3 July 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 73 of the trial, July 3, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
8701 1 173lbinf 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 3 ------------------------------x 4 UNITED STATES OF AMERICA 5 v. S(7) 98 Cr. 1023 6 USAMA BIN LADEN, et al., 7 Defendants. 8 ------------------------------x 9 New York, 10 N.Y. July 3, 2001 11 9:45 a.m. 12 13 Before: 14 HON. LEONARD B. SAND, 15 District Judge 16 APPEARANCES 17 MARY JO WHITE 18 United States Attorney for the Southern District of New York 19 BY: PATRICK FITZGERALD MICHAEL GARCIA 20 Assistant United States Attorneys 21 22 DAVID RUHNKE DAVID STERN 23 Attorneys for defendant Khalfan Khamis Mohamed 24 25 REPORTERS CENTRAL (212) 594-3582 8702 1 173lbinf CHARGE 2 (In open court) 3 THE COURT: Good morning, ladies and 4 gentlemen. 5 THE JURY: Good morning, your Honor. 6 THE COURT: For reasons which you are 7 aware of, we are going to sit only half a day 8 today. We'll probably break around noon. I am 9 not exactly sure when my charge will be 10 completed, but if you actually begin 11 deliberations today, why, we will excuse the 12 alternates. If you don't begin deliberations 13 today, we'll ask the alternates to return on 14 Thursday, and I will discuss that before you 15 leave. 16 The procedures that we will follow 17 with respect to the charge are those that we 18 followed twice in the past. It is just your 19 option whether you want to read along with me 20 or just listen, whatever you find to be most 21 helpful. And again, you have before you the 22 Court's charge and the Special Verdict Form, 23 and I believe you already have in the jury room 24 the copy of the Indictment and the Court's 25 instructions with respect to the guilt phase of REPORTERS CENTRAL (212) 594-3582 8703 1 173lbinf CHARGE 2 the case. You have those documents, I assume. 3 If you don't have those documents for any 4 reason, please let the marshal know. 5 Much of what you will hear this 6 morning you will find repetitious, because 7 indeed the law that applies at this penalty 8 phase is the same law that applied in the last 9 penalty phase. There are differences, however. 10 And because the law requires that you make 11 separate findings as to all of the issues in 12 this case, we thought it best to lay it all out 13 again. So if things sound familiar, it's just 14 because you have become such experienced 15 jurors. But the fact that there is repetition 16 does not in any way diminish their importance. 17 Members of the jury, it is again my 18 duty to instruct you as to the law applicable 19 to the sentencing phase of this case. 20 I am on page 1 of the instructions. 21 The sole question before you is 22 whether Khalfan Khamis Mohamed should be 23 sentenced for his capital offenses to either 24 (1) the death penalty or (2) life imprisonment 25 without the possibility of release. The REPORTERS CENTRAL (212) 594-3582 8704 1 173lbinf CHARGE 2 selection between these two very serious 3 choices is yours and yours alone to make. If 4 you determine, as to a particular count, that 5 Mr. Mohamed should be sentenced to death, or 6 instead to life imprisonment without the 7 possibility of release, the Court is required 8 to impose whichever sentence you choose as to 9 that count. There is no parole in the federal 10 system. 11 Remember that you have previously 12 found Mr. Mohamed guilty of the following 13 capital counts in the indictment, all of which 14 arise out of the August 7, 1998 bombing of the 15 United States Embassy in Dar es Salaam, 16 Tanzania: Counts 6, 8, 222 through 232, 275, 17 and 276. Even though there are a total of 15 18 capital counts at issue here, you must still 19 approach the sentencing decision before you 20 separately as to each count and, of course, 21 with an open mind. I cannot stress to you 22 enough the importance of your giving careful 23 and thorough consideration to all the evidence. 24 And regardless of any opinion you may have as 25 to what the law may be -- or should be -- it REPORTERS CENTRAL (212) 594-3582 8705 1 173lbinf CHARGE 2 would be a violation of your oaths as jurors to 3 base your sentencing decision upon any view of 4 the law other than that which is given to you 5 in these instructions. 6 Most of the legal principles that you 7 must apply to your sentencing decision 8 duplicate those you followed in the prior 9 sentencing proceeding as to defendant 10 Al-'Owhali. Others are different. The 11 instructions I am giving you now are a complete 12 set of instructions on the law applicable to 13 the sentencing decision as to Mr. Mohamed; 14 during your deliberations you should thus rely 15 on these instructions. I have also prepared, 16 as before, a Special Verdict Form that you must 17 complete. The form, by detailing the special 18 findings you must make, will aid you in 19 properly performing your deliberative duties. 20 Now, although Congress has left it 21 wholly to you, the jury, to decide 22 Mr. Mohamed's proper punishment, it has 23 narrowed and channeled your discretion in 24 specific ways -- particularly by making you 25 consider and weigh any "aggravating" and REPORTERS CENTRAL (212) 594-3582 8706 1 173lbinf CHARGE 2 "mitigating" factors present in the case. As I 3 explained previously, these factors have to do 4 with the circumstances of the crime, or the 5 personal traits, character, or background of 6 Mr. Mohamed, or anything else relevant to the 7 sentencing decision. Aggravating factors are 8 those that would tend to support imposition of 9 the death penalty. By contrast, mitigating 10 factors are those that suggest that life in 11 prison without the possibility of release is an 12 appropriate sentence in this case. 13 Of course, your task is not simply to 14 decide what aggravating and mitigating factors 15 exist here. Rather, you are called upon to 16 evaluate any such factors and to make a unique, 17 individualized choice between the death penalty 18 and life in prison without the possibility of 19 release. In short, the law does not assume 20 that every defendant found guilty of committing 21 murder should be sentenced to death. Nor does 22 the law presume that Mr. Mohamed, in 23 particular, should be sentenced to death. 24 Rather, your decision on the question of 25 punishment is a uniquely personal judgment REPORTERS CENTRAL (212) 594-3582 8707 1 173lbinf CHARGE 2 which the law, in the final analysis, leaves up 3 to each of you. 4 The government, at all times and as 5 to all the capital counts, has the burden of 6 proving beyond a reasonable doubt that the 7 appropriate sentence for Mr. Mohamed is in fact 8 the death penalty. Specifically, that means 9 that the government must prove as to each 10 capital count all of the following beyond a 11 reasonable doubt: (1) the existence of at 12 least one gateway factor; (2) the existence of 13 at least one statutory aggravating factor; (3) 14 the existence, if any, of non-statutory 15 aggravating factors; and (4) that all the 16 aggravating factors found to exist sufficiently 17 outweigh all of the mitigating factors found to 18 exist as to make a sentence of death 19 appropriate, or, in the absence of any 20 mitigating factor, that the aggravating factors 21 found to exist alone make a sentence of death 22 appropriate. 23 A "reasonable doubt" is a doubt based 24 upon reason and common sense after careful and 25 impartial consideration of all the evidence. REPORTERS CENTRAL (212) 594-3582 8708 1 173lbinf CHARGE 2 Proof beyond a reasonable doubt must be proof 3 of such a convincing character that a 4 reasonable person would rely and act upon it 5 without hesitation in the most important 6 matters of his or her own affairs. Yet proof 7 beyond a reasonable doubt does not mean proof 8 beyond all possible doubt. 