7 THE COURT: I am trying to accommodate -- the 8 judicial conference is on Friday, Thursday afternoon and 9 Friday, and I would like to attend that. We can play it by 10 ear as the week goes on. I also thought that this verdict 11 might impact on the next proceeding and there would be some 12 advantage in giving counsel an opportunity to consider fully 13 the implications of this verdict before beginning the KKM 14 matter. 15 MR. FITZGERALD: I will discuss the matter further 16 with Mr. Ruhnke and advise him of the schedule and the 17 schedule of the judicial conference. 18 MR. COHN: Your Honor, may I ask you a mundane 19 question about the judicial conference that need not be on the 20 record? 21 THE COURT: Your question relates to the fact that 22 the schedule calls for the jury to be deliberating on Friday. 23 (Recess) 24 (Time noted, 11:15) 25 THE COURT: A note from the jury reads as follows: 7324 1 "Judge Sand, an unusual request by the jury. Can you give us 2 the proper wording of the oath we took as jurors, particularly 3 with regard to the penalty phase of this trial. Thank you. 4 PS. A note to this effect would be fine." 5 MR. COHN: Before you send for it, Judge, is it 6 really proper to do that? I am thinking out loud. I have 7 never heard such a request and it sounds to me like somebody 8 saying you're not following your oath and then we have an 9 interpretation in the jury what it means. I don't think that 10 is appropriate. They took an oath to follow the law. 11 MR. FITZGERALD: If they are asking what the oath is 12 they are to follow, I think it would be derelict not to give 13 that to them. 14 THE COURT: The fact that the reporter as a matter of 15 judicial practice doesn't record it doesn't negate the fact 16 that it is something that they are told in open court. 17 MR. COHN: I am not relying on the absence of a 18 transcript to say that you can't give it. 19 THE COURT: Mr. Kenneally, what is the oath that you 20 gave to the panel? 21 THE CLERK: You and each of you do solemnly swear 22 that you will well and truly try this issue now on trial and a 23 true verdict give according to the law and the evidence, so 24 help you God. 25 THE COURT: There is no specific reference to the 7325 1 penalty. 2 MR. FITZGERALD: I think what they may be referring 3 to may be in the questionnaire as to discussion on what they 4 would have to do, but there was no oath in the questionnaire. 5 THE COURT: Let me draft something. In the meantime, 6 I take it the other materials are still being prepared. 7 MR. FITZGERALD: Yes. 8 (Pause) 9 THE COURT: I propose the following: Ladies and 10 gentlemen. The oath administered to the jury was: You and 11 each of you do solemnly swear that you will well and truly try 12 this issue now on trial and a true verdict give according to 13 the law and the evidence, so help you God. There was no 14 separate oath in connection with the penalty phase but the 15 oath taken before the guilt phase remains applicable. 16 MR. BAUGH: I think you should also make reference to 17 the fact that all they need follow is the previously given 18 instructions. 19 THE COURT: I don't think there is any need to gild 20 the lily. I think this answers their question. Any 21 objection? 22 MR. FITZGERALD: No, Judge. 23 MR. BAUGH: Your Honor, we would object. I don't 24 believe it is complete. It seems to convey to the jury 25 that -- because the appropriate language is contained in this 7326 1 instruction, whether or not death is appropriate doesn't have 2 the usual standard that other legal issues have. 3 THE COURT: Are you talking about burden of proof, 4 unanimity, things of that sort? 5 MR. BAUGH: Yes, your Honor. 6 THE COURT: But that is not their question. Their 7 question relates solely to the oath. If this doesn't answer 8 the question, this jury has shown that it will not hesitate to 9 ask another question. 10 MR. COHN: Your Honor, the problem I have with it is, 11 it seems clear to me, as much as anything seems clear to me in 12 this proceeding so far, that they believe that in the jury 13 room somebody is saying, one juror is saying to another juror 14 you're not following your oath. 15 THE COURT: We shouldn't assume one juror. 16 MR. COHN: I should say at least one juror. It may 17 be 11 jurors saying that to one or one juror saying that to 18 11. We don't have a clue. But at least that is going on. 19 What you are doing, your Honor, is, you are sending them back 20 the oath without any explanation that they should not be 21 interpreting the oath. The oath is the oath. They are now 22 going to be in there talking about what this oath means in the 23 context of the case, and it seems to me that following that 24 oath is a very personal thing that is not subject to broad 25 rules because it says you should follow the law and the facts. 