26 April 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 34 of the trial, April 25, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
4772
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 April 25, 2001
9:50 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
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18
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20
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23
24
25
4773
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
SAM A. SCHMIDT
7 JOSHUA DRATEL
MARSHALL A. MINTZ
8 Attorneys for defendant Wadih El Hage
9 ANTHONY L. RICCO
EDWARD D. WILFORD
10 CARL J. HERMAN
Attorneys for defendant Mohamed Sadeek Odeh
11
FREDRICK H. COHN
12 DAVID P. BAUGH
LAURA GASIOROWSKI
13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
14 DAVID STERN
DAVID RUHNKE
15 Attorneys for defendant Khalfan Khamis Mohamed
16 TOUFIC MAGED, Interpreter
17
18 (In open court; jury not present.
19 THE COURT: Good morning. Please be seated. Please
20 be quiet. Reflecting in the wee hours of the morning with
21 respect to yesterday's proceedings I have concluded that at
22 least some portion of a line of questioning on
23 cross-examination of Imam Wahhaj should be stricken and there
24 is being distributed to you now, and I'll mark as Court
25 Exhibit A of today's date, the proposed instruction to the
4774
1 jury. I'll give you a moment to read it, and then let me know
2 whether there are any objections.
3 MR. SCHMIDT: I object, your Honor.
4 THE COURT: On what ground and to what portion do you
5 object?
6 MR. SCHMIDT: I haven't gotten through the --
7 THE COURT: Take the time. Get through it. It's one
8 page.
9 MR. COHN: I object because the material that you're
10 striking, your Honor, was cross-examination and I do that in
11 the absence of Mr. Baugh who would normally defend this, was
12 here for your rules, but he's not here now.
13 THE COURT: Tell me what liability issue is covered
14 or does the question with respect to the children in Iraq
15 dying as a result of American sanctions relate to?
16 MR. COHN: The Imam testified that in essence that
17 violence was never justified and he did that under certain
18 nexus of relevance which is particularly relevant to Mr.
19 Odeh's case because of what's in Mr. Odeh's statements as I
20 read it. But his offering that in fact impacted on the
21 question of motivation and what conspiracy Mr. Al-'Owhali
22 might have joined. If this was a response to a particular
23 kind of action then Mr. Al-'Owhali's joinder of a more limited
24 conspiracy could be argued and the fact that was done, that
25 Mr. Al-'Owhali may have had some sense of justification in --
4775
1 THE COURT: That's relevant on liability phase?
2 MR. COHN: I think marginally, your Honor. I
3 can't --
4 THE COURT: You know the answers were no, and the
5 question isn't evidence. You are really objecting to the
6 striking of an answer which was adverse to a position I think
7 you ultimately will be taking.
8 MR. COHN: Yes. But you know, your Honor, the jury
9 can make it's assessment about the reliability of answers from
10 a expert, and --
11 THE COURT: Thank you. Mr. Schmidt, what's the basis
12 of your objection?
13 MR. SCHMIDT: Your Honor, my concern is that your
14 Honor's explanation of what your Honor is striking I have no
15 objection to. The paragraph above this I think goes into
16 areas where it relates to possible defenses concerning conduct
17 in Somalia.
18 THE COURT: You know I talk about whether it served
19 as a provocation for any action they find the defendants may
20 have taken. To the extent to which they understand the issue
21 with respect to the Abdi House incident, it is your point that
22 the actions taken were taken by Somali people in response to
23 that, and that it didn't involve al Qaeda and didn't involve
24 your client.
25 MR. SCHMIDT: It didn't involve my client. But there
4776
1 is some evidence which I will deal with on cross-examination
2 that members of al Qaeda participated in some manner at some
3 point dealing with the American and UN troops in Mogadishu,
4 and that if, for example, a person trained by al Qaeda decides
5 that because of the American military offensive and attack in
6 Mogadishu that he's going to go help Aideed defend himself
7 against offensive military attacks, then indeed the fact that
8 American troops planes are coming and attacking an area that
9 then brings a response of shooting at them, I don't think is
10 part of a conspiracy to kill. I think that's part of a
11 reaction to a military campaign, and it's a military campaign
12 reaction to an offensive military attack.
13 THE COURT: I think I'm understanding for the first
14 time that your point is not that the actions in Somalia were
15 not actions by persons with whom the defendant El Hage is said
16 to be affiliated, but that if they were, they were justified?
17 You are making an argument similar to the argument Mr. Baugh
18 is advancing on the death penalty phase.
19 MR. SCHMIDT: No, I'm not, I'm not. I'm talking
20 about an ongoing military activity.
21 THE COURT: By saying, ongoing military activity,
22 you're saying conduct which is not criminal?
23 MR. SCHMIDT: I'm not saying somebody does something
24 bad and three years later or five years later they decide to
25 get even with them. I'm saying that if there is a military
4777
1 attack, the people who are getting attacked, I mean the
2 testimony that apparently Harun was in the building that was
3 getting fired at, is your Honor saying that if Harun was
4 getting fired at he would not be allowed under law to fire
5 back?
6 THE COURT: I don't think there is a self-defense
7 claim that can be made here.
8 MR. SCHMIDT: I think, your Honor, it has to be
9 parsed in two different ways. There is the theory is that the
10 people are being trained for the purpose of attacking the
11 United States.
12 THE COURT: Suppose we strike the sentence that
13 begins with, for, so that it will read, you are not now being
14 asked to pass judgment on any questions relating to the
15 possible motive or the morality of any of the defendants'
16 actions accordingly.
17 MR. FITZGERALD: Your Honor, we would agree with that
18 with one other suggestion in the prior sentence I think when
19 we should delete the possible motives or, because one of the
20 things the jury will be trying to decide is what was people's
21 state of mind what were they trying to do. I think we say any
22 question relating to the morality of any defendants' actions,
23 not whether it's moral or immoral.
24 MR. WILFORD: Your Honor, we would agree with the
25 government's position with respect to that particular
4778
1 sentence.
2 THE COURT: All right. So then what we will do then
3 is we'll strike in the middle of the second paragraph,
4 possible motives or the, and we'll strike the sentence
5 beginning with, for, and the rest of it we'll give the jury.
6 Anybody other than Mr. Schmidt, does that meet your objection?
7 MR. SCHMIDT: Which words are we leaving in from the
8 prior sentence?
9 THE COURT: We are striking, possible motives or the,
10 so it will read, any question relating to the morality of the
11 defendants' actions.
12 MR. SCHMIDT: May I make a suggestion, your Honor?
13 Instead of saying the morality, how about legality?
14 THE COURT: That doesn't make the point. We'll
15 strike the other sentence. All right. Let's bring in the
16 jury.
17 MR. FITZGERALD: Your Honor, there is one matter. I
18 don't know if Mr. Schmidt is planning to get into pictures of
19 Mr. El Hage's children through Mr. Kherchtou, but if he is, I
20 ask there are pictures of ostriches and children and family
21 photos, and if that is going to be coming up on the
22 examination of Mr. Kherchtou I'd like to be heard first.
23 MR. SCHMIDT: I am not planning to put in any
24 pictures of Mr. El Hage's children at this time though I would
25 like to. There may be a picture of the ostrich relating to
4779
1 the business of trying to sell ostriches involving with Abu
2 Abdallah.
3 THE COURT: What will the picture of the ostrich,
4 what will it show.
5 MR. SCHMIDT: It's part of showing the business
6 contact with Mr. El Hage and the Sudanese people including
7 this witness and Abu Abdallah.
8 MR. FITZGERALD: To be precise, I meant any pictures
9 of children, not just Mr. El Hage's children but his nieces
10 and nephews.
11 MR. SCHMIDT: I am not planning to do that with this
12 witness unless something comes up that I think makes it
13 appropriate an I would not show it until I raise the issued
14 the Court.
15 THE COURT: Let's bring in the jury. The witness may
16 take the stand and you've been sworn many times.
17 (Witness resumed)
18 THE COURT: The question I have asked by the Marshals
19 that is during the period of time when there are summations
20 and during the period of time when the jury is deliberating do
21 we sit on Friday? We'll give that some thought and take it up
22 at 4:30.
23 (Witness resumed)
24 MR. COHN: While we're waiting, your Honor, is your
25 Honor considering sequestration?
4780
1 THE COURT: We'll take that up at 4:30 also. Will
2 Mr. Baugh be here at 4:30?
3 MR. COHN: Pardon me?
4 THE COURT: Will Mr. Baugh be here at 4:30?
5 MR. COHN: He's done, your Honor. I thought he had
6 told me you had moved his argument to Monday. I hope I'm
7 correct about that.
8 THE COURT: All right. We'll just have the matter I
9 just raised and the verdict format 4:30.
10 MR. COHN: Yes, I'll deal with those.
11 (Continued on next page)
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4781
1 (Jury present)
2 THE COURT: Good morning. Yesterday there was some
3 discussion of the nature of the questions which you'll be
4 called upon to decide, and as I stated yesterday the ultimate
5 question which will be before you when all of the evidence you
6 are now hearing has been received is whether or not the
7 government will have proven as to each defendant on each
8 charge of the indictment guilt beyond a reasonable doubt, and
9 in my detailed written instruction which you will have before
10 you when you are deliberating, the issues which you will be
11 called upon to decide will be set out and you will have a
12 verdict form to complete.
13 Let me remind you, as I did during opening
14 statements, of some issues which are not now relevant. You
15 are not now being asked to pass judgment on any questions
16 relating to the morality of any of the defendants' actions.
17 Accordingly, the Court orders stricken from the record the
18 questions asked of the Imam Wahhaj yesterday concerning the
19 alleged impact of American sanctions on the children of Iraq.
20 You are to understand that any evidence received at
21 any time prior to your deliberations is to be considered by
22 you solely with respect to whether or not the government
23 sustains its burden of proving beyond a reasonable doubt the
24 guilt of the defendants of the charges set forth in the
25 indictment. It is not to be considered by you with respect to
4782
1 any other issues.
2 Mr. Schmidt, you may resume your cross-examination on
3 behalf of the defendant El Hage.
4 L'HOUSSAINE KERCHTOU, resumed.
5 CROSS-EXAMINATION
6 BY MR. SCHMIDT:
7 Q. Good morning. Is it pronounced Kherchtou?
8 A. Yes, correct.
9 Q. What names did you know Mr. Bin Laden by?
10 A. The common name is Usama Bin Laden or Abu Abdallah or
11 Sheik Abdallah.
12 Q. Have you ever heard him called by any other names?
13 A. Maybe between the young men we might refer to him as El
14 Hage.
15 Q. Now, lots of people are also referred to as El Hage in
16 general conversation as well, isn't that right?
17 A. Do they call themselves or they are called by others?
18 Q. Well, somebody who's been on the pilgrimage, the hajj,
19 sometimes he refers to himself or other people refer to him as
20 El Hage because of the pilgrimage, isn't that correct?
21 A. Yes.
22 Q. Have you ever heard Mr. Bin Laden called by -- withdrawn.
23 Have you ever heard him called by or referred to by any other
24 name?
25 A. That's all I remember.
4783
1 Q. Now, were you ever in Somalia?
2 A. No.
3 Q. Therefore, it would be correct in saying that you were
4 never in Mogadishu as well; is that correct?
5 A. Yes, correct.
6 Q. Everything that you have -- everything that you believe
7 occurred in Somalia or Mogadishu is based on what someone else
8 has told you. Is that correct?
9 A. Yes.
10 Q. When you first were in -- withdrawn. When you were in
11 Pakistan before you came to Nairobi you were aware of the
12 suffering in Somalia, weren't you?
13 A. Yes.
14 Q. You were aware that there was starvation because of
15 climate conditions; is that right?
16 A. Yes.
17 Q. You were aware that there was death because of the
18 fighting between Aideed and other militia leaders; is that
19 correct?
20 A. Correct.
21 Q. That there were good Muslims in Somalia who were being
22 mistreated by some militia leaders, including Aideed; is that
23 correct?
24 A. Yes.
25 Q. You were also aware that members of al Qaeda in late 1991
4784
1 or early 1992 were going to different parts of Somalia to
2 assist some of the Islamic Muslims, Islamic groups, Somali
3 Islamic groups to help -- I'll withdraw that. Let me rephrase
4 that.
5 Were you aware that in the end of 1991 or early 1992
6 that al Qaeda members were going to Somalia to help some of
7 these groups were who were victims?
8 A. What I heard is that some members of al Qaeda went to
9 Somalia at that time, and established a training camp in the
10 northern part of Somalia. This at the request of the Islamic
11 union in Somalia.
12 Q. The Islamic union being Al Itihad Al Islami?
13 A. Yes.
14 Q. Now, at some point while you were still in Afghanistan you
15 heard discussions -- withdrawn.
16 You testified yesterday that when you first were
17 fighting in Afghanistan the Russians were the enemy.
18 A. It was more like the communists who were allies of the
19 Russians.
20 Q. Thank you for your correction.
21 And it was very clear there was no argument or
22 dispute among al Qaeda that it was the communists that they
23 were fighting?
24 A. Correct.
25 Q. Now, at some point approximately more than a year or so
4785
1 after al Qaeda first went to Somalia to help the Somalis, the
2 Americans and the UN went to Somalia; is that correct?
3 A. Correct.
4 Q. After a while you and other members of al Qaeda in
5 Afghanistan heard that the Americans were not treating the
6 Somalis properly. Isn't that correct?
7 A. It is not quite clear how you're phrasing your question.
8 Q. I apologize. There was some -- al Qaeda members went into
9 Somalia early on to help the Somalis, some Somalis protect
10 themselves against other Somalis; is that right?
11 A. Correct.
12 Q. Then at some later point you learned that the United
13 States -- withdrawn.
14 You learned that the United Nations with help of many
15 countries, including the United States, went into Somalia for
16 humanitarian reasons, to help feed many starving Somalians, is
17 that right?
18 A. Correct.
19 Q. Were you keeping track of what was happening at that time
20 in Somalia through the media like CNN or the Arabic station?
21 A. Sometimes.
22 Q. And then among some of the members of al Qaeda they also
23 were discussing the events in Somalia as well; is that
24 correct?
25 A. Correct.
4786
1 Q. At some point you understood that the humanitarian goals
2 of the UN wasn't working so well; is that right?
3 A. Yes, because of the problems that were occurring between
4 the different militias there.
5 Q. And one of the militias was the militia run by the person
6 named Aideed; is that right?
7 A. Yes.
8 Q. In fact, you're aware that Al Islami in southern Somalia
9 in the Gedo region requested al Qaeda's help in training
10 people to protect themselves specifically against Aideed and
11 his militia, isn't that right?
12 A. Who, what is the Al Islami.
13 Q. Al Ittihad?
14 A. Yes.
15 Q. In fact, Ahmad Tawhil was married to the sister of one of
16 the leaders of Al Ittihad in the Gedo region, wasn't he?
17 A. Correct.
18 Q. And Ahmad Tawhil was a strong supporter of Al Ittihad in
19 the Gedo region of Somalia, wasn't he?
20 THE INTERPRETER: Can you repeat that question,
21 please?
22 Q. Ahmad Tawhil was a strong supporter of Al Ittihad in the
23 Gedo region?
24 A. Because he's from that region and he was giving assistance
25 to the people in the area. However, I'm not certain that he
4787
1 has a direct relationship to the jihad Islami.
2 Q. In other words, you're not sure if he's an actual member
3 of Al Ittihad or he just simply helping them through the
4 difficulties that they're having in the Gedo region; is that
5 correct?
6 A. Correct.
7 Q. Ahmad Tawhil, when you met Ahmad Tawhil he was involved
8 with the Mercy International Relief Agency; is that correct?
9 A. Yes.
10 Q. And he was helping members of Al Ittihad and others who
11 were offering help to -- withdraw that question.
12 Ahmad Tawhil was helping al Qaeda members and other
13 people who wanted to go to the Gedo region to help Al Ittihad,
14 isn't that correct?
15 A. Yes.
16 Q. And that help was to help Al Ittihad survive the shortage
17 of food and to protect them from bandits and war lords who
18 were attacking them; is that correct?
19 A. Yes, correct.
20 Q. And also to protect against the Ethiopians that were also
21 causing problems in the Gedo region?
22 A. Ethiopia at that time was not entering into Gedo.
23 Q. It was later they entered?
24 A. I heard that.
25 Q. Now, when you're back in Pakistan not only did you hear
4788
1 that the humanitarian efforts were failing, but that American
2 troops were mistreating Somalis; is that correct?
3 A. When I was in Pakistan I did not at that time hear that
4 the Americans entered Somalia.
5 Q. The discussions that you heard about the Americans not
6 treating Somalis properly, you heard that while you were in
7 Nairobi?
8 MR. FITZGERALD: Object to form.
9 THE COURT: Overruled.
10 A. Probably.
11 Q. What did you hear?
12 A. I do not remember precisely what occurred.
13 Q. Do you recall hearing that American troops were launching
14 offensive military actions against Somalis in Mogadishu?
15 A. I heard that the United Nations troops were having certain
16 skirmishes with some of the militias there.
17 Q. Did you hear talk among al Qaeda members and others that
18 the United States was not wanted any longer in Somalia; that
19 the way they treated Americans was unacceptable, and what
20 happened to the Americans was in response to that treatment?
21 MR. FITZGERALD: Objection to form, your Honor.
22 THE COURT: It's contrary to the long question rule.
23 MR. SCHMIDT: I will adopt Mr. Fitzgerald's
24 suggestion and break it down.
25 Q. When you were in Nairobi did you first -- withdrawn.
4789
1 When you were in Nairobi did you hear at some point
2 that the manner that the Americans were treating Somalis were
3 unacceptable?