9 A defendant never has the burden of 10 disproving the existence of anything which the 11 government must prove beyond a reasonable 12 doubt. The burden is wholly upon the 13 government; the law does not at all require 14 Mr. Mohamed to produce evidence that a 15 particular aggravating factor does not exist or 16 that death is not an appropriate sentence. 17 As such, Mr. Mohamed is not required 18 to assert or establish any mitigating factors. 19 However, if one or more mitigating factors are 20 asserted, it is Mr. Mohamed's burden to 21 establish any mitigating factors by a 22 preponderance of the evidence. To prove 23 something by a preponderance of the evidence is 24 a lesser standard of proof than proof beyond a 25 reasonable doubt. To prove something by a REPORTERS CENTRAL (212) 594-3582 8709 1 173lbinf CHARGE 2 preponderance of the evidence is to prove that 3 it is more likely true than not true. It is 4 determined by considering all of the evidence 5 and deciding what of the evidence is more 6 believable. If, however, the evidence is 7 equally balanced, you cannot find that the 8 mitigating factor has been proved. 9 The preponderance of the evidence is 10 not determined by the greater number of 11 witnesses or exhibits presented by the 12 government or the defendant. Rather, it is the 13 quality and persuasiveness of the information 14 which controls. 15 In making all the determinations you 16 are required to make in this phase of the 17 trial, you may consider any information 18 presented during this penalty phase and the 19 guilt phase, but excluding any evidence which 20 was introduced solely against another 21 defendant. Also, recall that for our purposes 22 here the terms "evidence" and "information" 23 have the same meaning. 24 In deciding what the facts are, you 25 may have to decide which testimony you believe REPORTERS CENTRAL (212) 594-3582 8710 1 173lbinf CHARGE 2 and what testimony you do not believe. You may 3 believe all of what a witness said, or only 4 part of it, or none of it. In deciding what 5 testimony of any witness to believe, consider 6 the witness's intelligence, the opportunity the 7 witness had to see or hear the things testified 8 about, the witness's memory, any motives that 9 witness may have for testifying in a certain 10 way, the manner of the witness while 11 testifying, whether that witness said something 12 different at an earlier time, the general 13 reasonableness of the testimony, and the extent 14 to which the testimony is consistent with other 15 evidence that you believe. 16 Additionally, because the law does 17 not permit any witness to state whether he or 18 she favors or opposes the death penalty in this 19 case, you should draw no inference either way 20 from the fact that no witnesses have testified 21 as to their views on this subject. 22 Mr. Mohamed did not testify in this 23 case. He has a right not to do so and there is 24 no burden upon Mr. Mohamed to prove that he 25 should not be sentenced to death. Instead, the REPORTERS CENTRAL (212) 594-3582 8711 1 173lbinf CHARGE 2 burden is entirely on the prosecution to prove, 3 beyond a reasonable doubt, that a sentence of 4 death is in fact justified. Accordingly, that 5 Mr. Mohamed did not testify must not be 6 considered by you in any way, or even 7 discussed, in arriving at any aspect of your 8 sentencing decision, including the existence or 9 nonexistence of an alleged aggravating or 10 mitigating factor. 11 You must deliberate and determine the 12 appropriate sentence for each of the capital 13 counts separately. Although I will be 14 discussing the capital counts as a group, your 15 findings regarding gateway factors, aggravating 16 factors, and all other issues pertaining to 17 these counts must treat each of these counts 18 separately. It is possible that, even though 19 all of the counts are connected with the 20 bombing of the Dar es Salaam embassy, you may 21 find differences which would justify different 22 sentences on different counts. 23 The instructions I am about to give 24 you, as well as the Special Verdict Form you 25 will be completing, will first address your REPORTERS CENTRAL (212) 594-3582 8712 1 173lbinf CHARGE 2 findings, if any, regarding the four so-called 3 "gateway factors" and the statutory aggravating 4 factors identified by the government with 5 regard to each capital count. The instructions 6 and the Special Verdict Form thereafter address 7 your findings, if any, as to each capital count 8 regarding the existence of non-statutory 9 aggravating factors and mitigating factors, as 10 well as the weighing of aggravating and 11 mitigating factors. 12 Finding of gateway factors: Before 13 you may consider the imposition of the death 14 penalty for any capital count, you must first 15 unanimously find, beyond a reasonable doubt, 16 the existence as to that count of at least one 17 of the four gateway factors identified by the 18 government. The gateway factors are as 19 follows: 20 1. That the defendant intentionally 21 killed the victim or victims of the particular 22 capital offense charged in the respective count 23 of the indictment; or 24 2. That the defendant intentionally 25 inflicted serious bodily injury that resulted REPORTERS CENTRAL (212) 594-3582 8713 1 173lbinf CHARGE 2 in the death of the victim or victims of the 3 particular capital offense charged in the 4 respective count of the indictment; or 5 3. That the defendant intentionally 6 participated in an act, contemplating that the 7 life of a person would be taken or intending 8 that lethal force would be used in connection 9 with a person, other than one of the 10 participants in the offense, and the victim or 11 victims of the particular capital offense 12 charged in the respective count of the 13 indictment died as a direct result of the act; 14 or 15 4. That the defendant intentionally 16 and specifically engaged in an act of violence, 17 knowing that the act created a grave risk of 18 death to a person, other than one of the 19 participants in the offense, such that 20 participation in the act constituted a reckless 21 disregard for human life and the victim or 22 victims of the particular capital offense 23 charged in the respective count of the 24 indictment died as a direct result of the fact. 25 Your findings as to whether the REPORTERS CENTRAL (212) 594-3582 8714 1 173lbinf CHARGE 2 government has proven the existence, beyond a 3 reasonable doubt, of a particular factor from 4 among these four gateway factors must be 5 separate and unanimous as to each capital 6 count. 7 And with regard to your findings, you 8 may not rely solely upon your first-stage 9 verdict of guilt or your factual determinations 10 therein. Instead, you must now each decide 11 this issue for yourselves again. 12 Any finding that a gateway factor has 13 been proven as to a particular capital count 14 must be based on Mr. Mohamed's personal actions 15 and intent. Intent or knowledge may be proven 16 like anything else. You may consider any 17 statements made and acts done by Mr. Mohamed, 18 and all the facts and circumstances in evidence 19 which may aid in a determination of 20 Mr. Mohamed's knowledge or intent. You may, 21 but are not required to, infer that a person 22 intends the natural and probable consequences 23 of acts knowingly done or knowingly omitted. 24 In the event that you unanimously 25 find, beyond a reasonable doubt, that a REPORTERS CENTRAL (212) 594-3582 8715 1 173lbinf CHARGE 2 particular gateway factor exists as to all the 3 capital counts, you are to indicate that 4 finding on the appropriate line in Section I, 5 Part A of the Special Verdict Form. In the 6 event that you unanimously find, beyond a 7 reasonable doubt, that a particular gateway 8 factor exists as to some but not all of the 9 capital counts, you are to indicate that 10 finding on the appropriate line in Section I, 11 Part A of the Special Verdict Form, and also 12 identify on the line provided, by count number, 13 the specific capital counts as to which you 14 find that gateway factor applies. If you do 15 not unanimously find that a particular gateway 16 factor has been proven beyond a reasonable 17 doubt with respect to any of the capital 18 counts, you should mark the appropriate space 19 in Section I, Part A. 20 I instruct you that any gateway 21 factor found by you to exist is not an 22 aggravating factor and may not be weighed by 23 you in deciding whether or not to impose a 24 sentence of death. 