3 April 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 25 of the trial, 2 April 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 April 2, 2001
10:25 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
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1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
9
FREDRICK H. COHN
10 DAVID P. BAUGH
LAURA GASIOROWSKI
11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
12 DAVID STERN
DAVID RUHNKE
13 Attorneys for defendant Khalfan Khamis Mohamed
14
SAM A. SCHMIDT
15 JOSHUA DRATEL
KRISTIAN K. LARSEN
16 Attorneys for defendant Wadih El Hage
17
18
19
20
21
22
23
24
25
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1 (Trial resumed)
2 (Pages 3570-3573 sealed)
3 (In open court)
4 THE COURT: The next order of business will be what?
5 MR. FITZGERALD: We are going to display several
6 documents, about five minutes worth, and the next witness will
7 be Sohail Anjum. The witnesses today, until we get to
8 Sciarini, they would not like to be sketched.
9 THE COURT: I think there is a representative of CNN
10 here, so they are aware of that request.
11 MR. FITZGERALD: These witnesses all have to do with
12 the stop of Odeh and chain of custody of clothing.
13 THE COURT: Am I correct that the consequence of
14 going to daylight savings time is there is no need for a 4:30
15 prayer break?
16 MR. COHN: I will seek information on that.
17 MR. HERMAN: I am informed the prayer break can take
18 place after the court is in recess.
19 (Jury present)
20 THE COURT: Good morning. I apologize for a late
21 start, because of efforts that have been made to expedite
22 matters, and at the close of business today I hope to make a
23 further statement to you about our schedule. I think you will
24 be pleased.
25 At the close of the business on Tuesday I was handed
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1 two notes, and I did not have an opportunity to respond. On
2 May 10 we will not sit in the morning, to allow a juror to
3 attend to a happy occasion, and my congratulations about that.
4 The other note was directed to the speed with which
5 stipulations have been read to you, especially stipulations
6 including phone numbers, names, addresses and so on. Counsel
7 have rattled them off at a rate which made it difficult if not
8 impossible to make note of all the names and numbers. I have
9 shared your letter with counsel about slowing things down and
10 leaving displays on the screen for a longer period of time.
11 I should also advise you that at any time during your
12 deliberations if you should wish to see any document,
13 including any stipulation which has been entered into, you may
14 do so. So it isn't necessary to write every name and number.
15 I can't keep up with it either. I make a note of the
16 stipulation number and the general nature of what it contains
17 so that I know if I want to see a particular matter I can ask
18 for stipulation 73, and so on.
19 I will ask counsel to slow down because the note
20 taking process becomes more feasible, but you should know if
21 you make a note of the stipulation number and the general
22 content, during your deliberations, by a process I will
23 explain in the charge, you can ask to see the particular
24 stipulation or if you wish all of the stipulations.
25 MR. FITZGERALD: Thank you, Judge. We would like to
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1 begin by displaying two documents seized during the search of
2 Mercy International, the first one being Government's Exhibit
3 621A. We will just enlarge the subscriber on the phone bill,
4 and I will read into the record Khalid A.H. al Fawazz, Box
5 55200, Nairobi.
6 Then the second document from the Mercy International
7 search is 622A. It is a xerox of a passport, and I will read
8 the name listed, Khaled, K-H-A-L-E-D, A, H, al Fauwaz, A-L
9 capital F-A-U-W-A-Z. That was Government's Exhibit 622A.
10 At this time Mr. Butler would read from a
11 stipulation.
12 MR. BUTLER: Stipulation previously marked for
13 identification as Government's Exhibit 181.
14 THE COURT: Stipulation 181.
15 MR. BUTLER: It is hereby stipulated and agreed by
16 and between the parties that if called as a witness an
17 employee of Senator Travel Services, Ltd., Nairobi, Kenya,
18 would testify as follows:
19 1. Government's Exhibit 540 is a true and accurate
20 copy of selected pages from the ticket register books of
21 Senator Travel of the period January through August 1998. The
22 ticket register books record tickets purchased or issued by
23 Senator Travel.
24 2. Government's Exhibit 541A through E are true and
25 accurate copies of tickets for Pakistan International Airways
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1 flight 744, departing on August 2, 1998, from Nairobi, Kenya,
2 to Karachi, Pakistan, in the name of Sheik Ahmed Salim Swedan
3 Anisa Swedan, Karima Swedan, Azzam Swedan, and Nuru Omar
4 Basheeb. These tickets were issued by Senator Travel on or
5 about July 1, 1998.
6 3. Government's Exhibits 541F through 541I are true
7 and accurate copies of tickets for Pakistan International
8 Airways flight 744, departing on August 2, 1998, from Nairobi,
9 Kenya, to Karachi, Pakistan, in the name of Mustafa Ali
10 Elbishy, Fatma Saggar, Anas Elbishy and Yusra Elbishy. These
11 tickets were issued by Senator Travel on or about August 1,
12 1998.
13 4. Government's Exhibits 541J through 541M are true
14 and accurate copies of tickets for Pakistan International
15 Airways flight 744, departing on August 2, from 1998, from
16 Nairobi, Kenya, to Karachi, Pakistan, in the names of Ahmed
17 Ahmed, Khadija Hemed, Amina Abdalla Hemed, and Fatma Hemed.
18 The ticket for Ahmed Ahmed was issued by Senator Travel on or
19 about October 3, 1998. The tickets for Khadija Hemed, Amina
20 Abdalla Hemed, and Fatma Hemed were issued by Senator Travel
21 on or about May 5, 1998.
22 5. Government's Exhibit 541N is a true and accurate
23 copy of a ticket for Emirates Air flight 739 departing Nairobi
24 on August 14, 1998, to Moroni, the Comoros, and for further
25 travel to Karachi, Pakistan, via Dubai, United Arab Emirates,
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1 in the name of Fazul Abdalla. The ticket was issued by
2 Senator Travel on or about August 7, 1998.
3 It is further stipulated and agreed that Government's
4 Exhibits 540 and 541A through 541N may be received in evidence
5 at trial. It is further stipulated and agreed that this
6 stipulation may be received in evidence as a government
7 exhibit at trial.
8 The government would offer this stipulation, which is
9 Government's Exhibit 181, and the Exhibits Government's
10 Exhibits 540, and 541A through N in evidence.
11 THE COURT: Government's Exhibits 181, which is the
12 stipulation, and Exhibits 540 and 541A through N are received.
13 (Government's Exhibits 181, 540, and 541A-541N
14 received in evidence)
15 MR. FITZGERALD: Judge, at this time the government
16 would read from a stipulation marked and received in evidence
17 as Government's Exhibit 50. We read from certain paragraphs
18 of that stipulation last week. I will now read from paragraph
19 6, which indicates that the parties stipulate that
20 Government's Exhibit 518 is the original register for the
21 Hilltop Hotel for the period between July 3, 1998, and August
22 18, 1998, and Government's Exhibit 518 may be admitted in
23 evidence.
24 At this time we would offer Government's Exhibit 518.
25 THE COURT: Received.
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1 (Government's Exhibit 518 received in evidence)
2 MR. FITZGERALD: At this time we would display two
3 pages from Government's Exhibit 518.
4 The entry, if it is appearing on people's screens,
5 should be for an Abu Bakr Khalfan, A-B-U, B-A-K-R,
6 K-H-A-L-F-A-N, for 1-8-98.
7 The second entry that will be displayed is from a
8 later page, and if we could focus on the page reflecting
9 August 4 entry, 4/8/98, the top entry on the page, which
10 indicates Abdul Basit, and on the right, the far column
11 indicates 0011061 as the number. If we can enlarge the page
12 again and indicate that the number 0011061 appears under
13 passport number or i.d. card in the name Abdul Basit and the
14 date of arrival is 4/8/98. This is from the register of the
15 Hilltop Hotel.
16 I would now return to a stipulation marked as
17 Government's Exhibit 50.
18 JUROR: There is something falling off the ledge
19 here.
20 THE COURT: What is it? Dirt?
21 JUROR: It is on the chairs, Judge.
22 THE COURT: Why don't we take a recess and I will get
23 the building maintenance to see what it is.
24 (Recess)
25 THE COURT: Ladies and gentlemen, I am sorry for the
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1 inconvenience. It has all been dusted and checked, and it is
2 just a further illustration of how difficult it is sometimes
3 to know how long something is going to take.
4 Mr. Fitzgerald.
5 MR. FITZGERALD: Thank you, Judge. Returning to the
6 stipulation marked Government's Exhibit 50, paragraph 7. It
7 is stipulated by the parties that Government's Exhibits 519A
8 through 519C are true and accurate copies of the business
9 records of the Eagle Travel agency in Mombasa, Kenya. It is
10 further stipulated that if called to testify, the employee at
11 Eagle Travel who sold the tickets in the name of Abdull Bast
12 Awadah, spelled A-B-D-U-L-L, capital B-A-S-T, capital
13 A-W-A-D-A-H, and Fahid Masalam, F-A-H-I-D, M-A-S-A-L-A-M,
14 would testify that both tickets were purchased by Fahad,
15 F-A-H-A-D, Masalam, M-A-S-A-L-A-M, on August 3, 1998, in
16 exchange for total payment of $936 cash.
17 Government's Exhibits 519A through 519C may be
18 admitted in evidence.
19 Your Honor, I would offer 519A through C at this
20 time.
21 THE COURT: Received.
22 (Government's Exhibits 519A through 519C received in
23 evidence)
24 MR. FITZGERALD: At this time we would display
25 Government's Exhibit 519A.
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1 THE COURT: Stipulation 50 is already in evidence?
2 MR. FITZGERALD: Yes, Judge. Page 1, and just
3 reading the name Fahid Masalam, F-A-H-I-D, M-A-S-A-L-A-M, and
4 if we could display the fourth page of that exhibit, and the
5 green card reads at the top M-S-A-L-A-M/F-A-H-I-D Mohamed,
6 M-O-H-A-M-E-D, Ally, A-L-L-Y, Mister, M-R. Underneath that,
7 two lines down, it reads Awadah, A-W-A-D-A-H, with a slash
8 mark, followed by Abdull Bast, A-B-D-U-L-L, B-A-S-T, followed
9 by M-R for mister, and underneath that, next line says Y-E,
10 and then P-P-T, and the number 00110161. Beneath that, in the
11 far column under C-A-R-R, it says P-K under F-L-T, 746 and
12 then it says 6 August.
13 Now turning to 519B, if we could display that on the
14 screen, and focusing on the name on the top portion
15 handwritten, Abdalla Ahmed, spelled A-B-D-A-L-L-A, separate
16 word A-H-M-E-D, and the ticket below shows a route from
17 Nairobi to Karachi, K-A-R-A-C-H-I, to Sanaa, S-A-N-A-A, and
18 the date listed for Nairobi to Karachi is August 6 at the time
19 of 1500. And then the Karachi to Sanaa, S-A-N-A-A, leg is
20 open.
21 If we display the second page of that exhibit, and
22 that is a card which reads Mr. Abdulla, A-B-D-U-L-L-A, Ahmed,
23 A-H-M-E-D, Abdallah, A-B-D-U-L-L-A, followed by the initials
24 Y-E, and then the initials P-P-T, and the number 0325191.
25 At this time, your Honor, I would return to
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1 Government's Exhibit 50, the stipulation already received in
2 evidence, and read from paragraph 12, which indicates that the
3 parties stipulate that Government's Exhibit 523 is a true and
4 accurate copy of records of the Yemeni government concerning
5 Yemen passport 325191, and Government's Exhibit 523T is a fair
6 and accurate translation of that passport, the records
7 concerning that passport.
8 I would offer at this time, your Honor, Government's
9 Exhibit 523 and 523T.
10 THE COURT: Received.
11 (Government's Exhibits 523 and 523T received in
12 evidence)
13 MR. FITZGERALD: If we could display 523, the first
14 page, and if we could enlarge the photograph in the upper left
15 corner, and if we could put that on the left side of the
16 screen, and on the right side of the screen, if we put
17 Government's Exhibit 4, page 6. And reading from below on
18 Government's Exhibit 4-6, Abu Mohamed, M-O-H-A-M-E-D, el
19 Masry, M-A-S-R-Y, and below that Saleh, S-A-L-E-H.
20 I will now return to Government's Exhibit 50, the
21 stipulation, and read from paragraph 8. It is stipulated that
22 Government's Exhibits 520A and 520B are true and accurate
23 copies of business records of Pakistani International Airways.
24 Government's Exhibits 520A and 520B may be admitted in
25 evidence.
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1 At this time, your Honor, I would offer 520A and
2 2520B in evidence.
3 THE COURT: Received.
4 (Government's Exhibits 520A and 520B received in
5 evidence)
6 MR. FITZGERALD: If we could display on the screen
7 Government's Exhibit 520A, and if we could enlarge the
8 passenger name, Awadah, A-W-A-D-A-H, slash Abdull Bast,
9 spelled again A-B-D-U-L-L, B-A-S-T, followed by the word M-R.
10 And if we can restore the full item again reflecting a flight
11 from Nairobi to Karachi, if we could enlarge that line,
12 including the date column to the right, showing 06 August.
13 And on the far left column, if we could enlarge again, the
14 reference to the Yemen PPT and the number 0011061. And just
15 reading the top right column -- it does not need to be
16 enlarged, just the date, it says 03 August 1998, Eagle Travel
17 Service.
18 We will now display Government's Exhibit 520B, and
19 reading the passenger's name, Msalam, M-S-A-L-A-M slash
20 F-A-H-I-D, followed by the word mister, M-R. And if we could
21 step back, again we have a flight from Nairobi to Karachi, and
22 the date reflected says 06AUG for August, and again looking
23 back at the entire ticket, the upper right corner says August
24 3, '98, and again I should note that both 520A and 520B, the
25 word honoured, spelled the British way, H-O-N-O-U-R-E-D, is
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Anjum - direct
1 stamped across the tickets.
2 Your Honor, at this time we would call as a witness
3 S-U-H-A-I-L, Anjum, A-N-J-U-M, and also swear in an Urdu
4 translator to assist as a stand-by interpreter.
5 (Ravi Kotru duly sworn as Urdu interpreter)
6 SOHAIL ANJUM,
7 called as a witness by the government,
8 having been duly sworn, testified through
9 the interpreter as follows:
10 DIRECT EXAMINATION
11 BY MR. FITZGERALD:
12 Q. Sir, would you face me and try to look at the microphone.
13 It will help you be heard from afar.
14 Can you tell the jury what you do for a living.
15 A. I am a subinspector with Pakistan immigration.
16 Q. Directing your attention three years ago to August 7,
17 1998, were you then a subinspector with Pakistani immigration?
18 A. Yes. On August 7, 1998, at that time I was a subinspector
19 at group rifles -- group in charge at arrivals international,
20 karachi airport.
21 Q. Did there come a time on the morning of August 7, 1998,
22 when you met a flight coming in from Nairobi, Kenya?
23 A. I just started my duty for the day. I just started
24 working that day.