7327 1 You have sent back all sorts of notes talking about how they 2 follow the law and the facts. 3 THE COURT: What would you propose as the answer? 4 MR. COHN: I suppose I would say, if I had to send it 5 back, that the interpretation of that oath is a personal 6 matter. 7 THE COURT: Yes, but they don't know what the oath 8 is. That's what they are asking. They are obviously under 9 the impression that there is some specific reference to a 10 penalty phase in the oath. So your proposals are simply not 11 responsive. 12 MR. COHN: Perhaps. 13 THE COURT: And to say that they should disregard the 14 oath is -- 15 MR. COHN: I am not saying that at all. I am just 16 saying that they should not each be interpreting the oath or 17 the law for each other. It is a matter of personal 18 interpretation how they do it. What I am trying to avoid, 19 Judge, is their using the specific language as a club against 20 some recalcitrant juror. I think that is a problem that has 21 announced itself. 22 THE COURT: I think they have asked a simple factual 23 question as to what was the oath and we should give them the 24 simple factual answer, and that with respect to the penalty 25 phase we ought to indicate, as I have, that there was no 7328 1 separate oath but that this oath that they took at the 2 beginning of the guilt trial continues in force. The 3 objections are overruled. 4 MR. COHN: On the other note, your Honor, we are just 5 giving the government our corrections to check. 6 (Recess) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7329 1 AFTERNOON SESSION 2 2:30 p.m. 3 THE COURT: The note from the jury reads: "The jury 4 has reached a verdict with regard to Al-'Owhali in the penalty 5 phase." 6 (Jury present) 7 THE COURT: Ladies and gentlemen, your note says that 8 you have reached a verdict. Mr. Kenneally, would you take the 9 attendance of the jury, please. 10 THE CLERK: Ladies and gentlemen of the jury, please 11 answer to your presence as your number is called. 12 (Roll called; all present) 13 THE CLERK: Madam forelady, has the jury reached a 14 verdict on the penalty phase of the special verdict form? 15 THE FOREPERSON: Yes, we have. 16 THE CLERK: Section 1, gateway factors. How have you 17 found on question 1? 18 THE FOREPERSON: On question 1, we find the first 19 one. We unanimously find that this factor has been proved 20 beyond a reasonable doubt with regard to all of the capital 21 counts. 22 THE CLERK: How have you found on question 2? 23 THE FOREPERSON: Question 2, also the first one. We 24 unanimously find that this factor has been proved beyond a 25 reasonable doubt with regard to all of the capital counts. 7330 1 THE CLERK: How have you found as to question 3? 2 THE FOREPERSON: Question 3, also the first one. We 3 unanimously find that this factor has been proved beyond a 4 reasonable doubt with regard to all of the capital counts. 5 THE CLERK: How have you found on question 4? 6 THE FOREPERSON: On question 4 also the first one. 7 We unanimously find that this factor has been proved beyond a 8 reasonable doubt with regard to all of the capital counts. 9 THE CLERK: Section 2, statutory aggravating factors. 10 Madam forelady, how have you found on question, part A, 11 question 1? 12 THE FOREPERSON: Part A, question 1, we find the 13 first one. We unanimously find that this factor has been 14 proved beyond a reasonable doubt with regard to all of the 15 capital counts. 16 THE CLERK: Part A, question 2 of section 2, how have 17 you found? 18 THE FOREPERSON: On question 2, again the first one, 19 we unanimously find that this factor has been proved beyond a 20 reasonable doubt with regard to all of the capital counts. 21 THE CLERK: Part A of section 2, question 3, how have 22 you found? 23 THE FOREPERSON: Question 3, again, it's the first 24 one. We unanimously find that this factor has been proved 25 beyond a reasonable doubt with regard to all of the capital 7331 1 counts. 2 THE CLERK: Question 4 of part A, section 2, how have 3 you found? 4 THE FOREPERSON: On question 4 it is again the first 5 one. We unanimously find that this factor has been proved 6 beyond a reasonable doubt with regard to all of the capital 7 counts. 8 THE CLERK: Section 3, nonstatutory aggravating 9 factors. Part A of section 3? 10 THE FOREPERSON: Part A of section 3, it is the last 11 one. We do not unanimously find that this factor has been 12 proved beyond a reasonable doubt with regard to any of the 13 capital counts. 