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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA

v.                           S(7) 98 Cr. 1023

USAMA BIN LADEN, et al.,

Defendants.

New York, N.Y.
10-Jul-01
10:00 a.m.

 
Before:

HON. LEONARD B. SAND,

District Judge

APPEARANCES

MARY JO WHITE
United States Attorney for the
Southern District of New York
BY:  PATRICK FITZGERALD
MICHAEL GARCIA
Assistant United States Attorneys

DAVID RUHNKE
DAVID STERN
Attorneys for defendant Khalfan Khamis Mohamed

The jury was assembled at 10:00 a.m. and deliberations resumed.

THE COURT:  Good morning.

THE JURY:  Good morning.

THE COURT:  Mr. Kenneally, will you take attendance, please.

DEPUTY CLERK:  Ladies and gentlemen of the jury, please answer to your presence as your name is called.

(July roll called; all present)

DEPUTY CLERK:  Madame Forelady, has the jury reached a verdict on the Special Verdict Form?

THE FORELADY:  Yes, we have.

DEPUTY CLERK:  On Section I, The Gateway Factors,

Part A, Question 1, your answer is?  How do you find?

THE FORELADY:  The first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  With the continuation on Part A of Section I, Question 2.

THE FORELADY:  Yes.  2, also the first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  Question 3 of Part A, Section I.

THE FORELADY:  Question 3, also the first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all the capital counts.

DEPUTY CLERK:  Part A, Question 4.

THE FORELADY:  Question 4, the first one also:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  Going to Section II, Statutory Aggravating Factors, Part A, what is your answer?

THE FORELADY:  The first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all the capital counts.

DEPUTY CLERK:  Part A, Question 2.

THE FORELADY:  Also the first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  Part A, Question 3, your answer is?

THE FORELADY:  Also the first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  Continuing on Part A, Question 4.

THE FORELADY:  Question 4, also the first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  Skipping Part B, we go to Section III, the Non-Statutory Aggravating Factors, Part A.

THE FORELADY:  Part A is the last one:  We do not unanimously find that this factor has been proved beyond a reasonable doubt with regard to any of the capital counts.

DEPUTY CLERK:  Continuing on Section III, Part B, your answer is?

THE FORELADY:  Is the first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  Continuing Part A, Question C.

THE FORELADY:  Question C is the first one:  We unanimously find that this factor has been proved beyond a reasonable doubt with regard to all of the capital counts.

DEPUTY CLERK:  Section IV, the Mitigating Factors, how do you find as to A(1) through (3)?

THE FORELADY:  A(1) through (3), the number of jurors is ten.

DEPUTY CLERK:  Part B, the number of jurors?

THE FORELADY:  B, number of jurors is 11.

DEPUTY CLERK:  Part C(1) through (3)? I’m sorry.  Part C, Question C(1) through (3), number of jurors?

THE FORELADY:  Number of jurors is nine.

DEPUTY CLERK:  E, number of jurors you so find?

THE FORELADY:  Number of jurors for E is nine.

DEPUTY CLERK:  F?

THE FORELADY:  Number of jurors for F is 12.

DEPUTY CLERK:  G?

THE FORELADY:  For G the number of jurors is zero.

DEPUTY CLERK:  Continuing on Section IV, Mitigating

Factors, H?

THE FORELADY:  For H, number of jurors is nine.

DEPUTY CLERK:  I’m sorry, nine?

THE FORELADY:  Nine.

DEPUTY CLERK:  Going to I.

THE FORELADY:  I, the number of jurors is 12.

DEPUTY CLERK:  J?

THE FORELADY:  J, the number of jurors is seven.

DEPUTY CLERK:  L?  That’s L(1) through (3).

THE FORELADY:  L(1) through (3) is ten.
DEPUTY CLERK:  Madame Forelady, do you have additional mitigating factors?

THE FORELADY:  Yes, there were two additional

mitigating factors.  The first one is that Khalfan Mohamed’s last psychological report dated March 2001 judged his potential of harm to others to be low.

DEPUTY CLERK:  Continue.

THE FORELADY:  And the number of jurors who so find is nine.

DEPUTY CLERK:  Any further mitigating factors?

THE FORELADY:  Yes.  The next one, the last one, is that life imprisonment is a harsher punishment than being put to death, and the number of jurors who so find is three.

DEPUTY CLERK:  Three.

Section V, Determination of Sentence.  Madame

Forelady, can you please read out loud your determination of sentence?

THE FORELADY:  Certainly.  It’s the last one:  We, the jury, are unable to reach a unanimous verdict either in favor of a life sentence or in favor of a death sentence for any of the capital counts.  We understand that the consequence of this is that Khalfan Khamis Mohamed will be sentenced to life imprisonment without the possibility of release.

THE COURT:  Ladies and gentlemen, let me summarize your findings and make sure that we have reported them correctly.  With respect to the gateway factors, you have answered that you have unanimously found the gateway factors to have been proven beyond a reasonable doubt with regard to all of the capital counts, and you made a similar finding with respect to the statutory aggravating factors.  With respect to the non-statutory aggravating factors, you do not unanimously find that the defendant poses a continuing and serious threat to the life and safety of others with whom he will come in contact.  You do find that the non-statutory aggravating factors B and C have been proven beyond a reasonable doubt.  With respect to the mitigating factors, with respect to A, ten jurors so found; B, eleven jurors; C, nine jurors; E, nine jurors; F, twelve jurors; no jurors found as to G; nine as to H; twelve as to I; seven as to J; ten as to L. You have found as two additional mitigating factors that K.K. Mohamed’s last psychological report showed that danger of harm to others was low, and nine jurors so found.

