8 March 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 15 of the trial, 8 March 2001
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
2042
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 March 8, 2001
9:45 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
2043
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 DAVID KELLEY
KENNETH KARAS
5 PAUL BUTLER
Assistant United States Attorneys
6
7 SAM A. SCHMIDT
JOSHUA DRATEL
8 KRISTIAN K. LARSEN
Attorneys for defendant Wadih El Hage
9
ANTHONY L. RICCO
10 EDWARD D. WILFORD
CARL J. HERMAN
11 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
12
FREDRICK H. COHN
13 DAVID P. BAUGH
LAURA GASIOROWSKI
14 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
15 DAVID STERN
DAVID RUHNKE
16 Attorneys for defendant Khalfan Khamis Mohamed
17
18 (In open court; jury not present)
19 THE COURT: All right, let's begin. Mr. Butler,
20 there is a request on behalf of El Hage for a limiting
21 instruction. Have you seen that?
22 MR. BUTLER: Yes, we have, your Honor.
23 THE COURT: What is the government's position?
24 MR. FITZGERALD: We oppose that instruction I. Was
25 speaking with Mr. Dratel. Mr. Karas is reading a case. But I
2044
1 think the instruction is overly broad, and that there are
2 parts of the confession that are admissible. So I guess we'll
3 have to figure out at what time we want to take that issue up.
4 THE COURT: The request is that the instruction be
5 given prior to the commencement of the cross-examination. Let
6 me know when you're ready to address the issue.
7 MR. FITZGERALD: Okay.
8 (Recess)
9 (In open court; jury not present)
10 THE COURT: All right. Let's begin. There is a
11 request for an instruction to the jury limiting the testimony
12 with respect to statements made by al-'Owhali to be received
13 in evidence solely against the defendant al-'Owhali. Does the
14 government object to that?
15 MR. KARAS: We do, your Honor. We actually have been
16 speaking with counsel for El Hage and also for Odeh, and they
17 are speaking to co-counsel. What we would propose is to try
18 to work something out by either the mid-morning break or the
19 lunch break and get that language to you, and proceed in the
20 meantime.
21 THE COURT: That's acceptable to everyone that we
22 proceed in the meantime prior to there being a limiting
23 instruction?
24 MR. DRATEL: Yes. We worked out one aspect. There
25 is another aspect a little more complicated, so we'll just
2045
1 take the time to do that.
2 THE COURT: All right. With the unanimous consent
3 then of all of the parties I will defer giving a limiting
4 instruction at this time, and we'll take the matter up again
5 at the mid-morning recess. Mr. Cohn.
6 MR. COHN: Your Honor, just for convenience sake,
7 yesterday I handed up to the Court and gave a copy to the
8 government of all our premarked exhibits, and the government
9 has consented that they be marked in evidence now, and I would
10 read them into the record. So that we can just publish them
11 directly to the jury as I need them.
12 Is that satisfactory to the Court?
13 THE COURT: Yes.
14 MR. COHN: That's exhibit B, B1, B2, B3, B4, B5, B6,
15 B7, B8, C, D, E, F, G, H, I, J and K.
16 THE COURT: Very well.
17 MR. COHN: All al-'Owhali numbers obviously.
18 THE COURT: There is consent to those being received
19 in evidence?
20 MR. BUTLER: Yes, your Honor.
21 THE COURT: All right. They are all received in
22 evidence.
23 (Defendant's Al-'Owhali Exhibits B, B1, B2, B3, B4,
24 B5, B6, B7, B8, C, D, E, F, G, H, I, J and K received in
25 evidence)
2046
1 THE COURT: You don't want to do that in front of
2 jury? Very well, fine. The witness may take the stand. The
3 jury may come in.
4 STEPHEN GAUDIN, resumed.
5 (Jury present)
6 THE COURT: Good morning. We're at the stage of the
7 proceedings now of cross-examination of Agent Gaudin.
8 Agent Gaudin, the Court reminds you you're still
9 under oath.
10 THE WITNESS: Thank you, sir.
11 CROSS-EXAMINATION
12 MR. COHN: Thank you, why your Honor.
13 BY MR. COHN:
14 Q. Agent Gaudin, yesterday you told us as part of what the
15 interpreter said to you that Mr. Al-'Owhali said that
16 Mr. Al-'Owhali lobbied to have the bomb put underneath the
17 embassy rather than where it was planned to go. Do you
18 remember that testimony?
19 A. Yes, sir.
20 Q. And you testified, did you not, that it was the purpose,
21 Mr. Al-'Owhali's purpose in doing that to do more damage and
22 kill more Americans. Is that right?
23 A. Something to that effect.
24 Q. That's what you testified to, right?
25 A. Something to that effect, sir, yes.
2047
1 Q. Well, did you say, so we can be precise, at page 2020.
2 Al-'Owhali had expressed to Saleh that wouldn't it be
3 better if we were to put the bomb truck in front of the US
4 embassy and Saleh disagreed. And then Al-'Owhali suggested
5 wouldn't it be better for us to put the bomb underneath the US
6 embassy in the garage that goes underneath, and the way -- and
7 that way we would cause more damage to the Americans since the
8 US, since it's the US embassy, but Saleh explained to him that
9 it would be difficult to do to get past the section of the
10 security gate to Al-'Owhali. The plan didn't get charged --
11 change.
12 That was your testimony yesterday, is that right?
13 A. Yes, sir.
14 Q. That is not precisely true, is it?
15 A. I'm sorry, sir?
16 THE COURT: Is that a question?
17 MR. COHN: Pardon? Yes.
18 Q. That is not precisely true, is it? That's the question.
19 Do you understand the question?
20 A. I'm not sure, sir.
21 Q. What you said was Mr. Al-'Owhali's purpose in suggesting
22 that is not exactly what he told you during the 22nd, is that
23 right?
24 A. No, sir, that's what he told me.
25 Q. You issued a report called a 302, did you not?
2048
1 A. Yes, I did.
2 Q. And in fact, you have it in front of you, don't you? I
3 think it's tabbed in the black book, and if you would turn to
4 page 9 of your 302 that you generated for the period of 8/22
5 to 25/98. It's 3528 for the record.
6 Thank you, Mr. Ricco.
7 Q. Do you have page 9?
8 A. Yes, I do, sir.
9 Q. If you look in page 9 in the second full paragraph -- now,
10 this is something you signed, right?
11 A. Yes, sir.
12 Q. And you drafted it, right?
13 A. Yes, I did.
14 Q. And you drafted it from handwritten notes, did you not?
15 A. And my memory, sir.
16 Q. And your memory. And you knew that it was supposed to be
17 accurate in all respects, did you not?
18 A. This is a summary of what happened, sir.
19 Q. You knew that it was supposed to be accurate in all
20 respects, did you not?
21 A. Yes, sir.
22 Q. Fine. Did Mr. Al-'Owhali not say to you, according to
23 this report, that subject advised that his enemy is the United
24 States and not Kenya and try to get Saleh to reconsider his
25 plan. Subject believed that placing the bomb in the rear of
2049
1 the embassy would cause excessive collateral damage to the
2 Kenyans. Didn't he tell you that?
3 A. Yes, he did.
4 Q. And wasn't that the reason why he suggested to Saleh that
5 the bomb be placed in a different place?
6 A. No, sir.
7 Q. Not what you testified to yesterday?
8 A. What he told me, sir.
9 Q. Sir, is that, just yes or no will suffice.
10 MR. BUTLER: Objection, your Honor.
11 THE COURT: Yes, sustained.
12 A. He told me that the reason he wanted Saleh to reconsider
13 the plan is he wanted to cause more damage to the Americans by
14 placing the bomb in other places then where Saleh had
15 recommended.
16 Q. But that's not in your report. What I read to you is not
17 report, isn't it?
18 A. I believe they're both in there, sir.
19 Q. Oh, so what you're saying is you only told part of the
20 truth yesterday, not the part that you didn't want to tell?
21 MR. BUTLER: Objection, your Honor.
22 THE COURT: Sustained.
23 Q. We'll move on.
24 Now, please publish exhibit Al-'Owhali I.
25 You see Al-'Owhali I is on your screen?
2050
1 A. Yes, sir.
2 Q. Do you know the date that that picture was taken?
3 A. Yes, sir.
4 Q. What is the date?
5 A. Friday, the 21st of August, 1998.
6 Q. 21st.
7 Will you publish Al-'Owhali J.
8 And what date was that picture taken?
9 A. That was taken on the same day, sir.
10 Q. And that is a picture, is it not, of you and
11 Mr. Al-'Owhali in a cell, is that right?
12 A. Yes, sir.
13 MR. COHN: And will you publish Al-'Owhali K, please.
14 Q. And what is that?
15 A. That picture was also taken the same day.
16 Q. And that is a picture of you and a brother agent with
17 Mr. Al-'Owhali; is that right?
18 A. Another FBI agent, yes, sir.
19 MR. COHN: Thank you. You can take it down.
20 Q. Now, Mr. Al-'Owhali was arrested on August 12th, is that
21 right, five days after the bombing?
22 A. Yes, sir, August 12th.
23 Q. And you were with Kenyan CID officers to go out and do
24 whatever it was you were supposed to do on that day, is that
25 right?
2051
1 A. Yes, sir.
2 Q. And the CID officers went and made the arrest. Is that
3 right?
4 A. That's correct, sir.
5 Q. You weren't with them --
6 A. I was --
7 Q. -- at the time they made the arrest in the hotel room?
8 A. No, I wasn't in the hotel room.
9 Q. So you don't know of your own knowledge what was said to
10 Mr. Al-'Owhali at that time?
11 A. I wasn't in the hotel room, sir, no.
12 Q. And he came downstairs and then he was put in the back of
13 the truck with you; is that right?
14 A. Yes, sir.
15 Q. Now, did you tell him why he was arrested?
16 A. No, sir, I did not.
17 Q. In fact, the pretext used to arrest him was that he did
18 not have ID; is that right?
19 MR. BUTLER: Objection, your Honor.
20 THE COURT: Sustained.
21 Q. The reason given for arresting him was that he did not
22 have ID; is that right?
23 A. That's how it was explained to me, sir, yes.
24 Q. And you took him to the station, to the precinct, whatever
25 it is that they call it in Nairobi; is that right?
2052
1 A. It's the Kenyans took all of us to their headquarters, CID
2 headquarters in Nairobi, sir.
3 Q. And when you got him to CID headquarters did you, did
4 somebody advise him of his rights?
5 A. Yes, sir.
6 Q. In English?
7 A. Yes, sir.
8 Q. There was no interpreter present?
9 A. At the first time, no, sir.
10 Q. Now, that was read by you off a written form; is that
11 right?
12 A. Yes, sir.
13 Q. And was the Arabic form translation of that given to him?
14 A. Didn't have one, sir.
15 Q. Didn't have one. And did you ever have one during the
16 entire period of the next nine days?
17 A. No, sir, I did not.
18 Q. So he never saw one in Arabic; is that right?
19 A. That's correct, sir.
20 Q. Now, you noticed at the time, and I think there was a
21 series of pictures that you identified during direct, that he
22 had a number of injuries; is that right?
23 A. The pictures we looked at yesterday?
24 Q. Yes.
25 A. Yes, sir.
2053
1 Q. And those pictures were taken on the 13th or 14th, is that
2 right?
3 A. No, sir, they were taken on the 12th.
4 Q. On the 12th.
5 Could he we put up B, please.
6 Now, these, Agent Gaudin, are the same pictures that
7 we showed yesterday they are premarked as defense exhibits, is
8 that right?
9 A. That looks like one of the pictures I saw yesterday.
10 MR. COHN: Could you blow up a portion.
11 Q. That is a injury to his left hand; is that right?
12 A. Right. Yes, sir.
13 Q. And that's a laceration and that was about in the
14 condition it was when you saw it; is that right?
15 A. Yes, sir.
16 Q. Now, you're not a physician?
17 A. No, sir.
18 Q. Did you get him medical attention immediately?
19 A. No, sir.
20 Q. Okay.
21 MR. COHN: Could we have B1, please.
22 Q. That was his right hand that is there.
23 Could you blow up the portion of -- thank you very
24 much.
25 Q. Now, that was his right hand and there is a laceration
2054
1 there?
2 A. And stitches, yes, sir.
3 Q. And is it fair to say that the hand or at least the thumb
4 portion of the hand is noticeably swollen?
5 A. It looks he had an injury, you know, it looks --
6 Q. Does it look swollen to you or not?
7 A. A little bit, sir.
8 Q. Did you get him a doctor?
9 A. No, sir, I didn't.
10 Q. Did you know at the time that there was a broken bone?
11 A. No, sir, I did not.
12 Q. Did there come a time when you did learn that he had
13 sustained a fracture?
14 A. No, sir.
15 MR. COHN: Would you put up E, please. Blow it up.
16 Q. Do you know what a radial styloid nondisplaced comminuted
17 fracture is?
18 A. No, sir, I do not.
19 Q. Fine.
20 MR. COHN: Will you put up B5, please.
21 Q. That's the way Mr. Al-'Owhali looked on the day he was
22 arrested; is that right?
23 A. Yes, sir.
24 Q. That's the way he was dressed?
25 A. That was the picture that I took on the 12th, sir.
2055
1 Q. And that picture is one of the exhibits that was shown to
2 you yesterday; is that right?
3 A. Correct, sir.
4 MR. COHN: Could you put up B6. Would you enlarge
5 the forehead section. Thank you.
6 Q. And those were the wounds that were in his forehead; is
7 that right?
8 A. Yes, sir.
9 Q. You didn't have those looked at then either, did you?
10 A. No, sir, I didn't.
11 Q. It's a fact that he never received any medical attention
12 until the 18th. Is that right?
13 A. I don't remember the exact date, sir, but it was within a
14 week of being there.
15 Q. So for a week more or less this person who was in -- he
16 wasn't in your custody, he was in the custody of the Kenyans;
17 is that right?
18 A. Yes, sir.
19 Q. And you had no control over him at all, did you, when he
20 wasn't being interrogated by you, is that right?
21 A. No, sir, I did not have any control.
22 Q. Okay. So he received to your knowledge no medical
23 attention until finally he was seen by a doctor, I think an
24 embassy doctor around the 18th or within a week?
25 A. Within a week, yes, sir, I believe that's correct.
2056
1 Q. And you don't know whether he was in pain, whether he had
2 medication, whether or not he had infections? You don't know
3 any of that?
4 A. He never expressed that to me, sir, no.
5 Q. The answer is no, you don't know that?
6 A. I did not, sir.
7 Q. Now, getting back to the interview, you did interview him
8 on the 12th; is that right?
9 A. Yes, sir.
10 Q. And there were two interviews that day, were there not?
11 A. Yes, there were.
12 Q. And the first one -- what time was he arrested?
13 A. Around 10 o'clock in the morning, sir.
14 Q. Okay. When did the first interview commence, if you know,
15 and if you don't, you can refer to your notes if you have
16 them.
17 A. I think it was around 11 o'clock.
18 Q. How long did that last?
19 A. The first interview lasted roughly 45 minutes to an hour.
20 Q. And then it stopped; is that right?
21 A. Yes, sir.
22 Q. And Mr. Al-'Owhali remained in general custody, in other
23 words, with you -- by the way, at the interview there were CID
24 agents, were there not?
25 A. Yes, sir.
2057
1 Q. And in fact, at every interview you conducted between the
2 12th and the 21st there were always CID people there?
3 A. Yes, sir.
4 Q. And did they ever ask a question?
5 A. Sometimes they did, sir.
6 Q. But rarely?
7 A. Sometimes they would ask a question through me or through
8 the interviews, they would present questions.
9 Q. But rarely?
10 A. I don't know if I'd use the word rarely. There was maybe
11 10 percent of the time.
12 Q. 10 percent of the time?
13 A. Maybe a little bit more.
14 Q. But they never spoke directly to Mr. Al-'Owhali?
15 A. Not exactly, sir, no.
16 Q. Just sat there, and you conducted, you and your colleagues
17 in the FBI, conducted the interview?
18 A. At logical points we would confer with them, sir, and ask
19 them questions on, how do you think we should proceed, are we
20 going the right way? Things like that. But it was a team
21 effort, sir.
22 Q. It was a team effort. Did they take notes?
23 A. I don't remember, sir.
24 Q. You don't remember. You were with them for nine days and
25 you don't remember whether they took notes?
2058
1 A. No, sir, I don't.
2 Q. And you certainly don't have their notes if they exist?
3 A. I do not have their notes, sir.
4 Q. Sir, the second interview started when on the 12th?
5 A. Actually, I'm sorry. I do remember between the 22nd and
6 25th someone was definitely taking notes for those days, but I
7 don't remember --
8 Q. I'm not asking you about those. I'm asking you during the
9 period from the 12th through the 21st, right?
10 A. I apologize.
11 MR. COHN: And, your Honor, if you could instruct the
12 witness to confine himself to my questions, perhaps it would
13 be helpful.
14 THE COURT: Very well. The witness is so instructed.
15 THE WITNESS: Yes, sir.
16 Q. So when did the second interview start?
17 A. On the 12th?
18 Q. On the 12th, yes.
19 A. I believe the second interview started sometime around 2
20 or 3 o'clock.
21 Q. And Mr. Al-'Owhali was in the room with you until that
22 started; is that right?
23 A. No, sir, I left.
24 Q. You left. But Mr. Al-'Owhali was in the interview room
25 during that entire period?
2059
1 A. I'm not sure, sir. I left. I believe he was, but he may
2 have been taken somewhere else and brought back. I don't
3 know.
4 Q. Okay. When you came back were any of your brother agents,
5 FBI agents, and when I say "brother agents," I'm referring to
6 American FBI agents or other American police officials. I'm
7 not referring to the CID people from Nairobi, okay?
8 A. Yes, sir.
9 Q. Were any -- during the period when you were gone were any
10 of your brother agents in the room with him?
11 A. I believe they were, but I was gone so I couldn't say for
12 sure, sir.
13 Q. Okay. But he, as far as you know, -- well, when you came
14 back was there an interpreter already there?
15 A. No, sir.
16 Q. Okay. So you secured the services -- and I say you
17 generically -- you secured the services of an interpreter for
18 the afternoon session; is that right?
19 A. That's why I left, sir. I went to get an interpreter.
20 Q. Okay. And when you came back, you put up a screen so that
21 Mr. Al-'Owhali couldn't see the interpreter, is that right? A
22 blanket I think it was.
23 A. It was a blanket, yes, sir.
24 Q. And essentially, you essentially conducted, did something
25 so you could string the blanket in such a way so
2060
1 Mr. Al-'Owhali could not see the interpreter?
2 A. It was more, yes, sir, that's correct.
3 Q. And so during this interview you or your colleagues would
4 ask a question, and the interpreter would interpret, this
5 disembodied voice from behind the screen, right?
6 A. That's correct, sir. We were very close together though.
7 Q. And how long did that interview take?
8 A. I believe that that interview lasted several hours, maybe
9 about three hours or so, maybe a little more.
10 Q. Okay. And at the end of it you surrendered custody.
11 Would you say it was about 4:30, 5 o'clock when it finished?
12 A. Maybe a little later than that, sir.
13 Q. 6?
14 A. I don't think it was any later than 6.
15 Q. Okay. So at the end of that time you surrendered custody
16 of Mr. Al-'Owhali to the Kenyan authorities?
17 MR. BUTLER: Objection. Form, your Honor.
18 THE COURT: All right.
19 Q. So at the end of the day the Kenyans took him to wherever
20 they take him and you went about your business for the rest of
21 the evening; is that right?
22 A. Yes, sir.
23 Q. And you don't know -- well, he was kept, if you know, at
24 the precinct in which you were interviewing him, is that
25 right, then on the 12th, sir? Yes?
2061
1 A. No, he was not.
2 Q. Do you know where he was taken?
3 A. They took him away in a vehicle. They took him to another
4 facility where they were housing prisoners, I believe.
5 Q. And you never saw that facility?
6 A. I've never been there, no, sir.
7 Q. So you don't know whether it was clean?
8 A. I'm sorry?
9 Q. You don't know whether it was clean?
10 A. I've never been inside.
11 Q. You don't know if it was filthy?
12 A. I've never been inside.
13 Q. You don't know if he had toilet facilities?
14 A. Sir, I don't.
15 Q. You don't know if he had a mattress?
16 A. I've never been there, sir.
17 Q. You don't know anything about the conditions in which he
18 was kept?
19 A. That's true, sir.
20 Q. And apparently -- withdrawn. And you have not inquired to
21 make yourself knowledgeable about that?
22 A. I've seen pictures of it, sir.
23 Q. You've seen pictures of it. Well, from the pictures that
24 you've seen of that facility, that first two days, did he have
25 a blanket?
2062
1 A. I couldn't tell. The pictures were taken, I believe the
2 pictures were taken this year, so I don't know --
3 Q. So you don't know whether anybody before the pictures
4 mopped up?
5 A. I have no idea, sir.
6 Q. Cleaned it up?
7 MR. BUTLER: Objection, your Honor.
8 THE COURT: Yes, sustained.
9 Q. Now, on the 13th so he was -- on the 13th he was
10 interviewed again; is that right, by you?
11 A. Yes, sir.
12 Q. And again -- oh, by the way, on the 12th, did you have a
13 tape recorder?
14 A. No, sir.
15 Q. Did you ever during the interview process over the next
16 nine days bring a tape recorder?
17 A. No, sir.
18 Q. You testified on direct that at one point you showed him a
19 tape on a VCR; is that right?
20 A. Yes, sir.
21 Q. Did you ever during the nine days or ever thereafter use a
22 video camera to record accurately his testimony?
23 MR. BUTLER: Objection, your Honor.
24 THE COURT: I'll allow it.
25 A. I never used a videotape, sir, no, to record the
2063
1 interview, no.
2 Q. And you've been an agent for nine years; is that right?
3 A. Yes, sir.
4 Q. Have you ever used a tape recorder to memorialize the
5 statement of somebody who you had interrogated?
6 A. No, sir, I haven't.
7 Q. And do you know of any agent that ever has?
8 A. I do not, sir.
9 Q. And in fact, it's policy not to use such electronic
10 documentation, is it not?
11 A. I'm not sure exactly what the policy is. I think there
12 are some instances where you are encouraged to use that type
13 of equipment, but I don't know all the details.
14 Q. But this was not one of them?
15 A. I've never used one in the entire time I've been in the
16 FBI, sir.
17 Q. Let me understand something. By the time you started
18 interviewing Mr. Al-'Owhali you knew that there had been a
19 massive destruction and over two hundred dead, and many, many
20 wounded, is that right?
21 A. I didn't know the exact count but I knew it was a terrible
22 tragedy, yes, sir.
23 Q. You knew that the deaths were at least in three figures
24 and the injuries in four. Is that right?
25 A. I don't remember that exactly, sir, but I, I think I know
2064
1 what you're saying, I knew there were a lot of people injured,
2 yes.
3 Q. And you knew with some precision the number of Americans
4 who had been killed at the embassy and the number of Kenyan
5 employees at the embassy because you were there on a criminal
6 investigation, right?
7 A. Like I said, I don't remember the exact numbers. I don't
8 remember being told the exact numbers. I know there was an
9 ongoing process, but I knew there were a number of both
10 American and Kenyan people killed, yes, sir.
11 Q. And you were there on a criminal investigation. This is
12 not an intelligence gathering mission, was it not?
13 A. I went over there to, my general instructions were to
14 assist in whatever way I could in the investigation.
