14 February 2001
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 1 of the trial.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
1 125kbin1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7) 98 Cr. 1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 February 5, 2001 9:10 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 SOUTHERN DISTRICT REPORTERS (212) 805-0300 2 125kbin1 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 KENNETH KARAS PAUL BUTLER 5 Assistant United States Attorneys 6 ANTHONY L. RICCO 7 EDWARD D. WILFORD CARL J. HERMAN 8 SANDRA A. BABCOCK Attorneys for defendant Mohamed Sadeek Odeh 9 FREDRICK H. COHN 10 DAVID P. BAUGH LAURA GASIOROWSKI 11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 12 JEREMY SCHNEIDER DAVID STERN 13 DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed 14 15 SAM A. SCHMIDT JOSHUA DRATEL 16 KRISTIAN K. LARSEN Attorneys for defendant Wadih El Hage 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 7 125kbin1 1 (Pages 3 through 6 sealed) 2 (In open court) 3 THE COURT: I just want to alert you to one thing 4 which Joel Blum called to my attention. If there should ever 5 be an occasion, which I hope would be rare, that the courtroom 6 is cleared for purposes of some proceeding, we must bear in 7 mind that room 7, the overflow room, must also be cleared, 8 because otherwise we will have cleared the courtroom but not 9 the overflow rooms. 10 We will await the jurors, all of whom are here, so 11 the two alternate alternates will be excused. 12 (Recess) 13 THE COURT: You may bring in the jury. 14 (Time noted, 9:45 a.m.) 15 THE COURT: This is indeed a historic occasion, as we 16 are starting 15 minutes before the appointed hour. 17 (Jury present) 18 THE CLERK: United States of America versus Mohamed 19 Sadeek Odeh, Mohamed Rashed Al-'Owhali, Khalfan Khamis 20 Mohamed, and Wadih El Hage. Attorneys for the government 21 ready? 22 MR. FITZGERALD: Yes, your Honor, good morning. 23 THE CLERK: Attorneys for defendant Odeh ready? 24 MR. RICCO: Yes, we are, your Honor. 25 THE CLERK: For defendant Al-'Owhali? SOUTHERN DISTRICT REPORTERS (212) 805-0300 8 125kbin1 1 MR. COHN: Yes, the defendants are ready. Your 2 Honor, there are headphone problems. The interpreters -- 3 THE CLERK: Defendant Khalfan Khamis Mohamed ready? 4 MR. RUHNKE: Yes, your Honor. 5 THE COURT: For defendant El Hage ready? 6 MR. SCHMIDT: We are ready, your Honor. 7 THE COURT: Mr. Czakany, I am told that there are 8 some problems with the headphones. Could you alert Mr. Blum 9 and see whether there is something that can be done about 10 that -- there he is. 11 Mr. Kenneally, will you swear the jury, please. 12 (The jury of 12 and 6 alternates was duly sworn.) 13 THE COURT: You recall, ladies and gentlemen, that I 14 did explain the arrangements with the interpreters and the 15 connections, and we had hoped that everything had been in 16 order, but there appears to be some lag. 17 (Pause) 18 THE COURT: Ladies and gentlemen -- and finally, 19 after weeks of careful screening and interviewing, I can greet 20 you in this fashion, as ladies and gentlemen of the jury. 21 First, on behalf of all the participants in this proceeding, I 22 want to thank you for your willingness to serve on the jury in 23 this lengthy trial. We recognize that for many of you the 24 call to lay aside the normal affairs of your life and to 25 devote yourself to this trial entails sacrifices on your part, SOUTHERN DISTRICT REPORTERS (212) 805-0300 9 125kbin1 1 on the part of your families, on the part of your employers. 2 We appreciate your willingness to discharge this high civic 3 duty. 4 As you know, great pains were taken in your 5 selection. Over 1,300 people chosen at random completed 6 questionnaires containing some 96 questions to enable us to 7 learn something about you, including everything from your 8 reading habits to your views on profound philosophical 9 questions. In addition, we interviewed you individually. 10 Then, from a pool of 80 panelists, you 18 were selected by 11 counsel for the parties. 12 I want to particularly thank the jury commissioner, 13 Robert Rogers, for the smooth way in which the logistics were 14 handle, and to Jack Radovich for his invaluable assistance in 15 dealing with this fairly significant logistical problem. 16 Service on a jury requires patience, attentiveness, 17 and discipline. For example, I cautioned you each time we met 18 to make strenuous efforts to avoid reading, watching, 19 listening to, or discussing anything that may appear in the 20 media or that may be talked about in your presence relating to 21 this case or in any way connected to this case. For example, 22 although Usama Bin Laden is named as a defendant in the 23 indictment before you, he is not a party to this case. He is 24 not subject to the jurisdiction of this court. But I ask that 25 you refrain from reading or listening to or watching anything SOUTHERN DISTRICT REPORTERS (212) 805-0300 10 125kbin1 1 that may appear in the media concerning Bin Laden or this 2 case. If you see a reference to terror trial or embassy 3 bombing case, please switch the TV dial or turn the page. 4 If anyone should seek to engage you in any discussion 5 of the case, simply walk away. If the person persists, please 6 advise me or the United States Marshals. 7 I may remind you of this caution from time to time, 8 but even if I fail to do so on a daily basis, please always 9 bear it in mind. 10 Another matter of discipline is that I ask that you 11 not discuss the merits of this case even amongst yourselves 12 until some months from now when all the evidence is in and you 13 have heard the court's instruction and you begin your 14 deliberations. Occasionally jurors ask why I impose this 15 restriction. They say we are going to spend so much time 16 together and this case is obviously what we have most in 17 common. We know you don't want us to discuss this with others 18 because you don't want outside influences on us, but why can't 19 we talk among ourselves about the merits of the case? We ask 20 that you not discuss the merits of the case with each other 21 until you have heard all the evidence and the court's 22 instructions on the law because experience tells us that once 23 somebody openly expresses a view favoring one side or the 24 other, there becomes an identification with that view and a 25 reluctance to change an opinion once expressed. So please SOUTHERN DISTRICT REPORTERS (212) 805-0300 11 125kbin1 1 avoid discussing the merits of the case until you begin your 2 deliberations. 3 Finally as to discipline, a trial is somewhat like a 4 play. It cannot begin until all the performers are present. 5 For us that means all the jurors, all the lawyers, 6 interpreters, witnesses, court reporter, and myself. So 7 please make every possible effort to be on time, because we 8 cannot begin until you are all here. We will make every 9 effort to begin promptly. 10 I have another instruction to you which is facetious 11 but I mean it. Please, all stay healthy. Take good care of 12 yourselves. 13 As I told you before during jury selection, I will 14 meet every morning with the lawyers before court and every 15 afternoon after you leave, to have the trial proceed as 16 expeditiously as possible and not waste your time. When 17 delays occur -- despite all our efforts there may be some 18 unavoidable delays -- we will try to give you as much advance 19 notice as possible. For example, last week I told you that we 20 will not be sitting this Thursday, and of course we are not 21 sitting on Friday, and Monday is a holiday. So that you have 22 a five-day break from jury service, and I hope that you can 23 use that opportunity to make arrangements for things that will 24 be difficult to deal with while you are on jury duty. 25 As to logistics, we will sit Monday through Thursday SOUTHERN DISTRICT REPORTERS (212) 805-0300 12 125kbin1 1 from 10:00 a.m. to 4:30, unless you are otherwise advised. It 2 may be that it would be convenient to start earlier than 10:00 3 a.m., judging by today's experience. We will see how that 4 works. But for now we will sit from 10:00 a.m. to 4:30. We 5 will take a mid-morning break, a midafternoon break, and break 6 for lunch, which you will order each morning, which will be 7 served to you in the jury room. Have you ordered lunch? You 8 have ordered lunch, good. If at any time any juror wishes the 9 court to declare a recess, please just raise your hand and say 10 may we have a recess. No questions asked, we will be glad to 11 accommodate you. If at any time you want to stand and 12 stretch, because I know a lot of us have back problems, please 13 feel free to do that. 14 Let me now ask that the participants in this case be 15 reintroduced, because I know for some of you it has been a 16 while. The first row seated in front of me, are the 17 government attorneys and their staff, and the row seated 18 behind them and to the right are defense counsel and the 19 defendants, and I would ask that they now reidentify 20 themselves. 21 MR. KARAS: Good morning, ladies and gentlemen. Ken 22 Karas. 23 MR. FITZGERALD: Good morning. Pat Fitzgerald. 24 MR. BUTLER: Good morning. Paul Butler. 25 MS. GRANT: Good morning. Lillie Grant, paralegal SOUTHERN DISTRICT REPORTERS (212) 805-0300 13 125kbin1 1 specialist. 2 MS. MAEYAMA: Good morning, Naomi Maeyama, paralegal 3 specialist. 4 MR. FRANCISCO: Good morning, Gerard Francisco, 5 paralegal specialist. 6 MR. RICCO: Good morning, everyone. My name is 7 Anthony Ricco, and, as I told you before, I represent this man 8 seated here. His name is Mohamed Odeh. Also representing Mr. 9 Odeh is Carl Herman and Ed Wilford. For some of the jurors I 10 told you about an attorney who wasn't here before. Now she is 11 here. Her name is Sandra Babcock. She will not be here 12 throughout the trial. You will see her from time to time 13 during the trial. Thank you very much. 14 MR. COHN: Good morning, ladies and gentlemen. My 15 name is Fred Cohn and I represent Mohamed Al-'Owhali, seated 16 two seats to my left. Next to me is Laura Gasiorowski, my 17 associate counsel. My cocounsel David Baugh is over there. 18 In the audience, and you will see her from time to time, is 19 Katie Tempone -- please stand up, Katie -- a paralegal in my 20 office. 21 MR. RUHNKE: Ladies and gentlemen, my name is David 22 Ruhnke. I am one of three attorneys representing Khalfan 23 Khamis Mohamed, who will also be referred to as K.K. Mohamed. 24 My cocounsel will introduce themselves at this time. 25 MR. STERN: My name is David Stern. I am one of SOUTHERN DISTRICT REPORTERS (212) 805-0300 14 125kbin1 1 Mr. Mohamed's attorneys. 2 MR. SCHNEIDER: Good morning. I am Jeremy Schneider. 3 I will also be representing Mr. Mohamed. 4 MR. SCHMIDT: Good morning, ladies and gentlemen. My 5 name is Sam Schmidt. I represent Wadih El Hage, seated to my 6 right. Also representing Mr. Hage is Joshua Dratel. He is on 7 my left. My associate Kristian Larsen is here. You will see 8 him seated here at times, as well as Marshall Mintz, another 9 attorney, and you will also see Elizabeth Besobrasow, who is 10 seated back there, at times seated at counsel table. Thank 11 you very much. 12 THE COURT: Let me briefly tell you of the sequence 13 of events that will take place in the trial and discuss your 14 role and my role in these proceedings. 