26 April 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 35 of the trial, April 26, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
--------------------------------------------------------------------------------
4913
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 April 26, 2001
9:50 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
4914
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
SAM A. SCHMIDT
7 JOSHUA DRATEL
MARSHALL A. MINTZ
8 Attorneys for defendant Wadih El Hage
9 ANTHONY L. RICCO
EDWARD D. WILFORD
10 CARL J. HERMAN
Attorneys for defendant Mohamed Sadeek Odeh
11
FREDRICK H. COHN
12 DAVID P. BAUGH
LAURA GASIOROWSKI
13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
14 DAVID STERN
DAVID RUHNKE
15 Attorneys for defendant Khalfan Khamis Mohamed
16
17 (In open court; jury not present)
18 THE COURT: We said we wouldn't start until 10
19 o'clock. All counsel aren't here, but as soon as everybody is
20 here we'll begin.
21 (Recess)
22 (In open court; jury not present)
23 THE COURT: Everyone be seated, please. I
24 understand -- Mr. Cohn.
25 MR. COHN: Sorry, your Honor.
4915
1 THE COURT: I understand that --
2 MR. HERMAN: I can't hear you, Judge.
3 THE COURT: -- the government is considering
4 consenting to the revision of some of the overt acts, is that
5 correct?
6 MR. FITZGERALD: Yes, Judge. If I can give you a
7 status on three items. We do not seek to have the jury
8 sequestered. On the overt acts in the indictment we are
9 preparing a letter where the issues came up that may seek us
10 to revise the letter, but we're preparing the proposed
11 redacted indictment which would change language in some
12 counts, also, not proceed on certain theories which we hope to
13 have available later this morning.
14 On the Somalia issue, however, two things. First, I
15 was just was handed additional 3500 material for the witness
16 at two minutes before 10 o'clock. He's about to testify at 10
17 o'clock. But there is an issue I think we need to put on the
18 table. It appears that the defense theory now is that al
19 Qaeda may have been training people in Somalia but it was
20 after the Abdi House attack that they began to help the
21 Somalis attack Americans.
22 THE COURT: No, I think the reverse. That any aid al
23 Qaeda furnished to the Somalis was prior to the Somali
24 anti-American activity. Isn't that the theory?
25 MR. SCHMIDT: Yes, it was unrelated to the events in
4916
1 Mogadishu.
2 MR. FITZGERALD: Your Honor, if the relevance is that
3 the aim of al Qaeda was not to kill Americans prior to the
4 Abdi House attack, is that the reason it's offered to show
5 what the Abdi House relevance is?
6 MR. SCHMIDT: That's part of it, that the training,
7 that the government alleges took place, and the evidence shows
8 in Ogaden and the Gedo region occurred before the Abdi House
9 attack and was unrelated to the attack on the Americans.
10 THE COURT: It is not surprising that the government
11 isn't entirely clear on what that claim is, because it has
12 been stated at various times in various fashions, but my
13 understanding of it is that just as there was aid given to the
14 to Afghanistan opponents of the Russians -- the analogy would
15 be -- so here al Qaeda's aid to Somalia took place prior to
16 any anti-American activity. Is that it? Is that what the
17 point is?
18 MR. SCHMIDT: That's the major point. I mean some of
19 the training apparently continued on, but it was still
20 unrelated to Mogadishu.
21 MR. FITZGERALD: My point, your Honor, is the state
22 of mind of anti-American animus, a relevant state of mind is
23 al Qaeda, not the populace, what their activity was designed
24 to do. My point being --
25 THE COURT: I don't understand that. If al Qaeda
4917
1 furnished aid to a group which did not have any anti-American
2 animus or program would that not be irrelevant to Count One?
3 MR. FITZGERALD: Hypothetically, yes, but that's not
4 the case.
5 THE COURT: Whether that's the case or not is a fact
6 issue.
7 MR. FITZGERALD: But, your Honor, when Al Fadl
8 testified the evidence that was precluded at that time or not
9 gone into was the theory that appeared to be different was the
10 fact that the Americans were attacked on their way to Somalia
11 in December 1992 when President Bush dispatched the armed
12 forces to Operation Restore Hope. On the way over there on
13 December 29, 1992, Bin Laden operatives bombed the Americans
14 in a hotel in Yemen transiting through Yemen to get to
15 Somalia.
16 THE COURT: Has any evidence of that been introduced
17 here?
18 MR. FITZGERALD: No, your Honor, because it was
19 precluded by the defense. We would seek to put the Court on
20 notice, I think if we go down the road then in the rebuttal
21 case we ought to be able to call in examining this witness the
22 fact that Bin Laden bombed the hotel where the Marines stayed
23 on their way to Somalia, and the thought that the
24 anti-American animus or activities started in July of 1993 is
25 wrong.
4918
1 THE COURT: That's true. I can't preclude the
2 defendants from introducing evidence in support of its claim.
3 Whether the facts reached justified that is something else.
4 MR. FITZGERALD: I just want to put the Court on
5 notice so no one thought they were being taken by surprise.
6 MR. SCHMIDT: Your Honor, I am taken by surprise. I
7 don't recall any preclusion of testimony concerning any other
8 anti-American violent act.
9 THE COURT: But, in any event, it clearly would be
10 appropriate for rebuttal evidence, whether the government
11 could have produced it earlier not, I think it's perfectly
12 clear that the nature of this defense claim has not been
13 apparent. Let me just ask one other question.
14 MR. SCHMIDT: Your Honor --
15 THE COURT: Using the old lettering of overt act, the
16 overt act with respect to the 18 deaths in Somalia, I think
17 it's Y.
18 MR. FITZGERALD: I can save you time on that. In the
19 proposed redacted indictment in terms of which overt act are
20 which for the jury to vote on that is one where we're disposed
21 to being redacted at. There is an error.
22 THE COURT: All right. That will save a lot of time
23 and had I known that hours ago I would have saved some hours,
24 but that's perfectly all right. Are we ready now to bring in
25 the jury?
4919
1 MR. SCHMIDT: No, there is one issue I want to raise.
2 THE COURT: Yes.
3 MR. SCHMIDT: Mr. Scofield has brought with him --
4 THE COURT: That's your next witness.
5 MR. SCHMIDT: Yes -- videotape that was produced by
6 the Australian television that includes footage taken by Mr.
7 Hassan, a photographer in Mogadishu. He has also brought with
8 him hours of taped conversations with Mohamed Shafi, the
9 surviving journalist of the group, that was after the Abdi
10 House, who died recently. I have not had the opportunity to
11 listen to any of this.
12 THE COURT: Certainly you're not going to seek to
13 play it to the jury before you have seen it and reviewed it,
14 right?
15 MR. SCHMIDT: That is correct. But this is part of
16 the source material that allows him to testify concerning the
17 events of the Abdi House and the Somali reaction. I'm aware
18 that it exists. I am not in a position, because Mr. Scofield
19 flew in yesterday, to present this with direct examination.
20 Unless should the government open the door for that, I don't
21 wish to do so. I'm making your Honor aware that it is
22 available and should that happen I would need the weekend to
23 go through that and listen to it.
24 THE COURT: I think we spent sometime yesterday, even
25 to the point of my outlining the line of questioning and the
4920
1 manner of questioning with respect to the Abdi House event. I
2 don't think of any of that is changed because of the witness'
3 having other things available. Obviously, if the government
4 seek to undermine or impeach his knowledge for the sources,
5 the basis on which he reaches certain conclusions, the fact
6 that he has all that material is something that he can say,
7 but my understanding of what you told me, and that is you do
8 not intend in the present posture of the case to seek to
9 introduce any of the videos or any of those interviews.
10 MR. SCHMIDT: At this moment, that is correct.
11 THE COURT: All right.
12 MR. SCHMIDT: Also, because of what we discussed
13 yesterday, I am limiting his testimony concerning the events
14 shortly before the Abdi House, the few months before and then
15 the Abdi House events, and just simply the reaction to it. I
16 am not going to be questioning him concerning the continued
17 warfare between the Aideed clan, Aideed supporters and the
18 Americans and the UN after the Abdi House up to the October
19 3rd.
20 There are tremendous amounts of material that he is
21 aware of both as a fact witness and as an expert witness of
22 conduct by both sides that will take an extraordinary amount
23 of time. Because I'm limiting it, I'm asking your Honor also
24 then to limit the government not to go into those areas where
25 I am not going into, because, otherwise, it's going to open
4921
1 the door to a tremendous amount of material which, based on
2 our discussion, we were not going to go into.
3 THE COURT: Let me say it again, and I think I'm
4 repeating. My understanding of the defense contention here
5 and the role of this witness is, I said yesterday, temporal,
6 to show that there was a time when Somali was not opposed to
7 American presence or activity; that there was an identifiable
8 point of time triggered by the Abdi raid which caused a
9 radical revision in the attitude of the Somali populace with
10 respect to the United States; and the function of this witness
11 and the nature of this defense issue is to show that al
12 Qaeda's support or training or aid to Somalia prior to that
13 time was not pursuant to the anti-American animus which is
14 part of the conspiracy count. Is that it?
15 MR. SCHMIDT: Loosely, your Honor, --
16 THE COURT: You know, let's tighten it up. I don't
17 want -- you know, you equivocate. Every time I try to state
18 the position you say, well, that's most of it. Let's have all
19 of it so that we don't do all of this in front of jury.
20 MR. SCHMIDT: This witness is basically limited to
21 Mogadishu.
22 THE COURT: Yes.
23 MR. SCHMIDT: He is not familiar with the other areas
24 of Somalia, so he can't talk about that. He can talk about
25 the Aideed subclan and the other subclans that were supportive
4922
1 of Aideed.
2 THE COURT: Can he respond to the question whether
3 asked on direct or cross, prior to the Abdi House raid were
4 Somalians engaged in anti-American activities?
5 MR. SCHMIDT: The simple answer is yes, they were,
6 but not of the nature that occurred after the raid.
7 THE COURT: The nature?
8 MR. SCHMIDT: There was, for example, Radio Mogadishu
9 Aideed's radio station, broadcast anti-UN things a lot.
10 THE COURT: But al Qaeda is not alleged to have been
11 supporting Aideed.
12 MR. SCHMIDT: That's correct. What it will show is
13 that the nature of the feelings towards the Americans changed
14 from perhaps wariness and not wanting to deal with them that
15 much, to, you know, physically having a war and battle.
16 That's a substantial change.
17 THE COURT: Mr. Fitzgerald alerts us to the fact that
18 he reserves the right in a rebuttal case to show that there
19 was a bombing attributable to the Bin Laden group of Americans
20 en route to Somalia in 1992.
21 MR. FITZGERALD: December 29, 1992.
22 THE COURT: The point is that the volume increased.
23 Is that the point?
24 MR. SCHMIDT: Your Honor, the first American casualty
25 in Mogadishu related to any hostile action was in August of
4923
1 1993 a month after the Abdi House. The Americans became a
2 target of Aideed after the Abdi House event.
3 THE COURT: American targets of Aideed.
4 MR. SCHMIDT: Of Aideed after the Abdi House events.
5 THE COURT: Yes.
6 MR. SCHMIDT: We believe that the American deaths
7 that the government attributes to conduct of al Qaeda is
8 attributed to Aideed and his supporters. We also have
9 indicated that the training that occurred prior to the
10 Americans and the UN even showing up, and after that in other
11 areas of Somalia, are unrelated to the attacks on the
12 Americans.
13 THE COURT: I think it's appropriate that the
14 government abandon Y in the overt acts because I don't think
15 in the present state of the record there is evidence which
16 shows that the 18 deaths named in that overt act were
17 attributable to forces allied with al Qaeda as opposed to
18 forces allied with any other faction in Somalia, but that
19 overt act is out.
20 You say there was a bombing of Americans en route to
21 Somalia?
22 MR. FITZGERALD: In Aden, Yemen at a hotel being
23 billeted as a way station, they were on their way over, they
24 stopped in Yemen. They were at a hotel. I believe there were
25 three bombs that went off that night that killed, I think, the
4924
1 janitor in the hotel and two Austrian tourists. They did a
2 poor job in the bombing. And one of the individuals who
3 worked for Bin Laden lost his arm. There were some Marines
4 injured. There were no fatalities is my understanding from
5 the bombing. And then the force continued on to Somalia. But
6 the first attack against Americans was literally just across
7 the Gulf when they flew into Yemen in December 29, 1992.
8 THE COURT: Was it known they were en route to
9 Somalia?
10 MR. FITZGERALD: Yes. It was announced by President
11 Bush on December 9, 1992. So en route they bombed them.
12 Your Honor, getting the 3500 material, learning that
13 this witness said he's basing his material and having
14 refreshed his recollection on a number of audiotapes that he
15 listened to before giving evidence today, knowing that he has
16 videotapes, we are not in a position to cross-examine this
17 witness, nor do I really -- honestly, I feel like I'm cutting
18 water with a fork.
19 I don't know what Mr. Schmidt is going to offer
20 through this witness, and if the government is truly a party
21 like anyone else, and we represent the victims here, I
22 wouldn't dare put the witness on with this sort of notice to
23 the defense, and I don't think we ought to be in a position
24 where we have to hear a witness testify whose 3500 material
25 indicates he talked about people eating flesh of the dead.
4925
1 THE COURT: You're not going to introduce that, are
2 you?
3 MR. SCHMIDT: No, I turned it over, and specifically
4 why I raise the issue, we don't want to get into that.
5 MR. FITZGERALD: Now he's telling me he wants to get
6 into what he wants in July 1993, he doesn't want anything
7 beforehand. I don't know what the relevance is. There is no
8 murder count charged having to do with the 18 dead in Somalia.
9 The point is, what was al Qaeda's mind set? Were they trying
10 to help attack Americans? Did they believe they were? Abu
11 Hafs, the military commander, told al Fadl that he believed
12 they were responsible for the deaths. Mr. El Hage's
13 housemate, Harun, wrote a report saying, we're the cell in
14 Nairobi that's responsible.
15 The point is the state of mind of al Qaeda, are they
16 attacking Americans? We're going down detour as to what the
17 Somali civilians thought about, just to get in the Abdi House
18 attack. This person interviewed people, people who were there
19 who lost relatives. I know it's something we're going to get
20 into blood and gore about the Abdi House attack. We are in
21 the unfair position. We're not given fair notice. He's going
22 to say he's testifying based upon refresh recollection based
23 upon audiotapes we don't even have.
24 THE COURT: I know you're saying fair notice, so if
25 we adjourn this until Monday, what difference does it make?
4926
1 What would you know on Monday that you don't know now?
2 MR. FITZGERALD: First of all, I don't know if we
3 have tapes to review, but, more importantly, Mr. Schmidt, we
4 asked him what are you seeking to elicit. I think we're
5 getting into --
6 THE COURT: Suppose, Mr. Schmidt, without
7 interruption from the Court, and you know that takes
8 considerable restraint, but without interruption from the
9 Court, would you make a proffer of what it is that you hope to
10 elicit from this witness?
11 MR. SCHMIDT: Yes, I will. Your Honor, I will elicit
12 his background and his sources of information and his
13 experience. I would elicit that the first significant
14 conflict between Aideed's forces and the UN's forces occurred
15 in June 5, 1993 as a result of an inspection and
16 reconnaissance of a location where weapons were being held.
17 After that, the UN reaction both prior to and after the
18 issuance of the UN resolution that ordered the securing of the
19 investigation, the action of the June 5th event were of the
20 nature of pinpoint attacks on specific locations like places
21 where weapons were held, the location where they believe
22 Aideed was living. There were warnings given to people. It
23 was done in a manner to minimize casualties.
24 On July 12th, although he was out of the country at
25 that time, after the media broadcast of that event, he
4927
1 questioned Mohamed Shafi who was the sole survivor and a
2 person who saw the attack on the Abdi House. He spoke with
3 Somali witnesses. He spoke with Admiral Howe who was the head
4 of the UN forces. He read the documents from the UN
5 concerning those attacks, and that attack was very different
6 in nature in that in that attack there was no warning given,
7 the means of exit were destroyed and numerous missiles were
8 fired into the building, and the casualty report as reported
9 by the International Red Cross included approximately -- I
10 don't have the number -- I think 67 people killed, many, many
11 wounded. Killed were mostly men, but there were a number of
12 women who were also killed as well.
13 Also, part of the source of his information is
14 viewing the original footage which is approximately 41 minutes
15 of the film taken by the Somali journalist which was -- and I
16 won't bring this out, but it was also incorporated in his
17 televised report. I'm going to ask him was the reaction of
18 the Somalis as a result of that, and his answer will be saying
19 that they viewed the Americans much differently after that.
20 That's it.
21 MR. FITZGERALD: Your Honor, that's trying the Abdi
22 House assault with a question at the end, which is, oh, by the
23 way, what did the Somalis think of Americans? That was
24 supposed to be the point of what the testimony is. It's
25 getting in before the jury a United Nations raid on Abdi House
4928
1 that is not relevant to the issue in this case, what was al
2 Qaeda's mind set. And there is a 403 issue here. It's very
3 serious. And we are getting before the jury the issue what
4 was al Qaeda thinking in 1992? Were they going to attack
5 Americans? What was their interest? The fact that the Somali
6 populace turned against Americans after the attack on Abdi
7 House --
8 THE COURT: The problem with that is that part of the
9 government's theory is that al Qaeda and Mr. Odeh in
10 particular were training Somalis. Now, if at the time you
11 were training Somalis it was comparable to training Afghans
12 resisting the communists, then it is not within the scope of
13 Count One, so the attitude of the Somalis is relevant, and
14 whether or not one can say that training Somalis was in
15 furtherance of the objectives of the conspiracy is relevant
16 here. I think that the government's concern is correct.
17 I'm going to repeat what I said yesterday. With
18 respect to the raid on Abdi House I'll permit a few leading
19 questions. And I suggest before he takes the stand you
20 caution the witness that you may ask him whether he was aware
21 of an event, the time or whatever it is; whether based on what
22 he has seen and heard that had a significant impact on the
23 attitude of Somalians with respect to the United States forces
24 working in connection with the UN; and whether or not there
25 was -- if he knows -- and whether or not there was an
4929
1 escalation or initiation of anti-American feeling subsequent
2 to that event, and that's it. I mean, that's it with respect
3 to Abdi House.
4 MR. SCHMIDT: Your Honor, I wasn't planning on doing
5 more than that.
6 THE COURT: Very well.
7 MR. FITZGERALD: Judge, that's what concerns me. We
8 agree. We've elicited from witnesses that people went to
9 Somalia to train before the Americans were there. We agree
10 that there was a time when the training did not involve
11 Americans. But Mr. Schmidt agreeing with your Honor's
12 description doesn't give me great comfort. Every time --
13 THE COURT: I'll give you greater comfort. The
14 moment there is a significant deviation, the moment that the
15 witness attempts to parade the blood and gore or the details
16 of Abdi House, that witness' testimony will be concluded.
17 Mr. Cohn.
18 MR. COHN: Your Honor, your Honor may recall that we
19 sought to strike the 18 deaths --
20 THE COURT: That's not now.
21 MR. COHN: I understand, but it needs a little
22 preface. I'm sorry, I generally don't do a long windup, but I
23 need to put this in some sort of context.
24 The Court has now in a sense agreed with our argument
25 then by telling the government that they didn't think the
4930
1 causal connection has been made, and you may remember that I
2 tried to bar the testimony of Special Agent Yacone on the 403
3 analysis which we lost because it was an overt act. And now
4 he's testified, the overt act is gone, and I believe that his
5 testimony ought to be stricken on the present state of the
6 record. And, if the Court agrees with me, I know the
7 government doesn't, because I asked them, and if the Court
8 agrees with me that it ought to be stricken, but believes that
9 after the testimony on Abdi House that will change, then I'm
10 asking for a severance now, because this is the second time at
11 least in which what the Court has moved the relevant defense
12 to a non-death defendant is impacted on, if my analysis on
13 Yacone is right, has impacted on the death phase.
14 THE COURT: The motion for the severance is denied.
15 Mr. Schmidt, excuse me. When did you learn that the
16 government was willing to drop the, let's call it the old
17 lettering, overt act Y? Did you learn that prior to this
18 morning?