4 A. It was not accepted by the Somalis.
5 Q. When you said you heard that the Americans were, the
6 manner that the Americans were treating Somalis was
7 unacceptable, did you understand what that meant?
8 MR. FITZGERALD: Objection to form, Judge.
9 MR. SCHMIDT: It's to his state of mind only, your
10 Honor.
11 MR. FITZGERALD: Objection to form, misstating what
12 his testimony was.
13 THE COURT: What his what?
14 MR. FITZGERALD: What his testimony was.
15 THE COURT: Ask the question again because it came
16 out in a somewhat disjointed form.
17 MR. SCHMIDT: May I go back then to the question
18 before then?
19 THE COURT: Yes.
20 Q. Okay. Did you hear that the Somalis were complaining at
21 that time treatment by the Americans was unacceptable?
22 A. Yes.
23 Q. Did you learn what was meant by the treatment was
24 unacceptable?
25 A. No.
4790
1 Q. Did you hear Somalis saying that what happened to
2 Americans was in response to American treatment of Somalis?
3 MR. FITZGERALD: Objection. Clarify who is supposed
4 to be speaking, al Qaeda or not al Qaeda?
5 MR. SCHMIDT: We can get to that after the answer to
6 this question, because it's for his state of mind only, not as
7 to who said it.
8 THE COURT: Did anyone tell you that?
9 Q. Did anyone tell you that what happened to the Americans in
10 Somalia was the result of their unacceptable treatment of
11 Somalis?
12 A. I don't remember anyone telling me that specifically.
13 This was a reaction by the Somalis to the way that they were
14 treated.
15 Q. When you were in Nairobi did you follow the news of what
16 was happening in Somalia on CNN or the Arabic or local
17 stations?
18 A. Yes, we used to follow them.
19 Q. Did you become aware of the UN American military attacks
20 on groups of Somalis in Mogadishu?
21 A. Yes.
22 Q. Do you recall the nature of those attacks that you heard
23 and saw about?
24 MR. FITZGERALD: Objection, your Honor. Relevance,
25 scope.
4791
1 MR. SCHMIDT: Only to his state of mind, your Honor.
2 MR. FITZGERALD: 401 objection to his state of mind.
3 THE COURT: Sustained.
4 Q. You were told by a member of al Qaeda that only dark
5 skinned members could go to Mogadishu and be safe.
6 A. Yes, because the Somalis tend to have darker skin.
7 Q. The al Qaeda members -- withdrawn.
8 Now, al Qaeda members went into the Gedo region at
9 the request of Al Ittihad and helped train people there; is
10 that correct?
11 A. Yes.
12 Q. And the al Qaeda members who went into the Gedo region
13 were al Qaeda members of all different skin tones; is that
14 correct?
15 A. Correct.
16 Q. Because those people were invited to this Gedo region to
17 help so they felt welcome; is that right?
18 A. Yes.
19 Q. Now, other al Qaeda members went into the Ogadon region at
20 the request of the emir in the Ogadon region to help them
21 there as well, is that correct?
22 THE INTERPRETER: At the request of --
23 Q. I'll break it up. I apologize.
24 Some al Qaeda members went to the Ogadon region.
25 A. Correct.
4792
1 Q. And that was at the request of a leader in the Ogadon
2 region, isn't that correct?
3 A. Correct.
4 Q. And the al Qaeda members who went there or other people
5 who were not members of al Qaeda but were helping al Qaeda
6 were of all skin tones. Isn't that correct?
7 A. All those who went to Ogaden were from al Qaeda.
8 Q. But they were -- most members that you knew of al Qaeda
9 were from Arabic countries, weren't they?
10 A. Yes.
11 Q. Like Saudi, Arabia, Egypt, Sudan, Algeria, most of them
12 were fair skinned?
13 MR. RICCO: Your Honor, I object to that
14 characterization.
15 MR. SCHMIDT: I withdraw the fair skinned.
16 Q. Were most of the people were of --
17 THE COURT: Light complexion.
18 MR. SCHMIDT: Light complexion. Thank you, your
19 Honor.
20 A. Yes.
21 Q. There were a few al Qaeda members from either countries or
22 parts of countries that were of darker complexions, is that
23 correct?
24 A. Correct.
25 Q. Now, only the darker complexion -- withdrawn.
4793
1 There were only two or three al Qaeda members that
2 ultimately went in -- withdrawn.
3 In the al Qaeda members who went to the Ogadon were
4 not afraid because they were asked to come to help; is that
5 correct?
6 A. Yes, correct.
7 Q. The al Qaeda members there were a very few al Qaeda
8 members who told you that they went to Mogadishu; is that
9 correct?
10 A. Yes.
11 Q. One was Harun; is that correct?
12 A. Yes.
13 Q. One was Abu Mohammed el Masry?
14 A. It was one of them that had given me the information.
15 Q. Which one gave you the information about going into
16 Mogadishu?
17 A. I don't remember precisely whether it was Abu Mohammed or
18 Harun. It was probably more likely Harun.
19 Q. At that time in 1993 or 4 how old were you -- withdrawn.
20 How old are you now?
21 A. 37 years old.
22 Q. So in 1993 or 4 you were about 29, 30 years old; is that
23 right?
24 A. About, just about.
25 Q. Would you characterize Harun at the time that you met him
4794
1 in Nairobi as a kid?
2 A. He was mature at that time.
3 Q. In your conversations with the United States government
4 last year when you were talking about Harun did you call him a
5 kid?
6 A. Because of his maybe size and his age, but he was mature.
7 Q. Did you call him a kid?
8 A. Maybe.
9 Q. I am going to show you a document marked 3505-1. I am
10 going to ask you to read for yourself, if you can, in English,
11 or ask the interpreter to read it to you, without the
12 microphone a sentence to yourself, okay?
13 MR. SCHMIDT: My I approach, your Honor?
14 THE COURT: Yes.
15 (Pause)
16 Q. Did that help you remember that on August 16, 2000 you
17 called Harun a kid when describing him to the United States
18 government agents?
19 A. I don't mean when I say a kid, I don't mean that he is a
20 kid in that sense. I mean that he is one of the youngest in
21 the al Qaeda. He was an adult actually. Amongst us we used
22 to refer to each other, hey boy, but we don't mean that this
23 person is actually a kid.
24 Q. In what sense did you think I meant the question?
25 MR. FITZGERALD: Objection.
4795
1 THE COURT: Sustained.
2 Q. Now, Mr. Harun was an intelligent young man, wasn't he?
3 A. Yes.
4 Q. He also was somewhat of a practical joker, wasn't he?
5 A. Yes.
6 Q. He also liked to exaggerate things, didn't he?
7 A. Yes.
8 Q. He liked to make up stories to make people laugh, right?
9 A. And that's why they call him the kid.
10 Q. He also liked to make himself more important, didn't he?
11 A. I don't know.
12 Q. He made up stories about himself, didn't he?
13 MR. FITZGERALD: Objection, your Honor. We've been
14 over this.
15 THE COURT: I'll allow that.
16 A. Truly I don't remember any stories that he made up about
17 himself.
18 Q. After you were in Nairobi for -- withdrawn.
19 How long were you in Nairobi -- withdrawn.
20 The first time that you came to Nairobi, before your
21 trip back to the Sudan did you meet Harun?
22 A. No.
23 Q. You only met Harun the second time -- withdraw that
24 question.
25 After you returned -- withdrawn.
4796
1 After you were in Nairobi for a period of time you
2 went to the Sudan; is that correct?
3 A. Correct.
4 Q. And you remained there a few weeks with your family; is
5 that correct?
6 A. Yes.
7 Q. Was that a few weeks or a month?
8 MR. FITZGERALD: Objection, your Honor, this has been
9 asked an answered on two different occasions.
10 THE COURT: I assume this is --
11 MR. SCHMIDT: This is just to set up timing, your
12 Honor.
13 THE COURT: All right.
14 A. Less than a month approximately.
15 Q. And you came back to Nairobi; is that right?
16 A. Yes.
17 Q. How long after you came back to Nairobi approximately did
18 you meet Harun?
19 A. After a long period of time because he was in Somalia and
20 I was studying, so it was a long period of time.
21 Q. When you say, a long period of time, would it be two,
22 three months approximately?
23 A. Possibly, yes.
24 Q. Was it at that time that you met Harun that you received
25 information from him about what happened in Mogadishu?
4797
1 A. I don't remember precisely when he told me this
2 information.
3 Q. But the first time that you met Harun was approximately
4 two or three months from your return from the Sudan; is that
5 correct?
6 A. Honest to God I don't remember quite precisely when that
7 was.
8 Q. You've told us that you did not see Harun when you first
9 came to Nairobi. Is that correct?
10 A. Yes.
11 (Continued on next page)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4798
1 Q. You didn't see Harun when you went to visit your family
2 for a little less than a month in the Sudan; is that correct?
3 A. Yes, sir, that's correct.
4 Q. The first time you met Harun was sometime after that, but
5 not immediately after your return to Nairobi, is that correct?
6 A. Correct. Correct.
7 Q. Whenever that was, a month or two or whatever, that was
8 the first time that you had a conversation with somebody about
9 what happened in Mogadishu -- withdrawn.
10 That was the first time that you had a conversation
11 with Harun about what happened in Mogadishu; is that correct?
12 A. I don't remember whether we discussed it at our first
13 meeting or at other meetings.
14 Q. Did you know at your first meeting when Harun had returned
15 from Mogadishu?
16 A. I don't remember precisely the dates when he went and
17 returned from Mogadishu, but I know that he went there and
18 came back.
19 Q. Did he ever tell you when he came back?
20 A. Dates, is that what you are looking for?
21 Q. About, yes.
22 A. No, I don't remember.
23 Q. Did you have a conversation with anybody else in al Qaeda
24 about Mogadishu?
25 A. All those members of al Qaeda who were in the southeastern
4799
1 part had gone to Mogadishu and come back.
2 Q. You've testified about people in the Gedo region; is that
3 correct?
4 THE INTERPRETER: Say that again. Repeat, please.
5 Q. You testified about people going from al Qaeda to the Gedo
6 region?
7 A. Yes.
8 Q. And you have testified going into the Ogaden region; is
9 that correct?
10 A. Correct.
11 Q. Now you are testifying that some people went in the
12 Southern region of Somalia; is that correct?
13 MR. FITZGERALD: Objection to form.
14 THE COURT: Overruled.
15 A. Those returning from Ogaden went to the South, Southern
16 part of Somalia, close to the City of Kismayo.
17 Q. You have told us that to go to Mogadishu safe you had to
18 be darker-skinned; is that correct?
19 A. It is preferable.
20 Q. Tell me the names of the people who have told you that
21 they went to Mogadishu.
22 A. I told you Abu Mohamed el Masry and Harun, that they both
23 went to Mogadishu.
24 Q. Anybody else?
25 A. From the group, no, I don't think there was any.
4800
1 Q. In all of the information that you received or believed --
2 withdrawn.
3 The only people who told you about what happened in
4 Mogadishu who said that they were there was Harun and Abu
5 Mohamed el Masry; is that correct?
6 A. Yes.
7 Q. It is your understanding that Harun and Abu Mohamed el
8 Masry went to Mogadishu after you came to Nairobi for the
9 second time; isn't that correct?
10 MR. FITZGERALD: Objection, your Honor; form.
11 THE COURT: Overruled.
12 A. Just about, yes.
13 Q. And one of those two told you that they were in a house
14 next to one that was attacked by a helicopter; is that
15 correct?
16 A. Yes.
17 Q. And one of them told you that they knew a Somali who was
18 shooting Howitzers at the United States or the United Nations;
19 is that correct?
20 A. Yes.
21 Q. One of them told you that they tried to help the Somalis
22 with a truck bomb that didn't work to go into the U.N.
23 building?
24 THE INTERPRETER: Against who was it? I'm sorry.
25 MR. SCHMIDT: Against the U.N.
4801
1 A. Yes, that's correct.
2 Q. And you have no personal knowledge that any of those
3 events actually occurred, do you?
4 A. No, only what they told me orally, one of them told me
5 orally.
6 Q. And the one who told you was Harun, wasn't it?
7 A. I cannot be quite certain. They were both very close. We
8 were discussing this together and I don't know which one
9 precisely.
10 Q. During the time that you were in Nairobi, you were
11 helping -- withdrawn. During the time that you were in
12 Nairobi in the early months, you were in -- going to flight
13 school; is that correct?
14 A. Correct.
15 Q. And you were also, as a helpful person, helping the Al
16 Ittihad people and others who were coming from outside of
17 Kenya into Nairobi to get into Somalia?
18 I'll withdraw that question.
19 You were providing some assistance to al Qaeda and
20 others who were going through Kenya to get into Somalia; is
21 that right?
22 MR. WILFORD: Objection.
23 THE COURT: Overruled.
24 THE INTERPRETER: I'm sorry, I said Nairobi. To
25 Somalia, I meant.
4802
1 A. Yes, we used to assist the al Qaeda members in going to
2 Somalia.
3 Q. And most of the assistance was helping them buy clothes
4 or, on their return, buying gifts and things like that; is
5 that correct?
6 MR. WILFORD: I'm going to object. It's a question
7 that was gone into.
8 THE COURT: Excuse me?
9 MR. WILFORD: That is a question that was gone into
10 previously when this witness testified.
11 THE COURT: I'll see counsel and the reporter in the
12 robing room.
13 (Continued on next page)
14
15
16
17
18
19
20
21
22
23
24
25
4803
1 (In the robing room)
2 THE COURT: What is the basis for the objection?
3 MR. WILFORD: Your Honor, this line of questioning
4 occurred the first time this witness was on the witness stand.
5 THE COURT: Where are you going?
6 MR. SCHMIDT: I'm going into the area concerning what
7 he did that caused him to plead guilty, which was went into
8 when this witness was called. That's why the Odeh team called
9 him, to question him about what he did concerning his guilt in
10 the conspiracy. That's what I'm questioning him about.
11 MR. FITZGERALD: Your Honor, I object to the
12 repetitiveness. On the last section of questions, as an
13 example, Mr. Schmidt in the prior appearance kept trying to
14 have the trip by Saleh or Abu Mohamed and Harun happen in 1994
15 when the witness was bad on dates, when he said they went into
16 Mogadishu when the Americans were there. We got it
17 straightened out.
18 Mr. Schmidt went back through all of that this time,
19 establishing that when you saw Harun back from Somalia, he saw
20 him when he, this witness, came back from the Sudan. Then he
21 throws in the last question to say they went to Mogadishu when
22 you came back from the Sudan, and the witness agrees.
23 We are just playing bingo with the witness until he
24 says something different. I think it is misleading and the
25 it's second time of cross-examination of the witness. We went
4804
1 through that issue before. All we're doing is replowing old
2 ground.
3 THE COURT: Now we're on two different subject
4 matters. That testimony has already been received and
5 received without objection. Your objection, I assume, relates
6 to something particular to your client.
7 MR. WILFORD: Well, your Honor --
8 MR. FITZGERALD: Your Honor, just for the record,
9 that was the nature of my objection to the last question, is
10 it was phrased in a misleading manner and we're going through
11 the interpreter, just replowing old ground in the hope that
12 the witness slips. Your Honor, this witness has already
13 testified --
14 MR. WILFORD: Your Honor, if I may respond to the
15 Court's question. The reason that I objected, your Honor, was
16 that I didn't know where Mr. Schmidt was going. He's been an
17 hour and ten minutes with the witness so far and he's going
18 into a new area dealing with the plea agreement and the
19 subject of the questions that were asked previously today -- I
20 mean yesterday, and we don't have an objection to that. But I
21 just didn't know where he was going.
22 THE COURT: That's why I called you in here. I
23 didn't know where he was going either.
24 Now, what is there with respect to his plea agreement
25 that you wish to question him about which you have not already
4805
1 questioned him about?
2 MR. SCHMIDT: On the questioning basis by Mr. Baugh,
3 all right, leaves, I think, the wrong impression as to what
4 this person did that made him guilty. I simply want to go
5 into the fact that he believed, based on what Harun told him,
6 that he was helping not al Qaeda members that were going to
7 the Gedo region or to Ogaden, go against Americans, but
8 specifically the people that went into Mogadishu, that he was
9 helping them fight the Americans, and therefore that made him
10 guilty. He had that specific intent. I want to show that,
11 period.
12 MR. FITZGERALD: Your Honor, how long will we be
13 doing this?
14 THE COURT: You're going to go directly to that,
15 right?
16 MR. SCHMIDT: I'm going to go directly to that.
17 THE COURT: Directly to that. Very well.
18 MR. DRATEL: Your Honor, just one second.
19 THE COURT: No. No. Let's go. I don't like to
20 leave the jury --
21 MR. DRATEL: I want to let you know that's not the
22 end of the examination.
23 THE COURT: No, no, that's the end of that line of
24 inquiry.
25 (Continued on next page)
4806
1 (In open court)
2 BY MR. SCHMIDT:
3 Q. It was either Harun or Abu Mohamed el Masry that told you
4 that they, meaning those two, were fighting Americans in
5 Mogadishu; is that correct?
6 A. Correct.
7 Q. And to your knowledge, there was no other people fighting
8 Americans?
9 Withdrawn.
10 MR. FITZGERALD: Objection.
11 MR. SCHMIDT: I'll rephrase that question.
12 Q. No one else told you that they --
13 THE COURT: Mr. Schmidt, why don't you go -- why
14 don't you follow what we have just agreed upon as your next
15 line of inquiry and go directly to that.
16 BY MR. SCHMIDT:
17 Q. You pled guilty to participating in a conspiracy to attack
18 Americans; is that correct?
19 A. Correct.
20 Q. And you believed that by helping Harun and Abu Mohamed el
21 Masry to go into Mogadishu and come out and assisting them,
22 that you were helping them fight Americans; is that correct?
