5 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 59 of the trial, June 5, 2001.

See other transcripts: usa-v-ubl-dt.htm


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


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

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

                                               New York, N.Y.
   9                                           June 5, 2001
                                               9:30 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge

  15                            APPEARANCES

            United States Attorney for the
  17        Southern District of New York
  18        MICHAEL GARCIA
            Assistant United States Attorneys

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




   1            (Trial resumes; jury not present)

   2            THE COURT:  I have been reading the Supreme Court's

   3   decision in Henry v. Johnson, which was decided yesterday, to

   4   see whether it had any impact on our case, and I am not aware

   5   of any alteration in the charge that is required in light of

   6   Henry.  If anyone is of a contrary view, I would appreciate

   7   the advise promptly.

   8            We left two matters open with respect to the charge

   9   and the special verdict form.  One relates to the extent to

  10   which the government may argue, with respect to future

  11   dangerousness, a lack of remorse, and the government has said

  12   that it would cite for lack of remorse the photograph in which

  13   Mr. al-'Owhali strikes a pose such as that usually adopted by

  14   victors after a contest -- an upraised fist.

  15            Is that the extent of the government's claim with

  16   respect to lack of remorse, or is the government also relying

  17   on the substance of what Al-'Owhali said to Agent Gaudin?

  18            MR. FITZGERALD:  Your Honor, putting aside any

  19   statements he made in the nature of threats, which were

  20   suppressed, in addition, he expressed remorse for Azzam, his

  21   colleague, or sadness that he died.  That was the only person

  22   he expressed sadness of.

  23            We did not offer, but could offer, there was a later

  24   photograph similar to what we call "the champ" photograph

  25   taken on the airplane, where he also smiles, coming back to


   1   America.

   2            THE COURT:  Where is the statement that he regretted

   3   that the truck didn't go under the embassy so that more damage

   4   could be done to the embassy rather than to Kenyans?  Where

   5   does that appear?

   6            MR. FITZGERALD:  I believe that's part of the

   7   statement that was actually stipulated to by the defense; that

   8   his plan had been, he had recommended that Saleh change the

   9   plan to put the bomb in the embassy to attack the embassy and

  10   kill more Americans.

  11            THE COURT:  My understanding of the law on the

  12   subject, beginning with the Davis case and exemplified by

  13   cases that follow, is that there has to be very careful

  14   preservation of the defendant's Fifth Amendment right to

  15   remain silent, and that a lack of remorse cannot be predicated

  16   on silence but can be predicated on affirmative conduct,

  17   including statements made by the defendant.

  18            And certainly a statement of regret with respect to

  19   the driver of the truck and regret that the bombing was not

  20   accomplished in the manner which inflicted greater damage on

  21   Americans and less damage on Kenyans, coupled with the

  22   photograph, I believe satisfies the requirement that a lack of

  23   remorse may be predicated on affirmative conduct by the

  24   defendant.  I reject the claim that the mere passage of time

  25   negates that.


   1            The other open item related to the paragraph in the

   2   special verdict form which seeks to make clear to the jurors

   3   that they are not simply to count the number of aggravators

   4   and mitigators and that one aggravator or one mitigator may be

   5   dominant over a number of other opposing factors, and I see no

   6   need in that photograph to go into the need for unanimity or

   7   lack of unanimity and so we simply will strike those

   8   references.  We will have a revised copy of the charge and

   9   special verdict form later today.

  10            Are there any other matters that have to be addressed

  11   before the jury comes in?

  12            MR. BAUGH:  Yes, your Honor.  The last point that you

  13   just made is the consideration that -- idea -- the idea that

  14   one aggravator could outweigh all the mitigators or one

  15   mitigator could outweigh all the aggravators need not be found

  16   unanimously.  I thought we discussed this yesterday, that

  17   there has to be a finding that -- I mean, they have to find --

  18            THE COURT:  I deal with that requirement elsewhere.

  19   The only question is whether there is a need in that paragraph

  20   to deal with that.

  21            MR. BAUGH:  I would suggest there is, your Honor, in

  22   light of the history with this jury, the fact that they

  23   tracked the verdict form the way they did.  I'm assuming when

  24   they get to this, that portion of deliberations, that they are

  25   going to need those directions so that they don't do exactly


   1   what the Court was concerned with when it put it in there

   2   initially.  And for those reasons, and to make sure the

   3   government enjoys its proper burden, we would ask that the

   4   language be retained.

   5            THE COURT:  When we have the draft in front of us

   6   we'll review that again.

   7            I am handed a note, it's a typed note, from one of

   8   the alternates:  "Dear Judge Sand:  My primary care

   9   physician," whom he names and gives a telephone number,

  10   "diagnosed me as hypertensive and prescribed a blood pressure

  11   medicine Atenolol and a low-fat, low-sodium diet.  The marshal

  12   is unable to provide a low-salt meal for me during the

  13   sequestered lunch hour and I had no lunch yesterday and on

  14   several other occasions.  I request that you excuse me for

  15   this and other medical reasons."

  16            I am inclined to grant that request.

  17            MR. COHN:  Can your Honor advise us which alternate?

  18            THE COURT:  The third alternate.

  19            MR. COHN:  The third alternate.  One I think unlikely

  20   to be reached.

  21            THE COURT:  Unlikely to be reached.  Well, the third

  22   alternate.

  23            MR. BAUGH:  Your Honor, I have no problem doing it.

  24   Being that we keep the same panel for another case, I thought

  25   I would invite Mr. Ruhnke to make his comment.


   1            MR. RUHNKE:  We concur with your Honor's wishes to

   2   excuse this alternate.

   3            THE COURT:  Very well.  We will do that.  He is

   4   excused.

   5            Are there matters which require attention before the

   6   jury comes in?

   7            MR. FITZGERALD:  No, Judge.

   8            THE COURT:  All right.

   9            That alternate happens to be the alternate who delays

  10   the start each morning.

  11            With respect to the book, I take it you are just

  12   going to offer those chapters.

  13            MR. BAUGH:  Yes, your Honor.

  14            THE COURT:  Next order of business is what?

  15            MR. COHN:  I'll be reading a stipulation, your Honor.

  16            MR. RUHNKE:  Your Honor, while the jury is coming in,

  17   I understand --

  18            THE COURT:  They're right in the hall.

  19            MR. RUHNKE:  Just before the government presents its

  20   rebuttal case, I would like to be heard on a document.

  21            THE COURT:  All right.

  22            (Jury present)

  23            THE COURT:  Good morning.

  24            THE JURY:  Good morning.

  25            THE COURT:  You are aware we have excused the


   1   gentleman who sat in the last row, so the numbers are

   2   dwindling.  Everybody stay healthy, please.

   3            Mr. Cohn.

   4            MR. COHN:  Your Honor, with the Court's permission, I

   5   would like to read a stipulation.

   6            "It is hereby stipulated and agreed by and between

   7   the United States of America, by Mary Jo White, United States

   8   Attorney for the Southern District of New York, Patrick J.

   9   Fitzgerald and Michael J. Garcia, of counsel, and defendant

  10   Mohamed Rashed Daoud Al-'Owhali, by and with the consent of

  11   his attorneys, that:

  12            (i) Mamdouh Mahmud Salim, a/k/a Abu Hajer al Iraqui,

  13   was charged in indictment (S4) 98 CR 1023 (LBS) with

  14   conspiracy to kill United States nationals, but not with the

  15   bombings of the United States embassies in Kenya and Tanzania.

  16   Salim had been arrested on September 16, 1998, in Germany.

  17   Based on the charges filed against Salim, he did not face the

  18   death penalty.  Nonetheless, German authorities would not

  19   extradite Salim to the United States unless they were assured

  20   that Salim would not face the death penalty.  The United

  21   States Government assured the German Government in writing

  22   that it would not seek the death penalty for the offenses for

  23   which Salim was extradited.  Salim was extradited from Germany

  24   to the United States on December 20, 1998;

  25            (ii) Khalid al-Fawwaz, Ibrahim Eidarous, and Adel


   1   Abdel Bary were charged in indictment (S7) 98 CR 1023 (LBS).

   2   Fawwaz was charged with conspiracy to kill United States

   3   nationals and conspiracy to murder (Counts One and Two), but

   4   not charged with the bombings of the United States embassies

   5   in Kenya and Tanzania.  Fawwaz had been arrested on or about

   6   September 27, 1998, in the United Kingdom.  Based on the

   7   charges filed against Fawwaz, he does not face the death

   8   penalty; and

   9            (iii) Ibrahim Eidarous and Abdel Bary are charged in

  10   indictment (S7) 98 CR 1023 (LBS) with various conspiracy

  11   charges, including conspiracy to kill United States nationals

  12   (Count One), as well as with the various substantive counts

  13   arising out of the bombings of the United States embassies in

  14   Kenya and Tanzania.  Eidarous and Abdel Bary had been arrested

  15   on July 12, 1999, in the United Kingdom.  The bombing charges

  16   filed against Eidarous and Abdel Bary are capital offenses,

  17   but to seek the death penalty the government would have to

  18   prove sufficient participation in the action to satisfy the

  19   "gateway factors" for the death penalty.  Without resolving

  20   whether that can be done, it is assumed (for purposes of this

  21   trial) based on past experience that, as part of the ongoing

  22   extradition proceedings, British authorities will insist on a

  23   commitment from the United States that it not seek the death

  24   penalty against Eidarous and Abdel Bary (as well as Fawwaz)

  25   before extraditing any of them to the United States.  It is


   1   further assumed that at the time such a demand is made, the

   2   United States will provide such assurance to the United

   3   Kingdom."

   4            And then it's signed by the appropriate parties, your

   5   Honor.  And we offer this as Al-'Owhali GG.

   6            THE COURT:  Received.

   7            MR. COHN:  Thank you.

   8            (Defendant Al-'Owhali Exhibit GG received in

   9   evidence)

  10            MR. BAUGH:  Good morning, your Honor.  Another

  11   stipulation offered as Al-'Owhali HH:

  12            "It is hereby stipulated and agreed by and between

  13   the United States of America, by Mary Jo White, United States

  14   Attorney for the Southern District of New York, Patrick J.

  15   Fitzgerald and Michael J. Garcia, assistant United States

  16   Attorneys of counsel, and defendant Mohamed Rashed Daoud

  17   Al-'Owhali, by and with the consent of his attorneys, as

  18   follows:

  19            "(i) During interviews with Special Agent Gaudin of

  20   the Federal Bureau of Investigation during the defendant's

  21   interrogation, the defendant stated that during his training

  22   he was instructed that attacks on American embassies achieves

  23   several objectives, to include striking the United States

  24   ambassador, the military attache, the press attache, and, most

  25   importantly, the intelligence officers.


   1            "It is further stipulated and agreed that this

   2   stipulation may be received in evidence as a defense exhibit

   3   at trial."

   4            And again, your Honor, we would offer it as

   5   Al-'Owhali's HH.

   6            THE COURT:  Received.

   7            (Defendant Al-'Owhali Exhibit HH received in

   8   evidence)

   9            MR. BAUGH:  I have also, pursuant to direction, taken

  10   an excerpt from the Islam book, which we are offering as

  11   Al-'Owhali's DD, chapter 6 called the "Pillars of Islam" from

  12   pages 45 through 83, and we have copied the pages.

  13            THE COURT:  Received.

  14            (Defendant Al-'Owhali Exhibit DD received in

  15   evidence)

  16            MR. BAUGH:  Chapter 7 is stuck in there, too, which

  17   goes up --

  18            I'm sorry, chapters 6, 7, and 8.  The page numbers

  19   are the same.

  20            I have also been asked to cite the Court and the jury

  21   to Exhibit -- I believe it's already been introduced -- 1557E,

  22   translation, the same being the Islamic Army for the

  23   Liberation of the Holy Places Declaration Number 2, and an

  24   Arabic version of it, which may become an issue later.  Just

  25   making reference to it.


   1            At this time, your Honor, we have a videotape.

   2            THE COURT:  Yes.

   3            MR. BAUGH:  All right.

   4            (Videotape played)


   6            (Continued on next page)





















   1            MR. BAUGH:  I move the introduction of exhibit EE,

   2   the videotape.

   3            THE COURT:  What is the date on which it was made?

   4            MR. BAUGH:  It's 2000, all I know, your Honor.  It's

   5   from BBC.  After the introduction of EE, the defense will

   6   rest.

   7            THE COURT:  The defense rests, and we'll take a

   8   recess.

   9            (Jury not present)

  10            THE COURT:  Is there a government rebuttal case?

  11            MR. FITZGERALD:  Yes, your Honor.  It's one

  12   stipulation.

  13            THE COURT:  One stipulation?

  14            MR. FITZGERALD:  Yes.

  15            THE COURT:  That's the entirety of it.

  16            MR. FITZGERALD:  Yes.

  17            THE COURT:  All right.  Then the government is

  18   prepared to begin its closing statement.

  19            MR. FITZGERALD:  Yes.  I believe Mr. Ruhnke.

  20            MR. RUHNKE:  Your Honor, I wanted to be heard on the

  21   stipulation, although I'm not a party to this part of the

  22   proceeding.

  23            THE COURT:  May I see a copy?

  24            MR. FITZGERALD:  Yes.

  25            MR. RUHNKE:  The stipulation which was shown to me


   1   this morning as a matter of courtesy states in pertinent part

   2   that there are X number of inmates who have been subject to

   3   the special administrative measures known by it's acronym SAM;

   4   that 12 or 13 have been terrorists, and there is a stipulation

   5   that two individuals, terrorists, accused terrorists under SAM

   6   restrictions made an attack on an officer at an institution

   7   while under SAM conditions.  Obviously, the reference is to

   8   the assault on Officer Pepe in the year 2001.

   9            It never, ever made a concession on behalf of Khalfan

  10   Mohamed that he participated in the attack on an officer.

  11   Indeed, quite the contrary is the case.  The evidence will be

  12   at trial that he did not participate in it.  Now the

  13   stipulation is something that neither party knows to be true.

  14   Certainly, al-'Owahli --

  15            THE COURT:  Isn't the answer to change the language,

  16   two of the 12 detainees are alleged by the government to have.

  17            MR. BAUGH:  No objection from the defendant

  18   al-'Owahli, your Honor.

  19            MR. RUHNKE:  I don't object to that, because that's

  20   the fact.

  21            MR. BAUGH:  That's the fact.

  22            MR. FITZGERALD:  Could I have one moment, your Honor?

  23            (Pause)

  24            MR. FITZGERALD:  Your Honor, we do contend two

  25   inmates engage in the assault.  We're not putting on live


   1   testimony to avoid those issues.  That's why there is a

   2   bifurcation.  But why should we weaken the government's

   3   contention with regard to this defendant when he says that

   4   special administrative measures will insulate Mr. Al-'Owahli

   5   from being a danger.

   6            THE COURT:  Because they are alleged to have engaged

   7   in that attack, they are presumed innocent.  They haven't been

   8   proven guilty of that attack.

   9            MR. FITZGERALD:  For purpose of this trial, for

  10   Mr. Al-'Owahli the fact that the assault occurred if we proved

  11   in front of the jury that the officer went in a room with two

  12   inmates and nearly lost his life and came out, it would be

  13   clear to the jury that an assault occurred on the officer but

  14   to weaken that, weakens the fact that under special

  15   administrative measures an attack occurred.

  16            THE COURT:  Well, it is merely an attack.  You are

  17   saying that two of those engaged in serious assault.  You're

  18   saying as a fact that they did it, and it is not an

  19   established fact.  It is at this point a matter under

  20   indictment which remains to be proven at a trial.

  21            MR. FITZGERALD:  This stip is the alternative for us

  22   putting on witnesses.  The fact that we are depriving

  23   ourselves of live testimony of the assault -- what if we

  24   worded it, an attack occurred in a cell shared by two

  25   detainees under special administrative measures where a guard


   1   was -- and then wording it that way.

   2            MR. RUHNKE:  I will not object to that alteration of

   3   stipulation.

   4            MR. FITZGERALD:  The way it would be worded, your

   5   Honor, would be the last full sentence on the first page would

   6   start with the language:  A serious assault on BOP

   7   correctional officer occurred in a cell where two of those 12

   8   detainees were under special administrative measures.

   9            THE COURT:  Yes.

  10            MR. FITZGERALD:  I will show it to Mr. Baugh.

  11            THE COURT:  All right.  Anything else?

  12            MR. FITZGERALD:  No.

  13            THE COURT:  Now in terms of closing statements are

  14   the parties sufficiently informed as to the nature of the

  15   Court's charge to make their closing argument?

  16            MR. FITZGERALD:  Yes, your Honor.

  17            MR. BAUGH:  Yes, your Honor.

  18            THE COURT:  Very well.  We'll take a five-minute

  19   recess.  We'll read the stipulation.  The government will

  20   proceed to closing statement.

  21            (Recess)

  22            (In open court; jury present)

  23            THE COURT:  As you have heard the defendant has

  24   rested.  Mr. Fitzgerald.

  25            MR. FITZGERALD:  Yes, your Honor.  The government


   1   offers one exhibit in rebuttal regarding Al-'Owahli Exhibit R.

   2   It is Government Exhibit 2281 which I would offer now and ask

   3   to read.

   4            THE COURT:  Received.

   5            (Government's Exhibit 2281 received in evidence)

   6            MR. FITZGERALD:  It is hereby stipulated and agreed

   7   by and between the United States of America, and defendant

   8   Mohammed Rashed Daoud al-'Owahli by and with the consent of

   9   his attorneys, that Title 28 Code of Federal Regulations

  10   Section 501.3 which concerns special administrative measures

  11   hereafter, the special administrative measures which may be

  12   imposed on persons detained in Bureau of Prisons BOP

  13   facilities became effective in 1996.

  14            Since that time 21 detainees in the BOP system have

  15   been placed under special administrative measures pursuant to

  16   Title 28 Code of Federal Regulations Section 501.3.  Currently

  17   there are in excess of one hundred thousand detainees in the

  18   BOP system.  As of the present time there are 13 persons

  19   detained in the BOP system subject to special administrative

  20   measures pursuant to Section 501.3, 12 of them because their

  21   involvement in terrorism offenses.

  22            A serious assault on a BOP correctional officer

  23   occurred in a cell where two of those 12 detainees were under

  24   special administrative measures.  As a result of that assault

  25   the correctional officer was badly maimed and suffered


   1   permanent disability.

   2            Signed by both parties.  The government rests its

   3   rebuttal case.

   4            THE COURT:  The government rests.

   5            All right, ladies and gentlemen, so as you have heard

   6   both sides have rested, and the next order of business then

   7   are closing arguments.  As was the case in the prior

   8   proceeding the government goes first, followed by the

   9   defendant and the government then has an opportunity for a

  10   brief rebuttal.

  11            Mr. Garcia.

  12            MR. GARCIA:  Thank you, Judge.  Good morning.

  13            In his opening here before you last weeks Pat

  14   Fitzgerald told you that up to that point before we began this

  15   penalty phase you had heard little about what the embassy

  16   bombing did to human beings, and he told you that over the

  17   next day or so you would learn about that, you would hear from

  18   victims, and you would have a better understanding of what

  19   al-'Owhali's crimes did to those victims.  After hearing from

  20   just 26 of those victims sadly, sadly the impact of his crimes

  21   are much more real.

  22            If we could call up Government Exhibit 2140.  This is

  23   Joyce Manguriu.  You heard her father testify here in this

  24   courtroom.  And what do you know about her now?  You know that

  25   this photograph was a photo she had taken for her passport


   1   because she was planning on coming to the United States to

   2   attend college, but you know that Joyce will never attend

   3   college because this defendant murdered her.  She'll never

   4   attend college.  She'll never get married.  She'll never have

   5   children.

   6            If we could have Government Exhibit 2035.  You know

   7   after hearing Deborah Hobson testify that this is a photograph

   8   of her husband, Kenneth Ray Hobson, and that's his daughter,

   9   Megan.  You know from Deborah Hobson that Ken liked to bake

  10   bread with his daughter on the counter of their home in

  11   Nairobi.  And you know from when she testified that eight

  12   months after the bombing, eight months after this defendant

  13   killed her husband, she had another child and she named that

  14   child Abigail whose name means my father rejoices.

  15            Those are two of the victims you heard from.  Those

  16   are two of the 26 victims that took the stand, and after their

  17   testimony the suffering and the pain caused by this defendant

  18   can now be associated with real family, with real lives lost,

  19   lives that were stolen by this defendant.  And it can also be

  20   associated this crime with courageous survivors who live with

  21   blindness and with paralysis and the emotional scars that

  22   never heal.

  23            You heard not only about the bombing, but the hours

  24   and the days after the bombing when wives learned they had

  25   lost their husbands, when parents were told they had lost


   1   children, and where children had to be told that a mother or a

   2   father would never be coming home.

   3            You heard it, and you have seen the devastating pain,

   4   you felt it, you felt it when those witnesses came in here,

   5   they took the stand, and they told you their story.  Those

   6   witnesses were brought into the room by this defendant, by the

   7   crimes he committed, and that death and the pain and the

   8   suffering that he caused when he detonated, when he caused

   9   that bomb to be detonated on August 7, 1998.

  10            For each of the victims that the government called in

  11   here, for each of the victims that testified here there are

  12   dozens more that you didn't hear from.  For each of the

  13   injured and the maimed, remember there are hundreds more you

  14   didn't hear from.  Because this defendant he killed 213

  15   people, injured 4,000 people, and these are only the direct,

  16   the physical injuries.  There are thousands more, relatives,

  17   and friends of those who were killed and those who were maimed

  18   who had to live through that horror, who had to see it, who

  19   had to experience it and who still live with it.  Those are

  20   also victims.  And now al-'Owahli must be held accountable for

  21   his crimes.  He must face the full measure of justice.