19 MR. SCHMIDT: I didn't even know that.
20 THE COURT: You don't know it now? Have you been
21 listening?
22 MR. SCHMIDT: Your Honor, I have missed it.
23 THE COURT: Tell me if I'm wrong, that the government
24 has advised us that in the submission it is going to make it
25 will consent to the deletion, among other things, of overt act
4931
1 Y, using the old lettering, which is 18.
2 In light of what you heard now, and in light of the
3 government's reservation of the right on rebuttal to show that
4 there was an attack made on Americans en route to Somalia in
5 1992 and 1993, do you want to rethink the wisdom of calling
6 this witness for the limited purposes for his testimony?
7 MR. SCHMIDT: Your Honor, we just, I found this out
8 now. I don't know if I missed something yesterday, but I just
9 found this out now.
10 If the government is not going to argue that any
11 member of al Qaeda was involved in killing Americans in
12 Mogadishu, I do not need this witness. If they are going to
13 argue that, they are just going to limit themselves to the
14 training of, I do not need this witness.
15 My concern was the fact that if you're charged with a
16 conspiracy to kill, right, and then they bring, I have to
17 bring in proof that was accomplished, my concern was that it
18 was accomplished not by al Qaeda, it was accomplished by other
19 people. If they're not going to argue that it was
20 accomplished by al Qaeda, I don't need this witness.
21 THE COURT: That's precisely my question. Let's look
22 at the indictment. I'm looking at objects of the conspiracy
23 page 10 of the indictment. I don't know if we're all using
24 the same version.
25 MR. WILFORD: Paragraph 11, your Honor.
4932
1 THE COURT: Paragraph 11. And that has to kill
2 United States nationals who were serving in their official
3 capacity in Somalia. The government wishes to retain that?
4 MR. FITZGERALD: No. But I didn't want to mislead
5 your Honor. Let me tell you what our position is. The
6 proposed revised indictment that language was reworked which
7 is being typed now.
8 The second and third objectives were being subsumed
9 within the first, as we discussed was a possibility yesterday
10 afternoon. So what it's going to say is objective to kill
11 Americans. Let tell you what the government's theory has
12 been, and we've had conversations about dropping that going
13 back over months I realize. There wasn't a stipulation.
14 The testimony of al Fadl was that he understood that
15 Abu Hafs, the military commander, went to Somalia to assess
16 the situation to see how they might be able to fight the
17 Americans. The testimony was that al Qaeda people went to
18 Somalia for various reasons. There was issues going on
19 separate from America. There were attacks in Mogadishu where
20 Harun and Sali were both later told the witness Kherchtou they
21 were present in Mogadishu trying to help fight the Americans.
22 There is a report in the computer that was found in
23 Wadih El Hage's house where Harun describes the Nairobi cell
24 as basically the support base for the cell because he said
25 that the Sheik's people, Bin Laden's people are responsible
4933
1 for the attack in Somalia.
2 THE COURT: Give me a moment.
3 Marshal, would you ask them to tell the jury we're
4 going to be some time.
5 MR. FITZGERALD: The government's theory has never
6 been a forensic case of proving a murder in Somalia saying
7 this bullet came from al Qaeda members. What we have sought
8 to prove is that al Qaeda was involved in Somalia. There were
9 other issues going on there, but there was an issue in seeking
10 to go to try to attack Americans, they provided training that
11 they understood that some of the people they trained may be
12 responsible or were responsible for the killings.
13 We're not going to say that when Agent Yacone was
14 shot down that an al Qaeda member pull the trigger. Our point
15 is to show the state of mind of the al Qaeda conspiracy.
16 Bin Laden has issued fatwas saying that the United
17 States is coming to Somalia to take over the country, to
18 colonize it, to invade the Sudan. A fatwa to attack the
19 Americans in Somalia. The point isn't how people got shot or
20 how they got killed, but what the mind set is. That's why
21 we're willing to drop the overt act. That's the argument
22 we're going to make, but we're not going to say this soldier
23 was killed by al Qaeda people.
24 THE COURT: So that in paragraph 11 the reference to
25 killing American military in Somalia is not going to remain.
4934
1 MR. FITZGERALD: That's the proposal. I will read
2 what it will state. It was a part and object of such
3 conspiracy that the defendants, and others, known and unknown,
4 would and did murder United States nationals. I think that's
5 where it stops, period.
6 THE COURT: Does anybody object to that amendment of
7 the indictment?
8 MR. RUHNKE: Your Honor, this is a death case for my
9 client as well.
10 THE COURT: Excuse me?
11 MR. RUHNKE: This is a death case for my client as
12 well.
13 THE COURT: You know, can I just say one thing,
14 please? I'm aware this is a death case, and I'm aware of
15 which defendants are eligible for the death penalty, and I
16 really do not have to be reminded of that repeatedly.
17 MR. RUHNKE: Your Honor, when I lectured seminars I
18 tell lawyers to do exactly not that unless they really think
19 the jury has forgotten, and I apologize.
20 THE COURT: Sometimes Judges resent it when it
21 appears as if the Judge has to be reminded of that.
22 MR. RUHNKE: I apologize --
23 THE COURT: Very well.
24 MR. RUHNKE: -- for making the obvious point. We
25 have testimony in this case, very dramatic testimony from
4935
1 Capt. Yacone about what occurred in Mogadishu when the 18
2 soldiers were dead, and, indeed, testimony about mortar fire
3 that killed another member of the armed services. If that
4 testimony, if that overt act is no longer in the case, why,
5 and I ask this rhetorically, why is that relevant at all?
6 THE COURT: Why is what relevant at all?
7 MR. RUHNKE: The death of the 18 American soldiers.
8 THE COURT: The government is taking that out.
9 MR. RUHNKE: But they're leaving the testimony.
10 THE COURT: Are you joining in Mr. Cohn's motion to
11 strike that testimony?
12 MR. RUHNKE: What's the relevance, what's the
13 remaining relevance of that testimony to this case? Is it not
14 a false gift to the defense to quote unquote take the overt
15 act out of the indictment, leave the evidence there, and just
16 recast it into another object of the conspiracy, allowing the
17 government to say, see what kind of things al Qaeda can
18 produce? We had the testimony from Capt. Yacone about the
19 dead 18 soldiers.
20 THE COURT: What is the government's response to the
21 motion to strike, assuming, and I give you moment to tell us
22 what other Somali-related changes you make to the indictment,
23 and assuming that Mr. Schmidt on behalf of El Hage reaches the
24 conclusion that those changes obviate this testimony, to the
25 striking of the testimony of Agent Yacone, who, as I recall,
4936
1 the government called when it learned that the stipulation
2 which had everyone assumed would be acceptable was not going
3 to be entered.
4 MR. FITZGERALD: There are no other changes in the
5 indictment.
6 THE COURT: All right. I think we all have to be on
7 the same page. The change with respect to Somalia are what
8 you've just said with respect to paragraph 11, the over act Y
9 comes out in its entirety. Y is simply deleted an Q remains.
10 Odeh provided military training and assistance to Usama also.
11 Is Q in or out?
12 MR. FITZGERALD: Q is in. Just so we're clear, there
13 are other changes made to the indictment not affecting
14 Somalia.
15 THE COURT: We're just dealing now with Somalia. I
16 hope before our conference at the end of the day, and the end
17 of the day may be sooner than 4:30, that we'll know what those
18 other changes are.
19 MR. FITZGERALD: Yes, Judge. The reason of timing I
20 had to go through all the exhibits Mr. Schmidt put in
21 yesterday and we finished the early part --
22 THE COURT: I'm aware of the burdens. If you like to
23 think about it, discuss it with your colleagues, we can take a
24 recess.
25 The suggestion is that the change be made with
4937
1 respect to the language in paragraph 11 and no defendant
2 objects that that is an inappropriate amendment of the
3 indictment; that Mr. Schmidt not call the Somali expert and
4 the testimony of Agent Yacone be stricken.
5 You want to think about that?
6 MR. FITZGERALD: Yes, but I can make two comments so
7 other people can think about other things.
8 First, your Honor, I think we ought to know what the
9 defense position is, because people come to us, they say we,
10 are not, redact the overt act, remove the overt act. When I
11 remove the overt act they accuse you of a false gift. We keep
12 reacting to things from the defense and then they change their
13 position.
14 Our view, however, and I'll talk with my colleagues,
15 that Yacone's testimony should stay for the reason that there
16 is discussion by Bin Laden, there is discussion by al Fadl of
17 what Abu Hafs said of attacks on Americans in Somalia. Those
18 attacks were by RPGs, by techniques used by al Qaeda training.
19 We're not saying al Qaeda's people pulled the trigger, but we
20 had to put something in the record to establish those attacks
21 to show that when Harun, who Mr. Schmidt tried to characterize
22 as a braggart, is talking about the fact that al Qaeda
23 considers itself responsible for those attacks, that would
24 show what he meant.
25 But the bottom line is we need to know the defense's
4938
1 position. Every time we think over a position, they come back
2 and then they switch back.
3 THE COURT: If we do it, it will all be on the
4 record.
5 MR. WILFORD: Your Honor, I have a question of the
6 government with respect to this December 29th incident that
7 they intend to somehow connect to al Qaeda. Can he be a
8 little bit more specific about the proof, because the way it's
9 been presented that there is a direct connection between that
10 bombing and al Quaeda, and that's where we started off with
11 the 18 servicemen. I don't want to wind up in the same
12 position.
13 THE COURT: Did Bin Laden take credit for that? Yes,
14 I understood to have been said. You know what?
15 MR. SCHMIDT: Your Honor, may I have one point?
16 MR. COHN: I want to alert the government to some
17 other --
18 MR. SCHMIDT: One issue remaining, that we may not
19 call the witness, that the government sort of argued that
20 while they're not going to put forensic proof in al Qaeda was
21 involved in the killing, my concern is very simple. I was
22 prepared to live by the indictment. The indictment said
23 training and training trainers.
24 If the government was going to argue that the words
25 that Harun wrote in the security report and what Bin Laden has
4939
1 said indicate that they actually participated in the killing,
2 I need my witness. If the government is going to argue that
3 what they said indicates that they felt they were responsible,
4 they trained the people who did it, then I do not need my
5 witness. The government cannot argue either by the statement
6 by the other witness' testimony that al Qaeda killed
7 Americans.
8 THE COURT: Am I correct that the evidence includes
9 Bin Laden's statements with respect to al Qaeda's objectives
10 in activities in Somalia?
11 MR. FITZGERALD: Yes, Judge. He indicated that he
12 did help Aideed in one of his statements. But our theory is
13 training responsibility, not physical killing.
14 MR. SCHMIDT: If that is --
15 THE COURT: Training?
16 MR. SCHMIDT: Excuse me?
17 THE COURT: Are you saying that for you not to call
18 the witness, the government has to abandon training?
19 MR. SCHMIDT: No.
20 THE COURT: Okay.
21 MR. SCHMIDT: The opposite. They have to limit
22 themselves to training and they have to abandon any claim that
23 any member of al Qaeda actually participated in the physical
24 act of attempting to kill or kill Americans in Somalia.
25 MR. COHN: You know, put this in perspective, and not
4940
1 changing my position, but just alerting the Court to a
2 concern, and the government to it as well, and that is we're
3 now talking about striking the testimony of a major witness in
4 its entirety.
5 You can't do that. I'm not sure that works, but I'm
6 not prepared to say it doesn't. But you can't do that with
7 just a simple charge saying, it's stricken. I think you
8 really have to advise the jury, if we do that, in somewhat
9 stronger terms.
10 THE COURT: I would think that a more effective way,
11 because regardless of the legal fiction that when you say
12 something is stricken it goes out of the mind, I think a more
13 pragmatic and useful device would be a stipulation that no
14 claim is made with respect to the events testified to by
15 Special Agent Yacone that any members of al Qaeda or persons
16 directly trained by al Qaeda were responsible for the deaths
17 of the Americans. That language can use a little polishing.
18 MR. FITZGERALD: I can tell you where we would have a
19 problem with the language. I think we can say there is no
20 contention. We're not going to stipulate that al Qaeda --
21 THE COURT: There is no contention. The government
22 makes no contention that --
23 MR. FITZGERALD: But that no one from al Qaeda
24 physically shot -- we don't want to exclude people trained by
25 al Qaeda. We're just saying responsibility, not that they
4941
1 physically killed the people in Mogadishu.
2 THE COURT: Why don't one of you start to work on
3 some language?
4 MR. COHN: I would like that to include, and no
5 defendant on trial is legally responsible therefore.
6 THE COURT: Now, you know, you're not, you're asking
7 for --
8 MR. COHN: The problem it was 1992. Yes, I can tell
9 the jury my client was 12 or whatever age he was at the time
10 or 14, but --
11 THE COURT: I think if we do this, the bombing in
12 Yemen in 1992 is not relevant. I think this is a very
13 significant point. I think this has been a very useful
14 discussion I hope some of these matters are consummated. Why
15 don't we take a ten-minute recess, or, if at the end of ten
16 minutes you think it is a productive to take a longer recess,
17 we'll take a longer recess.
18 MR. RUHNKE: Practically speaking, your Honor, I
19 think what probably needs to be done is the defense lawyers
20 need to talk among themselves for a bit, and then meet with
21 the government so that we have --
22 THE COURT: You want me to declare a longer recess?
23 MR. COHN: Yes. You can tell the jury whatever you
24 need to tell them.
25 THE COURT: Why don't we adjourn until a quarter
4942
1 after 11, and if either the government or defense lawyers
2 believe at an earlier point that this is all an academic
3 exercise, then let the Court know, and if any of you believe
4 another five or ten minutes would be useful, let the Court
5 know, and I'll repeat my instruction to the jury that they
6 relax.
7 MR. COHN: Give us a half hour, because this is not a
8 hallway discussion. I think we have to talk in the defense
9 room --
10 THE COURT: No, I don't think it's a hallway
11 discussion.
12 MR. COHN: -- where we can ventilate at whatever
13 volume we wish.
14 THE COURT: I'm just wondering whether it is too
15 early perhaps for them to go out to lunch. Half an hour. So
16 that would be 20 after 11.
17 (Recess)
18 (Continued on next page)
19
20
21
22
23
24
25
4943
1 (In open court; jury not present)
2 THE COURT: Gentlemen, you have returned.
3 MR. WILFORD: Not everyone, your Honor.
4 Mr. Schmidt and Mr. Dratel will be up shortly. They
5 had an additional issue to discuss and they will be right up
6 and we think we'll be able to present something to the Court.
7 We'll need about two minutes to discuss it with the
8 government.
9 THE COURT: I just like to keep the jury apprised
10 because they're just sitting in that room.
11 Are we going to have any proceedings this morning?
12 MR. WILFORD: We should, your Honor. It's just as
13 soon as they come up we'll be able to move rather rapidly, I
14 believe.
15 THE COURT: Let me know when you are ready.
16 (Recess)
17 THE COURT: Somebody want to tell me? Mr. Ruhnke?
18 MR. RUHNKE: Your Honor, here's where we are. We are
19 going to ask the Court to strike the testimony of Agent Yacone
20 and to deliver a strong curative instruction to the jury -- a
21 strong instruction, not curative -- a strong instruction to
22 the jury which we have drafted.
23 If your Honor grants that motion, Mr. Schmidt and
24 Mr. Dratel have agreed they will not call, and have no need to
25 call, the witness. So our initial action, our initial motion
4944
1 is to strike the testimony of Agent Yacone, and if your Honor
2 does strike that testimony, the witness will not be called.
3 And I have a limiting instruction, a curative instruction,
4 that we have drafted for your Honor's consideration, which I
5 can read if you would like.
6 MR. FITZGERALD: We oppose that, your Honor. I
7 haven't seen the instruction.
8 Here is the point. If what they are seeking to do is
9 to take an issue out of the case and instruct the jury what
10 the issues are, first of all, I don't think --
11 THE COURT: Why don't we listen to it first. Why
12 don't we listen to it.
13 MR. RUHNKE: Your Honor, we're not asking the Court
14 to instruct the jury what the issues are, we're asking it to
15 strike certain testimony.
16 THE COURT: Let me at least hear what it is.
17 MR. RUHNKE: Here is the instruction we've proposed:
18 Ladies and gentlemen: In the past I have instructed
19 you from time to time to strike certain testimony. In those
20 such cases, the evidence in question was of a, relatively
21 speaking, minor nature in terms of length or dramatic
22 emotional nature.
23 I am now about to instruct you will to strike from
24 the evidence the testimony of Agent Yacone regarding the
25 October 1993 events in Mogadishu, Somalia. Frankly and
4945
1 candidly, I do not expect you to forget that evidence. That
2 would be humanly impossible. However, what I call upon you to
3 do as jurors is to pledge not to consider, use, or refer to
4 that testimony in any way or for any manner in deciding the
5 important issues before you.
6 It would be a violation of your oath as jurors to
7 disregard this instruction. I will direct my clerk to collect
8 the notes that you have on Agent Yacone's testimony and they
9 will be disposed of in such normal manner.
10 THE COURT: Tell me the whole -- that's it?
11 MR. RUHNKE: That's it.
12 THE COURT: That's it?
13 MR. WILFORD: That's it.
14 MR. RUHNKE: That's it.
15 THE COURT: What is the government's position?
16 MR. FITZGERALD: Strongly opposed.
17 THE COURT: I am surprised at that because, first of
18 all, it's a totally ineffective instruction. It's saying go
19 in the corner and don't think about the polar bear, and I warn
20 you it would violate your oath for you in the corner, if you
21 thought about the polar bear. And I'm going to take away your
22 notes, the notes of the jurors, personal belongings. So that,
23 apart from any other issue in the case, on the merits it is a,
24 I think, an absurdly -- forgive me -- absurdly ineffective,
25 inappropriate instruction.
4946
1 I think that because it is unrealistic to expect the
2 jury to totally disregard it. It makes considerably more
3 sense, both as a matter of human experience and in accordance
4 with the government's views on the merits, to have a statement
5 to the jury with respect to that testimony: You should
6 understand that no contention is being made by the government
7 that any defendant in this case, or whatever, was responsible
8 for the deaths of the various people.
9 I think that it would be contrary to everyone's best
10 interests to run the considerable risk of the escalation of
11 the Somalia matter, which, for three-quarters of this trial,
12 everybody assumed was going to be resolved by a stipulation
13 because of the government's objections and the Court's
14 unwillingness to strike with an instruction of that sort
15 rather than a stipulation such as I proposed.
16 But that's for you. The government called that
17 witness only when a stipulation, which I have never seen and
18 do not want to see, but which apparently all the lawyers
19 agreed but a client blocked, as is his right.
20 If that's the proposal, I would suggest that
21 Mr. Schmidt call his witness.
22 MR. RUHNKE: Your Honor, can I just, speaking now for
23 the discussion that we had.
24 THE COURT: Yes.
25 MR. RUHNKE: Your Honor may be correct to some degree
4947
1 or incorrect to some degree about the efficacy of limiting
2 instructions. For better or worse, we trust jurors to listen
3 to courts' instructions, and if we can't trust them to listen
4 to instructions, as many appellate courts have told us they
5 are presumed to do, I don't know where we are at all in terms
6 of the basic premises of trial law and judges instructions,
7 Dostoyevsky and the white bear problem. It's hard when
8 someone says, "don't think about a white bear."
9 However, what the government is doing is trying to
10 have its cake and eat it too in a very real sense. They want
11 to say to us, here, defense, we are taking from the indictment
12 the allegations about the dead 18 American soldiers and the
13 19th soldier who was killed during the mortar attack, that's
14 actually still in the record; however, we want to take that
15 evidence and argue it exactly as if the overt act remained in
16 the indictment. Because it has never been the government's
17 contention that any of the men on trial here participated in
18 the attack in October of 1993. It's never been the
19 government's contention that anybody who was a member of al
20 Qaeda ever participated in the attack.
21 THE COURT: I have another thought which I would like
22 to put down on paper. If I may have a moment.
