2 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 38 of the trial, May 2, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
                                                                5391
   1   UNITED STATES DISTRICT COURT
       SOUTHERN DISTRICT OF NEW YORK
   2   ------------------------------x
   3   UNITED STATES OF AMERICA
   4              v.                           S(7) 98 Cr. 1023
   5   USAMA BIN LADEN, et al.,
   6                  Defendants.
   7   ------------------------------x
   8
                                               New York, N.Y.
   9                                           May 2, 2001
                                               10:00 a.m.
  10
  11
  12   Before:
  13                       HON. LEONARD B. SAND,
  14                                           District Judge
  15
  16
  17
  18
  19
  20
  21
  22
  23
  24
  25
                                                                5392
   1                            APPEARANCES
   2   MARY JO WHITE
            United States Attorney for the
   3        Southern District of New York
       BY:  PATRICK FITZGERALD
   4        KENNETH KARAS
            PAUL BUTLER
   5        Assistant United States Attorneys
   6
       ANTHONY L. RICCO
   7   EDWARD D. WILFORD
       CARL J. HERMAN
   8   SANDRA A. BABCOCK
            Attorneys for defendant Mohamed Sadeek Odeh
   9
       FREDRICK H. COHN
  10   DAVID P. BAUGH
       LAURA GASIOROWSKI
  11        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
  12   DAVID STERN
       DAVID RUHNKE
  13        Attorneys for defendant Khalfan Khamis Mohamed
  14
       SAM A. SCHMIDT
  15   JOSHUA DRATEL
       KRISTIAN K. LARSEN
  16        Attorneys for defendant Wadih El Hage
  17
  18
  19
  20
  21
  22
  23
  24
  25
                                                                5393
   1            (Trial resumed, jury not present)
   2            THE COURT:  Everyone here?  Any reason not to bring
   3   in the jury?  Please tell them to bring the jury in.
   4            MR. RICCO:  Your Honor, at the end of all the
   5   evidence in the case the defense neglected to formally make
   6   the Rule 29 motions and we would like to do it at the end of
   7   the day, just so the record is complete.
   8            MR. DRATEL:  Yes, we join that.
   9            (Jury present)
  10            THE COURT:  Good morning.  Mr. Karas, as soon as the
  11   jury is seated you may begin.
  12            MR. KARAS:  Thank you, your Honor.  Good morning
  13   again.
  14            What I would like to do this morning is take up three
  15   items from yesterday that I would like to clarify.  The first,
  16   we showed you a letter that made clear that Ibrahim Eidarous
  17   had been put in charge of the London cell, the EIJ group.  We
  18   had showed you 1520 and that was not the document to show you.
  19   The document was 1516-T.  This is one of the documents that
  20   was found in the trunk of Eidarous's car.
  21            What you see there at the top, dated June 28, 1998,
  22   you may remember that in October of 1997, Eidarous had written
  23   Zawahiri, the leader of the EIJ, please tell the brothers in
  24   London who is in charge.  In this letter Eidarous complies,
  25   and he says, dear brothers, number 1, brother Ibrahim is the
                                                                5394
   1   one in charge in London, and the brothers must listen and obey
   2   him.  Any brother who doesn't act accordingly will be subject
   3   to having the group take a stand against him as it happened to
   4   other brothers before, which warning will be the last one
   5   concerning this issue.
   6            So you see that Zawahiri makes clear that Eidarous is
   7   in charge, and Eidarous is the one who will be involved in
   8   helping to disseminate the claims for responsibility for the
   9   bombings from London.
  10            The second thing you see there is that there is an
  11   element of discipline within EIJ, and you saw it with respect
  12   to Al Qaeda and their concerns regarding Abu Fadhl al Makkee
  13   and their concern that he was cooperating with the Americans.
  14   So that's the first item from yesterday.
  15            The second item from yesterday concerned two
  16   exhibits, Government's Exhibit 310-74A, and this is one of the
  17   documents that is found on the disks found in El Hage's house
  18   during the search in August of 1997 that Agent Coleman
  19   testified about.  We went through this document yesterday, and
  20   one of the things that I had mentioned, I read you a quote
  21   regarding Somalia was not being limited to merely the training
  22   of groups who want to fight and the fight is over and the
  23   quote went on, we are not a relief organization.  That quote I
  24   attributed to Government's Exhibit 710-96T.  710-96T are the
  25   tape letters that were found in Odeh's house.  That
                                                                5395
   1   attribution was incorrect, ladies and gentlemen.  That quote
   2   that I read you was from the disk document 310-74AT.  Just so
   3   we are clear, the quote that I read, our goal in Somalia was
   4   not limited to merely the training of groups who want to fight
   5   and the cause is over, however, our goals are bigger than
   6   that.  We are not a relief organization which comes every now
   7   and then to assist the victims and leave.  That quote is from
   8   310-74AT, the document that is taken from run one of the disks
   9   found in El Hage's house, not the tape letter from the
  10   defendant Odeh.
  11            The third matter was the one we ended on yesterday,
  12   which was the Khalid Saleh Muslim Bin Rasheed passport that
  13   the defendant Mohamed Al-'Owhali had.
  14            MR. COHN:  Excuse me, Mr. Karas.  I am sorry.  We are
  15   having difficulty hearing you.
  16            MR. KARAS:  OK.  System on?
  17            MR. COHN:  Doesn't seem to be.
  18            MR. KARAS:  I will try to speak up.
  19            Yesterday you I told you if you look in the passport
  20   you will see the entries for Al-'Owhali's arrival in Pakistan
  21   on the 18th of May 1998, and it is in there and displayed on
  22   your screen.
  23            The other thing that I would remind you, during his
  24   statement to Agent Gaudin the defendant Al-'Owhali himself
  25   told Agent Gaudin that he did go back from Yemen to Pakistan,
                                                                5396
   1   and it was after he got back to Pakistan and then Afghanistan
   2   that he first learned of his mission to attack American
   3   targets.  As Judge Sand instructed you yesterday and during
   4   the testimony of the statements given by these defendants, and
   5   as the judge will instruct you at the end of our closing
   6   statements, the statements given by the defendants to the
   7   agents are only evidence against those defendants.  So when
   8   Mohamed Al-'Owhali said to Agent Gaudin that he went to
   9   Pakistan a few months before the bombing, that statement is
  10   admissible only against defendant Mohamed Al-'Owhali.  But
  11   what you see here is evidence in the passport that also shows
  12   that he went to Pakistan on May 18, 1998, just a few months
  13   before the bombing.
  14            So that is where we left off yesterday, May 18, 1998,
  15   about two and a half months before the day of the bombings the
  16   next date we get to is May 28, 1998, and that is the day that
  17   Usama Bin Laden gives another interview, and this one is to
  18   ABC News.  By way of stipulation you know that the interview
  19   was given on May 28, 1998, in Afghanistan, and you may
  20   remember you saw the video and you can see the interview take
  21   place in one of the caves, if you would, in Afghanistan where
  22   Bin Laden was working, and you saw some of the people around
  23   him that had some of the machine guns, and you actually
  24   witnessed the interview.
  25            You also may remember we talked yesterday about that
                                                                5397
   1   person Tarik Hamdi to whom the battery pack was sent for the
   2   satellite phone, and he was part of the ABC News team that
   3   went to Pakistan and he sent the fax saying we're here and
   4   everybody is fine.  So all that is going on in May 1998.
   5            The transcript of the interview is Government's
   6   Exhibit 81T, and if we turn to the bottom of the second page
   7   of 81T, Bin Laden repeats the fatwah that he gave in February,
   8   and he says to the person from ABC News, we do not
   9   differentiate between those dressed in military uniforms and
  10   civilians.  They are all targets in this fatwah, especially
  11   since American officials have stated after the Khobar bombing
  12   that there was a lack of information and all American
  13   civilians were asked to gather information on Muslims and
  14   observant Muslim youth and to convey to the security section
  15   in the embassy, the fatwah is general and includes all that
  16   share or take part in killing of Muslims, assaulting holy
  17   places or those who help the Jews occupy Muslim land.
  18            Ladies and gentlemen, you know that by May 28, 1998,
  19   that the operation in East Africa is under full steam, and Bin
  20   Laden, as we now can figure out after the fact, is saying to
  21   the American public, everybody is a target, and in particular
  22   your embassies are targets because we know that the Americans
  23   have invited their civilians to provide information about us
  24   to the security section of their embassies.
  25            If we go to the fifth page of the transcript, at the
                                                                5398
   1   very top once again Bin Laden is blunt.  We predict a black
   2   day for America and the end of the United States as united
   3   states, and will be separate states, and they will retreat
   4   from our land and collect the bodies of its sons back to
   5   America, Allah willing.
   6            Ladies and gentlemen, as we go through these
   7   statements that Bin Laden gives, I ask you to bear in mind
   8   that on August 250, 1998, 13 days after the embassies were
   9   bombed, Agent Miranda told you that he interviewed the
  10   defendant Wadih El Hage, and Wadih El Hage told Agent Miranda
  11   that Bin Laden would not have carried out the bombings of
  12   Nairobi because he was a humanitarian, and that's what the
  13   humanitarians said.
  14            At the bottom of the page Bin Laden goes on to say,
  15   this does not make a difference -- and he is referring to the
  16   Saudi government wanting the American military in the gulf --
  17   since American oppression, boastfulness and greed still
  18   exists.  They came by the approval of government.  It does not
  19   make a difference if the government wants you to stay or leave
  20   because you will not leave by their words.  You will leave
  21   when the youth send you the wooden boxes and the coffins, and
  22   you will carry in it the corpses of the American troops and
  23   the American civilians.  This is when you will leave.  The
  24   decision-makers beyond taking you out are the Muslim masses in
  25   the Muslim world who are defending the Muslim lands, Allah
                                                                5399
   1   willing, we will win.  That is what the humanitarian warns the
   2   United States.
   3            On the very next page, page 6, Bin Laden next talks
   4   about the situation in Somalia, and what he says at the very
   5   top, after Allah honored us with victory in Afghanistan and
   6   justice prevailed and the killings of those who slaughtered
   7   millions of Muslims in the Muslim republics, it cleared from
   8   the Muslim minds the myth of superpowers.  The youth ceased
   9   from seeing America as a superpower.  After leaving
  10   Afghanistan they headed for Somalia and prepared for a long
  11   battle, thinking that the Americans are like the Russians.
  12   But they were surprised when the Americans entered with 30,000
  13   troops and collected more troops from the world, 5,000 from
  14   Pakistan, 5,000 from India, 5,000 from Bangladesh, and also
  15   Egypt, Senegal, and others like Saudi.  The youth were
  16   surprised at the low morale of the American soldiers and
  17   realized more than before that the American soldier is a paper
  18   tiger.  And after a few blows he ran in defeat, and America
  19   forgot all the hoopla and media propaganda after leaving the
  20   Gulf War and destroying infrastructure, destroying baby
  21   formula factories, all civilian factories bridges and damns
  22   that help planting food.  America presented itself as the
  23   world leader and the leader of the new world order, and after
  24   a few blows they forgot about this title and left dragging
  25   their corpses and their shameful defeat and stopped using such
                                                                5400
   1   titles.  And the politicians in America learn that this is
   2   larger than them and that they were not fit for it.  When this
   3   took place I was in Sudan and this great defeat against
   4   America pleased me very much, the way it pleased all Muslims.
   5   Allah willing, the next victory will be in Hijjaz and Najd.
   6   Saudi Arabia will make the Americans forget the horrors of the
   7   Vietnam and Beirut.  There you see Bin Laden talking about the
   8   work of these people, the Mujahideen who you know from the
   9   other evidence are connected to Al Qaeda and Bin Laden's
  10   group, saying that they were in Somalia.  But again, he is not
  11   saying they were the ones who fired the rockets and shot the
  12   guns, but he is accepting responsibility on behalf of the
  13   Mujahideen of the youth who were there participating in
  14   Somalia.
  15            The other thing he is once again saying is that the
  16   lesson he learned from Somalia, he believes, is that the
  17   Americans will leave if they are attacked.  So to him that
  18   justifies the attacks against America, because remember, the
  19   thing he wants more than anything else is to see the Americans
  20   leave Saudi Arabia, and he believes the Americans will leave
  21   if they are attacked.  So he is predicting a dark day.  He is
  22   predicting he will send people home in body bags and in
  23   coffins.  As you know, ladies and gentlemen, his implementers
  24   are carrying out that plan as he is giving this interview.
  25            Down on the page, Bin Laden makes explicit his
                                                                5401
   1   definition of who is innocent and who is not, and he explains
   2   why it is that even American civilians are not innocent.  He
   3   is asked explicitly, many Americans believe that fighting army
   4   to army like what happened in Afghanistan is heroic for either
   5   army, but setting off bombs, killing civilians and incidents
   6   like the World Trade Center is terrorism.  Bin Laden responds
   7   by saying, they don't according to the standards he is making.
   8   After our victory in Afghanistan and defeating the Russians,
   9   the world media lead by the American media started a campaign
  10   against us that is still going on until today.  Despite the
  11   fact that the Russians left in 1989, almost 10 years ago, they
  12   have been carrying out this campaign accusing us of being
  13   terrorist.  Without any action being taken by the Mujahideen
  14   against the real terrorists, the Americans, this on the one
  15   hand.  On the other hand, American policy does not admit to
  16   differentiate between civilians, military, child, human or
  17   animal.
  18            On the next page, Bin Laden continues.  The crusaders
  19   continued their slaughter of our mothers and children, and
  20   America every time takes a decision to support them and
  21   prevent weapons from reaching the Muslims, leaving the Serbian
  22   butcher to slaughter Muslims.  And then Bin Laden says, you do
  23   not have a religion that prevents you from carrying out these
  24   actions and therefore you do not have a right to object to
  25   like treatment.  Every action solicits a reaction.  It is a
                                                                5402
   1   punishment that is equally inflicted.  At the same time, our
   2   primary target are military and those in its employment.  Our
   3   religion forbids us to kill innocent children, women who are
   4   not combatants.  However, women soldiers who place themselves
   5   in the battle trenches receive the same treatment as fighting
   6   men.
   7            Remember what imam Siraj Wahhaj said, no religion
   8   kills innocent people.  The implicit assumption is that that
   9   includes civilians and women and children.  But Bin Laden says
  10   that he thinks there is a double standard and he thinks that
  11   because the American people are responsible for what he
  12   considers to be a tax on civilians, and he gives the example,
  13   among others, of Hiroshima and Nagasaki, that all American
  14   civilians are not innocent.  They are in his eyes combatants.
  15   They are in his eyes legitimate targets.
  16            Again you know that while he is giving this
  17   statement, the people in his organization, the people who are
  18   part of the conspiracy charged in Count 1 are getting the bomb
  19   factories ready, they are getting the bomb trucks, and they
  20   are going to carry out the attack on people that they don't
  21   consider to be innocent, people they consider to be legitimate
  22   targets because of their nationality.
  23            Bin Laden says down at the bottom, the very bottom of
  24   page 7, the presence of Americans in the land of al Haramain,
  25   Saudi Arabia, supports the Jews in the prophet's Holy Land,
                                                                5403
   1   peace be upon him, and gives him a safe back.  The American
   2   government at the time there are millions of Americans living
   3   on the street and living below the standard of living and in
   4   stricken poverty, we find the American government turning
   5   towards helping Israel and occupying our land and building
   6   settlements in the prophet's Holy Land.  The American
   7   government is throwing away the lives of Americans in the land
   8   of al Haramain and other places for the interests of the Jews.
   9   The Jews are a people that Allah cited in his holy book the
  10   Koran, a people who didn't abstain from killing God's
  11   prophets.
  12            Skipping down, he says they believe that all humans
  13   are animals to be exploited by them and found that Americans
  14   are the best created beings for that use.  The American
  15   government is driving America to destruction and rational
  16   people have no doubt that America will not be a superpower at
  17   the turn of the next century.
  18            So we it will the American people, and we tell the
  19   mothers of soldiers, and American mothers in general, if they
  20   value their lives and those of their children to find a
  21   nationalistic government that would look after their interests
  22   and not the interests of the Jews.  The continuation of the
  23   repression will bring the fighting to America, like Ramzi
  24   Yousef and others.  This is my message to the American people
  25   to look for a serious government that looks out for their
                                                                5404
   1   interests and does not attack others, their lands or their
   2   money.
   3            So now Bin Laden looks into the camera and he says
   4   notwithstanding the fact that the religion doesn't allow the
   5   killing of women and children, says to the mothers of America.
   6   Before he said if you're concerned about your sons, when he
   7   was interviewed by CNN.  Now he says if you are concerned
   8   about your own life in addition to the life of your children,
   9   then you will change your government.  He says to the American
  10   mothers, you are now targets of this fatwah, you are not
  11   innocent.  In Bin Laden's view he says that American mothers
  12   can be attacked.  In the very next answer, Bin Laden says the
  13   reaction is increasing fast and I am sure of our victory with
  14   Allah's help against Americans and the Jews.  We see this then
  15   in the strength of the reaction, that every day the Americans
  16   delay their departure, for every day they delay they will
  17   receive a new corpse from Muslim countries to America.
  18            And then on page 9 Bin Laden once again brings up the
  19   subject of Omar Abdel Rahman, and what he says there, we place
  20   total responsibility on the American government for any attack
  21   against Muslims and its supportive regimes in our countries
  22   against the best interests of the people.  We also hold them
  23   responsible for its attacks on Islamic symbols, sheik Omar
  24   Abdel Rahman, who is considered one of the most prominent
  25   Islamic scholars, who Allah gave the courage to speak the
                                                                5405
   1   truth.
   2            You remember what the witness Jamal al-Fadl told you,
   3   that later way back when the group learned that Omar Abdel
   4   Rahman had been arrested, there were people who wanted to
   5   retaliate and some who left because they didn't think the
   6   retaliation came soon enough.  Here you have Bin Laden
   7   confirming what al-Fadl told you.  They were very angry and
   8   they would take their time to retaliate when they want.
   9            Another piece of evidence that you saw during this
  10   trial that confirms what Jamal al-Fadl told you, and also what
  11   Bin Laden is saying there, is Government's Exhibit 367A.  This
  12   is a document that was found during the search of Ali
  13   Mohamed's house in California.  Again, Ali Mohamed is the
  14   person who Kherchtou knew as Ali Mohamed al Amriki, the person
  15   who conducted the surveillance training, the person who came
  16   to Nairobi in late 1993 with Anas al Liby and their photo
  17   equipment and the cameras and the computers.  What you see
  18   here is, this is a letter, and you see it is a reference to
  19   the case United States v. Omar Abdel Rahman and it is a
  20   discussion of some information that is being provided.  Down
  21   at the bottom, including a list of unindicted
  22   coconspirators -- and the judge gave you an instruction what
  23   that means -- is handwritten Haydara.  Haydara is one of the
  24   nicknames for Ali Mohamed.  What he says there, to supervisor,
  25   hi, please deliver the five pages to the supervisor by hand.
                                                                5406
   1   So Ali Mohamed, one of the people who has worked with some of
   2   the people in this conspiracy -- and Haydara is one of the
   3   aliases for Ali Mohamed -- he is monitoring what is going on
   4   in this case with Omar Abdel Rahman, the same witness that
   5   Jamal al-Fadl told you he was concerned about and angry about
   6   and the same person Bin Laden just mentioned in the ABC
   7   interview.  Ali Mohamed, who is there to do the surveillance
   8   in 1983, he is sending a document connected to the Omar Abdel
   9   Rahman case to the supervisor and he wants it hand-delivered
  10   from Haydara in California.
  11            One other thing to bear in mind about the ABC
  12   interview is that Mohamed Al-'Owhali told Agent Gaudin that he
  13   was there when Bin Laden gave his interview, and he was there
  14   when Bin Laden made these statements that we just went through
  15   about attacking American targets and attacking in particular
  16   American civilians.
  17            The next event is May 29, the very next day, and this
  18   is a document that was read to you during the trial.  It is
  19   Government's Exhibit 1610-T.  This is a document that is found
  20   in the residence of Khalid al Fawwaz, one of the three people
  21   in London at 94 Dewsbury Road, and this is the document that
  22   was titled the endorsement of the nuclear bomb of Islam, and
  23   it is a statement by Bin Laden where he says, among other
  24   things, it is the duty of the Muslims to prepare as much force
  25   possible to terrorize the enemies of God.  So the day after
                                                                5407
   1   Bin Laden predicts a dark day for America and American
   2   civilians, Bin Laden endorses a nuclear bomb that he says is
   3   needed to terrorize the enemies of God.
   4            Next we turn to June 1998, and one of the things that
   5   happens during the summer of 1998 is what Mohamed Al-'Owhali
   6   told Agent Gaudin, that at some point during the summer he
   7   gets instructions to go to Nairobi and he is told that the
   8   target will be an American target.  We will talk a little bit
   9   more about some of the things that Al-'Owhali did before he
  10   went to Nairobi.
  11            On June 9 the defendant Khalfan Khamis Mohamed
  12   purchases the white Suzuki Samurai with the person depicted in
  13   Government's Exhibit 124, Fahad Mohamed Ally Masalam.  We will
  14   call him Fahad Mohamed to make it simple.  Government's
  15   Exhibit 60 is a stipulation that related to the contract, some
  16   of the records found from the Department of Motor Vehicles.
  17   You will see Government's Exhibit 1410 is a picture of the
  18   white Suzuki that Khalfan Khamis Mohamed purchased.
  19   Government's Exhibit 1420 is the contract for the sale.  You
  20   see at the top there it says 9/6/198.  Again, transposing
  21   those numbers, it is June 9, 1998.  You see there the contract
  22   and the buyer listed, K.K. Mohammed, and then one of the
  23   witnesses down there at the very bottom is Fahad M. Ally.
  24   Government's Exhibit 1461 is the summary chart that relates to
  25   the fingerprint testing that was done on the items related to
                                                                5408
   1   the bombing in Dar es Salaam, and you see down there at the
   2   bottom there is a fingerprint on that contract for Fahad
   3   Mohamed Ally, and three fingerprints and a palm print from
   4   Khalfan Khamis Mohamed.
   5            Khalfan Khamis Mohamed told Agent Perkins that the
   6   Suzuki was used to transport the components of the bomb, the
   7   TNT, the cylinders and so forth, but there is other evidence
   8   that tells you that.  Amina Rasheed was the person who worked
   9   at 15 Amani.  She did the cleaning and the cooking.  She told
  10   you how she saw the person Mohamed and the person she knew as
  11   Hussein, and she described Mustafa Fadhl, and where Khalfan
  12   Khamis Mohamed lived, and she saw Hussein driving around in
  13   the Suzuki.  But you also know from Government's Exhibit 1462,
  14   second page of 1462.  This is a summary chart of the results
  15   of the chemical work that was done on the Suzuki, and you see
  16   a listing of the swabbings and some of the items that were
  17   taken from the Suzuki, and you see on the right-hand side,
  18   almost across the board, items testing positive.  It is as if
  19   someone took the Suzuki and dipped it in TNT.  You can see
  20   this was the utility vehicle that Khalfan Khamis purchased,
  21   that the group used to collect the components for the bomb.
  22            Six days later, June 15, 1998, Khalfan Khamis
  23   Mohamed, and again Hussein, Mustafa Fadhl, rent the residence
  24   at 213 Ilala.  You know that a number of ways.  First you know
  25   from the lease itself.  You may remember that Khalfan Khamis
                                                                5409
   1   Mohamed told Agent Perkins that there was an older skinny
   2   gentleman involved in the transaction and you heard from
   3   Mohamed Solimani, who told you that he was the broker.  What
   4   Mohamed Solimani told you was, he remembered Mohamed and
   5   Hussein coming to him and they were looking for a place that
   6   had high walls and a driveway for a vehicle.  He showed them a
   7   couple of places that they didn't like and eventually they
   8   settled on the place known as 213 Ilala, and Solimani told you
   9   about the lease and he said that Khalfan signed it and Hussein
  10   signed it.  That's Mustafa Fadhl.  From Government's Exhibit
  11   1461 -- actually, if you want to focus on the bottom -- you
  12   see there Khalfan Khamis, and one of the witnesses, Hassan
  13   Ali.  Solimani told you he saw them sign that lease.
  14            Government's Exhibit 461 is the summary chart
  15   relating to the fingerprint analysis that was done.  You see
  16   Khalfan Khamis Mohamed's fingerprint is on the lease,
  17   Government's Exhibit 1353.
  18            Ladies and gentlemen, this residence is the bomb
  19   factory in Dar es Salaam.  It is the equivalent to 43 Runda
  20   Estates that Harun had rented, where his fingerprints were
  21   found, and the place that tested positive for the TNT, PETN,
  22   and the aluminum powder.  If you look at Government's Exhibit
  23   1350A, this is an exterior photograph of 213 Ilala, and it is
  24   precisely what the group wanted to build its bomb.  It is a
  25   high wall, and we will take a look at some of the pictures on
                                                                5410
   1   the inside, to construct the bomb, bring the bomb there, store
   2   it and load up the bomb into the truck.
   3            Next, if we look at 1351F, this is along the side of
   4   the house.  You see the red gate, so we are looking from
   5   behind the red gate.  You see the wooden frame along the wall
   6   opposite the house.  You may remember that Khalfan Khamis
   7   Mohamed told Agent Perkins that Hussein had built an extra
   8   gate, a barrier to shield the bomb from the public's view, and
   9   you see the remnants in that picture.
  10            Let's look next at 1352, and this is the overhead
  11   sketch, if you will, the bird's eye view.  You see on the top
  12   left there, that orange part marked garbage pit.  You remember
  13   that the agents described how they went and searched some of
  14   the items in the garbage pit, and of course they went around
  15   the house.  You saw some of the items that they found.
  16   Government's Exhibit 1355 is the detonator.  Agent West, he
  17   was the explosives expert who testified about some of the
  18   items in Dar es Salaam.  This is the detonator that they found
  19   on a window sill at 213 Ilala.  There were several detonators
  20   that were put in these wooden boxes that the TNT was stored
  21   in.
  22            Government's Exhibit 1357B is one of the three broom
  23   whisks that was found at 213 Ilala, and one of the many items
  24   in 213 Ilala that tested positive for explosives.
  25   Government's Exhibit 1372 is a burlap bag, and you may
                                                                5411
   1   remember that Khalfan Khamis Mohamed described how the TNT was
   2   stored in what he called a rice bag, something that wouldn't
   3   allow one to see inside.  This was one of the many items found
   4   at 213 Ilala.
   5            Government's Exhibit 1358 is a yellow razor found by
   6   the sink, and I think you saw some of the photographs of the
   7   sink.  There is a stipulation that this yellow razor was
   8   tested for DNA, and one of the things found on this was a DNA
   9   match for Hamdan Khalif Alal.  You may remember, and we will
  10   discuss this later, that the suicide truck driver in Dar es
  11   Salaam was known as Ahmed the German, because of his blond
  12   hair.  The DNA taken off this razor confirms that this person
  13   was from Egypt, and there is a stipulation that that same
  14   person called to his family in Egypt on August 6, 1998, the
  15   day before the bombing, and wanted the family to assemble the
  16   next morning because he was going to tell the family that he
  17   was leaving this life.