  22            On August 7, 1998, Al-'Owahli jumped from the cab of

  23   that truck.  He threw his grenades, and he ran.  He ran fast

  24   and he ran hard across that parking lot and he saved himself.

  25   He ran past windows where people had come to look at the


   1   commotion, and he made it to safety.

   2            And after he had killed those 213 people and blinded

   3   Ellen Bomer and blinded Sandi Patel he went to the hospital

   4   and he got treated for his injuries.  The largest injury he

   5   had was on his back, because his back was facing the embassy

   6   as he ran from it.  Yes, he ran away.

   7            And now it's time for Al-'Owahli to face justice.

   8   He's had his trial, a thorough and a fair trial that began in

   9   this courtroom in February of 2001.  He was found guilty,

  10   found guilty of 213 murders, unanimously, and the past week

  11   he's had his penalty phase, and now it's time for Al-'Owahli

  12   to be sentenced, time to be sentenced to the punishment he

  13   deserves, punishment that does justice to the victims of his

  14   crimes.  It's time for Al-'Owahli to receive the only

  15   sentence, we submit, that fits his crime, the death sentence.

  16            We'll walk through the factors, the factors you must

  17   weigh in your decision, and although this can never be an easy

  18   decision, it's one of the hardest decisions one can make, it

  19   is the right decision in this case.

  20            Let's talk a little bit about the law.  Now, Judge

  21   Sand gave you some preliminary instructions on the law.  He'll

  22   talk to you again about the law.  His are the instructions

  23   that you must follow.  He'll talk to you about aggravating and

  24   about mitigating factors, and the statute provides a framework

  25   for you to follow in making your decision.


   1            What I'd like to do now is look at these factors,

   2   these preliminary factors.  I think Judge Sand referred to

   3   them as gateway factors.  And he said that you must find at

   4   least one of them as to each count.  You must find unanimously

   5   and agree on at least one that the government has proved one

   6   beyond a reasonable doubt.  And these deals with al-'Owhali's

   7   intention and his conduct.  And the government submits that it

   8   has proven all four beyond a reasonable doubt.

   9            Looking at them quickly.  1.  That the defendant

  10   intentionally killed the victim or victims.  2.  That the

  11   defendant intentionally inflicted serious bodily injury that

  12   resulted in death.  3.  Defendant intentionally participated

  13   in an act contemplating that the life of a person would be

  14   taken or that lethal force would be used, and the victim or

  15   victims of a particular count died as a result of the act, or

  16   the defendant engaged in violent conduct, knowing that the

  17   acts created grave risks of death to a person such that the

  18   act constituted a reckless disregard for human life, and the

  19   victims died as a result of the act.

  20            Defendant's conduct satisfies all four of these

  21   elements.  You've already found him guilty that he himself

  22   killed 213 people, the people that died in the bombing.  He

  23   took a truck full of explosives, he drove it into a downtown

  24   area, and he inflicted death and destruction.  He knowingly

  25   and intentionally participated in this crime, a plot to bomb,


   1   a plan to kill.  He created a grave risk of death to all these

   2   in the vicinity of the embassy that day.  He wanted to kill.

   3   He intended to kill and he did kill.

   4            The government submits that the proof overwhelmingly

   5   establishes each and every one of those four gateway factors,

   6   and, again, you need find only one in order to continue with

   7   the process.

   8            Once that is done for each count that it is done, you

   9   can move on to what are call the statutory aggravating

  10   factors, and, again, as to each capital count you must all

  11   agree unanimously that the government has proved at least one

  12   statutory aggravating factor beyond a reasonable doubt.  Then

  13   you can go on to the nonstatutory aggravating factors and the

  14   weighing process.  Before we get to that, I'd like to just say

  15   a word about the process, the weighing process.

  16            In the beginning of this case you took an oath as

  17   jurors that if you found Al-'Owahli guilty of the murder

  18   charge, the capital counts, you could fairly and carefully

  19   deliberate in a penalty phase.  You were told that the law

  20   provides in certain circumstances that murders can be punished

  21   by death, that in some cases that is the appropriate

  22   punishment.  This is one of those rare cases.

  23            These aggravating factors narrow the pool of those

  24   eligible for the death penalty.  They narrow the scope of

  25   those who have already been found guilty of the worst crime of


   1   murder.  They narrow that group so you get to the worst of

   2   that group and in this case as we go through the aggravating

   3   factors and we look at any mitigating factors you will see

   4   that Al-'Owahli is the rare exception, the criminal, the

   5   murderer, who deserves the ultimate penalty that is authorized

   6   by our law.

   7            Now, let's look at the first aggravating factor.

   8   That the deaths and injuries resulting in death of the victim

   9   or victims of the particular count you are considering,

  10   occurred during the commission or attempted commission of

  11   another offense, namely, the list of offenses under Title 18,

  12   bombing of property leased to the United States government,

  13   killing or attempted killing of internationally protected

  14   persons, terrorists acts abroad against US nationals and use

  15   of a weapon of mass destruction.

  16            Judge Sand will explain as to each count you must

  17   determine if the victims were killed during the commission of

  18   certain other crimes, depending on the count you are

  19   considering.  The government has proved these crimes beyond a

  20   reasonable doubt.  It's proved this factor beyond a reasonable

  21   doubt, and you can give it as much weight as you see fit.

  22            The second factor involves substantial planning, and

  23   premeditation, that the defendant committed the offense listed

  24   in the particular count you are considering after substantial

  25   planning and premeditation to cause the death of one or more


   1   persons or to commit an act of terrorism.

   2            Well, you know from the evidence at the guilt phase

   3   that Al-'Owahli engaged in long-term substantial planning for

   4   the embassy bombing.  First, when he gets a call from Azzam

   5   and he's told that he's going to go on a mission and he agrees

   6   and he accepts that mission, he gets more training.  He's

   7   already been trained, but he gets more training now for this

   8   mission, training in how to operate and manage the terrorist

   9   cell.

  10            And when he's finished with that training, he gets a

  11   false passport, one of many aliases he used, takes that

  12   passport and he travels to Yemen and in Yemen he gets another

  13   fake identity, a Yemenis passport, this one in the name of

  14   Khalid Bin Rashed, the name Al-'Owahli would use to go on his

  15   mission to go on the bombing in Nairobi.  And when he gets the

  16   Yemenis passport he goes back to Pakistan and in Pakistan he's

  17   given a further briefing on his mission.  He's told what his

  18   role will be, to assist the driver, the driver of a bomb-laden

  19   truck, the truck that will be driven into an American target.

  20            And on July 31, Al-'Owahli take his fake Yemenis

  21   passport.  He gets on a plane and he travels to Nairobi.  And

  22   by the 4th of August he's down at the center of Nairobi,

  23   center of the city, scouting out the embassy, scouting out his

  24   target.  And he's shown photographs, and he's shown sketches

  25   of the target.  He's preparing himself for August 7, 1998.


   1            And that day he takes his stun grenades and he takes

   2   his pistol, goes down to that area that he's familiar with,

   3   familiar with because he saw it, familiar with it because he

   4   saw sketches of it, and he goes down there and he helps Azzam

   5   bring the bomb truck.  Oh, yes, there was substantial planning

   6   and training; fake names, documentation, passports, and

   7   premeditation.  He intended to kill as many people as

   8   possible.  His stated goal was terror to further the terrorist

   9   goals of his organization.  This wasn't a crime committed on a

  10   sudden impulse.  It wasn't done in the heat of any argument.

  11   It was a long and it was a complex and detailed plan.  It was

  12   mass murder committed in cold blood.  He prepared for it, he

  13   studied for it, he trained for it, and he carried it out.

  14            If we could go to the third factor.  The defendant in

  15   the commission of the offense in the particular capital count

  16   knowingly created a grave risk of death to one or more persons

  17   in addition to the victim or victims in that count.

  18            Yes, he did.  You heard the evidence of that during

  19   both phases, in the guilt phase and in the penalty phase.  You

  20   saw how many people he placed in immediate threat of death in

  21   that downtown Nairobi area on the morning of August 7.  In the

  22   guilt phase you heard from a witness called Frank Pressley

  23   took the stand and told you that morning he was chatting with

  24   a few of his colleagues in the office.  Frank Pressley

  25   survived, other people in that office like Jay Bartley, like


   1   Michelle O'Connor, died.  And Frank Pressley had part of his

   2   jaw ripped off but he survived.

   3            Lydia Sparks came at the penalty phase.  She told you

   4   she saw her colleagues Joe Kionga and Lydia Mayaka up by the

   5   window.  The bomb went off, they disappeared.  They were

   6   killed.  Lydia Sparks she survived, but she was cut from head

   7   to toe by flying glass.

   8            Flying glass maimed Pinoma Muhuhu and Tobias Otenyo

   9   who came and testified at the guilt phase, Moses Kanui who

  10   testified had part of his head blown off in the blast.  But

  11   perhaps the story that most exemplifies the risk of death to

  12   everyone in that area came from Sami Ingaga, who testified

  13   here in the guilt phase.  He told you that he was in the

  14   Ufundi House and when the bomb went off and these floors

  15   collapsed like a house of cards he was trapped in a small

  16   space, four foot by four feet for two days, for two days while

  17   he could see the bones sticking out of his pants leg and he

  18   waited and he talked to his rescuers and he talked to somebody

  19   else, he talked to a woman name Roslyn Huruwang, and he tried

  20   to comfort Roslyn.  He tried to steer rescuers towards her.

  21   Sami was pull out of the rubble.  Roslyn died.  Some were

  22   rescued, some were not.

  23            There was a grave risk of death to all the people

  24   that were in the vicinity of the downtown Nairobi area on the

  25   morning of August 7th when al-'Owhali's massive bomb went off.


   1   And you heard some of the witnesses who came in here and they

   2   testified at the guilt, penalty phase, and they told you they

   3   were far away from the downtown area, far away and the window

   4   rattled or they heard a thud, they heard a bang, they heard

   5   that massive bomb go off so far away from the site.  And at

   6   10:30 a.m. on August 7th the difference between standing two

   7   feet this way or two feet that way could mean the difference

   8   between life and death.

   9            And the further factor that the defendant

  10   intentionally killed or attempted to kill more than one person

  11   in a single episode.

  12            Well, you know he did that.  You found him guilty of

  13   213 murders, 212 murdered and look at the evidence, look at

  14   that stipulation.  They ranged in age from 16, 16 to 66, and

  15   pretty much every age in between.  213 killed in one act.

  16   It's a number that's difficult to comprehend.  One way you got

  17   an idea of the number of the carnage was when you heard from

  18   the victim's relatives who testified here, and they talked to

  19   you about trying to find the people that were killed, trying

  20   to find their loved ones and finally they had to go to the

  21   morgues, and they went to the morgue and they went down row

  22   after row of bodies looking at socks, looking at clothes,

  23   trying to look at faces.  And many of those bodies were

  24   mangled, many of them were burned beyond recognition.

  25            Al-'Owahli killed multiple victims.  He killed 213


   1   and he attempted to kill many more.  And these are the

   2   statutory aggravating factors:  Death during the commission of

   3   another crime, substantial planning and premeditation, grave

   4   risk of death to other persons, and multiple killings and

   5   attempted killings, and the government submits that it has

   6   proven all four beyond a reasonable doubt.

   7            Now let's look at the nonstatutory aggravating

   8   factors.  The victims and intended victims of the particular

   9   count included high-ranking public officials of the United

  10   States serving abroad and the offense was motivated by such

  11   status.

  12            Well, you know from al-'Owhali's own statement that

  13   he was targeting the ambassador, Ambassador Bushnell.  You

  14   know why.  He said he targeted her because she was a woman and

  15   because if she died it would bring more attention to the

  16   story, bring more attention to his terrorist cause.  He tried

  17   to kill Ambassador Bushnell.  He came close.  He did kill

  18   high-ranking public officials, and he killed Julian Bartley

  19   the counsul general.

  20            And the government is not suggesting in this factor

  21   that one life is more valuable than another life.  It's not

  22   saying because some person holds a position that should count

  23   more.  We are saying that people like Julian Bartley, people

  24   who you heard Sue Bartley testify was interested in building

  25   bridges, and using his position to help people, that people


   1   like that should be able to do that job in safety so that

   2   others will follow, that others will follow his example of

   3   service and dedication.  And that should be a factor, it

   4   should be an aggravating factor, that this defendant

   5   Al-'Owahli would murder people like Ambassador Bushnell and

   6   Julian Bartley just because their deaths would better serve

   7   his terrorist mission, and he would hope to scare off the

   8   Julian Bartleys, scare them from building bridges.  In a world

   9   as complicated and as dangerous as the one we live in we need

  10   more Julian Bartleys, not less.

  11            I'd like now to look at the second factor,

  12   nonstatutory factor.  That the defendant poses a continuing

  13   and serious threat to the lives an safety of others with whom

  14   he will come in contact.

  15            Let's look at that.  Let's look at it in two parts.

  16   First, this defendant, his training, his intentions, and his

  17   mind set, and next who it is he will come in contact with, who

  18   it is that will be at risk.  First al'-Owhali's own training.

  19   What make him dangerous?  Well, he had three rounds of

  20   training.  First when he went up to Afghanistan when he heard

  21   about Bin Laden and answered the call the call for violence

  22   against America, and he was such a good student in that first

  23   round of training that he got to meet Bin Laden himself, and

  24   then he went and he got more advanced training, more

  25   specialized training in terrorist operations, in hijackings,


   1   highjackings of every buses and planes, in kidnapping, in

   2   taking hostages, in taking and holding buildings.

   3            And then he had a third round of training in the

   4   operation and management of terrorist cells, which even by his

   5   own account was the most advanced training he had ever had.

   6            Al-'Owahli was highly trained, highly motivated, and

   7   at some level willing to give his life to achieve his goals to

   8   strike at the United States.  When he went to Nairobi and he

   9   met Saleh and Harun, he heard about the Tanzania bombing, he

  10   scouted his target in a busy downtown area and he bombed it.

  11            And then after he bombed that embassy.  After he

  12   threw the grenade and saved himself, he went to get treatment

  13   for his cuts and bruises, he went to get himself fixed up.

  14   And where did he go?  He went to M.P. Sha Hospital.  He walked

  15   into the MP Sha Hospital and he saw the carnage that he had

  16   created and you heard Dr. Patel testify that this is a sample

  17   of the types of injuries that he saw that day.  And Dr. Patel

  18   worked at M.P. Sha Hospital.  This isn't a photograph of M.P.

  19   Sha Hospital, but it's injuries, injuries like the ones he

  20   saw, injuries that were so common that day.

  21            In the middle of all that, in the middle of that

  22   scene were Sandi Patel and M.P. Sha Hospital, was where Sandi

  23   Patel is having his eye operated, where Sandi Patel's eight

  24   year old brother sits on the floor and cries because as Sandi

  25   Patel told you he had too much pain, too much pain from the


   1   glass, and the gashes caused by al-'Owhali's bomb.

   2            In the middle of that, in the middle of the scene at

   3   M.P. Sha Hospital, and this is a photograph of a boy being

   4   treated at M.P. Sha Hospital, and this is the intensive care

   5   unit at that hospital, in the middle of all this, Al-'Owahli

   6   walked in, walked into that hospital, and got himself patched

   7   up.  This is a very dangerous and a very cold blooded killer.

   8            And even if you credit his later statement, the

   9   statement that he only meant to kill Americans and the Kenyans

  10   inside the embassy base, only those 200 people, he showed no

  11   remorse, no remorse for the 213 that he did kill.  And how do

  12   you know that?  Well, you've seen the photograph, the champ

  13   photograph posing for the media, posing with that smile after

  14   he's just killed 213 people, more than 200 Kenyans.

  15            He showed no remorse for his victims, but he did shed

  16   some tears after the bombing and you heard about that.  When

  17   he was being interviewed by Agent Gaudin he was shown a

  18   picture of the bomber Azzam, the guy who blew himself up while

  19   he killed 200 innocent people and Al-'Owahli cried for Azzam.

  20   Al-'Owhali cried for him and Al-'Owhali kissed his photograph,

  21   and he sang a little chant about maybe, maybe some day I'll

  22   meet Azzam in Paradise, my friend.  That's the emotion

  23   Al-'Owahli showed after the bombing.  He's fully committed,

  24   he's fully trained.

  25            And now let's talk about who al-'Owahli will come in


   1   contact with.  Now, the government's not here to say that

   2   Al-'Owahli if he doesn't receive the death sentence will be

   3   walking around on the street.  No.  Mr. Baugh told you that

   4   he'll spend forty or fifty years in prison, forty or fifty

   5   years in American prison with American guards, guards that he

   6   views in his twisted way as the enemy, the representative of

   7   his enemy the United States.  Guards that are a way for him to

   8   achieve the thing that Azzam achieved, and what does he have

   9   to lose, he's already killed 200 people?  He's trained in

  10   hostage taking, he's trained in taking over buildings and

  11   everyday, everyday for 50 years those guards are going to be

  12   on the alert for Mr. Al-'Owahli.  Those guards are going to

  13   have to watch him because he's trained, and he's looking at

  14   them, he's looking at them as the enemy.

  15            Now, you heard some evidence about the special

  16   administrative measures and let's take a second to talk about

  17   those.  They're good for 120 days, four months.  Then they can

  18   be renewed.  They are subject to challenge.  But most

  19   important of all, as you just heard, they are not fool proof.

  20   You've just heard a stipulation that of the few prisoners in

  21   the Federal Bureau of Prisons system, the few prisoners under

  22   those measures under that tight security that a guard was

  23   badly maimed and permanently disabled in a cell shared by two

  24   of those prisoners under those tight special administrative

  25   measures.  So much for the SAMs.


   1            Al-'Owahli poses a serious and continuing threat in

   2   prison, make no mistake about that, and that should carry

   3   great, great weight in your deliberations, but there is more.

   4   The final, and the government submits the most weighty and

   5   compelling of all the aggravating factors in this case.  As

   6   demonstrated by the deceased victims' personal characteristics

   7   as individual human beings and the impact of the deaths upon

   8   the deceased victims' families, the defendant caused injury,

   9   harm and loss to those victims and their families and the

  10   defendant caused serious physical and emotional injury and

  11   grievous economic hardship to numerous individuals who

  12   survived the bombing.

  13            That's an understatement, an understatement.  Pain

  14   and loss cased by Al'-Owahli to the victims and their

  15   families, impact that continues to this day, impact that will

  16   never end.  I'm not going to summarize the testimony you heard

  17   over that one day, over that afternoon and that morning.  I

  18   could never speak with the same eloquence as those witnesses,

  19   I could never adequately express to you their feelings, their

  20   pain, their suffering, their emotions.  No one who heard that

  21   testimony could ever forget it.  The pain and the suffering

  22   and the loss that you heard here almost three years later,

  23   your impression of what those witnesses said, how they said it

  24   should guide your deliberations.

  25            You are asked to determine how much weight to give it


   1   and as you do consider the importance of that factor.

   2   Remember, remember that Fahat Sheikh should be raising his

   3   sons today.  His sons shouldn't be drawing pictures of the

   4   embassy where their father was killed.  Remember that Teresia

   5   Karanja shouldn't have to come in here in a wheelchair to tell

   6   her story, a wheelchair where this defendant put her, and

   7   where she will spend the rest of her life, everyday, and Ellen

   8   Bomer, Ellen Bomer shouldn't have to be afraid of the darkness

   9   afraid of the darkness because she was blinded by this

  10   defendant, and Deborah Hobson's daughter Abigail should see

  11   her father rejoice.  And Mordecai Onuno, he should be spending

  12   Sunday afternoons in the family pew at church.  He shouldn't

  13   be carrying around his anniversary card and reading the last

  14   message he wrote to his wife, and Nathan Aligana he should

  15   still be carrying his country's flag, he should not have been

  16   carried out of that embassy wrapped in one.

  17            Remember those stories, remember the lives that were

  18   shattered by this man, what he took away from each and every

  19   one of these and of 200 others from communities, from friends,

  20   from loved ones, because Al-'Owahli chose to kill them.

  21            You heard testimony about other victims, other

  22   victims who survived and who were blinded and who were maimed.

  23   These are examples of the injuries he caused.  You heard about

  24   carnage in the hospitals people lying on floors, wards

  25   overflowing.  You heard about searches being done for loved


   1   ones, searches through hospitals and later searches through

   2   morgues.  You heard about people going up to boards and trying

   3   to find names.  You heard one witness tell you unknown African

   4   male.  I'm looking for him.  All I see is list after list of

   5   unknown African male.  It's not right.  It's not right.  These

   6   families looking at a board trying to find the name of someone

   7   they loved among the missing or among the dead.  And you heard

   8   about the identifications, the identifications that in some

   9   cases had to be made through clothing, through a T-shirt that

  10   said Thank God Jesus Loves Me, through DNA testing in one

  11   case.

  12            And these were hard-working people who came here,

  13   working hard to get by under difficult conditions, and you

  14   heard family members, they are asked tell us something about

  15   your loved one and a lot of time they said, well, they were

  16   good provider, they took care of us, the took care of the

  17   family, and now we're lost, now we're lost, because of the

  18   pain, because of the pain that Al-'Owahli brought into their

  19   lives.

  20            In an instant in the morning of August 7th the

  21   defendant changed those lives forever.  They came face to face

  22   with the horror and with the terror that's difficult to

  23   understand, even after you heard it told.  That's impact.

  24   That is victim impact.  Impact that began that day with the

  25   defendant's bomb and impact that continues to this day.  And


   1   there is no more weighty factor than that one measured by the

   2   pain of 213 victims and their families.  There must be justice

   3   for the victims of this crime.

   4            And when you are weighing those aggravating factors

   5   you are also to consider any mitigating factors this defendant

   6   has proved by a preponderance of the evidence and let's look

   7   briefly at some of the mitigators that Al-'Owahli has

   8   proposed.

