9 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 42 of the trial, May 9, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
5978
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 9, 2001
9:50 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
5979
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 MICHAEL GARCIA
Assistant United States Attorneys
6
7 SAM A. SCHMIDT
JOSHUA DRATEL
8 KRISTIAN K. LARSEN
MARSHALL MINTZ
9 Attorneys for defendant Wadih El Hage
10 ANTHONY L. RICCO
EDWARD D. WILFORD
11 CARL J. HERMAN
SANDRA A. BABCOCK
12 Attorneys for defendant Mohamed Sadeek Odeh
13 FREDRICK H. COHN
DAVID P. BAUGH
14 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
15 DAVID STERN
DAVID RUHNKE
16 Attorneys for defendant Khalfan Khamis Mohamed
17
18
19
20
21
22
23
24
25
5980
1 (In open court)
2 THE COURT: I received nothing from defendants with
3 respect to the issue concerning alternates.
4 MR. RUHNKE: Your Honor, just one quick thing on the
5 alternates. In the Johnson case, which was cited by the
6 government, which is the 7th Circuit case I was thinking about
7 yesterday, there's also a case the government doesn't cite out
8 of the 5th Circuit, United States v. Webster.
9 THE COURT: United States v. Webster holds that it's
10 harmless error at a time when the statute specifically
11 mandated that the jurors be discharged.
12 MR. RUHNKE: Basically counsel messed up in both of
13 those cases by not asking that the jurors be discharged.
14 THE COURT: Excuse me?
15 MR. RUHNKE: Essentially, counsel made a mistake in
16 both of those cases by not asking that the jurors be
17 discharged at the end of the guilt phase.
18 I will tell you what our position is on behalf of Khalfan
19 Khamis Mohamed: While this is an unchartered area, if there
20 is any tradeoff at all to be made on timing or the
21 government's suggestion of combined penalty phasing, we're
22 prepared to consent to your Honor keeping the alternates and
23 substituting them in to penalty, if and when we come to that
24 moment, consider substituting, depending what the
25 circumstances are when we come do that. Basically, we're not
5981
1 asking you to discharge the alternates.
2 MR. BAUGH: On behalf of defendant Al-'Owhali, your
3 Honor, again, because of the bifurcation issue, if there is a
4 tradeoff, we would agree with Mr. Ruhnke and join in his
5 position.
6 THE COURT: Whatever your motivation for agreeing
7 with it, I am not going to discharge the alternates. As the
8 commentary to the latest revision to Rule 24(c) makes clear,
9 the matter is discretionary with the Court. There are a
10 number of reasons, many of which I cited yesterday, why that
11 would be particularly inappropriate in this case.
12 I will add to yesterday's list, one is that Mr. Rogers has
13 been promoted and is now in White Plains. I don't really
14 relish the thought of going through a voir dire process anew
15 without his very able assistance.
16 The rule in the Second Circuit even prior to the
17 revision was that it was harmless error and it's the only
18 instance in my practice in which I have ever adopted something
19 which was harmless error, and I adopted it for an entirely
20 different reason and in fact never had occasion to utilize the
21 alternates.
22 But I don't believe I have a right under the First
23 Amendment to instruct a discharged alternate not to talk to
24 the press, and so there is at least the possibility that a
25 discharged alternate will give an extensive interview to press
5982
1 less responsible than those that are presently in the
2 courtroom, which gets published and is read by a
3 non-sequestered jury. And therefore, keeping alternates as
4 members of the jury does empower the Court to say that.
5 In any event, that's the practice that we'll follow here
6 for many, many reasons.
7 Let me have counsel for both Al-'Owhali and K.K.
8 Mohamed, their statement of mitigating factors, requests to
9 charge and special verdict form by May 17th.
10 MR. RUHNKE: Fine, your Honor.
11 THE COURT: Let's bring in the jury.
12 MR. RUHNKE: Your Honor, we're just sort of asking
13 ourselves whether we have gotten your Honor's final charge,
14 and I don't know whether we have or not. No one seems to have
15 gotten it.
16 THE COURT: Yes, you have. The only changes that
17 were made were the insertion of the stipulation numbers, a
18 statement to the fact that the indictment contains background,
19 that the background is the government's version and is not
20 evidence. I think those are the only changes.
21 MR. RUHNKE: I suppose the inquiry is, are we going
22 to get it at some point in the form that is going to go to the
23 jury?
24 THE COURT: Yes.
25 MR. RUHNKE: Okay.
5983
1 (Jury present)
2 THE COURT: Good morning.
3 THE JURY: Good morning.
4 THE COURT: We are in the midst of the government's
5 rebuttal argument, and Mr. Fitzgerald, you may continue.
6 MR. FITZGERALD: Thank you, Judge.
7 Good morning.
8 THE JURY: Good morning.
9 MR. FITZGERALD: I'll finish this morning. I'm going
10 to talk to you about four people. I'm going to conclude the
11 discussion, finish the discussion about the rebuttal to
12 Mohamed Sadeek Odeh, then I'll discuss the case against
13 Mohamed Rashid Al-'Owhali, then I'll discuss the case
14 involving Khalfan Khamis Mohamed, and then I'll briefly talk
15 to you about one person who you have heard precious little
16 about.
17 Let's start with defendant Mohamed Odeh.
18 When Mr. Ricco and Mr. Wilford summed up to you,
19 basically they invoked an image of sending him back to Witu
20 and his mud hut, and there is something attractive about a mud
21 hut. It seems simple. It seems peaceful, particularly if you
22 forget the sketch that's in there that we'll talk about in a
23 moment. But I ask you to think of this. August 7th, 1998,
24 when those bombs went off, in Odeh's mind, in Odeh's physical
25 presence, he was not in a mud hut, he was in Pakistan, hoping
5984
1 to get to Afghanistan, to get to a cave where Bin Laden was.
2 You heard argument as to why it is that if Mohamed
3 Odeh was guilty, he left his family behind if others traveled.
4 I submit to you to think about three things: First, he often
5 left his family to go do Jihad. He went for months. That's
6 why you have those tape letters to the wife: I'm off. I'm
7 doing what I have to do. I'm doing good deeds. Sorry I'm not
8 home, but I'll come back when I can. He made the choice on
9 August 7th, 1998 -- earlier than that -- to go to the Hilltop
10 Hotel rather than with this family.
11 And I also submit to you that you learned that his
12 wife was pregnant. If your wife was pregnant, do you want her
13 to travel? Do you want her to travel to give birth in
14 Afghanistan, when you know that the navy, the U.S. Navy, is
15 supposed to send planes to retaliate? It makes sense. You
16 would leave her somewhere else.
17 Let's talk about the concept of innocent civilians for a
18 moment. It's one of those things about wishful thinking.
19 Nobody wants anyone to kill innocent civilians, but the point
20 is, what do people think? Who do they think are innocent
21 civilians?
22 The scary thing about terrorism is no one gets up in the
23 morning and says I'm going to be a bad person that day. They
24 do things, they commit crimes that have been justified as
25 being proper. And what have we learned about al Qaeda and
5985
1 what al Qaeda thinks about people in the embassies? Well,
2 we've seen that al Qaeda thinks that if the U.S. forces are
3 invited to Saudi Arabia and go there, that's blasphemy. If
4 U.S. forces go to Somalia to stop starvation, that's
5 colonization.
6 And what do we know from Kherchtou from the transcript at
7 4741 to page 42, when he says some believe that embassies was
8 a place for spying:
9 "Q. Were people told this in your presence?
10 "A. Yes.
11 "Q. Were people told that embassies were used to establish
12 covert operations?
13 "A. Yes."
14 What about the ABC speech, the speech or the
15 interview by Bin Laden to John Miller from ABC in May of 1998
16 where he talks about how, after the Khobar bombing, the
17 embassies are used to gather information. To al Qaeda,
18 embassies are not innocent places.
19 How about -- and we'll display Government Exhibit
20 351, a document found in the home of that person Abu Mohamed
21 al Amriki, the surveillance person. If you look at Government
22 Exhibit 351, page 1, section B, what does it talk about? It's
23 talking about a security system called Netaqat, the system of
24 the Netaqat to serve, number 2, the Netaq is the term used in
25 the security.
5986
1 For example, an embassy of a foreign country will have
2 several Netaq. The first Netaq will be inside the fence and
3 the security from the foreign country will take care of it.
4 The second Netaq is the police outside the gate. The third
5 Netaq might be a patrol car stationed about two blocks from
6 the embassy. The fourth Netaq might be a police unit
7 responsible to protect some sensitive targets in the area.
8 How about that other person who did surveillance, the
9 person Anas al Liby, the person whose passport photograph was
10 recovered in Wadih El Hage's files in the search of his home.
11 We'll display Government Exhibit 1677T, the translation, page
12 12.
13 When his house is searched in Manchester, that Jihad
14 manual, this is what you find. Down at the bottom, "The other
15 missions consist of the following: Number 7. Blasting and
16 destroying the embassies and attacking vital economic
17 centers."
18 I submit to you that when you look at Odeh's
19 statement, the one that says "Odeh stated that the errant
20 shock wave hit the wrong building," the right building is the
21 embassy. The right building is where they believe that the
22 people are not innocent, and that serves as an introduction to
23 the sketch.
24 Before I address that, Mr. Wilford said, in
25 addressing the sketch and the explosives residue, that this
5987
1 case comes down to simple physical evidence. I submit to you
2 that it does not. The physical evidence strongly
3 corroborates, convincingly corroborates what is there. But
4 you have to look at everything in context, because what do you
5 know aside from the sketches, aside from the residue?
6 You know that this was a bombing carried out, in
7 large part, by al Qaeda, and the al Qaeda people carrying out
8 the bombing were in the Hilltop Hotel. Who was Mohamed Odeh?
9 An al Qaeda soldier. Explosives training. Architectural
10 training. And where is he? At the Hilltop Hotel. Under what
11 name? Abdel Basit Awad. He's here. He's heard about the
12 fatwahs in '96 and '98. He's still with the group. He has
13 heard from Mustafa Fadhil that there's discussions about
14 whether or not an operation in Kenya is okay.
15 And that's his version. We'll see what it really means
16 when you look at the sketch. He's heard that it is urgent.
17 Everyone has to leave town by August 6th. You saw the way it
18 operates. Everyone gets out of town 24 hours beforehand,
19 except those carrying out the bombing.
20 He's got that tape in his house, the tape to his
21 wife, September of 1997, when there's American activity in
22 Kenya against the brothers where he says, "We will get them
23 back 20 fold. Time, thinking, and preparation."
24 In that context, in that context, where he's told
25 that the United States Navy is going to retaliate and the
5988
1 people back in Afghanistan have to move, then look at the
2 sketch, because its context is the whole picture taken
3 together, not one piece of the puzzle.
4 All right, 704. This is an enlargement of that
5 sketch. It's on the screen as well. Let me remind you that
6 when Mr. Wilford addressed you, he told you in a loud voice
7 that, you know what, this book had Mustafa Fadhil's
8 fingerprint on it and no one else's. And I'll look to the
9 transcript at 5295, 5296.
10 What Mr. Wilford told you is: It had one fingerprint that
11 the government was able to recover that the FBI found, and
12 that was a fingerprint of Mustafa. Not Mohamed Odeh, Mustafa.
13 What does that tell you? It was found in Mohamed Odeh's
14 house, yes, okay. Does it show you that he handled it? No.
15 That's not proof beyond a reasonable doubt. It does show you,
16 however, that Mustafa handled this book. That's what the
17 proof shows you. Don't be confused. You may be asked to make
18 inferences that Mr. Odeh drew this. The only proof we have in
19 this case that shows that anybody handled this book is
20 Mustafa.
21 There are several problems with that. First of all,
22 Mustafa Fadhil's fingerprint was not found on the book. The
23 evidence in this case, you can look at Mitch Hollars'
24 testimony, this book has many pages. This is page 3, and
25 we'll talk about page 3, page 4 and page 5 in a moment. This
5989
1 is page 3, this is page 4 -- what's left of it -- this is page
2 5.
3 The book has lots of writing in it. In fact,
4 Mr. Wilford said, "Elsewhere, you know when it's Odeh's
5 handwriting and other things because of discussion of fish."
6 You can look at this book. You can get gloves, you can look
7 through it in the jury room later on. In the book there's
8 discussion of king fish.
9 What Hollars told you, with all the pages that have
10 writing on it -- and there are more than a dozen pages of
11 handwriting -- only one fingerprint could be recovered in the
12 entire book. It's on page 1. Not on this page, not on that
13 page. And they compared the fingerprint on page 1 to Odeh and
14 to Mustafa Fadhil and neither hit. And as Mr. Wilford asked,
15 Mr. Hollars: You have no idea who that print belongs to; is
16 that correct, sir? And he said no. You don't know who put
17 that print on page 1?
18 Well, one thing you do know is somebody handled the book.
19 Somebody wrote on all those pages with writing, and the
20 fingerprints -- there are no fingerprints recoverable from any
21 of those pages, so you just don't know.
22 You also heard that no one tested the writing. Agreeable,
23 no one tested the writing, neither the government, and the
24 defense has no burden, but they didn't test the writing. And
25 I submit to you when Mr. Wilford implied to you that maybe the
5990
1 government tested it and didn't like the result and ditched
2 it --
3 MR. WILFORD: Objection.
4 THE COURT: Well, I sustain the objection and that
5 comment is stricken.
6 MR. FITZGERALD: I just submit to you the defense has
7 no burden, but if you think that there's something in here
8 that shows the handwriting is elsewhere --
9 MR. WILFORD: Objection.
10 THE COURT: Overruled.
11 MR. FITZGERALD: -- the defense could call an expert,
12 like they did Dr. Lloyd, and look at it.
13 Well, let's take a look at the handwriting, okay?
14 And look, don't rely upon amateur handwriting experts,
15 yourself or myself, but let's take a look. And when you look
16 at the handwriting, let's focus on another document taken from
17 the Odeh house, Government Exhibit 702. That's what was
18 referred to by the Odeh team as an inventory. The original is
19 the same type of brown paper, looks more like a budget.
20 I'll tell you right up front, 702, the budget, was
21 found at Odeh's house and that one does have Mustafa Fadhil's
22 fingerprint on it. Now, you may say, well, it's Mustafa's
23 fingerprints on it. Maybe Mustafa Fadhil wrote it. If it's
24 in Odeh's house, maybe Odeh wrote it.
25 You can take a look at what the contents of the document
5991
1 are, because you will see that this budget document is
2 important because of what light it sheds on the sketch. The
3 budget document has a translation, Government Exhibit 702-T.
4 We'll put up 702-T, page 1.
5 And before you look at this page, I'll tell you what
6 the significance is. If you remember that spring 1997 report,
7 that secret document that Wadih El Hage walked back from
8 overseas from Bin Laden to Kenya, after that new policy came,
9 you learned that four particular people got engaged in
10 activity in Somalia: The defendant Odeh, Marwan; Mustafa
11 Fadhil, known as Khalid, and you have seen his picture a
12 number of times; and this fella -- you heard about an Ahmed,
13 Ahmed the Egyptian or Ahmed al Saghir; and you also heard
14 about Harun. And you have seen his picture often enough,
15 Harun.
16 When you look at 702-T, there's no year on it, but
17 you can figure out it's not 1998. It's got entries in it past
18 August 7th, so when you see the references to weapons and
19 artilleries, we're not claiming that's for August 7th, the
20 bombing. It makes more sense it's before, 1997, when the
21 people are doing the work set forth in the policy.
22 When you look at the budget, on the first page you
23 will see in the lower right-hand corner and Ahmed al Saghir,
24 and it says, "Ahmed al Saghir was sent to Mombasa to brother
25 Khalid carrying a report to brother Khalid."
5992
1 That is a nine-page document. You can go through it. The
2 point is this: You will see references to an Ahmed, you will
3 see references to a Khalid and you will see references to a
4 Harun, all written in the third person. There is no reference
5 to Odeh, no reference to a Marwan. I submit to you either
6 Odeh wrote it; he's talking about the other three guys in the
7 third person; or one of those people wrote it and wrote a
8 budget using his own name as a third person. This is
9 important because it's about, quote, military work, getting
10 explosives, getting artillery, getting training.
11 Now let's go to the original, Government Exhibit 702-P,
12 and we'll go to 702-P1. And if we could go to 702-P1 and
13 focus on the number 3 on the first page as it's written on the
14 budget. If we could then magnify it and enlarge it on the
15 left.
16 Now if we could go to the sketch, 704P-2, on the right and
17 enlarge the number 3 and compare. Now if we could look at a
18 6. Go to Government Exhibit 702, page 5. Focus on the 6.
19 Magnify it on the left. Go back to the sketch on the right.
20 Magnify the 6. Very similar.
21 Now, you can go through different 3's different
22 times, the 6's seem to match. I tell you right now, if you
23 look at the 1's, the 1's are odd because the 1 here sometimes
24 it's drawn like this. You can see a little bit of a hook.
25 There's more hooks on the 1's there.
5993
1 You know what, I submit to you that there could be more
2 than one handwriting in this book or in that book, but it
3 appears it's Mustafa Fadhil and Odeh and the group writing
4 what's in the budget and drawing a sketch. And that's the
5 important piece, because if the people writing this budget,
6 the budget about the military work, about explosives and
7 artillery -- let's give them Mustafa Fadhil. Mustafa Fadhil
8 is drawing this and he's drawing this, this is not about a
9 snow cone. Mustafa Fadhil is not in the snow cone business.
10 You don't go to Witu for a snow cone.
11 And what did we hear from Odeh? Talk about dancing with
12 the truth. I'll borrow a line from Fred Cohn: "If you want
13 to make up a lie, get one grounded in the truth." Odeh tells
14 you Mustafa Fadhil came to visit him in the spring of 1998,
15 and he and Mustafa Fadhil were talking. Mustafa Fadhil was
16 talking about whether an operation in Kenya is something he's
17 for or against, and Odeh says Mustafa Fadhil has the same
18 mind-set. He likes Kenyans. But Saleh has a different
19 mind-set. He doesn't like Kenyans.
20 And I submit to you this document, whether it's Odeh
21 writing it down while he's discussing with Mustafa or Mustafa
22 writing it down while he's discussing it with Odeh, shows you
23 that they're not trying to decide whether an operation is a
24 good thing or a bad thing, they're trying to get it right,
25 point it at the right building, point it at the building that
5994
1 has the generators on the side.
2 Page 4, let's focus on page 4. A lot was made on,
3 where is page 4? Mr. Wilford basically said to you, to me,
4 have him get up here and tell us where page 4 is. Mr. Ricco
5 went a bit further. Mr. Ricco said, a quote from page 5320 to
6 5321 about the mystery of page 4:
7 "You see this here? You see this? This torn out page?
8 Do you see the writing on that torn-out part? When you go in
9 the back and deliberate, take the book out. This is the book.
10 You are going to find another torn-out page on here, another
11 torn-out page on here that somebody put another 4 on the back
12 of. So you will find a 4, but that number 4 does not match
13 this because the writing is not on the flip side of the tab."
14 He showed you this tab. He said, "Look at the writing. It's
15 not on the flip side."
16 And then he continued, page 5321: "This page on the
17 back, somebody wrote in a small number 4 so you would think
18 that when you take this, if you put it behind that and flip it
19 around, this should match up. What you are going to find? If
20 I put it on the Elmo and hold down that tab, what you see is
21 that the writing is not there. It's gone."
22 So now what you have, not only do you have a
23 coincidence that he's got a sketch in his house that matches
24 the description of what he thinks the physics works like, not
25 only does he have al Qaeda conspiring against them, they're
5995
1 dragging him to the Hilltop Hotel, under a fake name, making
2 him hang out with the bombers for days before he leaves under
3 a fake name, 24 hours ahead of time. Now the FBI lab is
4 joining in. When they frame people, they make little notes.
5 They draw a 4 on the page, rip it out, and put a new one in.
6 That's pretty desperate. But let's take a look. Let's
7 take a look, and I invite you to take this in the back with
8 you, to take some gloves and walk through it.
9 We have some of it scanned on the screen so we can
10 show you, but do not take my word for it. Take it in the
11 back, take your gloves, take your time. You can all look.
12 The staples are now removed from the book. It was processed
13 at the lab. But move the pages around and see if the 3, the 4
14 and the 5 don't fit.
15 If you look on the screen -- and I'll take this down so
16 it's not a distraction -- if you look at the screen on the
17 top, there's a picture 704-P, which is stipulated to be the
18 photograph taken of the exhibit before forensic analysis,
19 before the lab did their work. We'll come back to that.
20 Look at the lower left corner, if we could, Gerard, the
21 lower left corner on the top of the exhibit, and if we could
22 magnify that. And there you see the 3.
23 Now if we could go on the right. Look in the lower
24 right corner of that page and magnify it, and you see there's
25 a 5. It looks like a K538, which, if you check out, looks
5996
1 like the lab number for that exhibit.
2 Now let's look at the exhibit in the middle, down below
3 from the original, which you can look at yourself and magnify
4 that's on that little shred of paper. What do you see? A 4
5 with K538 and some initials, which appear to be like the
6 initials under the 5.
7 Someone was careful enough to say, hey, this is a
8 book, it's falling apart, number the pages, 3, 4 and 5.
9 Okay. We still got a problem, don't we? We got a
10 problem with what happened to the writing. Well, I submit to
11 you, you can take the book in there and you can flip the page
12 over and we can display the page with the little shred turned
13 over on the bottom.
14 If we could magnify the other side of what's left of page
15 4, if we could magnify the top, the picture from 704-P2, the
16 photograph of the exhibit before the lab tested it, put them
17 side by side, first look at the shape. Those are the outline
18 of what's in here. And you can look at it for yourself and
19 you can take -- there's an original exhibit that's smaller.
20 Compare it. They line up. They line up with the size.
21 What about the ink? Well, I'll tell you two things. Look
22 at the book at the top. Look at the book at the bottom. You
23 see those blue lines across the page? They're gone. They're
24 gone from testing. Remember that stipulation I told you?
25 Government Exhibit 46 is a stipulation that the coloration of
5997
1 the exhibit changed during testing. All those blue lines are
2 gone. The lab isn't going around stealing the blue lines out
3 of the page, it's gone from testing.
4 And if you look on the left and you can look at the
5 original, you can see outlines, little bits of blue on that
6 page. That's what's left of page 4. There's no mystery. It
7 wasn't stolen. It wasn't fabricated. It wasn't stolen,
8 documented and put back.
9 Now, we heard about the box in the circle. If you
10 look at the comparisons that we've done -- and you'll see them
11 in a moment -- on the comparison we did, we never put the box
12 in the circle. No one ever contended that Odeh or Mustafa or
13 whoever was there drawing during the discussion drew the tent
14 afterward.
15 What is this? We don't know. Could there ever have been
16 something on that circle beforehand? Could that be the car?
17 Remember Harun drives the lead truck? What is it? What, I
18 submit to you, is look at the entire picture. This is the
19 traffic circle. This is the embassy, and the direction is
20 correct.
21 They talked a bit about turning the sketches around.
22 Remember when you looked at that big model that was in the
23 courtroom, when you were asked to look at the model, if you
24 are looking at the embassy, if the embassy is here and the
25 traffic circle is there, south is this way. And there's a
5998
1 stipulation that this word written here is "south." Another
2 great coincidence.
3 Look over here. Look at this. If this is a truck facing
4 the embassy, lo and behold, right in the parking garage, where
5 the truck is supposed to go, there's the generator, the round
6 circles of the generator you can see in the screen.
7 Now, you were told, why didn't they ask Mohamed Odeh
8 about it? They recovered it on August 25th. He's on a plane
9 on August 27th. I submit to you, look at your common sense.
10 There were searches going on all the over the place, the Mercy
11 search, the search in Witu on the Khost of Kenya. And when
12 that search evidence came in, there were boxes piled up here,
13 all different books.
14 And you saw the defense put in, which is proper, some of
15 the other books from that same bag. And you saw that box and
16 you saw things and papers and other things and other boxes and
17 other things and searches happening in Tanzania and
18 everywhere.
19 Does that mean if an FBI agent in Witu grabs a box of
20 papers, that he's suddenly read the back of this and knows
21 there's a shred of paper and he studied everything, and
22 everyone involved in the investigation in all the countries,
23 including Agent Anticev who is in the interview, suddenly
24 knows about every piece of paper from the Mercy search and the
25 Witu search and the Ilala search and all those other searches
5999
1 at once? No.
2 The blast cone. We were told that, where is the
3 expert testimony on the blast cone? That's Mr. Karas twisting
4 it. I submit to you the expert testimony on the blast cone is
5 right back here. The expert testimony on Odeh's state of mind
6 is what Odeh said. That's what he thought, that's how it
7 worked.
8 Don Sachtleben didn't think it worked that way. He
9 couldn't give expert testimony about the wrong physics. But
10 the wrong physics is what Odeh thought about. That's his
11 blast physics and that's on the sketch in his house.
12 Finally, my favorite argument on the sketch which
13 let's you know they're fighting way too hard: Government
14 Exhibit 253. Mr. Wilford said, you know what? They turned it
15 around. The government turned the sketch around, because,
16 look, it's facing that way. And look in the book, it's facing
17 this way. Wow. Who did that?
18 Well, let me tell you something. This looks pretty darn
19 incriminating, doesn't it? Because you've got the sketch
20 thing facing that way and it lines up with the generator.
21 Watch this: It's still incriminating. It doesn't change the
22 position. This sketch is facing down that way. The generator
23 is there. You look on the screen, it's the same thing. This
24 is the blast cone, the bomb, whatever you want to call it, the
25 force of the bomb being directed at what Odeh thinks is the
6000
1 right building. And these circles are the generators of the
2 right building, the embassy.