25 Q. What time did your shift start that day?
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Anjum - direct
1 A. 8:00.
2 Q. Did anything unusual happen when you met the people coming
3 off the plane from Nairobi, Kenya?
4 A. Well, see, what's usual, the group-in-charge usually stays
5 behind the counter, and the passengers who have been cleared
6 already, their passports are checked. The stamps are looked
7 at again.
8 Q. Were you doing the job of rechecking the people coming
9 from the flight in Nairobi?
10 A. Yes, I checked those people.
11 Q. Did you notice anything out of the ordinary when you
12 checked, rechecked the passports of the people coming from
13 Nairobi?
14 A. Yes. One passenger, whose name Abdul Basit, B-A-S-I-T, he
15 was in front of me and he put his passport in front of me, and
16 on his passport picture there was a beard, but the man in
17 front of me didn't have a beard, and his coloring was
18 different. It was much fairer. But the picture on the
19 passport, the one on the passport was a little darker. So I
20 asked him how come there is a mismatch between you and the
21 passport picture.
22 Q. What if anything did the man say in response?
23 A. He responded, how could I say that, that this was my
24 imagining. So I repeated to him the differences again from
25 the picture and his real person, that there was a difference
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Anjum - direct
1 of beard, there was a difference of coloring. And when he was
2 in front of me he couldn't look me straight in the eyes. His
3 eyes were downcast. He was looking down.
4 Q. So what did you do then?
5 A. So I came to a conclusion that this passport didn't belong
6 to -- that this was not a genuine case, this passport didn't
7 belong to this person.
8 Q. So what did you do?
9 A. So my in-charge, Mr. Riaz Gondal, who was standing right
10 by me --
11 Q. Why don't we stop there. You mentioned Riaz, R-I-A-Z, and
12 could you spell Gondal?
13 A. G-O-N-D-A-L.
14 Q. Can you explain what you meant by your in-charge, what
15 that meant?
16 A. He who was standing by me, he also noticed that there was
17 something fishy, the guy was not looking at me straight in my
18 eyes.
19 Q. So what happened then?
20 A. So I told him that I was convinced this passport was not
21 his, it doesn't belong to him. In my local lingo, I would
22 call it man change.
23 THE COURT: Still happening?
24 MR. FITZGERALD: The air conditioners kicked in,
25 Judge.
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Anjum - direct
1 THE COURT: Is it still coming in?
2 JURORS: Yes.
3 MR. FITZGERALD: Judge, I think they want to keep
4 going but they want it off.
5 BY MR. FITZGERALD:
6 Q. Sir, forgetting what your conversation was with the man,
7 what happened to the man? Where did he go?
8 A. Since I am considered an expert in Pakistani immigration
9 now --
10 MR. HERMAN: Judge, I object. It is not responsive.
11 MR. FITZGERALD: We will consent to a motion to
12 strike.
13 Q. Sir, if you could just listen to my question. Don't tell
14 us what you thought or what you said. You were standing with
15 a man in the immigration area at the airport.
16 A. Yes.
17 Q. Did someone take him someplace else?
18 A. So what transpired is that my inspector Riaz, when I told
19 him that the passport didn't belong to him --
20 MR. HERMAN: Objection.
21 THE COURT: Two words. What happened? What
22 happened?
23 A. So he took him with him and took him to his office.
24 Q. When Mr. Gondal took this person to his office, did you
25 remain at your post? Yes or no.
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Anjum - direct
1 A. Yes.
2 Q. Did you later go to Mr. Gondal's office and see that
3 person in Mr. Gondal's office?
4 A. Yes, for a little while, yes, I did go to Mr. Gondal's
5 office.
6 Q. When you went in the office, did you see any items there?
7 A. Yes, the item I saw was a bag which was open and there
8 were some clothing items there.
9 Q. What do you recall about what the bag looked like?
10 A. It was, the material was something like what parachutes
11 are made out of, something very loose, fibrous stuff.
12 Q. What if anything did you see inside the bag or removed
13 from the bag?
14 MR. HERMAN: I am sorry. I have an objection. There
15 are two questions there. I think it should be broken down.
16 THE COURT: Yes, sustained.
17 Q. What items did you see in the bag?
18 A. Some clothing and maybe a couple magazines. One of them
19 was even open, right on top.
20 Q. Did you ever take the bag yourself?
21 A. No.
22 Q. Let me approach you with what has been premarked as
23 Government's Exhibit 526A and B for identification.
24 A. Yes.
25 Q. I ask you to look at the item marked Government's Exhibit
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Anjum - direct
1 526A, and because there is dust on it, if you could just use
2 the gloves, and ask if you recognize what the item in your
3 hand is, Government's Exhibit 526A?
4 A. Yes. This piece recalls for me the same document that I
5 saw that time. It's the same man. It's the same passport.
6 Q. That is the passport that the person you stopped on August
7 7 was carrying?
8 A. Yes. This is the passport that man was holding, the one
9 that he presented to me on August 7.
10 MR. FITZGERALD: I would offer Government's Exhibit
11 526A.
12 THE COURT: Received.
13 (Government's Exhibit 526A received in evidence)
14 Q. If you look at the item in front of you, Government's
15 Exhibit 526B.
16 A. Yes.
17 Q. If you could just tell us what Government's Exhibit 526B
18 appears to be.
19 A. This was the authorized visa that he was traveling to
20 Pakistan on.
21 Q. Does it list a passport number on that visa, if you can
22 read it?
23 A. I am not sure.
24 Q. If you can't read it, don't try.
25 A. Passport number -- I can see the passport number.
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Anjum - direct
1 Q. Can you tell us what the passport number is.
2 A. It's a little dim here.
3 Q. Don't strain.
4 Going back to 526A, the passport, is there a passport
5 number in that passport?
6 A. Yes.
7 Q. If you could just read the passport number into the
8 record.
9 A. 011061.
10 Q. Is there a country? What country is the passport from?
11 A. Yemeni.
12 Q. One last question, sir. You mentioned that this happened
13 at the start of your shift at 8:00. Was that 8:00 in the
14 morning or in the evening?
15 A. This was 8 a.m. shift, which goes on until 2 p.m.
16 Q. And obviously 8 a.m. Pakistani time, correct?
17 A. Yes, 8:00 in the morning Pakistani time.
18 MR. FITZGERALD: Thank you. I have nothing further.
19 CROSS-EXAMINATION
20 BY MR. HERMAN:
21 Q. Good morning, Mr. Anjum.
22 A. Good morning.
23 Q. Mr. Anjum, unless I tell you that I want you to say what
24 people said, all I am asking you is what you did. Is that
25 understood? Understood?
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Anjum - cross
1 A. Can you give it to me again, please.
2 Q. I am not going to ask you what people said. I am only
3 going to ask you what you did, or what you saw. Do you have
4 any questions?
5 A. No, it's OK.
6 Q. Thank you. It is my understanding that you were a
7 subinspector of immigration at that time.
8 A. Subinspector then and even now, yes, subinspector.
9 Q. You were working in the Karachi airport?
10 A. Yes.
11 Q. And your shift started at approximately 8:00 in the
12 morning on August 7, 1998; is that correct?
13 A. Yes.
14 Q. And your job was to check people's passports as they came
15 through the airport; is that right?
16 A. Yes, to recheck.
17 Q. I am sorry, recheck?
18 A. Recheck, yes.
19 Q. Did someone have the job of checking them before you?
20 A. Yes, they stamp it. They are called stamping officers.
21 Q. Stamping officers?
22 A. Yes.
23 Q. But your job is to make sure, or one of your jobs, to make
24 sure that the picture looks like the person who is carrying
25 the passport; is that correct?
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Anjum - cross
1 A. Amongst other responsibilities this is one, yes.
2 Q. And to determine whether the passport is a legitimate
3 passport for that passenger.
4 A. Yes, that and to verify if there is something wrong with
5 the picture, something wrong with the visa.
6 Q. The flight that you were checking that morning was PIA
7 flight 746, is that right?
8 A. Yes, that is the flight.
9 Q. Were there other subimmigration officers also on duty at
10 that time?
11 A. Yes, there are, there are definitely other subinspectors
12 on work, but there is only one group-in-charge.
13 Q. Were you in charge or was someone else in charge?
14 A. I was the group-in-charge and the in-charge was Riaz
15 Gondal.
16 Q. That is Mr. Gondal, who is your supervisor; is that right?
17 A. Yes, he is the superior officer. He is the inspector, I
18 am the subinspector.
19 Q. When the flight landed that morning, approximately how
20 many passengers got off the flight?
21 A. I can't recall.
22 Q. Was it the usual number of people that you would expect to
23 arrive on the flight that morning?
24 A. Yes, it would be a normal count, same number of people
25 that come normally.
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1 Q. There came a time when you were presented with a passport
2 that you have identified here this morning; is that correct?
3 A. Yes.
4 Q. That is Government's Exhibit 526A that you already had a
5 chance to look at before.
6 A. Yes, I did see it, yes.
7 Q. Mr. Anjum, when you were handed that passport that
8 morning, you looked over to the person who had given you the
9 passport; is that right?
10 A. Yes, absolutely. That man had this passport, the man who
11 stood in front of me had this passport that morning.
12 Q. And you looked at the picture in the passport?
13 A. Yes.
14 Q. And you looked at the man?
15 A. Yes.
16 Q. And the picture was very different than the man that you
17 were looking at.
18 A. Different, yes.
19 Q. Different facial hair, right, no beard?
20 A. That man was without a beard but the passport picture had
21 a beard.
22 Q. And the skin coloration of the man in the passport was
23 different than the skin coloration of the man that was in
24 front of you?
25 A. Definitely, the man who stood in front of me, he was
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1 fairer, but the one in the picture in the passport was darker.
2 Besides, his features were very different.
3 Q. His facial features were different than the person on the
4 photo in the passport; is that right?
5 A. It was an absolute mismatch.
6 Q. Because it was an absolute mismatch, you knew right away
7 that this was not a legitimate passport.
8 A. Absolutely, that this passport didn't belong to him.
9 Q. Did you actually raise it up and say this is not your
10 passport, something to that effect, what you said?
11 A. I told him this didn't match. And he was not looking me
12 in my eye. And besides my in-charge, who was standing next to
13 me, even he saw what was happening.
14 Q. At that point the man was avoiding your look, he was
15 looking down; is that right?
16 A. Well, very initially when he gave me the passport he
17 looked me straight in my face, but later on he put his eyes
18 down.
19 Q. So when you first saw him you had a very good look at him.
20 A. Absolutely. It's part of my job to evaluate a face right
21 in the first look, gaze.
22 Q. So you knew right away that this was suspicious?
23 A. Absolutely. I was a hundred percent sure it didn't belong
24 to him.
25 Q. And you reported this to your supervisor?
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1 A. So my in-charge, I reported to him. He happened to be
2 standing right next to me. I told him here is the passport,
3 it doesn't belong to him.
4 Q. Was Mr. Gondal standing right next to you?
5 A. Absolutely, right next to me.
6 Q. So he was in a position to see everything that happened.
7 A. Yes, he saw, he witnessed everything.
8 Q. As a result of your determination that this was a man
9 change, the person was detained at the airport; is that right?
10 A. He was detained, yes, as a consequence.
11 Q. You told us that a little bit later you looked at a bag.
12 A. Yes. That was luggage he was carrying. After I gave the
13 passport to Mr. Gondal, so they took the bag inside.
14 Q. After you gave the passport to your supervisor
15 Mr. Gondal -- is that correct?
16 A. Yes, absolutely, to Gondal.
17 Q. And then what happened to the bag?
18 A. So later on when I went into the office there, I saw the
19 bag, and it was open. There was some clothing items and a
20 magazine.
21 Q. When this man who came up with the bad passport approached
22 you, was he carrying anything at that time?
23 A. That's the carry-on, the handbag that he was carrying.
24 That was all he had.
25 Q. The same bag that was taken to the office a little bit
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1 later?
2 A. Yes, that was the bag that was taken to Mr. Gondal's
3 office.
4 Q. Was he carrying one bag or more than one bag?
5 A. I saw just one there.
6 Q. With regard to your position, were you in a place where
7 people would go after they had gotten all their luggage,
8 including carry-on and checked luggage?
9 THE INTERPRETER: I am sorry.
10 MR. HERMAN: It's a bad question. I will withdraw
11 it.
12 Q. When people get to your station.
13 A. Yes.
14 Q. Is this at a point when they have gotten all of their
15 luggage?
16 A. See, what happens is, first they have to go through the
17 health counter and then the immigration counter. Once they
18 have cleared immigration, then they collect their baggage and
19 clear the customs. That's the procedure.
20 Q. When you see them, do they have all of their luggage all
21 collected?
22 A. The ones who come to us probably have their carry-on
23 luggage with them, handbags. But the major baggage is
24 collected later.
25 Q. So your concern is really checking the passport against
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1 the passenger; is that correct?
2 A. Yes, passport.
3 Q. You are not concerned in your job with checking luggage or
4 bags or that type of thing.
5 A. Well, even though it is not a part of our responsibility,
6 but if somebody is suspected, we might bend the rules and
7 check the bags.
8 Q. Did you bend the rules and check the bag in this case?
9 A. No, I just saw it there. I didn't check it.
10 Q. When you saw it, was the bag open?
11 A. When I went in, at that instant the bag was open, I could
12 see some clothing items and a magazine on top.
13 Q. Were all the items inside the bag or had they been removed
14 and taken --
15 A. Well, the way I saw it was, the bag was open and I could
16 see the items that were contained by the bag. That's the way
17 I saw it, the whole thing.
18 THE COURT: You are now talking about in Mr. Gondal's
19 office?
20 THE WITNESS: Yes, absolutely.
21 Q. And it appears that you never actually touched the bag or
22 the items in the bag; is that correct?
23 A. I didn't touch anything. My job was to pass along
24 whatever needed to be passed along. What they did with the
25 rest of the story, I don't know. It is not part of my
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1 responsibility.
2 Q. When you discovered that the passport from this passenger
3 did not match the passenger, did that hold up your line of
4 people going through?
5 A. Well, it's a matter of two or three or four minutes,
6 because it comes from practice. My job is, we get that kind
7 of experience we make an instant evaluation whether it's going
8 to take long or not, and in the meantime, the people who are
9 on line, they wait patiently, because this kind of
10 passenger --
11 THE COURT: I think you have answered the question.
12 Perhaps if the question can be answered yes or no you should
13 suggest it.
14 MR. HERMAN: Thank you, your Honor.
15 Q. If you know, Mr. Anjum, what time was it that you stopped
16 this passenger with the bad passport?
17 A. Well, the flight landed around 8:45, and normally it is
18 about 10 minutes before a passenger gets to my counter.
19 Q. So it was approximately 9:00 in the morning in Karachi
20 when this took place; is that right?
21 A. Thereabouts, yes. I am not sure.
22 Q. Are you, Mr. Anjum, familiar with the different, generally
23 the different time seasons in terms of what time it is in
24 another country?
25 A. I am not very familiar with the time zones in different
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1 countries.
