18 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 49 of the trial, May 18, 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
8
New York, N.Y.
9 May 18, 2001
9:30 a.m.
10
11
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
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
9
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
14
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, 10:30 a.m.; counsel for government and
3 defendants Odeh and Al-'Owhali present)
4 THE COURT: The jury is all present. They have been
5 here since about 10:30 and have resumed their deliberations.
6 Are there any matters? Do you know what the status is on the
7 military discovery?
8 MR. KARAS: I don't, Judge. I can talk to Mr.
9 Fitzgerald who is trying to reach Mr. Ailey.
10 MR. COHN: We are trying to track down Mr. Baugh,
11 your Honor. I reminded your courtroom deputy that I am due in
12 front of Judge Chin at 11:30. I can be reached in his
13 courtroom. It should be a short proceeding.
14 THE COURT: We will await something further from the
15 jury.
16 (Recess)
17 (Time noted, 12:10 p.m., all counsel and defendants
18 present)
19 THE COURT: The jury says that there is a seeming
20 contradiction between the sentence at the bottom of page 77
21 which says, in other words, a defendant may be held criminally
22 responsible for certain acts of conduct even if the evidence
23 does not show that the defendant personally committed those
24 acts. Whereas the first sentence on page 79 says to aid and
25 abet another to commit a crime, it is necessary that the
6361
1 defendant willfully and knowingly associate himself in some
2 way with the crime and that he willfully and knowingly seek by
3 some act to help the crime succeed.
4 I don't believe that there is a contradiction,
5 although perhaps the trouble lies with the language a
6 defendant may be held criminally responsible. What I would
7 propose to say to the jury is, a defendant may be guilty, that
8 is, be criminally responsible, if he either (a) actually
9 committed the crime himself -- by committing the crime we mean
10 that his conduct satisfies all of the elements of the crime as
11 set forth in the charge; or (b) someone else actually
12 committed the crime, that is, that someone else, that the
13 conduct of someone else satisfies all of the elements of the
14 crime, and that the defendant whom you are considering aided
15 and abetted in the commission of that crime. To determine
16 whether the defendant aided and abetted in the commission of
17 the crime, you should ask the questions set forth on pages 79
18 and 80.
19 MR. FITZGERALD: Your Honor, I might suggest adding
20 something in addition. It struck me from the note that the
21 jurors may be confused by the fact that the word act appears
22 in both quoted sections. So one section seems to say a
23 defendant can be held criminally responsible even though he
24 did not participate in an act, and then the next section says
25 that the defendant must seek by some act to make the venture
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1 succeed. So the word act may be the source of confusion.
2 I have roughed out something to suggest that if we
3 instruct the jury that if the defendant commits some act
4 willfully and knowingly for the purpose of helping another
5 person or persons commit a different act which is a crime,
6 then the defendant may be criminally responsible for the
7 second act, and perhaps give them an example which would say,
8 if a person or group of persons rob a bank and the defendant
9 provides them with assistance for the purpose of helping them
10 carry out the bank robbery, then the defendant can be guilty
11 of aiding and abetting the bank robbery even though he or she
12 did not participate in the physical act of robbing the bank.
13 THE COURT: Let me reserve on that.
14 MR. COHN: Your Honor, I think Mr. Fitzgerald in a
15 sense pointed out my position, which is that I think we are
16 speculating on why they are confused.
17 THE COURT: What else should we do?
18 MR. COHN: We should ask them to clarify it, and tell
19 them that there does not appear to be a conflict and would
20 they clarify their confusion.
21 THE COURT: I will do both. I will adopt Mr.
22 Fitzgerald's suggestion and your suggestion.
23 MR. COHN: I object.
24 THE COURT: Your objection is a little premature.
25 MR. COHN: No, because I think Mr. Fitzgerald's
6363
1 suggestion may be goes over the edge in charging guilt.
2 MR. WILFORD: Your Honor, I don't think Mr.
3 Fitzgerald's suggestion is appropriate at this point. I would
4 suggest that you go with the language you just dictated to us,
5 with the charge of aiding and abetting. I think that would be
6 sufficient.
7 THE COURT: Not only do they have it before them but
8 they give specific references to pages 77 and 79, so simply to
9 read to them page 77 and page 79 is to be of no assistance.
