25 April 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 32 of the trial, April 23, 2001. Transcript delayed due to outage of e-mail of Court Reporters Office.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
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4345
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
New York, N.Y.
8 April 23, 2001
9:30 a.m.
9
10
11 Before:
12 HON. LEONARD B. SAND,
13 District Judge
14
15
16
17
18
19
20
21
22
23
24
25
4346
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
SAM A. SCHMIDT
7 JOSHUA DRATEL
KRISTIAN K. LARSEN
8 Attorneys for defendant Wadih El Hage
9 ANTHONY L. RICCO
EDWARD D. WILFORD
10 CARL J. HERMAN
SANDRA A. BABCOCK
11 Attorneys for defendant Mohamed Sadeek Odeh
12 FREDRICK H. COHN
DAVID P. BAUGH
13 Attorneys for defendant Mohamed Rashed Daoud
Al-'Owhali
14
DAVID STERN
15 DAVID RUHNKE
Attorneys for defendant Khalfan Khamis Mohamed
16
17
18
19
20
21
22
23
24
25
4347
1 (In open court)
2 THE COURT: Good morning. We have a very long agenda
3 for today. I note that the defendants have not yet arrived.
4 Let me, I'm aware of the fact that the defendants are
5 not here, but take up a matter which is very distressing, and
6 that is the government's complaint with respect to defense
7 counsels' relationship with the press. I had hoped that it
8 would not be necessary for me to address the issue, but I do
9 have to address it.
10 I was distressed, Mr. Ruhnke, the weekend before
11 last, it didn't get my full attention because I was in a car
12 with a lot of youngsters who were concerned that I had turned
13 off the Lion King tape, to hear you predicting to Ms. LeBlanc,
14 who broadcast the tape, broadcasting the interview, that your
15 client was going to be found guilty in the liability phase.
16 And what purpose did that serve other than to suggest that
17 that outcome would not be a reflection on your legal skills?
18 What utility is served by predicting that your client will be
19 found guilty?
20 The record will indicate the defendants are being
21 brought in.
22 There were also interviews given to a reporter from
23 the New York Times which seemed to detail the theories of the
24 defense counsel in the death penalty phase of the case. At
25 the same time, there is a request that the jury be be told
4348
1 that they not see, read or listen to anything with respect to
2 the McVeigh execution, a story which is going to be the lead
3 news story in America for a significant period of time. I
4 find the juxtaposition between those two matters very strange.
5 This is a death penalty case, and certain counsel
6 here are death penalty experts and in many respects special
7 rules apply, but the rules which deal with the
8 appropriateness, that is, rather than non-appropriateness, of
9 making statements intended to appear in the press with respect
10 to an ongoing jury trial remain in effect whether it is a
11 death penalty case or it is a petty misdemeanor case. And I
12 hope that it won't be necessary for me to address this matter
13 again.
14 The rules of this Court and the rules of professional
15 conduct adequately deal with the matter, and unless counsel
16 wishes to address the issue, I hope I will have no need to say
17 anything further about it during the course of these
18 proceedings.
19 MR. RUHNKE: Your Honor, in my own defense --
20 actually, I think I need to defend myself,
21 THE COURT: Go ahead.
22 MR. RUHNKE: For example, the New York Times article,
23 I was repeatedly asked questions by the reporter about this
24 case, the strategy in this case, and --
25 THE COURT: The words are "no comment." Are you
4349
1 familiar with that expression, "no comment"?
2 MR. RUHNKE: The client --
3 THE COURT: Can you imagine if the situation were
4 reversed, if it were the government who was giving the
5 interviews to the press?
6 MR. RUHNKE: It would depend on what they were
7 saying.
8 THE COURT: Suppose, let us take the statement that,
9 "I fully anticipate that the jury will find my client guilty
10 during the liability phase," what was the purpose of that?
11 Why did you say that?
12 MR. RUHNKE: I was just answering the question
13 honestly, the question, "What's going on with your case?" and
14 really in a very way generalized, since it's what lawyers do
15 in death penalty cases all the time, which is to confront the
16 question of "what's going to happen."
17 THE COURT: You can say what is going -- if my client
18 is convicted, then there will be a separate proceeding. What
19 else do you want to tell me?
20 MR. RUHNKE: Your Honor, I have avoided discussing
21 the specifics of the case. I have avoided it with the New
22 York Times, and I obviously have incurred your Honor's anger.
23 It was not my intention to transgress.
24 THE COURT: I have such high respect for you. I have
25 such high respect for the way in which you have conducted
4350
1 yourself that I found it aberrational to hear a lawyer taping
2 an interview, predicting the outcome of the liability phase.
3 MR. RUHNKE: Well, your Honor, let's rest on it being
4 an aberration, and I understand your Honor's concerns.
5 MR. BAUGH: Your Honor, I have a concern. The
6 government has sent us a letter and our fax machine got jammed
7 up. It says, "The government respectfully submits this letter
8 in response to Al-'Owhali's letter of April 22." We didn't --
9 concerning joinder and bifurcation, we didn't --
10 MR. RUHNKE: They're referring to my letter, I'm
11 sure.
12 MR. FITZGERALD: Probably a typographical error
13 referring to Mr. Ruhnke's letter which was marked for public
14 filing.
15 THE COURT: All right. I hope I don't have to
16 address it again. It's very difficult. It's a very difficult
17 issue for the Court to deal with because I understand, I think
18 I understand some o the issues which are operative here. And
19 if I have to address it again, then I will do more than simply
20 discuss the issue, I will take action and impose sanctions.
21 All right, now in our long agenda I think the reason
22 why we were meeting at 9:30 was because of an Al-'Owhali
23 motion to bar the introduction by the government of certain
24 Somali-related evidence, and I haven't received anything in
25 writing on that.
4351
1 MR. COHN: You have not. I haven't sent it, that's
2 why you haven't received it.
3 THE COURT: Would you briefly tell me what the issue
4 is?
5 MR. COHN: The reason I didn't is because there isn't
6 a lot of case law. The government is going to, and by their
7 3500 material, I have confirmed this intent, to call a pilot
8 of a -- or somebody from a helicopter that was shot down in
9 Mogadishu and two of the people aboard were killed.
10 THE COURT: May I interrupt for a moment? There has
11 been previous testimony by one of the first two defendants
12 with respect to an incident involving a helicopter in Somali.
13 Is that the same pilot, the same incident?
14 MR. FITZGERALD: I think the first two witnesses
15 talked generally about incidents in Somalia. This witness,
16 Jim Yacone was a U.S. Army helicopter pilot who was involved
17 in the firefight on October 3, 1993 in which 18 U.S.
18 servicemen were killed and he was flying the --
19 THE COURT: No, there's some testimony about I think
20 it was being in Somalia in a building opposite one which was
21 being attacked by an American helicopter.
22 MR. FITZGERALD: Yes, that testimony was non-specific
23 as to the day or event. That was tied to the overt act listed
24 in the indictment, the witness Yacone.
25 THE COURT: I see. And the objection is what?
4352
1 MR. COHN: The objection is this, your Honor. I
2 realize this is a charged overt act.
3 THE COURT: Yes.
4 MR. COHN: There is testimony that somebody -- I
5 think that al-Fadl testified that somebody bragged about that
6 18 people were killed as a result of their actions. That is
7 the only nexus to Mogadishu that we have. The government's
8 theory on Mogadishu is that al Qaeda in the conspiracy
9 provided training so that the American troops were ultimately
10 killed and that was the cause of that --
11 THE COURT: And claiming credit for it.
12 MR. COHN: That's right. And they have that
13 evidence, that somebody claimed credit for it.
14 THE COURT: Yes.
15 MR. COHN: The fact that this person can put the
16 blood and guts into this thing, through no connection to the
17 fact that the people who did the training were really in any
18 way responsible for it, it just proves up further the fact
19 that there were 18 Americans soldiers killed. It really
20 doesn't connect to this conspiracy in any particular way. Its
21 probative value, in my view, is very low.
22 Now, you hear 403 arguments all the time about this,
23 but remember that these are the same -- none of these
24 defendants are charged with, in any way, or at least let me
25 limit it to Mr. al-'Owhali, he is not charged in any way in
4353
1 being involved in the training or involved ever being in
2 Mogadishu.
3 The jury is going to see this evidence and, in all
4 likelihood, they are going to be sitting in the penalty phase
5 where they are going to recall this evidence, and there is no
6 aggravator, none, towards Mr. al-'Owhali about Mogadishu, nor
7 can there be. So they are going to ask them to forget about
8 lurid testimony, about 18 dead soldiers and the results of a
9 firefighter, which was going to be very graphic and, I say,
10 most provocative.
11 The fact is that they have the connection that they
12 already need, which is al-Fadl saying somebody bragged about
13 it, we're responsible. This brings nothing extra to it
14 because they can't even prove the people that shot down the
15 helicopter are the people who were trained or that it was in
16 any way part of the plot. They can do nothing with this.
17 So its probative value is miniscule and, at least as
18 to the death-certified defendants, its prejudicial value is
19 extreme. I will say, also, that Mr. Odeh's lawyers, who are
20 upstairs in the Court of Appeals, told me to say that they
21 join in this application.
22 THE COURT: Yes. Mr. Herman is here on behalf of
23 defendant Odeh.
24 MR. COHN: He wasn't aware we talked about it. Mr.
25 Ricco told me to say it.
4354
1 MR. RUHNKE: Your Honor, on Mr. Mohamed's behalf, I
2 also join in the argument. I know we have a general rule that
3 arguments are joined, but just to echo Mr. Cohn's remarks
4 about this going to the penalty phase and the jury being asked
5 to consider whether to impose a death sentence or not,
6 assuming this goes to the penalty phase, let me put it this
7 way, and a jury being asked to decide or not to send somebody
8 to death, who will hear now evidence that, as framed in the
9 indictment, trainers, people trained by al Qaeda or trained by
10 trainers of al Qaeda were responsible for the deaths of 18
11 American soldiers, something that is not charged as a murder
12 count in the indictment but is alleged as an overt act and
13 will now work its way to the penalty phase of this case, Mr.
14 Cohn is correct, if the government wishes to argue this, it's
15 there if it wishes to argue the overt act as the evidence
16 before the jury, and I object to it as well.
17 THE COURT: Let me hear from you.
18 The argument that it's charged in the indictment,
19 it's an overt act but the government can't introduce evidence
20 in support of it is a little strange, but I understand the
21 argument is 403 because it's too much blood and gore. I have
22 to say, there has been relatively little blood and gore in
23 this case compared to what I'm sure is --
24 Let me hear from the government in response.
25 MR. SCHMIDT: May I briefly comment, your Honor,
4355
1 before the government gets a turn?
2 THE COURT: Yes.
3 MR. SCHMIDT: I believe that the manner of proof of
4 this overt act is different than the manner necessary to prove
5 this overt act with even the parameter that the government has
6 in proving the way they want to prove something. I think this
7 goes way beyond what is necessary and is actually under 403
8 because it specifically --
9 THE COURT: You have an advantage over me because you
10 have material which tells you more about the nature of the
11 government's testimony than I have or, to be truthful, have
12 read because it hasn't been furnished to me, has it?
13 It's in my 3500 book?
14 MR. SCHMIDT: Your Honor, my next point is, as to the
15 3500 material and the discovery material requested, I do not
16 know if we have all the discovery material requested
17 concerning this, we certainly don't have the videos that would
18 reflect about it. But what we do have is an incredibly
19 redacted conversation in which this witness participated which
20 makes the reading of the transcript impossible to follow, and
21 it also appears that it's redacted in a manner to take out
22 what will be normal cross-examination material. It looks like
23 the word "killed" or "shot at" seems to be crossed out and
24 left out.
25 The documents that I received from the government,
4356
1 the 3500, your Honor, I believe are inadequate to provide the
2 3500 under the obligation of the law. So I would ask that
3 they not be allowed to call this witness unless I can receive
4 an unredacted transcript of his statements.
5 THE COURT: I'm looking at 35107-7, the pilot
6 inquiry, is that the critical document?
7 MR. FITZGERALD: That's the pilot debriefing. It's a
8 joint debriefing, but we turned it over in any event. That's
9 a number of people, several people being interviewed.
10 THE COURT: Yes.
11 MR. FITZGERALD: Your Honor, if you would like a
12 proffer, I can tell you what the testimony would be.
13 THE COURT: Yes, I would like a proffer.
14 MR. FITZGERALD: Mr. Yacone was a pilot in a
15 helicopter. He was the platoon commander for what were to be
16 a squadron of eight helicopters going out on October 3, 1993
17 to arrest Mr. Aideed in Mogadishu. There were two helicopters
18 that were not involved in the action, one of which was a
19 command control helicopter, one of which was was a rescue
20 helicopter.
21 Mr. Yacone was flying one helicopter with a number of
22 people in the back. He and a second helicopter dropped the
23 assault team that would run into the building to arrest Aideed
24 pursuant to the United Nations warrant on the streets of
25 Mogadishu. Four of the helicopter which were in his
4357
1 platoon --
2 THE COURT: A warrant issued in this case?
3 MR. FITZGERALD: A warrant issued by the United
4 Nations.
5 THE COURT: By the United Nations.
6 MR. FITZGERALD: For Aideed.
7 Four other helicopters dropped what we call blocking
8 teams which were other teams of Army rangers to try to prevent
9 anyone from attacking the team when they went into the
10 building and also prevent people from escaping.
11 After he dropped his team, when he was in orbit with
12 another pilot trying to do security for the people down below,
13 they came under heavy fire. The other helicopter in the orbit
14 was shot by a rocket-propelled grenade, which I note the
15 witness testified was one of the techniques they trained in
16 the al Qaeda camps in Afghanistan. The other helicopter
17 crashed near the scene where they made the arrest. The ground
18 troops went to rescue that other team.
19 This pilot was then in orbit around that crash site
20 under heavy fire. A second helicopter was sent in to support
21 him. He saw that helicopter be struck by a rocket with a
22 rocket-propelled grenade. That one crashed three-quarters of
23 a mile away. He then went to the site where the crowds
24 swarmed the crash site. There was no support there. As he
25 circled over that site, his helicopter was hit by a
4358
1 rocket-propelled grenade.
2 He crashed back at the airport. Before he was hit by
3 the rocket-propelled grenade, the people on the ground at the
4 crash site were being overrun and he dropped two snipers down
5 below to help the people who were at the crash site. His
6 helicopter then crashed near the airport.
7 He climbed into another helicopter and flew through
8 the night above in a command control position. Of the 18
9 persons killed, he knew 17 personally, 5 were under his
10 command and 2 more were in the back of his helicopter, the 2
11 snipers that he dropped down to rescue.
12 Through the course of the night, he saw for the first
13 time rocket-propelled grenades being fired at an incredible
14 rate. As many as over 100 were fired at the helicopters
15 through the night, and he establishes the overt act that there
16 were 18 people killed, the U.S. Army servicemen; that they
17 were going to apprehend Aideed; and that the majority of
18 casualties of the helicopters were by RPGs being shot from the
19 ground at the helicopters.
20 THE COURT: And the nexus to this case is?
21 MR. FITZGERALD: First, we had the testimony of
22 al-Fadl indicating that there was a fatwah given by Bin Laden
23 that the U.S. and U.N. involvement in Somalia was actually
24 pretextual as to an invasion of Africa or invasion of the
25 Sudan, that there was a fatwah given that we should fight
4359
1 America in Somalia, and al-Fadl also testified that the
2 military commander came back from a trip to Somalia and
3 indicated that all the casualties in Somalia were al Qaeda's
4 responsibility.
5 Kherchtou, the second cooperating witness, testified
6 that he was trained in al Qaeda in the technique of shooting
7 at helicopters with RPGs, which is very unconventional. He
8 then testified that Nairobi was set up as a support station
9 for al Qaeda people going to Somalia. He indicated that he
10 saw trainers that went up to Somalia to train the people and
11 that they were going to help train people to fight the U.N.
12 and the U.S.
13 He indicated that he heard from conversations with
14 Saleh, who turned out to be a principal participant in the
15 Nairobi Embassy bombing plot and Haroun, and Saleh and Haroun
16 were in Mogadishu for actions against the U.S. troops and, in
17 fact, were there for, as your Honor recalled, a firefight in
18 which helicopters were shooting at an adjacent building.
19 In addition to that, Bin Laden in his public
20 statements indicated that it was correct that he had in fact
21 supported Aideed in the fight against U.S. troops, and then in
22 Mr. El Hage's computer seized in August of 1997 was the
23 security report, apparently written by Haroun, which indicated
24 that they were concerned about the Nairobi cell of al Qaeda
25 because America knows well that it was a youth of the Sheik,
4360
1 Bin Laden, who attacked the Americans in Somalia and their
2 base was in Kenya.
3 It explains, in part, what the Nairobi cell was set
4 up to do. It was also very critical to establish that al
5 Qaeda was against America as early as 1993, when the
6 defendants are claiming that they were surprised in 1998 that
7 Bin Laden would go against America, and that was set forth in
8 the indictment since basically day one.
9 THE COURT: Mr. Cohn complains that there's going to
10 be too much blood and gore.
11 MR. FITZGERALD: There are no pictures, no
12 videotapes, no exhibits. It will be the witness simply
13 telling what happened. There won't be --
14 THE COURT: And the significance of the fact, of the
15 18 killed, he knew 17 personally?
16 MR. FITZGERALD: I just meant to show his foundation
17 for his knowledge. He is not going to describe any of their
18 life histories.
19 THE COURT: Mr. Cohn?
20 MR. COHN: May I, your Honor?
21 THE COURT: Yes.
22 MR. COHN: I gather we finally have interpreters.
23 The problem is, your Honor, that, although it's
24 dramatic testimony, it adds nothing to what the government
25 already has, except the physical fact that people were killed.
4361
1 THE COURT: Your objection is it's cumulative?
2 MR. COHN: It's not. It is and it isn't, Judge.
3 Look, if this wasn't a death case, there would be
4 nothing that I could say that would -- but it has limited
5 probative effect because you don't need it.
6 THE COURT: Overruled. The motion to preclude the
7 introduction of the proffered testimony under 403 is denied.
8 It appears to the Court to be highly relevant and the fact
9 that it makes concrete, gives a specific example of things
10 which otherwise are presented to the jury in a more abstract
11 form is not a basis for a 403 motion. It is denied.
12 MR. HERMAN: Judge, with regard to Mr. Schmidt's
13 application.
14 THE COURT: Yes.
15 MR. HERMAN: Particularly with regard to the 3500
16 material, which I think your Honor has, it is severely
17 redacted, Judge. It presents confrontation problems for us,
18 due process --
19 THE COURT: We've heard Mr. Fitzgerald's proffer.
20 What is there that you think you lack to deal with that
21 proffered testimony?
22 MR. SCHMIDT: May I give some examples, your Honor?
23 THE COURT: Let's have one at a time.
24 MR. SCHMIDT: I made notes, that's why I'm offering
25 it.
4362
1 THE COURT: Yes.
2 MR. SCHMIDT: On page 3-15,
3 THE COURT: 3-15 of what?
4 MR. SCHMIDT: Of 35107-4.
5 THE COURT: 35107-4.
6 MR. BAUGH: Your Honor?
7 THE COURT: Yes.
8 MR. BAUGH: Your Honor?
9 THE COURT: I have three at a time now.
10 No, I have it. Thanks.
11 MR. SCHMIDT: At the bottom, it says, "When they
12 launched" --
13 THE COURT: On what page?
14 MR. SCHMIDT: 15.
15 THE COURT: Page 15.
16 Are these pages numbered?
17 MR. SCHMIDT: Yes, at the bottom. It's 3-15.
18 THE COURT: Yes.
19 MR. SCHMIDT: In the last one where Y apparently
20 talks, Y being Mr. Yacone, "When they launched us, we at that
21 point still didn't know which target we were going to," blank.
22 Now, was it going to shoot? I have no idea. Assault? "And
23 then they decided they would," blank, blank, blank, blank,
24 "and they went for the," blank.
25 Then, in another example --
4363
1 THE COURT: Yes, and suppose specific targets were
2 identified. How does that change anything with respect to the
3 nature of what was happening or the relevance in this case?
4 MR. SCHMIDT: As your Honor is aware, it is our
5 position that this assault especially, as well as the July 12
6 assault, were military operations.
7 I am hamstrung by questioning this witness about the
8 nature of the operation to show the jury that it was a
9 terrible thing that Americans died, it was a terrible thing
10 that Somalis died, but this is the nature of a wartime
11 operation, an operation that it liked war.
12 Now, with this, I am missing all -- not just this, I
13 could go on for an hour, your Honor, and go on and point out
14 each page. I can show you page 18, page 24, page 25, page 26,
15 I can go on every page.
16 THE COURT: Mr. Fitzgerald, can you generally tell us
17 what has been redacted here and why?
18 MR. FITZGERALD: Your Honor, to be honest with you,
19 this is how I received it. It was classified and I believe
20 that they blacked things out to get it down to a declassified
21 level so it could be used. If if it were classified, we would
22 be stuck without the ability for counsel to use it.
23 MR. SCHMIDT: Not necessarily, your Honor. We would
24 be at a different stage and we would be arguing whether they
25 could call a witness.
4364
1 THE COURT: I take it that what you are saying is
2 that if the redacted material disclosed that there were
3 non-military targets, that the shooting down of the
4 helicopters would be, what?
5 MR. SCHMIDT: No, your honor. Perhaps I haven't made
6 myself clear. Whether it was a military target or not a
7 military target, the U.S. forces went on a military operation
8 against this group of people, armed --
9 THE COURT: Is there any dispute as to that?
10 MR. SCHMIDT: Well, if the government is willing to
11 consent -- will stipulate that this was a military operation,
12 excuse me, an offensive military operation against the Aideed
13 supporters, all right, we'll discuss it with counsel.
14 THE COURT: My understanding of the government's
15 proffer is that the assignment here was to capture and bring
16 back Aideed, who was under a United Nations warrant. I don't
17 know that to be in dispute.
18 MR. SCHMIDT: Just as the government wants to be able
19 to fully show evidence as to this overt act, I want to be able
20 to fully cross-examine as to the nature of the attack, and
21 part of the nature of the attack is what he was thinking when
22 he went in there, what he felt his -- the enemy was, the enemy
23 was capable of, what he was told they were doing, all these
24 things are left out.
25 THE COURT: I understand from the government's
4365
1 proffer that the witness is going to testify that he's in the
2 United States Army, that this was an operation being conducted
3 by the military, that the object of it was to capture and
4 arrest somebody who was subject to United Nations warrant, and
5 I don't see any reason why you can't cross-examine with
6 respect to that. I don't think there is an ambiguity as to
7 why they went there.
8 MR. SCHMIDT: Your Honor, this is the problem. It's
9 a simplistic answer by the government, and I want to show that
10 the operation and operations were not a simplistic military
11 operation, it was much more complicated. There were political
12 and military things involved here.
13 I am being hamstrung. I have never been in a
14 situation where the government is putting on a very
15 substantial, important witness and I can't see what the
16 witness has said in prior statements. And I got this on
17 Friday and other material on Sunday, and I'm left with
18 cross-examining this witness with -- perhaps there's other
19 information about the operation that I even haven't received
20 yet.
21 THE COURT: You know, the weakest argument is a
22 timing argument, because I think the record must show at least
23 20, at least 20 occasions in which the Court said, "I
24 understand there are questions with respect to Somalia. I am
25 ready to address them," and the Court was told, "No, no, no,
4366
1 your Honor, it's not ready for you to concern yourself with
2 the issue because it's going to be stipulated."
3 So with respect to the timing, I think I alerted
4 counsel sufficiently to that. The motion is denied.
5 MR. SCHMIDT: Your Honor, as to timing, the time has
6 to do with the redactions of this material, not having any
7 alternatives to the redactions, redacted material, not that I
8 received 3500 material late.
9 THE COURT: Overruled.
10 MR. HERMAN: Two questions: It's our understanding,
11 Judge, that in addition to this being a military operation,
12 women and children were on the ground and were killed by bombs
13 or rocket fire that was taking place.
14 THE COURT: This witness is going to testify to what
15 he saw was happening on the ground.
16 MR. HERMAN: Judge, we can't cross-examine him
17 because what he saw happening on the ground has been blacked
18 out.
19 Secondly, Judge, with regard to RPGs, which seems to
20 be an important part of the government's case, that the
21 mujahadeen somehow were training people to use RPGs, it's also
22 our understanding that RPGs were very common among many
23 different groups, many different clans in Mogadishu and in
24 Somalia at that time, and that may also be reflected in what
25 has been blacked out here.
4367
1 At this point, it's a cross-examination problem.
2 THE COURT: If at the end of his direct you believe
3 that there is a need for a continuance before
4 cross-examination, I will take up that issue at that time, not
5 indicating what my ruling would be. But as I look at this and
6 I look at what has been blacked out, I really don't think
7 counsel is significantly prejudiced.
8 This issue is closed. The motion is denied. The
9 jury is here. The jury will be brought in.
10 MR. COHN: One question, your Honor.
11 THE COURT: Yes.
12 MR. COHN: Collaterally, in one of the 3500
13 interviews, there's an affidavit by a proposed prospective
14 witness. He says that he saw a videotape of soldiers being
15 dragged through the streets, their bodies, and also that the
16 two people were given the Congressional Medal of Honor. I'm
17 wondering if the government is going to elicit that testimony,
18 which I think neither one of which is particularly germane.
19 MR. FITZGERALD: Your Honor, we'll see on redirect
20 what the cross-examination is about civilian casualties and
21 what happened there.
22 MR. COHN: So it's not going to be offered on direct
23 testimony?
24 MR. FITZGERALD: I will lead around it on direct
25 testimony and we'll see where we are after the
4368
1 cross-examination. Your Honor, I believe --
2 MR. SCHMIDT: If I may, your Honor, if I may, I know
3 your Honor can't make a ruling now, but I see no connection
4 between testimony about the civilian casualties and the
5 information that the government intends to elicit on redirect.
6 MR. FITZGERALD: Your Honor, I think if they want to
7 talk about 403, when we're not putting any pictures, if they
8 want to talk about civilian casualties and keep out what
9 happened to the American soldiers, I think it's plain.
10 THE COURT: I think we're trying to come to a level
11 playing field.
12 MR. FITZGERALD: Your Honor, I believe that Mr. Ricco
13 and Mr. Wilford wish to be here if Agent Yacone was
14 testifying, so we can flip the order. He's here, but I don't
15 want to do something to which Mr. Ricco and Mr. Wilford wish
16 to be present.
17 THE COURT: What will you do in lieu of it?
18 MR. FITZGERALD: That's it. The next thing is
19 Mr. Schmidt.
20 THE COURT: So I should not bring in the jury?
21 MR. FITZGERALD: Or, I think, I don't know if Mr. --
22 MR. DRATEL: I'm sorry.
23 MR. FITZGERALD: I know that the El Hage team was
24 calling an expert on Somalia and I know he's going to testify
25 about Somalia in the 90s, but --
4369
1 THE COURT: You have a witness? Do you have a
2 witness?
3 MR. DRATEL: Yes, your Honor.
4 THE COURT: Call your witness.
5 MR. DRATEL: Your Honor, this witness should not go
6 on before the other witness. This witness will have to
7 testify about that.
8 I had discussions with Mr. Fitzgerald, we've had
9 discussions with Mr. Fitzgerald this weekend about what the
10 parameters of the witness's testimony were going to be and
11 whether the pilot was going to testify or not and the pilot's
12 testimony puts the witness's testimony in a completely
13 different context. His testimony will have to be expanded.
14 He should not have to go on before the government's witness
15 goes on.
16 If he were to go on before, if he were going to go
17 and the pilot was not going to go on, it would be limited to
18 issues that did not discuss anything to do with the American
19 presence or that time period. And we were trying to get
20 there, but we didn't get there, and obviously we can still get
21 there, but if they're intending to put on the pilot no matter
22 what, then we're not going to get there.
23 So I don't know what the government's position is in
24 terms of, we had a discussion as to what the defense was going
25 to put on about Somalia.
4370
1 THE COURT: Is this witness's sole area going to be
2 related to matters being impacted by the government's case?
3 MR. DRATEL: No, your Honor, but it's a thread.
4 THE COURT: We'll interrupt the thread. Call him.
5 We will take so much up to this point. When Mr. Wilford and
6 Mr. Ricco arrive, we can interrupt and call the next witness.
7 MR. DRATEL: Your Honor, I don't know where we're
8 going to be in the course of the testimony with respect,
9 whether it going to be five minutes or twenty minutes. Your
10 Honor, I mean --
11 THE COURT: All right. All right. The jury is
12 ready. I think we'll wait.
13 MR. FITZGERALD: Your Honor, my only concern is I
14 don't know what the foundation for this witness is going to be
15 about what happened regarding the events of October 3, 1993.
16 I do not believe he was in Somalia, so I think we're getting a
17 history geographer to talk about events that I don't know what
18 his foundation for his expert testimony is.
19 THE COURT: You have received nothing about him?
20 MR. FITZGERALD: I have received 3500 material
21 indicating that he's written on Somalia generally. He was
22 there, I believe, in the early 90s and the late 90s, but was
23 not there in 1993. I don't know what it is he's going to say
24 about it.
25 THE COURT: Why haven't they received the testimony
4371
1 about him?
2 MR. DRATEL: Your Honor, because --
3 THE COURT: I'm going to accede to your request and
4 we'll leave it at that.
5 MR. DRATEL: Thank you, your Honor.
6 THE COURT: So we'll be adjourned, then, until
7 Mr. Wilford and Mr. Ricco return.
8 (Pause)
9 THE COURT: While we're waiting, there are a few
10 other matters. There is a request that the jury be told --
11 first asked whether they have read or seen anything with
12 respect to McVeigh, which is a rather strange request to come
13 at this stage of the trial and given the amount of media
14 attention which has been given to McVeigh execution.
15 I don't understand what purpose that would serve, and
16 unless somebody wishes to be heard on it, I do not propose to
17 ask jurors the extent to which they have previously been
18 exposed to anything in the media concerning McVeigh's pending
19 execution.
20 MR. RUHNKE: Your Honor, my particular concern,
21 specific concern has to do with interviews of victims and
22 statements victims have made in the Oklahoma City bombing
23 case, Timothy McVeigh's execution, whether it be comfort,
24 whether it be --
25 THE COURT: We are going to ask them. They are going
4372
1 to say yes or no. If they say yes, then what?
2 MR. RUHNKE: Then if they say yes, we ask them what
3 they have read and we inquire.
4 THE COURT: And if they say "everything I can get my
5 hands on with respect to it," and then what happens?
6 MR. RUHNKE: "And have you read any comments about
7 victims?"
8 THE COURT: Yes.
9 MR. RUHNKE: "And what have you read?"
10 THE COURT: "I read the anguish, how people are
11 looking forward to the execution and putting closure on this
12 terrible incident in their lives."
13 MR. RUHNKE: "And how do you think that will impact
14 on your service in this case?"
15 THE COURT: We're going to voir dire? We voir dired
16 for one month in this case. Now we start a new voir dire?
17 MR. RUHNKE: We now have a sitting jury that could be
18 exposed to prejudicial publicity, your Honor. They have not
19 been told not to read anything about this.
20 THE COURT: One is what they have previously read.
21 Now there is a request that they not read anything with
22 respect to McVeigh, and I am hesitant to do that on a number
23 of grounds. One is I don't think it serves any purpose to
24 impose on the jury unreasonable restraints.
25 To tell the jury not to read anything about this case
4373
1 I think is reasonable because the embassy bombing in a
2 terrorism trial, at least in the media that I regularly expose
3 myself to, are sort of consumed, but the McVeigh matter is a
4 matter of significant national debate with respect to capital
5 punishment in general and I'm very reluctant.
6 Does the government have any view on any of this?
7 MR. FITZGERALD: Your Honor, I would agree that it is
8 not productive to ask the retrospective question, but I think
9 it might be helpful, given that this jury may be sitting in
10 judgment on a capital case, for them to try to avoid the
11 coverage of McVeigh at least until their service is done.
12 We're not asking them to do that forever, but I think
13 it might be helpful not to have people commenting on the
14 McVeigh decision who may well during these broadcasts turn
15 around and, at the same time this is going on, there's a case
16 pending in New York. People could go back and forth, and I
17 think it would be best if they avoided the coverage for the
18 pendency of the trial.
19 THE COURT: Mr. Cohn?
20 MR. COHN: Your Honor, my take on it is a little
21 different and I was thinking of a way before we try and broach
22 this. I frankly don't think it's possible to avoid McVeigh
23 and I think we're almost in a situation like Shepard when we
24 are in the middle of a trial, and I understand, I was trying
25 to find some way so we can figure out whether or not we were
4374
1 and I was trying to formulate some --
2 THE COURT: Shepard is different. In Shepard the
3 publicity was with respect to him and his trial.
4 MR. COHN: I understand.
5 THE COURT: There was a terrorist bombing in Israel
6 yesterday, a suicide bombing, and it's a fact of life today
7 that -- there's a rare day that goes by that the press doesn't
8 have some reference to some terrorist threat or incident.
9 MR. COHN: And we haven't whined about that. That is
10 a fact of life and there's no way to do anything about it
11 except to proceed. But here the government has already said
12 that they are going to bring more victim testimony during the
13 aggravated and mitigation part of its case, and what you are
14 essentially getting is generic victim testimony throughout the
15 press about the effects of the execution on victims.
16 THE COURT: Does anybody object if I tell the jury
17 that, to the extent possible, we request that they avoid in
18 the future reading anything with respect to the McVeigh case?
19 Anybody object to that?
20 MR. FITZGERALD: No, Judge.
21 THE COURT: I'll do that at the close of business
22 today, and if I forget, please remind me.
23 MR. RUHNKE: I do press my request, your Honor, that
24 you voir dire the jury on what they have read, if anything.
25 I'm just thinking realistically if there are members of the
4375
1 jury who have been moved, as anybody would be moved, by the
2 plight of the victims in Oklahoma City and the plight of the
3 victims in this case, who says --
4 THE COURT: All of that existed in January. The
5 McVeigh case was on the books in January. I don't think it's
6 appropriate to conduct a new voir dire on a new coverage at
7 this stage of the case.
8 MR. RUHNKE: Your Honor, the question does not come
9 out of the clear blue sky, not for an unknown reason. The
10 reason -- and there's been a very significant change between
11 January and today, and that is that McVeigh is going to be
12 executed. The newspaper publicity, the Internet, the media,
13 the photo journalism, the T.V., as I said in my letter, it's
14 prolific, and it's now moving to the front page of every
15 newspaper, the lead story of every news book in this country.
16 It's going to be for the next two or three weeks and it's been
17 for the last couple of weeks.
18 THE COURT: I will advise the jury, to the extent
19 possible, to avoid in the future reading anything with respect
20 to the McVeigh case. I will not interrogate the jury as to
21 what it is that they have previously read since the jury was
22 not at any time instructed not to read anything with respect
23 to the McVeigh case, nor was the Court previously requested to
24 address any inquiry to the jury with respect to the McVeigh
25 case.
4376
1 MR. RUHNKE: Your Honor, just so I can conclude my
2 record. I do make this application on Federal Constitution
3 grounds, Fifth, Sixth and Eighth Amendments as well.
4 THE COURT: Yes. And the Court's ruling has taken
5 all of that into consideration.