23 MR. RUHNKE: Of course, your Honor.
24 (Pause)
25 THE COURT: This is rough, but the proposal would be
4948
1 that: The parties have agreed to a stipulation as follows:
2 1. The government does not contend for the purposes
3 of this case that any defendant on trial or al Qaeda members
4 directly participated or caused the death of any Americans in
5 Somalia.
6 2. In the light of this stipulation, the testimony
7 of Special Agent --
8 MR. RUHNKE: Yacone.
9 THE COURT: -- Yacone as to the death of U.S.
10 servicemen is no longer relevant, and his testimony is
11 therefore stricken in its entirety.
12 MR. FITZGERALD: I would object, your Honor, and if I
13 could just explain four brief points.
14 First, in this case we would offer to prove Yacone's
15 testimony is relevant. I understand the concerns that people
16 have that they think we need to place it in context. The
17 government has always been willing to try to establish the
18 facts we wanted to prove by other methods, by stipulation. No
19 one agreed.
20 But no one in the government sought to guild the
21 lilly in the proof of the bombing. We didn't put in a lot of
22 gore. In Agent Yacone's testimony, his direct testimony was
23 entirely consistent with the proffer. We have never contended
24 that any defendant in this courtroom participated in that
25 attack.
4949
1 The 403 prejudice, if you step back for a moment to
2 an attack which the government has never contended that any
3 defendant participated in, which was an attack on military
4 personnel in 1993, in a case where the defendants are charged
5 with being part of a conspiracy to kill civilians, where the
6 main charge is the killing of over 200 civilians in a
7 building, has to be looked at.
8 What I would suggest would be an instruction for the
9 Court -- I'll just give you the language.
10 The Court instructs the jury that the government
11 contends that al Qaeda viewed the United States as an enemy at
12 some point prior to the incident. Al Qaeda members trained
13 persons in Somalia and al Qaeda members viewed al Qaeda as
14 being responsible for attacks on Americans because of training
15 provided.
16 The government does not contend that the attacks
17 carried out on October 3 were physically carried out by al
18 Qaeda members. There is no contention that any defendant on
19 trial participated in the attack on October 3.
20 The defense disputes the government's contentions,
21 and you will hear further argument during summations from both
22 sides about what the evidence means.
23 The point here, it is irrelevant if the defense
24 witnesses stipulate to the elements. What is relevant is
25 there were attacks on American soldiers that al Qaeda could
4950
1 believe they were responsible for because of their training.
2 They train people in how to use RPGs. That's a technique they
3 developed in Afghanistan. RPGs were used on October 3. The
4 point being, we have testimony that the number two man in al
5 Qaeda, the military commander, said that he believed al Qaeda
6 was responsible for the attacks on Americans.
7 We have Harun, Fadhl, who carried out the bombing in
8 Nairobi saying that. If we had not put that proof in, they
9 would come back and say, where is it in the proof that anyone
10 in al Qaeda really believed that they were going against
11 Americans? That's been the purpose of the proof all along.
12 We offered to do it a different way. The defense
13 didn't want to go that route, so we put the witness on after
14 telling people, if you don't stipulate, here's what's coming.
15 THE COURT: I'll tell you what I suggest we do. I
16 don't think there is going to be unanimity here, although I
17 suppose in the first instance it's up to El Hage's counsel to
18 determine whether to call this witness. What I suggest is
19 that we leave the record as it is, that we leave the
20 testimony, except that we do tell the jury that the government
21 does not contend that any defendant now on trial or al Qaeda
22 member was directly involved in the killing of Americans in
23 the events of whatever that day is.
24 MR. FITZGERALD: October 3.
25 THE COURT: Does the government have any objection to
4951
1 that?
2 MR. FITZGERALD: I want to know what -- I want to
3 hear what the defense says. Every time we agree to
4 something --
5 THE COURT: All right.
6 MR. RUHNKE: Your Honor, we have on the table and
7 before your Honor a motion to strike the testimony. The
8 reason for the motion to strike is that the government has
9 withdrawn an overt act in the indictment, and yet it appears
10 that what the government wants to do is withdraw the overt act
11 and yet argue it.
12 Even the terms of the overt act itself I think bears
13 thinking about in its worst case scenario, and that is that
14 persons trained by al Qaeda, which does not include any
15 members of al Qaeda, and persons trained by people who were
16 trained by al Qaeda, which does not include any member of al
17 Qaeda, and ipso facto, nobody in this room --
18 THE COURT: That's why I'm suggesting that even
19 though Mr. El Hage's attorneys, if they wish, can call the
20 witness and the government can offer proof in its rebuttal
21 case of the bombing of American troops in Yemen and American
22 troops in Mogadishu, Somalia, that with respect to the battle
23 which was the subject of Agent Yacone's testimony, that the
24 jury be advised that the government is not contending --
25 MR. RUHNKE: That is the government's theory of the
4952
1 indictment in the first place.
2 THE COURT: Excuse me?
3 MR. RUHNKE: It's the government's theory of the
4 indictment in the first place that al Qaeda was not involved
5 in the battle in Mogadishu. That's where we started from,
6 that al Qaeda was not involved.
7 THE COURT: Let me have the language again of what
8 the government does not contend.
9 MR. FITZGERALD: Your Honor, yes. The government
10 does not contend that the attacks carried out on October 3
11 were physically carried out by al Qaeda members. There is no
12 contention that --
13 THE COURT: A little slower, please.
14 MR. FITZGERALD: The government does not contend --
15 THE COURT: That the attacks on October 3 were
16 physically carried out.
17 MR. FITZGERALD: By al Qaeda members.
18 THE COURT: Yes.
19 MR. FITZGERALD: There is no contention that any
20 defendant on trial participated in the attacks on October 3.
21 THE COURT: Mr. Schmidt, it's your witness that you
22 wish --
23 MR. SCHMIDT: May I be heard? First of all, your
24 Honor, it has to include not just the October 3 attack, it has
25 to include all attacks mentioned by the witness, and that
4953
1 included an October 6th, I believe, attack.
2 MR. RICCO: Your Honor, I would like to be heard at
3 some point on behalf of Mr. Odeh. I don't want to give the
4 impression that Mr. Schmidt, we're going to work this out, and
5 all of a sudden we're hearing from other counsel there's no
6 unanimity on this.
7 MR. FITZGERALD: If I could make one point how we
8 proceed.
9 THE COURT: Mr. Schmidt has a right or not to call a
10 witness.
11 MR. RICCO: He does, your Honor, but we have a right
12 to have our motion to strike the testimony.
13 THE COURT: I understand that. I haven't cut
14 everybody off, but I'm just saying that the decision whether
15 or not to call a witness is a decision made in the first
16 instance by the proponent of the witness.
17 MR. FITZGERALD: Let me just say one thing. It is
18 important for the government to know where the defense stands.
19 We get proposals, for example, where we are removing overt
20 acts and there was a motion to strike an overt act. We don't
21 think there was anything wrong with offering that proof. We
22 think the proof was properly received and, frankly, the overt
23 act can stay. We thought we were resolving the issue. Then
24 we take the overt act out, say remove it from the indictment.
25 Then we say, what's the evidence doing here?
4954
1 THE COURT: I understand why you have that belief,
2 but I have to tell you that I came on the bench this morning
3 before word one was spoken with having spent some time, as I
4 indicated, on the viability of Overt Act y. and had concluded
5 that it was not viable. So it isn't as if a good deed on the
6 part of the government was being abused.
7 MR. FITZGERALD: But striking the overt act doesn't
8 mean that the testimony -- okay, and all I'm saying is now
9 we're treating this as if somehow the government improperly
10 put testimony before the jury, and I think we ought to --
11 THE COURT: What I am leaning towards is not striking
12 the testimony but limiting its possible usage by an
13 instruction that says as I indicated before.
14 There is an objection to limiting it to October 3
15 because there was testimony with respect to the mortar attack
16 that was on the later date.
17 MR. FITZGERALD: We can talk about October 3 and
18 October 6.
19 THE COURT: October 3 or October 6.
20 MR. SCHMIDT: Your Honor, if I may.
21 THE COURT: I'm going to give you a full opportunity
22 to be heard. I just want to get this down on paper.
23 The government does not contend that attacks in
24 Mogadishu on October 3 or October 6 were physically carried
25 out by al Qaeda members and no contention that any defendant
4955
1 on trial participated in attacks on those dates.
2 Yes.
3 MR. SCHMIDT: I'm trying to save your Honor writing
4 time.
5 One, that there is no evidence that anybody was
6 involved in any of the attacks. I think the proper way would
7 be "any attacks" in Mogadishu so that it doesn't leave the
8 jury with any speculation that there might be other attacks
9 not covered in the stipulation. And since there is no
10 evidence of any other one, I think it should be "all attacks."
11 MR. FITZGERALD: Your Honor?
12 THE COURT: That's your point?
13 MR. SCHMIDT: On that issue.
14 THE COURT: Yes.
15 MR. FITZGERALD: Your Honor, we do have -- if we're
16 going down that road, there is proof. The military commander
17 says that al Qaeda is responsible. We have documents saying
18 they are responsible. They're not specific as to which
19 deaths. We're trying to put Yacone's testimony in
20 perspective. But I think just --
21 THE COURT: I have to deal with the evidence that is
22 before me.
23 MR. FITZGERALD: We have a document written by Harun,
24 Fadhl, in a computer, which he had no motive to lie, saying
25 everyone knows well that the member of the Sheik's cell in
4956
1 Nairobi were responsible for hitting the Americans. He
2 doesn't specify that they physically carried out the attacks
3 or trained people, but now Mr. Schmidt is seeking to have the
4 court basically charge the jury that that statement is false.
5 MR. SCHMIDT: Your Honor, what the government is
6 saying, if I may, is that they want to argue that they are
7 physically responsible. Their theory --
8 THE COURT: This is a statement to the jury as to the
9 government's contention and it can't be broader or less than
10 the government's contention.
11 MR. SCHMIDT: Your Honor, I am perfectly satisfied,
12 if you are not going to give that charge, because if you are
13 not going to give what's called a stipulation is to say that
14 because the government has gotten up here and said --
15 Withdrawn.
16 We do not argue that the government does not have the
17 right to argue that Harun and al Qaeda is responsible for the
18 deaths of Americans because they, as indicated in the
19 indictment, train people or train the trainers.
20 THE COURT: And claim credit for it. And claim
21 credit for it.
22 MR. SCHMIDT: Claim credit. But the manner are they
23 criminally responsible as set forth in the indictment is by
24 training or training the trainers, not by actually
25 participating in the killing. The government stands up and
4957
1 says that, well, this is relevant because he says he killed
2 them and it sounds like they want to argue that they
3 participated in the killing, and that's not what -- they are
4 not allowed to do it based on the proof and the indictment.
5 Otherwise, their theory of the indictment has changed.
6 I think it is very simple. I'm not asking to be
7 precluded from arguing that they are responsible, I'm just
8 saying they should be limited to say how they are responsible
9 is by the indictment, period.
10 THE COURT: What the Court will do, because I'm
11 dealing only with this testimony, I'm not dealing with
12 anything beyond the testimony, is tell the jury: Ladies and
13 gentlemen, with respect to the testimony which you have heard
14 of Special Agent Yacoon --
15 MR. WILFORD: Yacone.
16 THE COURT: Y-A-C-O-N-E, right?
17 -- the government does not contend that the attacks
18 in Mogadishu on October 3 or October 6 were physically carried
19 out by al Qaeda members. There is no contention that any
20 defendant on trial participated in these attacks.
21 MR. SCHMIDT: Your Honor, because it's a conspiracy,
22 I would ask that "it was not carried out by any members of the
23 conspiracy," not just al Qaeda.
24 MR. RICCO: Your Honor, again I rise to say that the
25 Court --
4958
1 THE COURT: Do you have an objection to that?
2 MR. RICCO: Judge, I want to be heard on this.
3 THE COURT: Let me just ask this one point. Do you
4 have any objection? The government.
5 I'm trying to state what your contention is.
6 MR. FITZGERALD: Right.
7 THE COURT: And Mr. Schmidt is saying it shouldn't be
8 "carried out by al Qaeda members" but should say "carried out
9 by any member of the conspiracy" because it seems to me you
10 could be a member of the conspiracy and not be a member of al
11 Qaeda.
12 MR. FITZGERALD: That's fine, except I wonder, now
13 we're going to tell the jury, bring them in and tell them what
14 were not contending, so on balance, the jury may look and
15 think, what they are saying is they want to hear what we are
16 contending.
17 THE COURT: You will have two and a half days
18 hopefully next week to do that.
19 MR. FITZGERALD: Can we just tell them that, you will
20 hear what the government is contending. You bring them in to
21 say, the government is not contending X, Y and X, without
22 telling them what our contentions are. The government will
23 explain --
24 THE COURT: With reference to the testimony of
25 Special Agent Yacone. I'm not making any broader statement.
4959
1 Are you ready to go ahead with your witness?
2 MR. SCHMIDT: If I may have a moment. I think it
3 should include any of the attacks.
4 Whether you instruct them now or at the charge, I
5 guess it doesn't make that much of a difference, but I guess,
6 consistent with what the government's position is, the
7 responsibility, they are not charged with directly
8 participating in any attacks in Mogadishu. So that's one
9 point.
10 THE COURT: I'm dealing with what this witness
11 testified to, the parameters of my instruction on the
12 parameters of his testimony.
13 Are you ready with your witness?
14 MR. RICCO: Your Honor, we would like to be heard on
15 this subject.
16 THE COURT: Right.
17 MR. SCHMIDT: The other point, and --
18 THE COURT: How about the answer to my question?
19 MR. SCHMIDT: Your Honor has indicated that it would
20 allow testimony concerning the bombing in Yemen as rebuttal.
21 One of our determinations is going to be what offer of proof
22 the government is going to have in allegedly proving this
23 conspiracy's involvement in the Yemen bombing.
24 If there is a document of some nature that proves
25 that, then I believe that we should receive that and have an
4960
1 offer of proof now so we can make a decision as to our witness
2 based on that.
3 MR. FITZGERALD: Your Honor, he hands me 3500 in
4 discovery --
5 THE COURT: No. No. No. No. I know. Just
6 respond. We really shouldn't be -- it's the syndrome in
7 discovery when you say, I don't have something and, therefore,
8 that explains why I didn't give him what he's entitled to.
9 The question is, can you make some proffer as to what
10 the evidence will be with respect to the bombing of troops en
11 route to Somalia and whether there is a document which is the
12 basis for it?
13 MR. FITZGERALD: Your Honor, we're trying to
14 determine the best way to prove it. I believe there are
15 statements that have been turned over to the defense where Bin
16 Laden has taken credit for it. I think we're going to have
17 testimony from a witness explaining Abdi House. We want to
18 put a witness on explaining about Yemen, and just as it
19 took --
20 THE COURT: Will you, as soon as the government
21 determines, furnish that information?
22 MR. FITZGERALD: Yes.
23 MR. RICCO: I would like to be heard.
24 THE COURT: Mr. --
25 MR. RICCO: Ricco.
4961
1 THE COURT: Mr. Ricco, just give me a moment, please.
2 (Pause)
3 THE COURT: Yes.
4 MR. RICCO: Yes, sir. Your Honor, we had previously
5 moved on behalf of Mr. Odeh to have this overt act stricken.
6 THE COURT: Yes.
7 MR. RICCO: Special Agent Yacone's testimony was
8 allowed in this trial because of this overt act. He came in
9 to testify to the acts that took place in Mogadishu on October
10 3rd and 4th, 1993. The Court had previously denied our motion
11 to strike. The government now wishes to drop that overt act,
12 and the Court had said that it was inclined to strike it
13 anyway.
14 Given that posture, we would ask to have Special
15 Agent Yacone's testimony stricken in its entirety because its
16 only purpose for being before this jury was to prove up Overt
17 Act, now, y. The government may take the position that some
18 of what Agent Yacone testified to might have been permitted,
19 but I don't --
20 THE COURT: May I interrupt you a moment? I take it
21 that whether I strike Special Agent Yacone's testimony or
22 not --
23 No. Is it the defense position that if that
24 testimony is stricken, that they will not call a Somali
25 witness?
4962
1 MR. RUHNKE: Yes.
2 MR. RICCO: Yes.
3 THE COURT: I'm sorry. Go ahead.
4 MR. RICCO: The only thing I was going to add, your
5 Honor, was that because that testimony would not have been
6 allowed in the first instance, the 18 deaths, that testimony
7 should properly be stricken at this point if that issue is no
8 longer in front of the jury, that issue being the events that
9 took place in Somalia on October 3rd and 4th, 1993, because
10 I'm confident that with this overt act not in the indictment,
11 the Court would have entertained a 403 argument to keep that
12 evidence out in this case, and it's because of that that we
13 would ask that that testimony be stricken in its entirety.
14 And how the Court instructs the instructs the jury,
15 that's to the Court and we'll have to live by whatever
16 decision your Honor makes, but the first thing that should be
17 decided is that we should have a ruling on our motion to
18 strike that testimony in its entirety.
19 And when the government rose after Mr. Ruhnke
20 finished and said "we object," I'm not sure if they were
21 objecting to the proposed instruction or the fact that it
22 should be stricken, because it seems to me that the fact that
23 it should be stricken is automatic because it was only allowed
24 because it related to Overt Act y., which says October 3rd and
25 4th, 1993.
4963
1 THE COURT: You know, you all have to contemplate the
2 possibility that, in any event, the government in its rebuttal
3 case will present evidence of the bombing in Yemen of the
4 troops on the way to Somalia.
5 MR. COHN: Responding to what if they don't produce
6 their witness? It will now be an issue we will have to face.
7 If they don't produce the witness, what will the government be
8 rebutting? I haven't a clue, and we'll face that at the
9 appropriate time, I suppose.
10 I just want to make clear that Mr. Ricco speaks for
11 me not only in his motion but in terms of his reasoning, with
12 the additional factor which need not be mentioned to the
13 Court.
14 MR. RUHNKE: Your Honor, what has changed in this
15 colloquy this morning is your Honor's --
16 THE COURT: I'm going to grant the motion to strike
17 the testimony. I had attempted to encourage the parties to a
18 position which would have, I think, been a little more
19 realistic in terms of what the jury will practically do. We
20 can address later in the charge and the counts the other
21 implications of the dropping of the overt act which was
22 originally y.
23 I want to make it clear that because all of this is a
24 result of an 11th-hour determination not to enter into a
25 stipulation with respect to Somalia, I am not now precluding
4964
1 the government from introducing in its rebuttal case evidence
2 of anti-American action attributable to the coconspirators
3 with reference to Somalia and which goes back as early as the
4 entry of or proposed entry of American troops into Somalia.
5 All right, now what does that leave us with?
6 MR. SCHMIDT: Your Honor, the state of the record
7 right now, we do not intend to call that witness. Obviously
8 we --
9 THE COURT: And what?
10 MR. SCHMIDT: We reserve our right to make that
11 decision depending on the government's rebuttal.
12 THE COURT: But you are prepared to go ahead with
13 your --
14 MR. SCHMIDT: With our documents.
15 THE COURT: With your documents.
16 MR. SCHMIDT: I think the only thing that is
17 necessary that the government -- I think there's a list that
18 we have of documents that the government has an objection to.
19 I think I can go forward with -- it may take to break early --
20 go over the list and resolve them first.
21 THE COURT: And also I want to work on what I tell
22 the jury as to the striking. Maybe it would be better if we
23 break now and --
24 Let me make a logistical inquiry.
25 (Pause)
4965
1 Mr. Fitzgerald.
2 MR. FITZGERALD: Yes, your Honor. With Yacone's
3 testimony stricken, there is no evidence in the record that
4 there were American casualties in Somalia.
5 THE COURT: Yes.
6 MR. FITZGERALD: Now we have Bin Laden, evidence that
7 Bin Laden's taken credit for those casualties and Harun,
8 Fadhl, taking credit for those casualties. I'm not sure which
9 casualties they are responsible for. So the government would
10 like to advise the Court and counsel we now need to look at
11 how we establish the casualties that occurred in Somalia.