  18            Government's Exhibit 1374 is some rope, some twine.
  19   You may remember that Khalfan Khamis Mohamed told Agent
  20   Perkins that was one of the ways they secured the oxygen
  21   tanks, and you have some exemplars here, Government's Exhibits
  22   1165 and 66, and Khalfan Khamis Mohamed described for you tall
  23   and short that were used, they used some rope to secure them
  24   along the wall of the truck, and you see some of it left over
  25   at 213 Ilala.  Government's Exhibit 1375 is some wiring left
                                                                5412
   1   over, and of course Khalfan Khamis Mohamed described that they
   2   had wired the bomb, they had to wire the batteries to the back
   3   up to the front of the truck so that the suicide driver he
   4   knew as Ahmed could detonate the bomb.  1365 is some black
   5   tape.  Then, I think it is 1376 -- and I would lift it up but
   6   I would probably hurt myself -- is this very heavy metal rod.
   7   This was found at 213 Ilala.  You remember the welder of the
   8   truck, Julius Kisingo, who described for you some of the work
   9   that he had done, and he specifically remembered that he
  10   recognized some of these pellets along the side, and this was
  11   some of the work that he had been asked to do on the truck
  12   along the side.  Precisely what it was he described he had
  13   done and the person he identified, by the way, is this person,
  14   Sheik Ahmed Salim Swedan, the same person we will talk about
  15   in a moment who locked the truck in the Nairobi bombing.
  16   Julius Kisingo told you that this person came by and asked him
  17   to do some of the welding in the back of the truck, and one of
  18   the pieces was later found at 213 Ilala.
  19            The other thing that happens during the summer in Dar
  20   es Salaam, and again, Amina Rasheed, the person who worked at
  21   15 Amani Street, Government's Exhibit 1300, she described
  22   meetings that summer involving Ahmed Khalfan, who she knew as
  23   Ahmed, and she identified his picture as being the person who
  24   lived there, and she said he had his own room and it was
  25   locked and she never had access to it, and she described
                                                                5413
   1   people who came that summer to have meetings.  She described
   2   this person as being Hussein, and Fahad, the same person that
   3   Khalfan Khamis Mohamed bought the Suzuki with, and this being
   4   the person, Government's Exhibit 117, who he rented 213 Ilala
   5   with.  She said Ahmed told her that he was leaving and she
   6   last saw him two weeks before the bombing.  Then you learned
   7   by way of stipulation that there was a search of 15 Amani, and
   8   the FBI found another detonator, Government's Exhibit 1305;
   9   passport photographs of Ahmed, Government's Exhibit 1306A, a
  10   number of passport photographs; and then Government's Exhibit
  11   1306E-P, passport photograph of the defendant Khalfan Khamis
  12   Mohamed that was found at 15 Amani Street.  You know from
  13   Government's Exhibit 1461, which again is the summary chart of
  14   the fingerprints, that Khalfan Khamis Mohamed's fingerprints
  15   are found on two other items that were located at 15 Amani.
  16   It was a passport application in the name Zahran Nassor
  17   Maulid, and several of his fingerprints are on that.  The
  18   other thing that they found was records for a mobile telephone
  19   number, 328848.  328848.  You see up on the screen there, one
  20   of the pages lists the subscriber of that mobile phone as
  21   Ahmed Khalfan, P.O. Box 15577.  Government's Exhibit 1459C is
  22   a summary chart of some of the outgoing calls from that phone,
  23   and on June 13, 1998, you see a call from that mobile phone to
  24   a number we talked about yesterday, 512430.  If you look on
  25   the far right you see the subscriber for that is 43 Runda
                                                                5414
   1   Estates, the bomb factory in Nairobi.  So by June, telephone
   2   contact between the two bomb factories.
   3            You may remember that Khalfan Khamis Mohamed told
   4   Agent Perkins that he remembered that Hussein, Mustafa, had a
   5   mobile phone that he thought that Ahmed had gotten for him.
   6            June 19 is the next date we will look at, and if you
   7   take a look at Government's Exhibit 902, 902 is a passport
   8   that is found in the Comoros in Harun's house, and that is a
   9   passport for somebody who is identified as Jihad Ali.  This is
  10   the suicide driver of the bomb truck in Nairobi.  If we go
  11   through the passport we will see that on the 19th of June
  12   Assam leaves Pakistan, and if we take a look at the next page
  13   of the passport we will see that he enters into Kenya on the
  14   19th.  So by mid-June the suicide driver of the truck in
  15   Nairobi is in Nairobi.
  16            Towards the end of June you know from a witness you
  17   heard, Said Salim Omar, who described for you how he lived in
  18   Mombasa, and he had a truck, a Toyota Dyna, and that he sold
  19   the truck to somebody he knew.  He identified Sheik Ahmed
  20   Salim Swedan.  Government's Exhibits 583A through D are some
  21   of the documents that Said Salim Omar had with the Dyna.  He
  22   described this conversation about how he joked for selling the
  23   truck for $10,000, and Swedan jumped on it and said I'll take
  24   it.  Eventually they worked out a deal, and Said Salim Omar
  25   said he has never seen him ever since.  He was never able to
                                                                5415
   1   get the paperwork, but he did say that he saw the truck after
   2   he sold it, and there was one change, that the flatbed had
   3   originally been uncovered and when he saw it later, it was
   4   covered.  They had modified the truck to hide the bomb before
   5   they delivered the bomb.
   6            Ladies and gentlemen, the evidence is overwhelming
   7   that this is the bomb truck that the defendant Mohamed
   8   Al-'Owhali drove in on the morning of August 7.  First you
   9   know that the same person bought both the Toyota Dyna for the
  10   Nairobi bombing and the Nissan Atlas for the Dar es Salaam
  11   bombing.  But the other thing you know is from Agent
  12   Sachtleben, who talked to you about some of the vehicle parts
  13   that were found in the vicinity of the embassy in Nairobi, and
  14   he described for you a couple of parts in particular that he
  15   could identify based on the damage to them were from the
  16   actual bomb truck.  On the screen you see Government's Exhibit
  17   840, which is the parts that were identified by both Agent
  18   Sachtleben and Mr. Miyagi, who was the expert from Toyota.
  19   Government's Exhibit 815 is the right front frame part -- if
  20   you look at the documents, they have the chassis number, BU61,
  21   and it lists the rest of the number.  Agent Sachtleben told
  22   you that based on the damage to the metal he could tell this
  23   was from the actual vehicle.  Mr. Miyagi told you that he
  24   could tell this was from a Toyota truck part.
  25            Government's Exhibits 822 and 823 are the rear axle
                                                                5416
   1   pieces, and Agent Sachtleben described for you how he could
   2   tell there was a significant force that came down from the top
   3   of the axle piece, and he described for you the damage that
   4   was done, and he could tell based on that damage that this
   5   axle piece sat right underneath the bomb as it went off.
   6   These pieces, you remember, were found in that railway yard
   7   that were hundreds of yards away from the bomb, hundreds of
   8   yards away.  Mr. Miyagi, you may recall, designed the pieces
   9   for the Toyota, told you that this was the rear axle piece for
  10   a Toyota Dyna.
  11            One of the other pieces was the Pitman arm,
  12   Government's Exhibit 826.  You remember the damage on the one
  13   side, and the side that faced the back of the truck.  Agent
  14   Sachtleben told you that was consistent with being right near
  15   the bomb.  Mr. Miyaga told you exactly what that piece did and
  16   where it was oriented.  This was that was the piece where the
  17   bomb blast came from the one side.
  18            The defendant Odeh described to the FBI a meeting he
  19   had with somebody he identified as Ahmed the German 40 days
  20   before August 6.  That puts it into roughly late June.  What
  21   Odeh told the FBI is that Ahmed the Egyptian came to him and
  22   delivered --
  23            MR. RICCO:  Objection, Judge.
  24            MR. KARAS:  -- a message that Sheik Hassan from
  25   Somalia wanted to meet with Bin Laden, and that Odeh, Ahmed
                                                                5417
   1   the Egyptian -- and we will make clear that Ahmed the Egyptian
   2   is not the same person as Ahmed the suicide driver in Dar es
   3   Salaam, if that's the issue -- and Mustafa Fadhl, Odeh, Ahmed
   4   the Egyptian or Mustafa Fadhl, had to export this person Sheik
   5   Hassan from Somalia to go see Bin Laden.  But the other thing
   6   that Odeh told the FBI was that Ahmed the Egyptian also said
   7   that Bin Laden had new plans to fight and that Odeh would have
   8   to travel to confer with Bin Laden about these new plans to
   9   fight.
  10            Now we move to July.  By July, Khalfan Khamis Mohamed
  11   told you that he and Mustafa Hussein and Hussein's wife and
  12   children, Anas and Yousef, moved into the house -- ladies and
  13   gentlemen, one thing to think about, you have Hussein, Mustafa
  14   Fadhl, in a bomb factory where he and others are going to
  15   construct a bomb.  They are going to have TNT and detonators,
  16   and Mustafa Fadhl is a family man, and he brings his wife and
  17   two children with him every step of the way.  You will see
  18   that he brings them with him when they flee East Africa to go
  19   to Afghanistan before the bombing.  Terrorists do have
  20   families, ladies and gentlemen, and Mustafa Fadhl is living
  21   proof of that.
  22            What Khalfan Khamis Mohamed described for you --
  23   excuse me, to Agent Perkins -- was that Ahmed Khalfan and
  24   Fahad were responsible for getting some of the components of
  25   the bomb.  They were responsible for getting the detonators,
                                                                5418
   1   they were responsible for getting the TNT.  You saw the
   2   detonator that was found in Ahmed Khalfan's room at 15 Amani.
   3   Late July, somewhere between July 24 and July 30, the bomb
   4   truck for Dar es Salaam is purchased, and one of the witnesses
   5   you heard from was Mohamed Sultan.  He was the very first
   6   witness you heard from that day, all the people that came from
   7   Tanzania, and he described for you that Mohamed Sultan had a
   8   truck, that he wanted to sell the truck, and he went through
   9   and he described for you a transaction that took two days.
  10   What he said was that one person he thought was the tall one,
  11   and he identified the picture of Swedan, the same person who
  12   bought the truck, the Dyna, and another person he described as
  13   Fupi, the short one -- Ahmed Khalfan was the picture that he
  14   identified, who Khalfan Khamis Mohamed said was responsible
  15   for getting some of the components for the truck.
  16            In fact, Mohamed Sultan identified a picture,
  17   Government's Exhibit 1175, as looking like the truck that he
  18   sold to these two individuals.  One of the things he told you
  19   was that they went looking for this person Fupi one day, and
  20   he identified the picture Government's Exhibit 1300 which was
  21   15 Amani, the place where the passport photo and the passport
  22   application with the fingerprints of Khalfan Khamis Mohamed
  23   was found.  What Mohamed Sultan told you was that the
  24   transaction actually took place at the Al Noor Hotel in Dar es
  25   Salaam, and in particular he identified the room, room 24
                                                                5419
   1   within the Al Noor Hotel.  Remember he said there was a
   2   meeting and they were haggling back and forth about how much
   3   money they had, and there was a knock on the door, and this
   4   mysterious third person showed up with the rest of the money,
   5   and just like the transaction involving the Nairobi bomb
   6   truck, there was no paperwork.  There was no contract.
   7   Mohamed Sultan never got the rest of the paperwork.  You may
   8   remember Fabid Sadaalli was the hotel clerk, and one of the
   9   things he identified was the guest register book, Government's
  10   Exhibit 1457.  If you look inside there, you see at the top
  11   right, 24/7/98.  You will see, if we can go ahead and
  12   highlight that example, there is an entry for Sheik Ahmed, and
  13   you see at the far right, room 24, just like Mr. Sultan
  14   described for you.  Fabid Sadaalli identified this photograph,
  15   Government's Exhibit 123, as Sheik Ahmed, and he remembered
  16   Sheik Ahmed getting visited by Ahmed Khalfan Galani.  As I
  17   mentioned earlier, there was Julius Kisingo, the welder who
  18   did the work, and he identified the picture of Swedan as the
  19   person who asked him to do the welding.  If you look at
  20   Exhibit 1178A on the screen, that is an overhead view of the
  21   diagram of the back of the truck that Julius Kisingo described
  22   for you.  You remember how he took the frame and he described
  23   the two sides that he built along the side of the wall.  He
  24   described the metal shack that we saw, Government's Exhibit
  25   1366, that went along the side of the wall.  What he said was,
                                                                5420
   1   the person he identified as Swedan told him that he wanted
   2   Kisingo to make these frames in the back for fish and that
   3   Mr. Kisingo remembered seeing a spot where a refrigerator unit
   4   of the truck had been but the unit was no longer there but he
   5   could tell that it was once a refrigerator truck.  The other
   6   thing Julius Kisingo described for you was a large battery
   7   frame that he was asked to make.  That is Government's Exhibit
   8   1178B.
   9            One thing to bear in mind, if we can put up on the
  10   left side Government's Exhibit 1178A and if we could rotate
  11   it.  During his interview with the FBI, Khalfan Khamis Mohamed
  12   walks one of the FBI agents through a diagram as it was being
  13   described by Khalfan Khamis as the back of the truck.  Khalfan
  14   Khamis Mohamed described the diagram on the right, 1054, as an
  15   accurate diagram.  If you compare it to the diagram of Julius
  16   Kisingo, you can see, one of the things Julius Kisingo told
  17   you about the holes in the back of the truck, they were marked
  18   before he was asked to do any work and he drilled the holes
  19   where he was told to do so.  You will see that Khalfan Khamis
  20   Mohamed agreed with the agents in that diagram that the
  21   batteries that were used, no doubt the batteries used to
  22   detonate the bomb, were in the back of the truck, and there
  23   was wiring, which of course explained the holes in the back of
  24   the truck, that had to go all the way up to the cab so the
  25   suicide driver could detonate the bomb.
                                                                5421
   1            Just like what the forensic evidence told you about
   2   the bomb truck in Nairobi, the forensic evidence told you the
   3   same thing about the bomb truck in Dar es Salaam.  The right
   4   front chassis, which had the number 4H0, identified as a part
   5   from the Nissan Atlas.  You had just like the bomb truck in
   6   Nairobi, the bomb truck in Dar es Salaam, Government's Exhibit
   7   11.  Mr. Suby was the expert connected with the Nissan
   8   company.  Then you had the tire rim, Government's Exhibit 1119
   9   that we have before you here, which Agent West also described
  10   as consistent with part of the bomb truck.  That is the bomb
  11   truck that Khalfan Khamis Mohamed and the others loaded the
  12   components, that Khalfan Khamis Mohamed got in on the morning
  13   of August 7 with Ahmed, the suicide bomber.  That is the bomb
  14   truck that delivered the bomb that murdered 11 people at the
  15   embassy in Dar es Salaam on the morning of August 7.
  16            What Khalfan Khamis Mohamed described to Agent
  17   Perkins was that when they got the components of the bomb, he
  18   and the others used a grinder, and he identified a photograph
  19   of it, and it was found during a search that was introduced to
  20   you by way of stipulation, Government's Exhibit 1440, this
  21   piece of machinery that was used to grind the TNT.  Ladies and
  22   gentlemen, we don't have a picture of Khalfan Khamis Mohamed
  23   and the others grinding the TNT and putting together the
  24   components of the bomb.  That is something you are going to
  25   have to picture.  You picture Khalfan Khamis Mohamed and
                                                                5422
   1   Mustafa Fadhl and the others, with Mustafa Fadhl's children
   2   somewhere in the house, grinding the TNT, putting together the
   3   components of what they know is going to be a massive bomb,
   4   that they know is planned to be delivered at the doorstep of a
   5   building filled with people, and who knows how many people
   6   around that building.  That's what went on in 213 Ilala, the
   7   house that Khalfan Khamis Mohamed rented in the summer of
   8   1998.
   9            One of the other things that Khalfan Khamis Mohamed
  10   described was that they used these cylinder tanks, and you
  11   know from some of the items that were obtained from the crime
  12   scene that fragments of cylinder tanks were found, and there
  13   are a couple of representative samples.  Government's Exhibit
  14   1132, you can see some wood, it's actually jarred in, very,
  15   very heavy pieces.  Khalfan Khamis Mohamed described that they
  16   used a number of these, and you heard from Kathleen Lundee,
  17   the metallurgist who did some metallurgy analysis, using the
  18   ICP process, and she was able to determine, based on a
  19   chemical position, and you see the chart there, she could
  20   determine that there were at least 19 different cylinders used
  21   in the back of the truck.  Again, there is no video of the
  22   bombing, but imagine these flying around the vicinity on the
  23   morning of August 7.
  24            Next we move to July 28.  On July 28, Khalfan Khamis
  25   Mohamed gets a Yemeni visa for his passport.  Look at
                                                                5423
   1   Government's Exhibit 1451.  There you see Khalfan Khamis
   2   Mohamed's photo at the top of the application, and he doesn't
   3   apply for it in his own name but Zahran Nassor Maulid, the
   4   same name as the passport application found in 15 Amani.
   5   There you see additional information and he puts down his
   6   profession as businessman.
   7            (Continued on next page)
   8
   9
  10
  11
  12
  13
  14
  15
  16
  17
  18
  19
  20
  21
  22
  23
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  25
                                                                5424
   1            MR. KARAS:  (Continuing) July 27 through July 30, we
   2   pull up Government Exhibit 594-27, and 594 is the minutes used
   3   on the satellite phone that we talked about yesterday, and
   4   between the 27th and 30th of July you see down there at the
   5   bottom, 27th through the 29th, there are eight calls to a
   6   number 994, which is the country code for Azerbaijan, the
   7   country we talked about yesterday -- at the top of this map
   8   here, just north of Iran -- and then you see the local number
   9   there is 6880488.  That is the number that you are going to
  10   see called on the eve of the bombing and the morning of the
  11   bombing.  And from that number, ladies and gentlemen, there
  12   are records from Azerbaijan that are going to show an
  13   operator-assisted call to The Grapevine in London, the place
  14   where the Scotland Yard officers found one piece, one page of
  15   the claim of responsibility about a month after the bombing.
  16            At the bottom of that page, you see a telephone call
  17   from the satellite phone on July 29th, 1998 to that number
  18   2084411, and the 4411 number is one of the three numbers that
  19   belongs to Khalid al Fawwaz.  Then if we go to Government
  20   Exhibit 593, these are some of the records from O'Gara
  21   Satellite Networks where Ziyad Khalil, the person who
  22   purchases the minutes, you see on July 30th, the day after the
  23   telephone call goes from the satellite phone to Khalid al
  24   Fawwaz, he's in such a rush he takes an old minutes order, he
  25   scratches out April 13th, he puts July 30th.
                                                                5425
   1            And you may remember that Marilyn Morelli, the person
   2   from O'Gara Satellite Networks, says the one thing she
   3   remembered about Khalid was when he was purchasing minutes, he
   4   was always in a rush.  Normally, it would take a day or two,
   5   but he wanted it that day.
   6            And you see the telephone call, the satellite phone,
   7   the Jihad phone we talked about yesterday, they know they're
   8   going to be busy the next few days, so they're going to get
   9   stocked up on minutes.  They call Khalid al Fawwaz.  He calls
  10   his man in the United States.  They get 400 more minutes
  11   purchased on the satellite phone, which you see on the next
  12   page of the records in Government Exhibit 593.  And there you
  13   see the add minutes transaction order and you see the date at
  14   the top there, 7/30/98.
  15            July 31st, the very next day, if we take a look at
  16   Government Exhibit 901, this is the passport that the
  17   defendant Mohamed Al-'Owhali used.  And if we go ahead and
  18   rotate this and focus, you see an exit from Pakistan on 31
  19   July, 1998.
  20            Now, what Mohamed Al-'Owhali told Agent Gaudin was
  21   that when he was in Afghanistan, when he returned from Yemen
  22   after getting his fake passport, he made a video, a video that
  23   was supposed to celebrate his martyrdom in the operation that
  24   they expected to carry out a few months later.  And in that
  25   video Mohamed Al-'Owhali gave the name of the organization
                                                                5426
   1   that was going to claim credit for this bombing after it took
   2   place.
   3            And you'll see, and we'll go through and compare the
   4   wording, but the wording of the organization that Mohamed
   5   Al-'Owhali gave to Agent Gaudin matches almost verbatim with
   6   the name of the organization that al Qaeda sent the claims of
   7   responsibility through to London.  Months before the bombing,
   8   they even know the fictitious name of the organization they
   9   are going to use to claim credit for the bombing to advertise
  10   what they had done.
  11            Now we get to August 1st.  August 1st at the Hilltop
  12   Hotel.  If we take a look at Government Exhibit 518, this is
  13   the registry book for the Hilltop Hotel in Nairobi, and what's
  14   being displayed for you on the screen are the two sides or the
  15   two pages that make up the entry for August 1st, 1998.
  16            What's being magnified for you is an entry on August
  17   1st, and Abubakar Khalfan, Box 15577, and it says D, looks
  18   like SA, Dar es Salaam, Tanzania, and on the next line,
  19   another businessman.  Abubakar Khalfan is Ahmed Khalfan
  20   Ghailani.
  21            There's a passport he gets, a Tanzania passport in
  22   the name that's very similar to that.  And P.O. Box 1577 you
  23   may remember is the same P.O. Box that those telephone records
  24   for that mobile phone 328848 that we looked at just a few
  25   minutes ago, the telephone records that are found in 15 Amani,
                                                                5427
   1   the place which Amina Rashid says Ahmed was living during the
   2   summer of 1998.
   3            With respect to the defendant Odeh, the defendant
   4   Odeh tells the FBI that on August 1 he runs into Saleh and
   5   Fahad and that there is conversation where Saleh is actually
   6   yelling at Odeh to get his passport which Odeh says he doesn't
   7   have.  And there's a meeting later on that night where there
   8   is discussion about giving Odeh an expired Yemeni passport,
   9   and they agree they're going to get a visa to go with that
  10   passport on August 2nd.
  11            Then there's another meeting between Odeh and Saleh
  12   alone where Saleh told Odeh that the others were leaving that
  13   day and that he, Odeh, had to get his affairs in order.  The
  14   other thing that Odeh said to the FBI was that Mustafa told
  15   him that he, Mustafa, and two others were ordered to leave,
  16   that something big was going to happen.
  17            Let's stop for a moment and consider what has
  18   happened regarding what the defendant Odeh has admitted to the
  19   FBI and then what the other evidence shows.
  20            By the 1st of August, defendant Odeh, according to
  21   what he admitted to the FBI, knows about Bin Laden's fatwahs.
  22   He's had meetings with Saleh and Mustafa where they discuss
  23   these fatwahs about how Bin Laden has a new plan.
  24            There are meetings with Mustafa and Saleh, according
  25   to what Odeh is willing to admit to the FBI, where the group
                                                                5428
   1   is told to leave Kenya for a number of different reasons are
   2   given, and that Odeh is supposed to go and see Bin Laden.
   3            Then, on August 1, as we just went through, he's
   4   supposed to get a passport, and others are leaving and there's
   5   a big operation.
   6            Now, the other evidence shows you that by August 1,
   7   Odeh is still a fully sworn member of al Qaeda, fully paid
   8   member of al Qaeda; that he's been a member of al Qaeda since
   9   1992; that he's been part of the East Africa cell of al Qaeda
  10   since 1993, 1994; that he's fully trained in explosives, and
  11   that by the time he leaves his house in Witu and goes to
  12   Mombasa on August 1st.  And he does not go back to Witu, he's
  13   left behind some sketches in his house, Government Exhibit
  14   704-2, I think it is, or P2, those two sketches that Agent
  15   Leadbetter found in Odeh's house in Witu.
  16            We'll talk more about these sketches later on, ladies
  17   and gentlemen, but I submit to you that those sketches are
  18   independent physical evidence that will establish for you what
  19   Odeh's role was in this bombing -- technical advisor with the
  20   others that carried out the bombing.
  21            August 2nd.  August 2nd is the day, according to what
  22   Mohamed Al-'Owhali told Agent Gaudin, that he gets to
  23   Nairobi -- remember, he got there a day later than he was
  24   supposed to, so he told Agent Gaudin that he missed a meeting
  25   in Mombasa and he said that he gets to Nairobi and he goes to
                                                                5429
   1   the Ramada Hotel and he gets in contact with the person he had
   2   been in touch with who told him to wait and that somebody
   3   would come to pick him up.
   4            And what Mohamed Al-'Owhali told Agent Gaudin was the
   5   person who came to pick him up was Harun, and he identified
   6   Harun's picture from the video of the ferry accident.  And on
   7   August 2, Harun took Al-'Owhali to what he knew to be Harun's
   8   house and that's where Al-'Owhali would stay until the day of
   9   the bombing.
  10            Now, what the defendant Odeh told the FBI that he did
  11   on August 2nd was he was ordered to get his affairs in order,
  12   that he got a phone call from the person that he identified as
  13   Fahad, it was an angry phone call, wanting to know where Odeh
  14   was and telling him, Odeh, that Saleh wanted to see Odeh.  So
  15   Odeh went to try to find Saleh in Mombasa but was unable to do
  16   so.  Saleh was gone.
  17            The other thing that happens on August 2nd is the
  18   first group of people involved in the bombing leave.  If we
  19   take a look at Government Exhibit 541A, you see there that is
  20   a ticket for Pakistani International Airways, PIA, Flight 744,
  21   and it's a ticket for Sheik Ahmed Salim Swedan, the person
  22   pictured in Government Exhibit 123, the person who bought the
  23   two bomb trucks for Nairobi and Dar es Salaam.  And you see,
  24   by the way, the departure is on 2 August and they go to
  25   Karachi, which is in Pakistan.  It's not on the map but it's
                                                                5430
   1   in Pakistan.
   2            Government Exhibit 541F, a ticket that's purchased on
   3   August 1, you see on the top right, a ticket for Pakistani
   4   International Airways, Flight 744, on 2 August for El Baji,
   5   which is one of the aliases for Mustafa Fadhil.  He's the
   6   person who approached Khalfan Khamis Mohamed about doing the
   7   Jihad job.  He's the person Khalid that carried out the new
   8   policy that Wadih El Hage brought back from Bin Laden in 1997.
   9   He leaves.  He doesn't leave alone.  Government Exhibit 541H
  10   is a ticket for Anas, his son, and 541I is a ticket for Yusr,
  11   his daughter, and there's also a ticket for his wife.
  12            August 3rd.  This is the day, according to what the
  13   defendant Al-'Owhali told Agent Gaudin, that he had meeting
  14   with Saleh and Saleh told Al-'Owhali that there were going to
  15   be two bombings, one in Nairobi and one in Dar es Salaam on
  16   the morning of August 7th, and he said somewhere between 10:30
  17   and 11.