23 MR. FITZGERALD: Objection to form, your Honor.
24 THE COURT: Overruled.
25 MR. WILFORD: Your Honor, I'm going to object on the
4807
1 grounds that it is argumentative, the question.
2 THE COURT: Excuse me?
3 MR. WILFORD: The question is argumentative.
4 THE COURT: Overruled.
5 A. Can you repeat your question again, please?
6 Q. You believed that by helping Harun and Abu Mohamed el
7 Masry, that you were helping them fight Americans; is that
8 correct?
9 A. My role was to provide assistance to them, and if it meant
10 for them fighting the Americans, yes, then it was for that
11 purpose.
12 Q. Before you came to Nairobi -- withdrawn. Before you found
13 out -- withdrawn. When you helped Harun -- withdrawn.
14 You pled guilty to a conspiracy to attack Americans;
15 is that correct?
16 A. Yes.
17 Q. And you knew to plead guilty you had to have the specific
18 intent to help attack Americans; is that correct?
19 A. The intent is not actually for me to take a gun out and
20 use it, but it is maybe through my assistance that I gave to
21 the others I was then doing that.
22 Q. And at the time that you say you gave the assistance, in
23 your mind you wanted to help them accomplish what they said
24 they wanted to do?
25 MR. WILFORD: Objection. Asked and answered.
4808
1 THE COURT: That is the last question on this line
2 and then we'll move on, yes.
3 A. I was carrying out my duty, and whatever they did over
4 there was -- they did. I was doing my duty as a Muslim.
5 MR. SCHMIDT: Your Honor, I beg your Honor's
6 indulgence, since that was not responsive, that I can repeat.
7 THE COURT: Yes, all right.
8 MR. SCHMIDT: Thank you.
9 Q. At the time that you helped Harun and Abu Mohamed el
10 Masry, you believed that you were specifically helping them to
11 attack Americans; is that correct?
12 MR. FITZGERALD: Objection to form, Judge.
13 THE COURT: Sustained.
14 Q. You pled guilty to a conspiracy with the specific intent
15 to attack Americans; isn't that correct?
16 MR. FITZGERALD: Asked and answered, Judge.
17 THE COURT: Yes, sustained.
18 Q. You testified just a few minutes ago about your Islamic
19 duty; is that correct?
20 A. Yes.
21 Q. When you came to Nairobi, when you were in Nairobi, you
22 did not hear any fatwah concerning Somalia issued by Bin
23 Laden; isn't that correct?
24 MR. FITZGERALD: Objection, your Honor. This was
25 covered the last time the witness was here.
4809
1 THE COURT: This was?
2 MR. FITZGERALD: This was covered the last time the
3 witness was here.
4 MR. SCHMIDT: Specifically in response to his last
5 answer that was not responsive.
6 MR. FITZGERALD: It was covered the last time he was
7 here.
8 THE COURT: Sustained.
9 Q. Now, Mr. Kherchtou, at some time you met Wadih El Hage; is
10 that correct?
11 A. Correct.
12 Q. And that was some period after the arrest of Abu Ahmed el
13 Masry and others at the apartment; is that correct?
14 A. Correct.
15 Q. And then at some point after that, you lived with Mr. El
16 Hage at a hotel?
17 A. Correct.
18 Q. And ultimately you lived in the room just off of the main
19 house in Fedha Estates; is that correct?
20 A. Correct.
21 Q. You learned about the different businesses that Mr. El
22 Hage was doing living in Nairobi; is that right?
23 MR. FITZGERALD: Scope, your Honor. This was covered
24 last time.
25 THE COURT: Excuse me?
4810
1 MR. FITZGERALD: Objection to scope.
2 MR. SCHMIDT: If I could address to your Honor, I
3 will address that to your Honor why I am going into this
4 material now.
5 THE COURT: No. No. Just ask questions that have
6 not previously been asked.
7 MR. SCHMIDT: I am going to do that to set up for
8 exhibits.
9 THE COURT: All right. So you directed his attention
10 to that subject matter and you now want to ask what question?
11 MR. SCHMIDT: I don't think I had an answer to that
12 question.
13 THE COURT: Directing your attention to your previous
14 testimony with respect to that subject matter, you now want to
15 ask what question?
16 MR. SCHMIDT: I need to do that, then I need to
17 direct him to another time period, your Honor, before I can
18 then go forward.
19 THE COURT: We'll have our morning recess.
20 (Jury not present)
21 THE COURT: Mr. Schmidt, would you make a proffer as
22 to what areas of inquiry -- you have been an hour and 25
23 minutes -- what areas of inquiry you believe have not
24 previously been addressed and that you wish to address?
25 MR. SCHMIDT: Your Honor, some of the areas actually
4811
1 were very casually covered the last time. If your Honor
2 recalls, the last time we were not given notice of this
3 individual --
4 THE COURT: Just tell me -- don't give me an argument
5 as to why -- tell me what it is that you want to go into.
6 MR. SCHMIDT: I wish to just have him be familiarized
7 with Mr. -- to testify that he was familiar with a number of
8 businesses that Mr. El Hage was involved in when he was there.
9 THE COURT: All right. We've done that. You
10 directed his attention to that subject matter.
11 MR. SCHMIDT: I need a yes answer. Then I'm --
12 THE COURT: You don't have to get answers. He's
13 already testified to that. You don't have to repeat
14 everything.
15 MR. SCHMIDT: I'm going to bring him then to when he
16 returns to the Sudan and is working for Abu Abdallah al
17 Yemeni.
18 THE COURT: Yes.
19 MR. SCHMIDT: And Mr. El Hage and Abdel Abdallah al
20 Yemeni had many transactions, or attempted transactions,
21 relating to different business interests that this witness is
22 familiar with. I would like to place --
23 THE COURT: That's five minutes of testimony that
24 would be allowed.
25 MR. SCHMIDT: I would like to put in documents that
4812
1 we have that were seized from Mr. El Hage and seized from
2 Mercy International that relate to those business.
3 THE COURT: That this witness is familiar with?
4 MR. SCHMIDT: He's familiar with these deals, yes.
5 THE COURT: With these deals or with these documents?
6 MR. SCHMIDT: I don't know. I haven't had access to
7 him so I can't show -- I haven't had an opportunity to --
8 THE COURT: On the face of these documents do they
9 reflect that he is involved?
10 MR. SCHMIDT: Some of the documents reflect that he's
11 been contacted or "have him call us" or something of that
12 nature, and based on his previous testimony, he's testified
13 that he's had contact with Mr. El Hage to --
14 THE COURT: One subject matter is his involvement in
15 businesses with El Hage based on documents you did not
16 previously have at the time of his first testimony.
17 MR. SCHMIDT: Documents that I physically had in the
18 tens of thousands of documents that, since I did not know he
19 was a witness, your Honor, it's literally impossible for me to
20 collect all of them for that witness's testimony.
21 MR. WILFORD: Your Honor, may I be heard?
22 THE COURT: Yes.
23 MR. WILFORD: Your Honor, I understand what
24 Mr. Schmidt wants to do. However, the Court made a very
25 interesting point. The Court made a very interesting point --
4813
1 THE COURT: Yes.
2 MR. WILFORD: -- a while ago in terms of the defense
3 case going in. We're in the midst of our case. We're trying
4 to present evidence relating to Mr. Odeh at this point for the
5 jury's consideration. Mr. Schmidt can call Mr. Kherchtou back
6 on his case and present all that evidence if that's what he
7 seeks to do.
8 THE COURT: I'm trying to find out how long we'll be,
9 and it seems to me from what I have heard that's ten minutes.
10 MR. SCHMIDT: Your Honor, there is --
11 THE COURT: Which means you are not going to show him
12 document after document, did you see this, no, I didn't, no, I
13 didn't know. You can encompass that.
14 MR. SCHMIDT: Your Honor, I wish to put in --
15 withdrawn. The government has put in --
16 THE COURT: I'm aware of what the government put in.
17 Tell me what else it is that you want to cover.
18 MR. SCHMIDT: I want to cover and have him tell us
19 what those transactions being discussed are, because he's
20 aware of what the transactions are between Mr. El Hage and Abu
21 Abdallah el Yemeni. So I want to show him the documents, ask
22 him if he is familiar with the transaction, explain the
23 transaction, and then I move on. It's not a short process,
24 it's a little bit longer because they involve documents.
25 There's two tape recorded conversations that I want
4814
1 to play, also, for him to tell us --
2 THE COURT: What do those recorded conversations
3 reflect?
4 MR. SCHMIDT: One of them is a recorded conversation
5 that concerns a sugar deal that has been negotiated between --
6 which Mr. El Hage and Abu Abdallah el Yemeni is trying to
7 negotiate concerning the importation of sugar and some other
8 possible other items to be sold. That comes with documents
9 that were seized by the government.
10 THE COURT: Okay, what else? What else?
11 MR. SCHMIDT: And the other conversation refers to
12 stones and antelope and ostriches that --
13 THE COURT: And what other subject matter besides
14 that? What other subject matter?
15 MR. SCHMIDT: I believe we're dealing with the sale,
16 generally, even though there is other items mentioned, of a
17 sugar deal and a deal for --
18 THE COURT: The minutia of the deals, the point is to
19 establish the fact that regardless of what other activities he
20 may have been engaged in, Mr. El Hage was engaged in bone fide
21 commercial transactions; is that correct?
22 MR. SCHMIDT: He was engaged in bone fide commercial
23 transactions with people that the government claims are al
24 Qaeda, whose goal is to kill Americans, and I am trying to
25 show that they have put a very -- they have put a distorted
4815
1 picture on ambiguous conversations and that his conduct and
2 contact with these people --
3 THE COURT: What else?
4 MR. SCHMIDT: -- is legitimate.
5 THE COURT: Is that it?
6 MR. SCHMIDT: That's it for this witness. And I'm
7 willing to do this witness after.
8 THE COURT: And what do you think is a reasonable
9 period of time for you to do that?
10 MR. SCHMIDT: An hour.
11 MR. WILFORD: Your Honor, most respectfully, your
12 Honor, this is impacting on my client's Sixth Amendment rights
13 to present his case in a coherent fashion. The information
14 which Mr. Schmidt had, he had in discovery. This is not a new
15 revelation. He had all this information.
16 They made a decision not to call Mr. Kherchtou at
17 that point in their case. They were in their case. They
18 could have called him. They made no attempt to do it. Now
19 they are attempting, in the middle of our case, in the middle
20 of the presentation of our evidence, to conduct an
21 interrogation of our witness.
22 THE COURT: This is your last witness, right?
23 MR. WILFORD: Yes.
24 THE COURT: So when this witness is finished you are
25 going to rest?
4816
1 MR. WILFORD: We have documents and other evidence we
2 would seek to put in. We wanted to put our entire case in
3 without being interrupted.
4 THE COURT: Suppose we interrupt this now, let you
5 finish, and then, after you rest, it will be Mr. Schmidt's
6 case and Mr. Schmidt can call Mr. Kherchtou.
7 MR. WILFORD: That's fine, your Honor. However, the
8 government has --
9 THE COURT: How long will you be?
10 MR. FITZGERALD: Your Honor, I object.
11 Mr. Kherchtou's security situation is --
12 THE COURT: I'm aware of that and I've been
13 hesitating because of that.
14 MR. FITZGERALD: Can I put one thing on the record?
15 If you look at the transcript, what Mr. Schmidt has outlined
16 was covered the last time he testified, without challenge from
17 the government. He talked about Abu Abdallah being a
18 businessman, that he knew he was working with Abu Abdallah on
19 strictly business. There was correspondence regarding hides,
20 leather, sugar, seeds, tanzanite stones and the middleman.
21 Later on, we even have the antelope and ostriches. We have
22 the faxes, they were working on bills.
23 We didn't challenge that. We still don't challenge
24 it. I have no doubt that at one point sugar deals were
25 discussed with Abu Abdallah el Yemeni. I don't put much
4817
1 weight or relevance to the fact of what that does about
2 everything else in the case, but it hasn't been challenged.
3 Mr. El Hage found somebody who had an ostrich farm who wanted
4 to sell the eyes, talking about Abdel Abdallah el Yemeni.
5 This has been covered.
6 The materials Mr. Schmidt had before Mr. Kherchtou
7 testified. We took a break. The 3500 was turned over early
8 to be reviewed. We took a break so he wasn't cross-examined
9 until the next week. And some of the documents are, I believe
10 are documents we recently got back in reverse discovery, some
11 contracts that we didn't give Mr. Schmidt he decided to wait
12 until now to give us. We have heard about ostriches.
13 THE COURT: Mr. Schmidt, I will --
14 MR. SCHMIDT: May I briefly just respond to that?
15 THE COURT: Yes.
16 MR. SCHMIDT: We received 1300 pages of 3500 material
17 for this witness alone, and the government hadn't put in a
18 single document --
19 THE COURT: I will permit you to introduce in one
20 fell swoop, in one fell swoop, all of those documents. I will
21 permit you to play the two tapes. And all of that should take
22 no more than 25 minutes.
23 We'll take a five-minute recess and then at 12:00
24 your cross-examination will be concluded. We'll take a
25 five-minute recess.
4818
1 MR. COHN: Your Honor, if I stand up, you yell at me,
2 if I don't stand up, I don't get heard.
3 THE COURT: If I don't have an opportunity at least
4 once a day to yell at you, you know --
5 MR. COHN: I know.
6 THE COURT: -- there has to be some compensation.
7 MR. COHN: Given the limited salaries of federal
8 judges, I try to give you what compensation you can get.
9 THE COURT: I appreciate it.
10 MR. COHN: But I think that the dwelling on the plea
11 to killing Americans requires your reiteration of your charge
12 that the plea of a coconspirator is not usable against the
13 other defendants. I think that it's called for again at this
14 time.
15 THE COURT: Again?
16 MR. COHN: I do.
17 THE COURT: All right. We'll take a three-minute
18 recess.
19 (Recess)
20 THE COURT: The jury may be brought in.
21 Ladies and gentlemen, let me just take a moment to
22 remind you of something I have already told you and will tell
23 you again in my charge with respect to the fact that a witness
24 such as the witness now on the stand has pled guilty to
25 charges arising out of circumstances related to the facts of
4819
1 this case.
2 You are to draw no conclusions or inference of any
3 kind about the guilt of the defendants on trial here from the
4 fact that a witness pled guilty to similar charges. The
5 decision of the witness to plead guilty was based on a
6 personal decision of his concerning his own guilt in light of
7 benefits afforded by the government to someone who was
8 cooperating, and so this witness's decision to plead guilty
9 may not be used by you in any way as evidence against or
10 unfavorable to the four defendants on trial here.
11 Mr. Schmidt, you may resume.
12 MR. SCHMIDT: Your Honor, at this point, I wish to
13 offer the following exhibits into evidence: WEHX-M-7X-21, the
14 original and the translation, which is the same number with a
15 T at the end.
16 THE COURT: Yes.
17 (Defendant El Hage Exhibits WEHX-M-7X-21 and
18 WEHX-M-7X-21T received in evidence)
19 MR. SCHMIDT: The following M-7X exhibits are also
20 offered into evidence: 11 and 11T, 10 and 10T, 19 and 19T, 12
21 and 12T, 16 and 16T, 26 and 26T, 33 and 33T, 35 and 35T, and
22 44 and 44T. Those are documents that were seized from Mercy
23 International, Room J.
24 Also being offered into evidence are WEHX-K369 and
25 367. Those are two documents that were seized from -- that
4820
1 was discovered in the computer that was seized from the home
2 of Wadih El Hage.
3 Also being offered is WEHX-K384 and 385, also
4 recovered from the computer seized from Mr. El Hage's home.
5 We are also offering the tapes and the transcripts of
6 the two following conversations: WEHX-W40, which is the tape,
7 and W40T, which is the transcript; WEHX-W46, the tape, and
8 W-46T, the transcript.
9 Also being offered into evidence is WEHX-WDAT56 to
10 62, a document that was -- a fax document that was intercepted
11 in the Kenyan wiretaps, along with WEHX-WW-2 and WW-3.
12 MR. FITZGERALD: If I may just see the stack, I'll
13 run through --
14 THE COURT: They will be received subject to a motion
15 to strike if, after the government reviews them, there are
16 some issues. Otherwise, they are received.
17 (Defendant El Hage Exhibits WEHX-M-7X-10,
18 23HX-M-7X-10T, WEHX-M-7X-11, WEHX-M-7X-11T, WEHX-M-7X-12,
19 WEHX-M-7X-12T, WEHX-M-7X-16, WEHX-M-7X-16T, WEHX-M-7X-19,
20 12HX-M-7X-19T, WEHX-M-7X-26, WEHX-M-7X-26T, WEHX-M-7X-33,
21 WEHX-M-7X-33T, WEHX-M-7X-35, WEHX-M-7X-35T, WEHX-M-7X-44,
22 WEHX-M-7X 44T, WEHX-K367, WEHX-K369, WEHX-K384, WEHX-385,
23 WEHX-W40, WEHX-40T, WEHX-W46, WEHX-W46T, WEHX-WDAT56-62,
24 WEHX-WW-2 and WEHX-WW3 received in evidence)
25 MR. FITZGERALD: And they won't be read unless I have
4821
1 seen them?
2 THE COURT: Yes.
3 MR. SCHMIDT: Also included is WEHX-P3, a photograph,
4 and WEHX-WW62A, which is a combination of facsimile and
5 photographs.
6 At this time, your Honor, I wish to play -- excuse
7 me, wish to have counsel read the transcript, the translation
8 of WEHX-W40.
9 THE COURT: The photographs, are those being offered
10 in evidence, P3 and 62A?