25 For any capital count, if you do not REPORTERS CENTRAL (212) 594-3582 8716 1 173lbinf CHARGE 2 unanimously find that the government has proven 3 beyond a reasonable doubt the existence as to 4 that count of any of the four gateway factors, 5 your deliberative task as to that capital count 6 will be over and the Court will impose a 7 mandatory sentence on that count of life 8 imprisonment without the possibility of 9 release. Section I, Part B of the Special 10 Verdict Form provides a space for you to 11 indicate those counts, if any, for which you 12 have not unanimously found that the government 13 has proven beyond a reasonable doubt the 14 existence of any gateway factor. 15 I might say here that with respect to 16 the Special Verdict Form, the sections with 17 respect to gateway factors, statutory factors 18 and non-statutory factors are the same as they 19 were with respect to the prior proceedings. 20 The only differences are with respect to the 21 names and the count numbers. And so I won't go 22 over with you again those portions of the 23 Special Verdict Form. It doesn't mean they are 24 not important, that you don't have to 25 conscientiously complete them, but I just won't REPORTERS CENTRAL (212) 594-3582 8717 1 173lbinf CHARGE 2 bother to re-read them again because you are 3 quite familiar with them already. 4 Turning, then, to statutory 5 aggravating factors. 6 If and only if you unanimously find 7 that the government has proven, beyond a 8 reasonable doubt, that at least one of the four 9 gateway factors exists as to a particular 10 capital count, you must then proceed to 11 determine whether the government has proven, 12 beyond a reasonable doubt, the existence of any 13 of the following four statutory aggravating 14 factors with respect to that same count: 15 1. The deaths, and injuries 16 resulting in death, occurred during the 17 commission or attempted commission of another 18 offense, namely, one of the following offenses 19 listed under Title 18, United States Code: 20 Section 844(f)(bombing of property leased to 21 the United States Government); Section 1116 22 (killing or attempted killing of 23 internationally protected persons); Section 24 2332 (terrorist acts abroad against United 25 States nationals); or Section 2332a (use of a REPORTERS CENTRAL (212) 594-3582 8718 1 173lbinf CHARGE 2 weapon of mass destruction). 3 2. The defendant, in the commission 4 of the offense, knowingly created a grave risk 5 of death to one or more persons in addition to 6 the victims of the offense. 7 3. The defendant committed the 8 offense after substantial planning and 9 premeditation to cause the death of one or more 10 persons or to commit an act of terrorism. 11 4. The defendant intentionally 12 killed or attempted to kill more than one 13 person in a single episode. 14 At this point the law directs you to 15 consider and decide -- separately as to each of 16 the capital counts for which you have 17 unanimously found the existence of at least one 18 gateway factor -- the existence or nonexistence 19 of the statutory aggravating factors 20 specifically claimed by the government. You 21 are reminded that to find the existence of a 22 statutory aggravating factor as to a particular 23 count, your decision must be unanimous and 24 beyond a reasonable doubt. Any finding that 25 one or more of these factors has been proven REPORTERS CENTRAL (212) 594-3582 8719 1 173lbinf CHARGE 2 must be based on Mr. Mohamed's personal actions 3 and intent. 4 In the event that you unanimously 5 find, beyond a reasonable doubt, that a 6 particular statutory aggravating factor exists 7 as to all the capital counts for which you have 8 found the existence of at least one gateway 9 factor, you are to indicate that finding on the 10 appropriate line in Section II, Part A of the 11 Special Verdict Form. In the event that you 12 unanimously find, beyond a reasonable doubt, 13 that a particular statutory aggravating factor 14 exists as to some but not all of the capital 15 counts for which you have found the existence 16 of at least one gateway factor, you are to 17 indicate that finding on the appropriate line 18 in Section II, Part A of the Special Verdict 19 Form, and also identify on the line provided, 20 by count number, the particular counts as to 21 which you find the statutory aggravating factor 22 applies. If you do not unanimously find that a 23 particular statutory aggravating factor has 24 been proven beyond a reasonable doubt with 25 respect to any of the capital counts you are REPORTERS CENTRAL (212) 594-3582 8720 1 173lbinf CHARGE 2 considering, you should mark the appropriate 3 space in Section II, Part A of the Special 4 Verdict Form. 5 For any capital count for which you 6 unanimously found the existence of at least one 7 gateway factor, if you do not also unanimously 8 find as to that same count the existence of at 9 least one statutory aggravating factor, then 10 your deliberative task as to that count will be 11 over and the Court will impose a mandatory 12 sentence on that count of life imprisonment 13 without the possibility of release. Section 14 II, Part B of the Special Verdict Form provides 15 a space for you to indicate those counts, if 16 any, for which you have not unanimously found 17 that the government has proven beyond a 18 reasonable doubt the existence of any 19 aggravating factor. 20 Let me now instruct you in detail on 21 the specific elements necessary for the 22 government to prove each of these four 23 statutory aggravating factors beyond a 24 reasonable doubt. 25 The first statutory aggravating REPORTERS CENTRAL (212) 594-3582 8721 1 173lbinf CHARGE 2 factor alleged by the government with regard to 3 the various counts is that the deaths or 4 injuries resulting in death of the victim or 5 victims identified in a particular count 6 occurred during the commission of a crime other 7 than the crime charged in that particular 8 count. Thus, as to each count, you must 9 determine if the victim or victims identified 10 was killed during the commission of certain 11 other crimes, as those other crimes are set 12 forth in the Special Verdict Form. Depending 13 on the particular count, the other crimes 14 alleged are one or more of the following 15 offenses: 18 U.S.C. 844(f)(bombing of property 16 leased to the United States Government); 18 17 U.S.C. 1116 (killing or attempted killing of 18 internationally protected persons); 18 U.S.C. 19 2332 (terrorist acts abroad against United 20 States nationals); and 18 U.S.C. 2332a (use of 21 a weapon of mass destruction). 22 In order to prove that the deaths or 23 injuries resulting in death occurred during the 24 commission of the separate offense of bombing 25 of property leased to the United States REPORTERS CENTRAL (212) 594-3582 8722 1 173lbinf CHARGE 2 Government (in violation of 18 U.S.C. Section 3 844(f)), the government must prove beyond a 4 reasonable doubt exactly that, that the death 5 or injury resulting in death of the victim or 6 victims identified in the particular count 7 occurred during the commission of a violation 8 of 18 U.S.C. Section 844(f). You have 9 previously found that Mr. Mohamed violated 18 10 U.S.C. 844(f), as reflected in your guilty 11 verdict on Count 6. Accordingly, solely as to 12 Count 6, you may not consider the commission of 13 the violation of 18 U.S.C. Section 844(f) as 14 "another crime." 