  18            And they reviewed photographs of the embassy and they
  19   reviewed drawings of the embassy, and what I remind you of is
  20   what Kherchtou told you about what Abu Mohamed al Amriki and
  21   what Anas were doing in Nairobi in 1983 when Anas al Liby had
  22   a camera 500 meters away from the embassy where they were
  23   developing photos.
  24            And it was on August 3rd, according to what
  25   Al-'Owhali told Agent Gaudin, that he got his specific
                                                                5431
   1   mission.  He was to use a gun to get the bar up to get the
   2   bomb truck as close as possible to the embassy.  He was
   3   supposed to use stun grenades to scatter people out of the
   4   area, and that Mohamed Al-'Owhali would carry with him keys to
   5   the back of the truck.  If for some reason, the detonator in
   6   the front part of the truck didn't work, then he would use the
   7   keys to open up the back part of the truck, throw those
   8   grenades and try to detonate the bomb.
   9            Al-'Owhali described for Agent Gaudin what the bomb
  10   truck looked like.  It's was a beige truck with two wheels in
  11   front and four wheels in back, which you know is actually
  12   correct from what Mr. Miyagi told you about what the Dyna
  13   was -- that was the NGDT and it had to deal with how many
  14   tires there were in the back; that the bomb was supposed to be
  15   made of TNT with aluminum powder in wooden boxes and
  16   everything was connected with wires to batteries in the back
  17   of the truck.
  18            The other thing that Saleh told Mohamed Al-'Owhali
  19   was that there was going to be the bombing in Dar es Salaam,
  20   and he mentioned there was only going to be one person in that
  21   truck and said that the person was going to be known to
  22   Al-'Owhali as Ahmed the German.  Just so we're clear, that's a
  23   different Ahmed than Ahmed the Egyptian Mohamed Odeh talked
  24   about with the FBI.  And what Al-'Owhali told Agent Gaudin was
  25   he knew the person who was going to carry out the bombing in
                                                                5432
   1   Dar es Salaam and that he was sorry he missed the meeting
   2   earlier in the week because he wanted to say good-bye.
   3            Saleh told Al-'Owhali that the truck in Dar es Salaam
   4   was going to be a refrigerator truck.  Saleh bragged about how
   5   they got the bomb together in Dar es Salaam in about ten days.
   6   The bomb in Dar es Salaam was going to involve oxygen tanks
   7   for fragmentation and that they changed the location of the
   8   delivery of the bomb truck to take it further away from the
   9   French embassy.
  10            And you may recall that Ambassador Lange talked about
  11   after the bomb, he got through the fence and he met the French
  12   ambassador and he went across the street to the French Embassy
  13   briefly before he went back to the American Embassy.
  14            On August 3rd, according to what Odeh told the FBI,
  15   Fahad picked up Odeh and they went to the immigration office,
  16   and from there Fahad took care of the visa for the passport
  17   that Odeh had received and then Fahad and Odeh went to a
  18   travel agency to buy tickets.  And then Fahad told Odeh to go
  19   to Nairobi and to meet up with the rest of the group at the
  20   Hilltop Hotel.
  21            And what Odeh told the FBI was that they in fact did
  22   that through the night and arrived at the Hilltop Hotel the
  23   morning of August 4th.  And if we look at Government Exhibit
  24   518, which again is the registry for the Hilltop Hotel which
  25   we looked at just a few minutes ago that had the entry for
                                                                5433
   1   Ahmed, Khalfan Ghailani, you see at the very top there, if we
   2   pull up both parts of the page and magnify it, an entry for
   3   Abdel Basit, which we'll see in a minute is the name on the
   4   passport that the defendant Odeh used when he fled Nairobi the
   5   night before the bombing.  So, on August 4th, Odeh, the Kenyan
   6   resident, checks in to a Kenyan hotel using a fake name, Abdel
   7   Basit, and he too is a businessman.
   8            Now, according to what Odeh told the FBI, he took a
   9   nap in the room that he was given, Room 102B, and that he
  10   later ran into Saleh and Harun, who were leaving the hotel;
  11   that Saleh gave Odeh a razor and a pair of pants and told Odeh
  12   to use the razor to shave his beard so he wouldn't look like a
  13   Muslim.  Odeh also said that on the 4th, Harun and Saleh told
  14   Odeh they were going to go out to do a small job, and we'll
  15   talk about how that was described later on.
  16            And then Odeh ran into Abdel Rahman, the person who
  17   was one of his trainers at the Sadeek Camp that we talked
  18   about yesterday, where Odeh was taught how much and what type
  19   of explosive to use to do an operation.  He told the FBI he
  20   ran into his former bomb instructor, Abdel Rahman, and that
  21   Abdel Rahman mentioned that he had been at the hotel for the
  22   preceding two months.
  23            At some point that day, Saleh and Harun returned and
  24   Odeh mentioned to the FBI that Harun drove a white pickup
  25   truck.  And Odeh remembers Saleh reading a magazine and saying
                                                                5434
   1   a prayer, indicating that he was worried, and that Odeh said
   2   he stayed the night the Saleh's room.
   3            Meanwhile, on August 4th, what Al-'Owhali told Agent
   4   Gaudin on August 4th he did was that he and Saleh went to the
   5   American Embassy, and Saleh showed Al-'Owhali where the bomb
   6   was supposed to go.  And Al-'Owhali and Saleh had a discussion
   7   about where Al-'Owhali thought the bomb should go, and at the
   8   end of the day Saleh told Al-'Owhali what the plan was.
   9            Meanwhile, in Dar es Salaam, if you take a look at
  10   Government Exhibit 1459E, and this is a summary chart of phone
  11   calls that are made from that mobile phone, 328848, the mobile
  12   phone, the records of which were found in 15 Amani, and if you
  13   look at the 4th of August at 7:16 p.m., you see a call for two
  14   minutes to a number in Egypt.  And remember from the razor and
  15   from the stipulation I talked about, the suicide driver of the
  16   bomb truck in Dar es Salaam is from Egypt.  So by the 4th of
  17   August, the suicide driver is in place in Dar es Salaam.
  18            Meanwhile, halfway around the world in London, on
  19   August 4th, if you take a look at Government Exhibit 1558-P,
  20   there is dated the document, and we can look at the fax
  21   header, The Grapevine, and there it has the number for The
  22   Grapevine, 3727415, August 4, 1998.  And if we take a look at
  23   the translation -- you may remember we read you this
  24   document -- this is the document where EIJ, the partner in the
  25   joint venture with al Qaeda, is talking about how angry it is
                                                                5435
   1   about what it perceives happened to some of its members.
   2            And in the fourth paragraph, EIJ and it says the
   3   information office of the Jihad group in London writes, "we
   4   would like to inform the Americans that, in short, their
   5   message has been received and that they should read carefully
   6   the reply that will, with God's help, be written in the
   7   language that they understand."
   8            Now, this document is found in the office at 1A
   9   Beethoven Street in London, and the Scotland Yard officers who
  10   did the search in that place for a number of days, you may
  11   remember this is the place where they also found the claims of
  12   responsibility, a copy of the claims of responsibility for the
  13   bombings.
  14            They also found an envelope with an address label for
  15   Khalid al Fawwaz, the al Qaeda person in Nairobi who Wadih El
  16   Hage replaced, who then goes to London and is involved in
  17   getting the satellite phone and in getting the various fatwahs
  18   and declarations of Jihad published and disseminated.
  19            And it's an office that you know by way of
  20   stipulation was leased by that third person in London I
  21   mentioned to you, Adel Abdel Bary, and it was earlier leased
  22   by Khalid al Fawwaz.  Take a look at the leases, you will see
  23   they sort of rotate who is actually the person renting the
  24   Unit 5 at 1A Beethoven Street.
  25            Now we move to August 5th.  Al-'Owhali told Agent
                                                                5436
   1   Gaudin that on August 5th, Abdel Rahman shows up to do the
   2   final wiring for the bombing.  And the other thing you know
   3   from Government Exhibit 340, which is a summary chart based on
   4   telephone records for calls from 43 Runda Estates -- and
   5   remember, this is the bomb factory, and the telephone there
   6   Harun asked the landlord, Ms. Ratemo, to get special
   7   permission to make international calls.
   8            On August 5th at 11:11 p.m., there is a
   9   six-and-a-half-minute call from Khalid Salim, the alias that
  10   Al-'Owhali is using, to a number in Yemen, and we'll just call
  11   this the 0578 number from here on out.  Al-'Owhali told Agent
  12   Gaudin that he did speak to his friend Ahmed and he called
  13   from Runda Estates.
  14            Now, on August 5, Odeh tells the FBI that what he did
  15   that day was he woke up and he saw Harun eating breakfast with
  16   a Saleh, and he mentioned that they were wearing the same
  17   clothing that they had been wearing the night before; and that
  18   Odeh had a conversation with Saleh where he asked him, Saleh,
  19   to pick up some socks and a shirt for Odeh.  Saleh told Odeh
  20   to wait for Abdel Rahman and that Odeh mentioned that on that
  21   day he took a walk along Moi Avenue and he bought some items,
  22   a shirt and some books and that, once again, Saleh and Harun
  23   stayed out all night.
  24            By the way, you may remember there was a latent
  25   fingerprint lift in the Room 107B that was identified as
                                                                5437
   1   belonging to the defendant Odeh.
   2            Now, Khalfan Khamis Mohamed described for Agent
   3   Perkins a situation in Dar es Salaam where the bomb truck got
   4   stuck in the sand and that he and Ahmed, the suicide driver,
   5   had to work to try to get the truck unstuck from the sand and
   6   they were able to do that.
   7            Khalfan Khamis Mohamed said to Agent Perkins that
   8   Ahmed, the driver, had that mobile phone and he remembered
   9   Ahmed, the driver, using that phone to call the brothers.  And
  10   if we take a look at 1459E, which is again the summary chart
  11   for calls from that mobile phone, what you will see is on
  12   August 5th, three telephone calls to the Hilltop hotel, the
  13   same hotel that the registry records show you that Ahmed
  14   Khalfan Ghailani checked into on August 1 and the same hotel
  15   that the hotel records show that Abdel Basit, the alias for
  16   Odeh, checked into.
  17            August 6th.  What Odeh said to the FBI about August
  18   6th is he remembers that Ahmed from Tanzania and Fahad showed
  19   up and that they were staying at another hotel; that Saleh and
  20   Harun returned to the Hilltop again dressed in the same
  21   clothes as they had been wearing the night before; that Saleh
  22   was in a good mood, and that on August 6 Saleh told Odeh that
  23   he spoke with the people in Kandahar -- remember we looked at
  24   the map yesterday and Kandahar is a province in Afghanistan --
  25   he spoke to the people in Kandahar and that the people had
                                                                5438
   1   been evacuated because they were expecting retaliation from
   2   the United States Navy.
   3            Odeh said that on that day he went shopping again and
   4   got a towel and he got a bag, and that he went back to the
   5   hotel and he met up with Fahad and that Fahad told Odeh that
   6   Saleh and Abdel Rahman had left Kenya and that he and Fahad
   7   had dinner, got their shoes shined, and went to the airport.
   8            So now we have another five or six days since we last
   9   sort of went through what it is that Odeh admitted to and what
  10   the evidence showed you.  Since before August 1, Odeh admitted
  11   to the FBI he knew about the fatwahs, he knew everybody had
  12   been ordered to leave, and what he learned, according to what
  13   he told the FBI, between the 1st and the 6th is that he was
  14   given orders to leave, in fact, I mentioned it earlier, but
  15   everyone had to be out by August 6th; that he met up with
  16   Saleh and Harun at the Hilltop Hotel; that he saw his bomb
  17   trainer, Abdel Rahman; that he knew that Saleh and Harun said
  18   that they were going to do a small job on one of those days;
  19   that Saleh was happy after being up all night for the second
  20   consecutive night; that the United States was expected to
  21   retaliate against the people in Kandahar, Afghanistan; and
  22   that everybody else was leaving that night.
  23            Now, according to what Al-'Owhali told the FBI, what
  24   he did on August 6th, he once again made some telephone calls.
  25   And if we look at 340, Government Exhibit 340, this is the
                                                                5439
   1   summary chart, you see two calls again from 43 Runda Estates,
   2   the bomb factory, to the 0578 number, 12:37 for a little over
   3   four and a half minutes, and 8:44 in the evening, a little
   4   over 7 minutes.
   5            Meanwhile, on August 6th, if you take a look at the
   6   records for the satellite phone, there is a call on August 6th
   7   from the satellite phone to -- there are two calls to that
   8   688048 number in Baku, Azerbaijan, the same call that's going
   9   to call The Grapevine the day of bombings -- The Grapevine,
  10   the place that received the claims of responsibility.
  11            We know by way of stipulation that Hamdan Khalif
  12   Allah, the name of the person who was the suicide driver in
  13   Dar es Salaam, calls his family in Egypt and asks everybody to
  14   be by the phone the next day.  And you know from Government
  15   Exhibit 1459E that the mobile phone is used to call a number
  16   in Egypt on August 6th.
  17            And you see down there at, I think it's the next page
  18   at the top, you see two calls to Egypt on August 6th.  August
  19   6th is the day that Khalfan Khamis Mohamed gets his visa to go
  20   to South Africa.  You will see that in the passport.  And on
  21   August 6th, on Kenya Airways Flight 310, Saleh using the name
  22   Abdallah Ahmed Abdallah, Ahmed Khalfan using the name Abu Bakr
  23   Khalfan Ahmed, fly out of Nairobi on a Kenya Airways flight to
  24   Karachi, and that Fahad and the defendant Odeh fly out on
  25   Pakistani International Airways Flight 746 from Nairobi to
                                                                5440
   1   Karachi, Pakistan.
   2            THE COURT:  We will take our midmorning break at this
   3   point.
   4            (Recess)
   5            (Jury present)
   6            THE COURT:  We're turning down the air conditioning.
   7   I know it's cold.
   8            MR. KARAS:  Thank you, your Honor.
   9            We left off before the break with the defendant Odeh
  10   and Fahad and others flying from Nairobi on the evening of
  11   August 6th into the morning of August 7th, heading to Pakistan
  12   on the escape path to Afghanistan.
  13            Now, ladies and gentlemen, we get to August 7th,
  14   1998, the eighth anniversary of when President Bush sent the
  15   American troops to Saudi Arabia.  And the first thing that you
  16   know that happens on the morning of August 7th is the claims
  17   of responsibility are sent as early as 4:45 in the morning,
  18   and you saw the fax header to the claim of responsibility that
  19   was found at The Grapevine in London and the three other
  20   claims of responsibility, the three other pages between 4:53
  21   a.m. and 4:56 a.m. on the morning of August 7th, 1998, and
  22   those claims of responsibility to be later released so that
  23   the members of this conspiracy could take credit for the
  24   bombings in Nairobi and Dar es Salaam.
  25            From here on out, the times I'm going to mention to
                                                                5441
   1   you are in East African time in Nairobi and Dar es Salaam.
   2            The next event that happens is at approximately 5:30
   3   in the morning, and that is when the defendant Odeh, in his
   4   attempt to escape and go to Afghanistan, is caught at the
   5   airport in Karachi, Pakistan.
   6            At 8:54 in the morning, Ahmed the German, the suicide
   7   driver in Dar es Salaam, calls his family in Egypt to say he's
   8   leaving this life.  Government Exhibit 1459E, you see the call
   9   being placed from that mobile phone in Dar es Salaam.
  10            At 9:14, at 9:23 a.m., the satellite phone, the
  11   satellite phone in Afghanistan, calls that number 688048 in
  12   Baku Azerbaijan.  From that number, later on there will be a
  13   call to London to the mobile phone of Ibrahim Eidarous and a
  14   call to The Grapevine in London.
  15            At 9:19 a.m., the defendant Al-'Owhali calls his
  16   colleague Ahmed in Yemen at the 0578 number.  There you see it
  17   in the chart, Government Exhibit 340.
  18            At 9:29 a.m., just ten minutes later, the mobile
  19   phone in Dar es Salaam calls from Dar es Salaam into Mombasa.
  20   That is the last telephone call that is made from the phone
  21   that Khalfan Khamis Mohamed told Agent Perkins he last saw in
  22   the hand of Ahmed, the suicide driver, when he went off to do
  23   the bombing.
  24            At 9:45 a.m., the bomb truck leaves 43 Runda Estates
  25   in Nairobi, led by Harun driving a white pickup truck.  Just
                                                                5442
   1   15 minutes later, the bomb truck leaves 213 Ilala, the bomb
   2   factory in Dar es Salaam.  In this bomb truck is Ahmed, the
   3   suicide driver, and the defendant, Khalfan Khamis Mohamed.
   4            Now, soon after getting into the truck and riding in
   5   it for a brief time, Khalfan Khamis Mohamed gets out of the
   6   truck, goes back to the bomb factory, and he begins his
   7   prayers for Ahmed, the suicide driver.
   8            Just before 10:30 in Nairobi, Frank Pressley, the
   9   communications officer, is speaking with his friend Michelle
  10   O'Connor and Jay Bartley Jr.  Pininah Muhoho is waiting for
  11   the bus outside the embassy in Nairobi, and in Dar es Salaam,
  12   Edward Rutahesherwa, the security guard, is being replaced for
  13   his midmorning break.  Both ambassadors in Nairobi and Dar es
  14   Salaam are attending meetings.
  15            At just a few minutes before 10:35 in the morning,
  16   Al-'Owhali arrives with Azzam in the bomb truck in the back
  17   parking lot of the American Embassy in Nairobi.  He has the
  18   gun in his jacket and he has the four grenades he's going to
  19   use in an effort to get the bomb truck as close to the embassy
  20   as possible.  Harun, who had been leading the bomb truck in
  21   his white pickup truck, stopped outside at a roundabout or
  22   circle near the embassy.
  23            Inside the parking lot, Al-'Owhali gets out of the
  24   truck.  Forgetting his gun in the jacket, he uses those stun
  25   grenades to try to scare the guards to open the gate so the
                                                                5443
   1   truck can get as close to the embassy as soon as possible.
   2   His partner, Azzam, begins shooting outside the window of the
   3   driver's side of the truck.
   4            After Al-'Owhali throws his flash grenades, he comes
   5   to the decision that there's no point in his dying.  His dying
   6   will not be a martyrdom operation, it will be suicide.  So he
   7   runs.
   8            At 10:35, ladies and gentlemen, at 10:35, Azzam
   9   detonated the bomb and, in a flash, he killed hundreds, he
  10   wounded thousands, but just before he detonated that bomb,
  11   Al-'Owhali was able to turn the corner, and in so doing he was
  12   able to do something that 213 other people did not do that
  13   morning, and that's survive the bomb that he helped deliver,
  14   leaving behind chaos, death, injury and horror.
  15            Ambassador Bushnell described for you the two
  16   different times she thought she was going to die that morning.
  17   George Mimba, the information systems manager at the embassy
  18   who had just been speaking to Julian Bartley just before the
  19   bomb went off, described how there was smoke and he couldn't
  20   see and he crawled out to an open space and he was going to
  21   jump so his father could find his body.
  22            To buy so he ten I don't see, the commercial
  23   specialist, he said, "I thought it was the end of the world."
  24   And before the dust could even begin to settle in Nairobi, at
  25   10:39 a.m. in Dar es Salaam, Tobias Otieno is attending a
                                                                5444
   1   meeting and he sees the lightening flash and then the loud and
   2   long boom that she described for you.
   3            Liz Slater was in a meeting with Cynthia Kimble, and
   4   she told you that it just went pitch black.  "There was a
   5   feeling, a strange smell, a kind of oily, gritty feeling in
   6   the air.  The walls were on top of me.  I could see the sky."
   7   Cynthia Kimble was screaming and people were trying to figure
   8   out what happened.
   9            Meanwhile, back in Nairobi, the defendant Al-'Owhali,
  10   having survived his own bomb attack, went to the M.P. Shah
  11   Hospital in Nairobi to be treated for his wounds, to be
  12   treated in the same hospital that would treat the others that
  13   he injured.
  14            From there, and before he leaves -- remember, he
  15   leaves behind the bullets and the keys and then Al-'Owhali
  16   goes to the Ramada Hotel, where he convinces the clerk to let
  17   him check in and he gets some more clothing.
  18            Meanwhile, back in Dar es Salaam, while the rescue
  19   efforts are under way and people like Liz Slater are making
  20   their way out of the embassy, seeing that poor man whose skin
  21   had been ripped off, so much pain she said she wished he would
  22   die, Khalfan Khamis Mohamed is back at the bomb factory,
  23   searching for news on the radio and the television to see if
  24   the bomb happened.  And when he learns that it did, he was
  25   happy.  He was happy that the bomb had gone off, and what he
                                                                5445
   1   left behind, ladies and gentlemen, what he was happy about you
   2   see in Government Exhibit 1103D.
   3            While the rescue efforts were going on, Harun, who
   4   had volunteered to stay behind to clean up the evidence that
   5   would link the group to the bombing, he cleans up the bomb
   6   factory in Nairobi.  And Khalfan Khamis Mohamed, who had
   7   agreed to stay behind, he begins the clean up efforts in Dar
   8   es Salaam.  He cleans the house and he attempts to rid the
   9   house of some of the instruments that were used to build the
  10   bomb, telling his nephew, "Clean this machine because it has
  11   been used for unclean things."
  12            The Baku phone, the 6888048 phone, is in touch with
  13   Ibrahim Eidarous in London and is sending the facsimiles to
  14   The Grapevine to be picked up by Ibrahim Eidarous and Adel
  15   Abdel Bary.  All of that happened on August 7th, 1998.
  16            On August 8th and August 9th, 1998, the defendant
  17   Al-'Owhali decides he needs to leave Nairobi, but because he
  18   was supposed to die in the bombing, he doesn't have his
  19   passport, he doesn't have any identification and he is without
  20   money.  So he calls the number in Yemen, the 0578 number, as
  21   seen in Government Exhibit 342.  He calls both on the 8th and
  22   the 9th, several times to Yemen.
  23            And while he's doing this, while Al-'Owhali is
  24   looking out for himself, while he's attempting to escape the
  25   damage and the horror that he has done, Samuel Nganga is
                                                                5446
   1   trapped underneath the rubble of what used to be the Ufundi
   2   House with a bone protruding out of his body, speaking to
   3   Rose, a woman he was communicating with who was also trapped
   4   underneath the rubble.  And during these two days, during
   5   those two days that Al-'Owhali tried to run, Samuel Nganga
   6   waited and waited to be rescued.  He was, but Rose wasn't.
   7            Khalfan Khamis Mohamed, he's going to flee, too.  He
   8   takes his passport in the other name and he runs to South
   9   Africa, leaving behind death and destruction, and he goes to
  10   South Africa and he applies for political asylum, saying that
  11   he left Tanzania because of problems.
  12            And while Khalfan Khamis Mohamed does that, while he
  13   runs in from Tanzania, the other members of this conspiracy
  14   send out the claims of responsibility, the claims of
  15   responsibility that announce that the Islamic army for the
  16   liberation of the holy places hereby takes credit for the
  17   bombing in Nairobi and the bombing in Dar es Salaam.
  18            And the bombing in Nairobi is called the Holy Ka'ba
  19   operation, one of the reasons that Bin Laden said that
  20   American civilians had to be killed.  The bombing in Dar es
  21   Salaam is called the Al-Aqsa Mosque operation, the other
  22   reason that Bin Laden said that Americans had to be killed.
  23   And the claim of responsibility announced to the world is that
  24   two men from Saudi Arabia carried out the Nairobi bombing and
  25   that one man from Egypt carried out the Dar es Salaam bombing,
                                                                5447
   1   which you know from the evidence is exactly what happened.
   2            Now, on August 10 to the 12th, Al-'Owhali is still
   3   attempting to flee, still trying to reach out to that number
   4   in Yemen to get money and to get assistance.  And at the same
   5   time, the group in Afghanistan, the al Qaeda headquarters,
   6   using that satellite phone, is doing what it can to rescue
   7   Al-'Owhali.  In Government Exhibit 343, you see telephone
   8   calls from the satellite phone to the 0578 number.  Those are
   9   the only calls that are made to that 0578 number from the
  10   satellite phone in its entire existence.
  11            August 14th, that is the day that Harun flees Kenya,
  12   having finished up his clean-up effort, he leaves Kenya and he
  13   goes to the Comoros, and from there he follows the al Qaeda
  14   escape route to Pakistan and then into Afghanistan.  And you
  15   know that by way of stipulation.
  16            And what Harun does is he fulfills his mission, just
  17   like Khalfan Khamis Mohamed tried to do, by cleaning up any
  18   evidence connecting the group to the bombing.  And he takes
  19   with him clothes that he had and he takes with him
  20   Al-'Owhali's fake passport, the Yemen passport, Government
  21   Exhibit 901.
  22            He takes with him the passport for Azzam, Jihad Ali,
  23   Government Exhibit 902.  He takes his own passport, his own
  24   Comoros passport.  He has the fake vaccination card for
  25   Al-'Owhali, Government Exhibit 9304, and he has Al-'Owhali's
                                                                5448
   1   ticket, his Gulf Air ticket that got him into Nairobi at the
   2   beginning of August, 1998.  And he has Azzam's Saudi driver's
   3   license.
   4            All items that he took from Nairobi that he couldn't
   5   bring with him to Pakistan and Afghanistan, left behind, and
   6   he took them because Al-'Owhali and Azzam were supposed to die
   7   in the bombing.
   8
   9            (Continued on next page)
  10
  11
  12
  13
  14
  15
  16
  17
  18
  19
  20
  21
  22
  23
  24
  25
                                                                5449
   1            MR. KARAS:  (Continuing) But unaware that Al-'Owhali
   2   had survived, he took these items and he brought them home.
   3   Ladies and gentlemen, the clothing that Harun had with him,
   4   the boots, they tested positive for explosive residue, another
   5   refrain that you see throughout this case.  He also had what
   6   the FBI agents found to be some bomb manuals that had in
   7   English written the word explosive, what appeared to be timing
   8   devices.  Harun also left behind that white pickup truck, the
   9   white pickup truck that had a rear view mirror on it that had
  10   Harun's fingerprints, the white pickup truck that had an
  11   insurance card for Mohamed Fahad Ally Salim, whose
  12   fingerprints, ladies and gentlemen, are on that grinder, that
  13   machine of death that they used to construct the bomb in Dar
  14   es Salaam.
  15            August 20, 13 days after the bombs go off and after
  16   hundreds are dead, the FBI goes to interview the defendant
  17   Wadih El Hage.  Wadih El Hage was asked if he knew anybody in
  18   Kenya who was associated with Bin Laden.  He said no.  Wadih
  19   El Hage said that Bin Laden would not have been involved in
  20   the bombing because he's a humanitarian, and he would have
  21   done better intelligence to deal with the fact that Nairobi
  22   was a congested city.  Harun, according to Wadih El Hage, was
  23   just somebody who worked for Tawhil, or Ahmed Sheik Adam, and
  24   he was somebody who was good at getting information about
  25   Somalia.  But according to Wadih El Hage, he didn't know
                                                                5450
   1   whether or not Harun worked for Bin Laden.  Wadih El Hage said
   2   he didn't know anybody in the United States who worked for Bin
   3   Laden, and he claims that the only reason he knew about Bin
   4   Laden's secret meetings was a ledger that he saw when he
   5   worked for Bin Laden in Khartoum.  Wadih El Hage was asked
   6   about whether or not he knew the defendant Odeh, the defendant
   7   Odeh that the evidence tells you was in the East African cell,
   8   that the evidence, including tape recorded conversations,
   9   shows that El Hage and Odeh communicated with each other.