3 I submit to you that when you look at the case
4 against Mohamed Sadeek Odeh, it is not a case where there's
5 overwhelming evidence that he is there, that he's a member of
6 the group and he knows everything, and it's compounded by a
7 conspiracy by al Qaeda to drag him to the hotel and have him
8 hang around and leave under a fake name, with a conspiracy by
9 the lab and a conspiracy by the prosecutors to twist things,
10 what I submit to you is at some point your common sense, your
11 reason, your experience kicks in, it hits the evidence and it
12 says, you know what? He did it.
13 He wanted to bomb that building. He made a conscious
14 decision to participate. He sat and discussed with other al
15 Qaeda members how to do it. The Hilltop Hotel wasn't a
16 layover on the travel to Pakistan to confer, it was place to
17 go, a place to go where you can help. It was a place to go
18 where you could help under a fake name and get out of town,
19 and the only thing wrong with what he did was he didn't make
20 it all the way to Afghanistan, and now, after the fact, after
21 putting those Kenyans at risk, he's upset that the plan didn't
22 work, that it hit the right building, but it also hit the
23 wrong building.
24 And it's too late for sorry now. He made that decision to
25 participate. He made a decision to put those Kenyans at risk.
6001
1 He made the decision to kill Americans. And I submit to you,
2 look at the evidence as a whole picture: A person trained in
3 architecture and engineering, a person trained in explosives,
4 trained in intelligence, who went to the al Qaeda camps and
5 belonged to the group since 1992.
6 And remember, you learned from the Somalia proof the most
7 important thing: Al Qaeda is against America at least as
8 early as 1993. And he's with the group and he stays with the
9 group, and he stays with the group past August 1996 when the
10 war becomes public, not when it began. When Bin Laden
11 declares the public war, he doesn't drop out. And he stays
12 past February 1998 when the war is against American civilians
13 and military. He stays in.
14 He stays in the war in 1997. They're working on a
15 budget -- not for integration in Somalia, but for artillery
16 and explosives. He stays with the group when he hears from
17 Mustafa Fadhil that they're discussing whether an operation in
18 Kenya is a good thing or a bad thing. That sketch is in his
19 house. Mustafa Fadhil went there. I submit to you they
20 discussed it, they planned it, and that's why he went to
21 Nairobi.
22 He stayed in al Qaeda when he was angry in September
23 1997. And don't forget that tape they don't want you to
24 remember, the tape from Witu where he tells his wife, after
25 American activity in Kenya in August 1997, "They have won this
6002
1 time. We will get them back 20-fold. Time, thinking,
2 preparation."
3 He stays. He makes a conscious decision to
4 participate. He helps plan where the bomb truck should go.
5 He goes to Nairobi. He knows, as a Kenyan with a Kenyan I.D.
6 card, he doesn't want his name on that registry. He checks
7 into the hotel. He admits he knows that he's told that it's
8 urgent he leave, that an operation is coming, a big operation
9 is coming, told to him by Mustafa Fadhil, the person he was
10 talking to. He even admits he knows the U.S. Navy is going to
11 retaliate.
12 He gets out, according to the plan, 24 hours
13 beforehand. He sees his bomb trainer/instructor in the hotel.
14 He wasn't surprised. He knew this was a bombing. Maybe he
15 didn't know which bomb maker would show up. He even admits he
16 walks out on Moi Avenue on the Wednesday but doesn't know
17 where the embassy is.
18 He sees Saleh and Harun going out for a small job, but
19 says, "I know it wasn't shopping," and then he makes his
20 decision to get out of town. He flees. He's caught with a
21 fake passport and TNT and PETN. You heard that PETN is used
22 in detonators. It's not from grinding. You don't grind a
23 detonator. Detonators are to go pop. It's not on that
24 grinder in Dar es Salaam.
25 I submit to you that the evidence taken together is of
6003
1 such a convincing character, it's proof beyond a reasonable
2 doubt that he did it.
3 Let's talk about Mr. al-'Owhali. When we talk about
4 Mr. al-'Owhali I want to focus on law, justice and morality.
5 I submit to you we don't agree that you have to check one or
6 the other.
7 I'm going to focus on three types of arguments with regard
8 to Mr. al-'Owhali: The arguments Mr. Cohn made about the
9 conspiracy, the arguments Mr. Cohn made about voluntariness,
10 and the arguments he made about what other evidence in the
11 case there is besides the statement.
12 The conspiracy arguments: Mr. Cohn says he wasn't
13 part of that conspiracy in that indictment. That is wrong.
14 What did he know? He was, I don't know how old, 16, 19,
15 whatever that first date is. The judge will tell you the time
16 frame -- if you join the conspiracy, you don't have to join
17 when the conspiracy starts. If Bin Laden starts in '92, you
18 can join in '94, '96, '97, '98, you can join on August 6th of
19 1998 once you meet the requirements: You agree you are going
20 to participate in a plot to kill Americans.
21 And in looking at whether he joined the conspiracy,
22 remember, actions speak louder than words. In this case, from
23 Al-'Owhali you've got both. You've got actions, you've got
24 words.
25 The action, simple: He blew up the embassy. The
6004
1 words: He told you he did it and he told you why. I don't
2 think we should overlook how specifically he told us.
3 I'm going to read from the transcript page 2020 with
4 regard to Mr. al-'Owhali. This is the examination of Agent
5 Gaudin:
6 "Q. Did Saleh say anything about why the embassy in Nairobi
7 was targeted?
8 "A. Al-'Owhali explained to me that there were several
9 reasons for picking -- explained to him through Saleh there
10 were several reasons why the embassy in Nairobi was picked.
11 "First, there was a large American presence at the U.S.
12 Embassy in Nairobi; that the ambassador of the U.S. Embassy
13 was a female and if the bomb resulted in her being killed, it
14 would further the publicity for the bombing. Also, that there
15 were embassy personnel in Nairobi who were responsible for
16 work in the Country of Sudan. There was also a number of
17 Christian missionaries at the embassy in Nairobi; and, lastly,
18 that it was what Al-'Owhali explained as ease of access to the
19 embassy. It was an easy target.
20 "Q. Did Mr. al-'Owhali discuss any other targets with Saleh
21 at this time?
22 "A. Al-'Owhali explained to me, explained to me that there
23 were -- there's a number of different targets. He doesn't
24 know where they all are, but they're in the planning stages.
25 "Al-'Owhali discussed with Saleh when, you know, are there
6005
1 targets in the United States that we can attack? Saleh had
2 explained to him there are targets in the U.S. that we could
3 hit, but things aren't ready yet. We don't have everything
4 prepared to do that yet. First, we must -- Saleh explains to
5 Al-'Owhali that we have to have many attacks outside the
6 United States and this will weaken you, the U.S., and make way
7 for our ability to strike within the United States."
8 And listen to the next part when you think back to that
9 indictment section he posed about, well, was he trying to kill
10 soldiers? Was he trying to kill people in the embassies? On
11 the bottom of 2021:
12 "Q. Did Mr. al-'Owhali tell you about anything that he
13 learned about targets during his training camps in
14 Afghanistan?
15 "A. Al-'Owhali explained to me during his training they
16 emphasized priorities of attacks, three of those to be
17 military bases, U.S. missions or diplomatic posts, and
18 kidnapping ambassadors."
19 And just skipping ahead, make sure you understand exactly
20 what the scope of the conspiracy that Mr. al-'Owhali knew he
21 wanted to be part of, 2023:
22 "Q. Agent Gaudin, you testified, I believe, as to certain
23 information that Mr. al-'Owhali learned about targets while he
24 was in the training camps in Afghanistan. Did he tell you
25 anything about why embassies are specifically targeted?
6006
1 "A. In addition to telling me the types of targets, he also
2 explained that hitting embassies achieves certain objectives
3 that he was instructed or that he was taught at the camps.
4 And by hitting an embassy, the objectives are that you would
5 achieve -- would be you hit the ambassador by hitting the
6 embassy. You would also -- also, an objective would be the
7 military attache, the press attache, and what Al-'Owhali
8 described as, most importantly, the intelligence officers at
9 the embassy."
10 Mr. al-'Owhali is a bright man. He went to those camps
11 with a brain, well-educated, smart, fully capable of free
12 choice, and he listened and he remembered, he understood and
13 he agreed. He understood this is war against America,
14 military, civilian, embassies, whatever it takes, he's going
15 to do.
16 And remember, he wouldn't join al Qaeda because he wanted
17 to have a military mission. He didn't want to be the guy
18 doing paperwork. He wanted to kill. And you know what else?
19 His own statement told you that when he left Afghanistan to
20 Africa, all he was told was that it was an American target.
21 He didn't learn it was an embassy until he got to Africa.
22 What better proof than his goal, his agreement is, okay, it's
23 Americans, I'll kill them.
24 Mr. Cohn described Al-'Owhali as a most minor participant.
25 Those are the words, "most minor participant." This man over
6007
1 here, not only did he travel to Africa knowing that it was a
2 U.S. target, that's all he needed to know. Not only did he
3 want to kill, but he walked -- imagine him walking two days
4 before the bombing, he walks up to the embassy, broad
5 daylight, for surveillance.
6 What does he see in the building? People, downtown
7 Nairobi crowded. Did that stop him? No. Then, this man
8 right here is in a truck. The truck drives down the street,
9 up into the embassy. He throws the flash bang grenades. And
10 what do they do? They bring all those people to a window, a
11 window that gets blown out. The lucky are blinded. The
12 unlucky are dead. And as he turned his back to the bomb so he
13 can save himself, the Ufundi House is crumbled.
14 That carnage lays at his feet. That is not the most minor
15 participant.
16 Let's keep it simple: Conspiracy to kill Americans is an
17 agreement. You agree to kill. He agreed. He killed. End of
18 story.
19 Let's talk about the voluntariness of the statement taken
20 by Agent Gaudin from Mr. al-'Owhali. You've had it thrown out
21 there he is in mortal fear of his life. No evidence of that.
22 We've heard about prison conditions. We heard about the
23 jail conditions of Kherchtou. He wasn't in the jail with
24 Al-'Owhali. He wasn't with the Americans or with the FBI and
25 didn't have Agent Gaudin coming by to see if he had milk.
6008
1 He's with some other people.
2 Now, Kherchtou, you heard, all right, he had to pee in a
3 bucket. He wasn't washing. What did you learn about
4 Al-'Owhali? Well, first of all, context. Al-'Owhali's been
5 training in Afghanistan, fighting the Taliban in the
6 mountains, and he comes to Nairobi to kill and to die. When
7 he is there in Nairobi, he expected to be dead. He walked
8 into a bomb scene. The bomb goes off. He sees it. He goes
9 to the hospital along with his victims.
10 I submit to you the evidence shows he didn't care. Do you
11 think if he didn't have a shower, that's going to overbear his
12 will? When he was with Agent Gaudin, Agent Gaudin told you he
13 took him to the bathroom. He took him to the bathroom so he
14 could wash to pray. And Agent Gaudin was alone with him.
15 You know what else Agent Gaudin told you? A couple of
16 remarkable things. Al-'Owhali never once complained. He
17 never said anyone was threatening me, anyone was ever hurting
18 me. You saw the pictures. Those scratches aren't being from
19 being beaten, those injuries, the only injuries he had, were
20 from the bomb he set of. Those cuts, that's from his running,
21 running away from the bomb. Let it kill someone else, not me.
22 I'm scratched.
23 Agent Gaudin told you another thing: No complaints. No
24 handcuffs. Can you imagine? The whole time that Agent Gaudin
25 was with him, that whole time, he never saw him in handcuffs
6009
1 until he left. Those are the conditions that struck fear into
2 Al-'Owhali's heart.
3 Mr. Cohn wanted to take a shot at Agent Gaudin and said,
4 you saw a picture, you saw a picture in a jail cell. That was
5 his trophy picture because he cracked the case. A little
6 problem with that: You learned he gave a statement on August
7 22nd, and the photo was taken the morning before. Don't let
8 that get in the way. We'll come back to how Mr. Cohn would
9 like to treat Agent Gaudin.
10 You have heard about the Kenyan handmaidens. What are
11 they doing? There ain't no bruises. There were no complaints
12 from Al-'Owhali. Why didn't we call them? Okay. Hi, sir.
13 Were you working in the jail? Did you beat Al-'Owhali? No.
14 What Mr. Cohn would say, maybe it was someone else.
15 What, do we call 350 people to say we didn't beat him?
16 Mr. Cohn will do what he did with Agent Gaudin. He lied. Do
17 what he did to Muwaka Mula. He lied. I submit to you the
18 agent is sitting there, talking to him alone, and he never
19 once says he's hurt.
20 The translator. You didn't hear from the translator. I
21 submit to you, you think about the statement. How bad could
22 the translator have been? He got it right. He's given him
23 the phone number in Yemen. I called 00578 in Yemen. Lo and
24 behold, checked the phone records, he's calling 00578 in
25 Yemen. Says he went to the M.P. Shah Hospital. Yep, he got
6010
1 it. Money transfer house.
2 And you know what? Look at the form. Look at the form
3 that Al-'Owhali signed. You can look at it. It's in
4 evidence, Government Exhibit 557. What does he say before he
5 gives a statement?
6 I'll back up a moment. Why did he give a statement?
7 Well, it's in evidence. He gives a statement after he is
8 picked out in the lineup by Muwaka Mula. He walks up, "That's
9 the guy."
10 He knows he's been picked out. He's shown the pictures of
11 43 Runda Estates. He now knows they got the bomb factory.
12 That thing is going to light up like a Christmas tree. And
13 they got the phone records. They showed him the phone
14 records. And what do the phone records from Runda show? His
15 name, or his fake name, Khalid Saleh. Khalid Saleh calling
16 that number in Yemen, 00578, the number in Yemen in touch with
17 the satellite phone. And you know what? It's Khalid Saleh
18 calling that number in Yemen an hour before the bombing,
19 checking in before mass murder, 9:30 in the morning.
20 So as he's sitting there in Nairobi, he says, well, I got
21 my fake name calling up Yemen from the place, the bomb
22 factory. They got pictures of the bomb factory and I got
23 picked out in the lineup. And you know what? When he signs
24 the form, what does he want? I don't know what word to use,
25 but he's got the gall to -- stronger words we can't use --
6011
1 he's got the gall to make demands.
2 Here it goes, after acknowledging that he was advised of
3 his rights, 557: "I understand that both Kenyan and American
4 authorities are investigating the murder of the various
5 American and Kenyan victims in and around the United States
6 Embassy in Nairobi. I have a strong preference to have my
7 case tried in the United States court because America is my
8 enemy and Kenya is not.
9 "I would like my statements about what I have done and why
10 I have done it to be aired in public in an American courtroom.
11 I understand that the American authorities who are
12 interviewing me want to know who committed the bombing of the
13 embassy and how it was carried out."
14 He wanted his day in the sun. He wanted to be in an
15 American courtroom with the media there to hear what he did,
16 why he did it, before he talked. He did, and he got it.
17 And you know what? This guy's fearing for his life and
18 he's the one making the demands and now they're going to tell
19 you, sit back and listen. Basically, shut up, stupid. I'm
20 going to tell you what happened, and when I'm done, then you
21 can ask me questions.
22 And you know what? The best proof of that is a defense
23 exhibit. Let's put up Defendant Al-'Owhali Exhibit C on the
24 screen. This is a man who just killed over 200 people, was in
25 the hospital with the victims, saw the people he blew up.
6012
1 There's no Agent Gaudin here. This is the one with the
2 reporter. He thinks he's a champ. Is he in fear of his life
3 or is he just, just brazen, arrogant, in your face, saying,
4 "Hey, America, you're the enemy. I'm going to fight you. I'm
5 going to meet you in court. I want to tell my story."
6 Is his story reliable? It's completely corroborated. He
7 talks about the gun, the .9 millimeter gun he left in the
8 truck, the slide, the slide for the .9 millimeter was found
9 there with the pitting, very close to the bomb and the
10 bullets, the bullets matched and were found in the hospital
11 where he was.
12 What else did he tell you? He told you about the Dihab
13 Shil money, and this checked out. And he told you about the
14 French Embassy. Remember, he said down in Dar there's this
15 other bombing and they had to move the truck around because
16 they didn't want to hit the French Embassy. And lo and
17 behold, Ambassador Lange comes out and says after the bombing,
18 I come out, I go across the courtyard, I shake hands with the
19 French ambassador.
20 Now, another thing about Al-'Owhali. You would think they
21 want you to think that the only evidence in the case is his
22 confession. I submit to you, very clearly, that there's more
23 than enough evidence, more than enough evidence to convict
24 Al-'Owhali beyond a reasonable doubt without the confession.
25 Strong words, but true.
6013
1 Muwaka Mula. Charles Muwaka Mula who came, the guy who
2 had the stun grenade thrown at him. How many times do you
3 think that happened in his life? Hopefully once. You think
4 he can remember the guy who threw it at him. When he took the
5 stand, you remember your recollection of what he did? I
6 submit to you, you may remember that he sat there and he
7 looked when he was there, looked this way for a long time, and
8 then he slowly started to turn around in his seat during the
9 testimony, and then, when he was called upon, he identified
10 him.
11 And what does Mr. Cohn do? Well, he calls it the worst
12 I.D. witness in the history of the Western world, which fits
13 if you make up that he cheated. He said, well, there's only
14 six bearded guys in the courtroom. Okay. Why would you have
15 to assume that Al-'Owhali would have to be bearded in the
16 courtroom? He says, well, someone told him, implies someone
17 told him where he sat.
18 Let's look at the record, quote from 2155:
19 "Q. And they told you that the suspect would be in the
20 lineup, yes, in the parade, right?
21 "A. No."
22 2156:
23 "Q. Okay. Well, since Friday, did anybody tell you where the
24 person you identified would be sitting in this courtroom so
25 that you could identify him?
6014
1 "A. No."
2 But in the ultimate cheap shot in the trial, he just
3 implies it must be that guy Gaudin. Or, it wasn't the people
4 at the table. Somebody told him who did it. There are plenty
5 of candidates, maybe someone we've talked a lot about. Didn't
6 even bring up his name, just implied that an FBI agent
7 obstructed justice by telling a witness something that the
8 witness lied about.
9 I submit to you he has no burden, but if he thinks that,
10 ask the man the question. He's available. He was on the
11 witness stand. Ask him about it.
12 What is the other evidence in this case? Besides Muwaka
13 Mula, here's what you have. You have TNT and PETN on
14 Al-'Owhali's clothes. You have a receipt in his pocket,
15 Khalid Saleh, when he is arrested, the fake name, the receipt
16 to the M.P. Shah Hospital where they find those bullets that
17 match the gun.
18 You have his name, Khalid Saleh, tied to the travel
19 records coming in. You have his name tied to the calls placed
20 in the bomb factory, 43 Runda; the name tied to the call on
21 August 7th, 1998 at 9:30 to Yemen.
22 You have him picking up the money from the wire service,
23 and you have not only Muwaka Mula putting him at the scene of
24 the crime, but you also have Harun's briefcase in the Comoros
25 Islands. Remember when they searched the house of Harun, the
6015
1 guy who was all over the bombing? His clothes test positive
2 for TNT and PETN between his clothing and his shoes.
3 They find Al-'Owhali's tickets under the fake name Khalid
4 Saleh with Harun's stuff with Al-'Owhali's fingerprint on it.
5 They find the passport for Al-'Owhali and for Azzam, who's
6 dead, killed himself along with the others.
7 I submit to you that Mr. Cohn would like you to think that
8 maybe there's some other conspiracies we should also have
9 charged. The charges in the indictment have been proven.
10 Mr. al-'Owhali had a brain, he had knowledge, he had an
11 understanding of the scope of the agreement, the agreement to
12 kill. He agreed. He killed.
13 Let's turn to Khalfan Khamis Mohamed. Mr. Ruhnke on
14 behest of Mohamed also talked about the conspiracy. I submit
15 to you two things: First, listen to the judge as to what he
16 says about conspiracy, but one thing I submit he will tell you
17 is that each member doesn't have to know every other member.
18 Each member does not have to know every other detail. Each
19 member doesn't have to have joined at the same time.
20 And I submit to you, one thing that should be crystal
21 clear is that Khalfan Khamis Mohamed knew what the plan was,
22 he knew the plan was to kill Americans, and he knew that the
23 target was the embassy. I'm going to walk through that in a
24 moment when we get to the time line, because the timeline that
25 Mr. Ruhnke went through yesterday, there are some things that,
6016
1 I submit, in your mind you should add that paint a fuller
2 picture.
3 First of all, Mr. Ruhnke referred several times to the
4 manual labor, Khalfan Mohamed was doing manual labor, always
5 under the supervision of someone else. He just had the sense
6 of a blue collar guy just showing up, doing his job, and
7 somebody else is telling him what to do.
8 Okay, what was the manual labor? The manual labor was
9 grinding TNT. It was loading TNT and explosives, a bomb onto
10 a truck. It's not manual labor, it's making a bomb.
11
12 (Continued on next page)
13
14
15
16
17
18
19
20
21
22
23
24
25
6017
1 MR. FITZGERALD: (Continuing) You also heard, and
2 this is important, you heard Mr. Ruhnke say that they had to
3 tell him that it was TNT. Didn't that sound like a pathetic
4 bomber, they had to tell him it was TNT? I submit to you, if
5 you look at the record, if you look at the report, which is in
6 evidence, they had to tell him it was TNT, they told him it
7 was TNT because the TNT came, as he said, in a closed bag that
8 was stitched up. It's inside a closed bag. Not knowing
9 what's in the bag doesn't mean you don't know what TNT is. In
10 fact, if you read the rest of the statement, Khalfan Khamis
11 Mohamed says, he admits he went to Afghanistan and got
12 explosives training. He was trained in how to join wires and
13 do detonators. He knows what TNT is. He just may not know
14 from a closed, stitched, non-see-through bag that it is in the
15 bag at the time. And he certainly knew what TNT was when he
16 grinded it through the grinder for the bomb and loaded it up.
17 If there is any doubt that Khalfan Khamis Mohamed
18 didn't know what was going on, I will show you a couple of
19 sections. Page 20 of his report, KKM stated that all the
20 members of the group -- he is referring to the people in the
21 Dar es Salaam bombing, he said he didn't know about Nairobi.
22 KKM stated that all the members of the group were aware of the
23 plan to bomb the American Embassy in Dar es Salaam. KKM
24 stated that no one in the group was fooled or tricked into
25 being involved. KKM stated that this bombing could not have
6018
1 been done without the entire group's knowledge. He also said
2 not only did he know the plan, he knew the target.
3 I suggest if you put in your time line, five days before
4 the bombing, August 7, KKM was told the target. Take his word
5 for that, not mine.
6 Look at the report, page 10. Quote, KKM stated that when
7 he moved to the Ilala house -- the bottom paragraph -- he knew
8 that a bomb was planned, not because of what he had been told
9 at that point but because he had seen the TNT and other things
10 associated with the bombing. KKM stated that initially he did
11 not know what was going to be bombed, where the bombing would
12 take place or when the bombing would occur. Before Hussein --
13 this guy Hussein, Mustafa Fadhl -- before Hussein left to go
14 to Kenya, approximately five days before the bombing, however,
15 he told KKM that there was going to be a bomb at the American
16 Embassy in Dar es Salaam, Tanzania. Hussein told him at that
17 time that the bombing was going to occur sometime over the
18 weekend of August 7, 1998, but did not inform him of the
19 specific time. KKM stated that Ahmed the driver told him on
20 Thursday, August 6, that the bombing would occur at 10 a.m. on
21 Friday, August 7, 1998. KKM stated that he did not know why
22 10 a.m. was chosen as the time for the bombing to happen and
23 he never asked why that time was chosen. KKM stated that the
24 time must have been important but he did not know the reason.
25 KKM stated that Hussein often spoke with a person in Kenya for
6019
1 plans. He stated that he really did not know anyone involved
2 in the bombing other than those in the group around him. Goes
3 on to say that he knew nothing about the bombing in Nairobi
4 until he saw it reported on television. OK, he didn't know
5 about the Nairobi bombing. He is not charged with the Nairobi
6 bombing. But he says I knew, I was told, I was told five days
7 before, he saw the TNT, he grinded it. He did it.
8 You know what's more important? More important to
9 put on the time line? Later on you find out that when the
10 bomb's going off he's praying. He's praying and hoping things
11 go well, and when he hears that the bombing happened, he's
12 happy.
13 And you know what else? Put this in the time line for
14 October 1999, because remember, when he is interviewed it's
15 more than a year, more than a year after the bombing. And
16 what does he say? Think about it. Is he someone that says
17 hey, what did I do, I killed 11 men, 11 people are dead
18 because of what I did? What do we hear? Page 32 of his
19 report, under KKM's motivation. KKM stated that he was not
20 sorry for the fact that Tanzanians were killed, and he
21 described it as part of the business. He goes on to say that
22 KKM stated that Allah would take care of those Tanzanians who
23 were killed.
24 Below, skipping two sentences, KKM was asked whether he
25 considered this bomb to be a successful operation, and he
6020
1 stated that it was successful because the bomb worked. It
2 sent a message to America and it kept Americans busy
3 investigating it. KKM stated he would rather kill only
4 Americans.
5 Next paragraph, KKM stated that if he had not been
6 caught by the police he would have done it again. KKM
7 specifically stated that he would kill Americans and he would
8 help with another bombing against Americans. KKM also stated
9 that if he was ever released from custody he would kill
10 Americans and help with another bombing. KKM stated that he
11 hopes that others will carry on now that he is caught, and
12 stated that he would still carry on if he could.