12 We're back to where we were because we rested with
13 that proof in there. So we may be coming back, in addition to
14 anything that may have happened in Yemen, we need to talk
15 about how we prove up casualties in Somalia. So I think that,
16 given that, we ought to think about waiting for the
17 instruction until we put whatever other proof is in.
18 THE COURT: Maybe I should just say it's stricken,
19 just say the testimony is stricken without more.
20 MR. FITZGERALD: Your Honor, why does that need to be
21 done now?
22 THE COURT: That's a good question. That's a good
23 question. I'm not sure it does have to be done now.
24 MR. COHN: It does have a certain attractiveness of
25 finality rather than pro-explication for reconsideration by a
4966
1 government that has been known to do that before. The
2 government asked for reconsideration of your ruling. I just
3 like to see finality of the issue.
4 MR. WILFORD: Your Honor, if I may. The only reason
5 why --
6 THE COURT: I can say it's stricken and -- you know,
7 it will be stricken.
8 I don't want to say anything to the jury which will
9 compel the government to introduce more. I was thinking of
10 saying it will be stricken because in the nature of other
11 evidence which the government will elicit, the government may
12 determine that Somalia is not the heart of this case nor
13 essential to this case.
14 MR. COHN: I don't speak for the others necessarily,
15 but I'm content with just telling them it's stricken. If it
16 needs more, that's what your charge is for at the end. I
17 mean, it's still not written in stone.
18 MR. FITZGERALD: Your Honor, we're prejudiced by
19 that. The jury is going to be called out, said the government
20 offered testimony, it's been stricken, as if we've done
21 something wrong, with no explanation of where we're going. I
22 think that it is inappropriate.
23 THE COURT: I don't think this jury is going to spend
24 the weekend brooding on the pilot's or the agent's testimony,
25 and so I will withhold an instruction with respect to that
4967
1 testimony. And I take it that by Monday the government will
2 have determined whether it is going to call another witness or
3 other documents with respect to causalities in Somalia. Maybe
4 that's something that can be the subject of a stipulation.
5 We're going to break for lunch and resume at a
6 quarter of 2, 1:45, and then I take it we'll complete El
7 Hage's testimony except that El Hage will rest or will not
8 rest, but whatever it will do will be subject to calling of a
9 fingerprint expert on Monday.
10 MR. SCHMIDT: Your Honor, we also have, in addition,
11 finishing the stipulations between the government and defense
12 counsel relating to documents, etc., that we may or may not be
13 finished with today, and we would ask that we be able to
14 finish those up and offer them on Monday as well.
15 THE COURT: But you will rest subject to that?
16 MR. SCHMIDT: Subject to that and after discussion
17 with my client.
18 THE COURT: You will rest subject to whatever it is
19 that you wish to reserve?
20 MR. SCHMIDT: That's correct.
21 THE COURT: But I would like to have a statement as
22 to what it is that you wish to reserve on.
23 MR. SCHMIDT: Yes.
24 THE COURT: We're adjourned until 1:45.
25 (Luncheon recess)
4968
1 A F T E R N O O N S E S S I O N
2 1:45 p.m.
3 (In open court; jury not present)
4 THE COURT: I think what I will tell the jury is
5 these things are not matters determined, but it is possible
6 that in approximately two weeks or so they will be called upon
7 to begin their deliberations at which time we will be sitting
8 on Fridays, and so they should not make any Friday plans for
9 that period of time.
10 MR. FITZGERALD: Your Honor, with regard to the
11 documents that Mr. Schmidt intends to offer this afternoon, I
12 have some objections. Briefly, by way of background, a number
13 of the documents received, in the government's view, were
14 turned over in violation of discovery obligations. There was
15 a search at the airport in 1997 of Mr. El Hage. The
16 government copied documents. Evidently, Mr. El Hage had
17 additional documents that were not copied. Some of those
18 documents were just recently the last couple of weeks, not in
19 the last two years turned over to be offered as exhibits.
20 THE COURT: Turned over by whom to whom?
21 MR. FITZGERALD: From the defense to us.
22 THE COURT: Yes.
23 MR. FITZGERALD: And no witness is being called to
24 authenticate them. I have a belief that there may have been
25 other documents that were received that are in the same
4969
1 position. We have not been able to find out what those other
2 documents are.
3 THE COURT: I haven't been following, the documents
4 were not seized?
5 MR. FITZGERALD: Some documents were seized at the
6 airport and copied. Evidently, there are additional documents
7 in the possession of El Hage that were not copied.
8 THE COURT: They were seized from him at the airport
9 but not copied?
10 MR. FITZGERALD: Either seized and not copied or not
11 seized. There are additional documents which the government
12 did not have copies of.
13 THE COURT: Okay.
14 MR. FITZGERALD: El Hage has been offering those
15 documents after just turning them over, but I do not have a
16 representation that I have a complete. We're being offered
17 what it is they wish to offer. I do not know what else is in
18 the pile of documents that were not seized or not copied and
19 they are being offered to show that they are legitimate
20 papers. Notwithstanding this, we haven't objected to most of
21 it. I realized at 1 o'clock in the morning yesterday ostrich
22 photographs were in evidence yesterday when those piles went
23 in. We've been very liberal, even though we think that there
24 are discovery violations.
25 THE COURT: I think they have been received subject
4970
1 to your right to remove to strike.
2 MR. FITZGERALD: Yes, Judge.
3 MR. SCHMIDT: Maybe I'm missing the point.
4 THE COURT: Why don't we let the government finish
5 making the point.
6 MR. FITZGERALD: Your Honor, what I'm saying is we've
7 been very liberal on what has been going in. There are
8 documents this afternoon that Mr. Schmidt wishes to offer, for
9 example, WEHX-14, which are hearsay. They are self-serving
10 statements about how good the NGO organization is.
11 THE COURT: On top of everything else, if these are
12 documents the only basis for which or the inspection of which
13 is Mr. El Hage's claim that he had them with him at the
14 airport, it seems to me that's not a sufficient foundation for
15 the introduction of the documents. It's one thing when it's a
16 document which the government turned over to the defendant,
17 and which can be identified by reason of that circumstance,
18 but if it's just a statement by counsel that this is a
19 document that Mr. Hajj had at some earlier point --
20 MR. SCHMIDT: Judge, the WEHX-DSK are the documents
21 in one of the floppy discs seized from Mr. El Hage's home in
22 Nairobi, kept in the government, and that we received in
23 discovery.
24 THE COURT: Mr. Fitzgerald is saying there are some
25 documents which the government did not have.
4971
1 MR. SCHMIDT: Those are other documents.
2 THE COURT: And that the government is seeing for the
3 first time a representation that those were documents were
4 never seized by the government. There is no basis for
5 introducing those documents.
6 MR. SCHMIDT: Your Honor, I'm not introducing. If
7 you recall when Mohamed Ali Odeh testified I had him identify
8 this handwriting of Mr. El Hage on a number of documents. The
9 ones that I am putting in that the government is complaining
10 about, that they may not have been copied by them when they
11 first seized them, those few, and there is not many, there are
12 a few of them, and they were identified by his handwriting.
13 So they will be identified as Mr. El Hage's document and it
14 relates to other documents or other testimony or other
15 exhibits already in evidence.
16 THE COURT: Even if there is no dispute as to whose
17 handwriting it is, you can't simply introduce a document and
18 say, here's a document written by the defendant at some
19 earlier date.
20 MR. SCHMIDT: Are we talking about authentication
21 issues?
22 THE COURT: Both. Start with that.
23 MR. SCHMIDT: Authentication issues, your Honor,
24 simply authentication, a person testifying that that appears
25 to be the handwriting of a particular person authenticates the
4972
1 document.
2 THE COURT: No, it doesn't. No, it doesn't.
3 MR. SCHMIDT: Also authenticating the document.
4 THE COURT: It may establish the fact that the
5 document is written by the defendant when it was written, who
6 it was shown to, or what are the circumstances.
7 MR. SCHMIDT: If the document itself --
8 THE COURT: No, no, it's not self-authenticating.
9 MR. SCHMIDT: The date of it.
10 THE COURT: Oh, please, Mr. Schmidt. If the
11 defendant sits down today and writes a document and the fact
12 that somebody else says, oh, that's his handwriting, that's
13 not enough.
14 MR. SCHMIDT: You're right. You're absolutely right.
15 This is a document that is dated July 15, 1995.
16 THE COURT: What is the proof that that is in fact
17 the date on which the document was written?
18 MR. SCHMIDT: That the date relates to the business
19 transaction that he had in Slovakia and we have another
20 document that comes from his computer that's seized by the
21 government that is dated, that is about the same topic that
22 authenticates that document.
23 THE COURT: It does not. The Court will not receive
24 if there has been inadvertently received documents which were
25 not seized by the government and returned to El Hage, or given
4973
1 to El Hage during discovery.
2 MR. SCHMIDT: Some of the documents are indeed --
3 THE COURT: Then those documents will not be received
4 or if already received, will be stricken. Anything else? Do
5 we know which documents they were?
6 MR. SCHMIDT: I would need to go through the
7 documents to make that determination. Some of them, your
8 Honor, if I may, are originals of documents that were seized
9 by the government and turned over to the defense.
10 THE COURT: As long as it can be established that
11 there was a time in which the government obtained that
12 document, and this is the original or a copy of that document,
13 then there is a basis, but when there is simply the statement
14 by counsel that this was a document which my client had and
15 the contents of it would seem to indicate a date when it was
16 written, and what it was written about, I think there is no
17 way that it is admissible absent the witness on the stand.
18 MR. FITZGERALD: We won't object to documents for
19 which he wants to put the original in if they are a better
20 copy of what we already have. The documents that we did seize
21 which is WHEX-14 we have a hearsay objection, which is it's a
22 document from the computer, but I can hand up a copy to your
23 Honor.
24 THE COURT: Yes, please.
25 MR. SCHMIDT: Give him the second page also. Thank
4974
1 you.
2 (Pause)
3 THE COURT: Yes. This is an August 26, 1996 letter
4 from the director of the Ministry of Planning.
5 MR. FITZGERALD: The context, your Honor, talks about
6 police conduct in Kenya, it's a complaining letter, and I
7 think as we had the other day with the phone calls to the
8 jury, there is the 403 prejudice problem. If he wants to
9 establish that, as I was told, that other people used the
10 computer, we can agree that there was a letter dated August
11 26, 1996 to the addressee, signed by the person at the bottom
12 but his polemic on how Kenya, he perceives, treats him I think
13 is not relevant and runs the risk of confusing the jury. It's
14 hearsay. It's not offered for the truth and we don't need the
15 content.
16 THE COURT: For what purpose is this being offered?
17 MR. SCHMIDT: Obviously Ahmed Sheikh used Mr. El
18 Hage's computer and fax machine.
19 THE COURT: If that's the reason, if that's the sole
20 purpose for which it is offered, then it seems to me that the
21 letter itself should be stricken. Just the address and the
22 facts at the top and the signature. The contents of the
23 letter itself are not relevant.
24 MR. SCHMIDT: The contents of the letter not relevant
25 for the purpose I wanted to put it in, but I wanted the jury
4975
1 to be aware of the existence of the letter drafted in fact by
2 this document.
3 THE COURT: But no reference in front of the jury to
4 the contents.
5 MR. SCHMIDT: Very good, your Honor.
6 MR. FITZGERALD: I ask it be simply redacted. That
7 goes for WEHDSK-19 and W1290.
8 THE COURT: Can we bring in the jury?
9 MR. SCHMIDT: Your Honor, I want, because I have an
10 example of one of the issues of authentication. The defendant
11 exhibits WEHX-DAC56 through 62 is an intercepted, poorly
12 drafted, poorly transmitted contract for sugar. The other
13 exhibit one of the WW is the original one that identifies the
14 from the date, et cetera, as the original.
15 THE COURT: The government said it has no objection
16 to the submission of the original of a document which was
17 seized.
18 MR. SCHMIDT: I understand. The third document is
19 another contract from the same company a week earlier that
20 relates to the same subject that is dated, clearly on the
21 evidence before the Court --
22 THE COURT: No, please, let's not reargue it. There
23 is no concept in the law that a document other than one of the
24 type listed in the rules of evidence is self-authenticating.
25 MR. SCHMIDT: Your Honor, I think the law is take all
4976
1 the circumstances and make a determination if those documents
2 appear to be genuine, and based on the fact that it's printed
3 from another company and it relates exactly to the same thing
4 that was faxed to him a week later, I think that that is
5 sufficient to be authenticated, and it is possible for
6 somebody to recreate that, and that the government can
7 argue --
8 THE COURT: Denied. Can we bring in the jury?
9 MR. SCHMIDT: Yes.
10 THE COURT: Let's bring in the jury, please. I have
11 received a letter from Mr. El Hage with respect to so-called
12 jeopardizing my health with respect to the MCC, and I will
13 forward it to the warden and ask him to advise.
14 MR. DRATEL: Thank you, your Honor.
15 THE COURT: Mr. Fitzgerald, does the government still
16 plan on having a redacted indictment?
17 MR. FITZGERALD: Yes, it's being typed at this time.
18 (Continued on next page)
19
20
21
22
23
24
25
4977
1 (Jury present)
2 THE COURT: Good afternoon. First, let me apologize
3 for the fact that you came in punctually this morning and that
4 we kept you in the jury room for all morning. These things
5 happen. Matters come up which require immediate attention,
6 and all we say in our defense is that this is the first time
7 in this case we've had that and we certainly will try to avoid
8 it.
9 Second, let me tell you where we are in the case.
10 Understand that one can't judge the timing of these things
11 with any precision. You've already been in court long enough
12 to observe that sometimes things go very quickly and sometimes
13 things go very slowly, and sometimes witnesses are unavailable
14 and so on. But it is our present belief that sometime next
15 week all of the evidence will have been presented, and that
16 closing arguments by counsel will begin and will take a week
17 or so.
18 After that, you'll begin your deliberations. Let me
19 say two things about them. One, we sit on Friday, so please
20 understand that starting two and a half weeks hence we'll be
21 sitting five days a week, that is, we'll be sitting here
22 awaiting word from you in the jury room because you'll be
23 deliberating, so please don't make any appointments or plans
24 for Fridays.
25 You will not be sequestered. You'll go home when the
4978
1 day is over. I say that because in some courts, in state
2 courts once a jury begins deliberating they're sequestered.
3 In other words, they go to a hotel at night. We're not going
4 to do that to you. You're going to go home.
5 The other thing is in terms of the hours of
6 deliberation, we will start at 10, we'll end at 4:30, the same
7 routine we've been following now, unless you say that you
8 would like to start earlier, or, you say you'd like to
9 continue. You know sometimes a jury will say, you know, if we
10 can spend another hour on this it will really be very
11 productive and sometimes the jury will think the most
12 productive thing we could do would be go home and get a good
13 night's sleep.
14 So I want to let you know that you have some
15 flexibility with respect to that.
16 All right. Mr. Schmidt on behalf of El Hage.
17 MR. RUHNKE: Excuse me. Unless somebody is
18 uncomfortably warm, the air conditioners are on. It's very
19 difficult to hear your Honor and hear what's being said.
20 THE COURT: Can we turn off the air conditioning. I
21 could speak a little louder. Of course, let's see if we can
22 lower the air conditioning. Mr. Schmidt.
23 MR. SCHMIDT: At this time, your Honor, I'd like to
24 have WEHX- -- I'll eliminate the WEHX-from now on because
25 that's for Mr. El Hage's exhibits -- M7X-8-T offered into
4979
1 evidence and displayed to the jury.
2 These documents that are marked M-7X are documents
3 that are received at Mercy International and found in room J.
4 The original is 7X -- excuse me -- 8. Please display 7X-8T.
5 It is about the fifth or sixth document. Please put on the
6 translation.
7 To save time, your Honor, since these are available
8 to the jury, I will briefly describe each letter and read only
9 the important areas. This is a letter to Abu Abdallah Yemeni
10 from Wadih El Hage concerning following information that he
11 wants to be passed upon to the president of the administrative
12 council concerning contacting the company for tractors, and it
13 gives information concerning the tractors. This is dated --
14 unfortunately, this document is undated, and we'll probably
15 have to obtain the date and amend the document at a later
16 time.
17 I ask that you put on we HX-K360. The documents that
18 begins with K are documents that were seized, that were found
19 in the computer seized by the government in Mr. El Hage's home
20 in Nairobi. The ones that say Cylim Company indicates a
21 printout from the hard drive. This is a letter to Zero Credit
22 concerning money being transferred on the account of ZTS
23 Trading in Slovakia.
24 We're going to skip a few pages to K358. This
25 concerns also, it's August 23, 1996 letter to ZTS Trading
4980
1 concerning the shipment of tractors that were to be reach
2 their destination in July, 1998. And if we can put on the
3 next page indicates it's from Wadih El Hage stressing the
4 concern of not receiving the tractors for the season.
5 Now we skip a page to K362, again, October 29, 1996
6 letter to ZTS concerning the tractor and a request for
7 specifications. It's not necessary -- the next page shows the
8 name Wadih El Hage as the person.
9 Skip a page to 364. Again, this is dated November
10 27, 1996 to ZTS Trading concerning a balance of the account
11 that's being paid through a bank in Oregon. And the next page
12 indicates that it was prepared by Mr. Wadih El Hage.
13 This completes this section now for this time.
14 I ask that we turn to the Help Africa People section
15 WEHX-W19. I think the exhibit says W19. Bring down so you
16 can see a portion of the heading of Help Africa People that is
17 cut off. The W series also indicates that this was seized
18 from, this is from the computer seized from Mr. El Hage's home
19 that signifies WEH.com.
20 This one is a letter concerning a multiple visa
21 application on behalf of Mr. El Hage signed by H. Rodolf. The
22 next one K17 which also signifies that it came -- excuse me --
23 the last one I apologize should not be W19. It should be K19.
24 This one is K17. This concerns the minutes of the board of
25 directors of Help Africa held in 1995 with the names Wadih El
4981
1 Hage, Ahmad Younes and April Ray.
2 I ask that we show the next one, which is K24 which
3 is a letter dated November 27, the last year is not clear on
4 this copy, to brother Mohammad Salman concerning request for
5 donation signed by Wadih El Hage. K37 is dated December 30,
6 1995. It is a document indicating the introduction and
7 objective of Help Africa People and 38 which is not necessary
8 to show is the second page of that.
9 K40 through K -- excuse me K -- let us replace that.
10 Let's skip to K15 which is a list of documents that was found
11 in the computer. It indicates number 2 is introduction to the
12 agency. Three is a letter to the CID about the Jax case, the
13 minutes, other things including the malaria project, budget
14 project, and other matters. And if we turn to K20, K20
15 through K23 is the description of the malaria project by Help
16 Africa People in the Gedo region, and it includes statement of
17 objectives, estimated number of beneficiaries, description of
18 the target population group activity and justification.
19 The second page talks about the costs of various
20 items, as does the third page. The third page also includes
21 the account and the fourth page K23 gives a further
22 explanation of the malaria control project.
23 Your Honor, at this time actually I do need to
24 approach your Honor to clarify some matters concerning the
25 next exhibit.
4982
1 THE COURT: Can you defer that and take some others?
2 MR. SCHMIDT: I can do some others and then come back
3 to that.
4 THE COURT: I'll see you.
5 (Continued on next page)
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4983
1 (In the robing room)
2 MR. SCHMIDT: I have a series of photographs that
3 reflect the malaria project in Somalia from Help Africa People
4 which are directly attributed to the documents that were
5 showed.
6 THE COURT: Were they part of these?
7 MR. SCHMIDT: They were, these were seized. I'm not
8 offering them through the seizure of them and the return. I'm
9 offering the original photograph that was there because they
10 directly relate to the document that I just showed. Now,
11 there are other --
12 THE COURT: Is there any issue in this case as to
13 whether or not there was a malaria project by Help Africa?
14 MR. SCHMIDT: There may be and I'm trying to show the
15 legitimacy of this by the photographs combining with them.