14 THE CLERK: Continuing on section 3, part B? 15 THE FOREPERSON: Part B, it's the first one. We 16 unanimously find that this factor has been proved beyond a 17 reasonable doubt with regard to all of the capital counts. 18 THE CLERK: Continuing on section 3, part C? 19 THE FOREPERSON: Part C it's again the first one. We 20 unanimously find that this factor has been proved beyond a 21 reasonable doubt with regard to all of the capital counts. 22 THE CLERK: Section 4, the mitigating factors. How 23 have you found on question A? 24 THE FOREPERSON: On question A, number of jurors who 25 so find is 8. 7332 1 THE CLERK: On B? 2 THE FOREPERSON: The number of jurors who so find is 3 zero. 4 THE CLERK: On C? 5 THE FOREPERSON: On C, the number of jurors who so 6 find is zero. 7 THE CLERK: On D? 8 THE FOREPERSON: On D, the number of jurors who so 9 find is zero. 10 THE CLERK: And on E, 1, 2 and 3? How do you answer? 11 THE FOREPERSON: E 1, 2 and 3 total, we find, number 12 of jurors who find is 10. 13 THE CLERK: How do you answer on F? 14 THE FOREPERSON: On F, the number of jurors who so 15 find is zero. 16 THE CLERK: On G? Number of jurors? 17 THE FOREPERSON: Number of jurors on G is five. 18 THE CLERK: Are there any other mitigating factors? 19 THE FOREPERSON: Yes, there are five. 20 THE CLERK: Proceed. 21 THE FOREPERSON: The first one is that executing 22 Al-'Owhali could make him a martyr for Al Qaeda's cause and 23 the number of jurors who so find is 10. 24 THE COURT: Would make him a martyr -- 25 THE FOREPERSON: -- for Al Qaeda's cause. 7333 1 THE COURT: Next one? 2 THE FOREPERSON: The next mitigating factor is that 3 executing Al-'Owhali may not necessarily alleviate the 4 victims' or victims' families' suffering, and the number of 5 jurors who so find is nine. 6 THE CLERK: Proceed. 7 THE FOREPERSON: The next one is that lethal 8 injection is very humane and the defendant will not suffer. 9 The number of jurors who so find is four. 10 The next one is that life in prison is a greater 11 punishment since his freedom is severely curtailed and the 12 number of jurors who so find is five. 13 And the last one is that Al-'Owhali was raised in a 14 completely different culture, society and belief system, and 15 the number of jurors who so find is four. 16 THE CLERK: Anything further on the mitigating? 17 THE FOREPERSON: That's it as far as mitigating 18 factors. 19 THE CLERK: Going to section 5, determination of 20 sentence. How have you found, and please read out loud your 21 jury determination. 22 THE FOREPERSON: We the jury do not unanimously find 23 that the death sentence is appropriate. We understand that 24 the consequence of this is that Al-'Owhali will be sentenced 25 to life imprisonment without the possibility of release. 7334 1 THE COURT: Madam forelady, have the jurors signed 2 their numbers at the bottom of page 16? 3 THE FOREPERSON: Yes, they have. 4 THE COURT: Has each juror signed his name on a 5 separate certification and put it in a sealed envelope? 6 THE FOREPERSON: Yes, they have. 7 THE COURT: I have one question. With respect to 8 some of the mitigators, you have answered zero, that the 9 defendant does not have a prior history of criminal conduct. 10 Did you mean zero or did you mean 12? Do you mean that all of 11 the jurors so find or that none of the jurors so find? 12 THE FOREPERSON: None of the jurors find that he did 13 not have a prior history of criminal -- 14 JUROR: That it's not a mitigator. 15 THE COURT: Not a mitigator? 16 THE FOREPERSON: Correct. 17 THE COURT: Listen, ladies and gentlemen, to your 18 verdict. Your verdict is that with respect to the four 19 gateway factors, you have found that each of the four gateway 20 factors have been proven. With respect to the statutory 21 aggravating factors, you find that all of them have been 22 proven. With respect to the nonstatutory aggravating factors, 23 you do not unanimously find that the defendant poses a 24 continuing and serious threat. And you otherwise find that 25 all of the other nonstatutory aggravating factors have been 7335 1 proven. 2 With respect to mitigating factors, you find eight as 3 to A. How did you find as to B? 4 THE FOREPERSON: Zero. 5 THE CLERK: And as to C zero? 6 THE FOREPERSON: Zero. 7 THE COURT: And as to D zero. As to E 10. As to F 8 zero. As to G five. 9 THE FOREPERSON: Correct. 