  10   Wadih El Hage said that he didn't personally know him, that he
  11   just recognized his picture from the news.  Once again, Wadih
  12   El Hage denied any recent contacts with Bin Laden, with the
  13   chief Al Qaeda military commander Abu Hafs.
  14            September 10, 1998, Ali Mohamed, the person known as
  15   Abu Mohamed al Amriki, who provided the surveillance training
  16   and came to Nairobi in December 1993.  Ali Mohamed testified
  17   before the grand jury, and you know by way of stipulation that
  18   there is a portion of the transcript of that testimony, and
  19   Ali Mohamed lied to protect the conspiracy.  Ali Mohamed lied
  20   by saying that the only training he had ever done was against
  21   the Russians, never admitting the training he had done to help
  22   others learn how to do surveillance of targets.
  23            Six days later, the defendant Wadih El Hage again
  24   testifies before the grand jury here in New York, a little
  25   over a month after the bombings have taken place, and once
                                                                5451
   1   again Wadih El Hage chose Bin Laden over America, denying
   2   recent contacts with Bin Laden, denying contacts with other Al
   3   Qaeda members and associates, such as Ihab Ali, such as Ali
   4   Mohamed, and of course Abu Hafs and Abu Ubaidah, and he did
   5   this, ladies and gentlemen, for the same reason he lied to the
   6   grand jury in 1997.  He did it as his contribution to the
   7   conspiracy, to protect the conspiracy from discovery by
   8   American government officials.  He did it so the conspiracy
   9   could survive another day and carry on the mission that the
  10   conspirators had agreed they would achieve.  In so doing,
  11   ladies and gentlemen, Wadih El Hage didn't share in the
  12   tragedies of the embassy bombings, he merely added to it.
  13            That's the chronology.  That's the chronology of what
  14   the evidence tells you from beginning to end that this
  15   conspiracy involved, from back in Afghanistan in the late
  16   1980's, up here to New York, September 16, 1998.
  17            Now what I would like to do, ladies and gentlemen, is
  18   to talk to you about the indictment.  First some general
  19   comments about the indictment.  The indictment contains four
  20   conspiracy counts, as I briefly mentioned yesterday.  All four
  21   defendants are included in the first two conspiracy counts and
  22   the fourth conspiracy count.  Defendants Odeh, Al-'Owhali, and
  23   Khalfan Khamis Mohamed are in the third conspiracy count.  We
  24   will go through each one of these.  There are then substantive
  25   counts relating to the bombings in Nairobi and Dar es Salaam.
                                                                5452
   1            Just so we are clear, the defendant El Hage is not
   2   included in any of the substantive counts that relate to the
   3   embassy bombings.  The defendants Odeh and Al-'Owhali are only
   4   included in the counts related to the Nairobi bombing and the
   5   defendant Khalfan Khamis Mohamed is only included in the
   6   counts that relate to the Dar es Salaam bombing.  We will go
   7   through this again as we go through these counts.
   8            Finally, the indictment contains numerous perjury
   9   counts that only include the defendant Wadih El Hage.  Let's
  10   talk for a moment about the conspiracy counts.  There are four
  11   conspiracy counts, as I mentioned.  The first one that
  12   includes all four defendants is a conspiracy to murder US
  13   nationals.  The second is a conspiracy to murder United States
  14   government officers and employees.  This count also charges
  15   all four defendants.  The third conspiracy, which, as I
  16   mentioned, only includes Odeh, Al-'Owhali and Khalfan Khamis
  17   Mohamed, charges conspiracy to use weapons of mass destruction
  18   against United States nationals.  And the fourth conspiracy
  19   count is a conspiracy to destroy United States government
  20   property and buildings.
  21            At the end of the closing statements by all the
  22   lawyers, ladies and gentlemen, Judge Sand will instruct you on
  23   the law, and it is those instructions that you should follow.
  24   But briefly, a conspiracy is simply an illegal agreement
  25   between two or more people to break the law.  To prove a
                                                                5453
   1   conspiracy count, the government must show you beyond a
   2   reasonable doubt the agreement to violate the law, each
   3   defendant's membership and participation in that agreement,
   4   and an overt act, something that was done by somebody in the
   5   conspiracy in furtherance of the conspiracy.  A conspiracy is
   6   different than a substantive crime.  The goal of the
   7   conspiracy need not be achieved.
   8            With that brief background, let's talk about the
   9   first count, conspiracy to murder United States nationals.
  10   The first thing is whether or not there was such a conspiracy
  11   in this case.  In going through the chronology we have covered
  12   a lot of the evidence that lays out for you the existence of
  13   the conspiracy involving these defendants and others to murder
  14   nationals of the United States.  As I mentioned to you
  15   earlier, there is not a videotape of a meeting where there was
  16   a contract signed where everybody says this is what we are
  17   going to do.  Remember, this is a secret conspiracy.  The way
  18   you learn about what the conspiracy's goals are, how it is
  19   that conspiracies are carried out, are by the actions of the
  20   people involved in the conspiracy.
  21            One other thing that I think is very important to
  22   note about conspiracy.  Membership in Al Qaeda by way of
  23   swearing bayat is not a requirement for guilt of conspiracy.
  24   Membership by bayat in Al Qaeda is also not by itself
  25   membership in the conspiracy that is charged in this case.
                                                                5454
   1   The defendants Al-'Owhali and Khalfan Khamis Mohamed, there is
   2   no evidence that they swore bayat to Al Qaeda.  The evidence
   3   is, however, that they joined in a conspiracy with others,
   4   including some who swore allegiance to Al Qaeda, as part of
   5   the conspiracy to murder United States nationals.
   6            What is the evidence that there was a conspiracy to
   7   murder United States nationals?  There is the testimony of
   8   Jamal al-Fadl, who told you as far back as when the American
   9   military forces arrived in the Saudi gulf, right after Al
  10   Qaeda got to the Sudan in 1992, 1993, Al Qaeda targeting the
  11   United States.  Jamal al-Fadl told you that they targeted the
  12   United States when American forces were sent to Somalia.
  13   Jamal al-Fadl told you that even as of 1996 he said that Al
  14   Qaeda was targeting the United States even to the point that
  15   they might target American embassies.  And he told you about
  16   some of the prominent members that were part of this idea, of
  17   this conspiracy, including Usama Bin Laden, including Abu
  18   Hafs, Abu Ubaidah, Abu Hajer, defendant Wadih El Hage.
  19            The witness Kherchtou told you about how as far back
  20   as 1992 that Al Qaeda viewed the United States as the enemy of
  21   Islam.  Kherchtou told you that he understood in 1993 that Al
  22   Qaeda was targeting the United States because of the operation
  23   in Somalia, and he mentioned some of the people who figured
  24   prominently in this growing conspiracy.  He mentioned Abu
  25   Hafs, he mentioned Saleh, he mentioned Harun, and one of the
                                                                5455
   1   people he mentioned who was in Somalia, who was a member of Al
   2   Qaeda, was the defendant Odeh, as far back as 1993.
   3            You have evidence of the existence of this conspiracy
   4   to murder US nationals from the numerous Bin Laden statements
   5   that we went through.  Al-Fadl told you about the private
   6   statements to Al Qaeda, but you have seen some of the public
   7   statements:  The August 1996 declaration of jihad, the March
   8   1997 CNN interview, of course the February 1998 fatwah, and
   9   the May 1998 ABC News interview.
  10            You know that there was a conspiracy to murder US
  11   nationals because of the way that the members of the
  12   conspiracy responded to the presence of the Americans in
  13   Somalia, that Abu Hafs went there, that Saleh went there, that
  14   Harun went there, that Kherchtou helped facilitate the efforts
  15   of some others who went into Somalia.  The defendant Wadih El
  16   Hage regarding the Stingers and the transportation of the five
  17   people that we talked about yesterday.  All of those actions,
  18   as I said, reflect what the mind set was, reflected that the
  19   common goal of the conspiracy was to attack nationals of the
  20   United States.  And, of course, the carrying out of the
  21   embassy bombings.  Yes, they are substantive crimes.  They are
  22   concrete acts.  But they also reflect, again, the agreement of
  23   people to pursue a common goal, to kill nationals of the
  24   United States, again, regardless of membership in Al Qaeda.
  25   The question is membership in the conspiracy.
                                                                5456
   1            The defendant Al-'Owhali told Agent Gaudin that he
   2   was trained by Al Qaeda camps, that he asked Usama Bin Laden
   3   for a mission, that he was sent to Africa to carry out attacks
   4   on an American target.  Khalfan Khamis Mohamed, not a sworn
   5   member of Al Qaeda but trained at camps in Afghanistan, worked
   6   with people like Mustafa Fadhl, another prominent member of
   7   this conspiracy.
   8            You have the claims of responsibility as evidence of
   9   the existence of the conspiracy, the claims of responsibility
  10   that go through Baku, Azerbaijan, to numbers called by the
  11   satellite phone to headquarters in Afghanistan, to the people
  12   in London, where Khalid al Fawwaz is there to help disseminate
  13   the claims of the conspiracy, an act in furtherance of the
  14   conspiracy, because as I mentioned, one of the things that Al
  15   Qaeda did was to try to publicize its activities as a method
  16   of terrorizing people and as a method of recruitment.
  17            What about membership in this conspiracy, in
  18   conspiracy to murder people simply because they were United
  19   States nationals?  In addition to the defendants, and we will
  20   talk about the defendants, the evidence overwhelmingly shows
  21   that Usama Bin Laden was a member of this conspiracy.  He's
  22   the leader of Al Qaeda.  He is somebody to set the agenda for
  23   Al Qaeda and for others to target the United States.  You saw
  24   the reasons, the various reasons he gave why the United States
  25   neat needed to be targeted, why American military officers
                                                                5457
   1   needed to be killed, American civilians needed to be killed.
   2   He is the person who lays out the goals of the conspiracy.
   3   Harun is a member of this conspiracy.  Harun is somebody who
   4   went to Somalia in Mogadishu where the American forces were,
   5   and he told Kherchtou about what it is that they tried to do.
   6   Harun is the person who worked as Wadih El Hage's deputy,
   7   somebody who was the communications officer, who went through
   8   all those efforts to try to figure out how the group was going
   9   to deal with the response to the cooperation of Abu Fadhl al
  10   Makkee with the Americans.  Harun carried out the bombing in
  11   Nairobi.  Harun rented the bomb factory.  Harun cleaned out
  12   the bomb factory and brought all of those items back down to
  13   his house in the Comoros before he fled to the Al Qaeda
  14   headquarters in Afghanistan.
  15            Mustafa Fadhl is in this conspiracy.  Mustafa Fadhl
  16   is another person who was part of the East African cell of Al
  17   Qaeda.  Mustafa Fadhl carries out the new policy that Wadih El
  18   Hage brought back with him on his visit to Bin Laden in
  19   February of 1997.  Mustafa Fadhl is the person who brings
  20   Khalfan Khamis Mohamed into the jihad in March of 1998.
  21   Mustafa Fadhl helps rent the bomb factory, and Mustafa Fadhl
  22   flees with his wife and children to Afghanistan just five days
  23   before the bombing.
  24            Saleh is a member of this conspiracy.  Saleh is one
  25   of the people who went into Mogadishu, Somalia, to attack the
                                                                5458
   1   Americans.  Saleh is one of the people who left on August 6,
   2   1998, the night before the bombing, the same night that the
   3   defendant Odeh fled before the bombing.
   4            I mention those people, ladies and gentlemen, because
   5   when you see how these four people, among many others -- and
   6   we have been through many names and I don't mean to limit the
   7   membership list to this conspiracy just to the names that I
   8   have listed for you.  But when you see how just those four
   9   people worked with these defendants as part of the conspiracy,
  10   it becomes clear beyond a reasonable doubt the membership of
  11   these four defendants in the conspiracies in which they are
  12   charged, including Count 1.
  13            Wadih El Hage.  As we talked about yesterday, Wadih
  14   El Hage is the person who facilitates the activities of Al
  15   Qaeda.  Every organization needs a facilitator, somebody who
  16   takes care of the logistics.  Wadih El Hage's participation in
  17   this conspiracy dates back to when Wadih El Hage was in the
  18   Sudan, when Al Qaeda was targeting the United States in
  19   Somalia and had issued private fatwahs at meetings that El
  20   Hage attended, saying that Americans had to be attacked
  21   because of their presence in the gulf.  He is in charge of the
  22   Al Qaeda payroll.  He makes efforts to get Stingers
  23   transported from Pakistan to Afghanistan.  He transports some
  24   people from Sudan to Kenya at a time when the Americans are
  25   targeting the Americans in Somalia.
                                                                5459
   1            And then you know that his membership in the
   2   conspiracy took a new form when El Hage was transferred,
   3   effectively, from Sudan to Kenya in 1994, when he replaced
   4   Khalid al Fawwaz as one of the leaders of the Nairobi cell of
   5   Al Qaeda.  That is a critical moment, ladies and gentlemen,
   6   because you learned that El Hage replaced Khalid al Fawwaz
   7   from Kherchtou.  But there is other evidence that shows that
   8   El Hage was the replacement.  This was not a career move that
   9   Wadih El Hage made because he was tired of Sudan.  This wasn't
  10   a coincidence that soon after Khalid al Fawwaz left to take
  11   the heat off the group somehow Wadih El Hage decided that
  12   instead of being involved in bicycles and sesame seeds in
  13   Sudan, that he wanted to now start this charitable
  14   organization, this German-run charitable organization in
  15   Nairobi.  That wasn't coincidence, that wasn't happenstance.
  16   That was part of the conspiracy.  Nairobi was a base.  It was
  17   a critical base of operations for Al Qaeda both before El Hage
  18   arrived with respect to Somalia and then afterwards, as you
  19   see from the new policy and of course the carrying out of the
  20   embassy bombings.  El Hage filled that role.  He was the one
  21   who came in to work with the cell, to work with people like
  22   Mustafa Fadhl, to work with people like Harun, to work with
  23   people like the defendant Odeh.  And you saw the evidence of
  24   him working with precisely those people.  He lived with Harun
  25   and he worked with Harun, and he had telephone conversations
                                                                5460
   1   with Odeh, and of course there is evidence of other meetings.
   2   He met with Abu Hafs, according to what Kherchtou told you.
   3   He met with Abu Ubaidah, the military commander, people he
   4   would lie about to protect later when the American government
   5   would ask about these Al Qaeda members.
   6            El Hage traveled to see Bin Laden in 1997 twice, well
   7   after the war against America was public, and brought back
   8   with him a policy that would militarize the cell in Somalia
   9   dealing with Ethiopia, but the same cell once militarized,
  10   after it was militarized, that would carry out the bombings.
  11   And when his house was searched and when he was approached by
  12   the Americans, he did exactly what Khalid al Fawwaz did.  He
  13   left Kenya to take the heat off of the Al Qaeda cell in Kenya.
  14   And then when he testified before the grand jury he made plain
  15   his membership in this conspiracy by lying to protect the
  16   conspiracy, by protecting the conspirators from detection by
  17   the United States so that they could carry on with the
  18   activities that were part and parcel of the Al Qaeda
  19   operation, both in East Africa and elsewhere, including in
  20   Afghanistan.
  21            You know that Wadih El Hage helped to get fake
  22   passports for other people in Al Qaeda.  We went through the
  23   telephone conversations and we saw the letters, the coded
  24   letters and the coded communications where El Hage and Harun
  25   worked to get these passports, the life blood that we talked
                                                                5461
   1   about on behalf of Al Qaeda.  Fake passports that if done
   2   right, help people like the defendant like Al-'Owhali to get
   3   out of countries or, if not done right, leave it to defendants
   4   like Odeh to get caught and unable to escape after
   5   participating in terrorist activities.
   6            You saw the coded letters that El Hage had.  You saw
   7   the coded references that he had in his address book, and we
   8   will talk about some of them in connection with the perjury
   9   counts.  But Khalid al Fawwaz is not listed as Khalid al
  10   Fawwaz, 94 Dewsbury Road, London, England, it is 94 Dewsbury
  11   Road, Arlington, Texas.  We will see some of those address
  12   book references in his address book, with P.O. Boxes in
  13   Khobar, Saudi Arabia, for a person that he knows lives in the
  14   United States.  There are any number of coded references for
  15   Ali Mohamed, the surveillance trainer and the person who
  16   himself had lied to protect the conspiracy in September of
  17   1998.  All of that is evidence of El Hage's participation in
  18   the secret conspiracy, in the conspiracy that targets and at
  19   the same time fears the United States, that requires people to
  20   facilitate, to carry out the logistics, and, yes, if
  21   necessary, requires the members of the conspiracy to lie to
  22   investigating officials who are looking to uncover both the
  23   membership and the existence of the conspiracy.
  24            We talked about this briefly yesterday, but the fact
  25   that Wadih El Hage engages in gem transactions and the fact
                                                                5462
   1   that he may have been involved in the purchase of bicycles is
   2   not to the exclusion of his participation in Al Qaeda.  That's
   3   exactly what Usama Bin Laden does.  When he was in Sudan he
   4   made roads, had a transportation business.  He had other types
   5   of business.  But, as we talked about, it is precisely that
   6   business that is part of the conspiracy.  It finances the
   7   activities and it provides a cover.
   8            what I submit to you, ladies and gentlemen, is that
   9   Wadih El Hage was to the gem business what Bin Laden was to
  10   the sesame seed business, what the defendant Odeh was to the
  11   fishing business.  Those were things they did maybe to make
  12   money, but those were things that Al Qaeda set them up in to
  13   protect the conspiracy and to advance the conspiracy.  What
  14   motivates Wadih El Hage, what motivates Bin Laden, what
  15   motivates Mohamed Sadeek Odeh is not the success of their
  16   business but the pursuit of the common goal, to defeat the
  17   number one enemy, the United States.
  18            Again as we talked about, membership by way of bayat
  19   is nowhere going to be found in the judge's instructions, so
  20   that the question of whether or not Wadih El Hage took the
  21   bayat is not a question that has to be answered.  The question
  22   is whether or not he was a member of the conspiracy.
  23   Remember, the bayat is something that is very private.  It
  24   involves a handful of people.  The evidence of membership in
  25   the conspiracy does not come from the bayat, it comes from who
                                                                5463
   1   people trusted to work with and to speak with and to be
   2   around.  The witness Kherchtou explained it as such.  He said
   3   it was obvious.  You can't say to a member who is working with
   4   you in the same company are you from this company or not.  I
   5   mean, the question you can talk about all the issues about Al
   6   Qaeda among us, discussing whatever.  Kherchtou and the others
   7   knew that they could trust Wadih El Hage.  Kherchtou and the
   8   others knew that they could have meetings with Wadih El Hage.
   9   They could talk about Al Qaeda business with Wadih El Hage.
  10   He was trusted in the operation of jihad.  And not because he
  11   wore a T-shirt that said I took bayat, but because everybody
  12   knew who they could trust and who they couldn't.  Remember the
  13   story he told you about Abu Hafs, the military commander?  Abu
  14   Hafs' military command told Kherchtou and Wadih El Hage he
  15   trusted them to take care of his travel arrangements that
  16   involved his alias and fake passport, but he didn't even trust
  17   Abu Mohamed al Amriki, the person that the group trusted to
  18   train others in surveillance.  That type of operational
  19   connection, that type of association, ladies and gentlemen, is
  20   powerful evidence of a person's membership in a secret
  21   conspiracy like Al Qaeda.
  22            The defendant Odeh.  The evidence clearly establishes
  23   that the defendant Odeh was an Al Qaeda member as far back as
  24   1992.  The witness Kherchtou told you that he knew that Odeh
  25   was a member of Al Qaeda.  And, by the way, not because he was
                                                                5464
   1   there for the bayat.  You know from what Odeh himself admitted
   2   to the FBI that he was a member of Al Qaeda, that he was
   3   trained in Al Qaeda's camps, in ideas like explosives,
   4   learning how to calculate how much and what type of explosives
   5   to carry out an operation.  And Kherchtou told you that the
   6   defendant Odeh, who he knew as Marwan -- again, the aliases
   7   and the codes are all evidence of the existence of the secret
   8   conspiracy -- was a member of Al Qaeda who went to Somalia.
   9   Remember, he described some of the other members that went to
  10   Somalia, such as Harun and Saleh.  You know that Odeh himself
  11   admitted to the FBI that he went to Somalia because he was
  12   ordered to by Usama Bin Laden, and that he was there to train
  13   a group that was ideologically aligned with Al Qaeda.
  14   Ideologically aligned, which Odeh told the FBI meant that the
  15   group was concerned that the United Nations was going to take
  16   away their power, the same group that Odeh told the FBI got
  17   into a fire fight with the United Nations.  And Odeh was in
  18   Somalia and met with Abu Hafs right after Abu Hafs had come to
  19   an understanding with Farid, the warlord in Somalia, to work
  20   with the group to attack Americans, which lines up exactly
  21   with what the witness Jamal al-Fadl told you about Abu Hafs
  22   going to Somalia and trying to work with the local groups, the
  23   local tribes there.
  24            Like many prominent members in Al Qaeda, the
  25   defendant Odeh was given a business.  He told the FBI that Abu
                                                                5465
   1   Hafs, the military commander, set him up in that business.
   2   But it was an Al Qaeda business, the fishing business that he
   3   had in Kenya.  Remember the testimony of Mr. Mjitta, the
   4   person who worked in the fisheries industry?  He remembered
   5   the name of the boat, al Mandera, which is actually one of the
   6   names in the records that you see in Wadih El Hage's files,
   7   and that they were offloading at night, which was unusual and
   8   forbidden, and that the defendant Odeh had a license to move
   9   but not to catch fish.  Again, a perfect cover to carry out
  10   jihad operations.
  11            The intercepted telephone calls show that the
  12   defendant Odeh was in touch with El Hage immediately after El
  13   Hage returned from his trip to see Bin Laden in February 1997.
  14   And there was discussion in that conversation about how
  15   Mustafa Fadhl, the other member in this conspiracy we talked
  16   about, was going to come up and meet with El Hage.  And then
  17   you see the documents thereafter where they implement the new
  18   policy to militarize the cell.  And you saw the document that
  19   we talked about yesterday and this morning, about how this was
  20   not part of a relief organization, this was part of the jihad.
  21            One of the other things that Odeh mentioned to the
  22   FBI was that, like the others in Al Qaeda, Odeh had heard
  23   discussion about Abu Fadhl al Makkee cooperating.  The
  24   evidence makes crystal clear, ladies and gentlemen, including
  25   even from what Odeh was willing to admit to the FBI, that Odeh
                                                                5466
   1   was well aware of the fatwahs that Bin Laden had issued,
   2   calling on people to kill American citizens.  Here the bayat
   3   and Odeh's membership in Al Qaeda, while again not alone
   4   sufficient to establish membership in the conspiracy, is
   5   powerful evidence of membership in the conspiracy, being a
   6   member of the group that is at the core of this conspiracy,
   7   and being in particular a member of the cell of the group that
   8   is at the core of this conspiracy, the same cell, the
   9   implementers that Harun described, that carried out the
  10   bombings, that the bombings that Odeh participated in.
  11            We will discuss at greater length Odeh's
  12   participation, but just remember what it was that Odeh was
  13   willing to admit to the FBI.  Even he admitted to the FBI that
  14   there were several meetings as far back as March 1998, with
  15   Saleh, with Ahmed the Egyptian, with Harun, about how there
  16   had been a change in policy, about how people have to leave.
  17   As time gets closer to the bombing, what Odeh claims to the
  18   FBI is, he is told there is a big operation, that there is an
  19   unprecedented order to get out of Kenya by August 6, and then
  20   he is told that the Americans are expected to retaliate on
  21   August 6.  What does he do?  He goes to Nairobi, he checks
  22   into the hotel that you saw calls to, that he saw other people
  23   who were involved in the conspiracy check into, and he checks
  24   in in a fake name.  He shaves his beard, he takes his fake
  25   passport, and he goes by way of the others to Afghanistan.
                                                                5467
   1            THE COURT:  Mr. Karas, can you raise the microphone?
   2            MR. KARAS:  Is that better?
   3            Something we haven't talked about yet and we will
   4   talk about more, remember the clothing that Odeh was caught
   5   with in Pakistan that tested positive for TNT and PETN.  And
   6   remember those diagrams that you saw earlier that we will
   7   discuss later on.  All of that is not only evidence of Odeh's
   8   guilt of participating in the Nairobi bombing but is also
   9   powerful evidence, very powerful evidence of his membership,
  10   of his participation in the conspiracy to kill Americans.
  11   Because you know that the operation against the American
  12   Embassy in Nairobi was part of the Bin Laden, Harun, Saleh,
  13   Fadl conspiracy, and others, to kill Americans.
  14            The defendant Al-'Owhali.  What is the evidence of
  15   his membership in the conspiracy to kill Americans?  He
  16   admitted it.  He told Agent Gaudin that he was involved in the
  17   bombings.  He told him exactly what he did.  And he told him
  18   why it was that the American Embassy was targeted, why it was
  19   that he wanted Americans to be killed, what it is that it
  20   would take for him and others to stop killing Americans.  He
  21   admitted that he was trained in Afghanistan at the Al Qaeda
  22   camps, that he asked Bin Laden for the mission.
  23            What is very interesting is what he said to Agent
  24   Gaudin about his decision not to swear bayat to Al Qaeda, and
  25   it is this that underscores the point that I was making about
                                                                5468
   1   the bayat.  Remember what Jamal al-Fadl said, if you take the
   2   bayat you have to do whatever they tell you as long as it is
   3   Islamically correct as they define it.  That means if you are
   4   a doctor and they ask you to wash the car, you wash the car.
   5   Mohamed Al-'Owhali told Agent Gaudin he knew that if he took
   6   the bayat he could be given any role in Al Qaeda, including an
   7   administrative role.  But what he wanted to do was carry out
   8   military operations.  He wanted to kill.  He doesn't want to
   9   enter the contract that will deny him the opportunity to do
  10   what he wants to do.  He doesn't want to wash cars, he wants
  11   to deliver bombs.
  12            Mohamed Al-'Owhali's membership, I submit to you, is
  13   proven by the most significant overt acts in the conspiracy,
  14   by making the video, by getting the fake passport, by
  15   traveling to Nairobi and meeting the others, conducting the
  16   last-minute surveillance of the embassy, and, yes, going in
  17   the truck and throwing those flash grenades in an effort to
  18   get the bomb truck closer to the embassy so that more
  19   Americans can die.
  20            Al-'Owhali specifically told Agent Gaudin -- by the
  21   way, remember, he knew about the Dar es Salaam bombing ahead
  22   of time as well.  There is no question that Al-'Owhali knew
  23   that the target was American and that it was the American
  24   Embassy.  He told Agent Gaudin that he believed it was part of
  25   a bombing mission.  One of the things that Al-'Owhali told
                                                                5469
   1   Agent Gaudin was that the American Embassy was targeted
   2   because the American Embassy in Nairobi covered the Sudan.