15 A federal criminal proceeding of this sort begins 16 with the filing of an indictment, and the four defendants on 17 trial who have just been introduced to you have been named in 18 various counts of an indictment. The indictment in this case 19 contains 308 counts, or charges. You will during your 20 deliberations and perhaps earlier have a copy of the 21 indictment, so don't feel you have to memorize the particular 22 counts. I am just going to briefly summarize them for you. 23 Counts 1, 2 and 3 of the indictment name all four 24 defendants. Count 1 alleges a conspiracy to kill United 25 States nationals. Count 2 alleges a conspiracy to murder, SOUTHERN DISTRICT REPORTERS (212) 805-0300 15 125kbin1 1 kidnap and maim United States nationals at places outside the 2 United States. Count 3 alleges conspiracy to murder. Count 4 3 names the defendants Odeh, Al-'Owhali and K.K. Mohamed, that 4 is, all the defendants except El Hage, and that alleges a 5 conspiracy to use weapons of mass destruction against the 6 United States nationals. Counts 5 and 6 name all four 7 defendants. Count 5 alleges a conspiracy to destroy United 8 States buildings and property. And Count 6 alleges a 9 conspiracy to attack national defense utilities. Counts 7 10 through 286 relate to the bombings in Africa, they relate to 11 the bombings, the alleged murders, and I am not going to 12 summarize them now. Counts 287 to 308 relate solely to the 13 defendant El Hage. Counts 287 to 305 allege perjury before 14 federal grand juries, and Counts 306, 307 and 308 allege false 15 statements made to the FBI. 16 An indictment is not evidence, it is merely a charge. 17 It is the means by which the defendants are brought before a 18 jury such as yourselves. The defendants are presumed to be 19 innocent and there is at present no evidence before you as to 20 their guilt. The presumption of innocence remains with them 21 until such time, if ever, as you the jury unanimously find 22 that the government has proven guilt beyond a reasonable 23 doubt. Guilt is individual, and you will be asked to consider 24 separately the guilt of each defendant on each charge. 25 The first thing that happens in a criminal case is SOUTHERN DISTRICT REPORTERS (212) 805-0300 16 125kbin1 1 that the government makes an opening statement. Because it 2 has the burden of proof, that is, the burden of proving guilt 3 to your unanimous satisfaction, beyond a reasonable doubt, the 4 government goes first. An opening is the opportunity to put 5 before you what it is that the party making the opening 6 statement believes that the evidence will show. Evidence does 7 not always come in in an orderly chronological fashion, and an 8 opening statement provides an opportunity to present an 9 overall view of what the party anticipates the evidence will 10 show. 11 After the government completes its opening statement 12 defense counsel may, if they wish, make an opening statement. 13 I say may if they wish because there is no burden on the part 14 of any defendant to introduce any evidence or make any 15 statement. 16 After all the openings are completed, the government 17 will call its witnesses, and when all the government witnesses 18 have testified, the government will rest. The defendants may 19 then, if they wish, call defense witnesses. When all the 20 defense witnesses have testified, the government may, if it 21 wishes, call rebuttal witnesses, that is, witnesses whose 22 testimony is offered to rebut evidence offered by defense 23 witnesses. 24 After all the evidence has been heard, counsel are 25 given the opportunity to make closing arguments, that is, to SOUTHERN DISTRICT REPORTERS (212) 805-0300 17 125kbin1 1 argue to you why, on the basis of the evidence you have 2 already heard, you should find in favor of their respective 3 clients. 4 The possibility of punishment that a defendant may 5 receive if found guilty is not a consideration in determining 6 whether or not a defendant has been proven by the government 7 to be guilty beyond a reasonable doubt. 8 Let me now talk about my role at the trial and yours. 9 My role, of course, is to preside at the trial, to rule on the 10 legal matters which may arise from time to time during the 11 course of the trial, for example, the admissibility of 12 evidence. We shall try to keep any argument as to such 13 matters to a minimum, but occasions may arise when counsel ask 14 for a sidebar. That is the opportunity to take up a legal 15 matter with me outside of your hearing. Please do not be 16 offended if this should occur. These legal issues are not 17 your concern and you should show no resentment towards an 18 attorney who requests such a sidebar. But, as I have said, we 19 will meet in the morning and in the afternoon to try and keep 20 such interruptions to a minimum. 21 It is also my responsibility at the end of the trial 22 and after closing statements to instruct you on the law to be 23 applied by you to the facts as you find them. You are the 24 sole determiners of the facts. You decide which witnesses you 25 believe and which witnesses you do not believe. The finding SOUTHERN DISTRICT REPORTERS (212) 805-0300 18 125kbin1 1 of facts is your prime function. Issues of law are the sole 2 prerogative of the court, and you are bound by your oath as 3 jurors to apply to the facts as you find them the law as 4 contained in the court's instructions. It would violate your 5 oath as jurors to substitute for the law as contained in the 6 court's instructions any view you may have as to what the law 7 is or ought to be, other than as set forth in the court's 8 instructions. 9 My role is also to function as a timekeeper and to 10 hold counsel to the reasonable periods of time they have 11 requested. As I have said, your role is to find the facts, 12 and your finding of the facts must be based entirely on the 13 evidence introduced in this court. Evidence is a very 14 specific, limited concept. Not everything that you see or 15 hear in this courtroom is evidence. A very good example of 16 that is what you are listening to now. What I say is not 17 evidence. What the attorneys say in their opening or closing 18 statements is not evidence. If there is a fact assumed in a 19 question -- for example, were you standing on a street corner 20 on January 3 when it was raining, and the answer is no, then 21 there is no evidence that it was raining on January 3, unless 22 that appears from other testimony, because the question isn't 23 evidence. 24 Let me put it affirmatively. Let me tell you what is 25 evidence. Evidence consists of the testimony, the answers SOUTHERN DISTRICT REPORTERS (212) 805-0300 19 125kbin1 1 given by the witnesses to the questions posed to them. 2 Obviously, to evaluate the answer you have to consider it in 3 connection with the question to which it is a response. But 4 it is the answer which is the evidence, not the question. 5 Documents received in evidence, marked and received 6 in evidence, are evidence, not merely papers waved around the 7 courtroom or shown to a witness to refresh the witness's 8 recollection. Documents received in evidence are evidence. 9 Stipulations are agreements between the parties that 10 a certain fact is true or that if a certain witness were 11 called, that witness's testimony would be as stated in the 12 stipulation, and that is before you too as evidence. Nothing 13 else is evidence unless I specifically tell you that a 14 particular matter may be treated by you as evidence. 15 If you find it would be useful to you, you may take 16 notes during the trial, and you will be furnished with writing 17 material. That is an option entirely in your discretion. If 18 you do take notes, be sure that your taking of notes does not 19 interfere with your listening to and considering all the 20 evidence and particularly observing the demeanor of the 21 witness. 22 Also if you take notes, do not discuss your notes 23 with anyone before or during your deliberations. Your notes 24 are to be used solely to assist you and are not to substitute 25 for your recollection of the evidence in the case. The fact SOUTHERN DISTRICT REPORTERS (212) 805-0300 20 125kbin1 1 that a particular juror takes notes entitles that juror's 2 views to no greater weight than those of any other juror and 3 your notes are not to be shown to any other juror during the 4 course of your deliberations. If during your deliberations 5 you have any doubt as to any testimony, you will be permitted 6 to request that the official trial transcript which is being 7 made of these proceedings be read to you. Your notes are to 8 be left in the jury room, which will be locked, and are not to 9 be taken home with you. But, as I said, if you wish to take 10 notes you are free to do so. 11 Finally, if at any time in your wanderings around the 12 city you happen to come across anyone you now see at counsel 13 table and they don't greet you and exchange pleasantries, 14 please don't think they are being rude. They are simply 15 adhering to the instructions that this court gives in all 16 cases, not just this case. 17 Ladies and gentlemen, that completes my preliminary 18 remarks and the next order of business then is the opening 19 statement on behalf of the government. 20 MR. BUTLER: May it please the court, ladies and 21 gentlemen of the jury. It's August 7, 1998. It's a Friday, 22 about 10:30 in the morning. It is downtown Nairobi, the 23 capital of Kenya, a country located in eastern Africa. It's 24 business as usual at the American Embassy, which means busy. 25 You see, the embassy is an interesting place. It serves as a SOUTHERN DISTRICT REPORTERS (212) 805-0300 21 125kbin1 Opening - Mr. Butler 1 gateway to America overseas. It represents America in foreign 2 countries like Kenya, and it serves the needs of the local 3 community. So there are many different people inside an 4 embassy. There are high public officials, like Julian 5 Bartley, the consul general, who rose from a working class 6 neighborhood in Queens to become the man responsible for 7 looking after Americans in Kenya. There are interns like his 8 son Jay, who worked at the embassy to learn a little bit about 9 his father's occupation. There are ordinary working people, 10 like Michelle O'Connor, a secretary at the embassy, who was 11 the mother to three young daughters. And there are Kenyans 12 who work at the embassy, called foreign service nationals, 13 like Tobias Otieno, who worked in the commercial department 14 writing economic reports about the Kenyan economy. 15 Still other people come to the embassy for services, 16 like Kenyans who come to get a visa to travel to this country. 17 Or like Father John Kiogo, a Catholic priest in Kenya, who 18 went to the embassy that day to visit his brother who worked 19 there, and his niece, who was getting ready to travel to the 20 United States to be a student. Father Kiogo and his brother 21 and his niece sat down in the embassy that day doing a final 22 count of her money and making sure that her paperwork was in 23 order for her big trip. 24 The area outside the embassy is just as busy. Next 25 to the embassy is a secretarial college where young people are SOUTHERN DISTRICT REPORTERS (212) 805-0300 22 125kbin1 Opening - Mr. Butler 1 preparing for their future. Inside that building there are 2 some small offices where there are businesses, like the 3 scrapmetal business of a Kenyan like Yoganda. 4 Across from the embassy parking lot there is a taller 5 office building where people go about their everyday business. 6 As a matter of fact, the American ambassador, Miss Prudence 7 Bushnell, is there for a meeting. The streets outside the 8 embassy are also busy as the morning rush hour is still in 9 full force. Cars, trucks and buses are lined up in traffic, 10 including a bus bringing children to school. 11 Then, in the blink of an eye, everything changed. A 12 truck entered the rear parking lot of the American Embassy. 13 In the back of that truck was a massive bomb which exploded 14 with devastating force. The American Embassy and a tall 15 office building were shattered. The secretarial college 16 collapsed and was completely destroyed. 17 That's only what the bomb did to concrete and metal 18 buildings. What it did to human beings that day defies 19 description. Words and numbers just cannot capture the 20 horror. When it was over, 213 men, women and children had 21 lost their lives. Among them were Julian Bartley, the consul 22 general, his only son, Jay, Michelle O'Connor, the mother to 23 those three young daughters, and the brother and the niece of 24 Father John Kiogo. Thousands more were injured, many blinded 25 by flying glass from blown out windows, like Tobias Otieno, SOUTHERN DISTRICT REPORTERS (212) 805-0300 23 125kbin1 Opening - Mr. Butler 1 the foreign service national, who lost most of his sight in 2 one eye, or Sammy Yoganda, the scrapmetal worker, who sat 3 under the rubble of the secretarial college for three full 4 days. 5 Why did these bombings happen? Who could be 6 responsible for such horrible acts of violence? 