6 MR. RUHNKE: Thank you, your Honor.
7 THE COURT: There has been a lot of give and take in
8 the papers with respect to the bifurcation of the penalties
9 phase, if it is reached, and the government opposes the
10 bifurcation on the grounds that there has not been a
11 sufficient delineation by defense counsel of what they will
12 attempt to show in the respective phases of the death penalty
13 case and the government requested the Court get more detail as
14 to that issue.
15 And for reasons I think I have previously stated, I
16 am not inclined to do that for the reasons I have previously
17 stated. I don't believe the Court could reasonably enforce a
18 limitation imposed by counsel as a quid pro quo for obtaining
19 bifurcation. And the government also takes the position that,
20 depending upon the nature --
21 Mr. Wilford and Mr. Ricco have arrived.
22 -- that depending on the nature of the presentation
23 made by the defendant, the government reserves the right to
24 introduce evidence of the attack on the prison guard at the
25 Al-'Owhali phase of the case.
4377
1 The Court grants the application to bifurcate the
2 penalty phase, recognizing that there is a risk that there may
3 be some duplication, but balancing the risk of duplication to
4 the strength of the defendants' position that they will be
5 significantly disadvantaged by any joint trial, I find the
6 balance is in favor of bifurcation and I think, even given the
7 risk of some repetitiveness, this is something which should be
8 done.
9 There is also a request, which I don't fully
10 understand, and I take it defense counsel don't fully
11 understand, a request by the government that there be an
12 allocution of Mr. Mohamed with respect to bifurcation.
13 MR. FITZGERALD: The issue had been, your Honor, with
14 regard to if there were bifurcation and there were proof at
15 the Al-'Owhali proceeding, if there was one, and the
16 Al-'Owhali proceeding went first, that he understood that the
17 attack in which he's alleged to have participated would have
18 been proven up before the jury on an occasion where he would
19 not be present in the courtroom to confront it at the first
20 instance.
21 THE COURT: So the question is whether
22 Mr. al-'Owhali -- but the assumption here is Al-'Owhali goes
23 first, is that the --
24 MR. FITZGERALD: Yes.
25 THE COURT: Yes.
4378
1 MR. FITZGERALD: And if the assaulting of Officer
2 Pepe was proven at the proceeding, then obviously
3 Mr. Mohamed's attorneys would not be participating at that
4 time. And he should be aware that although it would be proven
5 again at his second proceeding, he would know that the jury
6 may hear a preview of the evidence without his being present.
7 THE COURT: Mr. Ruhnke, do you understand that?
8 MR. RUHNKE: I understand it.
9 THE COURT: Do you have any objection to Mr. Mohamed
10 being asked whether he understands that if your request for a
11 bifurcation takes place, the jury in the first death penalty
12 phase with respect to Mr. al-'Owhali may hear testimony with
13 respect to the attack on the prison guard, and will hear that
14 in a proceeding in which he will not be represented and will
15 not have an opportunity to call witnesses or cross-examine
16 witnesses?
17 MR. RUHNKE: Your Honor, I don't understand the need
18 to allocute Mr. Mohamed on it.
19 THE COURT: Do you have any objection?
20 MR. RUHNKE: I don't have any objection.
21 THE COURT: Mr. Mohamed, have you been following
22 this?
23 THE DEFENDANT: (Shakes head back and forth.)
24 THE COURT: Mr. Mohamed is saying, no, he has not
25 been following this.
4379
1 MR. RUHNKE: Why don't we do this, if your Honor
2 doesn't mind, do it at lunch hour.
3 THE COURT: We'll do it after the lunch. We'll do it
4 today.
5 MR. COHN: May I just ask for some clarification. By
6 this discussion, is your Honor ruling that if conditions in
7 jail are raised, that will allow in the Al-'Owhali part of the
8 case the direct proof of the Pepe affair or, as we say, we
9 take the position that you can't, you're allowed to have
10 generalized safety of guards --
11 THE COURT: I am not ruling. I am not ruling on it
12 because I think there is merit in the government's position
13 that its ability to introduce such testimony will depend on
14 what it is that the defendants proffer, and so I am deferring
15 on that. But I am saying that even if the possibility exists
16 that the Pepe incident will be in evidence in the Al-'Owhali
17 case, bifurcation is still appropriate.
18 MR. COHN: I fine. I just wanted to make sure that
19 wasn't a concern.
20 MR. FITZGERALD: Your Honor, may I have one moment
21 with the witness to make sure he doesn't volunteer anything
22 about the videotape or the Medal of Honor? I was not
23 intending to elicit it.
24 THE COURT: Why don't you do that now. And it takes
25 a few moments to bring in the jury, but let's bring in the
4380
1 jury.
2 MR. FITZGERALD: Just two items, Judge. After this
3 witness, I don't know if we get to the Somalia expert, but
4 before Mr. Schmidt puts on exhibits, I think there are some
5 pictures in my copies of ostriches, perhaps children riding
6 ostriches. So if we can have a brief moment to confer before
7 the exhibits go to the jury when we got to the stage of today
8 when he offers transcripts and exhibits -- we were served with
9 three feet of paper late last night. I just wanted to make
10 sure we don't object to what goes in.
11 THE COURT: People riding ostriches? I recall there
12 has been some ostrich testimony in the case.
13 MR. SCHMIDT: There are going to be lots of
14 ostriches. Not lots.
15 THE COURT: There are going to be some ostriches, a
16 little ostriches maybe, about burying their head in the sand.
17 MR. SCHMIDT: I apologize. We're not going to
18 present lots of any particular evidence but some of lots of
19 evidence.
20 MR. FITZGERALD: Judge, will you tell the jury --
21 it's going to be odd that the government is now calling a
22 witness.
23 THE COURT: I'm going to remind them, when the
24 government rested, it did so on the condition, and the
25 condition was this witness would testify.
4381
1 MR. FITZGERALD: Thank you, Judge.
2 (Jury present)
3 THE COURT: Good morning. I hope everyone had a
4 pleasant weekend.
5 You will recall that when the government rested, it
6 did so with a reservation, and that reservation was that as
7 part of the government's case it would call another witness.
8 I don't think we explained exactly what the reservation was,
9 but that is in fact why the government's resting was somewhat
10 equivocal.
11 And the government is now going to call that witness,
12 and you should understand that his testimony is part of the
13 government's case. It's as if this testimony was received in
14 evidence before the government rested.
15 And the witness is ready. The government may call
16 it's next witness.
17 MR. FITZGERALD: Thank you, Judge. The government
18 calls James Yacone.
19 JAMES FRANCIS YACONE,
20 called as a witness by the government,
21 having been duly sworn, testified as follows:
22 DEPUTY CLERK: Please be seated, sir. Please state
23 your full name.
24 THE WITNESS: James Francis Yacone.
25 DEPUTY CLERK: Please spell your last name.
4382
1 THE WITNESS: Y-A-C-O-N-E.
2 DIRECT EXAMINATION
3 BY MR. FITZGERALD:
4 Q. Mr. Yacone, would you tell the jury who you currently are
5 employed by?
6 A. The Federal Bureau of Investigation.
7 Q. And are you an FBI agent?
8 A. That's correct.
9 Q. For how long have you been an FBI agent?
10 A. A little more than six years.
11 Q. And prior to becoming an agent for the FBI, what did you
12 do for a living?
13 A. I was a commissioned officer in the United States Army for
14 about eight years.
15 Q. Did you have a special skill when you were in the Army as
16 a commissioned officer?
17 A. Yes. I was an aviator.
18 Q. What did you fly?
19 A. UH60 Blackhawks, which is a helicopter.
20 Q. Now let me direct your attention to 1993. Did there come
21 a time when you were deployed to Somalia as part of your
22 duties with the U.S. military?
23 A. Yes, that's correct? In August 23, 18993, we were
24 deployed to Somalia as part of a U.N. force to arrest Mohamed
25 Farahid Aideed and members of his clan.
4383
1 Q. Just for the record, we'll spell M-O-H-A-M-E-D,
2 F-A-R-A-H-I-D, A-I-D-E-E-D.
3 So is it fair to say you were working for the U.S.
4 military when you were carrying out an arrest on behalf of the
5 United Nations?
6 A. Correct.
7 Q. Now, what was your rank at the time you deployed Somalia
8 in late August of 193?
9 A. I was a captain.
10 Q. And did you have what's called a platoon?
11 A. That's correct. I was in command of a platoon.
12 Q. Can you explain to the jury how many people were in your
13 platoon?
14 A. At the time deployed with me were about 30, 32 people in
15 my platoon and five UH60 Blackhawk helicopters.
16 Q. Now let me direct your attention -- when you would fly a
17 Blackhawk helicopter, how many people in your crew would be in
18 a particular Blackhawk helicopter?
19 A. There would be four from my platoon, a pilot, a co-pilot
20 and two crew chiefs or door gunners in the back sitting behind
21 the pilot.
22 Q. And what role did the crew chiefs play when they were on
23 the ground?
24 A. They were aircraft mechanics that maintained the aircraft.
25 Q. And what role did they play when they were in the air?
4384
1 A. They were door gunners and helped us clear the aircraft
2 and fly it.
3 Q. And besides the two pilots and the two persons called crew
4 chiefs, how many other people could fit in a Blackhawk
5 helicopter?
6 A. We generally would carry 12, 12 ground force in the back.
7 Q. And what would you generally do with the ground force in
8 the back? What was your role?
9 A. To insert or infiltrate the ground force and put them
10 where they needed to go.
11 Q. Let me direct your attention to October 3 of 1993. Did
12 there come a time that day when you set out on a mission?
13 A. Yes.
14 (Continued on next page)
15
16
17
18
19
20
21
22
23
24
25
4385
1 Q. What generally was the nature of the mission?
2 A. We had intelligence --
3 Q. Without telling us what you were told or your
4 intelligence, just tell us what your goal was, what you were
5 going to do?
6 A. The goal that day was to capture a bunch of these top
7 lieutenants or important members of the organization that were
8 gathering at a place across the street from the Olympic Hotel
9 from the Bakara market.
10 Q. Is the Olympic Hotel a notable landmark in Mogadishu?
11 A. It was one of the tallest buildings in Mogadishu. From
12 the air in the helicopter you could see all around the city.
13 Q. Focusing on Black Hawk helicopters for the moment, how
14 many Black Hawk helicopters were part of this mission on
15 October 3, 1993?
16 A. There were eight that day.
17 Q. Tell us what the role of the eight different Black Hawk
18 helicopters were?
19 A. There were two helicopters, the first two, were myself and
20 my wing man, and we were going to insert twelve people each to
21 a target building where we thought the meeting was taking
22 place. There were four Black Hawks behind us that were
23 inserting twelve soldiers each as a blocking force, and
24 setting up a perimeter around the objective, and then there
25 was a combat ship and rescue aircraft full of medics, and that
4386
1 was a contingency aircraft that stayed aloft and flew around,
2 and there was also one command control Black Hawk which had
3 the ground commander and the air commander, the overall
4 commanders, in the back of the aircraft.
5 Q. And just so we're clear, the first two helicopters
6 including yours, dropped a ground force that would actually go
7 in and make the arrests in the building?
8 A. That's correct.
9 Q. And the other four Black Hawk helicopters dropped ground
10 forces who you said were blocking forces?
11 A. Yes.
12 Q. What would they do?
13 A. They would establish a perimeter and basically contain any
14 civilians from coming into the objective area coming towards
15 the target building. They would keep people away from the
16 target building where the mission was going on.
17 Q. And did there come a time when you actually in your Black
18 Hawk dropped a ground force team at the target building?
19 A. That's correct.
20 Q. Can you tell us roughly what time of day that was?
21 A. It was about 3:15 or, correction, 3:30:30 in the afternoon
22 between 3:30 and 3:40 in the afternoon.
23 Q. How did you drop those forces into that location?
24 A. The streets are very narrow, and most of the streets were
25 dirt and we couldn't land, so we hovered at about an altitude
4387
1 of between you know forty and sixty feet, and the soldiers
2 slid down fast ropes or big thick ropes to the ground.
3 Q. And when you did that, how many people in the back or how
4 many soldiers in the back of your helicopter did you drop at
5 that location?
6 A. My aircraft and the aircraft ahead of me, we dropped nine
7 passengers off and we kept three of the soldiers on board to
8 be aerial snipers. They stayed on the aircraft and provided
9 precision sniper fire from the Black Hawks.
10 Q. So at the time after you dropped off the nine, how many
11 personnel were in your Black Hawk?
12 A. There were the three snipers and there were my two crew
13 chiefs, myself and my co-pilot.
14 Q. And what number was your Black Hawk referred to by that
15 day?
16 A. Call sign was Super 62.
17 Q. And the other Black Hawk that dropped off nine men and
18 kept three snipers, what was that referred to?
19 A. Super 61.
20 Q. And after you dropped offer your two contingents of
21 soldiers, what did the Black Hawks known as Super 61 and Super
22 62 do after that?
23 A. Well, what we would do is after we inserted our troops we
24 would then establish what we called and overhead cap, and
25 essentially that was kind of a racetrack pattern around the
4388
1 objective and again provide precision fire for the ground
2 force that was on the objectives. If they met resistance then
3 they would call, they call for fire us to us and tell us where
4 they were meeting resistance and we would assist them with
5 arial gunnery and sniper fire from our aircraft.
6 Q. What happened to the other four Black Hawks that dropped
7 off the ground forces that were part of the blocking force?
8 Where did they go?
9 A. Blocking force aircraft departed the battlefield,
10 essentially held about a mile north of the city out of harms
11 way and waited for any contingencies that would have occurred.
12 Q. And were there other helicopters besides Black Hawks in
13 the vicinity?
14 A. Yes, there were. We had four Little Bird, they're NB-5
15 McDonnel Douglas 500 aircraft. They're much smaller and each
16 of those carried and inserted four troops each. They also
17 held north of the city after making the insertion. And there
18 were two additional Little Bird gun ships which assisted
19 myself and my wing man in providing close air support and
20 arial gunnery fire for the ground force on the ground.
21 Q. And besides the ground force that was dropped into the
22 locations by the various helicopters was there another set of
23 ground troops being used at that time?
24 A. Repeat the question.
25 Q. Okay. What was the plan on how to get the people, if they
4389
1 were arrested, out of that location back to the base?
2 A. Because the streets were so narrow and the city was so
3 congested, there was no way to pick them up with the
4 helicopters. We had no place to land, no clear areas. So we
5 had a vehicle convoy of Humvees, and 500 trucks, military
6 vehicles, drive up and hold short of the objective area by
7 about two or three blocks away, and they would be radioed.
8 Once the mission was complete, and they had arrested and
9 detained all the people we were looking for they would be
10 called forward via radio with the vehicles and take all the
11 people, the soldiers and the detainees out of the objective
12 area and back to the forward support base which was Mogadishu
13 International Airfield.
14 Q. And with regard to the other helicopters in and or with
15 your helicopter Super 61, who were the pilots on that the
16 helicopter?
17 A. Cliff Wolcott and Donovan Briely were the pilots of Super
18 61.
19 Q. We'll spell W-O-L-C-O-T-T. Cliff Wolcott, and Donovan
20 B-R-I-E-L-Y. And were they part of your platoon?
21 A. Yes.
22 Q. Now, can you tell us after you went into the orbit what
23 happened next after you dropped offer the nine men on the
24 ground?
25 A. Well, we started receiving enemy fire almost instantly
4390
1 after the insertion, and the intensity of the enemy fire
2 increased steadily, the longer we stayed on the objective.
3 About 15 or 20 minutes after we inserted the ground force we
4 got a radio call from the objective, from the ground force on
5 the objective saying that they had secured all the people they
6 needed to get, and they were ready to exfilitrate or be picked
7 up and taken out of there by vehicle. Shortly after that, I
8 saw my wing man, Super 61 get hit with a rocket propelled
9 grenade in the half section of the helicopter near the tail
10 rotor, and he spun out of control, and crashed about two or
11 three blocks away from the objective area.
12 Q. Can you explain to the jury what a rocket propelled
13 grenade is?
14 A. It's a missile, a warhead probably a couple of feet long
15 that has a grenade on the end of it, and there is no guiding
16 system. You simply aim it and shoot it, and once you press
17 the trigger and it's gone, there is no way to control the
18 missile. It goes where you aimed it.
19 Q. In your training with the military when does an RPG
20 ordinarily detonate? When does it explode?
21 THE COURT: RPG is rocket propelled grenade.
22 A. That's correct. Generally on impact.
23 Q. And did you notice anything about what was happening with
24 RPGs or rocket propelled grenades on October 3, 1993 as to
25 when they detonated?
4391
1 A. They would detonate in the air. In other words, they
2 would not hit anything and they would simply explode after
3 about 500 meters or 500 yards.
4 Q. What effect would they have when they exploded in the air
5 if they did not strike the helicopter?
6 A. They throw shrapnel everywhere and you know could severely
7 damage a helicopter.
8 Q. Returning to Super 61, the helicopter piloted by Wolcott
9 and Briely, did they go to the scene where Super 61 crashed?
10 A. Yes. The mission, the focus of the mission shifted from
11 obviously capturing lieutenants to the assistance of the
12 downed helicopter crew, and I flew over and tried to identify
13 any survivors, and also assisted some of the ground force
14 moving through the streets from the objective area a few
15 blocks away to the crash site.
16 Q. What did you see when you flew over the crash site where
17 Super 61 had crashed?
18 A. Well I, it was on its side, and had been severely damaged
19 and I didn't think there was any survivors, and I was very
20 surprised when I saw two or three soldiers crawling out of the
21 back cabin area of the aircraft, so I radioed the commander
22 and let them know we had survivors.
23 Q. And during the time that you were over the crash site at
24 Super 61, what was the state of were you still taking enemy
25 fire?
4392
1 A. Yeah. As I said earlier, it just continued to build. The
2 amount of automatic weapons fire and rocket propelled grenade
3 fire continued to increase the longer we stayed over the
4 objective area.
5 Q. And had you been in an orbit or a rotating orbit with
6 Super 61 did there come a time when Super 61 was replaced by
7 another helicopter?
8 A. Yes, after he was shot down we made a request to the
9 commander to send one of the four Black Hawks holding north of
10 the city forward to join me in orbit, because there were so
11 many targets that needed to be engaged and the ground force
12 was in a very vulnerable area trying to run through the
13 streets to get to the crash site. So we made a request and
14 the ground force commander eventually sent Super 64 to join me
15 in orbit to provide aerial gunnery and close air support for
16 the ground force at the crash site.
17 Q. Who was the pilot of Super 64?
18 A. Mike Durrant, and Ray Frank.
19 Q. D-U-R-R-A-N-T and Ray Frank, F-R-A-N-K.
20 And what happened when Super 64 joined your
21 helicopter in the orbit above the crash site where Super 61
22 was down?
23 A. After probably only minutes, maybe two or three patterns
24 in orbit around the crash site responding to calls for fire
25 from the ground force, they too were hit by a rocket propelled
4393
1 grenade in the tail boom section right by the tail rotor.
2 They initially didn't lose control of the aircraft. They knew
3 they were hit. They made a radio call and they tried to head
4 directly back to the airfield or the forward support base
5 where we were stationed, which is about four miles straight
6 line.
7 After about 15 to 20 seconds of heading in that
8 direction back to the airfield, their tail rotor just came
9 apart, they lost control of the aircraft and they crashed in
10 and amongst a bunch of buildings and on top of a bunch of
11 buildings on the periphery of where the battle was going on.
12 Q. And did you in your helicopter go by the crash site?
13 We'll call it the second crash site where Super 64 was shot
14 down.
15 A. Yes, I did. We were directed by the commander to go down
16 and obviously look for survivors of my other wing man, and we
17 did so. That aircraft was unlike the first aircraft that had
18 crashed near the objective. That aircraft was probably a half
19 a mile, three quarters of a mile away from the objective area
20 and consequently all the friendly ground enforcement, so they
21 were very vulnerable. They had no one near them.
22 So we went and we were directed to go to crash site
23 number two and provide close air support and provide them
24 basically the only protection they had until they got a ground
25 convoy, the plan to get a ground convoy over to the second
4394
1 crash site to pick up survivors.
2 Q. Now, you mentioned earlier that there was a command or a
3 search and rescue helicopter above flying in a pattern.
4 During the time of the battle what happened to the search and
5 rescue helicopter?
6 A. About the same time Super 64 the, second aircraft crashed,
7 the command search and rescue aircraft with medics on board
8 was making a fast rope and search to the first crash site,
9 they got their troops inserted, were also hit with an RPG, a
10 rocket propelled grenade. The grenade glanced off the top
11 cabin area of the aircraft between the rotor system and the
12 top cabin of the aircraft, damaged i severely, but they were
13 able to limp it back to the airfield and land safely back at
14 the airfield.
15 Q. Now, did there come a time that you were waiting at crash
16 site number two for a ground force to arrive? And what
17 happened?
18 A. Yes. Again, we were in orbit over crash site number two
19 for probably ten or 15 minutes, awaiting the arrival of
20 another ground convoy being sent from the airfield at forward
21 support base, and at that time we identified that there were
22 in fact survivors on Super 64. I saw that Durant was moving
23 and Ray Frank was moving, and one of the two crew chiefs, both
24 crew chiefs were Tommy Field and Bill Cleveland. We
25 thought -- the crew chiefs in back of my aircraft, me and my
4395
1 co-pilot thought we saw Tommy Field at least waving an arm, so
2 we saw three of the four crew members moving. So we were
3 overhead providing close air support for them and trying to
4 keep away the unfriendly forces which were starting to mount
5 and encroach upon the aircraft.
6 Q. And did there come a time when an alternative was
7 suggested, instead of waiting for the ground force to arrive?
8 A. Yes. Again, we had three snipers in the back of our
9 aircraft and we decided at that time to insert two of the
10 three snipers to the crash site as close as possible to the
11 crash site. We probably would have inserted a third, but my
12 crew chief in the back of my aircraft had already been shot
13 through the arm. My aircraft had been hit by a barrage of
14 automatic weapons fire a couple of different times during the
15 battle, and he was bandaged up in the back of the aircraft.
16 So the third sniper had taken his place as a door
17 gunner of my aircraft. So we had two snipers left. We
18 inserted both Randy Shughardt and Gary Gordon to the crash
19 site number two.
20 Q. How far away from the crash site did you insert Randy
21 Shughardt and Gary Gordon?
22 A. It was probably 60, fifty to sixty yards or meters away
23 from that crash site. There was a bunch of shacks and
24 shanties and a collapsed building around the crash site and
25 the closest area we could get to that we could land to was
4396
1 about fifty or sixty yards away.
2 Q. And during this time in the battle can you tell us
3 approximately how often you would see an RPG being shot at the
4 helicopters?
5 A. Again, I wasn't able to see all the RPGs being shot, but
6 you know every thirty seconds or so we'd see the streak of
7 smoke and then the puff of where the thing would detonate in
8 the air.
9 Q. And over the course of the entire evening do you recall
10 approximately how many RPGs you saw being fired that day into
11 the following morning?
12 A. Hundreds. Well in excess of a hundred.
13 Q. After you dropped off Shughardt and Gordon at a location
14 near the second crash site, what happened next?
15 A. They again they took them about five minutes to make their
16 way through the maze and the labyrinth of shacks and shanties
17 and crawling over collapsed buildings to get to the crash
18 site, but they eventually made it. And, again, we were
19 overhead at this time providing them close air support and
20 keeping away any of the enemy trying to get to the crash site
21 or firing upon them.
22 The last thing, I saw the last pass I made was one of
23 the two snipers, either Shughardt or Gordon, I'm not sure
24 which, was tending to Mike Durrant on the right-hand side of
25 the aircraft in the pilot station.
4397
1 The other sniper had already gotten Ray Frank out of
2 the aircraft and Ray was propped up against the tree, just off
3 the nose of the aircraft, and that was the last sight of that
4 crash site that I had.
5 Q. What happened at that point to your chopper?
6 A. We got hit with a rocket propelled grenade in the crew
7 chief station or the door gunner's station just behind my
8 seat, and we then did a controlled crash to an area just along
9 the coast line called Newport.
10 Q. Can you tell us what happened inside your helicopter when
11 the RPG hit?
12 A. The explosion gravely wounded the sniper who had replaced
13 my door gunner and was in that crew chief station. It
14 basically took off his leg, peppered him with shrapnel. I had
15 a Kevlar seat, and my seat was made of Kevlar, but I caught
16 some shrapnel in my left arm, and my other crew chief had
17 already been shot through the arm earlier.
18 I had received some of the shrapnel from the rocket
19 propelled grenade. It took out one our engines. The Black
20 Hawk has two engines. We had partial power and partial
21 control of the aircraft. The windshield was gone, and the
22 window bubble, the plexiglas bubble below and above the pilot
23 station was gone. There was, you know, a bunch of smoke
24 filling the cockpit.
25 Q. And where did you actually crash land the helicopter?
4398
1 A. Again, it was a place called Newport which is just on the
2 coast line of Somalia, Mogadishu, and lucky for us there was a
3 UN contingent receiving goods at the port that day that saw us
4 come in there and crash land, and they came over and attempted
5 to provide assistance after we got on the ground.
6 Q. And were you and the remaining members of your crew in the
7 helicopter rescued at that location?
8 A. Yes. The search and rescue aircraft which had been shot
9 up earlier with rocket propelled grenades had gone, limped
10 back to the airfield. They got into a spare Black Hawk, came
11 out and picked up, first the gravely wounded sniper who had
12 lost his leg and abdomen was peppered with shrapnel, and my
13 other crew chief who had been shot through the arm also was
14 hit with shrapnel.
15 They took them to the hospital and they came back
16 about thirty minutes later and picked up myself, the other
17 crew chief, and Mike Goffena, the guy I was flying with, the
18 other pilot.
19 Q. Once you were brought back to your base in Somalia after
20 having your helicopter shot down, what did you do next?
21 A. I went to the tactical operations center which is where
22 the overall commander was sitting, and provided any
23 information I could on crash sites one and two. And then at
24 about, I don't know, maybe six or seven p.m. I replaced the
25 pilot of the flying the commander control aircraft flying the
4399
1 overall air and ground commanders around, and flew throughout
2 the night into the next morning until the mission was over.
3 Q. And during the night could you see what was happening
4 below you as you flew above Mogadishu?
5 A. Yeah, there was a battle raging on throughout the night.
6 Q. How could you see at night? Did you have any special
7 equipment?
8 A. We had night vision goggles which essentially amplify the
9 ambient illumination of the stars and the moon, and make it
10 able, make you able to see at night.
11 Q. Did there come a time when a ground force actually reached
12 crash site number one and was able to link up with the
13 soldiers who were at that crash site?
14 A. Yes. Earlier in the day when I was first shot down there
15 were two convoys that were dispatched that were attempting to
16 reach both crash sites. They were both repelled and had to go
17 back to the airfield. At about seven or eight in the evening
18 the UN or actually the US went to the UN contingent and asked
19 the Pakistanis and the UAE the United Arab Emirates forces if
20 we could borrow their armored vehicle to go back out and try
21 to rescue the aviators from the downed crash site and pick up
22 all the soldiers in the middle of the battlefield.
23 It took them until about 11:30 or 12 midnight to
24 actually launch out from the forward support base, and they
25 didn't reach the crash site or crash site number one until
4400
1 about 3 a.m.
2 Q. And what time had the crash happened when Super 61 was
3 shot down at crash site number one?
4 A. That was probably 4 p.m., 4:10 p.m., something like that.
5 Q. And once the ground force reached that crash site at about
6 3 a.m., how long did they spend in that location?
7 A. It took about two hours for them to effect a linkup of
8 friendly forces. It was in the dark. They were in the middle
9 of a battle. They didn't know exactly all the friendly force
10 locations because the friendly forces were hunkered down in
11 different areas around the crash site. So it took quite a
12 while to deconflict fires and make sure that friendlies didn't
13 shoot at friendlies.
14 And also ongoing during that time they were trying to
15 free the body of Cliff Wolcott. He was the pilot who was of
16 Super 61 and he was dead, but they wanted to get his body out
17 of the crash site and leave the crash site with all the bodies
18 of the dead soldiers. So it took them a couple of hours to
19 free Cliff. It wasn't until about maybe 5 a.m., 5:30 a.m.
20 that they finally had everybody on board this big long convoy
21 of armored personnel carriers and tanks and Humvees, and drove
22 out.
23 Q. And did they go to a separate location, a secure location
24 in Mogadishu?
25 A. Yes, they went to a place that was closer than the forward
4401
1 support base or our friendly location. They went to a place
2 called Pakistan Stadium which was about a mile away from the
3 objective area which provided our forces some security to
4 consolidate and regroup.
5 Q. And approximately what time did the people from crash site
6 one make it to Pakistan Stadium?
7 A. It was about probably 6:30 in the morning.
8 Q. And, similarly, with respect to crash site number two, did
9 a similar thing happen with regard to the ground force?
10 A. Yes. A separate or another convoy of Tenth Division
11 soldiers from United Nations force that was over there went
12 and took a look at crash site number two and it was picked
13 clean. There were no soldiers. There were no bodies at that
14 crash site when they reached it.
15 Q. And as of the following morning, October 4, 1993, did you
16 have an understanding of how much American casualties there
17 were at that time?
18 A. We had six missing in action, and we had 13 I believe
19 declared killed in action at that point.
20 Q. And did there later come a time when one of the missing in
21 action was recovered?
22 A. Yes. Later on that day or maybe the next day, we found
23 out through the Red Cross that Mike Durrant, one of the
24 lieutenants of Super 64, was actually taken captive and was
25 not killed at the crash site.
4402
1 Q. Was he recovered two weeks later alive?
2 A. Yes.
3 Q. And what happened to the other five missing in action?
4 A. They were killed. Total went up to 18 killed in action on
5 that day.
6 Q. And of the 18 who were killed in action how many were in
7 your platoon?
8 A. Five.
9 Q. And did that include Cliff Wolcott and Donovan Briely the
10 pilots of Super 61?
11 A. Yes.
12 Q. And who were the others in your platoon?
13 A. We had Ray Frank, the pilot of Super 64, and Bill
14 Cleveland, and Tommy Field who were his crew chiefs in the
15 back of that aircraft.
16 Q. And in addition to the people in your platoon, what
17 happened to the two snipers Mr. Shughardt and Mr. Gordon who
18 were dropped to rescue Super 64 crash site two?
19 A. They were killed as well. They were eventually overrun by
20 the enemy after we got shot down and they lost, they ran out
21 of ammunition and were overrun.
22 Q. Were there a substantial number of Somalis killed during
23 the fire fight in October 3th and 4th?
24 A. Yes. We received estimates from the Red Cross that there
25 were in excess of 500 killed, and about a thousand wounded.
4403
1 Q. And during the night these RPGs that were shot at the
2 helicopters, when you were trained in the military is that an
3 ordinary technique to use RPGs against helicopters?
4 MR. SCHMIDT: Objection, your Honor.
5 THE COURT: Overruled.
6 Q. What is the ordinary purpose of an RPG when you're trained
7 in the military?
8 A. Generally used against armored vehicles, but I mean it can
9 be used against personnel as well.
10 Q. When you're talking about armored vehicles, you mean
11 ground vehicles?
12 A. Yes.
13 MR. FITZGERALD: Thank you. Nothing further.
14 MR. SCHMIDT: Mr. Schmidt.
15 CROSS-EXAMINATION
16 BY MR. SCHMIDT:
17 Q. Good morning. Do you prefer being called Agent Yacone or
18 Capt. Yacone.
19 A. Agent.
20 Q. Agent Yacone, was this the first time that you ever saw
21 combat?
22 A. No. We had executed six missions over in Somalia prior to
23 3 October. Is that what you're talking about?
24 Q. Well, that's the first start. So prior to this --
25 withdrawn.
4404
1 You would consider this a military operation on
2 October 3th and 4th, wouldn't you?
3 A. Correct.
4 Q. And prior to that military operation in Somalia you had
5 participated in six other military operations?
6 A. Over in Somalia from August to October 3rd from the time
7 we landed till that mission on October 3.
8 Q. Have you been involved in any other military operations
9 other than the ones in Somalia?
10 A. I was in Haiti in 1994, but there was a diplomatic
11 resolution to that conflict so, no.
12 Q. So other than the -- so the only two military operations
13 that you were involved in were Somalia?
14 A. In combat, that's correct.
15 Q. Prior to going to Somalia were you trained for combat in
16 the urban environment such as Mogadishu?
17 A. Yes.
18 Q. Where were you trained?
19 A. I was with my unit at that time which is the 160th Special
20 Operations Aviation Regiment.
21 Q. Were you trained in Somalia or outside of Somalia?
22 A. We had both. We had, you know, trained prior to that to
23 operate in urban environment, and then once we got on ground
24 in Somalia we had done rehearsals for the missions.
25 Q. If you -- the prior training for urban areas, was that
4405
1 separate and distinct from -- withdrawn.
2 How many years before you went to Somalia was that
3 training?
4 A. It was fairly continuous. It was part of kind of what we
5 considered a mission essential task to be able to operate in
6 an urban environment. So you know at least annually or maybe
7 twice, two times a year we try to get to an urban environment
8 within the United States and operate.
9 Q. And then you had specific training in Somalia that was
10 specifically related to military operations to be carried out
11 in Mogadishu, is that right?
12 A. Correct.
13 Q. And so really basically dealing now with the countryside
14 of Somalia, but not Mogadishu, is that correct?
15 A. We had conducted mission rehearsals away from Mogadishu
16 proper, kind of on the outskirts, maybe five or ten miles
17 south of the city at a area that we created as like a mockup
18 objective area. And then we had also done what we called
19 signature flights during the numerous days that we were over
20 there, because we were surrounded on three sides by the enemy
21 and the enemy was continuously watching us from roof tops with
22 radios.
23 We would randomly take off organized for combat, fly
24 around, you know, conduct a false insertion, do nothing and
25 then come back and land at the airfield, because we had lost
4406
1 the element of surprise, and they were simply there sitting
2 there watching us or waiting for us to take off.
3 Q. Let me go back to the training. Where you said you set up
4 a special kind of training operation, is that geared towards
5 the narrow streets of Mogadishu, how to work in that kind of
6 situation?
7 A. We had talked about it, but we were not in actual urban
8 area. We were on the outskirts on like the beach. So, no, we
9 weren't really able to effectively simulate the narrow streets
10 that were going to have to deal with in Mogadishu, no.
11 Q. But you were aware that you were going to be dealing in
12 then urban area with narrow streets?
13 A. Yes.
14 Q. An area that included the enemy militia and civilians as
15 well, is that right?
16 A. Correct.
17 Q. And it was a populated area, is that correct?
18 A. Yes. It was like 1.5 million people in Mogadishu.
19 Q. Now, during your training was there any discussion or use
20 or practice of using tow missiles?
21 A. Say that terminology.
22 Q. T-O-W missiles. I'm sorry, Tow missiles?
23 A. We had no tow missiles with my military unit.
24 Q. Is that, is there a particular reason why you had no Tow
25 missiles on that mission?
4407
1 MR. FITZGERALD: Objection.
2 Q. I'll withdraw that question. Are you familiar with tow
3 missiles.
4 A. Yes, I am.
5 Q. Are Tow missiles generally used in urban environments
6 where there are civilians?
7 A. Sure, I suppose they can be, absolutely.
8 Q. Tow missiles cause tremendous amount of damage, is that
9 right?