15 In order to prove that the deaths or 16 injuries resulting in death occurred during the 17 commission of the separate offense of killing 18 or attempted killing of internationally 19 protected persons (in violation of 18 U.S.C. 20 Section 1116), the government must prove beyond 21 a reasonable doubt exactly that, that the death 22 or injury resulting in death of one or more of 23 the victims of the Dar es Salaam bombing 24 occurred during the commission or attempted 25 commission of a violation of 18 U.S.C. Section REPORTERS CENTRAL (212) 594-3582 8723 1 173lbinf CHARGE 2 1116. You have previously found that 3 Mr. Mohamed violated 18 U.S.C. Section 1116, as 4 reflected in your guilty verdict on Count 281. 5 In order to prove that the deaths or 6 injuries resulting in death occurred during the 7 commission of the separate offense of terrorist 8 acts abroad against United States nationals (in 9 violation of 18 U.S.C. Section 2332), the 10 government must prove beyond a reasonable doubt 11 exactly that, that the death or injury 12 resulting in death of one or more of the 13 victims of the Dar es Salaam bombing occurred 14 during the commission of a violation of 18 15 U.S.C. 2332. You have previously found that 16 Mr. Mohamed violated 18 U.S.C. 2332, as 17 reflected in your guilty verdict on Count 1. 18 Excuse me just a moment. 19 (Pause) 20 THE COURT: In order to prove that 21 the deaths or injuries resulting in death 22 occurred during the commission of the separate 23 offense of use of a weapon of mass destruction 24 against United States nationals, (in violation 25 of 18 U.S.C. 2332a) the government must prove REPORTERS CENTRAL (212) 594-3582 8724 1 173lbinf CHARGE 2 beyond a reasonable doubt exactly that, that 3 the death or injury resulting in death of one 4 or more of the victims of the Dar es Salaam 5 bombing occurred during the commission of a 6 violation of 18 U.S.C. 2332a. You have 7 previously found that Mr. Mohamed violated 18 8 U.S.C. 2332a, as reflected in your guilty 9 verdict on Count 8. Accordingly, solely as to 10 Count 8, you may not consider the commission of 11 the violation of 18 U.S.C. 2332a as "another 12 crime." 13 For each of the capital counts you 14 are considering, in order to find that the 15 government has satisfied its burden of proving 16 beyond a reasonable doubt that the deaths or 17 injuries resulting in death of the victims of 18 the Dar es Salaam bombing occurred during the 19 commission of one or more of these other 20 offenses, you must unanimously agree on which 21 other offenses were committed by Mr. Mohamed. 22 Your finding as to this statutory aggravating 23 factor must be indicated in the appropriate 24 space in Section II, Part A.1 of the Special 25 Verdict Form. REPORTERS CENTRAL (212) 594-3582 8725 1 173lbinf CHARGE 2 The second statutory aggravating 3 factor alleged by the government with regard to 4 the capital counts is that, in the commission 5 of the particular offenses, the defendant 6 knowingly created a grave risk of death to one 7 or more persons in addition to the deceased 8 victim or victims identified in that particular 9 count. 10 To establish the existence of this 11 factor, the government must prove beyond a 12 reasonable doubt that Mr. Mohamed, in 13 committing the offense described in the capital 14 count you are considering, knowingly created a 15 grave risk of death to one or more persons in 16 addition to the deceased victim or victims 17 identified in the particular count. 18 "Knowingly" creating such a risk 19 means that Mr. Mohamed was conscious and aware 20 that his conduct in the course of committing 21 the offense might have this result. 22 Mr. Mohamed's conduct cannot merely have been 23 the product of ignorance, mistake or accident. 24 Knowledge may be proved like anything else. 25 You may consider any statements made and acts REPORTERS CENTRAL (212) 594-3582 8726 1 173lbinf CHARGE 2 done by Mr. Mohamed, and all the facts and 3 circumstances in evidence which may aid in a 4 determination of Mr. Mohamed's knowledge. 5 "Grave risk of death" means a 6 significant and considerable possibility that 7 another person might be killed. In order to 8 find that the government has proven this factor 9 beyond a reasonable doubt, you must unanimously 10 agree on a particular person or a class of 11 persons who were placed in danger by 12 Mr. Mohamed's actions. 13 "Persons in addition to the victims" 14 include innocent bystanders in the zone of 15 danger created by the defendant's acts, but do 16 not include other participants in the offense. 17 Your finding as to this statutory 18 aggravating factor must be indicated in Section 19 II, Part A.2 of the Special Verdict Form. 20 The third statutory aggravating 21 factor alleged by the government with regard to 22 the capital counts is that the defendant 23 committed the offenses under the particular 24 counts after substantial planning and 25 premeditation to cause the death of a person or REPORTERS CENTRAL (212) 594-3582 8727 1 173lbinf CHARGE 2 to commit an act of terrorism. 3 "Planning" means mentally formulating 4 a method for doing something or achieving some 5 end. 6 "Premeditation" means thinking or 7 deliberating about something and deciding 8 whether to do it beforehand. 9 "Substantial" planning and 10 premeditation means a considerable or 11 significant amount of planning and 12 premeditation. 13 An "act of terrorism" is an act 14 calculated to influence or affect the conduct 15 of government by intimidation or coercion, or 16 to retaliate against government conduct. 17 To find that Mr. Mohamed -- strike 18 that. I misspoke. 19 To find that the government has 20 satisfied its burden of proving beyond a 21 reasonable doubt that Mr. Mohamed engaged in 22 substantial planning and premeditation either 23 to cause the death of a person or to commit an 24 act of terrorism, you must unanimously agree on 25 the particular object of the substantial REPORTERS CENTRAL (212) 594-3582 8728 1 173lbinf CHARGE 2 planning and premeditation, either to cause the 3 death of a person, to commit an act of 4 terrorism, or to do both. Your finding as to 5 this statutory aggravating factor must be 6 indicated in the appropriate space in Section 7 II, Part A.3 of the Special Verdict Form. 8 The fourth and final statutory 9 aggravating factor alleged by the government 10 with regard to the capital counts is that the 11 defendant intentionally killed or attempted to 12 kill more than one single person in a single 13 criminal enterprise. 14 To establish the existence of this 15 factor, the government must prove beyond a 16 reasonable doubt that Mr. Mohamed intentionally 17 killed or attempted to kill more than one 18 person in a single criminal episode. You must 19 unanimously agree on the particular actual or 20 intended victims or a class of intended victims 21 in order to find that this factor has been 22 proven beyond a reasonable doubt. 23 "Intentionally killing" a person 24 means killing a person on purpose, that is: 25 Willfully, deliberately, or with a conscious REPORTERS CENTRAL (212) 594-3582 8729 1 173lbinf CHARGE 2 desire to cause a person's death (and not just 3 accidentally or involuntarily). 4 "Attempting to kill" a person means 5 purposefully doing some act which constitutes a 6 substantial step (beyond mere preparation or 7 planning) toward killing a person, and doing so 8 with the intent to cause a person's death. You 9 may not find that the defendant attempted to 10 kill a person who was actually killed. 11 "A single criminal episode" is an act 12 or series of related criminal acts which occur 13 within a relatively limited time and place, or 14 are directed at the same person or persons, or 15 are part of a continuous course of conduct 16 related in time, place, or purpose. 