7 Ladies and gentlemen, the evidence will show that 8 these two bombings were a major strike in an ongoing terrorist 9 plot carried out by a violent worldwide group. Four members 10 of this overarching plot to kill Americans are the four 11 defendants on trial before you today. 12 First is Mohamed Al-'Owhali. Mohamed Al-'Owhali left 13 the headquarters of that terrorist group in Afghanistan on a 14 mission to kill Americans. He left on a mission to kill and 15 to die. You see, Mohamed Al-'Owhali was actually in the truck 16 that brought the bomb to Kenya that day. He went there on a 17 mission to kill and to kill himself. But, ladies and 18 gentlemen, the evidence will show that at the last minute 19 Mohamed Al-'Owhali ran away from that bomb truck, leaving 213 20 innocent men, women and children slaughtered behind him. 21 I told you about the bombing in Kenya and the 22 horrible acts that occurred there, but, ladies and gentlemen, 23 you will learn that on that Friday morning at 10:30, the 24 carnage had not stopped. The horror repeated itself minutes, 25 perhaps even seconds later, in another country in East Africa SOUTHERN DISTRICT REPORTERS (212) 805-0300 24 125kbin1 Opening - Mr. Butler 1 called Tanzania. Another truck pulled into the parking lot of 2 the American Embassy in Dar es Salaam, the capital of 3 Tanzania. Another bomb was in the back of that truck and 4 exploded with devastating force. Eleven more innocent people 5 were killed and dozens more were injured. 6 The second defendant before you is Khalfan Mohamed. 7 Khalfan Mohamed was in a bomb truck that day too, the bomb 8 truck in Tanzania. Khalfan Mohamed went toward the embassy 9 that day intending to kill, but he did not intend to die. You 10 see, Khalfan Mohamed got out of the truck well before it 11 reached the embassy. But make no mistake about it, ladies and 12 gentlemen, Khalfan Mohamed knew that the driver of that truck 13 was about to deliver his lethal payload to the embassy, a 14 truck bomb that would kill 11 people. How do we know this? 15 Because the evidence will show that Khalfan Mohamed actually 16 helped grind the TNT that was used to make that bomb and 17 loaded that TNT onto the back of the truck. 18 Perhaps the only thing nearly as frightening as the 19 carnage that was wrought by Al-'Owhali and Khalfan Mohamed 20 that day is to learn how many people were involved in this 21 terrorist plot to kill Americans, and to learn that these 22 bombings were neither the beginning nor the end of that plot. 23 Who is this group? Who is it that sent Mohamed 24 Al-'Owhali on his deadly mission from Afghanistan? 25 At this trial you will learn that a man named Usama SOUTHERN DISTRICT REPORTERS (212) 805-0300 25 125kbin1 Opening - Mr. Butler 1 Bin Laden formed this terrorist group known as Al Qaeda, which 2 plotted for years to kill Americans. Bin Laden's group is 3 spread throughout the world. Two members of that group from 4 East Africa are the other two defendants before you here 5 today: Mohamed Odeh and Wadih El Hage. 6 Wadih El Hage was a key member of Bin Laden's group 7 in East Africa. Wadih El Hage is a naturalized US citizen 8 from Lebanon. In the 1980's, he lived in the United States 9 and in Pakistan, where he first met Usama Bin Laden. In the 10 early 1990's, El Hage moved to the Sudan while Bin Laden was 11 located there. 12 You will hear about some of the things that El Hage 13 did on behalf of Bin Laden and his businesses in the Sudan. 14 By 1994, El Hage became a trusted associate of Bin Laden, and 15 he was sent to Nairobi, Kenya, on behalf of the group. He 16 joined up with Bin Laden's military commander, a man known as 17 Abu Ubaidah. You will hear about some of the secret things 18 that Wadih El Hage, Abu Ubaidah and others did for Bin Laden 19 while in Nairobi, Kenya. You will hear that they established 20 businesses and that they passed messages back and forth to the 21 group. You will hear about one message in particular that 22 Wadih El Hage brought back in 1997. It was a message to the 23 secret group in Africa known as a cell, that it should prepare 24 itself for military work. This is the same East Africa cell 25 that would blow up the embassies a year later. SOUTHERN DISTRICT REPORTERS (212) 805-0300 26 125kbin1 Opening - Mr. Butler 1 I want to say one thing. When I use the term 2 military work, I am using the group's term, not mine. Killing 3 innocent men, women and children in acts of terror is not 4 military work. It is the group that liked to justify their 5 actions by calling it military. 6 The last defendant before you is Mohamed Odeh. 7 Mohamed Odeh was another key member of the Bin Laden's group 8 in East Africa. Odeh joined Bin Laden's group in the early 9 1990's, and he was trained in camps in Afghanistan in the 10 tools of terrorism. He was trained in assassinations and 11 explosives. He was even trained as to how much explosives 12 were needed to blow up will specific types of buildings. 13 After his training, Mohamed Odeh was sent to Somalia, 14 a country located just northeast of Kenya. 15 Some of you may recall that back in 1993 the United 16 States and the United Nations sent military troops to Somalia. 17 Bin Laden and his group violently objected to this, so Bin 18 Laden sent members of the group down to Somalia to help train 19 the Somalis how to fight. One of those trainers was Mohamed 20 Odeh. 21 After he was done in Somalia, Odeh was sent to Kenya 22 by the group, where he settled on the coast of Kenya in an 23 area called Mombasa. He was given a boat by the group to set 24 up a fishing business, and the proceeds of that business were 25 to be used to support members of the cell living on the coast SOUTHERN DISTRICT REPORTERS (212) 805-0300 27 125kbin1 Opening - Mr. Butler 1 of Kenya. But Odeh would meet up with this explosives trainer 2 from Afghanistan again. It would be August 1998, the week of 3 the bombing. Odeh would travel from his home on the coast of 4 Kenya and come to Nairobi. He would stay the week before the 5 bombing in the very hotel in Nairobi where the masterminds of 6 this bomb plot stayed, including the bomb builders themselves. 7 You will learn that Odeh would leave Kenya on August 8 6, 1998, the night before the bombing, using a false passport. 9 And where was he going? Straight back to Afghanistan to meet 10 with Usama Bin Laden. 11 Ladies and gentlemen, as you know from earlier this 12 morning, I am Assistant United States Attorney Paul Butler. 13 With me are Assistant United States Attorneys Ken Karas and 14 Pat Fitzgerald. Together, it is our privilege to present this 15 case to you on behalf of the United States government. As you 16 know from this morning also, with us at counsel table are 17 paralegals Lillie Grant, Naomi Maeyama, and Gerard Francisco, 18 who together with many others will be helping us throughout 19 this trial. 20 I would like to take some time to outline for you the 21 crimes that the government will prove were committed by these 22 defendants, and to describe briefly for you how the government 23 intends to prove these crimes. But as Judge Sand told you, 24 what I am about to tell you is not evidence. The witnesses 25 will tell you what the evidence is. The opening statement is SOUTHERN DISTRICT REPORTERS (212) 805-0300 28 125kbin1 Opening - Mr. Butler 1 not a time for me to try to imprint on your memory every 2 important fact. Rather it is just a time for the government 3 to offer you a preview or an outline of what the government 4 believes the evidence will show at this trial. It is like 5 giving someone directions for a trip they haven't taken 6 before, to try to provide them with landmarks or orient them 7 with certain terms on the road, so that when they actually 8 take the trip the directions will become more familiar. So 9 please, don't be overwhelmed by the number of unfamiliar 10 names, dates, foreign places you are going to hear about. It 11 is our job throughout the trial to make that clear to you, and 12 by the end of the trial, what may seem unfamiliar to you now 13 will be very familiar to you by then. 14 In order to understand what led to these bombings on 15 August 7, 1998, we have to learn a little bit more about this 16 terrorist group formed by Usama Bin Laden. As I told you, the 17 name of that group is Al Qaeda, which is an Arabic term, and 18 it means the base. Bin Laden formed Al Qaeda back in the 19 1980's in Afghanistan. 20 Some of you may recall, at that time the Afghan 21 people, who were mostly Muslims, were at war with the former 22 Soviet Union. Many, including the United States, thought that 23 the cause of the Afghan people was a just cause, and Muslims 24 from throughout the world came to fight on behalf of the 25 Afghans. One of those persons was Usama Bin Laden, the son of SOUTHERN DISTRICT REPORTERS (212) 805-0300 29 125kbin1 Opening - Mr. Butler 1 an extremely wealthy Saudi Arabian businessman. 2 Eventually, the Soviet Union withdrew its troops from 3 Afghanistan, and Bin Laden saw this as an opportunity. He saw 4 this as an opportunity to use these well-trained fighters to 5 overthrow governments that he did not like, that is, 6 governments that did not share his extremist beliefs. So he 7 founded Al Qaeda, the base, as a base of military operations. 8 It was a base not only for the members of his own group but 9 for a network of other groups and people who shared his 10 extremist philosophy. 11 In the early 1990's, Bin Laden moved the headquarters 12 of Al Qaeda from Afghanistan to the Sudan in Africa. He 13 worked closely with the Sudanese government in establishing 14 various businesses, and you will hear how the defendant Wadih 15 El Hage assisted Bin Laden and did various things for him in 16 his businesses while in the Sudan. 17 It was around this time in 1991 when the United 18 States became involved in the Persian Gulf war against Iraq. 19 As I am sure many of you will recall, the United States sent 20 troops to the country of Saudi Arabia during that war. Bin 21 Laden and his group finally objected to this as well. You 22 see, Saudi Arabia contains two sites that are very important 23 to the religion of Islam, known as the two holy mosques. So 24 Bin Laden and his group objected to US troops being in Saudi 25 Arabia for that reason. They began issuing statements amongst SOUTHERN DISTRICT REPORTERS (212) 805-0300 30 125kbin1 Opening - Mr. Butler 1 themselves in the Sudan, calling the Americans infidels and 2 calling for them to be driven from the land of the two holy 3 mosques. But, ladies and gentlemen, it was not just words. 4 You will hear that Bin Laden and his group began taking 5 actions to prepare to do battle with his enemies, particularly 6 the United States. 7 As I mentioned before, in 1993 the United States and 8 the United Nations became involved in Operation Restore Hope, 9 a peacekeeping mission to restore order in war-torn Somalia. 10 Again, Bin Laden and his followers did not see it that way. 11 They saw this as a chance by America to gain a foothold in 12 Africa, in order to invade Muslim countries. So the group 13 began issuing more statements amongst themselves, saying that 14 the Americans in Somalia ought to be killed and calling for 15 the Americans to be driven from Somalia and from Saudi Arabia. 16 But once again, it wasn't just words. You will hear that Bin 17 Laden and his group took actions. Bin Laden sent members of 18 his group down to Somalia to train fighters how to fight. And 19 one of those trainers was the defendant Mohamed Odeh. 20 You see, Bin Laden knew that he could not fight an 21 open, all-out war against the United States in Somalia the way 22 he had done so against the Soviet Union in Afghanistan. So he 23 sent people to train the Somalis how to fight. That way he 24 could preserve the members of his own group. 