15 Q. Sir, you knew that you were there for the purposes of a
16 criminal investigation?
17 A. For an investigation, yes, sir.
18 Q. Well, the FBI has no foreign intelligence gathering
19 authority, does it?
20 A. I don't work on that side of the house, sir. I'm not
21 really positive on all that.
22 Q. So on the second day, the 13th, he was interviewed again;
23 is that right?
24 A. On the 13th he was, yes, sir.
25 Q. What time did that start and finish?
2065
1 A. I believe that interview started probably around noon or
2 so, lasted a couple of hours.
3 Q. Lasted a couple of hours?
4 A. Actually later in the day, I'm sorry, on the 13th.
5 Q. So during the period from approximately 6 o'clock the
6 night before until a little after 12, whether it was 1 or 2,
7 for that intervening period, you don't know what anybody said
8 to him, right?
9 A. No, sir, I don't.
10 Q. You don't know if he was threatened by the Kenyans?
11 A. No, sir.
12 Q. Did you ever talk to the Kenyan CID agents on a social
13 level? I mean, you know, pass the time of day? They spoke
14 English, right?
15 A. Yes, sir.
16 Q. Did they tell you how upset they were with what happened
17 in their country and to their countrymen?
18 A. They were all, you know, as anybody else would be, they
19 were saddened by what had happened.
20 Q. They were angry, weren't they?
21 A. I didn't see anybody expression any anger, but sadness,
22 more.
23 Q. Well, I mean, if you were in a city where there was a
24 massive explosion and hundreds of your countrymen were killed
25 you'd be angry, wouldn't you?
2066
1 MR. BUTLER: Objection.
2 THE COURT: Sustained.
3 Q. So, anyway, your interview took a couple of -- the second
4 interview took a couple of hours, is that right?
5 A. Generally, sir.
6 Q. Back he went into Kenyan custody, is that right?
7 A. On Tuesday?
8 Q. On Tuesday or whatever day that was. I don't know the
9 days of the week. I'm referring to the 13th.
10 A. I'll say it the same way, then, sir, the 13th he went
11 back.
12 Q. And once again, you don't know what happened? You don't
13 know what was said to him? And you don't know the conditions
14 of confinement?
15 A. Correct, sir.
16 Q. The 14th was there an interview?
17 A. Yes, sir, there was.
18 Q. And what time was that interview?
19 A. I think that day we started much later in the day,
20 probably around 4 o'clock, 3 o'clock, something like that.
21 Q. So by that time, is it fair to say, he had been in
22 custody -- by the way, after the first day, you know, don't
23 you, that he was kept in isolation, that he had no roommates,
24 is that right?
25 A. No, sir, I didn't know that.
2067
1 Q. You didn't know that?
2 A. No.
3 Q. And you don't know that today?
4 A. No, sir.
5 Q. In any event, more or less he was kept by the Kenyans for
6 approximately 24 hours before he saw you between the interview
7 of the 13th and the interview of the 14th?
8 A. I don't know if it was, almost 24 hours.
9 Q. Give or take, I mean we didn't have a stop watch.
10 A. Okay, sir.
11 Q. And how long did that interview take?
12 A. This interview took a couple of hours on the 14th.
13 Q. And then back into Kenyan custody?
14 A. Yes, sir.
15 Q. And there was no interview on the 15th; is that right?
16 A. No, sir.
17 Q. And there was no interview on the 16th; is that right?
18 A. That's correct, sir.
19 Q. So that's another 48 hours unsupervised by American
20 officials in Kenyan custody, is that right?
21 A. Sir, I did see him on the 16th.
22 Q. You saw him on the 16th?
23 A. On the Sunday, the 16th, yes, sir.
24 Q. Went to his cell?
25 A. Yes, sir, he had --
2068
1 Q. You went to his cell, yes?
2 A. Yes, sir.
3 Q. And you were given access by the Kenyan authorities, were
4 you not?
5 A. Yes, sir.
6 Q. And, in fact, you brought him a container of milk, didn't
7 you?
8 A. I believe I did, sir.
9 Q. And so aside from your -- I mean your visit took what, 15
10 minutes?
11 A. About that, sir.
12 Q. You didn't interrogate him?
13 A. No, sir.
14 Q. I mean you weren't authorized to interrogate him under
15 those conditions; is that right?
16 A. There was no authorization or lack of authorization. We
17 just didn't interview him on that day.
18 Q. Your visit with the milk was an act of pure friendship, is
19 that right?
20 A. Yes, sir. Kindness I guess.
21 Q. Guidance?
22 A. Kindness.
23 Q. Kindness?
24 A. Yes, sir.
25 Q. By this time you already, he had been charged with murder
2069
1 by the Kenyan authorities, is that right?
2 A. I don't believe so, sir.
3 Q. You knew by the end of the second day that he was a
4 suspect in the murder investigation; is that right?
5 A. He became a suspect, yes, sir.
6 Q. And so that he was being held on account of it was
7 believed that he had something to do with the murder of many,
8 many people and the serious injury to a lot more, yes?
9 A. I believe so, sir.
10 Q. And so you brought him milk on a sudden whim on the 14th
11 out of pure kindness?
12 MR. BUTLER: Objection to form, your Honor.
13 THE COURT: Sustained.
14 Q. I'll withdraw the sudden whim. You brought him the milk
15 on the 14th -- on that Sunday out of pure kindness?
16 A. When I spoke to him I asked him if he needed anything. He
17 said he would like some milk, and that's why I brought him
18 milk.
19 Q. Sir, sir, I'm asking you a question --
20 MR. BUTLER: Objection.
21 Q. The answer to that is no. What you spoke to him about and
22 what he said is irrelevant.
23 MR. BUTLER: Objection, your Honor.
24 THE COURT: You're asking him what his reason for
25 doing it was. You want a yes or no?
2070
1 MR. COHN: Yes. He said it was kindness, so I'm
2 asking him, is it kindness.
3 THE WITNESS: Yes, sir, kindness.
4 THE COURT: By the way, the day I believe it was
5 testified was Sunday the 16th, not the 14th.
6 Q. Now, on the 17th there was another interview, is that
7 right?
8 A. Monday the 17th, yes, sir.
9 Q. How long was that interview?
10 A. A couple hours.
11 Q. What time did it start?
12 A. I think on Monday we started around 11 o'clock or so.
13 Q. So it went till 1 more or less?
14 A. Maybe 2 or 3.
15 Q. Maybe 2 or 3. So it could have been four hours?
16 A. It could have been four hours, yes, sir.
17 Q. You didn't keep time records on when it started and ended,
18 on this interview?
19 A. I did not.
20 Q. And still no tape recorder?
21 A. No, sir.
22 Q. And afterwards he was put back into Kenyan custody; is
23 that right?
24 A. Yes, sir.
25 MR. BUTLER: Objection to form, your Honor.
2071
1 THE COURT: Sustained.
2 Q. Afterwards he was, the Kenyans took him wherever they take
3 him?
4 A. They brought him back to the holding cell at CID
5 headquarters right in the building that we were interviewing
6 him.
7 Q. Now, on the 18th, no interview?
8 A. No, sir.
9 Q. You didn't bring him milk or anything else that day?
10 A. I don't believe I did, sir.
11 Q. What about the 19th?
12 A. The 19th I don't believe I did, no, sir.
13 Q. You didn't. And there was no interview?
14 A. No, sir, there wasn't.
15 Q. So that was another 48 hours during which there was no FBI
16 supervision of his custody; is that right?
17 A. Supervision, no, sir.
18 Q. And in which you were not present in his cell for any
19 appreciable period of time?
20 A. I may have just checked on him just, you know, maybe I
21 might have saw him face to face, but I didn't interrogate him
22 and I didn't spend a substantial amount of time there, no.
23 Q. And, again, I may have asked you this. You had no control
24 over his conditions of confinement, is that right?
25 A. No, sir, I didn't.
2072
1 MR. COHN: Publish exhibit G, please.
2 Q. Do you recognize exhibit G?
3 A. Yes, sir, I do.
4 Q. And what is it?
5 A. That is a magazine, that would be part of the Sunday
6 newspaper, the Kenyan newspaper.
7 Q. The cover of the magazine to be precise; is that right?
8 A. It's a cover.
9 Q. It's not the whole magazine?
10 A. Sorry, yes, it's the cover of the magazine.
11 Q. You remember that there was a time when you visited his
12 cell and you saw him looking at this magazine; is that right?
13 A. Yes, sir, I did.
14 Q. And did you not instruct the Kenyan guards that they
15 should remove that magazine?
16 A. No, sir.
17 Q. You didn't make such an instruction?
18 A. I had a conversation with them, sir.
19 Q. You had a conversation. And in that conversation you made
20 the suggestion that they get it out of there. Is that right?
21 A. No, sir, I asked them the question, if he's supposed to
22 have anything to read. How did he get that. Is he allowed to
23 read, is he allowed to have that. And they said he's not.
24 Q. And as a result of your conversation or calling it to
25 their kind attention they remove the magazine, is that right?
2073
1 A. That's correct, sir.
2 Q. And in fact, they told you that he was not supposed to
3 have anything to read at all when he was in their custody; is
4 that right?
5 A. I don't believe that was said, sir.
6 Q. Well, you asked is he allowed to have the magazine? They
7 said, no. So I mean --
8 A. Right.
9 Q. I mean did you ask them if he was allowed to read Proust?
10 A. No, I didn't ask him anything like that.
11 Q. Now, on the 20th there was an event, there was an
12 identification parade; is that right?
13 A. Yes, sir, on the 20th.
14 Q. And could you explain to the jury what an identification
15 parade is?
16 A. Yes, sir. An identification parade is a Kenyan term what
17 we would call a lineup. Do you want me to go any further than
18 that?
19 Q. Well, that's -- is it fair to say that it's an opportunity
20 for people who may have had a chance to see somebody do
21 something, see if they can identify him under conditions that
22 are not suggestive?
23 A. I guess you can describe it like that, yes, sir.
24 Q. Is that a fair -- I mean, I'll take any description you
25 want to do?
2074
1 A. It's fair. It's up to you, sir.
2 MR. COHN: Will you publish exhibit D, please.
3 Q. Now, what is exhibit D?
4 A. Sir, this picture on my screen right here is the picture
5 of the people who were part of the lineup. There are nine
6 people in total that the CID had put in to be subjects of the
7 lineup, and Mr. Al-'Owhali is in between the fourth and fifth
8 person.
9 Q. And this picture was taken by one of your colleagues, was
10 it not?
11 A. I may have taken this picture, yes, sir.
12 Q. It's taken by an FBI agent. This is not something that
13 CID took?
14 A. Correct, sir.
15 Q. And Mr. Al-'Owhali is in the center; is that right?
16 A. He's the fifth person from the left, sir.
17 Q. And also the fifth person from the right?
18 A. Correct, sir.
19 Q. The center. Now, a number of people viewed that parade
20 that day; is that right?
21 A. Yes, sir.
22 Q. Six. Is that correct?
23 A. That's correct, sir, six people.
24 Q. And he was identified by the first person; is that right?
25 A. Yes, he was.
2075
1 Q. And the following five people did not identify him; is
2 that correct?
3 A. That's correct, sir.
4 Q. Are you aware that the first person who identified him had
5 assisted in making a composite picture of him?
6 A. At the time then or now?
7 Q. Are you aware of it now?
8 A. I'm aware of it now, yes, sir.
9 Q. Are you aware that one of the people who failed to
10 identify him had also assisted in another composite picture?
11 A. No, sir.
12 Q. And you're not aware of that now?
13 A. No, sir.
14 Q. Okay. But of the six people brought to the parade five
15 failed to identify him?
16 A. Five. One person identified him of the six. The other
17 people didn't pick anyone, no, sir.
18 Q. So six minus one equals five, is that right?
19 MR. BUTLER: Objection, your Honor.
20 THE COURT: Sustained.
21 Q. How long did the parade take?
22 A. I believe it lasted about 45 minutes to an hour.
23 Q. Okay. After that once again the Kenyans took custody of
24 him?
25 A. Yes, sir.
2076
1 Q. Because he was the Kenyans prisoner?
2 A. Yes, sir.
3 Q. On the 21st you had another interview with him; is that
4 right?
5 A. Yes, sir, on the 21st.
6 Q. And how long after the interview -- how long did that
7 interview continue?
8 A. On the 21st I'd say it probably also lasted about two
9 hours.
10 Q. And it was at that point --
11 MR. COHN: Can you put up exhibit I again, please.
12 J, I'm sorry. No, this is it. That's the right one. I'm
13 sorry.
14 Q. It's at that point that you decided to take his
15 fingerprints; is that correct?
16 A. No, sir, that was taken before the interview.
17 Q. That was taken before the interview?
18 A. The fingerprints were taken before the interview.
19 Q. And what about exhibit J, before or after the interview?
20 A. Before the interview.
21 Q. And K, before the interview?
22 A. All three of those photos were taken before the interview.
23 Q. By the way, there is a system in place in Kenya for
24 logging in photographs as exhibits; is that right?
25 A. I'm not sure, sir.
2077
1 Q. You're not sure?
2 A. I'm not sure.
3 Q. Nobody told you about what to do with photographs if you
4 took them. Is that right? You were not briefed on this?
5 A. For the Kenyans?
6 Q. No, by the Americans. By the FBI itself.
7 A. Is there an FBI procedure what to do with photographs?
8 Q. Yes.
9 A. Yes, sir.
10 Q. And there was one in place in Kenya, was there not?
11 A. Yes, sir.
12 Q. And in fact, there was somebody who was in charge of that,
13 was there not?
14 A. More or less, yes, sir.
15 Q. Were these photographs logged in?
16 A. No, sir, they weren't.
17 Q. And, in fact, in regard to J and K, you kept them as
18 memorabilia for a while, did you not?
19 A. Not true, sir.
20 Q. Well, you testified at another proceeding, did you not?
21 A. Yes, sir, I did, sir.
22 Q. And at the other proceeding, as part of the other
23 proceeding, you were asked to read in advance an affidavit
24 made by a public official; is that right?
25 A. More or less, yes, sir.
2078
1 Q. And you testified at that proceeding, did you not, that
2 you had looked at it very carefully, and that the
3 representations made in it were true, is that right?
4 A. To the best of my ability, yes, sir.
5 Q. And were you aware when you looked at it that there was a
6 note that said that you had taken these pictures and placed
7 them in memorabilia, and that only later had you realized
8 their importance and brought them recently? Do you recall
9 that?
10 A. I don't recall that exact word, no, sir.
11 Q. You don't?
12 A. No, sir.
13 Q. Do you recall any approximate wording like that?
14 A. Not really, sir, no. I took pictures, I found those
15 pictures much later after I was asked to find any pictures of
16 Mr. Al-'Owhali's cell and I found those pictures.
17 Q. You found them much later. What do you mean by much
18 later, a year?
19 A. I found these pictures in January of this year.
20 Q. This year?
21 A. Of 2001.
22 Q. Of 2001?
23 A. Yes, sir.
24 Q. After they were taken on the 21st of August, 1998?
25 A. Yes, sir.
2079
1 Q. And where did you find these pictures?
2 A. Someone had given those pictures to me much later. They
3 didn't get those pictures while I was in Kenya. I got them
4 somewhere when I was in transfer back and forth between the US
5 as I continued on in this investigation. I put those pictures
6 in an accordion folder along with other miscellaneous
7 documents. By the time I got those pictures, by the time I
8 actually received a hard copy of those pictures they were
9 pretty much irrelevant to me to tell you the truth.
10 Q. Well, let me ask you, is it fair to say that when those
11 pictures J and K were taken you already knew that
12 Mr. Al-'Owhali had expressed a preference to be -- withdrawn.
13 At the time you took those pictures you knew that
14 Mr. Al-'Owhali was about to confess, didn't you?
15 A. No, sir, I didn't.
16 Q. You didn't?
17 A. No, sir.
18 Q. You didn't know that Mr. Al-'Owhali would the next day say
19 he would rather be, that in consideration of being tried in
20 America rather than Kenya -- by the way, does Kenya have a
21 death penalty?
22 MR. BUTLER: Objection, your Honor.
23 THE COURT: Sustained.
24 Q. Well, do you know if Kenya has a death penalty?
25 MR. BUTLER: Objection.
2080
1 A. I do not, sir.
2 MR. COHN: I'm sorry. I didn't hear the Court's
3 ruling. He said, I did not. Okay, he doesn't know.
4 THE COURT: The witness has responded.
5 Q. In all the time you were there --
6 THE COURT: Give me an opportunity to rule before you
7 answer.
8 Q. In all the time you were there you never discussed with
9 your CID colleagues what the potential penalty in Kenya was
10 for killing two hundred people?
11 MR. BUTLER: Objection, your Honor.
12 THE COURT: Sustained.
13 Q. So let's go back. It's your testimony that you didn't
14 know at the time you took those pictures, which didn't show up
15 for a year and a half, that the interrogation had been
16 successful and he was about to agree to come to the United
17 States. Is that right?
18 A. That's correct, sir. I did not know that he was going to
19 confess when we took those pictures or those fingerprints.
20 MR. COHN: Put up exhibit C.
21 Q. Do you know when that picture was taken?
22 A. I don't know the exact date, sir, but I believe it was
23 taken after the 20th of August. I'm sorry, after the 20th of
24 August.
25 Q. So the 21st or thereafter?
2081
1 A. I'm sorry, when I say after the 20th, I mean the 20th or
2 thereafter.
3 Q. Thereafter.
4 A. Right.
5 Q. Close upon the time in which the government agreed to take
6 Mr. Al-'Owhali to the United States where he wanted to be; is
7 that right?
8 MR. BUTLER: Objection, your Honor.
9 MR. COHN: I'm sorry, your Honor?
10 THE COURT: Restate the question.
11 MR. COHN: I don't think I have to, your Honor. I
12 have nothing further.
13 THE COURT: Anybody else?
14 MR. RICCO: Yes, your Honor.
15 MR. COHN: Excuse me, your Honor. Just bear with me.
16 (Pause)
17 MR. COHN: Thank you. I am through.
18 THE COURT: Mr. Ricco on behalf of defendant Odeh.
19 MR. COHN: Your Honor, I'm sorry. I apologize. A
20 couple of more questions.
21 Q. When you interviewed him on the 22nd he gave you a rather
22 extensive personal history, didn't he?
23 A. If you mean he described in detail about his training in
24 Afghanistan, yes, sir.
25 Q. Well, he said, for instance, that his mother had a
2082
1 profound effect on him and that she placed him in religious --
2 and that's why he had such a religious upbringing, did he not
3 tell you that?
4 A. He, there was a number of reasons why his religion became
5 so important to him. I believe one of them was his mother was
6 influential in religion.
7 Q. Well, if you need to refresh your recollection, why don't
8 you look at your report on page 2?
9 A. Report I looked at earlier, sir?
10 Q. Yes.
11 A. Okay, sir.
12 Q. Look at the second paragraph. Did he tell you about his
13 mother's having a profound effect on him and his strong
14 religious upbringing?
15 A. Yes, sir.
16 Q. He told you that around age 14 he began being
17 indoctrinated in conservative Islamic teaching?
18 A. Yes, sir.
19 Q. By the way, again, you mentioned it on direct, he was born
20 on January 18th?
21 A. I believe I said that, yes, sir.
22 Q. 1977?
23 A. I believe so.
24 Q. And in 1989 he would have been how old?
25 A. 12? 1989?
2083
1 Q. Yes.
2 A. Ten in '87, about 12.
3 Q. And he said that he secretly read magazines which promoted
4 his religious beliefs among which were Al Jihad, is that
5 right?
6 A. Yes, sir.
7 Q. And that he admired books on people who had been martyred
8 in the defense of Islam; is that right?
9 A. Something to that effect, yes.
10 Q. He told you that during his high school years all he cared
11 about was the Muslim brotherhood, didn't he?
12 A. Yes, sir.
13 Q. Now, and he also said that the college he went to for two
14 years was a college that was primarily engaged in religious
15 teaching, did he not?
16 A. He described it as a religious university.
17 Q. Now, you testified on direct, also, I believe, that he
18 went to Afghanistan and went to training schools there, is
19 that right?
20 A. Yes, sir.
21 Q. And he went there before he had met Usama Bin Laden; is
22 that right?
23 A. I believe so, sir.
24 Q. And he didn't meet Usama Bin Laden until he had finished
25 some training and afterwards he got other training; is that
2084
1 right?
2 A. Based on what he told me, yes, sir.
3 Q. Now, you don't believe that he was a confidante of Usama
4 Bin Laden, do you?
5 A. I don't know to answer that sir.
6 Q. I mean he's 22, or 21, right?
7 A. I don't see what that has to do --
8 Q. Do you know what confidante means?
9 A. You mean was he --
10 Q. Was he inducted --
11 A. Got close to him?
12 Q. -- into the higher circles of Usama Bin Laden who
13 consulted him on important decisions?
14 A. He told me that he had sought a decision directly from
15 Usama Bin Laden, was what he told me.
16 Q. His mission was to kill himself, is that right?
17 A. He didn't tell me at that time, no, sir.
18 Q. That's what you know, right?
19 A. That's one of the missions he got.
20 Q. He was supposed to take all this training and all their
21 association and blow himself up, right?
22 A. If he chose to accept the mission, yes, sir.
23 Q. That's what he was supposed to do and he did, didn't he?
24 A. He didn't blow up, sir, no.
25 MR. COHN: No. And you told us the reason why not.
2085
1 Thank you very much.
2 THE COURT: Mr. Ricco on behalf of Mr. Odeh.
3 MR. RICCO: Just a few requests.
4 CROSS-EXAMINATION.
5 BY MR. RICCO:
6 Q. Good morning, Agent Gaudin.
7 A. Good morning, sir.
8 Q. I just want to ask you a few questions.
9 During your interview with Mr. Al-'Owhali you
10 discovered a great deal of information about the bombing of
11 the US embassy, isn't that right?
12 A. That's correct, sir.
13 Q. Now, Mr. Al-'Owhali explained to you in detail his
14 involvement, correct?
15 A. His involvement, yes, sir.
16 Q. He also explained to you and identified to you names of
17 other individuals that participated in the execution of the
18 bombing, isn't that correct?
19 A. Yes, sir.
20 (Continued on next page)
21
22
23
24
25
2086
1 Q. He also explained to you in detail the names of
2 individuals who had participated, to his knowledge, in the
3 planning of the bombing?
4 A. What he said to me regarding the names, sir, were things
5 were going to be code names -- I'm sorry, the names that he
6 was going to describe to me during the interviews would be
7 code names or movement names. They may not in fact be
8 people's true names but the names that he may have known them
9 as.
10 Q. Okay. And one of those names, code names, movement names,
11 was a name Harun?
12 A. Harun, yes, sir.
13 Q. And another one was the name Saleh?
14 A. Saleh, yes, sir.
15 Q. And another one was Ahmed Abdallah, also known as Ahmed
16 the German, correct?
17 A. That was another one, yes, sir.
18 Q. And another one was the name of a young man named Azzam,
19 who blew himself up in the execution of the bombing; isn't
20 that correct?
21 A. Yes, sir.
22 Q. In addition to the names, he also named a person named
23 Khalid, a Saudi Arabian who provided him with instructions
24 regarding his role even before he got to Nairobi, isn't that
25 right?
2087
1 A. Yes, sir, that's true.
2 Q. And these individuals, he gave you more than just a name,
3 he described them, right?