10 MR. WILFORD: Rather than read page 77 and 79, the
11 court specifically refers to page 79 and 80. I would also
12 request that the court bring the jury out, as I suggested
13 before.
14 THE COURT: I will bring them out.
15 Mr. Fitzgerald, do you think that the problem is
16 the -- I must say that this language does not originate with
17 me. This is language, which is time honored, and this is the
18 first instance I have had where a jury has found there to be
19 some confusion. Do you think the problem is with the word
20 act, that we use actions at the bottom of page 77 and act on
21 page 79?
22 Would you read again your language slowly, please.
23 MR. FITZGERALD: Yes. If a defendant commits some
24 act willfully and knowingly for the purpose of helping another
25 person commit a different act which is a crime --
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1 THE COURT: Yes.
2 MR. FITZGERALD: -- then the defendant may be held
3 criminally responsible for the second act which is a crime.
4 Then I would suggest the example --
5 THE COURT: There is a problem with examples.
6 Examples are really frowned on. But I think what I would do
7 is, I would say if a defendant commits some act or acts, which
8 acts are themselves a crime, satisfying all of the elements of
9 the crime, then he may be found guilty. If a person commits
10 some other act which is not in and of itself a crime but which
11 is knowingly and willfully intended to aid another person to
12 commit those acts, then he is criminally responsible.
13 MR. FITZGERALD: If we could just modify that in two
14 respects. The first half should state if the person commits
15 acts which are themselves a crime, then he is guilty as a
16 principal.
17 THE COURT: Yes.
18 MR. FITZGERALD: The second time I think we should
19 say if a person commits acts which helps others commit
20 different acts which are a crime.
21 THE COURT: Then he is criminally responsible, that
22 is, he may be found guilty. We call such persons principals.
23 If a person commits acts or.
24 (Pause)
25 THE COURT: So that the totality of my remarks would
6365
1 be: A defendant may be found guilty, that is, criminally
2 responsible -- criminally responsible may be a phrase which
3 they don't equate with guilt. A defendant may be guilty, that
4 is, be criminally responsible, if he either (a) actually
5 committed the crime himself -- by committing the crime we mean
6 that his conduct satisfied all of the elements of the crime as
7 set forth in the charge, or (b) someone else actually
8 committed that crime, that is, that the conduct of someone
9 else satisfied all the elements of the crime and that the
10 defendant whom you are considering aided and abetted in the
11 commission of that crime. To determine whether the defendant
12 aided and abetted in the commission of the crime, you should
13 ask yourself the questions set forth on pages 79 and 80. And
14 I will read them.
15 Then I will say, in other words, to make it clear
16 that this is not an addition but a restatement, if a defendant
17 commits some act willfully and knowingly for the purpose of
18 helping another person to commit some act which is a crime,
19 then the defendant may be held criminally responsible for the
20 second act, which is a crime. Thus, if a person commits an
21 act which is in itself a crime, then that person is criminally
22 responsible, that is, he may be found guilty. We call such
23 persons principals. If a person commits act or acts which are
24 not in themselves a crime but are knowingly and willfully
25 intended to assist that person to commit the crime, then he is
6366
1 also criminally responsible. That is, he is guilty. We call
2 such persons aiders and abettors.
3 Anything further? And then I will say that if this
4 still does not clarify the matter for you, send us another
5 note.
6 MR. FITZGERALD: I only have one small suggestion.
7 You used the language several times engages in conduct which I
8 think is helpful with respect to act. I thought if we say at
9 the end engages in act to knowingly help others commit a
10 crime.
11 MR. COHN: Can I hear the last piece of the
12 government's.
13 THE COURT: The last portion?
14 MR. COHN: Yes.
15 THE COURT: Thus, if a person engages in conduct
16 which is not itself a crime, then that person is criminally
17 responsible, that is, he may be found guilty -- we call such
18 persons criminal. If a person engages in conduct which is not
19 in and of itself a crime but which is knowingly and willfully
20 intended to assist that other person to commit the crime, then
21 he is also criminally responsible, that is, he is guilty, and
22 we call such persons aiders and abettors.
23 MR. COHN: Your Honor, I believe that it is
24 unbalanced and I would suggest -- and without accepting the
25 fact that you are going to give this charge at this particular
6367
1 time in this way, you should indicate that the activity has to
2 have in fact furthered the commission of the crime. It
3 doesn't say that anywhere.