25 It was during this effort in Somalia that Bin Laden SOUTHERN DISTRICT REPORTERS (212) 805-0300 31 125kbin1 Opening - Mr. Butler 1 established his network of operations in Nairobi, Kenya. You 2 see, the plan was to have Bin Laden's fighters and members of 3 his group travel to Kenya and slip across the border to 4 Somalia. So he had to set up a base of operations. He sent 5 various people there to establish fake businesses, cover 6 businesses that would help fighters infiltrate through to 7 Somalia. 8 Even after the events in Somalia were over, Kenya 9 remained an important base of operations for the group. You 10 will learn about what various members of the group did in 11 Nairobi, Kenya, during this time. For example, you will learn 12 that Bin Laden's military commander, the man known as Abu 13 Ubaidah, settled in Nairobi, Kenya. You will learn that in 14 1994 the defendant Wadih El Hage joined Abu Ubaidah in Kenya. 15 You will learn that after his time in Somalia, Mohamed Odeh 16 returned from Somalia and settled on the coast of Kenya where 17 he began that fishing business, all the while remaining a 18 member of Al Qaeda. Wadih El Hage worked in the city of 19 Nairobi. On the outside, he was an American businessman in 20 Kenya. On the inside, he was doing secret work on behalf of 21 Usama Bin Laden. 22 In 1996, Bin Laden moved the headquarters of Al Qaeda 23 back from the Sudan to Afghanistan. And it was at this time 24 that Bin Laden became bolder and more brazen about his desire 25 to kill Americans. Previously, the group had just issued SOUTHERN DISTRICT REPORTERS (212) 805-0300 32 125kbin1 Opening - Mr. Butler 1 statements amongst themselves, but in the summer of 1996 Usama 2 Bin Laden issued a public open declaration of war on the 3 American military. 4 Again, it was not just talk. You will hear the 5 things that Bin Laden's loyal followers did in order to carry 6 through on this public declaration. For example, you will 7 hear about several trips that the defendant Wadih El Hage took 8 in 1997 to meet with the leadership of Al Qaeda. 9 You will hear about the one trip where he came back 10 with that important message that the east African cell should 11 prepare itself for military work. You will also hear that 12 upon his return from another of these trips, El Hage's house 13 in Kenya was searched and several important items were 14 recovered, including a computer, about which you will hear 15 more during this trial. 16 After that search, El Hage and his family decided to 17 return to the United States, and it was at this point that 18 America turned to one of its own citizens, Wadih El Hage, for 19 help in protecting itself from Bin Laden's network. You see, 20 in light of Bin Laden's open declaration of war on the 21 American military, the United States government began an 22 investigation of Bin Laden, began investigating his 23 solicitation of murder and his calls to attack Americans 24 overseas. 25 So Wadih El Hage was called to testify before a grand SOUTHERN DISTRICT REPORTERS (212) 805-0300 33 125kbin1 Opening - Mr. Butler 1 jury in this very courthouse. It was September 1997, one year 2 before the bombings. You will learn that Wadih El Hage came 3 into this courthouse and lied repeatedly. He lied about his 4 relationship with Usama Bin Laden. He lied and basically told 5 the grand jury that Bin Laden had no people in Kenya. He even 6 lied about Bin Laden's military commander Abu Ubaidah, who, 7 you will learn, had drowned in a ferry accident in Africa the 8 year before. 9 You see, El Hage didn't want the grand jury to know 10 the importance of the people that Bin Laden had in Africa. So 11 he said that the person who drowned was merely a Dutch 12 businessman and not Bin Laden's military commander. 13 One year later, the people that El Hage lied to 14 protect blew up the embassies in Kenya and Tanzania. In 15 addition to being charged with a conspiracy to kill Americans, 16 Wadih El Hage is charged with seven counts of perjury for his 17 testimony before the grand jury that day. 18 While El Hage was hiding what he knew from the 19 American government, others were preparing to carry through on 20 Bin Laden's public declaration of war. It was around this 21 time that the defendant Mohamed Al-'Owhali, who was originally 22 from Saudi Arabia, was being trained in Bin Laden's camps in 23 Afghanistan. He was being trained in the tools of terrorism, 24 including assassinations, surveillance, and explosives. He 25 fought in a battle. He distinguished himself so well that he SOUTHERN DISTRICT REPORTERS (212) 805-0300 34 125kbin1 Opening - Mr. Butler 1 actually had the opportunity to have a meeting with Usama Bin 2 Laden. And it was at that meeting that he asked Bin Laden for 3 a mission. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 35 12251BI2 Opening - Butler 1 And that mission turned out to be the bombing of the 2 American embassy in Kenya. It was also roughly at this time 3 that the defendant Khalfan Mohamed who had also been trained 4 in camps in Afghanistan went to Somalia with some members of 5 the very plot he would conspire with to build up the American 6 embassy in Tanzania. 7 Now, I should note one thing. Neither Mohamed 8 Al-'Owhali nor Khalfan Mohamed were formal members of Bin 9 Laden's group al Qaeda, but as I told you before, the al Qaeda 10 group was just a base of operations for a network of people 11 and groups that shared this extremist beliefs. One does not 12 have to be a formal member of al Qaeda to carry out important 13 tasks for the group. Al-'Owhali and Khalfan Mohamed are 14 excellent examples of that. Al Qaeda turned to them to 15 actually execute the bombings. 16 Now, another group that Bin Laden joined up with is 17 the group known as Egyptian Islamic Jihad and it's radically 18 opposed to the present government in Egypt. I should tell you 19 that the term jihad is another Arabic term that you'll be 20 hearing about, and it can mean many things. But to al Qaeda 21 and Egyptian Islamic jihad it meant one thing and one thing 22 only, a holy war against governments that did not share its 23 extremist beliefs, particularly the United States of America. 24 Now, in early 1998 Bin Laden issued his most chilling 25 public statement yet. Previously his call to murder had been SOUTHERN DISTRICT REPORTERS (212) 805-0300 36 12251BI2 Opening - Butler 1 limited to members of the American military, but in early 1998 2 Bin Laden called on his devoted followers to kill Americans, 3 civilian or military, anywhere in the world they could be 4 found. This statement was joined by Egyptian Islamic Jihad. 5 And you will learn once again, ladies and gentlemen, that 6 these were not just words. 7 You will learn how from early 1998 until August 7, 8 1998, the defendants, al-'Owhali, Khalfan Mohamed and Odeh 9 along with Wadih El Hage's former roommate and close 10 associate, a man named Harun, did various tasks to fulfill Bin 11 Laden's command. For example, Mohamed Al-'Owhali received 12 further training in the camps in Afghanistan for his mission. 13 He traveled from Afghanistan to Kenya in the days before the 14 bombing using a false passport from the government of Yemen. 15 He joined up with various members of the plot, including 16 Harun. He also met up with his former comrade from 17 Afghanistan a Saudi man named Azzam. 18 Al-'Owhali traveled in the bomb truck that day to 19 Nairobi, Kenya, and Azzam was the driver. The plan was for 20 al-'Owhali to get out of the bomb truck and to throw home made 21 grenades at unarmed security guards to scare them away so that 22 Azzam could drive the truck closer to the embassy in order to 23 inflict maximum damage and to kill the most Americans. And 24 you will hear that Azzam blew himself up in that truck, and 25 that al-'Owhali ran away at the last minute leaving those 213 SOUTHERN DISTRICT REPORTERS (212) 805-0300 37 12251BI2 Opening - Butler 1 men, women and children slaughtered behind him. 2 You will also hear how the defendant Khalfan Mohamed 3 worked to further the plot in Tanzania. You will hear how he 4 rented a house where the bomb was built, and how he lived in 5 that house with another key member of the group. You will 6 learn how he bought a car that was later used to ferry bomb 7 materials back and forth to that house. And you will learn 8 how he worked with others to actually grind the TNT that was 9 used to make that bomb and then load that TNT on to the back 10 of the bomb truck. 11 You will also hear that Khalfan Mohamed stayed behind 12 after the bombings. He stayed behind to help the driver, the 13 suicide driver of that Tanzania truck, and to clean out the 14 house after the bombings were over to help the group avoid 15 detection. 16 Now, you will also hear how Mohamed Odeh received an 17 emergency order on the coast of Kenya that all members of al 18 Qaeda had to leave Africa by August 6, 1998. You will hear 19 that on August 3 he traveled overnight by bus leaving his home 20 and family on the coast. You will hear that Mohamed Odeh 21 spent August 4th, August 5th and August 6th in a hotel in 22 Nairobi with several key members of al Qaeda, including the 23 masterminds of these bombings and the bomb builders 24 themselves. 25 You will hear that Mohamed Odeh left Kenya on August SOUTHERN DISTRICT REPORTERS (212) 805-0300 38 12251BI2 Opening - Butler 1 6, 1998 with another member of the plot using a false passport 2 and having shaved his beard to change his appearance. 3 Now, ladies and gentlemen, that's an outline of what 4 the government expects the evidence will show. I should talk 5 for a minute with you about the burden of proof. As Judge 6 Sand mentioned to you, in this case, as in all criminal cases, 7 the government has the burden to prove each of these 8 defendants' guilt beyond a reasonable doubt, and we welcome 9 that burden. The government commits to you that by the end of 10 this trial you will find that each of these defendants were 11 guilty beyond a reasonable doubt of entering into an illegal 12 agreement to work with Usama Bin Laden and others to kill 13 Americans anywhere in the world they can be found. 14 Now you may ask yourself: How is the government to 15 prove this? For example, how is the government going to prove 16 to you what I just told you about al Qaeda? Well, ladies and 17 gentlemen, when the evidence begins you will have the 18 extraordinary opportunity to hear from a witness who is a 19 sworn member of the al Qaeda group itself and who had actual 20 conversations was Usama Bin Laden. He will tell you what al 21 Qaeda is, how it was formed, and how it worked. He will tell 22 you what he did for the group and what others did for the 23 group. 24 He will also tell you that he left the group two 25 years before the bombings, so he's going to merely set the SOUTHERN DISTRICT REPORTERS (212) 805-0300 39 12251BI2 Opening - Butler 1 stage for those bombings. He's going to tell you about the 2 organization that was responsible for those bombings. He's 3 not going to be the only witness by any means. 4 You're going to hear from many, many more witnesses 5 like law enforcement witnesses who responded to the scene of 6 the bombings or who participated in the investigation of the 7 overarching conspiracy to kill Americans. You will hear from 8 eye witnesses to certain events in Africa, and you will hear 9 from the victims of these horrible crimes. 10 But the witness I just told you about is a good 11 example of how you should view certain types of witnesses. 12 Listen to what he says, listen to what he says about himself 13 and listen to what he says about others. He will also tell 14 you that he stole money from Usama Bin Laden and that he got 15 caught and that he went on the run, and that in an attempt to 16 save himself and his family, he approached the American 17 government and offered to provide information. You will learn 18 that he pled guilty to a crime in connection with his 19 activities for Usama Bin Laden and that he will testify before 20 you pursuant to a cooperation agreement. 