13 Down below, scope of the conspiracy: KKM stated he
14 must do anything necessary to get the American soldiers out of
15 Saudi Arabia and that it is his duty to kill these soldiers.
16 KKM stated that because it was very difficult to get to the
17 soldiers, his group targets and attacks the United States
18 government to include American embassies and other United
19 States government buildings.
20 He's had a year to think. Eleven people killed by
21 him, 11 people he wasn't even targeting, and after a year he
22 says I ain't sorry, I wish I had killed more Americans. This
23 is not someone who accidentally got involved in a bombing. He
24 made a conscious determination that he had agreed to kill
25 Americans. Bombing the embassy was a way to do it and he did
6021
1 it. The key evidence, certainly the confession is important
2 but I submit, without the confession you could still convict
3 Khalfan Khamis Mohamed beyond a reasonable doubt.
4 We heard about Mr. Ruhnke bringing up some problems
5 about Agent Perkins' notes yesterday, some discrepancies. I
6 submit two things. He has no burden to do anything but he had
7 Agent Perkins on the stand. He could have asked in front of
8 you and saw what he said. Remember when Mr. Stern implied the
9 thing about killing Americans wasn't in her notes.
10 Transcript, Stern: You said in your report that Mr. Mohamed
11 said if he hadn't been caught by the police he would have done
12 it again, specifically stated that he would have killed
13 Americans and would have helped with another bombing if ever
14 released from custody. Would kill Americans and help with
15 another bombing. Then he says where is it, OK, page 77, it
16 says here, KK stated if released from custody or never caught
17 would do it again, would kill Americans, would do bomb. That,
18 I submit to you, is why no further questions were asked of
19 Agent Perkins. It is in her report, it's in her notes.
20 One other thing. You also heard argument that one of
21 the reasons there is evidence against K.K. Mohammed is that he
22 talked, and without that there would be precious little to
23 link him to the bombing. Not true. Go back to the
24 cross-examination of Agent Perkins. Mr. Sterns said you knew
25 an awful lot of information when you talked to him, didn't
6022
1 you? He went through different things K.K. Mohammed already
2 said, you knew that, you had already. Remember, they were
3 there to arrest Mr. Mohamed. They had done an investigation.
4 He didn't roll down the street.
5 What does the independent evidence show apart from his
6 confession? The evidence places him at 15 Amani Street.
7 Passport photos there, passport application with his
8 fingerprints on it. Also, there is a detonator. The other
9 evidence places him, different witnesses place him at 22
10 Kidugalo Street with Mustafa Fadhl, this guy he calls Hussein.
11 The items in there, the carpet you saw, the reddish carpet and
12 the foam, they test positive for explosives residue. The
13 evidence shows he bought the Suzuki with Fahad, a bomber, the
14 person you saw fleeing on the plane from Nairobi with Mohamed
15 Odeh. The evidence shows, proves he rented the bomb factory
16 from the broker, from his nephew, from the lease. And the
17 bomb factory is the bomb factory. Explosives test, light to
18 place them up like a Christmas tree. In there is that
19 blasting cap and the detonator, and the razor with the DNA of
20 Ahmed the German, the suicide bomber from Dar es Salaam.
21 The nephew tells you that he gave him that grinder,
22 the grinder that tested positive for TNT, not PETN. You grind
23 TNT. PETN you don't grind. It's a detonator. He gave it to
24 him and said clean it, it's been used for unclean things.
25 There is something Mr. Ruhnke said that I think we
6023
1 need to address. It was a comment he made and I want to quote
2 it accurately. It was yesterday, at 5873. Thanks. I told
3 Mr. Karas I'd lose it, bring an extra. He said this: As the
4 world turns, as events go, if Khalfan Mohamed had left to go
5 to London to start a new life, probably the embassy would have
6 been bombed on August 7, 1998 anyway, and that would not have
7 changed. But everything would have changed for him and he
8 would not be sitting here facing your judgment. But that's
9 not how the world turned.
10 Two comments on that. First, he assumes it would
11 have happened anyway. Let us not get to the point where we
12 assume that if someone says I'm not participating in mass
13 murder that there is just someone else there to do it. Let us
14 not be numb. We talk about the 18th century, we talk about
15 the 19th century, we talk about the 20th century. In the 21st
16 century, let's keep the fact in mind that you have a mind, you
17 have a brain, you have choices, and you decide what you do.
18 You are accountable for your actions. As the world turns.
19 This is not like the weather. This wasn't an event that
20 happened to him. This was a bombing he did to others.
21 I submit to you, the evidence is clear, the evidence is
22 crystal clear that he knew the design was to kill Americans.
23 He knew what the TNT was for. He was told what the target
24 was. He did it. He made a decision. He didn't flee to
25 London, he fled to South Africa. He turned the world, the
6024
1 world didn't turn him. And you know what, a year later he is
2 not saying gee, if only I had gone to London. He is saying
3 yeah, I did it, I'm glad I did it, I'm glad, I wish more
4 Americans had died, I don't care that Tanzanians died and I
5 would do it again. That shows you beyond a reasonable doubt
6 that he is guilty.
7 I told you at the beginning I would talk about El Hage,
8 that I would talk to you about Odeh, I would talk to you about
9 Al-'Owhali, I would talk about Khalfan Khamis Mohamed, and
10 then I would talk to you about someone you have had heard
11 precious little about. That is Roselyn Wanjiku Mwangi.
12 Roselyn Wanjiku Mwangi. You may not remember that name. She
13 was not a witness. She could not be a witness. She is a
14 victim in this case.
15 This trial is about her murder. The pathetic part is, so
16 many people got killed, so much human carnage. Roselyn
17 Wanjiku Mwangi. She is Count No. 123 in the indictment. You
18 have to get to page 45 of the indictment to see her name. But
19 she is not just a name. She is not just a count. It is not a
20 name on a list. It's a person.
21 You heard a little bit about the person. I want to talk
22 about her as a symbol, as a symbol because there were a lot of
23 people who were killed. A lot of people were killed in
24 Nairobi and in Dar es Salaam. You heard about that man that
25 Lizzie Slater talked about lying there, burned and dying, so
6025
1 bad she wished he would hurry up and die. Rosie -- that's who
2 Roselyn is -- Rosie you heard about from Sammy Nganga. He was
3 in Ufundi House, what Odeh calls the wrong building, next to
4 the embassy, the right building. Ufundi House that Sammy
5 Nganga had his back to as Odeh sprinted away to save his life.
6 MR. WILFORD: Objection.
7 MR. FITZGERALD: I apologize. Mohamed Al-'Owhali
8 sprinted away from. You know what, Sammy Nganga, when the
9 bomb went off, was buried beneath the rubble. He was the guy
10 with the injured leg buried beneath the rubble, and he stayed
11 there for two days. He is in there in the darkness with the
12 smell, with the sounds. One of the sounds is Rosie's voice,
13 because she is buried there too. The searches come and they
14 look for Rosie and look for Sammy. They have a light and they
15 are looking with the light to find them. They save Sammy and
16 he says they'll be back in two hours for you. They don't make
17 it back in time.
18 Rosie dies. She is Count 123, page 45. Her life was
19 lost. Her life was taken from her.
20 Now, I submit to you, this trial has been a search, a
21 search through the rubble pile of the evidence, for truth and
22 for justice, for those that did this, those that drove a truck
23 or rode in a truck right into the embassy to bomb people,
24 those who gave the advice as to where to place the bomb to hit
25 the right building, those who helped set up the plot, the
6026
1 terror cell in East Africa so it could operate, so people
2 could do their work and get out of town, and those who grind
3 TNT and drive a truck into a different embassy moments later
4 and kill, and have no regrets.
5 I submit to you it's been a long journey. It takes
6 work to go through the rubble pile of evidence, because we
7 have to. We have to uphold justice. We have to work through
8 it. We have to prove guilt beyond a reasonable doubt. I
9 submit to you, we have taken that journey, we have proved it,
10 we are there. Now it's time for light, light of the truth to
11 shine through and give Rosie one thing: Justice. Thank you.
12 THE COURT: Thank you, Mr. Fitzgerald. We will take
13 a morning recess.
14 (Jury excused)
15 THE COURT: We will place on every juror's seat three
16 documents: The indictment, the court's charge, and the
17 special verdict form. I received a note from a juror: "Your
18 Honor, I apologize in advance if my request is a major
19 inconvenience. Is it possible for us to adjourn at 3:30 on
20 Friday?" Then she goes on to detail a birthday and a surprise
21 party which her husband has told her that her children are
22 planning for her.
23 (Laughter)
24 THE COURT: It gives some reflection of the impact on
25 which jury service impacts on people's everyday lives. Unless
6027
1 there is objection, we will adjourn early on Friday.
2 MR. RICCO: No objection. Can we adjourn to the back
3 to be heard on one brief matter?
4 MR. COHN: And I would like to be heard here.
5 During Mr. Fitzgerald's rebuttal he mentioned for the
6 second time during summations, the first time during
7 Mr. Karas's summation, certain material that was shown to
8 Mr. Al-'Owhali that caused him to confess, and I think what he
9 said was pictures about Runda Estates and something about
10 telephone numbers. We searched the record both times and
11 cannot find that. If the government would favor us with a
12 record reference, we won't make the motion that you instruct
13 the jury that it never happened and that it be stricken.
14 MR. FITZGERALD: We will do that.
15 THE COURT: Very well. There was some other record
16 inference?
17 MR. WILFORD: Yes, your Honor, page 5934.
18 THE COURT: What does it say?
19 MR. WILFORD: The portion of the transcript.
20 MR. BAUGH: Excuse me. We are advised the
21 translators cannot hear.
22 MR. WILFORD: We will speak loudly.
23 THE COURT: You can do that?
24 MR. WILFORD: Only when I have the microphone. Your
25 Honor, it's a portion of the transcript where Mr. Fitzgerald
6028
1 is talking about an argument of Mr. Schmidt in terms of being
2 a facilitator and what was needed to succeed as a facilitator.
3 Then he goes on to say, particularly at line 12, Kherchtou
4 explained it to you. You don't have to shoot the gun if you
5 are helping someone else you know is going to do it. I think
6 that is an oblique reference that Kherchtou pled guilty to the
7 activities.
8 THE COURT: Overruled.
9 MR. RICCO: Your Honor, I might as well raise it
10 since we are here. I only have one point with respect to Mr.
11 Fitzgerald's summation, and that was his explanation to the
12 jury of what PETN is -- they can't hear? My only objection is
13 to what Mr. Fitzgerald said PETN is and how it was used in
14 connection with this case. He said it was only used in
15 connection with detonator caps and explaining the role of
16 Mohamed Odeh. But the transcripts in the case said at page
17 2483, the testimony of Kelly Mount, the question is, can you
18 tell us whether or not PETN is a high explosive? Answer, PETN
19 is also a high explosive, yes. Question, do you know what
20 kind of use PETN is in connection with explosives? Answer, it
21 has several uses. It may be found in blasting caps, it can be
22 used in detonator coils, and it can be used as an explosive in
23 and of itself.
24 Maybe I misunderstood Mr. Fitzgerald. Maybe he said it
25 can be used for other purposes. I didn't hear that and I
6029
1 would like to have an opportunity to look at the record. If
2 he did say to be used in other connections, fine. But if he
3 is making a representation to the jury that the only way PETN
4 is used, it's not mixed with TNT, I heard him say that, and it
5 is only used for detonator caps, that is a mischaracterization
6 of the record that should be corrected.
7 THE COURT: Why don't I take a recess, during which
8 time we will do the distributions, and having consulted with
9 the record we will take up these matters before the jury comes
10 back in.
11 (Recess)
12 THE COURT: With respect to the issue raised by Mr.
13 Cohn, I understand reference to the record has satisfied you
14 and the objection is withdrawn.
15 MR. COHN: The record reflects that a question about
16 telephone numbers and the photos of the house was asked.
17 MR. FITZGERALD: On the other matter, Judge, I think
18 it was fair argument to point out that with regard to the
19 grinder in Dar es Salaam, first Kelly Mount said it could be
20 used for a detonator and Mr. Ricco correctly described her
21 testimony that you could use it for a detonator or an
22 explosive. In this case in Dar es Salaam, the grinder was
23 tested and it had TNT but not PETN. I think it is a fair
24 conclusion to say that the PETN is used as a detonator. I
25 didn't say it was only used as a detonator and I think it is
6030
1 fair argument on the evidence.
2 MR. RICCO: His statement on the record is that PETN
3 is a detonator. That's what he said.
4 THE COURT: I thought it was PETN is not ground.
5 Isn't that the issue?
6 MR. FITZGERALD: I also said it is a detonator. If I
7 misspoke, it is in a detonator.
8 THE COURT: What would you have me do?
9 MR. RICCO: I would have the court instruct the jury
10 that there was testimony in this case that PETN is also a high
11 explosive. It can be used in detonating coils, it can be used
12 as an explosive in and of itself, which is the testimony in
13 this case.
14 THE COURT: But that would only be part of the story.
15 The other part of the story is that PETN was not found on the
16 grinder.
17 MR. RICCO: That's right. PETN was also found in the
18 room where the grinder was. That's beside the point. I am
19 not raising it, your Honor, to connect it to the grinder.
20 THE COURT: You want the jury to be told that the
21 testimony indicates that PETN may be used --
22 MR. RICCO: Judge, the testimony was PETN is also a
23 high explosive. It may be found in blasting caps. It can be
24 used --
25 THE COURT: Let's keep it very short and very simple.
6031
1 MR. RICCO: There was testimony that PETN is also a
2 high explosive and it can be used in detonating --
3 THE COURT: Is a high explosive, it is also used in
4 detonators, no PETN was found on the grinder. Yes? Is that
5 all right?
6 MR. FITZGERALD: Judge, my argument is, I remember
7 discussing that you don't grind the PETN, it's like a blasting
8 cap. The argument is that there is no PETN on the grinder. I
9 think that is a fair argument. There is TNT, blasting caps
10 and no PETN in the grinder. Her testimony is that PETN was
11 found in blasting caps. I understand Mr. Ricco would like to
12 argue it differently.
13 MR. RICCO: It is not that I would like to argue it
14 differently. Mr. Fitzgerald said in his remarks to this jury
15 that PETN is not an explosive. There was another reference in
16 addition to the reference we just found in the record, and I
17 just want the record correct.
18 MR. FITZGERALD: Your Honor, I don't believe I stated
19 that PETN --
20 THE COURT: Does the record indicate that it is not
21 ground?
22 MR. FITZGERALD: I argued that it was not ground
23 because the grinder in this case tested negative.
24 THE COURT: PETN is sometimes used as a high
25 explosive. It is also used for detonators and blasting caps.
6032
1 No PETN was found on the grinder. Is that all right?
2 MR. FITZGERALD: Fine.
3 THE COURT: When the verdict is returned, no one will
4 leave the courtroom until the jury is outside the building.
5 (Continued on next page)
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6033
1 (Jury present)
2 THE COURT: Ladies and gentlemen, it is now going to
3 be your great pleasure to listen to me for many hours. If at
4 any point anybody wants to take a break, just raise your hand
5 and we will take a break. We will take our usual breaks.
6 Let me first tell you, with respect to PETN, you
7 heard references to that in closing statements. PETN is
8 sometimes used as a high explosive. It is also used for
9 detonators and blasting caps. And no PETN was found in the
10 grinder in this case.
11 Let me also answer some questions that you had about
12 the logistics. Just before the jury begins deliberating,
13 which will probably be tomorrow afternoon, because we are not
14 sitting tomorrow morning, just before that happens the
15 alternates, that is, assuming everyone stays healthy the last
16 four persons in the back row, will be excused temporarily.
17 You will continue to be members of the jury. You will be
18 subject to all the instructions that I have previously given
19 about not reading, listening to or talking with anybody about
20 the case. And you will be on telephone call. The jury
21 clerk's office has both your work and home telephone numbers.
22 When it becomes appropriate and if it becomes appropriate for
23 you to return, we will give you a telephone call and you will
24 have as much notice as possible. And if it will not be
25 necessary for you to return you will also be given a telephone
6034
1 call to let you know that you are off the hook.
2 I am sorry to say that you will not be paid when you
3 do not come to the courthouse. I looked into that rule and
4 there is just nothing I can do about it.
5 Tomorrow we start at 1:00. On Friday we will adjourn
6 at 3:30 to enable a juror to attend a happy event.
7 There are three documents that you found on your
8 seat. One of them is the indictment, and I don't think I will
9 be making too much reference to that where it is necessary
10 that you look at the indictment yourself. So that if you have
11 difficulty juggling all the papers on your lap, the indictment
12 is something that you can put on the floor. The two other
13 documents are the charge to the jury, sometimes referred to as
14 the instructions, and the other is the verdict form, which we
15 will go through during the course of my instructions to you,
16 and that's the road map. That tells you what it is that you
17 will have to answer, and you will see that more clearly as we
18 go through it.
19 I am going to read the charge to you. Sometimes the
20 impulse to deviate from the printed text may be irresistible
21 and I hope I will remember that, and to alert you and to alert
22 the court reporter to the fact that I am doing that. But
23 otherwise I will follow the text.
24 You may wonder why if I am going to do all this
25 orally you have it in writing, and why if you are going to
6035
1 have it in writing I am going to do it orally. The reason for
2 that is, it is very important, and we are not simply going
3 through a ritual. We are going through a process which I hope
4 you will understand. Our own experience and the experts on
5 learning and understanding tell us that some people absorb
6 concepts better when they hear them, when they just listen,
7 and some people absorb them better when they read, and some
8 people prefer to read and listen at the same time. What we
9 are doing is, we are giving you the option. If you would like
10 to put the charge, the written charge on the floor or face
11 down on your lap and just listen, that's fine. If you would
12 like to read along with me, that's fine. If you would like to
13 vary it from time to time, that's OK. There is no right way,
14 there is no wrong way. It is whatever you think will be most
15 useful to you in following and understanding the very
16 important functions that you will soon be called upon to
17 discharge.
18 The charge begins with a table of contents, and that
19 is just to assist you if during your deliberations you want to
20 check a point, and then it begins on page 1, where I welcome
21 back members of the jury. And I join the parties in thanking
22 you for your service thus far.
23 I told you at the outset of the trial before you begin
24 your deliberations I will instruct you on the law in greater
25 detail, and that time has now come.
6036
1 It's been obvious to me and to everyone in this courtroom,
2 you have faithfully discharged your duty to listen carefully
3 and observe each witness who testified. Your interest has
4 never flagged and you have followed the testimony with close
5 attention. I ask that you give me the same careful attention
6 as I instruct you on the law.
7 The following instructions are rather extensive, so
8 let me provide you with a brief overview of what to expect. I
9 will begin by instructing you on the rules generally
10 applicable to all criminal trials. Then I will proceed to
11 review the counts which are charged in the indictment and
12 instruct you on the specific rules of law that you will have
13 to consider in deciding each count. Finally, I will instruct
14 you on the procedures you should follow while conducting your
15 deliberations.
16 Let me encourage you at the outset not to be dismayed
17 or discouraged by the length of these instructions. The
18 instructions are extensive because you are being asked to
19 resolve several different types of charges, and the various
20 elements of each count must be explained separately. I have
21 tried to make these instructions as clear and concise as
22 possible. If you proceed step by step and count by count, you
23 should have no difficulty applying these instructions to help
24 you weigh the evidence and decide the case.
25 For your convenience, there is a table of contents to
6037
1 assist you in locating any particular instructions you may
2 wish to consult, although, as I will instruct you later, no
3 part of the charge should be considered out of context, and
4 the captions are simply a reference and have no other
5 significance.
6 You have now heard all of the evidence in the case as
7 well as the final arguments of the lawyers for the parties.
8 My duty at this point is to instruct you as to the law. It is
9 your duty to accept these instructions of law and apply them
10 to the facts as you determine them, just as it has been my
11 duty to preside over the trial and decide what testimony and
12 evidence are relevant under the law for your consideration.
13 On these legal matters, you must take the law as I
14 give it to you. If any attorney has stated a legal principle
15 different from any that I state to you in my instructions, it
16 is my instructions that you must follow. Moreover, if you
17 find a conflict between the language of my instructions and
18 the indictment, you rely on my instructions.
19 You should not single out any instruction as alone
20 stating the law but you should consider my instructions as a
21 whole when you retire to deliberate in the jury room. You
22 should not any of you be concerned about the wisdom of any
23 rule that I state, regardless of any opinion that you may have
24 as to what the law may be or ought to be. It would violate
25 your sworn duty to base a verdict upon any other view of the
6038
1 law than that which I give you.
2 It is the role of the jury to pass upon and decide
3 the fact issues that are in the case. You the members of the
4 jury are the sole and exclusive judges of the facts. You pass
5 upon the weight of the evidence, you determine the credibility
6 of the witnesses, you resolve such conflicts as there may be
7 in the testimony, and you draw whatever reasonable inferences
8 you decide to draw from the facts as you have determined them.
9 Before we proceed, let me explain to you what an
10 inference is. During the trial you have heard references by
11 the attorneys to the term "inference" and in their arguments
12 they have asked you to infer, on the basis of your reason,
13 experience and common sense, from one or more established
14 facts, the existence of some other fact.
15 An inference is not a suspicion or a guess. It is a
16 reasoned, logical decision to conclude that a disputed fact
17 exists on the basis of another fact which you know exists. An
18 inference is a deduction or conclusion which you, the jury,
19 are permitted to draw -- but not required to draw -- from the
20 facts which have been established by the evidence.
21 In determining the facts, you must rely upon your own
22 recollection of the evidence. What the lawyers have said in
23 their opening statements, in their closing arguments or in
24 their questions or objections is not evidence. In this
25 connection, you should bear in mind that a question put to a
6039
1 witness is never evidence. It is only the answer that is
2 evidence. However, please keep in mind, you are not to
3 consider any answer that I directed you to disregard or that I
4 have directed be stricken from the record. Do not consider
5 such an answer.
6 Nor is anything that I have said during the trial or
7 may say during these instructions about an issue of fact to be
8 substituted for your own independent recollection. What I say
9 is not evidence. Because you are the sole and exclusive
10 judges of the facts, I do not mean to indicate any opinion as
11 to the facts or what your verdict should be. The rulings I
12 have made during the trial are not any indication of my views
13 of what your decision should be as to whether or not the guilt
14 of any defendant has been proven beyond a reasonable doubt.
15 I also ask you to draw no inference from the fact
16 that on occasion -- and I interject, I believe on very rare
17 occasion -- I asked questions of certain witnesses. These
18 questions were only intended for clarification or to expedite
19 matters. They were not intended to suggest any opinions on my
20 part as to either the verdict you should render or whether any
21 particular witness may have been more credible than any other
22 witnesses. You are to expressly understand, the court has no
23 opinion as to the verdict you should render in this case. If
24 there is any difference or contradiction between what any
25 lawyer has said and what you decide the evidence showed, or
6040
1 between anything I may have said or what you decide the
2 evidence showed, it is your view of the evidence, not the
3 lawyers' and not mine, that controls.
4 I may refer to evidence during the course of this
5 charge -- and, I interject, I do so, I think, very little if
6 at all. You have heard days and days of closing argument, and
7 I see no point in reprising all that for you. If I do make
8 any reference to evidence, I will try to be as accurate as
9 possible. If I should make a mistake, it is your recollection
10 and yours alone that governs.
11 As to the facts, you, the members of the jury, are
12 the exclusive judges. I know that you will try the issues
13 that have been presented to you according to the oath which
14 you have taken as jurors in which you promised that you will
15 well and truly try the issues joined in this case and a true
16 verdict render. If you follow your oath and try the issues
17 without fear or prejudice or bias or sympathy, you will arrive
18 at a true and just verdict.
19 You should know that it is the duty of the attorneys
20 on each side of the case to object when the other side offers
21 testimony or other evidence that the attorney believes is not
22 properly admissible. Counsel also have the right and duty to
23 ask the court to make rulings of law and to request
24 conferences at the sidebar or in my robing room out of the
25 hearing of the jury. All such questions of law must be
6041
1 decided by me the court. You should not show any prejudice
2 against an attorney or against an attorney's client because
3 the attorney objected to the admissibility of evidence or
4 asked for a conference out of the hearing of the jury, or
5 asked the court for a ruling on the law.
6 On a related note, you have also noticed throughout
7 the trial that counsel for various defendants have consulted
8 with each other in an effort to facilitate their presentation
9 and to avoid duplication. The fact that defense counsel have
10 consulted and cooperated with each other in the conduct of
11 their defense is not to be considered by you as having any
12 significance with respect to the issues in the case. The
13 issue of each defendant's guilt is personal, and you must make
14 a separate determination as to whether or not each defendant's
15 guilt has been proven beyond a reasonable doubt.
16 In making that judgment, you are to disregard
17 entirely the circumstance that counsel for various defendants
18 have worked together during the trial. Indeed, especially in
19 a case of this length, it would be unusual and wasteful of
20 time and effort if counsel did not share the burdens of the
21 defense and cooperate with the government where possible.
22 In weighing the evidence presented to you, your
23 assessment should not be influenced by how much time the
24 lawyers spent on certain topics or how emphatically or
25 eloquently they spoke about particular issues. Similarly, it
6042
1 is not who introduced an exhibit, or who read a stipulation,
2 or who called a witness, or who did not question a witness
3 that is important, but rather what the exhibit or stipulation
4 or witness testimony proves.
5 One of your principal tasks in deciding the weight
6 and importance of the evidence you have heard is to separate
7 the important from the unimportant. Keep in mind that
8 evidence that took five minutes to present may be as important
9 or more than evidence that took an entire day to present.
10 It's not how much time or effort the lawyers spent on
11 particular evidence but what that evidence proves that is
12 important.
13 While I am on the subject of the lawyers, I imagine
14 that over the last several months you have developed
15 impressions of the lawyers in this case -- largely favorable,
16 I hope. Such impressions, whether positive, negative or
17 mixed, are natural. Please remember, though, it is not the
18 lawyers who are on trial here. Lawyers are here to help
19 present evidence and to argue its significance, but it is the
20 evidence or lack of evidence alone which must be the basis for
21 your decision. Your deliberations must be independent of your
22 impressions of the attorneys and must be focused on the
23 evidence which has been presented to you. You are to perform
24 the duty of finding the facts without bias or prejudice to any
25 party.