2 MR. HERMAN: Gerard, could you please put up
3 Government's Exhibit 259, please.
4 The government will stipulate 259 into evidence, your
5 Honor.
6 THE COURT: It has not previously been received?
7 MR. HERMAN: It didn't look like it.
8 MR. FITZGERALD: Not received previously but we will
9 stipulate.
10 THE COURT: 259, being a time zone map, is received.
11 (Government's Exhibit 259 received in evidence)
12 Q. Mr. Anjum, can you see Government's Exhibit 259 on the
13 screen?
14 A. Yes, I am looking at it.
15 Q. Let me ask you this. Pakistan is east of Nairobi, Kenya;
16 is that correct?
17 A. I can't see Nairobi here.
18 Q. Do you see different time seasons on that map?
19 A. I don't understand this.
20 Q. OK. Let me ask you this. When it is 9:00 a.m. in
21 Pakistan, is it earlier or later in Kenya, Nairobi?
22 A. I don't have an idea about the subject.
23 Q. You don't know, OK.
24 MR. HERMAN: We may produce a stipulation on the
25 subject at some point. That is all I have. Thank you.
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1 THE COURT: Anything more from this witness?
2 MR. FITZGERALD: No, Judge.
3 THE COURT: Thank you. You may step down.
4 (Witness excused)
5 MR. FITZGERALD: The government next calls Riaz,
6 RIAZ, Gondal, GONDAL.
7 MOHAMED RIAZ GONDAL,
8 called as a witness by the government,
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. FITZGERALD:
12 Q. Good morning, sir.
13 A. Good morning.
14 Q. If I could ask you to keep your voice up but also tell you
15 that you are free to use the translator to your left if it is
16 easier to answer questions.
17 Can you tell the jury what you do for work.
18 A. I am working as inspector in FIA, Federal Investigation
19 Agency in Karachi.
20 Q. As part of your duties with the Federal Investigative
21 Agency, do you work in the immigration capacity at the Karachi
22 airport?
23 A. Yes, I work as immigration officer at Karachi airport
24 during 1998.
25 Q. Directing your attention to August 7, 1998, were you
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1 working that day at the Karachi airport?
2 A. I was the in-charge of shift A of immigration at Karachi
3 airport on 7 of August 1998. That day of 7 of August 1998 was
4 a morning that starts at 800 hours to 1400 hours.
5 Q. So it went from 8:00 in the morning until --
6 A. 1400 hours.
7 Q. 2:00 in the afternoon. Thank you.
8 I am going to ask you some questions about what
9 happened on the morning of August 7. I would like you to tell
10 me what you saw or what you did but not to describe
11 conversation.
12 THE COURT: There is no question.
13 Q. Did you see inspector Sohail, S-O-H-A-I-L, Anjum,
14 A-N-J-U-M, dealing with a passenger that morning?
15 A. I just went close to the --
16 THE COURT: I am going to suggest that you ask
17 questions and I am going to recommend that you use the
18 interpreter.
19 (Continued on next page)
20
21
22
23
24
25
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1 Q. Mr. Goudal, if we could use the interpreter so that the
2 jury can understand easier with your accent.
3 If I could ask you this question, just yes or no, did
4 you see Mr. Suhail Anjum dealing with a particular passenger
5 on the morning of August 7th, 1998, coming off of a flight
6 from Nairobi?
7 A. Yes, sir.
8 Q. Thank you. And did you see what Mr. Suhail Anjum was
9 doing?
10 A. He was just checking the passport of the suspect of the
11 person in this way.
12 Q. He was looking up?
13 A. Holding up, standing, while he was standing, and I was
14 just in front of him looking the passenger, who was looking
15 downward, and Anjum was just this way checking the passport
16 and I thought the --
17 Q. Don't tell us what you thought.
18 Did you then take, did you take the passenger away
19 from the area where he was with Mr. Anjum?
20 A. When Mr. --
21 THE COURT: Could you answer that yes or no.
22 A. Yes, I took that passenger to my office room.
23 Q. Okay. And when you got to your office room, did the
24 passenger have any baggage with him?
25 A. At that moment he was not holding his baggage because I
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1 took him away from the concourse to my office room. He was
2 not allowed to cross the immigration barrier where the baggage
3 is collected after that.
4 Q. So when you brought him to your office, he did not have
5 baggage with him; is that correct?
6 A. He was not holding the baggage that I remember.
7 Q. Did there come a time when his baggage was collected?
8 A. When it was over, I sent a guy with him and he just
9 recognize his bag and collected that --
10 THE COURT: Would you please -- I appreciate your
11 desire to do this in English, but it would be easier for the
12 reporter and the jury if we use a translater.
13 (Through the interpreter)
14 THE WITNESS: That's fine.
15 Q. Okay. I will try to ask you yes or no questions. Did you
16 send someone who works with you with the passenger to collect
17 his baggage?
18 A. Yes, I did send somebody with him there. I did send a
19 person there to get this man's baggage.
20 Q. And when the baggage came, how many items were there?
21 A. Some clothing items there. Some clothing items, a towel,
22 a wrap-around, magazines, and a sarong kind of thing, a sheet.
23 Q. How many bags were there?
24 A. (In English) Only one bag. One handbag.
25 Q. And was there any money?
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1 THE INTERPRETER: I'm sorry?
2 Q. Did the passenger have any money with him?
3 A. Not in his bag, but on his person, yes.
4 Q. Do you recall how much money he had with him?
5 A. Maybe 500 U.S. dollars or 14 -- 1462 Kenyan shillings.
6 Q. Let me approach you with what has been received in
7 evidence as Government Exhibit 526A and what has been marked
8 for identification as Government Exhibit 526B and I'll hand
9 you gloves to keep dust from getting on your hands.
10 If you could look at Government Exhibit 526A, the
11 passport, in front of you and ask you if you recognize it.
12 A. I read it.
13 Q. Do you recognize that item?
14 A. This passport is from Yemen. It belongs to the same
15 passenger who was stamped on August 7th.
16 Q. And at some point did you make a Xerox copy of that
17 passport, yes or no?
18 A. Yes, I did.
19 Q. Let me approach you with what has been marked as
20 Government Exhibit 526C for identification and I ask you if
21 Government Exhibit 526C is a copy you made of that passport,
22 yes or no?
23 A. Yes, sir. Yes.
24 MR. FITZGERALD: Your Honor, I would offer Government
25 Exhibit 526C.
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1 MR. HERMAN: No objection.
2 THE COURT: Received.
3 (Government Exhibit 526C received in evidence)
4 BY MR. FITZGERALD:
5 Q. Now, can you describe what the bag looked like that the
6 passenger had?
7 A. It was carry-on bag made out of canvas.
8 Q. And let me approach you. What particular items do you
9 recall being in the bag that stick out in your mind?
10 A. The clothing and magazines and maybe some books, a towel
11 and underwear, a sheet of some sort. It was the kind of
12 clothing people wear. It was the regular part of his
13 traveling.
14 Q. Let me approach you with some items. First, let me
15 approach you with what has been marked for identification as
16 Government Exhibit 529 for identification, referring just to
17 the bag and not to its contents.
18 A. (In English) It's the same bag the passenger had.
19 MR. HERMAN: There's no question pending.
20 THE COURT: Yes. It's stricken. Ask a question.
21 Q. Do you recognize what Government Exhibit 529 is?
22 A. Yes, this belongs to the same passenger who was stamped on
23 August 7th.
24 Q. I'm going to show you some items from the bag and some
25 items packaged separately, and I just ask you to tell me
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1 whether or not you recognize those particular items, yes or
2 no.
3 A. That's right. That's fine.
4 Q. First I'll approach you with what has been marked as
5 Government Exhibit 530A, 536 and 537 marked for
6 identification.
7 530A, as in apple, 536 and 537, just tell us simply
8 whether or not you recognize those items now. If you do say
9 yes, if you don't say no.
10 A. Yes, I do recognize these items. These were with the
11 passenger, these items.
12 Q. Let me approach you with what has been marked as
13 Government Exhibit 535B. I will remove 535B from a brown bag,
14 a plastic bag, and ask you if you recognize this item.
15 A. I saw that this was in the bag, in the bag of the suspect.
16 It's called dojti, original language.
17 Q. And so we understand, the person that had a passport, if
18 you can just refer to him as a passenger from here on out.
19 Did the passenger, what was it about this item 535B
20 that stuck in your mind?
21 A. Well, see, I lived most of my life, as I said, in
22 Pakistan, this thing is part of the everyday gear. So here,
23 men use pants here, but this is warn as a matter of course.
24 There's a word for it called dojti, D-O-J-T-I, and it piqued
25 my curiosity and why would this passenger be carrying this
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1 kind of an item being--
2 MR. RICCO: Your Honor, there's no question pending
3 before the witness.
4 THE COURT: No, he is responsive.
5 The question is what is that stuck in your mind, and
6 he is explaining what stuck in his mind.
7 A. And why would an Arab be carrying this kind of an item.
8 Q. Now, with regard to the books and the magazine in front of
9 you, by looking at them can you tell whether or not they are
10 the actual books that were in the bag, or do they just look
11 like books, books and magazines?
12 A. Positively the same books.
13 Q. Why are you so sure they are the same books?
14 A. I rifled through the bag. Actually, I went through it
15 very carefully to find a scrap of evidence about his I.D. and
16 about his identity, so I kind of brushed these books with my
17 hand, dusted them.
18 Q. Let me approach you with Government Exhibit 545.
19 MR. FITZGERALD: Honor, may I approach with
20 Mr. Herman briefly at the sidebar?
21 THE COURT: Why don't we take our mid, whatever it
22 is, recess.
23 (Jury not present)
24 MR. FITZGERALD: If I could have a moment with
25 Mr. Herman, we may not need a sidebar. I just want to tell
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1 him something.
2 THE COURT: We'll take a five-minute recess.
3 (Recess)
4 (Jury present)
5 THE COURT: Mr. Fitzgerald, when the jury is seated
6 you may resume.
7 MR. FITZGERALD: Thank your, Judge.
8 BY MR. FITZGERALD:
9 Q. Now, sir, if you could answer the following question yes
10 or no: Did there come a time when you obtained an envelope
11 from the passenger that you were dealing with?
12 A. Yes, sir.
13 Q. Let me approach you with what has been marked as
14 Government Exhibit 542-I.D. for identification and separately
15 a sheet of paper marked Government Exhibit 3542.
16 Do you, recognizing that Government Exhibit 542 for
17 identification has been discolored, changed, do you generally
18 recognize what that is?
19 A. Yes, this is something that I got, the same passenger gave
20 to me.
21 Q. And is Government Exhibit 542 a photocopy of that document
22 which contained a writing on it at the time that you obtained
23 it?
24 A. Yes, sir.
25 MR. FITZGERALD: Your Honor, I would offer Government
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1 Exhibit 542-I.D. and Government Exhibit 542.
2 THE COURT: Yes, received.
3 (Government Exhibits 542-I.D. and 542 received in
4 evidence)
5 BY MR. FITZGERALD:
6 Q. If you would also answer the following question yes or no:
7 Did there come a time when you handed over the custody of this
8 passenger to another Pakistani official -- I'm sorry. Strike
9 that.
10 Did there come a time when you handed over the
11 custody of the property of this passenger to another Pakistani
12 official?
13 A. Yes, sir.
14 Q. Let me approach you with what has been marked as
15 Government Exhibit 545R for identification, and is that a copy
16 of a receipt you obtained when you obtained -- when you handed
17 over the property to another official, yes or no?
18 A. Yes, sir.
19 MR. FITZGERALD: Your Honor, I would offer Government
20 Exhibit 545R.
21 MR. HERMAN: Objection.
22 THE COURT: Received.
23 MR. HERMAN: There is an objection.
24 THE COURT: There is an objection.
25 May I see the document, please.
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1 MR. FITZGERALD: Your Honor, I also hand up to the
2 Court 545R-T, the translation.
3 (Pause)
4 THE COURT: I'll see counsel and the reporter in the
5 robing room. Sorry, ladies and gentlemen.
6 (Continued on next page)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 (In the hallway)
2 THE COURT: What is the basis of the objection?
3 MR. HERMAN: Judge, he didn't create this receipt.
4 The name of the person who created the receipt has been
5 redacted from the receipt so there is no way of knowing or the
6 jury to know who created receipt.
7 THE COURT: You want voir dire? You want voir dire
8 and ask him how he knows that this is the document?
9 MR. HERMAN: Outside the presence of the jury?
10 MR. RICCO: Judge, the objection is that this is
11 someone else's statement, that is not the witness's statement.
12 THE COURT: Which he can adopt. You want to ask him,
13 you want to pursue how he knows that that's the receipt that
14 he got?
15 MR. FITZGERALD: Yes, Judge.
16 MR. HERMAN: Judge, there's an additional objection.
17 The name of the person from whom he got it has been redacted.
18 We can't even introduce that as to who the person is or what
19 his role is or call him as a witness. This is --
20 MR. FITZGERALD: But, your Honor, we can deal with
21 that. My understanding is we were trying to avoid getting
22 anything into the fact that there was any interrogation going
23 on in Pakistan. I think if we go down that road on ---
24 MR. HERMAN: This is a property receipt. It has
25 nothing to do with interrogation. I agree we don't want to
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1 get into the interrogation. Somebody created the property
2 receipt and we don't know who it was. We only know this man
3 did not create it.
4 MR. FITZGERALD: Just so the record the clear,
5 Mr. Herman has the name. Counsel has the name on the receipt.
6 We redacted it for jury purposes.
7 THE COURT: The name won't have any meaning or
8 significance to the jury absent some other development about
9 who that person was.
10 MR. RICCO: Judge, can we have a moment? Just one
11 moment?
12 THE COURT: Yes.
13 (Pause)
14 MR. HERMAN: Judge, the objection is withdrawn.
15 THE COURT: The objection is withdrawn. The
16 objection to the receipt of that document?
17 MR. HERMAN: Yes, your Honor.
18 (Continued on next page)
19
20
21
22
23
24
25
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1 (In open court)
2 THE COURT: The objection is withdrawn and 545R is
3 received in evidence.
4 MR. HERMAN: Thank you, your Honor.
5 (Government Exhibit 545R received in evidence)
6 MR. FITZGERALD: At this time, your Honor, I have no
7 further questions.
8 THE COURT: Very well.
9 Mr. Herman.
10 MR. HERMAN: Thank you.
11 THE COURT: On behalf of defendant Odeh.
12 CROSS-EXAMINATION
13 BY MR. HERMAN:
14 Q. Good afternoon, Mr. Goudal.
15 I'm not going to ask you what you said or what anyone
16 else said. You understand?
17 A. Yes.
18 Q. I'm interested in what you saw and what you did and what
19 happened. Do you understand?
20 A. That's fine.
21 Q. Now, on the morning of August 7th, 1998, you were in
22 charge of inspections at the Karachi airport?
23 A. I was in charge of shift A, immigration shift A.
24 Q. And that began at approximately 8:00 in the morning; is
25 that right?
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1 A. From, it starts at 8 and ends at 2 in the afternoon.