11 MR. SCHMIDT: Yes. They are not the photographs that
12 we haven't discussed.
13 THE COURT: All right. They are all received,
14 subject to a motion to strike. Unless the government moves to
15 strike first thing tomorrow morning, then they are received.
16 government off the government no objection to the reading of
17 W40T.
18 (Defendant El Hage Exhibits WEHX-P3 and WEHX-WW62A
19 received in evidence)
20 THE COURT: Very well.
21 (Transcript read)
22 THE COURT: Anything further?
23 MR. SCHMIDT: The next transcript is WEHX-W46-T.
24 MR. FITZGERALD: No objection.
25 THE COURT: And that will conclude the cross?
4822
1 MR. SCHMIDT: There's a few questions I'm going to
2 have to ask the witness.
3 THE COURT: How long is this?
4 MR. DRATEL: This is nine pages, your Honor.
5 THE COURT: Why don't you distribute copies of this
6 to the jury and then just ask your questions. Why don't you
7 distribute copies of this transcript to the jury so the jury
8 can read them and then ask your questions. In other words,
9 I'm suggesting that instead of reading them --
10 MR. SCHMIDT: I don't have copies for all of the
11 jurors.
12 THE COURT: Very well. Go ahead.
13 (Transcript read)
14 THE COURT: Mr. Schmidt, I understand you have two
15 more questions of this witness.
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
4823
1 Q. Mr. Kherchtou, is Abu Abdallah al Yemeni the same person
2 that you worked for in the Sudan that you mentioned the last
3 time that you testified?
4 A. Yes.
5 MR. SCHMIDT: I ask if we can put exhibit WEXM-44 on
6 the screen just for counsel and the witness.
7 MR. FITZGERALD: No objection.
8 Q. Is this a letter that you sent through Mr. El Hage's fax?
9 A. Yes.
10 Q. Is it a request -- is this fax related to any of Mr. El
11 Hage's business or is this for your own private business?
12 A. May I read the letter so I will --
13 Q. Please read the letter.
14 THE INTERPRETER: Can we put the beginning of the
15 letter on the screen?
16 (Witness handed a document)
17 (Pause)
18 A. This is a letter from me to some friends in Italy.
19 Q. This is not relevant to anything that Mr. El Hage is doing
20 at the time? This is just your own personal business; is that
21 correct?
22 A. I was asking for, this is, the context of this letter is
23 that I was asking for some financial assistance from some
24 friends in Italy. It was difficult for me to send it to be ,
25 for this letter to be transferred through Sudan, so I asked
4824
1 Mr. Hajj to receive the money for me. I was in need of this
2 money for my education and for when I was studying aeronautics
3 in Kenya.
4 Q. You were using the bank account --
5 THE COURT: Mr. Schmidt, that's your last question.
6 MR. SCHMIDT: I object.
7 THE COURT: Objection overruled.
8 Q. When you're using Mr. El Hage's bank account it was just
9 for your convenience; is that correct?
10 A. This was the first and last time that I've asked Mr. Hajj
11 to give me this kind of assistance and I was not able to
12 receive the money.
13 MR. SCHMIDT: I have other questions, your Honor.
14 THE COURT: Thank you.
15 You may be seated. Anything further from any
16 defendants? Government?
17 MR. FITZGERALD: I have no questions, Judge.
18 THE COURT: The government has no questions. Mr.
19 Wilford?
20 MR. WILFORD: I have some questions, your Honor.
21 THE COURT: You may.
22 REDIRECT EXAMINATION
23 BY MR. WILFORD:
24 Q. Good afternoon, Mr. Kherchtou. How are you feeling today?
25 A. Well, thank you.
4825
1 Q. Now, am I correct that you personally took a bayat to
2 follow Bin Laden as long as his actions was Islamically
3 correct? Is that correct?
4 A. Yes.
5 Q. And, sir, when you testified previously yesterday you
6 indicated that you allowed your apartment to be used by
7 certain individuals, Al Riki and other people, you remember
8 that?
9 A. Yes.
10 Q. Did you agree with them to allow your apartment to be used
11 so that the American Embassy could be bombed and innocent
12 people could be killed?
13 MR. FITZGERALD: Your Honor. Objection to scope.
14 THE COURT: Yes.
15 MR. WILFORD: Your Honor, if I may be heard on this
16 issue?
17 THE COURT: Restate your question.
18 Q. Did you allow these individuals that you testified about
19 to use your apartment with the knowledge of what they were
20 using it for?
21 MR. FITZGERALD: Same objection, your Honor, covered
22 yesterday.
23 THE COURT: Yes. Sustained.
24 MR. WILFORD: Your Honor, may I please be heard with
25 respect to this?
4826
1 THE COURT: Yes.
2 MR. WILFORD: Thank you.
3 (Continued on next page)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4827
1 (In the robing room; all counsel present)
2 MR. WILFORD: Your Honor, there are two reasons why.
3 First, the interpreter yesterday was found to be
4 inappropriate. We switched interpreters. Your Honor, my
5 entire examination the interpreter that was used yesterday is
6 no longer being used. I want to make this clear. There may
7 be some question. I have three other questions that I want to
8 ask.
9 THE COURT: What are the other questions? How many
10 questions?
11 MR. WILFORD: I have them written down.
12 THE COURT: Go get them.
13 (Pause)
14 MR. WILFORD: The other aspect of it, your Honor, is
15 that during Mr. Schmidt's cross-examination today he focused
16 the allocution and plea of this particular witness on his
17 involvement in Somalia. I want to focus the jury back on the
18 Nairobi issue, which is what I'm asking the questions about.
19 MR. COHN: What?
20 THE COURT: What are the questions?
21 MR. WILFORD: The questions that I want to read are
22 the following: The last two questions that I want to ask are
23 this:
24 Did you ever do anything in agreement with members of
25 al Qaeda so that innocent men, women and children could be
4828
1 killed? And the final question, finally, did you ever agree
2 to follow any orders to participate in the action including
3 the intentional killing of innocent men, women and children.
4 MR. COHN: I object to those questions.
5 MR. FITZGERALD: I object and I don't agree that the
6 interpreter was at fault yesterday. It was late in the day.
7 MR. RICCO: Your Honor, I disagree with that. I've
8 read yesterday's transcript and the transcript is very
9 unclear. And what Mr. Schmidt has done with his examination
10 has turned our case into a referendum on Somalia and what we
11 would like to have an opportunity to do this with witness --
12 THE COURT: Those are the four questions? That's it.
13 MR. WILFORD: That's it.
14 MR. FITZGERALD: Your Honor, it shouldn't be a
15 summation. It's been covered yesterday. The witness was
16 brought back twice and this is the second time he covered this
17 was yesterday. That was the third run at this, and I think
18 it's inappropriate.
19 THE COURT: How many questions?
20 MR. WILFORD: I have three questions. The one I
21 asked that was objected to and the other two.
22 MR. COHN: Which were also objected to.
23 THE COURT: Your objection is?
24 MR. COHN: My objection, your Honor, is to
25 continually refocus on the killing of innocent women and
4829
1 children is not really an issue. If there was a bombing,
2 there is a bombing and who was killed is irrelevant.
3 THE COURT: I sustain the objection. With respect to
4 the point that was made by Mr. Ricco as to the El Hage cross
5 changing the focus, I think further examination of this
6 witness will only exacerbate that.
7 Objection sustained.
8 (Continued on next page)
9
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14
15
16
17
18
19
20
21
22
23
24
25
4830
1 (In open court)
2 THE COURT: Anything further of this witness?
3 MR. WILFORD: Of this witness? No, your Honor.
4 THE COURT: Very well.
5 (Witness excused)
6 THE COURT: Anything further on behalf of Defendant
7 Odeh?
8 MR. WILFORD: Yes, there is, your Honor. Just going
9 to take a move to move stuff over to the Elmo.
10 THE COURT: Very well.
11 (Pause)
12 MR. HERMAN: Judge, with the Court's permission and
13 pursuant to stipulation, Judge, we move the admission of Odeh
14 RR through XX and I think that Mr. Wilford has some --
15 THE COURT: Odeh exhibits RR through XX.
16 MR. HERMAN: That's correct, your Honor, the
17 photographs.
18 THE COURT: Received.
19 (Defendant Odeh Exhibits RR through XX received in
20 evidence)
21 MR. HERMAN: With the Court's permission we will
22 display them to the jury.
23 THE COURT: What are we looking at?
24 MR. WILFORD: Now displaying SS, your Honor.
25 THE COURT: Very well.
4831
1 MR. WILFORD: We're now displaying TT, your Honor.
2 We're now displaying UU, your Honor.
3 We're now displaying Odeh VV.
4 MR. HERMAN: Judge, also with the Court's permission
5 and pursuant to stipulation with the government, we move the
6 admission of Odeh A-3 through Odeh N as in Nancy 3.
7 THE COURT: A-3 to N-3.
8 MR. FITZGERALD: No objection.
9 (Defendant Odeh Exhibits A-3 to N-E received in
10 evidence)
11 MR. WILFORD: With the Court's permission may we
12 display those?
13 THE COURT: Yes.
14 MR. WILFORD: Starting with A-3, your Honor.
15 MR. SCHMIDT: Maybe, your Honor, I have a copy of E3.
16 I don't have a copy of any of the other ones that are being
17 offered. I'd like to review them.
18 MR. HERMAN: They are physical objects, Judge. There
19 are no copies. He's had the opportunity to review them.
20 THE COURT: Very well.
21 MR. SCHMIDT: If it's only physical objects, I have
22 no objection.
23 THE COURT: I didn't hear your last --
24 MR. SCHMIDT: If it's only physical objects and not
25 writing, then I have no objection.
4832
1 THE COURT: Very well.
2 MR. WILFORD: As I was saying, your Honor, displaying
3 A-3 to the jury at this point. I'm going to move it because
4 the screen doesn't give proper perspective. The other side of
5 that particular item.
6 MR. SCHMIDT: Your Honor, I would like to review
7 that, because it doesn't appear to be a physical object. This
8 appears to be writing. I'd like to review that.
9 THE COURT: You may do so and also if you have a
10 motion, you can make it after lunch.
11 MR. WILFORD: That's the final portion of that
12 document. I'm going to now display B-3, your Honor. Your
13 Honor, I'm going to display the interior contents of B-3.
14 I'll move on to C-3.
15 MR. HERMAN: Mr. Wilford, I'm sorry, let me interrupt
16 for just one second. Your Honor, we'd also move the admission
17 of Odeh A-8 which is a stipulation which explains these items
18 and with the Court's permission I'd like to read that to the
19 jury now so they can put it in context.
20 MR. FITZGERALD: No objection.
21 (Defendant Odeh Exhibit A-8 received in evidence)
22 MR. HERMAN: It is hereby stipulated and agreed by
23 and between the United States of America by Mary Jo White
24 United States, Attorney for the Southern District of New York,
25 Patrick Fitzgerald, Kenneth M. Karas and Paul W. Butler of
4833
1 counsel, and the defendant Mohamed Odeh by and with the
2 consent of his attorneys as follows:
3 1. That if called, if recalled to the stand to
4 testify Special Agent Howard Ledbetter of the FBI would
5 testify that the items number Odeh A-3 through Odeh N-3 were
6 among the various items that were recovered during a search of
7 the home of Mohammed Sadik Odeh in Kenya on August 20, 1998.
8 2. That if recalled to the stand to testify Special
9 Agent Howard Ledbetter would testify that the items numbered
10 Odeh A-4 through Odeh F-4 are letters that were recovered
11 during a search of the home of Mohammed Sadik Odeh in Kenya,
12 on August 20, 1998.
13 It is further stipulated and agreed this stipulation
14 and the exhibits denoted herein may be received in evidence as
15 defendant's exhibits at trial.
16 And it is signed by the applicable parties, Judge.
17 THE COURT: Thank you.
18 MR. WILFORD: I'm not displaying Odeh C-3, your
19 Honor, the cover, and a portion of the interior.
20 I'll move on to D-3, your Honor, the cover of D3.
21 I'm now displaying the interior of D3.
22 I'm now going to move on to E-3. This is another
23 exercise book. This is the cover. I'm now displaying the
24 interior.
25 Moving on to F-3, your Honor, another exercise book,
4834
1 the cover, and I'm now displaying the interior. I am also
2 display the rear cover. It's difficult to see, your Honor.
3 I'm now displaying G-3, your Honor, another exercise
4 book, the cover and now the interior. I'm now displaying H-3,
5 another exercise book, the cover and now the interior
6 contents.
7 I'm now displaying I-3, which is different from
8 government 74 which is also a Crown exercise book, the
9 exterior cover, now the interior.
10 I'm now displaying J-3, your Honor. This is the
11 interior of J-3. I'm now displaying to the jury, your Honor,
12 K-3.
13 Your Honor, I have an item which is Odeh L-3 which
14 I'd like to publish to the jury.
15 THE COURT: Yes, you may.
16 MR. WILFORD: We're going to need gloves because of
17 the nature of the item. I have one more thing, so I'll do
18 that first.
19 THE COURT: Yes.
20 MR. WILFORD: Display Odeh N-3, another exercise
21 book. It's the outside cover and now the interior.
22 THE COURT: Mr. Wilford, won't it be adequate if you
23 stand right in front of the jury?
24 MR. WILFORD: I will. No problem, Judge.
25 THE COURT: The book you're going to hold is L-3.
4835
1 MR. WILFORD: The item is not a book, your Honor,
2 I'll hold it. I'd like to display M-3, your Honor.
3 THE COURT: Mr. Wilford is going to stand right in
4 front of the jury with gloves on and is displaying. You want
5 to describe what that is?
6 MR. WILFORD: Yes. The item is a box that's marked
7 and said it's made in Indonesia. There are other markings on
8 the box I cannot read but they appear to be in Arabic. The
9 box is open.
10 We do have a few more additional items.
11 MR. HERMAN: Judge, with the Court's permission the
12 defendant Odeh seeks to move into evidence exhibit number O-3
13 and the stipulation which pertains to it which we have marked
14 A-6.
15 MR. FITZGERALD: No objection.
16 THE COURT: Received.
17 (Defendant Odeh Exhibits O-3 and A-6 received in
18 evidence)
19 MR. HERMAN: Judge, the stipulation pertaining to O-3
20 which I would like to read at this time is marked Odeh A-6 and
21 with the Court's permission it reads as follows:
22 It is hereby stipulated and agreed by and between the
23 United States of America by Mary Jo White, United States
24 Attorney for the Southern District of New York, Patrick
25 Fitzgerald, Kenneth M. Karas, Paul W. Butler of counsel and
4836
1 defendant Mohammed Odeh by and with the consent of his
2 attorneys as follows:
3 1. That if called to the stand to testify a Special
4 Agent of the FBI would testify that the item numbered Odeh O-3
5 is a photograph of the Crown exercise notebook (Government
6 Exhibit 704) recovered during a search of the home of Mohammed
7 Sadik Odeh in Witu, Kenya on August 20, 1998 taken at the FBI
8 laboratory in Washington prior to the commencement of any
9 testing.
10 It is further stipulated and agreed this stipulation
11 and the exhibit denoted herein may be received in evidence as
12 defense exhibit Odeh O-3 at trial. Signed by the appropriate
13 parties.
14 MR. WILFORD: I'm going to display Odeh O-3 to the
15 jury.
16 MR. RICCO: Your Honor, in plain terms what this is,
17 it's a photograph of an item that is in evidence that was
18 taken before it was examined by the FBI.
19 THE COURT: Yes.
20 MR. WILFORD: Your Honor, we need to discuss
21 something with the government. May we stop now?
22 THE COURT: We'll break for lunch and we will resume
23 at 2 o'clock and promptly at 2 o'clock.
24 (Jury not present)
25
4837
1 THE COURT: Mr. Wilford, when do you anticipate,
2 assuming you start promptly at 2?
3 MR. RICCO: We'll be done at ten minutes after 2 if
4 we start at 2, providing we don't get cross from co-counsel.
5 Maybe ten minutes, your Honor.
6 THE COURT: What are you going to have
7 cross-examination of?
8 MR. RICCO: You never know, Judge.
9 THE COURT: Then, Mr. Schmidt, I take it you're going
10 to resume playing those tapes.
11 MR. SCHMIDT: Yes, your Honor, and we have additional
12 documents that we're going to put in, and we're going to
13 publish some of the documents, not all of them, and then we
14 have other documents and the government has had copies of all
15 those. I'm going to go over and tell them specifically what
16 order we're going to try to do that in.
17 THE COURT: Your next live witness?
18 MR. SCHMIDT: It's either going to be a brief one
19 today or it would be tomorrow.
20 MR. FITZGERALD: Could we ask who that is?
21 THE COURT: Yes. Who is that witness?
22 MR. SCHMIDT: The brief one today would be Agent
23 Coleman if he's available and though we might be able to work
24 this out with a stipulation, so it might not be necessary.
25 MR. COHN: Are we working this afternoon is what my
4838
1 question is?
2 THE COURT: Of course we're working this afternoon.
3 MR. COHN: Doesn't sound like it to me.
4 THE COURT: At what point is the defendant El Hage
5 going to rest?
6 MR. SCHMIDT: We have a series of documents that we
7 want to put in. There is a few more tape recordings we would
8 like to play. And we have that expert who is going to be
9 available tomorrow morning.
10 MR. FITZGERALD: Is this the expert that we were told
11 might testify for the first time yesterday?
12 MR. SCHMIDT: Yes, and he's actually en route.
13 MR. FITZGERALD: Your Honor, expert disclosure of
14 what he is going to say? This is another journalist.
15 THE COURT: We'll do that, but wait a moment. Does
16 the defendant El Hage intend resting tomorrow?