4 THE COURT: Which knowingly assists that other person
5 to commit the crime and furthers its commission?
6 MR. COHN: Yes.
7 THE COURT: I don't have any problem with that. Then
8 I will say reasonable doubt.
9 All right, let's bring in the jury, please.
10 (Pause)
11 THE COURT: I think I have to add that if they have
12 found aiding and abetting, they must also consider the other
13 elements as set forth in the charge, because we do tell them
14 that aiding and abetting is not in and of itself -- they are
15 working hard, and they don't see any reason why we shouldn't
16 work hard also.
17 (Jury present)
18 THE COURT: Good afternoon, ladies and gentlemen.
19 JURORS: Good afternoon.
20 THE COURT: You have asked for some clarification
21 with respect to aiding and abetting and have said that there
22 seems to be some inconsistency between language on page 77 and
23 79. We have been reviewing that and discussing it amongst
24 ourselves and will offer some further elaboration. If we
25 don't answer your question, then send us another question. We
6368
1 are trying to make this as clear as we can, but of course we
2 are steeped in these concepts, in things which we know by
3 years and years of experience. It may not be as clear to
4 others as they appear to be to us.
5 A defendant may be guilty, that is, criminally
6 responsible -- when we use the phrase "criminally
7 responsible," that's the same as saying may be guilty. A
8 defendant may be guilty if he either: (a) actually commits
9 the crime himself -- and by committing the crime we mean that
10 his conduct satisfies all of the elements of the crime as set
11 forth in the charge, in other words, he himself, the conduct
12 in which he has engaged, he has personally engaged, satisfies
13 the elements of the crime as set forth in the charge; or (b)
14 someone else actually commits the crime, that is, that the
15 conduct of someone else satisfies all the elements of the
16 crime and that the defendant whom you are considering aided
17 and abetted in the commission of the crime.
18 To determine whether the defendant you are
19 considering aided and abetted in the commission of the crime,
20 you should ask the questions which we set forth at the bottom
21 of page 79: Did he participate in the crime charged as
22 something he wished to bring about? Did he associate himself
23 with a criminal venture knowingly and willfully? Did he seek
24 by his actions to make the criminal venture succeed? If he
25 did, then the defendant is an aider and abettor and therefore
6369
1 guilty of the offense. If, on the other hand, your answers to
2 these questions are no, then the defendant is not an aider and
3 abettor, and you must find him not guilty.
4 In other words, if a defendant engages in conduct
5 unlawfully and willfully, for the purpose of helping another
6 person to engage in conduct which is the crime, which
7 satisfies all the elements of the crime, then that defendant
8 may be held criminally responsible for the second act, which
9 is a crime.
10 Two-stage process. Did the defendant you are
11 considering himself personally engage in conduct which
12 satisfies all of the elements of the crime? If he did not,
13 but you find that some other person engaged in conduct, which
14 conduct satisfies all of the elements of the crime, then he
15 would be an aider and abettor.
16 Thus, if a person engages in conduct which is not
17 itself, looking only at the conduct of that person is not
18 itself conduct which satisfies all of the elements of the
19 crime, then you should consider whether or not he is an aider
20 and abettor.
21 A person whose conduct itself satisfies all of the
22 elements of the crime we call a principal. He is a person who
23 has committed the crime. If you look at just what that person
24 did and you find all of the elements as set forth in the
25 charge have been satisfied, then that person is guilty as a
6370
1 principal. But if a person engages in conduct which is not in
2 and of itself the crime but which knowingly and willfully is
3 intended to assist that other person to commit the crime, to
4 further the commission of the crime by that other person, then
5 he is also criminally responsible. He is guilty then, and we
6 call such persons aiders and abettors.
7 If you find that someone is an aider and abettor,
8 then you have to consider that together with all of the other
9 elements as set forth in the charge.
10 All of these findings, of course, must be unanimous
11 and beyond a reasonable doubt.
12 If that doesn't answer your question, ask another
13 question, and if it doesn't satisfy your question, please try
14 in a further question to be as specific as you can about what
15 is troubling you. Thank you.
16 MR. RICCO: Your Honor, could we have a brief
17 sidebar?