10 THE COURT: You have also found the following other 11 mitigating factors which I will summarize: 10, that executing 12 Al-'Owhali would make him a martyr; that executing Al-'Owhali 13 would not necessarily alleviate the suffering of the victims, 14 and nine so found; that lethal injection is very humane and 15 the defendant will not suffer, four so found; that life 16 imprisonment is a greater punishment than a death sentence, 17 five so found; and that Al-'Owhali was raised in a completely 18 different culture and belief system, and four so found. And 19 with respect to the determination of the sentence you found 20 that you do not unanimously find that death is an appropriate 21 sentence, with a consequence that the sentence to be imposed 22 will be life imprisonment. 23 THE FOREPERSON: Correct. 24 THE COURT: Mr. Kenneally, will you poll the jury. 25 THE CLERK: Ladies and gentlemen of the jury, you 7336 1 have heard your verdict as it has been recorded. 2 (Jury polled; each answered in the affirmative) 3 THE COURT: Is there anything further of the jury 4 before I excuse them with the thanks of the court and the 5 parties? 6 MR. COHN: No, your Honor. 7 MR. FITZGERALD: No, your Honor. 8 THE COURT: Ladies and gentlemen, again I want to 9 thank you for your conscientious discharge of your duties as 10 jurors. I promised you that we would try to give you a little 11 rest. We are going to adjourn now until Tuesday, the 19th, at 12 which time the alternates will join us again, we hope, and we 13 will then proceed with the penalty phase with respect to the 14 defendant K.K. Mohamed. 15 Just a few reminders. You are still under a duty, so 16 I ask that you not read or listen to or discuss with anyone 17 anything with respect to this case. If anyone should contact 18 you or seek to engage in any discussions with you, simply walk 19 away, and if they are persistent, just notify the marshal in 20 control. 21 Madam forelady, have you dated and signed the special 22 verdict form? 23 THE FOREPERSON: Yes, we have. 24 THE COURT: Mr. Kenneally, would you pick that up and 25 would you pick up the certificates. 7337 1 I told you when you last rendered a verdict that it 2 is the tradition in the court that the judge not express any 3 views with respect to the verdict and I will adhere to that 4 tradition. But again, I do thank you for your very 5 conscientious performance as jurors. Have a good rest, and we 6 will see you on Tuesday morning. 7 (3:00 p.m., jury discharged) 8 THE COURT: The court sets September 12 at 10:30 a.m. 9 for sentencing and the court directs that the Probation 10 Department prepare a presentence report with respect to all of 11 the counts in the indictment. 12 Is there anything further with respect to the penalty 13 phase and defendant Al-'Owhali? 14 MR. BAUGH: As to the defendant Al-'Owhali, the 15 defendant would request his counsel be present during any 16 interview with probation. 17 THE COURT: Very well, a notation will be made to 18 that effect. Anything further? 19 MR. FITZGERALD: No. 20 MR. COHN: No. 21 THE COURT: There is a request that the excerpts from 22 the trial transcript concerning Salim be made a part of the 23 record, and it is designated Court Exhibit A of today's date 24 and made part of the record. 25 We will take a five-minute recess and then we will 7338 1 deal with matters relating to the K.K. Mohamed penalty phase. 2 (Recess) 3 (Counsel for the government and defendant Mohamed 4 present; defendant not present) 5 THE COURT: I am sure that the verdict form gives 6 everybody a great deal to think about in terms of the next 7 phase of the case. 8 We scheduled this time for argument with respect to 9 South Africa. Mr. Ruhnke, do you wish to be heard on that 10 subject, the impact of this case of the decision by the 11 highest court of South Africa? 12 MR. RUHNKE: Your Honor, I have no desire to be heard 13 beyond what I have filed in my papers. If your Honor has 14 questions, I will do my best to reply to them. But I think 15 both parties have made their positions clear on the papers. 16 THE COURT: Is there anything the government wishes 17 to add to its submissions? 18 MR. FITZGERALD: Your Honor, we would also entertain 19 questions from the court. It is our view in response to Mr. 20 Ruhnke's papers that the international covenants cited do not 21 control, that Alvarez-Machain gives the court jurisdiction 22 over the defendant, that there is no legal bar to proceeding 23 with the capital phase, and that when it comes to the 24 statutory or the possible mitigating factor, that the fact 25 that K.K. Mohamed is not barred from facing the death penalty 7339 1 is a happenstance not having to do with his character, his 2 motivation or the way the crime was carried out, and is 3 therefore not an appropriate mitigating factor before the 4 jury. 5 THE COURT: There are two aspects to this. One is 6 whether this court has jurisdiction with respect to K.K. 7 Mohamed and whether there is any basis