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


   2   ------------------------------x


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

   7   ------------------------------x

                                               New York, N.Y.
   9                                           June 12, 2001
                                               9:15 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge













   1                            APPEARANCES

            United States Attorney for the
   3        Southern District of New York
   4        MICHAEL GARCIA
            Assistant United States Attorneys

            Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
            Attorneys for defendant Khalfan Khamis Mohamed

















   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


   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


   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


   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:


   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


   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


   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.


   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


   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)





















   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.


   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


   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.


   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.


   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.


   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


   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


   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.


   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


   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


   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


   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


   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


   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


   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


   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


   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


   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.


   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


   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.


   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


   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.


   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


   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.)



















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