   9            He says that other members of the conspiracy who were

  10   arrested are cooperating with the government who are guilty or

  11   charged with planning, bombing embassies, and killing of US

  12   nationals will not be punished by death.  Cooperating.

  13   Cooperating witness Al Fadl he walked into the Americans.  He

  14   hadn't been charged with the crime.  He pled guilty.  He came

  15   in here and he testified.  He doesn't face the death penalty.

  16   Is that an injustice?  Moma du Salim who is not charged in any

  17   case with any capital counties in the getting the death

  18   penalty.  Usama Bin Laden, he's not here to face justice

  19   neither his lieutenant Mohamed Atef.  They may be some day.

  20   That's not the issue.

  21            The issue is responsibility for this defendant's

  22   crimes and punishment for this defendant's crimes.  In a

  23   similar way Al-'Owahli says, well, he's less culpable, less

  24   culpable than others that planned the bombing.  That's an odd

  25   argument to make.  Less culpable in the murder of 213 people,


   1   less culpable although he trained for it, he planned for it,

   2   he wanted the mission, he asked for a mission to kill, he

   3   scouted the target, he knew the entire plan, including the

   4   Tanzania bombing.  He helped deliver the bomb to the target.

   5   Focus on his actions, on his crimes, on his active and central

   6   role in this atrocity.

   7            Next, al-'Owahli claims as mitigation that he has no

   8   criminal record and that he was young in age when he bombed

   9   the embassy.  Well, we concede he has no criminal record.

  10   Factually, that's not the issue here.  The issue is how much

  11   weight do you give that factor?  He has no criminal record.

  12            Well, the Judge will tell you it's not numbers, you

  13   don't add up the numbers of the factors.  It's the weight of

  14   the factors and how much weight do these mitigating factors

  15   get.  Well, Al-'Owahli never been arrested before, never been

  16   arrested before he bombed the embassy and killed 213 people

  17   and injured 4,000 more.

  18            But take a look what he was doing while he compiled

  19   this exemplary record.  He was in Afghanistan.  He was going

  20   to terrorist training and terrorist camps.  He was getting

  21   false documentation, false passport so he could travel and

  22   bomb the US embassy.

  23            And keep in mind when you think about this that

  24   Al'-Owahli said he came from a privileged background in Saudi

  25   Arabia.  He said it was a very prominent and a very wealthy


   1   family, and that he attended university in Rhiad.  He was

   2   young, he was wealthy, he was educated, young in age, he was

   3   21.  There is a stipulation to that.  He was 21 when he

   4   committed this act of mass murder.  Not a sheltered 21, but an

   5   educated and a hardened 21.  And at some point you have to

   6   take responsibility for your actions.

   7            Sandi Patel was 12 when Al-'Owahli blinded him when

   8   he stole his youth.  His brother was eight when he was cut and

   9   bleeding because of the bomb.  Joyce Manguriu was 17 when she

  10   was planning on going to the embassy, when she was planning on

  11   going to the United States to study.  She was young.  She had

  12   no choice about dying.  Al-'Owahli was twenty-one and he had a

  13   choice and he chose to kill.  He chose to kill Joyce  and he

  14   chose to kill 212 others.

  15            And remember although Al-'Owahli was twenty-one, he

  16   had a will and he showed it.  He wasn't brain washed.  Yes, he

  17   had training.  Yes, he listened to lectures.  He listened to

  18   tapes.  And after he had done with that training and after he

  19   had listened to those tapes, what did he do?  He said, no, and

  20   who did he say no to?  He said no to Bin Laden.  He said no

  21   I'm not going to pledge bayat.  No, I'm not going to take an

  22   oath.  Why not?  Because all he wanted was a mission.  He

  23   wanted a terrorist mission.  He didn't want to get stuck out

  24   of the action.  He wanted control.  He wanted to kill.  And he

  25   got what he wanted and 213 people died as a result terrible


   1   and horrible deaths.  Al-'Owahli made a choice and he should

   2   be held responsible for that choice.

   3            Al-'Owahli also points as mitigation that although he

   4   intentionally committed this act contemplating that he would

   5   kill Americans, he did not intend to kill or injure Kenyan

   6   victims not employed in the embassy.  Well, this is totally

   7   uncompelling for three reasons.  One, that's what he claimed

   8   after he got caught after he learned he had killed 200

   9   Kenyans.  He claimed he didn't mean it.

  10            (Continued on next page)

















   1            He claimed he didn't mean it.

   2            Two, assume there's some truth to it.  Assume that he

   3   just wanted to kill Americans, that's okay.  He just meant to

   4   kill Tom Shah.  He just meant to kill Jay Bartley.  He just

   5   meant to kill the other people that you saw on that CD-ROM we

   6   played during Mrs. Bartley's testimony.  He just meant to kill

   7   Lydia Sparks and Allen Bomer.

   8            And finally, as Ambassador Bushnell told you, on any

   9   given day in Nairobi there were 200 people in the embassy, 200

  10   people, and most of them, most of them were Kenyans.  So

  11   Al-'Owhali only intended to murder those 200 people, those

  12   Kenyans and those Americans who were inside the building.

  13            He only intended to murder Americans and Fahat

  14   Sheikh, Nathan Aliganga, Ken Hobson, Prabhi Kavaler, and if

  15   Titus Wamai, who happened to be a foreign service national,

  16   was working as a commercial specialist in the embassies, well,

  17   if he was in there, he intended to kill him, too.

  18            You know his concern for the Kenyans came after he

  19   was caught, after he surveilled that embassy.  He knew exactly

  20   what the target was like.  And, yes, he said to Saleh, well,

  21   can we get the bomb closer to the embassy?  Can we get it

  22   underneath the embassy and kill more Americans?  And Saleh

  23   said no.  He didn't change the plan.

  24            And three days later, Al-'Owhali brought that bomb

  25   back to the embassy, brought it down to the downtown area, and


   1   watched Azzam position it outside the embassy.  And then he

   2   ran.  And when he ran, he gave no warning to the Kenyans

   3   outside.  He didn't yell.  He didn't shout.  He just ran and

   4   he saved himself.

   5            And the stun grenades to warn, he threw those stun

   6   grenades at the guards to get them out of the way.  You know

   7   what the effect was?  They brought people to the windows,

   8   people to the windows of the embassy and the buses, where they

   9   were maimed and they were massacred.

  10            What weight should you give this factor?  Even seen

  11   in the best light that he intended to kill only the 200 people

  12   inside the embassy, the Americans and the Kenyans, and he made

  13   a mistake and killed a hundred people outside the embassy, the

  14   government submits this is no mitigation at all, zero.

  15            Let's look at another proposed mitigator.

  16   Al-'Owhali's motivation.  He said he committed these murders

  17   to save his religious community from genocide and from terror.

  18   Well, on August 1998 he told Agent Gaudin what the conditions

  19   would be to stop the acts of terror, and he never mentioned

  20   protecting his community, his ummah.  He said the U.S. had to

  21   get out of Saudi Arabia, the land of the two holy places.  He

  22   said the U.S. had to stop supporting the enemies of Islam,

  23   like Serbia and Israel, and he they should stop using its

  24   influence to stop the spread of Islamic law around the world.

  25            He didn't mention Iraqi children, he didn't mention


   1   the oil embargo.  That wasn't on his mind in August of 1998.

   2   It isn't prominent in the fatwahs because of Bin Laden, the

   3   Iraqi embargo.  It's not a burning issue.  It's to get people

   4   out of Saudi Arabia, the holy place.  Look at the claims of

   5   responsibility.  That's the primary goal.

   6            But coming in here and showing you photos of American

   7   troops stationed in the Arabian Peninsula would not have the

   8   same effect as coming in here and showing Iraqi children.  And

   9   we heard a lot about Iraq and the Iraqi people and the U.N.

  10   sanctions.  And there's no doubt that those are very complex

  11   issues and painful issues.

  12            The issue of sanctions the United Nations and the

  13   delegates and the leaders and the U.S. government is to

  14   consider.  They have to consider those issues, and Saddam

  15   Hussein and biological and chemical weapons and the impact of

  16   an embargo on the civilian population and why the U.S.

  17   implemented no fly zones in the first place.

  18            But this is not that forum.  The government did not

  19   join these issues.  The government does not concede the

  20   defendant's position on the history of these issues, of what

  21   they mean, the position of Ramsey Clark, who came in here and

  22   testified.  No, those issues are important and they are

  23   complicated, but they have no place here, not in this penalty

  24   proceeding, where the focus and the purpose must be on the

  25   appropriate penalty for this defendant and for the crimes that


   1   he committed.

   2            Al-'Owhali claims his crimes were mandated by his

   3   religion.  Don't believe that for a minute.  One of his

   4   victims, Fahat Sheikh, who was buried in the embassy, was one

   5   of over 1 billion Muslims who peacefully practice their

   6   religion in this world, a highly respected religion, defamed

   7   by this defendant, who would use it as an explanation for

   8   killing 200 people.

   9            When you think about Islam, think about Fahat

  10   Sheikh's son on the morning of August 8th, 5:00 a.m.  He wants

  11   to go to the mosque and he wants to sing the call to prayer

  12   because he thinks it will call his father home.  That's an

  13   example of a boy using his religion to show love for his

  14   father.

  15            And later you heard that the religion teachers, that

  16   boy's religion teacher said, why does he hate religion?  He

  17   hates religion because this defendant would twist it, because

  18   this defendant would use it as an excuse to kill, would use it

  19   as an explanation for killing.

  20            And when you look at the pages of that book that was

  21   put in by Mr. Baugh, the pages of the book on Islam, you won't

  22   find a call to violence, you won't find a call to bomb

  23   embassies or murder innocents.  No.  You will find the

  24   religion of Fahat Sheikh and his sons, not the murderous and

  25   cowardly conduct of this defendant.


   1            And lastly, Al-'Owhali claims that he attacked the

   2   embassy in a belief it was an intelligence and military

   3   target.  Al-'Owhali did say if you hit the embassy, you hit

   4   the ambassador, you hit the military attache, the press

   5   attache, and, yes, you hit intelligence officers.  He said

   6   that.  This isn't a military goal.  He didn't strike at a

   7   military target.  Yes, he killed a marine.  He killed Nathan

   8   Aliganga, who was going in to cash a check to go shopping.  He

   9   killed Ken Hobson, who was in the Army.

  10            He didn't kill them on a battlefield.  Al-'Owhali is

  11   too much of a coward.  He attacked them with a huge bomb in

  12   the middle of the day, without warning, in downtown Nairobi,

  13   where civilians -- men, women and children -- were.  This is

  14   not a military operation, as he would say, it's murder.  It's

  15   a crime and he's responsible.

  16            In the end, the penalty phase is about Al-'Owhali,

  17   about his actions, about the defendant and about his bomb --

  18   what that bomb did to flesh and bone and what that bomb did to

  19   the lives of the survivors.  They have to keep going.  They

  20   have to keep going even if they are maimed by that bombing and

  21   even if they lost a loved one.  Whatever mitigation he has

  22   proven has little weight.

  23            This is the rare case of a death penalty.  Here,

  24   beyond any reasonable doubt, the aggravating factors outweigh

  25   the mitigating factors, overwhelmingly outweigh and justify a


   1   sentence of death.

   2            Think for a moment of the morning of August 7th,

   3   1998, the moment before the bombing, when Howard Kavaler said

   4   good-bye to his wife for the last time, when Surendra Patel

   5   was riding on his school bus after his last day of school,

   6   when Teresia Rungu walked into her office in the co-op

   7   building, when Ruth and Peter Rungu went to the Ufundi House

   8   so she could register for her first day of secretarial school

   9   and when Nathan Aliganga ran into the embassy to cash his

  10   check, where Fahat Sheikh was a cashier on duty that day.

  11            Freeze that moment and the lives of all those people,

  12   and then there's a noise, a noise, a popping sound.  That's

  13   probably the last sound those 213 people will hear.  It's the

  14   sound of this defendant's grenades going off and it's the

  15   first sign that something is wrong.

  16            And people come to the windows at the embassy, at the

  17   Ufundi House, at the bank and the buses, and the bomb goes

  18   off.  And the bomb brings death and blindness and paralysis,

  19   and in that violent moment, the lives of 213 people end.

  20   Al-'Owhali ended their lives without warning, without giving

  21   them time to say good-bye to their loved ones, without giving

  22   them time, like he had time, like he made his good-bye video.

  23   He didn't give them that same time.  They never got a chance

  24   to say their last good-bye.

  25            You heard from a small number of relatives of those


   1   killed in the bombing, 20 witnesses about one day.  Twenty

   2   witnesses.  And for each one of those witnesses you heard

   3   from, there are ten more behind them that you didn't -- ten

   4   more victims that were killed, ten more families.

   5            Now that you have heard those victims, those

   6   representative victims, you have heard the pain in their

   7   voices, now you should see, really see the list of names, the

   8   names and, where there is one available, a photo.  Three

   9   seconds.  Three seconds for each one.  Some you will

  10   recognize.

  11            Mary Khahenzi told you about her identifying her

  12   husband, Thomas, from the t-shirt; Doreen Ruto's husband,

  13   Wilson, and she said he was a handsome man, a courageous man;

  14   Joyce Ng'ang'a's passport photo; Amos Karimi's wife, who was

  15   killed in the Ufundi Building.

  16            But the photo and a name is all you are going to know

  17   for some.  Three seconds.  Three seconds to capture those

  18   lives, to honor those victims.  And when you see those

  19   photographs and when you see those names, think about the

  20   families behind those names and those photos, the lives, the

  21   children, the parents.  And they were killed only because they

  22   were near this defendant's bomb when it went off on August

  23   7th.  Think of the lives lost when the defendant killed each

  24   and every one of them.

  25            (The name and/or photograph of each victim is


   1   displayed on the monitor)

   2            MR. GARCIA:  Those are Al-'Owhali's victims, and he

   3   didn't know a single thing about any one of them.  He didn't

   4   know a single thing about the 213 people that he murdered.

   5            On that day, on August 7th, 1998, Al-'Owhali ran

   6   away.  He escaped with cuts on his back, and now it's time,

   7   it's time for him to face justice.  He must now be sentenced,

   8   as justice cries out he be sentenced, a punishment he deserves

   9   for the pain he has inflicted and for the suffering by those

  10   whose lives have been scarred by his murderous act.

  11            The crime, Al-'Owhali's crime, is mass murder, murder

  12   of 213 individuals with families, with lives, with hopes, with

  13   dreams, and the penalty, the penalty that does justice for the

  14   victims of those crimes, the only penalty that fits those

  15   crimes is the death penalty.

  16            Thank you.

  17            THE COURT:  We'll take a very brief recess.

  18            (Jury not present)

  19            MR. BAUGH:  Your Honor, before you bring the jury

  20   back, however, Mr. Cohn has -- when we come back, Mr. Cohn has

  21   some motions.

  22            MR. COHN:  I just have some things I want to preserve

  23   for the record.

  24            THE COURT:  Go ahead.

  25            MR. COHN:  I would just like the government to give


   1   us a list at some time of the photos and exhibits that they

   2   showed so we can preserve that for the appellate record.  And

   3   if this was on a disk, the pictures of the victims, we would

   4   like a copy of the disk.

   5            THE COURT:  Yes.

   6            MR. COHN:  I just want to make sure that the record

   7   is clear later on as to what was shown.

   8            THE COURT:  Mr. Garcia is nodding his head.

   9            MR. GARCIA:  Yes, Judge, we will.

  10            MR. COHN:  Thank you.

  11            (Recess)

  12            (Jury present)

  13            MR. COHN:  Your Honor, just for the record, the

  14   government has already given us Exhibit 2002-2, which is, with

  15   one substitution, the pictures of all the victims that were on

  16   the screen.  So that part has been satisfied, the record

  17   should reflect.

  18            THE COURT:  Mr. Baugh, I will leave it to you when

  19   you get past 1:30 when you want to break for lunch.  I am

  20   assuming you will be finished before.

  21            MR. BAUGH:  I would rather start after lunch so that

  22   my opponent doesn't have a --

  23            THE COURT:  Have a what?  A surprise?  Is there a

  24   single surprise in this case?

  25            MR. COHN:  Your Honor, I hope that question was


   1   rhetorical.  Otherwise, there's a long answer for it.

   2            (Jury present)

   3            THE COURT:  Mr. Baugh.

   4            MR. BAUGH:  Thank you, your Honor.

   5            May it please the Court, counsel.

   6            This is a really scary case.  It's really scary

   7   because its implications go beyond any case I have ever done

   8   in my life.  Twelve of you, who will determine what happens in

   9   the next few days, are literally going to make a statement, an

  10   individual statement, to the entire world.

  11            In all probability, your decision will be in the

  12   headlines of every newspaper in the world.  To a certain

  13   extent, I guess you should feel lucky that you had this thrust

  14   upon you, but I assure you, from the seriousness I have seen

  15   and we have seen for the last few days, I know you appreciate

  16   the seriousness of what's going on here.

  17            Also, to a certain extent it's kind of scary.  It's

  18   also scary, because, one, as I got into this case and as the

  19   evidence developed, I realized how ignorant I was about an

  20   entire portion of the world, and to divorce what has happened

  21   in this case from what goes on in that portion of the world is

  22   hypocrisy.

  23            You have heard fatwahs.  I know you have had them

  24   read to you.  We have introduced some again.  In every one of

  25   those fatwahs, from every organization, there is a list of


   1   things about which the Middle Eastern population, Middle

   2   Eastern people, Bin Laden, specifically, is opposed.  They

   3   mention Qana, you have heard that enough times, Shattila, they

   4   mentioned Libya.  I know in the defendant's statement he

   5   mentioned Libya.  They mentioned Iraq.  They mention the

   6   occupation of the land of the two shrines.  They mention the

   7   United States control of oil and oil prices and puppet

   8   governments.  It's throughout all of those statements.  And

   9   that is the canvas upon which this is painted and you have to

  10   look at it.

  11            Also, you have to look at it because, unlike every

  12   death case I have ever done before, most death cases, a person

  13   is motivated to commit the crime for passion, greed, crazy,

  14   somebody is in love with somebody, somebody is making money,

  15   something like that.  This is the first crime I have ever been

  16   involved in where the purpose given is to stop killing.

  17   Killing to stop killing.  It's just a living example that

  18   killing always makes more killing.  It always does, and you

  19   can't get around it.

  20            Why did we choose Iraq versus Libya or Chechnya or

  21   anything else?  Iraq, I tell you, is the one that you can find

  22   the most information on.  When you go in the U.N. websites,

  23   you go to UNICEF, you can find evidence.  You can't get over

  24   there to investigate, so therefore you are dependent upon what

  25   information you can get.  So, we chose that one.


   1            I will concede by your verdict that the defendant

   2   voluntarily chose to do that which he did.  He voluntarily

   3   gave up his life in Saudi Arabia and went to Afghanistan to

   4   fight that government as a member of the mujahadeen.  He

   5   risked his life to defend his religion and his community and

   6   to fight the influences in Afghanistan.

   7            While he was there, he obviously met people who

   8   impressed him.  He listened.  He had been reading since he

   9   was -- at a young age -- we stipulated to that -- writings and

  10   books and listening to tapes about conservative fundamental

  11   Muslim teachings.  The sacrifice of martyrs, dying in Jihad,

  12   the attainment of paradise, and -- you ready for this?

  13   According to Mr. Al-Fadl, there are hundreds, even thousands

  14   like him.  He is one of thousands.  He is one of thousands of

  15   young men, and sometimes women, who are so offended by what

  16   they perceive is happening in that part of the world that they

  17   are willing to kill themselves.

  18            Now, again, as I did during my opening, when we

  19   mention Iraq, it is not offered as a justification.  And I

  20   don't want anyone to think for a moment that that evidence

  21   means that what happened in Kenya on August the 7th, 1998 was

  22   excusable.  And it wasn't.  Every one of those people who died

  23   in Kenya, as I said during my opening, died as an innocent.

  24   They died as an innocent because, no matter what personal

  25   traits or attributes they might have had, they did not die


   1   because of them.  They did nothing personally that led to

   2   their deaths.

   3            However, I do want you to understand, and I want you

   4   to appreciate, that there is a lot of sorrow over there and

   5   there are a lot of deaths, and how anyone can stand up here

   6   and look at the suffering of these people, that these victims,

   7   realizing the suffering they are going to go through from this

   8   day forward, and not appreciate the children we are killing is

   9   a hypocrite.

  10            It doesn't make sense to pour any more blood on all

  11   that which has already been spilled, and that's what I'm

  12   trying to show.  When I talk about these victims, I want you

  13   to know, and believe me, how anyone cannot understand their

  14   pain, how anyone who's ever raised a child, anyone whoever

  15   loved a spouse, anyone whoever missed a loved one cannot

  16   appreciate what they are going through, they're a very shallow

  17   person.  It hurts, and it will hurt in the future.

  18            One thing you should learn from this case, from

  19   listening to argument of counsel, Madeleine Albright on

  20   television, everybody has a good, logical reason why they

  21   should be allowed to kill people.  Everybody always has a good

  22   reason why they, why when they kill people, it's not bad.

  23   Everybody does.  Oh, no, you killed one of us.  We can kill

  24   one of you.  You killed ten of us.  We can kill a hundred of

  25   you.  You killed eight of us.  We can kill 200 of you.


   1   Everybody has always got a good reason to kill, but it only

   2   makes more killing, period.

   3            In fact, each of you individually today is going to

   4   be asked to kill.  That's right, to kill.  Now, I will tell

   5   you this.  You will debate it amongst yourselves, as you have

   6   with every other issue.  You will discuss it.  I pray you will

   7   show respect for each other, because my client is entitled to

   8   12 individual jurors debating his life, not six real strong

   9   ones and overpowering six real quiet ones, not one real big

  10   muscle-bound person who makes everybody else do what they want

  11   to do, each person in this box.  No place else in the world is

  12   there more equality than this box.