for it not to exercise 8 that jurisdiction. The court concludes that it has 9 jurisdiction and that there is no basis upon which the court 10 should not exercise that jurisdiction. I have tremendous 11 respect for the Constitutional Court of South Africa. It is a 12 very distinguished court and it has among its members some 13 outstanding lawyers, jurists, and the matter is of sufficient 14 importance so that I will deal with it in a formal opinion 15 which I will file in due course. The substance of it, of 16 course, is that insofar as the decision of the Constitutional 17 Court of South Africa is addressed to matters of diplomacy, of 18 foreign policy, of exercise of executive discretion, those are 19 matters to be addressed by branches of the government other 20 than this court. This court is not free to exercise an 21 independent judgment as to the appropriateness of seeking the 22 death penalty under these circumstances. The decision of the 23 Constitutional Court of South Africa is of course the 24 definitive statement of South African law, but with respect to 25 the law to be applied in this case, by this court, those are 7340 1 matters of American law, and I of course have to look to the 2 decisions of the Supreme Court, and I will do so. 3 Of course, the law is clear that the manner in which 4 the defendant is brought before the jurisdiction of the court 5 does not affect the court's jurisdiction. 6 The argument is made that those decisions were 7 rendered in cases other than capital cases and that the law 8 should be different when capital issues are presented in the 9 case. I find no authority for that, and as a matter of first 10 impression I do not find that argument persuasive. 11 I am advised that the Constitutional Court of South 12 Africa, in addition to serving this court with a copy of this 13 decision, caused a copy to be served on the chief judge of 14 this court and that he has been assured by the United States 15 Attorney that the decision has or will be brought to the 16 attention of the appropriate parties in the Attorney General's 17 office and in the Department of State. 18 The matter then which does require an immediate 19 definitive answer is the extent to which the decision of the 20 Constitutional Court of South Africa is something which can be 21 brought to the attention of the jury in the penalty phase 22 concerning K.K. Mohamed. I am aware that the government takes 23 a position, as it just stated, that the circumstances 24 concerning the Constitutional Court of South Africa do not 25 relate to anything relevant to the background of the defendant 7341 1 or circumstances concerning the commission of the crime. 2 Counsel for K.K. Mohamed argues that there is another 3 broader concept, and that is to be assured that the imposition 4 of the death sentence is not arbitrary or random. In 5 addressing that, I thought it would be helpful to put down on 6 paper some thoughts I had as to what the jury might be told at 7 the conclusion of the evidentiary presentation and work 8 backwards from that. I thought something along these lines 9 might be appropriate: 10 With respect to the question whether equally culpable 11 defendants extradited from foreign countries will or will not 12 be subject to the death penalty, you are advised that this 13 decision turns on the law of the country in which the 14 defendant is first arrested. For example, England and Germany 15 and many other countries which do not themselves have the 16 death penalty will not extradite anyone to the United States 17 unless the United States agrees that it will not seek to 18 impose the death penalty. The United States has agreed with 19 respect to certain defendants relevant to this case not to 20 seek the death penalty in order to obtain their extradition. 21 The evidence discloses that K.K. Mohamed left 22 Tanzania, which does have the death penalty, and went to South 23 Africa, which does not have the death penalty. The procedures 24 which led to K.K. Mohamed's being brought to the United States 25 at his request rather than being returned to Tanzania, the 7342 1 other option, the South African authorities did not seek to 2 obtain American agreement not to seek the death penalty, and, 3 as you know, the United States thereafter decided to seek such 4 a penalty. 5 In a decision rendered the day before your guilt 6 verdict, the highest court of South Africa overruled an 7 earlier decision of a lower South African court and held that 8 as a matter of South African law it was improper for the South 9 African immigration authorities not to seek an agreement from 10 the United States not to seek the death penalty. 