16 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 47 of the trial, May 16, 2001.
See other transcripts: usa-v-ubl-dt.htm
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
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New York, N.Y.
9 May 16, 2001
9:15 a.m.
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12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
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1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
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ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
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FREDRICK H. COHN
10 DAVID P. BAUGH
LAURA GASIOROWSKI
11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
12 DAVID STERN
DAVID RUHNKE
13 Attorneys for defendant Khalfan Khamis Mohamed
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SAM A. SCHMIDT
15 JOSHUA DRATEL
KRISTIAN K. LARSEN
16 Attorneys for defendant Wadih El Hage
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1 (Deliberations resumed)
2 (Time noted, 10:00 a.m.; counsel for Odeh and
3 al-'Owhali only present, defendants not present)
4 THE COURT: The record should reflect the fact that
5 the jury is all in attendance and has been in attendance since
6 shortly after 9:00 and is deliberating.
7 THE COURT: There is a memorial service for Judge
8 Edelstein at 4:00 today which I would like to attend but would
9 give priority to anything related to this case. The
10 defendants are not here and there is nobody here for --
11 MR. COHN: For scheduling, your Honor, I believe that
12 I can speak for Mr. Ruhnke.
13 THE COURT: All that I want to inquire about is the
14 status of the open matters. The Brady motions --
15 MR. COHN: That is Mr. Ruhnke.
16 THE COURT: I think the ball is in the government's
17 court?
18 MR. BUTLER: I will check with Mr. Karas.
19 THE COURT: And the in limine motions, but if
20 everybody is ready I would rather do it this morning.
21 MR. COHN: We can do it this morning. There are
22 other open matters. There is the issue of the El Hage
23 courtroom incident, which there is an in limine motion from me
24 on.
25 THE COURT: I received a letter which specifically
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1 said I am not asking for any action on the part of the court.
2 MR. COHN: I don't think I said that. The government
3 said they were going to use El Hage's conduct and my client's
4 alleged participation in their case in chief, with the court
5 as an intended victim and we were going to request that you
6 bar --
7 THE COURT: Let's not get into the merits.
8 MR. COHN: I thought I was asking for a ruling.
9 THE COURT: Can we deal with that also?
10 MR. COHN: Yes, and there is the question of the Pepe
11 testimony, if we argue the testimony on the Pepe incident and
12 we argue the questions of confinement. Finally there is the
13 ruling of April 2 that left issues open as to the government's
14 aggravators.
15 THE COURT: Yes. I thought that I would deal with
16 those matters post-verdict, and after I received your
17 submissions due tomorrow with respect to opening statements
18 and so on.
19 MR. COHN: Fine, Judge. I am just reminding you of
20 what is open.
21 THE COURT: I am aware of that. With respect to
22 everything other than that, the other issues -- the Brady
23 issues, the victim impact, the Al-'Owhali, El Hage matter and
24 the Pepe matter, we will take them all up at 11:00 today?
25 MR. BUTLER: Fine, your Honor. I will get
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1 Mr. Garcia.
2 MR. BAUGH: Your Honor, you wanted with respect to
3 opening statements --
4 THE COURT: The court's opening statement to the jury
5 in the penalty phase.
6 We will adjourn until 11:00 unless we hear something
7 from the jury.
8 (Recess)
9 (Continued on next page)
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1 THE COURT: The note from the jury reads: Judge
2 Sand: The jury requests the following items to help in our
3 deliberations: 1. 160S-T (A.R.C.)
4 2. Government's Exhibit 35 and anything related to
5 the second fatwah.
6 3. Transcript of CNN interview.
7 4. GX1677-T.
8 As always, we thank you for your assistance. Juror
9 No. 1.
10 What is 160S-T?
11 MR. KARAS: We think that is actually 1605-T, your
12 Honor.
13 THE COURT: Yes, that could be.
14 MR. KARAS: That is one of the London exhibits and I
15 think it is the ARC resolution, which is what the jury has in
16 parenthesis there.
17 THE COURT: Government's Exhibit 35, and anything
18 related to the second fatwah.
19 MR. KARAS: Government Exhibit 35, your Honor, is a
20 stipulation regarding the Al-Qud article that contained the
21 February '98 fatwah, and those exhibits are 93, the Al-Qud
22 article itself, and 93-T, which is the translation.
23 THE COURT: And you would construe "and anything
24 related to the second fatwah" to refer to those two exhibits
25 referred to in the stipulation?