2 Q. And sometime in that morning, flight PIA746 arrived from
3 Nairobi in Karachi; is that right?
4 A. Yes, it originated in Nairobi and it arrived in Karachi
5 via Dubai.
6 Q. It stopped in Dubai?
7 A. I'm not sure if it stopped there, but I know that it comes
8 en route Dubai to Karachi.
9 Q. What time did it arrive in Karachi?
10 A. Maybe 8:30, 8:45, but before 9 in any event. After 8:30.
11 Q. If you know, when it's 8:30 in Karachi, is it earlier, the
12 same time, or later in Nairobi, Kenya?
13 A. Because Nairobi is in Eastern Pakistan, so it will be
14 earlier in Nairobi.
15 Q. When it's 8:30 in the morning in Karachi, it is earlier in
16 Nairobi, is that true?
17 A. Yes, sir.
18 Q. At some point you became aware that there was a passenger
19 who had presented a passport and there was a problem with the
20 passport; is that right?
21 THE COURT: You can answer that yes or no.
22 A. Yes, sir.
23 Q. And when you learned of that, where were you? Where were
24 you located?
25 A. I was right in front of the Suhail Anjum, who was the lead
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1 checking officer. I was right there.
2 Q. And did you notice that Mr. Anjum was paying particular
3 attention to the passport?
4 A. Yes, sir.
5 Q. And in fact, at some point you had indicated -- and I'll
6 say for the record, Judge -- Mr. Anjum's hands were raised
7 above his head about a foot and he was looking up at the
8 passport, is that accurate?
9 A. It was raised. I wouldn't vouch for whether it was a foot
10 or not.
11 Q. Raised above his head, is that fair?
12 A. Yes. Right in front of him.
13 Q. Okay. And Mr. Goudal, you also had an opportunity around
14 that time to look at the photo in the passport, is that true?
15 A. Well, he gave me the passport, Mr. Suhail Anjum, he gave
16 me the passport with these words, that this passport is
17 suspect.
18 Q. I'm not asking for the words. Let me repeat the question.
19 Did you look at the passport?
20 A. Yes, I also looked at the passport.
21 Q. And then did you look at the passenger?
22 A. Yes, I did look at the passenger as well, yes, sir.
23 Q. And based on what you observed with regard to the
24 photograph in the passport and what you were looking at in
25 terms of the passenger, did you come to a determination that
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Goudal - cross/Herman
1 this was a false passport or an improper passport?
2 THE COURT: I think that's also a yes or no.
3 A. Yes.
4 Q. I understand that at the time that this was taking place
5 the passenger was not permitted to go on and leave the
6 airport; is that right?
7 A. That's correct, yes.
8 Q. And this process of examining the passport and looking at
9 the passenger took a few minutes, is that fair to say?
10 A. It took about -- it would take a little while longer.
11 Q. I'm sorry, more than two minutes?
12 A. Well, when he got to the front of the lead checking
13 officer, I'm not aware of how long he wrote it but was looking
14 at it.
15 Q. So it may have been two minutes, three minutes, four
16 minutes, in that general range?
17 A. (In English) I can't say.
18 Q. You don't know, okay.
19 At the time that it was determined that the passport
20 did not belong to the passenger, were there other people in
21 line behind the passenger?
22 A. Yes, the passengers were stopped there in the passenger
23 area for retaking of their passports.
24 Q. All right. And during the time that you and Mr. Anjum
25 were looking at the passport and the passenger, those other
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Goudal - cross/Herman
1 people had to stay and remain in line, is that true?
2 A. Suhail was checking the document. I stood in front of
3 him. He hand over the passport saying that is suspected case.
4 I just asked the passenger to look towards me. When he looked
5 towards me, I have a photograph in front of me.
6 MR. HERMAN: Objection, Judge. I'm sorry. He's not
7 answering the question. I have to object. I'll ask another
8 question.
9 THE COURT: Repeat your question and try so that we
10 can get a yes or no answer. And I instruct the witness if you
11 can answer yes or no, please do so.
12 THE WITNESS: I try to do a yes or no answer, but if
13 a question begs for an explanation, I'll try to give an
14 explanation.
15 THE COURT: Fine.
16 BY MR. HERMAN:
17 Q. I will try to ask a question that calls for a yes or no
18 answer.
19 There's no question. There's no question.
20 THE COURT: Just ask it.
21 Q. During the time when you and Mr. Anjum were with the
22 passenger, were the other passengers in line delayed?
23 A. This question, I can't answer this question yes or no.
24 This will need to be explained.
25 THE COURT: It's already been answered, so --
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Goudal - cross/Herman
1 MR. HERMAN: I'll move on, Judge. Thank you.
2 Q. Mr. Goudal, with regard to the items in the bag, did you
3 take any photographs of the items in the bag?
4 A. No.
5 Q. Did you do anything other than look at the items?
6 A. No.
7 Q. Were there any shoes in the bag?
8 A. I don't remember.
9 Q. Were there any socks in the bag?
10 A. I don't remember.
11 Q. Was it your job to take over the custody of the bag?
12 A. Since the passenger was inadmissible, it was our job to
13 keep -- let him keep the luggage so he could be deported.
14 Q. So was it your intention to give him the bag, give the bag
15 back to him?
16 A. Well, see, it happens, it's like this. The passenger we
17 intend to deport, he usually ends up carrying his own bag. We
18 don't keep his bags.
19 MR. HERMAN: Thank you. That's all I have, your
20 Honor.
21 THE COURT: Anything further of this witness?
22 MR. FITZGERALD: No, Judge.
23 THE COURT: Thank you. You may step down.
24 (Witness excused)
25 MR. FITZGERALD: The government calls Gabriel
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Mutunga - direct
1 Mutunga.
2 GABRIEL MUTUNGA,
3 called as a witness by the government,
4 having been duly sworn, testified as follows:
5 THE CLERK: Please be seated. Please state your full
6 name, sir.
7 THE WITNESS: My name is Gabriel Mutunga.
8 DEPUTY CLERK: Could you spell your last name.
9 THE WITNESS: Mutunga, Mutunga, M-U-T-U-N-G-A.
10 (Swahili interpreter standing by)
11 DIRECT EXAMINATION
12 BY MR. FITZGERALD:
13 Q. Sir, what do you do for a living?
14 A. I am the criminal investigations officer in charge of
15 Central Province, Kenya.
16 Q. Directing your attention to August 1998, were you also
17 working for the Kenyan police at that time?
18 A. Correct.
19 Q. And let me direct your attention to a specific day, August
20 14th, 1998, the week after the bombing. Did there come a time
21 when you were sent to an airport?
22 A. Correct, your Honor.
23 Q. And do you recall what time of day you went to the
24 airport?
25 A. I went to airport at around 6 in the evening.
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Mutunga - direct
1 Q. And did there come a time when an airplane arrived that
2 you were to meet?
3 A. Correct.
4 Q. And what time did the airplane arrive?
5 A. It arrived at around 7:30 in the evening that same day.
6 Q. What did you do when the airplane arrived?
7 A. I went inside the aircraft -- I mean, the aircraft,
8 accompanied by a Pakistani high commissioner in Kenya.
9 Q. Can you explain to the jury who the Pakistani high
10 commissioner is or what a high commissioner is?
11 A. He's like an ambassador, but he was acting.
12 Q. And what did you and the Pakistani high commissioner do
13 once you boarded this aircraft?
14 A. While inside, I took over the suspect which the Pakistani
15 people had brought to Kenya.
16 Q. Let me focus on items of property. Did you take custody
17 of any property once you were on board the aircraft with the
18 high commissioner?
19 A. Can you say again?
20 Q. Did you take custody of a person when you were on board
21 the airplane, yes or no?
22 A. Yes.
23 Q. And did you also take custody of property, personal
24 belongings, the luggage, on the aircraft?
25 A. Yes, I did.
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Mutunga - direct
1 Q. Can you tell the jury how you went about the process of
2 taking custody of the luggage, the property?
3 A. The items or the personal belongings were displayed on the
4 seat. They were spread on the seat, on the plane seat.
5 Q. Spread?
6 A. They were put, they were put on the seat, and then there
7 was handing over certificate which described all the items I
8 was to take over from them.
9 Q. And did you do anything to verify that the items on the
10 seat were reflected or -- strike that.
11 Did you do anything to make sure that the items
12 listed on the handing over certificate were in fact the items
13 placed on the seat?
14 A. Yes, I did.
15 Q. Tell the jury what you did.
16 A. I read the list and I confirmed the items mentioned were
17 there, each, I mean one-by-one, all the items listed in the
18 list. I mean, I checked and found they were correct.
19 Q. Who prepared the list? Did you prepare the list or
20 somebody else?
21 A. I beg your pardon?
22 Q. Who prepared the list?
23 A. Who gave me the list?
24 Q. Who prepared it? Who made it?
25 A. It had been -- it came with the Pakistani offices.
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Mutunga - direct
1 Q. So they gave you a list and then you checked the list
2 against the items that were on the seat?
3 A. Correct.
4 THE COURT: I want to interrupt.
5 The Court reminds you, Mr. Interpreter in Swahili,
6 that you are still under oath.
7 THE INTERPRETER: Pardon?
8 THE COURT: That you are still under oath.
9 THE INTERPRETER: Yes. I understand.
10 Q. And what were the -- were the items contained in anything?
11 How many items of luggage were there?
12 A. The items were many. I cannot recall all of them. There
13 were many personal items.
14 Q. Were they contained in anything?
15 A. There was, what I can remember, I remember I saw a
16 passport, I saw air tickets, used air tickets, I saw personal
17 clothings, like underwears, socks, a belt. There was also a
18 wristwatch and there was -- all these items were put in a blue
19 handbag.
20 Q. Let me approach you with what has been marked as
21 Government Exhibit 546.
22 I have shown to you what has been marked for
23 identification as Government Exhibit 546 and I ask you to take
24 a look at that document and tell me whether or not you
25 recognize it.
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Mutunga - direct
1 A. Yes, these are the items listed down, these are the same
2 items I took over from the Pakistani office officials.
3 Q. And the document in front of you, the three pieces of
4 paper, Government Exhibit 546, what is that, the piece of
5 paper in front of you, the document?
6 A. This is the handing over, taking over certificate.
7 Q. And did you sign that certificate?
8 A. Yes, I did.
9 Q. Did you sign it on that day?
10 A. On that same day, yes.
11 MR. FITZGERALD: Your Honor, I would offer Government
12 Exhibit 546.
13 THE COURT: Received.
14 (Government Exhibit 546 received in evidence)
15 BY MR. FITZGERALD:
16 Q. Let me approach you with what has been premarked as
17 Government Exhibit, I believe, 529 for identification. I ask
18 you to take a look at that, just the outside, and tell me if
19 you recognize that.
20 A. Yeah, I can identify the bag. It is the same as the -- it
21 looks like the same one I took over that day.
22 Q. What color is the bag?
23 A. It's dark blue or black. Dark -- it's black. Blue.
24 Q. And what did you do with the bag once you got it on that
25 day, August 14th?
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Mutunga - direct
1 A. I went with it, after taking over all the items which was
2 spread on the seat, I took them and put inside the bag.
3 Q. And when you got on the airplane, were the items, when you
4 first got on the plane, were they in the bag or were they
5 spread on the seat outside the bag when you walked on the
6 plane?
7 A. When?
8 Q. When you walked through the plane, do you remember if the
9 items were in the bag at that time and then taken out, or if
10 they were sitting on the seat outside the bag, if you recall?
11 A. Yeah, I recall. These items were removed from the same
12 bag, spread on the seat.
13 Q. Who removed the items from the bag and put them on the
14 seat?
15 A. The Pakistani officials.
16 Q. And who put the items from the seat back into the bag?
17 A. It's in my custody after I took over, after confirming the
18 list.
19 Q. What did you do once you had the bag? What did you do
20 with the bag once you left the area of the airport?
21 A. You mean from the airport?
22 Q. Yes.
23 A. I took the custody of the bag and went with it with the
24 other items to the office at CID headquarters.
25 Q. What did you then do with the bag?
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Mutunga - direct
1 A. I went with the bag and the suspect. It was in the
2 evening. I handed over the suspect to the custody of CID, and
3 then because there was nobody there who I could hand over the
4 bag, I went with it to my office, which is not within CID
5 headquarters, and I put the same bag at my cabinet and locked
6 it there overnight.
7 Q. Did do anything with the bag the next day?
8 A. Yes. The next day I removed the bag and I went with it to
9 CID headquarters again and then I handed over to a Mr.
10 Muchori.
11 Q. Can you spell that for the record.
12 A. Mr. Edward Muchori, M-U-C-H-O-R-I.
13 Q. Can you tell the jury how you went about the process of
14 handing over the items to Mr. Edward Muchori?
15 A. I spread them, all items, on a small table which was in
16 his office and I showed him all the items and I gave him this
17 list also for him to confirm whether the terms were correct.
18 This is list which had been prepared by the Pakistani people.
19 And then I also prepared my holding list for handing over,
20 taking over for me to him, which, after he confirmed, he
21 signed on that list I had prepared.
22 Q. Were there any other Kenyan officials present when you
23 handed over the items to Mr. Muchori?
24 A. Yes, there was another police officer, a CID officer,
25 known as Rosemary, I think Wanjiru. Rosemary Wanjiru.
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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Mutunga - direct
1 Q. And if you could just tell us physically who touched the
2 items in the bag during that time when you were at the CID
3 headquarters turning over the items.
4 A. It was myself and Rosemary.
5 Q. And what did you do with the items? When did you touch
6 the items?
7 A. I mean, I touched all the items as I was counting them for
8 her.
9 Q. Did you take the items out of the bag yourself?
10 A. Myself, no. It is Rosemary who took the items back in the
11 bag.
12 Q. I'm sorry?
13 A. It is Rosemary.
14 Q. You said took back. Let me see if we can clarify this.
15 Who took them out of the bag?
16 A. It is myself who took them out of the bag.
17 Q. And who put them back in the bag?
18 A. Rosemary Wanjiru.
19 Q. And were either of you wearing gloves at the time that you
20 handled the items in the bag?
21 A. I beg your pardon?
22 Q. Did you wear gloves when you handled the items in the bag?
23 A. No.
24 Q. Did Rosemary wear gloves, if you recall?
25 A. She did not wear any.
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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Mutunga - direct
1 Q. You mentioned that you prepared your own list of items.
2 Let me approach you with what has been marked as Government
3 Exhibit 547.
4 I'm going to ask you to take a look at Government
5 Exhibit 547 and tell me if you recognize what that is.
6 A. Yes.
7 Q. Do you recognize that?
8 A. This is the list, the handing over, taking over
9 certificate which I prepared as I handed it over to Mr. Edward
10 Muchori, which is signed after taking over the items and also
11 signed, and this was on the 15th of August.
12 Q. And did you verify that the contents of that document were
13 accurate before you signed it?
14 A. I --
15 Q. Did you make sure that the items listed on that document
16 were accurate to the best of your ability before you signed
17 it?