11 K.K. Mohamed argues that you should consider this 12 circumstance as a mitigating factor because it demonstrates 13 that but for the timing of the South African court's 14 decisions, he would not now be subject to the death penalty. 15 You may consider this circumstance in determining whether the 16 application of the death penalty to K.K. Mohamed would be, as 17 he contends, arbitrary or random, and whether other equally 18 culpable defendants are not subject to the death penalty 19 because of the normal practices with regard to extradition. 20 You may not consider this circumstance for any other purpose. 21 What I mean by the last sentence is that I do not 22 think it would be appropriate, for example, to submit the 23 South African court's decision as an exhibit for the jury. 24 Nor do I believe that the issue of America's role vis a vis 25 the South African authorities is an appropriate issue. What I 7343 1 would envision would be a simple stipulation giving the 2 relevant dates and the court holdings, and permit the listing 3 of this consideration as a separate mitigator, closely allied 4 to the statutory mitigator with respect to others equally 5 culpable not being subject to the death penalty. 6 That would be my proposal with respect to utilization 7 of this issue at the penalty phase. Anyone? 8 MR. FITZGERALD: Yes, your Honor. I would object on 9 the following grounds. First of all, I understand the 10 argument to be an argument that we do not want the death 11 penalty imposed arbitrarily, and my argument would be that if 12 before K.K. Mohamed would be sentenced to the death penalty 13 the jury would obviously have to do what they already did, 14 which is find a capital crime and find all the circumstances 15 justified, the fact that he was almost relieved of the death 16 penalty by a foreign nation's laws is an arbitrary absolution 17 or immunity from facing the death penalty. The death penalty 18 would be imposed because of his conduct in committing murder, 19 committing a capital offense under circumstances that a jury 20 would have to find unanimously justified the death sentence. 21 That would not be arbitrary. The fact that he almost avoided 22 the death penalty because of the law of a country I think 23 doesn't mean that facing the death penalty is arbitrary. 24 If I might point this out, there are a lot of other 25 factors that could have been different, and if we are going to 7344 1 tell the jury if the law had been different at that time he 2 would not face the death penalty, we could also tell the jury 3 that if Officer Pepe had not fought back as strongly as he 4 did, if Officer Pepe, who came very close to losing his life 5 had died, he would be facing the death penalty in that charge 6 as well. In fact, if that charge had become the murder of 7 Pepe, the South African decision would be irrelevant. 8 I think if we are going to look at the facts and 9 circumstances of how things could have been different, then we 10 should tell the jury that. If it could have been different if 11 the South African law was different, it could have been 12 different if Officer Pepe had died. 13 THE COURT: The question of the conduct in the 14 commission of the crime is really not the issue here, and the 15 fact that other defendants are not subject to the death 16 penalty because of the terms of their extradition doesn't turn 17 on the nature of their conduct as contrasted to the conduct of 18 K.K. Mohamed. When the court talks about the need to avoid 19 arbitrary, random or accidental imposition of the death 20 penalty, obviously the context in which those terms are used 21 is a context in which people are identified for the death 22 penalty because of race or ethnicity of either the perpetrator 23 or the victim. But it seems to me that it is simply another 24 aspect of the fact that the selection of who is subject to the 25 death penalty and who is not subject to the death penalty is 7345 1 to some extent a decision which is made independently of any 2 evaluation as to culpability. 3 MR. RUHNKE: May I just weigh in for a minute, your 4 Honor? I understand the government's position to be, or about 5 to be, people like Salim are not facing the death penalty 6 really and therefore this doesn't apply. There is the 7 argument that at least two of the people in London possibly 8 face the death penalty. 