25 January 2002
Source: Hardcopy purchased from Norman B. Linnell, official reporter of Eastern Virginia District Court. Telephone: (703) 549-4626.


[11 pages.]


                                                                        1

    1                   UNITED STATES DISTRICT COURT
                        EASTERN DISTRICT OF VIRGINIA
    2                       Alexandria Division

    3

    4  ------------------------------:
                                     :
    5  UNITED STATES OF AMERICA      :
                                     :
    6                                :
            -v-                      :    Cr. No. 02-51-M
    7                                :
                                     :
    8  JOHN PHILIP WALKER LINDH,     :
                 Defendant.          :
    9                                :
       ------------------------------:
   10

   11

   12                         FIRST APPEARANCE

   13
                              January 24, 2002
   14

   15                  Before: W. Curtis Sewell, Judge

   16

   17

   18

   19  APPEARANCES:

   20  Paul J. McNulty, Randy Bellows and David Kelley,
       Counsel for the United States 
   21

   22  James J. Brosnahan, William B. Cummings, George C. Harris,
       Derek A. West and S. Raj Chatterjee, Counsel for Defendant 
   23

   24  The Defendant, John Philip Walker Lindh, in person

   25


                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626


    
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    1 		THE CLERK: The United States of America versus

    2  John Philip Walker Lindh, case number 02-51-M.

    3 		MR. BELLOWS: Good morning, Your Honor. Paul

    4  McNulty, Randy Bellows and Dave Kelley on behalf of the

    5  United States.

    6		THE COURT: Good morning.

    7 		MR. CUMMINGS: Good morning, Your Honor. William

    8  Cummings --

    9		THE COURT: Mr. Cummings.

   10 		MR. CUMMINGS: And with me I have, for the

   11  defendant, I also have four lawyers from California who I

   12  move their admissions pro hac vice. We have their proper

   13  papers. James Brosnahan on my far left.

   14 		MR. BROSNAHAN: Good morning, Your Honor.

   15 		THE COURT: Good morning, Mr. Brosnahan.

   16		MR. CUMMINGS: George Harris on my immediate left.

   17 		MR. HARRIS: Good morning, Your Honor.

   18		THE COURT: Tony West here, if Your Honor please.

   19  Pardon my pointing.

   20 		MR. WEST: Good morning, Your Honor.

   21 		MR. CUMMINGS: And Raj Chatterjee right immediately

   22  behind me.

   23 		MR. CHATTERJEE: Good morning, Your Honor.

   24 		THE COURT: Good morning.

   25		MR. CUMMINGS: All members of the California Bar,



    			   Norman B. Linnell OCR-USDC/EDVA (703)549-4626


    
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    1  Your Honor. I move--

    2 		THE COURT: Have you written motions for pro hac

    3  vice admission?

    4 		MR. HARRIS: We have them.

    5 		MR. CUMMINGS: We have, Your Honor.

    6		THE COURT: The Court security officer will pass

    7  those up, please.

    8 		MR. CUMMINGS: Thank ou, Your Honor.

    9 		THE COURT: All right. Upon payment of the

   10  appropriate fee to the Clerk, the motions for admission pro

   11  hac vice for this case will be granted.

   12 		MR. CUMMINGS: Thank you, Your Honor.

   13 		THE COURT: Let me bring the defendant to the

   14  podium, please.

   15		Mr. John Walker Lindh?

   16 		THE DEFENDANT:  Yes.

   17 		THE COURT: You are before the United States

   18  District Court for the Eastern District of Virginia. You are

   19  charged in an amended criminal complaint with four alleged

   20  violations of United States law. I am going to summarize

   21  them. And then I am going to ask the United States Attorney

   22  to state the penalties that can be imposed.

   23 		The first charge alleges that from on or about May

   24  2001 through December of last year you did unlawfully and

   25  knowingly, outside the United States, engage in a conspiracy



                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    

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    1  kill nationals of the United States, while such nationals

    2  were outside the United States, in violation of Title 18 of

    3  the United States code Section 2332(b).

    4 		The second charge is that from in or about

    5  March 2001 of last year to May of last year, that you did,

    6  subject to the jurisdiction of the United States, but outside

    7  of the jurisdiction of any particular state or district, you

    8  unlawfully, willfully and knowingly provided material support

    9  and resources, as that term is defined in United States law,

   10  to a foreign terrorist organization, namely Harakat

   11  ul-Mujahideen, HUM, and attempted and conspired to do so, in

   12  violation of Title 18 United States Code Section 2339B and

   13  the United States Code Title 18 Section 2.