16 THE COURT: There is no challenge to their
17 legitimacy.
18 MR. SCHMIDT: I don't know there is.
19 MR. FITZGERALD: There is no challenge to the fact
20 that Help Africa was involved in malaria projects and other
21 causes.
22 MR. SCHMIDT: With these projects as well as there is
23 for example, so I'd like to put in some of the photographs of
24 the malaria project.
25 THE COURT: That show what?
4984
1 MR. SCHMIDT: That show the malaria project in
2 Somalia. I'll show them to you your Honor. I don't have to
3 show all of the photographs.
4 MR. FITZGERALD: Just a comment, your Honor.
5 THE COURT: Yes.
6 MR. FITZGERALD: Most of these were seized at the
7 airport and given back and counsel moved to suppress. Are we
8 now able to move in whatever documents we seized?
9 MR. SCHMIDT: I am not offering it through the
10 seizure. I'm offering the original documents that I have in
11 my possession.
12 THE COURT: If you are not offering them through the
13 seizure then what I said earlier with respect to other
14 documents is true, and there is no authentication. There is
15 no basis for it.
16 MR. SCHMIDT: If I may, your Honor, not just on this,
17 I think there is sufficient authentication of the project
18 existing in Help Africa.
19 THE COURT: The government is willing to stipulate.
20 MR. SCHMIDT: I understand that. I understand that.
21 The government wants to offer other, perhaps other documents
22 from the original seizure and return, and we don't wish them
23 to offer that. We are seeking to authenticate that document
24 because of the evidence now came in that Help Africa People
25 has the malaria project.
4985
1 THE COURT: We had this argument ten minutes ago.
2 It's not a self-authenticating document. You don't have a
3 witness who is going to testify. Your only basis on which
4 I've permitted the others in they were documents that the
5 government seized and gave to Mr. El Hage, so the government
6 could hardly put in issue the question of whether those were
7 documents that existed at that time and were taken from that
8 source. They may not be received in evidence.
9 MR. SCHMIDT: Your Honor, I think the law of
10 authentication has changed. For one example is one document I
11 didn't put in before that is a document of a fax. It's a
12 letter with pictures of ostriches on it. One of the tapes
13 played here and offered in evidence was a conversation with
14 Abu Abdullah al Yemeni where he requested Mr. El Hage to send
15 him by fax photographs of the ostriches. That letter is
16 directly in response to that conversation. It authenticates
17 that conversation, whether it be an actual person or not.
18 MR. DRATEL: Your Honor, if I may just speak --
19 THE COURT: You may not, because one lawyer, one
20 issue.
21 MR. DRATEL: I understand. I just want to save time.
22 THE COURT: There is a limit really to how much time
23 you can spend on totally undisputed issues, and if the
24 government were saying that they were there were not in fact
25 five projects conducted by Help Africa, or that there were not
4986
1 in fact bona fide commercial transactions in which Mr. El Hage
2 was engaged, then you could do this forever, but you can't. I
3 gave you two hours, and I did that simply because I think you
4 have a difficult client who maybe is pushing you to do this.
5 In any event, I adhere to my ruling that the only
6 documents which may be admitted are documents which the
7 government seized from El Hage or from the premises of Mercy
8 International or originals of such documents. That's my
9 ruling.
10 (Continued on next page)
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4987
1 (In open court)
2 MR. SCHMIDT: At this time I ask to exhibit K43T --
3 we're skipping a number of pages -- a letter dated October 11,
4 1996 -- may we have the original first there? First, we'll
5 show the letter it's dated October 11, 1996 to dear brother
6 Farid. It's a request for donations because of the drought
7 and its requesting donations to come to Help Africa People.
8 The Arabic. That is the Arabic.
9 I ask that we exhibit K44, the next document which is
10 a letter to President Daniel Arap Moi from Mr. El Hage
11 requesting assistance in obtaining the exemption for the value
12 added tax and duty. I ask you show to exhibit K46. That's a
13 letter to the income tax department also from Wadih El Hage.
14 I do not ask you to exhibit but I offer --
15 Your Honor, by the way, I don't know if it's clear
16 that all the documents that I am exhibiting obviously I have
17 offered into evidence I believe without objection.
18 THE COURT: All those documents that have been
19 exhibited thus far this afternoon are received in evidence
20 without objection.
21 MR. SCHMIDT: Thank you.
22 (Defendant El Hage Exhibits MTX, M7X-8-T, K360, W19
23 received in evidence)
24 MR. SCHMIDT: Again, the documents that are being
25 asked, I assume I don't need to repeat, request that they --
4988
1 THE COURT: When you complete doing that, then you
2 make a motion for --
3 MR. SCHMIDT: Thank you, your Honor. The next
4 exhibit which is not to be, WDSK1, which indicates it's from a
5 floppy disk that was received from Mr. El Hage's home in
6 August of 1997. It's a letter to the external marketing
7 officer Al-Ramz Group in Saudi Arabia. The letter was
8 prepared by Ahmed S. Aden.
9 Then the next document that is not to be displayed is
10 WEHX--W1286, which reflects that it was intercepted on the
11 Nairobi wiretap of Mr. El Hage's home and it is the same
12 letter that indicates that it was faxed through Mr. El Hage's
13 fax machine. It's to the external marketing officer at
14 Al-Ramz Group in Saudi Arabia, and it indicates it's from
15 Ahmed S. Aden.
16 The next documents that I offer into evidence is also
17 DSK18 and W1287, is a letter that, and the copy of the letter
18 intercepted on the fax machine. One is a letter that is
19 written by Nassir Al Fawz the financial controller concerning
20 the letter of Ahmed Aden previously donated.
21 The next one is a facsimile copy indicating that that
22 letter was faxed by Nassir Al Fawz to Wadih El Hage, the
23 director of Help Africa People, concerning food for refugees
24 in Kenya dated August 24, 1996.
25 The next letter also not to be displayed at this time
4989
1 is DSK14 dated August 26, 1996 to the Honorable Norris
2 assistant minister office of the vice-president administration
3 for planning and national development in Nairobi relating to
4 relief services in Mandera that has the ending of sincerely A.
5 S. Aden, director.
6 The following W1290 is the same letter that was
7 intercepted on the Nairobi wiretap and was a facsimile.
8 The following document also not to be shown is a
9 letter to the financial controller of the Al-Ramz Group in
10 Saudi Arabia. That is also taken from the disc WSK19 dated
11 August 26, 1996, and W1289 which is the faxed intercept of the
12 same letter.
13 The following is WEH-WW51 which is the original of
14 those documents. I ask that that one be displayed, WW51. I
15 ask to show the bottom which is a signature. The signature is
16 Wadih El Hage.
17 WEHX, skipping a number of pages, K346. Skipping
18 about three or four pages. That's a letter to Mohammad Salman
19 dated September 1, 1996 that was on the hard drive of the
20 computer seized from Mr. El Hage's house. As the middle
21 paragraph indicates it says as for the agency things are all
22 right so far, we have implemented our project in one of the
23 areas we have indicated an area about fifty thousand
24 inhabitable. It was successful and promise the people in the
25 locality were very happy and thankful. We had to rent a pick
4990
1 up for a few days because one was still not yet released as to
2 the registration of the agency over there. Kindly inform me
3 to be able to communicate with our brothers in the other
4 states for donations.
5 It also discusses business opportunities including
6 mining opportunities.
7 I ask to show the K352 which is another letter to
8 Mohamed Salman indicating that he visited Pakistan,
9 Mr. Salman, and visited the El Hage's and requesting and give
10 their requests for to do good deeds for the holy month. On
11 the next page he talks about the registration of the
12 organization and collecting donations from Muslims in
13 Lafayette, signed by Mr. El Hage.
14 The next letter, next document is K47 also a letter
15 to Mohamed Salman concerning the opportunity to give for Ifta
16 and Zakat for the brothers and sisters in the refugee camps,
17 and it discusses other matters and makes additional requests
18 for additional funds for the nongovernmental agency.
19 The next letter is K49 which is in Arabic, the
20 translation you can put on, the T also discusses the drought
21 and the request for donations.
22 WDAT27 which is a facsimile intercepted indicating
23 date February 2, 1997, and the translation of the Arabic which
24 need not be shown. K48 which is a similar letter that was
25 seized off of the computer. I ask you to go to M-7X-32. And
4991
1 we only need to show the translation at this time. It's a
2 letter to Abu Kadija indicating that they would like to do a
3 fast breaking meal in the refugee areas again asking for
4 donations to enable them to do that. It's dated January 7,
5 1997. Next is K343. That is a letter to Mohammed Salman
6 concerning obtaining a decision from the Internal Revenue
7 Service and also relating to the stone business.
8 K354 is another letter to Mohamed Salman indicating
9 the correct name of the organization Help Africa People and
10 asking questions concerning the registration, concerning the
11 Internal Revenue Service in the United States.
12 The next page signed by Mr. El Hage.
13 May I have one moment, your Honor?
14 (Pause)
15 WW58 which is a letter from the Internal Revenue
16 Service with a fax notation on the top of August 10, 1997 from
17 M Salman Faruk and a telephone number area code 318 I will
18 read it. Dear taxpayer, thank you for your correspondence
19 dated June 24, 1997. To change your name on our records you
20 need to submit a copy of one of the following. And it lists
21 what you need to do. It's signed by a tax service
22 representative and it relates to Africa Help Inc., with the
23 post office with the number care of Bill Gains in Baton Rouge,
24 Louisiana. It relates back to the other exhibit concerning
25 the IRS.
4992
1 I'm done with these exhibits. Now at this time we'll
2 go to the next group. You have available M-44?
3 (Continued on next page)
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13
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20
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25
4993
1 MR. SCHMIDT: I'll go back.
2 Do you have that one? Okay. Can you put the
3 translation M-44T and the M indicates that it was seized from
4 Mercy International Relief Agency. This is a letter referred
5 to by the witness, the same Kherchtou, that was sent
6 requesting money that was faxed from Mr. El Hage's home.
7 Thank you.
8 Next I ask you to exhibit the translation of
9 M-7X-21-T, offering the original as well, M-7X-21, but only
10 show the translation. It's a letter dated June 21, 1996 to
11 Mr. El Hage concerning trying to reach a number of people and
12 indicating the item of something that is $850 or $100 a ton
13 from Port Sudan.
14 I next ask you to show 7X-11, which is a letter dated
15 June 25th from Wadih to Abu Abdallah concerning the same name
16 of Mohamed Kassem concerning the prices of sugar.
17 Next 7X-10 and 7X-10T. You only have to show the
18 translation. It's also a letter to Abu Abdallah el Yemeni
19 concerning prices and discussions with Fared, and then the
20 next paragraph also concerns sugar.
21 Again if you would show 19T and move into 19 --
22 excuse me, M-7X-19, as well as 19-T is another letter from Abu
23 Abdallah to brother Wadih concerning a number of items,
24 including gasoline, sugar, mentioning the Kenana company and
25 Brazilian sugar.
4994
1 Next, 369, dated August 23, 1996, is a letter
2 relating to sugar, written by Mr. El Hage.
3 367, 384, need not to be shown, are related to the
4 same items.
5 385 I ask to be shown. This letter is to Mr. Alleh
6 at Mottassem that relates to one of the conversations that was
7 played -- excuse me, that was read to the jury where Abu
8 Abdallah el Yemeni asks for a letter to go to Saleh at
9 Mottassem. This letter is dated December 3, 1999 --
10 MR. FITZGERALD: 1996.
11 MR. SCHMIDT: I'm sorry, 1996. Thank you.
12 Then WDAT56. Did we put on the contract for sugar
13 that was intercepted, correspondence on the Nairobi wiretap
14 that is mostly illegible, but WW-2 is the legible original and
15 the date is November 14, 1996 and it's a contract for sugar.
16 Then the next is 7X-16T, the letter dated November
17 27, 1996 concerning opening up an account in Saudi Arabia.
18 Also not needed to be shown is Exhibit M7X-12 and its
19 translation 12T, which is another letter relating to other
20 commercial items from Abu Abdallah from Wadih and mentions
21 Mohamed Qassem as well.
22 Next if we could show 33T, which is a letter to
23 brother Mohanad from Wadih El Hage that relates to a number of
24 products, including corn, coffee, dear, ostriches for sale and
25 a number of gems and coal. It's dated September 30th, 1996.
4995
1 I ask to show 7X-35T, and offer in both the original
2 letter, 35, and the translation, which is a letter from Abu
3 Abdallah to both Wadih El Hage and Ahmed, which concern a
4 number of items, including kerosene and benzene and sugar and
5 requesting pictures of the ostriches and the dears and
6 information concerning their weight.
7 And 26T it's not necessary to put on the screen, is
8 another letter. This one is dated June 29, 1997, concerning
9 coffee and sugar from Abu Abdallah to Wadih El Hage.
10 At this time I completed my recital and I believe
11 that Mr. Dratel will begin his recital.
12 MR. DRATEL: The following documents -- first, I want
13 to read a document that is in evidence as WEHX-K-32, which is
14 a document taken from the computer seized from the Nairobi
15 residence of Wadih El Hage and it's dated July 16, 1997, it's
16 to the director, C.I.D., Nairobi.
17 (Document read)
18 MR. DRATEL: The next group of documents to which I
19 will be moving in evidence and referring were seized from the
20 offices of Mercy International on August 18, 1998 in Nairobi.
21 The first is WEHX-M-134.
22 MR. FITZGERALD: No objection.
23 THE COURT: Received.
24 (Defendant El Hage Exhibit WEHX-M-134 received in
25 evidence)
4996
1 MR. DRATEL: I'm not going to read this document, I'm
2 just going to read some headings as we go through it.
3 It's called Assessment Mission into Gedo Region of
4 Somalia, and some of the sub-headings on page 1 are political
5 spheres and observations and then Luke area, and then on page
6 4 there's a Bullahowa area and it talks about population,
7 food, shelter, water, and villages in the bullahowa area.
8 Page 8 talks about the Dolo area, also the Garbohara
9 area, and on the last page it says, "This assessment mission
10 was carried out between June 15th and July 25th, 1993."
11 Next we would like to move in WEHX-M13-10.
12 MR. FITZGERALD: No objection.
13 THE COURT: Received.
14 (Defendant El Hage Exhibit WEHX-M13-10 received in
15 evidence)
16 MR. DRATEL: This is a letter dated October 17, 1996.
17 I'm going to read the translation, which is M13-10T. The
18 heading is Mercy International Relief Agency.
19 (Document read)
20 MR. DRATEL: Next is WEHX-M13-97.
21 MR. FITZGERALD: No objection.
22 MR. DRATEL: And the translation, WEHX-M13-97T, which
23 I will read.
24 (Document read)
25 (Defendant El Hage Exhibit WEHX-M13-97 received in
4997
1 evidence)
2 MR. DRATEL: I'll stop there and move on.
3 Another document is WEHX-M4517-18.
4 MR. FITZGERALD: No objection.
5 THE COURT: Received. Defendant's Exhibit received)
6 (Defendant El Hage Exhibit WEHX-M4517-18 received in
7 evidence)
8 MR. DRATEL: Which is a document on Mercy
9 International Relief letterhead, authored by Ahmed Sheik Adan,
10 Regional Director for East Africa, which is a statement of the
11 mission and purposes of Mercy International, and I will not
12 read that now.
13 The next set of documents is WEHX-M21-29, M21-30,
14 M21-31, M21-32, M21-33, M21-34, M21-35, M21-36, M21-37,
15 M21-38, M21-39 and M21-40.
16 MR. FITZGERALD: No objection.
17 THE COURT: Received.
18 (Defendant El Hage Exhibits WEHX-M21-29, WEHX-M21-30,
19 WEHX-M21-31, WEHX-M21-32, WEHX-M21-33, WEHX-M21-34,
20 WEHX-M21-35, WEHX-M21-36, WEHX-M21-37, WEHX-M21-38,
21 WEHX-M21-39 and WEHX-M21-40 received in evidence)
22 MR. DRATEL: These are letters to Mercy International
23 from a variety of sources, and I will read: United Nations
24 High Commission for Refugees, November 12, 1993, from AKFEM
25 dated 9/26, 1997. Again, United Nations High Commissioner for
4998
1 Refugees, October 6, 1993. A letter from the Honorable Anan
2 M. Noor, M.P., Member of Parliament for Mondara Central.
3 Honorable Ahmed M. Khalif, Member of Parliament, February 3,
4 1997. From the Supreme Counsel of Federal Muslims, February
5 3, 1997. From the Office of the President, the District
6 Commissioner in Washir, September 25, 1997.
7 Office of the President, District Commissioner,
8 Mondara. September 19, 1997, Ministry of Home Affairs And
9 national heritage, Mondara. September 19, 1997, Ministry of
10 Home Affairs and National Heritage, Children's Department,
11 Washir Children's Office, July 3, 1996. Ministry of
12 education, Northeast Province, Washir, September 24, 1997.
13 Ministry of Education, District Education Office, Northeastern
14 Province, Mondara, September 19, 1997.
15 And I'm just going to read two letters, the two
16 letters from the United Nations High Commission for Refugees.
17 The first one November 12, 1993, to the Executive Director,
18 Mercy International Relief.
19 (Document read)
20 MR. DRATEL: The other letter from United Nations
21 High Commissioner for Refugees, October 6, 1993, to all NGOs
22 in Luke, AMREF, IRC, CWSCOH, SRDA, SIA, GRIUUO, MIRRA, and
23 NRC.
24 (Document read)
25 MR. DRATEL: Just one more, February 3, 1997, from
4999
1 the Honorable Ahmed M. Khalif, Member of Parliament, Assistant
2 Minister for Public Works and Housing.
3 (Document read)
4 MR. SCHMIDT: There are a few other documents.
5 That concludes this reading. Your Honor, I just move
6 all those in evidence that are mentioned, having neglected to
7 move the other ones into evidence.
8 MR. FITZGERALD: No objection.
9 THE COURT: Received.
10 MR. SCHMIDT: There are just a few more documents,
11 WEHX-K26, which is a letter also dated January 9, 1996 to
12 Mohamed Salmon. This one concerns the requesting of his help
13 registering the NGO in the United States. It also talks
14 about -- I'm going from the second paragraph, going back to
15 the relief agency.
16 (Document read)
17 MR. SCHMIDT: The next page is simply the agency
18 account number, and again on K128 is the new registration name
19 and an introduction letter to the relief agency. And K29, a
20 letter that is undated to Mohamed Salmon concerning his
21 letter, registered letter he sent concerning the registration
22 of the organization in Louisiana or anywhere else in the
23 United States.
24 At this point, your Honor, we're completed with our
25 readings.
5000
1 THE COURT: I understand, you have advised me that
2 there is a witness that you wish to call who was not available
3 until Monday morning.
4 Anything further subject to that? Anything further
5 on behalf of defendant El Hage?
6 MR. SCHMIDT: Your Honor, there are two other
7 matters. One is certain stipulations that we are getting
8 together. That would be prepared on Monday. There is one
9 other matter I would like to reserve, but outside the presence
10 of the jury.
11 THE COURT: We'll take a brief recess.
12 (Recess)
13 THE COURT: What is the other matter on which you
14 wish to reserve?
15 MR. SCHMIDT: Your Honor, Mr. El Hage wishes to
16 discuss with us concerning whether he wishes to testify.
17 Because of the time frame, I plan to speak to him tomorrow
18 concerning all that matter and then report back to the Court.
19 THE COURT: Any objection?
20 MR. FITZGERALD: No, Judge, but we would like to know
21 if he is going to testify so we can schedule accordingly.
22 THE COURT: When do you think that decision will be
23 reached?
24 MR. SCHMIDT: I plan to spend a good part of tomorrow
25 speaking with Mr. El Hage. I hope to have a decision
5001
1 tomorrow. If not tomorrow, if we require additional time, it
2 would be Saturday morning, at the latest.
3 THE COURT: Can you make arrangements to communicate
4 to the government?
5 MR. SCHMIDT: Both the government and defense counsel
6 have been easily available on Saturdays. Saturday hasn't made
7 much of a difference.