9 I don't accept as a matter of law that Salim could 10 not have faced the death penalty. It is a charging decision 11 and the government has to make their charging decisions 12 however they make them. Under the government's view of who 13 can face the death penalty, in very narrow interpretation of 14 the gateway factors, obviously Usama Bin Laden does not face 15 the death penalty because he was simply the head of an 16 organization. Salim was a member of the council that passed 17 on matters like this. 18 What I do want to do is offer one plain simple 19 example, and that is the example of the defendant who was 20 recently arrested in France for killing an abortion doctor, 21 someone the government devoutly wanted to seek the death 22 penalty against but now cannot simply because France will not 23 extradite without such an assurance. Salim is a muddy example 24 because I think a cogent and accurate argument can be made 25 that he does face the death penalty if the government wanted 7346 1 to so charge him. 2 THE COURT: That is really a different issue, and 3 with respect to that issue as to the government's narrow 4 definition of who is equally culpable, which answers that 5 question in terms of the government's charging decisions, I 6 agree with the courts that say the question of equal 7 culpability is really a question that the jury will determine, 8 this jury having heard of the roles played by some of the 9 other defendants. 10 Do you have any objection, Mr. Ruhnke, to dealing 11 with this by a stipulation indicating the dates and the facts 12 and making no reference to the statements in the decision 13 which might be construed to allege American complicity in the 14 South African immigration procedure? 15 MR. RUHNKE: I have no objection to what your Honor 16 is proposing conceptually. I don't know if the government is 17 going to be willing to engage in stipulation discussions. If 18 they are, fine. 19 THE COURT: I would think that we would have the date 20 of his arrest, the date of the lower court decision, the date 21 of the higher court decision, and just a brief statement as 22 to -- 23 MR. FITZGERALD: Your Honor, if we could back up a 24 step, I would like to address the court's ruling. The 25 technical aspects always take care of themselves. 7347 1 THE COURT: Yes. 2 MR. FITZGERALD: I am still affirmatively of the view 3 that it is more relevant to the jury as to the moral 4 culpability of the defendant, recognizing that we are trying 5 to make sure that the jury doesn't arbitrarily impose the 6 death penalty. It is not relevant to the jury, I submit, it 7 is not a characteristic of K.K. Mohamed's moral background 8 what happened after the fact, a year after the crime. It 9 seems to me it is more relevant, if we are going to tell the 10 jury but for something K.K. Mohamed would not have faced the 11 death penalty, why isn't it more relevant to talk about his 12 own conduct on November 1, 2000, saying but if Officer Pepe 13 had died he would be facing the death penalty for that? 14 THE COURT: I agree there has to be some cutoff point 15 in terms of relevance, but if you cross the threshold, as 16 Congress has done in the statute, and say that the jury may 17 consider whether others equally culpable are not subject to 18 the death penalty, and add to that the jurisprudence which 19 says the selection of those who will or will not be subject to 20 the death penalty should not be arbitrary or accidental, I 21 think you reach the decision that I have reached. 22 MR. FITZGERALD: I would submit, the decision that 23 says it is not arbitrary is what the gateway factors provide. 24 The jurors cannot convict K.K. Mohamed without finding those, 25 and that the aggravating factors outweigh the mitigators. The 7348 1 fact that he did not get a windfall or fled to South Africa 2 does not mean that the government has not arbitrarily sought 3 the death penalty just as anyone arrested in Oklahoma or New 4 York would face the death penalty. I think that the 5 defendants who get arrested get the windfall where defendants 6 committing the same crime here do not get that. That to me 7 shows a disparity between defendants that is appropriate. 8 THE COURT: I understand your position and it 9 certainly is a reasonable and possible interpretation. On 10 balance, however, I reject it. 11 MR. FITZGERALD: My fallback, having lost that, is to 12 submit to the court, I don't think the jury needs to know the 13 identity of the South African court that ruled. If it is 14 relevant that after -- 15 THE COURT: The name of the court? 16 MR. FITZGERALD: Yes. 17 THE COURT: No good deed goes unpunished. I thought 18 that it was helpful to the government to indicate that up 19 until the very day before the verdict the only information we 20 had from South African courts was that this was a perfectly 21 legal position. 