THE FORELADY:  Correct.

THE COURT:  And you also found as a mitigating factor that life imprisonment was a harsher punishment than death,  and three jurors so found.

THE FORELADY:  Yes.

THE COURT:  And with respect to sentence, you are unable to reach a unanimous verdict either in favor of a life sentence or in favor of death sentence for any of the capital counts.  You understand that the consequence of this is that Khalfan Khamis Mohamed will be sentenced to life imprisonment without the possibility of release.

THE FORELADY:  Correct.

THE COURT:  And have each of you put your number on the last sheet, indicating that that reflects your unanimous 
determination; and have you completed the certification which appears as Section VI, dated and signed the special Special Verdict Form?

THE FORELADY:  Yes, sir.

THE COURT:  Have you also signed your real name and placed that certificate in the envelope?

THE FORELADY:  Yes, sir.

THE COURT:  Mr. Kenneally, will you poll the jury?

DEPUTY CLERK:  Ladies and gentlemen of the jury, you have heard your verdict as it has been –

JUROR NO. 7:  I’m sorry, your Honor.  I’m sorry.  I need clarification.  In the polling of the jury, are you asking us individually how we voted or if we are in agreement that this is the sentence that is being imposed?

THE COURT:  The question is whether this is an accurate statement of the verdict reached by the jury.

JUROR NO. 7:  Thank you.

THE COURT:  You are saying no more but no less than the verdict as announced by the foreperson and as summarized by the Court is an accurate statement of the verdict rendered by the jury.  Mr. Kenneally, poll the jury.

(Jury polled; each juror responded in the affirmative)

THE COURT:  Is there anything further that counsel requests with respect to the jury before I discharge them with the thanks of the Court?

MR. FITZGERALD:  No, Judge.

MR. RUHNKE:  No, your Honor.

THE COURT:  Ladies and gentlemen, some parting comment seems appropriate, and I know you have had some questions that have been relayed to me through the marshal.  First, let me extend my appreciation to all of those who have enabled these proceedings to move forward expeditiously and with minimal disruption.  Our thanks to the deputy marshals, the security officers, court reporters, interpreters, Mr. Kenneally.  This difficult and emotionally-charged case has proceeded with no virtually no petty bickering among counsel, and it has been a rare occasion where we have had to interrupt the taking of testimony for sidebars or matters that we have not dealt with before you arrived or after you left.  Above all, and on behalf of all the participants in this trial, our thanks to you, the jury.  You have been patient, conscientious and good-natured, as you devoted more than half a year to this extraordinary civic duty.  Thanks, too, to your family, your employers, your co-workers, who have also been called upon to make sacrifices.  We have heard the view expressed, for a variety of reasons, a case of this type could not receive a fair trial before an American jury.  You know how wrong that view was.  The amount of time, effort, and resources that have been expended to protect everyone’s rights has been apparent.  No one who has carefully followed these proceedings can entertain any doubt that you have based your decisions solely on the meticulous scrutiny of the evidence and the issues.  You have asked about taking material home, and I’m sorry, but, no, everything should be left in the jury room and it will all go into the shredder.  One final observation, and that is with respect to talking to the media, to the press.  First, it should be clear that once you leave this courthouse, you have every right, if you wish, to contact the press and discuss what occurred in the jury room.  You also have an absolute right not to do so.  The press has a right to seek you out and encourage you to discuss what went on during your deliberations.  That is the roll of the press, and I intend no criticism of them if they seek to contact you.  A free and informed press is a mainstay of our system of government.  I am not questioning that.  But if you decline to speak to the press, you are not to be badgered or called repeatedly.  If this occurs, please advise the marshal and I will take appropriate action. Having said that you have a right to seek out and to talk to the press, if you wish to do so, let me urge that you not do so, for several reasons:  The American jury system is an amazing institution, and having observed it closely as a trial judge for over 20 years, I am more and more convinced of its value and its important role in our society.  One of the keystones of the jury system is the secrecy given to jury deliberations.  Every juror in this case and every juror in cases that will follow should be secure in the knowledge that the views he or she candidly presses during jury deliberations will not be emblazoned in the print or the electronic media. Moreover, for good reason, you are an anonymous jury. We promised that we would make every reasonable effort to keep your identity secret.  Obviously, if press accounts begin to appear and other jurors, perhaps disagreeing with what was said, begin responding in the press, there is a real danger that your anonymity will be jeopardized. As I have said, please leave your notes and papers in the jury room and they will all be shredded. I don’t know your names and may never see you again, but I am very appreciative of the service that you have rendered and I would like to shake your hands and wish you Godspeed.

(Jury excused)

THE COURT:  We will set September 19th at 10 a.m. in this courtroom for sentencing.

MR. RUHNKE:  Yes, your Honor.

THE COURT:  We will order a full pre-sentence report.  I assume counsel wish to be present –

MR. RUHNKE:  Yes.

THE COURT:  — for the interview for the pre-sentence report, and that will be noted. Is there anything else?

MR. FITZGERALD:  No, Judge.  Thank you.

THE COURT:  That being the case, we are adjourned until September 19th at 10 a.m.

Thank you all.

(Adjourned)