10 A. Depending on the target, yes.
11 Q. Now, when you were in your base, what part of Mogadishu
12 were you based in?
13 A. We were right at Mogadishu International Airport.
14 Q. In what part of Mogadishu is that?
15 A. That's the East Coast kind of in the southern portion of
16 the city.
17 Q. Is that in the area where Gen. Aideed militia supporters
18 and clansmen lived?
19 A. They had free reign of the entire city, but their
20 stronghold, at least the intelligence that I was given, their
21 stronghold was principally in the Bakara market, but they
22 operated all over the city.
23 Q. What about did you receive any information about a person
24 called Ali Magdi?
25 A. That name doesn't ring a bell.
4408
1 Q. Well, was there one operation, one of the six operations
2 prior to October 3rd and 4th where a number of people were
3 gathered up and taken away and imprisoned and learned that
4 they were members of some other militia and not Aideed
5 militia?
6 A. One of the missions, and I'm not sure which one you're
7 referring to, we did have to release some of the people that
8 we captured because they, we didn't have hard evidence that
9 the people we captured were part of the clan. They had a
10 number of nongovernmental forms of identification. Each of
11 them had many, many forms of ID, so we couldn't be sure who
12 they were, and we subsequently released them.
13 Q. Where were they released from?
14 A. I don't have any knowledge of that. I assume that forward
15 support base wherever they went to once they were brought back
16 to the forward support base.
17 Q. Just so we understand the nature of these operations, when
18 you went on an operation, the goal was to take custody of a
19 number of people and obviously it depends on what information
20 you have and the number of people are there, is that correct?
21 A. Correct.
22 Q. And I think you used the word arrest.
23 A. Detain is probably a better word.
24 Q. And the warrants that you mentioned, that was a UN
25 declaration to capture Aideed; is that correct?
4409
1 A. Correct.
2 Q. And only the person that actually mentioned was Aideed,
3 isn't that right?
4 A. I don't believe so. I think they had a number of others
5 supporters or his top lieutenants, the important people in his
6 organization that we were also looking for, but I don't know
7 if they were listed in the UN arrest warrants or equivalent.
8 I have no idea.
9 Q. Agent, obviously you only can testify to as to what can
10 you actually know.
11 A. Right.
12 Q. And it's obvious that based on your testimony that it was
13 a number of people that you were seeking to quote detain
14 unquote. But were you specifically aware, because you used
15 the word, arrest warrant, were you, have you, did you read the
16 document that you call arrest warrant?
17 A. No.
18 Q. So you're acting as a soldier, a commanding soldier
19 following the orders of those above you; is that right?
20 A. Correct.
21 Q. And you are given some understanding of why you're there
22 because you're entitled to, you're risking your life, you're
23 entitled to know or understand why you're there, isn't that
24 right?
25 A. Correct.
4410
1 Q. But all of the specific legal documents or arguments none
2 of your concern, isn't that right?
3 A. No. I mean I was following orders, you know, lawful
4 orders that given me by my chain of command.
5 Q. But lawful order came from your chain of command and
6 generally they explained to you what the UN did, but no one
7 provided with you a document saying, okay, here is the people,
8 here are their pictures?
9 A. That's correct. Well, actually, we did have pictures of
10 many of the people we were going after. I didn't see any
11 arrest warrants or legal documentation.
12 Q. You're now an FBI agent, is that right?
13 A. Correct.
14 Q. Have you been involved in any arrests of people?
15 A. Yes.
16 Q. Have you been involved in arrests of people where a
17 warrant was issued?
18 A. Absolutely.
19 Q. When you are going to arrest somebody with a warrant you
20 actually have that warrant, right?
21 A. Correct.
22 Q. And you usually have the photograph of the person and lots
23 of information, right?
24 A. Yes.
25 Q. And you go to arrest that particular person because you
4411
1 now have before you a signed, generally a copy, a signed
2 warrant of arrest issued by a Judge of the United States?
3 A. Correct.
4 Q. When you are a soldier you don't have all of that. You
5 have a chain of command that you follow?
6 A. Correct.
7 Q. Now, do you recall one of the missions where a police
8 official who, where there was insufficient proof that he was a
9 member of Aideed's clan was arrested with others?
10 A. Yes.
11 Q. He and others. Okay, now in that operation did people
12 from your team arrive in helicopters?
13 A. Yes.
14 Q. Members of the team then dropped down from the helicopter;
15 is that right?
16 A. Correct.
17 Q. How were they armed?
18 A. With you know M-16 or Kar 15 rifles, various weapons.
19 Most guys had handguns as a backup. We had some machine guns
20 as well.
21 Q. Grenades?
22 A. Yes.
23 Q. They were prepared all the people who went to detain,
24 we'll call it detain, these individuals they were prepared,
25 your team members, to defend themselves under the
4412
1 circumstances that their lives were in danger?
2 A. Correct.
3 Q. As a soldier you could do nothing less than that?
4 A. Right.
5 Q. And you can't ask a soldier to do anything less than that,
6 isn't that right?
7 A. We had pretty restrictive rules of engagement, yes.
8 Q. But you if you were attack, you certainly could --
9 A. That's right.
10 Q. And your goal was detaining, coming down from the sky,
11 grabbing the people that you understood were supposed to be
12 grabbed, taking them from their home, office or wherever they
13 are and bringing them to a location where the UN would take
14 control, is that right?
15 A. That is correct, but, again, just to make this clear I was
16 an aviator. I was in charge of getting them to the site. I
17 wasn't actually sliding down on the rope and putting the hands
18 on people.
19 Q. But that was the operation's purpose?
20 A. Yes.
21 Q. You had a very important and difficult and dangerous job
22 sitting up there in the bird in the sky?
23 A. Yes.
24 Q. Now, as to the operations that you were involved in up to
25 October 3rd and 4th, there was fortunately very -- were there
4413
1 any casualties for your teams at all on the first six?
2 A. I believe two Rangers were wounded in one of the missions
3 of those six previous missions.
4 Q. And there were very few Somalia casualties as well?
5 A. That's correct.
6 Q. Everything worked fairly nicely?
7 A. Correct.
8 Q. Now, when you were there on and operation coming down to
9 make -- withdrawn.
10 There were a number of times during your operations
11 where you came up empty handed, there was nobody that you
12 thought you wanted was at the location, is that correct?
13 A. Yes.
14 Q. You called that a dry hole?
15 A. Yep, that was a common phrase used.
16 Q. Now, generally in these missions other than the October
17 3rd, 4th, when, how many helicopters were used?
18 A. There was I believe 18 helicopters.
19 Q. So if you went on a mission give, for example, the mission
20 that caused the detention of the non-Aideed militia police
21 officer and others, you would come with 18 helicopters flying
22 in some sort of pattern. Is that right?
23 A. Right.
24 Q. And you would, the helicopters were dropping off the
25 soldiers at some point lower themselves to a level where it
4414
1 was safe, and the soldiers, and these are special commandos,
2 right?
3 A. They were soldiers in the Army, yeah.
4 Q. But they were specially trained?
5 A. Correct.
6 Q. Urban commandos and other -- let's just use commandos, is
7 that good?
8 A. I think special operations soldiers is probably a better
9 term.
10 Q. And they would go down the ropes, hit the ground and go to
11 the location, is that right?
12 A. Correct.
13 Q. And all that time the helicopters would all be in a pretty
14 close location?
15 A. Again, after the insertion most of the helicopters would
16 hold north of the city out of harms way and only the
17 helicopters that were on standby and on call to provide, you
18 know, close air support or ariel gunnery would remain over the
19 objective.
20 Q. When your helicopters arrived, now, say in the operation
21 where the police chief was or police officer was mistakenly
22 detained, did you have special-ops soldiers going down from
23 your helicopter?
24 A. I don't specifically remember, but more than likely yes.
25 Q. You're in an urban area, right?
4415
1 A. Yes.
2 Q. I think sometimes the operations were like in the middle
3 of the night so it was quiet, right?
4 A. Correct.
5 Q. Sometimes it was not in the middle of the night and there
6 was more activity on the street?
7 A. Right.
8 Q. Can you describe to us what the people on the street would
9 do, the civilian people on the street, what would they do when
10 they saw 18 helicopters coming and letting down these troops?
11 A. They would generally, you know, flee or leave that
12 immediate area, and go the other way.
13 Q. Now, except for obviously the ones that started to engage
14 the aircraft and they stayed around, some of them would stay
15 around and fire?
16 A. Right.
17 Q. Now, you came in August of 1993, is that correct?
18 A. I think it was August 23rd, that's correct.
19 Q. And were you aware that there are other American troops at
20 the location, in Somalia, Mogadishu prior to you arriving, is
21 that right?
22 A. Yes.
23 Q. Now, you knew that you were to some extent vulnerable as a
24 helicopter pilot the longer you stayed in one location either
25 dropping off or picking up people; is that right?
4416
1 A. Yes, absolutely, I mean the longer you stayed in and
2 around a battlefield chances are, you know, you're going to
3 receive some fire.
4 Q. And the lower you go, the more chance you are getting hit?
5 A. Not necessarily true. We tried to vary our altitude but
6 if you remain low you actually present a quicker sight picture
7 for somebody on the ground trying to engage you. He has less
8 time to track you or engage you if you're low, if you're in a
9 densely urban area without a big field of view, because as he
10 tracks you he may lose you to the next rooftop that becomes,
11 or is between you the helicopter and if the guy is trying to
12 shoot you, so it depended.
13 Q. But you talked a little bit about RPGs, the rocket
14 propelled grenades?
15 A. Yes.
16 Q. Those are basically something like a rifle with a grenade
17 at the end of it, is that right?
18 A. Yes, it's a big about a three four foot tube and the
19 warhead sits on the front end of the tube and is fired out of
20 the tube.
21 Q. And that's a man-held weapon, right?
22 A. Yep, held on the shoulder.
23 Q. And it doesn't take very much training to actually fire
24 one of those things, does it?
25 A. I've never fired one myself, but I think to fire them
4417
1 accurately, yeah, you definitely have to get some training.
2 Q. To fire them accurately is probably very difficult, isn't
3 it?
4 A. Again, I've never fired them, so from what I've been told,
5 yes.
6 Q. Now, you described the, that night the day and night of
7 October 3rd and 4th as being hundreds of RPGs being fired, is
8 that right?
9 A. Yeah, through the course of the battle, that's correct.
10 Q. And during the course of the battle there were three
11 helicopters that were hit?
12 A. Four.
13 Q. So the percentages of the people there in firing them was
14 not very low, which is not surprising for RPGs, is that right?
15 A. When you consider the amount of aircraft that were
16 actually over the objective area, the percentages were pretty
17 high. Again, the other Black Hawks went and held north of the
18 city, so the only Black Hawks that flew over the battlefield
19 on that particular day were hit except for the command control
20 aircraft which was at much much higher altitude kind out of
21 harms way.
22 Q. But we're talking about hundreds of RPGs fired at the
23 helicopter, is that right?
24 A. Yeah, at all the helicopters over the battlefield,
25 correct. And at soldiers on the ground, you know, in and
4418
1 amongst the streets, and the vehicle convoys.
2 Q. Now, you were aware of previous attacks on Aideed's --
3 withdrawn. When you went into in August on your first
4 operation, right, were you made aware that of the prior attack
5 on Somalis that was called the Abdi House in July 12, 1993?
6 MR. FITZGERALD: Objection, your Honor, beyond the
7 scope. 403.
8 MR. SCHMIDT: This goes into how he's conducting
9 himself, your Honor.
10 THE COURT: I'll permit it. That's a yes or no.
11 A. Yes, I was aware of the Abdi House incident.
12 Q. And were you aware of the Somali reaction to their
13 perceptions of the Abdi House attack?
14 MR. FITZGERALD: Objection, your Honor, 403.
15 THE COURT: Yes or no.
16 A. Yes.
17 Q. Were you aware that helicopters, therefore, the people in
18 the helicopters were in greater danger as a result of the
19 Somali reaction to the Abdi House attack?
20 A. Say that again. I'm not sure I understand the question.
21 Q. Were you aware that helicopters became more of a target of
22 the anger of the Somalis as a result of the Abdi House attack?
23 A. No, not necessarily. I just through the media -- I mean
24 basically through the media I became aware that most of the
25 Somalis became very irritated at perception of the attack, and
4419
1 the population who had backed the majority of the population
2 who was backing the UN mission over there at the time were
3 starting to be swayed towards Aideed's clan and what Aideed
4 was trying to carry out as a result of the Abdi House
5 incident. And, again, that was through the media that I
6 became aware of most of what happened.
7 Q. And you became aware that the Abdi House attack was very,
8 very different than the operations that you were conducting,
9 isn't that right?
10 A. It was a different military unit that did it. I mean it
11 was a US Force Tenth Mounted Division.
12 Q. It was a different type of operation?
13 A. Correct.
14 Q. Your operation, and you were under very strict limitations
15 not to fire into buildings or groups of people unless you
16 absolutely had to protect yourselves; is that right?
17 A. Yes.
18 Q. And you were aware that in the Abdi House attack Tow
19 missiles were fired in a building that was not firing at the
20 helicopters, had not attacked anybody?
21 MR. FITZGERALD: Objection, your Honor.
22 THE COURT: Sustained as to form.
23 Q. You were aware that the rules of engagement that caused
24 the Abdi House attack -- withdrawn.
25 Your rules of engagement changed as a result --
4420
1 withdrawn. The rules of engagement that you were under --
2 withdrawn. I'll try my best on this. Were you aware that the
3 rules of engagement that you were now under were different as
4 a result of the Abdi House attack?
5 A. I'm not really sure what their rules of engagement were on
6 that day, and I don't know what predicated the Abdi House
7 attack. In other words, I think there were four journalists
8 killed by a Somali mob earlier that day. I know there were
9 twenty-four Pakistan UN soldiers that were killed prior to the
10 Abdi House, but I have no idea what their rules of engagement
11 were on that day or what precipitated the Abdi House attack.
12 Q. You raised, you raised the issue about the --
13 MR. FITZGERALD: Objection, your Honor.
14 Q. -- journalists --
15 THE COURT: Yes, sustained. Just ask a question.
16 Q. You were there and you saw the media. Is that correct?
17 You saw the media while you were there?
18 A. Yes.
19 Q. You were aware that the journalists were killed by a crowd
20 of enraged Somalis as a result of the Abdi House attack,
21 weren't you?
22 A. I'm not sure which occurred first to be quite honest,
23 whether the journalists were killed and then the attack
24 occurred, or the attack occurred and then the journalists were
25 killed, I have no idea.
4421
1 MR. RICCO: Your Honor, I object. I'd like to be
2 heard.
3 THE COURT: We'll take our mid-morning recess.
4 (Continued on next page)
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4422
1 (Jury not present)
2 MR. WILFORD: Your Honor, may we state the reasons
3 for the objection?
4 THE COURT: Please.
5 MR. WILFORD: I believe that everything after the
6 witness answered yes with respect subsequent to saying yes to
7 the question regarding his knowledge of the Abdi House
8 incident should be stricken.
9 We're talking about information that is leading up to
10 I believe 24 other dead Americans. We're talking about a
11 situation that is not within the scope of this witness'
12 personal knowledge. He's talking about other information he
13 received from some other source, and most respectfully we ask
14 that everything after the Abdi House question with respect to
15 the witness' knowledge of the existence of the Abdi House
16 incident be stricken.
17 THE COURT: Mr. Schmidt.
18 MR. SCHMIDT: Your Honor, I think striking it doesn't
19 accomplish the purpose. The jury has heard it. What would
20 accomplish the purpose as to this witness would be perhaps a
21 stipulation that the Abdi House attack occurred and then after
22 the Abdi House attack occurred the correspondents were killed.
23 MR. FITZGERALD: Mr. Schmidt has gone into hearsay
24 that he knows the witness wasn't in country for, and he walked
25 into a door and when he gets an answer he doesn't like when
4423
1 the witness is saying, you're asking me what I heard from the
2 media, then he wants to turn around and straighten out and
3 leave just those facts he wants. If he doesn't want to get
4 inaccurate hearsay, don't ask someone what happened in July of
5 1993 in Somalia of a witness who was in America. He keeps
6 going down that road and he goes down that road and he gets
7 the answer he doesn't like, he wants to fix it.
8 MR. SCHMIDT: Counsel previously indicated that
9 additional response was not responsive to my question. It was
10 volunteered by this witness.
11 THE COURT: Your question was, did he know two
12 journalists and four Pakistanis were killed earlier that day.
13 MR. SCHMIDT: I didn't say that.
14 THE COURT: Then you asked whether he was aware of
15 the journalists who were killed before or after the attack.
16 MR. SCHMIDT: That was after he volunteered that. My
17 question to him did not require him stating about the
18 journalists being killed. I made very specific questions.
19 I'm up there asking him specific questions to avoid that type
20 of answer and he's volunteered that.
21 Go back and you'll see it is his volunteering that
22 information and for the government to get up here and say now
23 say they want to lead --
24 THE COURT: The government has made no objection.
25 The only objection has been raise has been raised on behalf of
4424
1 Odeh. So let's be clear how this issue has arisen.
2 He was asked whether he was aware that the rules of
3 engagement were different as a result of the Abdi House.
4 MR. SCHMIDT: That requires a yes or no.
5 THE COURT: What he responded was he doesn't know
6 what precipitated the change but that he did know that two
7 journalists and four Pakistanis were killed earlier that day
8 and then he stated he was not aware whether the journalists
9 were killed before or after the attack.
10 MR. SCHMIDT: Your Honor.
11 THE COURT: Let me ask you this question. Do you
12 have further questioning along these lines?
13 MR. SCHMIDT: As to the Abdi House.
14 THE COURT: As to the Abdi House.
15 MR. SCHMIDT: I'm done. The only thing that I want
16 to elicit through this witness, whether I request the
17 introduction of the helicopter pilot in the Abdi House who saw
18 one of the journalists running away after the attack who was
19 very alive and explained how that journalist died, I'll do
20 that. I don't want to do that. I don't want to make this
21 into a circus. All I want is the jury now to know what is
22 undisputed. The death of the journalists came after the Abdi
23 House period.
24 THE COURT: But this witness doesn't know that. This
25 witness has already said --
4425
1 MR. SCHMIDT: I'll do it another way if the
2 government doesn't want to, but the jury is left that way, so
3 I will do it, I will do it then another way, your Honor.
4 THE COURT: He can't answer that.
5 MR. SCHMIDT: If the government doesn't want to clear
6 this issue now I will have produce another witness and I'm not
7 sure where I'm going to get it. I did not -- he left that
8 question from that witness he put it in on his own. It was
9 not responsive to my answer. I don't think that the
10 government should try to protect them to allow misleading
11 information in front of the jury.
12 THE COURT: Why do you keep attributing this to the
13 government? The objection was raised by codefendant.
14 MR. SCHMIDT: Your Honor, this is not simply a former
15 Captain, your Honor. This is an experienced FBI agent.
16 MR. FITZGERALD: Mr. Schmidt asked what happened on a
17 different continent he was not present for and then is shocked
18 when he doesn't get the answer he wants.
19 THE COURT: All right. Let's cool it. Let's cool
20 it. Mr. Wilford.
21 MR. WILFORD: Your Honor, we're simply seeking a
22 ruling from the Court on my motion to strike.
23 THE COURT: Just very specifically what is it that
24 you wanted?
25 MR. WILFORD: Everything after the witness said he
4426
1 was aware of the Abdi House incident. He answered yes.
2 Everything after that should be stricken.
3 THE COURT: That includes was he aware that the rules
4 of engagement differed as a result of that Abdi House.
5 MR. WILFORD: Yes.
6 THE COURT: You want that stricken. Do you want to
7 have everything after that stricken?
8 MR. WILFORD: Everything after it stricken.
9 THE COURT: Does the government object to that being
10 stricken?
11 MR. FITZGERALD: No, Judge. I don't object to
12 striking all his Abdi House testimony as hearsay. He's not
13 competent to give it.
14 THE COURT: The question, were you aware of you know
15 is technically not hearsay. I know that Mr. Schmidt is
16 utilizing that device to avoid --
17 Do you object, Mr. Schmidt, to the striking of
18 everything after the question relating to the change of rules
19 of engagement as a result of Abdi House? Do you object to
20 that being stricken?
21 MR. SCHMIDT: I'm thinking, your Honor.
22 THE COURT: I understand.
23 MR. SCHMIDT: I would, I don't object to being
24 stricken after he said, he does not know.
25 MR. FITZGERALD: Judge, he only said that.
4427
1 THE COURT: But that gets a question in. There is
2 really no evidentiary value in what he does not know about an
3 incident that took place prior to his arrival. Consensus. We
4 will strike everything after the question relating to rules of
5 engagement and Abdi House. We'll do that when the jury
6 returns, and I understand you have no further questions on
7 that subject.
8 MR. SCHMIDT: On that subject I have no further ones.
9 THE COURT: Very well. We'll take a three-minute
10 recession.
11 (Recess)
12 (In open court; jury not present.
13 THE COURT: Let's be seated.
14 MR. SCHMIDT: Your Honor, one point I want to make as
15 a result of actually the last discussion. On page 3500
16 material, SLM slash 3-3 the question asked to, I'm not sure
17 who was asking, was, when you were deployed over there what
18 idea were you given of the degree of threat that was opposing
19 US aircraft?
20 THE COURT: Yes.
21 MR. SCHMIDT: Those answers there would not only have
22 allowed me to cross-examine this witness more intelligently,
23 more limitedly, but also challenging him if he denies
24 something that is indicated in his cross-examination.
25 THE COURT: You asked, were you aware of the previous
4428
1 attack and some reference to Abdi House and aware of the
2 Somali action and the answer is yes. Were you aware of the
3 helicopters were in grave danger as a result of the reaction
4 to the Abdi House attack? And he said it was more of a
5 target, and then he went into his awareness of the media
6 reaction. He made very clear.
7 What is it that you think that you did not ask that
8 you might have asked him which would not have prompted the
9 objections similar to the one received with respect to the
10 question which you did ask?
11 MR. SCHMIDT: Judge, I'm asking a question which to
12 some extent defense attorneys should not do, because I don't
13 know the answer. This would have given me the answer of what
14 he knew the threat was. I don't know what's in there. I
15 don't know.
16 THE COURT: What he knew the threat was, you mean
17 awareness of a threat other than being shot down by hostile
18 Somalis?
19 MR. SCHMIDT: The basis of believing that the threat
20 of being shot down.
21 THE COURT: You asked that question and you got the
22 answer.
23 MR. SCHMIDT: I don't know I got the answer he gave
24 in the 3500 material.
25 MR. FITZGERALD: For the record, your Honor, the
4429
1 statement he's referring to that are redacted are not
2 statements of Yacone. This was a group interview. There is
3 no -- so whatever is redacted not a statement of the witness.
4 THE COURT: Let's bring in the jury. The witness may
5 resume the stand.
6 MR. FITZGERALD: My fear that Mr. Schmidt may be
7 asking questions purportedly not for Mr. Yacone's state of
8 mind but to try to get other information before the jury,
9 other casualties.
10 THE COURT: I will not permit that. I gave Mr.
11 Schmidt greater latitude than I would normally do, because I'm
12 aware of problems he has experienced with respect to witnesses
13 that were disclosed to the Court ex-parte, but I think the
14 objection that has been made on behalf of Odeh is well taken,
15 and there is unanimity to striking this, and Mr. Schmidt
16 advises he has no further questions along those lines.
17 The witness may resume the stand. Another matter.
18 The interpreters are having great difficulty hearing defense
19 attorneys except for Mr. Schmidt. Probably the speaker in
20 front of Mr. Wilford and Mr. Ricco, and Mr. Cohn and
21 Mr. Ruhnke are not functioning well.
22 MR. COHN: Your Honor, this is a constant sort of
23 balancing. The problem is that speakers get to be very
24 sensitive and then when we speak privately it gets overheard.
25 So it is constantly either turning them off or moving them
4430
1 away and I think it is important. I don't know. We've been
2 trying to balance that. I don't know how we do it.
3 MR. RICCO: We'll speak louder when we address the
4 Court, your Honor.
5 THE COURT: Not too loud.
6 (Continued on next page)
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4431
1 (Jury present)
2 THE COURT: I am aware that it is quite cool, and we
3 have asked the building to reduce the air conditioning while
4 you're here, and to turn it up. You want if off?
5 JUROR NO. 2: This is perfect.
6 THE COURT: Right now they have turned it down.
7 People seem to be shivering I think not as a result of
8 testimony but because it's actually cold.
9 The Court strikes, which means put it out of your
10 mind and disregard, the series of questions asked by Mr.
11 Schmidt which began with a reference to rules of engagement,
12 and what he knew of events that took place prior to his
13 arrival in Somalia.
14 MR. SCHMIDT: Your Honor, that's not my
15 understanding, your Honor, of the agreement.
16 THE COURT: I'm trying to instruct the jury without
17 repeating all the testimony which there was unanimous
18 understanding should be stricken, and it began with a
19 question: Were you aware that rules of engagement were
20 different as a result of the Abdi House event? That's from
21 that point to the time prior to the recess is stricken.
22 Mr. Schmidt you may continue.
23 MR. SCHMIDT: Thank you, your Honor.
24 Q. Agent Yacone, were you aware of any United States
25 casualties during the period that you were there that occurred
4432
1 outside the Mogadishu area?
2 A. No.
3 Q. When we talk about Aideed and militia, we're not talking
4 about a full-fledged Army, are we?
5 A. I don't know how you would describe, I mean a militia.
6 They were pretty well organized. There were enemy clan, you
7 know, was another way of describing them. And they did have a
8 rank structure, so, yeah, they were.
9 Q. They were a fairly well organized clan militia that
10 approached being an Army?
11 A. I think that's a fair description.
12 Q. However, the communication during -- withdrawn.
13 How did you communicate with your superiors and other
14 people under you during battle?
15 A. We had radios in the aircraft and each member, I shouldn't
16 say each member, most of the commanders and leaders on the
17 ground had radios with them to communicate back and forth
18 between the aircraft and each other.
19 Q. So the Somalis on the ground that you were fighting were
20 communicating often by banging garbage cans, didn't they?
21 A. That was one method and means. Again, we observed them
22 using radios continuously while they had us under surveillance
23 at the airfield. So they definitely had radios. They also
24 burned tires as kind of a signal to rally the troops and bring
25 everybody towards the battle.
4433
1 Q. So to contact other people to help in the battle a fire in
2 a location would draw the people?
3 A. That was one method or means they used.
4 Q. When you said that you saw radios, you're talking now
5 about the Somalis who were watching over the base and seeing
6 what was going on at the base; is that right?
7 A. They were outside of the base on the perimeter of the
8 airfield, up on rooftops.
9 Q. Those are the Somalis that you are talking about that at
10 times you saw radios?
11 A. Yes.
12 Q. But on October 3rd and October 4th the means of
13 communication were fires and garbage cans, right?
14 A. Those were two methods that I was aware of. I'm sure they
15 were using radios, but I don't recall ever seeing people with
16 hand held radios on the ground.
17 Q. Did you ever learn of the number of rounds of ammunition
18 that was fired by the Americans in Mogadishu on October 3rd
19 and October 4th?
20 A. The total quantity or total number of rounds? No.
21 Q. Who is the commanding officer?
22 A. General William Garrison.
23 Q. Did you ever hear General Garrison say that --
24 THE COURT: I am going to be sustain the objection
25 that's about to be made.
4434
1 MR. SCHMIDT: I have no further questions with this
2 witness.
3 THE COURT: Mr. Wilford.
4 MR. WILFORD: Yes, your Honor, thank you.
5 THE COURT: On behalf of defendant Odeh.
6 (Continued on next page)
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4435
1 CROSS-EXAMINATION
2 BY MR. WILFORD:
3 Q. Good afternoon, Agent Yacone.
4 A. Good afternoon.
5 Q. Did I pronounce your name correctly?
6 A. Yes, you did.
7 Q. How are you doing today, sir?
8 A. Pretty good.
9 Q. Now, on August -- or, withdrawn. In August of 1993, you
10 went to Somalia; is that correct?
11 A. Correct.
12 Q. As a member of the United States Army?
13 A. Correct.
14 Q. As a captain in the United States Army; is that correct?
15 A. That is correct.
16 Q. And you went there with a -- not just you, but the United
17 States Army went there with a specific purpose; isn't that
18 correct?
19 A. Correct.
20 Q. As a matter of fact, during the time that you went to
21 Somalia, there was a lot of chaos in Somalia, isn't that
22 correct?
23 A. Yes.
24 Q. As a matter of fact, the forces of Aideed, this person
25 that you wanted to arrest on October 3, was in fact preventing
4436
1 other Somalians from receiving food, isn't that correct?
2 A. Members of his clan, they were intercepting U.N. convoys
3 and, correct, and preventing the logistical movement of food
4 and supplies to the starving Somalis.
5 Q. And it wasn't just members of his clan, they were doing it
6 at his behest, correct?
7 A. That's what it appeared to be, but again, I have no
8 knowledge, personal knowledge, of how his organization was
9 run. But, yes, that's what we were being told.
10 Q. You didn't speak to him directly and say, "Hey, Aideed,
11 are you stealing the stuff or not," right?
12 A. Right.
13 Q. But it appeared that they were taking it and selling it or
14 doing something other than allowing people who were starving
15 to eat; isn't that correct?
16 A. That is correct.
17 Q. Now, you went into Somalia in your capacity as soldier; is
18 that correct?
19 A. Yes.
20 Q. And you went in after having been trained as a soldier;
21 isn't that correct?
22 A. Yes.
23 Q. You were trained, prior to your training in aviation, in
24 other areas as a soldier; isn't that correct?
25 A. Yes.
4437
1 Q. And at some point you got trained as an aviator and you
2 became a helicopter pilot; isn't that correct?
3 A. Correct.
4 Q. And you had training in flying helicopters prior to going
5 to Somalia; isn't that correct?
6 A. Yes.
7 Q. And you were trained in using ammunition; isn't that
8 correct?
9 A. Yes.
10 Q. You were trained in using ammunition on the ground; is
11 that correct?
12 A. Yes.
13 Q. And also using ammunition from your helicopter; isn't that
14 correct?
15 A. Correct.
16 Q. Now, you were also trained in how to defend yourself from
17 attack; isn't that correct?
18 A. Correct.
19 Q. That's part of what you have called your ROE, or rules of
20 engagement; isn't that correct?
21 A. Correct.
22 Q. Now, you also were trained in how to defend others; isn't
23 that correct, sir?
24 A. Correct.
25 Q. As a matter of fact, that was your main purpose in being
4438
1 in Somalia, was to defend other people; is that correct?
2 A. Are you talking about me as an aviator, what my mission
3 was?
4 Q. Well, okay.
5 A. My mission as an aviator, again, on that particular day
6 was to bring in the ground force, insert them, and then
7 provide close air cover and fire support for the ground force
8 so that they could achieve their objective, which was to
9 detain or go after and grab people that we were interested in
10 in Aideed's clan.
11 Q. Aideed and the upper echelon of his clan; isn't that
12 correct?
13 A. That's correct.
14 Q. And that was in the belief that if you got Aideed and the
15 upper echelon of his clan off the streets of Mogadishu, the
16 rest of the people in Somalia would have an opportunity to
17 eat?
18 A. Correct.
19 Q. They would get some of that food that the United Nations
20 was bringing in?
21 A. Correct.
22 Q. That some of the chaos would be reduced?
23 A. Yes.
24 Q. You were also trained, sir, were you not, in urban
25 warfare?
4439
1 A. Yes.
2 Q. Now, as a soldier when you are in training, you try to get
3 prepared for whatever may come up; isn't that correct?
4 A. Yes.
5 Q. Now, you can't know what's going to come up, right?
6 A. Correct.
7 Q. For instance, when you got shot down, you didn't know
8 whether or not you would be able to make it to where you
9 landed or not; is that correct?
10 A. Correct.
11 Q. But your training kicked in, right?
12 A. Yes.
13 Q. Your training enabled you to think your way through that
14 situation and make the landing at the coastline of Somalia;
15 isn't that correct?
16 A. Training and a lot of luck.
17 Q. Well, without that, we would all be lost, right?
18 A. That's correct.
19 Q. Now, sir, you were trained for how long in urban warfare
20 before you arrived in Mogadishu?
21 A. I think as a soldier, the urban environment, you know, you
22 continuously train or at least talk about training in the
23 urban environment. Now, when I became of the 160th, we tried
24 to again do it annually, at least a couple times a year try to
25 get to an urban area and try in that environment. So a couple
4440
1 times a year for the preceding three years.
2 Q. And that urban warfare training had absolutely nothing to
3 do with your mission in Mogadishu, did it?
4 A. Correct.
5 Q. Now, sir, I want to talk for a moment, if I might, about
6 Somalia, just looking at the Country of Somalia, if we could.
7 MR. WILFORD: Mr. Keneally, I need to have the
8 defense tuned in on the system, on the technology system.
9 Q. Would you take a look at your screen.
10 MR. WILFORD: Your Honor, there is an agreement
11 between the government and Mr. Odeh that this can go into
12 evidence as Odeh A, as in Adam, 5.
13 MR. FITZGERALD: That's correct, Judge.
14 THE COURT: A5. And this is a map of Somalia?
15 MR. WILFORD: Yes.
16 THE COURT: It is received.
17 (Defendant Odeh Exhibit A5 received in evidence)
18 BY MR. WILFORD:
19 Q. Would you be kind enough, Captain -- I'm sorry, Agent
20 Yacone, to look at the map of Somalia, and could you indicate
21 where it was that you landed on the coastline when your
22 helicopter was shot down?
23 A. The map's really too large of a scale, but where you see
24 Mogadishu.
25 Q. In that general vicinity?
4441
1 A. Correct, right near the coast.
2 Q. And when you said that you were a little bit south of
3 Mogadishu on some other occasions, it was basically in that
4 general area; isn't that correct?
5 A. Yes.
6 Q. You weren't 600 kilometers away, were you?
7 A. No, we were maybe ten miles, fifteen miles.
8 Q. Maximum?
9 A. Yes, that's correct.
10 Q. And would that be in a ten-mile radius around Mogadishu?
11 A. Yes.
12 Q. So your whole time that you were in Somalia, you never
13 went to the north or to the south?
14 A. To the best of my recollection, no. I mean, not more
15 than, you know, ten, fifteen miles away from the city.
16 Q. The reason that you never went anywhere else is because
17 that's where Aideed was and that was the person that you
18 wanted to arrest, not you personally, but the United States
19 and the United Nations?
20 A. And that's where I don't necessarily know that Aideed was,
21 but that's where the majority of his clan was and the strong
22 hold of his clan, the important members.
23 Q. Now, when you talked about, on your direct examination and
24 in your prior cross-examination, I believe you mentioned that
25 you had six prior operations?
4442
1 A. Yes.
2 Q. During those other operations did you in fact have an
3 opportunity or need to discharge any of your weapons from the
4 helicopter?
5 A. Yes. Very limited, but yes.
6 Q. Do you know whether or not, as a result of the discharge
7 of your weapons from the helicopter, any people on the ground
8 died, any Somalians died?