   14 		The third charge is from in or about May of last

   15  year through December of last year, that you did, under the

   16  same circumstances that I just described in the second

   17  charge, unlawfully, willfully provide material support and

   18  resources, as that term is defined in federal law, to another

   19  terrorist organization, namely al Qaeda, and attempted and

   20  conspired to do so, in violation of the same federal

   21  statutes.

   22 		The fourth charge is that from in or about May

   23  of last year through December, under the same circumstances

   24  previously alleged in the second and third charge, that you

   25  did willfully and unlawfully contribute goods and services to



                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    


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    1  and for the benefit of the Taliban, and did supply directly

    2  and indirectly goods and services to the territory of

    3  Afghanistan controlled by the Taliban and to the Taliban and

    4  to persons whose property and interests in property are

    5  blocked pursuant to federal law, in violation of Title 31 of

    6  the Code of Federal Regulations, Executive Order 13129, and

    7  Title 50 of the United States Code Section 1702 and 1705, and

    8  also the conspiracy statute, Title 18 Section 2.

    9 		Do you understand generally the charges?

   10 		THE DEFENDANT: Yes, I understand generally.

   11		THE COURT: Will the Government--

   12 		MR. BROSNAHAN: If I may say, Your Honor, we have

   13  also explained the charges to Mr. Lindh.

   14 		THE COURT: Okay. The charges are represented in

   15  an amendment complained.  The amended complaint is supported

   16  by an affidavit. Copies have been provided to counsel for

   17  the defendant this morning.

   18		MR. BROSNAHAN: Yes, Your Honor, we have those.

   19 		THE COURT: Is the Government in a position to

   20  summarize the penalties that may be imposed? Mr. Kelley.

   21 		MR. KELLEY: Yes, Your Honor. With regard to Count

   22  1, the conspiracy to kill United States nationals, the

   23  maximum: penalty is up to life imprisonment, a $250,000 fine,

   24  five years supervised release, and a $100 special assessment.

   25 		With regard to Count 2 alleging a violation of


                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    



                                                                       6


    1  2339B of Title 18, providing material support to HUM, maximum

    2  penalty of ten years imprisonment, three years supervised

    3  release, a $250,000 fine, and a $100 special assessment.

    4 		With regard to Count 3, providing material support

    5  to the al Qaeda terrorist organization, it is a maximum

    6  penalty of life imprisonment, a $250,000 fine, a $100 special

    7  assessment, and five years of supervised release.

    8 		And lastly with regard to Count 4, providing

    9  prohibited services to the Taliban in violation of 50 USCA

   10  Section 1705 and the Code of Federal Regulations, it is a

   11  maximum penalty of ten years imprisonment, a $250,000 fine, a

   12  $100 special assessment, and three years of supervised

   13  release.

   14 		THE COURT: Do you understand generally the

   15  penalities that can be imposed?

   16 		THE DEFENDANT: Yes, I understand generally.

   17 		THE COURT: You have a right to remain silent.  You

   18  are not required to make any statement. If you do choose to

   19  make a statement, what you say may be used against you.

   20		You have a right to retain counsel. And, of

   21  course, you have retained counsel here.

   22 		Were you unable to retain counsel or have the
 
   23  right to request and the Court would appoint counsel to

   24  represent you.

   25 		This charge or the charges are alleged felonies.


                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    


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    1  You have a right to a preliminary hearing or a preliminary

    2  examination. That's a hearing that can be waived by you, but

    3  you should not waive it until you first consult with counsel

    4  and elect to do so upon advice of counsel.

    5 		What's the Government's position on bond pending

    6  preliminary hearing?

    7 		MR. BELLOWS: Your Honor, the Government is seeking

    8  detention in this case. This is a presumption case given the

    9  penalties.  We are seeking detention based on both risk of

   10  flight and danger under 3142(e) and 3142(f)(1).

   11		Your Honor, we have proposed to the defense

   12  proposed dates for a detention hearing and a preliminary

   13  hearing--

   14 		THE COURT: Well, before we get to the dates, I

   15  want to make sure the defendant understands the circumstances

   16  under which he might be detained.

   17 		The Government has right in a case like this to

   18  ask that you be held for trial without bond. The Government

   19  has made such a request. And before I decide to either grant

   20  it or release you on conditions, you have the right to a

   21  hearing called a detention hearing.

   22 		That hearing is usuall combined with a preliminary

   23  hearing, but is not necessarily done so.

   24 		MR. BELLOWS: Your Honor, the dates--

   25		THE COURT:  I would like to hear the proposed days.



                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    


                                                                       8


    1		MR. BROSNAHAN: May I just say one thing briefly,

    2  Your Honor?

    3		THE COURT: Yes, sir, Mr. Brosnahan.

    4 		MR. BROSNAHAN: Not for argument today

    5  particularly. The Attorney General of the United States

    6  announced charges against Mr. Lindh last Tuesday. This is

    7  the first arraignment that he has had.