18 A. Yes.
19 MR. FITZGERALD: Your Honor, I would offer Government
20 Exhibit 547.
21 MR. RICCO: Brief voir dire, your Honor?
22 THE COURT: Yes.
23 MR. RICCO: May I approach the witness?
24 THE COURT: You are going to examine this witness?
25 MR. RICCO: Yes, sir.
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Mutunga - direct
1 THE COURT: Voir dire is the opportunity given to
2 opposing counsel to ask questions as to the admissibility of
3 the document in evidence. It's not cross-examination. It is
4 related solely to the basis for the introduction of the
5 exhibit.
6 VOIR DIRE EXAMINATION
7 BY MR. RICCO:
8 Q. Mr. Mutunga, what day did you sign this document? What
9 date?
10 A. This one?
11 Q. Yes, sir.
12 A. It was on the 15th of August, 1998.
13 Q. Who typed, prepared the document, you or someone else?
14 A. It is not myself.
15 Q. Someone else typed it?
16 A. Somebody typed. I prepared. I prepared and then typed.
17 Q. Okay. I notice that on the second page of the document
18 there is a handwritten entry. If you can turn to the second
19 page, there's an item P. Do you know who has handwritten
20 there?
21 A. Oh, yes.
22 Q. You notice that? Let me ask you a question, do you notice
23 it?
24 A. Yes, I know the handwriting.
25 Q. Okay. Yes. Do you know that writing?
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Mutunga - direct
1 A. It is me.
2 Q. Okay. Did you put that handwritten information in before
3 or after you signed this document on August 15th, 1998?
4 A. It was after, after I realized that I did not include the
5 green jacket.
6 Q. When did it come to you -- when did you realize that you
7 left something off the typewritten document?
8 A. It was around the same time that day, that day. During
9 that same time as I was handing over that same day, that same
10 time.
11 MR. RICCO: No objection, your Honor.
12 THE COURT: 547 received.
13 (Government Exhibit 547 received in evidence)
14 MR. FITZGERALD: I have nothing further, Judge.
15 MR. RICCO: Your Honor, this would be a good time to
16 break.
17 THE COURT: Be a good time to break. We'll break for
18 lunch, then, and we'll resume at 2:15.
19 (Luncheon recess)
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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142kbin3
Mutunga - direct
1 AFTERNOON SESSION
2 2:15 p.m.
3 THE COURT: We prepared a memorandum of the hearsay
4 issue, the bottom line of which is --
5 MR. WILFORD: Excuse me, your Honor. No one is here
6 for Mr. Al-'Owhali.
7 THE COURT: I will repeat it when he comes back. It
8 does not particularly concern Mr. Al-'Owhali. The bottom line
9 concludes that if the question is did Mr. Al-'Owhali mention
10 Mr. Odeh and the answer is no, that that is not precluded by
11 the hearsay rule, and also concludes that if the government on
12 redirect said did Mr. Al-'Owhali say anything about his
13 intention about disclosing all names that isn't precluded by
14 the hearsay rule, which depending on the precise language of
15 the questions and the answers -- the reason I am sharing the
16 memorandum with you is that maybe it suggests that a
17 stipulation would deal with it, both on what would be said on
18 direct and indirect, and why don't we take that up on
19 Wednesday.
20 GABRIEL MUTUNGA, resumed.
21 (Jury present)
22 THE COURT: Mr. Wilford, what is the next order of
23 business?
24 MR. FITZGERALD: Yes, one question I omitted to ask,
25 and I forgot again. Thank you.
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Mutunga - direct
1 DIRECT EXAMINATION continued
2 BY MR. FITZGERALD:
3 Q. Mr. Mutunga, when you put the items in your locked cabinet
4 on the night of the 14th, what other types of items were kept
5 in the cabinet?
6 A. Other cases but no more exhibits.
7 Q. Were there any more exhibits involving the bombing in that
8 cabinet?
9 A. No.
10 Q. Did any of your other cases involve bombings or
11 explosives?
12 A. No.
13 MR. FITZGERALD: Thank you. Nothing further.
14 CROSS-EXAMINATION
15 BY MR. RICCO:
16 Q. Good afternoon, Detective Mutunga. The day the bombing
17 happened in Kenya, August 7, 1998, did you respond to the
18 bombing site?
19 A. Yes, I did.
20 Q. And I take it that you, like many other people, helped out
21 at the scene.
22 A. Helped?
23 Q. Yes. Did you help?
24 A. No.
25 Q. Were you present at the bombing scene after it happened?
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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Mutunga - cross
1 A. When it happened? Can you repeat again.
2 Q. Sure. Let me start all over. The day the bombing took
3 place was August 7, 1998, right?
4 A. Yes.
5 Q. You were a policeman on duty that day, weren't you?
6 A. I was on duty, yes.
7 Q. When the bombing happened, you went to the scene of the
8 bombing; isn't that correct?
9 A. Yes, I did.
10 Q. While you were at the scene of the bombing, did you assist
11 with helping people from the scene?
12 A. No, I did not.
13 Q. Did you move or touch anything while you were there?
14 A. I did not touch or move anything.
15 Q. You walked in, right?
16 A. I was there, but I never touched or moved anything.
17 Q. Did your feet touch anything while you were there? Did
18 your feet touch anything while you were there? Your feet.
19 A. Yes. Of course I stepped on the ground.
20 Q. Did your clothes come in contact with people or things
21 while you were there? The clothing that you were wearing, did
22 they come in contact with people that day? Did anybody brush
23 up against you that day? (Interpreted)
24 A. Well that one, I cannot remember.
25 Q. Muchari was responsible for the entire investigation;
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Mutunga - cross
1 isn't that correct?
2 A. He was not -- yes, he was in charge.
3 Q. Did you see him at the bombing location on August 7, 1998?
4 A. I did not see him.
5 Q. After August 7, 1998, did you ever go back to that
6 location?
7 A. Yes, I went back again.
8 Q. Did you go on the 8th?
9 A. On the 8th, yes, I was there.
10 Q. Did you touch anything or anybody on that day?
11 A. I never touched anything. I was there.
12 Q. What about on August 9? Did you go there that day? Did
13 you go there on August 9?
14 A. On the 9th, I think I also went, yes.
15 Q. Did you touch anything or anybody on August 9 when you
16 were there?
17 A. I cannot recall I touched anything. I mean, I never
18 touched anything or anybody.
19 Q. Were you there on August 10 at the bomb scene?
20 A. I don't remember.
21 Q. How about August 11 or 12?
22 A. Those are the days I remember I was there for about two,
23 three days, but other days, no.
24 Q. In the times that you were at the bombing location, did
25 you ever observe Rosemary Wanjiru at the bomb location?
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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Mutunga - cross
1 A. No, I never saw her.
2 Q. You were selected to go to the airport to bring into
3 custody Mr. Odeh, correct?
4 A. Correct.
5 Q. You went there because he was arrested in connection with
6 the bomb blast which occurred on the 7th of August; isn't that
7 correct?
8 A. It's correct.
9 Q. Is this the first job that you did in connection with the
10 investigation of the bomb blast?
11 A. That is correct, the first assignment.
12 Q. Before you got to the airport, did anybody say to you
13 before you touch anything in this bag put on a pair of gloves?
14 Did anybody tell you that?
15 A. Come again.
16 Q. OK. Before you went out to the airport to pick up Mr.
17 Odeh, did any of your supervisors say to you if you are going
18 to touch anything belonging to him, put on a pair of gloves?
19 Did anybody say that to you?
20 A. No.
21 Q. So when you went to the airport that day and the clothing
22 in the bag was spread out on the seat, you were not equipped
23 with any gloves or special items or special equipment to
24 handled those clothing items; is that right?
25 A. I don't have gloves and those items to me were not special
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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Mutunga - cross
1 items. I took them as personal belongings, not anything
2 special.
3 Q. Now let me ask one question again. When you touched those
4 clothing items to check and make sure they were all there,
5 were you wearing gloves? Yes or no.
6 A. No.
7 Q. When you took these items back to your offices and placed
8 them in a cabinet, were you wearing gloves when you were
9 carrying that bag, the handle of that bag?
10 A. No.
11 Q. The next day, August 15, you said to us that the clothing
12 items were spread out on a small table that was in
13 Mr. Muchari's office, correct?
14 A. Correct.
15 Q. And the person who spread those items out on that table
16 was you.
17 A. Correct.
18 Q. And I take it that when you put your hands in the bag to
19 get those items to spread them out on the table, you wasn't
20 wearing gloves; is that right?
21 A. Ask again that one.
22 Q. OK, I'm sorry. At the time you took the items out of the
23 bag and spread them on the small table in Mr. Muchari's
24 office, you were not wearing gloves.
25 A. Correct.
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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Mutunga - cross
1 Q. And when Rosemary was handling those clothing items, she
2 also was not wearing gloves.
3 A. Correct.
4 Q. When you were a police officer in Kenya, were you trained
5 in how to handle evidence?
6 A. You mean how to handle exhibits?
7 Q. Yes.
8 A. To me particularly, these were not exhibits, so I handled
9 them as personal belongings. That was my belief.
10 Q. So it was a conscious decision that you made, right?
11 A. Correct.
12 Q. You could have been wearing gloves, you just chose not to
13 wear gloves, right?
14 A. If there was a need for me to look for gloves, I would
15 have acquired, because they are there.
16 Q. Did the guy who was in charge of the whole investigation,
17 Mr. Muchari, say to you I think it might be a good idea if you
18 put gloves on?
19 A. Mr. Muchari talk about gloves?
20 Q. Yes. That's what I am asking.
21 A. No.
22 Q. And he is in charge of the whole investigation.
23 A. He was.
24 Q. The table that was in Mr. Muchari's office, do you know if
25 that was the first time that any items connected with the
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Mutunga - cross
1 bombing was placed on that table?
2 A. I don't know, because that was not my office. I don't
3 know if there were items before there. There were items that
4 I brought in.
5 Q. By August 15, your department's investigation had been
6 going on for almost one week; isn't that right?
7 A. Yes.
8 Q. How far was your office from the bombing location?
9 A. It's about four kilometers apart.
10 Q. I want to ask you a couple questions about two of the
11 items that's in evidence and I think I'm through. The first
12 is, the government has as GX546, and at the same time I would
13 like to show the witness, your Honor, GX547 so he can look at
14 them at the same time.
15 Your Honor, if it's OK, I will like I would like to
16 have those put on the split screen.
17 THE COURT: Sure.
18 Q. The document to our left, that's 546. This is the
19 document that is the receipt from the Pakistanis to you; isn't
20 that correct?
21 A. Correct.
22 Q. And 547 is you turning over the possessions of Mr. Odeh to
23 Mr. Muchari, correct?
24 A. Correct.
25 Q. Can we have the next page of this document changed,
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1 please. Can we have for 547 the first page up.
2 You told us that on the document 547, you said that
3 you made a mistake about the green jacket and you wrote that
4 in in hand. That would be on the second page of 547. Can we
5 have that up, please. I am sorry. Do you see that item
6 there, handwritten there, item P? One green jacket.
7 A. Yes, I can see it.
8 Q. You told us earlier that you wrote that in because you
9 realized that you had made a mistake, right?
10 A. Correct.
11 Q. And you wanted this document to accurately reflect what
12 you were turning over to Mr. Muchari; isn't that right?
13 A. I don't get you there.
14 Q. Let me rephrase it. You corrected the document because
15 you wanted the document to be accurate, right?
16 A. Right.
17 Q. You wanted that document to include all of the items that
18 you were turning over to Mr. Muchari, right?
19 A. Right.
20 Q. As a police officer, you know that keeping track of that
21 evidence is very important; isn't that right?
22 A. As I said again, I never treated all these as exhibits.
23 All along I treated them as personal belongings.
24 Q. As a police officer, you know that keeping a suspect's
25 personal belongings and items accurately is important, right?
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1 A. Is important, and this is why I included that green
2 jacket.
3 Q. When we look at 546, page 1, we see -- you can leave it
4 split, and can you give us 546, page 3, to the right.
5 The document before the court right now is 546, and
6 this would be the document that would accurately reflect what
7 the Pakistanis gave you, right?
8 A. Can you ask again?
9 Q. I am sorry. The document that we are looking at right
10 now, Government's Exhibit 546 that is in evidence, this is the
11 transfer agreement that you signed that you got from the
12 Pakistanis, right?
13 A. Correct.
14 Q. Now let's look at the items that you say you got from the
15 Pakistanis. You have item 5, one hand-carry bag containing
16 the following items, and then you have A, three shirts, three.
17 Do you see that?
18 A. Correct.
19 Q. You skip B, and you have C, trousers, right?
20 A. Correct.
21 Q. As you go through your list from A to P, there is no green
22 jacket there, right?
23 A. Correct.
24 Q. When you were going over your paperwork to make sure that
25 you had the information accurately recorded, did you notice
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1 here on this document that the green jacket wasn't listed?
2 A. Yes, correct.
3 Q. You did notice that?
4 A. I noticed the green jacket is not there.
5 Q. Is this the first time that you are noticing that it is
6 missing from this list?
7 A. Yes, when I saw it -- I mean, it's the first time. But I
8 saw the green jacket as well.
9 Q. Let me ask the question this way. You signed a document
10 saying that you received a certain amount of items, right?
11 A. Correct.
12 Q. You later found out that you had in fact received a green
13 jacket but it wasn't listed; isn't that right?
14 A. Correct.
15 Q. You made a mistake; isn't that right?
16 A. You ask if I made a mistake?
17 Q. You made a mistake. Is this a simple mistake? That's all
18 I am asking you.
19 A. To me it was not a mistake. What I found there -- I found
20 the green jacket along with the other items as you are
21 counting them, so I said it was probably mean to be included,
22 because I thought, I assumed it to belong to the suspect.
23 Q. My question is, this form that we have in front of us that
24 is in evidence is 546, and this form was signed by you; isn't
25 that right? You signed the form. That's your name, Gabriel
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1 Mutunga down there at the bottom of the second page, right?
2 A. I did.
3 Q. When you signed this form, you had in fact received items
4 that wasn't listed on the chart, right?
5 A. Simply what I did, when I was taking over the items as
6 listed down, I never looked at the suspect nor what clothes he
7 wore. So when I saw the jacket, I assumed it is one of his
8 clothes, because I never counted the clothes he had worn as I
9 was taking over the suspect. I assumed it was his.
10 Q. Let me see if I can walk you through it. You took the
11 clothes and you put them back in the bag one at a time, right?
12 A. Yes, I did.
13 Q. You got to a jacket, it was green. Did you put the green
14 jacket in the bag?
15 A. You mean at the airport?
16 Q. In the airplane, did you put the green jacket in the bag?
17 A. No, like I said, I never did that.
18 Q. You never put the green jacket in the bag?
19 A. Yes.
20 Q. When you brought Mr. Odeh out of the plane, right, he went
21 one way into the custody of other people, right, and the bag
22 went another way with you; isn't that right?
23 A. Correct.
24 Q. Where was the green jacket? With Mr. Odeh or with you?
25 A. Should have been with Mr. Odeh.
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1 Q. Should have been?