  13            And the reason it is, is that unless each one of you

  14   vote to kill, individually, it can't happen.  The judge can't

  15   make it happen.  These gentlemen can't make it happen.  No one

  16   can.  In fact, if 11 of you -- well, only you can do that.

  17            We've not been able to offer you any direct evidence

  18   about the defendant's life.  However, you do understand some

  19   things.  One, he's deeply religious, and that is a given.

  20   Now, there are people in his own religion who disagree with

  21   his interpretation of his religion.  Well, there are people in

  22   my religion who disagree with my interpretation of my

  23   religion.  That's not a big thing.

  24            You know he's concerned with his nation.  You know

  25   he's concerned with the plight of his community.  You know


   1   that because of when he was 14, he was reading this.  When

   2   he's 18, he's on his way to Afghanistan to fight and get shot

   3   at.

   4            You know that his motive for killing doesn't involve

   5   greed or amorous or any of those things.  Perhaps the

   6   attainment of paradise, but there's no lust for blood.  In

   7   fact, when the government says, well, after he was caught he

   8   said he didn't want to kill the Kenyans.  No, we know when

   9   this plan was hatched, he suggested the bomb be placed

  10   differently.

  11            And also, remember that when he threw the grenades,

  12   not one lab person came in and said they found fragmentation

  13   parts from the grenades.  There are two different types of

  14   grenades.  There are grenades with fragmentation that blows

  15   out and kills people, and then there are things that are just

  16   explosives that make noise.  That's what he had.

  17            Also, it's strange in a death case because of this:

  18   If I am able to convince you to think about those issues and

  19   help you to vote not to kill, not to make the individual

  20   decision to kill, my client will spend the rest of his life in

  21   prison.  He's going to miss things that he doesn't even know

  22   he's going to miss.

  23            I know that and you know that because he's 25, and I

  24   used to be, he's not going to smell that new baby.  He's not

  25   going to be there to see his children walk, just like those


   1   victims are not going to be able to see it.  Everything that

   2   makes life worth living will be gone.  There will be no

   3   difference from day-to-day.

   4            When you get a chance, do the math.  Do 60 years

   5   times 365 and realize how many sunrises and sunsets it is.

   6   And that's if I'm able to convince you not to kill him.

   7            I'm not going to use Power Point.  I'm not going to

   8   show you any pictures of any dead children.  I'm not going to

   9   show you any videotapes.  And I know you got tired of

  10   videotapes, but believe me, those videotapes saved you weeks

  11   of extremely boring lectures by some very boring people and I

  12   think it's important that you do understand the background of

  13   the case.

  14            For instance, for the government to stand up and say

  15   that one of the reasons for Mr. al-'Owhali to die is that he's

  16   been trained in terrorist techniques, remember the last tape

  17   when you saw people like Stansfield Turner talking about how

  18   did Bin Laden's people get terrorist training; we taught them.

  19   We sent CIA people there to teach them, and then they in turn

  20   taught others.  The reason he knows those tactics is because

  21   we opened the bottle and gave them to them.  So, yes, he knows

  22   it.  He knows as much as probably the people in the CIA do

  23   because they were his teachers.

  24            Another reason I'm not going to show you any pictures

  25   is, on a situation like this, it's very easy to get involved


   1   in emotion and I'm making a conscious effort not to.  When you

   2   talk about victims and you talk about children, even as old

   3   and grizzled and experienced as I am, you do sometimes kind of

   4   mist up, you do want to cry.  But understanding the sorrow of

   5   the victims does not mean that that emotion that you have is

   6   license to make your decision based on emotion, and I don't

   7   plan to ask you to base a decision on emotion.

   8            One of the advantages you have in this case is that,

   9   as I told you in opening, there are very few factual

  10   disagreements on the aggravators and the mitigators, the

  11   gateways.  For instance, as Mr. Garcia pointed out, the

  12   gateway that the defendant intentionally killed the victim or

  13   victims of the particular capital offense charged in the

  14   respective count of the indictment.  Well, by finding him

  15   guilty, you've sort of proven that.  You sort of found that

  16   and there's nothing I can say about it.

  17            That the defendant intentionally inflicted serious

  18   bodily injury that resulted in the death of the victim or

  19   victims of particular capital charges or offense charged in

  20   the respective count of the indictment.

  21            Number three, that the defendant intentionally

  22   participated in an act contemplating the life of a person

  23   would be taken or intending that lethal force would be used in

  24   connection with a person other than one of the participants in

  25   the offense, and the victim or victims of the particular


   1   capital offense charged in the respective count of the

   2   indictment died as a direct result.

   3            And four, that the defendant intentionally and

   4   specifically engaged in an act of violence, knowing that the

   5   act created a grave risk of death to a person other than one

   6   of the participants in the offense, and it reads on.

   7            By finding the defendant guilty of these charges, you

   8   found that he did those, and I don't even plan to try to tell

   9   you that didn't happen.  However, in weighing the impact of

  10   this, and you're going to have to -- once you decide this

  11   exists, you are going to have to go to the next step.

  12            The next step, and I'll come back, are the

  13   aggravators.  Now, first are the statutory aggravators.  First

  14   one:  That the deaths and injuries resulting in death occurred

  15   during the commission or attempted commission of another

  16   offense.  And they're spelled out.

  17            Two, that the defendant, in the commission of the

  18   offense, knowingly created a grave risk of death to one or

  19   more persons in addition to his victims.

  20            Three, that the defendant committed the offense after

  21   substantial planning and premeditation; and, four, the

  22   defendant intentionally killed or attempted to kill more than

  23   one person in a single episode.

  24            Now, according to Mr. Garcia, these factors determine

  25   whether or not this case is a rare exception and qualifies for


   1   that narrow range of cases that are so egregious and so evil

   2   that death -- that citizens should be asked to kill someone,

   3   12 ordinary citizens.

   4            Once, if you find that these aggravators did occur,

   5   you must weigh them, and the only thing I will say on weighing

   6   is this:  In understanding this offense and understanding the

   7   background of it, and that's why we put on that evidence,

   8   "that the deaths and injuries resulting in death occurred

   9   during the commission and attempted commission of another

  10   offense," the death of many of those children in Iraq occurred

  11   during the commission of violations of the Geneva Convention.

  12   So if it's that important, why haven't these people indicted?

  13            That the defendant in the commission of the offense

  14   knowingly created a grave risk of death to one or more

  15   persons:  Somewhere in this world there is a man in the

  16   military in the basement of the Pentagon who wrote a memo in

  17   1991 stating that if we do what I suggest we do, we can start

  18   epidemics in a country.  That later turned out to kill over a

  19   million people out of a population of 22 million.  That's

  20   about five percent of every man, woman and child in that

  21   nation.  Somewhere there's a man sitting in a room who came up

  22   with this plan.

  23            The defendant committed the offense after substantial

  24   planning and premeditation:  That same man started a plan

  25   that's lasted ten years.


   1            The defendant intentionally killed or attempted to

   2   kill more than one person:  Anytime you sit down and talk

   3   about epidemics starting, to say nothing of the fact --

   4   remember this.  We've also embargoed insulin, medicine.

   5   Mr. Clark talked about, during the Gulf War, watching an

   6   11-year-old have her leg amputated without benefit of

   7   anesthesia because we had embargoed the anesthesia back in

   8   August of 1990.  And our tax dollars knew this was going on

   9   and our press didn't tell us about it.

  10            Now, I don't believe that justifies what happened,

  11   but does it make it a little more understandable?  Imagine

  12   having to look at a loved one die over the course because of

  13   diabetes or cancer because you can't have medicine.  And by

  14   the way, affording medicine.  Among the documents we filed was

  15   a document that says Iraq.  It's from the Central Command.  It

  16   talks about the effect on the economy of that country so

  17   people can't buy medicine.

  18            In 1990, the rate of exchange was one dinar equals

  19   $3, which means that -- say you are getting ready to retire,

  20   like Dr. Dalizu.  He testified he lost his wife.  They were

  21   going to buy a piece of property in California.  If you had

  22   been good and you saved up a million dinars, that's worth 3

  23   million U.S. dollars.  That's a nice little nest egg.

  24            THE COURT:  No.  Did you say, I think you transposed.

  25   If you save -- say it again.


   1            MR. BAUGH:  One million dinars is worth $3 million in

   2   1990.  That's the rate of exchange.

   3            THE COURT:  It's the other way around.

   4            MR. BAUGH:  No, it's not.  I did that, too.  Trust

   5   me.  But you can check my math.  If I had better math grades,

   6   I would have been a doctor instead of a lawyer.  But they can

   7   check.  1 dinar equals $3.  That means if you had a million

   8   dinars, you had $3 million tucked away.  The rate of exchange

   9   now, according to that document, is 150 dinars to the dollar;

  10   which meant that if you had a million dinars tucked away, it's

  11   now worth a little more than 650 bucks.  That's how you

  12   destroy an economy.

  13            When weighing these aggravators, weigh them in

  14   relation to the world that exists in this offense and

  15   determine whether or not these actions in this case require

  16   you to make a personal decision to kill someone, because when

  17   you put Juror No. 1 or Juror No. 2 on that form, it's going to

  18   be like firing the bullet.  Because if one signature doesn't

  19   go on there, there's no death penalty.

  20            By the way, I also want to tell you this.  If --

  21   well, I'll come back to that point.  Forgive me.

  22            Then, after we go through the statutory aggravators,

  23   we go to the non-statutory aggravators:  The defendant poses a

  24   continuing and serious threat to the lives and safety of

  25   others with whom he shall come in contact.


   1            This young man has been in prison since August of

   2   1998.  Did anybody come in here and say that he yelled at a

   3   guard?  Did anyone -- I mean, you have seen him sit here in

   4   court all this time next to his lawyers.  Does anyone look

   5   scared to be in his presence?  He's small.

   6            As demonstrated by the deceased victims' personal

   7   characteristics as individual human beings and the impact of

   8   the deaths upon the deceased victims' families, the defendant

   9   caused injury, harm and loss.  I will concede that one.  He

  10   has and there's nothing we can do.  And if I could, I would.

  11            The victims and intended victims included

  12   high-ranking public officials of the United States serving

  13   abroad:  Yep.

  14            So I concede all of these except future

  15   dangerousness.  So you don't even have to decide the rest of

  16   them really.  You have to vote on them.  You have to debate

  17   them.  Just because I said it doesn't make it true.

  18            However, again, if you're going to think about -- I

  19   mean, no offense, it is the epitome of bigotry to come in here

  20   and say that the suffering of Americans or the suffering of

  21   American allies is any different from the suffering of someone

  22   we don't like.

  23            A mother who loses her child anywhere has the --

  24   remember Mr. Clark talking about walking through a ward and

  25   hearing a mother's wail because the child just died?  You saw


   1   the pictures in the 60 Minutes tape.  We're going to get off

   2   of that.  You heard Mr. Clark talk about the amputation.

   3   Imagine if you are a parent what the parent of that child is

   4   going through while their daughter was being held down and her

   5   limb, her leg, was being amputated.  That is suffering.  That

   6   is suffering, just like these people.

   7            And it's all wrong.  It's not comparative.  It's all

   8   wrong.  It is all wrong.  When you see these victims and you

   9   understand what they are going through, you must understand

  10   what all victims are going through, and what is happening to

  11   them shouldn't happen and what is happening to the others

  12   shouldn't happen.  We must stop it.

  13            The aggravators, as I said, must be proven beyond a

  14   reasonable doubt.  Now, in determining whether or not the

  15   defendant should die, whether or not you should kill him, as

  16   far as the aggravators, you are limited to the statutory and

  17   non-statutory aggravators that are alleged in the

  18   instructions.

  19            You can't sit back and say, well, boy, Mr. Garcia

  20   should have said this one.  I mean, we ought to think -- you

  21   can't do that.  That's cheating.  You are limited to those

  22   which are -- if he didn't say what's going to happen in the

  23   Middle East by this verdict or anything, you can't consider it

  24   in determining aggravators, in determining beyond a reasonable

  25   doubt whether or not the aggravators exist.


   1            However, in determining mitigators, where the burden

   2   is only by a preponderance -- more likely true than not -- you

   3   are permitted under the law that if you think there are

   4   reasons why he should not be executed that I didn't bring up,

   5   you can bring them up, even if it's only one of you who does

   6   it.  All right?

   7            Now, so any issue you feel is appropriate -- and

   8   again, he has 12 jurors.  If just one of you thinks this is a

   9   factor, you should bring it up so we can know if it was

  10   considered.

  11            You will notice, by the way, when I say that, no one

  12   has introduced you, but you know that everyone in this

  13   courtroom has been trained to do what they do except you

  14   all -- I'm sorry, except you.  I mean, we all went to law

  15   school.  The judge went to law school.  He's a judge.  The

  16   court reporter is writing down just about every word I say.

  17   The bailiffs, the clerks, the deputies, they're all trained in

  18   this.

  19            You will notice, however, that when you go back in

  20   that room to deliberate, none of them go with you.  Nobody

  21   knows what you do back there.  We all assume that ordinary

  22   citizens will follow the law and do what is required to do.

  23   And that's not that amazing, because the idea of democracy is

  24   the idea that ordinary people are capable of extraordinary

  25   acts.


   1            You could go back there and arm wrestle or pitch

   2   pennies and we wouldn't know, and we assume that you're not.

   3   And I say that so that you understand -- I think you do, but I

   4   want you to really appreciate some day how different it is to

   5   live in this country and how powerful a citizen is supposed to

   6   be and how there's nothing wrong with assuming that a citizen

   7   is more powerful than the government, because we are.

   8            Now, once you have determined the aggravators and the

   9   mitigators and you have determined that the aggravators exist

  10   beyond a reasonable doubt, unanimously, you have decided which

  11   mitigators exist by a preponderance -- and it doesn't have to

  12   be unanimously, now, first -- you then have to decide whether

  13   or not the aggravators outweigh the mitigators.  Yes.

  14            Now, that means are you convinced that when you look

  15   at these aggravators and you look at these mitigators, are you

  16   convinced that this case is so unique and that these

  17   aggravators are so strong that they're outweighed, they

  18   outweigh their mitigators.  If you say no, if you say I don't

  19   think the government has alleged everything they should, I

  20   think based on the facts we have in this case the impact of

  21   these aggravators has been lessened, if you find that, it

  22   stops.  If you find that the aggravators do not outweigh the

  23   mitigators, it stops.

  24            Then, however, if you do, then you find that death is

  25   available and then you have to determine whether or not death


   1   is the appropriate sentence -- whether death is the

   2   appropriate sentence.  That's the law.  That's what the judge

   3   will tell you.

   4            The question is, appropriate to what?  And no one

   5   tells you that.  Appropriate to what?  Appropriate to the

   6   magnitude of the suffering that has been sustained by these

   7   victims?  No suffering you can do to the defendant would do

   8   that.  It couldn't happen.  You have victims who are suffering

   9   a loss the defendant never even knew existed because he hadn't

  10   even lived through that yet.  So that can't be it.

  11            Appropriate to what?  Appropriate to the best

  12   interests of society and to the world at large?  I would

  13   submit, yes.

  14            Back up for a second.  The government says that one

  15   of reasons you should kill the defendant is that he has a lack

  16   of remorse.  If you think you are doing what's right or you

  17   think you're doing what's necessary, even if you're wrong, you

  18   don't have a lack of remorse.  And I would also hesitate to

  19   show you this, going back, when Madeleine Albright was on that

  20   tape on 60 Minutes and she sat there and said, we know; in

  21   response to the death of 500,000 children:  We know.  We think

  22   the price is worth it.  Does she think she was right?  Yes.

  23   Does she show remorse for the death of one-half million

  24   children?  No.

  25            And Mr. Clark said what's going on over there is


   1   freely discussed every day.  Not just in the Arab world, but

   2   in Europe.  People talk about the impact of these sanctions.

   3   Do you see remorse?  And the answer is no.  Is he correct not

   4   to be remorseful?  Maybe not.  And perhaps in the next 50 or

   5   60 days he will come to understand what he did.

   6            But based on the numbers that you have heard from the

   7   tapes and from Mr. Clark, 250 children are dying every day.

   8   That's one child every ten minutes since 1991, and that

   9   doesn't include the old people and the diabetics and the

  10   people with terminal illnesses.  Since yesterday, when I saw

  11   you last, 250 children have died.  Now, how long should he

  12   wait before he tries to do something?  I don't know.

  13   Appropriate to what?

  14            I would suggest that you consider this in your

  15   deliberations:  By using my verdict to kill, if I decide I

  16   want to sign that paper, if I want to have this young man put

  17   to death, if I wish to become a killer -- and by the way,

  18   that's what it is.  People say you're not being a killer,

  19   you're executing.  That's different.

  20            What's the difference between killing and executing?

  21   Well, "executing" means it's approved by the government.  It's

  22   state-sanctioned.  That makes it okay.  Well, I will tell you

  23   that if state sanctions makes killing okay, I want you to know

  24   that the Holocaust was state-sanctioned.

  25            So killing, because the state says it's okay, is


   1   still killing.  But if you wish to use your verdict to take

   2   another life, what is your verdict accomplishing?  That

   3   determines whether or not it's appropriate, what is your

   4   verdict going to accomplish?

   5            Now, you can't consider factors that are not alleged

   6   in the list of aggravators, statutory or non-statutory, by the

   7   government, and they haven't listed any.  What are you going

   8   to pull off by becoming killers?  What kind of message are we

   9   going to send in?

  10            And that's the question, because asking to kill

  11   somebody when there is no message, or just because you're

  12   angry or just because you want these people to feel better --

  13   and by the way, when someone has hurt you badly, when someone

  14   has hurt you, you feel that if you can hurt them back, you

  15   will feel better.  But when you get gray hair like I have, you

  16   know that's not true.  You think your pain turns into anger,

  17   your anger turns into hate, and you realize if I can hurt the

  18   person I hate, my sorrow will go away.  And it won't.  And it

  19   won't.

  20            And by the way, another victim, another victim that

  21   no one talks about that Mr. al-'Owhali generated are all those

  22   people who look at what he did and now hate; people who say,

  23   look what Mohamed Al-'Owhali did.  I hate them.  The last tape

  24   you saw, that little child holding the AK-47,

  25   rat-tat-tat-tat-tat, rat-tat-tat-tat-tat, is he learning hate?


   1   We're making people hate more with this killing.

   2            Now, I'm fortunate in this case.  I'm fortunate and

   3   Mr. Cohn and my co-counsel, we're fortunate, because we get to

   4   come in here and argue for life.  We get to argue for peace.

   5   We get to argue for reconciliation.  No one else does.  If you

   6   vote to kill, the judge has to sign the order, period.  He has

   7   to.  So he will sign a death order.  The only people who can

   8   walk out of here without killing anybody is counsel.  Well,

   9   you could if you vote the wrong way -- if you vote the way I

  10   think you should.

  11            I can tell you that by arguing against violence, by

  12   arguing against killing, because I'm opposed to it, I'm

  13   opposed to it in this case, I'm opposed to it always, anybody

  14   can kill.

  15            THE COURT:  Personal views of counsel are irrelevant.

  16            MR. BAUGH:  You're right.

  17            Anybody can kill.  It's easy.  It's amazingly easy

  18   sometimes.  Sometimes it's harder to live with it afterwards,

  19   but not all the time.  Anybody can kill.

  20            What is appropriate?  Is it appropriate that we make

  21   another martyr?  Please notice, I'm not going through all

  22   these mitigators, because I think you will concede that the

  23   majority of them, I mean, he did learn this stuff at a young

  24   age.  And he was told by Bin Laden that, you know, those

  25   places are spy shops, and you did see the model and you saw


   1   the photographs of the embassy and you saw antennas on top of

   2   it.  And so if you thought it was a spy shop, you're getting

   3   evidence that it is, so both mitigators are there, no problem.

   4   I'm not talking about those, though.  I'm assuming you have

   5   already found that.

   6            What is the appropriate sentence?  Remember that when

   7   I sit down, by the way, Mr. Fitzgerald gets the last word.  He

   8   does.  I don't get to say anything in rebuttal to it.  But

   9   what is most appropriate?  Now, of course we could say, well,

  10   it's appropriate to the victims that they get justice.  What

  11   is the difference between justice and revenge?  I'm serious.

  12   When you go back there ask that question, because they can't

  13   be the same thing.  What is the difference between justice and

  14   revenge, because that's the decision you are going to have to

  15   make because each of you is going to have to decide whether or

  16   not to kill somebody.

  17            So we make another martyr.  But I will tell you this,

  18   that if you believe that death is the appropriate sentence, if

  19   you are convinced of that, putting emotion aside, if you are

  20   convinced of that, then you have sworn an oath to consider

  21   death.  You haven't said you will give it, because you can

  22   refuse to give death no matter what, but you have said you

  23   will consider it.

  24            But if you have a reasonable doubt as to the

  25   appropriateness of death, if you have a only doubt, remember


   1   that, if you are not convinced beyond a reasonable doubt that

   2   death is what must happen in this case, you cannot vote for

   3   death without violating your oath.

   4            I hope that each of you here appreciate the

   5   opportunity you have been given.  I can't overly emphasize

   6   that.  In determining what is appropriate, whenever your

   7   verdict comes back, there could be headlines that

   8   Mr. al-'Owhali got the death penalty.  And there also could be

   9   headlines that Americans returned a life sentence.  And I

  10   would trust -- and if you have a question about it, I would

  11   suggest you add it in your mitigators -- that if that were

  12   your verdict, it would be a prayer for peace.