6043
1 The case is important to the government, for the
2 enforcement of criminal laws is a matter of prime concern to
3 the community. Equally, it is important to each of the
4 defendants, who are charged with serious crimes.
5 The fact that the prosecution is brought in the name of
6 the United States of America entitles the government to no
7 greater consideration than that accorded to any other party in
8 this case. By the same token, it is entitled to no less
9 consideration. All parties, whether government or individual,
10 stand as equals at the bar of justice.
11 Your verdict must be based solely upon the evidence
12 developed at trial, or lack of evidence. It would be improper
13 for you to consider, in reaching your decision as to whether
14 the government sustained its burden of proof, any personal
15 feelings you may have about the race, religion, national
16 origin, sex or age of the defendant you are considering. All
17 persons are equally entitled to the presumption of innocence,
18 and, as I will explain to you in a moment, the government has
19 the same burden of proof with respect to all defendants.
20 It would be equally improper for you to allow any
21 feelings you might have about the nature of the crimes charged
22 to interfere with your decision-making process.
23 Under your oath as jurors, you are not to be swayed by
24 sympathy. You are to be guided solely by the evidence in this
25 case. The crucial question that you must ask yourselves as
6044
1 you sift through the evidence is whether the government has
2 proven the guilt of the defendant you are considering beyond a
3 reasonable doubt.
4 It is for you alone to decide whether the government has
5 proven that the defendants are guilty of the crimes charged,
6 solely on the basis of the evidence and subject to the law as
7 I charge you. I am sure you understand that once you let fear
8 or prejudice, bias or sympathy interfere with your thinking,
9 there is a risk that you will not arrive at a true and just
10 verdict.
11 If you have a reasonable doubt as to a defendant's
12 guilt on a count, you must not hesitate for any reason to find
13 a verdict of not guilty on the count you are considering. On
14 the other hand, if you should find that the government has met
15 its burden of proving the defendant's guilt beyond a
16 reasonable doubt, you should not hesitate because of sympathy
17 or any other reason to render a verdict of guilty on the count
18 you are considering against that defendant.
19 The question of the possible punishment of any
20 defendant is of no concern to you at this stage of the
21 proceedings and should not in any sense enter into or
22 influence your deliberations. Your function now is to weigh
23 the evidence in the case and determine whether the government
24 has proven each defendant guilty beyond a reasonable doubt,
25 solely on the basis of such evidence or the lack thereof.
6045
1 Under your oath as jurors, you cannot allow a consideration of
2 the punishment which may be imposed upon the defendants, if
3 they are convicted, to influence your verdict in any way or in
4 any sense enter into your upcoming deliberations.
5 You may not draw any inference, favorable or
6 unfavorable, towards the government or the defendants on trial
7 from the fact that any person in addition to the defendants
8 was not named as a defendant in this case or, whether or not
9 named as a defendant in the indictment, was not tried with the
10 defendants. Those matters are wholly outside of your concern
11 and should play no part in your deliberation.
12 You are about to be asked whether or not the government
13 has proven beyond a reasonable doubt the guilt of these
14 defendants. You are not being asked whether any other person
15 has been proven guilty. Your verdict should be based solely
16 upon the evidence or lack of evidence as to these defendants,
17 according to my instructions and without regard to whether the
18 guilt of other people has or has not been proven.
19 With respect to publicity, let me reiterate my
20 earlier admonitions. During your deliberations you should
21 avoid reading, watching or listening to any press coverage
22 about the case. I have been vigilant about these reminders
23 because you are required as jurors to limit the information
24 that you get about this case to what comes to you in the
25 courtroom through the rules of evidence.
6046
1 Your verdict must be based solely on the evidence
2 presented in this courtroom and in accordance with my
3 instructions. You must completely disregard any report which
4 you have read in the press, heard on the radio or seen on
5 television or elsewhere. Indeed, it would be unfair to
6 consider such reports since they are not evidence. The
7 parties have no opportunity to contradict their accuracy or
8 otherwise explain them. In short, it would be a violation of
9 your oath as jurors to allow yourselves to be influenced in
10 any manner by such publicity.
11 Although the defendants have been indicted, you must
12 remember that the indictment is only an accusation. It is not
13 evidence. The defendants have each pled not guilty to the
14 indictment. As a result of the defendants' pleas of not
15 guilty, the burden is on the government to prove guilt beyond
16 a reasonable doubt. This burden never shifts to any
17 defendant, for the simple reason that the law never imposes
18 upon a defendant in a criminal case the burden or duty of
19 calling any witness or producing any evidence.
20 The law presumes the defendants to be innocent of all the
21 charges against them. I therefore instruct you that the
22 defendants are each presumed by you to be innocent throughout
23 your deliberations until such time, if ever, you as a juror
24 are satisfied that the government, with respect to the
25 defendant you are considering and the count you are
6047
1 considering, has proven him guilty beyond a reasonable doubt.
2 Each defendant begins the trial here with a clean slate.
3 The presumption of innocence alone is sufficient to acquit a
4 defendant unless you as jurors are unanimously convinced
5 beyond a reasonable doubt of his guilt on the count you are
6 considering, after careful and impartial consideration of all
7 the evidence in this case. If the government fails to sustain
8 its burden as to a defendant on a particular count, you must
9 find the defendant not guilty on that count.
10 The presumption of innocence was with each defendant when
11 the trial began and remains with him even now as I speak to
12 you, and will continue with each defendant into your
13 deliberation. It is not removed with respect to a defendant
14 and with respect to a particular count unless and until you
15 are convinced the government has proven that defendant's guilt
16 beyond a reasonable doubt on that count.
17 The defendants did not testify in this case. Under
18 our Constitution, a defendant has no obligation to present any
19 evidence, because it is the government's burden to prove each
20 defendant guilty beyond a reasonable doubt. That burden
21 remains with the government throughout the entire trial and
22 never shifts to the defendants. A defendant is never required
23 to prove that he is not guilty.
24 You may not attach any significance to the fact that
25 a defendant did not testify, nor should you speculate as to
6048
1 why that defendant did not testify. No adverse inference
2 against him may be drawn by you because he did not take the
3 witness stand. You may not consider this against any
4 defendant in any way in your deliberations in the jury room.
5 I have said that the government must prove each
6 defendant guilty beyond a reasonable doubt. The question
7 naturally is, what is a reasonable doubt? The words almost
8 define themselves. It is a doubt based upon reason and common
9 sense. It is a doubt that a reasonable person has after
10 carefully weighing all the evidence. It is a doubt that would
11 cause a reasonable person to act in a matter of importance in
12 his or her personal life. Proof beyond a reasonable doubt
13 must therefore be proof of such a convincing character that a
14 reasonable person would not hesitate to rely and act upon it
15 in the most important of his affairs. A reasonable doubt is
16 not a caprice or whim. It is not a speculation or suspicion.
17 It is not an excuse to avoid the performance of an unpleasant
18 duty. And it is not sympathy.
19 In a criminal case, the burden is at all times upon
20 the government to prove guilt beyond a reasonable doubt. The
21 law does not require the government to prove guilt beyond all
22 possible doubt. Proof beyond a reasonable doubt is sufficient
23 to convict. This burden never shifts to a defendant, which
24 means that it is always the government's burden to prove each
25 of the elements of the crimes charged beyond a reasonable
6049
1 doubt.
2 If, after careful and impartial consideration of all
3 of the evidence, or the lack of evidence, on a particular
4 count, you have a reasonable doubt as to the defendant you are
5 considering, it is your duty to find that defendant not guilty
6 on that count. On the other hand, if, after careful and
7 impartial consideration of all the evidence on a particular
8 count, you are satisfied of the guilt of the defendant you are
9 considering beyond a reasonable doubt, you should find that
10 defendant guilty on that count.
11 The fact that one party called more witnesses and
12 introduced more evidence than the other does not mean that you
13 should necessarily find the facts in favor of the side
14 offering the most witnesses. By the same token, you do not
15 have to accept the testimony of any witness who has not been
16 contradicted or impeached if you find the witness not to be
17 credible. You have to decide which witnesses to believe and
18 which facts are true. To do this, you must look at all the
19 evidence, drawing upon your own common sense and personal
20 experience.
21 In a moment I will discuss the criteria for
22 evaluating credibility. Let me say again, though, you should
23 keep in mind that the burden of proof is always on the
24 government. The defendants are not required to call any
25 witnesses or offer any evidence, since they are presumed to be
6050
1 innocent.
2 You have heard reference in the arguments of counsel
3 in this case to the fact that certain investigative techniques
4 were used by the government and that certain others were not
5 used. You may consider these facts in deciding whether the
6 government has met its burden of proof because, as I have told
7 you, you should look to all the evidence or lack of evidence
8 in deciding whether a defendant is guilty. However, you
9 should understand that there is no legal requirement that the
10 government use any of these specific investigative techniques
11 to prove its case. Your concern is to determine whether or
12 not, on the evidence or lack of evidence, the government has
13 proved the guilt of each of the defendants beyond a reasonable
14 doubt.
15 There are two types of evidence which you may
16 properly use in deciding whether a defendant is guilty or not
17 guilty. One type of evidence is called direct evidence.
18 Direct evidence is where a witness testifies about something
19 the witness knows by virtue of his own senses, something the
20 witness has seen, felt, touched or heard. Direct evidence may
21 also be in the form of an exhibit, where the fact to be proved
22 is its present existence or condition.
23 The second type of evidence is circumstantial evidence,
24 which tends to prove a disputed fact by proof of other facts.
25 In other words, to say that something is circumstantial
6051
1 evidence merely means that one needs to use some kind of
2 reasoning power to draw inferences from one fact to arrive at
3 some conclusion.
4 (Continued on next page)
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6052
1 THE COURT: (Continuing) In case that sounded
2 complicated, let me give you an example of circumstantial
3 evidence that is often used in the courthouse.
4 Assume, as is the case, that when you came into the
5 courthouse this morning the sun was shining, it was a clear
6 day. Assume that the courtroom blinds were drawn, so you
7 could not look outside. Assume as you were sitting in the
8 jury box, a man walked into the courtroom with an umbrella
9 that was dripping wet, followed shortly by a woman wearing a
10 raincoat, and the raincoat was wet.
11 Now, under our assumptions you cannot look out of the
12 courtroom and see whether it is raining, so you have no direct
13 evidence of that fact. But certainly on the combination of
14 facts that I have asked you to assume, even though when you
15 entered the building it was not raining outside, it would be
16 reasonable and logical for you to conclude that it had been
17 raining recently.
18 You would arrive at this conclusion from
19 circumstantial evidence. In other words, you infer on the
20 basis of reason and experience from one or more established
21 facts -- in this example, the dripping umbrella and the wet
22 raincoat -- the existence of some other fact. That is all
23 there is to circumstantial evidence.
24 In this case, you have been asked to draw inferences
25 from the evidence that you have seen and heard. You are not
6053
1 required to draw any inference unless you believe that such an
2 inference follows reasonably from the evidence.
3 The law does not distinguish between direct and
4 circumstantial evidence. Circumstantial evidence is of no
5 less value than direct evidence. You may consider both. The
6 question in this case is whether based on all the evidence,
7 both direct and circumstantial, you find that the government
8 has proven its case against the defendant you are considering
9 beyond a reasonable doubt.
10 There are times when different inferences may be
11 drawn by the facts, whether they are proved by direct or
12 circumstantial evidence. The government asks you to draw one
13 set of inferences. The defendants ask you to draw other
14 inferences. It is for you, and you alone, to decide which
15 inferences you will draw.
16 There has been evidence that some of the defendants
17 made statements in which the government claims they admitted
18 certain facts relevant to the charges in the indictment.
19 In deciding what weight, if any, to give those
20 statements, you should first examine with great care whether
21 each statement was made and whether it was voluntarily and
22 understandingly made. I instruct you that you are to give the
23 statements such weight as you feel they deserve in light of
24 all the evidence.
25 You are cautioned that, unless I explicitly instruct you
6054
1 otherwise, the evidence of one defendant's statement to the
2 authorities after his arrest may not be considered or
3 discussed by you in any way with respect to any defendant on
4 trial other than the defendant who made the statement.
5 You have heard evidence that one or more of the
6 defendants made certain statements outside the courtroom to
7 law enforcement officials in which they exonerated or
8 exculpated themselves in connection with some aspect of the
9 charges against them, and the government claims that these
10 statements are false.
11 If you find that a defendant gave a false statement
12 to divert suspicion from himself, you may, but are not
13 required to, infer that the defendant believed that a truthful
14 answer would have placed him in jeopardy, legal or otherwise,
15 or that he believed that he may be guilty of some crime. You
16 may not, however, infer on the basis of this alone that the
17 defendant is, in fact, guilty of the crimes for which he is
18 charged. Nor can any such false exculpatory statements alone
19 establish, or be sufficient for an inference to be drawn, that
20 the defendant knew of and intentionally joined the
21 conspiracies charged.
22 Whether or not the evidence as to a defendant's
23 statements shows that the defendant believed that he was
24 guilty, and the significance, if any, to be attached to such
25 evidence, are matters for you, the jury, to decide.
6055
1 You have had the opportunity to observe all the
2 witnesses. It is now your job to decide how believable each
3 witness was in his or her testimony. You are the sole judges
4 of the credibility of each witness and of the importance of
5 his or her testimony.
6 It must be clear to you by now that you are being
7 called upon to resolve various factual issues under the counts
8 of the indictment, in the face of the very different pictures
9 painted by the government and the defense, which cannot be
10 reconciled. You will now have to decide where the truth lies,
11 and an important part of that decision will involve making
12 judgments about the testimony of the witnesses you have
13 listened to and observed. In making those judgments, you
14 should carefully study all of the testimony of each witness,
15 the circumstances under which each witness testified, and any
16 other matter in evidence which may help you to decide the
17 truth and the importance of each witness's testimony.
18 Your decision whether or not to believe a witness may
19 depend on how that witness impressed you. Was the witness
20 candid, frank and forthright? Or, did the witness seem as if
21 he or she was hiding something, being evasive or suspect in
22 some way? How did the way the witness testified on direct
23 examination compare with how the witness testified on
24 cross-examination? Was the witness's testimony consistent, or
25 did he or she contradict himself? Did the witness appear to
6056
1 know what he or she was talking about and did the witness
2 strike you as someone who was trying to report his or her
3 knowledge accurately?
4 How much you choose to believe a witness may be
5 influenced by the witness's bias. Does the witness have a
6 relationship with the government or the defendant which may
7 affect how he or she testified? Does the witness have some
8 incentive, loyalty or motive that might cause him or her to
9 shade the truth; or, does the witness have some bias,
10 prejudice or hostility that may have caused the witness --
11 consciously or not -- to give you something other than a
12 completely accurate account of the facts he or she testified
13 to?
14 Even if the witness was impartial, you should
15 consider whether the witness had an opportunity to observe the
16 facts he or she testified about and you should also consider
17 the witness's ability to express himself or herself. Ask
18 yourselves whether the witness's recollection of the facts
19 stands up in light of his or her demeanor, the explanations
20 given, and in the light of all the other evidence in the case.
21 Approach the task of assessing credibility just as you would
22 in any important matter when you are trying to decide if a
23 person is truthful, straightforward, and accurate in his or
24 her recollection. In deciding the question of credibility,
25 remember that you should use your common sense, your good
6057
1 judgment and your own life experience.
2 In connection with your evaluation of the credibility
3 of the witnesses, you should specifically consider evidence of
4 resentment or anger on the part of any witness, if you find
5 this to be the case.
6 Evidence that a witness is biased, prejudiced, or
7 hostile requires you to view that witness's testimony with
8 caution, to weigh it with great care, and to subject it to
9 close and searching scrutiny.
10 In evaluating the credibility of the witnesses, you
11 should further take into account any evidence that the witness
12 who testified may believe that he or she will benefit in some
13 way from the outcome of this case. Such an interest in the
14 outcome creates a motive to testify falsely and may sway the
15 witness to testify in a way that advances his or her own
16 interests. Therefore, if you find that any witness whose
17 testimony you are considering may have an interest in the
18 outcome of this trial, then you should bear that factor in
19 mind when evaluating the credibility of his or her testimony
20 and accept it with great care.
21 This is not to suggest that every witness who has an
22 interest in the outcome of a case will testify falsely. It is
23 for you to decide to what extent, if at all, the witness's
24 interest has affected or colored his or her testimony.
25 You have heard witnesses who testified they were
6058
1 actually involved in some of the conspiracies charged in the
2 indictment. There has been a great deal said about these
3 so-called accomplice witnesses in the summations of counsel
4 regarding whether or not you should believe them.
5 You have been presented with evidence that the
6 government agreed not to further prosecute certain of these
7 witnesses in exchange for those witnesses' agreement to plead
8 guilty to various charges and testify at this trial against
9 the defendants. The government also promised to bring those
10 witnesses' cooperation to the attention of the court that
11 sentences them. Some of these witnesses and their families
12 have been placed in federal protective custody, and some have
13 received money in connection with their protective custodial
14 status.
15 The government argues, as it is permitted to do, that
16 it must take the witnesses as it finds them. It argues that
17 only people who themselves take part in criminal activity have
18 the knowledge required to show criminal behavior by others,
19 and that without such witnesses it would often be difficult or
20 impossible to detect or prosecute wrongdoers.
21 For those very reasons, the law allows the use of
22 accomplice testimony, and such testimony is properly
23 considered by you. Indeed, it is the law in the federal
24 courts that the testimony of accomplices may be enough in
25 itself for conviction, if you find that the testimony
6059
1 establishes guilt beyond a reasonable doubt. Like the
2 testimony of any other witness, an accomplice's testimony
3 should be given such weight as it deserves in light of all the
4 facts and circumstances.
5 However, as the defense argues, you should bear in
6 mind that a witness who has entered into an agreement with the
7 government has an interest in this case different than an
8 ordinary witness. A witness may have a motive to testify
9 falsely if he realizes that he may be able to obtain his own
10 freedom, gain federal protection for himself and his family,
11 or receive a lighter sentence by giving testimony favorable to
12 the prosecution. Accomplice testimony is thus of such a
13 nature that it must be scrutinized with great care and viewed
14 with particular caution when you decide how much of that
15 testimony to believe.
16 You should ask yourselves whether the so-called
17 accomplice would benefit more by lying, or by telling the
18 truth. Was his testimony made up in any way because he
19 believed or hoped that he would somehow receive favorable
20 treatment by testifying falsely? Or did he believe that his
21 interests would be best served by testifying truthfully? If
22 you believe that a particular witness was motivated by hopes
23 of personal gain, was the motivation one which would cause him
24 to lie, or was it one which would cause him to tell the truth?
25 Did this motivation color his testimony?
6060
1 You should reject the testimony if you find it was
2 false. However, if, after a cautious and careful examination
3 of the testimony and the witness's demeanor, you are satisfied
4 that the testimony is true, you should accept it as credible
5 and act on it accordingly. As with any other witness, let me
6 emphasize that the issue of credibility need not be decided on
7 an all-or-nothing fashion. Even if you find that a witness
8 testified falsely on one part, you still may accept his or her
9 testimony in other parts. That is a determination entirely
10 for you, the jury.
11 In sum, you should look at all of the evidence in
12 deciding what credence and what weight, if any, you should
13 give to the testimony of an accomplice witness.
14 On a related note, let me say a few words about the
15 agreements between the government and certain of its witnesses
16 other than alleged accomplices. Some of these witnesses and
17 their families have been placed in federal protective custody,
18 and some have received money in connection with their
19 protected custodial status.
20 Again, you must examine the testimony of such a witness
21 with caution. Weigh it with great care. If, after
22 scrutinizing such testimony you decide to accept it, you may
23 give it whatever weight, if any, you think it deserves.
24 Some of the witnesses who testified for the
25 government have pleaded guilty to charges arising out of
6061
1 circumstances relating to the facts of this case. You are
2 instructed that you are to draw no conclusions or inferences
3 of any kind about the guilt of the defendants on trial here
4 from the fact that a prosecution witness pleaded guilty to
5 similar charges. The decision of that witness to plead guilty
6 was based on a personal decision of his concerning his own
7 guilt, and in light of the benefits afforded by the government
8 to a cooperating witness. In short, a witness's decision to
9 plead guilty may not be used by you in any way as evidence
10 against or unfavorable to the four defendants on trial here.
11 During the course of this trial you have heard
12 testimony from what the law calls expert witnesses --
13 interjecting: Handwriting, chemists, witnesses of that sort.
14 An expert is allowed to express his or her opinion on those
15 matters about which he or she has special knowledge and
16 training. Expert testimony is presented to you on the theory
17 that someone who is experienced in the field can assist you in
18 understanding the evidence or in reaching an independent
19 decision on the facts.
20 In weighing an expert's testimony, you may consider
21 the expert's qualifications, opinions, reasons for testifying,
22 and all of the other considerations that ordinarily apply when
23 you are deciding whether or not to believe a witness's
24 testimony. You may give expert testimony whatever weight, if
25 any, you find it deserves in light of all the evidence in this
6062
1 case. You should not, however, accept the testimony merely
2 because the witness is an expert. Nor should you substitute
3 it for your own reason, judgment, and common sense. The
4 determination of the facts in this case rests solely with you.
5 You have also heard testimony of government law
6 enforcement officials. The fact that a witness may be
7 employed by the government as a law enforcement official does
8 not mean that his or her testimony is necessarily deserving of
9 more or less consideration or greater or lesser weight than
10 that of an ordinary witness.
11 At the same time, it's quite legitimate for defense
12 counsel to try to attack the credibility of a law enforcement
13 witness on the ground that his or her testimony may be colored
14 by a personal or professional interest in the outcome of the
15 case.
16 It is your decision, after reviewing all the
17 evidence, whether to accept the testimony of the law
18 enforcement witnesses and to give that testimony whatever
19 weight, if any, you find it deserves.
20 You have heard argument about witnesses who have not
21 been called to testify. The defense has argued that the
22 witnesses could have given material testimony in this case and
23 that the government was in the best position to produce these
24 witnesses.
25 If you find that any uncalled witness could have been
6063
1 called by the government and could have given important new
2 testimony, and that the government was in the best position to
3 call him, but failed to do so, you are permitted, but are not
4 required, to infer that the testimony of the uncalled witness
5 would have been unfavorable to the government.
6 In deciding to draw an inference that the uncalled
7 witness would have testified unfavorably to the government,
8 you may consider whether the witness's testimony would have
9 merely repeated other testimony and evidence already before
10 you.
11 Now let me just say a few words about stipulations.
12 And going beyond the text, I'm sure you realize that the
13 fact that stipulations have been entered into is a reason why
14 I'm instructing you now on the law in May rather than July.
15 Numerous stipulations have been entered into by the
16 parties and have been reported to you. A stipulation is an
17 agreement among the parties that a certain fact is true or
18 that a certain witness, if called, would have given certain
19 testimony. Each of these stipulations is the equivalent for
20 your purposes of the presentation of evidence or live
21 testimony to the same effect. You should regard such agreed
22 facts as true, and accept that the witness would have given
23 that testimony. However, it is for you to determine the
24 effect to be given those facts or that testimony.
25 Exhibit GX7 contains a list and brief description by
6064
1 the government of all the stipulations which have been entered
2 entered into this case and which were introduced during the
3 government's case. Exhibit WEHX-S14 contains a list and brief
4 description of all the stipulations which have been entered
5 into this case on behalf of defendant El Hage.
6 Some of the witnesses testified with respect to
7 various charts and summaries which were based on other
8 evidence in this case. The documents from which they were
9 made are before you as evidence. The charts and summaries
10 were intended to make the other evidence more meaningful and
11 to aid you in considering the evidence. Charts and summaries
12 which are not admitted into evidence are no better than the
13 testimony or the documents upon which they are based, and are
14 not independent evidence. Therefore, you are to give no
15 greater consideration to these charts and summaries than you
16 would give to the underlying evidence.
17 It is for you to decide whether the charts or
18 summaries correctly present the information contained in the
19 testimony and in the exhibits on which they are based. In the
20 event that a chart or summary differs from your recollection
21 of the testimony or actual documents on which the chart or
22 summary is based, you are to rely upon the actual testimony or
23 document, not the chart or summary. You are entitled to
24 consider the charts and summaries if you find that they are of
25 assistance to you in analyzing and understanding the evidence.
6065
1 The government and defendant El Hage have offered
2 evidence in the form of tape recorded conversations with the
3 defendants and the defendants' alleged coconspirators. These
4 conversations were obtained by the United States Government
5 without the knowledge of the parties to the conversations.
6 You are instructed that these intercepted conversations were
7 lawfully obtained and the parties are entitled to use such
8 evidence in this case. You must, therefore, regardless of any
9 personal opinions, give this evidence equal consideration
10 along with all the evidence in the case in determining whether
11 the government has proven a defendant's guilt beyond a
12 reasonable doubt. That is to say, you should give this
13 evidence such weight as you believe it deserves in light of
14 all the facts and circumstances.
15 In connection with these tapes, the party presenting
16 the evidence has been permitted to hand out or otherwise
17 display typed documents which it prepared containing its
18 interpretation of what appears on the tape recordings.
19 With respect to those conversations which were
20 conducted in English, any documents which were distributed to
21 you are merely aids or guides to assist you in listening to
22 the tapes and are not evidence. You should make your own
23 assessment of what appears on those tapes based on what you
24 heard when the tapes were played.
25 Some of the transcripts, however, are translations of
6066
1 the tapes because some of the conversations were in a foreign
2 language. Those transcripts are provided to you because that
3 is the only way you can understand what was said during those
4 conversations. Those transcripts are in evidence in order to
5 assist you to find out what the tapes say and you may rely on
6 them during your deliberations. If, however, during your
7 deliberations you would like to hear any of the tapes, they
8 will be made available to you.