2 A. With Mr. Odeh.
3 Q. Do you know where the green jacket was?
4 A. I do not know.
5 Q. You don't know, do you?
6 A. Yes.
7 Q. You know that on the second day a green jacket was there,
8 right?
9 A. Yes, I saw it.
10 Q. In the bag.
11 A. Not in the bag, not inside the bag.
12 Q. Where did you see the green jacket at? On the table?
13 A. As I spread down the items and I listed them as I did in
14 my list, it was later I realized I saw a green jacket. I saw
15 a green jacket.
16 Q. So my question is, before you saw that green jacket on the
17 table, having been taken out of the bag, had you ever seen
18 that green jacket before? Yes or no.
19 A. I said no.
20 Q. The answer is no. Because you went over this chart before
21 you put your name on the bottom of it, isn't that right? I am
22 sorry, let me rephrase that question.
23 Government's Exhibit 546, the one that is in front of
24 the jury with your name on the bottom, before you signed that
25 document and put your name on the bottom you checked to see
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1 these items against what you had; isn't that right?
2 A. Yes, I did.
3 Q. And the next day -- can you put 547, second page, up.
4 When you signed the document the next day, which was
5 the 15th -- that would be 547 -- you also wanted that document
6 to reflect what you saw and that's why you included the green
7 jacket; isn't that correct?
8 A. Yes, I saw it on the table.
9 Q. And you signed this only after it accurately reflected
10 what you saw, which included the green jacket, right?
11 A. Yes.
12 Q. That's just straight good police work, right?
13 A. Right.
14 Q. After the items were turned over to Mr. Muchari, did you
15 ever see that bag again?
16 A. No.
17 Q. Did you have any further dealings with the investigation
18 surrounding the bombing?
19 A. Ask again.
20 Q. I will rephrase the question. Did you do any further work
21 in connection with the bombing investigation?
22 A. Never.
23 Q. Just two more questions.
24 There was some money that Mr. Odeh had when he was
25 brought into your custody, right?
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1 A. Correct.
2 Q. That was what, about 500 and some odd dollars, $546 United
3 States currency, right?
4 A. Correct.
5 Q. And I think it was 1462 shillings?
6 A. It was 1460 shillings.
7 Q. OK, I was two shillings off. You counted that money to
8 make sure it was right. You counted that money to make sure
9 it was right, didn't you?
10 A. Yes, I did, as I was handing over to Mr. Muchari.
11 MR. RICCO: I have no further questions. Thank you
12 very much.
13 THE COURT: Redirect?
14 MR. FITZGERALD: Briefly.
15 REDIRECT EXAMINATION
16 BY MR. FITZGERALD:
17 Q. I believe you just testified that the dollars that you
18 received were 546. If you could check the receipt you signed
19 and tell us how many dollars Mr. Odeh had. Do you have the
20 receipt in front of you? Government's Exhibit 546. Can you
21 tell us how many dollars, US dollars there were.
22 A. Yes. I saw them.
23 Q. How many US dollars were there?
24 A. There were $535 US.
25 MR. FITZGERALD: Thank you. Nothing further.
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1 THE COURT: Thank you, sir. You may step down.
2 (Witness excused)
3 MR. FITZGERALD: The government now calls Rosemary
4 Wanjiru.
5 ROSEMARY WANJIRU,
6 called as a witness by the government,
7 having been duly sworn, testified as follows:
8 DIRECT EXAMINATION
9 BY MR. FITZGERALD:
10 Q. Ms. Wanjiru, if you could sit up as close to the
11 microphone as you can and if you could point your voice to the
12 microphone and keep your voice up, everybody will be able to
13 hear you. If you need to use the translator, please do so.
14 Can you tell the jury what you do for a living.
15 A. I am a police officer.
16 Q. For how long have you been a police officer?
17 A. For the last 29 years.
18 Q. Let me direct your attention to August 15, 1998. Were you
19 working that day as a police officer?
20 A. Yes, sir.
21 Q. Did there come a time when you saw some items of baggage,
22 or luggage that day?
23 A. It was morning section between meetings.
24 Q. Can you tell the jury where you saw the items on that
25 morning or midday.
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1 A. It was in Edward Muchari's office.
2 Q. Who is Edward Muchari? Do you work for him?
3 A. Yes, I work for him.
4 Q. What happened that day in Mr. Muchari's office?
5 A. I was brought from my office. I went to Edward Muchari's
6 office. In there was Mr. Gabriel Mutunga and Edward Muchari,
7 and I entered the office.
8 Q. What happened when you went inside the office?
9 A. They were doing the handing over. Gabriel Mutunga was
10 handing over the bag to Edward Muchari, and I was observing
11 what they were doing.
12 Q. What did they do? How did the handing over take place?
13 A. Gabriel Mutunga removed the contents from the bag, and
14 then he had a sheet handing over which had the list of the
15 items which are in the bag. And then we counted each item,
16 ticking what we were seeing on the paper.
17 Q. What if anything did you do as part of that process?
18 A. Can you repeat it.
19 Q. What did you do? Did you touch any of the items?
20 A. Yes, I did.
21 Q. When did you touch them?
22 A. After Edward Mutunga gave out the things, then I had to
23 return them in the bag, making sure all the items on the list
24 were there.
25 Q. What did you do after you put all the items in the bag?
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1 A. They also prepared a list which Edward signed and
2 Gabriel -- they both signed, a ticking off of the note.
3 Q. Which people in the room touched the items of clothing?
4 A. I did, with the Captain Mutunga.
5 Q. Were either you or Mr. Mutunga wearing gloves at the time
6 you touched the items?
7 A. No, I can't remember wearing gloves.
8 Q. What did you do with the items once the process of taking
9 them out of the bag and putting them back in was finished?
10 A. I was instructed by Edward to keep them in safe custody.
11 Q. What did you do with them?
12 A. I kept them.
13 Q. Where did you keep them?
14 A. In our storeroom.
15 Q. Where is your storeroom?
16 A. It's in the basement.
17 Q. What else was in the storeroom at that time?
18 A. There was nothing.
19 Q. What was the storeroom used for? What was its purpose?
20 A. It wasn't being used because it's a new building and we
21 had not started in using it. So it was vacant. There was
22 nothing.
23 Q. Was there a place in the building where the FBI kept
24 exhibits?
25 A. No.
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1 Q. Did the FBI ever keep exhibits at the CID building?
2 A. Yes, but it was in second floor where they kept their
3 exhibits.
4 Q. So the room in the basement was different than the room on
5 the second floor of the FBI?
6 A. It's quite far.
7 Q. Do you recall, did there come a time when you removed the
8 bag from the storeroom?
9 A. Yes, I do.
10 Q. When was that?
11 A. On 20th.
12 Q. What did you do with the bag on August 20?
13 A. I was asked by Edward Muchari to bring the bag to his
14 office.
15 Q. Did you bring the bag to Mr. Muchari's office?
16 A. Yes, I did.
17 Q. What did you do with the bag once you got there?
18 A. We again removed the contents and now we were in the
19 process of handing over to an FBI officer who was now in
20 Edward Muchari's office.
21 Q. Do you remember the name of the FBI officer who Edward
22 Muchari's office?
23 A. Yes, I remember it was somebody Sciarini.
24 Q. How would you spell that last name?
25 A. S-C-A-R-I-N-I.
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1 Q. Can you tell the jury the process of how you went about
2 handing over the items in the bag on the 20th of August. What
3 did you do?
4 A. We removed the contents again, and now we handed over to
5 the FBI when he was saying what was in the contents in the
6 bag.
7 Q. Was there another document prepared at that time?
8 A. Yes.
9 Q. Did you handle the items on that day?
10 A. After they were handed over, I didn't handle them again.
11 Q. But in the process of handing them over, did you touch the
12 items yourselves?
13 A. Now the FBI officer was counter-checking what we handed
14 over to him.
15 Q. Do you remember if you touched the items this day, on
16 August 20?
17 A. I beg your pardon.
18 Q. Do you remember if you yourself touched the items on the
19 20th of August, as a process of turning them over?
20 A. I am not sure but many times in the process of counting.
21 Q. Do you recall if you were wearing gloves that day?
22 A. I can't remember wearing gloves.
23 Q. Let me approach you with what has been marked as
24 Government's Exhibit 547 in evidence and 578 for
25 identification. Looking first at Government's Exhibit 547, do
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1 you see the exhibit with that number?
2 A. Yes.
3 Q. Do you recognize what that document is?
4 A. Yes.
5 Q. What is that?
6 A. Handing over, taking over certificate.
7 Q. Who handed over the items to whom on that certificate?
8 A. Gabriel Mutunga was handing over to Edward Muchari.
9 Q. Looking at the other document, Exhibit 548 for
10 identification, do you recognize what that is?
11 A. Yes, I do.
12 Q. What is that?
13 A. Handing over, taking over certificate between Edward
14 Muchari and Sciarini.
15 Q. S-C-I-A-R-I-N-I?
16 A. Yes.
17 Q. Were you present when that happened?
18 A. Yes.
19 Q. Were you present as reflected when that took place?
20 A. Yes.
21 Q. Was that document filled out when you were present? Were
22 you present when that was signed, that document?
23 A. Yes, I was.
24 MR. FITZGERALD: Your Honor, I would offer
25 Government's Exhibit 548.
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1 THE COURT: 548 is received.
2 (Government's Exhibit 548 received in evidence)
3 Q. Looking on Government's Exhibit 547, if you look at item
4 E, it refers to a bed sheet, Government's Exhibit 547.
5 A. Item?
6 Q. Item E, E as in Edward.
7 A. Yes.
8 Q. Do you recall what that item was, the bed sheet?
9 A. It was a sheet, but not a bed sheet but something which
10 had been joined together.
11 Q. Let me approach you with an item which has been marked for
12 identification as Government's Exhibit 535B. I ask you if you
13 recognize this.
14 A. It is the one.
15 Q. Do you believe it is actually a bed sheet?
16 A. It's not a bed sheet, it's a sheet. But we didn't have
17 the name for it, so we just gave it that name.
18 Q. Between the time on August 15 when you put the items in a
19 storeroom and August 20 when you took them out, do you recall
20 if you added any other exhibits to that storeroom?
21 A. No, none.
22 MR. FITZGERALD: Thank you. I have nothing further,
23 Judge.
24 THE COURT: Mr. Ricco.
25 MR. RICCO: Thank you.
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1 Can we have Government's Exhibit 548 on the screen,
2 please.
3 CROSS-EXAMINATION
4 BY MR. RICCO:
5 Q. Good afternoon, Detective.
6 A. Afternoon.
7 Q. The first thing I wanted to ask you is about the signature
8 that appears on the bottom of this document. Whose signature
9 is on the line nearest to the bottom?
10 A. The second signature?
11 Q. Yes.
12 A. It is for Edward Muchari.
13 Q. And you recognize his signature?
14 A. Yes, I do.
15 Q. He was present when this transfer of items took place?
16 A. Yes, he was.
17 Q. He signed the document, right?
18 A. Yes, he did.
19 Q. Did he physically examine the items that were in the bag?
20 A. Yes.
21 Q. When I say physically examine the items, I mean did he
22 take the items out the bag and hold them and look at them?
23 A. He didn't touch.
24 Q. He did not touch the items?
25 A. No.
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1 Q. And the person that was asked to touch the items was you,
2 correct?
3 A. Yes, when I was returning them in the bag.
4 Q. But you didn't sign this document.
5 A. I did not.
6 Q. Muchari signed this document, right?
7 A. I did not.
8 Q. When you were going through the items in the bag, were you
9 wearing gloves?
10 A. I don't remember having worn gloves.
11 Q. Do you remember Mr. Muchari saying to you, Detective
12 Wanjiru rue, I think you should put some gloves on while you
13 are touching the stuff in the bag? Did he say that to you?
14 A. He didn't tell me to have gloves.
15 Q. And the FBI agent, the American FBI agent who was
16 receiving these items, Agent Sciarini, was Agent Sciarini
17 wearing gloves?
18 A. I can't remember.
19 Q. You had received the bag on August 15.
20 A. Yes.
21 Q. And I think you told us that you took the bag down to the
22 basement and it was the only thing down there, was that bag.
23 A. Yes. We have cabinets in the storeroom, nothing else.
24 Q. Was there things in the cabinets there?
25 A. I beg your pardon.
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1 Q. Cabinets that were in the basement, were they filled with
2 items or empty?
3 A. No, they are new cabinets which have not even been
4 unpacked. They are packed.
5 Q. So the only item in that basement was that bag.
6 A. Yes.
7 Q. That's this bag right here. Right?
8 A. Yes.
9 Q. And you were participating in the Kenyan investigation to
10 the bombing that took place on August 7, 19998, right?
11 A. Yes.
12 Q. The Kenyans were conducting their own investigation, isn't
13 that right?
14 A. No, the investigation was combined. We are not doing a
15 separate investigation.
16 Q. You weren't working for the FBI, were you?
17 A. We are jointly working together.
18 Q. Did somebody from the FBI tell you to put that bag in the
19 basement or did somebody from the Kenyan authorities tell you
20 to put the bag in the basement?
21 A. Kenyan authorities.
22 Q. And when you received that bag, did you receive it from an
23 FBI agent or did you receive it from a Kenyan investigator?
24 A. I received with from a Kenyan investigator.
25 Q. Tell me. During the course of the eight days from the 7th
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1 to the 15th, where did the Kenyans put the evidence that they
2 gathered in connection with this investigation?
3 A. The bag according to me was not exhibit, it was a part of
4 what the accused had. It was his belongings.
5 Q. I heard your answer, but that wasn't my question. My
6 question was, where did the Kenyans put evidence that it
7 gathered in connection with the bombing of the embassy in
8 Kenya?
9 A. I don't know, because we are many groups and everybody had
10 his own part.
11 Q. Was any of the evidence that the Kenyans gathered in the
12 course of the investigation of the bombing in Kenya kept in
13 Kenyan police headquarters?
14 A. I don't know that.
15 Q. How long have you been a detective? How long have you
16 been doing police work?
17 A. For many years.
18 Q. How many?
19 A. Twenty eight, nine years.
20 Q. This bombing was one of the biggest criminal events to
21 ever take place --
22 MR. FITZGERALD: Objection, your Honor.
23 THE COURT: Sustained.
24 Q. The bombing had the attention of the Kenyan police and the
25 intelligence division; isn't that correct?
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1 A. Um-hum.
2 Q. This was an important case, wasn't it? Right?
3 A. Yes.
4 Q. When you came up on the 15th into Mr. Muchari's room,
5 someone asked you to come to the room, right?
6 A. Yes.
7 Q. When you got to the room, were the items from the bag in
8 the bag or were they on the table or somewhere else? Let me
9 rephrase the question. I am sorry.
10 When you got to the room for the first time,
11 Mr. Muchari's room on August 15, when you walked into the room
12 did you see clothes out or were the clothes in the bag?
13 A. The clothes was moving when I was watching.
14 Q. Mr. Mutunga, I take it, was taking the clothes out of the
15 bag, right, and he was putting them on a table?