21 Now, I'm not going to argue the credibility of that 22 witness or any other witness right now. To do so would be 23 pointless, because you haven't heard their testimony yet. But 24 I ask you to scrutinize all the witnesses carefully and 25 particularly the ones who are members of the group. Listen to SOUTHERN DISTRICT REPORTERS (212) 805-0300 40 12251BI2 Opening - Butler 1 what they have to say about themselves. Listen to what they 2 have to say about others. Listen to how they answer questions 3 when they're put to them by the government and listen to how 4 they answer questions when they're asked by the defense. 5 Look to see if their testimony is corroborated in any 6 way. Now, corroboration can take many different forms. 7 Sometimes the witness will get up and testify to certain 8 things, and you'll see that a document or documents recovered 9 in a search show that what that witness told you was true. 10 Sometimes a witness can be corroborated by the testimony of 11 another witness or witnesses. For example, you will be 12 hearing from various witnesses who were within or around al 13 Qaeda who will testify to different aspects of the same event 14 or events. 15 By the end of the trial you'll know more than they 16 will, because you will have heard from all of them, which is 17 to say that watching a trial is a lot like watching a jigsaw 18 puzzle being solved, different pieces come in at different 19 times and things may seem blurry, but at the end the picture 20 will become clear. 21 Now, you're also going to hear evidence in this case 22 in the form of confessions by some of the defendants. For 23 example, you will learn that the defendant Mohamed Al-'Owhali 24 confessed to his role in the plot to blow up the embassy in 25 Kenya. Ladies and gentlemen, Mohamed Al-'Owahli did not just SOUTHERN DISTRICT REPORTERS (212) 805-0300 41 12251BI2 Opening - Butler 1 confess, he bragged and he boasted. He admitted that he 2 excelled in his training in Afghanistan. He boasted about how 3 he requested a meeting with Usama Bin Laden, and then 4 requested from Usama Bin Laden that he be given a mission. He 5 admitted that he traveled from Afghanistan to Nairobi in the 6 days before the bombing using a false passport from the 7 government of Yemen. He admitted that he met up with certain 8 key players of the plot in Nairobi, including Harun, and he 9 bragged about how he road in the bomb truck that day to the 10 embassy in Nairobi, Kenya. 11 You will also hear that the defendant Khalfan Mohamed 12 confessed. He confessed to his role in the bomb plot in 13 Tanzania. Khalfan Mohamed admitted that he, too, was trained 14 in camps in Afghanistan and that he went to Somalia. He 15 admitted that he helped carry out the plot in Tanzania by 16 renting a house where the bomb was built, and by helping 17 others to grind the TNT that was used to make that bomb. He 18 admitted that he helped load the TNT on the back of the bomb 19 truck and that he stayed behind to help the driver of that 20 truck after everyone else had left Africa. And he admitted 21 that he stayed behind to try to clean out the bomb factory to 22 help the group avoid detection. 23 You will also hear that Mohamed Odeh confessed. 24 Mohamed Odeh confessed that he was a member of al Qaeda from 25 the early 1990s until August 7, 1998. He also admitted that SOUTHERN DISTRICT REPORTERS (212) 805-0300 42 12251BI2 Opening - Butler 1 he was trained in camps in Afghanistan and that he trained 2 others in Somalia. He admitted that he operated a fishing 3 business on behalf of al Qaeda on the coast of Kenya and that 4 the proceeds of that business were used to help support 5 members of the cell that existed on the coast of Kenya. 6 He admitted that he traveled from the coast to 7 Nairobi on August 3, 1998 and that he spent three days before 8 the bombing in a hotel in Nairobi with various members of the 9 al Qaeda. Among these were the masterminds of the bombing, 10 including the bomb builders themselves. Odeh admitted that he 11 left Kenya the night before the bombings on August 6, 1998 12 using a false passport and having shaved his beard to change 13 his appearance. 14 Now, you will also hear that Mohamed Odeh claimed 15 that he did not know these bombings were coming, but, ladies 16 and gentlemen, the evidence will show that Mohamed Odeh is 17 guilty of these bombings. 18 Now, as Judge Sand mentioned to you, at the end of 19 the trial the lawyers will have an opportunity to get up in 20 summations and make various arguments to you. They will be 21 able to argue to you about what pieces of the puzzle they 22 think fit in and which did not. Listen to those arguments, 23 but make up your own mind. Use your common sense. That's why 24 you were selected as jurors, to use the common sense that 25 you've attained in your everyday life experience and come here SOUTHERN DISTRICT REPORTERS (212) 805-0300 43 12251BI2 Opening - Butler 1 and apply it to the facts and the evidence. 2 I'd like to say a few words to you about the charges 3 in the indictment. As Judge Sand told you there are 308 4 counts or charges in the indictment, and I'm not going to go 5 through each one of them because that would just take too 6 long. Suffice it to say that most of the counts are murder 7 counts for the 224 people who were killed in Africa on that 8 August 7, 1998. There are also various conspiracy counts to 9 attack American property abroad. But I'd like to spend a 10 couple of minutes talking to you about Count One, the 11 conspiracy to kill Americans. 12 All four of these defendants are charged in Count One 13 with this conspiracy. And what this count basically alleges 14 is that each of these defendants entered into an illegal 15 agreement to work with Usama Bin Laden and others to kill 16 Americans anywhere in the world they could be found. Each one 17 agreed to this and each one helped the best way they could. 18 For example, Wadih El Hage helped carry out the 19 agreement by working in secret to maintain the cell in 20 Nairobi. He worked to maintain contact with Usama Bin Laden 21 and pass messages among the cell, including that important 22 message in 1997 that the East Africa cell should prepare 23 itself for military work. He lied to the grand jury in 24 September, 1997 to protect the cell so that it could go on 25 with its deadly work. SOUTHERN DISTRICT REPORTERS (212) 805-0300 44 12251BI2 Opening - Butler 1 Mohamed Odeh carried out his part of the agreement by 2 training fighters in Somalia and by operating that fishing 3 business on the coast of Kenya and by getting out of Africa 4 the night before the bombing. 5 Of course Mohamed Al-'Owhali actually killed 6 Americans. He drove in the truck that day to the American 7 embassy in Nairobi. He threw those stun grenades at the 8 unarmed guards, and he was responsible for that explosion. 9 Khalfan Mohamed also helped carry out his part of the 10 bargain by assisting the plot in Tanzania by renting the 11 house, by purchasing the car, by helping to grind the TNT, by 12 loading the TNT onto the truck and by staying on afterwards to 13 help clean out that house to avoid detection. 14 I'd just like to spend a couple of brief moments 15 talking to you about what's not charged in the indictment. 16 While Wadih El Hage is charged in the conspiracy to 17 kill Americans, he's not charged with the murder count. As I 18 told you before, Wadih El Hage left Africa in 1997 a year 19 before the bombings. The same year he lied to the grand jury 20 to help the East African cell continue its deadly work. But 21 his lies didn't stop there, ladies and gentlemen. 22 You will learn that one month after the bombing in 23 September, 1998, Wadih El Hage returned to a grand jury in 24 this courthouse and he lied again. He lied once again to the 25 grand jury investigating those bombings. He lied about his SOUTHERN DISTRICT REPORTERS (212) 805-0300 45 12251BI2 Opening - Butler 1 relationship with Usama Bin Laden. He lied about Bin Laden's 2 presence in Africa and he even lied about whether he knew his 3 codefendant Mohamed Odeh. 4 I'd like you also to bear in mind that the defendant 5 Khalfan Mohamed is only charged with the 11 murders in 6 Tanzania and not the 213 murders in Kenya. Now, it may seem a 7 little strange to you to hear me say that somebody is only 8 charged with 11 murders, but that ought to bring home two 9 points to you. First, the scope of the mass murder involved 10 in this case, and, second, the important fact that each one of 11 these defendants is on trial before you separately. 12 Now, as I mentioned before, you are also going to be 13 hearing some proof about events that took place in Somalia. 14 But the indictment does not charge, and the proof will not 15 show that any one of these defendants or any other member of 16 al Qaeda actually shot a gun, killed an American soldier or 17 shot down a helicopter in Somalia. Rather, the proof about 18 Somalia is offered to show you how al Qaeda developed, what 19 its motivations were, and particularly, how the network of 20 operations developed in Nairobi, Kenya. 21 Let me make one final point about the charges in the 22 case. The story that's about to unfold before you is long, 23 complicated and chilling. The indictment is long and it 24 contains many counts and violations of many different 25 statutes, but at the core the charges are simple. They are SOUTHERN DISTRICT REPORTERS (212) 805-0300 46 12251BI2 Opening - Butler 1 that all four of these defendants entered into an illegal 2 agreement to work with Usama Bin Laden and others to kill 3 Americans anywhere in the world they could be found. 4 I'd like to just talk to you very briefly about the 5 process that you're about to go through. At the outset I'd 6 like to make one thing crystal clear. While these defendants 7 chose to hate and kill people based on their nationality and 8 their religious beliefs, the government asks you to render a 9 verdict based on the law, the evidence and the facts. 10 You will be hearing some testimony about how Usama 11 Bin Laden and various members of al Qaeda interpreted the 12 religion of Islam. That proof is offered to you to understand 13 what al Qaeda's motivations were, why it did certain things. 14 No comment about how the rest of the Muslims in this world 15 practice their faith. Nobody is on trial here for their 16 religion. 17 Secondly, as I said to you before, you're going to 18 hear a lot of unfamiliar names, a lot of dates, facts, things 19 that happened in foreign countries. Don't be overly concerned 20 about that now. As I told you, it's our job to make that all 21 clear to you, and at the end of the trial the attorneys will 22 have the chance to get up in summations and tell you about 23 what they think is important. Be assured the important things 24 you will remember. 25 Now, in closing, let me say this. The government SOUTHERN DISTRICT REPORTERS (212) 805-0300 47 12251BI2 Opening - Butler 1 commits to you that if you work hard at paying attention, if 2 you're patient with yourself when you hear a lot of dates and 3 names, and if you keep an open mind and you apply your common 4 sense to the evidence, that the government has proved at the 5 end of this trial that each of these defendants, Mohamed Odeh, 6 Mohamed Al-'Owhali, Khalfan Mohamed, and Wadih El Hage, are 7 guilty beyond a reasonable doubt of entering into an illegal 8 agreement with Usama Bin Laden to kill Americans anywhere in 9 the world they could be found. They each helped the best way 10 they could, and in the end 224 men, women and children from 11 Kenya, from Tanzania and from America lost their lives and 12 Kenya, Tanzania and America would never be the same. For that 13 this trial seeks justice. Thank you. 14 THE COURT: Thank you, Mr. Butler. Do you wish to 15 proceed or do you want to take a recess? 16 MR. SCHMIDT: Your Honor, I would ask for a brief 17 recess. 18 THE COURT: Ladies and gentlemen, we'll take a brief 19 recess. 