17 You may, but are not required to, 18 infer that a person of sound mind intended the 19 ordinary, natural, and probable consequences of 20 his knowing and voluntary acts. Thus, you may 21 infer from Mr. Mohamed's conduct that he 22 intended to kill a person if you find: (1) 23 that Mr. Mohamed was a person of sound mind; 24 (2) that the victim's death was an ordinary, 25 natural, and probable consequence of REPORTERS CENTRAL (212) 594-3582 8730 1 173lbinf CHARGE 2 Mr. Mohamed's acts (even if the victim's death 3 did not actually result, in the case of an 4 attempt); and (3) that Mr. Mohamed committed 5 these acts knowingly and voluntarily. But once 6 again, you are not required to make such an 7 inference. Your finding as to this statutory 8 aggravating factor must be indicated in the 9 appropriate space in Section II, Part A.4 of 10 the Special Verdict Form. 11 Please let me reiterate that if, with 12 respect to any capital count, you do not 13 unanimously find that the government has proven 14 beyond a reasonable doubt at least one 15 statutory aggravating factor, your 16 deliberations as to that particular count are 17 concluded. And please identify any such counts 18 in Section II, Part B of the Special Verdict 19 Form. 20 Let me give the court reporter a 21 minute's respite. 22 Let me see counsel at the side, 23 without the reporter. 24 (Discussion at sidebar off the 25 record) REPORTERS CENTRAL (212) 594-3582 8731 1 173lbinf CHARGE 2 THE COURT: Non-statutory aggravating 3 factors: If but only if you have unanimously 4 found that the government has proven beyond a 5 reasonable doubt the existence as to a 6 particular capital count of at least one 7 gateway factor and at least one statutory 8 aggravating factor alleged by the government, 9 you must then consider whether the government 10 has proven the existence of any non-statutory 11 aggravating factors with regard to that same 12 count. You must agree unanimously, and 13 separately as to each count, that the 14 government has proven beyond a reasonable doubt 15 the existence of any of the alleged 16 non-statutory aggravating factors before you 17 may consider that non-statutory aggravating 18 factor in your deliberations. 19 The law permits you to consider and 20 discuss only the three non-statutory 21 aggravating factors specifically claimed by the 22 government in advance and listed below. You 23 are not free to consider any other factors in 24 aggravation that you conceive of on your own. 25 The non-statutory aggravating factors REPORTERS CENTRAL (212) 594-3582 8732 1 173lbinf CHARGE 2 alleged by the government with regard to each 3 of the capital counts are as follows: 4 A. The defendant poses a continuing 5 and serious threat to the lives and safety of 6 others with whom he will come in contact. 7 B. As demonstrated by the deceased 8 victims' personal characteristics as individual 9 human beings and the impact of the deaths upon 10 the deceased victims' families, the defendant 11 caused injury, harm, and loss to those victims 12 and their families, and the defendant caused 13 serious physical and emotional injury and 14 grievous economic hardship to numerous 15 individuals who survived the bombing. 16 C. The victims and intended victims 17 included high-ranking public officials of the 18 United States serving abroad and the offense 19 was motivated by such status. 20 These non-statutory aggravating 21 factors are self-explanatory and do not require 22 substantive instruction. Note that the 23 non-statutory aggravating factor of future 24 dangerousness may only be considered by you in 25 the context of both the mandatory life sentence REPORTERS CENTRAL (212) 594-3582 8733 1 173lbinf CHARGE 2 without the possibility of release that must be 3 imposed by the Court if Mr. Mohamed is not 4 sentenced to death, and the conditions of 5 confinement that may likely be imposed by the 6 United States Bureau of Prisons. 7 Again, your findings regarding these 8 factors must be separate and unanimous with 9 regard to each capital count you are 10 considering. You also must unanimously agree, 11 beyond a reasonable doubt, that the 12 non-statutory aggravating factor alleged by the 13 government is in fact aggravating. As I 14 mentioned at the beginning of this sentencing 15 hearing, an aggravating factor is a fact or 16 circumstance that would tend to support 17 imposition of the death penalty. 18 In the event that you unanimously 19 find, beyond a reasonable doubt, that a 20 particular non-statutory aggravating factor 21 applies to all of the capital counts for which 22 you have found at least one gateway factor and 23 at least one statutory aggravating factor, you 24 are to indicate that finding on the appropriate 25 line in Section III of the Special Verdict REPORTERS CENTRAL (212) 594-3582 8734 1 173lbinf CHARGE 2 Form. In the event that you unanimously find 3 that a particular non-statutory aggravating 4 factor applies to some but not all of these 5 counts, you are to indicate that finding on the 6 appropriate line in Section III of the Special 7 Verdict Form, and also indicate on the line 8 provided, by count number, the particular 9 counts as to which you find the non-statutory 10 aggravating factor applies. 11 If you do not unanimously find that a 12 non-statutory aggravating factor has been 13 proven beyond a reasonable doubt with regard to 14 any capital count, you should so indicate in 15 Section III of the Special Verdict Form. 16 Unlike with gateway factors and 17 statutory aggravating factors, you are not 18 required to find a non-statutory aggravating 19 factor with regard to a particular count before 20 you may consider the death penalty as the 21 possible sentence for that count. Rather, the 22 law only requires that before the jury may 23 consider an alleged non-statutory aggravating 24 factor in its sentencing decision as to any 25 capital count, the jury must first unanimously REPORTERS CENTRAL (212) 594-3582 8735 1 173lbinf CHARGE 2 agree that the government has proven beyond a 3 reasonable doubt the existence of that factor 4 as to that count. 5 After you have completed your 6 findings regarding the existence or 7 nonexistence of non-statutory aggravating 8 factors, you should proceed to Section IV of 9 the Special Verdict Form, to consider whether 10 any mitigating factors exist. Remember, unless 11 you are unanimous that the existence of a 12 particular statutory or non-statutory 13 aggravating factor has been proven by the 14 government beyond a reasonable doubt, you may 15 not give that factor any further consideration 16 during any of your deliberations. 17 And then we turn to mitigating 18 factors. 19 Before you may consider the 20 appropriate punishment for any of the capital 21 counts for which you have unanimously found the 22 existence of at least one gateway factor and at 23 least one statutory aggravating factor, you 24 must consider whether Mr. Mohamed has proven 25 the existence of any mitigating factors with REPORTERS CENTRAL (212) 594-3582 8736 1 173lbinf CHARGE 2 regard to those counts. A mitigating factor is 3 not offered to justify or excuse Mr. Mohamed's 4 conduct. Instead, a mitigating factor is a 5 fact about Mr. Mohamed's life or character, or 6 about the circumstances surrounding the 7 particular capital offense, or anything else 8 relevant that would suggest, in fairness, that 9 life in prison without the possibility of 10 release is a more appropriate punishment than a 11 sentence of death. 12 Unlike with aggravating factors, 13 which you must unanimously find proven beyond a 14 reasonable doubt in order for you even to 15 consider them in your deliberations, the law 16 does not require unanimity with regard to 17 mitigating factors. Any one juror who is 18 persuaded of the existence of a mitigating 19 factor must consider it in his or her 20 sentencing decision. 