17 MR. SCHMIDT: We have one issue, your Honor, that we
18 haven't resolved on discovery that could be taken care of
19 perhaps by stipulation. We have not. Other than that, we're
20 waiting for the completion of discovery on that issue.
21 THE COURT: Assuming that that is completed.
22 MR. SCHMIDT: As soon as that is completed, we will
23 either finish tomorrow with a slight possibility of a little
24 bit on Monday.
25 THE COURT: In terms of when summations can begin, is
4839
1 it fair to say that summations will begin on Tuesday?
2 MR. SCHMIDT: I don't know if the government is
3 putting in a rebuttal case or not.
4 MR. FITZGERALD: That all depends on a number of
5 things, including what it is that their expert is going to
6 testify to tomorrow.
7 THE COURT: Short of that, as of this moment?
8 MR. FITZGERALD: It will be a brief rebuttal case.
9 If he finishes Monday morning, we will be done on Monday.
10 THE COURT: I'm just trying to give counsel an
11 opportunity to know how they can spend the weekend. So that
12 there is a strong probability that closing statements will
13 begin on Tuesday. All right. We're adjourned to 2 o'clock.
14 MR. FITZGERALD: Your Honor, we've been given late
15 disclosure, constantly most of the disclosure from experts is
16 what we hear from the witness stand when they tell us what
17 they heard on the radio when they went to London.
18 THE COURT: Not entirely, not entirely the fault of
19 El Hage or his counsel, and that is because there have been
20 some matters disclosed to the Court with respect to the sudden
21 unavailability of other witnesses for reasons which are not
22 the responsibility of El Hage's counsel. Nevertheless,
23 nevertheless, is there any reason why you can't give the
24 government some information as to the scope of this expert
25 testimony?
4840
1 MR. SCHMIDT: No, your Honor. In fact, I had hoped
2 to have additional information for them this morning but it
3 hasn't gotten over here yet.
4 MR. COHN: Could we be favored with that, too?
5 MR. FITZGERALD: Even those other witnesses who
6 didn't show up, most of them we didn't receive notice of
7 either and we get a resum‚ and we hear he's a journalist and
8 we hear about all sorts of things the person heard on the
9 radio or a journalist's opinion on military expertise.
10 We're finding out what the expert testimony is going
11 to be when the witness testifies, which puts us in a untenable
12 position in front of the jury. When Mr. Kherchtou testified
13 they took a week down. When Mr. Al Fadl testified -- we
14 shouldn't be short changed, because they make late disclosure.
15 MR. DRATEL: Your Honor, I'm not going to respond to
16 the witnesses who have already testified, but we do not agree
17 with that characterization. I don't think it needs any
18 response.
19 THE COURT: I'll see. We're adjourned except that
20 I'll see counsel for El Hage and the government, anybody else
21 who wants to in the robing room.
22 (Continued on next page)
23
24
25
4841
1 (In the robing room)
2 THE COURT: Mr. Schmidt, is your expert witness
3 somebody.
4 MR. SCHMIDT: Yes.
5 THE COURT: Is your expert witness somebody whose
6 testimony was not fully reviewed?
7 MR. SCHMIDT: That's very correct. He's from out of
8 the country, but we'll have a relevant chapter of the book on
9 Somalia available this afternoon for the government. I guess
10 it's about twenty, thirty pages.
11 MR. FITZGERALD: Your Honor, for the record, even
12 with the witnesses that were called, some of them were
13 interviewed in September, we received notice last week.
14 THE COURT: I didn't want this in open court but I
15 assume that was a problem that you don't have a summary of his
16 testimony because he was very recently retained. I think I
17 probably cannot compel the defendant to do something which is
18 not within its power to do.
19 MR. FITZGERALD: But, your Honor, they've been
20 talking to other experts evidently and if they're going to
21 call an expert as to a point, whether he's a journalist or
22 something to do with Somalia or Ethiopia, they are trying to
23 establish a point and we find out what the point is through
24 the witness.
25 THE COURT: You don't know the point?
4842
1 MR. FITZGERALD: I don't know what the point of this
2 witness is.
3 THE COURT: It's not so easy to find, but I think Mr.
4 Schmidt has been trying now for days and days to establish the
5 significance of the attack on Abdi House and its impact on
6 Somalia towards Americans.
7 MR. FITZGERALD: We can free up the issue. I don't
8 know what the relevance is at this point because the issue is
9 a conspiracy of whether or not the defendants joined in a
10 conspiracy to attack Americans, not what reaction was to the
11 Abdi House assault. We've already had testimony from the
12 other expert, Mr. Samatar, so I don't know what it is that
13 this expert is going to testify to.
14 THE COURT: Let me tell you what I understand it to
15 be, and, please, Mr. Schmidt, if I'm incorrect, tell me,
16 because defendant's statement by counsel as to the relevance
17 have not always been crystal clear. My understanding is the
18 contention of El Hage that anti-Americanism in Somalia is
19 traceable to the raid on the Abdi House and that anything that
20 was done or said with respect to al Qaeda and Somalia prior to
21 that critical event -- I'm stating what I understand the
22 defendant's intention to be -- was not anti-American in its
23 motive. Is that accurate?
24 MR. SCHMIDT: Your Honor, I'm not saying that there
25 wasn't anti-Americanism in existence. There was nothing
4843
1 directed specifically towards the Americans until after the
2 Abdi House by the Somalis in Mogadishu.
3 THE COURT: I have been sustaining objections because
4 I thought I did not understand that it's a temporal issue.
5 It's a question of when in Somalia there was an attitude which
6 was hostile to Americans and that therefore aid to Somalia at
7 a prior date could not be regarded as being anti-American.
8 MR. SCHMIDT: That's very accurate, your Honor. It's
9 not the totality of it, but it is accurate, and if I may add,
10 we've been in negotiation with the government on the
11 stipulation since January, and all these things that we've
12 been talking about in Somalia were in the stipulation, and
13 part of our discussions with the government concerning the
14 stipulations, so it shouldn't be a surprise.
15 THE COURT: Are you still agreeable to a stipulation?
16 MR. COHN: It can't happen. It just can't happen.
17 MR. DRATEL: We had reached agreement with the
18 government.
19 THE COURT: I understand.
20 MR. FITZGERALD: On that point we've already heard
21 from Dr. Samatar on that point and I don't know what it is
22 that --
23 THE COURT: Yes, but the defendants have a right to
24 call an expert.
25 MR. FITZGERALD: Dr. Samatar the geographer from BBC
4844
1 was told about the military capabilities of people in Somalia.
2 MR. DRATEL: Your Honor, they got an article from us
3 by Dr. Samatar about War lord policies in Somalia. They got
4 that before.
5 MR. SCHMIDT: It covers basically Mogadishu and the
6 Mogadishu issues.
7 MR. FITZGERALD: Your Honor, also 403 issue on Abdi
8 House. We have tried this case and part of what has been
9 happening in front of the jury sometimes is questions are
10 asked for the purpose of getting in casualties in Abdi House,
11 and I'm very concerned about what is going to be --
12 THE COURT: I understand that the critical issue is
13 the time, the event that there was American military action
14 with respect to Abdi House. We've had a lot of this already,
15 and it is the defendant's contention that was the turning
16 point in Somalia-American relations.
17 MR. SCHMIDT: Your Honor, one of the other things
18 that is holding this up which is causing some problems in
19 discovery is that this --
20 THE COURT: But the question is the time.
21 MR. SCHMIDT: Yes, but one of the problems has
22 been --
23 THE COURT: There was a question of whether there was
24 a video available. You were going to make a telephone call.
25 MR. FITZGERALD: Yes, Judge, and we've been in court
4845
1 all morning. I put a call in last night.
2 MR. SCHMIDT: Also, one of the things that is
3 basically a fact that we're having difficulty because we
4 haven't received this long document from the United States
5 armed forces is that the first American casualty occurred on a
6 date in August, 1993, after the Abdi House.
7 The last casualty, though the helicopter witness was
8 not completely clear was it August -- October 6th or 7th, and
9 I'm desperately waiting for a document from the Army which
10 should be there that gives the dates of the first American
11 casualty and the last American casualty. That would be a
12 report from the Army that I'm entitled to put in. I mean I'd
13 like to have that document.
14 THE COURT: Maybe you should let Mr. Fitzgerald get
15 on the telephone.
16 MR. FITZGERALD: No one is going to dispute dates of
17 death. We've never disputed that.
18 MR. SCHMIDT: The date that the Americans are out in
19 March of 1994.
20 THE COURT: You won't agree to the stipulation of
21 that.
22 MR. COHN: Judge, I am not allowed to stipulate to
23 anything about Somalia. I'm not captain of this.
24 THE COURT: I understand.
25 MR. SCHMIDT: These are very factual things, your
4846
1 Honor, that I'm waiting for. The first American casualty
2 occurred in August of 1993. The last American casualty
3 occurred October something 1993. The last American troops are
4 out in March, I think, 30th, 1994. That's a factual thing
5 that would be reflected in documents from the government.
6 MR. FITZGERALD: My concern is what we're getting
7 into the details of the Abdi House assault in terms of
8 casualties. I don't see why the expert can't say the reaction
9 to whatever happened in Abdi House was that --
10 MR. SCHMIDT: We have to give the understanding of
11 why there was these reactions. Our purpose --
12 THE COURT: I looked at some of the subpoenas at some
13 of the issues that we will have attempts to subpoena pictures
14 of wounded people. I'm just making a general statement. To
15 try and outgore the government is the most futile thing,
16 because the government has been extremely restrained in
17 showing that. If you want to have the issue blood and guts,
18 you lose.
19 MR. SCHMIDT: Your Honor, we don't have the video so
20 we're not going to have any pictures of blood and guts.
21 THE COURT: Yes, but I'll permit a leading question
22 as to whether that as a result of the raid on Abdi House there
23 were significant casualties. May I really, in an attempt to
24 be helpful --
25 MR. SCHMIDT: I appreciate that, your Honor.
4847
1 THE COURT: -- state that the more expeditiously you
2 can conduct your examination of a witness, the more effective
3 it will be?
4 We're adjourned until 2 o'clock.
5 (Luncheon recess)
6 (Continued on next page)
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4848
1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 THE COURT: I understand the government has asked for
4 an adjournment of the review of the special verdict form, and
5 we'll put that over until tomorrow.
6 I would like to take up at 4:30 today one aspect on
7 which the government I know is prepared -- the issue of
8 unanimity with respect to aiding and abetting, that issue
9 which the government has already briefed. I would like to
10 take that up because I have some questions about it.
11 MR. FITZGERALD: Thank you, Judge.
12 THE COURT: We're missing -- there's Mr. Schmidt.
13 Okay, the next order of business is going to be the
14 continued playing of the tapes.
15 MR. HERMAN: Judge?
16 THE COURT: Excuse me?
17 MR. HERMAN: The Odeh team is going to put in the
18 rest of their exhibits and rest.
19 THE COURT: They're going to do that, then it's going
20 to rest, then we go immediately to El Hage and the playing of
21 the tape.
22 MR. HERMAN: Yes, your Honor.
23 THE COURT: All right. So we can bring in the jury.
24 I'm also going to try and resolve at 4:30 any
25 outstanding El Hage discovery matters.
4849
1 (Jury present)
2 THE COURT: Good afternoon.
3 Mr. Ricco.
4 MR. RICCO: Yes, thank you, your Honor.
5 MR. HERMAN: Judge, with the Court's permission, on
6 behalf of Mohamed Odeh, we move into evidence exhibits Odeh
7 A4, B4, C4, D4 and E4, which, pursuant to the stipulation A-8
8 previously entered into evidence, were letters recovered
9 during a search of the home of Mohamed Sadeek Odeh in Witu,
10 Kenya on August 20, 1998, and the translations, which would be
11 the T designations on each of those exhibits, Judge.
12 MR. FITZGERALD: No objection.
13 THE COURT: Received.
14 THE COURT: That's A4 through E4, A4-T through E4-T.
15 MR. HERMAN: Yes, your Honor.
16 THE COURT: Received.
17 (Defendant Odeh Exhibits A4 through E4 and A4-T
18 through E4-T received in evidence)
19 MR. RICCO: And in people's terms, that means that
20 when Mr. Odeh's house was searched, they found various
21 letters. We're going to read you just three of those letters.
22 Probably take us a couple of hours, but we'll get through
23 them.
24 The first letter is A4.
25 MR. WILFORD: May we display it to the jury?
4850
1 MR. RICCO: The first letter is a letter to his
2 brother.
3 (Exhibit A4 read)
4 THE COURT: "Perpetuate something which is right."
5 You misspoke.
6 MR. RICCO: I'm sorry, your Honor.
7 (Odex Exhibit A4 continues)
8 MR. WILFORD: Your Honor, at this time we would like
9 to display to the jury Odeh B4, and I'll be reading that.
10 (Odeh Exhibit B4 read)
11 MR. RICCO: Your Honor, we're now going to read E4,
12 which is the last letter and we will be completed for Mohamed
13 Odeh.
14 MR. RICCO: This is a letter to various members of
15 his family.
16 (Odeh Exhibit E4 read)
17 MR. RICCO: Your Honor, with that, we have concluded
18 the presentation of the evidence on behalf of Mohamed Odeh.
19 Mr. Wilford is telling me that's not true.
20 MR. WILFORD: There's one final item which the
21 government has agreed to stipulate to, and that is Odeh AA-T,
22 which is a transparency of Odeh AA, which is already in
23 evidence.
24 MR. RICCO: That's what I was going to say.
25 MR. FITZGERALD: No objection.
4851
1 THE COURT: Received.
2 (Defendant Odeh Exhibit AA-T received in evidence)
3 THE COURT: The defendant Odeh rests.
4 You recall, ladies and gentlemen, we began with the
5 defense case on behalf of El Hage and we interrupted it to
6 accommodate some logistical concerns and went to the case on
7 behalf of Odeh, which is now concluded, and so we're returning
8 to the defense case on behalf of the defendant El Hage.
9 You will also recall that when we stopped, we were in
10 the process of playing some tapes and that I had told you that
11 with respect to those tapes which are between El Hage and his
12 wife with a representative of the United States, that those
13 conversations are not being offered or received as evidence of
14 the truth of anything said to the agents or to the El Hages.
15 They are being offered and are being received solely to show
16 that the El Hages were in communications with representatives
17 of the United States while they were in Kenya, and to reflect
18 the general tone and nature of the conversations. They are
19 being offered and received for no other purpose.
20 MR. SCHMIDT: Your Honor, we are going to be handing
21 out the headsets.
22 Your Honor, we now will play WEHX-W55 and place on
23 the Elmo the transcript, also known as NB1-167, incoming
24 telephone call on September 13, 1997 from Joseph to Wadih El
25 Hage.
4852
1 (Audiotape WEHX-W55 played)
2 MR. LARSEN: The next conversation we'll be playing
3 is Defendant's Exhibit WEHX-W56E, a September 15, 1997
4 discussion between Wadih El Hage and an unidentified woman,
5 who is a travel agent.
6 (Audiotape WEHX-W56E played)
7 MR. LARSEN: The next conversation is WEHX-W49E,
8 otherwise known as NB1-159. It's a September 3, 1997
9 conversation between Wadih El Hage and Joseph, the government
10 agent.
11 (Audiotape WEHX-W49E played)
12 MR. FITZGERALD: Your Honor, just for clarification,
13 if we could have the record reflect that call was September 3,
14 and the first call of the afternoon was September 13th.
15 THE COURT: That call preceded the others that we
16 heard.
17 MR. FITZGERALD: Yes.
18 MR. LARSEN: The next conversation is Defendant's
19 Exhibit WEHX-W57, it's tape number is NB1-172, September 18,
20 1997 conversation at 20:21 hours between Wadih El Hage and
21 Government Agent William.
22 (Audiotape WEHX-W57 played)
23 (Continued on next page)
24
25
4853
1 MR. FITZGERALD: Can we just clarify that the
2 transcript is only an aid. I think there was a draft
3 transcript displayed and the word cousin listed as target in
4 the old draft.
5 MR. SCHMIDT: It was corrected. Unfortunately didn't
6 make it into the computer.
7 MR. FITZGERALD: That's fine, Judge.
8 MR. LARSEN: Last WEH69 August 26, 1997, NB1-153-1.
9 (Exhibit WEH 69 played)
10 MR. SCHMIDT: Next I'm going to be offering into
11 evidence a number of documents that I will be reading or
12 putting on the screen the selected portion of those documents.
13 THE COURT: Very well.
14 MR. SCHMIDT: Documents are note pads that were
15 seized at Mercy International Relief Agency. WEHX-M-7 A,
16 WEHX-M-7*-38 and a translated version 38-T; WEHX-M-7*-110 and
17 the translated version 110T; WEHX-M-7*-175 and the translated
18 version, 175-T.
19 THE COURT: You don't have to repeat WEHX.
20 MR. SCHMIDT: The last one is M-7*252 and 252-T, the
21 translated version. If I may suggest, your Honor, it might be
22 a good time to break to set up for the reading.
23 (Defendant El Hage Exhibits WEHX-M-7 A, WEHX-M-7*-38
24 38-T; WEHX-M-7*-110, 110T; WEHX-M-7*-175 and 175-T received in
25 evidence)
4854
1 THE COURT: We'll take our midafternoon break.
2 (Continued on next page)
3
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4855
1 (Jury not present)
2 MR. FITZGERALD: Judge, if I could ask for an
3 instruction to the jury that the legality of the techniques
4 are not appropriate for them to consider. I had objected to
5 those conversations. They're offered to show the state of
6 mind of Mr. El Hage, but clearly we end up discussing these
7 items, and it seems there are eight or nine offers, and now we
8 have Mr. El Hage moved to suppress his statement made
9 overseas. He agreed not to offer them and he's putting in
10 statements on the telephone. And I'm concerned that he is
11 going to argue in summation that he was being truthful and
12 cooperative.