9 During the trial, different parties introduced
10 exhibits which were marked for identification, but not
11 admitted into evidence. Also, at various times, witnesses
12 were asked to refresh their recollection by consulting
13 documents or other materials which were not admitted into
14 evidence. Exhibits marked for identification but not admitted
15 are not evidence, nor are any materials brought forth only to
16 refresh the recollection of any witness. You cannot consider
17 or speculate as to the content of any exhibit not received in
18 evidence.
19 With all of the aforementioned preliminary
20 instructions in mind, let us now turn to the indictment.
21 And I'm going to pause for a few minutes and stand and
22 stretch, and if you would like to pause for a few minutes and
23 stand and stretch, that's okay. Your lunch is on order for
24 1:00, and at 1:00, if I'm in the middle of a sentence, I'll
25 stop.
6067
1 (Pause)
2 THE COURT: Returning, then, to the charge, and if
3 you are all following me, I'm on page 27.
4 The indictment, you have the indictment. That's the
5 document in the plastic cover.
6 In a moment I will explain to you what the elements are of
7 the various violations of the United States with which the
8 defendants are charged. I instruct you now, however, that
9 unless the government proves beyond a reasonable doubt that
10 the defendant you are considering committed each and every
11 element of an offense with which he is charged, you must find
12 him not guilty of that offense.
13 The indictment in this case contains 302 individual
14 counts, each charging a separate offense or crime.
15 Let me interject. I see some of you shaking your head.
16 Understand that the vast majority of these counts relate to
17 victims and the evidence with respect to the victims is
18 evidence which relates to all of them.
19 Some of the counts involve crimes allegedly committed
20 by just one of the defendants, others involve allegedly some
21 but not all of the defendants, and still others involve
22 allegedly all four defendants. You must, therefore, as a
23 matter of law, consider each count of the indictment and each
24 defendant's involvement in that count separately, and you must
25 return a separate, unanimous verdict as to each defendant on
6068
1 each count in which he is charged. You will be given a
2 special verdict form that will ask you to mark a separate
3 verdict for each count and for each defendant named in that
4 count. Your answer to each of these special verdicts will be
5 "yes" or "no" or "guilty" or "not guilty" and must be
6 unanimous. Throughout these instructions, I will advise you
7 that when there is a verdict or finding, I will advise you
8 when there is a verdict or finding that you must indicate on
9 the special verdict form.
10 In reaching your verdict, you must bear in mind that
11 guilt is personal and individual. Your verdict of guilty or
12 not guilty must be based solely upon the evidence about each
13 defendant and you may only find a defendant guilty of a
14 particular count if the government has proven each element
15 beyond a reasonable doubt. The case against each defendant on
16 each count stands or falls upon the proof or lack of proof
17 against that defendant alone, and your verdict as to any
18 defendant on any count should not control your decision as to
19 any other defendant or any other count. No other
20 considerations are proper.
21 Let me also remind you that the indictment itself is
22 not evidence. It is nothing more than a set of accusations, a
23 statement of what the government intends to prove by offering
24 evidence at trial. It gives the defendant notice of the
25 charges against him and informs the court and the public of
6069
1 the nature of the accusation. As such, you cannot find a
2 defendant guilty of any crimes that are not charged in the
3 indictment.
4 Because the indictment merely describes the charges
5 made against the defendants, it may not be considered by you
6 as any evidence of the guilt of any defendant. Only the
7 evidence or the lack of evidence decides that issue.
8 In the indictment, the conspiracy counts are preceded
9 by a section captioned "Background." The information
10 contained in that section is the government's version of the
11 origin and history of the conspiracies which are set forth in
12 Counts One through Four. Likewise, there is a "Background"
13 section prefacing the perjury counts in which the government
14 outlines its view of the relevant events which preceded the
15 alleged Grand Jury perjury by defendant El Hage as set forth
16 in Counts 285 through 302. You should understand that these
17 background sections, as with the rest of the indictment, are
18 not evidence.
19 The indictment makes reference to various dates. It
20 does not matter if the indictment charges that a specific act
21 occurred on or about a certain date and the evidence indicates
22 that, in fact, the act occurred on a different date. The law
23 requires only a substantial similarity between the dates
24 alleged in the indictment and the dates established by the
25 evidence. It is for you to determine whether any such
6070
1 difference is material and, if you find it was material, then
2 you must find the defendant you are considering not guilty on
3 the counts for which you find the evidence to be materially
4 different from the charges in the indictment.
5 Before you begin your deliberations, you will of
6 course be provided with a copy of the indictment containing
7 these charges, and you already have that. I will not read the
8 entire indictment to you at this time.
9 Rather, I will first group the offenses charged in the
10 indictment into three general categories. Then I will
11 proceed, category by category, explaining in detail the
12 elements of each alleged offense contained within each of the
13 three general categories. By the way, you should by no means
14 draw any significance from the fact that I have grouped
15 certain counts in the indictment together for purposes of my
16 instructions to you; I do so simply for organizational
17 clarity, not because of any legal import.
18 The first category of charges includes Counts One
19 through Four of the indictment. These charges all allege
20 conspiracies to violate certain laws of the United States.
21 All four defendants face charges in this category. However,
22 while three of the alleged conspiracies charge all four
23 defendants, one charges only three of defendants.
24 The second category of charges includes Counts Five
25 through 284 of the indictment. These charges all allege
6071
1 substantive offenses arising out of the bombings of the United
2 States embassies in Kenya and Tanzania. Only defendants
3 Mohamed Sadeek Odeh, Mohamed Rashid Daoud Al-'Owhali and
4 Khalfan Khamis Mohamed face charges in this category.
5 Defendants Odeh and Al-'Owhali are charged only in those
6 substantive counts from Five through 284 that arise out of the
7 Nairobi, Kenya bombing. Likewise, defendant Khalfan Khamis
8 Mohamed is charged only with those counts from Five through
9 284 that arise out of the Dar es Salaam, Tanzania bombing.
10 The third category of charges includes Counts 285 to
11 302 of the indictment. These charges all relate to alleged
12 perjury by defendant Wadih El Hage -- the perjury count,
13 alleged perjury, by defendant Wadih El Hage.
14 The first portion of the indictment alleges four
15 separate conspiracies to violate certain laws of the United
16 States, and they may be summarized briefly as follows.
17 Count One charges that all four defendants, while
18 they were situated outside the United States, conspired to
19 murder nationals of the United States.
20 Count Two charges that all four defendants conspired
21 to murder officers or employees of the United States, as well
22 as internationally protected persons.
23 Count Three -- which involves only defendants Mohamed
24 Sadeek Odeh, Mohamed Rashid Daoud Al-'Owhali, and Khalfan
25 Khamis Mohamed -- charges that these three defendants, without
6072
1 lawful authority, conspired to use weapons of mass
2 destruction -- that is, bombs -- against United States
3 nationals while such nationals were outside of the United
4 States, and against property that is owned, leased or used by
5 the United States.
6 Count Four charges that all four defendants conspired
7 to maliciously damage or destroy United States property, by
8 means of an explosive.
9 I reiterate that each of these four counts
10 constitutes a separate alleged conspiracy and thus is a
11 separate offense or crime. Again, each of the four charged
12 conspiracies must be considered separately by you, and you
13 must return a separate, unanimous verdict as to each count and
14 as to each defendant charged in the count.
15 Before I instruct you in detail on the specific
16 elements of each of the four conspiracies alleged in the
17 indictment, I want to first instruct you on the law of
18 conspiracy in general. This is because there are certain
19 requirements that the government must always satisfy whenever
20 it seeks to prove any allegation of criminal conspiracy
21 against any defendant. Of course, there are some exceptions
22 to the general rule and when those exceptions are relevant to
23 this case, I will so instruct you. But unless I say
24 otherwise, whatever I tell you to be true of conspiracy law
25 generally should be considered by you to be equally true of
6073
1 the four specific conspiracies alleged in the indictment.
2 Remember, however, that each of the four alleged conspiracies
3 is an independent crime and that, as to each charged
4 defendant, each alleged conspiracy must independently be
5 proven by the government beyond a reasonable doubt.
6 As I have indicated, the indictment alleges four
7 separate conspiracies. A conspiracy is a kind of criminal
8 partnership -- a combination or agreement of two or more
9 persons to join together to accomplish some illegal objective
10 in violation of the laws of the United States.
11 Let me repeat that. A conspiracy is a kind of criminal
12 partnership -- a combination or agreement of two or more
13 persons to join together to accomplish some illegal objective
14 in violation of the laws of the United States.
15 Although the government has presented evidence that some
16 of the defendants and alleged coconspirators engaged in
17 activities in foreign countries that may or may not have
18 violated the laws of those foreign countries, the crime of
19 conspiracy applies only to those illegal agreements that seek
20 to violate United States law. Of course, a given activity,
21 even if it occurs abroad, may sometimes constitute a violation
22 of both foreign and United States law.
23 The crime of conspiracy to violate United States law
24 is an independent offense. It is separate and distinct from
25 the actual violation of any specific laws, which the law
6074
1 refers to as "substantive crimes."
2 Indeed, you may find a defendant guilty of the crime
3 of conspiracy to commit an offense even though the substantive
4 crime that was the object of the conspiracy was not actually
5 committed. Moreover, you may find a defendant guilty of
6 conspiracy despite the fact that he himself was incapable of
7 committing the substantive crime.
8 Generally speaking, and unless I tell you otherwise, in
9 order to sustain its burden of proof with respect to one
10 allegation of conspiracy, the government must establish,
11 beyond a reasonable doubt, each of the following four elements
12 as to each defendant charged in that conspiracy.
13 First, that there in fact existed the alleged
14 conspiracy, the object of which was to violate United States
15 law, as charged in the indictment;
16 Second, that the defendant you are considering
17 knowingly and willfully became a member of that conspiracy,
18 with the intent to further its illegal purpose;
19 Third, that one or more of the conspirators, not
20 necessarily the defendant you are considering, knowingly
21 committed at least one of the overt acts charged in the
22 indictment, at or about the time alleged; and
23 Fourth, that at least one overt act which you
24 unanimously find to have been committed was knowingly and
25 willfully committed to effect the object of the conspiracy.
6075
1 And after lunch we will separately consider these
2 four elements.
3 We'll break for lunch and resume at 2:15.
4 (Luncheon recess)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6076
1 AFTERNOON SESSION
2 2:20 p.m.
3 (Jury present)
4 THE COURT: There was an inquiry as to whether you
5 may take material home with you and the answer is no. It will
6 be left in the jury room.
7 You will recall, when we broke for lunch we were
8 talking about the general principles of conspiracy law which
9 apply to the first four counts, which are the conspiracy
10 counts. The other counts in the indictment are referred to as
11 the substantive counts. We are now going to proceed with a
12 discussion in more detail of what the various elements are of
13 the crime of conspiracy as it applies to the first four
14 counts. If you are following me, I am on page 33, and if you
15 are not following me, I'm on page 33.
16 The first element which the government must prove
17 beyond a reasonable doubt to establish the offense of
18 conspiracy is that two or more persons entered into the
19 unlawful agreement charged in the indictment. You must ask:
20 Did the conspiracy alleged in the indictment exist? Was there
21 such a conspiracy?
22 Since the indictment in this case charges four
23 separate conspiracies on the part of the multiple defendants,
24 you must independently determine as to each conspiracy count
25 and as to each defendant charged in the count whether that
6077
1 conspiracy in fact existed and whether it was in fact directed
2 at the unlawful purpose or purposes specifically alleged in
3 the indictment.
4 As I mentioned just a few moments ago, a conspiracy
5 is a combination, an agreement or a mutual understanding of
6 two or more persons to accomplish, by concerted action, a
7 criminal or unlawful purpose. The gist, the essence of the
8 crime of conspiracy is the unlawful combination or agreement
9 to violate the laws of the United States. The success of the
10 conspiracy or the actual commission of the criminal act which
11 is the object of the conspiracy is not an essential element of
12 the crime. In other words, a conspiracy alleges an agreement
13 to commit a crime and is an entirely distinct and separate
14 offense from the actual commission of that crime.
15 To show that a conspiracy existed, the government is
16 not required to show that two or more people sat around a
17 table and entered into a solemn pact, orally or in writing,
18 stating that they had formed a conspiracy to violate the law
19 and spelling out all the details. It is sufficient if the
20 evidence demonstrates that two or more persons, in some way or
21 manner, formally or informally, impliedly or tacitly, came to
22 a common understanding that they would violate the law and
23 accomplish an unlawful plan.
24 The proof that people simply met together from time
25 to time and talked about similar conduct is not enough to
6078
1 establish a criminal agreement. That is something that you
2 may consider in deciding whether the government has proved an
3 agreement. Without more, that is not enough.
4 You may, of course, find the existence of the
5 agreement to disobey or disregard the law has been established
6 by direct proof. However, because conspiracy is by its very
7 nature characterized by secrecy, you may also infer its
8 existence from the circumstances of this case and the conduct
9 of the parties involved.
10 In a very real sense then, in the context of
11 conspiracy cases, actions often speak louder than words. In
12 this regard you may, in determining whether an agreement
13 existed, consider the actions and statements of all those
14 persons you find to be participants as proof that a common
15 design existed on the part of the persons charged to act
16 together to accomplish an unlawful purpose.
17 However, remember that if you choose to consider a
18 defendant's postarrest statements made to law enforcement
19 officials for purposes of determining the existence and scope
20 of the alleged conspiracy, you may only consider those
21 postarrest statements in connection with the specific
22 defendant who made those postarrest statements. In order for
23 you to find that the existence and scope of the alleged
24 conspiracy has been proven in connection with those defendants
25 who did not make the postarrest statements at issue, you will
6079
1 have to rely on evidence other than the postarrest statements.
2 To recap, it is sufficient to establish the existence
3 of the conspiracy if, from the proof of all the relevant facts
4 and circumstances, you find beyond a reasonable doubt that the
5 minds of at least two alleged coconspirators met in an
6 understanding way to accomplish, by the means alleged, the
7 objective of the conspiracy.
8 In finding the existence of the conspiracy, you must
9 also conclude that the conspiracy in fact had the unlawful
10 purpose specifically alleged in the indictment. If you find
11 beyond a reasonable doubt that the conspirators agreed to
12 accomplish the illegal objective charged in the indictment,
13 the illegal purpose element of the conspiracy offense will be
14 satisfied. And if the indictment alleges that a given
15 conspiracy had more than one unlawful purpose, then you need
16 only find that the conspirators agreed to accomplish any of
17 those multiple unlawful objectives. Although the finding of
18 one unlawful objective is sufficient to satisfy the illegal
19 purpose element, I instruct that you the jury must unanimously
20 agree on which, if any, was the specific unlawful objective of
21 the alleged conspiracy.
22 On the special verdict form, if you find that the charged
23 conspiracy existed, you must indicate unanimous agreement as
24 to the conspiracy's specific unlawful objectives.
25 If the government fails to prove beyond a reasonable doubt
6080
1 that at least one of the unlawful purposes alleged in the
2 indictment was in fact an objective of the conspiracy named in
3 a particular count, or if you cannot unanimously agree as to
4 which of the unlawful purposes alleged in that count of the
5 indictment have been proven beyond a reasonable doubt, then
6 you must find the defendants named in the count not guilty as
7 to that conspiracy charge.
8 Moreover, if you conclude that an agreement existed but
9 that its purpose, even if unlawful, was in fact not one of the
10 specific unlawful purposes described in that count of the
11 indictment, you must also find the defendants named in that
12 count not guilty.
13 Just a few more general points relating to this first
14 element of the offense of conspiracy.
15 First, while the indictment may allege that a given
16 conspiracy existed on certain dates, it is not essential that
17 the government prove that the conspiracy started and ended on
18 those specific dates. Instead, it is enough if you find that
19 the conspiracy was formed and that it existed for some
20 substantial time within the period set forth in the
21 indictment.
22 Second, a conspiracy, once formed, is presumed to
23 have continued until its objectives are accomplished or there
24 is an affirmative act of termination by its members or it is
25 otherwise terminated.
6081
1 Third, you heard me repeatedly use the terms
2 "unlawful purpose," "unlawful objective," "illegal purpose,"
3 "illegal objective" in discussing the elements of the offense
4 of conspiracy. Understand that these terms are all synonymous
5 and that they refer only to violations of United States law.
6 As I said before, the crime of conspiracy applies only to
7 those illegal agreements that seek to violate United States
8 law. An agreement to violate foreign law standing alone does
9 not satisfy the illegal purpose element of the offense of
10 conspiracy.
11 One last word about the government's burden of
12 proving the existence of a charged conspiracy. In this case
13 the indictment contains four different conspiracy counts.
14 Each count alleges a single overall conspiracy the existence
15 of which must be independently proved as to each charged
16 defendant beyond a reasonable doubt. Here, some of the
17 defendants contend that the government's proof fails to show,
18 under any of the four conspiracy counts, that there existed
19 only one overall conspiracy. Rather, they claim that as to
20 each of the four conspiracy counts, to the extent the
21 government has proven the existence of any conspiracy, there
22 were actually several separate and independent conspiracies by
23 various members of the group.
24 By way of illustration and illustration only,
25 consider Count 1 of the indictment. It alleges a conspiracy
6082
1 on the part of all four defendants to murder United States
2 nationals. Whether under this count there existed a single
3 unlawful agreement, or many such agreements, or indeed no
4 agreement at all, is a question of fact for you the jury to
5 determine in accordance with the instructions I am about to
6 give you.
7 When two or more people join together to further one
8 common unlawful design or purpose, in violation of United
9 States law, a single conspiracy exists. In contrast, multiple
10 conspiracies exist when there are several unlawful agreements
11 to achieve distinct purposes. Proof of several separate and
12 independent conspiracies is not proof of the single overall
13 conspiracy charged in Count 1 of the indictment unless one of
14 the conspiracies proved happens to be the single conspiracy
15 described in Count 1.
16 You may find that there was a single conspiracy
17 despite the fact that there were either changes in
18 personnel -- by the termination, withdrawal or addition of new
19 members -- by changes in activities, or both, so long as you
20 find that some of the coconspirators continued to act for the
21 entire duration of the conspiracy for the purposes charged in
22 Count 1 of the indictment. The fact that members of the
23 conspiracy are not always identical does not necessarily imply
24 that separate conspiracies exist.
25 On the other hand, if you find that the conspiracy
6083
1 charged in Count 1 of the indictment did not exist, you cannot
2 find any defendant guilty of the conspiracy charged in Count 1
3 of the indictment. This is so even if you find that some
4 conspiracy other than that which is charged in Count 1 of the
5 indictment existed, even though the purposes of both
6 conspiracies may have been the same, and even though there may
7 have been some overlap in membership.
8 Similarly, if you find that a particular defendant
9 was a member of another conspiracy but not the one charged in
10 Count 1 of the indictment, then you must find the defendant
11 not guilty of the conspiracy charged in Count 1.
12 Therefore, what you must do is determine whether the
13 conspiracy charged in Count 1 of the indictment existed. If
14 it did, you then must determine the nature of the conspiracy
15 and who were its members.
16 These principles concerning the distinction between the
17 proof of a single, overall conspiracy and proof of multiple
18 conspiracies apply not just to Count 1 of the indictment but
19 to all four conspiracy counts.
20 Let us move on now to the second element necessary to
21 establish the offense of conspiracy. The government must
22 prove beyond a reasonable doubt that the defendant you are
23 considering knowingly, willfully and voluntarily became a
24 member of the charged conspiracy with the intent to further
25 its illegal purpose. Each time you are satisfied that one of
6084
1 the four conspiracies charged in the indictment existed, you
2 must next ask yourself whether a defendant on trial was a
3 member of that particular conspiracy.
4 In deciding whether or not the government has proved
5 beyond a reasonable doubt that the defendant you are
6 considering was in fact a member of the charged conspiracy,
7 you should consider whether that defendant knowingly and
8 willfully joined the conspiracy. Did he participate in it
9 with knowledge of its specific unlawful purpose, and with a
10 specific intent of furthering that illegal objective?
11 An act is done knowingly and willfully if it is done
12 purposefully and deliberately; that is, the defendant's act
13 must have been the product of the defendant's conscious
14 determination rather than the product of mistake or accident
15 or mere negligence or some other innocent reason.
16 "Unlawful" simply means contrary to United States
17 law, as I have already told you. The defendant you are
18 considering need not have known that he was breaking any
19 particular provision of law or any particular rule. The
20 defendant you are considering need only have been aware of the
21 generally unlawful nature of his act.
22 As I have mentioned, before the defendant you are
23 considering can be found to have been a conspirator, you must
24 find that he knowingly joined in the unlawful agreement or
25 plan. The key question is whether the defendant joined the
6085
1 conspiracy and did so with an awareness of at least some of
2 the illegal aims and purposes of the unlawful agreement to
3 violate the laws of the United States.
4 It is important for you to note that each defendant's
5 participation in the conspiracy must be established beyond a
6 reasonable doubt, by independent evidence of his own acts or
7 statements, as well as acts or statements of persons alleged
8 to be coconspirators in the same conspiracy, and the
9 reasonable inferences that may be drawn from them.
10 Let me remind you of the rule regarding a defendant's
11 postarrest statements to law enforcement authorities. Such
12 statements may be considered by you as evidence only as to the
13 specific defendant who made those statements, including for
14 the purpose of your determining whether or not that specific
15 defendant was a member of the alleged conspiracy.
16 Accordingly, the defendant's postarrest statements may not be
17 considered by you in determining whether any of the other
18 defendants charged in the same conspiracy were in fact also
19 members of that conspiracy.
20 A defendant's knowledge is a matter of inference from
21 the facts proved. Science has not yet devised a manner of
22 looking into a person's mind and knowing what that person is
23 thinking. However, you do have before you evidence of certain
24 acts and conversations alleged to have taken place with
25 certain defendants or in their presence. The government
6086
1 contends that these acts and conversations show beyond a
2 reasonable doubt knowledge on the part of the defendant in
3 question of the unlawful purpose of the charged conspiracies.
4 On the other hand, each defendant denies that these acts and
5 conversations showed that he had such knowledge. It is for
6 you to determine, with respect to each of the four conspiracy
7 counts alleged in the indictment, whether the government has
8 established beyond a reasonable doubt that such knowledge and
9 intent on the part of the defendant you are considering
10 existed.
11 To become a member of the conspiracy, the defendant
12 in question need not have known the identities of each and
13 every other member, nor need he have been apprised of all
14 their activities. Moreover, the defendant need not have been
15 fully informed as to all of the details or the scope of the
16 conspiracy to justify an inference of knowledge on his part.
17 Furthermore, the defendant need not have joined in all of the
18 conspiracy's unlawful objectives. Nor is it necessary that a
19 defendant receive any monetary benefit from participating in
20 the conspiracy. All that is required is that the government
21 prove beyond a reasonable doubt that the defendant you are
22 considering participated in the conspiracy with knowledge of
23 some of its unlawful purposes and with the intent of
24 furthering those unlawful purposes.
25 You heard during the trial about certain
6087
1 organizations, including Al Qaeda, Egyptian Islamic Jihad, and
2 others. All four of the conspiracies charged in the
3 indictment are alleged to have been formed by members and
4 nonmembers of these organizations. You need not find that a
5 particular defendant was a member of Al Qaeda or any other
6 organization to find that the defendant was a member of the
7 conspiracy in question. Similarly, even if you find that a
8 particular defendant was a member of Al Qaeda, that does not
9 necessarily mean that the defendant was a member of the
10 charged conspiracy you are considering.
11 I caution you that individuals, including the
12 defendants in this case, have the right under our Constitution
13 to assemble and discuss even the most unpopular ideas,
14 including discussion of unlawful acts. Such assembly and
15 discussion does not by itself necessarily establish an
16 unlawful agreement unless, of course, you find that an
17 unlawful agreement was reached during that conversation.
18 Expressions of sympathy and support for those who commit
19 unlawful acts do not, without more, constitute entry into an
20 unlawful agreement. Nor does vigorous criticism of the United
21 States government. One may belong to a group, knowing that
22 some of its members commit illegal acts, without having
23 entered into an agreement that those unlawful acts be
24 committed. A frank expression or exchange of political views,
25 no matter how vehement, radical or unpopular, does not,
6088
1 without more, constitute an unlawful agreement.
2 If you determine that a defendant became a member of
3 the conspiracy, the extent of his participation in that
4 conspiracy has no bearing on the issue of the defendant's
5 guilt. A defendant need not have joined the conspiracy at the
6 outset. A conspirator's liability is not measured by the
7 extent or duration of his participation. Indeed, each member
8 of a conspiracy may perform separate and distinct acts and may
9 perform them at different times. Some conspirators may play
10 major roles, while others play minor roles in a scheme. An
11 equal role is not what the law requires. In fact, even a
12 single act may be sufficient to draw the defendant within the
13 ambit of the conspiracy, so long as the defendant has
14 knowingly and willfully joined the conspiracy.
15 I want to caution you, however, that the following
16 factors, standing alone, do not make the defendant you are
17 considering a member of the conspiracy: (1) his mere presence
18 at the scene of the alleged crime; (2) his mere presence at
19 meetings with other conspirators; or (3) his mere residence in
20 a particular country or neighborhood.
21 Similarly, mere association with one or more members of
22 the conspiracy does not automatically make that defendant a
23 member, even coupled with knowledge that a conspiracy is
24 taking place. A person may know or be friendly with a
25 criminal, or persons who are members of a conspiracy, without
6089
1 being a criminal or coconspirator himself. Mere similarity of
2 conduct or the fact that they may have assembled together or
3 discussed common aims or interests does not necessarily
4 establish proof of the existence of a conspiracy.
5 I also want to caution you that mere knowledge or
6 acquiescence, without participation, in the unlawful plan is
7 not sufficient to satisfy the government's burden of proof.
8 Moreover, the fact that the defendant you are considering,
9 without knowledge of the conspiracy's illegal objectives,
10 merely happens by his actions to further the purposes or
11 objectives of the conspiracy does not make the defendant a
12 member of the conspiracy. More is required under the law.