   3   You may remember that Usama Bin Laden in the March 1997 CNN
   4   interview talked about, he complained about the diplomatic
   5   pressure that America put on Sudan, and one of the things he
   6   specifically mentioned was that the Americans use their
   7   embassy from Sudan and moved it to Nairobi.  That's what
   8   Al-'Owhali told Agent Gaudin was one of the reasons that the
   9   American Embassy was hit.
  10            The other thing Al-'Owhali told Agent Gaudin was they
  11   wanted to strike targets outside the United States to weaken
  12   the United States and then allow for attacks in the United
  13   States, and that the reason for attacking the United States
  14   was to get the Americans out of Saudi Arabia, to get the
  15   United States to stop supporting the enemies of Islam, and to
  16   get the United States to stop supporting the imposition of
  17   Islamic law as he and others defined it.
  18            The other piece that shows you the direct connection
  19   between Al-'Owhali and the conspiracy is the connection
  20   between the telephone calls that Al-'Owhali made to get out of
  21   Nairobi and the telephone calls made from the satellite phone
  22   that we talked about to the same number in Yemen, to rescue
  23   Al-'Owhali.  Al Qaeda is trying to get, not literally one of
  24   his own because he didn't swear bayat, but one of the members
  25   of the conspiracy back to the other members of the conspiracy,
                                                                5470
   1   to safety, as they view it, in Afghanistan.
   2            Khalfan Khamis Mohamed's membership in the
   3   conspiracy.  He also admitted it.  He admitted he was trained
   4   in Afghanistan as far back as 1994, and one of the people that
   5   he told Agent Perkins that he met up with there was Fahad.  He
   6   received basic and advanced explosives training, and that was
   7   corroborated by Khalfan Khamis Mohamed's friend Abdullah
   8   Hamisi, who told you that he told him he got training, that it
   9   was financed by Bin Laden and that it was focused on jihad.
  10            The other thing that Khalfan Khamis Mohamed admitted
  11   was that his views towards America were formed back in
  12   Afghanistan when he received the training.  Of course Khalfan
  13   Khamis Mohamed admitted in detail his roles in the bombing of
  14   the American Embassy in Dar es Salaam.  He obtained the
  15   Suzuki.  He rented the house.  He participated in the grinding
  16   of the TNT.  He described it in ways that are corroborated by
  17   the physical evidence.  The Suzuki purchase is corroborated by
  18   other evidence, including the contract.  The rental of the
  19   bomb factory, 213 Ilala, is corroborated by the broker and by
  20   the lease and by Hamed Muslim Salun.  He was brought to the
  21   house at 213 Ilala, and remember what he told him, my friends
  22   are going to be leaving soon, and find some replacements and
  23   make sure they look like them.  One of his roles is to try to
  24   make sure there is no trail of evidence that leads back to the
  25   group.  He cleaned 213 Ilala, or tried to.  He tried to
                                                                5471
   1   discard some of the evidence, and he fled, using a fake
   2   passport.
   3            Although Khalfan Khamis Mohamed claimed he had never
   4   met Bin Laden or was a member of Al Qaeda, he acknowledged
   5   that Bin Laden was, as he said, our leader in jihad.  And he
   6   told Agent Perkins about how he talked about Hussein, Mustafa
   7   Fadhl, one of the other prominent members we talked about,
   8   about Bin Laden, and about how Mustafa Fadhl said he had met
   9   Bin Laden in Afghanistan and respected him.  Khalfan Khamis
  10   Mohamed knew that Bin Laden was against Americans, and Khalfan
  11   Khamis Mohamed knew that the target of the bombing was the
  12   American Embassy.  In fact, Khalfan Khamis Mohamed told Agent
  13   Perkins that he carried out the bombing because he thought it
  14   was his obligation and duty to kill Americans.  And he talked
  15   about how the reason he felt this way was because of American
  16   policy, and one of the things he mentioned was the American
  17   presence in Saudi Arabia.  He said that the first duty was to
  18   kill the troops but that since that was a difficult duty to
  19   carry out, the next duty would be to attack American
  20   government facilities, which is precisely what he did.
  21            One of the other things I mentioned about a
  22   conspiracy is, there have to be overt acts in furtherance of
  23   the conspiracy.  It can't just be an agreement between two or
  24   more people.  Somebody has to do something to further the
  25   conspiracy.
                                                                5472
   1            The indictment, you will see, contains many, many
   2   over acts, about five dozen overt acts that are alleged to
   3   have been committed in furtherance of the conspiracy.  The
   4   evidence, I submit to you, establishes many, many other overt
   5   acts were carried out.  The overt acts discussed in the
   6   indictment cover a wide range of conduct that we talked about
   7   in going through the chronology:  The use of businesses and
   8   charity organizations as a cover for Al Qaeda activities.  The
   9   issuance of the fatwah, both publicly and privately, within Al
  10   Qaeda and to others, by Bin Laden, by Abu Hajer, and some of
  11   the other scholars within Al Qaeda, and you have seen evidence
  12   of those.  The accumulation or attempted accumulation of
  13   weapons.  For example, we talked about the efforts of Al Qaeda
  14   to get nuclear weapons.  The training and recruiting of Al
  15   Qaeda.  The overt acts specifically include the training of
  16   the defendant Odeh, the training of the defendant Al-'Owhali,
  17   and the training of the defendant Khalfan Khamis Mohamed.  All
  18   of the meetings and the various correspondence and the
  19   telephone communications.  The meetings involving Wadih El
  20   Hage and Abu Ubaidah, the former military commander, Abu
  21   Ubaidah and Abu Hafs, the current military commander.  The
  22   efforts to get the satellite phone.  The coded letters between
  23   Wadih El Hage and others in Al Qaeda, including Nawawi.  The
  24   dissemination of the new policy.  And some of the telephone
  25   conversations that you saw the transcripts of.  The efforts
                                                                5473
   1   aimed at Somalia.  The fatwahs that were issued with respect
   2   to Somalia.  The evidence about the defendant Odeh and Harun
   3   and Saleh and others going to Somalia while the Americans were
   4   there as part of the peace-keeping mission.  And of course the
   5   many, many acts to carry out the embassy bombings.  The rental
   6   of the bomb factory, 43 Runda Estates in Nairobi.  The
   7   purchase of the bomb trucks in Nairobi and Dar es Salaam.
   8   That was done, you remember, by the coconspirator Swedan.  The
   9   final preparations, the surveillance, the making of the flight
  10   arrangements.  The obtaining of fake passports.  The bombings
  11   themselves.  The efforts to flee, including the telephone
  12   calls to Yemen, and the flight to Pakistan, Afghanistan and
  13   South Africa.  And yes, the lies by Wadih El Hage in the grand
  14   jury in 1997 and 1998, and the lies by Ali Mohamed in the
  15   grand jury in 1998.
  16            The second count charges conspiracy to murder
  17   officers and employees of the United States government.
  18   Largely, ladies and gentlemen, the evidence that we talked
  19   about with respect to Count 1 relates to Count 2.  Remember
  20   al-Fadl and Kherchtou talked about targeting American military
  21   personnel in the Saudi gulf and in Somalia, and of course the
  22   Bin Laden statements make specific references to people in the
  23   government, people who work at embassies, people who report
  24   information to embassies, and the membership is the same.
  25   Again, some of the common members -- Bin Laden, Harun, Mustafa
                                                                5474
   1   Fadhl, and Saleh.  And the membership to the conspiracy is the
   2   same.  The goals that were established by some of the leaders
   3   in this conspiracy were as broad as every American national,
   4   but they also included American employees and American
   5   government facilities, to include military facilities and
   6   military personnel.  Same reasons we talked about earlier
   7   about the defendant El Hage being somebody who worked in the
   8   inner sanctum of Al Qaeda, who attended the meetings, who
   9   facilitated, who moved to Nairobi, who carried out the policy
  10   and lied to protect the policy, a conspiracy to kill American
  11   employees.  Same with the defendant Odeh.  Defendant
  12   Al-'Owhali, in addition to what we talked about earlier,
  13   specifically mentioned that one of the reasons the American
  14   Embassy in Nairobi was targeted was because the ambassador was
  15   a woman.  Their plans came down to even facts about the
  16   ambassador, about one of the American government employees.
  17            The other thing Al-'Owhali told Agent Gaudin was that
  18   embassies have other government representatives, like
  19   intelligence representatives.  Khalfan Khamis Mohamed told
  20   Agent Perkins, as I mentioned earlier, that while he thought
  21   it was his duty to kill American soldiers, he thought if he
  22   couldn't carry out that duty, his duty was to go after United
  23   States government buildings, and we know that included the
  24   embassy.
  25            The overt acts in furtherance of the conspiracy, the
                                                                5475
   1   same overt acts we talked about above -- all the coded
   2   communications, the training, the weapons, the callings for
   3   murder and the fatwahs.  Remember that manual that we looked
   4   at, the manual that was found in Manchester, that belonged to
   5   the person Anas al Liby, with the camera on Moi Avenue, that
   6   specifically said target embassies.
   7            Count 3, which only relates to the defendants Odeh,
   8   Al-'Owhali and Khalfan Khamis Mohamed.  Conspiracy to use
   9   weapons of mass destruction against United States nationals.
  10   Well, the existence of the conspiracy, again, is the same
  11   evidence.  Remember here, of course, Al Qaeda trains people in
  12   the use of bombs, specifically TNT, the explosive that was
  13   used to carry out the bombings in East Africa, and the efforts
  14   by Al Qaeda to obtain components of nuclear weapons, and
  15   remember Bin Laden's endorsement of what he called the Islamic
  16   nuclear bomb.  This is an organization that while it trained
  17   its people in assassination techniques, ladies and gentlemen,
  18   the method they were going to use to carry out attacks against
  19   their number one enemy was weapons of mass destruction.  It
  20   was bombs.  And of course the evidence of membership in a
  21   conspiracy and the overt acts is the same as we discussed
  22   before.
  23            That brings us to Count 4, conspiracy to destroy
  24   buildings and property.  Again, it's the same as above.  Bin
  25   Laden is calling and has been calling for attacks against
                                                                5476
   1   American facilities, military facilities, specifically
   2   mentioned embassies, in '97 and '98, and we talked about what
   3   it is that Khalfan Khamis Mohamed and Mohamed Al-'Owhali
   4   admitted to the FBI about.  You may recall, of course, again
   5   in addition to the Manchester manual, some of the documents we
   6   saw in Ali Mohamed's computer about the surveillance of
   7   buildings, about reports on buildings, that lines up with what
   8   the witness Kherchtou told you about the training that he and
   9   the others received about how to target buildings and other
  10   stationary targets.  This is also something that was
  11   personalized.  And of course we talked about the method they
  12   would do that in was by the use of bombs.
  13            THE COURT:  We will break for lunch and we will
  14   resume at 2:15.
  15            (Luncheon recess)
  16
  17
  18
  19
  20
  21
  22
  23
  24
  25
                                                                5477
   1                 A F T E R N O O N   S E S S I O N
   2                            2:15 p.m.
   3            (In open court; jury present)
   4            THE COURT:  Good afternoon.  Mr. Karas, you may
   5   continue.
   6            MR. KARAS:  Thank you, your Honor.
   7            We left off with the conspiracy counts, the four
   8   conspiracy counts, and as I mentioned to you earlier, the next
   9   part of the indictment involves the substantive counts, the
  10   counts that relate directly to the bombings of the embassies.
  11            Yesterday I had mentioned that the number of counts
  12   reflected the number of victims, and so Counts 5 through 284
  13   are what are covered by the substantive counts.  Again, I
  14   remind you what I said earlier today:  The defendant El Hage
  15   is not charged in any of the substantive counts that relate to
  16   the embassy bombings.  The defendants Odeh and Al-'Owhali are
  17   charged only in connection with the counts that deal with the
  18   Nairobi bombing, and the defendant Khalfan Khamis Mohamed is
  19   charged only with the counts that relate to the Dar es Salaam
  20   bombing.
  21            Now, before we go through the specific counts, all of
  22   which feed off of the evidence that shows the participation of
  23   the respective defendants for their participation in the
  24   respective bombings, what I am going to do is I am going to
  25   outline for you what the evidence is very briefly that there
                                                                5478
   1   were bombings, but then, more particularly, what the evidence
   2   shows that each defendant did to carry out and participate in
   3   the bombings, and then once we go through that evidence, we
   4   will go through some of the counts and talk about some of the
   5   particular elements that are required to be proved.  Then we
   6   will finish up with the perjury counts.
   7            Now, the evidence, ladies and gentlemen, that the
   8   embassies were bombed is overwhelming.  You heard from the
   9   explosives experts.  You saw the summary charts that showed
  10   that TNT was used.  You saw the evidence that told you about
  11   the vehicle used that helped to deliver and transfer the TNT,
  12   and you saw the evidence that showed how the TNT was made, how
  13   the bomb was put together, and then you saw the evidence about
  14   the trucks that were used to deliver the bombs.  And you even
  15   heard about the damage and you saw the photographs that showed
  16   the damage that supported the conclusions that both embassies
  17   were destroyed by a very large quantity of a high explosive.
  18            Now, with respect to what the evidence shows
  19   regarding each defendant:  Let's begin with the defendant
  20   Odeh.  As I mentioned to you, what the evidence shows is that
  21   the defendant Odeh served as a technical advisor and that that
  22   is how it is he participated, how it is that he contributed to
  23   the bombing of the American Embassy in Nairobi.
  24            And the evidence that establishes Odeh's role comes
  25   from his statement to Agent Anticev, the evidence regarding
                                                                5479
   1   Odeh's flight from Kenya just the night before the bombing
   2   with the others, the physical evidence found on Odeh when he
   3   arrived and was caught in Pakistan to include his fake
   4   passport and the Nike bag, the Nike bag that had some of the
   5   clothing which tested positive for TNT and PETN, and finally,
   6   other physical evidence that was found in Odeh's house and, in
   7   particular, the tape letter that we talked about yesterday and
   8   the diagrams.
   9            Let's begin with Odeh's statement.  We talked a
  10   little bit this morning and yesterday in terms of the
  11   chronological order about what it is that Odeh admitted to the
  12   FBI agents.  You may remember that what Odeh said was that he
  13   was in Mombasa on a furniture business with his brother-in-law
  14   when he ran into Saleh and that this was in March of 1998, and
  15   that there was a meeting involving Saleh, involving Harun, and
  16   Ahmed the Egyptian; that Mustafa was supposed to be there but
  17   he was not, and that was, according to what Odeh admitted to
  18   the agent, when Saleh said that he had come back from
  19   Afghanistan and the people had to get their affairs in order
  20   and to leave.  Then Odeh said that in April there was another
  21   meeting with Mustafa, where, among other things, they
  22   discussed the February 1998 fatwah.
  23            In June, as we talked about earlier, there's the
  24   meeting with Ahmed the Egyptian, and there's the discussion
  25   about Sheik Hassan and the other message from Bin Laden to
                                                                5480
   1   join the fight and there was discussion about Odeh going to
   2   see Bin Laden.
   3            And then you know what it was that Odeh admitted to
   4   the agents regarding what happened in August, the meetings in
   5   Mombasa, getting the fake travel documents, getting the
   6   tickets out of Africa with Fahad, learning that there was a
   7   big operation about to take place, going to the hotel in
   8   Nairobi and checking in in the name Abdel Basit, which you
   9   saw, and that the hotel records verified, and the name that is
  10   in the passport that Odeh was caught with in Pakistan,
  11   Government Exhibit 526A, the Yemen passport in the name Abdel
  12   Basit, and that before he left with the others, Odeh was told
  13   that the Americans were expected to retaliate, the United
  14   States Navy.  That's just some of the chronology.
  15            Now I would like to go in a little bit more detail
  16   about some of the things that Odeh said, and what we've done
  17   here is we have enlarged portions of the report that is in
  18   evidence as Government Exhibit 6, the report of the statements
  19   that Odeh gave to the FBI.
  20            Now, ladies and gentlemen, what I submit to you as we
  21   go through this statement is that what you are going to see is
  22   Odeh tap dancing with the truth.  He explicitly denies having
  23   a role in the bombing, but he talks all around the bombing and
  24   he talks all around the meetings that take place, the meetings
  25   that he was willing to admit to the agent, the meetings with
                                                                5481
   1   the other people who told him the things that preceded the
   2   bombing.  He's playing a tap dance with the truth and putting
   3   it into the context of where he is at the time and where he
   4   has been beforehand.
   5            Remember, he is caught fleeing Kenya the night before
   6   the bombing in Karachi at the gateway to Afghanistan and he's
   7   caught with a fake passport, and he's caught on August 7th,
   8   1998 and then he finds himself on August 15, 1998 back in
   9   Kenya speaking to the American FBI and to Kenyan officials.
  10            And what you are going to see Odeh do is give up as
  11   much information as he thinks he can to convince the Americans
  12   that he wasn't involved, to make his story sound credible, and
  13   what I submit to you is, in the course of doing that, you will
  14   see precisely how it is that he was involved in this bombing.
  15            He borrows from the truth, but he doesn't give the
  16   complete truth.  And you may remember during the trial Mr.
  17   Cohn asking the question of a witness about the best lies
  18   being partly true.  We will go through the statement and then
  19   we will compare the statement and show you that, in
  20   conjunction with the other evidence in this case, you know
  21   beyond a reasonable doubt what it is that Odeh did that makes
  22   him guilty of participating in these bombings.
  23            Now, the first enlargement that we have here, which,
  24   for your notes, is from page 13 of Government Exhibit 6, Odeh
  25   talked to Mustafa about Bin Laden declaring war against
                                                                5482
   1   American people in his last two fatwahs.  They discuss if al
   2   Qaeda was right in doing this.  They were concerned if they
   3   were ready to face such an enemy.  Mustafa stated that the
   4   mujahadeen in Sudan were against attacking U.S. targets, they
   5   feared the U.S. was too powerful.  Even al Qaeda in
   6   Afghanistan was questioning Bin Laden, but they still wanted
   7   to be ready to back up Bin Laden's fatwah.  They still wanted
   8   to back up Bin Laden's fatwah.  They were not happy about Bin
   9   Laden's first fatwah from one and a half years ago because Bin
  10   Laden was all alone, but they don't say anything about the
  11   second fatwah.
  12            And what this statement right here tells you is that
  13   Odeh has an explicit conversation with Mustafa.  This again,
  14   remember, this is what he admits to the agent.  And the
  15   discussion is not about whether or not it is improper or
  16   incorrect or immoral to attack the Americans, the discussion
  17   is whether or not al Qaeda is ready to take on this fight so
  18   openly, so overtly.  And you bear that in mind as you see Odeh
  19   have additional meetings with the people who were part of this
  20   plot.
  21            The next enlargement is from page 11 of the report.
  22   Odeh stated that three months prior to his leaving Kenya he
  23   was told by Mustafa that Saleh got a message from Usama Bin
  24   Laden that people in al Qaeda must get ready to travel soon.
  25   Odeh assumed that it would also include his wife and child.
                                                                5483
   1   He was told to get his travel documents in order.  Later on,
   2   Odeh left his home in Witu from Mombasa to ask Saleh the
   3   details.  Saleh told Odeh that he had to be out of Kenya by
   4   August 6th, 1998.
   5            Odeh stated that for all the time he had been a
   6   member of al Qaeda, something that urgent had never happened
   7   to him before.  Odeh stated that he knew of the February 1998
   8   Bin Laden fatwah calling for all Islamic groups to make a
   9   front against the Americans.
  10            Now, this --
  11            THE COURT:  Excuse me.  Can you see the chart?
  12            A JUROR:  I can see.
  13            MR. KARAS:  Thank you, your Honor.
  14            If anybody can't see anything just, please let me
  15   know and we'll make sure it's visible.
  16            What you see here, ladies and gentlemen, is what it
  17   was we talked about earlier -- that Odeh has a meeting with
  18   Mustafa and Saleh, and what he tells the FBI is that people
  19   are supposed to get ready to travel soon.  And then he tells
  20   the FBI a little bit later that he is told -- and he's never
  21   heard this before -- everybody in al Qaeda has to get out on
  22   August 6th, 1998.
  23            That's the story that Odeh gives to the FBI, and what
  24   he says is that he thought he was going to be allowed to bring
  25   his family with him and he says nothing else.  And there's
                                                                5484
   1   nothing else in there about this conversation, about any
   2   inquiry as to why people were going to have to leave by
   3   August, 1998.  And this conversation about al Qaeda having to
   4   leave takes place in the context of discussions regarding the
   5   fatwah against Americans.
   6            Here, Odeh is going to describe another message.
   7   There was also a message, page 12, that Bin Laden had new
   8   plans to fight and Odeh had to travel to confer with Bin
   9   Laden.  Odeh stated that during conversations with Mustafa and
  10   Saleh, Mustafa stated he likes Kenya and would not do an
  11   operation in Kenya, whereas Saleh disliked Kenya and wanted to
  12   do an operation in Kenya.
  13            Here are two things about this comment that Odeh
  14   made.  The first is there is an explanation being given here
  15   that the reason that Odeh is going to have to travel to see
  16   Bin Laden is because Bin Laden had new plans to fight.  Again,
  17   put this in the context of the other conversations where Odeh
  18   and Mustafa are talking about the February 1998 fatwah, and
  19   then a different part of his statement where he says that the
  20   reason that people had to go to Afghanistan was because Bin
  21   Laden wanted people to come back to Afghanistan.
  22            It's a very vague explanation, and now the
  23   explanation that is given is that Bin Laden has new plans to
  24   fight and that Odeh has to travel to confer with Bin Laden
  25   about these plans.
                                                                5485
   1            MR. RICCO:  Your Honor, I object.  That is a
   2   mischaracterization of that exhibit.
   3            THE COURT:  Well, the jury has the exhibit before it
   4   and it's for the jurors to determine whether or not that is an
   5   accurate or inaccurate characterization.  It is a fair
   6   argument which counsel is permitted to make.
   7            MR. KARAS:  Thank you, your Honor.
   8            The other thing you know is that Odeh admits that
   9   there is some discussion of some possibility of an operation
  10   in Kenya, and you know that because he reported to the FBI
  11   that Mustafa said that he likes Kenya and he wouldn't do an
  12   operation there.  And Saleh, according to what Odeh said to
  13   the FBI, didn't like Kenya and he wanted to do an operation
  14   there.
  15            So Odeh, Mustafa and Saleh are talking about some
  16   idea of an operation in Kenya, and what Odeh tells the FBI is
  17   what Mustafa thinks and what Saleh thinks.  This is from page
  18   10, and now Odeh here is giving an explanation along the lines
  19   of the chronology.  Odeh stated that on August 1, 1998 Saleh
  20   ordered him to leave and told him to be out of Kenya by August
  21   6th, 1998.
  22            Odeh asked Mustafa Fadhil why they were leaving.
  23   Fadhil responded that there was an emergency and that there
  24   may be a need for them to return to Afghanistan.  Saleh gave
  25   Odeh $1,000 to travel to Karachi, Pakistan and that someone
                                                                5486
   1   would meet him there.  Odeh traveled with Fahad to Karachi.
   2   Odeh got caught by the Pakistani authorities and Fahad was
   3   able to get through.
   4            So what Odeh tells the FBI here is that Mustafa told
   5   him five days before they leave that they have to be out by
   6   August 6, and that when Odeh, according to what he told the
   7   FBI, inquired of Mustafa as to why they were leaving, what
   8   Mustafa Fadhil told them -- and remember, Mustafa is one of
   9   the people in this conversation about operations -- responded
  10   that there was an emergency and that there may be a need for
  11   them to return to Afghanistan, and then he gives the
  12   explanation about being given money and being told that they
  13   will be met by somebody in Pakistan.
  14            On page 11, Odeh then provided more detailed
  15   information concerning his final days in Nairobi.  Odeh
  16   arrived in Nairobi from Mombasa on August 4, 1998 at 7:30
  17   a.m., after traveling all night alone.  He then proceeded to
  18   the Hilltop Hotel, which was the prearranged meeting point.
  19            Saleh and Abdel Rahman were already there.  Odeh went
  20   to sleep until noontime.  When Odeh got up, he met Saleh and
  21   Harun as they were leaving.  They stated that they were going
  22   out to do a small job and would be right back and for Odeh to
  23   stay behind and rest.  Odeh indicated that the small job did
  24   not mean something trivial as shopping.  And again, here you
  25   see the dance with the truth.
                                                                5487
   1            Abdel Rahman, you may remember, is the person that
   2   Odeh, during the statement, said was his ohm trainer.  And the
   3   story that Odeh gives to the FBI is that he goes there by
   4   himself, he checks in, and there is a discussion with Saleh
   5   and Harun and all they want him to do is rest.  And they tell
   6   him they are going to go do a small job, and what Odeh told
   7   the FBI is what it didn't mean was something trivial as
   8   shopping.  That's what it didn't mean.
   9            We talked a little bit about this before.  Page 23,
  10   on August 6, 1998, while at the Hilltop Hotel, Saleh told Odeh
  11   that the people in Kandahar have already relocated in order to
  12   avoid retaliation from the Americans.  Odeh asked Saleh what
  13   he meant, to which Saleh referred to the possibility of the
  14   U.S. Navy sending in war planes or missiles to retaliate.
  15            Odeh stated that he did not pursue or follow up on
  16   Saleh's statement.  Remember, this is the Saleh that Odeh told
  17   the FBI that was involved in this conversation about going
  18   back to Afghanistan because Bin Laden wanted to have people
  19   come back as far back as March 1998 to get their affairs in
  20   order.  And now, on August 6, what Odeh tells the FBI is he is
  21   told by Saleh, he's told by Saleh that they are expecting the
  22   United States to retaliate, but what Odeh claims to the agent
  23   is he didn't ask why the United States was expected to
  24   retaliate.
  25            Ladies and gentlemen, as I mentioned to you earlier,
                                                                5488
   1   the full report is in evidence, and you should read the full
   2   report from beginning to end and go through precisely what it
   3   is that Odeh states.  And if you take exactly what it is that
   4   even he was willing to admit, by the time Odeh gets on that
   5   plane on the night of August 6, even he is willing to admit to
   6   meetings with other people in al Qaeda as far back as March of
   7   1998 and that there is discussion about the need to go to
   8   Afghanistan and that eventually he learns from these people
   9   that they're going to have to leave by a certain date, August
  10   6; that there's a big job, a big operation that's going to
  11   take place and that they are supposed to get a fake travel
  12   document and that he's instructed to go to Nairobi to meet at
  13   the Hilltop Hotel with others.