21 Furthermore, it is Mr. Mohamed's 22 burden to establish a mitigating factor only by 23 a preponderance of the evidence. As I have 24 told you, this is a lesser standard of proof 25 under the law than proof beyond a reasonable REPORTERS CENTRAL (212) 594-3582 8737 1 173lbinf CHARGE 2 doubt. A factor is established by a 3 preponderance of the evidence if its existence 4 is shown to be more likely so than not so. In 5 other words, a preponderance of the evidence 6 means such evidence as, when considered and 7 compared with that opposed to it, produces in 8 your mind the belief that what is sought to be 9 established is, more likely than not, true. 10 If, however, the evidence is equally balanced, 11 you cannot find that the factor has been 12 proved. 13 Mr. Mohamed urges as mitigating 14 factors two undisputed matters of law, which 15 you are to consider during the weighing 16 process. Extrapolating, saying something that 17 isn't here, there are certain other matters of 18 fact which are undisputed, such as his age, but 19 these two we single out because these are 20 undisputed matters of law which you are to 21 consider during the weighing process. 22 These factors are, and it was listed 23 as D in the original listing: If Khalfan 24 Mohamed is not sentenced to death, the law 25 mandates that he will spend the rest of his REPORTERS CENTRAL (212) 594-3582 8738 1 173lbinf CHARGE 2 life in a United States prison without any 3 possibility of release. 4 K. As a matter of South African law, 5 Khalfan Mohamed should not have been released 6 to American officials without assurances that 7 he would not face the death penalty in the 8 United States. 9 In addition to those two undisputed 10 matters of law, the following are mitigating 11 factors alleged by Mr. Mohamed as to which you 12 will be called upon to render a verdict 13 indicating whether you find the factors to 14 exist: 15 A. Khalfan Mohamed's role in the 16 offense and relative culpability, as set out 17 below: 18 (1) Khalfan Mohamed was not a leader 19 or organizer of the conspiracy which led to the 20 bombing of the Dar es Salaam embassy. 21 (2) Although Khalfan Mohamed is 22 guilty of the murders, his participation was 23 relatively minor. 24 (3) Khalfan Mohamed was recruited by 25 others as someone who was an expendable member REPORTERS CENTRAL (212) 594-3582 8739 1 173lbinf CHARGE 2 of the conspiracy. 3 B. Others of equal or greater 4 culpability in the murders will not be 5 sentenced to death. 6 C. Khalfan Mohamed's postarrest 7 statement was: 8 (1) complete and truthful. 9 (2) demonstrated acceptance of 10 responsibility. 11 (3) provided the interviewing agents 12 with valuable information. 13 E. Khalfan Mohamed has no prior 14 history of criminal behavior. 15 F. Executing Khalfan Mohamed will 16 cause his family to suffer grief and loss. 17 G. Khalfan Mohamed is remorseful for 18 the deaths, injuries and other consequences of 19 the bombing of the embassy and would not 20 participate in such a crime in the future. 21 H. Khalfan Mohamed acted out of 22 sincere religion belief. 23 I. At the time of the offense, 24 Khalfan Mohamed was 25 years old. 25 J. If Khalfan Mohamed is executed, REPORTERS CENTRAL (212) 594-3582 8740 1 173lbinf CHARGE 2 he will be seen as a martyr and his death may 3 be exploited by others to justify future 4 terrorist acts. 5 L. Khalfan Mohamed's personal 6 characteristics as an individual human being 7 include the following: 8 (1) Khalfan Mohamed has exhibited 9 responsible conduct in other areas of his life. 10 (2) Khalfan Mohamed has shown himself 11 to be a person capable of kindness, friendship 12 and generosity. 13 (3) Khalfan Mohamed lost his father 14 at an early age, and worked to help his family, 15 which struggled financially after the death of 16 the major breadwinner. 17 In Section IV of the Special Verdict 18 Form, you are asked to report the total number 19 of jurors who individually find a particular 20 mitigating factor to be established by a 21 preponderance of the evidence. 22 And let's just look briefly at the 23 Special Verdict Form on page 12, and you will 24 see there it has the instructions with respect 25 to the various mitigating factors. REPORTERS CENTRAL (212) 594-3582 8741 1 173lbinf CHARGE 2 D and K, which are the undisputed 3 matters of law, appear in the second paragraph 4 because there is no need for you to make any 5 finding as to that. And then below you will 6 see the various alleged mitigating factors and 7 the spaces for you to indicate the number of 8 jurors who find that those enumerated 9 mitigating factors existed. 10 I am on the last line on page 24: 11 In addition to the 12 mitigating 12 factors specifically raised by the defendant, 13 the law permits you to consider anything about 14 the circumstances of the offense, or anything 15 about Mr. Mohamed's background, record, or 16 character, or anything else relevant that you 17 individually believe mitigates against the 18 imposition of the death penalty. As such, if 19 there are any mitigating factors not argued by 20 the attorneys for Mr. Mohamed but which any 21 juror, on his or her own or with others, finds 22 to be established by a preponderance of the 23 evidence, that juror is free to consider it in 24 his or her sentencing determination. And in 25 Section IV of the Special Verdict Form, you are REPORTERS CENTRAL (212) 594-3582 8742 1 173lbinf CHARGE 2 to identify any such additional mitigating 3 factors that one or more of you independently 4 find to exist by a preponderance of the 5 evidence. 6 And you will see at the bottom of 7 page 14 of the Special Verdict Form, it says: 8 The law does not limit your consideration of 9 mitigating factors to those that can be 10 articulated in advance. Therefore, you may 11 consider during your deliberations any other 12 factor or factors in Khalfan Mohamed's 13 background, record, character, or any other 14 circumstances of the offense that mitigate 15 against imposition of a death sentence. 16 And the following extra spaces are 17 provided to write in additional mitigating 18 factors if found by one or more jurors, and if 19 more space is needed, write "continued" and 20 there is a space for you to write in mitigating 21 factor, which one or more juror finds exists, 22 although not alleged or argued by counsel, and 23 then the number of jurors who have so found. 24 At this time, I wish to make a 25 clarifying point: The existence of a REPORTERS CENTRAL (212) 594-3582 8743 1 173lbinf CHARGE 2 mitigating factor is a predicate and distinct 3 consideration from whatever weight, if any, 4 should ultimately be given that factor in your 5 deliberations. For example, any number of 6 jurors might first find that a particular 7 mitigating factor is factually true, that is, 8 that the factor exists, but those jurors as 9 individuals might later choose to give that 10 same mitigating factor differing levels of 11 significance during the weighing process. With 12 this distinction in mind, Section IV of the 13 Special Verdict Form only asks you to report 14 the total number of jurors who individually 15 find the existence of a particular mitigating 16 factor to be established by a preponderance of 17 the evidence. 18 After you have completed your 19 findings regarding the existence or 20 nonexistence of mitigating factors, you should 21 proceed to Section V of the Special Verdict 22 Form, to weigh the aggravating factors and 23 mitigating factors with regard to each of the 24 counts for which you have unanimously found at 25 least one gateway factor and at least one REPORTERS CENTRAL (212) 594-3582 8744 1 173lbinf CHARGE 2 statutory aggravating factor. 