16 A. Um-hum.
17 Q. Do you know whether any items that were gathered in
18 connection with the bombing of this case, embassy, were ever
19 put on that table before August 15? Do you know?
20 A. No, I don't.
21 Q. Do you know whether or not people who were working on the
22 investigation met in Mr. Muchari's office before August 15,
23 1998?
24 A. I don't know that.
25 Q. I would like to bring your attention to the document that
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1 is on the screen. I notice that here, item B says trouser,
2 and it says one, right?
3 A. Yes.
4 Q. Are you sure there wasn't two pair of trousers in that
5 bag?
6 A. According to me, I saw one.
7 Q. You only saw one. Are you sure about that?
8 A. I saw one.
9 Q. What did the pair of trousers look like that you saw?
10 A. I can't remember it's that trouser.
11 Q. Were they a black pair of jeans?
12 A. Yes, it was black.
13 (Continued on next page)
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21
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24
25
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1 Q. Okay. All right. And you have a recollection of only
2 seeing one pair of black trousers in that bag, right?
3 A. Yes.
4 Q. When you were in Mr. Muchori's office -- can we have 547
5 placed on the screen, please.
6 You were present when Mr. Mutunga was taking items
7 out of the bag?
8 A. Yes, I was.
9 Q. Right?
10 A. Yes.
11 Q. There was one pair of trousers, right?
12 A. I saw one.
13 Q. Okay. And that pair of trousers was a pair of black
14 jeans, right?
15 Take your time.
16 A. I'm not very sure of the color, but I saw a trouser.
17 Q. All right. Could it be that the trousers that you saw on
18 the 15th in Mr. Muchori's office was a different color from
19 the trousers that you saw on the 20th when you were turning
20 over the items to the FBI?
21 A. No, because I'm the one who kept the bag.
22 Q. They were the same trousers, right?
23 A. Uh-huh, yes.
24 Q. And you're telling us now you're not sure about the color
25 of the trousers?
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1 A. After I kept the bag, I didn't go back to check until the
2 20th, when they were handed over. So I didn't have time to
3 stay with the trouser or with the items.
4 Q. Is that your way of saying you don't remember what the
5 color of the trousers were?
6 A. I'm saying I'm not sure.
7 Q. That's okay. That's all right. But you are sure that
8 there was only one pair of trousers?
9 A. Yes.
10 Q. All right. When you left Mr. Muchori's office,
11 Mr. Muchori told you to put this bag in a safe place?
12 A. Yes.
13 Q. And you followed his orders?
14 A. Yes, I did.
15 Q. And you locked the bag downstairs in the basement?
16 A. Yes.
17 Q. And who had the keys to the basement?
18 A. I do.
19 Q. Anybody else?
20 A. No.
21 Q. No. Okay.
22 So if you closed that bag on the 15th and it had one
23 pair of trousers in it, if there's two pair on the 20th,
24 somebody got in there, isn't that right? Right?
25 A. I still maintain I saw one.
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1 Q. That's okay. Now my question has to do with you locking
2 the room and you having the only key, okay? You're focusing
3 on that?
4 A. Uh-huh.
5 Q. You locked that basement on the 15th, right?
6 A. Yes.
7 Q. And you never went back down to open that room between the
8 15th and the 20th, right?
9 A. No, I didn't go back.
10 Q. For no reason?
11 A. Nobody went there, because I have the key.
12 Q. And no one came to you and said, I want to go downstairs
13 and open the basement, give me the key?
14 A. No.
15 Q. Now, are you aware if anybody else has the key?
16 How do you know you're the only person with the key?
17 A. Nobody has.
18 Q. How do you know that?
19 A. Because I'm the one who has maintained that key for since
20 then, even up to now.
21 Q. Okay. So on the 20th if there are two pairs of pants in
22 that bag, somebody other than you must have opened it to put
23 them there, right?
24 A. Maybe it was an oversight.
25 Q. What was an oversight?
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Wanjiru - cross/Ricco
1 A. When we were counting.
2 Q. On the 20th when you turned the property over to the
3 FBI -- can you put 548 on the screen, please -- you have
4 trousers, one. What's the oversight you're talking about?
5 A. I beg your pardon?
6 Q. On the 20th of August, this form was signed in front of
7 you saying there's one pair of trousers in that bag, right?
8 A. Yes.
9 Q. That's not an oversight, is it? Is that a mistake?
10 A. It is one.
11 Q. Yes. Yes or no?
12 A. It was one.
13 Q. Okay. And on the 15th -- can we have 547 placed back,
14 please -- and on the 15th when you saw one, it was just one,
15 isn't that right?
16 A. Yes.
17 Q. No oversight on either one of those days on your part,
18 isn't that right?
19 Right? You got to say yes or no. You don't have to
20 say yes or no.
21 A. Repeat the question again.
22 Q. All right. On the 15th where you have one trouser, that's
23 what you saw on the 15th, right?
24 A. Yes.
25 MR. RICCO: I have just a couple more questions, your
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1 Honor.
2 Q. On the 15th when you were up in Mr. Muchori's office, for
3 the first time when you saw these items on the bag, that took
4 place early in the morning. It was around 8:30, maybe 9:00 in
5 the morning, perhaps?
6 A. I don't know exact time, but it was before midday.
7 Q. Okay. Sometime during the morning hours?
8 A. Uh-huh.
9 Q. And when you were inside Mr. Muchori's office as these
10 items were being taken out of the bag, just answer me yes or
11 no: Were there any American officials present?
12 The first time.
13 A. I can't remember who else was there. I can't remember.
14 Q. Well, let's think back to that day. Let's think back to
15 August 15th. You walk into the room. You note Mr. Muchori,
16 right? You see him. You know Mr. Mutunga. You see him?
17 A. Uh-huh.
18 Q. He has a bag there. You don't know anything about the
19 bag, right? That's new.
20 You have to say yes or no for the reporter. You
21 can't shake your head. You have to say yes or no.
22 A. Yes.
23 Q. You don't have to say yes or no.
24 A. Yes.
25 Q. All right. And while you're present in that room at that
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1 time, is there some American, like maybe an American
2 Caucasian, present in that room?
3 A. On 15th?
4 Q. On the 15th, that morning.
5 A. I don't remember having seen them.
6 Q. Okay. And when Mr. Muchori told you to close that bag up
7 and take it downstairs, and you turned and you walked out that
8 room with the bag, did you see any white Americans in that
9 office?
10 A. No.
11 Q. And after you took that bag downstairs, the next time you
12 took that bag out of that room was on August 20th when
13 Mr. Muchori told you to go get it, isn't that right?
14 A. Yes.
15 Q. And when you walked into the room on the 20th, there was a
16 white American FBI agent there in the room, isn't that right?
17 A. Yes.
18 Q. Did you keep custody of the money or did someone else take
19 care of that?
20 A. After taking over, we just put everything in the bag.
21 Q. Okay. And can you tell me how many blocks the Kenyan CID
22 headquarters is from the embassy that was bombed.
23 A. From?
24 Q. How far is the CID headquarters from the Kenyan embassy
25 that was bombed?
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Wanjiru - redirect
1 A. Say about 200 kilometers or more.
2 Q. Okay. Thank you.
3 MR. RICCO: I have no further questions. Thank you,
4 your Honor.
5 THE COURT: Redirect.
6 REDIRECT EXAMINATION
7 BY MR. FITZGERALD:
8 Q. If we could go over that last question. How far is it,
9 how far did you say it was from the CID headquarters to the
10 embassy?
11 A. It's more than, more than 200 kilometers.
12 Q. How long --
13 A. I'm not sure, but I'm just estimating.
14 Q. Let me ask you a different way. How long would it take
15 you to drive from CID headquarters to the area where the
16 American Embassy was?
17 A. If there is no jam, then it would take 20 minutes.
18 Q. And how long would it take you to walk?
19 A. About 30 minutes, 30 to 40 minutes.
20 Q. Can you give the distance in miles, by any chance?
21 A. I'm not very good in giving the distance.
22 Q. Okay. You mentioned, we talked about the basement, and
23 you indicated that you put the items in the storeroom. How
24 many rooms were in the basement?
25 A. Four rooms.
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Wanjuri - recross
1 Q. The room you put this in, you said there was nothing else
2 in there. Do you know if there were items in the other rooms
3 in the basement, if you know?
4 A. Whether there were? I beg your pardon?
5 Q. Do you know what was in the other rooms in the basement?
6 (Witness conferred with interpreter)
7 MR. FITZGERALD: I'll withdraw it.
8 Q. At the time of the bombing investigation, at the scene of
9 the bombing at the American Embassy, were the pieces of metal
10 and other items and objects collected at the bomb scene, were
11 they being brought into the police headquarters building?
12 A. No, they were not brought at CID headquarters.
13 MR. FITZGERALD: Can I have one moment, your Honor?
14 (Pause)
15 MR. FITZGERALD: Nothing further.
16 MR. RICCO: Just on that point, your Honor.
17 THE COURT: Yes.
18 RECROSS-EXAMINATION
19 BY MR. RICCO:
20 Q. Detective, did you go to the scene of the bombing?
21 A. Yes, I did on the first day.
22 Q. Did you go back the second day?
23 A. No.
24 Q. Did you ever go back there between August 8th and August
25 15th?
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Sciarini - direct
1 A. I never went again. I just went to the scene the first
2 day. I didn't go back after that.
3 Q. But you certainly worked with people who did go back
4 there, didn't you?
5 A. Ask again.
6 Q. I'll ask it again. You worked with police officers that
7 went to the bombing scene; isn't that correct?
8 A. Yes.
9 Q. And those police officers were walking in and out of CID
10 headquarters from the day of the bombing up until the 15th,
11 weren't they?
12 A. Yes, they were.
13 MR. RICCO: Thank you. No further questions.
14 THE COURT: Thank --
15 MR. RICCO: I'm sorry, Judge.
16 THE COURT: Go ahead.
17 MR. RICCO: That's fine. Thank you, your Honor.
18 THE COURT: Thank you, ma'am. You may step down.
19 (Witness excused)
20 MR. FITZGERALD: The government calls Charles
21 Sciarini, S-C-I-A-R-I-N-I.
22 CHARLES K. SCIARINI,
23 called as a witness by the government,
24 having been duly sworn, testified as follows:
25 DEPUTY CLERK: Please be seated. Please state your
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Sciarini - direct
1 full name.
2 THE WITNESS: Charles K. Sciarini.
3 DEPUTY CLERK: Spell your last name.
4 THE WITNESS: S-C-I-A-R-I-N-I.
5 DEPUTY CLERK: Thank you.
6 DIRECT EXAMINATION
7 BY MR. FITZGERALD:
8 Q. Good afternoon, sir.
9 Are you currently retired?
10 A. Yes.
11 Q. Prior to retiring, what was your occupation?
12 A. I was a special agent with the FBI assigned to the
13 Washington field office.
14 Q. Let me direct your attention to August 20th of 1998. Were
15 you working for the FBI at that time?
16 A. Yes.
17 Q. And where were you deployed?
18 A. I was deployed to Nairobi, Kenya, to investigate the
19 bombing of the embassy.
20 Q. Did there come a time when you went to CID, Kenyan police
21 headquarters that day?
22 A. Yes.
23 Q. And can you tell us where you went when you got to the
24 police headquarters and what you did?
25 A. We staged in an area at CID where we had a room with the
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Sciarini - direct
1 agents and investigators, and at that time I was instructed to
2 take custody of evidence.
3 Q. What was the evidence that you took custody of?
4 A. I took custody of a bag, gym bag, which contained various
5 items in it.
6 Q. Can you tell us how you went about the process of taking
7 custody of this gym bag?
8 A. That gym bag was given to me by a Kenyan CID officer in a
9 room which was just off our staging area, which was more like
10 a waiting room. It had chairs, coffee table, TV set, and I
11 reviewed the evidence at that point.
12 Q. How did you go about reviewing the evidence?
13 A. I compared what was in the bag to an inventory sheet which
14 was provided to me by the Kenyan officer.
15 Q. How did you check the inventory sheet against the bag,
16 what did you do?
17 A. I, wearing plastic gloves, removed the evidence from the
18 bag, piece-by-piece, and just to ensure that everything was
19 there.
20 There was some currency that was there. I counted
21 the currency to make sure that it was accurate as according to
22 the inventory sheet.
23 Q. What did you do after you checked the inventory sheet?
24 A. The evidence was then placed back in the bag and then I
25 brought the evidence to another room where two agents were
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Sciarini - direct
1 from the evidence response team.
2 Q. Let me stop you there a moment and approach you with
3 Government Exhibit 548.
4 I ask you to look at Government Exhibit 548, already
5 in evidence, and ask you if you recognize this document.
6 A. Yes, I do.
7 Q. What is it?
8 A. This is the inventory sheet I have previously referred to.
9 It has my signature on the bottom.
10 Q. If you just indicate which of the two signatures is yours?
11 A. Mine is at "signature of officer taking over."
12 Q. You mentioned that you brought the bag to a room with two
13 people from the evidence response team.
14 A. Yes.
15 Q. How were they dressed in that room?
16 A. They were dressed in what I described as a white plastic
17 outfit with laytex gloves on.
18 Q. What did you see happen in that room with these two people
19 from the evidence response team?
20 A. They removed the evidence from the bag and examined it and
21 they took some articles from there and segregated them from
22 the evidence bag.
23 Q. What happened? Did they have any particular equipment
24 that you noticed during the process?
25 A. They have a small vacuum cleaner or some kind of a vacuum
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Sciarini - cross
1 device and they used that on some of the evidence.
2 Q. What happened when they finished doing the processing in
3 that room?
4 A. I took custody of items that were in the bag that were
5 left over and I brought it over to another agent in our
6 staging area who is a supervisor at headquarters, Cheryl
7 Fletcher, and signed the evidence over to her.
8 Q. And did that end your involvement with that particular
9 items of evidence?
10 A. Yes, sir.
11 MR. FITZGERALD: Thank you. I have nothing further.
12 CROSS-EXAMINATION
13 BY MR. HERMAN:
14 Q. Good afternoon, Agent Sciarini. Good afternoon.
15 A. Mister.
16 Q. You're retired.
17 A. Yes, sir.
18 Q. Congratulations.
19 When you received these items on the 20th, had you
20 ever had any contact with them before?
21 A. No, sir.
22 Q. At that time you were officially receiving them into
23 United States custody; is that correct?
24 A. Yes, sir.
25 Q. This took place again where? What location was this?
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Sciarini - cross
1 A. At CID headquarters in Nairobi.
2 Q. Just to orient us, how far is CID headquarters from the
3 location of the American Embassy?
4 A. I believe it was a 15-minute ride. That's about all I
5 would, I could equate it to.
6 Q. They're both in downtown Nairobi; is that right?
7 A. That's correct.
8 Q. Maybe a few miles away, three or four miles away?
9 A. I'm not certain about the mileage. I just kind of equate
10 the distance of how long it took us to get there.