8 THE COURT: If the decision is that Mr. El Hage is to
9 testify, then he is to take the stand on Monday morning.
10 MR. SCHMIDT: That is correct. I would assume the
11 expert would go briefly first and then Mr. El Hage would
12 follow.
13 THE COURT: Anything else that --
14 MR. DRATEL: Your Honor, just one.
15 THE COURT: Anything that applies to the jury? Can I
16 send the jury home?
17 MR. DRATEL: No.
18 THE COURT: All right. Let me just tell the jury
19 that we're adjourned until Monday morning.
20 Why don't we take a five-minute recess. I'll go tell
21 the jury that and then we'll resume.
22 (Recess)
23 THE COURT: Please be seated. I think there is not
24 as much that we can productively do this afternoon as I had
25 hoped, but that's all right.
5002
1 I think we have all just received Version 5 of the
2 government's proposed indictment, which keeps the same
3 numbering as the original, or you revised the number, also.
4 MR. FITZGERALD: The numbering should be revised.
5 Not having proofread it, what it's supposed to be is the
6 indictment as it would now stand, a proposed redacted
7 indictment, with the red line changes being the changes from
8 the last version, not going back to the original, which we
9 thought was too complicated.
10 THE COURT: But this purports to reflect the changes
11 contained in your letter of April 26.
12 MR. FITZGERALD: Yes. So all the red lining should
13 only indicate changes since the last version.
14 THE COURT: All right.
15 MR. FITZGERALD: So the numbers should have changed
16 and the overt acts letters should have changed.
17 THE COURT: What I would like to do, I started to do
18 it this morning, is to take up the verdict form, and I started
19 to mark up my copy of the verdict form to reflect these
20 changes, but I think maybe you would take us through,
21 following your letter, the verdict form. Or I can do it and
22 tell me if I'm correct.
23 MR. FITZGERALD: I didn't realize we would be done at
24 3:30. Somebody is bringing down my copy of the verdict form,
25 which I left on my desk.
5003
1 MR. DRATEL: I can take care of something really in a
2 minute, your Honor.
3 THE COURT: Yes.
4 MR. DRATEL: Just one document that I did not read
5 it, was just -- that I did not intend to read to the jury but
6 did intend to move into evidence. I missed it going through
7 the numbers. I showed it to Mr. Fitzgerald. I don't think
8 the government has any objection.
9 MR. FITZGERALD: We have no objection.
10 MR. DRATEL: I can move it into evidence and it does
11 not have to be read to the jury.
12 THE COURT: What is the exhibit number?
13 MR. DRATEL: WEHX-M13-98.
14 THE COURT: Received.
15 (Defendant El Hage Exhibit WEHX-M13-98 received in
16 evidence)
17 MR. FITZGERALD: On those same grounds, the exhibits
18 to Wadih El Hage's 1998 Grand Jury testimony were received in
19 evidence outside the presence of the jury through a similar
20 oversight but occurred in the robing room, so it was sealed.
21 We just need to do that now so it appears in the record so
22 that in the transcript the exhibits to the 1998 Grand Jury are
23 received.
24 THE COURT: Do know what numbers they have?
25 MR. FITZGERALD: I could put it in a letter. It's on
5004
1 the sealed transcript. I just want to adopt that so --
2 THE COURT: They're received.
3 (Government Exhibits 420A and 420B received in
4 evidence)
5 MR. FITZGERALD: Thank you.
6 MR. DRATEL: Your Honor, there's one other. During
7 this afternoon's session, when the Court refused to permit
8 introduction of certain photographs, there is one particular
9 photograph that is different in character than the others and
10 I think is self-authenticating or is at least satisfactory
11 with respect to what is required by Rule 901, and that is a
12 photograph that was developed from negatives, that we
13 developed from negatives, that has a date stamp on it and, in
14 addition, Mr. El Hage is in the photograph, which does put it
15 in a time obviously before 1998. So it's date-stamped July
16 13, 1997.
17 THE COURT: Do you offer it for what purpose?
18 MR. DRATEL: To corroborate and amplify the
19 conversation about ostriches, to put that in -- I could show
20 the Court the photograph.
21 THE COURT: This is on the theory, having been
22 deprived of the opportunity to introduce a picture of a dog,
23 you would be entitled to introduce a picture of an ostrich?
24 MR. DRATEL: There are faxes and phone conversations
25 about the ostrich situation and that is part and parcel of
5005
1 that entire line.
2 THE COURT: And there is no contention by the
3 government that puts that in issue.
4 What does this picture purport to show?
5 MR. DRATEL: This is Mr. El Hage and an ostrich, date
6 stamped July 13, 1997.
7 THE COURT: Government object?
8 MR. FITZGERALD: I can't see Mr. El Hage. I can see
9 the ostrich.
10 THE COURT: Is Mr. El Hage on the ostrich?
11 MR. DRATEL: Yes, he is. Your Honor, he's astride
12 the ostrich.
13 MR. FITZGERALD: Is this the last exhibit we'll be
14 offering respecting an ostrich?
15 MR. DRATEL: Yes.
16 MR. FITZGERALD: No objection.
17 THE COURT: You're very generous. I won't object sue
18 sponte.
19 MR. DRATEL: Thank you.
20 THE COURT: That's received.
21 The press would probably like a copy of that.
22 They're nodding their head yes.
23 MR. FITZGERALD: The other two items we need to take
24 care of administratively is there are a number of defense
25 exhibits for which I don't believe the government has a
5006
1 complete set. I don't know if co-counsel have a complete set.
2 We really need to have copies of the defense exhibits before
3 we go into summation. A lot of exhibits were in draft form or
4 displayed on the screen differently. If we could have -- we
5 really need a set of defense exhibits tomorrow. And if there
6 are exhibits that need to be copied or something, we're happy
7 to produce them ourselves.
8 THE COURT: You told me that you had circularized a
9 copy to the defendants, but we still need the exhibit, which
10 is a table of contents of all the other stipulations.
11 MR. FITZGERALD: Yes. We have not received comments
12 back, and there are, I think, three stipulations we circulated
13 which were corrected stipulations, to correct typographical
14 errors. We were hoping to have that signed off on before we
15 put the stipulation chart in.
16 MR. DRATEL: We're endeavoring to do that, your
17 Honor, and obviously we have put in a lot of stuff. We have
18 to go through it ourselves to make sure what was put in is
19 among our list and obviously to exclude what was not put in
20 and but was precluded, and we are endeavoring to do that. I
21 hope we can devote the time tomorrow to do that and clean that
22 up.
23 THE COURT: At some point in the indictment prior to
24 this revision there is the allegation that the defendants did
25 kill in Somalia. Is that still in this indictment?
5007
1 MR. FITZGERALD: The indictment does not now read
2 specifically that any defendant killed anyone in Somalia. The
3 language is that it was the object of the conspiracy -- the
4 standard language -- that the object of the conspiracy was
5 that the defendants would and did -- not defendants,
6 coconspirators, would and did murder United States nationals,
7 period.
8 THE COURT: Without a reference to Somalia.
9 MR. FITZGERALD: Yes.
10 THE COURT: If we could turn to the verdict form, and
11 let's -- does everybody have a copy of the verdict form?
12 MR. WILFORD: Yes.
13 THE COURT: April 20. And am I correct that with
14 Count One there is now only one object and so that everything
15 below the name of K.K. Mohamed in that verdict form is
16 stricken?
17 MR. FITZGERALD: Yes, Judge.
18 THE COURT: All right. Now, Mr. Dratel writes and
19 thinks that because of the presumption of innocence, it should
20 read "not guilty" and then "guilty," and I'm not going to do
21 that because, "Do you find the defendant guilty or not
22 guilty?" is the standard language and if I reverse this, there
23 is more of a risk of confusion than there is any possible
24 benefit.
25 MR. SCHMIDT: As long as it's not a butterfly ballot,
5008
1 your Honor.
2 THE COURT: Excuse me?
3 MR. SCHMIDT: As long as it's not a butterfly ballot.
4 THE COURT: With respect to Count Two, Count Two has
5 as an object -- is the object to kill in Somalia, among other
6 places, still in this?
7 MR. FITZGERALD: Yes. It says, "including members of
8 the military" on page 31.
9 THE COURT: Page 31?
10 MR. FITZGERALD: It talks generically about military
11 installations in Saudi Arabia, Yemen, Somalia and elsewhere
12 and employees of the embassies in Kenya and Tanzania.
13 THE COURT: It still has two objects?
14 MR. FITZGERALD: Yes, and the second object is to
15 kill internationally protected persons.
16 THE COURT: Okay.
17 MR. FITZGERALD: So the only suggested change that
18 the government has to page 2 of the verdict form would be to
19 put the question under section A, subsection 1 in the
20 disjunctive rather than conjunctive.
21 THE COURT: This is before "to murder internationally
22 protected persons" in the first paragraph?
23 MR. FITZGERALD: No, Judge, down in subsection A, 1,
24 the word "and" being switched to "or" to track the statute,
25 "to kill officers or employees," as set forth in the letter,
5009
1 "or persons assisting such employees."
2 THE COURT: Or persons.
3 MR. FITZGERALD: And then "Somalia, or elsewhere, or
4 employees of the embassies in Kenya or Dar es Salaam."
5 THE COURT: How about in the first paragraph under
6 Count Two?
7 MR. FITZGERALD: I think that --
8 THE COURT: It says "and to murder
9 internationally" -- it paraphrases the indictment.
10 MR. FITZGERALD: I think the top can stay the same as
11 long as the language down below tracks the statute.
12 THE COURT: Then with respect to Count Three, you
13 strike B, C and D?
14 MR. FITZGERALD: Yes, Judge.
15 THE COURT: And with respect to Count Four, you
16 strike A, 2, 3 and B?
17 MR. FITZGERALD: One moment.
18 A2, not A --
19 THE COURT: You strike A2, yes.
20 MR. FITZGERALD: But we leave 1 and 3.
21 THE COURT: You leave 1 and 3.
22 MR. FITZGERALD: And then striking B.
23 THE COURT: Yes.
24 MR. FITZGERALD: But leaving C, D and E.
25 THE COURT: Yes. Okay. Yes, that's consistent with
5010
1 what I thought the impact of this was. And Count Five, you
2 strike 1.
3 MR. FITZGERALD: Yes, Judge.
4 THE COURT: And 3.
5 MR. FITZGERALD: Yes, under subsection B.
6 THE COURT: Yes.
7 MR. FITZGERALD: Yes.
8 THE COURT: Now, on Count Five, C1, page 14.
9 MR. FITZGERALD: I'm sorry, Count Five, C1 --
10 THE COURT: You strike or "whether he caused another
11 person to use an explosive."
12 MR. FITZGERALD: Yes.
13 THE COURT: Because you have taken that out of the
14 indictment. You have taken that out of the indictment.
15 MR. FITZGERALD: Let me just look at the language of
16 Count Five.
17 THE COURT: We strike anything with respect to
18 "caused another person" wherever the P is in this verdict form
19 because you have taken out wherever the P is in the
20 indictment, correct?
21 MR. FITZGERALD: Yes, but I want to verify that we
22 have done that.
23 (Pause)
24 MR. FITZGERALD: There's no language in the
25 indictment that says "caused others to do that." If there is,
5011
1 we'll have to strike it. The only language in Count Five
2 about "cause" is "caused the deaths of."
3 THE COURT: That's a different "cause."
4 MR. FITZGERALD: Right, but there's no "cause"
5 elsewhere.
6 THE COURT: But, in any event, it comes out of the
7 verdict form on Count Five, C1, the language "or whether it
8 caused another person to use an explosive" is deleted.
9 MR. FITZGERALD: Yes, Judge.
10 THE COURT: And with the three choices, "caused
11 another person to use an explosive" is deleted.
12 MR. FITZGERALD: Yes, Judge. And then 3, subsection
13 3 of C is gone as well. It's the attempt.
14 THE COURT: Yes, 3 of C. Oh, the attempt.
15 MR. FITZGERALD: Yes.
16 THE COURT: C of 3, the attempt is out.
17 MR. FITZGERALD: Yes.
18 THE COURT: All right. What comes out in count --
19 you're eliminating "attempt." You are eliminating "caused
20 another person."
21 MR. FITZGERALD: Yes.
22 THE COURT: And you are not alleging "caused deaths"
23 with respect to one of the earlier counts.
24 MR. FITZGERALD: Count Three.
25 THE COURT: Count Three. All right. So with respect
5012
1 to Count Six?
2 MR. FITZGERALD: Yes, your Honor, it's our belief,
3 and that feeds into the aiding and abetting point, we're not
4 pressing the "causing."
5 THE COURT: So that comes out, third line from the
6 bottom of B1.
7 MR. FITZGERALD: Right. But then we have the
8 argument which we left off on yesterday as to whether our
9 belief that the jury doesn't have to pick between being a
10 principal or aiding and abetting.
11 THE COURT: All right. Let me announce my ruling on
12 that, having given the matter much thought, and I believe that
13 the jury does have to be unanimous in indicating whether
14 liability is predicated on a defendant being a principal or
15 somebody who aided and abetted a principal.
16 I recognize there is authority to the contrary,
17 but -- and we summarized that authority yesterday -- I believe
18 in those cases which have either held or indicated in dicta
19 that the requirement of unanimity could be satisfied so long
20 as all the jurors believed that a defendant either was a
21 principal or an aider, abettor are cases which involved such a
22 closeness in facts between being a principal and aider or
23 abettor that one could make that assumption. But as even
24 Judge Friendly recognized in his dictum, that would not be the
25 case in a more complex factual situation.
5013
1 Therefore, the Court will continue to require the
2 jury to indicate the basis upon which it reached its verdict,
3 that is, as either that he did the act or aided and abetted
4 another person who did the act.
5 MR. FITZGERALD: Realizing I lost that, my question
6 is, I don't understand why they have to be exclusive, why a
7 person couldn't carry out a bombing while helping his partner,
8 which may very well be the -- it won't be a hypothetical.
9 Al-'Owhali is in a truck, driving a truck into an embassy, one
10 person might say he stepped out of the truck, therefore he
11 added and abetted the driver.
12 THE COURT: You want a sentence in the instruction
13 which says, "If you find a defendant committed the offense and
14 also aided another in the commission of the offense, then you
15 should find him guilty as a principal?" That's not the
16 language that was used, but you want that expressed in the
17 charge?
18 MR. FITZGERALD: Yes, Judge.
19 THE COURT: All right, we'll handle it that way.
20 MR. FITZGERALD: And if we could change the language
21 here, it says, "You are to put an X next to only one of the
22 following choices," and then it's "himself used an explosive,"
23 then not putting an X in the second box might indicate a
24 finding that he is not an aider and abettor and I think that's
25 what concerns me. Perhaps we should say "you should
5014
1 consider" --
2 THE COURT: Where are you now?
3 MR. FITZGERALD: On page 10 of the special verdict
4 form.
5 THE COURT: Page 10 of the special verdict form.
6 Yes.
7 MR. FITZGERALD: Right now it says, "You have to put
8 an X next to only one of the following choices." Then if the
9 jury finds he is guilty as a principal but also thinks he's an
10 aider and abettor, following your instruction, they would only
11 check one box, not two.
12 THE COURT: We can add here, "If you find that he was
13 both, check the first box."
14 MR. FITZGERALD: Okay. Thank you. That's fine,
15 Judge.
16 Then on Count Six.
17 THE COURT: Count Six.
18 MR. FITZGERALD: Subsection 3 of B.
19 THE COURT: Wait a minute. In Count Five, we
20 eliminate B1, right, Odeh aiding and abetting?
21 MR. FITZGERALD: Yes, Judge.
22 THE COURT: And we eliminate 3, Odeh --
23 MR. FITZGERALD: Yes.
24 THE COURT: Attempt.
25 MR. FITZGERALD: Yes, Judge.
5015
1 THE COURT: And C we strike, "to cause another,"
2 middle of 1?
3 MR. FITZGERALD: I'm sorry, Judge.
4 THE COURT: We strike, as we do everywhere it
5 appears, any language "or of causing another person."
6 MR. FITZGERALD: Yes, Judge.
7 THE COURT: And we strike from Count Five C3, that's
8 attempt.
9 MR. FITZGERALD: Yes, Judge.
10 THE COURT: That's Al-'Owhali attempt and that's
11 stricken.
12 On Six, we strike "caused another person." Anything
13 else we do with Count Six?
14 MR. FITZGERALD: And then we just change the language
15 about putting the X next to only one of the following choices
16 by indicating, "If you find he is both principal and aider and
17 abettor, then check the first box only," and then we drop
18 subsection 3 of B.
19 THE COURT: Now you keep in "Odeh, causing the
20 death"?
21 MR. FITZGERALD: Count Six is K.K. Mohamed.
22 THE COURT: I'm using a different one.
23 Okay. Then Seven.
24 MR. FITZGERALD: On Seven, we don't need subsection 1
25 of B since there is only one theory.
5016
1 THE COURT: Count Seven, we don't need -- there is
2 only one now and Count Seven only has one object.
3 MR. FITZGERALD: Aiding and abetting.
4 THE COURT: Excuse me?
5 MR. FITZGERALD: Yes, one theory of liability, aiding
6 and abetting for Odeh.
7 THE COURT: So that Odeh -- I'm sorry, what number
8 are you on?
9 MR. FITZGERALD: Count Seven, page 12 of the special
10 verdict form.
11 MR. RUHNKE: Your Honor, while we're going through
12 this, I don't want to interrupt, but there's a point I would
13 like to address being guilty as a principal and an aider and
14 abettor as it applies to the factual situation of Mr. Mohamed.
15 THE COURT: Hold that. I know this is very tedious,
16 but I think it's worth doing. It will take another five
17 minutes.
18 With respect to Count Seven, tell me what comes out
19 besides "caused another person."
20 MR. FITZGERALD: I think since we're only relying on
21 the aiding and abetting theory for Odeh, there's no need to
22 have a special inquiry in subsection 1 of B. There is only
23 one theory. So the jury can be instructed that the only
24 theory of liability for Odeh is aiding and abetting. They
25 need not engage in the inquiry of subsection 1 of B.
5017
1 THE COURT: I see what you are saying, because it's
2 only aiding and abetting. Okay.
3 MR. FITZGERALD: And then subsection 3 about the
4 attempt comes out.
5 MR. WILFORD: Excuse me, your Honor.
6 THE COURT: Yes.
7 MR. WILFORD: On this point, if we're going to strike
8 out language dealing with Mr. Odeh or a theory of whether he's
9 a principal or aiding and abetting, we have to inform the jury
10 at some point that Mr. Odeh is only charged with being an
11 aider and abettor if that's what we're going to do, because
12 otherwise it's very confusing and misleading.
13 THE COURT: I'm using this really as a shorthand,
14 because obviously from this we've got to go back to the
15 charge.
16 MR. FITZGERALD: We would agree with Mr. Wilford on
17 that point.
18 THE COURT: All right.
19 MR. FITZGERALD: On subsection C of Count Seven,
20 under 1, the "caused" language would come out of paragraph 1,
21 and then the third alternative would be stricken.
22 THE COURT: Yes.
23 MR. FITZGERALD: And then subsection 3 would no
24 longer be needed.
25 THE COURT: And subsection 3 is out.
5018
1 MR. FITZGERALD: Yes.
2 THE COURT: All right.
3 MR. FITZGERALD: Ready for Count Eight?
4 THE COURT: Yes.
5 MR. FITZGERALD: "Caused" comes out of subsection 1
6 of B, the paragraph, the language, and again we have to deal
7 with the language that follows about what the jury should do
8 if they find both principal, being a principal and aiding and
9 abetting and we would strike the third alternative, "caused,"
10 and once again, subsection 3 would come out.
11 THE COURT: Okay.
12 MR. FITZGERALD: And then on Nine through 221, the
13 entire clause "the killing of" should be out and the "himself
14 killed" column should have the box next to Odeh Xed out or
15 blacked out. Actually, for Odeh it should just stop at
16 "guilty or not guilty" since there's an aiding and abetting
17 theory, and for Al-'Owhali -- there should be two boxes next
18 to Odeh and four boxes next to Al-'Owhali. Odeh's lines would
19 be "guilty, not guilty"; Al-'Owhali would say "guilty, not
20 guilty, himself killed or aided and abetted."