18 THE COURT: Yes.
19 (Discussion off the record at the sidebar)
20 THE COURT: The suggestion is made that if it would
21 be helpful to you to have what I just said in writing, we can
22 do that. Just let us know if you want that. The court
23 reporter will be delighted to give up her lunch hour.
24 (Deliberations resumed)
25 THE COURT: As long as we are assembled, can I have a
6371
1 status report on other open matters?
2 MR. FITZGERALD: I spoke to Mr. Ailey's office this
3 morning and he was at a meeting. I said we needed a letter or
4 phone call today. He said he was trying to get a letter out
5 or a phone call with myself and Mr. Baugh today. I am hoping
6 to have a message over lunch.
7 THE COURT: You have my authority, if it would be
8 helpful in lighting a fire, to tell him that the judge has
9 ordered a very prompt response and that if a prompt response
10 is not forthcoming the judge will have to consider what
11 actions to take.
12 MR. BAUGH: I called Mr. Ailey this morning and also
13 got a message.
14 THE COURT: Anything else that is open that we should
15 deal with?
16 (Recess)
17 (Continued on next page)
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1 AFTERNOON SESSION
2 2:30 p.m.
3 (All parties present)
4 THE COURT: We have a number of notes. We are
5 requesting in writing what you said to us this morning about
6 aiding and abetting. That is a note not from the forelady,
7 and the juror signs his name, which I am obliterating, and we
8 will send in --
9 MR. COHN: Can your Honor identify the juror by his
10 seat, or her seat, and would you?
11 THE COURT: I can't. No. It doesn't say juror
12 number so and so, it just says the name.
13 MR. COHN: Your Honor, may be able to attach a seat
14 to it.
15 THE COURT: I can't.
16 We will send it in.
17 Next note: We thank you for your explanation of
18 aiding and abetting, but we still have some questions
19 regarding the subject. On page 77 of the charge last
20 paragraph, section 2A, the aiding and abetting statute
21 provides that whoever commits an offense against the United
22 States or aids -- underlined -- abets, counsels --
23 underlined -- is punishable as a principal. Question: Do the
24 terms aids and counsels equal an act? What constitutes aid
25 and counsel?
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1 From page 79 of the charge first paragraph, to aid
2 and abet another to commit a crime, it is necessary that the
3 defendant willfully and knowingly seek by some act --
4 underlined some act -- to help make the crime succeed. How
5 concrete an act is required? Examples?
6 Regarding questions at the bottom of page 79, does
7 the answer to all three questions have to be yes in order to
8 find the defendant guilty of aiding and abetting?
9 In addition, we would like to request the following:
10 Government's Exhibit 518, Hilltop Hotel register. 2. Any
11 evidence regarding Odeh's prints. 3. Exhibits regarding PETN
12 and TNT residue on Odeh's belongings. Thank you. Juror No.
13 1, foreperson.
14 You are right that act seems to be what they are hung
15 up on.
16 Page 77 of the charge, last paragraph. And they
17 underline the word counsels.
18 The specific question is how could know create an act
19 is required? Examples? The second question is do all three
20 have to be answered yes, which is a very interesting question,
21 which I have mused over in the past, and I think the answer is
22 yes, because it's clear, did he associate himself with the
23 criminal venture knowingly and willfully is not enough, as we
24 tell them. Mere association without participation is not
25 enough.
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1 Does anybody take issue with that?
2 MR. FITZGERALD: Yes, Judge. Can we have a brief
3 pause in addressing that question and do a little research?
4 If they are focused on acts and aids and counsels, it may be
5 what is throwing them off is the third question, did he seek
6 by his actions and not knowing how concrete an act is
7 required.
8 THE COURT: In the meantime, let's do Government's
9 Exhibit 518, the Hilltop Hotel register, any evidence
10 regarding Odeh's prints, and exhibits regarding PETN and TNT
11 residue on Odeh's belongings.
12 Let me also share with you another note. This is in
13 a different handwriting. Dear handwriting. This is juror No.
14 9. This is a note to say maybe it would be good to get
15 outside every day during lunchtime for 30 minutes after eating
16 in order to get air. Lord knows, this is quite tedious.
17 Also, if by some dilemma we are still here on Friday, June 8,
18 2001, I will not be able to sit. My daughter is graduating.
19 Then he identifies what she is graduating from. I will be
20 attending and bringing her home. Thank you for your attention
21 to these matters. I will await your response.