13 THE COURT: He argued that these were not, but you
14 want an instruction that all of the evidence which is --
15 MR. HERMAN: Judge, the interpreters can't hear you
16 apparently.
17 THE COURT: That all of the evidence which they will
18 seize has been legally obtained.
19 MR. FITZGERALD: Yes, Judge.
20 MR. SCHMIDT: Your Honor, if I may, I'm clearly not
21 making an argument of truthfulness depending on those tapes.
22 That was never the intention.
23 THE COURT: Nevertheless.
24 MR. SCHMIDT: I'm not going to make any arguments
25 related to the legality or illegality of the search.
4856
1 THE COURT: Regardless of that, I think it's an
2 appropriate instruction for me to give at this time.
3 MR. SCHMIDT: Your Honor, could I ask that you
4 instruct the jury that neither the government nor the
5 defendant is alleging that the --
6 THE COURT: No one is claiming otherwise?
7 MR. SCHMIDT: For the purpose of obviously the jury's
8 determination, not for the purpose of if there is an appeal.
9 THE COURT: I'll tell the jury that all of the
10 evidence which is presented before them has been legally
11 obtained and no party is contending otherwise. Very well. I
12 will do exactly that.
13 (Pages 4857 through 4859 sealed)
14 (Continued on next page)
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4860
1 (Recess)
2 (In open court; jury not present)
3 THE COURT: At 4:30 we're going to briefly go over
4 some issues on the verdict form and I hope we'll take up the
5 El Hage discovery matter. I don't know how long that will be.
6 If all of the defendants want to leave and waive their
7 presence, then you do so. If any of them want to stay, then
8 they can stay.
9 MR. WILFORD: Your Honor, is it still your intention
10 to discuss working Fridays?
11 THE COURT: Working Fridays, sequestration, and a few
12 other things. I could tell you my present thinking is not to
13 sit on Friday during summation. To sit on Friday during
14 deliberation.
15 MR. COHN: Your Honor, we haven't raised the issue of
16 interregnum between this and a possible penalty phase and
17 Friday is the only time that we have to talk to our client.
18 THE COURT: That's a separate issue. If interregnum,
19 it will be a very brief one.
20 (Continued on next page)
21
22
23
24
25
4861
1 (Jury present)
2 THE COURT: Mr. Schmidt.
3 MR. FITZGERALD: Judge, we do have a curative
4 instruction.
5 THE COURT: Yes. Ladies and gentlemen, I just want
6 to advise you that all of the evidence which you have heard or
7 seen has been legally obtained and is legally before you and
8 no party contends otherwise.
9 MR. SCHMIDT: Your Honor, before we actually review
10 the documents we're putting on another exhibit that is the
11 receipt given to the wife of Mr. El Hage on the inventory of
12 the items seized in his home and we offer that as exhibit
13 WEHX-WW61.
14 MR. FITZGERALD: No objection.
15 THE COURT: Received.
16 (Defendant El Hage Exhibit WEHX-WW61 received in
17 evidence)
18 MR. SCHMIDT: Could we publish it now. If I may just
19 read that.
20 (Exhibit read)
21 MR. SCHMIDT: Now if we may show the cover page of
22 the original exhibit, and then the translation exhibit of
23 M7*38, and the translated copy.
24 MR. FITZGERALD: Your Honor, just to clarify, we've
25 now switched topics. These are documents from Mercy
4862
1 International.
2 MR. SCHMIDT: That is correct. These are the
3 documents that I offered before the break, and with your
4 Honor's permission, and if there is no objection, I will
5 sometime just summarize what is found on the document as
6 opposed to reading the entire document.
7 THE COURT: Yes.
8 MR. SCHMIDT: Obviously the document itself and the
9 translation is in evidence and not how I describe them.
10 THE COURT: Yes.
11 MR. SCHMIDT: I ask to place on page 39.
12 (The following pages read from: 39, 40, 41)
13 If we can skip, I'm skipping through, your Honor, the
14 books. Obviously, the whole book is in evidence and I'm only
15 reading selected portions, not to keep us here for the next
16 three weeks.
17 If we can go to page 45, your Honor.
18 (The following pages read from: 45, 48, 49, 50, 51)
19 Now we will skip to page 64.
20 (Following pages read from: 64, 65, 67, 68, 72, 74.
21 75, 77, 80, 81, 83, 84, 90, 95, 96, 97, 102, 104, 105)
22 Mr. Dratel can relieve me of reading some of these.
23 While he's getting up, I will continue on page 113 from
24 WEHX-M7*110-T.
25 MR. DRATEL: May I, your Honor?
4863
1 THE COURT: Yes.
2 MR. DRATEL: Thank you. On page 113.
3 (Following pages read from: 113, 114, 117, 120, 123
4 126, 127, 130, 127, 130, 132, 134, 138, 143, 144, 146, 149,
5 151, 158)
6 (Continued on next page)
7
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4864
1 MR. SCHMIDT: 159.
2 MR. WILFORD: Your Honor, I have an objection at this
3 point on 403 grounds.
4 THE COURT: To 159?
5 MR. WILFORD: No, to this continued line as
6 cumulative.
7 THE COURT: Objection it's cumulative. How much more
8 will there be?
9 MR. SCHMIDT: I'm trying to speed it up now since
10 we've gotten through a lot of it, your Honor. I'm hoping to
11 try to complete this, if there are no interruptions, in about
12 ten minutes.
13 THE COURT: All right. I'll permit it for another
14 ten minutes with the understanding that's the conclusion of
15 this type of evidence.
16 MR. SCHMIDT: I'm sorry, I didn't hear your Honor.
17 THE COURT: I'm permit you another ten minutes on the
18 assumption that is the end of this type of presentation.
19 MR. SCHMIDT: Of the notebooks. It would be the end
20 of the presentation of the notebooks, yes, indeed.
21 THE COURT: Well, why don't you proceed.
22 MR. SCHMIDT: Thank you, your Honor.
23 MR. SCHMIDT: Page 159, date September 22, 1993, from
24 Hamburgh, Germany, indicating sugars and some men from
25 Romania.
4865
1 161 discusses strategic decisions of products to
2 sell, a visit to a check factory from Czechoslovakia and the
3 discussion at the bottom, "Take information on the airplane to
4 sell it to Saudi Arabia and photograph it as well. Ask
5 Abu-Tareq about the evaluation of the sale. How much do we
6 get it for it in America."
7 171, 171 is a vacation schedule to Cyprus from 8/30
8 to 9/3 and then later 9/13 to 9/24 concerning information
9 pertaining to Lebanon, clothes, jeans, things that are related
10 to vacation during that period of time.
11 173 is a listing of in July 5, 1993, Jeddah Airport,
12 with some items purchased and expenses that run from July 5,
13 1993 to August 6 that indicates all expenses on the travel and
14 different currencies that include Dutch, German, Slovakian,
15 Greek and other currencies, exhibiting evidence of the trip.
16 Then we're going on to Exhibit 175 and going on to
17 page 180. 180, discussed a date 11/3 and determining "to send
18 any fruit and vegetable to Lebanon, then export it again.
19 Lebanon will be a cover for the Sudanese exporter."
20 182, this concerns developing a fish farm in a salt
21 field and it's dated May 4, 1993.
22 185, it concerns the -- I'm sorry, 185 has
23 information including, in the middle of the full page, "Take
24 an appointment" -- excuse me, "We beg you to clarify your
25 requests in a letter directed to the Laden International
4866
1 Company and the Russia Maz Company. Master Ahmed Jebara wants
2 an appointment with the Sheikh. 10/12 is possible. 1-2,30 is
3 better. Take an appointment during this time or other time."
4 186, May 6, 1993, 9:00 in the morning. There seems
5 to be an appointment, and 5/8/93, "Make a paymaster check to
6 the order of the Public Board for Investment, included with
7 the study for the value of 5,000 pounds."
8 187 is notes, including taking an appointment for
9 Mohamed Jebara with the sheikh and notes about what different
10 people should be doing.
11 190 has information concerning the Maz Company again
12 and some information about Saudi Arabia and a note,
13 "Abu-Abdallah: Sheik Ali Othman wants to consul with his
14 friends concerning matter which you requested and he shall
15 reply to you on Thursday."
16 Then skip to 199. This has a date of Sunday, May
17 22nd. There is an account number of Osama Mohamed Bin Laden
18 in Jeddah and a telephone number of Abu al-Fadl, question of,
19 "What about the bonus of the holiday?" and other matters as
20 well.
21 208, please. This talks about the Russians and the
22 sugar company and trucks, refrigeration, shock absorbers,
23 repair, spare parts should be free, the payment and other
24 matters relating to the purchase of different products,
25 including a truck.
4867
1 219, please. This is July 4, 1993 concerning the
2 unfeasibility of opening up an office. It talks about
3 presenting an application for the man present in Cyprus. The
4 factory through Abu-Al-Rida on the basis that he would be our
5 representative whereas we come to him with the sesame. It
6 talks about other matters in Cyprus and the Zaytur people,
7 about tractors and things about Holland.
8 224, it says, "Send the subscription letter to," and
9 in English it's Newsweek. "Make business cards, visas."
10 242, this is an indication concerning Abu Massaab
11 either to sell the car or we negotiate to sell it to
12 Moattasem. Indicates things for Abu-Al-Rida, Jamal and
13 others, including "the sales of oil is upon request to the
14 local currency while watching the market prices."
15 249, additional information concerning sesame and
16 other people, other people named.
17 Now to the last book, going to M-7A. We'll skip the
18 book M-7*252. Page 2 has a date November 11, 1993 concerning
19 leather in November 28, 1993. We're going to skip to page 8,
20 which has a date of November 17, 1993 relating to different
21 products.
22 We're going to go to page 10. The entry for November
23 22 says, Mottasaam goes tomorrow to the Embassy of Saudi
24 Arabia to find out if they would notarize the papers of the
25 health certificate to export cow's meat. They are
4868
1 notarizing."
2 14 has a date of November 27th, 1993 concerning
3 lumber and has Abu Khadija and Abu Ibrahim's name concerning
4 opening of bank account and sending telexes.
5 THE COURT: Mr. Schmidt, suppose you just summarize
6 the balance.
7 MR. SCHMIDT: An example, then, 18 --
8 THE COURT: Are the other documents of a similar
9 content as those that you have done?
10 MR. SCHMIDT: I would just like to summarize
11 especially because particularly the dates on the documents
12 cover a period of time that's relevant in the case.
13 It will take three minutes at most.
14 THE COURT: Three minutes? Three minutes and then
15 we'll adjourn.
16 MR. SCHMIDT: Thank you, your Honor.
17 On page 20, the date is December 12, 1993, concerning
18 the attorney and related to Taba. 21 is dated December 18,
19 1993 concerning the Chinese Ministry of Foreign Affairs
20 relating to economics and Sayed Altelaib sending letters and a
21 fax to Korea. 22 is dated December 20, 1993 concerning other
22 business. Page 25 is January 15, 1994 concerning leather and
23 other matter. Page 30 talks about, "What does the region need
24 for the project of fighting malaria?" And it concerns an
25 execution of the project concerning malaria, and that
4869
1 continues on the discussion of that on page 30, 31, 32, 33 and
2 34 concerning the area of malaria, concerning orphanages and a
3 project to deal with the mosquito problem. It also talks
4 about on page 34 that AMREF has a malaria control project.
5 On page 36 we have names of Ahmed, Chirchir, Wadih,
6 Misoi and information on that on the side. On page 39 there
7 are entries concerning stones, including tanzanite and
8 diamonds, and page 40 -- we are now in 1996 -- concerning
9 stones and 44 also concerning stones and 45 through 50
10 concerning stones.
11 THE COURT: Thank, Mr. Schmidt.
12 MR. SCHMIDT: Thank you, your Honor.
13 THE COURT: Ladies and gentlemen, a while ago I
14 talked to you about the fact that all the evidence before you
15 had been legally received and no parties contended otherwise,
16 and what I had in mind was the physical exhibits and the
17 documents and things of that sort.
18 There is, I understand, a claim being made by defense
19 counsel with respect to the voluntariness of statements that
20 were made following the arrest, and that issue, that is,
21 whether or not those statements were voluntary or not, is an
22 issue which you will be called upon to decide and I did not
23 mean to include that when I said "no party contends
24 otherwise."
25 Other than that, all I have to say to you is, good
4870
1 evening and we're adjourned until tomorrow morning.
2 (Jury not present)
3 THE COURT: Here is the agenda which I propose for
4 the rest of afternoon and evening. We'll take a recess.
5 During recess I want to confer with the government with
6 respect to the outstanding discovery matters with respect to
7 the defendant El Hage. I then want to review the program for
8 the next several days so that there are no surprises.
9 I then want to deal with one of the issues with
10 respect to the issue of whether unanimity is required with
11 respect to aiding and abetting, and there are one or two other
12 matters. And I'm available if I have omitted anything. As I
13 say it's the discretion of the defendants whether they wish to
14 stay or waive their presence.
15 MR. WILFORD: Yes, your Honor, with respect to the
16 continued presentation of evidence by defendant El Hage, I
17 think that this entire line of presentation was intended to
18 establish that Mr. El Hage has business interests.
19 THE COURT: Yes.
20 MR. WILFORD: I think that that's been clearly
21 established to the jury.
22 THE COURT: Are we finished with that now?
23 MR. SCHMIDT: We are finished with the book.
24 THE COURT: We're finished with the book. Are we
25 finished with the presentation on behalf of El Hage to the
4871
1 fact that a significant portion of his time was engaged in
2 commercial business activity? Is that finished?
3 MR. SCHMIDT: Let me tell your Honor there are two
4 areas I have left.
5 THE COURT: That is capable being answered yes or no.
6 MR. SCHMIDT: No.
7 THE COURT: Well, that may or may not be the case.
8 MR. SCHMIDT: If I can explain to your Honor what's
9 left in the relevant portion.
10 THE COURT: Yes.
11 MR. SCHMIDT: What's left as to the business
12 interests is in 1995 Mr. El Hage conducted a series of
13 business transactions and travels for the Bin Laden companies
14 going to ZTS company in Slovakia and numerous correspondence
15 that was all related to the business. It's a matter of
16 questioning in the Grand Jury concerning this.
17 We want to make it absolutely clear to the jury, and
18 in a terrorism case I think we have a right to show, that the
19 quantity --
20 THE COURT: But just as a matter of trial advocacy,
21 that requires ten minutes. That doesn't require that you lose
22 the attention of the jury by bogging the jury down in minutia
23 so that they lose the whole picture.
24 MR. SCHMIDT: Your Honor, they are going to have the
25 documents --
4872
1 THE COURT: How much time do you require for that
2 presentation?
3 MR. SCHMIDT: We have that presentation --
4 THE COURT: Tell me how much time you require for
5 that presentation.
6 MR. SCHMIDT: That presentation is probably 45
7 minutes. It's documents that are taken from different places.
8 Bringing it all together and showing them --
9 THE COURT: You put them all together and you
10 introduce them as one exhibit and you make a statement
11 summarizing the contents of those documents, and that will not
12 only cover that issue but it will cover that issue in a manner
13 in which the jury will understand and comprehend it.
14 MR. SCHMIDT: Your Honor, what it also does is
15 shortens substantially my --
16 THE COURT: How much time in total do you need?
17 MR. SCHMIDT: What I have, two areas, that one and
18 the Help Africa People NGO-related activity. Those are the
19 two areas that are left that are going to take time, I would
20 say between the -- we're talking about probably an hour and a
21 half presentation, maybe two hours, if there's a little
22 glitch.
23 THE COURT: Two hours. You have two hours, sir. You
24 can use it as you see fit.
25 MR. SCHMIDT: I appreciate it, your Honor.
4873
1 THE COURT: You have two hours.
2 MR. SCHMIDT: I just want to remind your Honor that
3 we have sat through the government's case which at times has
4 been tedious. We have stipulated to a tremendous amount of
5 material to do that.
6 THE COURT: I'm sure the government would enter into
7 a stipulation with respect to these documents and what they
8 reflect.
9 MR. SCHMIDT: I would prefer not to show all my
10 material at summation.
11 THE COURT: Two hours and use it as you wish. Two
12 hours.
13 All right. We'll take a five-minute recess and I
14 want to see the government with respect to the discovery.
15 MR. HERMAN: Judge, can we make it a prayer break
16 because Mr. Odeh wants to return for the argument.
17 (Recess)
18 (Pages 4874 through 4878 filed under seal)
19 (Continued on next page)
20
21
22
23
24
25
4879
1 (In open court)
2 THE COURT: Are the defendants coming back?
3 MR. COHN: Allegedly, yes, your Honor.
4 MR. WILFORD: Your Honor, Mr. Odeh wishes to be
5 present, as we informed Mr. Herman.
6 THE COURT: All right. I just want to deal with
7 logistics.
8 Tomorrow, Mr. Schmidt, you have two hours of
9 documents and you have possibly one live witness.
10 MR. SCHMIDT: We have possibly the Somalia expert.
11 There is also a handwriting expert concerning one, also a
12 series of three, I think, small notebooks that we weren't
13 going to read from that we wanted to put in evidence.
14 THE COURT: You are calling a handwriting expert?
15 MR. SCHMIDT: The government has notified me today
16 that they are not going to stipulate to his report and I'm
17 trying to reach him right now to see if he will be available
18 to come in tomorrow briefly.
19 THE COURT: And if there are any other live
20 witnesses, any other live witnesses as part of the El Hage
21 case, they are to be called tomorrow.