4 A. To a certain degree, yes, sir.
5 Q. As best he could?
6 A. I wouldn't go as far as "as best he could." As best as he
7 wanted to tell me, sir.
8 Q. Let's see. For example, he told you what Harun looked
9 like, his complexion?
10 A. That's true.
11 Q. His height?
12 A. Yes, sir.
13 Q. His weight?
14 A. Approximately.
15 Q. Right?
16 A. Yes, sir.
17 Q. He did the same with each one of these individuals; isn't
18 that correct?
19 A. That's correct, sir.
20 Q. He also looked at photographs and said "that's the guy
21 Harun" when he looked at the videotape?
22 A. Yes, sir.
23 Q. When he looked at another photograph, he said "that's the
24 guy Azzam"?
25 A. That's correct, sir.
2088
1 Q. Now, he also told you that he stayed at a house that was
2 either owned by or under the direction of Harun; isn't that
3 correct?
4 A. That's correct.
5 Q. And he said at the house he was advised and told that the
6 bomb was made at the house; isn't that correct?
7 A. That's correct, sir.
8 Q. He also said that he had been shown photographs and
9 diagrams of the embassy at the house, that's what he told you,
10 right?
11 A. Yes, sir.
12 Q. He also indicated to you that he had left the keys and
13 bullets behind in a location, correct?
14 A. Yes, sir.
15 Q. And when the Kenyan investigators or people went out, they
16 actually found those things in the place that he said he left
17 them at, isn't that right?
18 A. They were found before he told us about them, sir. The
19 keys and the bullets were found where ultimately he said they
20 were, but not because he told us. The Kenyans had already
21 found those bullets and then he told us where they were.
22 Q. Okay.
23 A. Okay, I'm trying to clarify.
24 Q. He told you the bullets were left somewhere and, lo and
25 behold, they were left there?
2089
1 A. That's true, sir.
2 Q. And this young man gave you more information about his
3 role and the others; isn't that correct?
4 A. Yes, sir.
5 Q. I think I said this, but he also indicated that there were
6 surveillance photographs and diagrams shown to him of the
7 embassy?
8 A. Yes, sir.
9 Q. He also said that Saleh took him out to look at the
10 embassy?
11 A. That's correct.
12 Q. Right?
13 A. Yes, sir.
14 Q. And during the interview of him over these days, several
15 photographs were shown to young Al-'Owhali; isn't that
16 correct?
17 A. That's correct, sir.
18 Q. And one of the photographs that you showed him was a
19 photograph of Mohamed Odeh?
20 A. That's not true, sir.
21 Q. Okay. You did not show him a photograph of Mohamed Odeh?
22 A. No, sir, I did not.
23 Q. Was that a conscious decision?
24 A. On my part it was, yes, sir.
25 Q. And did he ever mention to you that Mohamed Odeh had
2090
1 anything whatsoever to do with the bombing, the execution of
2 or the planning of the bombing of the United States embassy?
3 A. He never mentioned Odeh's name, no, sir.
4 MR. RICCO: I have no further questions. Thank you
5 very much, your Honor.
6 THE COURT: Anything further from defendants with
7 respect to this witness?
8 MR. DRATEL: No, your Honor.
9 MR. COHN: No, your Honor.
10 THE COURT: We'll take a brief recess.
11 (Jury not present)
12 THE COURT: I want to resolve the matter of a
13 limiting instruction before we begin redirect.
14 I'll be in the robing room. Please let me know
15 whether you have reached an agreement on it or not.
16 (Recess)
17 THE COURT: Have counsel reached an agreement as to
18 the language of the instruction?
19 MR. KARAS: We're just trying to hone in the last
20 couple of sentences, your Honor.
21 THE COURT: Last couple of sentences?
22 MR. DRATEL: Last sentence.
23 MR. KARAS: Last sentence, actually.
24 MR. FITZGERALD: In the meantime, your Honor, if I
25 could just put on the record that the following witness will
2091
1 be Charles Mwaka Mula, and we would not like him sketched to
2 prevent the identification of the witness.
3 THE COURT: Anyone here from CNN or any other press?
4 Any press present?
5 (Hands raised in the gallery)
6 THE COURT: All right, if any sketch artist arrives,
7 would you please advise that the next witness's facial
8 features should not be sketched.
9 A MARSHAL: Yes, your Honor.
10 MR. FITZGERALD: And the witnesses following him
11 until Donald Sachtleben -- Sachtleben is an FBI agent, but the
12 civilians until Sachtleben, we would object to the sketching.
13 MR. COHN: Your Honor, my client has an application
14 which should be made in closed court.
15 THE COURT: He has an application?
16 MR. COHN: Yes, your Honor. It's going to have to be
17 separate.
18 THE COURT: It's something that has to be dealt with
19 now?
20 MR. COHN: I believe so. It's probably not a subject
21 that should be raised with other counsel.
22 THE COURT: All right. I will see the defendant
23 Al-'Owhali and Mr. Cohn and the court reporter in the robing
24 room, and that will give other counsel an opportunity to work
25 out the language.
2092
1 It's not the most complex school of evidence that one
2 is confronted with.
3 (Pages 2093 through 2096 filed under seal)
4 (Continued on next page)
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2097
1 (In open court)
2 THE COURT: Two matters: First matter is, has there
3 been an agreement on the language?
4 MR. KARAS: Yes, your Honor.
5 THE COURT: With what, does somebody have it in
6 writing?
7 MR. KARAS: I have it in writing, yes.
8 THE COURT: Will you state it on the record.
9 MR. KARAS: Yes, Judge. The instruction would be as
10 follows:
11 You have heard testimony regarding the statements
12 allegedly made by the defendants Odeh and Al-'Owhali. You may
13 consider these statements as evidence of the activities only
14 of the people who made the statements, and that is relevant to
15 the case.
16 You may consider the evidence of these statements if
17 you feel that they are probative in this direction. You may
18 consider the evidence of these statements on the issue of
19 whether there was or was not a conspiracy to kill United
20 States nationals or a conspiracy to bomb buildings or the
21 other charged conspiracies, and whether the conspiracies
22 included the bombings of the embassies in Nairobi, Kenya and
23 Dar es Salaam, Tanzania.
24 I remind you that the defendant El Hage is not
25 charged with participating in the embassy bombings.
2098
1 At the end of the trial I will give you the
2 instructions on the law that you will apply to this case.
3 Among those instructions will be further guidance on the use
4 of the statements allegedly made by the defendants and any
5 limitation.
6 The reason for that, your Honor, is as follows: The
7 statements, in addition to being probative of the existence
8 and the scope of the charged conspiracies, may also be
9 relevant to the defendant Odeh and the defendant Al-'Owhali as
10 to the Dar es Salaam bombings which may rest on a Pinkerton
11 theory, and there is some support in the case law that
12 suggests that statements that come in under 804(b)(3) may be
13 used in those circumstances but would not be admissible
14 against the defendant El Hage.
15 THE COURT: Mr. Dratel, that statement is acceptable
16 to you?
17 MR. DRATEL: With the understanding with the
18 government, and just to alert the Court, that that last
19 sentence, which is that the Court -- that the jury will be
20 further instructed really relates to delineating the
21 difference between the defendants, which we all feel too
22 complex right now in terms of Pinkerton v. non-Pinkerton and
23 the limitation of the use of the statements against El Hage.
24 THE COURT: There are very serious Pinkerton issues
25 in this case, but I didn't think we were addressing them now.
2099
1 I thought we were addressing the ability of the jury to use a
2 statement made by co-conspirator not in furtherance of the
3 conspiracy with respect to other defendants. That is what I
4 thought was the thrust of your request for a limiting
5 instruction.
6 And I don't know that that really addresses it, but
7 if there is unanimous agreement that that is a limiting
8 instruction that I should give, I will give it. And I will,
9 of course, in my final instructions to the jury, spell out at
10 greater length the difference between statements made in
11 furtherance of a conspiracy and furtherance statements which
12 are not in furtherance of the conspiracy.
13 MR. DRATEL: If I may have one second, your Honor.
14 THE COURT: One other matter, and that is I am going
15 to allow Mr. Cohn to ask some further questions on
16 cross-examination before the government's redirect.
17 MR. DRATEL: Your Honor, we've discussed with counsel
18 with the government. We'll hold off on it right now.
19 THE COURT: We'll hold off on what?
20 MR. DRATEL: The instruction.
21 THE COURT: On any instruction?
22 MR. DRATEL: On any instruction right now.
23 THE COURT: I'm not entirely comfortable with that.
24 I think the instruction is, if anything, somewhat late and I'm
25 just sort of wondering about all the time we spent yesterday
2100
1 morning on matters that I think are of considerably less
2 moment.
3 I will tell the jury that I will in due course
4 explain to them the extent, if any, to which statements made
5 by Al-'Owhali while he was in custody may be used with respect
6 to the other defendants, and that they should now just bear in
7 mind that such instruction will ultimately be given.
8 All right, let's bring in the witness and the jury.
9 (Jury present)
10 THE COURT: Ladies and gentlemen, I just want to
11 alert you to one matter, which I will address later, and that
12 is there are special rules of evidence which relate to the
13 extent, if any, to which statements made by an alleged
14 conspirator after he is in custody, the extent to which such
15 statements may be used or considered by you with respect to
16 other defendants.
17 And I will certainly, before you begin any
18 deliberation, explain in some detail those rules, and my only
19 point now is to alert you that those instructions will be
20 given to you and that there are special rules which do apply
21 when a statement is made by a codefendant after he is arrested
22 with respect to the circumstances surrounding the matters
23 about which he is questioned.
24 Mr. Cohn has requested on behalf of defendant
25 Al-'Owhali that he be permitted to reopen cross-examination,
2101
1 and I have granted that request.
2 CROSS-EXAMINATION
3 BY MR. COHN:
4 Q. Agent Gaudin, I'm going to ask you a number of questions
5 about the interrogation, the general interrogations over the
6 period of time that you did it, and I'm not asking you for the
7 content, I'm asking you for other things. And so if there is
8 any misunderstanding or you think that the content is called
9 for, please tell me, because that's not what I'm asking, okay?
10 A. I just wanted -- I'm already just a little bit confused,
11 but I'll try to follow your instructions.
12 Q. I'll give you an example. During the period of, the
13 general period of the investigation, is it fair to say that
14 Mr. al-'Owhali became angry from time to time?
15 I'm not asking you what he said, I'm asking you --
16 A. Okay.
17 Q. I'm asking you, did he become angry from time to time?
18 A. There were a couple of times when he was angry.
19 Q. Very well. Angry?
20 A. He became angry, yes.
21 Q. And he exhibited that anger by appearing angry?
22 A. Yes, sir.
23 Q. Were there times when he appeared terribly worried about
24 his predicament?
25 A. I'm not sure what you mean by "terribly worried about his
2102
1 predicament."
2 MR. COHN: Will you bear with me for a second, your
3 Honor?
4 THE COURT: Yes.
5 (Pause)
6 BY MR. COHN:
7 Q. Now, were there times when he was upset?
8 A. Along the same times that he was angry, I would say angry
9 or upset, yes, sir.
10 Q. Well, I mean, so he did exhibit, from time to time, upset
11 during this process?
12 A. Yes.
13 Q. And were there times when, as part of the investigative
14 process, you made certain accusations about what you thought
15 he might have done?
16 A. I expressed upon him things that I thought I knew, yes,
17 sir.
18 Q. And did you ever show him pictures, for instance, of the
19 bombing of the Al Ameriyah Shelter?
20 A. The what shelter, sir?
21 Q. Al Ameriyah Shelter in Lebanon?
22 A. No, sir, I did not.
23 Q. Never did?
24 A. No, sir.
25 Q. There were times when he evasive, was he not?
2103
1 A. That's correct, sir.
2 Q. Getting back to this advice of rights that was -- you say
3 was given to him when he -- on the 12th?
4 A. On the 12th, yes, sir.
5 Q. Did you tell him when you arrested him on the 12th that he
6 was entitled to a lawyer?
7 MR. BUTLER: Objection to form.
8 Q. Did you tell him he had a right to remain silent?
9 THE COURT: I --
10 MR. COHN: I'm sorry, your Honor. I'll withdraw the
11 question. I'll do it over again.
12 Q. Did you tell him he had a right to remain silent?
13 A. I would feel move comfortable if I had the actual form
14 here, but I believe he did say that.
15 Q. Did you tell him if he was in America he would have a
16 right to a lawyer, but since he wasn't in America, that one
17 would not be provided?
18 A. That wasn't the exact wording. As I remember it, it
19 was --
20 Q. Did you tell him if he was in America, that he would have
21 a right to a lawyer?
22 A. I explained that to him, yes, sir.
23 Q. And it was clear to you that you were not in America; is
24 that right?
25 A. We were in Kenya, sir.
2104
1 Q. And it was clear to you that, therefore, no lawyer could
2 be provided to him; is that right?
3 A. No, that wasn't clear to me, sir.
4 Q. It wasn't clear to you?
5 A. No.
6 Q. You thought that if he asked for a lawyer, one would be
7 provided for him?
8 A. What the form said, and what I explained to him, sir, was
9 that because we're not in America, that I myself, as an agent
10 of the FBI, cannot guarantee that he would be afforded one in
11 the manner in which, if we were in the United States, he would
12 be guaranteed an attorney.
13 Q. In fact, if he had asked for a lawyer, you would have had
14 to stop questioning and leave him with the -- to whatever CID
15 was going to do under their law, right?
16 A. If he had asked for a lawyer, sir, I would have had to
17 stop interviewing him, correct.
18 Q. And you would have left and CID would have continued to
19 question or not as they saw fit?
20 A. He was in their custody, yes, sir, whatever they decided.
21 Q. And in fact, you told him that, didn't you?
22 A. It -- he never, he never balked at what we had read to
23 him, sir, and he agreed to talk with us from the beginning.
24 So that conversation didn't happen.
25 Q. On the morning of the 12th you asked him -- you read him
2105
1 his rights, so to speak, in English, right?
2 A. On the morning of the 12th, in English, yes, sir.
3 Q. So he didn't know -- well, he didn't speak much English,
4 does he?
5 A. The way it happened, sir --
6 Q. Sir, does he speak much English?
7 A. He speaks some broken English.
8 Q. Not enough to understand a complicated advice of rights,
9 does he?
10 A. He said he understood at that reading, yes, sir.
11 Q. He said he understood?
12 A. Yes. He said he couldn't read it, but if we were to read
13 it to him, and slowly, he would stay along. And he agreed at
14 the end of it, and as we were reading it to him, that he
15 understood what we were saying.
16 Q. He never -- but ultimately, after an hour, you decided
17 that it was not productive to continue this in English, he
18 needed an interpreter, is that right?
19 A. I felt it would be better for everybody involved if we had
20 an interpreter.
21 Q. So that's when you got the interpreter and the blanket,
22 right?
23 A. Got the interpreter, yes, sir.
24 Q. And then you say that the rights were read to him in
25 Arabic?
2106
1 A. The same form was read to him again in Arabic, yes, sir.
2 Q. You read it and the interpreter interpreted?
3 A. I believe so.
4 Q. You know that what she said is exactly what you said?
5 A. To the best of my recollection, I don't speak Arabic, but
6 I believe, I believe she was speaking it to him, and he said
7 that he understood it in Arabic now as we had read it to him
8 in English.
9 Q. You don't know whether she said to him that, if you don't
10 answer questions, we'll leave you with the Kenyans?
11 A. No, sir, I don't know that.
12 Q. You don't know that?
13 A. No, sir.
14 Q. And you wouldn't know that she didn't? It's just your
15 expectation that she didn't?
16 A. Based on what Mr. al-'Owhali said to me, I didn't think --
17 I didn't think that she had derived from the form at all based
18 on his response.
19 Q. You think that if she said that, he would have complained
20 to you, as his protector?
21 A. I don't know what he would have said, sir.
22 Q. That's fair.
23 There were times Mr. al-'Owhali, during these
24 investigations or interrogations, became, I think you -- did
25 you characterize his conduct as agitated?
2107
1 A. Or angry, yes, sir.
2 Q. You did use the word "agitated" from time to time?
3 A. I could have. I'm not sure.
4 Q. Let me --
5 MR. COHN: May I approach, your Honor?
6 THE COURT: Yes.
7 Q. Let me show you a document of the government, a report of
8 yours of 8/13/98; ask you to look at the last paragraph.
9 A. Yes, sir.
10 Q. Did you use the word "agitated"?
11 A. The word "agitated" is used there, yes, sir.
12 Q. And you wrote it?
13 A. This particular report I did not write. I had co-authored
14 it, meaning I just, after the person who was responsible for
15 writing it did write it, I agreed in context what it said.
16 Q. You read it?
17 A. I did read it.
18 Q. And after reading it, you signed it as authorizing it as a
19 co-author?
20 A. That's right.
21 Q. Is it fair to say, sir, that over the period of the nine
22 days that he was interrogated and left in isolation various
23 times --
24 MR. BUTLER: Objection.
25 THE COURT: Sustained.
2108
1 MR. COHN: May I finish the question?
2 THE COURT: Sustained.
3 Q. Over the period of the nine days of interrogations and
4 periods when you did not see him, that he became progressively
5 more and more agitated for more of the time?
6 A. I wouldn't say that.
7 Q. You would not?
8 A. No, sir.
9 MR. COHN: Bear with me one minute, your Honor.
10 (Pause)
11 MR. COHN: I have nothing further.
12 THE COURT: Government redirect.
13 MR. BUTLER: Briefly, your Honor.
14 REDIRECT EXAMINATION
15 BY MR. BUTLER:
16 Q. Agent Gaudin, Mr. Cohn asked you some questions about, on
17 cross-examination about the interviews that took place from
18 August 12th to August 21st. Remember those questions?
19 A. Yes.
20 Q. And during those interviews, did you take breaks during
21 those interviews?
22 A. Yes, we did.
23 Q. And was Mr. al-'Owhali permitted to pray during those
24 interviews?
25 A. Whenever he asked to pray, he was granted the opportunity
2109
1 to pray, yes, sir.
2 Q. And was Mr. al-'Owhali given food during the course of
3 those interviews?
4 A. Whenever he asked for it, he was.
5 Q. And did you voluntarily give him food, even if he didn't
6 ask for it?
7 A. Yes. There were times that I became hungry during this
8 process and I would take food out for myself, whether it be a
9 candy bar or whatever I had with me, and I didn't feel right
10 eating it in front of anyone in the room. I would ask them if
11 they wanted some and I asked him if he wanted some. Sometimes
12 he took it, sometimes he didn't.
13 Q. During these interviews from August 12th on to August
14 21st, did Mr. al-'Owhali ever complain about the treatment
15 that he was receiving?
16 A. He never complained to me once about his treatment.
17 Q. Did he ever complain about the treatment he was receiving
18 from the Kenyans?
19 A. He never once complained about his treatment at all.
20 Q. During this period did you ever hear anyone threaten
21 Mr. al-'Owhali?
22 A. No, I did not.
23 Q. During the course of these interviews that took place
24 between August 12 and August 21, was Mr. al-'Owhali ever
25 handcuffed in your presence?
2110
1 A. In my presence, I never saw him in handcuffs, no, sir.
2 Q. Was there ever any occasion when you helped take him from
3 the cell to the interview room?
4 A. Many occasions. I went with -- I went whatever time the
5 interview was going to start, I went to the cell and would
6 walk right to the interviewing room with him.
7 Q. While he was brought from the cell to the interview room,
8 was he handcuffed?
9 A. No, he was not.
10 Q. Did Mr. al-'Owhali ever say anything to you about being in
11 pain during the course of these interviews?
12 A. He never complained about being in pain to me, sir.
13 Q. And prior to the time that he received medical treatment
14 on August 18, did he ever ask for medical treatment in your
15 presence?
16 A. Not in my presence, no, he didn't.
17 Q. Were you there on August 18 when he received the medical
18 treatment?
19 A. Yes, I was.
20 Q. What did they do for him?
21 A. They took a look at the stitches that had, that he had
22 received when he had got treated on the 7th of August, and the
23 doctor and the paramedic that were there decided it was
24 probably time for them to come out. So they removed the
25 stitches from him -- it was right in the interview room where
2111
1 we were talking to him. They removed his stitches and they
2 applied some sort of antibiotic or some sort of ointment onto
3 the wounds, and it was a very congenial process.
4 Q. I believe you testified on cross-examination that after
5 the interview on August 12, Mr. al-'Owhali was taken to a cell
6 not at the CID headquarters, correct?
7 A. That's correct, on the 12th he went to some other
8 location.
9 Q. And you also testified about visiting him in his cell on
10 August 16th, correct?
11 A. Yes, I did.
12 Q. Where was that cell?
13 A. On the 16th he was housed at CID headquarters in Nairobi
14 in the same complex, same building that we were interviewing
15 him.
16 Q. Approximately when was he transferred from this cell
17 outside the facility's headquarters back to the cell in CID
18 headquarters?
19 MR. COHN: Objection. Foundation.
20 Q. Did there come a time when he was eventually placed in a
21 cell in CID headquarters?
22 A. Yes, he was.
23 Q. When was he placed in the cell in CID?
24 MR. COHN: Objection. How does he know?
25 THE COURT: If he knows.
2112
1 Q. When is the first time you saw him in the cell in CID
2 headquarters?
3 A. The first time I saw him physically in the cell was on
4 Sunday, the 16th.
5 Q. You said that you would go down and pick him up to take
6 him to the interrogations, correct?
7 A. That's correct.
8 Q. And do you know when -- were you ever informed when he was
9 taken to the cell at CID headquarters?
10 A. Yes, I was.
11 MR. COHN: That's a yes or no answer.
12 Q. When was that?
13 MR. COHN: Objection.
14 THE COURT: Overruled.
15 A. I believe it was on Friday, the 14th, is when he started
16 to stay at CID headquarters.
17 Q. And you testified that you also brought him some milk
18 while he was in that cell, right?
19 A. Yes, I did.
20 Q. Where did you bring him that milk?
21 A. He asked for some milk. I had saw him in there. I saw
22 him, he was eating, and I asked him if he was okay, if he
23 needed anything else, and he said he would like some milk and
24 I arranged for some milk to be brought to him.
25 Q. Now, there came a time when he participated in an
2113
1 identification parade, correct?
2 A. Yes, he did.
3 Q. And that was on August 20th, I believe you testified?
4 A. Thursday, the 20th.
5 Q. And six people viewed the identification parade, correct?
6 A. That's right, six people.
7 Q. Who chose the people who were selected to view the
8 identification parade?
9 A. The Kenyan CID people chose who were going to be the
10 persons who would view the identification lineup.
11 Q. Mr. Cohn showed you a photograph that was introduced as
12 Defense Exhibit C.
13 Could we bring up Defense Exhibit C, please.
14 I believe you testified that this photograph was
15 taken some time after the identification parade, correct?
16 A. That's correct.
17 Q. Did you take this photograph?
18 A. No, I did not.
19 Q. Do you know who took this photograph?
20 A. I don't know exactly who took it, but it would -- I
21 believe it was a reporter from the Kenyan newspaper.
22 Q. When is the first time that you saw this photograph?
23 A. It was on Saturday, August 22.
24 Q. Where did you see it?
25 A. It was in the newspaper in Kenya.
2114
1 Q. During this period between August 12 and August 21 were
2 you ever alone with Mr. Al-'Owhali?