22 So we have to address ourselves to the following
23 questions. One is counsels, because counsels is a statutory
24 language which is quoted in the underlying counts. The other
25 is all three.
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1 We will take a recess while somebody assembles the
2 exhibits, and somebody can look into the answers to those
3 questions.
4 MR. WILFORD: Your Honor, I have a question.
5 THE COURT: Let's xerox this because the punctuation
6 and the underlying may have some relevance.
7 MR. WILFORD: The jury's second request, when they
8 say in addition to, any evidence regarding Odeh's prints would
9 seem to me to also include testimony, not just exhibits. They
10 have listed specific exhibits and they have said in evidence.
11 To me any evidence would also include testimony.
12 MR. FITZGERALD: Our suggestion, Judge, is, if they
13 don't know the exhibit numbers, we could send them a note
14 saying we are assembling exhibit numbers, please let us know
15 if you wish testimony.
16 THE COURT: I agree with that. Let's do it
17 sequentially. Let's give them the physical evidence. Let's
18 indicate also, as Mr. Fitzgerald suggested -- let's also ask
19 them if they wish to hear the testimony.
20 MR. WILFORD: Your Honor, if you look at the language
21 of the note, they request specific exhibits, they also request
22 exhibits regarding PETN and TNT, and the second question is
23 any evidence. The jury has been specific enough to identify
24 exhibits when they want exhibits. It would appear to me when
25 we say evidence that they mean testimony as well. They did
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1 not ask for specific exhibits and I would suggest we send in
2 the testimony as well.
3 THE COURT: Let's see what it is. Let's identify
4 what it is. We will take a brief recess.
5 (Recess)
6 (Time noted, 3:10 p.m.)
7 THE COURT: Let me put on the record what I propose
8 to say, and when Mr. Fitzgerald comes back, we can read it
9 back to him. Is everybody else here? I propose the following
10 answer.
11 You ask how concrete an act is required to be an
12 aider and abettor. The answer is that the defendant you are
13 considering must be more than a passive observer with
14 knowledge that a crime is contemplated. He must be a
15 participant, taking some action to further the commission of
16 the crime. For example, and only as an example, if he
17 knowingly and willfully takes some act such as providing
18 material necessary for the commission of the crime, or
19 otherwise facilitates the commission of the crime by the
20 others, he will be said to aid and abet. Thus we told you,
21 page 79, first paragraph, to aid and abet another to commit a
22 crime, it is necessary that the defendant willfully and
23 knowingly associate himself in some way with the crime and
24 that he willfully and knowingly seek by some act to help make
25 the crime succeed. The act which is required need not itself
6377
1 be a criminal act. It need only be some action taken by the
2 defendant which further the commission of the crime by
3 another. The language in the statute which you quote, whoever
4 counsels, is consistent with what I have just said. By
5 counsel, the statute means provide actual advice or assistance
6 to enable the other person to commit the crime.
7 The emphasis we have placed on the term "act" is
8 designed to emphasize that the aider and abettor must do
9 something beyond being a casual observer. The precise nature
10 of the act is not important. What is important is that it be
11 some specific conduct on the part of the defendant knowingly
12 and willfully taken to further the commission of the crime by
13 another.
14 As to the three questions on page 79, the answers to
15 all three questions must be yes. These questions are simply
16 designed to make clear what we have stated. To be an aider
17 and abettor, one must knowingly and intentionally act so as to
18 further the criminal venture. If you find that the defendant
19 did knowingly and intentionally act so as to further the
20 criminal venture, you will have found that the answers to the
21 three questions will be yes.
22 All right.
23 I would like as well, for Mr. Fitzgerald's benefit,
24 would you read slowly back what I have just read.
25 (Record read)
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1 THE COURT: Comments. Any objections?
2 MR. FITZGERALD: No, Judge. If I could wait one
3 moment, Mr. Karas may have found a Supreme Court definition of
4 aiding and abetting, if I could just check. He is in the
5 hallway. No objection but we might want to supplement that.
6 MR. HERMAN: We have no objection with two
7 supplemental additions. With respect to the defendant do
8 something, we would suggest that it be affirmatively do
9 something.
10 THE COURT: Must affirmatively, all right. I have no
11 problem with that.