  14            And you know that he checks in to that hotel -- a
  15   Kenyan resident checks into that hotel -- using a fake
  16   passport; that he meets up with his bomb instructor at that
  17   hotel; that he knows that Saleh and Harun are going off to do
  18   a small job, which he knows isn't to do shopping; that he
  19   knows that they have to leave by August 6; that he knows the
  20   Americans are supposed to retaliate, that that is what the
  21   people in Kandahar are expecting; and then he gets on that
  22   plane with Fahad, who you know from other evidence is involved
  23   in the bombing in Dar es Salaam, and he goes on his way to
  24   Afghanistan.
  25            Now, ladies and gentlemen, common sense tells you
                                                                5489
   1   that there is much more to that story.  But we don't have to
   2   go down and figure out exactly how much Odeh left out, because
   3   when you look at the statement in conjunction with the other
   4   physical evidence, you see precisely what it is that makes
   5   Odeh guilty.
   6            As I mentioned to you, the first thing to think about
   7   is the flight:  Why it is that he leaves; when it is that he
   8   leaves, how it is that he leaves -- by going through the al
   9   Qaeda play book and getting the fake passport, shaving the
  10   beard, as they are trained to do so they don't draw suspicion,
  11   and get back to Afghanistan.
  12            But the other physical evidence, ladies and
  13   gentlemen, is also compelling.  Consider the clothes.
  14   Remember the Nike bag that Odeh was found with when he got
  15   caught in Pakistan, Government Exhibit 529.  And you remember
  16   Agent Whitworth described for you about how he went through
  17   the bag and he picked out some of the items based on how it
  18   was that they looked, that they were soiled, that they had an
  19   odor.  And I have in my hand here the shirt, which I think is
  20   Government Exhibit 535C, the jeans, and then what has been
  21   referred to as the sheet and so forth, 535B, 535C.
  22            And Agent Whitworth picked out those items from among
  23   the others that were in the bag and he also did a swabbing of
  24   the bag and the handles of the bag.  And he picked out a few
  25   other items -- a green jacket, a towel, he picked out some
                                                                5490
   1   glasses -- and he sent them back to the lab.
   2            And Kelly Mount came here and told you that she
   3   tested those items, all the items that Agent Whitworth picked
   4   out, and the t-shirt and the sheet and the jeans tested
   5   positive for TNT and PETN, two of the same types of explosives
   6   that you know from the other evidence were used to make the
   7   bomb that blew up the embassy in Nairobi.  You may remember
   8   the items that tested for TNT and PETN from the bomb factory
   9   at 43 Runda Estates.
  10            Now, not everything tested positive.  The swabbings
  11   of the bag, the swabbings from the handle of the bag, the
  12   vacuuming of the bag and the handles of the bag tested
  13   negative.  The flight magazine tested negative.  The green
  14   jacket tested negative.  And the question is, when did that
  15   TNT and PETN get on the clothes and how did it get on the
  16   clothes?
  17            What I submit to you, ladies and gentlemen, is that
  18   explosive residue got on Odeh's clothing before he got on that
  19   plane on August 6th, 1998.  And there's been a great deal of
  20   discussion about, a great deal of inquiry about the
  21   possibility of taint, about the possibility that when the
  22   agents took the bag and put the clothes on the table at that
  23   person's office at Kenyan CID headquarters, that there may
  24   have been taint; there may have been taint in Pakistan, that
  25   there may have been taint because people came back from the
                                                                5491
   1   crime scene with TNT and PETN residue on their clothing and
   2   that that's how those clothes tested positive.
   3            What I submit to you, ladies and gentlemen, is that's
   4   not what the evidence tells you.  Because, remember, not
   5   everything tested positive, not even the bag.  So if the
   6   agents are running around with TNT-laden hands and they're
   7   holding the bag, the bag should test positive, the inside of
   8   the bag should test positive, the other items that Agent
   9   Whitworth tested should test positive or selected should test
  10   positive, and they didn't.  It was the articles of clothing,
  11   precisely the kinds of things you would expect would get TNT
  12   when you are working around TNT and PETN.
  13            And remember what Dr. Lloyd said.  Dr. Lloyd said
  14   that Kelly Mount should have tested all of the other items in
  15   the bag, and what you heard about the other day by a
  16   stipulation is she did.  And they tested negative.
  17            And ask yourself about the wisdom of what Agent
  18   Whitworth did, the basis upon which he selected these items.
  19   Remember, they were soiled, they smelled, he didn't think they
  20   had been washed in a while, and three of the five or six items
  21   he picked out in fact tested positive for TNT and PETN.  And
  22   if the taint was as horrible as it was made out to be, then
  23   more things should have tested positive, and they didn't.
  24            And consider something else.  There's been a great
  25   deal of focus on the TNT.  There was one positive swabbing
                                                                5492
   1   from the crime scene in Nairobi for TNT, but there was not one
   2   positive swabbing at the crime scene for PETN and it is TNT
   3   and PETN that is found on Odeh's clothing.
   4            And it didn't come from the crime scene.  What it
   5   came from was Odeh working as part of this bomb plot, and it
   6   got on his clothes before he got on that flight.  Yes, as
   7   Kelly Mount and Dr. Lloyd told you, there is always the
   8   possibility of taint, but that doesn't mean, ladies and
   9   gentlemen, that from the evidence and from the circumstances
  10   you can't determine that those clothes tested positive before
  11   or would have tested positive before he left.
  12            That residue was on there beforehand.  And remember
  13   what Kelly Mount said:  TNT residue comes from TNT.  There's
  14   no question that that residue comes from the same explosive
  15   that was used to make the bomb in Nairobi.
  16            How did it get there?  Did the defendant work with
  17   the TNT in the bomb factory?  Did he work with it somewhere
  18   else?  Ladies and gentlemen, the evidence doesn't tell you
  19   exactly how it got there.  But what it does tell you, what it
  20   does tell you, when you look at all the evidence, is that it
  21   got there before he left.  That is powerful evidence, ladies
  22   and gentlemen, of the defendant Odeh's involvement in this
  23   bombing.
  24            Now, the other thing we talked about yesterday in our
  25   chronology which puts into context Odeh's views about
                                                                5493
   1   participating in an operation was the tape letter that he sent
   2   to his wife in September of 1997.  And remember we talked
   3   about this.  This is about a month after Harun is sending out
   4   the panic alarm:  The Americans are on to us.
   5            They're worried about Abu Fadhl al Makkee.  They're
   6   worried about what they saw, the arrest of the five people in
   7   Kenya that they blamed the American intelligence for.  It's
   8   Government Exhibit 300A-T.  And if we could go to the second
   9   page of that and if you look at the third paragraph -- we read
  10   this yesterday -- this is where Harun, the communications
  11   person, is writing to the high and wise command after he just
  12   gets done explaining that the Americans are on to us because
  13   they know about al Qaeda's involvement in Somalia, and he's
  14   going to explain a little bit later about how the Americans
  15   now have Abu Fadhl al Makkee cooperating with them.  Harun
  16   also says that "the Americans are pressuring the Kenyans to
  17   come after us as well."
  18            And Harun is the person, you may remember we went
  19   through in February, he's the one who keeps in touch with
  20   everybody in the East Africa cell to let everybody know, for
  21   example, that Wadih El Hage is in Afghanistan.  And in the
  22   earlier part of this letter, you remember that what Odeh says
  23   is Harun also gave good news.  Odeh talked about the bad news
  24   that was going to keep them in Somalia longer than they had
  25   planned, but at the bottom of this Harun also said "good news
                                                                5494
   1   about you" and so forth.
   2            So Harun is the person who is sharing whatever it is
   3   that the group considers a security threat that's going to
   4   keep them in Somalia, which is Harun's job.  And in this
   5   letter, in September of 1997, even before the February '98
   6   fatwah that Odeh admits to knowing about, at the end he says,
   7   "This time may have been theirs, but not all time will be
   8   theirs.  We will never allow that, and may God, the master of
   9   the universe (unintelligible) to respond 20-fold to one of
  10   theirs.  Thank God we are still alive and we are still capable
  11   of giving and resisting, but of course the matter will require
  12   time, preparation and thinking."
  13            "The matter will require time preparation and
  14   thinking."  And from the perspective of the East Africa cell
  15   of al Qaeda, where they have now come to believe that the
  16   Americans have figured out not only al Qaeda's involvement in
  17   Somalia, but that Kenya was the gateway, was the gateway
  18   according to what Harun had said, their concern is what the
  19   Americans have done to them.  And, "The matter will require
  20   time, preparation and thinking to respond 20-fold to one of
  21   theirs."
  22            That was found in Odeh's Witu house.  The other thing
  23   that was found in his house was the sketches that we talked
  24   about, the book, the Crown exercise book that had the sketch.
  25   And if we could pull up 704P-2, there you have it.  We looked
                                                                5495
   1   at this this morning.
   2            Of course, the question is, well, what are these
   3   sketches of?  If we pull up Government Exhibit 252, what you
   4   see on the right is one of the sketches, the sketch that was
   5   on the right-hand side of the Crown exercise book, and what
   6   you see on the left is a diagram of the vicinity of the
   7   American Embassy, the corner that the American Embassy is on.
   8   Remember, on the right of the diagram, the Arabic writing that
   9   is down there on the bottom, that says "south."  And that's
  10   the direction below the roundabout there, and the roundabout
  11   appears in both the diagram on the left and the diagram on the
  12   right.
  13            The road that runs north/south you can see in the
  14   diagram near the embassy, and the road that runs east/west you
  15   can see both in the diagram in the sketch on the right and the
  16   diagram on the left.  And you can see the square at the top
  17   and you can see the square, the red U.S. Embassy, and then of
  18   course there's the access road that is contained in the sketch
  19   on the right and the diagram on the left, the access road that
  20   leads to the back parking lot of the American Embassy where
  21   the truck bomb was driven by Azzam, accompanied by the
  22   defendant Al-'Owhali.
  23            That's a sketch that was sitting in Mohamed Odeh's
  24   residence in Witu, and the page next to that sketch we see in
  25   Government Exhibit 253.  What you have on the right is that
                                                                5496
   1   other page, and what you have on the left is a closeup diagram
   2   of the back part of the American Embassy, the ramp that leads
   3   down into the garage.  And what you see below the arrow which
   4   points to the embassy is some kind of a generator with the two
   5   circles on top of it, and then you look at the sketch on the
   6   right and you see part of an outline of that same object.
   7            Now, one other thing is you can see if you sort of
   8   look at it sideways, you can see the number 3 that's on top
   9   there, the number 3 that's on top of what I submit to you is a
  10   reflection of the bomb truck.  And you may remember that
  11   Mr. Miyagi, the person from Toyota who helped construct the
  12   Dyna, told you that the back, the truck bed of the Dyna was
  13   three meters long.
  14            And remember, Odeh is the person who has received the
  15   advanced training in explosives.  He is the person who has
  16   been taught about what type and how much of explosives to
  17   carry out an operation, and he is somebody who is an architect
  18   and an engineer.  And the drawing that comes out the back of
  19   that truck, ladies and gentlemen, that's the blast cone.  And
  20   what the diagram reflects is that the plan is to back the
  21   truck up against the embassy to maximize the damage to the
  22   embassy, back the truck up as close to the embassy as
  23   possible.
  24            And remember when I told you that when Odeh gave his
  25   statement, he tap danced with the truth but that in so doing
                                                                5497
   1   he would reveal his role, and now we have -- we'll get you the
   2   page number -- another enlargement.  Odeh was angry and
   3   disappointed at the performance of the al Qaeda leader Saleh.
   4   Odeh stated that if they couldn't get the pickup truck into
   5   the garage of the embassy, then the occupants of the truck
   6   must die trying.  They should not have left the truck there to
   7   explode and kill so many people.
   8            Odeh stated that nobody, even Bin Laden himself,
   9   could be happy with the results of the bombing.  Odeh stated
  10   that the operation conducted against Khobar was 100 times
  11   better than Nairobi.  Odeh further stated that the position of
  12   the pickup was a mistake, and the back of the truck where the
  13   explosives were held should be facing the embassy.
  14            Odeh stated that if the cab of the pickup was between
  15   the explosives and the embassy, at least 60 percent of the
  16   shock wave would be diverted.  Odeh stated that the errant
  17   shock wave hit the wrong building.  Odeh stated that he
  18   accepts responsibility for the bomb because he is part of the
  19   group and that it was a big mistake and Saleh blundered.  Odeh
  20   again stated that the truck had to back up to the embassy in
  21   order to prevent the cab from acting as a hindrance to the
  22   shock wave, therefore preventing the surrounding buildings
  23   from being pounded.
  24            Odeh is in a room with an FBI agent and with people
  25   from the Kenyan police, and he understands what the plan was
                                                                5498
   1   supposed to be because it's reflected in a sketch in his
   2   house.  The truck was supposed to back up into the embassy,
   3   and judging by what he believes happened, because of the
   4   incredible number of Kenyans who passed away, who died in that
   5   bombing, he believes that the people who carried out the plan
   6   that he was a part of made a mistake and that the truck must
   7   not have backed up into the embassy and that more Kenyans were
   8   killed than he wanted to be killed.
   9            He's not saying that he is unhappy about the
  10   Americans who were killed, what he is telling the FBI, what he
  11   is telling the FBI is that that was not the plan.  But the FBI
  12   doesn't have this diagram at the time.  Just like I said, when
  13   he gives the statement, the statement is partly true just as
  14   it sits there, and the complete truth comes when you compare
  15   that statement to this diagram.
  16            Now, there has been cross-examination about
  17   pressurization waves and how blast damage goes out at 360
  18   degree angles, and of course that is not reflected in the
  19   diagram.  That's what Agent Sachtleben talked to you about.
  20   That's what Agent West talked to you about.
  21            And what I suggest to you, what Agent Sachtleben
  22   suggests happens when a bomb goes off isn't the point any more
  23   than it's the point about whether or not Bin Laden's views are
  24   Islamically correct.  What matters is what kind of physics the
  25   defendant believes in, and the kind of physics the defendant
                                                                5499
   1   believes in is contained in that statement and reflected in
   2   that diagram, in that sketch.
   3            He believes that if you back the truck up, just like
   4   it's in the sketch, that the cab of the truck will block the
   5   blast damage and the glass damage won't go away from the
   6   embassy and kill other people near the embassy, that the blast
   7   damage will be directed towards the embassy.  That's what he
   8   believes.
   9            And Agent Sachtleben and Agent West are highly
  10   trained.  They have attended conferences, but they never went
  11   to the Sadeek Camp and they were never trained by Abdel Rahman
  12   in the al Qaeda camps like Odeh was.  Though their physics may
  13   not be right, the fact that he knows or believes what the
  14   physics was supposed to be and what he believes happened tells
  15   you exactly what the plan was supposed to be, the plan that
  16   Odeh participated in.
  17            And when you put it all together, when you put the
  18   sketches, both individually and collectively, and you compare
  19   them to the diagrams, and then you compare them to this tap
  20   dance, ladies and gentlemen, and you think about the letter in
  21   September of 1997, "time, preparation and thinking," and you
  22   think about how this is a man who was trained in al Qaeda, he
  23   swore to follow Islamically correct orders in al Qaeda, he was
  24   part of the East African cell that was the implementers for
  25   Bin Laden in East Africa, that he flies away the night before
                                                                5500
   1   with the others who carry out the bombing, that he checks into
   2   a hotel using a fake passport, the same one he's going to use
   3   to flee so that somebody knows where he was in Nairobi, and
   4   when you think about how he was even willing to admit a little
   5   bit about those meetings, meetings that tell you a tidbit
   6   about the kinds of conversations they were having, the
   7   possibility of an operation in Kenya at a time when they know
   8   that the number one target is America, you piece all of that
   9   together, ladies and gentlemen, and the only conclusion is
  10   that Odeh's role in this was not to drive the truck, it was
  11   not to throw the flash grenades, he was one of the people who
  12   was going to plan the operation.
  13            And by doing the tap dance, by saying those many
  14   Kenyans shouldn't have died, Odeh is saying exactly what the
  15   plan was supposed to be.  And if you go through the report and
  16   you read it from beginning to end, you will not see in there
  17   once a statement of remorse about the dead Americans.  That's
  18   not what's bothering Odeh.
  19            MR. RICCO:  Your Honor, I'm going to object and I
  20   would like to be heard.  I'll be heard at a break.
  21            THE COURT:  We'll take it up during the mid afternoon
  22   recess.
  23            MR. KARAS:  For your notes, ladies and gentlemen,
  24   this is from page 25 of the report.
  25            What is it that Odeh is talking about?  If you take a
                                                                5501
   1   look at Government Exhibit 806I, that's the damage that the
   2   cab of the truck was supposed to stop.  The cab of the truck
   3   was supposed to deflect the blast wave, the blast shock, the
   4   blast to make sure that maximum force was applied to the
   5   American Embassy and that the explosive damage would not
   6   extend to the area outside the embassy.  As we know from Agent
   7   Sachtleben and Agent West, actually it goes 360 degrees.  And
   8   when you put a bomb in a crowded city like that, that's what
   9   happens -- hundreds of people die.
  10            So, ladies and gentlemen, what the evidence shows is
  11   that Odeh's role was to be a planner, a technical advisor,
  12   somebody who aided and abetted in the criminal venture, in the
  13   venture, in the operation to bomb the American Embassy.  That
  14   was his role.  And the evidence of his role, as I said, is
  15   reflected in the statements, in his actions, in his flight, in
  16   the fake travel documents, in the September '97 letter, in his
  17   role, his membership in al Qaeda, in those sketches combined
  18   with his statements.  That was the role that Odeh served.
  19            The defendant Al-'Owhali, his role was different.
  20   The evidence of his role comes from his statements to what
  21   eyewitnesses told you they saw and from physical evidence.  As
  22   you know, ladies and gentlemen, Agent Gaudin testified that he
  23   interviewed Al-'Owhali on August 22nd, the day before he
  24   showed Al-'Owhali telephone records and he made Al-'Owhali
  25   aware of this bomb factory and Al-'Owhali had been picked out
                                                                5502
   1   in an identification lineup.
   2            On August 22, Al-'Owhali tells Agent Gaudin that if
   3   he is allowed to face his enemy, if he is given a guarantee
   4   that he will be sent to the United States to face his real
   5   enemy, which he says is America and not Kenya, then he will
   6   tell everything.
   7            And you heard the testimony about the agreement and
   8   the best efforts and it wasn't enough, and then Al-'Owhali
   9   decided it was enough and he was advised of his rights.  And
  10   in one swoop from beginning to end, as Al-'Owhali requested,
  11   without interruption, he laid it all out.
  12            He laid out the training we talked about.  He laid
  13   out the meeting with Bin Laden where he asked for the mission.
  14   He laid out knowing about the fatwahs being at the ABC News
  15   interview.  He laid outgoing to Yemen to get the passport in
  16   the fake name.  He laid out the video that he made.  He laid
  17   out arriving in Nairobi, meeting up with Harun, going to the
  18   bomb factory, going through pictures and diagrams of the
  19   American Embassy.
  20            He laid out what his role was, what he knew about the
  21   Dar es Salaam bombing in terms of how many people were going
  22   to carry it out, how it was going to be carried out, and then
  23   he laid out what he did.  He got out of the truck that
  24   morning, he threw the flash bangs and then he ran.  He laid
  25   all of that out in one statement in detail.
                                                                5503
   1            And one of the things that's interesting, ladies and
   2   gentlemen, and it relates to what we talked about this morning
   3   with respect to the conspiracy, Al-'Owhali laid out -- and he
   4   told Agent Gaudin there were some things he wasn't going to
   5   tell Agent Gaudin, but he laid out what it was he did.  And
   6   one of the things about conspiracies that we talked about is
   7   it's two or more people entering into an illegal agreement.
   8            Well, all of the people who were part of the
   9   conspiracy don't have to know one another to be part of the
  10   same conspiracy.  And Al-'Owhali didn't mention Mustafa
  11   Fadhil, the person who was involved in the Dar es Salaam
  12   bombing and who fled in early August 1998, he didn't mention
  13   Swedan, the person who got the bomb trucks in the two cities,
  14   but what he laid out was his role, and he laid it out in
  15   detail.  And he also described the phone calls to Yemen and
  16   going to the M.P. Shah Hospital and trying to get out of
  17   Nairobi before he was caught.
  18            By the way, he laid out the name of the organization
  19   that the video claimed credit for the bombing:  The Army of
  20   Liberating Islamic Holy Lands, very similar to the claims of
  21   responsibility that actually were sent to Islamic Army for the
  22   Liberation of the Holy Lands.
  23            There is other evidence that establishes Al-'Owhali's
  24   guilt and evidence which also corroborates precisely what it
  25   was he told Agent Gaudin.  Mr. Muwaka Mula, who worked at the
                                                                5504
   1   embassy, who was working at the embassy on the morning of
   2   August 7, he described for you seeing a truck coming towards
   3   the gate of the back embassy and he said that the passenger of
   4   the truck got out.  And he described what he sort of knew as
   5   headphones, it looked like sort of the headphones that were
   6   used at airports, and how he saw Al-'Owhali throw these, what
   7   he described as headphones, which are the flash bangs, towards
   8   the guard.  He saw the truck, and then when he realized
   9   something bad was going to happen, he ran.  But he said that
  10   he saw Al-'Owhali run in the other direction.
  11            And in this courtroom, Mr. Muwaka Mula, from that
  12   witness stand, identified the defendant Al-'Owhali as the
  13   person he saw getting out of the truck, and he told you that
  14   he identified him in an identification parade.
  15            And, ladies and gentlemen, if there's any suggestion
  16   that Mr. Muwaka Mula was coached on where Al-'Owhali was
  17   sitting, remember the testimony of Amina Rashid, the person
  18   what was at 15 Amani, the person who, when asked to identify
  19   Khalfan Khamis Mohamed, she stood up and she looked at you
  20   first, and then she went around the courtroom.  And she stared
  21   for a while over there and she didn't pick anybody out, but
  22   you saw by her reaction when asked, look around the courtroom
  23   and see if you find anybody, her first instinct was to look to
  24   the people closest to her.
  25            Mr. Muwaka Mula described what happened that morning
                                                                5505
   1   the way Al-'Owhali described it to Agent Gaudin, and he picked
   2   out the defendant Mohamed Al-'Owhali as being the person who
   3   got out of the truck and threw those grenades.
   4            Al-'Owhali checked in to the M.P. Shah Hospital, and
   5   you know that from Government Exhibit 550.  This is a card, a
   6   patient card, a patient receipt, if you will, M.P. Shah
   7   Hospital.  This is found on Al-'Owhali when he is arrested,
   8   and you see on the top there, M.P. Shah Hospital.  And the
   9   bottom you see 7 August, 1998, Khalid Saleh, the alias that
  10   Al-'Owhali was using at the time, the alias that's in that
  11   fake passport he got when he was in Yemen.
  12            And we won't display it, but Government Exhibit 579A
  13   and B are the patient records from the M.P. Shah Hospital, and
  14   the patient records show that Khalid Saleh was treated at M.P.
  15   Shah Hospital, just like Al-'Owhali told Agent Gaudin.
  16            The other thing that Al-'Owhali said was that before
  17   he left M.P. Shah, he realized he still had the bullets and
  18   the keys, the bullets that were supposed to go with the gun
  19   that he was supposed to use to try to get the truck closer to
  20   the embassy and the keys to the back of the truck that, in
  21   case for some reason the detonation device didn't work, he was
  22   supposed to use the keys to open up the back of the truck and
  23   throw the flash bangs in there to detonate the bomb.
  24            And you heard from Mr. Wangi, who was the custodian
  25   at M.P. Shah Hospital, working in the men's room that day, and
                                                                5506
   1   he's cleaning up above there and he said these things came
   2   down.  And then he said that what he did was he gave them to
   3   the security guard, Opiyo.  And you heard from him, and
   4   Mr. Opiyo identified 559, the bullets, and 558, the keys, the
   5   items that he got from Mr. Wangi on the 8th, just like
   6   Al-'Owhali described.
   7            And then you heard from Agent Casper from the FBI,
   8   and he was the person that did the analysis on the gun slide,
   9   Government Exhibit 838, that was found in the vicinity of the
  10   embassy bombing.  And Agent Sachtleben testified before you
  11   and he described for you how he could tell that that slide had
  12   been near the bomb itself because of the damage and how half
  13   the slide had been ripped off.
  14            And what Agent Casper told you is that first he was
  15   able to determine that that mangled slide was from a Baretta
  16   1934.  Then what he did was he compared it to a picture he
  17   had, 839-P, and then what he did was he looked at these
  18   bullets, Government Exhibit 559, and what he said was that
  19   these bullets were probably not originally made for the .9
  20   millimeter that was the Baretta, but that they had been
  21   shaved, they had been altered to fit a .9 millimeter.  So the
  22   bullets that Al-'Owhali had that he left at the M.P. Shah
  23   Hospital were altered to fit the gun that matches the slide
  24   that was found in the vicinity of the embassy.
  25            You saw, we went through this morning, the summary
                                                                5507
   1   charts for the phone records reflecting the calls both from 43
   2   Runda Estates, the bomb factory that Al-'Owhali talked about,
   3   the calls to his cohort in Yemen, and then the calls from some
   4   of the other pay phones in the vicinity of the Ramada Hotel
   5   afterwards, when Al-'Owhali was trying to escape and trying to
   6   flee because he doesn't have his passport and his money.  And
   7   then we also took a look at the summary chart that showed that
   8   at the same time the satellite phone in Afghanistan is calling
   9   the same number in Yemen, that the al Qaeda headquarters is
  10   trying to rescue Al-'Owhali, trying to extract him from Kenya
  11   and get him to Afghanistan before he is caught.
  12            The other person you heard from was Ismail Ali, and
  13   he's the person that ran, and runs, the money exchange place
  14   known as Dihab Shil.  And you saw Government Exhibit 580-15
  15   and then 580-117 -- excuse me, 115 and 117.  And this was the
  16   ledger, and there was much to do over the Whiteout and
  17   everything else.
  18            And then what you saw was Government Exhibit 580A,
  19   and you see, by the way, exactly what Al-'Owhali described.
  20   On the 11th of August, there's a wire transfer of $1,000 from
  21   Yemen.  The instructions are that the person who is supposed
  22   to pick up the money doesn't have I.D., which you know.  And
  23   there you see the receipt, the payment receipt.  You see on
  24   the right, 11/8/98, Khalid Salim Bin Rashid, $1,000, at the
  25   Dahab Shil office.  And there was the receipt that you heard
                                                                5508
   1   Ismail Ali testify to you about.
   2            Finally, ladies and gentlemen, there's the clothes
   3   that Al-'Owhali had.  Government Exhibits 552 to 556, the
   4   clothes he had when he was arrested on the 12th of August.
   5   They testified positive.  And you take a look at Government
   6   Exhibit 572, PETN and TNT.  PETN and TNT.
   7            Khalfan Khamis Mohamed, what's the evidence of his
   8   involvement in the Dar es Salaam bombing?  And now we're
   9   talking about Dar es Salaam.  The evidence comes from his
  10   statement to Agent Perkins, by witnesses who put him in places
  11   like the bomb factory and buying other or participating in
  12   other activities of a part of the plot and physical evidence.