20 (Recess) 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 48 12251BI2 Opening - Butler 1 (In open court; jury not present ) 2 THE COURT: The juror who wants to take his wife to 3 the hospital on February 14th is trying to make arrangements 4 and on Friday evening if he is able to do that, he thinks that 5 he would be available around 9:30. On that day we may start a 6 little late, but we should be able to sit that day. Let's 7 bring in the jurors, please. 8 Exhibit D on January 1 which was the blank 9 questionnaire was sealed and is unsealed now, so blank copies 10 of the jury questionnaire are available if anyone wants them. 11 The completed questionnaires we'll keep sealed at least for 12 the present because they contain material which might disclose 13 the identity of the juror. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 49 12251BI2 Opening - Butler 1 (Jury present) 2 THE COURT: Mr. Schmidt. 3 MR. SCHMIDT: Good morning. May it please the Court, 4 Mr. El Hage, ladies and gentlemen, ladies and gentlemen of the 5 jury. 6 I am somewhat humbled to be here as a representative 7 of Wadih El Hage, a forty-year old nationalized American 8 citizen, father of seven American children. We view this case 9 as of great importance to our country, to our system of 10 justice and of course to Wadih El Hage and his family. The 11 loss of lives and the destruction at the embassy, the great 12 tragedy shared by us all is shared by Mr. El Hage and his 13 family as well. 14 This is a rare opportunity that we have to show the 15 world that a crime of this magnitude will not interfere with 16 our great system of justice; that we will show the world how 17 our system really works; how it protects each individual, 18 citizens or not citizens, from the power of the government. 19 They are the ones who have brought this case against Mr. El 20 Hage. 21 This case is perhaps of historical importance, the 22 incredible scope of the charges of a conspiracy that the 23 government alleges that lasted ten years throughout the world, 24 the resources that the government has put into this case and 25 the nature of the charges themselves. And I understand the SOUTHERN DISTRICT REPORTERS (212) 805-0300 50 12251BI2 Opening - Schmidt 1 difficulty that one must think that how can ultimately 12 2 normal Americans like you make such a historic decision. That 3 is the beauty of our system that it is you, not the 4 government, that will make the ultimate decisions in this 5 case. 6 Now, this case has often been called the embassy 7 bombings, a shorthand term, because the government alleges 8 this conspiracy ended up with the bombing of two embassies. 9 Of course that was a great tragedy, but this case is more than 10 that, because if it was just the embassy bombings I would not 11 be here talking to you this morning, because Mr. El Hage, and 12 the government has conceded, was not involved in either of the 13 embassy bombings. There is no evidence, as you will see, that 14 he was involved in the embassy bombings. 15 But what the evidence will show is that Wadih El Hage 16 is a devout caring person, a mediator, not a confrontational 17 trouble maker, and that he would never, has never agreed to 18 participate in any criminal conspiracy to kill Americans; has 19 never, would never agree to participate in any criminal 20 conspiracy to kill women and children. Regardless where and 21 when the government says that these acts occurred, whether in 22 Kenya, the Sudan, in the United States, there will be no 23 evidence, no credible, no reliable evidence to show that he 24 agreed to participate in what they call this terror 25 conspiracy. SOUTHERN DISTRICT REPORTERS (212) 805-0300 51 12251BI2 Opening - Schmidt 1 The government claims that Usama Bin Laden and some 2 associates are involved in this worldwide long-standing 3 conspiracy against the United States. I am not here to 4 represent Mr. Bin Laden. I am here to represent Wadih El 5 Hage. I'm not here to convince you that Mr. Bin Laden is not 6 a danger to America, Americans, Westerners or anybody else. 7 I am here to represent one man, a man that you'll be 8 looking at across from you for many, many months, but I am 9 your reminder that even though the charges relate to not just 10 criminal conduct against America, but encompasses worldwide 11 politics, worldwide religious beliefs, that worldwide politics 12 and worldwide religious beliefs are not on trial. For me and 13 I ask for you as well, one person on trial, a man, a husband, 14 a father of seven children, a citizen of the United States, 15 that is the man on trial that I ask you to consider. 16 The government has said that the beginnings of this 17 terror organization were in Afghanistan and has given you a 18 few pieces of what they call the jigsaw puzzle, and has told 19 you by the end of the case that all the pieces will fit in. I 20 submit to you that the evidence will not show all the pieces 21 of the puzzle that the government claims, but will show you a 22 few pieces and the evidence the government will ask you to put 23 number of pieces together against the other pieces. 24 There will be no credible reliable evidence that 25 Wadih El Hage ever participated in any of the violent acts SOUTHERN DISTRICT REPORTERS (212) 805-0300 52 12251BI2 Opening - Schmidt 1 alleged in the indictment the government says it will prove. 2 We know that he did not participate in the embassy bombings 3 and there is no evidence that he did. The evidence will also 4 fail to show you that he participated in any violent act that 5 relates against the United States of America our citizens or 6 embassies. Oh, yes there may be guesses, there may be 7 assumptions. There may be evidence that the government says, 8 well, he was there, he had to know something. And the 9 evidence may show that you'll have people getting up here and 10 saying, well, I was told by so and so, who told me that so and 11 so did something else. I ask you to listen carefully to the 12 evidence and note what's not there. 13 The evidence will show that Wadih El Hage was hired 14 by Bin Laden to work in the Sudan, not only because he was 15 well-educated, a hard worker, honest, responsible and a devout 16 Muslim, but, yes, he was an American free to travel throughout 17 the world on American passport. And that's exactly that 18 reason and the reason of what kind of person Wadih El Hage is 19 and was that he would not enter any conspiracy, or offer to 20 enter any conspiracy to do harm to Americans, his wife born 21 and raised in the United States, and his children, Americans. 22 And our country, in our system of justice, you do not 23 punish people solely because of their association. Many 24 countries throughout the world do so. Many of the people who 25 fought in Afghanistan came from countries who punished people SOUTHERN DISTRICT REPORTERS (212) 805-0300 53 12251BI2 Opening - Schmidt 1 for their associations. Wadih El Hage chose America exactly 2 for the reason that people do not punish people for their 3 associations and their beliefs. 4 Yes, the evidence will show that Wadih El Hage 5 traveled to many places on behalf of Usama Bin Laden's 6 businesses. Yes, the evidence will show that Wadih El Hage 7 maintained contact with many of his friends and associates 8 from both Afghanistan and the Sudan after he left the Sudan 9 and moved to Nairobi. But you will see that the evidence will 10 show that those contacts were for business purposes and to 11 assist other Muslims in countries such as Somalia, Northern 12 Kenya, other areas of East Africa, to help them. There will 13 be no evidence that he ever agreed to participate or to assist 14 any group of people who were going to attack Americans. 15 Now, that does not mean that Mr. El Hage and others 16 that he knew is without opinions as to what was happening to 17 Muslims in the former Soviet Union, what were happening to 18 Muslims in other countries that were war torn like Somalia, 19 and countries that Muslims were not allowed to practice 20 religion, but his beliefs that are shared, and you'll learn 21 Muslims around the world who donate millions of dollars to 22 help other Muslims around the world. In fact, many Americans, 23 Muslims and nonMuslims, donate money around the world to 24 assist the hungry and the poor in Muslim countries around the 25 world. SOUTHERN DISTRICT REPORTERS (212) 805-0300 54 12251BI2 Opening - Schmidt 1 While the government's case seems to start with 2 Mr. Bin Laden's anger at Americans mainly in Saudi Arabia 3 after the Gulf War, you will learn that that is not an 4 extremist position, it is not a radical position. Many 5 Muslims around the world believe that no armed nonMuslim, no 6 nonMuslim should be in Saudi Arabia because that is a land of 7 the holy places. 8 So when a Muslim gets up and says: America should 9 not be there, he is not announcing he's a terrorist. He's 10 announcing he's a concerned Muslim. Wadih El Hage is aware of 11 that as well as Muslims around the world. 12 To base their case on Usama Bin Laden's -- who is a 13 Saudi Arabian -- dislike of America being in Saudi Arabia is 14 to say all Muslims, many Muslims agree with Usama Bin Laden's 15 method. That's where we think the evidence will not show that 16 Wadih El Hage agreed with Usama Bin Laden's methods. 17 The evidence will not show that he agreed to 18 participate in the conspiracy to kill Americans, to kill women 19 and children. 20 To understand why he would not do that, it is 21 important for you to learn about Wadih El Hage. Some people 22 who left their homes and went to fight in Afghanistan became 23 soldiers, warriors and remain so. Others left to help, went 24 back to their normal life. Wadih El Hage is that type of 25 person. SOUTHERN DISTRICT REPORTERS (212) 805-0300 55 12251BI2 Opening - Schmidt 1 You will learn that he was born on July 25, 1960, to 2 Lebanese Christian parents. He suffered a disability at birth 3 that left his right arm whithered and weak. At a young age he 4 and his family moved to Kuwait where Mr. El Hage's father 5 worked for the oil companies in Kuwait. And Mr. El Hage was 6 raised in Kuwait among Muslims as well as his Christian family 7 and friends. 8 Eventually, he turned towards Islam, but because of 9 who Mr. El Hage is, he didn't tell his parents because in 10 Lebanon there is a big gap between Christians and Muslims, and 11 he did not want to hurt his parents. 12 After he graduated from high school in Kuwait, he 13 came to the United States, University of Southwest Louisiana 14 in Lafayette, Louisiana in August of 1978, barely an 18 year 15 old. There he was able to mingle with Muslim students and 16 outwardly practice his religion, but he was an unusual 17 Lebanese. He was a person who understood both the Christians 18 and the Muslims in Lebanon, and that fit perfectly into who he 19 was. He was a mediator, conciliator, a quiet, pious person. 20 He worked hard at school towards a degree, but world 21 events interrupted his work and gave him an opportunity both 22 to help his new religion and to help his new country. Russia 23 invaded Afghanistan. 24 Of course the Americans back in 1980, I believe it 25 was during the cold war, opposed Russian Communist aggression SOUTHERN DISTRICT REPORTERS (212) 805-0300 56 12251BI2 Opening - Schmidt 1 and they supported the insurgents, the Afghanis who were 2 fighting the Russians, they supported them with money to 3 Pakistan, moral support and allowing Muslims to come into the 4 United States to raise money from other US Muslims and even to 5 get people to come and help. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 57 125kbin3 Opening - Mr. Schmidt 1 MR. SCHMIDT: (Continuing) Wadih El Hage answered 2 that call. He answered that call not as a fighter, not as a 3 confrontationalist. He answered that call as a relief worker, 4 to help the millions of Afghani refugees who were suffering at 5 the hands of the communist aggression. Wadih El Hage was not 6 solely on the Afghani side. He was on the American side, 7 helping against Russian aggression. 