12 MR. HERMAN: Thank you, Judge. The other suggestion
13 we would make is that when your Honor talks about provide
14 actual advice, we would suggest the word knowingly provide
15 actual advice. That has to do with the definition of counsel.
16 THE COURT: Counsel is what is confusing.
17 MR. HERMAN: Thank you, Judge.
18 MR. FITZGERALD: My only concern about the
19 affirmatively, I don't want to confuse the jury. If the
20 person finds that the person provides advice, that can be
21 conduct. Affirmative may be understood as doing something
22 with your hands, for instance. The Supreme Court case
23 included discussion or other actions. My concern is that by
24 affirmatively do something that means that they have to
25 physically pick something up or carry it. If I could hear
6379
1 that.
2 THE COURT: The emphasis we have placed on the term
3 act is designed to emphasize that the aider and abettor must,
4 bracket, affirmatively, bracket, do something beyond being a
5 casual observer.
6 Do you want affirmatively do or say?
7 MR. FITZGERALD: Yes.
8 THE COURT: Wouldn't you rather have affirmatively do
9 or say?
10 MR. HERMAN: Yes, I would prefer the former than the
11 latter.
12 THE COURT: I think there is no other Supreme Court
13 case. We have looked also. Of course we realize that we are
14 simply restating --
15 (Pause)
16 MR. FITZGERALD: Mr. Karas gets a steak dinner.
17 THE COURT: Where are we with respect to those other
18 exhibits?
19 MR. WILFORD: We have them. There is a point that I
20 wanted to raise. There is contention between the parties.
21 Your Honor, I would submit to the court that we should include
22 Exhibit 1461 and 1462.
23 THE COURT: What are they?
24 MR. WILFORD: 1461 is a summary chart of prints from
25 Dar es Salaam which have the print on the flour mill, the
6380
1 grinder. Also, 1462, which has the TNT and PETN residue that
2 was uncovered. The reason I state that, your Honor, we argued
3 to the jury in summation that the print of Fahad -- that the
4 PETN and TNT that a plausible explanation was that a
5 contamination occurred on the basis of Fahad's handling in Dar
6 es Salaam of the grinder. The Humsafar magazine was recovered
7 in Mr. Odeh's bag.
8 THE COURT: Which question of the jury do you think
9 encompasses that material? They ask for exhibits regarding
10 PETN and TNT residue on Odeh's belongings.
11 MR. WILFORD: Yes, your Honor. I think in response
12 to that question and also any evidence regarding Odeh's
13 prints. The reason I am saying that is as follows. 1461 is a
14 summary chart --
15 THE COURT: Let's do this in two stages. Is there
16 anything you want on aiding and abetting?
17 MR. WILFORD: No.
18 MR. FITZGERALD: This is what the Supreme Court said
19 in a civil RICO case in Reeves v. Ernst & Young in discussing
20 the term participate. It said that would be a term of breadth
21 indeed, for aid and abet comprehends all assistance rendered
22 by words, acts, encouragement, support or presence, citing
23 Black's Law Dictionary.
24 THE COURT: I think this is consistent with that.
25 Let's bring in the jury.
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1 We will tell the jurors that we won't sit on June 8.
2 The request for a breath of fresh air I will have to take up
3 with the marshals.
4 The three questions of course are Learned Hand's
5 three questions.
6 You know, they have distinguished between evidence
7 and testimony in previous questions. I think I will tell them
8 we will gather the exhibits and send them in, and if they wish
9 to hear the testimony, they should send us another note.
10 MR. WILFORD: Your Honor, we have isolated the
11 appropriate testimony.
12 (Jury present)
13 THE COURT: You have three notes. I will try and
14 deal with them.
15 With respect to aider and abettor you ask, how
16 concrete an act is required to be an aider and abettor? The
17 answer is that the defendant you are considering must be more
18 than a passive observer with knowledge that a crime is
19 contemplated. He must be a participant, taking some action to
20 further the commission of the crime. For example, and only as
21 an example, if he knowingly and willfully takes some act, such
22 as providing material necessary for the commission of the
23 crime, or otherwise facilitates commission of the crime by the
24 others, he will be said to aid and abet.
25 Thus we told you on page 79 at the first full
6382
1 paragraph, to aid and abet another to commit a crime, it is
2 necessary that the defendant willfully and knowingly associate
3 himself in some way with the crime and that he willfully and
4 knowingly seek by some act to help make the crime succeed.