21 MR. COHN: Could we address something collateral
22 on --
23 THE COURT: Why don't you wait just a few minutes.
24 MR. COHN: It's on this count.
25 THE COURT: Wait just a minute. We'll do the whole
5019
1 thing. We're nearly finished.
2 MR. COHN: Pardon?
3 THE COURT: We're nearly finished with this and then
4 I'll hear you on everything.
5 MR. COHN: That's what I thought you said.
6 THE COURT: It would be helpful, I thought it would
7 be helpful, if we all worked with the same thing before us.
8 MR. FITZGERALD: Then I would jump to page 33, and
9 then as to those counts the last column, "caused the killing
10 of" comes out.
11 THE COURT: Yes.
12 MR. FITZGERALD: And then on 233 to 273, the same
13 thing would happen. In the language above the chart or the
14 grid, we would take out the "caused" language, and I believe
15 we may have to do that in the earlier counts as well.
16 THE COURT: Yes.
17 MR. FITZGERALD: And then for Odeh there would be two
18 boxes, "guilty or not guilty" and for Al-'Owhali there would
19 be four boxes, "guilty, not guilty, himself killed, or aided
20 and abetted."
21 THE COURT: Yes. All right.
22 MR. FITZGERALD: That would take us to page 39.
23 That's Count 274.
24 THE COURT: Yes.
25 MR. FITZGERALD: And again, subsection A we need not
5020
1 consider for Odeh since it would only be one theory of
2 liability.
3 THE COURT: Yes.
4 MR. FITZGERALD: And as to subsection B, "caused"
5 language would be out for the text and the third alternative
6 would be deleted.
7 THE COURT: So 234A what changes are made?
8 MR. FITZGERALD: It would be stricken.
9 THE COURT: A is stricken.
10 MR. FITZGERALD: Yes.
11 THE COURT: In its entirety?
12 MR. FITZGERALD: Yes.
13 THE COURT: And in B?
14 MR. FITZGERALD: We would strike the "caused another
15 person."
16 THE COURT: "To cause another person."
17 MR. FITZGERALD: And that third option on page 40.
18 THE COURT: Right. Okay.
19 MR. FITZGERALD: And then, at page 41, Counts 275 and
20 276, the text would strike the "cause another person" language
21 and then the "caused the killing" column, the last box, would
22 be deleted.
23 THE COURT: Yes.
24 MR. FITZGERALD: Then on Count 277, the subsection B,
25 the "caused another person" language would be deleted and the
5021
1 third alternative for liability would be deleted.
2 THE COURT: Yes.
3 MR. FITZGERALD: Counts 278 and 279, again the
4 language about "caused another person" would be deleted, and
5 next to Odeh would be just two boxes, "guilty" and "not
6 guilty," and as to Al-'Owhali, there would be four boxes,
7 deleting the last column about "caused the killing of."
8 THE COURT: Yes.
9 MR. FITZGERALD: Turning to Count 280.
10 THE COURT: Yes.
11 MR. FITZGERALD: Subsection A would be deleted again.
12 THE COURT: 280A is deleted.
13 MR. FITZGERALD: Yes. And then B, the language would
14 delete "caused another person," carrying on to page 48, and
15 the third alternative box would be deleted.
16 Count 281, subsection B, "caused another person"
17 language would be deleted and the third alternative deleted.
18 THE COURT: All right.
19 MR. FITZGERALD: Count 282, as to defendant Odeh,
20 again, subsection A could be deleted, and then as to
21 subsection B, "caused another person" language would be
22 stricken and the third alternative removed.
23 THE COURT: Right.
24 MR. FITZGERALD: And the same on C.
25 THE COURT: Right.
5022
1 MR. FITZGERALD: And Count 283 will be parallel.
2 Section A would be stricken.
3 THE COURT: Right.
4 MR. FITZGERALD: "Caused another person" language
5 would be removed from B and the third alternative removed from
6 B.
7 THE COURT: Right.
8 MR. FITZGERALD: Count 284, subsection B, the "caused
9 another person" language would be removed and the third
10 alternative stricken.
11 THE COURT: All right.
12 MR. FITZGERALD: And then the other suggestion we had
13 regarding 285 through 302 was to put the letters A through
14 whatever for each count, put "proven" or "not proven" next to
15 it so the jury indicated an answer one way or the other as to
16 each specification.
17 THE COURT: All right. Now, counsel want to be --
18 MR. FITZGERALD: If I could just bring up one issue.
19 If the jury is going to find -- say they found a
20 person guilty as both principal and aider and abettor, I
21 recognize that we would, in that circumstance, impose
22 liability as a principal, but I wondered if they are filling
23 out the form, if there's a box there they shouldn't check that
24 they found it on both bases.
25 THE COURT: Counsel want to be heard on that?
5023
1 Somebody? Mr. Ruhnke, you want to be heard on that?
2 MR. RUHNKE: It's difficult to conceive how someone
3 could be found guilty both as a principal and aider and
4 abettor, because theoretically under the law those are
5 separate culpable conduct. But in the particular case of
6 Khalfan Mohamed, Mr. Fitzgerald before used an example --
7 THE COURT: Can I just interrupt? Why don't we say,
8 "If you have found that he's a principal, you need not
9 consider whether he was also an aider and abettor, and you
10 should indicate that you have found him guilty as a
11 principal."
12 MR. RUHNKE: I'm kind of jumping ahead, I think, to
13 probably --
14 THE COURT: Why doesn't that solve the problem?
15 MR. FITZGERALD: May I have one moment with
16 Mr. Karas.
17 (Pause)
18 MR. FITZGERALD: Yes, Judge, that makes sense.
19 THE COURT: Doesn't that solve the problem? Before,
20 as an introduction to the aiding and abetting we said, "If you
21 have found the defendant you are considering guilty on this
22 count, you need not consider whether he is an aider and
23 abettor," and then --
24 MR. RUHNKE: Just because, practically speaking and
25 putting together a verdict sheet, I'm moving ahead to a Rule
5024
1 29 argument to argue that Mr. Mohamed could not be considered
2 a principal on the facts of this case, he could only be
3 considered as an aider and abettor.
4 I don't want to argue the relative merits of two
5 different cases, but it's one thing to drive up to an embassy
6 and jump out, as Mr. Fitzgerald used as an example earlier,
7 it's another thing to watch the truck leave and go across an
8 entire town where somebody has to get there and decide to
9 actually push the button before the bomb is going to explode.
10 We can reserve that for a Rule 29 argument, but my
11 point is that, with regard to my client in this situation, the
12 specific facts and circumstances of the case against him, I
13 don't see his liability as a principal. I see it as analogous
14 to Mr. Odeh's, only as an aider and abettor.
15 THE COURT: Reserving that issue, just in terms of
16 this form, I think the way we'll do it, then, is we'll just
17 put "check only one" but tell the jury in the instructions
18 that if they found the defendant guilty as a principal --
19 we'll put in the appropriate language -- then they need not
20 consider aiding and abetting. I think that's a logical and
21 classical way of handling it.
22 Now, obviously what we will do is get to you as
23 promptly as we can a revised special verdict form, which will
24 be essentially what we have just done here, and a revised
25 instruction form, instruction to the jury, which will embody
5025
1 these changes. Like a reverse Pinkerton. The verdict form to
2 the instruction and the instruction to the verdict form, the
3 reverse Pinkerton.
4 Until we do that, is there anybody who wishes to be
5 heard on any matter?
6 MR. DRATEL: Your Honor, did you talk about the
7 perjury? Do we go over that?
8 MR. FITZGERALD: Yes, briefly. The only suggestion I
9 made on perjury was the --
10 MR. DRATEL: But we haven't discussed it. We need
11 the Court's --
12 THE COURT: We haven't discussed anything other than
13 the --
14 MR. DRATEL: The verdict form. The government's
15 proposal as to perjury that they put in writing, we would ask
16 to maintain what the Court did initially. It's a very clear
17 and precise question that has unanimity within it and there's
18 no ambiguity in the question.
19 THE COURT: You are objecting to the government's
20 proposed change in the format of the --
21 MR. DRATEL: Of the perjury counts.
22 THE COURT: I have not had an opportunity to really
23 consider that so I'm going to reserve on that. I understand
24 what the proposal is. I'm not ruling one way or the other. I
25 have to see which in fact is clearer and more --
5026
1 MR. COHN: Your Honor, another issue that you raised
2 yesterday which I said we were considering which is the effect
3 of the unanimity on aiding and abetting issues and the death
4 penalty statute, and I just hope we're reserving on that issue
5 at the moment.
6 THE COURT: On the preclusive effect of a finding on
7 this?
8 MR. COHN: Yes.
9 THE COURT: Yes, I reserved on it.
10 Now, as I look at the statute, it seems to require
11 that the finding be made at the 3952, whatever letter it is,
12 hearing, and I think as a practical matter one would
13 anticipate that the jury would be consistent. One would hope
14 so. But as we know from the voir dire, jurors may require a
15 higher standard than beyond a reasonable doubt in the death
16 penalty phase and so I'm not sure it would be inconsistent.
17 MR. COHN: We would just like to address that at some
18 time.
19 THE COURT: You don't object to the Court's tentative
20 view that the jury has to do it again?
21 MR. COHN: Not in the least.
22 THE COURT: Yes.
23 MR. FITZGERALD: Judge, so we're clear, in the
24 government's view, the findings in the 3591 can be made by a
25 person who aided and abetted. The test under 3591 is not
5027
1 whether you are a principal or aider and abettor.
2 THE COURT: I think we're addressing a different
3 issue. We're addressing the issue of whether one says to a
4 jury in the death penalty phase "you have already found," and
5 as to that, Mr. Cohn is arguing or is reserving, and I plan to
6 agree, that the jury has to make the findings again at the
7 death penalty phase. That's all we need.
8 MR. COHN: The other thing, this is one of
9 practicality and I'm not sure exactly whether it's even
10 permissible, and that's this: That we have long pages of
11 charts of dead people.
12 THE COURT: Of what?
13 MR. COHN: Of dead people, names of dead people with
14 verdicts next to them.
15 THE COURT: Yes.
16 MR. COHN: And I don't think it is possible under the
17 state of facts to have inconsistent verdicts on them, and it
18 is my view that for practical reasons, as well as others, that
19 this be collapsed into a much smaller form.
20 THE COURT: Well, I'm glad you raised it. Somebody
21 made a reference to a ballot, you know, you have one button
22 you can push and it's for the whole slate. Whether there
23 should be a box here, a single box at the front which says,
24 "Do you find that all of the people listed in those
25 counts...," then I think you have to list them. But say, "If
5028
1 you check this box, go to count --"
2 MR. COHN: It's an exercise that will take time,
3 cause confusion and, quite frankly, effect delay the stage of
4 the case, which I think is unnecessary in this context.
5 THE COURT: Does anybody object to that?
6 MR. FITZGERALD: Yes, Judge. My concern is that if
7 there is a conviction, 211 counts are combined into 1, that on
8 appeal it will be claimed that the jury didn't make a specific
9 finding as to each count. There's a murder count, 211 murder
10 counts found as 1.
11 MR. COHN: Except that I represented on the record
12 that I don't believe that it is possible to do otherwise and
13 that, as far as I'm concerned, a finding to one is a finding
14 to all. We stipulated to the cause of death and the cause of
15 death being the result of a bomb.
16 I mean, I don't know what's left as to the individual
17 counts. It's either up or down, 200 counts or not. That's my
18 view. And I don't see who could say that there was prejudice
19 to this and the obvious gain to be made both from the Court's
20 economy and for what the Court obviously understands are my
21 concerns about being later in the case --
22 THE COURT: Mr. Ruhnke, do you join in that?
23 MR. RUHNKE: I join in that, yes, your Honor.
24 THE COURT: Your concern if we said, "If you find
25 that the defendant is guilty of the murders listed in counts,"
5029
1 whatever the number are, "check this box," which will be the
2 equivalent of your checking the other boxes on all other
3 counts, do you think that that leaves it open to the argument
4 that there was not an individual decision made with respect to
5 each count?
6 MR. FITZGERALD: Yes, Judge. The doubt would be
7 successor counsel would say that there's no way a jury can
8 pass verdict on 211 counts in one box.
9 THE COURT: That was the concern I had which led to
10 our having all this. I assumed that we'll have a line,
11 whatever the verdict is, we'll have a line that goes down all
12 the pages. I think the time that might be expended in arguing
13 that point, that is, your successor arguing that point in
14 whatever forum he or she might be in, is probably in excess of
15 the time that would be spent in checking all of the boxes.
16 MR. COHN: I'm not so concerned about the time of my
17 successor as I am the fact that the real practical import of
18 this is that essentially they start the penalty phase on this
19 when they start to count the deaths.
20 THE COURT: What is the difference between their
21 drawing the line down the page --
22 MR. COHN: Page after page of the names and each one
23 checking them off. If you don't see that as a practical issue
24 in terms of the penalty phase, then you are saying that I'm
25 being hypersensitive to it. I see it very differently.
5030
1 THE COURT: No, I see the magnitude. It's the most
2 compelling argument.
3 MR. COHN: And it's unnecessary to do, and the notion
4 that we cannot consciously at this point specifically waive
5 that issue by saying this is what we want and we enter into
6 whatever allocution you need to do with counsel on the issue
7 to show that it is a waiver made by counsel obviates the issue
8 of maybe on appeal somebody will claim that Tuesday came on
9 Thursday, I mean, you can't stop them from doing that.
10 THE COURT: I understand the point. I will reserve
11 on it and my decision will be reflected in the next version of
12 the verdict form.
13 MR. COHN: Thank you, your Honor.
14 THE COURT: Mr. Wilford.
15 MR. WILFORD: Yes, your Honor, focusing on the
16 indictment, the latest version.
17 THE COURT: Yes.
18 MR. WILFORD: That is, Version 5.
19 THE COURT: Yes.
20 MR. WILFORD: I believe that we didn't address fully
21 my motion with respect to what is now Count j and also --
22 THE COURT: Overt Act j?
23 MR. WILFORD: Yes, Overt Act j.
24 THE COURT: On the new lettering.
25 MR. WILFORD: Yes. And also, your Honor, ask the
5031
1 Court that we also dismiss Overt Act e.
2 THE COURT: Which j, new j or old j?
3 MR. WILFORD: New j.
4 THE COURT: New j on page 15?
5 MR. WILFORD: That's correct.
6 THE COURT: Of the fifth version, which is that
7 Fawwaz provided Bin Laden with various means of communication.
8 MR. WILFORD: Yes, including a satellite telephone.
9 THE COURT: Yes.
10 MR. WILFORD: While there is some evidence in the
11 record that certain documentary items were found in Fawwaz's
12 possession concerning the telephone bills, there is no
13 connection in terms of Fawwaz providing a satellite telephone
14 to Bin Laden. The testimony that we have in the case is that
15 someone named Khalil purchased the telephone and was directly
16 involved in the negotiations and continued purchasing time
17 with regard to communication, and nothing to indicate that
18 there was any connection or direct provision of the phone to
19 Bin Laden by Fawwaz, that there was some direction to Khaleel
20 to do that. That's just not there. It's not in the record.
21 MR. KARAS: Your Honor, I respectfully disagree.
22 First, there is an exhibit that was found in Fawwaz's
23 computer where he is writing a letter that effectively is a
24 security report back to the headquarters in al Qaeda where he
25 says, among other things, it is necessary to obtain a
5032
1 satellite phone for secure communication. For the record,
2 that's Exhibit 1626.
3 There are a number of documents in Fawwaz's house
4 that are found by Scotland Yard, including wire transfer
5 records from Fawwaz to Ziyad Khalil in May of '97. In
6 addition to that, in May of '97 there is this the purchase by
7 Khalil of minutes for the satellite phone and there is an
8 invoice provided. That same invoice appears in Fawwaz's
9 residence.
10 So the inference that the jury could certainly draw
11 is Fawwaz is a reimbursing Khalil for the minutes for the
12 phone that the evidence shows Fawwaz doesn't use because it's
13 calling his own numbers in London. So he's not using the
14 phone in London to call his own number. And Khalil's phone
15 number is in Fawwaz's address book and there are other
16 documents, there are other records that show telephone calls
17 from the satellite phone to Fawwaz on dates right before
18 additional minutes are ordered for the phone.
19 THE COURT: I think there is sufficient evidence to
20 support j.
21 MR. WILFORD: Your Honor, the other overt act is
22 Overt Act e.
23 THE COURT: E?
24 MR. WILFORD: Yes, on page 13.
25 THE COURT: Yes.
5033
1 MR. WILFORD: The overt act indicates that the
2 training and assistance was provided to Somalia tribes opposed
3 to the United Nations' intervention in Somalia. There is no
4 evidence in the record of that.
5 MR. FITZGERALD: Your Honor, Mr. Odeh's statement to
6 agent Anticev, which is both oral testimony and the document
7 itself, Government Exhibit 6, indicating that.
8 MR. WILFORD: Your Honor, if the Court believes that
9 the evidence in the record was that the statement Anticev made
10 a mistake in that he did not include the exact information
11 that Mr. Odeh provided to him, not that they were providing --
12 they were providing training and assistance to troops opposed
13 to United States. That's not what he said to them. He said
14 he was providing training to Somalia factions that were
15 opposed to Aideed. There is nothing in there about opposition
16 to the United Nations. This particular overt act goes to
17 tribes opposed to the United Nations' intervention, and that's
18 not what's here.
19 (Continued on next page)
20
21
22
23
24
25
5034
1 THE COURT: I think I'll have to check the transcript
2 on that. Do you have that transcript?
3 MR. WILFORD: I will give you the page number in one
4 second, your Honor.
5 (Pause)
6 THE COURT: You want to put it in a letter to the
7 Court?
8 MR. RICCO: First reference is 1647. The second
9 reference, your Honor, is 1707 and 1708. 1707 and 1708 would
10 be where he corrected his testimony from 1647.
11 THE COURT: I will review that testimony and reserve
12 on the motion to strike overt act e. Anything else?
13 I think we should get together early on Monday
14 morning. I've been looking through version five. I don't
15 want to keep the jury waiting again the way we did today.
16 I would expect to know then whether Mr. El Hage is
17 going to testify in which case we're going to have to make
18 certain arrangements. And whether the government is in fact
19 going to call a witness with respect to the bombing of
20 American troops en route to Somalia and temporarily stationed
21 in Yemen. 9:15 on Monday.
22 MR. COHN: I just hope that the Court did not take as
23 my silence on the issue because of the length of what went on
24 before that there is an automatic accession to the
25 presentation of that testimony. I will want to be heard on it
5035
1 when we hear what it is.
2 THE COURT: Let's deal with that now, because
3 obviously there is a question of whether the government should
4 be allowed to present evidence in the rebuttal case, and the
5 reason why I am inclined to allow it, assuming it is an
6 appropriate witness, and assuming that it's based on documents
7 and made available to the defendants, is a whole set of
8 circumstances with respect to the Somali testimony which as we
9 said earlier today, the Court had been assured as to each of
10 its repeated inquiries that the matter was going to be dealt
11 with by a stipulation.
12 It was only at the last moment that we learned that
13 there was no stipulation. So the government called its
14 witness, and then there is the whole question of Mr. El Hage
15 and so on. It seems to me to strike the testimony of Special
16 Agent Yacone and to preclude the government from providing
17 additional testimony on that would be unfair.
18 Also, the Court notes that it did not perceive, until
19 very recently, the nature of the defense being asserted by El
20 Hage, which I will refer to as the temporal defense, that at
21 the time when aid was being by supplied by al Qaeda in its
22 adherence to Somalia, Somalia was not militantly hostile
23 vis-a-vis the United States and the UN and that took place
24 some time after the Abdi House raid. That theory I think was
25 not articulated until very recently, and I think the
5036
1 government, if it wishes, and if it has a witness should be
2 given the opportunity to present that.