9 A. I believe, I believe so. Again, we were -- the one
10 particular instance that I recall is we were essentially
11 trying to break contact. We were being fired upon, we fired
12 back and continued on. We were -- it was during the
13 exfiltration or the carrying out of the ground force and the
14 ground force and the ground convoy engaged where the enemy
15 fire was coming from as well. So I'm not sure the effects of
16 our fires.
17 Q. But you do know that as a result of the engagement on
18 October 3rd and October 4th, 500 Somalians died and at least
19 1,000 were injured; is that correct?
20 A. That was a Red Cross number that was furnished to us after
21 the battle.
22 Q. Now, you mentioned some terms that I'm really not familiar
23 with. I wanted to, just if you could clarify them.
24 You said that during the course of your hovering over
25 crash site number one, I believe, there was some targets that
4443
1 needed to be engaged. What does that mean, targets?
2 A. Essentially what would happen is we would observe somebody
3 with a weapon shooting at our soldiers or shooting at the
4 aircraft and we would -- the door gunners would engage them
5 with the door guns.
6 Q. They would try to shoot them?
7 A. Yes.
8 Q. Now, sir, when you observed these people shooting at your
9 soldiers, were they shooting light weapons? Were they
10 shooting RPGs only? What were they shooting?
11 A. The majority, we saw AK-47s, RPGs, other more antiquated
12 sub-machine guns, Soviet variants. That's about it.
13 THE COURT: That's, the people you observed on the
14 ground were using those weapons?
15 THE WITNESS: That's correct.
16 THE COURT: Was that your question?
17 MR. WILFORD: Yes.
18 Q. And they were shooting, the observation you made from the
19 helicopter was people on the ground were shooting at other
20 U.S. troops on the ground with those weapons; is that correct?
21 A. They were shooting at U.S. troops, they were shooting at
22 my aircraft, my wing man.
23 Q. So the fire that was being presented towards your
24 helicopter was both RPG and other weapons?
25 A. Yes.
4444
1 Q. Light weapons?
2 A. Yes. There was, also, later on that evening with the use
3 of night vision goggles we had seen heavy tracers from what
4 appeared to be a much larger weapon, which was some sort of an
5 anti-aircraft weapon that we didn't realize was operational
6 during the day, but at night we could see the tracers and knew
7 it was something a lot greater than a AK-47.
8 Q. By the way, is it correct that your operation on October 3
9 started around 4:00, 3:00 or 4:00 in the afternoon?
10 A. About 3:30.
11 Q. And, sir, you mention that there was shrapnel that came
12 out of these RPGs that were exploding near and around your
13 helicopter; is that correct?
14 A. Correct.
15 Q. Do you have any idea, sir, how close you would have to be
16 to the location of the RPG explosion for the shrapnel to hit?
17 A. I think that would depend on what it impacted upon. If it
18 was an air burst up in the sky, you know, you could be
19 probably 50 meters away and still receive effects of the
20 shrapnel being disbursed by the explosion.
21 Q. 50 meters?
22 A. Well, it depends on where it explodes, but again, if it's
23 hitting a wall and you're in a building, it would be a lot
24 closer. 15 meters, 10 meters.
25 Q. And, sir, you also mentioned that you saw collapsed
4445
1 buildings while you were hovering between crash site one and
2 crash site two; is that correct?
3 A. The collapsed buildings I think you are referring to is
4 the one where Supersix 4, the second aircraft, crashed on top
5 of.
6 Q. So there weren't other buildings that had collapsed during
7 the course of your time period in Mogadishu as a result of any
8 kind of fire from helicopters or from people on the ground?
9 A. Not to my recollection, no.
10 Q. Now, would it be a fair statement that the number of RPGs
11 on the ground at Mogadishu were about as common as dust mops?
12 A. I think I know the document you are referring to. They
13 were fairly common, yes, that is a true statement.
14 Q. Would it also be fair that it appeared as though every
15 other person had an AK-47?
16 A. Correct.
17 Q. So basically this is a situation where a lot of people
18 were walking around with some artillary?
19 A. With weapons, yes.
20 Q. I'm sorry, as a military -- some weapons?
21 A. Right.
22 Q. Not cannons, but weapons.
23 Now, it's also fair to say, then, that in Mogadishu
24 there was a high concentration of weapons that were readily
25 available for purchase or acquisition?
4446
1 A. The intelligence that we had prior to 3 October didn't
2 indicate that we would see the amount of weapons and certainly
3 RPGs that we saw on 3 October. In other words, we had no idea
4 that we were going to see that volume of fire come from the
5 enemy. That was my understanding from the intelligence
6 briefings that we received pretty much on a daily basis.
7 So I think we were pretty much surprised at the
8 volume of fire that they brought to bear on 3 October.
9 Q. And would it be fair to say, sir, that the intelligence
10 that you were aware of was that the weapons had been provided
11 by both the Russians and Americans during their support of the
12 prior regime of Siyad Barre?
13 A. No. I'm not aware of that.
14 Q. Sir, I just have a couple more questions.
15 So on October 3rd, 1993, your specific mission was to
16 arrest Aideed and/or members of his clan who were supposed to
17 be present at a particular location; is that correct?
18 A. Correct.
19 Q. And that was in response not only to the U.N. warrant, but
20 also in response to fatal ambushes that had been conducted by
21 members of his clan against United Nations personnel; isn't
22 that correct?
23 A. Correct.
24 Q. Now, sir, because of your efforts on October 3 and October
25 4, 1996, you were decorated; isn't that correct?
4447
1 A. Correct.
2 Q. And, sir, do you know the date specific on or about when
3 the United Nations and the United States troops pulled out of
4 Somalia?
5 A. Not the exact date, but it was within months after we left
6 in October. They started the withdrawal and it took a period
7 of time but they started the withdrawal within months of us
8 leaving in October.
9 Q. So it would be fair to say, as far as you knew, in 1997
10 there were no U.S. troops in Somalia; is that correct, as far
11 as you know?
12 A. As far as I know, you're correct. I have no knowledge of
13 what troops were over there. I was in the FBI in '95.
14 Q. In 1995 there were no U.S. troops in Somalia; is that
15 correct?
16 A. I'm not --
17 Q. As far as you know.
18 A. I'm not sure.
19 Q. Unless you were involved in some sort of covert operation,
20 you wouldn't know of any?
21 A. I didn't know of any.
22 MR. WILFORD: Thank you very much. No further
23 questions.
24 THE COURT: Mr. Cohn, on behalf of Defendant
25 Al-'Owhali.
4448
1 CROSS-EXAMINATION
2 BY MR. COHN:
3 Q. Now, these Somali casualties that you referred to, 500
4 dead and a thousand wounded which was the estimate or the
5 number reported by the Red Cross, right?
6 A. Correct.
7 Q. Do you know whether or not any of the dead or wounded were
8 noncombatants?
9 A. I have no knowledge.
10 Q. Well, Mogadishu is a city of about a million and a half
11 people, right?
12 A. Correct.
13 Q. And fairly crowded conditions?
14 A. Yes.
15 Q. And in fact, at one time you referred to it as an armed
16 city; is that right?
17 A. Say again.
18 Q. You have referred to it in your own words as an armed
19 city, have you not?
20 A. Yes.
21 Q. And in fact, the words that Mr. Wilford used, "common as
22 dust mops," were your words in a debriefing that you had,
23 correct?
24 A. Not correct.
25 Q. Not correct?
4449
1 A. I think that was one of the crew member's that was being
2 interviewed with me from my crew.
3 Q. Pardon?
4 A. That was one of the other crew members of my crew that was
5 being interviewed during that time.
6 Q. I see. It's not your interview?
7 A. That is correct.
8 Q. Were you present while he was being interviewed?
9 A. Yes, I was.
10 Q. You didn't object to his use of the terms, did you?
11 A. I don't know that I understood his analogy.
12 Q. Well, you knew "as common as dust mops" was sort of a
13 derogatory kind of --
14 MR. FITZGERALD: Objection.
15 THE COURT: Sustained.
16 Q. In any event, crowded city, armed city, and the weaponry
17 that the -- your contingent, the U.S. Army contingent, was
18 using could be characterized as weapons that were effective at
19 reasonably long-range, is that not true?
20 A. Yes, but we traditionally used close ranges to engage the
21 enemy.
22 Q. Well, I mean, and when the Blackhawks were up, were the
23 lights of surveillance helicopters also up?
24 A. Yes, there were. They were at a much higher altitude than
25 we were.
4450
1 Q. And they are in fact equipped with something called a mini
2 gun, aren't they?
3 A. Yes.
4 Q. And a mini gun fires 6,000 rounds per minute, does it not?
5 A. No.
6 Q. How many rounds per minute does it --
7 A. 2,000 on low rate and 4,000 rounds a minute on high rate.
8 Q. Okay. It's a lot of bullets, right?
9 A. Yes, it is.
10 Q. They're large bullets; they're rifle rounds, right?
11 A. Correct.
12 Q. And at that rate of fire, pinpoint accuracy is not a high
13 priority, is it?
14 A. It's definitely a priority.
15 Q. I said a high priority.
16 A. Absolutely. It's a high priority whenever you are
17 engaging somebody.
18 Q. So these were accurate weapons that you would point at one
19 person and shoot 2,000 rounds into what's left of that person
20 after half a second?
21 A. Well, again, you're not shooting for a minute continuous,
22 but that is an area suppression weapon, you are correct, but
23 you can use it and minimize the effects of the fire with a
24 short burst.
25 Q. And with an area suppression weapon sometimes it's not
4451
1 easy to tell when you use it who are the friendlies and who
2 are the not friendlies, is it?
3 A. No, that's not correct.
4 Q. You can always tell?
5 A. We were flying at altitudes that we could tell.
6 Q. Well, they were above you, right, the helicopters with the
7 mini guns? They were up higher?
8 A. The mini birds, no, not necessarily. We tried to
9 deconflict air space and they would stay in an orbit outside
10 of the Blackhawks and a little bit above us. But again, to
11 make an engagement, they would do a gun run and they would,
12 you know, maneuver the aircraft and dive it down and engage
13 the enemy after a positive identification of what they were
14 shooting at.
15 Q. You will agree with me, will you not, that in the heat of
16 the moment, using the weaponry that was being used, that it
17 was likely that noncombatants were killed or wounded, isn't
18 that true?
19 A. I would say that, yes. It was not likely, but I'm sure
20 that there were a few noncombatants that were definitely --
21 Q. It's a risk that was assessed by command and deemed --
22 MR. FITZGERALD: Objection, your Honor.
23 Q. -- acceptable?
24 THE COURT: Ask him whether he knows.
25 Q. Do you know if this was a risk that would normally be
4452
1 assessed by command?
2 A. Absolutely. Command --
3 Q. That's why you have rules of engagement, right?
4 A. Sure.
5 Q. Because you don't want innocent people hurt if it's not
6 necessary, right?
7 A. That's absolutely correct.
8 Q. But sometimes one takes a look at the risks, sees what the
9 mission is, and accepts the risk, right?
10 A. Civilian casualties are not acceptable, but unfortunately
11 they sometimes happen.
12 Q. Sometimes?
13 A. Is that what you are saying?
14 Q. I'm asking. I don't say anything, sir. Asking.
15 A. To kind of summarize exactly what happened, after 30 or 40
16 minutes or longer over the objective area, as battle is raging
17 on, people coming towards the fight are obviously coming
18 towards the fight for a reason. People --
19 Q. Curiosity could be one of them, couldn't it?
20 MR. FITZGERALD: Objection, your Honor. Can he
21 finish the answer?
22 THE COURT: Yes. Sustained.
23 A. If you are asking me if I'm aware of any civilian
24 casualties that were sustained, I'm not directly aware of -- I
25 can assume that I'm sure there were. Of that 500 that were
4453
1 killed, were there some innocent civilians? Possibly, but I
2 don't have direct knowledge of it.
3 Q. Have you ever considered the question before this day?
4 A. Sure.
5 Q. Do you know whether any of the people who were killed were
6 women or children?
7 A. I know in fact that, you know, we saw women as ammo
8 bearers serve --
9 Q. Sir, can you just answer the question.
10 MR. FITZGERALD: Objection.
11 A. I'm answering the question.
12 MR. COHN: Your Honor, would you instruct the witness
13 to answer the question.
14 A. I'm about to.
15 MR. COHN: The question was phrased in a way --
16 THE COURT: You want to withdraw the question?
17 MR. COHN: No, I want an answer to it, which says, do
18 you know whether or not there were women or children killed.
19 THE COURT: You may answer that question yes or no.
20 Just yes or no.
21 A. Yes.
22 Q. And were there women and children killed?
23 A. Yes.
24 MR. COHN: Thank you.
25 THE COURT: Anything further from defendants?
4454
1 Redirect.
2 MR. FITZGERALD: Yes, Judge.
3 REDIRECT EXAMINATION
4 BY MR. FITZGERALD:
5 Q. On that last question, Agent Yacone. Did you see any of
6 the women engaging in hostile action at the U.S. troops?
7 A. Yes, absolutely, that was what I was alluding to was my
8 aircraft, we engaged a couple women that were involved in
9 resupplying rocket propeller grenades who were fed to a guy
10 that was shooting RPGs. So they were acting as ammo bearers.
11 They were also carrying weapons and shooting and it was not
12 uncommon to see a hostile, you know, male have a
13 woman in front of him kind of as a human shield and,
14 you know, engage the enemy or engage friendly troops
15 or the aircraft.
16 Q. And do the women appear to be willing shields when they do
17 this?
18 MR. COHN: Objection.
19 I'm sorry, can I have the question again?
20 THE COURT: Excuse me?
21 MR. COHN: Did they?
22 THE COURT: Could you repeat the question?
23 Q. Did the women appear to be shields against their will,
24 carrying ammo against their will?
25 MR. COHN: Objection.
4455
1 THE COURT: You can answer.
2 A. I can talk about my one engagement that I'm --
3 MR. SCHMIDT: Your Honor, there's an objection.
4 MR. COHN: We need --
5 THE COURT: The objection to the question, did the
6 women appear to be --
7 MR. COHN: Willing shields, yes, I objected to that.
8 THE COURT: Well, were you able to see whether that
9 was the occasion or not?
10 MR. COHN: Your Honor, that calls for the operation
11 of somebody else's mind.
12 THE COURT: No. No.
13 Were you able to see?
14 THE WITNESS: The women that, or the one or -- the
15 one instance that I'm specifically speaking of, your Honor?
16 THE COURT: Yes.
17 THE WITNESS: The woman was carrying rocket propeller
18 warfare. She was involved in resupplying warfare and she was
19 participating, she looked like a wilful participant of what
20 was going on.
21 MR. COHN: Your Honor, it was not responsive to the
22 question. It's about being a human shield.
23 MR. FITZGERALD: I object to Mr. Cohn's remarks.
24 THE COURT: Objection is overruled.
25 Q. Now, sir, do you know if any of the Somali participants
4456
1 killed any innocent bystanders when they were shooting?
2 A. Again, I can only assume that happened, but I have no
3 personal knowledge. I didn't witness it.
4 Q. Now, you were asked questions by Mr. Wilford about whether
5 or not there were attacks by Aideed involving ambushes
6 separate and apart from October 3, 1993. Do you recall those
7 questions?
8 A. Yes.
9 MR. SCHMIDT: Objection.
10 Q. Were there also attacks on U.S. troops involving land
11 mines?
12 MR. SCHMIDT: Objection, your Honor. This was not
13 covered in cross-examination, either one of those questions.
14 THE COURT: Overruled.
15 Q. Were there also attacks by mortars?
16 A. Yes.
17 Q. Would you explain to the jury what a mortar is?
18 MR. SCHMIDT: Objection, your Honor. Let's get the
19 source of his information before he can talk about what --
20 THE COURT: Establish the basis of the witness.
21 Q. Did you yourself witness a mortar attack on which U.S.
22 personnel was killed?
23 A. Yes.
24 Q. Tell us what happened and when.
25 A. Again, we were -- the airfield we were sitting on was
4457
1 surrounded on three sides by the City of Mogadishu where the
2 clan operated, and commonly they would set up a mortar tube,
3 which is maybe a three-foot tube with maybe a one-foot round.
4 They would drop in the tube and launch a mortar tube, mortar
5 round into the compound where they were staying, against the
6 aircraft, against the personnel that were staying at the
7 forward support base. And that would generally happen after
8 the hours of darkness where they could hide in the city. They
9 could drop a couple mortars, pick up the tube and move and get
10 away from the area where they just shot from.
11 On a few days after 3 October, we had sustained
12 mortar attacks, probably every two or three days we would get
13 mortared, and on 5 or 6 October we had our first casualty. A
14 guy named Matt Rierson was killed from a mortar round and 16
15 other people in our contingents were injured.
16 Q. And how do you know this?
17 A. I was sitting maybe 50 to 100 feet away from where the
18 round went off.
19 Q. Do you know the identities of the persons who carried out
20 the ambushes, the land mine attacks or the mortar attacks?
21 A. No.
22 Q. And do you know of the identities or nationality of the
23 people who carried out these attacks or trained people to
24 carry out these attacks?
25 A. Well, I know from the intelligence --
4458
1 MR. WILFORD: Objection.
2 THE COURT: The answer is yes. Now ask another
3 question.
4 A. Yes.
5 Q. Mr. Wilford asked you whether or not Aideed's clan had
6 carried out ambushes against the U.S. troops. Do you know for
7 a fact one way or the other who it was that was training these
8 people how to do this?
9 MR. WILFORD: Objection.
10 THE COURT: Overruled.
11 A. Can you rephrase the question?
12 Q. My question to you, do you know if the people who trained
13 the persons who carried out their attacks, do you know if they
14 are from Aideed's clan or someone else, if you know?
15 A. We were not aware of, but we had received intelligence --
16 MR. SCHMIDT: Objection, your Honor.
17 A. -- reports --
18 MR. SCHMIDT: Objection.
19 THE COURT: Overruled.
20 A. We had received intelligence reports that they were
21 intercepting -- to drop a mortar round on somebody, it
22 requires a communication between the spotter, the guy talking
23 to the guy firing the mortar of where he wants the round to
24 land and then actually where it lands and he adjusts the
25 mortar round, and we were -- the U.S. was picking off radio
4459
1 transmissions in Arabic of the mortars being adjusted on the
2 airfield.
3 MR. FITZGERALD: Nothing further, Judge.
4 THE COURT: Anything further of this witness?
5 MR. SCHMIDT: Yes.
6 RECROSS-EXAMINATION
7 BY MR. SCHMIDT:
8 Q. Do you have a copy of these intelligence reports for us to
9 review, sir?
10 A. No. We were given daily briefings while we were over
11 there.
12 Q. You said that women and children were even
13 participating --
14 THE COURT: I don't recall any testimony -- the
15 jury's recollection will control. I didn't recall anything,
16 any reference being made to children participating.
17 MR. SCHMIDT: There was and it was interrupted. I'll
18 limit myself to women.
19 Q. You said that there were women involved in assisting in
20 attacking -- or, withdrawn -- reacting to the attack by the
21 Americans, isn't that right?
22 MR. FITZGERALD: Objection to form.
23 THE COURT: Yes, sustained.
24 Q. You said that there were women who were involved in
25 reacting to the American military operation, isn't that right?
4460
1 A. I was talking about the one particular engagement that my
2 aircraft made when we spotted a woman carrying rocket
3 propeller grenades.
4 Q. Now, based on your briefings, wasn't it a fact that women
5 were not part of militias in this Muslim country?
6 MR. FITZGERALD: Objection, your Honor.
7 MR. SCHMIDT: He's allowed to talk about what his
8 briefings are.
9 THE COURT: Please don't argue.
10 Overruled. You may answer.
11 A. I'm not really sure.
12 Q. Isn't it a fact that by October 3, as a result of the Abdi
13 House attack and other attacks by U.N. and U.S. armed
14 forces --
15 THE COURT: You are asking a question which has a
16 causal relationship to something that occurred before this
17 witness was here. You want to re-think your question?
18 MR. SCHMIDT: No, I don't, your Honor.
19 THE COURT: Very well. You may ask the question.
20 Q. As a result of the attacks --
21 MR. FITZGERALD: I object, your Honor.
22 MR. SCHMIDT: I'll withdraw that question.
23 Q. As a result of the military operations that you were aware
24 of that occurred during the time that you were there and
25 previous to the time that you were there, the Aideed clan and
4461
1 supporters were -- felt they had to defend themselves against
2 further operations?
3 MR. WILFORD: Objection.
4 MR. FITZGERALD: Objection.
5 THE COURT: Mr. Wilford's objection is sustained.
6 Q. As to the -- I think you answered that -- withdrawn.
7 You previously testified that the militia that the
8 American troops were fighting appeared to be well-organized;
9 is that right?
10 A. As far as the enemy clan, yes, they had a rank structure.
11 Q. Were you made aware in your briefings to enable you to
12 understand your enemy that the Somali people had been at war
13 with each other for a number of years before the U.N. and the
14 U.S. troops arrived?
15 A. Yes.
16 Q. And that they had been fighting and killing each other
17 during the years before the Americans had arrived?
18 A. Yes.
19 Q. And that they were doing that with AK-47s, RPGs, and other
20 weapons?
21 A. Yes.
22 Q. And that every militia group in the Mogadishu area had a
23 very large amount of weapons?
24 A. No.
25 MR. FITZGERALD: Objection to form.
4462
1 Q. You said that there was a mortar attack on the base
2 October 5th and 6th; is that correct?
3 A. It was either the 5th or the 6th.
4 Q. Those were the last American casualties in Somalia, isn't
5 that right?
6 A. I'm not sure of that. From my Unit Task Force Ranger that
7 was over there, yes.
8 Q. When did you leave?
9 A. Mid to late October.
10 Q. When did the rest of the U.S. -- withdrawn. The rest of
11 the U.S. troops you testified left within months after that
12 attack; is that correct?
13 A. That was when they started the withdrawal, but I'm not
14 sure when the final American troops were pulled out.
15 Q. And is it fair to say you know of no other American
16 casualty in Somalia since October 6th of 1993, is that
17 correct?
18 A. I have no idea, no.
19 Q. It's correct that you have no knowledge?
20 A. That is correct.
21 Q. Did you remain in service after you left Somalia?
22 A. Yes.
23 Q. For how long did you remain in service?
24 A. I left there, again, October '93 and I got out of the army
25 in February '95 and right into the FBI.
4463
1 MR. SCHMIDT: I have no further questions of this
2 witness.
3 THE COURT: Anything further of this witness?
4 MR. WILFORD: Yes, your Honor.
5 THE COURT: Mr. Wilford.
6 RECROSS-EXAMINATION
7 BY MR. WILFORD:
8 Q. Agent Yacone, while you were in Somalia, did you hear
9 people speaking a variety of languages?
10 A. We really didn't interact much with the people outside the
11 airport, so, no. I mean, I wasn't really aware of any other
12 languages other than, you know, the people speaking Somali.
13 Q. You were speaking English --
14 I'm sorry, were you finished?
15 A. Again, I was going to say that I don't know that I would
16 personally be able to differentiate between Somalian and
17 another language. I don't know the language that well.
18 Q. But you were speaking English; is that correct?
19 A. Correct.
20 Q. And you said that you had some intelligence about Arabic;
21 is that correct?
22 A. That is correct.
23 Q. And there's also the native language of Somalia; isn't
24 that correct?
25 A. Correct.
4464
1 Q. So they had at least three languages that were being
2 spoken; is that correct?
3 A. Yes.
4 Q. At least three?
5 A. That I was aware of.
6 Q. Sir, do you know that the second language in Somalia is
7 Arabic, do you know that?
8 A. I didn't know that, no.
9 Q. Sir, you mentioned -- or, withdrawn. You were asked some
10 questions about training. Remember those questions by Mr.
11 Fitzgerald?
12 A. Which ones that referred to training?
13 Q. About Aideed's group.
14 Well, do you remember being asked the question about
15 who was training Aideed's group, if you knew?
16 A. I'm not really sure.
17 Q. You're not really sure if you remember the question?
18 A. No, I'm not really sure who was training Aideed's group.
19 Q. And you weren't even sure that Aideed's group was being
20 trained by someone else, isn't that fair?
21 A. The reason why I remember about the Arabic intercepts of
22 Intel being given to us was because that was thought to be
23 unique, the fact that we were picking up Arabic, adjusting
24 mortar rounds on us, so that led the Intel briefing to say,
25 hey, there may be other people here training Aideed's clan.
4465
1 Q. Okay. Now, that's what Intel said, right?
2 A. That is correct.
3 Q. But you don't know for a fact and Intel didn't know for a
4 fact whether or not the Arabic that was being spoken was being
5 spoken by Somalians?
6 A. Correct.
7 Q. You don't know for a fact whether or not someone else, and
8 Intel did not know for a fact whether someone else who was not
9 Somalian was engaged in training Aideed's people; is that
10 correct?
11 A. I have no knowledge of that. I can't tell you the total
12 extent -- I was not privy to all that the intelligence
13 officers were aware of, but from what I was briefed, I was not
14 aware.
15 Q. And there's nothing that you are aware of, sir, that is
16 inherent in the fact of being Somalian that would prevent you
17 from being able to speak another language, is there?
18 A. No.
19 Q. And there's nothing inherent about being Somalian that
20 would prevent you from being able to learn how to shoot a
21 weapon or be trained by another Somalian; is that correct?
22 A. Correct.
23 Q. Particularly around Mogadishu, is that correct, when we
24 talk about all these weapons being available?
25 A. Correct.
4466
1 MR. WILFORD: Thank you. Nothing further.
2 THE COURT: Anything further of this witness?
3 MR. FITZGERALD: No, Judge.
4 MR. COHN: Not from me.
5 THE COURT: Very well, sir. Thank you. You may step
6 down.
7 (Witness excused)
8 THE COURT: Anything further from the government?
9 MR. FITZGERALD: No, Judge.
10 THE COURT: Government rests?
11 MR. FITZGERALD: Yes, Judge.
12 THE COURT: Government rests.
13 Mr. Schmidt.
14 Mr. Dratel.
15 MR. SCHMIDT: Your Honor, there is an application
16 that I would like to make at this point outside of the jury.
17 MR. WILFORD: I'm sorry, your Honor. I didn't hear
18 Mr. Schmidt.
19 THE COURT: He has an application he wishes to make
20 outside the jury.
21 Can we reserve on that until after 1:00 with the same
22 force and effect as if made at this time?
23 MR. SCHMIDT: Then no problem, your Honor. Thank
24 you. Yes.
25 THE COURT: El Hage may call its next witness.
4467
1 MR. COHN: Your Honor, I think we need a personal
2 break.
3 THE COURT: Excuse me?
4 MR. COHN: We need a personal break at the defense
5 table.
6 THE COURT: Personal break?
7 MR. COHN: I'm sorry.
8 THE COURT: We will take a recess at this time.
9 (Jury not present)
10 THE COURT: Mr. Schmidt.
11 MR. SCHMIDT: Your Honor, at this time I'm moving for
12 a mistrial. This witness testified as to intelligence that he
13 has given. One, I do not believe that the door was open for
14 him to testify as to intelligence that they heard Arabic
15 speakers on the mortar attack.
16 Secondly, we don't have access to intelligence
17 reports and we don't know exactly what the intelligence
18 reports say that would rebut the inference that the government
19 wants to draw based on that testimony.
20 THE COURT: Wait. It was defense counsel who sought
21 to elicit this witness's understanding and his perception of
22 these events. There was no need for such questioning. This
23 witness's state of mind with respect to or knowledge with
24 respect to such matters as who carried on the attacks, who
25 trained the attackers --
4468
1 I withdraw the previous comments.
2 Your motion for a mistrial is based on the witness's
3 testimony that he had received intelligence reports; that
4 intelligence reports indicated that communications were
5 overheard in Arabic, causing the adjustment of mortar fire.
6 Is that the basis of your motion?
7 MR. SCHMIDT: That indeed is the basis, that
8 testimony, and it's a twofold objection and application as a
9 result of that testimony.
10 THE COURT: Yes.
11 MR. SCHMIDT: First was that it was improper to come
12 out in that manner, being intelligence, and the lack of
13 relevance to mortar fire and unrelated to not only the October
14 3 and 4th incident but any other mission that they went on.
15 It was not relevant at all and it was only done for the
16 purpose of them eliciting the Arabic language.
17 Secondly, the second basis is that it refers to
18 material that we do not have access to, we cannot challenge,
19 we have no way of testing, we don't know whether it as
20 accurate.
21 THE COURT: I think it was rather effectively dealt
22 with on the cross-examination by Mr. Wilford, but go ahead.
23 MR. SCHMIDT: Well, Mr. Wilford indeed effectively
24 dealt with it as best as any defense attorney could do.
25 However, that doesn't eliminate the fact that it is now out
4469
1 there based on double, triple or quadruple hearsay, in a
2 report that are known for not being terribly accurate, and
3 that we have no access for that there were Arabic people
4 speaking and helping place mortars. That, I think, should not
5 have been there. There was no basis it being there.
6 There are numerous conversations that I have had with
7 personnel involved with Somalia, and they can say there was no
8 intelligence report indicating anything to do with Bin Laden
9 or Afghan Arabs or his group, and that would be totally
10 hearsay; it would be useless and improper for me to bring that
11 out. If the government can bring that out, then I guess am I
12 allowed to bring out a witness who can then say intelligence
13 reports indicated no direction from Bin Laden, al Qaeda, or
14 Afghan Arabs at all.
15 THE COURT: Why would you be precluded from doing it?
16 MR. SCHMIDT: I don't have access to intelligence
17 reports. That's double, triple, quadruple hearsay. You don't
18 know what the basis is of those reports and, as your Honor is
19 well aware of and the media is well aware of, that
20 intelligence reports give out information no matter what the
21 source is and there is no way that that information can pass
22 the reliability test unless we know the source of that
23 information. So there is no way that that should come in,
24 especially when we don't even have access to it.
25 THE COURT: Mr. Fitzgerald, you you want to respond?
4470
1 MR. FITZGERALD: Yes. First of all, Judge, it was
2 defense counsel who opened the door as to what this witness
3 was briefed on, what he had been told about what the dangers
4 were, what he expected. This witness basically talked about
5 the events of a single day, on October 3 to 4th, on direct.
6 Then, on cross-examination, is what were you
7 debriefed upon, what you might expect, what kind of danger was
8 there, who was armed, what weapons are common, what kinds of
9 weapons are they, where did they come from, where we were they
10 supplied and what was the response to these attacks, and built
11 into the questions was the implication all of the people
12 involved in attacks on U.S. troops were Somali and Aideed and
13 were trying to establish whether he does not know whether they
14 were Somali or Aideed.
15 But they opened the door and asked this witness. No
16 one objected when he said this is what I had heard from the
17 media, this is what he was briefed on. When they get an
18 answer they don't like, suddenly the hearsay rule kicks in. I
19 think the motion for mistrial should be denied.
20 MR. SCHMIDT: Your Honor, there's a difference
21 between --
22 THE COURT: I've heard sufficient argument.
23 Mr. Cohn, briefly.
24 MR. COHN: We join the motion.
25 THE COURT: Yes, the motion is denied. Let's bring
4471
1 the jury back in.
2 The jury's lunch is here. We're adjourned until
3 2:00.
4 MR. SCHMIDT: Your Honor, my second application is to
5 obtain all the briefing reports received by or the
6 intelligence reports received by this witness and I can
7 cross-examine him about those reports.
8 MR. FITZGERALD: Your Honor, you don't get discovery
9 by walking in on cross into, what's your intelligence, and
10 then coming back and saying, now I don't like the answer, so
11 hand it all over eight years after the fact.
12 THE COURT: Denied.
13 We're adjourned.
14 MR. SCHMIDT: I did not walk into that.
15 THE COURT: We are adjourned until 2:00.
16 Please don't argue with each other.
17 We're adjourned until 2:00.
18 (Luncheon recess)
19
20
21
22
23
24
25
4472
1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 (In open court; jury not present)
4 THE COURT: Have you had an opportunity to discuss
5 with your client the proposed allocution?
6 MR. RUHNKE: Yes, your Honor, we discussed it with my
7 co-counsel. We do object to the allocution part.
8 MR. BAUGH: Your Honor, they can't hear.
9 MR. RUHNKE: The microphones here are not.
10 THE INTERPRETER: The system is not on right now.
11 MR. RUHNKE: Initially I had lodged no objection to
12 your Honor having a colloquy with the client about this issue.
13 This is basically an issue of trial strategy.
14 THE COURT: It may very well be during the first
15 phase of this case the defendant Al-'Owhali may see fit to
16 draw comparisons between himself and other defendants such as
17 your client. Material may be introduced at the first trial
18 which inculpates Mr. Mohamed. Mr. Mohamed by agreeing to two
19 trials gives up the right to participate during such a
20 proceeding, to raise objections, to be represented. The
21 decision whether or not to seek bifurcation, I agree is a
22 lawyer's decision to make in the first instance, but unless
23 your client is prepared to allocute to his conscious foregoing
24 of the right to participate with respect to the Al-'Owhali
25 death sentence proceeding, I won't grant it.
4473
1 MR. RUHNKE: Your Honor, if that's the price to pay,
2 obviously, we believe that separate penalty phases are very
3 very much in my client's best interest, if your Honor is
4 saying you will allocute the client over objection.
5 THE COURT: I don't understand your objection. What
6 is the objection?
7 MR. RUHNKE: The objection is that as a matter of
8 trial strategy and the sort of practice where the Court simply
9 allocutes a client after the government asks them to do so,
10 that the Court allocute a client on decisions that lawyers are
11 making, intrudes in the lawyer-client relationship.
12 THE COURT: I will allocute the standard procedure.
13 I've already done it with respect to Mr. Odeh, and I will do
14 it with respect to the other defendants, if they elect not to
15 testify, and that's because they will be giving up a very
16 fundamental right, and history and experience has told us that
17 often there is an attempt to second guess that decision. I
18 can't distinguish that from foregoing the right to participate
19 at the trial of a codefendant before the same jury where many
20 of the same issues will be presented.
21 MR. RUHNKE: Your Honor, we've made our position
22 clear. If your Honor wishes to inquire of Mr. Mohamed, he is
23 here. We've discussed this matter with him thoroughly all
24 along. We certainly are not going to have an objection
25 standing in the way of there not being separate penalty
4474
1 phases.
2 THE COURT: Mr. Mohamed, your lawyer -- can you hear
3 me? Is it being translated? Do you understand what I'm
4 saying. The defendant is nodding his head yes.
5 Do you understand that if you are convicted of
6 certain crime, and if Mr. Al-'Owhali is convicted of certain
7 crime there will be a subsequent proceeding in which the jury
8 will hear evidence and the arguments of counsel concerning
9 whether the sentence to be imposed is a sentence of death or
10 of life imprisonment without possibility of parole? Do you
11 understand that?
12 DEFENDANT MOHAMED: (Nods head)
13 THE COURT: The defendant is nodding his head yes.
14 Your attorney has requested that there be two separate trials
15 rather than a jury trial of yourself and Mr. Al-'Owhali, and
16 that Mr. Al-'Owhali's death sentence trial go first. You
17 understand that?
18 DEFENDANT MOHAMED: (Nods head)
19 THE COURT: Do you understand that if I agree to
20 separate the two trials that you will not be able to
21 participate either directly or through your attorney in the
22 Al-'Owhali death sentence trial?
23 DEFENDANT MOHAMED: Yes.
24 THE COURT: You understand that. Do you understand
25 that at that trial evidence may be introduced and arguments
4475
1 may be made on behalf of Mr. Al-'Owhali which may be against
2 your interests. Do you understand that?