3 A. Yes, I was.
4 Q. When were you alone with Mr. Al-'Owhali?
5 A. Whenever he requested to pray, he would have to go to the
6 bathroom and wash himself in preparing to pray, and it was
7 something that I had never seen before so I had asked him to
8 explain to me what he was doing. And he did. So whenever he
9 needed to pray and we would leave the room together and I
10 would go with him to the bathroom, he would show me his
11 washing ritual and actually tell me why and what he was doing,
12 amongst other things.
13 Q. And during this period that you were alone with
14 Mr. Al-'Owhali, did he ever complain to you about the
15 treatment he was receiving from the Kenyans?
16 A. No, he did not.
17 Q. Going ahead to August 21st, first, I believe Mr. Cohn
18 showed you three photographs identified as Defense Exhibits I,
19 J and K, which were the photos of you taking fingerprints and
20 in the cell with Mr. Al-'Owhali.
21 Why did you take those photographs, Agent Gaudin?
22 A. On August 20th, the day before these pictures were taken,
23 the United States had launched cruise missiles into
24 Afghanistan and Sudan --
25 MR. COHN: Objection, your Honor.
2115
1 THE COURT: Overruled.
2 A. -- in retaliation for the attacks on the two embassies,
3 two American embassies. We didn't know anything about that,
4 being in Kenya when that had happened. We actually viewed it
5 on the news. Our leadership, the FBI leadership, was very
6 worried about the large American presence overseas --
7 MR. COHN: Objection as to the leadership's state of
8 mind.
9 THE COURT: Yes. Sustained.
10 Q. Were you told anything as a result of the missile strikes
11 about what you might be doing in Kenya?
12 A. I was told because of --
13 THE COURT: After you were told that, then what?
14 After he was told, what did you do?
15 Q. What did you do after you had these conversations?
16 A. We were told that --
17 THE COURT: No, no. What did you do after you
18 received information?
19 THE WITNESS: We prepared to leave Kenya.
20 Q. And so why did you take the photographs on August 21?
21 A. As we prepared to leave Kenya, I had realized that I
22 hadn't -- I didn't have a set of fingerprints for
23 Mr. al-'Owhali, so I asked Kenya investigators if I could get
24 a copy. They explained to me that they don't fingerprint
25 people until right before they're actually charged. In the
2116
1 investigative process, they don't take the fingerprints.
2 So I asked if it would be all right if I could take
3 some fingerprints for him, and they said it would be okay.
4 And it took some time to gather up whatever I could to take
5 his fingerprints. It wasn't very readily available over
6 there. So I took his fingerprints.
7 At that time, I saw that someone had a camera and I
8 realized, I know I took pictures of him on the 12th, but I
9 didn't know where those pictures exactly were and I figured it
10 would be a good idea to have a picture of him, and that's why
11 I took the picture. That's why the picture was taken and the
12 fingerprints.
13 Q. Moving ahead to the interview that took place after you
14 took these photographs, and without describing any of the
15 conversation that you had with Mr. Al-'Owhali, did you show
16 Mr. al-'Owhali anything during the course of these interviews?
17 A. On the?
18 Q. On the 21st?
19 A. Yes, I did.
20 Q. What did you show him?
21 A. I showed him some phone records. I showed him some
22 photographs of a house.
23 Q. What house was that?
24 MR. COHN: Objection.
25 THE COURT: Overruled.
2117
1 A. 43 Runda Estates, Harun's house, as I knew it. I knew it
2 to be Harun's house.
3 Q. Going back for just a moment to the interviews that took
4 place between August 22nd and August 26th, I believe counsel
5 for Mr. Odeh asked you some questions about what
6 Mr. Al-'Owhali told you during those interviews.
7 Was there anything that Mr. al-'Owhali said he would
8 not tell you?
9 A. He told me he wasn't going to tell me everything. He told
10 me that he was in the plan -- he was not in the planning, in
11 the preparation phase of the mission, he was only in the
12 execution phase of the mission. There were certain things he
13 would tell me and there were things -- there were certain
14 things he would not tell me.
15 MR. BUTLER: No further questions.
16 THE COURT: Anything further of this witness?
17 MR. RICCO: Yes, your Honor.
18 MR. COHN: Yes, your Honor.
19 RECROSS-EXAMINATION
20 BY MR. COHN:
21 Q. Do you know what the meaning of the phrase "plausible
22 deniability" is?
23 MR. BUTLER: Objection, your Honor.
24 THE COURT: Sustained.
25 Q. Well, if you wanted to create a situation that was
2118
1 coercive --
2 THE COURT: I think any question that begins with
3 "if" is very dubious.
4 Try it again.
5 Q. You were interrogating Mr. al-'Owhali for nine days; is
6 that right? From the 12th to the 21st, off and on?
7 A. Right. Not every single day, yes, sir.
8 Q. And he was not always in your custody?
9 A. That's correct, sir.
10 Q. You did not ask the Kenyans what they were doing to him or
11 saying to him during the period in which he was not in your
12 custody?
13 A. No, sir, I didn't.
14 Q. Were you not curious?
15 A. Not really, sir, no.
16 Q. Never occurred to you to inquire as to whether or not they
17 were threatening him and to make sure of his well-being?
18 A. The interviews were a team effort and when an interview
19 would end, we would agree that we would start up again
20 tomorrow. So it's my understanding that there would be no
21 other questioning of him until we were all together.
22 Q. You have been an agent for nine years, you said?
23 A. Yes, sir.
24 Q. There was a period in which you were in the military
25 before that?
2119
1 A. Yes, I was.
2 Q. How long were you in the military?
3 A. I was on active duty for six years.
4 Q. As part of your training in the military, were you taught
5 how to resist interrogations if you were captured by the
6 enemy?
7 A. I did go to a school for that training, sir.
8 Q. You didn't go to a school?
9 A. I did go to a school.
10 Q. You went to a school?
11 A. Yes, sir.
12 Q. So you were aware at the time that Mr. al-'Owhali was
13 being interrogated for those nine days that there might be
14 circumstances in which foreign nationals might use, could use
15 tactics that would be unacceptable in the United States?
16 MR. BUTLER: Objection, your Honor.
17 THE COURT: Sustained. Sustained.
18 Q. After having had that training, it never occurred to you
19 to ask the Kenyans whether or not they were treating
20 Mr. al-'Owhali decently?
21 MR. BUTLER: Objection, your Honor.
22 THE COURT: I'll allow that question.
23 A. My training in the military was for military
24 interrogations. In other words, if I was ever captured as an
25 American fighting soldier by the enemy, not -- had nothing to
2120
1 do with law enforcement interrogation.
2 Q. So you were confident, were you, that the Kenyan CID
3 people were playing by the same rules that you were playing by
4 because of mandative law?
5 MR. BUTLER: Objection.
6 THE COURT: Sustained.
7 MR. COHN: I have nothing further.
8 THE COURT: Mr. Ricco, on behalf of defendant Odeh.
9 RECROSS-EXAMINATION
10 BY MR. RICCO:
11 Q. I want to focus right in on Mr. Butler's questions about
12 Mr. al-'Owhali not saying things.
13 A. Yes, sir.
14 Q. Okay. Now, you asked Mr. al-'Owhali to describe to you
15 the people who he knew were involved in the bombing, correct?
16 A. I don't remember exactly how the question came, sir, but I
17 do remember us getting to a point where he told me "I'm not
18 going ot tell you everything." I remember that.
19 Q. Okay, I heard that. Now I want to ask you about my
20 question.
21 A. Yes, sir.
22 Q. And my question is about whether or not you asked
23 Mr. al-'Owhali to describe to you the people that he knew was
24 involved in the planning.
25 Did that happen?
2121
1 A. I wanted to get all that information, yes, sir.
2 Q. Did that happen?
3 A. Yes, sir, I asked him.
4 Q. And what he said was, he described Azzam, right?
5 A. Yes, he did.
6 Q. And he described Azzam as the person who drove the truck,
7 detonated the bomb at the United States Embassy, isn't that
8 right?
9 A. Yes, he did.
10 Q. He described him as being 26 years old, approximately 170
11 centimeters tall, weighing 80 kilograms, black hair and brown
12 eyes, isn't that right?
13 A. I believe that's correct, sir.
14 Q. He described to you Saleh, right?
15 A. Yes, he did.
16 Q. He says Saleh was an Egyptian, and that he was the planner
17 for both the U.S. Embassy bombings in Dar es Salaam and
18 Nairobi, isn't that right?
19 A. That's correct, sir.
20 (Continued on next page)
21
22
23
24
25
2122
1 Q. He further described Saleh as being in his 30s, about five
2 seven, medium build with black hair and brown eyes. Isn't
3 that right?
4 A. That's true, sir.
5 Q. You asked him to describe the fellow Harun, right?
6 A. Yes, I did.
7 Q. An he said Harun was a light-skinned black Somali-looking
8 man who assisted in the planning of the bombing of the United
9 States embassy in Nairobi and is further described as being
10 about 24 years old, isn't that correct?
11 A. That sounds about right, sir.
12 Q. He said he was about five foot five, that he was skinny
13 with short black hair and dark eyes, isn't that right?
14 A. That sounds about right, sir.
15 Q. He told you even more. He said Harun's house --
16 MR. COHN: Objection, your Honor.
17 THE COURT: Sustained.
18 MR. RICCO: Okay.
19 Q. Along the lines of Mr. Butler's question, he also
20 described to you Ahmed Abdallah, isn't that correct.
21 A. Yes, sir.
22 Q. Described Abdallah also as Ahmed --
23 MR. COHN: Objection.
24 THE COURT: Mr. Ricco, would you confer for a moment
25 with Mr. Cohn?
2123
1 MR. RICCO: Yes.
2 (Pause)
3 Q. He complained to you who Ahmed Abdallah was and what his
4 role was, isn't that correct?
5 A. He gave me that information, yes, sir.
6 Q. He also described to you that Ahmed Abdallah was blonde
7 haired?
8 A. Either fair hair or blonde hair, I believe so.
9 Q. And he gave you height and weight, isn't that correct?
10 A. I believe he did.
11 Q. He also explained to you Abdul Rachman. He explained to
12 you that he was a technician, isn't that correct?
13 A. That was the term he used, technician.
14 Q. And he also gave you the height and weight of this
15 gentleman, isn't that correct?
16 A. I believe so, sir.
17 Q. He also explained to you a fellow by the name of Khalid?
18 A. Khalid, yes, sir.
19 Q. And he explained to you his height and weight and his age,
20 isn't that correct?
21 A. Yes, sir.
22 Q. And you also showed him photographs of Azak, right?
23 A. That's true.
24 Q. Now, he didn't hold back when you showed him the
25 photographs of Azak. He said that's Azak in the picture,
2124
1 isn't that right?
2 A. Not that fast, but, yes, sir, he did say it was Azak.
3 Q. All right. And you showed him a videotape of Harun. He
4 didn't hold back when you showed him the videotape of Harun.
5 He identified Harun from the photographs, isn't that correct?
6 A. From the videotape, yes, sir.
7 Q. And when you showed him the photograph of the house he
8 said that's the house where we put the bomb together and the
9 house that I stayed at, isn't that right?
10 A. True.
11 Q. Was he holding back then or did he say --
12 A. I don't believe he was holding back then, no, sir.
13 Q. Now, who made the decision not to show him the photograph
14 of Mohamed Odeh, him or you?
15 A. I believe I was probably part of the decision not to show
16 him the picture of Odeh.
17 MR. RICCO: No further questions.
18 THE COURT: Anything further of this witness?
19 MR. BUTLER: Very briefly.
20 REDIRECT EXAMINATION
21 BY MR. BUTLER:
22 Q. During the interviews -- just going back to the recross by
23 counsel for Mr. Odeh -- during the interviews between August
24 22nd and August 25th, did Mr. Al-'Owhali ever mention someone
25 named Ahmed Kalfan Galani?
2125
1 A. No, he did not.
2 Q. Did he mention someone named Mustafa Fadal?
3 A. No, he did not.
4 Q. Did he mention someone named Fahad el Islam?
5 A. No, he didn't.
6 Q. And did he mention someone mention Ahmed Sheik Sudan?
7 A. No, he didn't.
8 MR. BUTLER: No further questions.
9 RECROSS-EXAMINATION
10 BY MR. RICCO:
11 Q. Did you ask him if he knew who any of those people were?
12 A. I didn't even know those names, sir. I never asked.
13 MR. RICCO: No further questions.
14 THE COURT: The government may call the next witness.
15 You may step down.
16 (Witness excused)
17 MR. FITZGERALD: The government calls Charles Mwaka
18 Mula.
19 CHARLES MUWAKA MULA,
20 called as a witness by the government,
21 having been duly sworn, testified through the interpreter,
22 as follows:
23 DIRECT EXAMINATION
24 BY MR. FITZGERALD:
25 Q. You do have a soft voice. If you could try to keep your
2126
1 voice up, and if you at any time need to use the interpreter
2 who is seated to your left, please feel free to do so.
3 THE COURT: Did we swear you yesterday?
4 THE INTERPRETER: Yes.
5 Q. Mr. Mwaka, if you could tell the jury what country you
6 were born in?
7 A. (In English) American Embassy Nairobi Kenya.
8 Q. I asked you what country you were born in.
9 A. (Through the interpreter) Kenya.
10 Q. And can you tell the jury have you ever worked as an
11 employee at the American embassy?
12 (Following answers in English)
13 A. Yes.
14 Q. Can you tell the jury when you began to work at the
15 American embassy in Nairobi?
16 A. It was a Thursday, 28 July, 1986.
17 Q. It was a Thursday, July 28, 1986 when you first began to
18 work at the embassy?
19 A. Yes.
20 Q. Then did you work at the embassy through August of 1998?
21 A. Yes.
22 Q. And while you worked at the embassy did you know a man by
23 the name of Francis Kibe?
24 A. Yes, I do.
25 Q. And what did France Kibe do as a worker at the American
2127
1 embassy?
2 A. Was a driver of the scooter in the mail room section.
3 Q. You mentioned a scooter. What did Mr. Kibe do with the
4 scooter from the mail room section?
5 A. He picked.
6 Q. I'm sorry. If you could use the interpreter perhaps
7 (Through the interpreter)
8 A. He was delivering some letters and bring them back to the
9 embassy.
10 Q. So Mr. Kibe's job was to deliver mail to and from the
11 embassy with the scooter?
12 A. Yes, sir.
13 Q. And let me direct your attention to a particular day,
14 August 7th of 1998. Were you working at the embassy in
15 Nairobi that day?
16 (Witness consults with interpreter)
17 A. Yes, sir, I was working.
18 Q. Let me direct your attention to the period after 10
19 o'clock in the morning. Can you tell the jury what it was
20 that you were doing as part of your work at the American
21 embassy in Nairobi?
22 A. It was between 25 minutes to 10:30 when I was going to the
23 submersible pump when I saw a truck coming into the embassy
24 trying to get inside the embassy by force.
25 Q. Let me stop you for a moment. You mentioned a submersible
2128
1 pump. Can you tell the jury where the submersible pump was
2 that you were going to as part of your work?
3 A. It was located at the left side of the embassy.
4 Q. What was your job at the time of August 7th?
5 A. I was a technician.
6 Q. So as a technician you were going to fix the submersible
7 pump outside the embassy?
8 A. Yes.
9 Q. And was it in the back of the embassy or the front of the
10 embassy that you were going?
11 A. At the back.
12 Q. And when you went outside between 10:25 and 10:30 did you
13 see Mr. Kibe?
14 A. Yes, I saw his scooter.
15 Q. I am going to put -- where was Mr. Kibe's scooter when you
16 saw it?
17 A. It was parked at the outside of the embassy.
18 Q. Outside the embassy.
19 Let me put on the screen Government Exhibit 802G in
20 evidence.
21 I ask you to look at the TV screen to your left. If
22 you can describe to the jury, and perhaps we'll turn the TV,
23 if you find the location where you saw Mr. Kibe's scooter and
24 you can just point to it?
25 A. It was on this location. (Pointing)
2129
1 THE COURT: He can come down.
2 MR. FITZGERALD: You can step down with the
3 microphone.
4 (Witness left stand)
5 Q. If you could point to the general location where you saw
6 Mr. Kibe and his scooter?
7 A. It was on this location.
8 Q. If we could now bring up on the screen 802H in evidence
9 which is a closeup. If you could point to where you saw
10 Mr. Kibe's scooter and describe the area?
11 A. It was on this location.
12 Q. And is that where Mr. Kibe generally kept his scooter?
13 A. Yes.
14 Q. And can you describe what you saw Mr. Kibe and his scooter
15 do at the time?
16 A. (Witness consults with the interpreter)
17 The scooter was going to leave from the parking lot
18 heading to Hale Selassie. I don't know which post office he
19 was heading to.
20 Q. How would the scooter in the parking lot get out of the
21 parking lot area? Where would it drive to?
22 A. (Witness consults with interpreter)
23 Move the scooter from this area, because this is the
24 gate and this is a gate, but he used this gate through this
25 barrier to get to Halie Sallasie on the other side.
2130
1 Q. You mentioned the last barrier, the dark line. Is that a
2 drop bar? Is that a bar that goes up and down?
3 A. Yes, this is a barrier.
4 Q. Did you see Kibe and his scooter going through the area
5 where the bar is?
6 A. Last time I saw him he was waiting at the main road.
7 Q. What happened after Mr. Kibe and his scooter went past the
8 drop bar toward the main road?
9 A. After he lifted the barrier the truck came which was
10 somehow not the correct color, and tried to get into the
11 embassy by force, but the guy tried to lower the barrier,
12 guard tried to lower the barrier and in passing they broke
13 their way and start. The guard refused to open.
14 Q. Let me stop you there for a moment. When the truck was at
15 that area you're pointing to the bar, can you tell the jury
16 where you were staying?
17 A. I was turning just a few meters from this. I was turning
18 15 meters behind the house guard.
19 Q. You say house guard. Is that the guard house, the place
20 where the guard, a building where the guard stands?
21 A. (Witness consults with interpreter)
22 Yes, but there are two. One was on this one and the
23 other one on this one.
24 Q. And you mentioned that the passenger got out of the truck.
25 Can you tell the jury, in Kenya which side of the truck the
2131
1 driver sits in and which side the passenger sits in?
2 A. The driver was on the right side and the passenger was on
3 the left side.
4 Q. Okay. Now, focusing on the passenger, can you tell us
5 what the passenger did when he got out of the truck?
6 A. When he alighted from the truck he talked to the guard and
7 the guard didn't know what he was saying, ignored what he was
8 saying, and he refused to permit him.
9 Q. Let me stop you there. When the passenger got out of the
10 truck can you describe what he looked like and what, if
11 anything, he was carrying?
12 If it's easier you can sit down at this point if that
13 makes it easier.
14 (Witness resumed stand)
15 THE COURT: Tell him not to hold the microphone quite
16 so close.
17 Q. If you can tell the jury what you remember about what the
18 passenger looked like and what, if anything, he was carrying
19 and try to keep your microphone just a few inches away from
20 your face.
21 A. (Through the interpreter) When the passenger alighted I
22 thought first he was an Indian, and I came to realize he was
23 not when he went to the police station for identification.
24 MR. COHN: Your Honor, I can't understand.
25 Q. Perhaps we can use the interpreter and if you could tell
2132
1 the answer in Swahili to the interpreter?
2 THE COURT: Probably be better to put the microphone
3 back on the stand.
4 Q. If you could give the answer in Swahili to the interpreter
5 to your left and then the interpreter will put it into
6 English.
7 (Following answers through the interpreter)
8 Q. If you could tell us what the passenger looked like?
9 A. I thought he looked like an Indian.
10 Q. Okay. Anything you recall about his appearance and what
11 he was wearing?
12 (Witness consults with the interpreter)
13 (Following answers in English)
14 A. He was wearing a black jacket on that day, some red T
15 shirt.
16 Q. You mentioned a jacket. Did you say a black jacket?
17 A. Black jacket.
18 Q. You mentioned a T-shirt. Can you describe the color of
19 the T-shirt?
20 A. A T-shirt which was somehow red.
21 Q. Somehow red?
22 A. Yes.
23 Q. And you mentioned his pants. Can you describe them?
24 A. And jeans, and bluejeans which was faded.
25 Q. Faded bluejeans?
2133
1 A. Yes.
2 Q. Did you notice anything else about his appearance,
3 anything he was caring?
4 A. Say again.
5 Q. Did you notice anything else about how he looked that day?
6 (Witness consults with interpreter)
7 A. He was wearing a sports shoes black with some few stripes
8 white.
9 Q. And was he carrying anything when you saw him?
10 A. The first time he arrived I saw four things which I
11 thought they were soundproof microwaves.
12 MR. COHN: I'm sorry?
13 A. Microphones.
14 THE COURT: I'm sorry. Take the microphone and tell
15 this gentleman and then tell Mr. Fitzgerald.
16 MR. FITZGERALD: If you could ask Mr. Mwaka Mula to
17 tell us, he described four things, what he thought they were.
18 He can tell you in Swahili.
19 (Witness consults with interpreter)
20 (Following answers through the interpreter)
21 A. He thought he had something like microphone, heavy set
22 like the one they use in the airlines.
23 Q. Let's focus on what you described as microphones. Can you
24 tell the jury where it is that you've seen these things you
25 described as the microphones before?
2134
1 A. Was two on one side to another side.
2 Q. And are you talking about what the passenger that day?
3 THE INTERPRETER: Repeat.
4 Q. You mentioned that there were two on each side. I'm not
5 talking August 7th. I'm asking him where he's seen those
6 microphones, what he called microphones in the past?
7 A. He was using that kind of some kind of microphone when
8 he's doing his duty.
9 Q. Okay. Can you tell the jury how would you use the
10 microphone, what you're calling a microphone.
11 A. He was using to cover himself avoiding to get more, to
12 have a vibration when he's doing his job.
13 Q. Where would you put what you call the microphone?
14 A. Would put on his head.
15 Q. And when you put those things on your head what would
16 happen?
17 A. I was unable to hear any voice which are in my ears.
18 Q. So these are things that you put on your ears to block
19 sound?
20 A. Yes.
21 Q. And you mentioned before that you had seen them in
22 connection with an airline. Can you describe to the jury
23 where you had seen them with an airline before?
24 A. I have seen when I go to the airport to get my visitors
25 and I see people are wearing outside the airline.
2135
1 Q. Are those the people working near the engines?
2 A. He have seen also at the airport.
3 Q. Okay. Can you tell us what happened? You said that
4 you -- where did you see these items with the passenger, where
5 on his person were they on August 7th?
6 A. I saw this from the passenger who was coming from the car.
7 Q. And where were they on his person?
8 A. Is behind the American embassy.
9 Q. But these items that you, that one would put on their head
10 to block out sound, the things that look like them, where were
11 they on the passenger?
12 A. He have two on one side and two on the other.
13 Q. And did you see the passenger do anything with these
14 items?
15 A. I saw he threw to the guard.
16 Q. And what happened when the passenger threw this to the
17 guard?
18 A. He threw to the guard and the guard he didn't get to the
19 guard, and the one flew to the gate of the embassy.
20 Q. And when he threw these items, did the items do anything?
21 A. Exploded.
22 Q. And how many does he recall the passenger throwing of
23 these items?
24 A. Was three of them.
25 Q. And after these three items were thrown what, if anything,
2136
1 did you see the passenger do?