  13            Too many people have died.  Now, can I guarantee or

  14   can anyone guarantee that it will have any impact on stopping

  15   this killing?  Probably not.  But can it hurt?  Could it

  16   possibly change one mind that thinks that America is

  17   indifferent to the suffering of those people?  Yes.  Could it

  18   make the mother of that child in the video with the AK-47 say:

  19   Look at this, son.  The Americans didn't kill.  It might

  20   change.

  21            When you have to make difficult decisions, sometimes

  22   you have to divorce yourself from the emotion, the anger, the

  23   passion.  And some people say, well, you can't do that, but

  24   yes, you can.  There are people who do.  There are people who

  25   make decisions based on the facts and upon the law every day.


   1            I know that sometimes if you don't know what to do,

   2   one of the good reasons about having heroes is if you don't

   3   know what to do, you think about what your hero would do.  Oh,

   4   there are lots of heroes.  I mean, there's Martin Luther King.

   5   I think he was a hero.  I think Gandhi was a hero.  I think

   6   Jesus was a hero.  I do.  I think the Pope -- I'm not even

   7   Catholic.  I think the Pope is a hero.

   8            I think "Pee Wee" Reese is a hero.  "Pee Wee" Reese

   9   was a man, a Southerner, who said that he wanted Jackie

  10   Robinson on his team.  That's bold.  He stood up against his

  11   friends and said this is right.  That's a hero.  A hero is

  12   somebody who goes against their friends to do what's right.

  13   That's a hero.

  14            And you say, what would your hero do?  Are heroes

  15   capable of feeling the sorrow and suffering of the victims?

  16   Yes, they are.  But what would your hero do?  If you did not

  17   have the weakness that all of us have of sorrow, anger,

  18   hatred, if you were one of those people, what would your hero

  19   do?  Seriously, in this situation, what would your hero do in

  20   this situation, making the decision you have to make as

  21   individuals?

  22            It's going to be hard for you to make the decision,

  23   and it should be, because just as you have the benefit of

  24   being citizens and just as you have the presumption of being

  25   able to fulfill those obligations as a citizen, you also have


   1   a duty; and the duty is to make hard decisions.  And as a

   2   citizen, that's a sacrifice we must all make.

   3            When you go back there, if you -- now, I don't want

   4   you to think that I am appealing to your sense of sympathy or

   5   I'm trying -- and I'm not.  I am not, because I don't think I

   6   can take the situation in Iraq and overcome this.  And beside

   7   that, it would be wrong.  You know, I'm not going to show you

   8   any more pictures.  None.

   9            I want you to base this decision, I want you to

  10   contemplate the decision with seriousness.  Anytime there's a

  11   death case, it's serious, but this case is probably more

  12   serious.  In fact, to a certain extent -- and I may pay for

  13   this statement one day -- in many ways the verdict in this

  14   case is more important than my client.  The ramifications go

  15   way beyond him and way beyond this courthouse.  Literally, you

  16   have the power to speak to the world, and you're not even

  17   elected.  You don't have to worry about getting reelected.

  18            It may be hard.  It will be hard.  We know that.  I

  19   think you can do it.  Why do I think you can do it?  Because

  20   I'm getting old.  We've all been doing this a long time.

  21   Jurors are remarkable people.  You ask any lawyer, any lawyer,

  22   criminal lawyer, they will tell you jurors are remarkable.

  23            We know that you were back there deliberating.  We

  24   sat out here waiting for your every word.  We knew that you

  25   would come out of that room.  You all looked whipped.  You all


   1   did.  I assume you weren't back there running; you were

   2   working back there in a very orderly and logical manner.  And

   3   believe me, it is a appreciated.  No one in this case thinks

   4   for a moment that you are running slipshod over anyone's

   5   rights.  You have always, everything we have seen -- and I'm

   6   not just talking for the defense now.  I mean, even the

   7   prosecution has commented.  And that's wonderful.  It means

   8   the system works.

   9            It feels funny to argue to give my client a sentence

  10   of life in a room until he dies, and that's what we're asking

  11   for -- not on emotion, but on good logic.  What is

  12   appropriate, appropriate to what?  Appropriate to what?  And

  13   what's the answer?  I don't know.  I've given you some

  14   suggestions, but you have to come up with it.

  15            Give me just one second.

  16            (Pause)

  17            MR. BAUGH:  To a certain extent, I envy you, your

  18   role.  To a certain extent, I pity you.  But I have every

  19   confidence, and I'm sure everyone else in this courtroom does

  20   as well, that when you go back there to deliberate, each of

  21   you, individually, will give these issues the consideration

  22   they deserve.  And no matter what your verdict is, everyone

  23   will know that you really worked at it, and you should take

  24   pride in that.  Other than that, I can think of no better

  25   group of people to make this decision.


   1            Thank you.

   2            THE COURT:  Thank you, Mr. Baugh.

   3            We'll break for lunch.  Remember you have not heard

   4   the government's rebuttal and the Court's charge, so please

   5   refrain from discussing the case.

   6            (Jury not present)

   7            THE COURT:  We'll have the revised charge and the

   8   special verdict form on your table when you return.  There is

   9   only one item as to which an objection was raised, and I said

  10   we would deal with it when we had the text in front of us.

  11            MR. BAUGH:  Yes, your Honor, the issue was the --

  12            Oh, you know what it is.  Okay.

  13            THE COURT:  You will find it on page 26.  The way it

  14   will read is -- and you will have it before you, but things

  15   are moving a little faster than I anticipated.  I don't object

  16   to that.  It says:  "The law contemplates that different

  17   factors may be given different weights or values by different

  18   jurors.  Thus, you may find that one mitigating factor

  19   outweighs all aggravating factors combined, or that the

  20   aggravating factors proved do not, standing alone, justify

  21   imposition of a sentence of death beyond a reasonable doubt.

  22   Similarly, you may instead find that a single aggravating

  23   factor sufficiently outweighs, beyond a reasonable doubt, all

  24   mitigating factors combined so as to justify a sentence of

  25   death."


   1            MR. GARCIA:  No objection, Judge.

   2            MR. BAUGH:  That's fine.

   3            THE COURT:  You have another issue?

   4            MR. FITZGERALD:  Yes, your Honor.  I just wanted to

   5   note on the record the government's objection to some of the

   6   things that were said during Mr. Baugh's summation.

   7            Even though we inquired last week whether or not

   8   Mr. Baugh would do any personal vouching, he vouched for

   9   certain things, including his own view of the death penalty.

  10   He repeatedly asked the jurors or called the jurors, in

  11   essence, killers if they voted for the death penalty.

  12            I think he played games with your Honor's ruling

  13   yesterday that the Jones decision would be respected and the

  14   jurors would not be told that if one juror voted the other

  15   way, what would happen.  And in addition, he blatantly talked

  16   about safety of the courtroom after it was agreed that we

  17   would not prove up the incident in the courtroom.

  18            He didn't try to argue that he's been engaged in good

  19   conduct since he was arrested, and yet he stood up in front of

  20   jury and argued, where is the proof that he ever engaged in

  21   bad conduct, and at the same time he turned around and said,

  22   "Is anyone in the courtroom afraid of this man?" when we all

  23   know it's been hidden from the jury; he's been chained to the

  24   table.  And I still would not say people were not afraid of

  25   him.  I think that was blatantly improper.


   1            MR. BAUGH:  Your Honor, I have sat next to this man,

   2   and I have my associate sitting next to him, and there has

   3   never, ever been anything and there's not a problem.  That's

   4   what I'm talking about.

   5            THE COURT:  You know what?

   6            MR. BAUGH:  Yes, your Honor.

   7            THE COURT:  Officer Pepe probably could make the same

   8   comment about Mr. Salim.

   9            Now, just one moment.

  10            MR. BAUGH:  I'm not making any comment about officer

  11   Pepe.

  12            THE COURT:  Just one moment.

  13            With respect to counsel's stating his personal views

  14   on the death penalty, I did --

  15            MR. BAUGH:  I apologize.  When I said I'm opposed to

  16   violence, I --

  17            THE COURT:  No, that's not what you said.  You said

  18   you oppose the death penalty.  It was improper and you made

  19   the comment.

  20            With respect to your comments about the defendant's

  21   good conduct in the proceedings and in the courtroom, in fact,

  22   the defendant is shackled.  In fact, we spent hours and hours

  23   making clear what the consequence of any misconduct would be.

  24            MR. BAUGH:  Yes, your Honor.

  25            THE COURT:  And the government's objection is, I


   1   think, well-taken.  Being well-taken, however, I don't believe

   2   that any worthwhile purpose would be served by any further

   3   statement to the jury.

   4            Is the government seeking some further statement by

   5   the Court?

   6            MR. FITZGERALD:  Not from the Court.

   7            MR. BAUGH:  Your Honor, there is one --

   8            THE COURT:  Meaning what?

   9            MR. FITZGERALD:  I think it is appropriate for the

  10   government to say "you have no evidence whatsoever either way

  11   what people think of whether or not he's dangerous."  He has

  12   vouched that the marshals in this courtroom do not think he is

  13   dangerous, misleading the jury.  I'm not going to comment,

  14   obviously, on the --

  15            MR. BAUGH:  I would like the record to be read back.

  16            THE COURT:  You want the record read back?  That's

  17   easy enough.

  18            (Record read)

  19            MR. FITZGERALD:  Obviously the defendant is someone

  20   who, in a prior proceeding, interfered with a marshal in the

  21   jury box when Mr. El Hage ran across the courtroom on an

  22   occasion and so the fact is that he is shackled to the table.

  23            THE COURT:  Well, you know what I could do is I could

  24   strike those remarks, but I don't know that that really --

  25            MR. FITZGERALD:  Your Honor, I think the fair


   1   response is for the government to point out "and you have

   2   heard no testimony about what people think about whether he's

   3   dangerous or not and weigh that with --

   4            THE COURT:  What does that mean, "what people think

   5   about" --

   6            MR. FITZGERALD:  He said no one in the courtroom is

   7   afraid of his safety.  He argued that to the jury.  There is

   8   no evidence one way or the other.

   9            THE COURT:  I don't think that's clear.  I don't

  10   think the thrust of that is --

  11            MR. FITZGERALD:  Judge, we have a situation where

  12   someone asked us to refrain from offering the courtroom

  13   incident.  We haven't put in, obviously, the shackles.  Then

  14   he takes advantage of that to argue to the jury that

  15   Mr. al-'Owhali has behaved well in court, when he knows that

  16   to be wrong, and we withheld proof on that basis.

  17            He knows that he's shackled to the table.  He now

  18   wants to make the argument to the jury, leaves them with the

  19   impression that he has been a good, model defendant in the

  20   courtroom, and then simply have it withdrawn.

  21            I think that the appropriate measure is for the

  22   government to argue to the jury, to the extent that anyone

  23   would want you to believe that no one is afraid of him and

  24   he's had good conduct, that he could have called someone on

  25   the preponderance of the evidence standard.  They didn't.


   1   They just disregarded that.

   2            THE COURT:  You see, you get into problems of casting

   3   a burden on the defendant.  I think it was an improper

   4   comment.  I think it was an improper comment.  I think it was

   5   in violation of the understandings that previously existed.

   6            I'm going to instruct the jury that those remarks are

   7   stricken and that they are to disregard them.

   8            MR. BAUGH:  Your Honor, then we have this one last

   9   issue:  The Officer Pepe statement you just made.

  10            THE COURT:  Yes.

  11            MR. BAUGH:  It is obvious that the Officer Pepe

  12   incident is still a problem in relation to this defendant,

  13   and --

  14            THE COURT:  No.  Let me make that statement clear.

  15   What you were saying was you have been sitting next to your

  16   client and that you have no fear of your client because he has

  17   not in any way indicated any animosity toward you.  You are

  18   not afraid that, if he had an opportunity, he would not seize

  19   you and use you as a hostage to achieve some other object.

  20   Fine.  But what I'm just saying is that, at the same time, you

  21   have made arguments to the Court that, or arguments have been

  22   made to the Court that Officer Pepe suffered his grievous

  23   injuries because he was too lax and he didn't handcuff the

  24   inmate and so on.

  25            MR. BAUGH:  Excuse me, your Honor.  I cannot sit here


   1   and allow you to put false statements in my mouth.  I have

   2   never said that.

   3            THE COURT:  I certainly don't do that intentionally.

   4            MR. BAUGH:  Thank you.  Well, you did.

   5            THE COURT:  Yes.

   6            MR. BAUGH:  We filed a Brady request asking what

   7   those circumstances were and you denied it.  I have never said

   8   that, because the broad brush you paint this young man with

   9   because he's Arab, and the people who attacked Officer Pepe

  10   were, is improper.

  11            THE COURT:  Now, Mr. Baugh?

  12            MR. BAUGH:  Yes, sir.

  13            THE COURT:  Do not accuse me of being a racist,

  14   because there is no justification for that, and for you to say

  15   that I reach any conclusion because a defendant is an Arab is

  16   unspeakable.

  17            MR. BAUGH:  Your Honor, to me, it is not unspeakable

  18   and I don't mind saying it.  If it offended you, well --

  19            However, we are concerned about it.  And with that

  20   Officer Pepe statement you just made, it just came up again,

  21   and that is my concern.  And I would ask the Court to try

  22   everything it can to view this as Mr. al-'Owhali and base your

  23   determinations of on what he is entitled to on what he is

  24   doing in here.

  25            THE COURT:  When the jury returns at 2:15, I will


   1   strike the comments made with respect to the defendant's

   2   demeanor in the courtroom and incarceration.

   3            We're adjourned until 2:15.

   4            (Luncheon recess)























   1                 A F T E R N O O N    S E S S I O N

   2                             2:15 p.m.

   3            (In open court; jury present)

   4            THE COURT:  Good afternoon.  We're now at the stage

   5   in the proceeding where the government is permitted to make a

   6   rebuttal argument.  Mr. Fitzgerald.

   7            MR. FITZGERALD:  Thank you, Judge.

   8            THE COURT:  Before he does that, ladies and

   9   gentlemen, during the closing arguments made on behalf of the

  10   defendant Al-'Owahli reference was made with respect to the

  11   subject of future dangerousness to his behavior while he was

  12   in custody and in the courtroom, and those remarks are

  13   stricken from the record.

  14            MR. FITZGERALD:  Thank you, Judge.

  15            Good afternoon.  In dealing with the most serious

  16   question you could imagine, the question of the appropriate

  17   punishment, I suggest to you that Mr. Baugh took three tacks

  18   this afternoon or this morning with you.  First, he tried to

  19   distract you from the real issue.  Second, he tried to blame

  20   other people for the situation that Al-'Owahli has put

  21   everyone in, and, third, I submit he was inviting you not to

  22   follow your sworn oath to follow the law and vote for or

  23   against the death penalty if the circumstances justify it.

  24            Let's talk about the distraction.  The main

  25   distraction Mr. Baugh pointed to was Iraq, and what is


   1   happening in Iraq with the embargo and the food for oil

   2   program and the sanctions.  Let us talk about what that issue

   3   is and what it is not.

   4            What it is is a serious issue that ought to be

   5   addressed in the appropriate forum, in the United Nations in

   6   the congresses, in the legislatures of countries they should

   7   bring forward the people with those points of view to explain

   8   why they think there should be no embargo or why some of the

   9   embargo should be lifted.  They should bring forward those

  10   other people with a different point of view who are worried

  11   about the countervailing interests, the poison gases,

  12   biological weapons, chemical weapons, nuclear weapons, what

  13   we've done to the Kurds and Iraq and treat the issue

  14   seriously.  No one is taking that lightly.  But that issue has

  15   nothing to do with the issue of what is the just punishment

  16   for the crime that Al-'Owahli committed on August 7th, 1998.

  17            In fact, if you recall al-'Owhali's statement he

  18   mentioned nothing about the embargo, nothing about the food

  19   for oil program.

  20            The other distraction is to talk about someone who

  21   wrote a report about water treatment and predicted what the

  22   consequences would be if things did not change.  The report

  23   does not advocate destroying water treatment plants.  It talks

  24   about what will happen if nothing is done.  Distract by

  25   focusing on Madeline Albright brief question and answer and


   1   accuse her of genocide.  Blame the CIA for the fighting in

   2   Afghanistan.  No showing Al-'Owahli was ever trained by anyone

   3   from the CIA.  Al-'Owahli went a decade later to Afghanistan

   4   for training.  No showing that the CIA trained people how to

   5   blow up embassies.

   6            What I submit to you, America's actions are not on

   7   trial here.  We are on trial here because this man committed a

   8   crime.  This man made a cold blooded calculated decision to

   9   kill 213 people and felt no remorse about it.  And when you're

  10   in a courtroom and you realize that the law says that some

  11   murders are so horrible, some crimes are so evil that the

  12   death penalty is justified, when you look and you compare this

  13   person convicted of murder to all of those other murderers,

  14   that David Baugh told you about, who do it for greed or

  15   something like that, and you recognize that the thought that

  16   comes to mind is if there is a law that says that some crimes

  17   deserve a death penalty, if not this case, then when?  And

  18   when you realize that you seek to distract.

  19            Think about this.  In trying to numb all of us to the

  20   pain that al-'Owahli caused, Al-'Owahli can't point to another

  21   human being committing a crime.  He has to assert war crimes

  22   by nations, war crimes on such a scale that he alleges nations

  23   carried them out in order to have a comparison to the awful

  24   things he did, mass slaughter.

  25            Mr. Baugh talked to you about hypocrisy.  Hypocrisy


   1   is handing up a copy of the Geneva Convention on behalf of a

   2   defendant who committed genocide by truck.  What I submit to

   3   you is you learned something about Iraq.  Keep that with you,

   4   but Iraq does not have to do with this defendant's motivation.

   5   What we have to focus on is the circumstance of this crime.

   6            Other distractions, bring up the opposite.  Bring up

   7   Martin Luther King and Pee Wee Reese, hide behind them.  Well,

   8   what do you your heroes do?  You're asked to think what your

   9   heroes would do in the jury room.  Your heroes, he or she

  10   would stand up at the beginning of the trial, during jury

  11   selection and say, can I follow my oath?  Can I vote for or

  12   against the death penalty as appropriate?  And the hero would

  13   say, if I can, I'll tell the Judge yes, and I'll follow

  14   through.  And that's what we ask you to do, follow your oath.

  15            You've been told here that Al-'Owahli is a youth.

  16   Well, he had a free will, he had a choice, he made a decision,

  17   he sought out a mission, he made sure that in his role he got

  18   to do a violent mission and kill people.  He didn't want to

  19   wash cars or clean the tables at a training camp.  He traveled

  20   internationally to carry out that mission.  He saw what was

  21   going to happen and carried out the bombing.

  22            You've heard he used a stun grenade.  There is no

  23   fragmentation.  I submit to you the stun grenade was to get

  24   the guard away to get it closer to the embassy, closer to the

  25   building.  If he wanted to scare away Kenyans why not yell out


   1   bomb, run for your life, bomb.  The only person's life that he

   2   sought to protect when he ran was his.

   3            Mr. Baugh told you that everybody has a good reason

   4   to kill.  The only person's reasons to kill who is on trial

   5   here is Mr. Al-'Owahli.  He had no good reason.  He had no

   6   reason to put Teresia Rungu in a wheelchair he.  Had no reason

   7   to blind Ellen Bomer.  He had no reason to kill Julian Bartley

   8   or his son or some of the other people.  And that's what this

   9   trial is about.

  10            Remember one thing when you focus on justice in this

  11   case.  The one thing that's clear, this defendant is clearly

  12   guilty.  The evidence was overwhelming, he admitted it.  You

  13   are looking at a person who is so guilty, and what Mr. Baugh

  14   tells you is, well, if he's sent for life imprisonment think

  15   about it, sixty years times 365 days.  And I submit to you

  16   think 60 years times 365 days times three eight hour shifts

  17   for all the guards who have to guard him for those 60 years,

  18   for all the guards who are going to have to guard someone who

  19   hates America so much he kills with no remorse, for all the

  20   guards who will be viewed from his eyes as the enemy, for all

  21   the guards he thinks should die.  Sixty times 365 times 24,

  22   times 3.  You have to get through all those shifts to make

  23   sure that an innocent man, a guard, does not die.

  24            You heard reference to the fact that he wished to be

  25   a martyr.  Now I think for a moment, well, if he wanted to be


   1   a martyr although he ran away, you give him what he wants or

   2   what he doesn't want.  Let me make a suggestion.  Give him no

   3   vote.  He killed 213 people.  You do justice for the crime he

   4   committed, and for the victims he killed, so mercilessly.

   5            And also remember something; we talk about the word

   6   revenge.  Mr. Baugh would like you to think that a sentence of

   7   death is revenge and let's stop the killing.  Revenge is when

   8   you kill someone else for something that someone around them

   9   did.  Retribution is legitimate.  213 people had their lives

  10   snuffed out.  All their family lives around them were ruined.

  11   The four thousand injured, included maimed, blinded, crippled

  12   people who have to deal with life.  Their lives are ruined.

  13            There are two 213 people who never lived another day

  14   after that bombing.  Mr. Al'-Owahli being sentenced to death

  15   he'll be given a sentence no worse than a sentence he imposed

  16   on 213 people without any sense of due process, without any

  17   right, without any decency.

  18            You've been told that if you vote for death you want

  19   to be a killer, and I submit to you by saying that no one

  20   wants to be a killer.  No one is asked to be a killer.  We are

  21   sitting here in a system of law that says some crimes are so

  22   horrible, some murders are so egregious, sometimes the cause

  23   is so great, the person should face the death penalty and you

  24   agreed to fairly weigh that, and if you fairly weigh that in

  25   this case with this crime committed, I submit to you that the


   1   only punishment that does justice for the victims is the death

   2   penalty.  The person who is responsible for Al-'Owahli's death

   3   is Al-'Owahli.  He knew what he was doing.  He had a free

   4   choice, and he went ahead and did it, and don't let anyone put

   5   that weight on you.