3 DEFENDANT MOHAMED: Yes.
4 THE COURT: And that will be made to the same jury as
5 the jury that will later sit on the trial to determine whether
6 or not you should receive the death sentence or life
7 imprisonment. Do you understand that?
8 DEFENDANT MOHAMED: Yes.
9 THE COURT: And you understand then that you will
10 have no opportunity at that first, at the 'Owhali trial to
11 bring out evidence or to argue to the jury on your behalf?
12 You understand that?
13 DEFENDANT MOHAMED: Yes.
14 THE COURT: And is that agreeable to you?
15 DEFENDANT MOHAMED: Yes, it is.
16 THE COURT: You understand that you have the right to
17 say no, if there is going to be evidence introduced before
18 this jury with respect to me, or any of the issues that affect
19 me I want to participate and I want my lawyer to participate.
20 You understand that you have that right?
21 (Pause)
22 DEFENDANT MOHAMED: Yes.
23 THE COURT: And what is your wish in this regard?
24 DEFENDANT MOHAMED: Separate this trial.
25 THE COURT: Anything further by way of allocution?
4476
1 MR. FITZGERALD: No, thank you.
2 MR. COHN: Your Honor, just before you address the
3 jury on this issue, I'd like to be heard again sometime. If
4 you want to do it now.
5 THE COURT: I was going to do at the end of the day.
6 MR. COHN: That's why I'm alerting the Court now that
7 at sometime convenient to the Court and jury.
8 THE COURT: How about now?
9 MR. COHN: That's fine.
10 THE COURT: Go ahead. What is it you want to say?
11 MR. COHN: I have been thinking about the McVeigh
12 issue and I am convinced that the Court in dismissing the
13 Shepherd issue is being uncharacteristically short sighted;
14 that the Court may think of this as a partisan issue, but in
15 fact it's not. I mean I can conceive of away of looking at
16 the McVeigh execution that would repel any sane person as a
17 circus and make them opposed to the death penalty.
18 On the other hand, I think that is unlikely. There
19 is no way for us to tell, and were this another time in the
20 trial I would ask the Court for funds to commission a study,
21 something which I think the Court, given at this point, would
22 not be happy with. I suggest respectfully that the Court
23 commission its own study as to the anticipated effect of the
24 McVeigh execution and what, I short circuit a long
25 dissertation by saying, the circus surrounding it as it
4477
1 affects the jury.
2 THE COURT: Therefore, what would you have the Court
3 do?
4 MR. COHN: Well, I think the Court should not
5 immediately assume that a jury that is --
6 THE COURT: Don't tell me what I shouldn't do. Tell
7 me what it is that you want the Court do.
8 MR. COHN: I want the Court to hire an expert
9 suggested by all sides to determine whether or not this jury
10 can ignore the McVeigh execution and the impact that it may
11 have with the ultimate view of delaying, of potentially
12 delaying the penalty phase for some months.
13 I think Shepherd is in fact terribly apt, not inapt
14 and that there is no way --
15 THE COURT: Tell me how Shepherd relates to this
16 case.
17 MR. COHN: Shepherd says that there was no way of
18 circumventing publicity at that time and the case should have
19 been postponed forever.
20 THE COURT: With respect to Shepherd.
21 MR. COHN: That's right. And I'm telling the
22 Court --
23 THE COURT: Denied. Let's bring in the jury, please.
24 MR. COHN: Great.
25 THE COURT: Who is the next witness.
4478
1 MR. DRATEL: Dr. Samatar, your Honor.
2 THE COURT: He may take the stand. Doctor, if you
3 just have a seat over here for a moment.
4 It's my intention to have a charging conference this
5 afternoon, take as long as it takes and to go over the charge
6 line by line and page by page dealing with the objections and
7 other issues.
8 (Continued on next page)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4479
1 (Jury present)
2 THE COURT: We're now back on the case on behalf of
3 the defendant El Hage. Mr. Dratel, you may call your next
4 witness.
5 MR. DRATEL: Thank you, your Honor, Dr. Abdi Samatar.
6 ABDI ISMAEL SAMATAR,
7 called as a witness by the defendant,
8 having been duly sworn, testified as follows:
9 DIRECT EXAMINATION
10 BY MR. DRATEL:
11 Q. Dr. Samatar, good afternoon.
12 A. Good afternoon.
13 Q. Where were you born?
14 A. I was born in a country called Dijbouti in East Africa.
15 MR. DRATEL: If we could display El Hage E3 to
16 counsel and the witness, please.
17 -- E2, I'm sorry.
18 MR. FITZGERALD: We won't object if he wants to offer
19 it in evidence.
20 MR. DRATEL: I would move it into evidence.
21 THE COURT: Received.
22 (Defendant's Exhibit E2 received in evidence)
23 MR. DRATEL: It's on its side. Turn it around.
24 Q. Is that a map of Somalia and Dijbouti?
25 A. That's a map of Somalia, Kenya, Ethopia and Dijbouti.
4480
1 MR. DRATEL: I move it in evidence, your Honor.
2 MR. FITZGERALD: No objection.
3 THE COURT: Received.
4 MR. DRATEL: If we can publish it to the jury,
5 please.
6 Q. Would you point out Dijbouti?
7 A. Dijbouti's in the northeast corner.
8 Q. Just turning to the coloring, the yellow part is Somalia,
9 is that correct?
10 A. It seems like yellow color is Somalia.
11 THE COURT: It's the very, very top of the map.
12 THE WITNESS: That's correct.
13 Q. Right where the yellow part is in the top left that would
14 be Dijbouti. That's where you were born?
15 A. That's where I was born, right.
16 Q. And what citizenship do you hold?
17 A. I'm an American citizen.
18 Q. And what is the highest degree that you've received?
19 A. I have received a doctoral of philosophy from the
20 University of California.
21 Q. In what specialized area?
22 A. I'm a geographer specializing in development studies and
23 world development.
24 Q. What was the topic of your thesis, your doctoral thesis?
25 A. The topic of my doctoral thesis was on Somalia.
4481
1 Q. And you also hold a masters degree?
2 A. I have a master's degree in community and regional
3 planning.
4 Q. And from what institution?
5 A. Iowa State University in Iowa.
6 Q. And you have a bachelors degree as well?
7 A. I have a bachelors degree in geography and economics from
8 the University of Wisconsin.
9 Q. What is your current employment?
10 A. I was just promoted to a professor at the University of
11 Minnesota.
12 Q. It's Professor of geography?
13 A. Geography.
14 Q. Have you written on Somalia? Have you written about
15 Somalia in academic journals?
16 A. I have a book published by the University of Wisconsin
17 Press which was published in 1989, and then I have something
18 in the order of about 17, 18 articles on international
19 academic journals on Somalia.
20 Q. And have you, have you been to Somalia?
21 A. I go to Somalia every year and I was there in last August.
22 Q. And have you ever been consulted by the United States
23 State Department with respect to Somalia?
24 A. I was brought as a member of a committee in 1992 before
25 the American troops were sent to Somalia as part of the United
4482
1 Nations.
2 Q. And the purpose of your being -- what was the purpose of
3 your consultation with the State Department?
4 A. The purpose of the consultation was to inform and educate
5 our officers in that place, in Washington, about the
6 conditions in Somalia at the time.
7 Q. And have you previously been qualified as an expert on
8 Somalia in court?
9 A. Yes. I have numerous occasions maybe in the order of
10 about ten times as an expert witness on asylum cases in the
11 United States.
12 Q. That would be immigration cases?
13 A. Immigration cases.
14 Q. And what languages do you speak?
15 A. I speak English apparently, Somali, Arabic and a couple of
16 other local languages in East Africa.
17 Q. And is Somalia included in your curriculum as a professor?
18 A. Yes. I don't teach any course on Somalia, but in many of
19 the courses I teach usually for or five a year, parts of the
20 reading deal in Somalia.
21 Q. In addition, have you had grants or appointments that
22 relate to Somalia and the area around Somalia whether it is
23 Ethopia or Dijbouti?
24 A. Yes. I had a grant in 1986 from something called the
25 Social Science Research Council based here in New York to do
4483
1 work in marketing in Somalia. I had a grant from the World
2 Bank in Washington to do studies in Somalia, Mogadishu upper
3 and lower Somalia, and I have a few others over the years.
4 Q. Anything in Ethiopia?
5 A. I was in Ethiopia as a US government Fulbright scholar in
6 1999.
7 MR. DRATEL: Your Honor, I would move to have
8 Mr. Samatar qualified as an expert at this time.
9 MR. FITZGERALD: No objection.
10 THE COURT: He may so testify.
11 MR. DRATEL: Thank you, your Honor.
12 Q. Now, just getting back to language for a moment, is Arabic
13 spoken in Somalia?
14 A. Arabic is spoken, not as sort of everyday language, but
15 it's taught in schools. Every child who goes to public
16 schools from grade one on.
17 Q. And how about in Mogadishu itself, the capital city?
18 A. Mogadishu when Somalia became independent in 1960 three
19 languages were used by the government of Somalia, Brit --
20 English. I almost said British. But English, Italian,
21 because one region of the country was a British colony and the
22 other part of the country was an Italian colony, and then
23 Arabic was the third language used by government in official
24 circles.
25 Q. Was Somalia a written language at that time?
4484
1 A. No, it wasn't until 19770-71.
2 Q. And was there a particular language -- withdrawn. Was
3 Arabic a language that might be used in the Somali military?
4 A. Yes, quite a number of Somali officers were trained in
5 places like Syria, Egypt, Libya, and I believe Iraq as well.
6 So for them to be trained there they need to speak Arabic.
7 Q. Thank you.
8 If we could go back to E2. That's on the screen.
9 Somalia is the area that yellow rather than green?
10 A. Correct.
11 Q. And can you tell us what it borders on in terms of body of
12 water? What Somalia borders in terms of bodies of water?
13 A. Indian Ocean and the Gulf of Aden.
14 Q. And the Indian Ocean would be to the east?
15 A. Indian Ocean be to the east. The Gulf of Aden will be
16 north.
17 Q. Thank you.
18 If we could put E3 the small box of E3 if we could
19 display that, please, publishing it to the witness and to
20 counsel.
21 Dr. Samatar, do you see the square in that frame?
22 A. Yes, I do.
23 Q. Is that the a representation of Somalia superimposed on
24 the United States?
25 A. On the eastern part of the United States.
4485
1 Q. Is that a fair and accurate representation of the amount
2 of territory that Somalia covers in comparison with the United
3 States?
4 A. I have seen this map before and it seems like that.
5 MR. DRATEL: I move it in evidence your Honor.
6 MR. FITZGERALD: No objection.
7 THE COURT: Received.
8 (Defendant's Exhibit E3 received in evidence)
9 Q. Just so the jury is aware, the red part is Somalia
10 superimposed on to the eastern part of the United States,
11 correct?
12 A. That's correct.
13 Q. And the southern part goes as far as Tallahassee, Florida?
14 A. That's correct.
15 Q. The northeastern part goes north of Albany into Vermont;
16 is that correct?
17 A. That's correct.
18 Q. And the western part goes as far west as Kalamazoo,
19 Michigan?
20 A. Yes.
21 Q. And also just in terms --
22 A. If I may just correct there. It doesn't go to Kalamazoo.
23 Dijbouti is where Kalamazoo is. Somalia would be sort of
24 eastern part of Michigan.
25 Q. Thank you.
4486
1 With respect to just in terms of scale a country such
2 as Sudan in Africa, compared to the United States, what is the
3 land mass of the Sudan?
4 A. Area of the Sudan is about 980,00 square miles which is
5 about the area of the United States east of the Mississippi
6 River.
7 Q. That's the country of Sudan?
8 A. Sudan, correct.
9 Q. And if you could, Dr. Samatar, apparently you need to
10 speak louder or to move the microphone closer to you if it's
11 possible or move closer to the microphone. Thank you.
12 If we could get E2 back up, please. Thank you.
13 Actually, that's just, if you can move it up just up
14 a little bit, and then a little bit to the right. That's
15 perfect.
16 If we could just look at the map and can you tell us
17 looking at the left border of Somalia, the western border of
18 Somalia at the bottom there what country is to the left there?
19 A. Ethopia and Kenya.
20 Q. If you could identify for us the Gedo region of Somalia,
21 G-E-D-O. Is that listed on the map?
22 A. That's listed on the map and it's the northwest of that
23 part of Somalia.
24 Q. But what part of Somalia would that be?
25 A. In terms of the totality of Somalia in terms of area you
4487
1 mean?
2 Q. Yes. What geographic region would Gedo be in Somalia?
3 How would you describe it?
4 A. Gedo is the name of administrative province.
5 Q. What part of Somalia is it in?
6 A. Southern Somalia.
7 Q. And just so we can identify some towns that are in the
8 Gedo area there is Luuq, is that correct?
9 A. That's correct.
10 Q. And on the border of Kenya is El Wak?
11 A. That's correct.
12 Q. And just over the border into Kenya is Mandera?
13 A. That's correct.
14 Q. And could you also point out to us where the town of
15 Baidea is?
16 A. Baidea is in the region of bay, B-A-Y. It's the central
17 town spelled as D-A-I-D-O-A.
18 Q. That would be to the right of Gedo is that the area?
19 A. It would be to the right of Gedo to the southeast of Gedo.
20 Q. And the town of Belahowa, can you tell us where that would
21 be located?
22 A. It's not shown on the map, but it will be sort of
23 northwest of Garbahaarey, directly southwest of Luuq on the
24 border.
25 Q. So Garbahaarey is right there in the middle of Gedo?
4488
1 A. Yes.
2 Q. Belahow will be west of that?
3 A. Belahow will be west on the Kenya border.
4 Q. The distance from Mogadishu if you know?
5 A. A little over six hundred kilometers.
6 Q. That would be four hundred miles?
7 A. About four hundred miles.
8 Q. Thank you.
9 If we could also point out Kissmayo?
10 A. Yes, Kissmayo is on the Indian Ocean. It's the last large
11 major city in the south on the Jubbada Hoose.
12 Q. It's the last city on the map on the bottom on the coast?
13 A. That's correct.
14 Q. And up the coast is Mogadishu, correct?
15 A. Yes.
16 Q. And Mogadishu is the capital city?
17 A. The former capital of former Somalia.
18 Q. Now, in terms of Somalis as an ethnic group, is that
19 confined just to the country of Somalia?
20 A. No, Somalis live in Kenya, in the northeast province of
21 Kenya, in two areas of Ethopia called the Ogaden and the Haud,
22 and in Dijbouti and then of course in Somalia proper south.
23 Q. And is Somalia the country a state that was created out of
24 two colonial entities?
25 A. Somalia was created out of former British Somaliland and
4489
1 former Italian Somaliland.
2 Q. So it doesn't necessarily encompass the entirety of the
3 Somali people?
4 A. Not at all.
5 Q. If we could show the entire, actually, if we can just show
6 a little bit north. Good. Thank you.
7 If we can look at the map again, Doctor. the border
8 between Somalia and Ethopia?
9 A. Yes.
10 Q. If you look at the part that's on an angle a straight line
11 essentially on an angle southwest to northeast, if you can
12 read what's written there along that broken line?
13 A. Provisional administrative line is what's written up
14 there.
15 Q. The provisional administrative line means what?
16 A. That's a boundary that has not been fixed and recognized
17 by both countries.
18 Q. Either Ethopia or the former Somalia?
19 A. Ethopia I think recognizes it. Somalia did not.
20 Q. If we could show the entire map again, please.
21 When we're talking about, the people talk about
22 northern Somalia generally what part of the country are they
23 referring to?
24 A. Conventional northern Somalia is that part which used to
25 be a British colony. That's to the south of the Gulf of Aden.
4490
1 And there is the Ethopia sitting, if you may, or just sitting
2 between southern Somalia and northern Somalia.
3 Q. So that everything below that would be considered southern
4 Somalia?
5 A. Southern Somalia will be all the way from the extreme
6 northeast of the horn to sort of south of Kissmayo.
7 Q. Thank you. And is Somalia an Islamic country or Islamic
8 land?
9 A. Most of the statistics that we know of suggest that
10 anywhere up to 95 to 97 percent are Muslims.
11 Q. And how long has that been the case? Not in terms of
12 proportion, but when did Somalis become Muslim?
13 A. Almost seventh to eighty years under the Prophet's
14 pilgrimage to Medina.
15 Q. What century would you put that in?
16 A. 7th century.
17 Q. Thank you.
18 Now, Somalia became a nation when?
19 A. 1960, a nation state.
20 Q. An independent state?
21 A. That's correct.
22 Q. And what type of government did it have?
23 A. Once British and Italian Somaliland became the Somalia
24 Republic in 1960 they had a parliamentary democracy.
25 Q. How long did that last?
4491
1 A. Between 1960 and 1969, for nine years.
2 Q. What happened in 1969?
3 A. The military took over and denounced the Constitution, and
4 disbanded the parliament.
5 Q. Who was the military leader?
6 A. The military leader was General Muhamed Seyad Barre.
7 Q. Can you spell that for us, please?
8 A. Last name is B-A-R-R-E.
9 Q. And how long did his rule last?
10 A. From 1969 to 1990.
11 Q. And at the time that his rule ended what was the
12 condition, the political condition in Somalia?
13 A. All political authority broke down, civil institutions
14 collapsed, and public order was history.
15 Q. And what power, where was power vested at that time?
16 A. At that point power was vested in small groups of
17 warlords, both in the north and in the south of the country.
18 Q. And describe what you mean by warlords?
19 A. Warlords are former military people who are able to access
20 guns and ammunitions from government stores and then who claim
21 to control territory without any elections, without the rule
22 of law, and their only source of legitimacy was the power of
23 their gun.
24 Q. When you say military people, they were former Somalia
25 military?
4492
1 A. Somali military people.
2 Q. With respect to the Somali military during the Barre
3 regime was Somalia aligned with any particular country or
4 countries over that period of time?
5 A. Somalia had several allies over the years. From 1964 to
6 1978 it was allied with the former Soviet Union. After 1978
7 and the defeat of the Somali troops in Ethopia, Somalia leaned
8 westwards and became an ally of the United States.
9 Q. So did Somalia, did the government of Somalia the former
10 state of Somalia, and the military receive arms during that
11 period from both the Soviet Union and then from the United
12 States?
13 A. Correct.
14 Q. And was one of the warlords who commanded a militia during
15 the period when the Barre regime was deposed was that Mohammed
16 Fara Aideed?
17 A. That's correct. Probably the strongest one of them all.
18 Q. And can you tell us a little bit about him?
19 A. Aideed was military man who wasn't in good friendship with
20 Sayed Barre, the General who commanded the country. He was
21 removed from the military and posted as an ambassador overseas
22 for a while and then he came back as things began to fall
23 apart and created his own militia and then ultimately he was
24 the General who chased Barre out of Mogadishu and out of the
25 country.
4493
1 Q. And when did that occur?
2 A. Which one?
3 Q. The last part the chasing, well, actually first chasing
4 Barre out of Mogadishu?
5 A. 1991, early '91 January to be precise, and later on in
6 1992.
7 Q. And Gen. Aideed would he be described as Islamist or an
8 Islamic activist in any way?
9 A. I have never heard that before today.
10 Q. So it's yes or no?
11 A. No.
12 Q. Do you know if Aideed --
13 A. That doesn't mean he wasn't a Muslim person, but he was an
14 Islamic political person, that he was a military man.
15 Q. And he was never identified as such?
16 A. No.
17 Q. Do you know if Gen. Aideed ever held a position in the
18 government of either Barre or previous government?
19 A. He was an ambassador and a General in the Army of the
20 Barre regime.
21 Q. Was he ambassador to Egypt, do you know?
22 A. I'm not sure whether he was an ambassador to Egypt or
23 Pakistan.
24 Q. Thank you.
25 And would Barre be classified politically as an
4494
1 Islamist either?
2 A. In fact, he was, the public thought of him as a
3 non-Islamic person because his government shot ten religious
4 people in the early part of 1970's because they came against
5 his sort of a stipulation of a new decree which said that
6 woman could divorce men, which was a first in that country's
7 history. And these who opposed him which was led by Mullahs
8 or Islamic men were beheaded or shot in Mogadishu.
9 Q. And when Gen. Aideed chased Barre from the capital from
10 Mogadishu, where did Barre flee to?
11 A. If you look at the map he went to Baieda first, and then
12 ultimately Gedo region.
13 Q. If we could focus on the Gedo region which is the
14 southwest part of the map.
15 A. There is a paved road and there are aren't too many paved
16 roads in Somalia that runs from Mogadishu to Baieda on a red
17 line, and that's the road he took. In part Baieda used to be
18 a major military base of the Somali Army and the Air Force had
19 a airport in Baieda. That's where he went.
20 Q. What was the response of Gen. Aideed when Barre moved to
21 Baidea?
22 A. Aideed wanted to pursue, but he first wanted to
23 consolidate his power in Mogadishu, and there were a number of
24 political deals that he attempted which didn't work, but he
25 moved against Barre. Barre tried to come back from Mogadishu
4495
1 and he was almost captured in a town just outside Mogadishu
2 called Afigoy, and then he fled back to Baieda and then to
3 Gedo region.
4 Q. What was the effect on the populace in the Gedo region
5 when Aideed and Barre were in conflict during this time
6 period?
7 A. The general population was caught in the middle of that
8 conflict or tussle, and large number of people began to get
9 access to weapons, not only in Gedo but across the country.
10 Once the civil and the political order and authority
11 collapsed, people didn't have anybody to protect them, so
12 people either bought or somehow got access to former military
13 weaponry.
14 Q. Just again, the time period that this is occurring?
15 A. This is anywhere from late 1990 to 1992 and thereafter.
16 Q. And in terms of resources, other resources, not just
17 weapons, but food and daily resources for sufficiency
18 purposes, was there any impact of this fighting on that to the
19 populace, particularly in the Gedo region?
20 A. Unlike the United States, for instance, if I may sort of
21 use that comparison, there isn't a great deal of food in
22 storage that you can have if the crops fail this year, nor
23 people had a lot of money in which they can use to import and
24 access foods. So if cropping failed one season, and there was
25 nothing in the next season you could almost invariably expect
4496
1 famine and once farmers were terrorized by idea and other sort
2 of warlords and marauding gangs, most of the people became
3 vulnerable to famine and in the end thousands of them died
4 because of that.
5 Q. Also did Aideed attack ultimately Baidea and Barre in
6 Baieda?
7 A. He attack by Baieda, captured Bidaua and then went after
8 Sayed Barre until Sayed Barre left the country for Kenya.
9 Q. The time period would be?
10 A. This was in 1992.
11 Q. And during this period of time or towards the end, at the
12 time when the fighting is going on in Gedo, were there groups
13 within Gedo that were looking to establish some sort of order?
14 A. Aideed's rule in Gedo was not firm and sort of a fighting
15 militias ran back and forth. Most people began to see that
16 neither Sayed Barre groups nor Aideed really had the people's
17 interest in mind or at heart as people began to starve in
18 large numbers. And so it wasn't only in Gedo at all, but in
19 many parts of the country people began to look for other
20 sources of normalcy, legitimacy and law, and Islam was the
21 only source they could find as close reach, and that they can
22 appreciate.
23 Q. Have you ever heard of a organization called Alika Had?
24 A. Yes, I did.
25 Q. Is the full name Alika had al Islam?
4497
1 A. Alika had al Islam.
2 Q. Can you tell us how that emerged during that time period
3 in the Gedo region?
4 A. What you had, it's very difficult to establish the exact
5 date when groups got together and talked about the creation
6 and the establishment of Ali Kahad Al Islam, but somewhere in
7 the 1992 period as these military movements ran back and forth
8 between the two groups it was about that time it said that Ali
9 Kahad people began to talk about Alkihad and the formation of
10 Alkihad, but nobody in my mind can pin the date and the time
11 and the place with any degree of precision.
12 Q. Did Ali Kahad during this period of time have any presence
13 in Mogadishu?
14 A. No.
15 Q. And what was the role of Islam in Ali Kahad in during the
16 chaos of that period?
17 A. Most people that's citizens of the country were looking
18 for someone to take responsibility for public order, and since
19 the warlords and the roaming militias were not able to do so
20 and Barre has run away from the country that they began to see
21 Ali Kahad as a group who were not secondary in the sense of
22 one clan versus another, one warlord versus another, but they
23 were ones who were public began to see them as a group who
24 were looking after all Muslims as a community.
25 And they saw that Alikahad and Islam may be the
4498
1 closest thing that a civic organization that can insure the
2 peace that they thought Al Islam al Kahad as that possible
3 organization.
4 Q. And that would be in the Gedo region?
5 A. Gedo region, correct.
6 Q. Also, just have you heard of the Afar?
7 A. Yes.
8 Q. And what are the Afar?
9 A. Afar or Ganati people live in three countries in East
10 Africa or in the horn of Africa, Ethopia, Dijbouti, and
11 Eretria.
12 Q. And if we could show the entire map of E2 again, please.
13 And again Dijbouti is just beyond Somalia in the northwest?
14 A. That's correct.
15 Q. And Eretria would be further north and west?
16 A. It doesn't show on this map in terms of the boundary but
17 it will be further northwest of the Dijbouti.
18 Q. And Ethopia is that area that encompasses those three
19 countries?
20 A. Right, where the Afar people, the people live is just a
21 little bit sort of to the southwest of Dijbouti which means
22 sort of north of Ethopia, and south east of Eretria.
23 Q. And did they have any connection or presence in the Gedo
24 region?
25 A. Not at all.
4499
1 Q. Do they have any presence or connection to Mogadishu?
2 A. No.
3 Q. And could you also point out the Agaden region?
4 A. Yeah. It's sort of if you look at that triangle of
5 looking area into Somalia, if you look, even Ethopia, the
6 southern part of that is what's called Ogagan region.
7 Q. Would that also be where that broken line is, would that
8 be a fair statement?
9 A. That's correct.
10 Q. And the Afar have any connection or presence in that
11 Ogaden area either?
12 A. No.
13 Q. Now, during the period of time when Barre is fleeing the
14 country, Aideed is consolidating power, are there other
15 competing warlords at the same time in other parts of Somalia?
16 A. Yes. It's hard to enumerate them because they come and go
17 in many ways, but the enduring ones will be Mohammed Hersi
18 General Morgan, will be Ali Mahdi in Mogadishu in and Morgan
19 was in the south in Kisomoy area. There was at least further
20 northeast, and others.
21 Q. And during this period of time what kind of weapons were
22 available to these warlords, those foreign military men?
23 A. They had access and control basically what used to be the
24 armory of the Somalia military.
25 Q. So everything that had been received from the United
4500
1 States or the USSR?
2 A. And anybody else.
3 Q. Was available to the warlords?
4 A. That's correct.
5 Q. That includes rocket propelled grenades also known as
6 RPGs?
7 A. That's correct.
8 Q. And heavier weapons, too?
9 A. Tanks and others, yes.
10 Q. And what was the number of men under arms in the Somali
11 Army when it was constituted as a national army?
12 A. Nobody exactly knows that because they never used to
13 publish it, but estimate, educated estimates are anywhere from
14 70,000 to 90,000 and then militias on top of that.
15 Q. So there was a large available trained armed group
16 available to these warlords to make combat against each other?
17 A. At some point in the 1970s persons in the United States
18 and elsewhere suggested that the Somali Army was the strongest
19 Army in Africa outside South Africa.
20 Q. And in addition to the militias and the warlords you had
21 also mentioned that there was a widespread Army of the entire
22 populace to a certain extent?
23 A. Yes. This is one of the tragedies of that country as a
24 citizen of the globe so to speak is a society unlike ours
25 where nobody could get access to weapons, including small
4501
1 pistols and what not prior to sort of early '80s. Over the
2 years since then I've been going to that country every year
3 and I don't know of a single household which I visited
4 anywhere in the country which doesn't have a gun and usually
5 an AK-45.
6 Q. AK-47?
7 A. 47, not 45.
8 Q. And, generally, what's the purpose that is explained to
9 you in terms of these weapons in the house?
10 A. One, I asked, I actually remember asking that question to
11 a gentleman who had a shop in a number of towns because I went
12 to each store to fix up my glasses because he ran that kind of
13 business, and as we were in the back of the shop I saw a
14 couple of guns lying, and I said, what is that for? And he
15 said, this is his security because there is no state.
16 Q. And the fighting that was going on between the warlords
17 the factions, was full-scale military battle at times?
18 A. At times, yes.
19 Q. And the warlords themselves were formally trained military
20 personnel?
21 A. Most of them were captains, generals, colonels and what
22 not in the Somali Army.
23 Q. And many of their militia were also former Somali Army,
24 either officers or other personnel?
25 A. Significantly so.
4502
1 Q. And in your opinion would they require the training by
2 outside forces to use any of the weaponry at their disposal?
3 A. They were well trained.
4 Q. In your opinion would they need the training by outside
5 persons?
6 A. Not in my opinion.
7 Q. And in your studies and in your visits to Somalia have you
8 ever heard of any outside training by others to any of the
9 militia people in Somalia?
10 A. Before the government of the country collapsed there were
11 Americans came to train before that the Soviets came to train.
12 Somewhere in the middle Libyans, Iraqis, Syrians, Egyptians
13 came to train, but I didn't hear of any thereafter.
14 Q. Now, was there an international response to civic and
15 humanitarian crisis that existed in Somalia in 1992?
16 A. Yes, there were all kinds of NGOs.
17 Q. NGO being nongovernmental organizations?
18 A. Nongovernmental organizations that people who had the
19 nonprofit business came to help because there was a great deal
20 of shortage of all things from pencils for children in school
21 to food, to medicine and what not and anything in between.
22 Q. Was there also a problem with respect to orphans due to
23 the fatalities in the fighting?
24 A. Not only orphans, but children and elderly people
25 generally.
4503
1 Q. And was that NGO response sufficient in and of itself that
2 to create order or to end the crisis?
3 A. The NGOs were not armed. Its people like OxfarmAmerica,
4 OxfarmBrit and they were humanitarians in the sense they
5 didn't bring their guns and their security so they couldn't
6 create order. Their purpose was to provide by and large
7 sustenance for the general population, particularly children
8 and older people.
9 Q. And at some point did the United Nations become involved?
10 A. It became involved in large measure because Aideed and
11 others have denied significant population of southern Somalia
12 in the Bay region.
13 Q. They denied them?
14 A. They denied them access to food that was brought in either
15 by NGOs or private business people couldn't get through
16 because of these road checks and road blocks and so people
17 began to die in large numbers. That's when the United Nations
18 began to get intervene militarily.
19 Q. And were there estimates on how many people died as a
20 result?
21 A. The figures are many, but a reasonable for one to me is
22 anywhere between two hundred and 400,000 people.
23 THE COURT: Between when and when?
24 THE WITNESS: We're talking anywhere from sort of the
25 middle of the 1992 to 1993.
4504
1 Q. So you're not talking about the people who died in the
2 fighting in the early part of the Civil War. You're really
3 talking about from the humanitarian crisis that resulted as a
4 result, that was the result of what you were just talking
5 about?
6 A. That's correct.
7 Q. The food and other resources?
8 A. That's correct.
9 Q. Now, with respect to Baydo with and also Gedo, Barre had
10 fled to that region. Did he have a particular identification
11 with that region?
12 A. I think Sayed Barre his regime not as an individual but
13 his government introduced into Somali culture something that
14 was not terribly important earlier on, and that was to divide
15 the community into smaller groups in a sense what Africans
16 used to call divide and rule mentality.
17 For him to stay in power he has to set one group
18 against the other and arm one group and disarm another and
19 create all kind of vulnerabilities and so people began in the
20 absence of a government that protects all its citizens, people
21 began to see the Gedo region as the base of Sayed Barre's
22 regime.
23 Q. Was it also base of the Maraha clan?
24 A. That's what's assumed.
25 Q. Now, did the international relief effort included in late
4505
1 1992 United States troops, is that correct?
2 A. That's correct.
3 Q. And what was the initial response first of the populace
4 and then of the warlords, first, we'll do the populace, to the
5 international relief efforts by the UN in conjunction --
6 withdrawn?
7 Did the United States send its troops in conjunction
8 with the United Nations effort?
9 A. No. First the United Nations sent troops and many of them
10 Pakastanis and Indians, few Africans and elsewhere, and when
11 it proved that that wasn't effective in terms of opening up
12 the road so that food can get to victims of strangulation,
13 then the UN and other people appealed to the United States to
14 sort of help the UN to sort of deliver on it's humanitarian
15 agenda, and it's at that point that the US intervened.
16 Q. But in conjunction with the United --
17 A. In conjunction under the umbrella of the United Nations.
18 Q. What was the initial response to the international effort
19 including the United States involvement provided by the
20 populace of Somalia?
21 A. I remember I was asked the question at NBC Today Show, and
22 I think I suggested to my host that if President Bush, then
23 President Bush, the senior, that is, ran for president in
24 Somalia, the public would have voted him in hands down.
25 Q. And what was the warlords' reaction to the introduction of
4506
1 the UN and the US?
2 A. I think the warlords were ambivalent. They were not
3 certain. There were risks and there were advantage to the
4 intervention.
5 Q. What would the risks be?
6 A. The risks will be that they will be neutralized since they
7 were the principal course of the famine and the mayhem in the
8 country, what brought the United Nations and the United States
9 to Somalia in the first place.
10 (Continued on next page)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4507
1 Q. And the advantages might be?
2 A. The advantages was that if indeed and we are talking
3 primarily of two warlords, Sayid Barre and General Aideed, and
4 that if they convinced the United States and the United
5 Nations that they were the authority that could deliver some
6 of the things that the United Nations and the U.S. were
7 interested in, then they could piggyback on the U.S. and the
8 U.N. and become the de facto rulers of the country.
9 Q. Did that opinion change by the fall of 1993? Was there a
10 shift in opinion either among the warlords and the populous?
11 First of all, we'll talk about the warlords at this time, by
12 the sort of latter part of 1993.
13 A. From the general public's vantage point and since one
14 treads on a tricky ground here because there were no public
15 service or you couldn't say and according to A, B, C, blah,
16 blah, this survey, 70 percent of the public supports this or
17 that, but the general feeling in the country was that the U.N.
18 and the United States were not delivering on what the Somalis
19 hoped they would deliver, that's peace and liberation from the
20 warlords.
21 Q. And by the way, were you in Somalia during periods of
22 1993?
23 A. I was there in the spring of 1993.
24 Q. And the fall of 1993?
25 A. And late summer in 1993.
4508
1 Q. Do you recall what the reaction was amongst Somalis to an
2 incident that occurred at something called Abdi House in July
3 of 1993?
4 A. I heard about the Abdi House affair through the British
5 Broadcast Corporation in Somali service news in the evening.
6 Q. And did you speak to Somalis about it when you were in
7 Somali subsequently?
8 A. I did speak to them and it was -- many of them were quite
9 taken aback and surprised because they were saying that too
10 many civilians were getting caught in the middle of this what
11 became the conflict between the warlords and the United
12 Nations.
13 Q. Just for one second, the principal target of the United
14 Nations was which warlord?
15 A. General Mohamed Farahid Aideed.
16 Q. And so, if you continue with respect to the Somali
17 response.