8 As one of the few nonAfghans and nonPakistanis there 9 who spoke Arabic and English, he naturally ended up staying 10 with a group of Muslims who spoke Arabic, because among the 11 Afghanis and Pakistanis, few spoke Arabic. That is where he 12 got to know some of the players that the government says 13 ultimately became part of Bin Laden's group. Some of them 14 were not even there yet when Mr. Hage came to Afghanistan in 15 1983. Some were there, and he became friends, he became 16 associates with them. He knew them. They respected him for 17 being a 23-year-old coming to Afghanistan to help, a person 18 with a disability and still willing to help his brother 19 Muslims. His reputation as a hard-working, honest, caring 20 person continued. 21 After about a year and a half he came back to the 22 United States to continue his schooling. He was introduced to 23 and married an American-raised woman, April. April Brightsky 24 Ray. They married. She was also a born Christian converting 25 to Muslim in the United States. They went, he went back to SOUTHERN DISTRICT REPORTERS (212) 805-0300 58 125kbin3 Opening - Mr. Schmidt 1 Pakistan, she for the first time, and they continued relief 2 efforts for another year, this time in a different city in 3 Pakistan. He wasn't a fighter, he was a relief worker. When 4 their first child was born in Pakistan, they registered him at 5 the American Embassy. It was important for their child to be 6 an American. 7 They returned to the United States. They lived in 8 Tucson. He worked for the city of Tucson as a custodian and 9 as a driver. He made one more trip back to Pakistan, this 10 time with his three children and his wife and his 11 mother-in-law and her husband, where she worked as a nurse in 12 Pakistan, and Mr. El Hage continued working there but this 13 time as a journalist. They soon returned and this time set up 14 residence in Arlington, Texas. But even though he had a 15 bachelor's degree in urban planning, it was difficult for him 16 to find a good job commensurate with his education and 17 experience and his intelligence. He ended up brokering cars 18 to the Middle East and making some money to support himself. 19 But he wanted more. He wanted more for him and he wanted more 20 for his family. 21 Again, world events took over. Usama Bin Laden, who 22 was in Afghanistan and was known throughout the world for his 23 years in Afghanistan as an important part in assisting the 24 Afghani freedom fighters, the Mujahadeen, with money and 25 leadership, was thrown out of Saudi Arabia, his home, where SOUTHERN DISTRICT REPORTERS (212) 805-0300 59 125kbin3 Opening - Mr. Schmidt 1 his family were probably the richest nonroyalty in Saudi 2 Arabia. And he moved to Sudan to start businesses, to become 3 what it appeared to be that his father became in Saudi Arabia. 4 His father came from Yemen, moved to Saudi Arabia, and built 5 up his businesses. Sudan was like Saudi Arabia was 50 years 6 ago, and this was an opportunity for Usama Bin Laden. 7 You will hear that Usama Bin Laden, like mostly 8 everybody else in Afghanistan, did not express any 9 anti-American words or rhetoric when he was in Afghanistan and 10 Pakistan. So there was no reason to believe, for Mr. El Hage 11 to believe that going to work for Mr. Bin Laden in the Sudan 12 had anything to do with any worldwide terrorist conspiracy, 13 anything that was anti-American at all. But it was a big 14 move. Khartoum, Sudan, is not like Arlington, Texas. It may 15 be hotter, but it is not like Arlington, Texas. So before he 16 decided to move, he went to see what was there, what offered 17 him an opportunity if he left the United States. He was 18 offered an important position for the commercial interests of 19 Mr. Usama Bin Laden, for an approximate salary of $1,200 a 20 month, which is an excellent salary in the Sudan. 21 So he moved his family to the Sudan, and you will 22 learn that he was trained when he came to the Sudan by one of 23 the deputy directors, or assistant, one of the companies to 24 buy and sell food and nonfood commodities. They spent two 25 months training him for commercial transactions, not military SOUTHERN DISTRICT REPORTERS (212) 805-0300 60 125kbin3 Opening - Mr. Schmidt 1 transactions but commercial transactions. 2 You will see that he traveled around the world trying 3 to find a market for the agricultural products of the Bin 4 Laden industry -- for corn, hibiscus, sesame. He traveled to 5 buy tractors for the agricultural company, trucks for the 6 construction company, bicycles for the import-export company 7 to resell to the Sudan. He was a busy person and he traveled 8 a lot. But he always came back to his family. 9 And he worked when he wasn't traveling. If he didn't 10 have other obligations, he worked as a personal secretary for 11 Mr. Bin Laden. That's not a kind of secret, personal kind of 12 confidante. That's, instead of being a pool secretary, that's 13 the personal secretary. He is the one who makes appointments. 14 He is the one who fits in. He is the one who follows up on 15 the business calls. When he wasn't traveling he did that for 16 a while. When he was traveling, somebody else did that. But 17 ultimately, because he proved himself intelligent, 18 hard-working, trustworthy, he was promoted, and he no longer 19 acted as a personal secretary at times for Mr. Bin Laden. 20 While the evidence will show that he handled money 21 for Mr. Bin Laden and he was trusted, he was never anywhere 22 near an inner circle of confidantes of Mr. Bin Laden, because 23 he was not a military man. He was not a political person. He 24 was not a religious scholar. He was a businessman, and he 25 related to Mr. Bin Laden as the businessman that he was. And SOUTHERN DISTRICT REPORTERS (212) 805-0300 61 125kbin3 Opening - Mr. Schmidt 1 you will see no evidence that he related to Mr. Bin Laden in 2 the Sudan as anything other than a businessman. 3 The Sudan became, was and became even more isolated, 4 and his family was unhappy. Mr. El Hage and his family, tired 5 of the isolation, was given the opportunity to move to what 6 was a much more cosmopolitan city, Nairobi, which is somewhat 7 the capital of East Africa. Generous Muslims in Germany began 8 a relief agency called Help African People, which he agreed to 9 start in Nairobi with help from the German Muslims and help 10 from the Sudanese friends as well. 11 He moved, as the government said, at the end of 1994 12 to Nairobi. By early 1994, all Americans were out of Somalia. 13 There was no Americans in Somalia. There was no need for a 14 Nairobi cell, as the government calls it, to deal with 15 Americans in Somalia because there were none. What was left 16 in Somalia were Somalis, and many international organizations 17 trying to help and feed the Somalis. And many warlords who 18 could care less about Islam or the tenets of Islam, and some 19 other leaders who believed in Islam and supported the tenets 20 of Islam. 21 Because it was difficult to start a relief agency in 22 Nairobi, he needed help to support his family. He started 23 doing more business deals again, semiprecious stones, trying 24 to buy and sell commodities. That's what he was trained in 25 and did for two years in the Sudan. And yes, he was in SOUTHERN DISTRICT REPORTERS (212) 805-0300 62 125kbin3 Opening - Mr. Schmidt 1 contact both with his old friends in the United States to 2 raise money for his relief agency, and to help him make some 3 money in his businesses, and, yes, remained in contact with 4 his friends from the Sudan. He even traveled to Slovakia, the 5 back half of what used to be Czechoslovakia while he was in 6 Kenya on behalf of Bin Laden's enterprises, to buy tractor 7 parts for the tractors in the agricultural business. 8 You will see no evidence of any agreement, any act, 9 any work, any conversation, any document that says Wadih El 10 Hage participated, wanted to, agreed to, in any criminal 11 conduct against the United States. Yes, the government said 12 he was friends with Haroun, who worked for him at times, a 13 person who apparently, as the government may prove or may not 14 prove, responsible for the bombing in the embassy in Nairobi. 15 And yes, there is correspondence with people affiliated with 16 Usama Bin Laden. And yes, in many ways he was willing to 17 assist and help his old friends. 18 But even though he was watched by the United States 19 government for a long time, even though hundreds, thousands of 20 documents were seized, you will see that what it shows is that 21 Wadih El Hage was involved in commercial activity and he was 22 also involved in activity for the purpose, lawful activity for 23 the purpose of assisting Muslims in need, in need for food, in 24 need for education, in need to combat the warlords who looked 25 for power at the expenses of their own Somali people. SOUTHERN DISTRICT REPORTERS (212) 805-0300 63 125kbin3 Opening - Mr. Schmidt 1 Yes, you will see a document that the government said 2 that speaks very much for itself from 1997 that calls for 3 military actions, activities. And while the government says 4 that the military activities is a word used by this 5 conspiracy, it is not their word because they don't consider 6 terrorism, the bombing of the embassies as military activity, 7 and neither does Mr. El Hage. What the document says, and you 8 will see, is that in 1997, that some of the old supporters of 9 Bin Laden were going to help the military activity in Somalia. 10 There were no Americans in Somalia. There were 11 Somalis in Somalia. There were Ethiopians attacking Somalis 12 in the West where the relief agencies were, where Wadih El 13 Hage worked. If this was a military action it was a military 14 action to help the Muslims who believed in Islam, believed in 15 not causing pain and suffering to their people, not starving 16 their people. It had nothing to do with the United States. 17 If the government wants to call a group of people in 18 Kenya who perhaps secretly had to help the religious Muslims 19 in Somalia a cell, so be it. But you will see that this 20 so-called cell in 1997, in 1996, while Wadih El Hage was in 21 Kenya, had nothing to do with any violent conspiracy or 22 conduct against the United States or United States interests. 23 There will be no evidence that Wadih El Hage 24 willfully, knowingly combined, conspired, confederated or 25 agreed to kill nationals of the United States. SOUTHERN DISTRICT REPORTERS (212) 805-0300 64 125kbin3 Opening - Mr. Schmidt 1 After 1997, upon his return to Pakistan, his home, 2 before he arrived, was searched by United States agents, and 3 they seized many things. You will see many of the things that 4 they seized. After that, Mr. El Hage decided it was time to 5 go back to the United States with his family, and he and his 6 wife sold whatever they could to raise the airfare to return 7 to the United States. And they did. After an exhausting 8 travel with six children, one infant, his wife, through Saudi 9 Arabia to New York, the government, absolutely aware of his 10 trip, took him from his family at the airport when they were 11 collecting their bags, kept him up late at night. They came 12 and got him the next day and put him into the grand jury, 13 exhausted, knowing that the government said that he was at 14 risk, knowing that many of the people who supported religious 15 Muslims were at risk from their home countries, who do not 16 respect the rights that we do in our country, and grilled him 17 for hours in the grand jury, asked him to remember things that 18 occurred six, seven years ago. 19 After that, he went home to Arlington, Texas, and 20 this supposed trusted member of Usama Bin Laden's terrorist 21 group, Usama Bin Laden, multi, multi, multimillionaire, was 22 able to convince a friend of his, someone who he knew from 23 before he left Arlington, to allow him to manage a tire store 24 in Fort Worth for $400 a week. I say convince him because he 25 had to, because Mr. El Hage's right arm was deformed, and he SOUTHERN DISTRICT REPORTERS (212) 805-0300 65 125kbin3 Opening - Mr. Schmidt 1 had to convince him that he could actually change the tires, 2 take the tires down and put them up. And he ran that store 3 with the perseverance, the guts, the hard work that he has 4 shown through all of his life. 5 He lived quietly with his family, also as a mediator 6 in disputes in the Arlington mosque. He lived peacefully, 7 caring for his family, now having seven children. He left 8 everybody alone. 