   6            When you look at the mitigating factors and you see

   7   discussion of other persons more culpable or equally culpable

   8   not facing death, think about the persons who have no

   9   culpability, Nathan Algana, buried beneath the rubble and they

  10   all face death and they had no choice.  Mr. Baugh said to you

  11   you have to think at the end as to what is appropriate, and

  12   then he said, appropriate as to what?  I submit to you your

  13   verdict should be appropriate as to the law, as to justice,

  14   and to your oath, an oath you gave and you can vote for or

  15   against the death penalty.

  16            Let's be frank.  It's not easy to ask you to vote for

  17   the death penalty.  It's not easy to vote for the death

  18   penalty.  No one claims it is.  It's extremely hard.  It

  19   should be hard.  Thank God it's hard.  But sometimes in life

  20   the hard things are what you have to do.  Sometimes the hard

  21   things are difficult, but the answer is clear.  I submit to

  22   you when you go in the jury room bring in a sense of

  23   Al-'Owahli, bring in a sense of the prison guards, and bring

  24   in a sense of the victims, and when you look at al-'Owahli

  25   recognize that he's the one who put himself here.  He had a


   1   free mind, he had a free will, he had a choice.  He made that

   2   choice.  He killed.  He must be held accountable.

   3            Think about the prison guards who will have to guard

   4   him for those 60 times 365 times eight, times three, and don't

   5   tell them he's small.  Don't tell Ellen Bomer he's small.

   6   Don't tell Howard Kavaler's children he's small, because if he

   7   proved anything in this case, he proved that small people

   8   kill.

   9            Think about the victims.  We submit to you the single

  10   most important factor in this case are those victims.  What

  11   they went through, their pain, their loss, and their

  12   suffering.  We won't show you any pictures, videotapes.  You

  13   know what they said.  You know what they said and you saw the

  14   pain, and Mrs. Bartley who lost a husband and a son.  The

  15   pride, the carriage of Teresia Rungu to wheel herself in here

  16   with so much dignity after what was done to her.  For the

  17   people, the hundred bodies, people who died beneath the

  18   rubble, from Mordecai Thomas Onuno who carries around that

  19   anniversary card, because that's all that he has left to hold

  20   on to.  For Clara Aliganga who has nothing to hold on to, no

  21   Nathan, because Al-'Owahli decided to steal all these people

  22   from their loved ones to kill them brutally.

  23            I submit to you when you look at the law, the law

  24   that says certain crimes are evil enough to deserve the death

  25   penalty, if ever there is a crime, it's this one, the brutal


   1   murder of 213 people.

   2            I ask you to follow your oath.  I ask you to remember

   3   that the only justice that can be done for the victims of this

   4   case, the only sentence that fits the horrible crime is a

   5   sentence of death.  It's not easy to say that.  It's not easy

   6   to vote for it, but I submit you must.

   7            Thank you.

   8            THE COURT:  Thank you, Mr. Fitzgerald.  We'll take a

   9   very brief recess.

  10            (Recess)

  11            (Continued on next page)
















   1            (Jury not present)

   2            THE COURT:  Mr. Cohn.

   3            MR. COHN:  Your Honor, I wish to object to certain

   4   portions of the government's rebuttal which I believe was not

   5   responsive to the argument of Mr. Baugh, which I realize is

   6   somewhat generalized, but most particular I am concerned with

   7   his notion the jury should punish the crime instead of

   8   Mr. Al-'Owahli.  He said, this is a crime that cries out for

   9   punishment essentially.  I mean I'm paraphrasing in essence

  10   the last few minutes.  That's not the test.

  11            The test is whether or not this person has committed

  12   crime with all the aggravators and mitigators, if the

  13   aggravates substantially outweigh the mitigators it is

  14   deserving of the death penalty.  I don't suggest he should

  15   have said this that way, that is somewhat dry, but for him

  16   just to invoke the crime itself which is naturally horrendous

  17   and the mere commission of does not warrant the death penalty

  18   substantially misstates the law, and essentially it is a cry

  19   for legalism, and I object to it and ask the Court for a

  20   curative instruction.

  21            THE COURT:  What would you suggest by way of curative

  22   instruction?

  23            MR. COHN:  Well, I don't know, your Honor.  I always

  24   from time to time I'm not always sure the cure isn't worse

  25   than the disease.


   1            THE COURT:  I think the argument was a fair argument,

   2   that the salient factor in the jury's consideration was the

   3   magnitude of the impact on the victims and I think that was --

   4            MR. COHN:  And although I disagree and reserve for

   5   another forum the amount of the impact that could have been

   6   impressed on the jury that's not my argument.  I made it to

   7   you.  My argument here is he said this is a crime, if no other

   8   crime calls out for this penalty, this is the one, and I think

   9   that that ignores and calls for the jury to ignore a whole

  10   host of other factors which this Court has been very careful

  11   to impress on them in the charge that you are about to

  12   deliver.

  13            And I think quite frankly, your Honor, the respect

  14   they have for Mr. Fitzgerald and his work in this case

  15   obfuscates the issue and needs some redress.  What it is I

  16   can't say I'm smart enough to say in ten seconds, but if you

  17   give me a few seconds I'll think about it, if you're inclined

  18   to do something.  If you're not inclined to do something, then

  19   I shouldn't waste what little gray power I have left.

  20            THE COURT:  Mr. Fitzgerald.

  21            MR. FITZGERALD:  The arguments made by Mr. Baugh

  22   about world events, in any event, I think we're about to give

  23   the jury the explanation of the law.  I did not misstate the

  24   law.  In fact, I think I hewed to it quite closely, certainly

  25   by comparison.


   1            THE COURT:  I don't think any action by the Court is

   2   appropriate.

   3            (Continued on next page)
























   1            (Jury present)

   2            THE COURT:  Ladies and gentlemen, you will find on

   3   your seats a few documents.  Two documents are the Court's

   4   instructions to you with respect to the law to be applied at

   5   this phase of the case, and the special verdict form that you

   6   are to complete.  The envelope contains a certificate that

   7   you're each to sign with your own name and then seal, and I'll

   8   talk about that later.

   9            Again, as was the case with the guilt phase, I have

  10   given you a written copy of my remarks and I will deliver them

  11   orally, and it is for you to decide whether you wish to read

  12   along or just listen, or read along for a while and then just

  13   listen.  It is whatever you feel most comfortable.

  14            Members of the jury, it is now my duty to instruct

  15   you as to the law applicable to the sentencing phase of this

  16   case.  As I mentioned to you in my preliminary remarks, the

  17   sole question presently before you is whether Mohammed Rashed

  18   Daoud Al-'Owahli should be sentenced for his capital offenses

  19   to either (1) the death penalty or (2) life imprisonment

  20   without the possibility of release.

  21            The selection between these two very serious choices

  22   is yours and yours alone to make.  If you determine as to a

  23   particular count that Mr. Al-'Owahli should be sentenced to

  24   death, or instead to life imprisonment without the possibility

  25   of release, the Court is required to impose whichever sentence


   1   you choose as to that count.  There is no parole in the

   2   federal system.

   3            Remember that you have previously found

   4   Mr. Al-'Owahli guilty of the following capital counts in the

   5   indictment, all of which -- and I interrupt to say you should

   6   have with you in the jury room copies of the indictment,

   7   copies of the charge with respect to the guilt phase.

   8            You have previously found Mr. Al-'Owahli guilty of

   9   the following capital counts in the indictment all of which

  10   arise out of the August 7, 1998 bombing of the United States

  11   Embassy in Nairobi Kenya:

  12            Counts 5, 7, 9 through 221, 233 through 273, 278 and

  13   279.  Even though there are a total of 258 capital counts at

  14   issue here, you must still approach the sentencing decision

  15   before you separately as to each count and, of course, with an

  16   open mind.  I cannot stress to you enough the importance of

  17   your giving careful and thorough consideration to all the

  18   evidence.  And regardless of any opinion you may have as to

  19   what the law may be, or should be, it would be a violation of

  20   your oaths as jurors to base your sentencing decision upon any

  21   view of the law other than that which is given to you in these

  22   instructions.

  23            Some of the legal principles that you must apply to

  24   your sentencing decision duplicate those you followed in

  25   reaching your verdict as to guilt or innocence.  Others are


   1   different.  The instructions I am giving you now are a

   2   complete set of instructions on the law applicable to the

   3   sentencing decision.  I have prepared them to ensure that you

   4   are clear in your duties at this important stage of the case.

   5   I have also prepared, as before, a special verdict form that

   6   you must complete.  The form, by detailing the special

   7   findings you must make, will aid you in properly performing

   8   your deliberative duties.

   9            Now, although Congress has left it wholly to you, the

  10   jury, to decide Mr. Al-'Owhali's proper punishment, it has

  11   narrowed and channeled your discretion in specific ways,

  12   particularly by making you consider and weigh any aggravating

  13   and mitigating factors present in this case.

  14            As I explained previously, these factors have to do

  15   with the circumstances of the crime, or the personal traits,

  16   character, or background of Mr. Al-'Owahli, or anything else

  17   relevant to the sentencing decision.  Aggravating factors are

  18   those that would tend to support imposition of the death

  19   penalty.  By contrast, mitigating factors are those that

  20   suggest that life in prison without the possibility of release

  21   is an appropriate sentence in this case.

  22            Of course, your task is not simply to decide what

  23   aggravating and mitigating factors exist here, if any.

  24   Rather, you are called upon to evaluate any such factors and

  25   to make a unique, individualized choice between the death


   1   penalty and life in prison without the possibility of release.

   2            In short, the law does not assume that every

   3   defendant found guilty of committing murder should be

   4   sentenced to death.  Nor does the law presume that

   5   Mr. Al-'Owahli, in particular, should be sentenced to death.

   6   Rather, your decision on the question of punishment is a

   7   uniquely personal judgment which the law, in the final

   8   analysis, leaves up to each of you.

   9            As to the burden of proof.  The government, at all

  10   times and as to all of the capital counts, has the burden of

  11   proving beyond a reasonable doubt that the appropriate

  12   sentence for Mr. Al-'Owahli is in fact the death penalty.

  13   Specifically, that means that the government must prove as to

  14   each capital count all of the following beyond a reasonable

  15   doubt:

  16            (1).  The existence of at least one gateway

  17   factor,(2); the existence of at least one statutory

  18   aggravating factor; (3) the existence, if any, of nonstatutory

  19   aggravating factors, and (4), that all the aggravating factors

  20   found to exist sufficiently outweigh all the mitigating

  21   factors found to exist as to make a sentence of death

  22   appropriate, or, in the absence of any mitigating factor, that

  23   the aggravating factors found to exist alone make a sentence

  24   of death appropriate.

  25            A reasonable doubt is a doubt based upon reason and


   1   common sense after careful and impartial consideration of all

   2   the evidence.

   3            Proof beyond a reasonable doubt must be proof of such

   4   a convincing character that a reasonable person would rely and

   5   act upon it without hesitation in the most important matters

   6   of his or her own affairs.  Yet proof beyond a reasonable

   7   doubt does not mean proof beyond all possible doubt.

   8            A defendant never has the burden of disproving the

   9   existence of anything which the government must prove beyond a

  10   reasonable doubt.  The burden is wholly upon the government,

  11   the law does not at all require Mr. Al-'Owahli to produce

  12   evidence that a particular aggravating factor does not exist

  13   or that death is not an appropriate sentence.

  14            As such, Mr. Al-'Owahli is not required to assert or

  15   establish any mitigating factors, however, if one or more

  16   mitigating factors are asserted, it is Mr. Al-'Owhali's burden

  17   to establish any mitigating factors by a preponderance of the

  18   evidence.

  19            To prove something by a preponderance of the evidence

  20   is to prove it by a lesser standard of proof than proof beyond

  21   a reasonable doubt.  To prove something by a preponderance of

  22   the evidence is to prove that it is more likely true than not

  23   true.  It is determined by considering all of the evidence and

  24   deciding what of the evidence is more believable.  If,

  25   however, the evidence is equally balanced, you cannot find


   1   that the mitigating factor has been proved.

   2            The preponderance of the evidence is not determined

   3   by the greater number of witnesses or exhibits presented by

   4   the government or the defendant.  Rather, it is the quality

   5   and persuasiveness of the information which controls.

   6            In making all the determinations you are required to

   7   make in this phase of the trial, you may consider any evidence

   8   that was presented during the guilt phase as well as

   9   information that was presented at this sentencing phase.

  10            You may thus consider the testimony, exhibits and

  11   stipulations offered by both sides during the guilt phase; the

  12   parties were not required to re-offer that evidence.  However,

  13   you may not consider any evidence from the guilt phase that

  14   was received solely against someone other than Mr. Al-'Owahli.

  15            In deciding what the facts are, you may have to

  16   decide what testimony you believe and what testimony you do

  17   not believe.  You may believe all of what a witness said, or

  18   part of it or none of it.  In deciding what testimony of any

  19   witness to believe, consider the witness' intelligence, the

  20   opportunity the witness had to see or hear the things

  21   testified about, the witness' memory, any motives that witness

  22   may have for testifying a certain way, the manner of the

  23   witness while testifying, whether that witness said something

  24   different at an earlier time, the general reasonableness of

  25   the testimony, and the extent to which the testimony is


   1   consistent with other evidence that you believe.

   2            Also, recall that for our purposes here the terms

   3   "evidence" and "information" have the same meaning.

   4            Mr. Al-'Owahli did not testify in this case.  There

   5   is, however, no burden upon Mr. Al-'Owahli to prove that he

   6   should not be sentenced to death.  Instead, the burden is

   7   entirely on the prosecution to prove, beyond a reasonable

   8   doubt, that a sentence of death is in fact justified.

   9   Accordingly, that Mr. Al-'Owahli did not testify must not be

  10   considered by you in any way, or even discussed, in arriving

  11   at your sentencing decision.

  12            You must deliberate and determine the appropriate

  13   sentence for each of the capital counts separately.  Although

  14   I will be discussing the capital counts as a group, your

  15   findings regarding gateway factors, aggravating factors, and

  16   all other issues pertaining to these counts must treat each of

  17   these counts separately.

  18            It is possible that even though all of the counts are

  19   connected with the bombing of the Nairobi embassy, you may

  20   find differences which would justify different sentencing on

  21   different counts.

  22            The instructions I am about to give you, as well as

  23   the special verdict form you will be completing, will first

  24   address your findings, if any, regarding the four so-called

  25   gateway factors, and the statutory aggravating factors


   1   identified by the government with regard to each capital

   2   count.

   3            The instructions and the Special Verdict Form

   4   thereafter address your finding, if any, as to each capital

   5   count regarding the existence of nonstatutory aggravating

   6   factors and mitigating factors as well as the weighing of

   7   aggravating and mitigating factors.

   8            With respect to gateway factors.  Before you may

   9   consider the imposition of the death penalty for any capital

  10   count, you must first unanimously find, beyond a reasonable

  11   doubt, the existence as to that count of at least one of the

  12   four gateway factors identified by the government.  The

  13   gateway factors are as follows:

  14            1.  That the defendant intentionally killed the

  15   victim or victims of the particular capital offense charged in

  16   the respective count of the indictment, or.

  17            2.  That the defendant intentionally inflicted

  18   serious bodily injury that resulted in the death of the victim

  19   or victims of the particular capital offense charged in the

  20   respective count of the indictment, or.

  21            3.  That the defendant intentionally participated in

  22   an act, contemplating that the life of a person would be taken

  23   or intending that lethal force would be used in connection

  24   with a person, other than one of the participants in the

  25   offense, and the victim or victims of the particular capital


   1   offense charged in the respective count of the indictment died

   2   as a direct result of the act, or.

   3            4.  That the defendant intentionally and specifically

   4   engaged in an act of violence, knowing that the act created a

   5   grave risk of death to a person, other than one of the

   6   participants in the offense, such that participation in the

   7   act constituted a reckless disregard for human life and the

   8   victim or victims of the particular capital offense charged in

   9   the respective count of the indictment died as a direct result

  10   of the act.

  11            Your findings as to whether the government has proven

  12   the existence, beyond a reasonable doubt, of a particular

  13   factor from among these four gateway factors must be separate

  14   and unanimous as to each capital count.

  15            And with regard to your findings, you may not rely

  16   solely upon your first-stage verdict of guilt or your factual

  17   determinations therein.  Instead, you must now decide each

  18   issue for yourselves again.

  19            Any finding that a gateway factor has been proven as

  20   to a particular count must be based on Mr. Al-'Owhali's

  21   personal actions and intent.  Intent or knowledge may be

  22   proven like anything else.  You may consider any statements

  23   made and acts done by Mr. Al-'Owahli, and all the facts and

  24   circumstances in evidence which may aid in a determination of

  25   Mr. Al-'Owhali's knowledge or intent.  You may, but are not


   1   required to, infer that a person intends the natural and

   2   probable consequences of acts knowingly done or knowingly

   3   omitted.

   4            In the event that you unanimously find, beyond a

   5   reasonable doubt, that a particular gateway factor exists as

   6   to all the capital counts, you are to indicate that finding on

   7   the appropriate line in Section I, Part A of the Special

   8   Verdict Form.

   9            In the event that you unanimously find, beyond a

  10   reasonable doubt, that a particular gateway factor exists as

  11   to some but not all of the capital counts, you are to indicate

  12   that finding on the appropriate line in Section I, Part A of

  13   the Special Verdict Form, and also identify on the line

  14   provided, by count number, the specific capital counts as to

  15   which you find that gateway factor applies.

  16            If you do not unanimously find that a particular

  17   gateway factor has been proved beyond a reasonable doubt with

  18   respect to any of the capital counts you should mark the

  19   appropriate space in Section I, Part A.

  20            I instruct you that any gateway factor found by you

  21   to exist is not an aggravating factor and may not be weighed

  22   by you in deciding whether or not to impose a sentence of

  23   death.

  24            For any capital count, if you do not unanimously find

  25   that the government has proven beyond a reasonable doubt the


   1   existence as to that count of any of the four gateway factors,

   2   your deliberative task as to that capital count will be over

   3   and the Court will impose a mandatory sentence on that count

   4   of life imprisonment without possibility of release.

   5            Section I, Part B of the Special Verdict Form

   6   provides a space for you to indicate those counts, if any, for

   7   which you have not unanimously found that the government has

   8   proven beyond a reasonable doubt the existence of any gateway

   9   factor.

  10            Let's now turn to 1 of the Special Verdict Form.

  11            As used in this section the term "capital counts"

  12   refers to Counts Five, Seven, 9 through 221, 233 through 273,

  13   278, and 279.

  14            Please indicate which, if any, of the following

  15   gateway factors you unanimously find that the government has

  16   proven beyond a reasonable doubt.  For each of the four

  17   gateway factors listed in Part A below, you must mark one of

  18   the responses.  Then it lists.  Part A.  1.  That the

  19   defendant intentionally killed the victim or victims of the

  20   particular count that you are considering.

  21            The choices there are we unanimously find that this

  22   factor has been proved beyond a reasonable doubt with regard

  23   to all of the capital counts.

  24            If you so find you would indicate there.  Then it

  25   says:  We unanimously find that this factor has been proven


   1   beyond a reasonable doubt with regard to the following capital

   2   counts only.  In which case you would identify which of the

   3   capital counts that you see listed on the first two lines on

   4   that page as to which you have found the factor has been

   5   proven beyond a reasonable doubt.

   6            The third choice is:  We do not unanimously find that

   7   this factor has been proven beyond a reasonable doubt with

   8   regard to any of the capital counts.

   9            And then the form continues in that format with

  10   respect to the second, third, and fourth, and it tells you in

  11   Part B, after reviewing your finding in Section I, Part A,

  12   please identify by count number those capital counts, if any,

  13   for which you have not unanimously found that the government

  14   has proven beyond a reasonable doubt the existence of any

  15   gateway factor.

  16            We tell you at the bottom:  For each capital count if

  17   you did not unanimously find that the government has proven

  18   beyond a reasonable doubt at least one of the above gateway

  19   factors with respect to that count, then your deliberations

  20   are over as to that count.  That is to say, you are not to

  21   consider in Section II or thereafter on through Section VI any

  22   of the counts that are specified above in Section I, Part B.

  23   In other words, a gateway is a threshhold.  Unless that

  24   threshhold is crossed by you unanimously finding one gateway

  25   factor applying to that count, consideration with respect to


   1   that count is over.

   2            If there is no capital count for which you

   3   unanimously find the gateway factor has been proven beyond a

   4   reasonable doubt, skip forward to Section VI, and complete

   5   that Section in accordance with the directions there.  Then

   6   notify the Court you have completed your deliberations.  If

   7   you found at least one gateway factor with regard to one or

   8   more capital counts, continue on to Section II.

   9            We return to charge itself on page 10 and we deal

  10   with statutory aggravating factors.

  11            If and only if you unanimously find that the

  12   government has proven beyond a reasonable doubt that at least

  13   one of the four gateway factors exists as to a particular

  14   capital count, you must then proceed to determine whether the

  15   government has proven beyond a reasonable doubt the existence

  16   of any of the following four statutory aggravating factors

  17   with respect to that count.

  18            1.  The deaths, and injuries resulting in death,

  19   occurred during the commission or attempted commission of

  20   another offense, namely one of the following offenses listed

  21   under Title 18, United States Code, Section.  Then it lists

  22   them.

  23            2.  The defendant in the commission of the offense

  24   knowingly created a grave risk of death to one or more persons

  25   in addition to the victims of the offense.


   1            3.  The defendant committed the offense after

   2   substantial planning and premeditation to cause the death of

   3   one or more persons or to commit an act of terrorism.