18 A. And I'm sure people were beginning to wonder if they have
19 asked for something, although their asking wasn't what
20 initiated the U.N. and the U.S. to intervene, something they
21 did back and forth, and that's many of civilians who were now
22 getting killed in this crossfire and that this wasn't what
23 they thought the U.N. and the United States will do.
24 Q. And what was the warlords' response to this? Would it be
25 fair to say there was an escalation of conflict, armed
4509
1 conflict between the U.N. and Aideed during this period of
2 1993?
3 A. Right. I think what you have is if you -- in their
4 initial assessment, which was that the warlords, and Aideed in
5 particular, thought there's a chance that he can piggyback on
6 the U.N. and the U.S. and become the new law of Somalia, but
7 once the process of disarmament began --
8 Q. Do you recall when that was, the process of disarmament,
9 do you recall when that occurred?
10 A. I can't remember the exact date, but it was sometime in
11 1993.
12 Q. So, go ahead.
13 A. So certainly before --
14 Q. What was Aideed's response?
15 A. Certainly it was before late summer 1993, and Aideed was
16 one of the first warlords to be told to sort of identify where
17 he kept weapons and whatnot.
18 Q. And his response?
19 A. The response was that if this was not taking place
20 uniformly across the warlord terrain, that's all warlords who
21 were being disarmed simultaneously, that in fact he might be
22 disadvantaged if there is sort of an explosion of conflict
23 between him and others, and that is the assumption that he
24 could possibly piggyback on the United States and the U.N. was
25 in danger.
4510
1 Q. And what areas did he control -- withdrawn.
2 Did Aideed control a significant portion of
3 Mogadishu?
4 A. Mostly Southern Mogadishu, including what used to be
5 Radio, Mogadishu.
6 Q. And the seaport?
7 A. The seaport and the airport.
8 Q. How was the -- withdrawn. Did the warlords attempt to use
9 the shifting opinion of the Somali populous with respect to
10 the U.S. and the U.N. to their advantage, to the advantage of
11 the warlords?
12 A. I think particularly Aideed was more successful than the
13 other warlords. I was, I remember, in Hurat in Zimbabwe and I
14 ran into a professor of public policy and political science in
15 Syracuse University who was going to attend a Pan-Africanist
16 conference in Kampala, Uganda late that fall and the professor
17 told me that one of the key speakers in that conference was
18 expected to be General Aideed himself.
19 So I asked him the question, what is General Aideed,
20 a warlord, doing in a Pan-Africanist conference in Kampala,
21 and apparently what Aideed has been very successful is to
22 convince a few Africans across the continent that he was one
23 of the key leaders of the new Pan-Africanist movement to unite
24 all of Africa together and that his struggle with,
25 quote/unquote, the Americans in Somalia was precisely
4511
1 anti-imperialist, as they put it. And so he certainly was
2 able to convince some elements in Africa, broadly speaking,
3 that way and then --
4 Q. What about the population in Somalia in particular?
5 A. And the population in particular with Aideed and few
6 others, but Aideed in particular, said what the Americans in a
7 sense are doing in Somalia is, one, to redominate Somalia --
8 this was the language that he used -- and that their
9 involvement was not only about providing services to rebuild
10 the country but they had a larger agenda, and he wired this
11 into sort of a conflict in the Middle East and elsewhere.
12 Q. After the U.S. and U.N. forces left Somalia, do you recall
13 when that was, not exactly but generally?
14 A. 1994.
15 Q. And did the anarchy in Somalia continue?
16 A. The anarchy continued, but strangely enough, many people,
17 including myself, many observers thought that Somalia was even
18 going to implode more so than it was before if the U.N. and
19 the United States troops left. But all chaos continued.
20 There was no sort of a major explosion other than what was
21 already taking place in the country.
22 Q. To sort of jump ahead, then, to the time period 1996 in
23 Somalia, were conditions effectively the same in the sense,
24 was there a central government yet?
25 A. No, there was no central government yet.
4512
1 Q. Were there effective regional governments of any size or
2 authority?
3 A. Probably the one that comes closest in that sense is what
4 is currently called Somali Land.
5 Q. And on the map that would be all the way to the north?
6 A. All the way to the north, just south of the Gulf of Aden.
7 Q. So not in Southern Somalia?
8 A. Not in Southern Somalia.
9 Q. Not in Gedo?
10 A. Not in Gedo.
11 Q. And what was, at that time period, 1996, what was the
12 presence of Ali Ittihad in Gedo at that point?
13 A. Ali Ittihad, from what we know and the evidence by all
14 sources put together will suggest that they were, as I said
15 earlier on, that their primary role from the vantage of the
16 public was to create an antisectarian community in Gedo and
17 fill the vacuum between Siyad Barre and Aideed. But as that
18 time progressed, as Europeans began to send encouragement into
19 Somalia, it's at that point I think where the popularity
20 validly begins to become a factor in the region on certain
21 incidents in Somalia.
22 Q. Just to back up a second, in the Ogaden region, in the
23 region itself, were there conflicts between Ethiopia and armed
24 groups in the Ogaden region?
25 A. When the new Ethiopian government came to power in 1991,
4513
1 this was a government dominated by a group called Tigre people
2 from the north of the country, south of Eritrea, and the
3 military that they brought to bear was not the European army,
4 all the European army, but their militias became the national
5 army immediately.
6 And so the army began, the new army began to fan out
7 into the country, and I remember hearing an interview in the
8 BBC with Somali Services in London where one group called
9 Ogaden National Liberation Front, a Somali group who live in
10 Ethiopia, announced over the radio a message to the Ethiopian
11 government not to send its troops to that part of the country
12 of Ethiopia which was accommodated and populated by Somalis,
13 or to be prepared for war if they do so.
14 So that was the first signal that there was conflict
15 in Ethiopia in the era after the revolution, so to speak, in
16 1991.
17 Q. And that continued through the mid 90s?
18 A. Continued to the present.
19 Q. And just to situate us in the 1996 time period, also with
20 respect to just in terms of the map, the way it is on the
21 screen right now, also, the Gedo region essentially sits -- it
22 borders on not only Ethiopia, but Kenya, as well, correct?
23 A. That's correct. That's correct.
24 Q. And in fact, all of Kenya's Northeastern border there, I
25 mean after Ethiopia, is Somalia all the way to the coast?
4514
1 A. That's correct.
2 Q. And did the government of Kenya have concerns about the
3 border activity with respect to Somalia because there was not
4 any central government in Somalia during this period of the
5 1990s?
6 A. I think the principal concern -- I mean, one has to think
7 of the Kenyan government at its multiple levels. At the
8 central level in Nairobi, the concern was that the absence of
9 government in Somalia may mean a lot of weapons coming from
10 Somalia into Kenya itself. That was the only concern that the
11 Kenya government expressed.
12 Lower level officials who are into corruption and
13 bribes were concerned about money moving back and forth and
14 commercial goods moving back and forth, but the key security
15 issue for the Kenyan government was the shipment of arms
16 across Somalia, from Somalia to Kenya.
17 Q. And did something occur in the summer of 1996 that sort of
18 changed the conditions in the Gedo and the Gedo region with
19 respect to Ethiopia and Somalia?
20 A. Yes, I think it's -- actually, I was in a place called
21 Jijiga in Ethiopia. At that time was the time I was beginning
22 to do my current research, and over the radio, both on the
23 Ethiopian radio initially did an announcement, but it was
24 announced in the British Broadcasting Corporation local Somali
25 Service, that Somalis in the region are claiming that
4515
1 Ethiopian troops have come across the border and have created
2 mayhem in the region, Gedo in particular.
3 Q. And what did they use as part of this assault, the
4 Ethiopia troops?
5 A. The reports suggested that they used helicopter gunships,
6 heavy weaponry, artillery and the like.
7 Q. And this is in the summer of 1996?
8 A. About that time, yes.
9 Q. Did this involve the United States in any way in terms of
10 troops or anything like that?
11 A. Absolutely not.
12 Q. And what was the impact of this Ethiopia invasion in the
13 Gedo region of Somalia?
14 A. I think the impact was many, but the key ones were
15 destruction of a lot of property, the death of many civilians
16 and armed men and -- mostly men, not women, and the gradual
17 creation of -- what's the word in English? I speak English,
18 but sometimes I run out of steam -- local support, the local
19 militia supporters. The Ethiopian government, reports
20 suggested, were laying the groundwork for creating armed
21 groups in Somalia that will support its own agenda in that
22 country.
23 Q. And --
24 THE COURT: That would support?
25 THE WITNESS: An Ethiopian agenda in Somalia.
4516
1 Q. And the Ethiopian envision, what was the reason given by
2 the Ethiopian government for the invasion?
3 A. Formerly they suggested that they were in hot pursuit of
4 Ittihad Islam, among others, but the key one was that. But
5 Ethiopia had other interests in Somalia, also, which were not
6 spoken of, and that was there's the largest community, ethic
7 community, in Ethiopia is a group called Oromos which
8 constitutes anywhere up to 45, maybe even 50 percent of the
9 population of the country who claim not to be part of the
10 government as they would like, the democratic government, and
11 that many of them or their organizations are said to be based
12 in Somalia and to move into Ethiopia back and forth. So I
13 think one of the agendas of the Ethiopian intervention into
14 Somalia was also to ensure that Oromos who were armed did not
15 come across Ethiopia into Somalia.
16 Q. And what was the impact on Ali Ittihad of the Ethiopian
17 envision in 1996?
18 A. I think it had two impacts. One was they certainly were
19 not a match for the Ethiopian troops, so they were sort of not
20 completely destroyed but deeply maimed, but it also had the
21 effect of creating a basis of legitimacy even more so for Ali
22 Ittihad in the minds of Somali public, particularly in that
23 region, for being one of the few forces who can carry, sort of
24 a protect Somalis from the Ethiopian army.
25 Q. Did the Ethiopian influence and presence in the Gedo
4517
1 region of Somalia cease once the envision stopped, or was it
2 something that continued for a considerable period of time?
3 A. The reports we have suggest that the Ethiopian invasion
4 and presence declined shortly thereafter that immediate
5 intervention, but has persisted and have been -- has escalated
6 in more recent times.
7 Q. But it continued throughout '96 and '97?
8 A. To 19 -- to 2001.
9 Q. Did you review before you testified Government Exhibit
10 310, Dr. Samatar?
11 A. Yes, I did.
12 Q. And this is something that's called "Report on the Latest
13 News in Somalia"?
14 A. That's correct.
15 Q. Can you read the first line? It's already in evidence.
16 "Abdel Sabbur brings to light the new policy. When Abdel
17 Sabbur arrived on February 22, 1997, he contacted Khalid
18 directly and asked him to come to Nairobi."
19 And so that sets a time frame in February of '97,
20 correct?
21 A. Correct.
22 Q. And having read this document, would you say that it, in
23 many ways it describes some of the events that you have been
24 talking about in terms of 1996, 1997?
25 A. Yes, it does.
4518
1 MR. FITZGERALD: Objection to competence, your Honor.
2 THE COURT: Yes, sustained.
3 Q. Well, just looking at the bottom of page 1 --
4 THE COURT: That question and answer is stricken.
5 MR. DRATEL: Excuse me?
6 THE COURT: I'm saying the last question and answer
7 is stricken.
8 MR. DRATEL: Thank you.
9 Q. With respect to the bottom of page 1, and that paragraph
10 that starts, "Before Khalid's move to the interior," and it
11 goes on to talk about Islamic courts in Kismayo, and was that
12 something that Ali Ittihad been working on, the institution of
13 Islamic courts?
14 MR. FITZGERALD: Objection to leading.
15 THE COURT: I'll allow it, but then refrain from
16 leading.
17 A. No, Ittihad was not active and strong.
18 Q. And with respect to, moving down the page, at the very
19 bottom, the last line, "Khalid met with the director of
20 foreign affairs (for the Federation of Ogaden in Western
21 somalia)," is that a reference to the liberation movement of
22 Ogaden that was present that you discussed before?
23 A. It seems to. I haven't, I never heard about the
24 federation, but I heard of the Ogaden National Liberation
25 Front, which is a Somali group in Ethiopia.
4519
1 Q. And on page 2, there's a reference to a Sheikh Hassan, and
2 are you familiar with the name Sheikh Hassan in the context of
3 the Ogaden region?
4 A. I heard his name in a place called Jijiga in Eastern
5 Ethiopia.
6 Q. In what context?
7 A. A passing context, as a major religious figure.
8 Q. In the area?
9 A. In the area, in the Ogaden region.
10 Q. And if we move to page 5, right underneath the second
11 asterisk where it says, it talks about security situations in
12 the region, Somalia-Ethiopia. You see that?
13 A. On page 5?
14 Q. Yes, I think it's 5.
15 A. The next, second asterisk is "Haroun's meeting with the
16 director."
17 Q. Right. And the sentence under that says --
18 A. Okay, I see it.
19 Q. "On the security situations in the region," and it says
20 Somalia-Ethiopia?
21 A. Correct.
22 Q. At this time period, February 1997, there were serious
23 security issues with respect to the Somalia-Ethiopia border?
24 A. That's correct.
25 MR. FITZGERALD: Objection, leading.
4520
1 THE COURT: Yes, refrain from leading. Restate your
2 question.
3 Q. Just read it and then say whether or not it reflects what
4 was going on at the time in terms of the Somali-Ethiopia
5 border.
6 A. The Somali-Ethiopia region?
7 Q. Yes.
8 A. Is an unstable region and that Ogaden National Liberation
9 Front and Ali Ittihad move in and out of that region and sort
10 of put bombs on roads, harass the Ethiopian military from time
11 to time. That has been the case since 1992.
12 Q. And during this period of February '97, it was relatively
13 close -- was it particularly an issue in February 1997?
14 MR. FITZGERALD: Objection to leading.
15 THE COURT: It's a valid objection, but what was the
16 condition in February 1997.
17 Q. What was the condition in February 1997?
18 A. The condition --
19 MR. FITZGERALD: Thank you.
20 A. In Ogaden, so to speak, was one in which the Ethiopian
21 military was not formally on the alert but looking for Ali
22 Ittihad, as they said, and the Ogaden National Liberation
23 Front inside Ethiopia in the Ogaden itself. So it was a
24 condition in which there was literally security and some
25 degree of political instability in the country.
4521
1 Q. Were they also, was the Ethiopian army also active inside
2 Somalia during that period, looking for --
3 MR. FITZGERALD: Your Honor, objection to repeatedly
4 leading.
5 THE COURT: Yes.
6 MR. DRATEL: What?
7 THE COURT: When you state the fact and ask whether
8 it's so, it's a classic leading question.
9 Q. Were they in Somalia?
10 THE COURT: What was the question?
11 Q. Was the Ethiopian army in Somalia?
12 A. The reports tell us yes.
13 Q. And the reasons stated by the Ethiopians for being there?
14 A. They were in hot pursuit of Ali Ittihad and Islam.
15 Q. And also if we look on the next page, page 6, on the
16 bottom, the portion in bold, it says, "The Front of the
17 Liberation of the Oromos," and if you tell us again about the
18 Oromos at that time period and the area that we're talking
19 about, Somalia, Ethiopia, Ogaden, early 1997.
20 A. The Oromo -- it's actually not called the Front of the
21 Liberation of the Oromos, it's called the Oromo Liberation
22 Front, and I know for sure because one of my former students
23 dropped out of my department and disappeared and then I found
24 out that he was in Mogadishu working with the Oromo Liberation
25 Front. So the Oromo movement was using Somalia as a base to
4522
1 go into Ethiopia during this period.
2 Q. Are the Oromos originally from Somalia?
3 A. No.
4 Q. But are they originally from Ethiopia?
5 A. They are the majority ethnic group in Ethiopia and there
6 are Oromos in Kenya.
7 Q. Did the government of Ethiopia have concerns about --
8 withdrawn.
9 What was the Ethiopian government's position with
10 respect to Islamic groups and Islamic charities as opposed to
11 any other types of charity work?
12 MR. FITZGERALD: Objection, competence.
13 THE COURT: Yes.
14 Do you know? Is that something within your area of
15 expertise?
16 THE WITNESS: Yes, sir.
17 THE COURT: You may answer.
18 A. What I have heard in Ethiopia is that the Ethiopian
19 government allows Christian missionaries and NG organizations
20 to register and do business in Ethiopia. That's since the new
21 regime came to power. That is what the reports say, that is
22 not only my opinion, that they have not allowed Islamic groups
23 of the same kind to come to Ethiopia, register and
24 proselytize.
25 Q. This is the same Ethiopian government that was in power in
4523
1 1996 and 1997?
2 A. Yes, this is the government that has been in power since
3 1991 to the present.
4 MR. DRATEL: Thank you. Nothing further, your Honor.
5 THE COURT: Any defense counsel have questions of
6 this witness?
7 Cross-examination.
8 MR. FITZGERALD: Yes, Judge.
9 CROSS-EXAMINATION
10 BY MR. FITZGERALD:
11 Q. Sir, if you could look at that document in front of you,
12 Government Exhibit 310.
13 A. That's correct.
14 Q. If you could look at that first paragraph that was cited
15 to you by Mr. Dratel.
16 A. Is that the one which says, "Abdel Sabbur brings to light
17 a new policy"?
18 Q. Exactly. Thank you.
19 Do you know who Abdel Sabbur is?
20 A. No.
21 Q. Do you know who the person Khalid is that Abu Sabbur
22 brought that new policy to?
23 A. No.
24 Q. Do you know who the person El Hajj, H-A-J-J, is that they
25 brought the policy from?
4524
1 A. There are plenty of El Hajjs in Eastern Africa, but no
2 particular one.
3 Q. Do you know who it is?
4 And if we could focus in on that first paragraph on
5 the screen, as you sit here today, do you know if the person
6 Abdel Sabbur had recently visited a person named El Hajj prior
7 to the date on this document?
8 A. That's not what my research is about, sir.
9 Q. So you don't know who these people are, who they met with,
10 and where they came from, correct?
11 A. My testimony here is not about individuals.
12 Q. And so you don't know what this first paragraph refers to
13 in terms of who was meeting with whom, correct?
14 A. No, I don't know that, but what I know is, when I read
15 this, of the context that's being talked about.
16 Q. Do you have any idea whether Usama Bin Laden was involved
17 in these activities?
18 A. No.
19 Q. Let me ask you this: You mentioned that the group was
20 setting off explosions on the roadways since 1992, correct?
21 A. That's correct.
22 MR. DRATEL: Objection.
23 THE COURT: Overruled.
24 MR. DRATEL: Your Honor, just identify when he says
25 "the group" right after the last question.
4525
1 Q. You mentioned -- which group did you say set off
2 explosions in the roadways?
3 A. I said the reports of the Ethiopian government, not my
4 reports, say that there are people called Ittihad Islam. They
5 don't actually use the word "Islam," they use the word Ali
6 Ittihad, they're called fundamental Islams, who have done this
7 in Ethiopia. Others suggest that the Ogaden National
8 Liberation Front has done this.
9 Q. Did you hear about reports of them setting off explosions
10 in the cities?
11 A. I have heard that, yes.
12 Q. Did you see it in this report that's sitting before you,
13 Government Exhibit 310?
14 A. There was reference to that.
15 Q. So there were references to the explosions being in the
16 cities, not on the roads, correct?
17 A. In this report?
18 Q. Yes.
19 A. There was reference to the cities, but they also have
20 reference to the rural areas.
21 Q. Do you know a person by the name of Haroun?
22 A. No, I don't know.
23 Q. Do you know a person by the name of Saleh the Egyptian?
24 A. No, I don't.
25 Q. No one you interviewed in connection with your research?
4526
1 A. Repeat.
2 Q. You never interviewed anybody by the name of Haroun and
3 Saleh in connection with your research about Somalia, correct?
4 A. I interviewed neither. I worked with a person called
5 Haroun in Somalia during 1986. He worked for me as research
6 assistant in a place called Berber when I was doing research
7 on livestock experts. Also, Haroun is a relatively common
8 name, so which Haroun, I don't know.
9 Q. Do you know any Haroun from the Comoros Islands?
10 A. No, I don't.
11 MR. FITZGERALD: Thank you. Nothing further.
12 THE COURT: Any redirect?
13 MR. DRATEL: Just briefly, your Honor.
14 REDIRECT EXAMINATION
15 BY MR. DRATEL:
16 Q. Dr. Samatar, on cross-examination Mr. Fitzgerald asked you
17 about explosions or reports of explosions in the road
18 attributed to Ali Ittihad by the Ethiopian government.
19 MR. FITZGERALD: Objection to form.
20 Q. He asked you about explosions in the road, correct?
21 A. He did.
22 Q. Would it serve the Ethiopian government's purpose
23 politically to justify its invasion of Somalia to blame
24 Islamic organizations such as Ali Ittihad for any such
25 explosions?
4527
1 A. That's actually the official position of the Ethiopian
2 government.
3 Q. But would it serve their political, their political
4 purpose?
5 A. Yes, it would.
6 MR. DRATEL: Nothing further, your Honor.
7 MR. RICCO: Your Honor, may I have cross based on Mr.
8 Fitzgerald?
9 THE COURT: I'm just a little concerned about the
10 sequence here.
11 MR. RICCO: I just have a couple questions, your
12 Honor.
13 THE COURT: Very well.
14 RECROSS-EXAMINATION
15 BY MR. RICCO:
16 Q. Doctor?
17 A. Yes, sir.
18 Q. Mr. Fitzgerald asked you questions about particular
19 individuals?
20 A. That's correct.
21 Q. Is it fair to say that you don't know any of the men who
22 are charged in connection with this case?
23 A. I wouldn't know. That may be you, sir.
24 Q. Okay. And you were called as an expert witness, I take
25 it?
4528
1 A. I think so.
2 Q. And your opinion was based on your scholarship; isn't that
3 correct?
4 A. It's based on my scholarship and observations on the
5 ground.
6 MR. RICCO: Thank you very much, sir.
7 THE COURT: All right. Thank you.
8 Thank you, Doctor. You may step down.
9 We'll take our mid-afternoon recess.
10 (Witness excused)
11 (Jury not present)
12 THE COURT: What is the next order of business?
13 MR. SCHMIDT: The next order of business, we're going
14 to be playing a series of tape recordings of conversations
15 between agents named Joseph and/or William with Mr. El Hage
16 and his wife April Ray.
17 THE COURT: Very well. How long will that take?
18 MR. SCHMIDT: It certainly will take, my guess, with
19 everything working correctly, approximately an hour or so.
20 THE COURT: Is this ostrich pictures, is that
21 relevant?
22 MR. SCHMIDT: They're not the ostrich pictures.
23 THE COURT: All right. We'll take a five-minute
24 recess.
25 MR. FITZGERALD: Two items, your Honor. I will go
4529
1 through with Mr. Schmidt, I think he has identified the topic,
2 whether the calls are of the 403 objection on some of them at
3 the break.
4 The other comment I just wish to make on the record
5 is you requested the government, if they were caught off guard
6 by expert testimony, to put it on the record. On this witness
7 we didn't get any expert disclosure that he was going to talk
8 about Ethiopian military capability or the Ethiopia government
9 and we get put in a position where, in front of jury, we are
10 asking rank hearsay and in leading form about what someone
11 heard on BBC and we either have to sit here and let in hearsay
12 and eat up time or object in front of the jury, which I think
13 is unfortunate.
14 THE COURT: The criterion for an expert hearsay is
15 whether the reliance is on those things which experts in that
16 particular field traditionally rely upon, and an expert or an
17 observer even in Somalia might very well rely on BBC accounts
18 of what is going on because there's probably very little else.
19 MR. FITZGERALD: I agree with that, Judge, but in
20 this case we weren't given any expert disclosure that he was
21 going to speak to the military capability of the militia,
22 whether they need training or not. We get a geographer
23 allocution for expert testimony. Since we don't know what's
24 coming, we don't object to his qualifications, and then we're
25 off to him telling us who needs training, who doesn't, what
4530
1 the Kenyan view of --
2 THE COURT: If there had been an objection to the
3 question as to whether, in his opinion, there was a need for
4 outside training, I would have sustained the objection. There
5 was no objection to it.
6 MR. FITZGERALD: I don't think we should be put in
7 the position where we're not given adequate disclosure.
8 THE COURT: I can't quarrel with that.
9 We'll take a five-minute recess.
10 (Recess)
11 THE COURT: Mr. Submit, is there going to be a
12 witness on the stand?
13 MR. SCHMIDT: No, there's not.
14 THE COURT: No witness on the stand.
15 MR. FITZGERALD: Your Honor, I have some issues with
16 regard to the transcripts.
17 THE COURT: Yes.
18 MR. FITZGERALD: First, these transcripts are
19 conversations largely between Wadih El Hage and a U.S.
20 government person, or his wife and a U.S. government person.
21 There are actually two U.S. government persons they speak to
22 named Joseph and named William recorded on the wiretap.
23 First of all, they are obviously hearsay
24 conversations to the extent that Mr. El Hage is speaking. I
25 don't know if they are offered for the truth or the fact that
4531
1 words were said, but the entire set of conversations is Mr. El
2 Hage and his wife speaking to government agents and, in
3 particular, in two particular calls, Mr. El Hage in one,
4 indicates that the warrant used to search his residence was a
5 phony piece of paper, and on another occasion, Mrs. El Hage,
6 his wife, is talking about bugs and whether there are lawfully
7 used in the case.
8 And I think it's both hearsay and also, under 403,
9 greatly prejudicial to put in conversations where El Hage is
10 spouting his view that the warrant is phony. If they are
11 trying to establish that Wadih El Hage was in touch with the
12 government and told the government that he had traveled, then
13 we can stipulate to that. We certainly don't need to have
14 Mr. El Hage express his view of the Kenyan warrant or have
15 Mrs. El Hage ask questions about American law on tape. I
16 don't know how they will get it in as non-hearsay.
17 THE COURT: Mr. Schmidt.
18 MR. SCHMIDT: Your Honor, the purpose of the
19 conversations were not for the truth of the matter, which we
20 will not allege, it's for him complaining to the government
21 agents about these things, to show --
22 THE COURT: That is for the truth. It's not for the
23 truth, but to show that he was complaining.
24 MR. SCHMIDT: I'm not -- no, I'm not claiming that
25 the warrant was in fact invalid. I'm putting it in for the
4532
1 fact that Mr. El Hage is complaining to the agent that he
2 believed it's invalid. He is basically talk to the American
3 agents because he views the American agents as being on his
4 side and not the Kenyan authority's side. That's the only
5 reason. Not for the fact that -- if your Honor wants to give
6 a charge saying that's not evidence as to whether the --
7 whether it was valid or invalid, that's perfectly okay as
8 well.
9 THE COURT: Tell me again. Tell me affirmatively
10 what is the argument that you make to the jury based on these
11 transcripts.
12 MR. SCHMIDT: The ones that the government mentioned?
13 THE COURT: Yes.
14 MR. SCHMIDT: That Mr. El Hage had been in contact
15 with the government agents to obtain return of his property,
16 and he is complaining that he is having -- to the American
17 agents, he is seeking their assistance to get his property
18 back.
19 THE COURT: What date is this? What period of time
20 are we talking about?
21 MR. SCHMIDT: This is August and September of 1997.
22 THE COURT: And where is Mr. El Hage?
23 MR. SCHMIDT: In Nairobi. This is after he returns
24 to Nairobi. He's questioned by the agents. His home is
25 searched. They give them a copy of the -- Wadih gets a copy
4533
1 of the inventory, and there is, for the period of time from
2 then until he leaves, he is in regular contact with the
3 government agents.
4 THE COURT: And the significance of that is Mr. El
5 Hage's perception that this was an American operation?
6 MR. SCHMIDT: No.
7 THE COURT: The American rather than Kenyan
8 government?
9 MR. SCHMIDT: His perception that the people who can
10 help him are the Americans, not the Kenyans, and that he is --
11 THE COURT: And what follows from that?
12 MR. SCHMIDT: His perception of the Americans and him
13 being an American and the Americans on his side and is
14 consistent with innocent conduct, consciousness of innocence.
15 And he's maintaining contact with the agents on a regular
16 basis. He's not running from them, he's not using code, he's
17 not hiding from them, being open, available.
18 In a normal case, I would call the agents, your
19 Honor.
20 THE COURT: It would be the same issue whether you
21 call the agent. It is what would be the relevance, what the
22 basis for admission would be. And, what about it?
23 MR. SCHMIDT: Mr. El Hage is charged with being a
24 member in a nine-year worldwide conspiracy against the United
25 States.
4534
1 THE COURT: Yes.
2 MR. SCHMIDT: His first regular contact with
3 officials of the United States is in September of -- excuse
4 me, August of 1997. After his contact with the Americans, he
5 maintains close, personal and informational ties with them. I
6 think that's relevant. The government may not think it's
7 particularly relevant.
8 THE COURT: The question right now is whether I think
9 it's relevant, not what the government thinks or not what you
10 think.
11 And its relevance is to show that Mr. El Hage thought
12 that he had a relationship with the United States Government
13 which caused him to initiate calls with them and that that's
14 inconsistent with somebody who was in fact a hostage in the
15 United States?
16 MR. SCHMIDT: Your Honor, the government has brought
17 out in their testimony, both --
18 THE COURT: Is what I said wrong?
19 MR. SCHMIDT: In a general sense, in a general sense,
20 the government has brought out perjury in the Grand Jury, the
21 use of --
22 THE COURT: These are all arguments.
23 To contrast this with perjury in the Grand Jury, you
24 have to be asserting the truth of what he said to the agent,
25 but you are disclaiming that.
4535
1 MR. SCHMIDT: It's showing his willingness to deal
2 with the Americans, to inform them when he is traveling to the
3 United States, the difficulties he's having shows a
4 consciousness of innocence as opposed to a consciousness of
5 guilt. That, I think, is part of -- it also shows the
6 opposite side of the government's version of hostility to the
7 United States. Not the specific words that he is using, it is
8 the tone, the repeated contact with them, the regular contact
9 with them, his willingness to call them back, he's asking for
10 help.
11 THE COURT: Would it be fair to say that they are
12 being offered not for the truth but to evidence the fact that,
13 while in Nairobi, Mr. El Hage engaged in communications with
14 the American authorities, period? Would that be a fair --
15 MR. SCHMIDT: No, that's not near what --
16 THE COURT: You tell me, then.
17 MR. SCHMIDT: He communicated with American
18 authorities in a manner of cooperativeness, without fear,
19 asking for help.
20 THE COURT: I'm not going to summarize all that. In
21 the manner demonstrated --
22 MR. SCHMIDT: In the demonstrated by the tapes, yes.
23 THE COURT: All right, I'll allow it and tell the
24 jury it's for that limited purpose.
25 MR. FITZGERALD: Your Honor, under 403 we're now
4536
1 going to have, one, two, three, four, five, six, seven, eight,
2 nine, I believe ten transcripts read to the jury.
3 THE COURT: Let me see them.
4 MR. SCHMIDT: Your Honor, that's just simply not
5 true. I just went over with the government that we have pared
6 them down to at least now to seven, at the most, because six
7 is leading into another issue.
8 THE COURT: Tell me which is the first one you are
9 going to play.
10 MR. SCHMIDT: The first one is August 23, 1997.
11 THE COURT: August 23, 11:46?
12 MR. SCHMIDT: That's correct. It expresses--
13 THE COURT: I'm reading it.
14 (Pause)
15 THE COURT: And this shows, I'm now looking at W68-E,
16 August 23, this shows what was Mr. El Hage initiating this
17 meeting?
18 MR. SCHMIDT: It appears that it is Joseph asking if
19 he wants to speak with them, then making arrangements to meet.
20 I think that's the following day after he was initially
21 detained at the airport.
22 THE COURT: But do we know -- this doesn't tell us.
23 Do we know who initiated this?
24 MR. SCHMIDT: It's an incoming call from Joseph to
25 Wadih El Hage.
4537
1 THE COURT: Joseph says, "Okay, I wanted to know if
2 you wanted to talk today." Is there a request, do we know
3 whether the request to talk originated with El Hage or with
4 Joseph?
5 MR. SCHMIDT: I think the conversation basically
6 speaks for itself. It's actually a conversation from the day
7 before that I think put in that indicates a conversation
8 between one of the agents and Ms. Ray, which indicated that
9 they were going to try to talk the next day, but I have
10 selected this out of about 15 to 20 conversations between the
11 parties.
12 THE COURT: I'm just looking at the second one of
13 these tapes, August 26, and I think the government's objection
14 is well-taken. Discussion about the dog and so on.
15 MR. SCHMIDT: Your Honor, it's impossible to take
16 every little thing that really is important in a conversation
17 and take it out. The United States Government goes to Mr. El
18 Hage, all right? He's questioned at the airport. His home is
19 searched. He's told that they think he's working with
20 terrorists, and the reaction of Mr. El Hage is not running
21 from them, it's having conversations of this nature with the
22 government agents.
23 As is important that his conduct and conversations
24 that show a consciousness of guilt, these conversations show a
25 consciousness of "I have nothing to hide" with these people.
4538
1 That is the importance of it.
2 To eliminate these conversations with the government
3 agents is to eliminate what I believe is a very important part
4 of our case, is Mr. El Hage's conduct from the time he was
5 approached by the government in August of 1997 until his
6 arrest in 1998, including testifying two times in the Grand
7 Jury, not asking for an attorney. I think this is consistent
8 with his consciousness of innocence, and to eliminate these
9 conversations, your Honor, I obviously very strenuously
10 object.
11 (Pause)
12 MR. SCHMIDT: If I may just make a brief analogy,
13 your Honor.
14 THE COURT: Let me read them, please. You go on and
15 on about irrelevant things about --
16 MR. SCHMIDT: Maybe I can make an analogy that
17 perhaps your Honor may change his mind. If a police officer
18 approaches somebody and the person runs away, that is evidence
19 of consciousness of guilt.
20 THE COURT: I understand what --
21 MR. SCHMIDT: If he walks towards the police officer
22 to enter into a conversation with the police officer and not
23 run away, that shows consciousness of innocence. That's what
24 I'm trying to show by the few of these conversations.
25 THE COURT: First of all, you don't have a few, you
4539
1 have a great many, most of which are plane reservations and
2 what the time of leaving is and what the route is and so on.
3 MR. SCHMIDT: I was trying to skip over some of that,
4 but informing the government of the exact --
5 THE COURT: Give me a moment.
6 (Pause)
7 THE COURT: I proposes the following. I propose that
8 you play them, if you wish, and the jury be told as follows by
9 the Court: You are about to hear records of conversations had
10 between El Hage or his wife with a representative of the
11 United States. These conversations are not being offered or
12 received as evidence of the truth of anything said to the
13 agents or to the El Hages. They are being offered and are
14 being received solely to show that the El Hages were in
15 communication with representatives of the United States while
16 they were in Kenya, and to reflect the general tone and nature
17 of the conversations. They are being offered and received for
18 no other purpose.
19 MR. FITZGERALD: Your Honor, and if we are putting
20 them as they are, which includes some conversations about the
21 law of bugging etc., there's one conversation being left out
22 where Mrs. El Hage acknowledges that the U.S. government was
23 just trying to help them. I think that shows a completer
24 picture. I believe it's August 20.
25 THE COURT: You want to reply that?
4540
1 MR. FITZGERALD: Yes.
2 THE COURT: You may play that.
3 MR. SCHMIDT: I have no objection, your Honor.
4 THE COURT: Very well.
5 All right, let's bring in the jury. That's the next
6 order of business?