2 A. He walked so fast went to Haille Selassie Avenue.
3 Q. When you saw the passenger walking toward Hallie Sallasie
4 Avenue what did you do?
5 A. He ran away.
6 Q. And in which direction did you run away?
7 A. He ran to northern side of the embassy.
8 THE COURT: Who ran?
9 THE INTERPRETER: He ran.
10 THE COURT: The passenger ran?
11 THE INTERPRETER: After he saw the --
12 Q. Describe to the jury which direction the passenger ran and
13 which direction you ran?
14 A. The passenger went south and he ran to north.
15 Q. And when you ran north -- why don't we put up again 802G
16 in evidence. I could just ask you to briefly step down with
17 the microphone and just point to the direction in which you
18 ran.
19 (Witness left stand)
20 Q. Just indicate for the jury which direction you ran in?
21 Did you run between the embassy and the generator?
22 MR. COHN: Your Honor, because it's hard to tell
23 could Mr. Fitzgerald sort of repeat for the record what the
24 witness is shown because we can't see from here?
25 MR. FITZGERALD: I believe indicating running between
2137
1 the embassy and the generator structure.
2 Q. And when you ran in that direction did there come a time
3 when you encountered a fence.
4 A. Yes.
5 Q. Is that a large metal fence that surrounds the embassy?
6 A. Yes.
7 MR. FITZGERALD: Perhaps it would be easier if he can
8 sit down again now.
9 (Witness resumed stand)
10 Q. If you could tell the jury what you did when you got to
11 the large metal fence?
12 A. I tried to jump but I was unable to.
13 Q. Were you able to get over the fence?
14 A. I tried to jump over the fence but I couldn't do it.
15 Q. So what did you do then?
16 A. He tried on the left side and the right side. He couldn't
17 do it, also.
18 Q. What did you try to do on the right side?
19 A. He was trying to use his right side to force himself
20 through the fence.
21 Q. What did you do when you could not force yourself through
22 the fence with your right side?
23 A. And then I tried on left side.
24 Q. What happened then?
25 A. Then I went through the fence on the other side.
2138
1 Q. Did you actually physically put your body through the bars
2 between the fence?
3 A. Yes.
4 Q. What happened after you put your body through the bars in
5 the fence?
6 A. I was caught on the fence, stuck on the fence with the
7 bar. Then I tried again and again and then I was about to
8 pass, able to pass through.
9 Q. After you passed through the fence what happened next?
10 A. That's the time when the bomb exploded.
11 Q. And what happened to you when the bomb exploded?
12 A. I went to Ngala.
13 Q. I'm sorry?
14 A. I went to Ngala.
15 Q. Ngala up country in Kenya?
16 A. No.
17 Q. If you could repeat the last answer? You said: I went
18 Ngala?
19 A. It's a town within Nairobi.
20 Q. At the scene of the bombing did you receive any injuries
21 to your hearing?
22 A. Yes.
23 Q. Now, after you left the embassy bombing scene did you come
24 back to work the next week?
25 A. Yes.
2139
1 Q. And had you seen anything that you recognized during the
2 course of over the weekend before you went back to work?
3 A. I saw on the newspaper the person who came out from the
4 car.
5 Q. You saw a picture of the person that you believed came out
6 from the car in the newspaper?
7 A. Yes.
8 Q. Do you recall what day that was?
9 A. Was on Saturday the following day.
10 Q. And when you went back to work did there come a time when
11 you spoke to the FBI about what happened?
12 A. Yes.
13 Q. And did you give a description of the person that you saw
14 get out of the truck and throw the things that exploded?
15 A. Yes.
16 Q. And what do you recall the person looked like?
17 A. He looked like an Indian.
18 Q. And can you describe his build? Was he thin or heavy?
19 A. Was thin.
20 Q. Tall or short?
21 A. Was medium, medium size.
22 Q. Do you recall how tall he was?
23 A. About five inches and, five foot and two inches.
24 Q. Do you recall what color hair he had?
25 A. Black.
2140
1 Q. Do you recall if the person you saw on August 7th had a
2 beard or no beard?
3 A. Was no beard.
4 Q. Glasses or no glasses?
5 A. No glasses.
6 Q. And was he wearing anything on his head?
7 A. No.
8 Q. And did the FBI agents you were speaking to prepare a
9 sketch of the person you described?
10 A. Yes.
11 Q. And I ask you to look around the courtroom and see if you
12 recognize today the person that you saw on August 7, 1998 get
13 out of the truck?
14 A. Yes.
15 Q. Could you point out who it is that you recognize from
16 August 7, 1998?
17 A. Over there.
18 Q. Okay. If you can look at the, if you can describe where
19 he's sitting, the person you recognize?
20 A. The one who is wearing a white hat.
21 Q. Who is he sitting next to?
22 A. He's between two ladies.
23 THE COURT: The record will indicate the witness has
24 identified the defendant Al-'Owhali.
25 Q. Did there come a time when you were asked to participate
2141
1 in what's called an identification parade?
2 A. Yes.
3 Q. And when you went to the identification parade what were
4 you asked to do?
5 A. I was told to touch the person on the left shoulder.
6 Q. And who were you supposed to touch on the left shoulder?
7 A. The person I saw him that day.
8 Q. And did you recognize someone that day?
9 A. Yes.
10 Q. And who was the person you saw?
11 A. The one who came out from the truck.
12 Q. And did he look any different on the day you saw him at
13 the identification parade than the day you saw him in the area
14 of the embassy?
15 A. Yes.
16 Q. What was different about his appearance?
17 A. He was wearing different clothes than the one he was
18 wearing on August 7th, and also he have beard.
19 Q. Let me show you what has been marked for identification.
20 If we could just display it, not for the jury, after
21 we turn the TV, Government Exhibit 562 for identification.
22 I ask you if you recognize what's on the screen to
23 your left, the photograph in 562 to the bottom left picture.
24 Do you recognize that picture?
25 A. Can you enlarge a little bit?
2142
1 Q. I'm sorry?
2 A. Can you enlarge a little bit more? He's not real clear to
3 him.
4 Q. I'm sorry?
5 A. He's not real clear to him.
6 Q. Not real clear. Okay.
7 Let me show you what has been marked as Government
8 Exhibit 563 for identification purposes only at this time. I
9 ask you if you recognize what's depicted in Government Exhibit
10 563?
11 A. No.
12 MR. FITZGERALD: I have no further questions.
13 CROSS-EXAMINATION
14 THE COURT: Mr. Cohn on behalf of defendant
15 Al-'Owhali.
16 MR. COHN: Your Honor, could the government put up
17 802H.
18 BY MR. COHN:
19 Q. Now, sir, you were in the guard house which is on the
20 upper center. Is that the place made on the map sort of there
21 is an X over it; is that right?
22 Where is the guard house that you were at?
23 THE COURT: I'll permit you if you like to approach
24 the witness and turn the screen so the jury can see it.
25 Q. Will you point it out again?
2143
1 (Witness points)
2 Q. The guard house behind the second car. Were you behind
3 the second car on the lower portion of where the cars are
4 parked; is that right?
5 THE COURT: Show it to the jury. The witness can
6 step down.
7 (Witness left stand)
8 THE COURT: Show the jury if you would where you were
9 standing when you saw this?
10 MR. COHN: Indicating, your Honor, a place on the map
11 to the right second car parked behind the three cars on the
12 map.
13 THE COURT: Point again.
14 To the left of the second car in the line of three
15 cars closest to the words US embassy on the exhibit.
16 MR. COHN: Thank you.
17 Q. And where did you see the truck pull up, the truck with
18 the bomb.
19 (Witness pointing)
20 MR. COHN: Indicating, your Honor, to the bottom of
21 what seems to be the dark line which denotes the drop down
22 bar.
23 Q. That bar, is that right? And there was a bar there, is
24 that right?
25 A. Yes.
2144
1 Q. And the truck was facing away from you; is that right?
2 The truck with the bomb, yes.
3 A. Yes.
4 Q. Okay. And in the back of the truck there was a cab, is
5 that right? It was a closed truck?
6 A. The back of where?
7 Q. The back of the truck with the bomb?
8 A. Yes.
9 Q. It was closed. It was not an open truck. It was closed,
10 right? You couldn't see through from the back to the front,
11 is that right?
12 (Following answers in English)
13 A. I could see.
14 Q. You could see from where you were standing you could see
15 into the passenger cabin of the truck; is that right? Is that
16 what you say?
17 A. I could see the outside has nothing.
18 Q. I'm sorry?
19 A. I was able to see.
20 Q. You were able to see through the truck into the passenger
21 cabin, is that right?
22 A. Yes.
23 Q. And you say that in Kenya the drivers are on the right and
24 the passengers are on the left?
25 A. Yes.
2145
1 Q. So that the passenger, whoever he was, would have been on
2 the far side of the truck from you; is that right?
3 A. The passenger?
4 Q. The far side. You were over here behind where these cars
5 are standing, right?
6 A. Yes.
7 Q. And the truck was over here and the passenger's side of
8 the truck was on the far side of the truck from you?
9 A. Was on the left.
10 Q. Was on the?
11 A. Left.
12 Q. On the left. He was on this side?
13 A. Yes.
14 Q. The opposite side of the --
15 A. Yes.
16 Q. Which side of the road do people drive on in Kenya, the
17 left or the right side of the road?
18 A. The left.
19 Q. So the passenger, the driver then is on the right side of
20 the cab; is that right?
21 A. Yes.
22 Q. And the car, the truck with the bomb was pulled in from
23 where it says -- did it pull in from this side over here?
24 A. Here.
25 Q. So the driver was on the left and it was facing you and
2146
1 you could see right into the cab?
2 A. The driver was on the right.
3 Q. The driver's on the right and the passenger was on the
4 left?
5 A. Yes.
6 Q. Okay. What is the thing denoted by the gray portion, this
7 here?
8 Indicating a gray square about in the center of the
9 chart, your Honor.
10 A. This was a house guard.
11 Q. A guard house you mean?
12 A. Yes.
13 Q. The place where the guard stays while he's on duty; is
14 that right?
15 A. Yes.
16 Q. And were there cars parked in the lot that day? Where you
17 were standing?
18 A. I was standing here.
19 Q. And were there cars parked as is shown on the lot that
20 day?
21 (Following answers through the interpreter)
22 A. I can't remember that.
23 MR. COHN: Okay. You may resume your seat, if your
24 Honor, please.
25 (Witness resumed stand)
2147
1 Q. Now, the government showed you a newspaper picture when
2 you said now you couldn't make it out; is that right? It was
3 I think 562 for identification.
4 Do you remember just now they showed you a picture
5 and you said you couldn't recognize it?
6 A. He was not able to identify because it was not clear but
7 he does not say that he can't identify, but he's not just
8 clear.
9 Q. Well, let me understand something. The person that you
10 saw as the passenger in the car, in the truck with the bomb,
11 was clean shaven; is that right? He didn't have a beard?
12 A. Yes.
13 Q. Did he have any facial hair at all?
14 A. Yes.
15 Q. He had a moustache?
16 A. No.
17 Q. No moustache?
18 A. No, no moustache.
19 Q. Did he have a little chin beard, a vandyke?
20 A. No.
21 Q. Well, he didn't have a beard. And maybe we're having a
22 language problem, sir.
23 Did he have any hair on his face except for his hair
24 when you saw him that day?
25 A. No. He didn't have it.
2148
1 Q. No hair on his face?
2 A. No.
3 Q. Okay. Now, the picture that was shown -- now you first
4 called attention to the fact that you could recognize someone
5 when you saw a newspaper article with a picture in it, right?
6 A. Yes.
7 Q. And you were just shown a picture, a blowup from a picture
8 in a newspaper article, and you're not able to say whether or
9 not that picture is the picture that you saw because you claim
10 it's not clear. Is that right?
11 A. Yes.
12 Q. You then said that in the ID parade the person that you
13 identified now had a beard; is that right?
14 A. Yes.
15 Q. And that was on August 20th?
16 A. Was on 21st.
17 Q. 21st. Did he have a full beard or did he just need a
18 shave badly?
19 MR. FITZGERALD: Objection to form.
20 MR. COHN: I don't know a clear way to explain it to
21 this witness, your Honor.
22 Q. Do you understand what I'm asking? Did he have the
23 appearance of someone who hadn't shaved in eight days or did
24 he have a full beard like the Judge?
25 A. It was not a lot like the Judge.
2149
1 Q. Well, aside from the fact that the Judge's gray, was it
2 like the Judge?
3 THE INTERPRETER: Can you repeat it?
4 Q. I'm asking a question. I mean was it like somebody who
5 just hadn't shaved in eight days?
6 A. It was like someone who's about two weeks.
7 Q. Two weeks, okay.
8 Now, you haven't seen this person since the 21st of
9 August 1998. Is that right?
10 A. Yes.
11 Q. And you identified Mr. Al-'Owhali sitting over there
12 between the two ladies who has a full beard; is that right?
13 A. Yes.
14 Q. But you can't from the photograph say it was clear enough
15 to be able to identify whether or not that was the picture
16 that was in the newspaper that made you see the person; is
17 that right?
18 A. Was just not clear.
19 Q. Now, you helped -- excuse me.
20 Is that newspaper article 562 by the way? Is that
21 the right identification?
22 MR. COHN: Your Honor, I offer 562.
23 MR. FITZGERALD: No objection.
24 THE COURT: 562 is received.
25 MR. RUHNKE: With the redaction that we'd like to
2150
1 discuss later on.
2 MR. COHN: Your Honor, yes, we're offering it for the
3 picture, not for the contents of the article.
4 THE COURT: The portion of 562.
5 MR. COHN: That has been blown up.
6 THE COURT: The photograph.
7 MR. COHN: Yes, your Honor.
8 THE COURT: Not any of the text appearing on that
9 page.
10 (Government's Exhibit 562 received in evidence)
11 MR. COHN: No, your Honor. Can we put the redacted
12 version of 562 on the screen and publish it to the jury?.
13 Would the government do that for us?
14 Q. That's 562. Does that appear to be Mr. Al-'Owhali? You
15 can make the comparison if you can.
16 A. There is no other picture can come more clear than this?
17 Q. Well, I could give you -- not of that picture. Does that
18 appear to you to be Mr. Al-'Owhali?
19 You can't make that out from three feet away?
20 A. I don't want to guess.
21 Q. Well, okay. Now, did you ever see --
22 You can take that down if you would.
23 Did you ever see the composites -- withdrawn. You
24 told the government that you assisted the FBI in making a
25 drawing of the person who you had seen; is that right?
2151
1 A. Yes.
2 Q. And did they ever show it to you?
3 A. Yes.
4 MR. COHN: If the government would put 563 up on the
5 screen, not for publication yet.
6 Q. Showing you 563 for identification, is that the picture
7 that you saw that you helped them draw? Do you remember?
8 A. I don't remember.
9 Q. Well in any event, your Honor, I offer it.
10 MR. FITZGERALD: No objection.
11 THE COURT: 563 received.
12 (Government's Exhibit 563 received in evidence.
13 MR. COHN: And may we publish it to the jury?
14 THE COURT: Yes.
15 Q. Does that appear to be a man with no facial hair who you
16 now claim is Mr. Al-'Owhali?
17 MR. FITZGERALD: Object to the form.
18 MR. COHN: Withdrawn.
19 THE COURT: Sustained.
20 MR. COHN: Now you can take that down if you would.
21 Thank you.
22 A.
23 Q. At the time when these events happened, sir, is it fair to
24 say that you were frightened?
25 A. There was nothing I was afraid for.
2152
1 Q. You ran because you were not frightened?
2 A. Because I`assume something bad is going to happen.
3 Q. Okay. So you were worried?
4 A. Because I been there for many years. I never seen
5 something like that.
6 Q. Well, you saw this passenger get out of the car and use
7 something that you thought were micro phones that caused
8 explosions. Is that right?
9 A. Yes.
10 Q. And you immediately were concerned that something serious
11 was about to happen, or was already happening, and you ran,
12 right? That's reasonable.
13 A. Yes. And the car which came over here resembles other
14 people who does work for us and it was very unusual for what
15 was going on.
16 Q. So from the time you saw the passenger get out of the car
17 until the time you started to run, how long elapsed, five
18 seconds, ten seconds, a minute?
19 A. It's about three minutes after I see the guy running to
20 Haille Selassie Street.
21 Q. So you say it took three minutes from the time he got out
22 of the car until he started running to Haille Selassie Street;
23 is that right?
24 A. It took about five minutes.
25 Q. Five minutes?
2153
1 A. Yes.
2 Q. Let's see. He got out of the car with the two, with the
3 microphones on each side and he walked over to where the guard
4 was. Is that right?
5 A. Yes, he came from the car, he went straight to the guard.
6 Q. That was how many feet, ten feet, twenty feet, a hundred
7 feet?
8 A. About three foot.
9 Q. About three feet. So from the guard, from the car to the
10 guard was three feet.
11 And how long did that take him to walk that three
12 feet?
13 A. It's only one step.
14 Q. One step. And then he took this microphone and he threw
15 it in the direction of the guard and it exploded. Is that
16 right?
17 A. Yes.
18 Q. And he did that, and did he have a long conversation with
19 the guard before he did that?
20 A. No.
21 Q. So he did that immediately?
22 A. There's something he told the guard and the guard seemed
23 like he refused, and that's why he throw that.
24 Q. That took what, like a very short conversation, right?
25 A. It was a short.
2154
1 Q. And then he threw the thing and it exploded, right? It
2 proved not to be a microphone at all.
3 A. Yes.
4 Q. And then you ran?
5 A. And he threw other two more.
6 Q. Two more. Okay. So he threw two more and then you ran?
7 A. I started running when I saw the passenger start walking
8 fast and leaving the car.
9 Q. Okay. So he threw two more and then he started walking
10 fast; is that right?
11 A. Yes.
12 Q. And then you ran?
13 A. Yes.
14 Q. And that took five minutes that you had to observe him?
15 A. About that time.
16 Q. About that time.
17 Now, you identified this gentleman sitting between
18 the two ladies, this fully bearded man, as the person you saw
19 that day; is that right?
20 A. Yes.
21 Q. Let's go back to the identification parade.
22 Do you remember before you had the identification
23 parade did you talk to any police officers who told you what
24 the procedure would be?
25 A. Yes.
2155
1 Q. Did you talk to the Kenyan CID or were there American FBI
2 agents or at least Americans who were involved in that
3 discussion?
4 A. Both.
5 Q. Both. And you were, do you know whether or not you were
6 the first person of the people who were witnesses for the
7 parade to observe?
8 A. Yes.
9 Q. When you made your identification were the other witnesses
10 there or were they being kept somewhere else?
11 A. Was far from me.
12 Q. I'm sorry?
13 A. Was far from him.
14 Q. They were far from you?
15 A. Yes.
16 Q. Before you were asked to make the identification did one
17 of the FBI agents or one of the Americans, excuse me, come and
18 say something generally to the people who were assembled?
19 A. I would told that I have to touch the left shoulder of the
20 person that I saw that day.
21 Q. And they told you that the suspect would be in the lineup,
22 yes, in the parade, right?
23 A. No.
24 Q. They didn't tell you that. But the agents, the American
25 agent was there at the time you made the identification. Is
2156
1 that right?
2 A. Was some one of them with Kenyan CID.
3 Q. Okay. Now, before you came to court today, and I don't
4 mean just immediately before, but how long have you been here
5 waiting to testify in this country?
6 A. We came on Friday, last Friday.
7 Q. Okay. Well, since Friday did anybody tell you where the
8 person that you identified would be sitting in this courtroom
9 so that you could identify him?
10 A. No.
11 Q. So it's your testimony that of the four fully bearded men
12 who are sitting at this table, without any assistance, you
13 picked out this person who you say is the person who was the
14 passenger in the car. Is that right?
15 A. Yes.
16 MR. COHN: Bear with me one second, your Honor.
17 (Pause)
18 Q. Now, you testified on direct that you knew the guard who
19 was there that day, is that right, on the day of the bombing?
20 A. Both two.
21 Q. Was he there -- was he at the parade as well as you?
22 A. One of them.
23 Q. One of the guards who was there at the day of the bombing
24 was at the parade with you?
25 A. Both of them came and one of them was getting treatment.
2157
1 Q. Okay. Do you know if both observed at the parade or one
2 observed or neither of them observed?
3 A. Nobody knows because everybody is going separate.
4 Q. Okay. But they were there, they were physically present
5 on the 21st the day of the parade; is that right?
6 A. I saw them with CID.
7 MR. COHN: Thank you. I have nothing further.
8 MR. WILFORD: I have a couple of questions.
9 THE COURT: Mr. Wilford on behalf of the defendant
10 Odeh.
11 CROSS-EXAMINATION
12 BY MR. WILFORD:
13 Q. Good afternoon, Mr. Mwaka Mula. Is that the correct way
14 to pronounce your name, sir?
15 A. (In English) Yes.
16 Q. Mr. Mwaka Mula, on the day that you were just talking
17 about, August, 1998, did you see the truck turn around?
18 (Following answers through interpreter)
19 A. Yes.
20 Q. And when was that?
21 A. August 7, 1998.
22 Q. And what sequence of events did you see the truck turn
23 around?
24 A. After the passenger went, came out from the truck.
25 Q. Now, sir, in 1998 on the 11th of August were you
2158
1 interviewed by the Kenyan CID?
2 A. Yes.
3 Q. And that was an interview that was conducted solely by the
4 Kenyan CID; is that correct?
5 A. With FBI.
6 Q. The FBI was present on the 11th?
7 A. Yes. Most of them were there.
8 Q. So every time you met with the FBI the CD was there?
9 A. Yes.
10 Q. And when you met with both the CID and the FBI on August
11 11th, was someone taking notes?
12 A. Yes.
13 Q. And was the CID personnel taking notes or was the FBI
14 taking notes or both, if you remember?
15 A. CID.
16 Q. Only the CID was taking notes?
17 A. I can't remember if other one was taking also.
18 Q. Well, could you take a moment to think about it, sir?
19 Just take a moment.
20 A. Both of them.
21 MR. WILFORD: Thank you. I have nothing further.
22 MR. FITZGERALD: Very brief, Judge.
23 REDIRECT EXAMINATION
24 BY MR. FITZGERALD:
25 Q. Mr. Mwaka Mula, Mr. Cohn was asking you about the people
2159
1 who were present at the identification parade.
2 And you talked earlier today about Mr. Francis Kibe.
3 My question to you is whether or not Francis Kibe who was
4 driving the scooter, whether or not he attended the
5 identification parade?
6 A. He died the same day.
7 Q. Which day?
8 A. August 7th '98.
9 MR. FITZGERALD: Thank you.
10 THE COURT: All right. The witness may step down.
11 (Witness excused)
12 THE COURT: We'll take a recess until 2:15.
13 (Luncheon recess)
14 (Continued on next page)
15 A F T E R N O O N S E S S I O N
16 2:15 p.m.
17 THE COURT: I continue to be uncomfortable about the
18 matter of a limiting instruction with respect to statements
19 made by Al-'Owhali subsequent to his arrest, and when I told
20 the jury that we would address it later, I lost sight of the
21 fact that it's a Thursday and I just don't want to go over the
22 weekend.
23 And it seems to me that counsel concerned about
24 matters like Pinkerton and so on, which are really something
25 which we may ultimately have to address but need not address
2160
1 now, the standard instruction given is: "You are cautioned
2 that the evidence of one defendant's statement to the
3 authorities after his arrest about his own conduct may not be
4 considered or discussed by you in any way with respect to any
5 defendant on trial other than the defendant who made the
6 statement."