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1 MR. KARAS: Yes, your Honor.
2 THE COURT: Anybody object to that?
3 MR. DRATEL: No, your Honor.
4 THE COURT: Very well. Transcript of CNN interview,
5 that is clear enough.
6 MR. KARAS: Yes. That is 80-T, for the record.
7 THE COURT: And Government's Exhibit 1677-T is?
8 MR. KARAS: The manual found in Manchester. It is a
9 computer document.
10 THE COURT: What are the numbers of the two exhibits
11 related to the second fatwah?
12 MR. KARAS: 93, which is the Al-Qud article, and
13 93-T, which is the translation.
14 THE COURT: So my note reads: "Ladies and gentlemen,
15 here are the exhibits you requested. We enclose Exhibits 93
16 and 93T as related to Government's Exhibit 35." Is that
17 agreeable to everyone?
18 MR. KARAS: And as before, your Honor, we will send
19 in the originals and then make 12 copies.
20 THE COURT: Very well, that would be helpful.
21 The marshal tells me that the jury has advised him of
22 its desire to leave at 4:30 today.
23 MR. SCHMIDT: Your Honor, I would like to raise an
24 additional issue, your Honor, that is not relevant to
25 deliberations.
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1 THE COURT: Can we get this --
2 MR. SCHMIDT: Yes, we can. Mr. El Hage's wife and
3 son have been present in the court since the end of last week.
4 She has been trying to see Mr. El Hage on visits to the MCC.
5 As you know, they are in Texas and she has been up here on
6 rare occasions to see Mr. El Hage. She was able to see Mr. El
7 Hage last Saturday. I have been dealing with MCC and trying
8 to see if we can get the visit of Mr. El Hage with his wife
9 and child this week. Since they have been here this week they
10 have not been able to see him. I was informed earlier today
11 that the only time they will allow a visit will be Saturday
12 for approximately an hour and a half. Mr. El Hage, since he
13 is in court all day, every day, waiting for a verdict, and it
14 is a very stressful time --
15 THE COURT: With whom at the MCC have you discussed
16 this?
17 MR. SCHMIDT: I have discussed it with Ms. Raia and
18 Warden Parks. The final answer came from Ms. Raia.
19 I would ask your Honor to intercede to see if,
20 because of the difficulty in travel for his wife and this very
21 stressful situation that we are under now, if they could get
22 an additional visit tomorrow evening after court or today
23 after court, as well as the Saturday visit.
24 THE COURT: I will make inquiry.
25 MR. SCHMIDT: Thank you very much.
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1 THE COURT: Anything else? Then we are adjourned
2 until we hear further from the jury, or until 2:15, when we
3 will take up the various open matters.
4 (Recess)
5 (Continued on next page)
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1 AFTERNOON SESSION
2 2:15 p.m.
3 THE COURT: Mr. Schmidt, I have been playing
4 telephone tag with the MCC.
5 The note from the jury reads: Dear Judge Sand.
6 Please provide us with the following exhibits: 1528-T, 1537,
7 1557D-T, 1557E-T, 1580A-T, 1580E-T, 1580E-T. Thank you.
8 Juror No. 1.
9 Any problem? What are these exhibits?
10 MR. KARAS: 1557 and 1580 are the different claims of
11 responsibility. 1528 and 1537 I will have to doublecheck.
12 1528 is a letter that was found in London from Ashraf
13 to Abu Abdallah. 1537 is also a London bomb, the Islamic
14 nuclear bomb, a communique issued by the Islamic Front.
15 THE COURT: Do we have them all?
16 MR. KARAS: We have them all, and as before, we would
17 propose to put in both the Arabic originals and the
18 translations.
19 THE COURT: Yes.
20 (Court Exhibits I and II of this date duly marked)
21 THE COURT: So we will send them in to the jury with
22 a note saying herewith the exhibits you requested in your
23 latest note.
24 This morning we listed a number of matters to be
25 taken up at this time. I understand that there has been some
6293
1 consensual resolution of some of these issues.
2 MR. COHN: Your Honor, there has been consensual
3 resolution as to one. The other, from my point of view, is on
4 the cusp. The third one, they have given us submissions that
5 address some of the issues which are photographic evidence,
6 not other parts of our application, but they have been kind
7 enough to ask that we be able to review this before we have
8 that argument tomorrow.
9 So as far as I know, if your Honor is prepared to
10 hear it tomorrow, the issue on victim impact is still open and
11 that will be argued tomorrow morning. As to the others, one
12 is resolved and one is probably resolved.