7 MR. FITZGERALD: Yes.
8 THE COURT: Mr. Schmidt, at what point do you think
9 El Hage will rest?
10 MR. SCHMIDT: I'm thinking, your Honor. It depends
11 how long the Odeh defense is tomorrow. I would --
12 THE COURT: I don't understand that.
13 MR. SCHMIDT: They were going to go tomorrow with
14 their witnesses.
15 MR. WILFORD: Your Honor, that's what we discussed
16 last week. We indicated that we would have a witness that
17 would be available tomorrow. We would be prepared to put our
18 entire case on tomorrow.
19 THE COURT: How much time, apart from the sequence,
20 about how many more hours do you anticipate?
21 MR. SCHMIDT: I would anticipate, other than today,
22 probably two and a half to three days.
23 THE COURT: What I'm really trying to find out is,
24 are we going to complete live tomorrow by Thursday on behalf
25 of all defendants?
4541
1 MR. COHN: It appears not.
2 THE COURT: It appears not.
3 MR. COHN: If he has two and a half more days --
4 THE COURT: Two and a half hours.
5 MR. SCHMIDT: No, days.
6 THE COURT: Two and a half days?
7 MR. SCHMIDT: Days, because I have a lot of documents
8 we're going to be putting in.
9 MR. COHN: I'm listening.
10 MR. SCHMIDT: Some of which we are going to read,
11 some of which we are going to flash, some of them we're not
12 going to be able to flash. We may have a couple more
13 witnesses, also.
14 THE COURT: The suggestion is that if we turn down
15 the microphone, that will improve the quality of the playing.
16 That will interfere with the interpreters, but there is the
17 printed text available.
18 Is that acceptable?
19 MR. SCHMIDT: Yes.
20 THE COURT: Is that acceptable to all defendants?
21 All right. I don't know how that gets done, but if you will
22 do that.
23 (Jury present)
24 THE COURT: Ladies and gentlemen, I'm advised that we
25 are about to hear records of conversations had between the
4542
1 defendant El Hage or his wife, April, with a representative of
2 the United States. These conversations are not being offered
3 or received in evidence as evidence of the truth of anything
4 said to the agents or said to either of the El Hages. They
5 are being offered and are being received solely to show that
6 the El Hages were in communication with representatives of the
7 United States while they were in Kenya, and to reflect the
8 general tone and nature of the conversations. They are being
9 offered and received for no other purpose.
10 Mr. Schmidt.
11 MR. SCHMIDT: Your Honor, I also ask that the English
12 transcriptions be published to the jury as they go.
13 THE COURT: Yes. You may proceed.
14 Why don't you offer in one fell swoop all of those
15 that you are going to play, and they are all subject to this
16 statement to the jury and will all be received in one fell
17 swoop, subject to the limitations just stated.
18 What exhibits are they?
19 MR. SCHMIDT: Your Honor, it's WEHX-W68E, a telephone
20 call --
21 THE COURT: Just 68. Do that later before each one
22 is played, just give the exhibits, 68E, 54 --
23 MR. SCHMIDT: Excuse me, it's W68, W54, W55, W56,
24 W49, W57 and W69, and before each one is WEHX for "Wadih El
25 Hage exhibit."
4543
1 THE COURT: Yes. Those two, four, six, seven, they
2 are received subject to the direction which I just stated to
3 the jury.
4 (Defendant El Hage Exhibits WEHX-W68, WEHX-W54,
5 WEHX-W55, WEHX-W56, WEHX-W49, WEHX-W57 and WEHX-W69 received
6 in evidence)
7 MR. SCHMIDT: The first one is August 23, 1997.
8 (Tape played)
9 MR. SCHMIDT: The next telephone conversation will be
10 September 11, 1997 at approximately 6:55.
11 (Tape played)
12 THE COURT: All right, ladies and gentlemen, we'll
13 take up at that point tomorrow.
14 MR. SCHMIDT: Can you remind the jury to shut these
15 off?
16 THE COURT: Yes, the jury is reminded to shut them
17 off.
18 I have something else to tell you, and that is this:
19 I have heretofore asked that you not read, watch, listen to or
20 discuss with anyone anything related to this case, and I know
21 you understand that and are complying with it.
22 I would now like to broaden that and ask you, to the
23 extent to which it is reasonably possible, that you avoid
24 reading, watching or listening to anything in connection with
25 the Timothy McVeigh case. The Timothy McVeigh case is going
4544
1 to receive a great deal of publicity in the next several
2 weeks, and I know it's going to be hard to avoid it, but I ask
3 that you make every effort just not to read or listen or watch
4 anything with respect to the Timothy McVeigh case.
5 Other than that, my only other comment is, have a
6 good evening.
7 (Jury excused)
8 THE COURT: We'll take a five-minute recess and then
9 we'll proceed with the charging conference. Whether or not
10 the defendants are present is a matter of their choice.
11 MR. COHN: We'll ask, your Honor --
12 THE COURT: The record should be clear they have a
13 right to be here if they wish.
14 MR. RUHNKE: Judge, my client wishes to be excused at
15 this charge conference.
16 MR. COHN: Mr. Al-'Owhali asks to be excused.
17 MR. SCHMIDT: Mr. El Hage is going to stay.
18 (Recess)
19 (In open court; jury not present)
20 THE COURT: All right. I have in front of me the
21 various submissions by the defendants with respect to the
22 second working draft as of April 19, 2001, 5 p.m. proposed
23 charge to the jury, which we'll mark as --
24 MR. COHN: Excuse me, your Honor, since
25 Mr. Al-'Owhali, I've just been advised that since
4545
1 Mr. Al-'Owhali is not allowed to go back because Mr. El Hage
2 is still here he wants to come back out, because he can't go
3 back to the --
4 THE COURT: So they all have to come back.
5 MR. COHN: I was just told that. I don't know that
6 for a fact.
7 THE COURT: I maintain the position that for
8 logistical reasons they all go back or they all stay, and I'm
9 not going to --
10 MR. COHN: I'm not suggesting that you interfere. I
11 just said he'd rather come out rather than sit in back and
12 stair at a brick wall.
13 THE COURT: It makes sense. I have no problem with
14 that.
15 We'll mark as Court Exhibit A of April 23rd, and as I
16 indicated during the course of the day I plan to go over each
17 objection, page by page, but I'd like to first begin with some
18 general rulings.
19 (Court Exhibit A marked)
20 The motion to dismiss the last count for a lack of
21 venue is granted for reasons which I will elaborate in an
22 opinion to follow, the substance of which is I do not find
23 that to be a continuous offense. It's an offense completed
24 when the false statement is uttered regardless of its impact.
25 Indeed, as counsel for El Hage notes in the prior submission
4546
1 the jury is specifically told that the impact of the false
2 statement is irrelevant, and that the cases on which the
3 government relies in which there is a transmission of a false
4 statement and which permits venue to be either in the place of
5 origin or place of impact are distinguishable.
6 The government has requested that the Court revisit
7 the Pinkerton issue with respect to Count Five of the
8 indictment, and with respect to the defendant Odeh on the
9 grounds that Count Five of the indictment has the specificity
10 between the nature of the conspiracy and the substantive
11 offense, the lack of which caused the Court to indicate that
12 it would not grant the Pinkerton charge with respect to the
13 other count.
14 The problem with that is Count Five has three
15 separate objects and does not in fact contain the degree of
16 specificity which the government asserts. Conceivably one
17 could say if you have found with respect to Count Five -- I'm
18 using original numbers throughout -- if you have found that an
19 object of the conspiracy was to bomb the embassy in Nairobi,
20 then you may find, but that really requires a limitation of
21 what Count Five is about, or may also raise the question in
22 the jury's mind why that applies only to that one count and
23 one defendant. The Court adheres to its prior ruling not to
24 give a Pinkerton charge.
25 While on this subject, you will note the special
4547
1 verdict form, which is a critical document, certainly at least
2 as important as the charge itself, the jury is asked to
3 indicate where multiple objects to the conspiracy which
4 objects it has found. I worried a long time about this. The
5 concern that I have of course is the jury, having found one
6 may spend a great deal of time debating or trying to reach
7 unanimity with other objects of the of the conspiracy count.
8 My inclination is, it's worth the time, although in one
9 instance I think there are five objects of a conspiracy, but
10 if anyone thinks that's not worth doing, I'm ambivalent on
11 that point.
12 I think also it may be helpful with respect to those
13 defendants who may be subject to a death penalty phase to have
14 that added insight into the jury's reasoning and finding.
15 Does anybody think that we should not require the
16 jury to indicate which objects of a conspiracy it found,
17 although it has unanimously found one object, then I would
18 like to be so advised.
19 Silence. We'll leave it the way it is.
20 Let me make one other general observation. The
21 structure of the indictment is the conspiracy, the agreement
22 to do among other things, let's say X, the doing of X, the
23 attempt to do X, the aiding and abetting in the doing of X,
24 and the causing of another to do X. I'd like to focus on the
25 role of the attempt charge.
4548
1 Now, with respect to killing of individuals, I see
2 that, the testimony is that there is a particular desire to
3 kill Ambassador Bushnell. The agenda would make that the
4 subject of greater attention. So there is an attempt to kill
5 her, and not the actual killing of her, and, therefore, I
6 think with respect to the killing count, it's appropriate to
7 have both a substantive, the killing, the actual killing and
8 the count which talks about attempt to kill, making clear to
9 the jury, as I believe the proposed instructions do, that the
10 jury cannot consider the same people. You can't consider an
11 attempt to murder somebody who in the previous count you have
12 found to in fact have been murdered.
13 But I have difficulty understanding what the role of
14 an attempt is with respect to the other count. My
15 understanding of an attempt is when there has not been a
16 consummation. An attempt to kill the prison guard is an
17 attempt, but what is the role of an attempt with use of
18 weapons of mass destruction --
19 MR. FITZGERALD: Your Honor, I could save you time.
20 THE COURT: Yes.
21 MR. FITZGERALD: We have debated it back and forth
22 and now we're back over the edge. We'll drop the attempt
23 counts beyond the attempted murder of Ambassador Bushnell.
24 Beyond the attempted murder of Ambassador Bushnell we would
25 drop the other attempt counts.
4549
1 THE COURT: Nine goes out.
2 MR. FITZGERALD: Not the counts, I'm sorry. The
3 counts that talk about murder and attempted murder in the
4 conjunctive we will specify that at the break if you want
5 which counts there are. We would not proceed on the attempt
6 language. We're keeping the count for murder.
7 THE COURT: I don't see what you just said.
8 MR. FITZGERALD: The use and attempted use count in.
9 Count Nine we would not proceed on the attempted
10 use.
11 THE COURT: You're keeping the count but you're
12 striking the attempted use. Okay. Use of weapons. I
13 understand. Very good.
14 Now, the government objects to the requirement that
15 in the special verdict form the jury has to be unanimous as to
16 whether they find the defendant guilty as a principal or as an
17 aider and abettor, and I am not prepared to resolve that
18 question. I have not had an opportunity to read these papers.
19 I don't recall ever requiring a special verdict on whether the
20 jury has to be unanimous in finding defendant guilty as a
21 principal or as an aider or abettor, and I am going to defer
22 on that.
23 If the defendants are of the view that the Court
24 should retain the present language requiring a special verdict
25 as to the alternate theory of aiding and abetting or causing,
4550
1 then I would like to be so advised, and I would like to have a
2 written submission on behalf of the defendants by Thursday
3 morning.
4 MR. COHN: Excuse me, which morning, Thursday?
5 THE COURT: Thursday morning.
6 MR. COHN: Thank you, your Honor.
7 THE COURT: Having said all of which, I am going to
8 just go page by page and going to rely on counsel to tell me
9 where there is an issue or a point to be made. What's the
10 first page -- I'm going to have a table of contents, but tell
11 the jury not to pay any attention to the captions. There are
12 cases where the parties litigate the meaning of captions, and
13 simply add, on the top of page 2 on line 2 the phrase, and the
14 captions are simply as a reference and have no other
15 significance.
16 On page 3, middle paragraph line 2, during the trial
17 you insert, may have heard. Three lines from the bottom on
18 page 3, strike the word, struck, and substitute, be stricken.
19 What's the first page on which somebody has a comment
20 or objection?
21 MR. COHN: I have something on 35 unless somebody has
22 something else.
23 THE COURT: On page 35.
24 MR. COHN: May do I this sitting down, your Honor?
25 THE COURT: Yes. You may even take off your jackets
4551
1 if you like. This would normally be down in the robing room.
2 MR. COHN: There is a limit to how much I'll burden
3 the Court with unsightliness.
4 THE COURT: Now, with respect to the conduct of
5 counsel, I put in the bracket and say, if used. Is there
6 anybody who does not want that paragraph? We raised this at
7 the beginning of the trial and there was not unanimity. Do
8 counsel want this in or out?
9 MR. COHN: I want it, but I would like it amended to,
10 in fact, you know the jury has seen a number of us spend the
11 time talking to the government as well, and so what I really
12 wanted was conduct of cooperation of all counsel rather than
13 leave it just with the defendants. I don't know how my
14 colleague on the defense side feel about that.
15 MR. DRATEL: That's fine with us, your Honor, but we
16 also request the instruction be given.
17 THE COURT: The first sentence, divided the work.
18 That relates only to the --
19 MR. COHN: I'm not sure they know we divided the work
20 if you really must know. I mean they've seen us consult.
21 They've seen us pass notes to each other, but I don't know
22 that they know on legal issues we've divided the work, but I
23 don't know that we've done it on factual issues particularly.
24 THE COURT: You propose that that language be
25 retained.
4552
1 MR. COHN: No, I would say, and have divided the
2 work -- well, I did propose it. I didn't think of it in that
3 context.
4 THE COURT: You know what, I'd better mark Court
5 Exhibit B of today's date is Al-'Owhali's proposed changes.
6 Court Exhibit C is the government's letter of April 20th.
7 Court Exhibit D is Mr. Dratel's letter of April 20th. Am I
8 missing anyone?
9 (Court Exhibits B through D marked)
10 MR. DRATEL: Your Honor, my letter is on behalf of
11 both El Hage and Odeh.
12 THE COURT: That's Court Exhibit D is on behalf of
13 those. Mr. Odeh I think submitted something only with respect
14 to the Pinkerton charge and I have ruled on that.
15 I'll strike, and has divided. I have also noted
16 throughout the trial counsel for various defendants have
17 consulted with each other. Strike, and have divided the work
18 of the trial, and leave in an effort to facilitate their
19 presentation and to avoid duplication.
20 MR. COHN: You are not going to accept the language
21 that we've consulted with the government as well?
22 THE COURT: No, I am going to put that in. I can't
23 put that in the first sentence. Have consulted with each
24 other. I can put that in the first sentence. Have consulted
25 with each other and with the government? Anybody object to my
4553
1 saying that?
2 MR. FITZGERALD: No, your Honor. I just think it's
3 very odd. It looks like I don't think anyone is going to
4 think there is something wrong with cooperating. The fact
5 that they're coordinating, you may want to instruct the jury,
6 but I don't see why it look like we're cooperating with the
7 defense. I think --
8 MR. COHN: It doesn't say you cooperated with us. It
9 says we cooperated with you.
10 THE COURT: With each other. We're going too long to
11 have that type of humor.
12 MR. FITZGERALD: It might make sense just to put the
13 cooperation with the government at the end of paragraph.
14 THE COURT: Yes, I'm coming to that conclusion. How
15 about share the burdens of defense? Is that all right? Last
16 phrase?
17 MR. COHN: Sure.
18 THE COURT: And cooperated with the government
19 without --
20 MR. FITZGERALD: I might suggest --
21 THE COURT: Without -- when this did not -- where
22 possible. Just, where possible. That it would be unusual and
23 waste of time and effort if counsel did not share the burden
24 of the defense and cooperated with the government where
25 possible. Is that agreeable to everyone?
4554
1 MR. COHN: Yes.
2 THE COURT: Next page after page 5?
3 MR. COHN: Next one I have is 10.
4 THE COURT: Before we get to that, I'm reminded
5 Counts Seven and Eight also have attempt language in addition
6 to counts Nine and Ten.
7 MR. FITZGERALD: Yes, Judge, we'll treat Counts Seven
8 Eight and Nine the same, and Ten.
9 THE COURT: Now we're on --
10 MR. COHN: On page 10 I am requesting a charge of
11 failure to testify. I am requesting a charge that the
12 defendant's right not to testify --
13 THE COURT: You want --
14 MR. COHN: I am asking for it. Again, I don't speak
15 for my colleague.
16 THE COURT: Does anybody not want it in? We don't
17 have to decide that now.
18 MR. DRATEL: Your Honor, just from page 8, we
19 skipped.
20 THE COURT: Page 8. Yes.
21 MR. DRATEL: Persons not on trial, number 2 in my
22 letter, second to last line, defendant was not named as a
23 defendant in this case, or I would just add, whether or not
24 named as a defendant in the indictment was not tried with the
25 defendant.
4555
1 THE COURT: Any objection?
2 MR. FITZGERALD: No strong objection.
3 THE COURT: Whether or not named as a defendant in
4 the indictment.
5 With respect to the indictment and the long list of
6 names and aliases with respect to defendants not on trial, is
7 there some way we can simplify that or make it clearer to the
8 defendants? Delete them entirely? Delete them entirely, may
9 have to delete many of them.
10 MR. FITZGERALD: You might be able to. We'll take a
11 look at that, Judge, and we can certainly bold face.
12 THE COURT: Underline or do something so you can more
13 readily identify who are the defendants in a particular case.
14 On page 9, second paragraph under publicity, third
15 line, strike, or the Internet, and substitute, elsewhere. I
16 didn't want to suggest to the jury some other place where they
17 could find out about what's going on here.
18 Next page?
19 MR. COHN: I have something on 12, your Honor, if
20 nobody has anything before that.
21 THE COURT: On page 12.
22 MR. COHN: Actually it starts on page 12. Use of
23 particular investigative techniques.
24 THE COURT: Yes.
25 MR. COHN: I object to the use just instructed that
4556
1 law enforcement techniques are not their concern. In fact,
2 they can be their concern under certain circumstances and I
3 just don't know that that's necessary language.
4 MS. BABCOCK: We join that objection, your Honor, and
5 that's mentioned in the letter that we jointly submitted with
6 El Hage. I think that language what the Court does earlier in
7 that the jury can consider investigative techniques in
8 considering whether the government's met further proof. I
9 think it reached too broadly. It is communicated adequately
10 in the previous sentence which says as a legal requirement
11 that the government use any specific investigative technique
12 to prove its case.
13 THE COURT: I have no problem striking that sentence,
14 although it offends tradition, I don't think I have not used
15 that sentence, but I don't know it really adds anything.
16 MR. FITZGERALD: Judge, I would not that we say I
17 think three times it's whether or not the case has been proved
18 by whatever techniques and we can just reinforces the issues
19 not the techniques use, but whether the result gives prove
20 beyond a reasonable doubt or not.
21 MR. COHN: The problem is, your Honor --
22 THE COURT: The issue is clearly drawn. Give me a
23 moment. I don't think there is any need.
24 Change it to read, the use of specific law
25 enforcement techniques or the failure to use them are not your
4557
1 concern. Your concern is to determine whether or not.
2 Next.
3 MR. FITZGERALD: The government has something on 16.
4 MR. DRATEL: Your Honor, I have something on 13
5 before that, direct and circumstantial evidence. We would
6 prefer something that would give the jury an example of a weak
7 circumstantial inference. That was just the virtue of the
8 example that Judge Leval used and the one that we cited.
9 THE COURT: Now, you know, there was one judge who
10 got tired of the wet umbrella, analogy so he had some other
11 analogy, and the Court of Appeals reversed, and said, you know
12 I don't understand why people don't stick to the tried and
13 true. I know Judge Leval changes the rain to snow, but --
14 MR. DRATEL: Also the subway platform one, that I'm
15 talking about with that.
16 THE COURT: Let's not. This is classic, well-proved
17 language, and it's perfectly clear and I see no reason to
18 change it.
19 MR. COHN: In that same charge I have asked for a
20 charge that where two inferences --
21 THE COURT: Yes, and there is law that's
22 inappropriate.
23 MR. COHN: I can still ask.
24 THE COURT: Recent case. The Judge said he was going
25 to do it. He then consulted leaving Friday on a subject,
4558
1 which I don't identify, then did not give it and the objection
2 was that he had not charged it in the way he had indicated in
3 the charging conference that he was going to give it.
4 MR. DRATEL: Just in terms of procedurally, your
5 Honor, could I restate our objection, for example, if we raise
6 and objection, the Court denies it, should we then restate it
7 or is it preserved by the denial we restate our objection to
8 the circumstantial evidence?
9 THE COURT: You don't need to say, I object.
10 MR. DRATEL: Thank you.
11 THE COURT: Next item?
12 MR. COHN: Your Honor, before we get to 16, your
13 Honor, on page 15 where you deal exceedingly briefly with
14 voluntariness, having collapsed it into near invisibility
15 and --
16 THE COURT: You want the words, if any, after, what
17 weight? Yes.
18 MR. COHN: Yes.
19 THE COURT: I have no problem with that. The next
20 thing is page 18.
21 MR. FITZGERALD: Page 16. The fifth line from the
22 top. My suggestion is that after we say, nor can any such
23 false exculpatory statement, put the words, alone establish,
24 or, alone be sufficient for an inference to be drawn that the
25 defendant knew of and intentionally joined in the conspiracies
4559
1 charged.
2 THE COURT: Any objection? I'll add a line after at
3 the end of the fourth line on page 16. I'm up to 18.
4 MR. FITZGERALD: Judge, we object to the first two
5 paragraphs indicating that the government witnesses had anger
6 toward the defendant, and I don't think that's borne out that
7 the government witnesses had anger or hostility toward the
8 defendants and certainly if we're going to talk about anger or
9 hostility, we should just make it neutral, any witness having
10 any hostility toward any party. I think it singles out the
11 government witnesses for impeachment.
12 MR. DRATEL: Your Honor, that's not true. With
13 respect to al Fadl who expressed a resentment of people who
14 make more money than him which included Mr. El Hage, and he
15 also had --
16 THE COURT: Strike government from the second
17 sentence, which some witnesses may have toward one or more of
18 the defendants.
19 MR. FITZGERALD: Judge, anger, hostility towards
20 Mr. El Hage in this courtroom over the pay dispute? I think
21 there may be people who had anger toward al Qaeda or toward
22 the bombing, but why are we singling out that no witness had a
23 hostility toward a party?
24 THE COURT: I don't recall. Was this requested or
25 did this come from the Court sua sponte?
4560
1 Sua sponte.
2 (Pause)
3 The change is to read: In connection with your
4 evaluation of the credibility of the witnesses you should
5 specifically consider evidence of resentment or anger on the
6 part of any witness if you find this to be the case. Evidence
7 that a witness is biased, prejudiced or hostile -- strike,
8 towards the defendant, requires you to view that witness'
9 testimony. And then continued. So it's completely neutral.
10 Next?
11 MR. COHN: Your Honor, in accomplice testimony at the
12 starting at the bottom of --
13 THE COURT: Yes.
14 MR. COHN: I think that you have neglected, although
15 I think it's implied, that they can reject the entire
16 testimony or accept any part of it.
17 THE COURT: I have that someplace.
18 MR. COHN: It's not there.
19 THE COURT: I don't --
20 MR. COHN: I mean imply that by saying you should
21 reject, and then you go on to say that.
22 THE COURT: Next paragraph. On page 20, as with any
23 witness let me emphasize that the issue of credibility need
24 not be decided in and all or nothing fashion.
25 MR. COHN: Yes.
4561
1 THE COURT: Even if you find the witness testified
2 falsely.
3 MR. COHN: You never make specific that it's their
4 right to reject it in its entirety, and it is their right.
5 MR. FITZGERALD: Which is said elsewhere.
6 THE COURT: I think it's covered on page 20.
7 MR. FITZGERALD: The next objection the government
8 had was on page 20.
9 THE COURT: Yes.
10 MR. FITZGERALD: At the top of page 20 the standard
11 language that a jury is told to look at an accomplice and to
12 determine whether his motive is to testify truthfully or
13 falsely is for them to determine. And then at the bottom of
14 page 20 we have a second charge on cooperating witnesses,
15 somehow distinguished from accomplice witnesses, where the
16 jury is instructed that cooperating witnesses have a motive to
17 testify falsely.
18 That I believe is on the top of page 21 it says: A
19 witness who realizes that he may be able to obtain his own
20 freedom, et cetera has a motive to testify falsely. I think
21 the entire paragraph going from 20 on to 21 and the next two
22 paragraphs is unnecessary in light of the standard charge of
23 accomplice witnesses.
24 THE COURT: Why isn't that true? There is no point
25 in, there are no cooperating witnesses who were called other
4562
1 than accomplices.
2 MR. DRATEL: There are, your Honor. There were for
3 example Ashef Juma. There are certain, the one that comes to
4 my mind right now. There may be others. I don't remember.
5 But who have protection agreements with the United States
6 brought them over, brought 17 members of his family over but
7 he's not an accomplice and a Ashef Juma he's the one I know
8 just off the top of my head.
9 MR. FITZGERALD: Your Honor, also it describes a
10 cooperative witnesses that the agreement not to further
11 prosecute. You can merge, if there is a distinction from
12 accomplice witnesses to witnesses receiving benefits they can
13 be merged into one section. I don't think we should single
14 them out twice and particularly the way the cooperating
15 witness section reads it indicates that all motives are to
16 testify falsely. Cooperative witness section talk about
17 people pleading guilty with cooperation agreements which does
18 not employ to either of the Jumas.
19 THE COURT: I think that's a valid point. I think
20 what I ought to do is to simply say, cooperating witnesses
21 called by the government, that the previous instruction given
22 with respect to accomplices and judging their credibility
23 applies as well to any cooperating witnesses called by the
24 government who may receive some benefit such as, and then pick
25 up the bottom of page 20.
4563
1 MS. BABCOCK: Judge, we would object to removing the
2 cooperating witness instruction because we also, like counsel
3 for El Hage, believe there is a distinction to be drawn
4 between accomplices and witnesses who are cooperating. In
5 fact --
6 THE COURT: I'm keeping it a separate instruction.
7 The test is really the same with respect to both, and --
8 MS. BABCOCK: Well, the test is not really the same
9 because cooperating witnesses receive a greater incentive and
10 have a great motive to testify falsely.
11 THE COURT: That's right. That's what we tell them
12 with respect to in the accomplice provision.
13 MS. BABCOCK: My co-counsel reminds me there were at
14 least two witnesses who were cooperating witnesses, but not
15 accomplices.
16 THE COURT: All right.
17 MS. BABCOCK: Ashef Juma and a Ashef Sekander.
18 THE COURT: Suppose we said, cooperating witnesses
19 called by the government on a related note let me say a few
20 words about the agreements between the government and certain
21 of its witnesses other than accomplices and then keep what's
22 at the bottom of page 20.
23 MR. FITZGERALD: Your Honor, there is no agreement
24 not to further prosecute for people to plead guilty. The
25 second sentence of that does not apply to the Juves, one of
4564
1 whom in fact was a defense witness.
2 THE COURT: Strike that sentence.
3 MS. BABCOCK: Your Honor, that language about the
4 government bringing the witnesses cooperation --
5 THE COURT: Give me a moment, please.
6 (Pause)
7 THE COURT: Suppose we say, on a related note, let me
8 say a few words about the agreements between the government
9 and certain of its witnesses other than accomplices. Strike
10 the next two sentences.
11 Some of these witnesses have been placed in federal
12 protective custody and some have received money in connection
13 with their protective custodial status, and. Then go down to
14 three lines from the bottom. Strike, therefore, you must
15 examine the testimony of such a witness with caution and weigh
16 it with great care if -- and then leave it the way it is.
17 MS. BABCOCK: Judge, we would ask the Court to keep
18 in the sentence that says the government also promised to
19 bring those witnesses' cooperation to the attention of the
20 Court that is sentencing them.
21 THE COURT: That only applies to the accomplice.
22 That doesn't apply here. That's the point.
23 MS. BABCOCK: It's not in the accomplice instruction.
24 THE COURT: Yes, it is. It isn't?
25 MR. DRATEL: Your Honor, all the parts that have to
4565
1 do with that should be reincorporated back into the prior
2 structure. Also, witnesses realize they may be able to --
3 THE COURT: I see what the problem is. Okay.
4 MR. FITZGERALD: Judge, should we balance it? That
5 there is also a agreement that not only says that the
6 government will bring the cooperation to the attention of the
7 government.
8 THE COURT: You should ask yourselves whether
9 so-called accomplices benefit more by lying than by telling
10 the truth. What we have to do is we have to take what I've
11 just stricken from cooperating witnesses called by the
12 government who are not accomplices and move it into the
13 preceding paragraph. We will do that.
14 MR. FITZGERALD: And without, Judge, the language
15 that was stricken on page 21 indicated that such witnesses had
16 a motive to testify falsely.
17 THE COURT: I'm striking that.
18 MR. FITZGERALD: Okay, great. Thank you.
19 THE COURT: Let me do it. Let me take the time.
20 Page 20, under cooperating witnesses called by the
21 government, the second and third sentence gets inserted on
22 page 19 as a second full paragraph. Otherwise, that remains
23 the same.
24 Cooperating witnesses called by the government then
25 reads: On a related note, let me say a few words about the
4566
1 agreements between certain of the government witnesses other
2 than accomplices.
3 We delete the next two sentences because we move them
4 to page 19, and we strike the first paragraph on page 21 and
5 the first two sentences of the second paragraph on page 21.
6 We strike the word, therefore, and begin, examine that
7 testimony of such a witness with caution and weigh it with
8 great care. After scrutinizing such testimony if you decide
9 to accept it, you may give it what weight, if any, you find it
10 deserves. Next.
11 MR. COHN: Your Honor, it's not on the page because
12 you took it out, but I don't know why you took out government
13 witnesses, took out of the second draft quote government
14 witness improper to consider guilty plea as it existed in the
15 first draft, and I think it ought to be put back in.
16 MR. FITZGERALD: It's still there.
17 MR. COHN: Is it?
18 MR. FITZGERALD: Page 21. In fact, we suggest one
19 change to it. The bottom of page 21 in the second draft talks
20 about how it's improper to consider a guilty plea, with which
21 we obviously agree. The only question the government suggests
22 that the third line from the bottom that we strike in light of
23 the benefits afforded by the government to a cooperating
24 witness that the only issue to tell them the plea is not their
25 concern.
4567
1 MR. COHN: In the words of Emily Latella: Never
2 mind.
3 MS. BABCOCK: Your Honor, we would like that language
4 to remain in there. We think that there is a real danger that
5 the jury goes to be drawing comparisons between those
6 witnesses who pled guilty under similar circumstances, and I
7 think to say that it's simply a personal decision concerning
8 his dealings is sufficient.
9 THE COURT: I'll leave it in. Next page?
10 MR. COHN: 26, your Honor.
11 MR. HERMAN: Judge, can we go back to page 21? We're
12 confused when the Court struck the first paragraph.
13 THE COURT: Why the Court struck the first paragraph
14 on page 21?
15 MR. HERMAN: Yes, sir.
16 THE COURT: I'm sure the government would object to
17 being put in.
18 MR. FITZGERALD: You can put it back in, that's fine.
19 THE COURT: We'll put it back in.
20 MS. BABCOCK: Would it be possible just to read the
21 instruction?
22 THE COURT: Yes. On page 19 I'm going to insert the
23 second and third sentences under the caption, cooperating
24 witnesses called by the government on page 20.
25 The section called cooperating witnesses called by
4568
1 the government will then read: On a related note, let me say
2 a few words about agreements between the government and
3 certain of its witnesses other than accomplices. Then it
4 should read: Now the government is permitted to enter into
5 agreements of this sort.
6 MR. FITZGERALD: I think you omitted the prior
7 sentence, Judge. I'm sorry, the last sentence on page 20 was
8 staying. Some of these witnesses --
9 THE COURT: Yes, that's in there. That's in there.
10 The government is permitted to enter into agreements of this
11 sort. You in turn may accept the testimony of such a witness
12 and convict each of them on the basis of his testimony alone
13 if it convinces you a defendant's guilty beyond a reasonable
14 doubt. Then we go down to, you must examine the testimony of
15 such a witness with caution and weigh it with great care. And
16 then last sentence remains the same. Next.
17 MR. FITZGERALD: Page 23, Judge.
18 THE COURT: Page 23.
19 MR. WILFORD: I'm sorry, your Honor, with respect to
20 witnesses who have entered into cooperation agreements the
21 language that you have in page 21, while realizing that the
22 witness may, I think it's important for the jury to consider
23 that.
24 THE COURT: 21?
25 MR. WILFORD: Second paragraph on 21 which begins
4569
1 with, however. I understand you don't want it included in
2 this particular section. However, it's important that the
3 jury have an opportunity to consider the cooperation agreement
4 and the motive of the witnesses who have entered the
5 cooperation agreement. It's not anywhere else.
6 THE COURT: It's in 19.
7 MR. WILFORD: It's in 19?
8 THE COURT: Yes, the last two lines.
9 MR. DRATEL: Your Honor is putting it back in the
10 accomplice testimony part is my understanding, because it
11 wasn't in the original.
12 MR. FITZGERALD: The bottom of 19.
13 THE COURT: Enough of this. We'll give you another
14 draft. I think we all know what is intended. Let's move on.
15 MR. FITZGERALD: Your Honor, page 23. The last
16 paragraph singles out to endorse an attack by defense counsel
17 and the legitimacy of the law enforcement witness I don't
18 think that's necessary in light of the prior paragraph. Quite
19 legitimate for defense counsel to try to attack the
20 credibility of a law enforcement witness.
21 THE COURT: Also you know the foundations of the
22 courthouse would shake if that were not included in the
23 charge.
24 MR. COHN: On 24, your Honor, the government objects
25 to the missing witness charge, and I think that in the second
4570
1 paragraph --
2 THE COURT: That's a question. First of all, is
3 anybody going to argue missing witness?
4 MR. COHN: I am.
5 THE COURT: Who is the missing witness?
6 MR. COHN: Missing witnesses are Kenyan police
7 authorities to testify to the conditions of confinement.
8 MR. FITZGERALD: He didn't seek to produce them. He
9 didn't seek a letter rogatory to go to Kenya to bring them
10 over here.
11 MR. COHN: Your Honor, we couldn't even get the names
12 of the Kenyan witnesses when we tried. The government had
13 control of these witnesses and their identity. It's their
14 obligation to show the conditions of confinement, and the fact
15 that they didn't can be argued to the jury.
16 MR. FITZGERALD: They could have sent a letter
17 rogatory to Kenya saying please produce whatever witnesses
18 were present for prison conditions.
19 THE COURT: What is your objection to it?
20 MR. COHN: In the second paragraph, your Honor, you
21 restated what you said in the first paragraph, and instead of
22 the word, could, you used, would, which means makes the jury
23 project. And new testimony is not exactly material testimony,
24 but I would just leave out the word, new. So I would, on the
25 second sentence of the second paragraph replace the word,
4571
1 would, with, could, which I think is fair, and strike the word
2 new.
3 THE COURT: Strike what word.
4 MR. COHN: New like in N-E-W, like in recent or
5 something different, a different subject matter. I think it
6 implies too much.