7 Now, I think that that is an appropriate instruction
8 for me to give. Is there anyone who objects to it?
9 MR. KARAS: Yes, Judge.
10 THE COURT: Yes. Tell me what your objection is.
11 MR. KARAS: I think the objection would be based on
12 what was discussed in the Second Circuit case of Williams,
13 which I unfortunately don't have in front of me, but in that
14 case the circuit talked about how it was appropriate to
15 instruct the jury that the statement could be considered for,
16 that would go to the existence and scope of the conspiracy.
17 THE COURT: The general rule is that such postarrest
18 statements, including guilty pleas and plea allocutions, are
19 considered only against the defendant making the statement
20 with respect to all issues except the existence of a
21 conspiracy; that an admission or confession or a plea by a
22 co-conspirator may be considered by the jury with respect to
23 whether a conspiracy exists, but may not be considered with
24 respect to whether an individual defendant is or is not a
25 member of that conspiracy. Is that the rule that you
2161
1 referenced?
2 MR. KARAS: That is what the holding was in the
3 Williams case. In the Williamson case, the Supreme Court
4 case, in the majority opinion Justice O'Connor talked about
5 how there were maybe some statements which are so inherently
6 incriminating, such as, "I did the bank robbery," that, when
7 combined with other evidence, could be used against a
8 codefendant in cases, for example, where the liability is
9 based on a Pinkerton theory.
10 THE COURT: What I'm concerned about is that the jury
11 should be told the general rule and we can deal with the
12 refinements and the exceptions later, and I might say "subject
13 to such exceptions as I shall state to you in my charge, you
14 are to understand that...," and then what I have just read.
15 Anybody have any objection to that?
16 MR. KARAS: No, Judge.
17 MR. COHN: Can you say "may" instead of "shall,"
18 since we don't know whether it will be appropriate for you to
19 give that instruction?
20 THE COURT: "Subject to such refinements as may be
21 contained in my final instructions to you, you should
22 understand that the evidence of one defendant's statements to
23 the authorities after his arrest about his own conduct may not
24 be considered or discussed by you in any way with respect to
25 any defendant on trial other than the defendant who made the
2162
1 statement."
2 MR. KARAS: Is that where your Honor stops, or do you
3 also say, "However, it can be offered to establish the
4 existence of the conspiracy"?
5 THE COURT: No, that's where I'm going to stop.
6 MR. KARAS: Okay.
7 THE COURT: All right, anybody have an objection to
8 that?
9 All right. Let's bring in the jury, and the next
10 witness may be called.
11 MR. BUTLER: Your Honor, just so you know, this
12 witness will be testifying through the interpreter.
13 Just another reminder that the government would
14 request that none of the witnesses, until Agent Sachtleben
15 takes the stand, be sketched.
16 (Jury present)
17 DEPUTY CLERK: Will the witness please rise.
18 THE COURT: Before we swear and hear from the next
19 witness, I want to go back to and perhaps clarify some
20 statement I made to you earlier with respect to the
21 application of evidence that was received about statements
22 made by Mr. al-'Owhali after his arrest to the authorities.
23 And I believe I told you this morning that I will
24 give you, before you begin your deliberations, a somewhat
25 lengthy but I hope reasonably clear statement as to the rules
2163
1 of evidence and legal principles that you are to apply, but I
2 want to now tell you that, subject to such refinements as may
3 be contained in my final instructions to you, you should
4 understand that the evidence of Mr. al-'Owhali's statements to
5 the authorities after his arrest about his own conduct may not
6 be considered by you or discussed by you in any way with
7 respect to any defendant on trial other than Mr. al-'Owhali.
8 And as I say, we will elaborate on that in our final
9 instructions. But for now, I thought it was important that
10 you understand that.
11 Government may call its next witness.
12 MR. BUTLER: Your Honor, the government calls
13 Mr. Paul Suvi Wangi.
14 PAUL SUVI WANGI,
15 called as a witness by the government,
16 having been duly sworn, testified through
17 the interpreter as follows:
18 DEPUTY CLERK: Please be seated. Please state your
19 full name.
20 THE WITNESS: Paul Suvi Wangi.
21 DEPUTY CLERK: Please spell the last name.
22 THE WITNESS: W-A-N-G-I.
23 DEPUTY CLERK: Thank you.
24 DIRECT EXAMINATION
25 BY MR. BUTLER:
2164
1 Q. Mr. Wangi, where do you live, sir?
2 A. I live in Pondi.
3 Q. What country is that in?
4 A. Kenya.
5 Q. Is that located near the City of Nairobi?
6 A. It's in Nairobi.
7 Q. How are you employed, sir?
8 A. I was hired in 1996.
9 Q. What job were you hired for back in 1996?
10 A. I was cleaning bathrooms.
11 Q. And you were cleaning bathrooms where?
12 A. M.P. Sha.
13 Q. And what is M.P. Sha?
14 A. It's a hospital.
15 Q. Is M.P. Sha located in Nairobi?
16 A. It's in Nairobi.
17 Q. Do you recall when the bombing of the American Embassy
18 occurred on August 7th, 1998?
19 A. Yes, I remember.
20 Q. Were you still working in M.P. Sha cleaning bathrooms on
21 August 7th, 1998?
22 A. Yes.
23 Q. How many floors is the M.P. Sha Hospital?
24 A. Two.
25 Q. Where are the public restrooms located?
2165
1 A. When you get to reception, you make a left and there's a
2 bathroom there.
3 Q. So it's on the ground floor?
4 A. Ground floor.
5 Q. How large is the public men's room?
6 A. It's not small and it's not so big.
7 Q. Well, do you know approximately, is there any -- could you
8 describe it any more precisely than that?
9 A. It's ten-by-eight.
10 Q. That meters?
11 A. Foot.
12 Q. Okay. Ten-by-eight feet. Okay, good.
13 And if you recall, how many toilets are in the men's
14 room?
15 A. Two.
16 Q. Now, were you at work at the M.P. Sha Hospital on the day
17 following the bombing, August 8th, 1998?
18 A. Yes.
19 Q. Were you cleaning the public men's room on that day?
20 A. Yes.
21 Q. Could you tell the jury what happened while you were
22 cleaning the public men's room in the M.P. Sha Hospital on
23 August 8th, 1998?
24 A. The time I went there early in the morning, I cleaned the
25 staff bathrooms and then I went to men's bathrooms. After I
2166
1 went to the men's rooms, I found the bullets.
2 Q. Let's back up a moment. How, are there any ledges in the
3 men's bathroom?
4 A. The time I was in the men's room cleaning, there are three
5 items was dropping down and also the keys.
6 Q. Okay. You mentioned items dropping down. Where were they
7 dropping down from?
8 A. I don't know where it was coming, dropping from, but it
9 was on top of it and --
10 Q. What were you doing while these items dropped down?
11 A. I was cleaning.
12 Q. And what particular area were you cleaning?
13 A. I was dusting the wood around the bathrooms.
14 Q. How were you -- what were you doing to dust the woods
15 around the bathrooms?
16 A. I was dusting using a piece of cloth, and I put the mop on
17 the floor to mop the dust was dropping on top of the wood.
18 Q. How high was this wood that you were dusting?
19 A. It's about six foot.
20 Q. Six foot. While you were doing this, you said certain
21 items dropped down; is that correct?
22 A. Yes.
23 Q. How many items dropped down?
24 A. Three items and a key.
25 Q. And what did you do with these items after they dropped
2167
1 down on the floor?
2 A. When it was dropping on the ground, I picked up and I
3 didn't know what is that. I almost, I want to throw it in the
4 garbage, but I just keep on the side. And I put, I took that
5 stuff and I put it near to the sink where the people wash
6 their hands and then I thought to call the security guard to
7 come to take it.
8 Q. Okay.
9 MR. BUTLER: May I approach, your Honor?
10 THE COURT: Yes.
11 Q. Mr. Wangi, I placed before you what has been marked as
12 Government Exhibits 558 and 559. Do you recognize those
13 objects?
14 A. Yes.
15 Q. Are they the items that you found in the men's room at the
16 M.P. Sha Hospital on August 8th, 1998?
17 Do they look similar to the items that you found on
18 August 8th?
19 MR. COHN: Objection. There is already a question on
20 the table.
21 A. The one I got that day was dirty.
22 Q. Dirty?
23 A. Yes, was dirty. So I'm having difficulty to see if that's
24 the one.
25 Q. Other than the fact that the ones that you saw looked
2168
1 dirty, do they look similar to the items that you recovered on
2 August 8th, 1998?
3 MR. COHN: Objection.
4 THE COURT: Overruled.
5 A. I'm looking at, the other one was much bigger than what I
6 saw that day.
7 MR. BUTLER: No further questions, your Honor.
8 THE COURT: Anything further?
9 Thank you. You may step down.
10 (Witness excused)
11 MR. BUTLER: Government calls Michael Opiyo, your
12 Honor.
13 MR. COHN: Your Honor, may I speak with the
14 government for a second?
15 THE COURT: Yes.
16 MICHAEL OMUSI OPIYO,
17 called as a witness by the government,
18 having been duly sworn, testified as follows:
19 DEPUTY CLERK: Please state your full name.
20 THE WITNESS: Michael Omusi Opiyo.
21 DEPUTY CLERK: Please spell your last name.
22 THE WITNESS: O-P-I-Y-O.
23 DEPUTY CLERK: Thank you.
24 DIRECT EXAMINATION
25 BY MR. BUTLER:
2169
1 Q. Mr. Opiyo, if I could just ask you to lean forward and
2 speak into the microphone and to try to keep your voice up.
3 Where do you live Mr. Opiyo?
4 A. Come again?
5 Q. Where do you live?
6 A. Where?
7 Q. Where?
8 A. I live in Nairobi.
9 Q. And how are you employed?
10 A. Come again?
11 Q. What is your job?
12 A. Security.
13 Q. And where were you a security guard?
14 A. M.P. Sha.
15 Q. At M.P. Sha?
16 A. Yeah.
17 Q. M.P. Sha Hospital?
18 A. Yes.
19 Q. How long have you been a security guard at M.P. Sha
20 Hospital?
21 A. Seven years.
22 Q. And were you working on August 8th, 1998?
23 A. Yes.
24 Q. Do you recall that that was the day after the embassy was
25 bombed?
2170
1 A. Yes.
2 Q. And do you recall what happened on the morning of August
3 8th, 1998?
4 A. Yes.
5 Q. Could you please tell us what happened on the morning of
6 August 8th, 1998.
7 A. What happened?
8 Q. Yes.
9 A. It was on 8th of August, 1998, and a cleaner came to me
10 that wanted -- that he had seen something that he wanted me to
11 identify.
12 MR. COHN: Objection as to what he wanted.
13 THE COURT: Overruled.
14 Q. Do you remember the name of this person?
15 A. Who?
16 Q. The cleaner, yes. Do you remember his name?
17 A. The name of this person?
18 Q. Yes.
19 A. Who came to me?
20 Q. Yes.
21 A. Paul Suvi.
22 Q. What did you do after Mr. Suvi came to you?
23 A. We went to where the incident was.
24 Q. You went with him where?
25 A. Went with him to the place.
2171
1 Q. Yes, what place did you go to?
2 A. To toilet.
3 Q. The public toilet?
4 A. Yes.
5 Q. And what did you do once you got to the public toilet?
6 A. He showed me how he found those things. It was on top --
7 MR. COHN: Objection, your Honor. This is non-verbal
8 hearsay.
9 MR. BUTLER: I'm sorry. I'll rephrase, your Honor.
10 Q. What did you -- what were you shown once you got into the
11 men's room?
12 A. I was shown some three bullets and a bunch of keys.
13 Q. And did Mr. Wangi know what these items were?
14 MR. COHN: Objection.
15 A. No.
16 THE COURT: Overruled.
17 Q. What did you do once you were shown these items?
18 A. After identifying them, seeing it's a built, we have hired
19 police in the hospital, so the hired police, we call them, we
20 want them to see the bullets. We went to the administration.
21 After that, they went call two policemen, so they went and
22 wrote a statement and then we left everything there.
23 Q. And how many bullets were there?
24 A. Come again?
25 Q. How many bullets were there that you found in the men's
2172
1 room? When you went to the public toilet, how many bullets
2 did you find?
3 A. Three.
4 Q. Three. And how many keys?
5 A. Two keys.
6 MR. BUTLER: May I approach, your Honor?
7 THE COURT: Yes.
8 Q. I have placed before you what has been marked as
9 Government Exhibit 558 and 559. Do you recognize those as the
10 items that you found in the men's room at M.P. Sha Hospital?
11 A. Yes, that looks to me like.
12 MR. BUTLER: No further questions.
13 THE COURT: Thank you. You may step down.
14 (Witness excused)
15 MR. BUTLER: Your Honor, the government calls Ismail
16 Jama Ali.
17 ISMAIL JAMA ALI,
18 called as a witness by the government,
19 having been duly sworn, testified as follows:
20 DEPUTY CLERK: Please be seated.
21 Sir, are you an interpreter?
22 THE INTERPRETER: Yes, I'm an interpreter.
23 THE COURT: What language?
24 THE INTERPRETER: Somali.
25 MR. BUTLER: Mr. Ali will testify in English but may
2173
1 need the aid of a Somali interpreter.
2 THE COURT: Let's swear the interpreter.
3 (Interpreter sworn)
4 DEPUTY CLERK: Please state your name.
5 THE INTERPRETER: My name is Ahmed Jama.
6 MR. BUTLER: May I proceed, your Honor?
7 THE COURT: Yes.
8 DIRECT EXAMINATION
9 BY MR. BUTLER:
10 Q. Mr. Ali, where are you from?
11 A. I'm from Kenya.
12 Q. And how are you employed?
13 A. Pardon?
14 Q. How are you employed? What is your job?
15 A. I'm a manager.
16 Q. I think, Mr. Ali, if you could lean forward and speak into
17 the microphone.
18 A. Okay.
19 Q. So everybody can hear you, and try to keep your voice up,
20 sir.
21 A. Okay.
22 Q. Okay. And you own a company?
23 A. Yes, the Dihab Shill Company.
24 Q. What is the name of the company that you own?
25 A. The Dihab Shill Company?
2174
1 Q. Dihab, D-I-H-A-B, new word, S-H-I-L-L?
2 A. Yes.
3 Q. And what kind of business is Dihab Shill?
4 A. I have my own shop in Kenya, Nairobi, but Dihab Shill is
5 basically in Somalia and we do money transfer.
6 Q. You do money transfers?
7 A. Yes.
8 Q. And just explain for the jury a little bit what a money
9 transfer business does.
10 A. We receive money from especially Somali people, those
11 wanting to send money to their people in Somalia and other
12 countries.
13 Q. Are there Dihab Shill offices located throughout the
14 world?
15 A. Would you say again, please?
16 Q. Are there Dihab Shill offices located throughout the
17 world?
18 A. Yes.
19 Q. And to be clear, you own the one in Kenya, correct?
20 A. Yes.
21 Q. And where is your office located, what town?
22 A. I was in town office.
23 Q. Your office, the one that you own, what part of Nairobi is
24 it in?
25 A. It's located in Eastleigh, Section 2.
2175
1 Q. And when somebody wants to -- please just explain to the
2 jury what happens when somebody wants to wire transfer money
3 to a Dihab Shill customer in Eastleigh, Nairobi. How does
4 that work? Just explain to the jury how that works.
5 A. First, when the person who wants to send the money comes
6 to our office, he give all instructions to the receiver's
7 name, his telephone number and his location. Then when we
8 receive the money, we call that person.
9 Q. So somebody who wants to wire transfer money to Eastleigh
10 would go to a Dihab Shill office in another country, correct?
11 A. Yes.
12 Q. And they would give the Dihab Shill office in that other
13 country some money, correct?
14 A. Yes.
15 Q. And they would give that office instructions on how to
16 wire transfer the money to your office in Eastleigh?
17 A. Yes.
18 Q. And what kind of information would they provide to you in
19 order for you to disburse that money to the persons who would
20 come into your office in Eastleigh?
21 A. First, they give us the addressee name and his telephone
22 number or his I.D. That's all.
23 Q. And does your office charge any sort of commission for
24 that wire transfer?
25 A. Yes, we do.
2176
1 Q. How much money do you usually charge?
2 A. It varies the competition. It is from 6 up to 2. Between
3 two up to six dollars. Six percent, five percent, four
4 percent, three percent, two percent.
5 Q. Is that two to six percent of the entire amount of money
6 that's wire transferred?
7 A. Yes.
8 Q. Now, what kind of records do you keep at Dihab Shill
9 Office?
10 A. We have ledger book, which we keep the instructions. We
11 have payment voucher and something like that.
12 Q. And sticking with the ledger for a moment, how are the
13 ledgers maintained? Are they maintained by date or by
14 country? How do you keep the ledgers at your office?
15 A. We keep monthly.
16 Q. Monthly?
17 A. Yes.
18 Q. And why don't we put up Government Exhibit 580 just for
19 identification, please.
20 Mr. Ali, I just ask you to look at the screen and let
21 me know whether you recognize the page that's been marked as
22 Government Exhibit 580-115. Do you recognize that, sir?
23 A. 580-0015?
24 Q. Yes. The page that's on the screen, do you recognize that
25 page?
2177
1 A. Yes.
2 Q. What is that page?
3 A. It is my ledger, which is August 1998.
4 Q. If we could put up Government Exhibit 580-117 for
5 identification.
6 What is that page, Mr. Ali?
7 A. That page is transactions from Kuwait and Yemen.
8 Q. Is that another page from your ledger, from a Dihab Shill
9 ledger?
10 A. Yes.
11 Q. Is that an accurate copy of a page from your Dihab Shill
12 ledger?
13 A. Yes, it is.
14 MR. BUTLER: Your Honor, I would offer Government
15 Exhibit 580-115 and 117 at this time.
16 MR. COHN: Objection. I don't believe the foundation
17 is complete.
18 THE COURT: Overruled.
19 (Government Exhibits 580-115 and 580-117 received in
20 evidence)
21 MR. BUTLER: If we could display it to the jury now.
22 THE COURT: Yes.
23 Q. Now, just going back to Government Exhibit 580-115, these
24 two pages, were they in the -- are they part of the same page
25 in your ledger, or do they appear as separate pages in your
2178
1 ledger?
2 A. I see one page only now.
3 Q. Yes. Going back to the prior exhibit, the two pages that
4 you looked at, are they in a book, or how are they maintained?
5 Are they part of the same document?
6 A. Yes, they are same document, but this side is information
7 receiving date and addressee name -- no, receiving date and
8 addressee's name and the mark of the addressee.
9 Q. Sticking with the page that's on the screen, you see the
10 word "Kuwait" written on the top of the page, correct?
11 A. Kuwait, yes.
12 Q. And then if you look a little bit further down to the
13 right-hand side of the screen, you see the word "Yemen" there?
14 A. Yes.
15 Q. About a third of the way down on the right-hand side of
16 the screen on that page, correct?
17 A. Yes.
18 Q. Do you maintain your records by country? Do you break
19 them down into the transactions by country?
20 A. Yes.
21 Q. What does that information indicate? The country from
22 where the wire transfer was sent?
23 A. Information.
24 Q. Yes.
25 A. It started from the left --
2179
1 Q. We'll go through the columns in a minute, but I'm just
2 interested in, you have "Kuwait" at the top of the page and
3 then there's some information, and then it says "Yemen" and
4 then there's some information below "Yemen."
5 How do you keep these records? Is it kept by country
6 where the wire transfer was sent, by country where it is sent
7 to? What does the "Yemen" and "Kuwait" indicate?
8 A. I don't understand very well.
9 Q. Okay.
10 THE COURT: Maybe use the interpreter.
11 A. (Through the interpreter) We keep our record the way we
12 receive the money, the country. That's how we keep our
13 record.
14 Q. So the information that appears under where it says
15 "Yemen," that's information about a wire transfer that came
16 from Yemen; is that correct?
17 A. Yes.
18 Q. Now, let's start with the columns and try to explain what
19 information is in each column. The column all the way to the
20 left, and there's two numbers, it says 11/8 there. What does
21 that indicate?
22 A. That's August 11, 1998. It is the date we received this
23 message.
24 Q. Okay. And the next column, there is a name. What is that
25 name in that column?
2180
1 A. That name is the sender's name.
2 Q. And what name is indicated there?
3 A. Moxamed Kali Abu Axmed.
4 Q. Now, the first name is spelled M-A-X-A-M-E-D. What does
5 the X stand for?
6 A. X is H.
7 Q. H?
8 A. Yes.
9 Q. Is that how H is usually indicated in the Somali language?
10 A. Somali script.
11 Q. Okay. Now there's another word that appears after the
12 name. What is that information? It's in the column right
13 after the name Moxamed Kali Abu Axmed?
14 A. Which is in brackets?
15 Q. Yes. What does that say?
16 A. That means this person doesn't have any proper documents,
17 so please see, please give him without documents.
18 Q. And are those -- what language is that in? That
19 information in the bracket, what language is that written in?
20 A. It's in Somali language.
21 Q. And what does that indicate to you on the ledger?
22 A. It is description of addressee.
23 Q. What's the literal translation of the words that are in
24 the brackets there?
25 A. It means it doesn't have documents, that means passport,
2181
1 I.D. card, any documents.
2 Q. And does that mean that -- who is it that doesn't have any
3 I.D. cards or documents?
4 A. It's from the sender.
5 Q. It's a message from the sender?
6 A. Yes.
7 Q. But who is it indicating that -- this message means who
8 does not have I.D. documents, the sender or the person --
9 A. Addressee.
10 Q. The addressee?
11 A. Yes.
12 Q. That's the person who comes to pick up the money?
13 A. Yes.
14 Q. So that indicates to you that you can disburse the money
15 to the addressee without that person having any identification
16 documents, is that what that means?
17 A. Yes.
18 Q. Okay. Going down to the next column, there's the numbers
19 765999. What does that mean?
20 A. That is receiver's telephone number.
21 Q. That's the receiver's telephone number?
22 A. Yes.
23 Q. And now let's go to Government Exhibit 580-117. Again,
24 Mr. Ali, if you look about a third of the way down the page to
25 the right, you see the word "Yemen" again, right? And then
2182
1 there's some more information two lines down under the line
2 under the word "Yemen," right?
3 A. Yes.
4 Q. Is this a continuation of the information from the
5 transactions from the prior page?
6 A. (Nods head)
7 Q. I'm sorry, you have to answer --
8 A. Yes.
9 Q. -- so the reporter can take it down.
10 So the first thing we see, then, is the number 14853.
11 What does that indicate?
12 A. That's the transaction number.
13 Q. And is that a transaction number that Dihab Shill used for
14 the transaction?
15 A. No, for -- yes, it is transaction number for this person.
16 Q. So this is your own internal record keeping?
17 A. Yes.
18 Q. Okay. Then the next column, there's a name there. What
19 name appears there?
20 A. Khalid Salim Bin Rashed.
21 Q. What's indicated in that column, where Khalid Salim Bin
22 Rashed appears?
23 A. Bin Rashed, it is receiver's name.
24 Q. That's the person who's going to pick up the money,
25 correct?
2183
1 A. Yes, that's the person who collected the money from us.
2 Q. Now, next to that name is the number 60, what does that
3 indicate?
4 A. That's our commission service.
5 MR. COHN: I'm sorry?
6 THE COURT: Commission.
7 Q. That's your commission?
8 A. Yes.
9 Q. If you go one more column, the number 1,000 appears. What
10 does that indicate?