13 THE COURT: I think you have to be more specific than
14 that. There was an issue raised with respect to the
15 government's views of Al-'Owhali's alleged role with respect
16 to the incident involving El Hage.
17 MR. COHN: Resolved. That is resolved. We need not
18 address that as far as I understand the government's position.
19 MR. FITZGERALD: Judge, based upon the
20 representations of counsel, which I think we can put them on
21 the record in the robing room as to what evidence they are not
22 offering and what issues they are not raising, the government
23 does not intend to elicit the alleged role of al-'Owhali in
24 the courtroom incident at the penalty phase proceeding. We do
25 not intend to offer proof of that.
6294
1 THE COURT: And the issue with respect to the Pepe
2 matter --
3 MR. COHN: We have told the government what it is
4 that we intend to prove by way of our submission on jail
5 conditions and security in terms of future dangerousness. The
6 government is considering that in determining how much they
7 will respond vis a vis Pepe, and that is open discussion. I
8 think it is resolved.
9 MR. FITZGERALD: Judge, we are not going to offer the
10 incident involving Officer Pepe on our direct case. We
11 discussed with the Al-'Owhali team what their defense will be
12 on the issue of dangerousness. We are figuring out what we
13 can say as to what our likely rebuttal case will be. So it
14 will not be on our direct case.
15 MR. COHN: We have at least told the government what
16 our position is going to be so we can know how they will
17 respond. My own feeling is that that is probably resolved.
18 We will know that tomorrow.
19 THE COURT: Is there any issue with respect to victim
20 impact other than photographs?
21 MR. COHN: Yes. Well, there may be. They have given
22 us all these photographs which we really want to deal with,
23 and we think that for everybody's sake it is probably better
24 that we resolve that tomorrow morning.
25 THE COURT: I have no problem deferring. I just want
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1 to make sure what is open and what isn't open.
2 There were requests for summaries, for additional
3 information with respect to the victims, and the government
4 has submitted redacted 3500's with respect to the victims and
5 a chart with a summary of the victims' testimony --
6 MR. COHN: Our request was after the government's
7 submission. We regard that as insufficient. I don't know
8 whether the government has responded to that in this
9 submission that they made today or not. If they haven't, we
10 will have to resolve that tomorrow.
11 MR. GARCIA: We have, Judge. I think there are three
12 issues on the victim impact material. One is
13 photographic/videotapes of victims and deceased victims. The
14 second issue is the amount of victim witness testimony. The
15 third issue is the disclosure made to date by the government
16 in response to your Honor's order for the bill of particulars.
17 All those issues are addressed in the covering memorandum
18 attached to the actual photographic exhibits the government
19 intends to offer.
20 THE COURT: So we will adjourn until 10 a.m. tomorrow
21 for matters relating to victim impact.
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1 (Time noted, 4:15 p.m.)
2 THE COURT: The note from the jury reads --
3 MR. WILFORD: Excuse me, your Honor. There is nobody
4 here for Khalfan Khamis Mohamed.
5 THE COURT: It requires no decision-making, no
6 action. I will repeat it when Mr. Ruhnke returns: For
7 testimony, we would like to have Special Agent Gaudin's
8 testimony read to us. Specifically, we are interested in what
9 he said regarding why embassies are targeted. Again we thank
10 you.
11 What I would suggest that we do is we identify and
12 read to them only that portion of his testimony, and I will
13 explicitly say to them if there is anything further with
14 respect to Agent Gaudin's testimony that you would like,
15 please send us another note.
16 Let us get together tomorrow at 9:45 to make sure
17 that there is consensus on what portions of the testimony are
18 to be read.
19 Has somebody called Mr. Ruhnke?
20 (Pause)
21 (All counsel and defendants present)
22 THE COURT: Counsel for K.K. Mohamed has arrived and
23 the defendants are present. Madam Reporter, would you read
24 the last colloquy.
25 (Record read)
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1 THE COURT: So we will adjourn then until 9:45
2 tomorrow, at which time I hope counsel will have agreed on
3 what portions of Gaudin's testimony, direct and cross, deal
4 with the questions of why embassies are targeted. Subject to
5 receiving another note from the jury within the next 10
6 minutes, we are adjourned until tomorrow at 9:45.
7 (Proceedings adjourned until 9:45 a.m., Thursday, May
8 17, 2001)
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