3 If and only if you unanimously find, 4 beyond a reasonable doubt, that the government 5 has proven the existence of at least one 6 gateway factor and at least one statutory 7 aggravating factor with regard to any capital 8 count; and after you then determine whether the 9 government has proven beyond a reasonable doubt 10 the existence of any non-statutory aggravating 11 factors with regard to that count, and whether 12 Mr. Mohamed has proven by a preponderance of 13 the evidence the existence of any mitigating 14 factors, you must then engage in a weighing 15 process with regard to that count. This 16 weighing process asks whether you are 17 unanimously persuaded, beyond a reasonable 18 doubt, that the aggravating factors 19 sufficiently outweigh any mitigating factors -- 20 or, in the absence of any mitigating factors, 21 that the aggravating factors are themselves 22 sufficient -- to call for a sentence of death 23 on the particular capital count you are 24 considering. 25 You are to conduct this weighing REPORTERS CENTRAL (212) 594-3582 8745 1 173lbinf CHARGE 2 process separately with regard to each of the 3 capital counts for which you have found at 4 least one gateway factor and at least one 5 statutory aggravating factor. Each juror must 6 individually decide whether the facts and 7 circumstances in this case, and as to each 8 count, call for death as the appropriate 9 sentence. 10 In determining the appropriate 11 sentence for the capital count you are 12 considering, all of you must independently 13 weigh the aggravating factor or factors that 14 you unanimously found to exist with regard to 15 that count -- whether statutory or 16 non-statutory -- and each of you must weigh any 17 mitigating factors that you individually or 18 with others found to exist. You are not to 19 weigh any of the four gateway factors I 20 mentioned previously as part of this process. 21 In engaging in the weighing process, you must 22 avoid any influence of passion, prejudice, or 23 any other arbitrary consideration. Your 24 deliberations should be based upon the evidence 25 you have seen and heard, and the law on which I REPORTERS CENTRAL (212) 594-3582 8746 1 173lbinf CHARGE 2 have instructed you. 3 Again, whether or not the 4 circumstances in this case call for a sentence 5 of death is a decision that the law leaves 6 entirely to you. Remember that all 12 jurors 7 must agree beyond a reasonable doubt that death 8 is in fact the appropriate sentence, but that 9 no juror is ever required by the law to impose 10 a death sentence. The decision is yours as 11 individuals to make. 12 The process of weighing aggravating 13 and mitigating factors against each other -- or 14 weighing aggravating factors alone if you find 15 no mitigating factors -- in order to determine 16 the proper punishment, is by no means a 17 mechanical process. In other words, you should 18 not simply count the total number of 19 aggravating and mitigating factors and reach a 20 decision based on which number is greater; 21 rather, you should consider the weight and 22 value of each factor. In carefully weighing 23 these various factors, you are called upon to 24 make a unique, individual judgment about the 25 sentence Mr. Mohamed should receive. REPORTERS CENTRAL (212) 594-3582 8747 1 173lbinf CHARGE 2 The law contemplates that different 3 factors may be given different weights or 4 values by different jurors. Thus, you may find 5 one mitigating factor outweighs all aggravating 6 factors combined, or that the aggravating 7 factors proved do not, standing alone, justify 8 imposition of a sentence of death beyond a 9 reasonable doubt. Similarly, you may instead 10 find that a single aggravating factor 11 sufficiently outweighs, beyond a reasonable 12 doubt, all mitigating factors combined so as to 13 justify a sentence of death. 14 Each juror is individually to decide 15 what weight or value is to be given to a 16 particular aggravating or mitigating factor in 17 the decision-making process. Bear in mind, 18 however, that in order to find that a sentence 19 of death is appropriate for a particular count, 20 the jurors must be unanimous in their 21 conclusion, beyond a reasonable doubt, that the 22 aggravating factor or factors proven as to that 23 count sufficiently outweigh any mitigating 24 factors found -- or, in the absence of any 25 mitigating factors, that the aggravating REPORTERS CENTRAL (212) 594-3582 8748 1 173lbinf CHARGE 2 factors alone are sufficient -- to call for a 3 sentence of death. 4 If you unanimously find that the 5 government has failed to prove beyond a 6 reasonable doubt that death is the appropriate 7 sentence for Khalfan Khamis Mohamed for any 8 capital count, please so indicate in Section V 9 of the Special Verdict Form. The Court will 10 then sentence Mr. Mohamed on that count to life 11 imprisonment without the possibility of 12 release. The Court has no other sentencing 13 option. 14 In the event that you unanimously 15 find, beyond a reasonable doubt, that the 16 balancing process leads you to the conclusion 17 that a sentence of death is called for as to 18 all the capital counts, please so indicate in 19 Section V of the Special Verdict Form. In the 20 event that you unanimously find, beyond a 21 reasonable doubt, that the balancing process 22 leads you to the conclusion that a sentence of 23 death is called for as to some but not all of 24 the capital counts, so indicate in Section V of 25 the Special Verdict Form and also identify on REPORTERS CENTRAL (212) 594-3582 8749 1 173lbinf CHARGE 2 the line provided, by count number, the 3 particular counts as to which you unanimously 4 impose the death sentence. 5 In the event that you are unable to 6 reach a unanimous verdict either in favor of a 7 life sentence or in favor of a death sentence 8 for any of the capital counts, the Court will 9 then sentence the defendant to life 10 imprisonment without possibility of release. 11 The Court has no other sentencing option. 12 Before you reach any conclusion based on a lack 13 of unanimity on any count, you should continue 14 your discussions until you are fully satisfied 15 that no further discussion will lead to a 16 unanimous decision. If you are satisfied that 17 you cannot reach a unanimous decision either in 18 favor of a life sentence or in favor of a death 19 sentence for any of the counts, please so 20 indicate in the appropriate space in Section V 21 of the Special Verdict Form. 22 And let's look at that Special 23 Verdict Form, Section V. It's on page 16 and 24 it tells you that, as used in this section, the 25 term "capital counts" refers only to those REPORTERS CENTRAL (212) 594-3582 8750 1 173lbinf CHARGE 2 counts which you have found at least one 3 gateway factor in Section I, and at least one 4 statutory aggravating factor in Section II. 5 You may not impose a sentence of death on a 6 particular capital count unless you have first 7 found with regard to that count, unanimously 8 and beyond a reasonable doubt, at least one 9 gateway factor in Section I and at least one 10 statutory aggravating factor in Section II. 11 In this section, enter your 12 determination of the defendant's sentence with 13 regard to each of the capital counts. Your 14 vote as a jury must be unanimous with regard to 15 each question in this section. 16 And then your choices: 17 After considering the information 18 presented by both sides during the penalty 19 phase and individually balancing the 20 aggravating factors found to exist against the 21 mitigating factors found to exist: 22 First choice -- first in sequence 23 listed: We, the jury, unanimously find that 24 the government has failed to prove beyond a 25 reasonable doubt that death is the appropriate REPORTERS CENTRAL (212) 594-3582 8751 1 173lbinf CHARGE 2 sentence for Khalfan Khamis Mohamed for any of 3 the capital counts. We, therefore, return a 4 decision that K.K. Mohamed will be sentenced to 5 life imprisonment without the possibility of 6 release separately as to each count. 