22 MR. SCHMIDT: The only issue that we have left is the
23 Somalia discovery issue.
24 THE COURT: Let me advise you that I have reviewed
25 that material ex parte and I am satisfied that the government
4880
1 has furnished to you all with respect to that issue to which
2 you are entitled.
3 MR. SCHMIDT: The only issue is that we're, the
4 government and I, seemed not to disagree on some very salient
5 facts of Somalia, that we just have to get the proper manner
6 to get them in because we're informed that one of the parties
7 won't -- would stipulate to this --
8 THE COURT: I thought that was a function of your
9 expert.
10 MR. SCHMIDT: Probably not.
11 MR. FITZGERALD: Your Honor, if I could hand up the
12 disclosure I got on the expert, just a copy of the books he
13 wrote. It's a very gory account of two events, one on the
14 Abdi House raid and one on the raid in October 3, 1993.
15 It seems this is a journalist who interviewed people
16 about what happened. It just seems classic hearsay. It's a
17 reporter coming in and telling you his version of a story from
18 others and what he saw at Mogadishu. I don't know what expert
19 testimony he could offer in a case where there is no crime
20 charged about killings in Somalia.
21 The issue is whether or not the people in al Qaeda
22 thought they were aiming to fight Americans in October '93.
23 It seems that we're going into an area where we're going to
24 get into the blood and gore from July of '93 to October of '93
25 and bodies being dragged in the streets.
4881
1 I don't know, but that's the chapters that I read and
2 that's why I wonder why -- he's not going to give us the facts
3 because he's really more of a reporter telling us his story.
4 MR. SCHMIDT: Your Honor, if I may --
5 THE COURT: No. No, I think I can cut through it. I
6 think I've already -- when we were having discovery disputes
7 with respect to Somalia, I think I suggested that a possible
8 shortcut and a way to overcome the difficulties in obtaining
9 witnesses from Somalia, which I'm satisfied were very real
10 problems that El Hage's counsel have, was to have an expert
11 who could testify to the political climate in Somalia.
12 Now, whether or not the author of this book
13 qualifies, I don't know. I don't know what constitutes an
14 expert. I'm trying to think of the name of the person who
15 wrote the "Inside" books who -- Mitchner. He spent two weeks
16 in the country.
17 MR. COHN: John Gunther, I think it was, your Honor.
18 "Inside Africa."
19 THE COURT: Was it Gunther?
20 MR. FITZGERALD: The chapters are entitled "Death
21 Came from the Sky."
22 THE COURT: I thought we went through that.
23 MR. SCHMIDT: We don't plan to introduce blood and
24 gore.
25 THE COURT: I understood that the purpose was to show
4882
1 that there came a fairly discrete point in time traceable to
2 the Abdi military raid, or whatever it is, where attitudes of
3 Somalians toward America changed and that events prior to that
4 time could not be regarded as anti-American, and that was the
5 function of it. I thought we did all this in the robing room,
6 and with some little hesitation in your voice, Mr. Schmidt,
7 you agreed. Isn't that correct?
8 MR. SCHMIDT: I agreed, and what I thought we agreed
9 upon is that we're going to give a fairly -- as much as
10 possible -- bloodless account of the Abdi House and the
11 effects on the Somalis. And I thought that's what was a
12 concern, that we don't go --
13 THE COURT: It's the first part of that sentence
14 which is giving Mr. Fitzgerald, understandably, some --
15 MR. SCHMIDT: We're not putting in photos. I'm going
16 to speak to our expert to basically talk about what the
17 reported casualties were, not describing the casualties, what
18 was the nature of the reported attack, not doing it in a
19 manner that is any more gruesome than the helicopter pilot
20 described the scene.
21 MR. FITZGERALD: Your Honor, we haven't challenged
22 Dr. Samatar's testimony about the change in attitudes after
23 July 1993. To say it's going to be bloodless, of course, what
24 is the relevance of what happened in July 1993? We've heard
25 it already and now we're opening the door where we have
4883
1 soldiers being dragged through streets.
2 THE COURT: I know that.
3 MR. FITZGERALD: If we're going down that road, we're
4 going to hear other counsel object. We've seen twice, your
5 Honor, Mr. Schmidt --
6 THE COURT: I would think that the description of the
7 raid on Abdi House should be a very brief description
8 sufficient to make the point, which I understand is the
9 defendant's contention -- that this was a major event in the
10 thinking of the Somalians and was the starting point of the
11 strong anti-American hostility.
12 MR. SCHMIDT: Your Honor, these things are never
13 quite as black and white about the starting point as a real
14 starting point, but, yes, it's going to be just sufficient to
15 describe the change in the Somali attitude in Mogadishu
16 towards the Americans as a result of that attack.
17 THE COURT: That's three or four questions and three
18 or four answers, and I have to tell you that if you attempt to
19 guild the lilly -- I don't know that that's the appropriate
20 way -- to spill the blood -- more accurate, but less
21 attractive -- then I'll cut you off.
22 MR. SCHMIDT: Your Honor, it might be better to have
23 a few more questions so I can narrow the focus than to ask an
24 open-ended question at the risk of expanding the focus. So I
25 understand what your Honor wants, and I plan to try to do it
4884
1 in a manner that will keep it narrow.
2 THE COURT: It's not very difficult to do. I will
3 not sustain objections to leading questions if they are
4 designed to further this object.
5 MR. SCHMIDT: Thank you.
6 MR. FITZGERALD: Your Honor, if I could note three
7 things.
8 THE COURT: Surely.
9 MR. FITZGERALD: The other day we had a picture put
10 in of what Mr. El Hage's office looked like. We had the legs
11 of a chair with a computer with a toy on top for a screen for
12 a few minutes. We tried to get a picture in of a child with a
13 dog. We had the state of mind conversation, showing
14 conversations about the legality of a phone tap.
15 I don't want to be put in a position where we're
16 going to get someone up here and we're going to go into -- I
17 don't understand the relevance if we're not disagreeing that
18 the Somalis were angry at the Americas and U.N. in July of
19 1993. We're talking about the state of mind of al Qaeda.
20 THE COURT: You know, I'm under the impression that
21 it was the anticipation through almost all of this trial that
22 this matter would be dealt with with a stipulation and that
23 cannot be accomplished not because of any lack of cooperation
24 on the part of any counsel. So Mr. Schmidt is scrambling
25 because the stipulation is not available to him and a witness
4885
1 he had anticipated is not available to him, through no fault
2 of his own, and so he's being given some leeway and I think
3 that's appropriate.
4 MR. FITZGERALD: But, your Honor, can we have a
5 proffer of the questions and answers before we go forward with
6 the witness tomorrow so we know what we're walking into?
7 THE COURT: You have more than that, because I think
8 I suggested what the substance of the questions should be, and
9 that is: Did there come a time when there was a significant
10 change in the attitude on the part of the Somalian people from
11 being a neutral or receptive country with respect to the U.S.
12 and U.N.? Yes. And did there come a time when that changed?
13 And was there any particular event which signaled that change?
14 And what was that event? And tell us generally what was the
15 nature of that event and what was the response to that event
16 and what happened thereafter.
17 Is that --
18 MR. SCHMIDT: Actually, I think, your Honor, to some
19 extent these questions are too broad. I'm going to actually
20 try to make it even narrower than what your Honor indicated.
21 MR. FITZGERALD: Can we ask if any other defendant
22 intends to examine this witness, including counsel for
23 Al-'Owhali, as to issues on what happened at the Abdi House?
24 MR. COHN: Depends what he says.
25 THE COURT: Assume that he answers the questions
4886
1 which I hypothetically posed in the way which we anticipate,
2 which is that there was a military operation involving the
3 United States troops and the raid on Abdi House, civilians
4 were killed and --
5 MR. COHN: Does he describe the military operation in
6 any detail, or he just says generically there was some
7 military operation?
8 THE COURT: I don't know.
9 MR. COHN: And therefore, I don't know either.
10 THE COURT: Well, but I'll tell you, when word one
11 comes out of the witness's mouth which you believe will
12 require you to go into further detail or cross-examination
13 with respect to that, you alert the court. You say, Judge,
14 this is a matter which we wish to discuss, and I will
15 understand and we will deal with it.
16 MR. COHN: So if I stand that time, you'll recognize
17 me?
18 THE COURT: I always recognize you -- sometimes to
19 say derogatory things, but I always recognize you.
20 MR. COHN: At least you say it to my face.
21 THE COURT: Again, I hope the record fully reflects
22 that Mr. Cohn and I go back many, many years and that my
23 facetious comments to him are indeed facetious.
24 MR. COHN: And again, I receive them in good humor,
25 to which I know they are offered.
4887
1 THE COURT: But you always worry, you know, as I
2 worried when somebody said, "We now know who rules the
3 courtroom," that somebody reading the cold record will not
4 understand.
5 All right. Now, I want to make it clear with respect
6 to all defendants who have not yet rested that when it is
7 their turn, if they have a witness, the witness is to be
8 called; that you cannot say, well, I suddenly discover that I
9 have a witness of any nature but I need some time, because the
10 answer is, if you have a witness, you call the witness.
11 MR. SCHMIDT: Your Honor, I have a problem and I just
12 found out right now.
13 THE COURT: Yes.
14 MR. SCHMIDT: The handwriting expert said he's
15 unavailable tomorrow. The government indicates that they want
16 to briefly question him. I assume that his testimony will be
17 a total of ten minutes and it's just another document I want
18 to put in. It's not a significant problem for his testimony,
19 it's just that the government informed me today that they want
20 to question him; they won't stipulate to the document and the
21 report.
22 MR. FITZGERALD: Your Honor, we received discovery of
23 the document days ago and we received discovery of the
24 expert's report, I think, yesterday or something like that.
25 So when we say we wanted the witness here, it's because we're
4888
1 getting documents that were never produced to us, despite the
2 reverse discovery order. They're going to be authenticated --
3 MR. SCHMIDT: These particular documents were
4 produced about two, three weeks ago.
5 MR. FITZGERALD: Despite your Honor's order in
6 November.
7 THE COURT: All right. All right. He's available
8 Monday morning?
9 MR. SCHMIDT: He didn't say so, but it seems to
10 indicate that -- I didn't speak to him. He just can't do it
11 tomorrow. It sounds like he will be available Monday morning.
12 THE COURT: Don't do "sounds like."
13 MR. SCHMIDT: I have no --
14 THE COURT: But I'm telling you.
15 MR. SCHMIDT: Fine, your Honor.
16 THE COURT: If you can't call him tomorrow and you
17 can't call him Monday, then you won't call him. Okay?
18 MR. SCHMIDT: That is not an unreasonable position.
19 Thank you.
20 THE COURT: There you go.
21 MR. COHN: The millennium.
22 THE COURT: The millennium.
23 All right, let's assume all this happens tomorrow or
24 Monday and so closing begins either Monday or Tuesday. And
25 the government wants two and a half hours? Two and a half
4889
1 days?
2 MR. FITZGERALD: The latter would be correct.
3 MR. WILFORD: Wishful thinking.
4 THE COURT: There are logistics involved. It's not
5 just my being intrusive.
6 Odeh, how long?
7 MR. RICCO: Judge, can we think about it for a
8 second?
9 (Pause)
10 MR. RICCO: Judge, I think that we probably would go
11 a full morning and a little bit of the afternoon, but no more
12 than that.
13 THE COURT: Okay. So that would be ten to?
14 MR. RICCO: Ten to one, and maybe a half hour after
15 lunch, but I doubt very seriously if we would be up that long.
16 THE COURT: Three and a half hours.
17 MR. RICCO: Yes. We don't have that much to talk
18 about.
19 THE COURT: Mr. Cohn?
20 MR. COHN: My guess is somewhere between two to three
21 hours. And it could be a little briefer than that, but it
22 certainly won't be longer than that.
23 THE COURT: No, give yourself some margin.
24 MR. COHN: I am, Judge.
25 THE COURT: Because I do hold people to the margin.
4890
1 I tell them, you know, be generous to yourself.
2 Okay. Mr. Ruhnke, who is going to make the closing?
3 MR. RUHNKE: I will, Judge. Probably, be generous
4 with myself, two or three hours.
5 THE COURT: So the jury could be charged --
6 MR. COHN: Wait, we haven't --
7 Talk about wishful thinking, Judge.
8 THE COURT: Didn't I?
9 MR. SCHMIDT: I was considering waiving, your Honor.
10 THE COURT: I should have asked. I asked in the
11 wrong sequence. I'm sorry. You go after the government,
12 right?
13 MR. SCHMIDT: That's correct. I was expecting
14 approximately three to four hours, unless the government
15 raises some issues that's going to require additional time.
16 THE COURT: Three to four hours.
17 So the jury would be charged the earliest would be a
18 week from Monday, and more likely a week from Tuesday. Am I
19 doing it wrong?
20 MR. FITZGERALD: Your Honor, you left out rebuttal.
21 THE COURT: Government rebuttal. Yes. I know that's
22 hard to say, but give yourself a generous estimate of time for
23 rebuttal. Will you be making the rebuttal?
24 MR. FITZGERALD: Yes, Judge.
25 Three, four hours.
4891
1 THE COURT: Three or four hours. All right, so the
2 jury would be charged probably Tuesday or Wednesday of the
3 week after next. What I was suggesting is that --
4 Does anybody wish the jury to be sequestered during
5 deliberations?
6 MR. COHN: Not presently, unless something happens.
7 But not presently.
8 THE COURT: Assuming that there is no event --
9 MR. FITZGERALD: I just wish to consult the United
10 States Attorney on that matter. If something changes, I will
11 let your Honor know tomorrow morning.
12 THE COURT: Unless we're told otherwise, we will not
13 sequester the jury. My only experience with sequestration was
14 a very negative one, and I think the regimen we have now is --
15 I don't want to jinks it -- seems to be satisfactory, and not
16 sit on Friday during summations. When the jury begins
17 deliberations, my inclination is to have them deliberate on
18 Friday also and one of the reasons why I want to alert them to
19 the fact that that would be the case.
20 Does anybody have any problem with their deliberating
21 on Friday?
22 MR. COHN: No.
23 MR. HERMAN: No, your Honor.
24 MR. COHN: Just one thought occurs, and I raise it
25 warily, and that is we might want to think about sequestration
4892
1 for two days if we're running into May 16th. I think it will
2 be impossible to avoid McVeigh on the day he is executed, and
3 I don't know how else --
4 THE COURT: It wasn't so easy today. If you pick up
5 the New York Times, it's page 1.
6 MR. COHN: I understand that, Judge. But that's
7 going to be the day of his execution and I just, you know, I
8 mean, I raise it as a consideration. It's not a motion, but I
9 am concerned about it.
10 MR. WILFORD: Your Honor, there is another factor in
11 the equation, and that is that Friday is a religious
12 observance day.
13 THE COURT: Which Friday?
14 MR. WILFORD: Fridays are a religious observance day
15 for the defendants. So we will be talking about meeting on
16 Fridays and there's a possibility with notice, etc., that that
17 may pose a logistical problem on that end. So something to be
18 considered. We're not sequestering the jury.
19 MR. FITZGERALD: My only comment in that regard, and
20 I'm not claiming to be an imam, but I know that we have sat on
21 Fridays in the past in cases where defendants wanted to have a
22 jamaat prayer and we can work around that.
23 THE COURT: I don't have to resolve it now. I would
24 want, I would think, Monday to alert the jury to the fact that
25 they should not be making plans for Fridays.
4893
1 Let me raise with you a matter concerning the charge
2 and the verdict form, and I think it's a very interesting
3 question. The government urges at page 3 of the government's
4 memo on the proposed jury instruction that the Court not
5 require unanimity with respect to aiding and abetting as well
6 as the substantive offense, and the government cites a number
7 of cases.
8 There is no Second Circuit case which holds that it
9 is sufficient if the jury unanimously agrees that the
10 defendant either committed the act or aided and abetted in its
11 commission. There is a very strong dictum, but it is a
12 dictum, and it's a very strong dictum because it's a dictum of
13 Judge Friendly, in which he says, although we need not decide
14 the case, we need not decide the issue, in his view, unanimity
15 would be satisfied if half the jurors believed that the
16 defendant committed the act and the other jurors believed he
17 aided and abetted the act. That is Judge Friendly's opinion,
18 U.S. v. Peterson, 768 F.2d 684, 686.
19 Judge Friendly says, on the other hand, although we
20 need not decide the point, as we subsequently discuss, I'm
21 paraphrasing, the jury should be regarded as unanimous if some
22 jurors believe that defendant one and the other jurors believe
23 that defendant two was the aider or abettor.
24 There are other Second Circuit cases which say you
25 need not specifically instruct the jury that as to aiding and
4894
1 abetting they have to be unanimous, but they say a general
2 requirement of unanimity would suffice, which I read to mean
3 that it would suffice because the assumption is that there is
4 a requirement of unanimity.
5 There are two circuits which specifically have
6 held -- I believe it's the Eighth and the Fourth -- that it is
7 adequate that the jury is split on that. In U.S. v. Elk,
8 Eighth Circuit, 820 F.2d 959, the court says, "Even if the
9 jury was divided on whether Eagle Elk committed the principal
10 crime or aided and abetted its commission, there could be no
11 question that the illegal act was murder... Thus the jurors
12 were in substantial agreement as to the nature of Eagle Elk's
13 guilty act, as required by the Sixth Amendment."
14 So that's the state of the law in non-death cases
15 with respect to aiding and abetting. The draft charge that
16 you have and the draft verdict form specifically tells the
17 jury that they have to be unanimous with respect to the theory
18 on which they find the defendant guilty. If you look at the
19 special verdict form with respect, for example, to the murder
20 counts, you will see that the form calls for them to say,
21 guilty, not guilty, himself killed, aided, abetted or caused,
22 and that they have to be unanimous.