11 A. Payment date.
12 Q. So you paid?
13 A. Same date we received this transaction.
14 Q. Okay. And your commission of 60 -- now, the 1,000, do you
15 know what denomination, was that in dollars, Kenyans
16 shillings, what is that in?
17 A. It's dollars.
18 Q. And your commission of 60, is that $60 as well?
19 A. Yes, it's $60.
20 Q. Is that taken out of the money at the time that you give
21 it to the addressee, or how do you get your commission?
22 A. We got from the sender.
23 Q. And the numbers that appear in the final column there,
24 what do those numbers indicate?
25 A. 70, it stands for the -- it is, that 70 is the money which
2184
1 is not collected in August 1998 of this page.
2 Q. Now, Mr. Ali, did you, do you recall, were you the one who
3 actually handled this transaction?
4 A. No.
5 Q. No. And was it one of your employees who handled this
6 transaction?
7 A. Could you say again, please?
8 Q. Was it one of your employees who handled this particular
9 transaction, this $1,000 wire transfer?
10 A. Mohamed.
11 Q. Your employee Mamoud handled this?
12 THE COURT: Translate.
13 A. (Through the interpreter) Well, at this transaction, this
14 is my handwriting, but prior transaction was somebody else.
15 Q. And how did your handwriting --
16 Why don't you translate this.
17 How did handwriting come to be on this transaction?
18 A. Because my employee erased his name when he saw the name
19 of the, of this person in the designation.
20 MR. COHN: Your Honor, could you have this done
21 through the interpreter.
22 THE COURT: Yes.
23 Q. Mr. Ali, we're going to go through the interpreter, okay?
24 If you don't mind. Why don't you explain again in Somali what
25 you just said.
2185
1 A. (Through the interpreter) What he realized the person who
2 give the money was suspicious person, then he get scared and
3 he erased the transaction.
4 Q. And when did you find out that he erased the transaction,
5 approximately when?
6 (Witness consults with interpreter)
7 A. He erased it in the morning and I knew in the evening.
8 Q. And what did you do once you found out that he had erased
9 the transaction?
10 A. I fixed the name the way it was.
11 Q. And how were you able to fix the transaction? What
12 information did you use to fix the transaction?
13 A. I contacted my central office and they told me the
14 information.
15 Q. What records did they use to help you put this transaction
16 back together again?
17 A. They used fax.
18 Q. And do you keep, in addition to the ledger, do you keep
19 certain receipts of the transaction?
20 A. Yes.
21 Q. And were you able to use those receipts to recreate --
22 MR. COHN: Objection to the leading, your Honor.
23 THE COURT: Overruled.
24 Q. What documents did you use to help you recreate this
25 transaction?
2186
1 A. Payment voucher.
2 MR. BUTLER: No further questions, your Honor.
3 Oh, I'm sorry.
4 (Pause)
5 BY MR. BUTLER:
6 Q. Mr. Ali, one quick question. What does the word, what
7 does the name Dihab Shill mean in English?
8 A. Gold melt.
9 Q. Gold melt.
10 MR. BUTLER: Okay. Thank you. No further questions.
11 THE COURT: Mr. Cohn, on behalf of defendant
12 Al-'Owhali.
13 MR. COHN: Thank you, your Honor.
14 CROSS-EXAMINATION
15 BY MR. COHN:
16 Q. Now, it's your testimony that your employee tried to erase
17 this transaction, it looks like by using White-Out, is that
18 true?
19 MR. COHN: Can we do this through the interpreter,
20 your Honor?
21 THE COURT: Yes.
22 (The following testimony is through the interpreter)
23 A. Yes.
24 MR. COHN: Could we put those, either one of those
25 documents -- let's put 117, 580-117, the enlargement, back up.
2187
1 Q. When did you notice this?
2 A. The same day.
3 Q. You said that you reconstructed it by speaking -- the
4 transaction by speaking to someone in your office?
5 A. The same employee told me that.
6 Q. He told you that?
7 A. Yes.
8 Q. And that's how you reconstructed it?
9 A. Well, he was scared and I realized he didn't do anything
10 wrong, so I corrected the record.
11 MR. COHN: Move to strike as not responsive, your
12 Honor.
13 MR. BUTLER: Objection, your Honor.
14 THE COURT: Overruled. The motion to strike is
15 denied.
16 MR. COHN: Your Honor, I move to strike the evidence
17 since it was reconstructed by hearsay and not through a
18 document which would fulfill the business record rule.
19 MR. BUTLER: Your Honor, opposed. I don't think that
20 was his testimony on direct, and if it's unclear I'll be glad
21 to try to clear it up.
22 THE COURT: Why don't you pose a question.
23 REDIRECT EXAMINATION
24 BY MR. BUTLER:
25 Q. Mr. Ali, when you wanted to put back the information to
2188
1 correct the information that was deleted, did you contact your
2 headquarters in Somalia?
3 A. Yes.
4 Q. And did you receive certain information -- let's back up a
5 little bit. When a wire transfer is ordered from another
6 office outside of Eastleigh, is certain documentation sent to
7 the headquarters in Somalia.
8 A. No, they corrected the transaction over the phone.
9 Q. And but are any records kept by the headquarters in
10 Somalia about the wire transfer.
11 A. Yes, we keep a record and they have a record of it.
12 Q. When you went to recreate the information in this ledger,
13 where did you get that information from? Did you get the
14 information from your headquarters in Somalia?
15 MR. COHN: Objection. It's not the issue. The issue
16 is --
17 THE COURT: No. No.
18 Where did you get the information that appears on the
19 last line of that page?
20 MR. COHN: With respect, your Honor, the question
21 should properly be "how," how did you get it, not where,
22 "where" being confusing under the circumstances.
23 THE COURT: How did you get the information?
24 THE WITNESS: The whole thing or the last statement?
25 THE COURT: The last line.
2189
1 THE WITNESS: I copied from my payment receipt.
2 BY MR. BUTLER:
3 Q. So you used the payment receipt that you had in your
4 office, correct?
5 A. Yes.
6 Q. And that gave you some -- that gave you the information
7 that you were able to use to recreate the transaction?
8 A. Yes.
9 MR. BUTLER: No further questions, your Honor.
10 MR. COHN: May I, your Honor?
11 THE COURT: Yes.
12 RECROSS-EXAMINATION
13 BY MR. COHN:
14 Q. Sir, did you physically see the payment receipt or did
15 somebody tell you what was on it?
16 A. What transaction are you referring to?
17 Q. I'm referring to the transaction -- well, either
18 transaction. You have two transactions there. Did you ever
19 see this payment receipt for either one?
20 A. I didn't see anybody collect the transaction because I
21 wasn't in my office at that time.
22 Q. Did you see the payment receipts or did somebody merely
23 tell you what they said was on the payment receipt?
24 A. I saw the receipt and also it was told to me.
25 Q. Did you see both receipts?
2190
1 A. You asking me the last transaction or the first
2 transaction?
3 Q. We're going to find out.
4 If you would put up, please, 115, 580-115.
5 580-115 is the transaction for the person who was
6 sending the money; is that right?
7 A. The first is the date and the second is the person who
8 sending the transaction.
9 Q. Sending the transaction. That's 115, the one you see
10 there; is that right?
11 A. I can show you the name.
12 Q. Okay. Now, that was sent from where?
13 A. From Yemen.
14 Q. From Yemen. Where was this entry made, in Yemen or some
15 other office?
16 A. He transferred the money from Yemen to Nairobi.
17 Q. Yes. And where was this record 580-115 created, in your
18 Yemen office or your Nairobi office?
19 A. Well, this bookkeeping is in Nairobi.
20 Q. Where was the receipt generated? The receipt was
21 generated in Yemen, right?
22 A. Which receipt?
23 Q. The receipt that was made for the transaction, a copy of
24 which must have been given to the person in Yemen who spent
25 the money.
2191
1 A. We haven't received any receipt. All we receive is
2 information, and when we receive the information that's the
3 information, we book it right here.
4 Q. Fine. So when you got this from Yemen, your clerk created
5 the record that you later erased, right -- or that he later
6 erased, excuse me, right?
7 A. The way it works is we receive a transaction from the fax
8 machine and after the fax machine, then we do the bookkeeping
9 and we create the ledger. And this is how it creates.
10 Q. All right. And so when you recreated -- it's your
11 testimony now that when you recreated this line, you did it
12 from the fax machine, what came over the fax machine?
13 A. Usually when we receive a fax, and that's how we would
14 receive our information. And from the fax and we put
15 everything in the bookkeeping.
16 Q. And then you throw away the fax, right?
17 A. We destroy the fax and the permanent thing is the
18 bookkeeping.
19 Q. Right. And you destroyed the fax in this case, for this
20 document that's the supporting documentation for this document
21 here 580-115?
22 MR. BUTLER: Objection.
23 A. Where are you referring to?
24 Q. The fax that is the backup for 580-115 no longer exists,
25 right?
2192
1 A. Every month we destroy the fax. They're destroyed because
2 we don't need to use them anymore because we have all the
3 information we need.
4 Q. What I'm trying to find out, sir, is in recreating this
5 document after your clerk had destroyed or defaced it, did you
6 use the fax or did a clerk or somebody else tell you what was
7 on the fax?
8 A. You're asking me when he erased it and I rewrite it?
9 Q. Sir, I don't mean to make this terribly complicated --
10 THE COURT: Well, it could be done in a much simpler
11 fashion.
12 May I?
13 Whose handwriting is on the last line of that page?
14 THE WITNESS: That's mine.
15 THE COURT: That's yours. When you wrote that, what,
16 if anything, did you use to get the information on that last
17 line?
18 THE WITNESS: We contacted our central office and
19 that's how we got the information.
20 BY MR. COHN:
21 Q. Now, what about 117, 580-117, is that the way you got the
22 information to replace what the clerk had erased in that
23 document, too?
24 A. Which line are you referring to?
25 Q. The line that's the last line which has the name Khalid
2193
1 Salim something and which is in your handwriting?
2 A. The last one I received from -- the payment receipt, the
3 rest of them I received, I called my central office and that's
4 how I get the information.
5 THE COURT: The last line, what, if anything, did you
6 use to get the information that appears on the last line?
7 THE WITNESS: The last column?
8 THE COURT: The last line.
9 THE WITNESS: We get that information, the receipt we
10 use when we mail the payment.
11 BY MR. COHN:
12 Q. When you reconstructed what your clerk had erased on this
13 document that you are looking at now, how did you reconstruct
14 the information? Did somebody tell you or did you look at a
15 physical document?
16 A. I called the main office and that's how I get the
17 information.
18 MR. COHN: Renew my motion to strike, your Honor.
19 MR. BUTLER: Your Honor, may I ask some additional
20 questions?
21 THE COURT: Yes.
22 REDIRECT EXAMINATION
23 BY MR. BUTLER:
24 Q. Let's start it from when you realized that the transaction
25 had been erased, Mr. Ali. What did you first do to try to
2194
1 reconstruct that information?
2 A. It's very important every transaction we made, we must
3 have a record. So when I realized he erased the transaction
4 and there's no record, I did contact my main office and I get
5 all the information and the transaction history from the main
6 office.
7 Q. And what kind of records does your main office maintain?
8 MR. COHN: Objection.
9 THE COURT: Overruled.
10 A. I couldn't explain to you how they keep, how they keep the
11 transaction, but I can tell you this. Every transaction, they
12 do have a record and they keep all the records, but I couldn't
13 tell you how they do it.
14 Q. And did they send you any information in response to your
15 request?
16 A. No, they didn't fax me anything. They sent -- they told
17 me over the phone.
18 Q. Now, the original fax that you received from Yemen, did
19 you look at that at the time when you tried to recreate the
20 transaction?
21 A. No. No, I destroyed that fax prior to he erased the
22 information.
23 Q. The fax that you received from Yemen, just to make it
24 clear, the fax that you received from Yemen about what money,
25 what you were supposed to pay out, when was -- when did you
2195
1 destroy that?
2 A. We don't keep the faxes. As soon as we receive the
3 information and we transfer that information to our ledger,
4 it's important to us to keep the ledger. So we didn't need
5 the fax, so I'm not sure when we destroyed the fax.
6 Q. So, just to be clear, the information that you put back
7 into the ledger, where exactly, how exactly did you obtain
8 that information?
9 MR. COHN: Objection, asked and answered.
10 THE COURT: Overruled. You may answer.
11 A. Again, I received that information from the central
12 office, except the last line.
13 Q. And where did you get the information on the last line?
14 A. The receipt, we used the original payment.
15 Q. Let's talk about that receipt for a moment. What is that
16 receipt?
17 A. You mean the receipt, the last line?
18 Q. You said you used a receipt to put in some of the
19 information, to put some of the information back in the
20 ledger. What receipt did you use?
21 A. The majority of the information I received from the main
22 office, except the last line.
23 Q. And you made reference to a receipt. What receipt are you
24 talking about?
25 A. The payment voucher.
2196
1 Q. Okay. And when is that payment voucher filled out, at
2 what point in the transaction?
3 A. The rest of the ledger, prior to releasing the
4 transaction, but the last line and the voucher, after the
5 person received the payment.
6 Q. So the payment voucher is filled out at the time that the
7 person receives the payment; is that correct?
8 A. Yes, that's when the person signs.
9 Q. And the person that picks up the money actually signs the
10 payment voucher?
11 A. Yes.
12 Q. And what other information is contained in the payment
13 voucher?
14 A. First, the name of the person; second, the dollar amount
15 or the total amount, if it's in American; and his signature or
16 her signature.
17 Q. And did you look at that payment voucher at the time that
18 you filled in this information that appears in Government
19 Exhibit 580-117, I believe it is?
20 A. I just used the information on the last line.
21 MR. BUTLER: No further questions.
22 MR. COHN: Before I cross-examine on that last issue,
23 your Honor.
24 THE COURT: Yes.
25 MR. COHN: As to 115, 580-115, I renew my motion to
2197
1 strike it. And as to 580-117, for the moment I limit my
2 motion to strike to the first two entries.
3 THE COURT: The fist two entries?
4 MR. COHN: Yes.
5 THE COURT: You are referring to 153-74 and 123478?
6 MR. COHN: Yes.
7 THE COURT: Any objection with respect to those first
8 two entries?
9 MR. BUTLER: Yes, your Honor. I think that this --
10 yes.
11 THE COURT: Excuse me.
12 MR. BUTLER: Yes, we do oppose that, yes.
13 THE COURT: Are the first two entries alleged to have
14 any relationship to this transaction?
15 MR. BUTLER: No, your Honor.
16 THE COURT: Motion is granted as to the first two
17 items, that is --
18 MR. COHN: What about 580-115, which I object to in
19 its entirety.
20 THE COURT: Overruled.
21 MR. COHN: That's the one, your Honor --
22 THE COURT: I understand. Overruled.
23 MR. COHN: All right. Then I just have one more
24 question.
25 RECROSS-EXAMINATION
2198
1 BY MR. COHN:
2 Q. You got the payment voucher?
3 A. I don't have it right now. It's in Nairobi.
4 Q. It's in Nairobi. Did the government or any police agent
5 come and ask you for it so they could compare some signatures
6 on it or something?
7 A. You mean if they asking me to show them?
8 Q. Yes, did they say can we have the payment voucher?
9 A. No.
10 MR. COHN: Nothing further.
11 THE COURT: Anything further?
12 MR. BUTLER: No, your Honor.
13 MR. WILFORD: Your Honor?
14 THE COURT: Sure.
15 Mr. Wilford on behalf of defendant Odeh.
16 RECROSS-EXAMINATION
17 BY MR. WILFORD:
18 Q. Good afternoon, Mr. Ali.
19 Mr. Ali, I just want to ask you a couple of
20 questions. The day after the bombing, August 8th, there was
21 newspaper coverage concerning the bombing; isn't that correct?
22 A. Yes.
23 Q. There was coverage in the Daily Nation; isn't that
24 correct?
25 A. The day after the explosion, the bombing?
2199
1 Q. August 8th.
2 A. I don't remember.
3 Q. But immediately after, if not the day after, immediately
4 in close proximity to the day of the bombing, there was media
5 coverage about it; isn't that correct?
6 A. I believe there was media coverage, but I don't remember.
7 Q. Isn't it a fact that there were pictures of people in the
8 newspaper?
9 MR. COHN: Objection, your Honor, beyond the scope
10 and irrelevant.
11 THE COURT: Sustained.
12 MR. WILFORD: Okay, I'll move on.
13 Q. Isn't it a fact, sir, that you were advised --
14 withdrawn -- that you received a telephone call from a person
15 who identified themselves as a CID investigator?
16 A. Yes.
17 Q. Did that person give you a name, sir?
18 A. Yes.
19 Q. What was the name of the person?
20 A. Peter Wangi.
21 Q. I'm sorry?
22 A. Peter Wangi.
23 Q. And that person asked you for certain information; isn't
24 that correct?
25 A. Yes.
2200
1 Q. And he told you that he was going to come pick up certain
2 information from you; isn't that correct?
3 A. No, he asked me if that person collected any money from
4 you. Also, he asked me the name of the person who sent the
5 money.
6 Q. And he told you that he was going to come by and speak
7 with you personally, isn't that a fact?
8 A. No, he didn't say that.
9 Q. Well, he didn't tell you that he was going to come by
10 shortly after the call to pick up the ledger, but he never
11 came by?
12 A. He told me, he asked me that the person who collected the
13 money, the name, and the sender, and also he asked me the
14 person who sent the money, his address. And I asked him, I
15 told him that I don't have --
16 MR. COHN: Objection as to what he said.
17 THE COURT: Yes. Objection as to what he told --
18 MR. COHN: Yes.
19 THE COURT: No objection to what the other person
20 said to him, but an objection to what he told him?
21 MR. COHN: Yes, a statement out of court asserted for
22 its truth.
23 THE COURT: What he told the other person is asserted
24 for the truth?
25 MR. COHN: I don't know. It sounds like it.
2201
1 THE COURT: Overruled.
2 Q. Did you finish your answer, sir?
3 A. I've been interrupted. Can you repeat it?
4 MR. WILFORD: I'm sorry, your Honor. Can we have the
5 question read back? I don't want to get off track.
6 (Record read)
7 A. No, he didn't say that.
8 Q. Did you expect him to come by?
9 A. No.
10 Q. You never thought he was coming by?
11 A. I don't remember, but I don't think he said that.
12 Q. Did you think that he was going to come by based on your
13 conversation with this person from the Kenyan CID?
14 A. He didn't tell me he's coming, but he told me that if you
15 know the person who received the money and the name of the
16 person who sent the money.
17 Q. I understand that, but based on your conversation, isn't
18 it a fact that you thought the person was coming by to pick up
19 the ledger?
20 A. No, because he didn't tell me that.
21 Q. Sir, did you have a conversation with FBI agents on June
22 16, 1998 -- I'm sorry, 1999?
23 A. Somebody who worked for the FBI?
24 Q. For American agents from the Federal Bureau of
25 Investigation.
2202
1 A. No.
2 Q. That didn't happen?
3 A. The only FBI I remember was a female and it was this year.
4 Q. No one spoke to you in 1999, that's your testimony?
5 A. Yes, it was the Kenyan CID police and also it was a female
6 agent from the United States.
7 Q. And that was in 1999 as well as this year; isn't that
8 correct?
9 A. I believe it was 1999.
10 Q. And it was June 16 of 1999.
11 May I approach the witness, your Honor?
12 THE COURT: Yes.
13 MR. WILFORD: May I just stand here and point
14 something out to him, please?
15 THE COURT: Yes.
16 Q. I'm just asking you, do you remember being interviewed?
17 A. I don't remember.
18 MR. WILFORD: Your Honor, I would ask the Government
19 if they would concur on August 16, 1999 --
20 THE COURT: Don't ask for a stipulation in open court
21 before the jury.
22 MR. WILFORD: Very well.
23 Q. Sir, isn't it a fact that when you spoke with the FBI on
24 June 16, 1999, you told them that you had a conversation with
25 someone from the Kenyan CID and that based on that
2203
1 conversation you expected them to come by and pick up the
2 ledger?
3 A. No.
4 Q. No, it never happened or no, you don't remember?
5 A. 1999, the only FBI agent, she was a female. I don't
6 remember I meet a male.
7 Q. I didn't ask you if it was a male or female. I'm asking
8 you if you had this conversation with an agent from the FBI.
9 A. That was -- are you asking me was it telephone or was a
10 personal interview?
11 Q. It was a personal interview with the FBI and Kenyan secret
12 police where you told them that someone had called you from
13 the CID; isn't that correct?
14 A. I don't remember and I don't think it happened.
15 Q. Okay. And did the person from CID, when you spoke to
16 them, did they give you a cellular telephone number to call?
17 A. The person who was the secret police?
18 Q. Yes.
19 A. The person who called me from the secret police?
20 Q. Yes. The person's name you gave us earlier in this
21 examination?
22 A. The person who said he was Peter Morgan?
23 Q. Yes.
24 A. Yes, he gave me a telephone number.
25 MR. WILFORD: Thank you. I have nothing further.
2204
1 THE COURT: Anything further?
2 MR. BUTLER: Nothing further.
3 THE COURT: Thank you. You may step down.
4 (Witness excused)
5 THE COURT: What's the next order of business?
6 MR. BUTLER: We have another brief witness. We can
7 take our break now. That's fine.
8 THE COURT: More than five or ten minutes?
9 MR. BUTLER: No, your Honor, probably about five or
10 ten minutes.
11 THE COURT: Call your next witness.
12 MR. BUTLER: Government calls Justus Mutisya.
13 JUSTUS MUTISYA,
14 called as a witness by the government,
15 having been duly sworn, testified through
16 the interpreter as follows:
17 DEPUTY CLERK: Please state your full name.
18 THE WITNESS: Justus Mutisya.
19 DEPUTY CLERK: Spell your last name.
20 THE WITNESS: J-U-S-T-U-S M-U-T-I-S-Y-A.
21 DEPUTY CLERK: Thank you.
22 MR. BUTLER: Your Honor, I apologize, but before I
23 begin questioning this witness, I just want to read one very
24 brief stipulation into the record.
25 THE COURT: You may.
2205
1 MR. BUTLER: "It is hereby stipulated and agreed by
2 and between the United States of America, by Mary Jo White,
3 United States Attorney for the Southern District of New York,
4 Patrick J. Fitzgerald, Kenneth M. Karas, and Paul W. Butler,
5 assistant U.S. attorneys, of counsel, and defendants Wadih El
6 Hage, Mohamed Sadeek Odeh, Mohamed Rashed Daoud al-'Owhali and
7 Khalfan Khamis Mohamed, by and with consent of their
8 undersigned attorneys as follows:
9 "1. If called as witnesses, United States Government
10 investigators would testify that between August 10, 1998 and
11 August 24, 1998, they found the items listed below in the
12 vicinity of the United States Embassy in Nairobi, Kenya, as
13 indicated on the tags attached to each item. Each of these
14 items was later photographed by FBI personnel and each
15 photograph is a fair and accurate depiction of each item. The
16 list of seized items and the corresponding photograph is as
17 follows."
18 And there's a long list. I'll just read two of them
19 for now, your Honor.
20 THE COURT: Yes.
21 MR. BUTLER: That is the --
22 THE COURT: Is there an exhibit number to that
23 stipulation?