7 Second choice -- I emphasize second 8 only in the sequence in which they appear, not 9 indicating anything else: We, the jury, 10 unanimously find beyond a reasonable doubt, for 11 all of the capital counts, that the aggravating 12 factor or factors found to exist sufficiently 13 outweigh the mitigating factor or factors found 14 to exist -- or, in the absence of any 15 mitigating factors, that the aggravating factor 16 or factors are themselves sufficient -- so that 17 death is the appropriate sentence for Khalfan 18 Khamis Mohamed. We vote unanimously that 19 Khalfan Khamis Mohamed shall be sentenced to 20 death separately as to each count. 21 Next choice: We, the jury, 22 unanimously find beyond a reasonable doubt, for 23 some of the capital counts, that the 24 aggravating factor or factors found to exist 25 sufficiently outweigh the mitigating factor or REPORTERS CENTRAL (212) 594-3582 8752 1 173lbinf CHARGE 2 factors found to exist -- or, in the absence of 3 any mitigating factors, that the aggravating 4 factor or factors are themselves sufficient -- 5 so that death is the appropriate sentence for 6 Khalfan Khamis Mohamed with regard to each of 7 the following capital counts only (identify 8 each count by count number). 9 With regard to the above-listed 10 capital counts, we vote unanimously that 11 Khalfan Khamis Mohamed shall be sentenced to 12 death separately as to each count. With regard 13 to each of the remaining capital counts, we 14 sentence the defendant to life imprisonment 15 without the possibility of release separately 16 as to each count. 17 And the last alternative: We, the 18 jury, are unable to reach a unanimous verdict 19 either in favor of a life sentence or in favor 20 of a death sentence, for any of the capital 21 counts. We understand that the consequence of 22 this is that Khalfan Khamis Mohamed will be 23 sentenced to life imprisonment without the 24 possibility of release. 25 Returning to the charge, page 31: REPORTERS CENTRAL (212) 594-3582 8753 1 173lbinf CHARGE 2 In your consideration of whether the 3 death sentence is appropriate, you must not 4 consider the race, color, religious beliefs, 5 national origin, or sex of either the defendant 6 or the victims. You are not to return a 7 sentence of death unless you would return a 8 sentence of death for the crime in question 9 without regard to the race, color, religious 10 beliefs, national origin, or sex of either the 11 defendant or any victim. 12 To emphasize the importance of this 13 consideration, Section VI of the Special 14 Verdict Form contains a certification 15 statement. Each juror should carefully read 16 the statement, and sign your juror number in 17 the appropriate place if the statement 18 accurately reflects the manner in which each of 19 you reached your individual decision. 20 And Section VII calls for you to 21 complete the certification, signing your name 22 and placing the certification in an envelope, 23 which you will have on Thursday, and sealing it 24 so that your anonymity will be preserved. 25 I should say -- and that was a REPORTERS CENTRAL (212) 594-3582 8754 1 173lbinf CHARGE 2 subject of my conference with the attorneys -- 3 that considering all of the circumstances, we 4 think it best that you not begin your 5 deliberations until Thursday, because there is 6 limited time and understand one of the jurors 7 isn't feeling well. So that I am going to ask 8 on Thursday that all of you return. If all of 9 you are here on Thursday, I will then excuse 10 the three alternates. But I would ask that the 11 alternates as well as all the jurors come on 12 Thursday. 13 I would also ask that when you arrive 14 on Thursday, that you not begin your 15 deliberations until you are all present and I 16 have said you may begin your deliberations. 17 Let me just complete the charge, 18 which is my concluding remarks on page 32. 19 I have now outlined for you the rules 20 of law applicable to your consideration of the 21 death penalty and the process by which you 22 should determine the facts and weigh the 23 evidence. In a few minutes you will retire to 24 the jury room. And as I have just said, that 25 will be on Thursday morning. REPORTERS CENTRAL (212) 594-3582 8755 1 173lbinf CHARGE 2 The importance of your deliberations 3 should be obvious. I remind you that you can 4 return a decision sentencing Mr. Mohamed to 5 death only if all 12 of you are unanimously 6 persuaded, beyond a reasonable doubt, that the 7 death sentence is in fact appropriate. 8 When you are in the jury room, please 9 discuss all aspects of these sentencing issues 10 among yourselves with candor and frankness, but 11 also with a due regard and respect for the 12 opinions of one another. Each of you must 13 decide this question for yourself and not 14 merely go along with the conclusion of your 15 fellow jurors. In the course of your 16 deliberations, no juror should surrender his or 17 her conscientious beliefs of what is the truth, 18 of what is the weight and effect of the 19 evidence, and what should be the outcome as 20 determined by that juror's individual 21 conscience and evaluation of the case. 22 Remember that the parties and the Court are 23 relying upon you to give full, considered, and 24 mature consideration to this sentencing. By so 25 doing, you carry out to the fullest your oaths REPORTERS CENTRAL (212) 594-3582 8756 1 173lbinf CHARGE 2 as jurors: That you will well and truly try 3 the issues of this case and a just result 4 render. 5 If it becomes necessary during your 6 deliberations to communicate with me for any 7 reason, simply send me a note signed by your 8 foreperson. Do not attempt to communicate with 9 the Court or any other court personnel by any 10 means other than a signed writing. I will not 11 communicate with any member of the jury on any 12 subject touching on your sentencing decision 13 other than in writing or orally here in open 14 court. 15 When you have reached a decision, 16 send me a note signed by your foreperson that 17 you have reached a decision. Do not indicate 18 what the decision is in the note. In no 19 communications with the Court prior to a 20 verdict should you ever give a numerical count 21 of where the jury stands in its deliberations. 22 Whichever decision you reach, please 23 sign and fill out the Special Verdict Form 24 accordingly. The foreperson must also be 25 prepared to report to the Court your findings REPORTERS CENTRAL (212) 594-3582 8757 1 173lbinf CHARGE 2 as to the gateway, aggravating and mitigating 3 factors, and then of your sentencing decision. 4 Let me remind you again that nothing 5 that I have said in these instructions -- and 6 nothing that I have said or done during the 7 trial -- has been said or done to suggest to 8 you what I think the outcome should be. What 9 that sentencing decision should be is your 10 exclusive duty and responsibility. 11 That, then, completes the Court's 12 charge, and I hope you have a happy holiday 13 tomorrow. And please remember not to read, 14 listen to, watch or discuss any aspect of this 15 case. And we're adjourned, then, until 16 Thursday morning. 17 Please leave everything in the jury 18 room. Don't take anything out. 19 (Jury not present) 20 THE COURT: Anything further? 21 MR. FITZGERALD: No, Judge. 22 THE COURT: We are adjourned, then, 23 until 9:30 on Thursday. 24 MR. RUHNKE: Your Honor, just before 25 we leave for the day, I would like to adopt REPORTERS CENTRAL (212) 594-3582 8758 1 173lbinf CHARGE 2 prior objections to the charge and reiterate 3 them at this point, and prior requests to 4 charge that your Honor did not charge. 5 THE COURT: Yes. Very well. We are 6 adjourned until Thursday. 7 (Adjourned until 9:30 a.m. on July 5, 8 2001) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTERS CENTRAL (212) 594-3582
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