23 When you get -- if you get -- to the death penalty
24 phase, then, if you look at 18 U.S.C. Section 3591(a)(2), it
25 provides the defendant will be death-eligible if he, and then
4895
1 it lists four categories, intentionally killed, intentionally
2 inflicted, intentionally participated in an act, intentionally
3 and specifically engaged in an act of violence.
4 Now, I confess that when I originally structured
5 this, I didn't sufficiently focus on the fact that the
6 language of 3591(a)(2) calls for the jury to resolve that
7 question, if the defendant "has determined beyond a reasonable
8 doubt at the hearing under Section 3593 finds," and then lists
9 the four. And that has caused me to re-think whether it's
10 better to have the jury do it twice, once on the guilt phase
11 and then again, as I think under the statute I must, at the
12 3591(a)(2) proceeding, or whether it is more advantageous to
13 follow Judge Friendly's dictum.
14 And that's the question that I am wrestling with and
15 which I might just leave with you. And tomorrow we'll go
16 through the whole verdict form.
17 MS. BABCOCK: Judge, I do have some comments to make
18 on that point that you just addressed.
19 THE COURT: Yes.
20 MS. BABCOCK: There's a Second Circuit case, U.S. v.
21 Shift.
22 THE COURT: Yes.
23 MS. BABCOCK: That is cited I believe by Peterson,
24 the Judge Friendly case.
25 THE COURT: Yes.
4896
1 MS. BABCOCK: Or else by Harris.
2 THE COURT: I have it in front of me.
3 MS. BABCOCK: Where the court says that, "In general,
4 the general instruction on unanimity is sufficient except in
5 cases where the complexity of the evidence or other factors
6 create a genuine danger of jury confusion."
7 THE COURT: Yes.
8 MS. BABCOCK: And I would point out that U.S. v.
9 Harris, the first case cited by the government, was an
10 eight-count drug distribution conspiracy.
11 THE COURT: Yes.
12 MS. BABCOCK: Peterson, the Judge Friendly case, was
13 a three-count indictment. Horton, the Fourth Circuit case,
14 was a run-in-the-mill murder, prison murder case, as was Eagle
15 Elk. So each of those cases, I think, are distinguishable on
16 their facts.
17 THE COURT: And indeed, I think Judge Friendly gets
18 into a philosophical analysis of why it is that, using a lot
19 of Latin that I don't understand, why it is that the acts
20 which would be the substantive events and the acts which would
21 be the aiding and abetting are so closely tied to each other
22 that leads to that conclusion.
23 MS. BABCOCK: Exactly. And it's the same analysis
24 that the Fourth Circuit does in Horton. In fact, in Horton,
25 at footnote 1, the Fourth Circuit says, "We need not decide in
4897
1 this case whether charging the jury under separate theories of
2 being a principal in aiding and abetting without a specific
3 unanimity instruction can ever abridge the defendant's Sixth
4 Amendment right to a unanimous verdict." So the Fourth
5 Circuit didn't go quite as far as what the government may
6 have --
7 THE COURT: It's somewhat analogous for the reasons
8 on which I declined to give a Pinkerton charge. If you did
9 not -- that in those cases where the courts have suggested
10 that you could treat jurors who found the defendant committed
11 the acts and the defendant aided and abetted, you can lump
12 those jurors and say, whether they are unanimous or not, are
13 cases in which it was a simple close nexus.
14 You're quite right, and that is very much a factor.
15 MS. BABCOCK: And the complexity issue that is cited
16 in Shift has been cited in numerous cases in other circuits as
17 well. Shift cited a Ninth Circuit case, Pezzane, and that's
18 also cited by the Fourth and Fifth Circuits. So that's still
19 good law. And even in Harris, which is the most recent Second
20 Circuit case cited by the government, which goes back from
21 Peterson and Shift, it's clear that the court can give this
22 instruction.
23 There's nothing, there's no case anywhere that says
24 it's improper to give the instruction, and in fact, the
25 available case law, again going back to Shift, indicates that
4898
1 in cases that are complex, that it is required that the Court
2 give such an instruction.
3 THE COURT: All right, we'll reserve it until
4 tomorrow. I think the government ought to consider it in the
5 light of the interplay.
6 Let me just ask to what extent, if any, does a jury
7 determine -- suppose the jury is told this and the jury
8 unanimously picks one, does that impact on the death penalty
9 phase?
10 MR. COHN: We're considering that.
11 THE COURT: You're considering that?
12 MR. COHN: Yes, it's occurred to me and I don't know
13 what the answer is yet, but we're thinking about it.
14 THE COURT: One would assume it would be -- well, one
15 shouldn't assume anything. But that's an interesting
16 question. Since I haven't resolved it in my own mind, I just
17 want to take the benefit of the legal scholarships sitting
18 before me and defer to them on it.
19 MR. FITZGERALD: Putting the scholarship aside, I
20 would like to speak for just a moment on not the issue of
21 whether we need to have a special verdict as to aiding and
22 abetting versus principal liability, I also think we need to
23 think about whether, even if that were so, they're exclusive.
24 A person could be part of an attack where they both
25 carry out the attack and help someone else. That's another
4899
1 concern we have. You could drive a bomb truck into a building
2 and help someone else drive a bomb truck into that same
3 building. You are committing the bombing, but you are aiding
4 and abetting someone else. And I think by having a form that
5 says you can only pick one, I don't see where that's true.
6 And I think what we could have is a jury could find facts
7 establishing guilt and be confused about the characterization
8 of guilt. A person can commit a crime and aid and abet a
9 colleague committing a crime.
10 THE COURT: I've never thought of it that way. I
11 think that if you commit the crime yourself, aiding and
12 abetting somebody else to commit it with you is sort of
13 subsumed within your doing it. I never thought of it, but,
14 you know, I think it's good that we all brood on it because
15 it's important and I think one should -- I think the
16 government should be sympathetic to the notion that we not
17 take any unnecessary risks with respect to the integrity of
18 the verdict and the process.
19 All right, we'll take that up tomorrow.
20 I received from counsel for Odeh a chart on Gaudin,
21 the cross-examination and direct, and I'm not exactly sure I
22 know what that relates to.
23 MR. RICCO: Judge, we just shared with you the chart
24 that we, the government and I, had gone over, and basically we
25 resolved the issue. I think we've agreed that the testimony
4900
1 should remain as is.
2 The Court's instructions would apply and we would
3 argue from the evidence based upon the Court's instruction,
4 and basically what we did with the chart was to show that the
5 testimony came out on direct and was responded to on cross and
6 it's set forth in the pages where those different events took
7 place.
8 THE COURT: So that there would be no striking of the
9 testimony but that the only reliance counsel would make of it
10 on cross was with respect to the non-identification of Odeh
11 and not showing the photograph, and the government would be
12 able to say that Gaudin said that Al-'Owhali said he was not
13 going to tell Gaudin, is that it?
14 MR. RICCO: Judge, no, everything remains as is. The
15 record will remain as is.
16 THE COURT: Yes.
17 MR. RICCO: Meaning that the testimony --
18 THE COURT: The record now is that the jury may not
19 consider with respect to anyone other than Al-'Owhali what
20 Al-'Owhali said to Gaudin.
21 MR. RICCO: That's correct.
22 THE COURT: Okay. And that's acceptable to the
23 government?
24 MR. KARAS: Yes, Judge.
25 THE COURT: Does anyone object to that?
4901
1 MR. COHN: No.
2 THE COURT: Very well. Is there anything else that
3 anybody --
4 MR. WILFORD: Yes. Your Honor, as you remember, at
5 the last Rule 29 conference we had, at the end of the
6 conference I indicated there were several overt acts that we
7 were seeking to have dismissed. The government in its
8 revision of the indictment provided a revised indictment which
9 addressed several of those particular overt acts.
10 However, in the new indictment what was formerly
11 Overt Act Y, which is now Overt Act H, and what was formerly
12 Overt Act ZZ, which is in the government's new indictment
13 Overt Act L, I still believe should be dismissed, your Honor,
14 as well as --
15 THE COURT: I think Mr. Dratel submitted a letter
16 with some objections to the --
17 MR. DRATEL: Yes, your Honor.
18 THE COURT: -- redacted indictment. Is that one of
19 them?
20 MR. DRATEL: No, your Honor.
21 MR. WILFORD: I'm sorry, your Honor. I have one
22 other point. That is, with respect to --
23 THE COURT: Wait a minute. I don't want to lose that
24 and I don't want to get buried in the --
25 MR. DRATEL: You want another copy, your Honor?
4902
1 THE COURT: Yes, please.
2 Have you had an opportunity to consider this?
3 MR. FITZGERALD: I don't know if I have gotten
4 Mr. Dratel's letter, or if we have, the government has gotten
5 it, it hasn't made its way through.
6 Could I suggest this? Maybe we could get back to
7 your Honor on both proposals first thing in the morning.
8 THE COURT: Very well. Sure.
9 MR. WILFORD: I want I want to state that the
10 government has also failed to establish the objective of the
11 conspiracy in Count one, which is ii at page 10, paragraph 11.
12 THE COURT: Of the indictment?
13 MR. WILFORD: Yes.
14 THE COURT: And that says?
15 MR. WILFORD: Your Honor, that specifically says
16 that --
17 THE COURT: What page?
18 MR. WILFORD: Page 10. I'm working with version two,
19 your Honor.
20 THE COURT: Okay. What does it say?
21 MR. WILFORD: It's paragraph 11.
22 THE COURT: Paragraph 11, yes.
23 MR. WILFORD: Subdivision ii: Two United States
24 nationals employed by the United States military who were
25 serving in the official capacity of Somalia on the Saudi
4903
1 Arabian peninsula.
2 THE COURT: Why is that not so, soldiers who were
3 killed in Somalia?
4 MR. WILFORD: Soldiers who were skilled in Somalia,
5 but there is no evidence linking those particular deaths to
6 anybody at this table or to al Qaeda. There's no evidence of
7 that whatsoever. The evidence that's before the jury doesn't
8 indicate any responsibility from the witnesses who testified
9 about those 18 dead servicemen.
10 The fact that they are dead doesn't automatically
11 link them to al Qaeda or to the conspiracy that is charged in
12 Count one, and this is also, your Honor, what is now Count H,
13 is the specific death -- I'm sorry, not Count H, Overt Act H
14 is the specific death of the 18 servicemen.
15 THE COURT: We're dealing in Count One, right?
16 MR. WILFORD: Yes.
17 THE COURT: And you're saying that the government has
18 not proven that an object of the Count One conspiracy was to
19 kill United States nationals?
20 MR. WILFORD: In Somalia and Saudi Arabia. I think
21 this has to deal with Saudi Arabia first. There's no evidence
22 of that on the record.
23 THE COURT: It says and the Saudi Arabian Peninsula.
24 MR. WILFORD: Okay. Now, there is still no real
25 evidence of that, your Honor, and there is no evidence in
4904
1 terms of the deaths in Somalia that there is any causal
2 connection between the fact that al Qaeda was in Somalia and
3 the death of these 18 servicemen. There's none whatsoever.
4 We have dead servicemen, yes, unfortunately, but there is no
5 connection by any testimony in this case to the conspiracy.
6 We have the fact that they're dead. We don't know who killed
7 them. The government has proffered to --
8 THE COURT: Why isn't Two really subsumed in One,
9 "anywhere in the world"?
10 MR. WILFORD: I'll leave that to the government to
11 argue, Judge.
12 THE COURT: Somebody want to respond?
13 MR. COHN: That's the problem with One. Any dead
14 American anywhere gets into that conspiracy. That's really
15 the major problem with One.
16 THE COURT: Well, but that may be a function of the
17 nature of the fatwah which Bin Laden issued.
18 MR. FITZGERALD: Your Honor, first of all, we
19 understand that U.S. nationals everywhere includes the other
20 two objects that follow it, both Two, "killing the U.S.
21 nationals employed by the military," and Three, "U.S.
22 nationals employed at the embassies." But also, one, we're
23 allowed to specify in the objectives what it is that the group
24 was trying to do, and secondly, to the extent that some
25 defendants may argue that perhaps they were part of the
4905
1 conspiracy as it was framed in August of 1996 by Bin Laden and
2 his declaration of Jihad to kill American soldiers and then
3 would claim that they were not part of the conspiracy as it
4 was publicly announced in February of 1998, the point is that,
5 either way, they're violating the same statute. They are just
6 different objectives violating the same law.
7 THE COURT: The verdict we'll go over tomorrow, but
8 it does call upon the jury to indicate which of the objectives
9 of the conspiracies have been found, and it tells them they
10 need only find one, but it calls upon them to respond to as
11 many objectives as are stated for the conspiracy. And that's
12 not exactly happy, but I haven't thought of a better way to
13 deal with it.
14 You need only find one, but we would really like it
15 if you would answer as to all of them, and have the nightmare
16 of the jury saying, but we're hung because we can only agree
17 unanimously on two out of the three objectives. But I think
18 it is somewhat helpful because of the overlap of the
19 objectives to have the jury be as specific as possible with
20 respect to the finding of the objectives.
21 THE COURT: Do you have a further response to
22 Mr. Wilford's point?
23 MR. FITZGERALD: One moment.
24 (Pause)
25 MR. DRATEL: This was on that point, your Honor, so
4906
1 maybe they want to respond to everything all at once.
2 THE COURT: I thought all the defendants had to be
3 returned.
4 MR. WILFORD: I'm sorry, your Honor. I neglected to
5 inform the Court, there was a change of heart on the part of
6 Mr. Odeh. I apologize to the Court for not informing you.
7 Mr. Odeh changed his mind. I can't speak for anybody else,
8 but that's the information that I have received.
9 THE COURT: No, the only thing -- no, I just thought
10 that the marshals told us yesterday that they either all stay
11 or all go back, but I take it that didn't happen today.
12 That's fine.
13 MR. WILFORD: I think they're all still in the
14 building. Mr. al-'Owhali is only present in the courtroom.
15 THE COURT: I see.
16 MR. FITZGERALD: Your Honor, if we could, our
17 response to the overt act, our thinking is if we were trying
18 to collapse paragraph 11 into something shorter, Three and Two
19 would fold into killing U.S. nationals but then not "U.S.
20 nationals anywhere in the world," the objective of killing
21 U.S. nationals would be one, but not one where the defense
22 would argue if we're killing U.S. military anywhere in the
23 world, we didn't join that conspiracy.
24 THE COURT: Let's again leave that to tomorrow. And
25 focus, if you would, please, on the concern I have expressed
4907
1 about telling the jury they need only find one, which is clear
2 law, but also asking the jury to render a verdict with respect
3 to all of the elements.
4 MR. FITZGERALD: There's just two other matters, one
5 very brief. In the charge conference yesterday, I believe
6 your Honor struck the language regarding the fact that the
7 jury should not consider the plea of a cooperating witness.
8 There was some language saying "in light of benefits afforded
9 by the government."
10 THE COURT: I think we were going to collapse two
11 paragraphs.
12 MR. FITZGERALD: That was a different section about
13 the plea, not about accomplice witnesses and cooperating
14 witnesses.
15 THE COURT: Oh.
16 MR. FITZGERALD: The only point I have is I think
17 when your Honor gave that charge after Kherchtou's testimony,
18 you gave the old instruction.
19 THE COURT: I gave the old version.
20 MR. FITZGERALD: Which is not a big deal, other than
21 if we could strike that from the record so that if there is a
22 read-back, that isn't read back. But more importantly, I
23 don't want any defense counsel to argue to the jury in
24 summation referring to your Honor's instruction about why he
25 may have pled guilty.
4908
1 You said that you shouldn't consider someone's plea
2 in light of benefits afforded to the government.
3 THE COURT: And we changed that in a later draft to
4 take out the "in light of the benefits."
5 MR. FITZGERALD: Yes. If counsel doesn't refer to
6 that in summation, we can just leave it as is.
7 THE COURT: Any objection to counsel not referring to
8 that in summation? Silence is acquiescence.
9 MR. COHN: I don't understand what we are not
10 referring to, to your charge or the argument that he gets
11 benefits and therefore we can't believe him.
12 THE COURT: No. No. No.
13 MR. COHN: I'm sorry, it's late and I'm old and slow.
14 THE COURT: No. No. We agree or I determine that
15 the language in the charge with respect to pleas would not
16 contain language about in light of the benefits that the
17 pleading defendant would receive.
18 MR. COHN: Yes, that's what you said in the charge.
19 What I'm asking --
20 THE COURT: And when I gave, at your request,
21 someone's request -- yes, your request -- I gave the
22 admonition to the jury about the limited purpose for which
23 evidence of a plea could be used, I inadvertently read the
24 earlier version, and Mr. Fitzgerald is concerned that in
25 summation counsel may use the language that I used earlier
4909
1 this afternoon rather than the language which is in fact in
2 the instruction.
3 MR. COHN: Okay.
4 THE COURT: They won't.
5 MR. FITZGERALD: And there's one last matter I think
6 we probably need to take up in the robing room with Mr. Ruhnke
7 present, if your Honor had a moment.
8 MR. DRATEL: Your Honor, there are two things. One
9 is that we join in Mr. Wilford's request with respect to ii of
10 Count One, paragraph 11, in that there really has not been any
11 evidence in terms of the Saudi Arabian Peninsula, and in
12 addition, we withdraw our request for the recantation charge.
13 THE COURT: All right. I'll see Mr. Ruhnke and the
14 reporter and the government, and I wish you all a good
15 evening.
16 (Continued on next page)
17 (Pages 4910 through 4912 filed under seal)
18 (Adjourned to 10:00 a.m. on April 25, 2001)
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