13 What is necessary is that the defendant in question must have
14 participated in the conspiracy with knowledge of at least some
15 of the illegal purposes or objectives of the charged
16 conspiracy and with the intention of aiding in the
17 accomplishment of those unlawful acts.
18 Remember too that the unlawful objective which you
19 find the defendant had knowledge of, and which he sought to
20 further through his participation in the agreement, must have
21 been an objective in violation of United States law and must
22 have been an actual objective, as determined by you, of the
23 specific conspiracy count you are considering.
24 In sum, the defendant you are considering, having had
25 an understanding of the unlawful character of the conspiracy,
6090
1 must have intentionally engaged, advised or assisted in it for
2 the purpose of furthering the illegal undertaking. The
3 defendant thereby becomes a knowing and willing participant in
4 the unlawful agreement -- that is to say, a coconspirator.
5 A conspiracy, once formed, is presumed to continue
6 until either of its objectives is accomplished or there is
7 some affirmative act of termination by its members. So, too,
8 once a person is found to be a member of a conspiracy, that
9 person is presumed to continue being a member in the venture
10 until the venture is terminated, unless it is shown by some
11 affirmative proof that that person withdrew and disassociated
12 himself from it.
13 One last issue. The distinction I mentioned earlier
14 between proof of a single, overall conspiracy versus proof of
15 multiple or different conspiracies also arises with regard to
16 the question of a defendant's membership in an alleged
17 conspiracy. As I have already stated, you may not find a
18 defendant guilty of any conspiracy count in the indictment
19 unless you find beyond a reasonable doubt that he joined the
20 specific conspiracy alleged in this count. In this regard, if
21 the defendant joined a different or separate conspiracy --
22 that is, if you find that he, one, joined a conspiracy other
23 than the one charged in the particular count of the indictment
24 which you are considering, but, two, did not also join the
25 count you are in fact considering -- then you must find the
6091
1 defendant not guilty of the conspiracy charged in the count
2 you are considering, even if the conspiracy he did join had a
3 similar purpose.
4 For example, let us assume that under the first element of
5 the offense of conspiracy, you the jury unanimously find that
6 conspiracy X existed and that such conspiracy was directed to
7 unlawful purpose X, an unlawful purpose specifically charged
8 in the indictment. Let us also assume that you find that the
9 defendant you are considering was aware only of unlawful
10 purpose Y and intended to further only unlawful purpose Y.
11 Under these circumstances, you the jury may not find that the
12 defendant knowingly, willfully and voluntarily joined in
13 conspiracy X, even if unlawful purpose Y and unlawful purpose
14 X are substantially similar and even if unlawful purpose Y is
15 alleged elsewhere in the indictment. Because the second
16 element of the offense has not been proven, you must find the
17 defendant not guilty of conspiracy X.
18 Of course, if you find that the conspiracy charged in
19 any count of the indictment existed and the defendant
20 knowingly, willfully and voluntarily joined in that conspiracy
21 and its specific illegal objectives, then the first two
22 elements of the offense of conspiracy are satisfied.
23 Before moving on to the third element of the offense
24 of conspiracy, I want to mention a word about coconspirator
25 evidence. You will recall that during the trial you heard
6092
1 evidence concerning the acts and statements of persons whom
2 the government charges were coconspirators with the defendants
3 on trial here.
4 I instruct you that, in determining the factual issues
5 before you, you the jury are permitted to consider
6 coconspirator evidence against a defendant but only according
7 to the conditions I now describe.
8 The reason for allowing this type of evidence to be
9 received against a defendant has to do with the nature of the
10 crime of conspiracy. Conspiracy has often been referred to as
11 a partnership in crime. Thus, as with other types of
12 partnerships, when people enter into a conspiracy to
13 accomplish an unlawful end, each and every member becomes an
14 agent for the other conspirators in carrying out the
15 conspiracy.
16 Accordingly, the reasonably foreseeable acts,
17 declarations, statements and admissions of any member of a
18 conspiracy which are made in furtherance of the unlawful
19 purpose of that conspiracy are deemed under the law to be the
20 acts of all the members, and all of the members are
21 responsible for such acts, declarations, statements and
22 omissions.
23 What does this mean? It means that if you the jury find
24 beyond a reasonable doubt that a conspiracy charged in the
25 indictment existed and that the defendant you are considering
6093
1 was a member of that particular conspiracy -- in short, if you
2 find that the first two elements of the offense of conspiracy
3 have been met as to a conspiracy charged in the indictment and
4 as to the defendant you are considering -- then any acts done
5 or statements made during and in furtherance of that
6 particular conspiracy, by persons also found by you to have
7 been members of that conspiracy, may be considered as evidence
8 against the defendant under consideration. This is so even if
9 such acts were done and statements were made in the
10 defendant's absence and without his knowledge.
11 However, before you may consider the statements and
12 acts of a coconspirator in determining the factual issues
13 before you, you must first determine that the acts and
14 statements were made during the existence and in furtherance
15 of the charged conspiracy. If the acts were done or the
16 statements made by someone whom you do not find to have been a
17 member of the charged conspiracy, or if they were not done or
18 said during and in furtherance of the charged conspiracy, they
19 may be considered by you as evidence only against the person
20 who did or said them.
21 That is why on numerous prior occasions I have instructed
22 you that a defendant's postarrest statements to law
23 enforcement officials are to be considered by you only as to
24 the particular defendant who made the statements and not ever
25 as to any of his codefendants. Such postarrest statements,
6094
1 under the law, are not statements made during the existence
2 and furtherance of the conspiracy, and thus do not qualify as
3 coconspirator evidence which a jury may properly consider.
4 Let us now return to our discussion of the core
5 elements of the offense of conspiracy.
6 The third element that the government must prove
7 beyond a reasonable doubt to establish the offense of
8 conspiracy is that one or more of the conspirators in that
9 conspiracy knowingly committed at least one of the overt acts
10 charged in the relevant conspiracy count, at or about the time
11 and place alleged. The purpose of the overt act requirement
12 is clear. There must have been something more than mere
13 agreement. Some overt act, some overt step or action must
14 have knowingly been taken by at least one of the conspirators
15 in furtherance of the conspiracy.
16 In order for the government to establish this
17 element, it is not required that all of the overt acts alleged
18 in the relevant conspiracy count have been proven. All that
19 is required is that you find beyond a reasonable doubt that at
20 least one such act was knowingly committed by at least one of
21 the coconspirators in that particular conspiracy.
22 Although the finding of one overt act is sufficient to
23 satisfy the overt act element, I instruct you that the jury
24 must unanimously agree on which, if any, was the specific
25 overt act committed.
6095
1 Similarly, you need not find that the defendant you
2 are considering committed the overt act. It is sufficient for
3 the government to show that an individual whom you find beyond
4 a reasonable doubt to be a conspirator knowingly committed an
5 overt act in furtherance of the conspiracy. This is because
6 such an act becomes, in the eyes of the law, the act of all
7 the members of the conspiracy.
8 You are further instructed that the overt act need
9 not have been committed at precisely the time alleged in the
10 indictment. It is sufficient if you are convinced beyond a
11 reasonable doubt that it occurred at or about the time and
12 place stated in the indictment.
13 To be clear, in this case the indictment alleges four
14 separate conspiracy counts. As to each of these four counts,
15 as to each defendant charged in the count, unless I inform you
16 otherwise, you must independently determine whether the overt
17 act element has been satisfied in the manner I have just
18 explained. Of course, a single act may satisfy the overt act
19 requirement with respect to more than one conspiracy. Indeed,
20 as you will see from the indictment, many acts are alleged to
21 have been in furtherance of a number of the alleged
22 conspiracies.
23 Each of the four conspiracy counts indicates which
24 overt acts were allegedly taken in furtherance of the
25 particular conspiracy charged in that count, which of the
6096
1 various conspirators allegedly committed those overt acts, and
2 the approximate dates and locations those overt acts allegedly
3 occurred.
4 The fourth element that the government must prove
5 beyond a reasonable doubt to establish the offense of
6 conspiracy is that at least one of the overt acts which you
7 unanimously find to have been committed was knowingly and
8 willfully committed for the purpose of carrying out the
9 unlawful agreement. For the government to satisfy this
10 element, it must prove beyond a reasonable doubt that at least
11 one overt act was knowingly and willfully done by at least one
12 conspirator in furtherance of what you determine to be the
13 unlawful objective or purpose of the conspiracy. In this
14 context, "knowingly and willfully" means that the conspirator
15 committed the overt act with knowledge of some of the illegal
16 objectives of the conspiracy to violate United States law and
17 with intent to further those illegal objectives.
18 You should bear in mind that the overt act standing
19 alone may be an innocent, lawful act. Frequently, however, an
20 apparently innocent act sheds its harmless character if it is
21 a step in carrying out, promoting, aiding or assisting the
22 conspiratorial scheme. You are therefore instructed that the
23 overt act does not have to be an act that, in and of itself,
24 is criminal or constitutes an objective of the conspiracy.
25 As was the case with respect to the three other
6097
1 elements of the offense of conspiracy, the government must
2 independently prove this element beyond a reasonable doubt for
3 each of the four conspiracy counts charged in the indictment
4 and for each defendant charged in the count. In other words,
5 the fact that you have already found that an overt act was
6 committed for the purpose of carrying out one of the other
7 charged conspiracies does not relieve you of your obligation
8 to find, unanimously and beyond a reasonable doubt, that it,
9 or some other overt act, was committed in furtherance of the
10 specific conspiracy that you are considering.
11 I have now finished explaining to you the four core
12 elements of the offense of conspiracy. To recap, they are:
13 First, that the alleged conspiracy, the object of which
14 was to violate United States law, in fact existed as charged
15 in the indictment;
16 Second, that the defendant you are considering knowingly
17 and willfully became a member of that conspiracy, with the
18 intent to further its illegal purpose;
19 Third, that one or more of the conspirators, not
20 necessarily the defendant you are considering, knowingly at
21 committed at least one of the overt acts charged in the
22 relevant conspiracy count, at or about the time alleged; and
23 Fourth, that at least one overt act which you unanimously
24 find to have been committed was knowingly and willfully
25 committed to effect the object of the conspiracy.
6098
1 In this case, as to each conspiracy charged in the
2 indictment, that is, Counts 1 through 4, and as to each
3 defendant charged in the count, the government must
4 independently prove each of these four elements beyond a
5 reasonable doubt, unless I instruct you otherwise. I say
6 "unless I instruct you otherwise" because there are some
7 allegations of conspiracy in the indictment where the
8 government's burden of proof will not require all of these
9 four elements, or where its burden will require proof of
10 additional elements other than those four, or both.
11 Whenever such circumstances exist, I will of course
12 inform you. In the meantime, I instruct you that proof beyond
13 a reasonable doubt as to all four core elements is necessary
14 for the government to establish any allegation of criminal
15 conspiracy as to any defendants.
16 We are now ready to consider in detail, count by
17 count, the specific elements of each of the four conspiracies
18 alleged in the indictment. I am going to break for a minute
19 and stand and stretch, and if you want to break for a minute
20 and stand and stretch, be my guest. If you don't, that's OK
21 too.
22 (Pause)
23 THE COURT: So we are now, if you are following, on
24 page 52, looking at the specific counts in the indictment.
25 The first count in the indictment alleges that all four
6099
1 defendants, while they were situated outside the United
2 States, engaged in a conspiracy to murder nationals of the
3 United States. Specifically, Count 1 charges, and I am now
4 reading from paragraphs 10 and 11 of the indictment, that:
5 From at least 1991 until the date of the filing of
6 this indictment, which was May 8, 2000, in the Southern
7 District of New York, in Afghanistan, the United Kingdom,
8 Pakistan, the Sudan, Saudi Arabia, Yemen, Somalia, Kenya,
9 Tanzania, Azerbaijan, and elsewhere out of the jurisdiction of
10 any particular state or district, the defendants and others,
11 at least one of whom was first brought to and arrested in the
12 Southern District of New York, together with other members and
13 associates of Al Qaeda, Egyptian Islamic Jihad, and others
14 known and unknown to the grand jury, unlawfully, willfully and
15 knowingly combined, conspired, confederated, and agreed to
16 kill nationals of the United States.
17 It was a part and object of said conspiracy that the
18 defendants, and others known and unknown, would and did murder
19 United States nationals.
20 The federal statute that the defendants are charged
21 with violating in Count 1 is a provision of the United States
22 Code which provides in relevant part:
23 Whoever outside the United States ... engages in a
24 conspiracy to kill a national of the United States shall ...
25 in the case of a conspiracy by two or more persons to commit a
6100
1 killing that is a murder ... if one or more of such persons do
2 any overt act to effect the object of the conspiracy, is
3 guilty of a crime.
4 As to each of the four defendants charged, in order
5 to satisfy its burden of proof as to Count 1, the government
6 must establish each of the following five elements beyond a
7 reasonable doubt:
8 First, that two or more persons entered into an
9 unlawful agreement, the object of which was to murder
10 nationals of the United States as charged in Count 1 of the
11 indictment;
12 Second, that the defendant you are considering knowingly
13 and willfully became a member of that conspiracy, with the
14 intent to further its illegal purpose of murdering United
15 States nationals;
16 Third, that the defendant you are considering
17 knowingly and willfully engaged in the conspiracy while
18 outside of the United States;
19 Fourth, that one or more of the conspirators, but not
20 necessarily the defendant you are considering, knowingly
21 committed at least one of the overt acts charged in Count 1 of
22 the indictment, at or about the time alleged; and
23 Fifth, that at least one overt act which you
24 unanimously find to have been committed was knowingly and
25 willfully committed to effect the object of the conspiracy.
6101
1 The first element of Count 1 that the government must
2 prove beyond a reasonable doubt is that two or more persons
3 entered into the unlawful agreement charged in Count 1 of the
4 indictment. I have already instructed you as to what a
5 conspiracy is and how you should go about determining whether
6 one exists or not. However, you must keep in mind that each
7 of the conspiracy counts in the indictment charges a different
8 conspiracy, and you must make an independent determination on
9 each count as to whether the government has proven beyond a
10 reasonable doubt that the particular conspiracy existed.
11 In Count 1, the alleged purpose of the conspiracy was
12 to murder United States nationals. If you unanimously find,
13 beyond a reasonable doubt, that the conspirators agreed to
14 accomplish this unlawful objective, then the illegal purpose
15 element will have been satisfied.
16 I instruct you that a murder is defined as the
17 "unlawful killing of a human being with malice aforethought."
18 A killing is done with malice aforethought if it is done
19 consciously, with the intent to kill another person. In order
20 to establish this element, the government must prove that the
21 defendant you are considering acted willfully, with a bad or
22 evil purpose to break the law. However, the government need
23 not prove spite, malevolence, hatred or ill will.
24 I further instruct you that a "national of the United
25 States" is simply a citizen of the United States.
6102
1 The second element of Count 1 that the government
2 must prove beyond a reasonable doubt is that the defendant you
3 are considering knowingly, willfully and voluntarily became a
4 member of the conspiracy, with the intent to further its
5 unlawful purpose of murdering nationals of the United States.
6 I have previously explained to you how you are to
7 determine whether or not a person was a member of a charged
8 conspiracy, and you should rely on those instructions here and
9 in connection with the remaining counts. I have also defined
10 the terms "knowingly and willfully" and what sort of evidence
11 may help you guide your assessment of a defendant's state of
12 mind. Please rely on those instructions as you consider Count
13 1 and the other conspiracy counts.
14 The third element of Count 1 that the government must
15 prove beyond a reasonable doubt is that the defendant you are
16 considering engaged in the charged conspiracy while outside
17 the United States.
18 Thus you must find that the conspirators' illegal
19 agreement to murder United States nationals existed outside
20 the United States, and that the defendant you are considering
21 knowingly and willfully engaged in that conspiracy while
22 outside the United States. It does not matter if you find
23 that he also engaged in that conspiracy while in the United
24 States.
25 The term "United States" is used in its territorial
6103
1 sense. It includes all the states, territories and
2 possessions of the United States and all places whether on the
3 North American continent or on islands, and all waters subject
4 to the jurisdiction of the United States.
5 I instruct you that the following places, to name but a
6 few, are all outside of the United States: Afghanistan,
7 Azerbaijan, Canada, Iran, Kenya, Pakistan, Saudi Arabia,
8 Somalia, Sudan, Tanzania, the United Kingdom, and Yemen.
9 The fourth element of Count 1 that the government
10 must prove beyond a reasonable doubt is that one or more of
11 the conspirators, but not necessarily any of the four
12 defendants, knowingly committed at least one of the overt acts
13 charged in Count 1 of the indictment, at or about the time and
14 place alleged. Count 1 alleges that various conspirators
15 committed 65 overt acts, which appear in paragraphs 12A to
16 12MMM of the indictment. For the government to satisfy this
17 element, you must find beyond a reasonable doubt that at least
18 one of these overt acts was knowingly committed by at least
19 one individual whom you find to be a coconspirator in Count 1,
20 and you the jury must unanimously agree on which, if any, was
21 the specific overt act committed.
22 The fifth and final element of Count 1 that the
23 government must prove beyond a reasonable doubt is that at
24 least one of the overt acts which you unanimously find to have
25 been committed was knowingly and willfully committed for the
6104
1 purpose of carrying out the unlawful agreement to murder
2 nationals of the United States.
3 I have already instructed you as to this element in
4 my general remarks on conspiracy law, and you should rely on
5 those instructions in evaluating this element of Count 1.
6 When you reach a unanimous verdict as to each defendant
7 charged in Count 1, you must enter that verdict in the
8 appropriate space of the special verdict form.
9 Now, let's just turn from this document to the
10 document headed "Verdict Form". It says on the cover: Please
11 note that as to each question on this form and as to all
12 verdicts on this form, your vote as a jury must be unanimous.
13 Then you see on page 1 it says: Count 1 charges that
14 defendants Wadih El Hage, Mohamed Sadeek Odeh, Mohamed Rashed
15 Daoud Al-'Owhali, and Khalfan Khamis Mohamed, while they were
16 situated outside the United States, engaged in a conspiracy to
17 murder nationals of the United States. Do you find that the
18 defendant listed below is guilty or not guilty of this
19 offense? The four defendants are listed below and there is a
20 place to check your verdict, guilty or not guilty.
21 Going back to the on page 57, we turn to Count 2 of
22 the indictment, charging all four defendants with conspiring
23 to murder officers or employees of the United States while
24 such officers or employees were engaged in or on account of
25 the performance of official duties, and to murder
6105
1 internationally protected persons. Specifically, Count 2
2 charges, and I am now reading from paragraphs 14 and 15 of the
3 indictment, that:
4 From at least 1991 until the date of the filing of
5 this indictment, May 8, 2000, in the Southern District of New
6 York, in Afghanistan, the United Kingdom, Pakistan, the Sudan,
7 Saudi Arabia, Yemen, Somalia, Kenya, Tanzania, Azerbaijan, the
8 Philippines and elsewhere out of the jurisdiction of any
9 particular state or district.... the defendants, at least one
10 of whom was first brought to and arrested in the Southern
11 District of New York, together with other members and
12 associates of Al Qaeda, Egyptian Islamic Jihad, and others
13 known and unknown to the grand jury, unlawfully, willfully,
14 and knowingly combined, conspired, confederated and agreed
15 unlawfully to kill individuals.
16 It was a part and objective of said conspiracy that
17 the defendants, and others known and unknown, would and did:
18 (1) kill officers and employees of the United States and
19 agencies and branches thereof while such employees were
20 engaged in, and on account of, the performance of their
21 official duties, and persons assisting such employees in the
22 performance of their duties ... including members of the
23 American military stationed in Saudi Arabia, Yemen, Somalia
24 and elsewhere, and employees of the United States embassies in
25 Nairobi, Kenya, and Dar es Salaam, Tanzania; and (2) kill
6106
1 internationally protected persons ...
2 The statute which the defendants are charged with
3 violating in Count 2 is a statute which provides in relevant
4 part:
5 If two or more persons conspire to violate section
6 1114 or 1116 of this title and one or more of such persons do
7 any overt act to effect the object of the conspiracy, each is
8 guilty of a crime.
9 Section 1114 makes it a crime to kill any officer or
10 employee of the United States while such officer or employee
11 is engaged in or on account of the performance of official
12 duties, or any person assisting such officer or employee in
13 the performance of such duties, or on account of that
14 assistance. Section 1116 makes it a crime to kill an
15 internationally protected person.
16 With respect to each of the four defendants charged,
17 in order to satisfy its burden of proof as to Count 2, the
18 government must establish each of the following four elements
19 beyond a reasonable doubt:
20 First, that two or more persons entered into a
21 conspiracy, the objects of which were to murder officers or
22 employees of the United States while such officers or
23 employees were engaged in or on account of the performance of
24 official duties, as well as to murder internationally
25 protected persons, as charged in Count 2 of the indictment;
6107
1 Second, that the defendant you are considering
2 knowingly and willfully became a member of that conspiracy,
3 with the intent to further one or both of these two unlawful
4 purposes;
5 Third, that one or more of the conspirators, but not
6 necessarily the defendant you are considering, knowingly
7 committed at least one of the overt acts charged in Count 2 of
8 the indictment at or about the time alleged; and
9 Fourth; that at least one overt act which you
10 unanimously find to have been committed was knowingly and
11 willfully committed to effect the illegal objective of the
12 conspiracy.
13 The first element of Count 2 that the government must
14 prove beyond a reasonable doubt is that two or more persons
15 entered into the unlawful agreement charged in Count 2 of the
16 indictment. I have already instructed you as to what a
17 conspiracy is and how you should go about determining whether
18 one existed.
19 In Count 2, the unlawful objectives alleged to be the
20 objects of the conspiracy were: (1) to kill, in a manner
21 which constitutes murder, officers or employees of the United
22 States, or agencies and branches thereof, while such officers
23 or employees were engaged in, or on account of, the
24 performance of their official duties, or persons assisting
25 such employees in the performance of their duties, including
6108
1 members of the American military stationed in Saudi Arabia,
2 Yemen, Somalia or elsewhere, or employees of the United States
3 embassies in Nairobi, Kenya, or Dar es Salaam, Tanzania; and
4 (2) kill, in a manner which constitutes murder,
5 internationally protected persons.
6 Recall that "murder" is defined as a killing which is done
7 consciously, that is, with the intent to kill another person.
8 If you find, beyond a reasonable doubt, that the
9 conspirators agreed to accomplish one or both of these two
10 unlawful objectives as charged in Count 2 of the indictment,
11 then the illegal purpose element will be satisfied. Although
12 the finding of one unlawful objective is sufficient to satisfy
13 the illegal purpose element, you the jury must unanimously
14 agree on which, if any, were the specific unlawful objects of
15 the alleged conspiracy. You must indicate your unanimous
16 finding on the special verdict form, and we will look at that
17 in a moment.
18 I instruct you that an individual performs an
19 "official duty" when he acts within the scope of what he is
20 employed to do. To murder someone "on account of the
21 performance of their official duties" is to murder someone
22 because he or she performs that duty.
23 The term "officers and employees of the United
24 States" is self-explanatory. It includes officers and
25 employees of any agency in any branch of the United States
6109
1 government, including members of the uniformed services.
2 The parties have stipulated that 41 persons were inside
3 the United States Embassy in Nairobi, Kenya, on August 7,
4 1998, and that they were officers and employees of the United
5 States, and that two persons were inside the American Embassy
6 in Dar es Salaam, Tanzania, on August 7, 1998, and they were
7 officers and employees of the United States.
8 An "internationally protected person" is a
9 representative, officer, employee or agent of the United
10 States government who at the time and place concerned was
11 entitled, pursuant to international law, to special protection
12 against attack upon his person, freedom or dignity. The
13 parties have also stipulated that two persons who were inside
14 the American Embassy in Nairobi, Kenya, on August 7, 1998,
15 fall under the definition of "internationally protected
16 persons."
17 The second element of Count 2 that the government
18 must prove beyond a reasonable doubt is that the defendant you
19 are considering knowingly, willfully and voluntarily became a
20 member of the conspiracy, with intent to further its unlawful
21 purpose.
22 I have previously explained to you how you are to
23 determine whether a person was a member of a charged
24 conspiracy, and also the definition of the terms "knowingly"
25 and "willfully," and you should rely on those instructions as
6110
1 you consider Count 2 and the other conspiracy Counts.
2 The third element of Count 2 that the government must
3 prove beyond a reasonable doubt is that one or more of the
4 conspirators, but not necessarily the defendant you are
5 considering, knowingly committed at least one of the overt
6 acts charged in Count 2 of the indictment, at or about the
7 time alleged.
8 Count 2 alleges as overt acts the same 65 overt acts
9 that are charged in Count 1, which are found in paragraphs 12A
10 to 12MMM of the indictment.
11 To satisfy this element of Count 2, you must find
12 that at least one of these overt acts was committed by at
13 least one individual whom you find to be a coconspirator in
14 Count 2. You the jury must unanimously agree on which, if
15 any, was the specific overt act committed.
16 Even if you may have already found one of these overt
17 acts to have been knowingly committed in connection with the
18 other conspiracy counts, you still must separately find beyond
19 a reasonable doubt that one of these overt acts was knowingly
20 committed with respect to Count 2.
21 The fourth element of Count 2 that the government
22 must prove beyond a reasonable doubt is that at least one
23 overt act was knowingly and willfully committed for the
24 purpose of carrying out the unlawful agreement. I have
25 already instructed you as to the same element in connection
6111
1 with my general remarks on the law of conspiracy, and you
2 should rely on those instructions in evaluating this element
3 of Count 2.