  13            First, with respect to the statements, again, Khalfan
  14   Khamis Mohamed was advised of his rights, and what he said was
  15   there was no point in not telling the FBI, no point in not
  16   talking to them because from his perspective, since the FBI
  17   found them, they already knew everything.
  18            And you remember Agent Perkins said that twice when
  19   asked, "Where do you want to go?,"  Khalfan Khamis Mohamed
  20   said, "Take me to America.  Take me to America."  And he said
  21   that he wanted to make the point that he was not part of a
  22   bunch of crazy people who were wielding guns for no reason,
  23   that there was a purpose to what it is that they were doing.
  24   And he, too, gave a detailed explanation of what it was that
  25   he did.
                                                                5509
   1            He talked about the training.  He talked about when
   2   it was he met people like Fahad and Mustafa.  He talked about
   3   when it was that Mustafa came to him and approached him about
   4   the Jihad job in March of 1998.  He talked about how he bought
   5   the Suzuki was his role, the Suzuki that was used to transport
   6   the components.  How he rented the place at 213 Ilala, and you
   7   remember he signed pictures and copies of the documents that
   8   Agent Perkins showed him.
   9            He described the bomb; it was involving TNT, which
  10   you know is true.  He described, he gave the drawing of the
  11   detonator and the back of the bomb truck which we compared
  12   earlier to the other diagram.  He mentioned that the bomb
  13   included batteries, and we saw the battery casing that Julius
  14   Kisingo talked about, the welder.
  15            He talked about how he and the others loaded the bomb
  16   on the truck.  He talked about how they used that cell phone
  17   that you saw the records of that calls up to the Hilltop, and
  18   there were no calls until after about an hour before the
  19   bombing.  He talked about the roles of the others, Mustafa and
  20   Fahad and Sheik, as he knew him, the person who purchased the
  21   truck.
  22            He talked about how he and Ahmed, the suicide driver,
  23   got the truck out of the sand, how he delivered a package for
  24   Ahmed to Egypt, about how he got a fake visa, a visa in a fake
  25   name.  He talked about a Mr. Nico.  Remember there was a card
                                                                5510
   1   he had on him that was somebody he could go to if he needed
   2   fake travel documents.
   3            And he mentioned that he was happy that the bomb went
   4   off; that the fact that not Americans died was part of the
   5   business and Allah would take care of those who died.  He
   6   mentioned that Abdel Rahman came to wire the bomb with all
   7   confidence; that he got out of Tanzania the day after the
   8   bombing after he made efforts to clean out the bomb factory.
   9            Well, the independent evidence establishes his guilt
  10   and it corroborates precisely what it was that Khalfan Khamis
  11   Mohamed told Agent Perkins.  You know that he lived at 22
  12   Kidigalo Street with Mustafa Fadhil because the next door
  13   neighbor and the landlord told you.  You know that he rented
  14   the bomb factory because Mohamed Selemani, the broker, told
  15   you that.
  16            You know from Ahmed Salum, the brother of Khalfan
  17   Khamis' brother-in-law, that Khalfan Khamis was trying to
  18   discard some of the items from the bomb factory, 213 Ilala,
  19   and that he wanted to have other people come in and rent the
  20   place when they left.  You know from Abdallah Hamisi, Khalfan
  21   Khamis Mohamed's friend, that he got training in Afghanistan;
  22   that it was financed by Bin Laden and it was focussed on
  23   Jihad.  And finally, you heard from Zahran Nassar, Mauldin,
  24   the person whose name Khalfan Khamis Mohamed used in that
  25   passport to get the visa to flee to South Africa.
                                                                5511
   1            The physical evidence, Government Exhibit 1462, is a
   2   summary chart, and in addition to the other items we talked
   3   about at 15 Amani and 232 Kidugalo and at 213 Ilala, some of
   4   the items that Khalfan Khamis Mohamed had on him in South
   5   Africa tested positive.
   6            If we can go to the next.  Government Exhibit 1015 is
   7   a vaccination card in the name of Zahran Nassar, Mauldin.  And
   8   here's the passport I mentioned to you, Government Exhibit
   9   1018, another fake passport used, and the skull cap,
  10   Government Exhibit 1017, items that tested positive as
  11   reflected on the summary chart, 1462.
  12            That is the evidence, ladies and gentlemen, of the
  13   precise role of the three defendants who were charged with the
  14   respective bombings.  Now what I would like to do is just go
  15   through the counts briefly and lay out for you what some of
  16   the proof is that's unique to those specific counts.
  17            We can break here, your Honor.
  18            THE COURT:  All right, we'll take our mid afternoon
  19   break.
  20            (Jury not present)
  21            THE COURT:  Mr. Ricco, you had an objection?
  22            MR. RICCO:  Yes, your Honor.  I objected reluctantly
  23   because I believe what the government has done in connection
  24   with its argument against Mr. Odeh is that it has pandered to
  25   the patriotism of the Americans and the jury, consciously
                                                                5512
   1   disregarding the words that were used in the exhibit.
   2            Judge, as the Court is aware, Mr. Odeh is not an
   3   American citizen, and what the government has done with
   4   respect to the evidence against him has totally disregarded
   5   the testimony and the exhibit itself and made an argument to
   6   appeal to them as Americans.  And I will be specific with
   7   respect to that.
   8            Page 25, the exhibit that was in front of the jury --
   9   in fact, it's blown up right here, the Court can probably see
  10   it.
  11            THE COURT:  I can't, but I would like to.
  12            MR. RICCO:  Judge, you can use mine.
  13            THE COURT:  GS6, page?
  14            MR. RICCO:  25.
  15            THE COURT:  Page 25.
  16            MR. RICCO:  That would be, yes, that would be this
  17   exhibit that was displayed prominently before the jury.  And
  18   in this exhibit the government argued twice to the jury that
  19   Mr. Odeh was not concerned that Americans were killed, he was
  20   concerned only with the Kenyans.  And he made that argument
  21   twice.
  22            I objected the second time.  I objected because the
  23   document itself says that, and I quote, "They should not have
  24   left the truck there to explode and kill so many people."
  25   That says nothing about them being American or Kenyan.  Now
                                                                5513
   1   one --
   2            THE COURT:  But the consequences --
   3            I'm sorry.
   4            MR. RICCO:  Would one would think that's fair
   5   argument from them --
   6            THE COURT:  May I interrupt you for a moment so we
   7   can focus on this?
   8            MR. RICCO:  Yes, your Honor.
   9            THE COURT:  The context is, is it not, that if the
  10   truck had gotten into the embassy, the force of the explosion
  11   would have been to the embassy, which was the focal point for
  12   the Americans; that the consequence of that not occurring was
  13   that there was havoc in the surrounding area, in the
  14   neighborhood buildings and the streets where the Kenyans were.
  15   And so it seems to me that --
  16            MR. RICCO:  Judge, can I --
  17            THE COURT:  Excuse me.
  18            -- "they should not have left the truck there to
  19   explode and kill so many people," if the truck had been in the
  20   embassy, it would have killed many people, but they would have
  21   been different people.  Is that not a fair argument to be made
  22   from this exhibit?
  23            MR. RICCO:  I don't disagree with that, except now
  24   you have to compare that to the trial testimony.  And at page
  25   1748 --
                                                                5514
   1            THE COURT:  But this is an exhibit in evidence.
   2            MR. RICCO:  Your Honor, what I am suggesting to the
   3   Court is that what the government has done is disregarded the
   4   trial testimony to make that argument in front of the jury
   5   intentionally, because the trial testimony says as follows:
   6            "Did he ever indicate that he was concerned or upset
   7   that Americans in the embassy had been killed?"  Which was the
   8   argument made.  And the witness Anticev said at page 1747,
   9   "No."
  10            That was the last question asked on his direct
  11   testimony.
  12            The first question asked on cross-examination was:
  13   "Q.  Mr. Fitzgerald just asked you a question as to whether or not he expressed any concern that Americans were killed.  Isn't it a fact that Mr. Odeh didn't make any distinction between Americans or Kenyans?  He was upset that people were killed; 
  14   that correct?
  15   "A.  I don't know what he was thinking when he made that
  16   statement.
  17   "Q.  Made what statement?  That he was concerned that many
  18   people were killed?
  19   "A.  I truly believe that he was concerned that people were
  20   killed, innocent people were killed.
  21   "Q.  So my question is a simple question:  He never made a
  22   distinction to you that he was concerned because they were
  23   only Kenyans and not Americans, did he?  That was never said
  24   by him, was it?
  25   "A.  No.  He never specifically said that he broke it down,
                                                                5515
   1   that I'm upset Americans are killed and Americans are or are
   2   not."
   3            And the government made just the opposite argument to
   4   the jury.  They did it here this afternoon.  They said it
   5   twice, in the face of the testimony to the contrary.  And
   6   because of that, I ask for a mistrial on behalf of Mr. Odeh
   7   and, if not, I ask for an instruction from the Court that is
   8   the testimony in this case that controls and not the argument
   9   of the government about that testimony.
  10            THE COURT:  Well, the last point is true, certainly,
  11   without having any question that it's the --
  12            MR. RICCO:  And the government also said that
  13   Mr. Odeh made that statement, that Americans were killed
  14   without any remorse, and that's nowhere to be found in the
  15   record.
  16            MR. KARAS:  Your Honor, the charge is that the
  17   defendant sought to kill Americans, so there can't be any
  18   pandering to the jury that the evidence shows that the
  19   defendant tried to kill Americans.
  20            The statement that Mohamed Odeh makes here about why
  21   he thinks the bomb went off, it may or may not be that Agent
  22   Anticev didn't think that Odeh distinguished between Americans
  23   or non-Americans in that statement, but elsewhere in the
  24   report, which is in evidence as Government Exhibit 6, Odeh was
  25   asked a series of hypothetical questions and one of the
                                                                5516
   1   hypothetical questions he was asked is whether or not he could
   2   participate in an operation against the U.S. building in
   3   Kenyans if no Kenyans could be killed, and he said no, because
   4   he likes Kenyans and Kenya.  Odeh was then asked if he would
   5   participate in an operation to bomb a U.S. building outside of
   6   Kenya in a place such as Tanzania if only Americans were
   7   killed.  He stated would consider it if Islamically correct.
   8            So elsewhere in the statement, your Honor, and I
   9   think this is argument, Odeh is willing to make a distinction
  10   between where it is he might carry an operation out against
  11   Americans and where it is he might not.  And he seems much
  12   more willing to do it not because Americans may or may not get
  13   killed, but because of who else might be killed in the
  14   operation.
  15            And what we argue is that in combination with the
  16   statement that Mr. Ricco just focused on combined with the
  17   diagram expresses how it is that Odeh wanted the operation to
  18   be carried out.
  19            THE COURT:  The objection is denied.  The motion for
  20   a mistrial is denied.
  21            I'm debating whether it would be helpful to remind
  22   the jury that when they deliberate they will have physically a
  23   copy of the indictment and of the charge and a verdict form.
  24   I am concerned that when you start getting into 180 counts, I
  25   think I will remind them of that so that we don't have anyone
                                                                5517
   1   writing down the names of all of the victims.
   2            We'll take a five-minute recess.
   3            (Recess)
   4
   5            (Continued on next page)
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  14
  15
  16
  17
  18
  19
  20
  21
  22
  23
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  25
                                                                5518
   1            THE COURT:  Mr. Ruhnke, I take it that your letter
   2   with respect to Brady and possible later phase of this case
   3   should await a response from the government.
   4            MR. RUHNKE:  I should think the government would want
   5   to respond, your Honor.
   6            MR. GARCIA:  Yes, your Honor.
   7            MR. COHN:  Your Honor, the record should reflect that
   8   we join in that.
   9            THE COURT:  Mr. Garcia, when can I expect a response
  10   from the government?
  11            MR. GARCIA:  Friday?  Thank you.
  12            THE COURT:  I am told there is a juror on the
  13   telephone and they will be a moment or two.
  14            (Jury present)
  15            THE COURT:  Ladies and gentlemen, I want to remind
  16   you that when you begin your deliberations, throughout your
  17   deliberations, you will have with you three documents.  You
  18   will have with you a copy of the indictment.  You will have a
  19   copy of the court's instructions.  You will have that orally
  20   but you will also have it in writing.  And you will also have
  21   a verdict form which will tell you exactly what questions you
  22   have to answer.  So that there are a great many counts and a
  23   great many issues, but understand that you will have those
  24   guides during your deliberations.
  25            MR. KARAS:  We left off, we were about to get into
                                                                5519
   1   the actual counts themselves in the indictment.  What you will
   2   see is that the counts are similar in terms of what crimes
   3   they charge.  There is one charge that may relate to the
   4   Nairobi bombing and then the equivalent charge that relates to
   5   the Dar es Salaam bombing.  For example, Counts 5 and 6 charge
   6   the defendants Odeh and Al-'Owhali in connection with the
   7   Nairobi bombing of using an explosive to damage or destroy a
   8   US government building, and then Count 6 charges the defendant
   9   Khalfan Khamis Mohamed with the same conduct in connection
  10   with the Dar es Salaam bombing.  The elements of that crime
  11   are the use of an explosive, and we have talked about that,
  12   and then whether or not the subject, the target of the attack
  13   was a US government facility.  Government's Exhibit 41 is a
  14   stipulation that relates to Government's Exhibit 713, which is
  15   the lease to the United States government for the property in
  16   Nairobi.  And Government's Exhibit 57 is a stipulation that
  17   relates to the lease for the Dar es Salaam embassy,
  18   Government's Exhibit 1106.  So the evidence is that each of
  19   the embassies was property of the United States.
  20            Counts 7 and 8 deal with the use of a weapon of mass
  21   destruction against United States nationals.  Count 7 deals
  22   with Nairobi and Count 8 deals with Dar es Salaam.  The issue
  23   there is the use of a weapon of mass destruction, and Judge
  24   Sand will give you an instruction that defines what that term
  25   means, but it basically means a bomb.  Again, the count
                                                                5520
   1   involves either US nationals or US property.  There is a
   2   stipulation that we read to you and that we will discuss a
   3   little bit more about the nationality of some of the victims,
   4   and of course the leases that we mentioned earlier.
   5            Counts 9 through 232 are the individual murder
   6   counts.  They reflect the murder of each victim.  Counts 9 to
   7   221 are the murder victims in Nairobi, and Counts 222 to 232
   8   are the murder counts in Dar es Salaam.  So there, the
   9   government is required to prove beyond a reasonable doubt that
  10   each defendant charged killed a victim as charged, and that
  11   the victim was killed during the course of an attack on
  12   federal property, and of course that the defendant acted
  13   intentionally and so forth.
  14            The victims for the Nairobi bombing and the cause of
  15   death is discussed in Government's Exhibit 39, which is the
  16   stipulation that lists all the victims in Nairobi, and you
  17   will see that that list tracks each count in the indictment,
  18   and the stipulation is that the cause of death was as a result
  19   of the attack on the embassy in Nairobi.  So each one of those
  20   counts is proven up by the stipulation.  And there is a
  21   stipulation that reflects the 11 victims in Dar es Salaam,
  22   Government's Exhibit 54.
  23            Counts 233 through 273 charge, again, individual
  24   murder counts for each of the US government employees that
  25   were killed in Nairobi, and there the stipulation is
                                                                5521
   1   Government's Exhibit 42, which lists the US government
   2   employees that were killed as a result of the attack in
   3   Nairobi, and the stipulation for the employees that were
   4   killed in Dar es Salaam, which are Counts 275 and 276, that
   5   stipulation is marked as Government's Exhibit 55.
   6            Throughout these counts the government must prove
   7   beyond a reasonable doubt that the defendants acted
   8   intentionally and unlawfully, and sometimes there is a
   9   separate requirement that there be proof that the defendants
  10   acted out of premeditation.  I submit to you that the evidence
  11   does show premeditation in connection with all the murders in
  12   Nairobi and Dar es Salaam.
  13            Count 274 charges attempted murder of US government
  14   employees in Nairobi.  Count 277 charges attempted murder of
  15   US government employees in Dar es Salaam.  The same evidence
  16   that shows that each of the defendants charged respectively
  17   with the two different bombings, that they bombed the
  18   embassies in Nairobi in the case of Odeh and Al-'Owhali and
  19   Dar es Salaam in the case of Khalfan Khamis Mohamed, was an
  20   attempt to murder the employees who worked at the US
  21   embassies.  We talked a little bit earlier about what
  22   Al-'Owhali and Khalfan Khamis Mohamed said in their statements
  23   in connection with what they felt the reasons and their
  24   obligations were regarding United States government employees.
  25            Counts 278 and 279 charge the defendants Odeh and
                                                                5522
   1   Al-'Owhali with murder of internationally protected persons.
   2   There is a stipulation that lists the victims who are
   3   internationally protected persons.  That is something that is
   4   defined by both the applicable statutes and treaties, and that
   5   is Government's Exhibit 40, which lists the persons who were
   6   internationally protected persons that were killed of the
   7   bombing in Nairobi.
   8            Count 280 charges Khalfan Khamis Mohamed with the
   9   attempted murder -- excuse me.  Count 280 is the attempted
  10   murder of internationally protected persons in Nairobi and 281
  11   is the murder of internationally protected persons in Dar es
  12   Salaam.  Among the people who are internationally protected
  13   persons are ambassadors, for example, and there are other
  14   ranking diplomats.
  15            Count 282 charges the defendants Odeh, Al-'Owhali and
  16   Khalfan Khamis Mohamed with the use and carrying of an
  17   explosive, and what it specifically charges is the use and
  18   carrying of an explosive in connection with Count 1, the
  19   conspiracy to carry nationals, in furtherance of another
  20   violent felony, and the violent felony referenced in 282 is
  21   the first count that I mentioned, the conspiracy to murder US
  22   nationals.  The violence charged in that conspiracy count is
  23   the conspiracy to murder United States nationals.  The
  24   explosive, of course, is the bomb that was used in connection
  25   with each of the bombings in Nairobi and Dar es Salaam.
                                                                5523
   1            Count 283 charges the use and carrying of a
   2   destructive device in connection with the Nairobi bombing.  So
   3   that includes the defendants Odeh and Al-'Owhali.  Count 284
   4   charges the same, use and carrying of a destructive device in
   5   connection with the Dar es Salaam bombing.  In this case, what
   6   these relate to is Count 283.  Because it relates only to the
   7   Nairobi bombing it incorporates Count 5, which is the bombing
   8   of the embassy in Nairobi.  That is the charge that is
   9   contained in Count 5.
  10            Count 284 charges Khalfan Khamis Mohamed with using
  11   and carrying a destructive device, a bomb, in connection with
  12   Count 6, which is the bombing of the American Embassy in Dar
  13   es Salaam.  As Judge Sand mentioned, you will have the
  14   indictment and you will see that in order to find each of the
  15   defendants guilty of those two charges you would first have to
  16   find the defendants guilty of participating in the bombing as
  17   charged in Count 5 with respect to Nairobi and Count 6 with
  18   respect to Dar es Salaam.
  19            Lastly, ladies and gentlemen, we get to the perjury
  20   counts.  The perjury counts go from 285 to Count 302.  There
  21   the government must prove beyond a reasonable doubt first that
  22   the defendant was under oath, and in this Government's Exhibit
  23   189 is a stipulation that Wadih El Hage was under oath when he
  24   testified in the grand jury in both 1997 and 1998; second,
  25   that the testimony was false as set forth in the indictment,
                                                                5524
   1   and we will go through that in a moment; third, the matters to
   2   which the testimony was false was material to the grand jury's
   3   investigation, and we will talk about that as well; and that
   4   the false testimony was given knowingly and intentionally,
   5   that is, that it was not a mistake.
   6            With respect to materiality, there is a stipulation,
   7   Government's Exhibit 172, that describes for you in detail,
   8   and I invite you to look at it during your deliberations, as
   9   to what the grand jury was focused on in the investigation.  I
  10   will give you some of the things that are described in that
  11   stipulation:  That as of September 1997, the grand jury's
  12   investigation was focused on, among other things, the
  13   structure and operational status of Al Qaeda, the targets of
  14   Al Qaeda's terrorist activities, including American interests,
  15   the relationship between Wadih El Hage and others in the Al
  16   Qaeda organization, including Usama Bin Laden, Abu Ubaidah al
  17   Banshiri and Abu Hafs; the nature and timing of various
  18   statements made by Usama Bin Laden, both public and private;
  19   the identities and code names, aliases and whereabouts of Al
  20   Qaeda members and associates; the nature and extent of Wadih
  21   El Hage's contacts with Bin Laden, Khalid al Fawwaz, Ali
  22   Mohamed and Abu Ubaidah; the role played by Usama Bin Laden
  23   and the role of associates in Al Qaeda in 1993; the nature of
  24   the work conducted by Fazhul Abdallah Mohamed -- that's
  25   Harun's real name -- Ali Mohamed Khalid al Fawwaz or Usama Bin
                                                                5525
   1   Laden, as well as the identities of the persons with whom
   2   Wadih El Hage met during trips to Afghanistan and Pakistan in
   3   1997.
   4            There is a separate listing for what it was that was
   5   material to the grand jury's investigation as to additional
   6   items that the grand jury was focused on in the time of 1997,
   7   and this includes, for example, the February 1998 fatwah
   8   issued by Bin Laden, subsequent television threats issued by
   9   Bin Laden in 1998, the bombings in Dar es Salaam and in
  10   Nairobi on August 7, the meaning of certain documents
  11   recovered in searches conducted in Nairobi in August 1998, and
  12   then there is a listing of some of the particular individuals,
  13   using Nawawi, known as Ali Sulieman, Ihab Ali, the nature of
  14   the relationship between Wadih El Hage and Mohamed Odeh, the
  15   relationship between Wadih El Hage and Khalid al Fawwaz, the
  16   relationship between Wadih El Hage and Fazul Abdallah Mohamed.
  17            What I am going to do, ladies and gentlemen, we are
  18   going to go through these counts not in numerical order but in
  19   the order of the subjects that they occur.  Counts 285 and
  20   291 -- 285 deals with 1997 and Count 291 deals with 1998
  21   regarding Wadih El Hage's relationship with Bin Laden.  For
  22   example, 285 charges that on September 24, 1997, Wadih El
  23   Hage, having taken an oath to testify, made false material
  24   declarations and then gave the following underlined testimony.
  25   This is an enlargement of how the indictment reads.  Each one
                                                                5526
   1   of these letters here in parentheses is a specification of
   2   what it is that is alleged to be false, what it is that Wadih
   3   El Hage is alleged to have lied about, intentionally.  You can
   4   see, for example, D, did you get any messages from Usama Bin
   5   Laden on either trip when you went back to Pakistan in 1997,
   6   and the underlying answer is what you focus on in determining
   7   whether or not the answer is false and whether or not Wadih El
   8   Hage lied as is alleged in the indictment.
   9            What I will do is, Count 285 -- I realize that not
  10   all of you can see this at once.  I will go through them and
  11   then we will go through the evidence, and we have on the
  12   screen what we will display for you is just for exhibition
  13   purposes only, the exhibits that are in evidence that
  14   establish how it is that the government has proved beyond a
  15   reasonable doubt that El Hage lied in connection with this
  16   count.
  17            Count 285 -- I will put 291 down here, and I will
  18   read it out and we will talk about it.  Count 285, which is
  19   the testimony on September 2, the question is when is the last
  20   time you saw Usama Bin Laden in person?  Answer, 1994.  Then
  21   question, under oath your testimony is that you have not seen
  22   Usama Bin Laden in 1995, 1996 or 1997, is that correct?
  23   Answer, yes.
  24            Then if you go down to specification D.  Did you get
  25   any messages from Usama Bin Laden on either trip when you went
                                                                5527
   1   back to Pakistan in 1997?  Answer, no, no messages.  Question,
   2   regarding 1994, that is the last time you have seen him?
   3   Answer, yes.  Then you see specification number 6:  I haven't
   4   seen him anywhere after I left Sudan -- referring to Bin
   5   Laden.  And then you see down in specification G, and you have
   6   not told anyone that you have seen Usama Bin Laden anywhere in
   7   the world in 1995, 1996 or 1997?  Answer, yes.
   8            There are similar answers that are given in Count 291
   9   relating to the last time as to when it is that Wadih El Hage
  10   saw Usama Bin Laden.
  11            How is it that you know beyond a reasonable doubt
  12   that those answers were intentionally false?  If you take a
  13   look at Government's Exhibit 210A-T, this is a conversation,
  14   an intercepted conversation on February 4, 1997 -- 210A-T?  If
  15   we go to the third page and if we go about halfway down, this
  16   is a telephone conversation involving Wadih El Hage and Harun,
  17   and El Hage says yeah, the telephone you gave me the other day
  18   is always closed.  I get recorded messages that says it is off
  19   now.  And Harun says until now I got tired, I tried but it
  20   would not.  And El Hage says anyhow in case they call, in case
  21   they call me tell them this, the Executive House, that's it,
  22   and then he gives you a number.
  23            We reviewed this a little bit earlier and showed you
  24   Government's Exhibit 646, which was the document from the
  25   hotel, the Executive Guesthouse that showed that that was in
                                                                5528
   1   Peshawar.  We looked at the map.  Peshawar is the border town
   2   in Pakistan.  The telephone you gave me is always closed.  You
   3   may remember the records for the satellite phone show no calls
   4   for this time period.  So Usama El Hage is trying to get hold
   5   of Bin Laden and he is trying to make sure that Harun gets a
   6   message back to Bin Laden, and this is during the February
   7   1997 trip, of course.
   8            If you go to Government's Exhibit 211A-T, about two
   9   thirds of the way down on page 2, this is a conversation on
  10   February 7, and this is Harun talking to Mustafa Fadhl, and
  11   Harun says, about a few days ago your friend over there had
  12   called, the big one.  He said your friend had arrived.  He is
  13   with me now.  Mustafa says yeah, whatever God intends.  Then
  14   Harun says yes, yes, he called especially for that purpose.
  15   He said don't worry and I didn't take him from the hotel.  So
  16   this is Harun talking again about El Hage's trip in Pakistan
  17   in February 1997.
  18            Then you see the documents that show exactly what it
  19   is that El Hage did when he went to Pakistan in February 1997,
  20   and the first evidence of that is Government's Exhibit
  21   310-74AT, and this is one of the documents found on one of the
  22   disks that Agent Coleman seized from El Hage's house in August
  23   1997.  You see in the very first paragraph when Abdel Sabbour
  24   arrived on 22/2/1997, he contacted Khaled directly and asked
  25   him to come to Nairobi.  When he arrived and met with Abdel
                                                                5529
   1   Sabbour, he informed him about the status of the young men and
   2   the Hajj and that they were fine and he received from him the
   3   trusts, and he informed him also that the Hajj has a new
   4   policy pertaining to the region.  Abdel Sabbour is Wadih El
   5   Hage.  We know he got back in February 1997.  We saw the
   6   stamps in his passport.  And you see the document labeled top
   7   secret, for Al Qaeda only, describes a meeting between Abdel
   8   Sabbour, Wadih El Hage and Bin Laden, known as the Hajj, and
   9   that Bin Laden gave Wadih El Hage the new policy that we saw
  10   this document and other documents describe.