5 The act which is required need not itself be a
6 criminal act. It need only be some action taken by the
7 defendant which furthers the commission of the crime by
8 another. The language in the statute which you quote,
9 "whoever counsels," is consistent with what I have just said.
10 By "counsel," the statute means to knowingly provide actual
11 advice or assistance to further the commission of the crime by
12 another person.
13 The emphasis we have placed on the term "act" is
14 designed to emphasize that the aider and abettor must do
15 something beyond being a casual observer. The precise nature
16 of the act is not important. What is important is that it be
17 some specific conduct on the part of the defendant knowingly
18 and willfully taken to further the commission of the crime by
19 another.
20 As to the three questions on page 79, the answer to
21 all three questions must be yes. But the questions are
22 designed simply to make clear what we have stated. To be an
23 aider and abettor, one must knowingly and intentionally act so
24 as to further the criminal venture. If you find that the
25 defendant you are considering did knowingly and intentionally
6383
1 act so as to further the criminal venture, you will have found
2 that the three questions will be answered yes.
3 If you want further guidance on aiding and abetting,
4 please send us another note.
5 With respect to the request that we not sit on June 8
6 should you be deliberating on June 8, we will not sit on
7 Friday, June 8. You will recall we are not sitting on Friday,
8 the 25th.
9 With respect to a breath of fresh air after lunch, I
10 will talk to the marshals and see whether that is possible.
11 I would also ask that when you send a note to the
12 court, please don't give your name, because we still want to
13 preserve your anonymity.
14 We are in the process of collecting the physical
15 exhibits that you asked for, and we are not sure whether you
16 want just the physical exhibits or you also want the
17 testimony, because previously in your notes you have
18 distinguished between testimony and evidence. If you want to
19 hear as well the testimony with respect to Odeh's prints,
20 please send us another note. Thank you.
21 (Deliberations resumed)
22 THE COURT: Anything further from anyone?
23 MR. WILFORD: Your Honor, I would like to finish my
24 point.
25 THE COURT: Yes, please.
6384
1 MR. WILFORD: The point I was making, your Honor, is
2 that the jury seemed to indicate that they wanted testimony
3 with respect to fingerprints.
4 THE COURT: No. I just asked them that. They said
5 any evidence.
6 MR. WILFORD: I am sorry, the exhibits. One of the
7 exhibits that we have gathered is a summary chart which
8 includes the Humsafar magazine from which Fahad's prints were
9 taken. I think that in conjunction with that, Exhibits 1461
10 and 1462 should also go in.
11 THE COURT: What is the objection to that going in?
12 MR. KARAS: Your Honor, the summary chart that Mr.
13 Wilford is talking about has the fingerprints for Mr. Odeh,
14 which is what is responsive to the second point. So there is
15 no problem with the whole chart going in. What Mr. Wilford is
16 asking for under the third category is to put in the summary
17 charts regarding the PETN and TNT found on the items in Dar es
18 Salaam, which is not responsive to the note. The note says
19 exhibits regarding PETN and TNT residue on Odeh's belongings,
20 which we will give them, which deals with the items found on
21 the Nike bag and so forth. Nothing of Odeh's was found in
22 Tanzania and that goes way beyond what they asked for.
23 MR. WILFORD: I differ for this reason. That was
24 taken in a vacuum. There was vigorous argument from both
25 sides as to where that residue came from, and part of our
6385
1 argument to the jury was that that residue came from Fahad's
2 handling of the magazine, Fahad being in Dar es Salaam, and
3 that PETN and TNT were both found -- there was no PETN found
4 at the bomb site. Those exhibits deal with that based upon
5 the arguments that were tendered to this jury on both sides.
6 THE COURT: Yes, but those are not exhibits regarding
7 PETN and TNT residue on Odeh's belongings. Those are exhibits
8 which relate to the presence of residue on other objects, and
9 I understand that there is an argument that that may have been
10 the source of residue by virtue of some contamination and so
11 on, but that goes well beyond that.
12 We won't send it in, but if you like I would send in
13 a note saying do you wish anything further with respect to
14 possible sources of PETN and TNT residue?