11 Q. So you visited the bomb site; is that correct?
12 A. I did on the second day I was there.
13 Q. And what day would that have been, what day of the month?
14 A. You know, I'm not certain. I think I arrived -- I think I
15 arrived, my recollection was the 6th, which was late, and then
16 I think we went to the site on the 7th. I'm not certain.
17 Q. To orient you, the bombing was on August 7th, 1998.
18 A. Okay, then I know I went to the site the day after I
19 arrived and I did not arrive immediately after the bombing.
20 It was the weekend.
21 Q. But your purpose in going to Kenya was to assist in the
22 investigation of the bombing; is that correct?
23 A. That's correct.
24 Q. And the bombing was on a Friday and you got there sometime
25 over the weekend?
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Sciarini - cross
1 A. I believe so.
2 Q. And between that day -- let's say you got there on
3 maybe -- was it on a Sunday, let's say?
4 A. I'm sorry, I just don't recall exactly. It's been a
5 while.
6 Q. I understand. And you're no longer with the agency?
7 A. That's correct. Well, I'm a contractor with the agency.
8 Q. Thank you. So you went to the bomb site at some point
9 after you arrived in Kenya; is that right?
10 A. Yes.
11 Q. And on repeated days did you also go to the bomb site?
12 A. Maybe I was there once on the perimeter of the bomb site.
13 Q. On August 20th, 1998, your task on that day was to receive
14 these items from the Kenyan police officials, is that correct?
15 A. Yes, sir.
16 Q. And the physical transfer of the items took place in an
17 office or in a lounge area or where?
18 A. Yes, in a lounge area.
19 Q. When you first saw the items in question, where were they?
20 A. They were in this gym bag.
21 Q. Where was the gym bag?
22 A. It was given to me in that room. It was brought to me in
23 that room.
24 Q. Do you remember who brought it to you?
25 A. If I can refer to this exhibit, I would be able to give
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Sciarini - cross
1 you the name.
2 Q. You can refer to whatever you like. Just tell us what you
3 are referring to.
4 A. The Exhibit 548. Edward Muchori.
5 Q. So at the time you received these items, Edward Muchori
6 was in the room; is that right?
7 A. Yes, sir.
8 Q. Was anyone else in the room?
9 A. Not that I recall, sir.
10 Q. The items were in a bag; is that correct?
11 A. Yes, in what I believe to be a gym bag, what I would call
12 a gym bag.
13 Q. Okay. When you received the items, they were handed to
14 you by Edward Muchori, is that your recollection?
15 A. Yes, sir.
16 Q. At that point did you open the bag?
17 A. Yes, in that room.
18 Q. In that room. And did you take items out of the bag?
19 A. Yes, I did.
20 Q. When you did so were you wearing gloves?
21 A. Yes, I was.
22 Q. And you were wearing gloves because these were items of
23 evidence, is that fair to say?
24 A. Yes.
25 Q. You didn't want to contaminate yourself or the items; is
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1 that correct?
2 A. That's correct.
3 Q. Was Mr. Muchori wearing gloves that you remember?
4 A. I do not recall, sir.
5 MR. HERMAN: Excuse me.
6 (Pause)
7 BY MR. HERMAN:
8 Q. Mr. Sciarini, the items were taken out of the bag by you;
9 is that right?
10 A. Yes.
11 Q. And then you inventoried the items?
12 A. Yes.
13 Q. And then were they then placed back in the bag by you?
14 A. Yes.
15 Q. And then you removed them to a different location; is that
16 correct?
17 A. To a different room in the same building, yes.
18 Q. And it was at that point that they were then examined by
19 another individual associated with the FBI; is that correct?
20 A. Yes, sir, two other individuals.
21 Q. Two other individuals.
22 And you told us those individuals were dressed in
23 typical outfits for examination of evidence; is that correct?
24 A. What I believe to be, yes.
25 Q. Tyvek suits or something to that effect?
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Sciarini - cross
1 A. Yes, they looked like plastic suits. I don't know the
2 material.
3 Q. One last question, Mr. Sciarini. In your presence in the
4 room when you were with the Kenyan official, did that person
5 or any other Kenyan official you're aware of take the clothes
6 out of the bag without gloves on?
7 A. Not to my knowledge. I believe once I took custody of it,
8 I inventoried it, it was mine.
9 Q. Thank you, sir.
10 MR. HERMAN: That's all I have, your Honor.
11 MR. FITZGERALD: The government calls Mark --
12 No further questions. Sorry.
13 THE COURT: No further questions. You may step down.
14 (Witness excused)
15 THE COURT: We'll take our mid-afternoon recess.
16 (Jury not present)
17 THE COURT: Before the jury returns, I would like to
18 have an indication from counsel as to what it is safe to tell
19 the jury about our schedule.
20 MR. FITZGERALD: Okay.
21 (Recess)
22 (Jury not present)
23 THE COURT: If we stop at 4, is that enough time to
24 call another witness?
25 MR. FITZGERALD: Yes.
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1 THE COURT: And the answer about the jury?
2 MR. FITZGERALD: I don't believe we have resolution
3 on some of the stipulations, and I believe at least from one
4 of them -- I think there's one. Before the break if we know
5 how many stipulations are okay and how many are not, we can
6 tell you. I know one of them involves a number of witnesses.
7 THE COURT: Is the issue whether it's Tuesday or
8 Wednesday or whether Wednesday or Thursday?
9 MR. FITZGERALD: Tuesday or Wednesday.
10 THE COURT: So we're clearly not going to sit
11 Thursday?
12 MR. FITZGERALD: Clearly not.
13 THE COURT: Can I tell them we're not going to sit
14 Thursday and if we adjourn on Wednesday, we will not reconvene
15 until the 16th?
16 MR. FITZGERALD: Yes.
17 THE COURT: I'm going to stop at 4, then. If we're
18 ready, we'll resume.
19 (Jury present)
20 THE COURT: Before we hear from the next witness, let
21 me tell you what our schedule is.
22 We're not going to sit Thursday this week. When we
23 adjourn this week, we're going to adjourn until Monday, April
24 16th. That, I hope, will give everybody time for the holidays
25 and will enable other matters to be attended to without
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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Whitworth - direct
1 wasting your time. You must promise that you can remain
2 healthy.
3 All right, government may call its next witness.
4 MR. FITZGERALD: The government calls Mark Whitworth.
5 W. MARK WHITWORTH,
6 called as a witness by the government,
7 having been duly sworn, testified as follows:
8 DEPUTY CLERK: Please state your full name.
9 THE WITNESS: Full name is W. Mark Whitworth.
10 DEPUTY CLERK: Spell your last name.
11 THE WITNESS: W-H-I-T-W-O-R-T-H.
12 DEPUTY CLERK: That's mark with a K?
13 THE WITNESS: Yes.
14 DIRECT EXAMINATION
15 BY MR. FITZGERALD:
16 Q. Good afternoon.
17 A. Good afternoon.
18 Q. If you could tell the jury what you do for a living.
19 A. I'm a supervisor special agent with the Federal Bureau of
20 Investigation.
21 Q. And where are you currently assigned?
22 A. The laboratory division as an explosives and hazardous
23 devices examiner.
24 Q. And let me direct your attention to August of 1998. Were
25 you with the FBI at that time?
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Whitworth - direct
1 A. Yes, I was.
2 Q. And were you then qualified as an explosives and hazardous
3 devices examiner at that time?
4 A. No, I was in training at that time.
5 Q. And in August of 1998, were you deployed overseas?
6 A. Yes, sir.
7 Q. And where were you deployed?
8 A. To principally to Nairobi, Kenya.
9 Q. Let me direct your attention to August 20th of 1998. Did
10 there come a time that day when you went to CID headquarters?
11 A. Yes, sir.
12 Q. Can you tell the jury where it is you went and what it is
13 that you did?
14 A. Went to an office at the CID headquarters in Nairobi to
15 process a bag that had been brought in from an individual in
16 the case.
17 Q. And who were you with when you went there?
18 A. Another agent from the Washington field office named
19 Lourdes McLoughlin.
20 Q. L-O-U-R-D-E-S for Lourdes?
21 A. Yes.
22 Q. And McLoughlin, M-c-L-O-U-G-H-L-I-N?
23 A. Yes.
24 Q. And where did you and Agent McLoughlin go?
25 A. We went in to one of the offices in the CID headquarters
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Whitworth - direct
1 where there was a bag located.
2 Q. And could you tell whether this office belonged to a
3 particular person, or what can you tell about how it was used?
4 A. It did not appear to me to be an office that was used by a
5 person because there wasn't any momentos or personal items in
6 there. I remember it as just being very sparse with a desk
7 and maybe a table in the office.
8 Q. And what did you do when you went inside the office?
9 A. We were asked to process a bag that was there with swabs
10 for chemical residues. So we had a swab kit with us so we put
11 on Tyvek and gloves so that we could start to go through the
12 bag and see what material was in it.
13 Q. And when you say "we put on Tyvek," who was the "we"?
14 A. Lourdes and I, because we would be the principal handlers
15 of the material.
16 Q. Can you explain to the jury what process you went through
17 in examining the bag?
18 A. First of all, like I said, we but on Tyvek, which are
19 paper coveralls, and gloves, and then I took control swabs of
20 my hands and just a control swab by itself to make sure there
21 was no contamination present.
22 Q. Let me approach you with what has been premarked as
23 Government Exhibits 533A and 534A for identification.
24 If you could look at 533A first, which I believe
25 is -- look at the yellow sticker and see which number it is.
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Whitworth - direct
1 A. Yes, 534.
2 Q. Can you tell us what 533A is?
3 A. 533A. Sorry, sir. It's a vacuum sample that would have
4 been used for an instrument that is used to vacuum for
5 explosives samples.
6 Q. And 533A, what was vacuum sampled to create that document?
7 A. This was the vacuum sample of my gloves and the lower part
8 of the sleeves of my Tyvek suit after I put it on.
9 Q. And what do you do after you take each vacuum sample?
10 Does the vacuum change in any way?
11 A. It was sealed in one of these pink -- or one of these
12 clear plastic envelopes and it was marked with my initials.
13 Q. And what is 534A?
14 A. It's a glass, small glass bottle, with -- looks like
15 cotton control swabs in it.
16 Q. And what was that a control swab of?
17 A. This was just a control swab of the cotton and the alcohol
18 that is used, the solvent on the cotton by itself being placed
19 in the bag.
20 Q. And how do you recognize that as the control swab that you
21 took?
22 A. By my initials that are on the bottle.
23 MR. FITZGERALD: Your Honor, the government would
24 offer Government Exhibits 533A and 534A.
25 MR. HERMAN: No objection.
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Whitworth - direct
1 THE COURT: Received.
2 (Government Exhibits 533A and 534A received in
3 evidence)
4 BY MR. FITZGERALD:
5 Q. What did you do after doing these two control swab
6 procedures?
7 A. Proceeded to take the items out of the bag so that we
8 could see what was in it, see where the best places to swab
9 the bag would be.
10 Q. And did you take the items out of the bag?
11 A. Yes.
12 Q. And what, if anything, did you notice about the inside of
13 the bag itself?
14 A. It has a plastic liner on the bottom and it also has a
15 coating on the inside that has flaked off and is lying in the
16 bottom of the bag.
17 Q. And what, if any, samples did you take of the bag?
18 A. We took a vacuuming on the inside of the bag and
19 swabbings, also. We also took swabbings of the handle of the
20 bag.
21 Q. Let me approach you with what has been premarked as
22 Government Exhibit 533B and 533C and then 534B.
23 Starting with 533B, which should be on the far right,
24 can you tell us what that is?
25 A. 533B?
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1 Q. Yes.
2 A. It is a vacuuming swab, also from the bag.
3 Q. And 533C?
4 A. 533C is also a vacuum swab from the bag.
5 Q. How do you recognize those particular items?
6 A. Both items have my initials on it and along with the file
7 number and their swab numbers and the fact that they are from
8 the bag residue.
9 Q. And looking at 534B, the one item on your far left now, do
10 you recognize that item?
11 A. Yes, sir. This is one of the swabs that were taken of the
12 bag.
13 Q. And let me approach you with one more item, 534C. Do you
14 recognize that item?
15 A. Yes. Again, it's a glass vial that we would use to put
16 the swabs in and it also has my initials on it.
17 MR. FITZGERALD: Your Honor, I would offer Government
18 Exhibits 533B and C and 534B and C.
19 MR. HERMAN: No objection.
20 THE COURT: Received.
21 (Government Exhibits 533B, 533C, 534B and 534C
22 received in evidence)
23 BY MR. FITZGERALD:
24 Q. Now, as to the items that were contained in the bag, what,
25 if anything, did you do with them?
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1 A. Some items we separated out to be processed by the FBI
2 laboratory and other items were placed back in the bag.
3 Q. And do you recall which items you separated out from the
4 bag to be processed separately?
5 A. Yes, sir.
6 Q. What do you recall about those items?
7 A. There was a pair of glasses and a magazine from -- an
8 in-flight magazine from an airlines, some items of clothing,
9 and a towel and what we called a sheet at the time for lack of
10 a better term for it.
11 Q. Was there anything about the in-flight magazine that drew
12 your attention?
13 A. Yes, sir. It had indented writing on the cover. In other
14 words, someone had used it and written on a paper on top of it
15 so the writing had entered through to the cover.
16 Q. Let me approach you with what has been premarked as
17 Government Exhibits 535A, B and C.
18 THE COURT: How much longer?
19 MR. FITZGERALD: A bit longer, Judge. We could break
20 here, if you prefer.
21 THE COURT: Perhaps we should break here.
22 All right, ladies and gentlemen, we'll break here and
23 we'll resume tomorrow. And again, I apologize for the dust
24 storm and we're going to try and work on that some more this
25 evening. Have a pleasant evening.
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1 (Jury not present)
2 THE COURT: Anything we need take up before the jury
3 returns tomorrow?
4 MR. HERMAN: No, your honor.
5 THE COURT: We're adjourned, then, until tomorrow
6 morning.
7 (Adjourned to 10:00 a.m. on April 3, 2001)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 INDEX OF EXAMINATION
2 Witness D X RD RX
3 SOHAIL ANJUM............3584 3590
4 MOHAMED RIAZ GONDAL.....3600 3613
5 GABRIEL MUTUNGA.........3619 3631 3644
6 ROSEMARY WANJIRU........3645 3652 3664 3665
7 CHARLES K. SCIARINI.....3666 3670
8 W. MARK WHITWORTH.......3677
9 GOVERNMENT EXHIBITS
10 Exhibit No. Received
11 181, 540, and 541A-541N ....................3578
12 518 ........................................3579
13 519A through 519C ..........................3580
14 523 and 523T ...............................3582
15 520A and 520B ..............................3583
16 526A .......................................3589
17 259 ........................................3599
18 526C .......................................3605
19 542-I.D. and 542 ...........................3609
20 545R .......................................3613
21 546 ........................................3623
22 547 ........................................3629
23 548 ........................................3651
24 533A and 534A ..............................3681
25 533B, 533C, 534B and 534C ..................3682
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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