  11            Then in Government's Exhibit 632B, this is a letter
  12   from Wadih El Hage to Abu Khadija.  You remember this is the
  13   Abu Khadija in Germany, not the other one.  El Hage says I
  14   went to visit Hajj and he sends his regards, the people that
  15   work with him send their regards.  As a matter of fact, their
  16   situation over there is very good.  They are very good on the
  17   contrary of what we read or hear in the newspapers and
  18   magazines.  The owners of the land are cooperating with them
  19   and they welcome them.  I shall send a report about the latest
  20   situation in the few days, God willing.  The report he is
  21   talking about is the report regarding the Taliban that was
  22   issued under the name of Abu Hafs.  Government's Exhibit
  23   310-BT is a document pulled from El Hage's computer.  That is
  24   the document that has Abu Hafs, the military commander, the
  25   chief lieutenant, and Government's Exhibit 245-T, which is a
                                                                5530
   1   translation of the report without Abu Hafs at the bottom.
   2   That is the report that Wadih El Hage refers that he is
   3   sending to Abu Khadija.  Remember, this is the same Abu
   4   Khadija that speaks to Harun in August 1997 about being scared
   5   about Abu al-Fadl al Makkee cooperating with the Americans.
   6   So El Hage is talking with another person about his trip to
   7   see Bin Laden, that the landowners, the Taliban are treating
   8   them very well, them being Bin Laden and the other members of
   9   the high and wise command, and he will send a report which you
  10   know comes from Abu Hafs.
  11            Government's Exhibit 615A-C is a fax on February 26,
  12   1997, and this is from Ihab Ali, Nawawi.  I have here
  13   Government's Exhibit 4, I think it is 11 or 12.  This is Ihab
  14   Ali.  Ihab Ali writes, if we highlight that after the first
  15   asterisk there, in reply to the DR's request, please inform
  16   him that I am always ready to help out, however, and then he
  17   goes on down, and he says I'd like to know what would be
  18   expected of me immediately after graduation, please let him
  19   tell you, in parentheses, in detail if possible, in a letter
  20   and you can thus send it to me.  Please understand, I cannot
  21   overstress this enough.  I must have continuous hands-on
  22   experience.  February 26, 1997 is right after El Hage gets
  23   back from his trip to Pakistan and the DR is a reference to
  24   Bin Laden, the director.  What Ihab Ali is saying is that he
  25   is happy to do what he is asked but he has some conditions.
                                                                5531
   1            He goes on to say on the next page, at any rate, I'm
   2   glad to hear that the DR, director, is doing well and secure,
   3   please give him my Salaam, as well as everyone far and near.
   4   PS.  Is there any way you can find out, and he goes on to
   5   describe about somebody else.  Then what he says is, please be
   6   advised, he is talking about a trip, and I will be waiting
   7   your slash director's supply before then.  You see subsequent
   8   communication between El Hage and Nawawi, where they are
   9   talking about Nawawi's concern about how the DR is doing in
  10   light of what the Americans are doing with respect to Bin
  11   Laden.
  12            Government's Exhibit 219A-T.  That is a conversation,
  13   July 15, 1997.  Wadih El Hage is getting ready to go on his
  14   next trip to see Bin Laden, and on the fourth page, this is El
  15   Hage talking to an unidentified male, the UM there.  El Hage
  16   is talking about, down towards the bottom -- above that, all
  17   of them are sitting before me, it's the story time, and down
  18   the third line from the bottom, El Hage says listen, I will be
  19   going to see El Hage after two days.  The unidentified male
  20   says really?  El Hage says yes, with God's will.
  21            What is instructive about this conversation, Wadih El
  22   Hage changes the topic of the conversation.  He says I'm going
  23   to say al Hajj.  The unidentified male doesn't say who?  Who's
  24   al Hajj.  He says really?  El Hage says yes, with God's will.
  25   The next half, the unidentified male knows exactly what he is
                                                                5532
   1   talking about.  Well, are you going to stay long or what?  Al
   2   Hajj, H-A-J-J, is a reference to Bin Laden that you see
   3   repeatedly, both from Wadih El Hage and others working around
   4   Wadih El Hage.  That is one of the names that the group uses
   5   to call Bin Laden.  A good example of that, at the bottom of
   6   page 3 of Government's Exhibit 300A-T.  This is, for lack of a
   7   better phrase, the Harun report, where he is talking about the
   8   security situation in the group.  Down at the bottom of that
   9   page, this is where Harun is talking about how he didn't burn
  10   the files because he didn't have authority since Wadih El Hage
  11   wasn't around.  He says, we did not burn them since they
  12   belong to engineer Ali Sabbour, who may have a different
  13   opinion.  He arrived to the Hajj and he is on his way to us
  14   and he will probably arrive next week, God willing.
  15            So there you have Wadih El Hage's deputy, Harun, is
  16   communicating to the high and wise command, remember, and he
  17   is explaining why it is they didn't burn the files, because
  18   Wadih El Hage is with the Hajj, Bin Laden.  So clearly when
  19   Wadih El Hage tells the grand jury under owed oath that he did
  20   not have contact with Usama Bin Laden from 1994 to 1997, that
  21   is clearly not true.  It's a lie.
  22            Government's Exhibit 621C-113.  I have made reference
  23   to the telephone records, but just to show you an example,
  24   this is the mobile phone number that we have talked about, the
  25   712, 02219.  This is a page from a bill that discusses
                                                                5533
   1   international calls made on 20 April 1997, and you see a call
   2   made from the mobile phone that Wadih El Hage uses.  This is
   3   the mobile phone, by the way, that Harun told Mustafa Mohamed
   4   Odeh couldn't use.  Then a number, 682505341.  It says Indy
   5   ship.  You remember that was the Indian Ocean region, and you
   6   have the mobile phone calling the satellite that we have all
   7   talked about.
   8            Government's Exhibit 594 is the calls used by the
   9   satellite.  If you look at the O'Gara records, that is a call
  10   to the company that issued the phone.  The very first
  11   nonUnited States call that is made on the satellite phone is
  12   to 411, Khalid al Fawwaz's number.  If you go three more calls
  13   down, you see the next three numbers are to the 820067 number
  14   in Kenya, which is Wadih El Hage's number at Fedha Estates,
  15   one of the very first calls made from the Bin Laden
  16   headquarters phone to El Hage.  There are additional calls, if
  17   you look at 594-3, a call on January 30, and there is another
  18   call on April 20 which actually lines up with the call we just
  19   looked at from the mobile call back to the satellite phone.
  20            Government's Exhibit, if we could, 358.  This is a
  21   letter that is found in the California home of Ali Mohamed,
  22   and we talked about some of the other documents that were
  23   found off the computer at Ali Mohamed's house.  Here is a
  24   letter written to dear Haydara, which is one of the aliases in
  25   the coconspirator list.  Received your letter and was glad to
                                                                5534
   1   hear from you.  However, your letter was sent to me here as I
   2   am presently staying in Alexandria.  I have been staying here
   3   during the past two months.  I tried several times to contact
   4   you and only after several letters do I realize that you have
   5   changed address.  At any rate, please give my best regards to
   6   your friend O Sam and his copartner and tell him, Sam, that I
   7   apologize that I couldn't finish what he requested of me --
   8   the letter was explaining, in admittedly bad code, that O Sam,
   9   referring to Abu Hafs, for personal reasons persons he
  10   couldn't do it.  He goes on to say as far as Mr. Wadih, he is
  11   presently staying in Texas.  He filled me in on his
  12   social/business life.  He to told me that after having met
  13   with and finishing a business deal with Mr. Sam and while
  14   returning home he was contacted by one of the opposition
  15   company called, another coded reference here, food and
  16   beverage industry, FBI you can see of course bolded, based in
  17   the US.  He was given an extensive interview.  This interview
  18   was given in East Africa, after which he decided to return
  19   home and settle this Texas.  There was more of a discussion
  20   about how his phone line wasn't working presently.  Nawawi is
  21   talking to Ali Mohamed in this letter, reflecting the fact
  22   that he had been in touch with Wadih El Hage.  There is no
  23   even reference to El Hage here.  There is O Sam and his friend
  24   Abu Hafs, and that is found in, of all places, California.
  25            If you go to the next page, then there is basically a
                                                                5535
   1   reference to contact numbers, and of course the other thing
   2   about this letter is, it tells you what we talked about
   3   yesterday, that El Hage is making sure people know that the
   4   Americans had come to him.  This message is being passed on
   5   from Ihab Ali to Ali Mohamed.
   6            So that covers, ladies and gentlemen, the Counts 285
   7   and 291.  One thing, by the way, the last specification --
   8   there are a couple of things.  First, there is not only
   9   whether or not El Hage had any contact with Bin Laden but also
  10   whether or not he told anybody that he had contact with Bin
  11   Laden, and he said no, and also whether or not he passed any
  12   messages to Bin Laden, and he said no, and you know from the
  13   new policy that all those answers were lies.
  14            Now we get to -- we are still on the general subject
  15   of Bin Laden, Count 300.  One question:  Have you ever heard
  16   him called the Hajj?  Have you ever heard of Usama Bin Laden
  17   referred to as the Hajj?  Answer, no.
  18            You know that this isn't true because first of all,
  19   ladies and gentlemen, in Government's Exhibit 400 -- this
  20   count covers the testimony in 1998.  If we go back to
  21   Government's Exhibit 400 at page 158, this is Wadih El Hage's
  22   testimony before the grand jury in 1997.  Question, is Usama
  23   Bin Laden sometimes referred to as the Hajj?  Answer,
  24   sometimes.  Then later on, the question, what other names is
  25   he known by besides Usama Bin Laden and the Hajj?  Answer, the
                                                                5536
   1   big boss.  Which you saw in some of the correspondence and the
   2   phone conversations.  So Wadih El Hage, having forgotten what
   3   he said before, no, I have never heard of him called the Hajj.
   4   So we know from some of the documents and conversations that
   5   we went through, 219A-T, the telephone conversation in July
   6   1997 with the unidentified male, and he says I will be going
   7   to see the Hajj, is a conversation involving Wadih El Hage on
   8   July 13, 1997, and a person by the name of Tawfiq.  On page 3,
   9   Tawfiq asks how many days.  El Hage says by God, it will be a
  10   long trip because I will go to the Hajj first and then he will
  11   send me for another job.  It could have been almost a month.
  12   A month?  Yes, approximately.  There is no confusion about who
  13   it is that Wadih El Hage is talking about, describing the trip
  14   in August 1997 that you know he takes.
  15            Government's Exhibit 300A-T we looked at.  El Hage's
  16   deputy uses the same phrasing, the same code for Bin Laden as
  17   does Wadih El Hage.
  18            Then Government's Exhibit 220A-T, this is another
  19   intercepted telephone conversation, and in this conversation
  20   an unidentified male is asking Harun if he can use the mobile
  21   phone.  Harun says this phone with Wadih is for special phone
  22   calls with Hajj.  Harun says no, you understand, and they go
  23   on.  That lines up with what you know Harun and Mustafa Fadhl
  24   talked about before, about the gem salesman using the phone
  25   because it is reserved for phone calls with the Hajj, and we
                                                                5537
   1   saw the phone record for April 1997, for example.
   2            The next two counts we are going to talk about are
   3   Counts 286 and 282, and the subject matter of these counts is
   4   contact between Wadih El Hage and Abu Hafs and some of the
   5   aliases that Abu Hafs used.  Count 286, this is 1997 and Count
   6   2 is the 1998 testimony.  A, did you speak with him in 1994,
   7   1995, 1996 or 1997?  Answer, no.  Then there is, did you
   8   communicate with Abu Hafs, listing through 1997, and in 1994,
   9   just before I left Khartoum, and at the bottom, after you left
  10   Khartoum did you ever communicate with Abu Hafs el Masry by
  11   phone, Internet, by mail or by fax?  Answer, no.  Did you see
  12   Abu Hafs when you went back to Pakistan in 197?  No.
  13            Then there is a question about who is Taysir?
  14   Answer, I don't know Taysir.  Turning to 92, there is another
  15   question about Abu Hafs as Taysir.  There is specific
  16   reference to a document that was shown to El Hage.  The
  17   question off the document is, when this letter was written by
  18   Harun to Abu Suliman, he is saying that you have taken a trip
  19   with Taysir.  Answer, I don't know what he is talking about.
  20   Specification C, do you have any idea as you sit here today
  21   who Taysir might be?  Answer, I can't recall.  You have no
  22   idea who Taysir is?  Answer, I have no idea, no.
  23            The thrust of these two counts is whether or not
  24   Wadih El Hage had any contact with Abu Hafs and whether or not
  25   he knows him by some of the other aliases.
                                                                5538
   1            Kherchtou told you that he saw El Hage and Abu Hafs
   2   together in Kenya twice, and he specifically remembered a trip
   3   that Abu Hafs and El Hage took to Mombasa.  Remember, we
   4   talked about this, that they wouldn't even tell Kherchtou what
   5   the purpose of the trip was.  There was then the story about
   6   how Abu Hafs trusted Kherchtou and El Hage but he wouldn't
   7   trust Abu Mohamed al Amriki.
   8            Government's Exhibit 611-T is a letter, this is a
   9   letter that is found among the files, Wadih El Hage's files in
  10   the MIRA office in Nairobi, Kenya, in 1998.  Dear Mr. Nawawi,
  11   how are you and how is your family?  Hope things are all right
  12   with you all.  There is a discussion about Ramadan.  Then if
  13   you go down to the next half, right at the very top, Taysir
  14   and his friends are still hiking.  They enjoy it very much.
  15   They called me yesterday and greeted us for Ramadan.  They
  16   called from a place they were having a curry meal.
  17            They are talking about a part of the world where the
  18   evidence plainly shows that Bin Laden and Abu Hafs have
  19   reestablished the Al Qaeda headquarters.  Then there is more
  20   of a discussion.  You will see a discussion, and we will come
  21   back to this later, sincerely, Norman.  This document has
  22   Wadih El Hage's fingerprints on it.
  23            Government's Exhibit 632A, if we just take a look at
  24   the original of that first, this is a document, you see the
  25   date February 21, '97, and you see it is a combination of
                                                                5539
   1   Arabic and English, written at the bottom, I am waiting for
   2   your reply, and it is signed Wadih in English, and the
   3   translation is above turning to the translation, 632A-T, dear
   4   Mr. Abu Suliman, peace be upon you.  I pray you are all well
   5   and doing fine.  We are all fine here.  I was very happy to
   6   receive your last letter.  I arrived yesterday as I was on a
   7   business trip and met with Dr. Atef.  He and his friends say
   8   hello to you.  Harun told me he gave you the telephone number
   9   of the furniture and textile company.  Etc., etc.  We know
  10   Dr. Atef is Abu Hafs.  We reference the conversation with
  11   Wadih El Hage giving the satellite telephone number because
  12   Dr. Atef has moved the clinic and Harun might want to move his
  13   family there.  So there you have what is specifically an
  14   attempted coded reference to Abu Suliman that he was on a
  15   business trip and met with Dr. Atef, and to assure that
  16   Dr. Atef and others in the headquarters in Afghanistan say
  17   hello.
  18            Then you have Government's Exhibit 3B-T, the Taliban
  19   report found on El Hage's computer.  It discusses all the
  20   dynamics of the Taliban in Afghanistan.  On El Hage's computer
  21   you see a document that is signed there your brother Abu Hafs.
  22   Then Government's Exhibit 245-T is a translation of the report
  23   that was sent out that we know from that letter to Abu
  24   Khadija.  You see the report is identical in substance but
  25   there is no Abu Hafs at the bottom, because El Hage wants to
                                                                5540
   1   make sure if for some reason there is a headache that somebody
   2   may get, nobody can connect him to Abu Hafs or Khadija or
   3   anybody else.
   4            Government's Exhibit 611 is the letter we just read,
   5   and that's the letter that Taysir and his friends are still
   6   hiking.  One of the references to Abu Hafs, we know al Hajj is
   7   Bin Laden.  Then Government's Exhibit 438A, this is an Arabic
   8   letter and 438B is the translation.  What you see in this
   9   letter, and this is from Harun to Ihab Ali, Abu Suliman
  10   Nawawi, and Harun says, there is a greeting and he says at the
  11   bottom of the first page, the fish people are doing all right.
  12   However the project has failed and they are now reorganizing
  13   things to start a new business trip.  So there is a reference
  14   from Harun talking about the fish people in the Al Qaeda cell
  15   in East Africa.  He says Wadih went on a trip, he is with
  16   Taysir, and their situation is very comforting.  They are
  17   doing well and in good health.  They live in their own old
  18   town.  Hyatabad, Kherchtou talked about Hyatabad.  It is in
  19   Pakistan, on the border.  So you have Harun keenly aware where
  20   El Hage is.  He is not going to say the military command of Al
  21   Qaeda, and he says Taysir, and of course Ihab Ali knows who it
  22   is.
  23            Other references, and now we will go to the phone
  24   books and some of the phone records.  El Hage's phone book,
  25   the pop-up phone book, Government's Exhibit 304, page 27 of
                                                                5541
   1   that.  There is a reference right there.  It will be under
   2   listing T.  Taysir, 272177.  We will see again, looking at the
   3   mobile phone records for the special phone that is supposed to
   4   be used for El Hage -- this is Government Exhibit 621C.  You
   5   see a call from a number in Pakistan, and this is on 3
   6   February 1997, just before El Hage goes on his trip to
   7   Pakistan, and then the 521, the country and city code, 372177,
   8   and you see it says Pakistan.  So looking at just the listing
   9   in El Hage's own address book, when he says I don't know
  10   Taysir, it's impossible to square that with what is in his
  11   address book and the telephone records when he is calling the
  12   person he says is Taysir right before he goes to visit Bin
  13   Laden in February 1997.
  14            The wiretap calls.  Government's Exhibit 205A-T.
  15   This is a conversation that takes place November 12, 1996.  At
  16   the bottom of page 1, Saif al Islam and El Hage speaking to
  17   one another, and Saif al Islam says do you have any news for
  18   me from our brother Taysir?  At the top of the second page, El
  19   Hage doesn't say, as he did in the grand jury, I don't know
  20   Taysir, he says no, by God, it's over three months, Suliman
  21   sent us a fax in which he said everything was good and their
  22   situation was good.
  23            Government's Exhibit 207C-T, and this is a
  24   conversation on December 17, 1996 there is something
  25   important, you can decide it, Saad interrupts and says he is
                                                                5542
   1   here, and El Hage doesn't say who, he says but the people
   2   concerning the project, the project's money, and they go on to
   3   talk about whatever it is that the project is, and of course
   4   it involves Dr. Atef, one of the aliases, you know, for Abu
   5   Hafs and Taysir.  Then Government's Exhibit 218-T, we won't go
   6   through it again.  There is the conversation with El Hage.
   7   That's the satellite phone.  Government's Exhibit 209A-T, this
   8   is a conversation between April El Hage and Abu Khadija, and
   9   we know that Abu Khadija, as per witness Kherchtou, one of the
  10   aliases for Abu Hafs, and we know that after that conversation
  11   April El Hage, after dialing again and again, tells Wadih El
  12   Hage, Abu Khadija called the other one.
  13            Government's Exhibit 594 shows the call that we just
  14   looked at did originate from the satellite phone.  If you line
  15   up what is on the satellite phone records with what is on that
  16   conversation that is intercepted, you see that call came from
  17   the satellite phone to Bin Laden headquarters phone.
  18            Finally, Government's Exhibit 221A-T, this is a
  19   conversation on September 18, 1997, one week before El Hage
  20   testifies in the grand jury, and the caller says Abu Hafs says
  21   when he is coming here, April Hage says I don't know.  The
  22   unidentified male says you don't know.  And then down at the
  23   bottom, unidentified male, fourth line from the bottom, says
  24   fine, tell him Abu Hafs called you.  April El Hage says OK, if
  25   God willing, Mohamed Atef.  That makes the link between Abu
                                                                5543
   1   Hafs and Mohamed Atef.
   2            THE COURT:  Ladies and gentlemen, we will call it a
   3   day.  Have a good evening.  We are adjourned until 10 a.m.
   4   tomorrow.
   5            (Jury excused)
   6            THE COURT:  Mr. Karas, how are you doing on your
   7   timetable?
   8            MR. KARAS:  Your Honor, we will probably need only
   9   about another hour or so in the morning.
  10            THE COURT:  So you will finish before the mid-morning
  11   break tomorrow?
  12            MR. KARAS:  I believe that is correct.
  13            THE COURT:  So after the mid-morning break we will
  14   have a closing statement on behalf of El Hage, who has
  15   requested three to four hours.
  16            MR. RICCO:  Your Honor, that should take us through
  17   the balance of the day.  Should we be prepared for Monday
  18   morning?
  19            THE COURT:  Balance of the day.  Tomorrow is
  20   Thursday?
  21            MR. RICCO:  Yes.
  22            THE COURT:  Yes.
  23            MR. RICCO:  The only reason I mention it --
  24            THE COURT:  I won't make you start at 4:00.
  25            MR. RICCO:  That's all right, but I had mentioned to
                                                                5544
   1   you that I had an appointment tomorrow.
   2            THE COURT:  Anything further?
   3            MR. WILFORD:  Your Honor, there were some objections
   4   to Mr. Karas's summation that I wanted to put on the record.
   5            THE COURT:  Haven't the objections and the rulings
   6   been on the record?
   7            MR. WILFORD:  Not these.
   8            THE COURT:  Go ahead.
   9            MR. WILFORD:  We didn't want to interrupt his
  10   summation.
  11            THE COURT:  These are objections that I will be
  12   hearing for the first time?
  13            MR. WILFORD:  Yes.  Your Honor, the first objection
  14   deals with the government's argument, which appeared to almost
  15   be an inverse Pinkerton argument, which they couched in the
  16   state of mind, talking about the existence of the conspiracy,
  17   and Mr. Karas intimated to the jury that existence of the
  18   conspiracy could be proven by the fact that there was in fact
  19   a bombing of the embassy.
  20            THE COURT:  I don't recall that.  Tell me what
  21   portion --
  22            MR. WILFORD:  Yes.  When he was talking, when
  23   Mr. Karas was discussing with the jury Count 1, and he was
  24   talking about the existence of the conspiracy.
  25            THE COURT:  Yes.
                                                                5545
   1            MR. WILFORD:  It was this morning, during his
   2   presentation during the morning portion of the day's
   3   proceedings.
   4            THE COURT:  He was dealing with Count 1, was he not,
   5   which is the conspiracy?
   6            MR. WILFORD:  Yes, the existence of the conspiracy.
   7            THE COURT:  And you are saying that the fact that
   8   there was a bombing is irrelevant to the existence of the
   9   conspiracy?
  10            MR. WILFORD:  Not irrelevant, that it proved the
  11   existence of the conspiracy.
  12            THE COURT:  You will have to give me -- I don't
  13   recall him ever saying in substance you know that because the
  14   embassy was bombed that there was a conspiracy to bomb, but
  15   that would be a reverse Pinkerton.  If that was said, I must
  16   say I didn't draw that inference.
  17            MR. WILFORD:  I will get the exact page reference to
  18   your Honor.
  19            Additionally, Mr. Karas indicated that association
  20   was a basis for membership.  That was an argument that was
  21   being made.  He said that the intersection of various people
  22   proved the existence of the conspiracy, and the court is going
  23   to charge just the opposite, that mere association does not
  24   prove the conspiracy.  That was an argument that the
  25   government put forth to the jury and I think at the very least
                                                                5546
   1   we ought to have a curative instruction on that.
   2            THE COURT:  Let's deal with these one at a time.  The
   3   jury will be charged, because it is the fact, that mere
   4   association without participation does not make one a
   5   conspirator.  But that does not mean that association is
   6   irrelevant, and it certainly doesn't mean that association
   7   during periods of time when material which is regarded as
   8   secret and important and to be shared only with fellow members
   9   is not important.  Mere association is not enough, and, as you
  10   know, because you have seen my charge and it is standard
  11   language, the jury will be told that association without more
  12   is not enough.  But certainly it was relevant to the existence
  13   of a conspiracy of who met and what were the topics discussed
  14   when they met and in front of which persons the conversations
  15   took place.
  16            Overruled.
  17            MR. WILFORD:  Your Honor, the other objection is that
  18   the government has constantly during its argument blurred the
  19   lines between Al Qaeda and the conspiracy charged in Count 1.
  20   Count 1 specifically charges Al Qaeda along with other groups
  21   and other people known and unknown contributed to the
  22   conspiracy, and several times Mr. Karas blurred that line and
  23   said the Al Qaeda conspiracy, and seemed to indicate to the
  24   jury that Count 1 was an Al Qaeda conspiracy, and that is
  25   simply not what is charged and that is simply not the case
                                                                5547
   1   here.
   2            THE COURT:  The indictment says from in and about
   3   1989 until the present a group called itself Al Qaeda --
   4            MR. WILFORD:  That is in the background portion, your
   5   Honor, but specifically in Count 1 it says Al Qaeda along with
   6   other groups.
   7            THE COURT:  Yes, and?
   8            MR. WILFORD:  The argument that seemed to be advanced
   9   by the government was that Al Qaeda was the conspiracy in
  10   Count 1, and that is simply not the case.
  11            THE COURT:  I think the jury was clearly told by the
  12   government that it did not take the position that Al Qaeda and
  13   the conspiracy were coterminus and that membership in Al Qaeda
  14   made you a member of the conspiracy or vice versa.  Again, you
  15   have to show me specific statements that were made.
  16            Mr. Karas, is that something that you said?
  17            MR. KARAS:  Your Honor, I made very clear that
  18   membership by way of bayat was not sufficient to put one in
  19   the conspiracy.
  20            MR. WILFORD:  Your Honor, tomorrow I will have the
  21   transcript and citations to support my position.
  22            THE COURT:  Very well.  Anything else?
  23            Mr. Ricco, do you really not want to make a motion?
  24            MR. RICCO:  Oh.  I'm sorry, your Honor.  At the end
  25   of all the evidence in the case, I don't think any of us
                                                                5548
   1   made -- your Honor, on behalf of the defendant Odeh we make a
   2   Rule 29 application.  What we ask the court to do is to
   3   readopt the substantive arguments that were advanced in
   4   connection with that Rule 29 that was made at the close of the
   5   government's case and ask the court to adopt those arguments
   6   now at the end of all the evidence.
   7            MR. DRATEL:  Your Honor, we do the same --
   8            THE COURT:  I assume that is on behalf of all the
   9   defendants and it is denied.  The significance of its being
  10   made at this procedural stage will be for someone else to
  11   determine.
  12            Anything else?  We are adjourned until tomorrow
  13   morning.
  14            (Adjourned until 10:00 a.m., Thursday, May 3, 2001)
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