15 MR. WILFORD: Yes, your Honor.
16 MR. KARAS: Your Honor, we would object to that.
17 THE COURT: Why?
18 MR. KARAS: Because I think we basically signal to
19 the jury about what they should be asking for, and the whole
20 process is that the jury can tell us what they want, and, if
21 there is something unclear, tell us, but to tell them that it
22 is somehow unresponsive is really steering them in a direction
23 that is unnecessary.
24 THE COURT: Let me play with the words. Are the
25 documents ready?
6386
1 MR. WILFORD: Everything else is ready, Judge, to go
2 in.
3 THE COURT: What exhibits are being sent in with
4 respect to residue on Odeh's belongings?
5 MR. KARAS: Your Honor, they already have the Odeh
6 clothing itself and they have the Nike bag. We are sending in
7 now the summary chart, Government's Exhibit 538.
8 THE COURT: Exhibit 538?
9 MR. KARAS: Yes.
10 MR. WILFORD: 538, your Honor, I believe, references
11 back to exhibits that they already have.
12 THE COURT: As to Odeh's prints, what is the exhibit
13 number?
14 MR. KARAS: They already have the Swahili book and
15 the Humsafar magazine. We are sending in Government's Exhibit
16 539, which is the summary chart that discusses the
17 fingerprints found on those two items. Then Exhibit 696,
18 which is the latent print that was lifted, and then 696-LP,
19 which is the enlargement that Mitchell Hollars testified from,
20 and then 697, which is the summary chart of the fingerprint
21 analysis.
22 THE COURT: As to the residue, I want to remind them
23 what they already have that is relevant.
24 MR. KARAS: They have Odeh's clothing and the Nike
25 bag.
6387
1 THE COURT: They know. I don't think it is necessary
2 to tell them about that.
3 MR. WILFORD: I think in Exhibit 539 it refers to the
4 Humsafar magazine and the Swahili book, and there may be some
5 confusion as to whether or not they already have those, but
6 they do have those two exhibits.
7 THE COURT: This is as to the prints?
8 MR. WILFORD: Yes.
9 THE COURT: You already have Exhibits --
10 MR. WILFORD: Exhibit 536, which is the Teach
11 Yourself Swahili book, and then they also have Exhibit 537
12 which is listed on that summary chart, which is the Humsafar
13 magazine.
14 THE COURT: What is the exhibit?
15 MR. WILFORD: 537, your Honor.
16 THE COURT: I say: Here are the exhibits you
17 requested. As to Exhibits regarding PETN and TNT residue on
18 Odeh's belongings, we have sent in Exhibit 538. If you wish
19 to see any other exhibits with respect to PETN and TNT
20 residue, please advise. As to Odeh's prints, we are sending
21 in Exhibits 539, 696, 696LP and 697. You already have
22 Exhibits 536 and 537.
23 MR. WILFORD: Your Honor, two other points.
24 MR. KARAS: One of which I think we share. There is
25 another exhibit that should go in, Government's Exhibit 193,
6388
1 regarding what Kelly Mount would have testified to regarding
2 her testing of the other clothes that are not contained in the
3 summary chart.
4 THE COURT: So we are sending in with respect to that
5 Exhibit 538 and 193.
6 MR. WILFORD: Just so that it is clear, your Honor,
7 Exhibit 697 is a summary chart related to the fingerprint
8 record from the Hilltop Hotel, which is what the jury
9 specifically asked for.
10 THE COURT: They asked for the Hilltop Hotel
11 register.
12 MR. KARAS: With respect to the instruction at the
13 end, if the jury wants any other exhibits regarding PETN and
14 TNT, again, the risk here is that the request is very clear,
15 and maybe if we could say if there are any other exhibits you
16 wish with respect to this request, because otherwise we are
17 suggesting that they ought to be asking for exhibits regarding
18 the PETN and TNT, but not the fingerprints.
19 THE COURT: I don't think so. We will send in this
20 note and those exhibits.
21 They have already said they wish to go home at 4:30.
22 Anything else? Mr. Ailey has been communicated with?
23 MR. FITZGERALD: Yes, Judge, I believe a letter came
24 from Mr. Ailey while I was here last time, and I will hand it
25 over to Mr. Baugh.
6389
1 MR. BAUGH: You are pronouncing my name correctly.
2 THE COURT: Anything else? All right.
3 (Recess)
4 (Proceedings adjourned at 4:30 p.m. until Monday, May
5 21, 2001, at 9:30 a.m.)
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