3 MR. COHN: Well, could I address the issue of
4 unfairness and first deal with it, and then assuming it still
5 exists subject it to harmless error analysis? Because I don't
6 think it was unfair, and I don't think that, because I don't
7 think the Court is really aware and shouldn't have been as to
8 what was going on in terms of the stipulation, --
9 THE COURT: Not that I didn't try.
10 MR. COHN: No, I know, Judge. But the problem was
11 that none of us knew and ground kept shifting and the Court in
12 its way had something to do with that, and this is not a
13 ascription of blame. I just want to put this in some sort of
14 context and that is this was always an El Hage issue. And I
15 must say that I've been pretty much out of it, and I think
16 pretty much everyone else was, and we sort of said, well,
17 yeah, they're going to put some proof in about this, and we
18 think that it's terrible stuff to put in 18 dead people.
19 That's a bad thing for us and we don't want it.
20 And at the time that the stipulation was coming to
21 fruition, and we hadn't seen drafts of it, nor should we
22 have -- I don't think we were excluded for any bad reason by
23 anybody -- it became clear to some of us, and I think borne
24 out by the Court's ruling that there will be no connection
25 made between the 18 deaths and the conspiracy, and we argued
5037
1 that, and so we had a choice when presented with the
2 stipulation which contained facts about the 18 dead soldiers
3 to accede to that and waive issues that were not waivable.
4 I mean this was not only defendants. There was a lot
5 of ambivalence amongst defense counsel to waive that issue or
6 to put the government to proof, which we didn't think they had
7 a right to prove, and motions were made, perhaps not as
8 articulately as we could, to address that issue.
9 And you may remember that I made an oral application
10 addressed to the 403 issues, said there was an overt act,
11 therefore, we couldn't keep it out, but we ought to because of
12 the 403 analysis, it wasn't fair, and as it started to develop
13 the Court started to see and ultimately ruled that there was
14 no connection and therefore that overt act was stricken.
15 Now, so that's what I call the harmless error
16 analogy. Assume that the government was led down some sort of
17 primrose path that they had to put that evidence in, so what?
18 The evidence was not competent ultimately and it was stricken
19 because it had nothing to do with it. To allow them now to
20 make again another trial choice and say, well, you can't get
21 that in, put in some other dead Americans, I don't think is
22 particularly fair to us, and I don't see -- sooner or later
23 the government has to make final choices in a case, and there
24 has been a history here of them coming back and saying, you
25 know, well, we can't, we didn't, we couldn't; give us another
5038
1 chance.
2 I don't see where Somalia particularly helps anything
3 for anybody except providing more dead Americans, and while I
4 don't denigrate the power of dead Americans, you know, I don't
5 think it's something that's particularly helpful in the case
6 to anybody, and to let the government to open it on a new on
7 essentially a new theory --
8 THE COURT: I think what you're ignoring is the fact
9 that the nature of the defense issue to Somalia deals with the
10 dates when various things happened, and it seems to me that
11 not to permit the government to show that Bin Laden identified
12 himself with a bombing of American troops en route to Somalia
13 in 1992 in a case in which a major issue is going to be made
14 that at the time aid was being furnished by coconspirators to
15 Somalia that hostility didn't exist is really a very strong
16 sanction against the government having relied on the fact that
17 there was going to be a stipulation.
18 MR. RICCO: Your Honor, I just wanted to be heard
19 before Mr. Schmidt started, and, your Honor, this was --
20 THE COURT: I'm just wondering, you know, I thought
21 9:15. Is it clear the government is going to present this?
22 MR. FITZGERALD: Your Honor, the government I believe
23 we will, and I think there are two things really need to be
24 said.
25 The proof in this case we cannot point with
5039
1 specificity a military soldier killed by al Qaeda, but there
2 is no doubt in my mind that al Qaeda did train people for the
3 purpose of trying to kill Americans and was responsible for
4 some deaths.
5 Now, in a case where not only does Bin Laden take
6 credit for it, but his military commander in a coconspirator's
7 statement at headquarters tells a witness that, we're
8 responsible for the death of the Somalians, and a document
9 which is not by a witness subject to a cooperation agreement,
10 but by Harun Fadl who knows the Nairobi cell, is a key person
11 in Nairobi cell, knows that's in their on handwriting. They
12 say in an internal memorandum, we're the Nairobi cell. We're
13 the ones responsible for the Sheik hitting the Americans in
14 Somalia. Why does that always get ignored?
15 Because I tell you something, if this were a drug
16 case showing that certain things happened, the fact that we
17 can't point to a particular body and say we don't know who the
18 shooter was so therefore we can't say that shooter was framed
19 by somebody doesn't mean it's not probative and relevant, and
20 to say it's unfair to put in evidence, we wanted to establish
21 that there were casualties. We offered to do it in a way that
22 didn't gild the lily.
23 I think the evidence is probative. Frankly, I think
24 the evidence shouldn't have been stricken, and the other point
25 is I don't know that we're seeing a case where no one is
5040
1 charged with killing those 18 people. Several of the people
2 are charged with having no association with al Qaeda
3 whatsoever at the time it happened and do we really think lie
4 that Mr. Al-'Owhali who is going to be convicted of bombing
5 the embassy in Nairobi because of unfair prejudice, that the
6 jury will be upset by attack on the military people which we
7 contend he had nothing to do with, rather than bombing the
8 embassy, I don't think there is unfair prejudice there.
9 THE COURT: There are two things. One is, you know,
10 your analogy to the drug case has a limitation and the
11 limitation is the broad scope of the conspiracy alleged in
12 Count One. It is the breadth of the government's claim of
13 conspiracy which I think makes all this relevant. Also, what
14 you are addressing is really not Mr. Cohn's point.
15 What you are addressing is whether the evidence
16 already in the record is persuasive that al Quaeda and its
17 leaders were directing anti-American military activities in
18 Somalia. The point that he was making, which is counter, is
19 not answered by an assertion that the record already has
20 enough -- let me just finish the sentence -- is your ability
21 to introduce the evidence on rebuttal.
22 MR. FITZGERALD: First, your Honor, I think when we
23 rested our case after calling Agent Yacone, we thought the
24 testimony was in evidence, so I think even putting aside
25 rebuttal, we're seeking to put ourselves back in a position of
5041
1 where we should have been, and I think already it's unfair to
2 the government that it's going to look to the jury through not
3 our fault, I'm not blaming anyone, that we put the evidence on
4 and then it's afterward stricken -- the defense sought to
5 revisit the issue as if we did something improper. We did
6 nothing more than we proffered to do.
7 My point is --
8 THE COURT: I don't think that's a risk, but if you
9 think that is a risk, give me some language. Give me some
10 language to tell the jury.
11 MR. FITZGERALD: The other point, Judge, we now have
12 Dr. Samatar's testimony saying that the Somalis had no animus
13 toward the Americans until after Abdi House and I think
14 forgetting the fact that we should not be in a position we
15 were, we also have the right to rebut that.
16 MR. RICCO: Your Honor, about 15 minutes ago you were
17 talking about the revelation that the Court had about
18 Mr. Schmidt's defense. Yesterday when Kherchtou was on the
19 witness stand and Mr. Smith took two hours in the middle of
20 our case to have a witness support his theory, we requested
21 redirect because we perceived that that's exactly what Mr.
22 Schmidt was doing to our case.
23 He took our case through that witness and crafted in
24 testimony to fit the theory that he was going to argue, and
25 what we were asking for was the opportunity to refocus the
5042
1 testimony back to our theory of the case, which was the reason
2 why we called that witness. And it was unfair, because as Mr.
3 Schmidt had taken so much time that understandably the Court
4 had little patience at that point to hear further testimony,
5 and we were put also at unfair disadvantage with respect to
6 what Mr. Schmidt did.
7 THE COURT: I didn't cut redirect. I didn't put time
8 limites on redirect.
9 MR. RICCO: What happened was --
10 THE COURT: You may have thought that I was impatient
11 but that's --
12 MR. RICCO: What happened is that what Mr. Schmidt
13 did was he had Mr. Kherchtou support his theory of the case,
14 and he did it in a way such a broad way, two and a half hours
15 of cross-examination, when we wanted an opportunity to refocus
16 his testimony back to the reason why we called him in the
17 first place, we were denied the opportunity to do so.
18 THE COURT: In what sense are you denied the
19 opportunity to do so? I didn't give you a time limit on
20 redirect.
21 MR. RICCO: No, sir, you didn't give us a time limit,
22 but when Mr. Schmidt asked questions about the plea agreement
23 as it related to Somalia, we wanted to have redirect to show
24 that the event that was discussed with respect to the plea
25 agreement related to the Nairobi bombing, which is an issue
5043
1 that we are confronted with, and we wanted to have an
2 opportunity to do that because we were --
3 THE COURT: What deprived of you that opportunity?
4 MR. RICCO: The Court denied us an opportunity after
5 cross.
6 THE COURT: There was an objection, was there not,
7 from Mr. Cohn about further questioning with respect to the
8 plea agreement?
9 MR. COHN: No, that was not my objection.
10 MR. FITZGERALD: That was my objection, Judge, that
11 had been that they had covered it when Mr. Kherchtou testified
12 on the government's case, we had covered it the day before.
13 MR. RICCO: That may very well be true that it was
14 covered, but through his examination --
15 THE COURT: What has that to do with the issue that
16 we're now addressing?
17 MR. RICCO: We're at this issue now because 15
18 minutes ago the Court was focused in on the fact that what the
19 El Hage defense is that has the Somalia issue focused at a
20 point where Bin Laden may not have issued a fatwa against
21 Americans, and we aware of that.
22 THE COURT: What are you asking the Court to do or
23 not to do?
24 MR. RICCO: I'm asking the Court to give us an
25 opportunity to ask our questions of the witness who was on the
5044
1 witness stand.
2 THE COURT: You want to cull Kherchtou back?
3 MR. RICCO: Yes, sir.
4 MR. FITZGERALD: Your Honor.
5 THE COURT: That's a separate issue.
6 MR. RICCO: It is a separate issue, Judge, but it is
7 related to where we are right now.
8 THE COURT: Let's deal with one issue at a time.
9 MR. SCHMIDT: I'd like to address the Somali issue,
10 your Honor. In my cross-examination of Mr. Kherchtou the
11 first time he took the stand, I cross-examined him in a
12 temporal way as well as other ways.
13 In our discussions with the government concerning the
14 Somalia stipulation it has always been a temporal discussion
15 as well as events. I think that, your Honor, I think I've
16 been consistent with the multifaceted defense of Somalia as it
17 relates to my client. It's not one single thing as to my
18 client. The conspiracy charges Somalia. Therefore, it's
19 always of a concern to me for my client.
20 But it is, it should be no surprise to the
21 government. In fact, their redirect examination of Mr.
22 Kherchtou back originally was to go after the time element of
23 when people came to Nairobi and went to Somalia, so they
24 already dealt with the time issue back then. So while the
25 government may be disadvantaged to some extent as to the
5045
1 casualty issue, because of the testimony, the temporal issue
2 was a decision that they made in the beginning not to deal
3 with the Yemen incident that is alleged, and it's not
4 something new, is effected by the striking of the testimony of
5 Agent Yacone.
6 The government has always taken the position during
7 the discussions concerning the stipulation that if we don't
8 read the stipulation --
9 THE COURT: I don't want to hear about that.
10 MR. SCHMIDT: It relates to what they say they will
11 prove. They always indicated that they would be putting on a
12 helicopter pilot. They have never indicated that there was
13 going to be a series of other witnesses relating to other
14 events, period.
15 So I think it's disingenuous for the government to
16 allege now that they're surprised at this temporal issue, as
17 your Honor has claimed, allowing them to go back not to the
18 helicopter pilot or even August, but to go back to December of
19 1992. I just wanted the record to be clear that this is not
20 new to the government.
21 MR. FITZGERALD: So the record be clear, I don't at
22 all agree with those representations.
23 MR. RICCO: Your Honor, even though the record is
24 clear with respect to Mr. Schmidt, I'd like to address the
25 specific issue before the Court.
5046
1 THE COURT: Yes.
2 MR. RICCO: If the purpose of having testimony in
3 Somalia about the dead troops was because it related to overt
4 act 1y now e, and that act is now stricken, it seems to me
5 that if we offer testimony about those events we're right back
6 in the same place that we're in now with Special Agent
7 Yacone's testimony.
8 THE COURT: But the indictment still alleges, the
9 fifth version, of an intent to killing of Americans in
10 Somalia, and the government obviously very strongly feels that
11 in fact when Bin Laden was taking credit for his military
12 actions in Somalia he was not taking false credit, so the
13 issue is still before the Court.
14 MR. RICCO: Your Honor, at what point is the
15 government's proof going to end on this? I mean the jury is
16 now, in addition to --
17 THE COURT: Is it unfortunate that towards the very
18 end of the case the jury is going to hear about Americans
19 being killed in Yemen? Yes.
20 MR. RICCO: Your Honor, I'm not talking about
21 unfortunate. I'm talking about after I've rested and the
22 government is going to put on --
23 THE COURT: Do you want to have a surrebuttal case?
24 MR. RICCO: Judge, I may or may not. I'm not
25 quibbling with the Court about it. But we presented a defense
5047
1 based upon the proof that was known to us in the world of
2 Somalia. We haven't been put any proof on about Yemen or any
3 place of the sort. We are disadvantaged with respect to the
4 evidence that we put forth in our case. We're now dealing
5 with an entire different country, an entire different time
6 period, and no notice, and we rested.
7 THE COURT: You can reopen.
8 MR. WILFORD: Your Honor.
9 THE COURT: In moving trying to push the case to a
10 conclusion it's not to curtail a valid defense or presentation
11 of evidence. Obviously I get distressed when I think
12 something which should take a half hour take two days, but
13 that's something else.
14 MR. RICCO: Your Honor, I don't believe that the
15 government should be able to be disadvantaged, just as I don't
16 think the defense should be disadvantaged if the Court is
17 going to permit us an opportunity to reassess where we are
18 after this evidence comes in to determine whether or not we
19 want to put on additional evidence, I'm certain it's
20 acceptable to do that.
21 THE COURT: I was deliberately very vague when I
22 talked to the jury about when it is that deliberations might
23 be. I think it is clear beyond a doubt that if the government
24 presents evidence and the defendants believe that they want to
25 present evidence to counteract that, they have the right to do
5048
1 so.
2 In terms of recalling Kherchtou to cross-examine him
3 further about his plea agreement, you have to make a showing
4 to me of what it is that has not been asked. To say you want
5 to do it to refocus it, you're going to have a closing
6 argument, and what's in the record with respect to that is in
7 the record, and you don't need any refocusing.
8 MR. RICCO: Judge, the option with respect to Yemen
9 right now I see that is a difference.
10 THE COURT: There is another resolution to this, and
11 I don't know whether it's feasible are not. Mr. Cohn, I'd
12 like you to be listening to this.
13 MR. COHN: I'm sorry, your Honor?
14 THE COURT: I'm saying there is another resolution to
15 this.
16 MR. COHN: What is that, your Honor?
17 THE COURT: Which may or my not be possible, and that
18 is to revisit the stipulation issue.
19 MR. COHN: I am not stipulating to dead soldiers
20 anywhere.
21 MR. WILFORD: Your Honor, may I be heard on the issue
22 of the government's proof with respect to Yemen. Would it be
23 possible, your Honor, to have the government lay out in a
24 letter perhaps that we have some understanding because --
25 THE COURT: The government has said that as soon as
5049
1 it has that in hand, it will make it available to you.
2 MR. WILFORD: If there is some, for instance, with
3 respect to other accreditations or fatwas that were attributed
4 to Bin Laden, there was a particular ABC interview or CNN
5 interview, something that we would be able to examine. If the
6 government is relying on a particular incident where Bin Laden
7 specifically said that and it's public somewhere, perhaps they
8 can let us know about it, so we can begin to take a look at it
9 and not wait for the last minute.
10 If there is some particular instance by Bin Laden
11 that at that particular time related to this particular
12 incident, then we should know about it.
13 MR. FITZGERALD: Your Honor, we'll tell counsel as
14 soon as we know what we're proving. If we have documents,
15 we'll identify them tomorrow. I've spent nights reading stuff
16 that we get in piles with little notice. The discovery they
17 have there is some I believe in Bin Laden's statement, we'll
18 parse through them. As we get it, we'll share with defense
19 counsel. We've always laid out what we've tried to do. We
20 haven't always gotten it in reverse. I just think we'll do
21 what we can.
22 THE COURT: Anything further?
23 MR. SCHMIDT: Let me note one thing.
24 THE COURT: Yes.
25 MR. SCHMIDT: That as Mr. Kherchtou testified both in
5050
1 February and this week the initial, and I think the government
2 doesn't disagree, that Bin Laden's people were ready to go
3 over to Somalia a year before the American and the UN were
4 there, and that's always been a temporal issue and that the
5 Yemen issue is a separate one that the government, it's not
6 part of the overt act. It's a separate issue, and they made a
7 decision on their initial case not to bring it in. I don't
8 think that they have the chance now.
9 THE COURT: I think this argument can be much more
10 focused and productive when we know what it is the government
11 seeks to introduce, by what witnesses, and by what documents,
12 and we'll revisit it again and that will be at 9:15 on Monday
13 morning.
14 MR. RICCO: Your Honor, in addition to the pages I
15 gave 1740 and 1741. That's to overt act e.
16 THE COURT: All right. We're adjourned.
17 MR. DRATEL: Your Honor, we're still talking about
18 the indictment, and I don't have to do it orally, because it's
19 in writing, it's in my letter.
20 THE COURT: Tell me what it is.
21 MR. DRATEL: There are two parts of the indictment in
22 which there has been absolutely nothing in the record. One is
23 that al Qaeda maintained and office or a center at Alkifah
24 refugee center in Brooklyn, that's on page 4. Also on page 4,
25 the notion that collaborators --
5051
1 THE COURT: I started to look for that and I didn't
2 find it.
3 MR. DRATEL: It's in the first paragraph. First
4 paragraph page 4.
5 THE COURT: Alkifah refugee center in Brooklyn, New
6 York. Yes.
7 MR. FITZGERALD: Al Fadl testified about that.
8 Alkifah refugee center is not part of al Qaeda. It's part of
9 the services office. It says this organization grew out of
10 its services offices which maintained offices in various parts
11 of the world and there has been --
12 MR. DRATEL: The language of the indictment is clear.
13 It says al Qaeda. Number two, when al Fadl went there, there
14 was no al Qaeda even. Al Fadl was there in 1987 or '88 before
15 he even went to Afghanistan the first time.
16 THE COURT: What's your other point?
17 MR. DRATEL: The other point the bottom of the
18 paragraph, I think the last full paragraph on the page is
19 about collaborators against al Qaeda would be identified and
20 killed. There is nothing in the record about that, nothing.
21 MR. FITZGERALD: There is. Al Fadl testified about
22 that.
23 MR. DRATEL: That they would be identified and
24 killed?
25 THE COURT: Yes, I believe he did.
5052
1 We're adjourned to 9:15 on Monday morning.
2 (Adjourned to Monday, April 30, 2001 at 9:15 a.m.)
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5053
1 GOVERNMENT EXHIBITS
2 Exhibit No. Received
3 420A and 420B ..............................5004
4 DEFENDANT EXHIBITS
5 Exhibit No. Received
6 MTX, M7X-8-T, K360, W19 ....................4987
7 WEHX-M-134 .................................4995
8 WEHX-M13-10 ................................4996
9 WEHX-M13-97 ................................4996
10 WEHX-M4517-18 ..............................4997
11 WEHX-M21-29, WEHX-M21-30, WEHX-M21-31, WEHX-M21-32,
12 WEHX-M21-33, WEHX-M21-34, WEHX-M21-35, WEHX-M21-36,
13 WEHX-M21-37, WEHX-M21-38, WEHX-M21-39,
14 WEXH-M21-40 ................................4997
15 WEHX-M13-98 ................................5003
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