4 Here too, the fact that you have already found that
5 an overt act was knowingly and willfully committed for the
6 purpose of carrying out some other conspiracy charged in the
7 indictment does not relieve you of your obligation to find,
8 beyond a reasonable doubt, that it, or some other overt act,
9 was knowingly and willfully committed in order to fulfill the
10 unlawful purposes of the conspiracy charged in Count 2.
11 For each of the defendants charged in Count 2, once you
12 have reached a unanimous verdict, you must indicate that
13 verdict on the special verdict form. Let's turn again to the
14 special verdict form on Count 2, which is on page 2 of the
15 special verdict form. It reads:
16 Count 2 charges Wadih El Hage, Mohamed Sadeek Odeh,
17 Mohamed Rashed Daoud Al-'Owhali and Khalfan Khamis Mohamed
18 with conspiring to murder officers or employees of the United
19 States while such officers or employees were engaged in or on
20 account of the performance of official duties, and to murder
21 internationally protected persons.
22 Do you find that the defendant listed below is guilty or
23 not guilty of this offense?
24 And then there are the names and the box for guilty or not
25 guilty.
6112
1 (Continued on next page)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6113
1 THE COURT: (Continuing) But Count Two goes on, as
2 Count One did not, because the conspiracy alleged in Count Two
3 has two separate objectives. Count One has only one
4 objective: To kill nationals of the United States. Count Two
5 has two objectives. For that reason, we ask you in the middle
6 of that page, "If you find at least one defendant guilty of
7 Count Two, answer part A below. If you find all four
8 defendants not guilty of Count Two, skip part A below."
9 And what part A below asks is: Did the conspiracy
10 charged in Count Two include one or both of the following
11 objectives? And we ask you to check "yes" or "no" as to the
12 objective alleged in the indictment as an objective of this
13 conspiracy. If you found both, then you check "yes" as to
14 both. If you found neither, then you check "no" as to both
15 and your verdict would be not guilty. If you found "yes" as
16 to one and "no" as to the other, the object of the conspiracy
17 requirement would be satisfied.
18 And that takes us to Three. You get to reserve as
19 you go along because you see there's a pattern and there's a
20 repetition here, although it is important that you follow
21 carefully these instructions and the language of the
22 indictment.
23 We'll turn to Count Three after we take our mid
24 afternoon recess.
25 (Recess)
6114
1 THE COURT: Turning then to Count Three and page 62
2 of the court's instructions, if you are reading along with me,
3 Count Three of the indictment charges only defendants Mohamed
4 Sadeek Odeh, Mohamed Rashed Daoud Al-'Owhali, and Khalfan
5 Khamis Mohamed with conspiring to use weapons of mass
6 destruction -- to wit, bombs -- against United States
7 nationals while such nationals were outside the United States,
8 and against property owned, leased, or used by the United
9 States.
10 Defendant Wadih El Hage is not named as a defendant in
11 this Count.
12 Count Three charges, and I am now reading from
13 paragraphs 18 and 19 of the indictment, that:
14 From at least 1991 until the date of the filing of
15 this indictment [May 8, 2000], in the Southern District of New
16 York, and in those other countries, those three defendants,
17 that is, all of the defendants except the defendant Wadih El
18 Hage, at least one of whom was first brought to and arrested
19 in the Southern District of New York, together with other
20 members and associates of al Qaeda, Egyptian Islamic Jihad,
21 and others known and unknown to the Grand Jury, unlawfully,
22 willfully, and knowingly combined, conspired, confederated,
23 and agreed unlawfully to use weapons of mass destruction, to
24 wit, bombs, against nationals of the United States while such
25 nationals would be outside the United States and against
6115
1 property that is owned, leased, and used by the United States
2 or by departments and agencies of the United States.
3 It was a part and an object of said conspiracy that
4 the defendants, and others known and unknown, would and did:
5 (i) bomb the American embassies in Nairobi, Kenya, and Dar es
6 Salaam, Tanzania, and employees of the American government
7 stationed at those embassies, and (ii) attack American
8 military facilities in the Gulf region and the Horn of Africa,
9 and members of the American military stationed in Saudi
10 Arabia, Yemen, Somalia, and elsewhere with bombs.
11 The statute that defendants Odeh, Al-'Owhali and
12 Mohamed are charged with violating in Count Three is a section
13 of the criminal code which provides, in relevant part, that:
14 A person who, without lawful authority ... conspires
15 to use a weapon of mass destruction ... against a national of
16 the United States while such national is outside of the United
17 States ... or against any property that is owned, leased or
18 used by the United States or by any department or agency of
19 the United States, whether the property is within or outside
20 of the United States, [is guilty of a crime].
21 With respect to each of the three defendants charged,
22 in order to satisfy its burden of proof as to Count Three, the
23 government must establish each of the following three elements
24 beyond a reasonable doubt:
25 First, that two or more persons entered into an
6116
1 unlawful agreement to use weapons of mass destruction against
2 nationals of the United States while such nationals were
3 outside of the United States, and against any property owned,
4 leased, or used by the United States or any department or
5 agency of the United States;
6 Second, that the defendant you are considering
7 knowingly and willfully became a member of that conspiracy,
8 with the intent to further one or both of these two illegal
9 purposes; and
10 Third, that the conspiracy existed on or after
11 September 13, 1994, and that the defendant you are considering
12 was a knowing and willful member of that conspiracy on or
13 after that date.
14 The first element of Count Three that the government
15 must prove beyond a reasonable doubt is that two or more
16 persons entered into the unlawful agreement to use weapons of
17 mass destruction against United States nationals while such
18 nationals were outside the United States, and against any
19 property owned, leased, or used by the United States. Again,
20 the principles of conspiracy that I have already explained to
21 you apply here as well.
22 You need to understand the definition of certain
23 terms used in the count. A "weapon of mass destruction" is
24 defined to include, among other things, any explosive or
25 incendiary bomb or similar device. As I instructed you
6117
1 earlier, a "national of the United States" is simply a citizen
2 of the United States. Finally, the term "outside the United
3 States" depends on the territorial definition of "United
4 States" that I gave you earlier.
5 In Count Three, the unlawful objectives alleged to be
6 the objects of the conspiracy were: (i) to bomb the American
7 Embassy in Nairobi, Kenya, or Dar es Salaam, Tanzania, or
8 employees of the American government stationed at those
9 embassies; and (ii) attack American military facilities in the
10 Gulf region or the Horn of Africa, or members of the American
11 military stationed in Saudi Arabia, Yemen, Somalia, or
12 elsewhere with bombs.
13 If you find, beyond a reasonable doubt, that the
14 conspirators agreed to accomplish one or both of these two
15 unlawful objectives, as charged in Count Three of the
16 indictment, then the illegal purpose element will be
17 satisfied. Although the finding of one unlawful objective is
18 sufficient to satisfy the illegal purpose element, you, the
19 jury, must unanimously agree on which, if any, were the
20 specific unlawful objects of the alleged conspiracy. Your
21 unanimous finding must be indicated on the special verdict
22 form.
23 The second element of Count Three that the government
24 must prove beyond a reasonable doubt is that the defendant you
25 are considering knowingly, willfully, and voluntarily became a
6118
1 member of the conspiracy, with the intent to further its
2 illegal purpose.
3 You should rely on my previous instructions
4 concerning how you are to determine whether a person was a
5 member of a charged conspiracy, and also regarding the
6 definitions of "knowingly" and "willfully."
7 The third and final element of Count Three that the
8 defendant must prove beyond a reasonable doubt that the
9 conspiracy charged in Count Three existed at some point on or
10 after September 13, 1994, and that the defendant you are
11 considering was a knowing and willful member of the conspiracy
12 on or after that date.
13 Now, this requirement is necessary because, although
14 Count Three alleges that the conspiracy existed "from at least
15 1991 until the date of the filing of this indictment [May 8,
16 2000]" the statute under which Count Three is charged was not
17 enacted until September 13, 1994.
18 That's the first time you have heard that day and
19 that's the reason for it.
20 You may be wondering why I have not mentioned the
21 overt act elements of conspiracy in connection with Count
22 Three. That's because, unlike the conspiracies charged in
23 Count One and Count Two, which require you to find at least
24 one overt act was committed by one of the conspirators in
25 furtherance of the conspiracy, the conspiracy charged in Count
6119
1 Three has no overt act requirement under the terms of the
2 relevant statute. Thus, you may find that the elements of
3 Count Three are satisfied without finding that an overt act
4 was committed.
5 And when you reach a unanimous verdict as to each
6 defendant charged in Count Three, you must enter that verdict
7 on the special verdict form. And let's look at the special
8 verdict form for Count Three, which is on Count Three.
9 And it says, Count Three charges the defendants Odeh,
10 Al-'Owhali and Mohamed, with conspiring to use weapons of mass
11 destruction -- to wit, bombs -- against the United States
12 nationals while such nationals were outside the United States,
13 and against property owned, leased, or used by the United
14 States.
15 And then it asks you to indicate your finding as to
16 the guilt or not guilt.
17 And then, because there are two objects of the
18 conspiracy, we ask that if you find at least one defendant
19 guilty of Count Three, answer part A below. If you find all
20 three defendants not guilty, skip part A.
21 Part A says: Did the conspiracy charged in Count Three
22 include one or more of the following objectives?
23 1. To bomb the American embassies in Nairobi, Kenya, or
24 Dar es Salaam, Tanzania, or employees of the American
25 government stationed at those embassies? Yes/No.
6120
1 2. To attack military facilities in the Gulf region
2 or the Horn of Africa, or members of the American military
3 stationed in Saudi Arabia, Yemen, Somalia, or elsewhere with
4 bombs? Yes/No.
5 If you unanimously find both, then you check "yes"
6 for both. If you unanimously find "no" as to each, then you
7 check "no" as to each, in which case you must find the
8 defendants not guilty. If you find "yes" as to one and "no"
9 as to the other, so indicate. And as long as you unanimously
10 find one of the objectives to be satisfied, that requirement
11 of the government's burden of proof will be satisfied.
12 Then we turn to the last of the conspiracy Counts,
13 Count Four. Count Four of the indictment charges all four
14 defendants with conspiring to maliciously damage or destroy
15 United States property by means of an explosive.
16 Specifically, Count Four charges, and I am now reading
17 paragraphs 22 and 23 of the indictment, and then the beginning
18 of that is the same as the previous one, and the allegation
19 is:
20 Unlawfully, willfully and knowingly, combined, conspired,
21 confederated and agreed unlawfully to maliciously damage and
22 destroy, by means of fire and explosives, buildings, vehicles
23 and other personal and real property in whole or in part owned
24 and possessed by, and leased to, the United States and
25 departments and agencies thereof ...
6121
1 It was a part and an objective of said conspiracy
2 that the defendants would and did: (i) bomb American
3 facilities anywhere in the world, including the American
4 embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania;
5 [and] (ii) attack military installations and members of the
6 American military stationed at such military installations in
7 Saudi Arabia, Yemen, Somalia, and elsewhere with bombs ...
8 The statute that the defendants are charged with
9 violating in Count Four reads in pertinent part:
10 [A] person who conspires to [maliciously damage or
11 destroy ... by means of an explosive ... any building, vehicle
12 or other personal or real property in whole or in part owned
13 or possessed by, or leased to the, the United States, or any
14 department or agency thereof] shall be [guilty of a crime].
15 With respect to each of the four defendants charged,
16 in order to satisfy its burden of proof as to Count Four, the
17 government must establish each of the following three elements
18 beyond a reasonable doubt:
19 First, that two or more persons entered into an unlawful
20 agreement with one another, the object of which was to
21 maliciously damage or destroy United States property, by means
22 of an explosive, as charged in Count Four;
23 Second, that the defendant you are considering
24 knowingly and willfully became a member of that conspiracy,
25 with the intent to further its unlawful purpose of maliciously
6122
1 damaging or destroying United States property by means of an
2 explosive; and
3 Third, that the conspiracy existed on or after April
4 24, 1996, and that the defendant you are considering was a
5 knowing and willful member of that conspiracy on or after that
6 date.
7 The first element that the government must prove
8 beyond a reasonable doubt is that two or more persons entered
9 into the unlawful agreement charged in Count Four of the
10 indictment. I have already instructed you as to what a
11 conspiracy is, and how you should go about determining whether
12 one existed. And you should rely on those instructions in
13 considering this element of Count Four.
14 In Count Four, the alleged unlawful purpose of the
15 conspiracy was to maliciously damage or destroy United States
16 property, by means of an explosive. Specifically, Count Four
17 charges that the illegal objectives of the conspiracy were to:
18 (i) to bomb American facilities anywhere in the world,
19 including the American embassies in Nairobi or Dar es Salaam;
20 and (ii) attack military installations or members of the
21 American military at such military installations in Saudi
22 Arabia, Yemen, Somalia or elsewhere with bombs.
23 I instruct you that to act "maliciously" means to act
24 intentionally or with willful disregard of the likelihood that
25 damage or injury would result from one's acts.
6123
1 The statute defines "explosives" as "gunpowders,
2 powders used for blasting, all forms of high explosives,
3 blasting materials, fuses (other than electric circuit
4 breakers), detonators, and other detonating agents, smokeless
5 powders ... and any chemical compounds, mechanical mixture, or
6 device that contains any oxidizing and combustible units, or
7 other ingredients, in such proportions, quantities, or packing
8 that ignition by fire, by friction, by concussion, by
9 percussion, or by detonation of the compound, mixture, or
10 device or any part thereof may cause an explosion." The
11 statute also includes within its definition of "explosives
12 "dynamite and all other forms of high explosives, any
13 explosive bomb, grenade, missile, or similar device, including
14 any incendiary bomb or grenade, fire bomb, or similar device,
15 including any device which consists of or includes a breakable
16 container including a flammable liquid or compound, and a wick
17 composed of any material which, when ignited, is capable of
18 igniting such flammable liquid or compound, and can be carried
19 or thrown by one individual acting alone."
20 If you find, beyond a reasonable doubt, that the
21 conspirators agreed to accomplish one or both of these two
22 unlawful objectives, as charged in Count Four of the
23 indictment, then the illegal purpose will be satisfied.
24 Although the finding of one unlawful objective is sufficient
25 to satisfy the illegal purpose element, you, the jury, must
6124
1 unanimously agree on which, if any, were the specific unlawful
2 objects of the alleged conspiracy. Your unanimous finding
3 must be indicated on the special verdict form.
4 The second element of Count Four that the government
5 must prove beyond a reasonable doubt is that the defendant you
6 are considering knowingly, willfully, and voluntarily became a
7 member of the conspiracy, with the intent to further its
8 illegal purpose of maliciously damaging or destroying United
9 States property by means of an explosive.
10 I have previously explained to you how you determine
11 whether a person was a member of a charged conspiracy, and you
12 should rely on those instructions here. I have also defined
13 the terms "knowingly" and "willfully," and what sort of
14 evidence may help you guide your assessment of a defendant's
15 state of mind. Please rely on those instructions as you
16 consider this element of Count Four.
17 The third and final element of Count Four that the
18 government must prove beyond a reasonable doubt is that the
19 conspiracy charged in Count Four existed at some point on or
20 after April 24, 1996, and that the defendant you are
21 considering was a knowing and willful member of that
22 conspiracy on or after that date.
23 Here too, this element is needed because, although
24 Count Four alleges that the conspiracy existed "from at least
25 1991 until the date of the filing of this indictment [May 8,
6125
1 2000]," the statute under which Count Four is charged was not
2 enacted until April 24, 1996.
3 As with the conspiracy charged in Count Three, the
4 conspiracy charged in Count Four has no overt act element.
5 Thus, you may find that the elements of Counts four are
6 satisfied without finding that an overt act was committed.
7 Now, if, but only if, you find that the government
8 has proven, beyond a reasonable doubt, all of the elements of
9 Count Four as to defendants Odeh, Al-'Owhali or K.K. Mohamed,
10 then you must consider an additional question as to those
11 three defendants.
12 You must determine whether the unlawful conduct
13 committed by the defendant you are considering in Count Four
14 directly or proximately caused the death of at least one
15 person other than a conspirator.
16 "Directly caused" means that the conduct of the
17 defendant you are considering directly resulted in the death
18 in question.
19 "Proximately caused" means that there was a
20 sufficient causal connection between the act of the defendant
21 under consideration and the death of any victim. An act is a
22 proximate cause if it was a substantial factor in bringing
23 about or actually causing death, that is, if the death was a
24 reasonably foreseeable consequence of that defendant's act.
25 If a death was a direct result or a reasonably probable
6126
1 consequence of that defendant's act, it was proximately caused
2 by such act. In other words, if that defendant's act had such
3 an effect in producing the death that reasonable persons would
4 regard it as being a cause of the death, then the act is a
5 proximate cause.
6 A proximate cause need not always be the nearest
7 cause either in time or in space. In addition, there may be
8 more than one proximate cause of a death. Many factors or the
9 conduct of two or more people may operate at the same time,
10 either independently or together, to cause a death.
11 A defendant's act is not a proximate cause of a death
12 if the death was caused by a new or independent source that
13 intervened between the defendant's act and the death, and that
14 produced a result that was not reasonably foreseeable by the
15 defendant you are considering.
16 For purposes of this narrow inquiry only, it is not
17 relevant whether or not the defendant being considered
18 intended for his unlawful conduct to cause death. The simple
19 question being asked of you here is, having already found
20 beyond a reasonable doubt that a defendant committed the
21 offense alleged in Count Four of the indictment, do you
22 additionally find that his unlawful conduct directly or
23 proximately caused death to a person other than a conspirator?
24 Your unanimous answer to this question, with respect to the
25 particular defendant you are considering, must be marked in
6127
1 the appropriate place on the special verdict form.
2 When you reach an unanimous verdict as to each
3 defendant charged in Count Four, you must enter that verdict
4 on the special verdict form.
5 And let's turn to page 4 in Count Four of the indictment.
6 And it says there, Count Four charges that ther are four
7 defendants charged with conspiring to maliciously damage or
8 destroy United States property, by means of an explosive. Do
9 you find the defendant listed below is guilty or not guilty of
10 this offense, and then the four defendants are listed.
11 And then other questions follow.
12 If you find at least one defendant guilty of Count Four,
13 answer parts A through D below. If you find all four
14 defendants not guilty of Count Four, skip parts A through D
15 below.
16 And A asks, as was the case with Counts Two and
17 Three, with respect to the objectives: Do you unanimously
18 find that objective one was considered or that objective two
19 was considered. If you find them both, you answer them both
20 "yes." If you find them both "no," then you have to find the
21 defendants not guilty. If you find one "yes" and one "no,"
22 then the requirement of proving the object of the conspiracy
23 will have been satisfied.
24 Then it goes on, and it says: If and only if you
25 find defendant Mohamed Sadeek Odeh guilty as to Count Four,
6128
1 answer the following question. If you find Mohamed Sadeek not
2 guilty as to Count Four, skip the following question and
3 proceed to part C below.
4 And question B is: Do you find beyond a reasonable
5 doubt that defendant Mohamed Sadeek Odeh's crime of conspiracy
6 in Count Four directly or proximately caused the death of at
7 least one person other than a conspirator? Yes or no.
8 And C asks the same question as to Al-'Owhali and D
9 asks the same question as to K.K. Mohamed.
10 So you see that all the things that you are called
11 upon by my instructions to decide are indicated in the special
12 verdict form, which is why I say it's a road map.
13 That finishes the conspiracy counts and I come now,
14 ladies and gentlemen, to the substantive counts of the
15 indictment arising out of the bombings of the United States
16 embassies in Kenya and Tanzania, and these are numbered as
17 Counts Five through 284 in this indictment.
18 All these substantive counts allege violations of
19 United States law which are also alleged to have been some of
20 the objects of the conspiracy charged in Counts One through
21 Four of the indictment.
22 Conspiracy, as you will recall, is a crime separate
23 from the actual violations of the United States law that forms
24 its objective. Accordingly, because the government contends
25 that the substantive violations I will now instruct you on
6129
1 actually occurred, some of the defendants are charged in the
2 indictment with committing the substantive offenses in
3 addition to conspiring to commit them.
4 Now, Counts Five and Six may be considered together.
5 Count Five charges defendants Odeh and Al-'Owhali with
6 explosive damage or destruction of federal property, that is,
7 the American Embassy in Nairobi, Kenya. Specifically, Count
8 Five charges:
9 On or about August 7, 1998, in Nairobi, Kenya, and
10 outside the jurisdiction of any particular state or
11 district, ... Mohamed Sadeek Odeh ... and Mohamed Rashid Daoud
12 Al-'Owhali, the defendants, at least one whom was first
13 brought to and arrested in the Southern District of New York,
14 and others known and unknown, unlawfully, willfully and
15 knowingly did maliciously damage and destroy, by means of fire
16 and an explosive, buildings, vehicles and other personal and
17 real property in whole and in part owned or possessed by, and
18 leased to, the United States, to wit, the defendants, together
19 with other members and associates of al Qaeda and the Egyptian
20 Islamic Jihad, detonated an explosive device that damaged and
21 destroyed the United States Embassy in Nairobi, Kenya, and as
22 a result of such conduct directly and proximately caused the
23 deaths of at least 213 persons, including Kenyan and American
24 citizens, as listed in Counts Nine to 221.
25 Count Six of the indictment charges K.K. Mohamed with
6130
1 explosive damage or destruction of the United States Embassy
2 in Dar es Salaam, Tanzania. It follows the same language as
3 Count Five, except that it says, "and as a result of such
4 conduct, directly and proximately caused the deaths of at
5 least 11 persons, including Tanzanian citizens, as listed in
6 Counts 222 to 232."
7 Both Counts Five and Six charge a violation of the
8 statute which provides: "Whoever maliciously damages or
9 destroys, or attempts to damage or destroy, by means of fire
10 or an explosive, any building, vehicle, or other personal or
11 real property in whole or in part owned or possessed by, or
12 leased to, the United States, or any department or agency
13 thereof is guilty of a crime.
14 Before I explain these elements of the offenses, let
15 me pause to remind you of something I emphasized earlier.
16 Although, to expedite matters, I may in these instructions
17 occasionally refer to separate counts in pairs or in a group,
18 you, the jury, are required, as a matter of law, to consider
19 each count of the indictment and each defendant's involvement
20 in that count separately.
21 To satisfy its burden of proof as to Counts Five and
22 Six, the government must prove each of the following elements
23 beyond a reasonable doubt:
24 First, that the defendant you are considering used an
25 explosive to damage or destroy a building or other property;
6131
1 Second, that the building or other property which was
2 damaged or destroyed was federal property; and
3 Third, that the defendant acted unlawfully,
4 willfully, knowingly, and maliciously.
5 The first element of Counts Five and Six that the
6 government must prove beyond a reasonable doubt is that the
7 defendant you are considering, by means of fire or explosive,
8 damaged or destroyed property.
9 The terms "damage" and "destroy" have their ordinary
10 meaning.
11 When I explained the elements of the conspiracy
12 alleged in Count Four, I provided you with the statutory
13 definition of "explosives." You should apply that definition
14 here, as well.
15 If you find the defendant you are considering did
16 damage or destroy the United States Embassy in Nairobi, Kenya,
17 (in the case of Count Five), or the United States Embassy in
18 Dar es Salaam, Tanzania (in the case of Count Six), by means
19 of an explosive device, the first element of the offense is
20 satisfied for the count you are considering.
21 To satisfy this element, it is also sufficient if you
22 conclude that the defendant aided and abetted another person
23 in placing the explosive.
24 And interjecting: That's a concept we have not dealt with
25 before.
6132
1 And I will define this other type of criminal
2 responsibility -- "aiding and abetting" the commission of an
3 offense -- in a few moments and you should apply that
4 definition here. It is important for you to note that, with
5 respect to Count Five and each of the following counts through
6 Count 284 in which he is charged, defendant Odeh is only
7 accused by the government of aiding and abetting the
8 commission of the offenses charged. The government does not
9 contend that he physically committed the crimes charged in
10 those counts.
11 Let me say now that if you find that the government
12 has proven beyond a reasonable doubt that the defendant you
13 are considering aided and abetted the commission of the
14 offense, only this first element of Counts Five and Six is
15 established. To satisfy its burden of proof as to Counts Five
16 and Six, the government must prove beyond a reasonable doubt
17 each of the three of the elements that I listed a moment ago.
18 And I will now describe the second and third required elements
19 in greater detail.
20 The second element of Counts Five and Six that the
21 government must prove beyond a reasonable doubt is that the
22 property which was damaged or destroyed was federal property.
23 Federal property is defined in the statute as any
24 building, vehicle, or other real or personal property in whole
25 or in part owned, possessed, or used by the United States
6133
1 Government, or any institution or organization receiving
2 federal financial assistance.
3 The third and final element as to Counts Five and Six
4 the government must prove beyond a reasonable doubt is that
5 the defendant you are considering acted unlawfully, knowingly,
6 willfully, and maliciously. Earlier, when discussing
7 conspiracies in general and, in particular the elements of
8 Count Four, I defined all of those terms for you, but now I
9 will explain more about what it means to act "maliciously."
10 To act with malicious intent means to act either intentionally
11 or with willful disregard of the likelihood that damage will
12 result, and not mistakenly or carelessly. To find the
13 defendant you are considering guilty, you must find that the
14 defendant used the explosive, or aided and abetted the use of
15 the explosive, with the intent to cause damage, or that he did
16 so recklessly and without regard to the likelihood that damage
17 would result.
18 If, but only if, you find that the government has
19 proven beyond a reasonable doubt each of the elements of
20 Counts Five and Six as to the defendant you are considering,
21 then, as with Count Four, you must consider an additional
22 question as to that defendant.
23 First, you must determine whether the conduct
24 committed by the defendant you are considering in Count Five
25 or Six directly or proximately caused the death of at least
6134
1 one person other than a conspirator. I defined "directly
2 caused" and "proximately caused" for you earlier when I
3 explained the elements of Count Four and you should apply
4 those definitions here.