   4            4.  The defendant intentionally killed or attempted

   5   to kill more than one person in a single episode.

   6            At this point the law directs you to consider and

   7   decide, separately as to each of the capital counts for which

   8   you have unanimously found the existence of at least one

   9   gateway factor, the existence or nonexistence of the statutory

  10   aggravating factors specifically claimed by the government.

  11            You are reminded that to find the existence of a

  12   statutory aggravating factor as to a particular count, your

  13   decision must be unanimous and beyond a reasonable doubt.  Any

  14   finding that one or more of these factors has been proven must

  15   be based on Mr. Al-'Owhali's personal actions and intent.

  16            In the event that you unanimously find beyond a

  17   reasonable doubt that a particular statutory aggravating

  18   factor exists as to all the capital counts for which you have

  19   found the existence of at least one gateway factor, you are to

  20   indicate that finding on the appropriate line in Section II,

  21   Part A of the Special Verdict Form.

  22            In the event that you unanimously find beyond a

  23   reasonable doubt that a particular statutory aggravating

  24   factor exists as to some but not all of the capital counts for

  25   which you have found the existence of at least one gateway


   1   factor, you are to indicate that finding on the appropriate

   2   line in Section II, Part A of the Special Verdict Form, and

   3   also identify on the line provided by count number, the

   4   particular counts as to which you find the statutory

   5   aggravating factor applies.

   6            If you do not unanimously find that a particular

   7   statutory aggravating factor has been proved beyond a

   8   reasonable doubt with respect to any of the capital counts you

   9   are considering you should mark the appropriate space in

  10   Section II, Part A of the Special Verdict Form.

  11            For any capital count for which you unanimously find

  12   the existence at least one gateway factor, if you do not also

  13   unanimously find as to that same count the existence of at

  14   least one statutory aggravating factor, then your deliberative

  15   task as to that count will be over and the Court will impose a

  16   mandatory sentence on that count of life imprisonment without

  17   the possibility of release.

  18            Section II, Part B of the Special Verdict Form

  19   provides a space for you to indicate those counts, if any, for

  20   which you have not unanimously found that the government has

  21   proven beyond a reasonable doubt the existence of any

  22   aggravating factor.

  23            Let me now instruct you in detail on the specific

  24   elements necessary for the government to prove each of those

  25   four statutory aggravating factors beyond a reasonable doubt.


   1            As to death or injury resulting in death, during the

   2   commission of another offense:

   3            The first statutory aggravating factor alleged by the

   4   government with regard to the various counts is that the

   5   deaths or injuries resulting in death of the victim or victims

   6   identified in a particular count occurred during the

   7   commission of a crime other than the crime charged in that

   8   particular count.  Thus, as to each count, you must determine

   9   if the victim or victims identified was killed during the

  10   commission of certain other crimes, as those other crimes are

  11   set forth in the Special Verdict Form.

  12            Depending on the particular count the other crimes

  13   alleged are one or more of the following offenses:  18 USC

  14   Section 844(f), bombing of property leased to the United

  15   States government; 18 USC, Section 1116, killing or attempted

  16   killing of internationally protected persons.  18 USC, Section

  17   2332, terrorist acts abroad against United States nationals,

  18   and 18 USC, Section 2332a the use of a weapon of mass

  19   destruction.

  20            In order to prove that the deaths or injuries

  21   resulting in death occurred during the commission of the

  22   separate offense of bombing of property leased to the United

  23   States government, in violation of 18 USC, Section 844(f), the

  24   government must prove beyond a reasonable doubt exactly that,

  25   the death or injury resulting in death of the victim or


   1   victims identified identification in the particular count

   2   occurred during the commission of a violation of 18 USC,

   3   Section 844(f).  You have previously found that Mr. Al-'Owahli

   4   violated 18 USC 844(f) as reflected in your guilty verdict on

   5   Count 5.  Accordingly, solely as to Count 5, you may not

   6   consider the commission of the violation of 18 USC Section,

   7   844(f) as "another crime."

   8            In order to prove that the deaths or injuries

   9   resulting in death occurred during the commission of separate

  10   offenses of killing or attempted killing of internationally

  11   protected persons, in violation of 18 USC, Section 1116, the

  12   government must prove beyond a reasonable doubt exactly that,

  13   that the death or injury resulting in death of one or more of

  14   the victims of the Nairobi bombing occurred during the

  15   commission of a violation of 18 USC, Section 1116.  You have

  16   previously found that Mr. Al-'Owahli violated 18 USC, Section

  17   116 as reflected in your guilty verdicts on Counts 278, 279,

  18   and 280.  When you consider Counts 278 and 279, you may not

  19   consider the commission of the violation of 18 USC, Section

  20   116 as "another crime."

  21            In order to prove that the death or injuries

  22   resulting in death occurred during the commission of the

  23   separate offense of terrorist acts abroad against United

  24   States nationals in violation of 18 USC, Section 2332, the

  25   government must prove beyond a reasonable doubt exactly that,


   1   that the death or injury resulting in death of one or more of

   2   the victims of the Nairobi bombing occurred during the

   3   commission of a violation of 18 USC, Section 2332.

   4            You have previously found that Mr. Al-'Owahli

   5   violated 18 USC, Section 2332, as reflected in your guilty

   6   verdict on Count 1.

   7            In order to prove that the deaths or injuries

   8   resulting in death occurred during the commission of the

   9   separate offense of use of a weapon of mass destruction

  10   against United States nationals in violation of 18 USC, 2332a,

  11   the government must prove beyond a reasonable doubt exactly

  12   that the death or injury resulted in death of one or more of

  13   the victims of the Nairobi bombing occurred during the

  14   commission or a violation of 18 USC, Section 2332a.

  15            You have previously found that Mr. Al-'Owahli

  16   violated 18 USC, Section 2332aas reflected in your guilty

  17   verdict on Count 7.  Accordingly, solely as to Count 7, you

  18   may not consider the commission of the violation of 18 US v.

  19   2332a as another crime.

  20            For each of the capital counts you are considering,

  21   in order to find that the government has satisfied its burden

  22   of proving beyond a reasonable doubt that the deaths or

  23   injuries resulting in death of the victims of the Nairobi

  24   bombing occurred during the commission of one or more of these

  25   other offenses, you must unanimously agree on which other


   1   offenses were committed by Mr. Al-'Owahli.  Your finding as to

   2   this statutory aggravating factor must be indicated in the

   3   appropriate space in Section II, Part A.1 of the Special

   4   Verdict Form.

   5            The Special Verdict Form, page 5 with respect to

   6   statutory aggravating factors spells this out again and

   7   reminded you as to which of the counts you may not consider

   8   particular crimes.

   9            After you've done that, it tells you in the

  10   directions on page 8, for each of the capital counts you are

  11   considering in this section if you do not unanimously find

  12   that the government has proven beyond a reasonable doubt that

  13   at least one of the above statutory aggravating factors with

  14   respect to that count, then your deliberations are over as to

  15   that capital count.

  16            In other words, you are not to consider in Section

  17   III or thereafter until Section VI, any of the counts you have

  18   specified in Section II, Part B.  If there is no capital count

  19   which you unanimously find that at least one statutory

  20   aggravating factor has been proven beyond a reasonable doubt

  21   skip forward to Section VI and complete that Section in

  22   accordance with the directions there.  Notify the Court you

  23   have completed your deliberations.

  24            If you found one or more statutory aggravating

  25   factors with regard to one or more capital counts continue on


   1   to Section III.

   2            In other words, deviating from there first the

   3   gateway and you must find to warrant further consideration

   4   with respect to a particular count that at least one gateway

   5   factor has been proven.  Then with respect to those counts as

   6   to which you find that one gateway factor has been proven you

   7   must also find one statutory aggravating factor has been

   8   proven.  If you have found both the gateway factor and the

   9   statutory factor as to that count, then you proceed.  If you

  10   have not found at least one gateway factor and at least one

  11   statutory aggravating factor then your deliberations with

  12   respect to that count are closed.

  13            (Continued on the next page)














   1            THE COURT:  (Continuing) Turning, then, to the second

   2   statutory aggravating factors -- I'm on page 14, if you are

   3   following me:

   4            The second statutory aggravating factor alleged by

   5   the government with regard to the capital counts is that, in

   6   the commission of the particular offenses, the defendant

   7   knowingly created a grave risk of death to one or more persons

   8   in addition to the deceased victim or victims identified in

   9   the particular capital count.

  10            To establish the existence of this factor, the

  11   government must prove beyond a reasonable doubt that

  12   Mr. al-'Owhali, in committing the offense described in the

  13   capital count you are considering, knowingly created a grave

  14   risk of death to one or more persons in addition to the

  15   deceased victim or victims identified in the particular count.

  16            "Knowingly" creating such a risk means that

  17   Mr. al-'Owhali was conscious and aware that his conduct in the

  18   course of committing the offense might have this result.

  19   Mr. al-'Owhali's conduct cannot merely have been the product

  20   of ignorance, mistake or accident.  Knowledge must be proved

  21   like anything else.  You may consider any statements made and

  22   acts done by Mr. al-'Owhali, and all the facts and

  23   circumstances in evidence which may aid you in the

  24   determination of Mr. al-'Owhali's knowledge.

  25            "Grave risk of death" means a significant and


   1   considerable possibility that another person might be killed.

   2   In order to find that the government has proven this factor

   3   beyond a reasonable doubt, you must unanimously agree on a

   4   particular person or a class of persons who were placed in

   5   danger by Mr. al-'Owhali's actions.

   6            "Persons in addition to the victims" include innocent

   7   bystanders in the zone of danger created by the defendant's

   8   acts, but do not include other participants in the offense.

   9            Your finding as to this statutory aggravating factor

  10   must be indicated in the appropriate space in Section II, Part

  11   A.2 of the Special Verdict Form.

  12            The third statutory aggravating factor alleged by the

  13   government with regard to the capital counts is that the

  14   defendant committed the offenses under the particular counts

  15   after substantial planning and premeditation to cause the

  16   death of a person or to commit an act of terrorism.

  17            "Planning" means mentally formulating a method for

  18   doing something or achieving some end.

  19            "Substantial planning and premeditation" means a

  20   considerable or significant amount of planning and

  21   premeditation.

  22            An "act of terrorism" is an act calculated to

  23   influence or affect the conduct of government by intimidation

  24   or coercion, or to retaliate against government conduct.

  25            I'm told I skipped premeditation, which I didn't


   1   premeditatively do that.

   2            "Premeditation" means thinking or deliberating about

   3   something and deciding whether to do it beforehand.

   4            To find that the government has satisfied its burden

   5   of proving beyond a reasonable doubt that Mr. al-'Owhali

   6   engaged in substantial planning and premeditation either to

   7   cause the death of a person or to commit an act of terrorism,

   8   you must unanimously agree on the particular object of the

   9   substantial planning and premeditation either to cause the

  10   death of a person, to commit an act of terrorism, or to do

  11   both.  Your finding as to this statutory aggravating factor

  12   must be indicated in the appropriate space in the Section II,

  13   Part A.3 of the Special Verdict Form.

  14            The fourth and final statutory aggravating factor

  15   alleged by the government with regard to the capital counts is

  16   that the defendant intentionally killed or attempted to kill

  17   more than one person in a single criminal episode.

  18            To establish the existence of this factor, the

  19   government must prove beyond a reasonable doubt that

  20   Mr. al-'Owhali intentionally killed or attempted to kill more

  21   than one person in a single criminal episode.  You must

  22   unanimously agree on the particular actual or intended victims

  23   or a class of intended victims in order to find that this

  24   factor has been proved beyond a reasonable doubt.

  25            "Intentionally killing" a person means killing a


   1   person on purpose, that is:  Willfully, deliberately, or with

   2   a conscious desire to cause a person's death (and not just

   3   accidentally or involuntarily).

   4            "Attempting to kill" a person means purposely doing

   5   some act which constitutes a substantial step (beyond mere

   6   preparation or planning) toward killing a person, and doing so

   7   with the intent to cause a person's death.  You may not find

   8   that the defendant attempted to kill a person who was actually

   9   killed.

  10            "A single criminal episode" is an act or series of

  11   related criminal acts which occur within a relatively limited

  12   time and place, or are directed at the same person or persons,

  13   or are part of a continuous course of conduct related in time,

  14   place, or purpose.

  15            You may, but are not required to, infer that a person

  16   of sound mind intended the ordinary, natural, and probable

  17   consequences of his knowing and voluntary acts.  Thus, you may

  18   infer from Mr. al-'Owhali's conduct that he intended to kill a

  19   person if you find:  (1) that Mr. al-'Owhali was a person of

  20   sound mind; (2) that the victim's death was an ordinary,

  21   natural, and probable consequence of Mr. al-'Owhali's acts

  22   (even if the victim's death did not actually result, in the

  23   case of an attempt); and (3) that Mr. al-'Owhali committed

  24   these acts knowingly and voluntarily.  But once again, you are

  25   not required to make such an inference.  Your finding as to


   1   this statutory aggravating factor must be indicated in the

   2   appropriate space in Section II, Part A.4 of the Special

   3   Verdict Form.

   4            Finally, let me reiterate that if, with respect to

   5   any capital count, you do not unanimously find that the

   6   government has proven beyond a reasonable doubt at least one

   7   statutory aggravating factor, your deliberations as to that

   8   particular count are concluded.  Please identify any such

   9   counts in Section II, Part B of the Special Verdict Form.

  10            If the requirements of the gateway factor and the

  11   statutory aggravating factor are satisfied, that is, you have

  12   found at least one of each with respect to the particular

  13   count, you must then consider whether the government has

  14   proven the existence of any non-statutory aggravating factor

  15   with regard to that count.  As before, you must agree

  16   unanimously, and separately as to each count, that the

  17   government has proven beyond a reasonable doubt the existence

  18   of any of the alleged non-statutory aggravating factors.

  19            The law permits you to consider and discuss only the

  20   three non-statutory aggravating factors specifically claimed

  21   by the government in advance and listed below.  You are not

  22   free to consider any other facts in aggravation that you may

  23   conceive of on your own.

  24            The non-statutory aggravating factors alleged by the

  25   government with regard to each of the capital counts are as


   1   follows:

   2            1.  The defendant -- that is, Mr. al-'Owhali -- poses

   3   a continuing and serious threat to the lives and safety of

   4   others with whom he will come in contact.

   5            2.  As demonstrated by the deceased victims' personal

   6   characteristics as individual human beings and the impact of

   7   the deaths upon the deceased victims' families, the defendant

   8   caused injury, harm, and loss to those victims and their

   9   families, and the defendant caused serious physical and

  10   emotional injury and grievous economic hardship to numerous

  11   individuals who survived the bombing.

  12            3.  The victims and intended victims included

  13   high-ranking public officials of the United States serving

  14   abroad and the offense was motivated by such status.

  15            These non-statutory aggravating factors are

  16   self-explanatory and do not require substantive instruction.

  17   Note that the non-statutory aggravating factor of future

  18   dangerousness may only be considered by you in the context of

  19   the mandatory life sentence without the possibility of release

  20   that must be imposed by the Court if Mr. al-'Owhali is not

  21   sentenced to death.

  22            Again, your findings regarding these factors must be

  23   separate and unanimous with regard to each count that you are

  24   considering.  You also must unanimously agree, beyond a

  25   reasonable doubt, that the non-statutory aggravating factor


   1   alleged by the government is in fact aggravating.  As I

   2   mentioned at the beginning of the sentencing hearing, an

   3   aggravating factor is a fact or circumstance that would tend

   4   to support imposition of the death penalty.

   5            In the event that you unanimously find, beyond a

   6   reasonable doubt, that a particular non-statutory aggravating

   7   factor applies to all of the capital counts for which you have

   8   found at least one gateway factor and at least one statutory

   9   aggravating factor, you are to indicate that finding on the

  10   appropriate line in Section III of the Special Verdict Form.

  11   In the event that you unanimously find that a particular

  12   non-statutory aggravating factor applies to some but not all

  13   of these counts, you are to indicate that finding on the

  14   appropriate line in Section III of the Special Verdict Form,

  15   and also identify on the line provided, by count number, the

  16   particular counts as to which you find the non-statutory

  17   aggravating factor applies.

  18            If you do not unanimously find that a non-statutory

  19   aggravating factor has been proven beyond a reasonable doubt

  20   with regard to any capital count, you should so indicate in

  21   Section III of the Special Verdict Form.

  22            Unlike with gateway factors and statutory aggravating

  23   factors, you are not required to find a non-statutory

  24   aggravating factor with regard to a particular count before

  25   you may consider the death penalty as the possible sentence


   1   for that count.  Rather, the law only requires that before the

   2   jury may consider an alleged non-statutory aggravating factor

   3   in its sentencing decision as to any capital count, the jury

   4   must first unanimously agree that the government has proven

   5   beyond a reasonable doubt the existence of that factor as to

   6   that count.

   7            After you have completed your findings regarding the

   8   existence or nonexistence of non-statutory aggravating

   9   factors, you should proceed to Section IV of the Special

  10   Verdict Form, to consider whether any mitigating factors

  11   exist.

  12            Before you may consider the appropriate punishment

  13   for any of the capital counts for which you have unanimously

  14   found the existence of at least one gateway factor and at

  15   least one statutory aggravating factor, you must consider

  16   whether Mr. al-'Owhali has proven the existence of any

  17   mitigating factors with regard to those counts.  A mitigating

  18   factor is not offered to justify or excuse Mr. al-'Owhali's

  19   conduct.  Instead, a mitigating factor is a fact about

  20   Mr. al-'Owhali's life or character, or about the circumstances

  21   surrounding the particular capital offense, or anything else

  22   relevant that would suggest, in fairness, that life in prison

  23   without the possibility of release is the appropriate

  24   punishment than a sentence -- is the more appropriate

  25   punishment than a sentence of death.


   1            Unlike with aggravating factors, which you must

   2   unanimously find proven beyond a reasonable doubt in order for

   3   you even to consider them in your deliberations, the law does

   4   not require unanimity with regard to mitigating factors.  Any

   5   one juror who is persuaded of the existence of a mitigating

   6   factor must consider it in his or her sentencing decision.

   7            Therefore, it is Mr. al-'Owhali's burden to establish

   8   a mitigating factor -- furthermore, it is Mr. al-'Owhali's

   9   burden to establish a mitigating factor only by a

  10   preponderance of the evidence.  This is a lesser standard of

  11   proof under the law than proof beyond a reasonable doubt.  A

  12   factor is established by a preponderance of the evidence if

  13   its existence is shown to be more likely so than not so.  In

  14   other words, a preponderance of the evidence means such

  15   evidence as, when considered and compared with that opposed to

  16   it, produces in your mind the belief that what is sought to be

  17   established is, more likely than not, true.  If, however, the

  18   evidence is equally balanced, you cannot find that the factor

  19   has been proved.

  20            The following are the mitigating factors alleged by

  21   Mr. al-'Owhali:

  22            1.  That other members of the conspiracy, previously

  23   arrested or presently cooperating with the United States,

  24   guilty of or charged with planning and facilitating the

  25   bombings of the United States embassies and the killing of


   1   United States nationals will not be punished by death.

   2            2.  That Mr. al-'Owhali is less culpable than those

   3   conspirators who planned and facilitated the bombing of the

   4   United States Embassy in Nairobi, Kenya and continue to plan

   5   and execute similar acts in the future.

   6            3.  That Mr. al-'Owhali does not have a prior history

   7   of criminal conduct.

   8            4.  That, although having intentionally participated

   9   in an act, contemplating that the lives of Americans be taken,

  10   Mr. al-'Owhali did not intend that the Kenyan victims not

  11   employed by the United States Embassy be injured or killed.

  12            5.  A.  That Mr. al-'Owhali intended, by the

  13   commission of the offenses of which he has been convicted, to

  14   save members of his ummah, his religious community, regardless

  15   of nationals, from imminent death, injury, terrorism and

  16   genocide.

  17            B.  That Mr. al-'Owhali committed the offenses for

  18   which he has been convicted based upon his sincere belief,

  19   whether or not you agree with that belief, that his conduct

  20   was mandated by his religion.

  21            C.  That Mr. al-'Owhali believed that the United

  22   States embassies were legitimate military targets because he

  23   had the sincere belief, as proposed by Usama Bin Laden, that

  24   embassies fulfilled military and intelligence surveillance

  25   functions which furthered the aims of the United States


   1   Government and opposed the aims and objectives of Usama Bin

   2   Laden.

   3            6.  That Mr. al-'Owhali committed the offenses for

   4   which he has been convicted while young in age; and

   5            7.  That Mr. al-'Owhali was indoctrinated in

   6   conservative Muslim teachings which promoted jihad and

   7   martyrdom during his early and formative years.

   8            In Section IV of the Special Verdict Form, you are

   9   asked to report the total number of jurors who individually

  10   find a particular mitigating factor established by a

  11   preponderance of the evidence.

  12            Let me deviate.  So the contrast, with respect to

  13   aggravators, you must be unanimous.  It must be beyond a

  14   reasonable doubt.  With respect to mitigators, you need not be

  15   unanimous, and the standard of proof is a lesser proof of

  16   preponderance of the evidence.

  17            And this is repeated in the Special Verdict Form, and

  18   the Special Verdict Form then asks that you indicate the

  19   number of jurors who find a particular mitigating factor.  If

  20   you are unanimous, it would be 12.  If one juror believes that

  21   the mitigating factor has been proven by a preponderance of

  22   the evidence, then the answer is one.  Whatever the number is.