22 MR. FITZGERALD: I wasn't arguing the time. I just 23 meant -- 24 THE COURT: The name of the court? My expressions of 25 admiration for the court will not be advanced to the jury. 7349 1 MR. FITZGERALD: And one last argument, your Honor, 2 which is, I am also concerned about breaking out the factor, 3 if we have a factor that other defendants equally culpable may 4 not face the death penalty and counting this as a separate 5 mitigator, it seems inconsistent with the way we treated the 6 government nonstatutory aggravators, victim impact, etc. 7 THE COURT: We have Monday an agenda of the list of 8 aggravators and mitigators, and I hadn't really focused on 9 that. What we did with Al-'Owhali, we grouped several 10 together, and we might do that. That is something for you to 11 think about between now and Monday. But we now know enough 12 about this jury to know that they are not going to be engaged 13 in any mechanical process. 14 I want to take up in the robing room the question of 15 the plea agreements and I will deal with that. Is there 16 anything else which you would rather take up now than on 17 Monday? 18 MR. RUHNKE: Your Honor, I had given the court a list 19 of matters that essentially we are waiting to hear from the 20 government on, and these things are not necessarily matters 21 which we can learn about on Monday to open on Tuesday. 22 Specifically, we have been asking for weeks for an explanation 23 or information as to what happened to the videotape of 24 November 1, and we have never had a response from the 25 government on that, other than they are checking into it, and 7350 1 the responses that we had from the government have been 2 inconsistent. We requested the government provide an 3 explanation for what happened to this video, which we asked be 4 preserved on November 2, and we have had no answer. 5 Second, Mamdouh Salim has put the government on 6 notice that he will rely on a defense of mental illness for 7 the stabbing. For me that means to concede conduct but to say 8 that he was mentally ill at the time that it occurred. We 9 have asked the government weeks ago, is there any kind of Rule 10 16 disclosure that his counsel have made that bear on that 11 issue? Is there any kind of expert reports? Has the 12 government had Mr. Salim examined? Everyone has been busy. I 13 don't want to use the word stonewalled. We have had no reply 14 to those requests. These are not things that we can wait till 15 Monday to find out about. 16 MR. FITZGERALD: Your Honor, I have to take exception 17 to one thing. First, I told Mr. Ruhnke that we would talk at 18 the conclusion of this proceeding as to those issues. Mr. 19 Ruhnke is in default of Rule 16 material which has been not 20 been provided to us. We have been given no notice as to what 21 Dr. Cunningham intends to produce. We gave over whatever 22 tapes we have on the prison. I told him I would sit down and 23 talk about what we owe him and what he owes us. So any 24 inference that the government is stonewalling, we couldn't 25 even get exhibits, we had to go and copy his. 7351 1 THE COURT: Next Tuesday is a week. There is a week 2 between the verdict and commencement of the K.K. Mohamed 3 proceedings. 4 Incidentally, K.K. Mohamed, do you wish to have him 5 in court on Monday? 6 MR. RUHNKE: Probably not, your Honor. We will talk 7 to him between now and Monday, but for various reasons I can 8 predict that we will be waiving his presence unless you hear 9 otherwise. 10 THE COURT: What I would like you to be thinking 11 about, as I will be thinking about between now and Monday, 12 since it's the same jury and they have heard it, whether 13 anything is required by way of preliminary statement other 14 than the reading of the final version of the aggravators and 15 the mitigators? 16 MR. RUHNKE: We will think about that, your Honor. 17 THE COURT: Does the government have any idea of the 18 estimated length of its presentation? 19 MR. FITZGERALD: If we start on Tuesday, your Honor, 20 I don't know the extent of Mr. Ruhnke's cross-examination 21 concerning the assault incident, but my sense is we will 22 probably not rest until the middle of the following week. 23 THE COURT: That is assuming we don't sit on Friday. 24 MR. FITZGERALD: Yes, starting Tuesday. 25 MR. RUHNKE: Your Honor we would prefer that we 7352 1 continue the practice of not sitting on Fridays concerning 2 this part as well. 3 THE COURT: I will see counsel in the robing room 4 then, on the plea agreement matter. 5 (Classified conference follows, filed separately) 6 (Adjourned until Monday, June 18, 2001, at 10:00 7 a.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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