5 The government is not required to prove that the
6 defendant you are considering intended to kill any person. It
7 is enough that the crime directly or proximately caused a
8 person's death, and the person would not have died except for
9 the crime.
10 With respect to each of the defendants that you are
11 considering, you must indicate your unanimous finding as to
12 this question on the special verdict form.
13 With respect to Counts Five and Six and each of the
14 following counts through Count 284, the indictment also
15 charges the defendants named in those counts with violating 18
16 U.S.C. Section 2, in addition to other sections. Section
17 2(a), which is the one we're dealing with here, is called the
18 aiding and abetting statute, and it provides that "[w]hoever
19 commits an offense against the United States or aides, abets,
20 counsels, commands, induces or procures its commission, is
21 punishable as a principal." In other words, a defendant may
22 be held criminally responsible for certain conduct or actions
23 even if the evidence does not show the defendant personally
24 committed these acts.
25 Under this statute it is not necessary for the
6135
1 government to show that the defendant himself committed the
2 crime with which he is charged in order for you to find him
3 guilty. A person who aids and abets another to commit an
4 offense is just as guilty of that offense as if he committed
5 it himself. Accordingly, you may find the defendant guilty if
6 you find beyond a reasonable doubt that the government has
7 proven that another person actually committed the offense and
8 that the defendant aided and abetted that person in the
9 commission of the offense.
10 Please remember that this instruction applies only to
11 Counts Five through 284, which is why we include it at this
12 point in our instructions. The legal principles outlined in
13 this instruction are distinct from those described in Counts
14 One through Four, all of which dealt with the crime of
15 conspiracy. You are not to consider this instruction when
16 deliberating whether the government has proven the elements of
17 conspiracy beyond a reasonable doubt with regard to a
18 particular defendant.
19 As you can see, the first requirement is that you
20 find that another person has committed the crime charged.
21 Obviously, no one can be convicted of aiding and abetting the
22 criminal acts of another if no crime was committed by the
23 other person in the first place. But if you do find that a
24 crime was committed, then you must consider whether the
25 defendant you are considering aided and abetted the commission
6136
1 of the crime. On a related note, let me say here that if you
2 are finding the defendant you are considering himself
3 committed the crime charged, you need not consider whether he
4 also aided and abetted another person's commission of the
5 crime. That is to say, if you find that the defendant you are
6 considering acted as a principal -- interjecting: by acting
7 as a principal, we mean somebody who himself did it. If you
8 find the defendant you are considering acted as a principal
9 and personally committed the offense, then you do not need to
10 evaluate whether he might also have acted as an aider and
11 abettor with another person.
12 To aid and abet another to commit a crime, it is
13 necessary that the defendant willfully and knowingly associate
14 himself in some way with the crime, and that he willfully and
15 knowingly seek by some act to help make the crime succeed.
16 When I explained the elements of a conspiracy, I gave you the
17 definitions of the terms "willfully" and "knowingly" which you
18 should apply here.
19 The mere presence of a defendant where a crime is
20 being committed, even coupled with knowledge that a crime is
21 occurring, or the mere acquiescence by the defendant in the
22 criminal conduct of others, even with guilty knowledge, is not
23 sufficient to establish aiding and abetting. An aider and
24 abettor must participate in the crime charged as something he
25 wished to bring about.
6137
1 In other words, you may not find the defendant you
2 are considering guilty unless you find beyond a reasonable
3 doubt that every element of the offense as defined in these
4 instructions was committed by some person or persons, and that
5 the defendant willfully and knowingly participated in the
6 commission of the crime.
7 To determine whether the defendant you are
8 considering aided and abetted the commission of the crime with
9 which he is charged, ask yourself these questions:
10 Did he participate in the crime charged as something
11 he wished to bring about?
12 Did he associate himself with the criminal venture
13 knowingly and willfully?
14 Did he seek by his actions to make the criminal
15 venture succeed?
16 If he did, then the defendant is an aider and
17 abettor, and therefore guilty of the offense. If, on the
18 other hand, your answers to these questions is "no," then the
19 defendant is not an aider and abettor, and you must find him
20 not guilty.
21 Before I move on, let me explain that for each count
22 where the government has alleged that defendants have aided
23 and abetted the commission of an offense -- that is, Counts
24 Five through 284 -- if you determine that the government has
25 proven that the defendant you are considering is guilty of the
6138
1 offense charged, you will be asked to indicate, on the special
2 verdict form, whether the defendant personally committed the
3 offense in question or whether he aided and abetted another
4 person to commit the offense. Only one of these options may
5 be marked and your decision must be unanimous.
6 However, as I have already mentioned to you, in those
7 counts between Count Five and 284 in which he is named as a
8 defendant -- that is, Counts Five, Seven, Nine through 221,
9 233 through 273, 274, 278, 279, 280, 282 and 283 -- defendant
10 Mohamed Sadeek Odeh is only charged by the government to have
11 aided and abetted the commission of the crimes charged. When
12 you are evaluating defendant Odeh's culpability under each of
13 those counts, you must assess whether he aided and abetted
14 another to commit the offense; you do not need to consider
15 whether he personally committed the crimes charged.
16 And when you reach a unanimous verdict as to the
17 defendant you are considering in Counts Five and Six, you must
18 enter your unanimous verdict in the appropriate place on the
19 special verdict form.
20 And if you look at Count Five, Count Five charges
21 defendants Mohamed Sadeek Odeh and Mohamed Rashed Daoud
22 Al-'Owhali with explosive damage or destruction of the United
23 States Embassy in Nairobi, Kenya. You must answer parts A
24 through C below.
25 Do you find that the defendant listed below is guilty
6139
1 or not guilty of explosive damage or destruction of the United
2 States Embassy in Nairobi, Kenya?
3 And it lists Odeh and it reminds you that Odeh is charged
4 with aiding and abetting only. And then Al-'Owhali.
5 Then with respect to Odeh, if and only if you find
6 Odeh guilty of aiding and abetting the explosive damage or
7 destruction of the Nairobi Embassy under Count Five, consider
8 the following question. If you find him not guilty, then
9 don't consider it. Go on to C.
10 And that asks: Do you find beyond a reasonable doubt that
11 defendant Mohamed Odeh's crime of aiding and abetting the
12 explosive damage or destruction of the Nairobi Embassy in
13 Count Five directly or proximately caused the death of at
14 least one person other than a conspirator? And it calls for a
15 "yes" or a "no."
16 Then with respect to Al-'Owhali, the questions are
17 different because as to Al-'Owhali he may be found guilty
18 either as a principal, as someone who did it himself, or as an
19 aider and abettor.
20 And so question C as to Al-'Owhali asks: If you found him
21 guilty: 1. Please specify whether unanimously you find that
22 defendant Al-'Owhali himself used an explosive to damage or
23 destroy the Nairobi Embassy, or whether you find that he aided
24 and abetted the use of an explosive to damage or destroy the
25 embassy. You are to put an "X" next to only one of the
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1 following choices.
2 And that's because, as we repeat in the footnote, if you
3 unanimously find the defendant you are considering himself
4 committed the offense charged, you need not consider whether
5 he also aided and abetted in the commission of that same
6 offense.
7 And this principle applies everywhere in this verdict form
8 in which you are required to indicate whether unanimously you
9 find the defendant you are considering himself committed the
10 offense or that he aided and abetted in the commission of the
11 offense. You only look to aiding and abetting if you have
12 concluded that the defendant did not personally commit the
13 offense.
14
15 (Continued on next page)
16
17
18
19
20
21
22
23
24
25
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1 THE COURT: (Continuing) Then in 2 it asks: Do you
2 find beyond a reasonable doubt that defendant Mohamed Rasheed
3 Al-'Owhali's crime of explosive damage or destruction of the
4 Nairobi embassy in Count 5 directly or proximately caused the
5 death of at least one person other than a coconspirator? A
6 yes or no.
7 Count 6 is parallel to Count 5, relating to K.K.
8 Mohammed and the Dar es Salaam embassy, and asks the same
9 question with respect to K.K. Mohammed and Dar es Salaam.
10 If we may, we will continue until 5:00. You are such
11 good sports, really.
12 Count 7 charges defendants Odeh and Al-'Owhali with
13 the use of a weapon of mass destruction for bombing the
14 American Embassy in Nairobi, Kenya, and alleges that on or
15 about August 7, 1998, in Nairobi, Kenya, and outside the
16 jurisdiction of any particular state or district, Odeh and
17 Al-'Owhali -- and then the jurisdictional allegations which we
18 have previously seen -- unlawfully, willfully and knowingly,
19 and without lawful authority, did use a weapon of mass
20 destruction against nationals of the United States while such
21 nationals were outside the United States, and against property
22 that was owned, leased and used by the United States and by an
23 agency of the United States, to wit, the defendants attacked
24 the American Embassy in Nairobi, Kenya, and employees of the
25 American government stationed at this embassy with a bomb,
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1 which use of such weapon of mass destruction resulted in
2 death.
3 So you see what is happening is, the substantive
4 counts are following the conspiracy counts, have the same
5 pattern. The conspiracy counts allege these were the unlawful
6 objects of the conspiracy, the substantive counts allege that
7 they in fact did what the conspiracy counts allege they
8 conspired to do.
9 Count 8 follows the language of Count 7 except that
10 it relates to K.K. Mohammed and the American Embassy in Dar es
11 Salaam.
12 The statute that the defendants are charged with
13 violating in Counts 7 and 8 provides:
14 A person who, without lawful authority, uses... a weapon
15 of mass destruction... against a national of the United States
16 while such national is outside of the United States... or
17 against any property that is owned, leased or used by the
18 United States or by any department or agency of the United
19 States, whether the property is within or outside the United
20 States, is guilty of a crime.
21 To satisfy its burden of proof as to Count Counts 7
22 and 8, the government must establish each of the following
23 elements beyond a reasonable doubt:
24 First, that without lawful authority the defendant
25 you are considering knowingly and willfully used, or aided and
6143
1 abetted the use of, a weapon of mass destruction; and
2 Second, that the weapon of mass destruction was used
3 against a national of the United States while such national
4 was outside of the United States, or against any property that
5 was owned, leased, or used by the United States or by any
6 department or agency of the United States.
7 The first element of Counts 7 and 8 that the
8 government must prove beyond a reasonable doubt is that,
9 without lawful authority, the defendant you are considering
10 knowingly and willfully used, or aided and abetted the use of,
11 a weapon of mass destruction. I have previously defined the
12 terms "knowingly" and "willfully," and you should rely on
13 those definitions here. I instruct you that to act "without
14 lawful authority" is to act illegally and with a criminal
15 purpose. Lastly, I remind you that, as I explained when
16 reviewing the elements of Count 7, a "weapon of mass
17 destruction" is defined to include an explosive or incendiary
18 bomb.
19 In discussing Counts 5 and 6 I explained the concept
20 of "aiding and abetting," and you should rely on those
21 instructions when considering this first element of these
22 counts. Recall that with respect to Count 7 and defendant
23 Odeh, the government's theory is that he aided and abetted the
24 commission of the offense. The government does not allege
25 that defendant Odeh physically carried out the crime charged
6144
1 in Count 7.
2 To find the defendant you are considering guilty of
3 Counts 7 and 8, you must find that the government has
4 established beyond a reasonable doubt both elements of the
5 crime.
6 The second element of Counts 7 and 8 that the
7 government must prove beyond a reasonable doubt is that the
8 weapon of mass destruction was used against a national of the
9 United States while such national was outside the United
10 States and against any property that was owned, leased or used
11 by the United States or by any department or agency of the
12 United States.
13 I defined the terms "national of the United States"
14 and "United States" when I explained the elements of Count 3,
15 and you should rely on those definitions in considering these
16 counts.
17 Keep in mind that the government may prove Counts 7
18 and 8 by proving either that a weapon of mass destruction was
19 used against a national of the United States while that
20 national was outside the United States, or that a weapon of
21 mass destruction was used against property owned, leased or
22 used by the United States or by any department or agency of
23 the United States. The government is not required to prove
24 both, although you may find that both have been proven. All
25 that is required is that the government prove either
6145
1 allegation beyond a reasonable doubt with respect to the
2 defendant and count you are considering and that you be
3 unanimous as to the allegation proven.
4 Please remember that you must indicate your unanimous
5 verdict as to Counts 7 and 8 for each of the defendants you
6 are considering on the special verdict form.
7 If, but only if, you find the government has proven
8 beyond a reasonable doubt that the defendant you are
9 considering committed the offense charged in Counts 7 and 8,
10 you must then determine whether the conduct of that defendant
11 resulted in the death of any person other than a conspirator.
12 A death resulted from the defendant's conduct if the
13 defendant's conduct was a direct or proximate cause of the
14 death. The definitions of "direct" and "proximate cause"
15 provided in Counts 4, 5 and 6 apply here as well. Recall that
16 a defendant's conduct is a proximate cause of death if it is a
17 "substantial factor" in causing the death. In other words, to
18 find that the defendant's conduct is a proximate cause of
19 death, you must find that the person would not have died then,
20 except for the defendant's conduct. The defendant's conduct
21 is a "substantial factor" in causing a death if it has such an
22 effect in producing a death as to lead a reasonable person to
23 regard such conduct as a cause of the death. An event such as
24 the death of a person may have more than one cause. The
25 government need not prove that the defendant's conduct was the
6146
1 only cause of death; it need only prove that the defendant's
2 conduct was a substantial factor in causing the death.
3 Further, the government is not required to prove that the
4 defendant in question intended to kill any person. It is
5 enough that the crime caused a person's death and the person
6 would have died then except for the crime.
7 You must indicate your unanimous finding as to this
8 question and for each defendant you are considering on the
9 special verdict form.
10 (Pause)
11 THE COURT: I am told I left out a "not." What I
12 intended to say, page 35: Further, the government is not
13 required to prove that the defendant in question intended to
14 kill any person. It is enough that the crime caused a
15 person's death and the person would not have died except for
16 the crime.
17 If you look then at Count 7, it asks whether you find
18 the defendants Odeh and Al-'Owhali guilty or not guilty of the
19 crime alleged in Count 7. I remind you that as to Odeh you
20 may find him guilty only on a theory of aiding and abetting.
21 It asks you in B as to Odeh whether you find that the crime of
22 aiding and abetting the use of a weapon of mass destruction
23 for bombing the Nairobi embassy in Count 7 directly or
24 proximately caused the death of at least one person other than
25 a conspirator.
6147
1 With respect to Al-'Owhali, it asks in C whether you
2 find that Al-'Owhali himself used a weapon of destruction or
3 whether he aided and abetted the use of a weapon of mass
4 destruction.
5 Bear in mind what I tell you earlier in a footnote, that
6 if you find that somebody himself did it then you need not
7 consider aiding and abetting. So that you only answer one of
8 those. And 2 asks whether you find that Al-'Owhali's crime of
9 the use of a weapon of mass destruction directly or
10 proximately caused the death of at least one person other than
11 a conspirator.
12 Count 8 asks the same questions with respect to the
13 defendant K.K. Mohammed and the use of a weapon of mass
14 destruction in Dar es Salaam, Tanzania.
15 Then we turn to Counts 9 to 232, so we will have gone
16 through Count 232, rather than just through 8.
17 Counts 9 through 221 of the indictment charge
18 defendants Odeh and Al-'Owhali with the murders of 213 persons
19 in the course of an attack with a dangerous weapon on the
20 American Embassy in Nairobi, Kenya. Each count corresponds to
21 a person killed in the explosion at that embassy on August 7,
22 1998. Specifically, Counts 9 through 221 charge:
23 On or about August 7, 1998, in Nairobi, Kenya, and
24 outside the jurisdiction of any particular state or
25 district... Mohamed Sadeek Odeh: And Mohamed Rashed Daoud
6148
1 Al-'Owhali ... the defendants, at least one of whom was first
2 brought to and arrested in the Southern District of New York,
3 and others known and unknown, unlawfully, willfully,
4 deliberately and maliciously and with malice aforethought and
5 with premeditation, did kill the persons listed below during
6 the course of an attack on a federal facility involving the
7 use of a dangerous weapon, to wit, the defendants detonated an
8 explosive device that damaged and destroyed the United States
9 Embassy in Nairobi, Kenya, and as a result of such conduct
10 directly and proximately caused the deaths of the persons
11 listed in those counts.
12 Counts 222 through 232 charge defendant Khalfan
13 Khamis Mohamed with the murders of 11 persons in the course of
14 an attack with a dangerous weapon on the American Embassy in
15 Dar es Salaam, Tanzania. Each count corresponds to a person
16 killed in the explosion at that embassy on August 7, 1998.
17 Specifically, Counts 222 through 232 charge:
18 On or about August 7, 1998, in Dar es Salaam,
19 Tanzania, and outside the jurisdiction of any particular state
20 or district ... Khalfan Khamis Mohamed ... who was first
21 brought to and arrested in the Southern District of New York,
22 and others known and unknown, unlawfully, willfully,
23 deliberately and maliciously, and with malice aforethought and
24 with premeditation, did kill the persons listed below during
25 the course of an attack on a federal facility involving the
6149
1 use of a dangerous weapon, to wit, the defendant detonated an
2 explosive device that damaged and destroyed the United States
3 Embassy in Dar es Salaam, Tanzania, and as a result of such
4 conduct directly and proximately caused the deaths of the
5 persons listed in those counts.
6 The statute the defendants are charged with violating
7 in these Counts is section 930 of Title 18, and the statute
8 provides in relevant part that a person who kills ... any
9 person ... in the course of an attack on a federal facility
10 involving the use of a firearm or other dangerous weapon is
11 guilty of a crime.
12 In these counts, the government further alleges that
13 the defendants committed the killings with malice aforethought
14 and with premeditation.
15 To satisfy its burden of proof as to Counts 9 through
16 232, the government must establish each of the following
17 elements beyond a reasonable doubt:
18 First, that the defendant you are considering killed,
19 or aided and abetted the killing of, the victim as charged;
20 Second, that the killing occurred in the course of an
21 attack on a federal facility;
22 Third, that the defendant knowingly used a firearm or
23 other dangerous weapon in the attack;
24 Fourth, that the defendant acted unlawfully;
25 Fifth, that the defendant acted with malice
6150
1 aforethought; and
2 Sixth, that the defendant acted with premeditation.
3 The first element the government must prove beyond a
4 reasonable doubt is that the defendant you are considering
5 killed, or aided and abetted the killing of the victim as
6 charged in the indictment.
7 In this regard, it is the government's burden to
8 prove that the conduct of the defendant you are considering
9 was the direct cause of the victim's death. That means
10 simply, the government must prove that the defendant inflicted
11 an injury or injuries upon the victim from which the victim
12 died, or that the defendant aided and abetted another person
13 to do so.
14 The definition of "aiding and abetting" that was
15 provided to you earlier in Counts 5 and 6 is also applicable
16 to the element of these counts.
17 Recall with respect to Counts 9 through 221 and defendant
18 Odeh, the government's theory is that he aided and abetted the
19 commission of the offenses. The government does not allege
20 that defendant Odeh physically carried out the crimes charged
21 in those counts.
22 As I have already explained to you, to satisfy their
23 burden as to these counts, the government must establish
24 beyond a reasonable doubt each of the six elements that I am
25 now explaining to you.
6151
1 The second element that the government must prove
2 beyond a reasonable doubt is that the killing occurred in the
3 course of an attack on a federal facility. The term "federal
4 facility" means a building or part thereof owned or leased by
5 the federal government, where federal employees are regularly
6 present for the purpose of performing their official duties.
7 The third element that the government must prove
8 beyond a reasonable doubt is that in the course of an attack
9 on a federal facility, if you should find that one occurred,
10 the defendant you are considering knowingly used a firearm or
11 other dangerous weapon.
12 To use a firearm or other dangerous weapon in an
13 attack means to use it in such a way that it was an integral
14 part of the attack.
15 The term "firearm" includes, among other things, any
16 destructive device. A "destructive device" is defined to
17 include an explosive, incendiary or poison gas bomb; an
18 explosive, incendiary or poison gas grenade; an explosive,
19 incendiary or poison gas rocket; an explosive, incendiary or
20 poison gas mine; or any similar device.
21 The term "dangerous weapon" means a weapon, device,
22 instrument, material or substance, animate or inanimate, that
23 is used for or is readily capable of causing death or bodily
24 injury.
25 To satisfy this element, you must find that the
6152
1 defendant you are considering knowingly used the firearm or
2 other dangerous weapon. This means that the defendant used a
3 firearm or other dangerous device purposely and voluntarily
4 and not by accident or mistake.
5 This element may also be satisfied if you find that the
6 defendant you are considering aided and abetted another person
7 to use the firearm or dangerous weapon. You should apply the
8 same definition of "aiding and abetting" that was provided
9 previously.
10 The fourth element that the government must prove
11 beyond a reasonable doubt is that the defendant you are
12 considering acted unlawfully. An act is done unlawfully if it
13 was done without valid justification or excuse. While the
14 taking of human life is a most serious matter, not all
15 killing, even when intentional, is unlawful. In the context
16 of Counts 9 through 232, the law forbids killing done without
17 valid justification or excuse. If you find that the defendant
18 you are considering committed a killing without valid
19 justification or excuse, this element is satisfied.
20 The fifth element that the government must prove
21 beyond a reasonable doubt is that the defendant you are
22 considering acted with malice aforethought. Malice is a state
23 of mind that would cause a person to act without regard to the
24 life of another. To satisfy this element, the defendant --
25 Let me begin with "malice aforethought." Apparently
6153
1 I misspoke.
2 The fifth element that the government must prove
3 beyond a reasonable doubt is that the defendant you are
4 considering acted with malice aforethought. Malice is a state
5 of mind that would cause a person to act without regard to the
6 life of another. To satisfy this element, the defendant must
7 have acted consciously, with the intent to kill another
8 person.
9 In order to establish this element, the government
10 must prove that the defendant acted willfully, with a bad or
11 evil purpose to break the law. However, the government need
12 not prove spite, malevolence, hatred or ill will to the
13 victim.
14 The sixth and final element that the government must
15 prove beyond a reasonable doubt is that the defendant you are
16 considering acted with premeditation. An act is done with
17 premeditation if it is done upon deliberation. To show
18 premeditation, the government must prove the defendant killed
19 the victim only after thinking the matter over, deliberating
20 whether to act before committing the crime. There is no
21 requirement that the government prove that the defendant
22 deliberated for any particular period of time. It is
23 sufficient to satisfy this element if you find that before he
24 acted, the defendant had a period of time to become fully
25 aware of what he intended to do and to think it over.
6154
1 If you find the defendant killed a victim, or aided
2 and abetted the killing of a victim, as a result of a
3 premeditated design to effect the death of a different person,
4 then the requirement of premeditation as to the victim you are
5 considering is satisfied.
6 With respect to each of the defendants you are
7 considering, you must indicate your unanimous verdict as to
8 each of Counts 9 through 232 on the special verdict form.
9 Let's look at that special verdict form with respect
10 to those counts, and then we will call it a night. I am on
11 page 12 of the special verdict form, and it says:
12 Counts 9 through 221 charge defendants Odeh and Al-'Owhali
13 with the murder of 213 persons in the course of an attack with
14 a dangerous weapon on the United States Embassy in Nairobi,
15 Kenya. For each of the counts between 9 and 221, if you find
16 the defendant listed below is guilty as to that count you are
17 considering, put an X in the guilty box next to that count.
18 If you find the defendant listed below is not guilty as to the
19 count you are considering, put an X in the not guilty box next
20 to that count.
21 You may not find Odeh guilty as to any of Counts 9
22 through 221 unless you unanimously find that he aided and
23 abetted the commission of the offense.
24 Additionally, and solely with respect to the
25 defendant Al-'Owhali, if and only if you find that he is
6155
1 guilty as to a count between Counts 9 and 221 that you are
2 considering, please specify whether unanimously you find that
3 he himself killed the victim in that count or whether you find
4 that he aided and abetted the killing of the victim in that
5 count. You are to put an X in only one of the two boxes
6 marked himself killed or aided and abetted next to the count
7 you are considering as to Mohamed Rashed Al-'Owhali.
8 Then you will see, if you look at Count 9, with
9 respect to Odeh, the boxes are guilty or not guilty. But
10 since Odeh can be found guilty only if you unanimously find
11 that he aided and abetted, the other choices are blacked out.
12 You are not to complete that. With respect to Al-'Owhali,
13 however, if you find him guilty, you should also indicate
14 whether he himself killed, or whether you find that he aided
15 and abetted, and that is why with respect to Al-'Owhali there
16 are four boxes of which you are to check two, guilty or not
17 guilty, and himself killed or aided and abetted, whereas as to
18 Odeh there are only two, and that applies to all of those
19 counts, through this chart.
20 We will call it a day, but I have some very important
21 things to say to you. I said earlier that my charge is to be
22 regarded as a whole, and that you are not to take any
23 particular part of it as alone stating the instructions but
24 you are to consider it as a whole. Therefore, understand that
25 what I have said today is no more nor less important than what
6156
1 I will tell you tomorrow. It is just a happenstance that some
2 things are today and some things are tomorrow.
3 Please understand also that when you arrive tomorrow
4 you will not have heard all the court's instruction, so I
5 would ask that you please not start to discuss, not start to
6 deliberate, until you have heard all the court's instructions.
7 Thank you for your patience and cooperation.
8 Tomorrow we start at 1:00. Please have lunch before you come
9 to the courthouse, and have a good evening.
10 (Jury excused)
11 THE COURT: Anyone who is aware of any inadvertent
12 errors, please call them to my attention.
13 MR. DRATEL: Yes, your Honor. On page 21, the
14 instruction about not considering the witness's guilty plea, I
15 believe you said it benefits, the court said defendants.
16 THE COURT: Page 2, all right, I will correct that
17 tomorrow. Anything else? All right, then we are adjourned
18 until 1:00 tomorrow.
19 (Proceedings adjourned until 1:00 p.m., Thursday, May
20 10, 2001)
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