  23            Additionally, the law permits each of you to consider

  24   anything about the circumstances of the offense, or anything

  25   about Mr. al-'Owhali's background, record, or character, or


   1   anything else relevant that you individually believe mitigates

   2   against the imposition of the death penalty.  As such, if

   3   there are any mitigating factors not argued by the attorneys

   4   for Mr. al-'Owhali but which any juror, in his or her own or

   5   with others, finds to be established by a preponderance of the

   6   evidence, that juror is free to consider it in his or her

   7   sentencing determination.  In Section IV of the Special

   8   Verdict Form, you are to indicate any such additional

   9   mitigating factors that one or more of you independently finds

  10   to exist by a preponderance of the evidence.

  11            And if you look at page 13 of the Special Verdict

  12   Form, at the bottom it says, "The law does not limit your

  13   consideration of mitigating factors to those that can be

  14   articulated in advance.  Therefore, you may consider during

  15   your deliberations any other factor or factors in Mohamed

  16   Rashed Daoud Al-'Owhali's background, record, character, or

  17   any other circumstances of the offense that mitigate against

  18   imposition of a death sentence.

  19            "The following extra spaces are provided to write in

  20   additional mitigating factors, if any, found by any one or

  21   more jurors.  If more space is needed, write 'continued' and

  22   use the reverse side of this page."

  23            And you will see there is a space for you to indicate

  24   the nature of the additional mitigating factor which you have

  25   found to be found, and the number of jurors who so find.


   1            After you have concluded your findings regarding the

   2   existence or nonexistence of mitigating factors, you should

   3   proceed to Section V of the Special Verdict Form, to weigh the

   4   aggravating factors and mitigating factors with regard to each

   5   of the counts for which you have unanimously found at least

   6   one gateway factor and at least one statutory aggravating

   7   factor.

   8            Which brings us to the weighing of the aggravating

   9   and mitigating factors.

  10            If, and only if, you unanimously find, beyond a

  11   reasonable doubt, that the government has proven the existence

  12   of at least one gateway factor and at least one statutory

  13   aggravating factor with regard to any capital count; and after

  14   you then determine whether the government has proven beyond a

  15   reasonable doubt the existence of any non-statutory

  16   aggravating factors with regard to that count, and whether

  17   Mr. al-'Owhali has proven by a preponderance of the evidence

  18   the existence of any mitigating factors, you must then engage

  19   in a weighing process with regard to that count.  This

  20   weighing process asks whether you are unanimously persuaded,

  21   beyond a reasonable doubt, that the aggravating factors

  22   sufficiently outweigh any mitigating factors -- or, in the

  23   absence of any mitigating factors, that the aggravating

  24   factors are themselves sufficient -- to call for a sentence of

  25   death on the particular capital count you are considering.


   1            You are to conduct this weighing process separately

   2   with regard to each of the capital counts for which you have

   3   found at least one gateway factor and at least one statutory

   4   aggravating factor.  Each juror must individually decide

   5   whether the facts and circumstances in this case, and as to

   6   each count, call for death as the appropriate sentence.

   7            In determining the appropriate sentence for the

   8   capital count you are considering, all of you must

   9   independently weigh the aggravating factor or factors that you

  10   unanimously found to exist with regard to that count --

  11   whether statutory or non-statutory -- and each of you must

  12   weigh any mitigating factors that you individually or with

  13   others found to exist.  You are not to weigh any of the four

  14   gateway factors I mentioned previously as part of this

  15   process.  In engaging in the weighing process, you must avoid

  16   any influence of passion, prejudice, or any other arbitrary

  17   consideration.  Your deliberations should be based upon the

  18   evidence you have seen and heard, and the law on which I have

  19   instructed you.

  20            Again, whether or not the circumstances in this case

  21   call for a sentence of death is a decision that the law leaves

  22   entirely to you.  Remember that all 12 jurors must agree

  23   beyond a reasonable doubt that death is in fact the

  24   appropriate sentence, but that no juror is ever required by

  25   the law to impose a death sentence.  The decision is yours as


   1   individuals to make.

   2            The process of weighing aggravating and mitigating

   3   factors in order to determine the proper punishment is by no

   4   means a mechanical process.  In other words, you should not

   5   simply count the total number of aggravating and mitigating

   6   factors and reach a decision based on which number is greater;

   7   rather, you should consider the weight and value of each

   8   factor.  In carefully weighing these various factors, you are

   9   called upon to make a unique individual judgment about the

  10   sentence Mr. al-'Owhali should receive.

  11            The law contemplates that different factors may be

  12   given different weights or values by different jurors.  Thus,

  13   you may find that one mitigating factor outweighs all

  14   aggravating factors combined, or that the aggravating factors

  15   proved do not, standing alone, justify the imposition of a

  16   sentence of death beyond a reasonable doubt.  Similarly, you

  17   may find that a single aggravating factor sufficiently

  18   outweighs, beyond a reasonable doubt, all mitigating factors

  19   combined so as to justify a sentence of death.

  20            Each juror is individually to decide what weight or

  21   value is to be given to a particular aggravating or mitigating

  22   factor in the decision-making process.  Bear in mind, however,

  23   that in order to find that a sentence of death is appropriate

  24   for a particular count, the jurors must be unanimous in their

  25   conclusion, beyond a reasonable doubt, that the aggravating


   1   factor or factors proven as to that count sufficiently

   2   outweigh any mitigating factors found -- or, in the absence of

   3   any mitigating factors, that the aggravating factors alone are

   4   sufficient -- to call for a sentence of death.

   5            In the event that you do not unanimously find, beyond

   6   a reasonable doubt, that the balancing process leads you to

   7   the conclusion that a sentence of death is a called for as to

   8   any of the capital counts, please indicate in Section V of the

   9   Special Verdict Form.

  10            For any capital count, if you unanimously find that

  11   the government has failed to prove beyond a reasonable doubt

  12   that death is the appropriate sentence for Mohamed Rashed

  13   Daoud Al-'Owhali, the Court will then sentence Mr. al-'Owhali

  14   on that count to life imprisonment without the possibility of

  15   release.  The Court has no other sentencing option.

  16            In the event that you unanimously find, beyond a

  17   reasonable doubt, that the balancing process leads you to the

  18   conclusion that a sentence of death is called for as to all

  19   the capital counts, please so indicate in Section V of the

  20   Special Verdict Form.  In the event that you unanimously find,

  21   beyond a reasonable doubt, that the balancing process leads

  22   you to the conclusion that a sentence of death is called for

  23   as to some but not all the capital counts, so indicate in

  24   Section V of the Special Verdict Form and also identify on the

  25   line provided, by count number, the particular counts to which


   1   you unanimously impose the death sentence.

   2            If you turn then to page 15 of the Special Verdict

   3   Form, it says there are general directions for Section V.  As

   4   used in the section, the term "capital counts" refers only to

   5   those counts for which you found one gateway factor in Section

   6   I and at least one statutory aggravating factor in Section II.

   7   You may not impose a sentence of death on a particular capital

   8   count unless you have first found with regard to that count,

   9   unanimously and beyond a reasonable doubt, one gateway factor

  10   in Section I and at least one statutory aggravating factor in

  11   Section II.

  12            In this section, enter your determination of the

  13   defendant's sentence with regard to each of the capital

  14   counts.  Your verdict as a jury must be unanimous with regard

  15   to each question in this section.

  16            After considering the information presented by both

  17   sides during the penalty phase and individually balancing the

  18   aggravating factors found to exist against the mitigating

  19   factors found to exist, and then the first choice is:

  20            "We, the jury, unanimously find that the government

  21   has failed to prove beyond a reasonable doubt that death is

  22   the appropriate sentence for defendant Mohamed Rashed Daoud

  23   Al-'Owhali for any of the capital counts.  We, therefore,

  24   return a decision that Mohamed Rashed Daoud Al-'Owhali will be

  25   sentenced to life imprisonment without the possibility of


   1   release, separately as to each count."

   2            Or:  "We, the jury, unanimously find beyond a

   3   reasonable doubt, for all of the capital counts, that the

   4   aggravating factor or factors found to exist sufficiently

   5   outweigh the mitigating factor or factors found to exist --

   6   or, in the absence of any mitigating factors, that the

   7   aggravating factor or factors are themselves sufficient -- so

   8   that death is the appropriate sentence for defendant Mohamed

   9   Rashed Daoud Al-'Owhali.  We vote unanimously that Mohamed

  10   Rashed Daoud Al-'Owhali shall be sentenced to death separately

  11   as to each count.

  12            Or:  "We, the jury, unanimously find beyond a

  13   reasonable doubt, for some of the capital counts, that the

  14   aggravating factor or factors found to exist sufficiently

  15   outweigh the mitigating factor or factors found to exist --

  16   or, in the absence of any mitigating factors, that the

  17   activating factor or factors are themselves sufficient -- so

  18   that death is the appropriate sentence for defendant Mohamed

  19   Rashed Daoud Al-'Owhali with regard to each of the following

  20   capital counts only."  And then you are asked to identify each

  21   count by count number.

  22            And it says, "With regard to the above-listed capital

  23   counts, we vote unanimously that Mohamed Rashed Daoud

  24   Al-'Owhali shall be sentenced to death separately as to each

  25   count.  With regard to each of the remaining capital counts,


   1   we sentence the defendant to life imprisonment without the

   2   possibility of release separately as to each count."

   3            And each juror must sign his or her juror number

   4   below, indicating that the above sentence determination

   5   reflects the jurors' unanimous decision.  And you sign there

   6   by juror number.

   7            Returning to the charge, I'm on page 29, if you are

   8   following me:  In your consideration of whether the death

   9   sentence is appropriate, you must not consider the race,

  10   color, religious beliefs, national origin, or sex of either

  11   the defendant or the victims.  You are not to return a

  12   sentence of death unless you would return a sentence of death

  13   for the crime in question without regard to the race, color,

  14   religious beliefs, national origin, or sex of either the

  15   defendant or any victim.

  16            To emphasize the importance of this consideration,

  17   Section VI of the Special Verdict Form contains a

  18   certification statement.  Each juror should carefully read the

  19   statement, and sign your juror number in the appropriate place

  20   if the statement accurately reflects the manner in which each

  21   of you reached your individual decision.

  22            And turning, then, to page 18, you see it says, "By

  23   signing your juror number below, each of you individually

  24   certifies that the consideration of the race, color, religious

  25   beliefs, national origin, or sex of Mohamed Rashed Daoud


   1   Al-'Owhali or the victims was not involved in reaching your

   2   individual decision.  Each of you further certifies that you,

   3   as an individual, would have made the same recommendation

   4   regarding a sentence for the crime or crimes in question

   5   regardless of the race, color, religious beliefs, national

   6   origin, or sex of the defendant, or the victims."

   7            And then on this form, on single copy on this form,

   8   you each sign your juror number.  Then, after you have

   9   completed this form, you will each be given a new

  10   certification, and that is the certification that is contained

  11   in the brown envelope that you received and it has

  12   certification, juror number, and an envelope which bears your

  13   juror number on the outside.

  14            Please sign that certificate using your real name,

  15   place the certificate in the envelope, seal the envelope, and

  16   when you render a verdict, give the envelope to the marshal.

  17   And all of the certificates bearing your real name will be

  18   kept by the court under seal.

  19            I'm on page 30.  Concluding Remarks:

  20            I have now outlined for you the rules of law

  21   applicable for your consideration of the death penalty and the

  22   process by which you should determine the facts and weigh the

  23   evidence, and in a few moments you will retire to the jury

  24   room.

  25            The importance of your deliberations should be


   1   obvious.  I remind you that you can return a decision

   2   sentencing Mr. al-'Owhali to death only if all 12 of you are

   3   unanimously persuaded, beyond a reasonable doubt, that the

   4   death sentence is in fact appropriate.

   5            When you are in the jury room, please discuss all

   6   aspects of these sentencing issues among yourselves with

   7   candor and frankness, but also with a due regard and respect

   8   for the opinions of one another.  Each of you must decide this

   9   question for yourself and not merely go along with the

  10   conclusion of your fellow jurors.  In the course of your

  11   deliberations, no juror should surrender his or her

  12   conscientious beliefs of what is the truth, of what is the

  13   weight and the effect of the evidence, and what should be the

  14   outcome as determined by that juror's individual conscience

  15   and evaluation of the case.  Remember that the parties and the

  16   Court are relying upon you to give full consideration and

  17   mature consideration to this sentencing.  By so doing, you

  18   carry out to the fullest your oath as jurors; that you will

  19   well and truly try the issues of this case and a just result

  20   render.

  21            If it becomes necessary during your deliberations to

  22   communicate with me for any reason, simply send me a note

  23   signed by your foreperson.  Do not attempt to communicate with

  24   the Court or any other court personnel by any means other than

  25   a signed writing.  I will not communicate with any member of


   1   the jury on any subject touching on your sentencing decision

   2   other than in writing or orally here in open court.

   3            When you have reached a decision, send me a note

   4   signed by your foreperson that you have reached a decision.

   5   Do not indicate in the note what the decision is.  In no

   6   communication with the Court should you have give a numerical

   7   count of where the jury stands in its deliberations.

   8            Whichever decision you reach, please sign and fill

   9   out the Special Verdict Form accordingly.  The foreperson must

  10   also be prepared to report to the Court your findings as to

  11   the gateway, aggravating and mitigating factors, and then of

  12   your sentencing decision.

  13            Let me remind you again that nothing that I have said

  14   in these instructions -- and nothing that I have said or done

  15   during the trial -- has been said or done to suggest to you

  16   what I think the outcome should be.  What the sentencing

  17   decision should be is your exclusive duty and responsibility.

  18            I would ask of the jurors seated in the last row, do

  19   you have any personal belongings in the robing room?  Do you

  20   have any personal belongings in the robing room?  Would you go

  21   now to the robing room and come back to court, bringing those

  22   personal belongings.

  23            Anything else from counsel?

  24            MR. BAUGH:  Nothing from the defense, your Honor.

  25            THE COURT:  All counsel said no.


   1            Please swear the marshal.

   2            (Marshal sworn)

   3            THE COURT:  Ladies and gentlemen, you are experts in

   4   the deliberation process, so I don't think I have to explain

   5   at great length what that process is.  I remind you what I

   6   said last time you began to deliberate:  That I feel like a

   7   captain turning over the command of the ship to you.  So if

   8   you want to stay beyond 4:30, that's up to you.  If you don't,

   9   that's fine.

  10            Tomorrow we adjourn at 3:00.  Do you want to start at

  11   9:30?  You get here about that time in any event.  I know that

  12   the gentleman who had difficulty arriving at 9:30 is no longer

  13   with us.  Would you rather start at 9:30?  You want to leave

  14   it the way it is?

  15            Just let us know or let the marshal know.  We will

  16   follow your instructions in that regard.  Of course, if there

  17   is anything you wish to see or anything you wish to have read

  18   again, you just send us a note.  We'll be in the courtroom

  19   awaiting your instructions.  And you may retire to the jury

  20   room.

  21            (The jury retires to deliberate upon a verdict at

  22   4:00 p.m.)

  23            THE COURT:  It had been my intent to tell the

  24   alternates that they are still on-call but that they will not

  25   be called prior to the 18th.  Is there any objection to that?


   1   I think that's so that people are not on tenterhooks.

   2            MR. BAUGH:  Are you going to give them the usual --

   3            THE COURT:  Not to talk to anybody.

   4            MR. BAUGH:  -- publicity warning?  I think it might

   5   be -- between now and the 18th, I think it might be

   6   particularly heavy.

   7            THE COURT:  Yes.

   8            (Alternates present)

   9            THE COURT:  Ladies and gentlemen, I'm going to excuse

  10   you now and just remind you what I said the last time you were

  11   excused:  That you are still on this jury.  Therefore, you are

  12   still to continue not to read or talk or listen to anything

  13   with respect to this case or anything related to this case.

  14   If anyone should seek to talk to you about the case and

  15   persist, if you walk away, then let me know.  I say that as a

  16   matter of routine, not that I anticipate that it would happen.

  17            And you will be on telephone call.  I can tell you,

  18   however, that you will not be called back before the 18th.  So

  19   you know that you are not on tap until that day.

  20            Thank you very much for your patience and your

  21   cooperation, and you are excused.

  22            (Alternates excused)

  23            THE COURT:  I take it that if the jury asks for any

  24   exhibits that were referred to, that they are available in a

  25   form in which they can be sent.


   1            Let me ask another question.  I'm merely asking it

   2   for information because I don't know the answer, and that

   3   relates to the timing of sentencing.  For example, the

   4   sentence, obviously, is going to be dictated by the verdict,

   5   but there is a formal imposition of sentencing which has some

   6   significance for timing and other purposes.

   7            One possibility is not to actually impose the

   8   sentence until the completion of the K.K. Mohamed proceedings,

   9   so that those sentences would be on the same timetable for all

  10   purposes.

  11            Does anybody have any feeling as to (A) what is

  12   legally required or (B) as to what would be appropriate here?

  13            MR. COHN:  I have actually given it some thought,

  14   your Honor, and because of the ten-day jurisdictional

  15   requirement in filing a notice of appeal, it seems to me that

  16   we have got an extension on the Rule 33 filing for 90 days,

  17   which I think is the 27th of July.  It's in the order,

  18   whatever it is.  And I would suggest that sentence be

  19   adjourned to that day or to the day of decision on those

  20   motions.

  21            In addition, one of the issues is whether or not, in

  22   the case where the sentence is for death, there ought to be a

  23   pre-sentence investigation report, which none of us has had

  24   any experience, but maybe your Honor has --

  25            THE COURT:  I know that the probation department has


   1   given that considerable thought.  I think there is a

   2   pre-sentence report prepared with respect to the other two

   3   defendants, but not with respect to these defendants.  My

   4   preference would be to have one simply because a pre-sentence

   5   report, many people don't realize, serves purposes other than

   6   sentencing -- that it goes with the defendant to the BOP.

   7            MR. COHN:  That's my thought as well, your Honor.

   8   Since many of the conditions and programs available in jail

   9   are dependent on the report, or at least initially informed by

  10   the report, it would be my feeling we ought to have one.

  11            THE COURT:  Your preference, then, is that if the

  12   sentence is one other than death, that the Court order a

  13   pre-sentence report, whether or not it is mandated, that the

  14   Court ask the probation department to prepare one.

  15            MR. COHN:  That is my preference.  We will then work

  16   out the mechanics of how that works between myself and the

  17   defense team and then the pre-sentence people.

  18            THE COURT:  Well, the statute says, 3593(c),

  19   notwithstanding Rule 32(c) of the Federal Rules of Criminal

  20   Procedure, when a defendant is found guilty or pleads guilty

  21   to an offense under 3591, no pre-sentence report shall be

  22   prepared.

  23            MR. COHN:  I guess that takes care of my thoughts.

  24            THE COURT:  I'm not sure just what that mandates in

  25   terms of --


   1            MR. COHN:  It's something for us to think about

   2   anyway.

   3            THE COURT:  All right.  I suppose we ought to consult

   4   further with the probation office.  Does the government have

   5   any feeling?  Assuming that it would not be called a

   6   pre-sentence report and but that they are willing to prepare

   7   it despite the statute, does the government have any objection

   8   to its preparation?  You don't have to answer now.

   9            MR. FITZGERALD:  If we can think about it overnight.

  10            THE COURT:  Think about it overnight and perhaps talk

  11   to the probation department.  I think they were of the view

  12   that they would follow the statute and would not prepare one,

  13   but I didn't pursue with them the thought of what would occur

  14   if the Court specifically requested it.

  15            All right.  Anything else?

  16            MR. FITZGERALD:  If I could just put one thing on the

  17   record.  Mr. Cohn asked to have a copy provided to him of

  18   Government Exhibit 2002, which is the chart of names with some

  19   pictures.

  20            MR. COHN:  We announced we got it.

  21            MR. FITZGERALD:  I just wanted to note on the record

  22   for the record that same exhibit had been referred to by

  23   Mr. Baugh in his opening and shown to the jury without

  24   objection.

  25            MR. BAUGH:  So stipulated.


   1            MR. COHN:  We have it, your Honor.

   2            THE COURT:  I think Mr. Cohn simply wanted it

   3   recorded on the record.  You wanted it recorded the exhibit

   4   numbers of the photographs that were shown which were not

   5   referred to by exhibits.

   6            MR. COHN:  And the government has given me a list and

   7   we'll read it into the record at some appropriate time.

   8            THE COURT:  Anything else?

   9            MR. FITZGERALD:  No, thanks.

  10            THE COURT:  Okay.  You remember what I previously

  11   said the last time about presence in the courtroom, and we'll

  12   await further instructions from the jury, which I would

  13   anticipate will be that they would like to go home.

  14            (Recess pending verdict)


  16            (In open court; jury not present)

  17            THE COURT:  At approximately 4:15 the jury handed me

  18   a note which reads:

  19            The jury requests the individual copies of the book

  20   regarding Islam if possible or if not possible exhibit DD,

  21   copies of the chapters received in evidence.

  22            What I suggest is we give them both, that is, the

  23   book and exhibit DD, just stick exhibit DD in the book.  Is

  24   that agreeable?

  25            MR. GARCIA:  Yes, Judge.


   1            MR. BAUGH:  Yes, your Honor.

   2            THE COURT:  Also, exhibit AA GG and HH.  We don't

   3   request these for today.  Tomorrow will be fine.  Lastly, also

   4   Al-'Owahli exhibit U (re:  Geneva Convention) Thank you.

   5            The jury has left for the day, and so the first thing

   6   tomorrow morning which will be 9:30, we'll send in these

   7   exhibits to the jury.  We're adjourned until that time.

   8            (Adjourned to Wednesday, June 6, 2001, 9:30)



















   1                         DEFENDANT EXHIBITS

   2   Exhibit No.                                     Received

   3    GG .........................................7138

   4    HH .........................................7139

   5    DD .........................................7139

   6                        GOVERNMENT EXHIBITS

   7   Exhibit No.                                     Received

   8    2281 .......................................7145


















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