24 MR. BUTLER: The stipulation is Exhibit No. 47, your
25 Honor, and the two items I would like to read at this time are
2206
1 FBI No. Q266, exhibit number of seized item is 822, and the
2 exhibit number of the photograph of that item is 822-P; and
3 the FBI number of the seized item is Q267, the exhibit number
4 of the seized item is Exhibit No. 823 and the photograph is
5 823-P.
6 And the stipulation goes on to read that: "If called
7 to testify, a United States Government investigator would
8 testify" -- I'm sorry, we don't need that part -- that (3)
9 "FBI officials transported these items from Nairobi, Kenya to
10 Washington, D.C via airplane and brought them to the forensic
11 laboratory in FBI headquarters in Washington D.C.
12 "It is further stipulated and agreed that this
13 stipulation with the FBI numbers redacted may be received in
14 evidence as a government exhibit at trial."
15 THE COURT: Government Exhibit 47 is received as
16 redacted.
17 MR. BUTLER: Thank you, your Honor.
18 (Government Exhibits 47, 822, 822-P, 823 and 823-P
19 received in evidence)
20 BY MR. BUTLER:
21 Q. Mr. Mutisya, where are you from, sir?
22 A. Kenya.
23 Q. And where are you employed?
24 A. Kenya Railways.
25 Q. How long have you been employed at the Kenya Railways?
2207
1 A. Since 1982.
2 Q. And were you working at the Kenya Railways on August 7,
3 1998?
4 A. Yes.
5 MR. BUTLER: I would like to publish what has been
6 previously admitted into evidence as Government Exhibit 805F.
7 Your Honor, may I approach?
8 THE COURT: Yes.
9 Q. Mr. Mutisya, I would ask you to just come down and point
10 to the jury, if you can see it, where the railway yard is
11 located on this photograph.
12 MR. COHN: Your Honor, if you would ask the witness
13 to step a little to his left, we might be able to see better.
14 Thank you, your Honor.
15 Q. Would you point to the general area of the railway yard
16 where you were working on August 7, 1998?
17 A. (witness complies)
18 Q. You may resume the witness stand, Mr. Mutisya.
19 That's located behind those railroad tracks depicted
20 in Government Exhibit 805F, correct?
21 A. Yes.
22 Q. And about how far is the railway yard where you were
23 working from the American Embassy?
24 A. It's about one and a half kilometers.
25 Q. Could you tell the jury what you were doing around 10:30
2208
1 on August 7, 1998?
2 A. I was doing forklift around the railroad.
3 Q. What happened while you were doing forklifting around the
4 railroad?
5 A. I heard a small loud vibration and then I heard a big loud
6 sound.
7 Q. And what did that loud sound, what did it sound like?
8 A. It was shaking.
9 Q. What happened after you heard this shaking sound?
10 A. I saw the piece of iron flying through the top of the
11 house and it came and landed near to me. It was a red iron.
12 Q. Please describe as best you can what else you can describe
13 about this piece of metal.
14 A. After that piece landed near to us, we thought that a
15 boiler exploded, the railroad boiler exploded in our area and
16 we thought that our people died.
17 Q. Mr. Mutisya, sticking with what the piece looked like,
18 what did the piece of metal look like once it landed?
19 A. It was a big piece and a round, like a round piece.
20 Q. And how far away from you did it land?
21 A. It's about five meters.
22 MR. BUTLER: May I approach, your Honor?
23 THE COURT: Yes.
24 Q. I show you what has been admitted now into evidence as
25 Government Exhibit 822. Do you recognize Government Exhibit
2209
1 822?
2 A. Yes.
3 Q. What is Government Exhibit 822? Is that the piece of
4 metal that --
5 A. Yes.
6 Q. -- landed about five meters from you?
7 A. Yes, where I was.
8 Q. I'd like to show you what's been -- can we actually put up
9 just for identification Government Exhibit 810H.
10 Do you recognize the photograph in Government Exhibit
11 810H, Mr. Mutisya?
12 A. Yes.
13 Q. And what is depicted in Government Exhibit 810H?
14 A. I saw myself there.
15 Q. And what area is depicted in Government Exhibit 810H?
16 A. Workshop area.
17 Q. And where is that in relation to where this piece of metal
18 landed?
19 A. Where we are right now, it was just a little behind where
20 this piece had landed.
21 MR. BUTLER: I would move Government Exhibit 810H
22 into evidence, your Honor.
23 MR. COHN: No objection.
24 THE COURT: Received.
25 (Government Exhibit 810H received in evidence)
2210
1 MR. BUTLER: Publish it to the jury?
2 THE COURT: Yes.
3 Q. Mr. Mutisya, this piece of metal, did it land around this
4 area depicted in this photograph?
5 A. Yes.
6 Q. If we could turn the screen toward the jury and you can
7 show them.
8 A. It landed near to this switch and then it fell on this
9 tunnel.
10 Q. You may resume the witness stand, Mr. Mutisya.
11 After this piece landed, what did you do with it, if
12 anything?
13 A. After it landed, we didn't touch it at all, that piece. A
14 lot of people came.
15 Q. And when did you see it again?
16 A. After 12 o'clock that day that told us to go home. We was
17 told to go home until Monday. That's the day I saw that
18 piece. The piece was there and nobody was allowed to touch it
19 until the Americans came to take it.
20 MR. BUTLER: No further questions.
21 THE COURT: Anything?
22 All right. You may step down and we'll take a
23 recess.
24 (Recess)
25 (Jury present)
2211
1 (Pause awaiting the arrival of counsel for Defendant
2 El Hage.)
3 MR. KARAS: Your Honor, one thing I could do is just
4 read the stipulation that's already in evidence.
5 THE COURT: I think we better wait. One thing I can
6 do is wish you have a happy good weekend and to remind you
7 again not to read, watch, listen to anything about this case
8 in the media. I'm sure you get tired of hearing my saying
9 that.
10 (Mr. Schmidt and Mr. Dratel enter the courtroom)
11 All right. I'm sorry, Mr. Schmidt and Mr. Dratel, I
12 hadn't realized that you were not in the courtroom when we
13 brought in the jury, but we've awaited your arrival and the
14 government may call it's next witness.
15 MR. KARAS: Your Honor, the government calls Donald
16 Sachtleben.
17 Your Honor, what I would like to do before we do that
18 is just read in the stipulation --
19 THE COURT: Very well.
20 MR. KARAS: -- the rest of these exhibits, that is,
21 the stipulation that's been previously entered as Government
22 Exhibit 47. And earlier Mr. Butler identified Government
23 Exhibits 822 and 823 and the corresponding photograph
24 exhibits. The rest of the exhibits are 838, 815, 816, 817,
25 and it's going to be 818 through 837 and 817P through 837P.
2212
1 These are the exhibits that were found in the vicinity of the
2 embassy as indicated on the tags.
3 THE COURT: Very well.
4 MR. KARAS: Thank you, your Honor.
5 (Government Exhibits 838, 815 through 837 and 817P
6 through 837P received in evidence)
7 DONALD SACHTLEBEN,
8 called as a witness by the government,
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. KARAS:
12 Q. Good afternoon.
13 A. Hello.
14 Q. How are you employed?
15 A. I'm a supervisory special agent with the FBI.
16 Q. How long have you been with the FBI?
17 A. Just over 17 years.
18 Q. What is your current assignments?
19 A. I'm currently assigned to the FBI headquarters in the
20 laboratory division, specifically, the explosives unit.
21 Q. Can you tell us a little bit about your educational
22 background?
23 A. I have a bachelor's degree from Northwestern University
24 and a law degree from DePaul University.
25 Q. Before you worked at FBI headquarters, where were you
2213
1 assigned?
2 A. My office of assignment before FBI headquarters was the
3 San Francisco field office for the FBI.
4 Q. You mentioned you're currently assigned to the explosives
5 unit?
6 A. That's correct.
7 Q. Can you tell us the first time you received any training
8 in the explosives field?
9 A. Probably the first training I had was in September of 1986
10 when I graduated from the FBI's post-blast investigators
11 school.
12 Q. Can you tell us about some of the other explosives
13 training you have received?
14 A. In 1990, I attended and graduated from the FBI Hazardous
15 Devices School. That's the school in Huntsville, Alabama that
16 trains all civilian bomb technicians in the United States.
17 Q. Have you attended training in military installations?
18 A. Yes, I have. In 1997, I attended the United States Navy's
19 course on demolition at the Lackland Air Force Base.
20 Q. Have you taken any courses in pyrotechnics?
21 A. Yes. I took a one-week seminar from Washington College on
22 the pyrotechnics -- excuse me, on the chemistry of
23 pyrotechnics and explosives.
24 Q. Have you visited the manufacturing facilities of
25 explosives?
2214
1 A. Yes, I have. I have been to manufacturing facilities for
2 both explosives, propellants and explosive detonators.
3 Q. And can you summarize for us what other conferences and
4 seminars you have attended on explosives?
5 A. I have given quite a few lectures to international
6 symposiums on bombing crime scenes. I have attended other
7 courses. For example, the United Kingdom course on the study
8 of post-blast investigation and the Australian post-blast
9 investigators school.
10 Q. Is there an annual certification process in the FBI for
11 your position?
12 A. Yes. Within my field, that is, bomb technicians as well
13 as forensic examiners, we're certified every year in the safe
14 handling of explosives and in the rendering safe of explosive
15 devices.
16 Q. And do you belong to any professional associations?
17 A. Yes, I do. I'm a member of the International Association
18 of Bomb Technicians and Investigators as well as the
19 International Society of Explosive Engineers.
20 Q. Including training courses, how many trial scenes have you
21 personally investigated?
22 A. I've probably been to over 150 bombing crime scenes.
23 Q. Specific to bombing crime scenes, can you tell us about
24 some of the areas or some of the scenes where you were a team
25 leader?
2215
1 A. I was a team leader here in New York at the World Trade
2 Center bombing scene in 1993. I was team leader at Oklahoma
3 City in 1995 for the bombing of the Federal Building there.
4 Since then, I have served several other bombing incidents,
5 including the Unibomb search in Montana.
6 Q. And in the course of your work with the explosives unit,
7 have you observed explosions being detonated?
8 A. Yes, I have. Routinely in my unit we do training, that
9 is, we go out to a demolition range. We conduct training
10 about explosives and we examine the results afterwards.
11 Q. Can you tell us, what is an explosive?
12 A. Okay. Well, an explosion is really just very simply a
13 conversion of some solid material into a gaseous state,
14 generally through a burning process.
15 Q. And are you familiar with the term "blow explosive"?
16 A. Blow explosives, yes, I am.
17 Q. What is that?
18 A. Blow explosives is commonly you think of as propellants
19 and like gunpowder. It's material that burns and when it
20 burns, it gives off heat, gas, light; and if properly
21 confined, it can actually create fragmentation, that is, break
22 things apart.
23 Q. How about the term "high explosives"?
24 A. I'm familiar with that, yes.
25 Q. What is that?
2216
1 A. High explosives, we distinguish high explosives from low
2 explosives largely by the burning rate, that is, a high
3 explosive material burns like a propellant, only it does so
4 very rapidly. If it's properly ignitiated, which just simply
5 means if you get it going, start the burning process properly,
6 you can achieve what's known as detonation.
7 Detonation is nearly instantaneous conversion of a
8 solid material into a gaseous state.
9
10 (Continued on next page)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2217
1 Q. What are the difference in facts between low explosives
2 and high explosives?
3 A. Typically with low explosives we see a large amount of
4 smoke and heat, and if you can confine the material, let's say
5 inside of a pipe, you can actually get the pipe to rupture
6 because of all that gas that's being produced just breaks the
7 pipe apart.
8 High explosives have a much more violent reaction,
9 typically with high explosives we experience temperatures over
10 five thousand degrees. There is a an intense amount of
11 explosive effect, that is, the shock wave that comes off of
12 this conversion from the solid to a gas. There is a very loud
13 noise, and there is certainly, if things are very close to the
14 explosives they can be thrown out at a very high rate of
15 speed, several thousands of miles and hour.
16 Q. Can you tell us during the course of your experience
17 investigating crime scenes what are some of the trademark
18 traits of the damage caused by high explosives?
19 A. High explosives we tend to find that let's say metal,
20 metal that's been exposed to high explosives can be twisted,
21 torn, can be burned. I talked about that very high
22 temperature. The heat from an explosion will actually melt
23 metal or concrete or glass. The shock wave that's produced by
24 high explosives will actually impact in the metal. It will
25 cause pits or craters, sort of think like the surface of the
2218
1 moon or the Grand Canyon as the great big crater where you see
2 that in the surface of metal or concrete or some other hard
3 objects.
4 Q. What are the some of the more common types of high
5 explosives?
6 A. High explosives quite a few. Nitroglycerine is one that
7 probably a lot of people are familiar with that's used to
8 manufacture dynamite. TNT is a very common high explosive
9 that the military uses. There is material called RDX, which
10 is one of the components of plastic explosives, which are
11 again typically high explosives.
12 Q. Now, Agent Sachtleben, did there come a time that you were
13 dispatched to Nairobi Kenya in connection with an incident at
14 the American embassy?
15 A. Yes, in on August 7th of 1998 I was called by my
16 supervisors and told to take a flight that was leaving that
17 day for Nairobi.
18 Q. When did you arrive in Nairobi?
19 A. I got there probably about 2:30 in the morning on Sunday,
20 August 9th.
21 Q. And what particular role did you serve upon your arrival
22 in Nairobi?
23 A. My job there was to serve as the chief forensic adviser.
24 That is I was to assist the senior investigators at the scene
25 in helping to develop a plan for the collection of evidence at
2219
1 the scene, and then to actual process that evidence.
2 Q. And what was your goal in setting up that plan for
3 evidence recovery at the screen? What were you looking to
4 find?
5 A. Well, at any crime scene the goal is to is to find any
6 evidence of what caused the event. In the case of the
7 explosion in Nairobi, it was obvious to me that there had been
8 a large quantity of explosives used. So I was looking for a
9 very likely what I was going to find is a delivery vehicle.
10 In order to get that much explosives to the scene something
11 has to carry it there.
12 Q. Now, when you arrived in Nairobi did you walk around the
13 neighborhood surrounding the American embassy?
14 A. Yes, I did.
15 MR. KARAS: If we could display Government Exhibit
16 802E which is already in evidence, please.
17 Q. Now, Agent Sachtleben, did you physically walk around that
18 area that's depicted on 802E?
19 A. Yes, I did.
20 Q. Did you have an chance to get an aerial view of that area?
21 A. Yes. On the afternoon of Sunday, August 9th, I went up in
22 a Kenyan Army helicopter and had a chance to survey the scene
23 from several thousand feet above it.
24 Q. Did you have an opportunity to review still photos and
25 videos taken in the immediate aftermath of the incident on
2220
1 Friday morning?
2 A. Yes. At our command post in Nairobi I had access to some
3 videos and some still photographs that I was told were taken
4 in the immediate aftermath of the explosion.
5 Q. Did you see any evidence in those videos or photographs of
6 a crater or a large hole?
7 A. I saw, in one particular video I saw what appeared to be a
8 hole in the parking area behind the embassy, and when I, in
9 the video the hole was actually filled with water, so it's
10 difficult to determine the extent of it.
11 Q. The red mark there that's in the back parking area of the
12 embassy, does that accurately depict where you saw the hole in
13 the videos that you looked at?
14 A. That appears to be roughly where I saw the hole, yes.
15 Q. Now, you mentioned that you walked around the area. Can
16 you tell us about what type of damage you saw outside the
17 immediate vicinity of the US embassy?
18 A. As I walked up to the area from the temporary command post
19 that we had set up, I noticed that virtually every building as
20 I walked toward embassy, the windows were broken out. As I
21 got closer to the embassy, the amount of damage just increased
22 incredibly; windows broken, metal frames from the facades of
23 the buildings were twisted; masonry, that is brick work was
24 either knocked down or cracked; there were burned out vehicles
25 on the street, and I observed on several occasions what I
2221
1 recognized to be body parts still laying in the street.
2 Q. Now, Agent Sachtleben, did you get a chance to walk around
3 the area right around the US embassy and the cooperative house
4 and what's called the gateway house there on 802E?
5 A. Yes, I did.
6 MR. KARAS: Your Honor, may I ask that Agent
7 Sachtleben step down and approach the model?
8 THE COURT: Yes.
9 (Witness left stand)
10 Q. Now, did you have a chance to make some observations about
11 the center floor of the US embassy?
12 A. Yes, I did.
13 Q. What did you see?
14 A. The rear area of the embassy, that is the side of the
15 embassy that faces into this parking area was just devastated.
16 Every window was blown out. The cement or brick work that was
17 along the face of the wall of the embassy had numerous places
18 where there appeared to be high velocity impact, that is,
19 there were holes or cracks in the wall.
20 I could see window frames that were just actually
21 twisted right out of the wall itself.
22 Q. Did you take a tour of the inside of the embassy?
23 A. I did.
24 Q. Can you describe for us the damage you observed in there?
25 A. Looking at the rooms that were the closest to the back
2222
1 portion of the embassy here, those rooms were just almost
2 completely destroyed. The style of construction in the
3 embassy was that internal walls were made of cinder block.
4 Construction over there is different from what we would
5 commonly have here, that is, dry walls.
6 There they actually have this cinder block walls. In
7 many cases these cinder block walls were just completely
8 knocked over. There were piles of brick work, glass,
9 overturned furniture, and there were in many places in those
10 rooms where there were pools of blood or body parts that were
11 in there.
12 Q. Did you have a chance to take a look at the outer facade
13 of the cooperative house that faced the embassy?
14 A. Yes, I did. This wall here that you see on the model,
15 it's actually made from brick. This, all 22 stories, brick
16 work, and then in the center there is some windows. All those
17 window were broken. The facade of the building was scorched
18 as if it had been hit by a very high temperature and the brick
19 work was cracked, and actually for the whole time that we were
20 there pieces of brick were constantly falling off of the
21 building and falling down 18 or 20 stories.
22 Q. And the building here in the back, the Ufundi House, did
23 you see what was left of that building?
24 A. Well, what I saw when I got there was certainly not this.
25 What I saw was really just like a pile of rubble. This
2223
1 building had been reduced to maybe one or two stories high of
2 flattened pieces of concrete steel and glass. It was just an
3 enormous mound of rubble.
4 MR. KARAS: Thank you. You can return to the witness
5 stand.
6 (Witness resumed stand)
7 Q. Now, Agent Sachtleben, you mentioned earlier that you had
8 developed a plan to recover evidence. Can you summarize that
9 plan for us, please.
10 A. As at any crime scene it's usually best to work from the
11 outside in, but at this crime scene we had to be particularly
12 aware of the fact that the efforts to rescue people who were
13 still alive in that rubble were ongoing. So in my plan we
14 stayed well away from that pile of rubble and concentrated our
15 efforts at the roof tops and some of the outlying areas away
16 from the embassy.
17 Q. And did you eventually work your way in closer to the
18 embassy?
19 A. Certainly. Within several days the rescue efforts had
20 gone as far as they could go at the Ufundi House, and when
21 they had finished there, we turned our efforts to that pile of
22 rubble.
23 Q. How was it that you recovered evidence from that the pile
24 that was in the back of the embassy?
25 A. Well, as I mentioned, one of the biggest concerns we had
2224
1 there was our own physical safety. The glass and bricks that
2 were falling off of the cooperative bank made it almost
3 impossible to work become there. So I directed that we bring
4 in some heavy equipment, some bulldozers, and we just scooped
5 up scoops of this rubble and transported it a couple of
6 hundred yards away to a safer area.
7 Q. And on the diagram that's marked 802E, can you tell us in
8 a general direction that you removed the pile to?
9 A. If you look at the lower right-hand corner of the diagram
10 it's actually just a little bit off of the diagram, but right
11 in front of the Kenya railway station there, there was a flat
12 clear area where we were able to work.
13 Q. Now, can you tell us what criteria you were using to
14 actually collect evidence or just to retain it?
15 A. At a bombing scene what I look for and what I direct the
16 team members to look for, any pieces, any objects at the scene
17 that appear to have explosive damage to them. That's one
18 criteria.
19 Another criteria is we're very interested in anything
20 that doesn't seem to belong to the scene. For example, we
21 might find many window frames or doors or things like that
22 that might have some explosive damage, but we're really not
23 that interested in collecting too many of those, because we
24 know what they are. We're looking for things that simply
25 don't belong there.
2225
1 Q. And did you eventually finish your evidence collection
2 efforts in the crime scene area?
3 A. Yes. Our efforts went on until I believe it was August
4 24th that we declared ourselves clear of that area.
5 Q. What happened with the items you elected to keep?
6 A. Items that were taken from the rubble pile and the other
7 areas that we searched, those were stored in a locked and
8 secure storage facility there at the crime scene. On August
9 28th I directed that those items be moved to a United States
10 Air Force cargo plane and my team and I accompanied that plane
11 back to the United States to Washington.
12 Q. Did you get a chance to analyze the pieces that you had
13 collected from the crime scene back in Washington?
14 A. Yes. Once I got them back into our laboratory I was able
15 to make a more detailed examination of them.
16 MR. KARAS: Your Honor, may I ask that Agent
17 Sachtleben step back down?
18 THE COURT: Yes. When you come to a good stopping
19 point, maybe this is a good stopping point.
20 MR. KARAS: Yes, your Honor, that's fine.
21 THE COURT: I think we'll save until Monday the rest
22 of your testimony. We'll adjourn until Monday. Have a good
23 evening.
24 (Continued on next page)
25
2226
1 (Jury not present)
2 THE COURT: Are there any matters counsel wish to
3 take up before we resume own Monday?
4 MR. COHN: Just as a technical matter although I
5 started with this witness Mr. Baugh will continue with this
6 witness in violation of the usual rule.
7 THE COURT: My understanding and a lot of the concern
8 is with Mr. Al-'Owhali's consent that you'll be absent next
9 week and Mr. Baugh will interview.
10 MR. COHN: We confirmed that on the record yesterday
11 and I'm not even sure it's necessary. One of us had to be
12 here and one of us will be.
13 THE COURT: I understand that there are some
14 discussions going on about stipulations and discovery and so
15 on.
16 MR. SCHMIDT: We will be meeting shortly.
17 MR. FITZGERALD: Shortly meaning not tonight.
18 THE COURT: I am available any time from 9 to 11
19 tomorrow, if needed. Otherwise, we're adjourned until Monday.
20 (Adjourned to Monday, March 12, 2001 at 10 a.m.)
21
22
23
24
25
2227
1 INDEX OF EXAMINATION
2 Witness D X RD RX
3 CHARLES MUWAKA MULA.....2125 2142 2158
4 PAUL SUVI WANGI.........2163
5 MICHAEL OMUSI OPIYO.....2168
6 ISMAIL JAMA ALI.........2172 2186 2187 2189
7 2193 2197
8 2198
9 JUSTUS MUTISYA..........2204
10 DONALD SACHTLEBEN.......2212
11 GOVERNMENT EXHIBITS
12 Exhibit No. Received
13 562 ........................................2150
14 563 ........................................2151
15 580-115 and 580-117 ........................2177
16 47, 822, 822-P, 823 and 823-P ..............2206
17 810H .......................................2209
18 838, 815 through 837 and
19 817P through 837P...........................2212
20 DEFENDANT EXHIBITS
21 Exhibit No. Received
22 B, B1, B2, B3, B4, B5, B6, B7, B8,
23 C, D, E, F, G, H, I, J and K................2045
24
25
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