    8 		So, contrary to the Riverside case, he was not

    9  arraigned within 48 hours, and until yesterday was never told

   10  what the charges were against him.

   11 		I am not trying to argue it today, I just wanted to

   12  inform, the Court.

   13		THE COURT Well, I appreciate the comment. I

   14  might say that the Riverside case addresses warrantless

   15  arrests. And the defendant was arrested, although I am not

   16  sure of the date when he was actually arrested by federal

   17  agents, the initial warrant was issued on January 15.

   18 		MR. BROSNAHAN:, He was arrested approximately the

   19  1st of December. He was kept in custody for 54 days without

   20  a lawyer. He asked for a lawyer somewhere in the first or

   21  second or third day. And this is the first time that the

   22  Government has brought him before a court.

   23 		I don't wish to say anything further. Thank you.

   24 		THE COURT: Again, these are matters, I appreciate

   25  the comments, but they are matters that need not be addressed


                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    


                                                                       9


    1  today. This is not an arraignment. It is an initial

    2  appearance. The defendant is not being asked to plead.

    3 		MR. BROSNAHAN: I understand.

    4 		THE COURT: Mr. Bellows.

    5 		MR. BELLOWS: Your Honor, the proposed dates we

    6  have, and I have proposed them to Mr. Brosnahan and he has

    7  agreed that he does not have an opposition to it, is February

    8  6 for a detention hearing and February 14 for a preliminary

    9  hearing.

   10		MR. BROSNAHAN: If we could set them on the same

   11  day, and the first day, Your Honor, that would be all right

   12  with us as well. Depending upon the Court's--

   13		THE COURT: Is there any reason why the detentinon

   14  and the preliminary hearings could not be combined?

   15		MR. BELLOWS: We Your Honor--

   16 		THE COURT: The presumptions in favor of the

   17  Government depend upon finding of probable cause, and--

   18		MR. BELLOWS: Your Honor, we would not object to

   19  setting them both on February 6.

   20 		THE COURT: This is not my usual courtroom. I

   21  don't have a calendar in front of me.

   22 		May I see a calendar, lease?

   23 		Does the defendant consent to the continuance

   24  requesited by the Government for purposes of the detention

   25  hearing?



                             Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    


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    1 		MR. BROSNAHAN: That day would be fine with us,

    2  Your Honor.

    3 		THE COURT: No objection to continuing it?

    4		MR. BROSNAHAN: No, we waive time. Thank you.

    5 		THE COURT: All right. Does the Government have a

    6  suggested time? Any reason why we couldn't do it at 10:00

    7  a.m.?

    8 		MR. BELLOWS: That's fine Your Honor.

    9 		THE COURT: All right. Mr. Walker or Mr. Walker

   10  Lindh--

   11 		MR. BROSNAHAN: Mr. Lindh, Your Honor. Mr. Lindh.

   12 		THE COURT: Yes, sir, I correct myself. Mr. Lindh,

   13  I am going to set the preliminary examnination or preliminary

   14  hearing and the detention hearing for 10 o'clock, February 6.

   15  Between now and then, you will be held in the custody of the

   16  United States Marshal.

   17 		Have you any questions about what the Court has

   18  explained thus far?

   19 		THE DEFENDANT: No, I don't have any questions.

   20		THE COURT: All right. The Court will remain in

   21  session. The defendant is remanded to the custody of the

   22  United States Marshal.

   23 		Court will remain in session while the defendant is

   24  removed from the courtroom.

   25 		MR. BROSNAHAN: Thank you, Your Honor.


                           Norman B. Linnell OCR-USDC/EDVA (703)549-4626

    


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    1 		THE COURT: Thank you, Mr. Brosnahan.

    2 		NOTE: The defendant leaves the courtroom.

    3 		THE COURT: Anything further from counsel for the

    4  Government?

    5 		MR. BELLOWS: No, Your Honor.

    6 		THE COURT: Mr. Brosnahan --

    7 		MR. BROSNAHAN: No, Your Honor. Thank you.

    8		THE COURT: for the defendant?

    9 		All right. The clerk will recess court.

   10    ------------------------------------------------
                             HEARING CONCLUDED
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   20                   I certify that the foregoing is a true and

   21         accurate transcription of my stenographic notes.

   22

   23
                             _________________________________
   24                        Norman B. Linnell, CP, CM, CE

   25



                              Norman B. Linnell OCR-USDC/EDVA (703)549-4626


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