7 THE COURT: Oh, no. New testimony is just
8 concatenation of a whole long paragraph which usually says
9 bear in mind, however, that the government has no obligation
10 to call any witnesses whose testimony would merely be
11 duplicative of the prior testimony. So we cut all that out
12 and put in new. You'd rather have --
13 MR. COHN: It's hardly a place I'm going to draw a
14 battle line, your Honor.
15 THE COURT: I think you're well advised. I'm going
16 to leave it in, and I'm going to put, may, after, you. You
17 may have heard. It shouldn't be evidence. You may have heard
18 arguments.
19 MR. COHN: Yes, that's right, your Honor.
20 THE COURT: You may have heard argument about a
21 witness who has not -- about witnesses.
22 MR. COHN: Yes.
23 THE COURT: About witnesses who have not been called.
24 The defendants argue that these witnesses, and then if you
25 find that any uncalled witness.
4572
1 MR. COHN: And, could have given, instead of would
2 have given? We have no idea what they would have done. I
3 mean I think that's fair to everybody.
4 MR. FITZGERALD: I think I know Mr. Dratel wants to
5 speak. Your Honor, I would ask that this be balanced by an
6 instruction that the defendants have no burden of proof, but
7 they have been given subpoena power and they do have the power
8 to seek letters rogatory. I think the jury should understand
9 that it's not just the government that can produce witnesses.
10 MR. COHN: In the history of this case, Judge, we
11 have been asking since last August for identification of
12 witnesses. Letters rogatory require that we be able to
13 identify people. We have been denied access to that. It's
14 clearly the government's --
15 THE COURT: You may consider whether witnesses
16 testimony would have merely repeated other testimony and
17 evidence already before you. All right. To change a, would,
18 to a, could, that's a nuance that I'll change the, would, to
19 the, could.
20 MR. COHN: The jury may say to themselves that --
21 THE COURT: I've granted your request. Let's move
22 on.
23 MR. DRATEL: With respect to missing witness and
24 identification, but I just make it clear that we made a formal
25 request of Ali Mohamed's attorney.
4573
1 THE COURT: I put it in. I put it in. Let's not
2 argue discovery now. I'm leaving it in. Next?
3 MR. DRATEL: 26, 24 from the government. 26, your
4 Honor, recording and transcripts.
5 THE COURT: Exhibit X on top of page 25 contains a
6 list of all the stipulations which have been entered into in
7 the case. I hope there will be such an exhibit.
8 MR. FITZGERALD: Yes, Judge, we handed out the drafts
9 last week. We're just waiting to see.
10 MR. COHN: Your Honor, there is one issue that sort
11 of comes up collaterally with that, and while they're not
12 charged in the case, there probably will be on summations
13 things like power point presentations, which obviously will be
14 previewed to the Court, but I'm not sure they come within
15 charts and summaries.
16 In addition to all of it, we're probably going to
17 present things by way of electronic blackboard and things
18 which are illustrative on argument, but are not really charts
19 that have been admitted in the case.
20 THE COURT: Page 7, certain materials displayed
21 during the trial is not evidence.
22 MR. COHN: I guess during the trial, summation as
23 well. Okay. Thank you.
24 THE COURT: Next.
25 MR. DRATEL: Your Honor, recording of transcripts,
4574
1 page 26. It's also number 6 I believe in my letter. Yes,
2 just to add the sentence which the Court has in many other
3 instances it says quote, like any other evidence the
4 recordings of transcripts should be given such weight as they
5 deserve in light of all the facts and circumstances. I just
6 ask that that be added and put it on equal footing or not more
7 equal footing than anything else.
8 THE COURT: This is your item 6?
9 MR. DRATEL: Yes, your Honor. The quoted portion at
10 the end.
11 MR. FITZGERALD: It seems to say that already in
12 paragraph 1 of 26, the last sentence.
13 THE COURT: You must therefore regard give this
14 evidence equal consideration along with all the other evidence
15 in the case.
16 MR. DRATEL: I don't think that's a correct statement
17 because they don't have to give it equal consideration. They
18 should give it whatever weight they think it deserves. They
19 don't have to give it equal consideration because you're sort
20 of putting tapes above everything else. You say you have
21 everything else that you give the weight it deserves, but
22 tapes you have to give equal consideration to everything else
23 and I think it's over emphasizing the importance of tapes.
24 THE COURT: Where do you want this to go, this
25 language?
4575
1 MR. DRATEL: I think at the end of the first
2 paragraph or at the end of the third paragraph, either way.
3 THE COURT: You want something more than give this
4 evidence equal consideration along with all the other evidence
5 in the case?
6 MR. DRATEL: To me when I read it the reason I put
7 that in when I read it, it's to be overemphasized.
8 THE COURT: Denied. Next.
9 MR. DRATEL: Next is I think 32 and 33.
10 MR. COHN: No, I have something on 28.
11 THE COURT: I have something on 28, also. Talk about
12 numbers and counts and so on, they are going to change, right?
13 We've stricken the last count. You abandoned six so there are
14 two left. Whatever it is.
15 MR. FITZGERALD: We'll figure out the number, Judge.
16 THE COURT: Let's make sure we have the right number
17 and also your answer to each of these special verdicts will be
18 yes or no, or, guilty or not guilty because some of the
19 questions are yes, no. Some are guilty or not guilty. What
20 is on page 28?
21 MR. COHN: Your Honor, we would like you to say in
22 that when you talk about the difference in dates and variance
23 I'd like you to add the language saying, unless the difference
24 in date is material. You seem to give the impression that any
25 date will do.
4576
1 THE COURT: Where are you?
2 MR. COHN: That's on page 28 variance in dates.
3 MR. FITZGERALD: That's 29.
4 THE COURT: The jury should determine whether any
5 such difference is material and if you find it is material.
6 It's right there.
7 MR. COHN: Okay, that's fine, I'm sorry I missed it.
8 THE COURT: Okay. Next.
9 MR. COHN: Anybody before 31?
10 MR. DRATEL: No, 32.
11 MR. COHN: Your Honor, I understand that my comments
12 for page 31, the overview of conspiracy law and the issue of
13 joining one object of the conspiracy being enough flys in the
14 face of a long line of cases, but reviewing those cases it
15 seems to me that all of them deal with conspiracies where the
16 conduct is of such like nature no matter what the charge that
17 joining one of the objects really contemplates joining all,
18 even if they didn't know about all the objects.
19 For instance, in the Bill Cosby, whatever the name of
20 the case is, the Cosby thing there were two objects of
21 conspiracy. One was a travel act and the other was a Hobbs
22 Act, but they both were for the same purpose of extorting
23 money from Bill Cosby, and so they used both of these as
24 objects of the conspiracy.
25 Here we have objects which can be viewed as very,
4577
1 very limited, which is, for instance, bombing in Nairobi
2 embassy, as that's an object of the conspiracy, and then there
3 is killing all Americans essentially everywhere. That I don't
4 know that you can draw from that one object that they could
5 have joined the other. And what that does is so confuses the
6 multiple conspiracy issue that I think it is misleading to the
7 jury in this kind of case.
8 So, again, I know that all the cases, even the most
9 recent pronouncement of the circuit have said that proving one
10 object is sufficient. I think there has never been a case
11 where the objects are so different and, therefore, and it sort
12 of backs into your Pinkerton analysis.
13 THE COURT: It also backs into my reasoning in asking
14 the jury to indicate which object it has found.
15 MR. COHN: Just because they tell us doesn't mean
16 that it satisfies the requirement of law.
17 THE COURT: No, but it tells us what they have
18 considered. I understand your objection not really to be to
19 the charge, but a substantive objection to the indictment and
20 it is denied.
21 MR. COHN: In that regard, also, your Honor, I do
22 suggest a multiple conspiracy charge that is somewhat
23 different than yours, coming on page --
24 THE COURT: Page 4 of your letter.
25 MR. COHN: -- page 37 of your draft in which I take
4578
1 the language of United States against Berger, and I think
2 again is less confusing to the jury under these circumstances.
3 THE COURT: This is the language in the case.
4 MR. COHN: That is a direct quote, your Honor.
5 THE COURT: In which the Court is suggesting what the
6 charge should say?
7 MR. COHN: Yes. I'm sure your Honor wants to look at
8 the same case as the case in full, and I just suggested to you
9 and we can proceed on this after you've read it.
10 THE COURT: I am going to reserve on that. I
11 reserved now on two things. I think only two things I'm
12 reserving on, the government's request that the jury not be
13 required to be unanimous as to whether a defendant is
14 convicted as a principal or an aider and abettor, and I'm
15 reserving on the proposal that the multiple conspiracy charge
16 language on page 37 tracks that in the United States against
17 Berger. My resolution of both of those things will be
18 reflected in the next day.
19 Next.
20 MS. BABCOCK: Your Honor, page 33, which we object to
21 the use of the term combination to define a conspiracy, and
22 this is something that the Court uses in a couple of different
23 places throughout the charge. Again, on page 35, I think we
24 list, do we list the pages in our letter?
25 MR. DRATEL: No, just the three places without the
4579
1 pagination.
2 MS. BABCOCK: Our pagination was a little bit
3 different than yours, so we didn't list all the specific
4 pages, but object to that because to me common sense meaning
5 of the word combination is just a joinder, and it doesn't,
6 it's not the same as what is required for conspiracy which is
7 a meeting of the mind or a mutual agreement. I think the term
8 is also vague. I don't think the jury is going to know what
9 it means. I think it lowers the government's burden of proof
10 on that element.
11 MR. FITZGERALD: Your Honor, the language follows
12 immediately after combination of two or more persons to join
13 together to accomplish some illegal objective in violation of
14 the laws of the United States.
15 THE COURT: Denied. I think this is time honored
16 standard language, the meaning of which I think is quite
17 clear.
18 Next.
19 MR. COHN: Your Honor, although I didn't do the pages
20 I believe as to Mr. Al-'Owhali aiding and abetting is just not
21 possible under the evidence and no aiding and abetting charge
22 ought to be given to him. Either he's a principal, or he's
23 not.
24 THE COURT: Denied. Typo page 36 next to the last
25 line should be conspiracy in fact had the unlawful purpose
4580
1 specifically alleged in the indictment.
2 MR. DRATEL: The proof of multiple conspiracies page
3 38, that second paragraph with respect to the defendants
4 intention is item 9 in our letter. We would ask the Court to
5 wait to determine what the defendants are going to argue, what
6 the defendants' intentions are.
7 THE COURT: Wait till the arguments?
8 MR. DRATEL: I'm sorry, your Honor, I misspoke. Wait
9 till there is, that there is articulation of what is going to
10 be argued. I don't know that we're going to argue at that
11 point, but no one else is going --
12 THE COURT: You just don't understand the sequence.
13 The Court is mandated under the rules to advise the defendant
14 prior to closing argument what it will charge, so apart from
15 the logistics I don't think I can withhold advising you what
16 the charge until you've made your argument.
17 I do, however, and this is as good as time as any, to
18 alert you to the fact that although there will be a printed
19 charge which the jury will have, that I reserve the right to
20 deviate from the printed charge in the event that I conclude
21 that in closing argument any counsel has deviated improperly
22 from the record or the law. This is known by my colleague and
23 good friend Judge Brieant as the right to spear the red
24 herring, and as I understand, and counsel should understand,
25 that that is a right that the Court specifically does reserve.
4581
1 Now, you want me to wait with respect to what issue?
2 MR. DRATEL: It says here the defendants contend that
3 the government's proof failed to show under any of the
4 coconspiracy counts that there existed only one overall
5 conspiracy. Rather they claim -- first, if we're going to put
6 something here that's going to be conclusive I would ask that
7 it say, some of the defendants. It's not clear that all the
8 defendants are going to argue that.
9 THE COURT: Is there any doubt that this is an
10 argument that is going to be advanced by at least some of the
11 defendants?
12 MR. COHN: I'll be making that argument. I don't
13 know who else is.
14 THE COURT: I'll put in here, some of.
15 MR. DRATEL: The only other change I would have then
16 to that is the last sentence reads: Rather, they claim that
17 in each of the four conspiracy counts, before it gets to there
18 actually just to put in to the extent that the government has
19 proved the existence of any conspiracy.
20 THE COURT: No. That doesn't really add anything. I
21 see what you are saying because this is what the defendants
22 are saying. You want to say to the extent?
23 MR. DRATEL: The government has proved the existence
24 of any conspiracy, and then.
25 THE COURT: I'll put that in.
4582
1 MR. DRATEL: Thank you, your Honor.
2 THE COURT: Let's take a five-minute recess.
3 (Recess)
4 (Continued on next page)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4583
1 THE COURT: Let's resume. Some of the defendants
2 have taken a prayer break but Mr. El Hage is the only
3 defendant who wishes to be present, and he is present.
4 Mr. Dratel, I revisited your concern about recording
5 the transcripts, and would it alleviate your concern if on
6 page 6 at the end of the first full paragraph we said, that is
7 to say, you should give this evidence such weight as you
8 believe it deserves in light of all the facts and
9 circumstances?
10 MR. DRATEL: Yes, your Honor.
11 THE COURT: We will put that in.
12 MR. DRATEL: Thank you.
13 THE COURT: Where are we?
14 MR. FITZGERALD: The government has nothing until 43.
15 THE COURT: Does anybody have anything before 43?
16 MR. COHN: The only other thing I had, your Honor,
17 and I raise it just by way of caution for the record, is that
18 you are not giving me a single act charge.
19 THE COURT: What do you mean by single act charge?
20 MR. COHN: In other words, I suggested in my request
21 to charge -- it's a Porelli charge.
22 THE COURT: Yes.
23 MR. COHN: Single act is not necessarily evidence of
24 joining a conspiracy but must be considered in the context
25 that -- it's that charge.
4584
1 THE COURT: We say on 43, in fact, even a single act
2 may be sufficient to draw the defendant within the ambit of
3 the conspiracy so long as the defendant has knowingly and
4 willfully joined the conspiracy. Tell me the language you
5 want.
6 MR. COHN: I had suggested it in my request to
7 charge, your Honor, and I don't have it with me. I will get
8 it to you again.
9 THE COURT: No, no. I have your requests to charge.
10 MR. COHN: Not the objection but the requests. I
11 didn't bring that with me, I am sorry.
12 MS. BABCOCK: We actually have something on 42.
13 THE COURT: 42.
14 MS. BABCOCK: The first full paragraph, the second
15 sentence from the end says on the other hand, each defendant
16 denies that he was a member of any of those conspiracies. We
17 have asked that that be stricken and substituted for the
18 following sentence: On the other hand, the defendants contend
19 that while they may have been acquainted and in contact with
20 others named as coconspirators in the indictment, they did not
21 have knowledge of the illegal purpose or purposes of the
22 charged conspiracies.
23 THE COURT: We have that. Look at page 44.
24 MS. BABCOCK: The reason we suggest it there, your
25 Honor, is that the sentence that you have is kind of a non
4585
1 sequitur. What you are saying in the preceding sentence is,
2 the government contends that these acts and conversations show
3 beyond a reasonable doubt knowledge on the part of the
4 defendant, and then you say on the other hand each defendant
5 denies he was a member.
6 What we are trying to do there is to make that
7 consistent with and sort of the opposite of what the
8 government contends. On the other hand, each defendant
9 contends that the acts and conversations, that he was
10 acquainted with them but that they don't show knowledge of the
11 illegal purpose.
12 THE COURT: I see what you mean. So it would read,
13 on the other hand, each defendant denies that these acts and
14 conversations showed that he had such knowledge. All right, I
15 will make that change. Next?
16 MR. FITZGERALD: On page 43, your Honor, as suggested
17 at the bottom of page 2 of the government's letter, I think
18 that the first paragraph should be amended to make clear that
19 having a conversation where you agree to an unlawful agreement
20 can make you guilty. So I think the language would be at the
21 end of the first paragraph, such assembly and discussion does
22 not by itself insert the word necessarily, establish an
23 unlawful agreement --
24 THE COURT: I have lost you. Where are we?
25 MR. FITZGERALD: Page 43, the end of the first
4586
1 sentence of the first full paragraph. Such assembly and
2 discussion does not by itself necessarily establish an
3 unlawful agreement, inserting the word necessarily --
4 THE COURT: I am sorry. We are on page 43?
5 MR. FITZGERALD: Yes, first full paragraph.
6 THE COURT: The one that begins I caution you.
7 MR. FITZGERALD: Yes, the end of that first sentence.
8 Sorry. The phrase and such assembly and discussion does not
9 by itself, insert the word necessarily, establish an unlawful
10 agreement, and then adding unless, of course, you find that an
11 agreement was reached during that conversation.
12 THE COURT: I think that is fair. Unless you find
13 that -- I question whether we have to modify agreement.
14 Unlawful agreement?
15 MR. FITZGERALD: Yes.
16 THE COURT: An unlawful agreement was reached at that
17 time.
18 MR. DRATEL: Your Honor, I just think it somehow has
19 to be tied to the agreement charged in the indictment.
20 THE COURT: Excuse me. An unlawful agreement charged
21 in the indictment was reached at that time?
22 MR. DRATEL: Yes.
23 MR. FITZGERALD: But the discussion of the law here
24 generally discusses free discussion of ideas generally. It is
25 not illegal unless you have reached an illegal agreement. It
4587
1 is not limited to the context of the indictment.
2 THE COURT: Yes, you can't put everything in one
3 sentence. I think the government's point is well taken.
4 Next?
5 MR. FITZGERALD: The government has nothing until
6 102, reserving its right on page 84.
7 THE COURT: Anything between 42 and 102?
8 MS. BABCOCK: Yes. On 46, I believe it is, regarding
9 the acts and declarations of coconspirators. It is actually
10 on page 47. We move to strike that entire paragraph, starting
11 with what does this mean, and the reason we move to strike it
12 is because we believe that there is a risk that when the jury
13 reads this they are going to be misled regarding the
14 government's burden of proof on the substantive crimes charged
15 in the indictment and might be tempted to convict on the
16 substantive crimes based on the Pinkerton theory.
17 THE COURT: But, you see, this deals with statements
18 made, which is very much relevant to the existence of the
19 conspiracy and its objects.
20 MS. BABCOCK: Your Honor, I misspoke. The paragraph
21 that we wanted stricken is the one that begins with
22 accordingly.
23 THE COURT: OK. No. I understand what your concern
24 is and I am not going to charge Pinkerton, and I don't think
25 Pinkerton will occur to a lay jury absent a specific
4588
1 instruction to that effect. Next. The government has nothing
2 until 102. Anybody have anything until 102?
3 MR. DRATEL: Yes, page 50. This is number 12 and to
4 a certain extent 13 as well, because it is the same section,
5 Count 1 and Count 3. The overt act committed in furtherance
6 of a conspiracy, the last sentence on page 50. In other
7 words, the fact that they already found an overt act was
8 omitted, and we would just add the portion underlined at 12.
9 Where it says your obligation to find unanimously, I would
10 just add there beyond a reasonable doubt, and then at the end
11 of the entire sentence, considering, and then a comma and then
12 before finding that element has been proved. Just as a
13 reference point, on 62 --
14 THE COURT: Just a moment. I will put in beyond a
15 reasonable doubt, and before finding that element has been
16 proved just repeats what is at the beginning of the paragraph.
17 MR. DRATEL: That last language, the reasonable doubt
18 language is already in 62, the second-to-last paragraph.
19 THE COURT: I am going to change the last sentence on
20 page 50 by putting after the word unanimously, and beyond a
21 reasonable doubt.
22 MR. DRATEL: Right.
23 THE COURT: Otherwise I will leave it the way it is.
24 MR. DRATEL: Thank you very much.
25 THE COURT: Next?
4589
1 MR. DRATEL: I just wanted to say at 62 I had the
2 same addition at the end but it is the same as the one your
3 Honor just put in. We can move on to 71, which is, we would
4 not request a withdrawal charge.
5 THE COURT: And you said something about page 62 the
6 same --
7 MR. DRATEL: Just at the end, I would ask for it to
8 say before you find that element.
9 THE COURT: Page 62?
10 MR. DRATEL: Yes, second to last paragraph.
11 THE COURT: Yes.
12 MR. DRATEL: Which is essentially the same
13 instruction as the one we looked at at page 50. I am just
14 asking you to add the language that your Honor didn't want to
15 add to page 50.
16 THE COURT: Reasonable doubt is already in there, OK.
17 Now, you are telling me you do not want a withdrawal
18 charge. Next thing that somebody wants. That's it?
19 On page 109 I am going to add the sentence this is
20 because the offense of attempted murder does not apply to
21 victims who were actually killed. And at page 120, after
22 Counts 280 and 281, whatever the correct numbers will be, I
23 think I will say that is Julian Bartley, Sr. or Prabhi Gutpara
24 Kavaler, who were actually killed.
25 MR. FITZGERALD: Judge, I am lost on the page
4590
1 numbers. I think we may be on different pages. 121?
2 THE COURT: This is the attempt to kill
3 internationally protected persons.
4 Is there any evidence of an attempt to kill
5 internationally protected persons other than those who were
6 killed?
7 MR. FITZGERALD: I am still --
8 THE COURT: You are still lost.
9 MR. FITZGERALD: Yes.
10 THE COURT: I am still on 120.
11 MR. FITZGERALD: My 120 says --
12 MR. COHN: Mine says using explosives.
13 MR. WILFORD: Mine says please note.
14 THE COURT: Does any government attorney have a page
15 120 that says please note?
16 MR. FITZGERALD: No, but we have it on 118. Please
17 note, however, that to satisfy this element --
18 THE COURT: Yes.
19 MR. FITZGERALD: Thank you.
20 THE COURT: My question is -- I make the same point
21 made on 109. You can't intend to kill somebody actually
22 killed, so this is somebody other than Bartley and Kavaler who
23 were actually killed.
24 MR. FITZGERALD: Yes.
25 THE COURT: My question to the government is, is
4591
1 there any evidence --
2 MR. FITZGERALD: Yes.
3 THE COURT: This is both Kenya and Dar es Salaam. So
4 the ambassadors.
5 MR. FITZGERALD: Yes.
6 MR. COHN: I don't know that they ever proved that
7 the ambassador is an internationally protected person. They
8 asked for a stipulation as to the two people who did die, but
9 I have no recollection that there was any evidence that the
10 ambassador was such a person.
11 THE COURT: How about the definition of
12 internationally protected person?
13 MR. FITZGERALD: Your Honor, the statute defines
14 internationally protected person to include ambassadors.
15 THE COURT: I have some problem -- 282, attempted
16 murder of the ambassador and other employees. Yes?
17 MR. FITZGERALD: Yes, Judge.
18 THE COURT: 283 is what?
19 MR. FITZGERALD: The same with regard to Tanzania,
20 the ambassador employees of the U.S. Embassy in Tanzania. 282
21 is the count with regard to the embassy in Nairobi.
22 THE COURT: And 283, the acting ambassador was not in
23 fact killed. He testified -- never mind, I withdraw the
24 question.
25 Next.
4592
1 MR. FITZGERALD: Your Honor, 102 on my pages, which I
2 will tell you is Counts 235 to 275 and 277 to 278, under the
3 elements, second element, victim status, we just wanted to
4 change your Honor's instruction, the last sentence on the
5 partial paragraph of page 102 that says individuals employed
6 in United States Embassies are officers and employees. We
7 wanted to change that to by, employed by United States
8 Embassies. That comes up twice.
9 THE COURT: Where is it?
10 MR. FITZGERALD: It is the second element of Counts
11 235 to 275.
12 THE COURT: In should be by, OK.
13 MR. FITZGERALD: The same thing happens roughly six
14 pages later under the second element of Counts 276 and 279 at
15 the end of the first paragraph.
16 THE COURT: Yes. What is the next point?
17 MR. HERMAN: Judge, I am sorry. On page 116 where
18 the discussion is Count 282, it is my understanding that Mr.
19 Odeh is no longer charged in Count --
20 THE COURT: 282 is Kenya.
21 MR. HERMAN: The red-lined copy I got took him out of
22 283.
23 MR. FITZGERALD: He should be charged in 282.
24 THE COURT: Count 283 charges K.K. Mohamed. I am
25 looking at page 116. The caption is Counts 282 and 283.
4593
1 Next.
2 MR. FITZGERALD: On page 139, unless there is
3 something before then.
4 MR. DRATEL: 138.
5 THE COURT: What does your page 138 begin with?
6 MR. DRATEL: Second element, falsity.
7 THE COURT: Good.
8 MR. DRATEL: End of the second line. To satisfy this
9 element the government must prove, I would just add beyond a
10 reasonable doubt.
11 THE COURT: It's in the previous sentence.
12 MR. DRATEL: When I see the government must prove --
13 THE COURT: Yes, I know, but read the sentence
14 before -- OK.
15 MR. DRATEL: Your Honor, I think the government is on
16 140.
17 MR. FITZGERALD: Under the fourth element knowingly.
18 It might be 138.
19 THE COURT: I have it 140.
20 MR. FITZGERALD: Then it says the defendant may have
21 given incorrect testimony because of --
22 THE COURT: Yes, last line, page 140. May have given
23 incorrect testimony because --
24 MR. FITZGERALD: And I you go either that the
25 defendant contends he may have given or a person may have.
4594
1 Otherwise it may sound to the jury that the court is giving --
2 THE COURT: If a defendant, change the to a.
3 MR. FITZGERALD: He is the only defendant charged
4 with perjury. A witness can give, as long as it is generic
5 and doesn't look like the court is endorsing a view.
6 THE COURT: Let's change the defendant to a witness.
7 MR. DRATEL: If a witness may have given.
8 THE COURT: May have given.
9 MR. DRATEL: Your Honor, on the same page,
10 materiality, the last paragraph, the last sentence, need only
11 find beyond a reasonable doubt.
12 THE COURT: Change a witness to someone, someone may
13 give incorrect testimony because of.
14 What is next?
15 MR. FITZGERALD: Nothing from the government.
16 THE COURT: Is there a request for recantation?
17 MR. DRATEL: Yes, your Honor.
18 THE COURT: And the government agrees that the
19 defendant is entitled to a recantation instruction?
20 MR. FITZGERALD: I don't believe so, Judge. I
21 believe a recantation is supposed to be a statement that what
22 you said earlier is false. We oppose the recantation because
23 there was no testimony from El Hage that he gave false
24 testimony earlier. He merely tripped over that testimony.
25 THE COURT: I am just looking at the bottom of 142.
4595
1 You must find that the defendant El Hage admitted that a prior
2 declaration was false -- what is the evidence that he admitted
3 a prior declaration was false? My understanding of the
4 recantation is that it's got to be a very explicit statement.
5 You can't deduce recantation by inference.
6 MR. DRATEL: Your Honor, our position is that it
7 would be a question for the jury.
8 THE COURT: I am going to require briefing on that,
9 and that is the reason why I put recantation in brackets. Let
10 me have a memorandum on behalf of El Hage by Thursday,
11 indicating why defendant believes the evidence supports a
12 recantation charge and the response from the government on
13 Tuesday. Is that it on the charge?
14 Have people gone over the special verdict form?
15 MR. COHN: I have not.
16 THE COURT: Let's take up the special verdict form on
17 Wednesday together with the motion to quash. There is a
18 motion to quash --
19 MR. FITZGERALD: Department of Defense subpoenas.
20 THE COURT: Will Mr. Baugh be here?
21 MR. COHN: I think he will. I know that he submitted
22 something. I will check. He should be here tomorrow.
23 THE COURT: If he is not here tomorrow, ask him
24 whether he wants to withdraw the subpoena, and that might
25 resolve the whole matter.
4596
1 MR. DRATEL: Your Honor, I can do this in writing.
2 This is to give the government an opportunity. The most
3 recent redacted indictment that the government provided, there
4 are still a couple of things that I think should be redacted.
5 THE COURT: Do it in writing so the government will
6 have an opportunity to reply in writing. I see I was unable
7 to convince the defendants to omit the initials for the
8 multiple acts.
9 MR. FITZGERALD: Third alphabet we throw in the
10 towel.
11 THE COURT: Anything else?
12 MR. FITZGERALD: With regard to tomorrow, there is an
13 issue with regard to two witnesses that the defendant Odeh
14 seeks to recall. Defendant Odeh wishes to recall Kherchtou as
15 a witness with respect to what his knowledge was in the 1994
16 time frame when Ali Mohamed was coming through Nairobi.
17 Because they were provided materials with respect to Kherchtou
18 relevant to that point, we do not object. However, I
19 understand there may be an intention to cross-examine him on
20 his cooperation agreement, which I think was amply covered in
21 his prior appearance. So there is no objection to Kherchtou
22 being produced but there is in going beyond the scope of the
23 surveillance in the 1993 and 1994 time frame.
24 THE COURT: Any quarrel with that?
25 MR. RICCO: Yes.
4597
1 THE COURT: Why?
2 MR. RICCO: We don't believe that our defense case is
3 limited by the scope that the government presents in its
4 direct case and our cross-examination. We initially were
5 going to call Mr. Kherchtou with respect to the Somalia issue.
6 That was not resolved until this morning. We put the
7 government on notice with respect to that. But in our
8 preparation for that Somalia issue, we saw an outstanding
9 issue that we had not fully explored with respect to his
10 knowledge about the decision to kill Americans wherever they
11 could be found, worldwide, and his decision to enter a plea.
12 So our question to Mr. Kherchtou is really a very simple
13 question: At what point did he join the conspiracy to kill
14 Americans wherever they are found. I don't see any prejudice
15 to the government at all by asking that question.
16 THE COURT: I don't think a defendant is precluded
17 from calling a witness in the defendant's case simply because
18 the witness was a government witness on the government's case.
19 MR. FITZGERALD: No, Judge, but if it is
20 cross-examination on issues previously covered, I do not think
21 that you can call someone back in the defense case and have a
22 second run at cross-examination. I understand if new ground
23 is covered, but we have gone down the road of the cooperation
24 agreement and, one, I don't know what else the Odeh team is
25 going to do, I don't know what other defense teams might do,
4598
1 but I don't think we should have another round of
2 cross-examination of Mr. Kherchtou. That is why we did not
3 object to further questioning on the surveillance.
4 THE COURT: Thank you for alerting me to the issue,
5 but I think I have to hear the questions before I can make a
6 ruling.
7 MR. FITZGERALD: The second and last issue is with
8 regard to Special Agent Dohrn, who was sort of a summary
9 witness, who was aware of some money that Mr. Odeh had, which
10 was not offered in evidence. It was taken from Mr. Odeh in
11 Nairobi. Evidently it was placed with, I believe, the Kenyan
12 authorities. It was taken by the FBI, given back for
13 safekeeping. The FBI lost track of it but recovered it later
14 and later gave it to Michael Young when he needed funds. My
15 understanding is that she will be called to testify as to the
16 tracking of the funds and I don't understand questioning with
17 respect to chain of custody with respect to something not in
18 evidence.
19 MR. WILFORD: First, there was testimony with respect
20 to other items seized from Mr. Odeh. Additionally, there is
21 evidence with respect to the chain of custody. These items
22 were seized from Mr. Odeh and they were together at one point
23 and then they were separated. I think it is appropriate for
24 the jury to determine the weight to give that evidence.
25 THE COURT: When you say chain of custody, was this
4599
1 money kept together with other things as to which the chain of
2 custody is relevant?
3 MR. WILFORD: For a period of time, and then all of a
4 sudden the money goes someplace, we don't know, and reappears
5 after a full-blown search, and not only do they find the
6 money, they find his glasses and other property which was
7 separated from the other property. I think it goes to chain
8 of custody. The government presented evidence to show that
9 when the FBI came into the picture it was a very tight chain
10 of custody. That was presented to the jury. The jury should
11 have the opportunity, your Honor, to have the ability to
12 examine that chain of custody. Part of the examination of the
13 chain of custody is the disappearance and reappearance of the
14 currency and his glasses and other items, which were all
15 seized from him at the same time.
16 THE COURT: Were seized at the same time as the Nike
17 bag?
18 MR. WILFORD: Everything was seized at the same time,
19 Judge.
20 THE COURT: I will allow it.
21 Is Odeh going to present its entire case tomorrow?
22 MR. RICCO: Entire case tomorrow, God willing.
23 THE COURT: To coin a phrase.
24 Where are you with respect to the hearsay in the
25 Gaudin matter?
4600
1 MR. RICCO: We are not going to call Gaudin but we
2 don't believe his testimony should be stricken. We can do
3 that at any time before closing arguments.
4 THE COURT: This Somalia thing with the stipulation
5 wasn't enough of a stipulation, with today as a result. I am
6 not going to push counsel any harder.
7 So Odeh will rest tomorrow and Mr. Odeh has already
8 allocuted on his not testifying.
9 MR. RICCO: That is correct. Your Honor, Mr. Cohn
10 has always said that he has an objection to a witness that we
11 are calling tomorrow and I think he wants to put that
12 objection on the record.
13 MR. COHN: Your Honor, I started to apologize because
14 I know that Mr. Ricco sent an e-mail this weekend.
15 Unfortunately because I have moved and Verizon does not seem
16 to be on line --
17 THE COURT: Maybe you can find a good friend whose
18 house you can use for telephone and faxes.
19 MR. COHN: In any event, I don't know precisely what
20 this witness is going to opine about but I believe that he is
21 a religious expert who will testify about proper
22 interpretation of the Koran and who may issue fatwahs and how
23 they are followed. If that is the case, I fail to see the
24 relevance to this trial, and I regard the potential testimony
25 most prejudicial, particularly if he interprets the Koran in
4601
1 ways that are at odds with actions of some of the defendants
2 here.
3 THE COURT: I don't think I can preclude the
4 defendant from offering that.
5 Odeh is going to be tomorrow. How long tomorrow?
6 MR. RICCO: If we get started on time, Judge, we may
7 finish before the lunch hour.
8 THE COURT: And then go back to El Hage, two and a
9 half days?
10 MR. COHN: Is that subjective or objective time?
11 MR. DRATEL: Mr. Schmidt has a better sense of it. I
12 am going by his estimate.
13 THE COURT: Is Mr. El Hage going to testify?
14 MR. DRATEL: Not at this time, your Honor, no.
15 THE COURT: Not at this time. What does that mean?
16 Not at 10 minutes of 7?
17 MR. DRATEL: Your Honor, we will have to defer that
18 question. I understand your Honor's previous point.
19 THE COURT: I think if you recall my previous remarks
20 in chambers I don't need to reiterate.
21 Wednesday we will have a motion to quash with respect
22 to the military.
23 MR. COHN: Is that the morning or the end of the day?
24 THE COURT: 4:30. And we will deal with the special
25 verdict form, which really requires a great deal of thought
4602
1 and a great deal of attention, certainly equal to that given
2 to the charge. Thank you all.
3 (Adjourned until 10:00 a.m., Tuesday, April 24, 2001)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4603
1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 JAMES FRANCIS YACONE....4381 4403 4454 4459
5 ABDI ISMAEL SAMATAR.....4479 4523 4526 4527
6 DEFENDANT EXHIBITS
7 Exhibit No.
8 A5 .......................................4440
9 E2 .........................................4479
10 E3 .........................................4485
11 WEHX-W68, WEHX-W54, WEHX-W55, WEHX-W56,
12 WEHX-W49, WEHX-W57 and WEHX-W69............. 4543
13
14
15
16
17
18
19
20
21
22
23
24
25
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