9 This time world events not only changed his life, 10 shattered his life. We know, because the government has 11 conceded that Mr. El Hage had nothing to do with those 12 horrific bombings. But he was brought back and asked 13 questions that the government had asked him before, that they 14 knew the answers of, and he was arrested and charged with 15 perjury. 16 Two and a half years later, he now has his 17 opportunity for you good citizens of our country -- not the 18 prosecutors, not the government -- to make a decision on him. 19 Where is the evidence? We await this opportunity. We will 20 take advantage of this opportunity. 21 I ask you to do one thing. It is really one thing 22 but it is a very difficult thing, because I sat here when the 23 government gave a powerful opening statement about the horror 24 of the bombings and their effect, and it is even going to be 25 more horrible. You are going to see photographs. You are SOUTHERN DISTRICT REPORTERS (212) 805-0300 66 125kbin3 Opening - Mr. Schmidt 1 going to see people. It's going to be terrible. It is a 2 difficult thing. But I ask you to not let that horror, that 3 destruction, steer you away from your job, your job as the 4 people who stand between each and every American and even 5 nonAmericans, and the power, the might of the government when 6 they want to do something. Do not lose sight of that, because 7 if you don't lose sight of that, you will see that the 8 evidence will not be there, and the government will not prove 9 that Mr. El Hage conspired, agreed, committed, participated in 10 any violent act against his new country, the country of his 11 seven children, of his wife, and her family. 12 And yes, be patient. Listen carefully. It is going 13 to be a very long trial. Don't tune out. Don't pay attention 14 to that whistle. Concentrate, and do what Americans do best, 15 use their common sense. And hold the government to their 16 burden. If you do so, then this long for Wadih El Hage will 17 be worthwhile. 18 Thank you very much. 19 THE COURT: Thank you, Mr. Schmidt. Mr. Ricco. 20 MR. BAUGH: Your Honor, may we take a short break? 21 THE COURT: Ladies and gentlemen, we will have to 22 take another recess. 23 (Jury excused) 24 THE COURT: Is the government going to furnish the 25 jury with pads to take notes? SOUTHERN DISTRICT REPORTERS (212) 805-0300 67 125kbin3 Opening - Mr. Schmidt 1 MR. FITZGERALD: Yes. 2 THE COURT: You will have that tomorrow morning? 3 MR. FITZGERALD: Yes. 4 (Recess) 5 THE COURT: We will hear one more opening and then we 6 will break for lunch. Bring the jury in, please. 7 (Jury present) 8 THE COURT: Mr. Ricco. 9 MR. RICCO: Good morning, everyone. It would be an 10 understatement to say that I thought a long time about what I 11 would say to you this morning, because I have. I was thinking 12 about it during jury selection. I was thinking about it doing 13 my 5:00 runs in Central Park. I was thinking about it as I 14 sat at home yesterday. And I thought about all of the corny 15 things that lawyers often say to jurors that I try not to say, 16 and I was trying to find a place to start with you all in this 17 trial. I really couldn't come up with a very good place to 18 start, because where could I start? 19 I stop and I listen to wind. Hear the whistling? 20 People hear different things, they do things differently. 21 Many of you who have been in the court never have heard that 22 wind like that. The wind is here today. Many people say the 23 voices are in the wind, raging in the wind. 24 There was a lot of suffering in this case, lot of 25 pain in this case. To avoid it is to avoid the reality that SOUTHERN DISTRICT REPORTERS (212) 805-0300 68 125kbin3 Opening - Mr. Ricco 1 the night follows day. And to me, you can hear it in the wind 2 today as we start this trial. It's a reminder. It's a call, 3 a reality check. If you listen, you hear those voices. 4 People lost, people suffering. It says different things to 5 different people. Suffering has always said different things 6 to different people. To those who are inflicting the pain, 7 they don't hear it. To the people who receive it, they cry 8 out. 9 This case is about that, because I know, and looking 10 in the faces of all of you, that it is going to be extremely 11 difficult to overcome the reality that so many people died 12 here, so many young people died here, so many people were 13 injured here, almost to the point where you would sit back and 14 say, what you talking about. Trial. I'm ready to jump over 15 this bar right now and end this. Trial for who? For them? 16 And then there is a side of me that understands pain. 17 And the people who suffer from pain always ask for what? 18 Revenge? Retribution? No. They always ask that justice is 19 done. Don't they? I don't care if you talking about black 20 South Africans, Native Americans, African-Americans living 21 here in this country who have suffered, people who are in the 22 Islamic world who have suffered, people in the Hindu world who 23 have suffered, people in the Hebrew world who have suffered. 24 What do they ask for? That justice is served. It's our hope 25 that we have selected at least 12 people who can be a part of SOUTHERN DISTRICT REPORTERS (212) 805-0300 69 125kbin3 Opening - Mr. Ricco 1 the process to see that that is done. 2 So with that, your Honor, thank you very much. 3 Government. Again I remind you that Mr. Odeh is represented 4 by Miss Babcock, Mr. Herman, and Mr. Wilford. And it is 5 almost -- I've almost said enough. It's time to sit down and 6 let the trial start, and I am very close to doing it. 7 There are some things that you have to know about 8 this case as you begin this process. It's going to be a long 9 trial, and I guarantee that there are going to be mornings 10 when you walk through that door, you're not going to want to 11 see a face over here. You're going to be angry, you're going 12 to be bitter, because you're going to have reacted as human 13 beings to things that you have seen and heard in this 14 courtroom. What I will be asking you to do now, and as you 15 see any one of the lawyers rise during the trial we are going 16 to be asking you to overcome that anger and overcome that 17 bitterness, to keep your minds open to what, the concept of 18 fairness. 19 I am not going to ask you to do what most Americans 20 do most of the time and that is prejudge, make their mind up, 21 and don't want to listen to nobody about nothing. I'm going 22 to ask you to do what few Americans do, the real people do, 23 and that is, no matter how hard they get hit, they can listen. 24 This is going to be a marathon, and in a marathon you 25 got a lot of people who take off from the gate running and SOUTHERN DISTRICT REPORTERS (212) 805-0300 70 125kbin3 Opening - Mr. Ricco 1 then you have other people who sit and understand it's a long 2 process. 3 This is going to be a long process. I'm convinced I 4 can say nothing to you today that you will remember at the end 5 of this trial or halfway through this trial, other than this: 6 When you come here each day, see that justice is served. 7 Now, the government opened, Mr. Butler opened. It 8 was a powerful opening. And he set forth what the government 9 intended to prove. What he said was that Mohamed Odeh, came 10 over and pointed to him, he said Mohamed agreed to join an 11 organization whose goals was to kill Americans. And he said, 12 to prove that, you would have to keep your eye on three 13 things. One was that he trained people in Somalia. Two was 14 that he was running a fishing business, right? Right? And 15 the third thing that proved he joined an organization that was 16 intent on killing Americans is that he left town when somebody 17 told him to. Right? 18 Obviously there must be something more to the story 19 than that, because those three things don't prove a darn 20 thing. What you were told was, the evidence will show what he 21 intended to do. So what I ask you to do is pay attention to 22 the evidence. 23 What you're going to find from this case straight off 24 is that Mohamed Odeh is an extremely devoted religious man. 25 You're going to find out that Mohamed Odeh is a soldier. He's SOUTHERN DISTRICT REPORTERS (212) 805-0300 71 125kbin3 Opening - Mr. Ricco 1 a soldier. You see it right there. In our country as 2 civilians, we very rarely meet a man like Mohamed Odeh. When 3 you meet him, it's on a battlefield, or at his carpentry shop, 4 or at his fishing business. He has never been to America, 5 though he speaks English -- a little bit. 6 You're going to find that his participation as a 7 soldier is based on one thing, his love of Islam, his complete 8 faith in the Koran, the sharia. You are looking at a person 9 who believes in it with every fiber of his being, and everyone 10 that comes in contact with him comes in contact with Mohamed 11 Odeh's belief and his religion. 12 So you say Mr. Ricco, that is very interesting to 13 know, but what does that have to do with this case? It has 14 everything to do with this case, because Mohamed Odeh's 15 reasons for joining Al Qaeda, his reasons for being in Kenya, 16 his reasons for being in Somalia, and his reasons for leaving 17 Kenya when he was told to do so are all based on his religious 18 beliefs. 19 The government will tell you through its witnesses 20 that Mohamed Odeh joined Al Qaeda but not when he was first 21 approached with it. He joined, but there was a caveat to 22 Mohamed Odeh joining Al Qaeda. See, before he joined he 23 studied it, checked it out. He wanted to know what he was 24 getting into. Some people say he's difficult. He's just 25 different. And when he joined Al Qaeda, he did not join to SOUTHERN DISTRICT REPORTERS (212) 805-0300 72 125kbin3 Opening - Mr. Ricco 1 kill Americans. He joined Al Qaeda, and he agreed to follow 2 Bin Laden, but only to the extent that Bin Laden would engage 3 in acts that were Islamically correct. 4 To us who live in this culture, that's a difference 5 without a distinction, it's meaningless. The difficulty that 6 you have in this case is that you as jurors have to try to 7 understand actions and the associations of a person who is not 8 a part of our culture. The nuances of his culture that are 9 important to him, that help guide him in his decisions are 10 something that's a little foreign to us. Some of us, you're 11 either with it or not. Take it or leave it Sam. He doesn't 12 live in that type of culture. 13 Mohamed did not come to Islam that way initially. 14 You will find, for example, that his parents, his father was a 15 teacher and his parents sent him off to college when he was a 16 little older than most of us when we go to college. And he 17 went to school to study engineering. 18 While he was in college, like many of us who go to 19 college, he was exposed to ideas. Some of the ideas that 20 Mohamed was exposed to was the Islamic revolution that was 21 taking place in the world at that time. Some of us when we go 22 to school, all we worry about is getting our degree so we can 23 get out here, get a good job and make as much money as we can 24 for as long as we can. Well, he's not like that. He was 25 called into the religious faith, and eventually he left the SOUTHERN DISTRICT REPORTERS (212) 805-0300 73 125kbin3 Opening - Mr. Ricco 1 Far East University and he traveled to Afghanistan. 2 And why did he go to Afghanistan? He went to 3 Afghanistan for the same reason that tens of thousands of 4 other Muslims all around the world and nonMuslims went to 5 Afghanistan. He went there because he was fighting -- he went 6 there to support the fight to take the yoke of the Russian 7 government off the backs of Muslim people. He didn't go there 8 to sell shoes. He went there as a soldier, and he is proud of 9 that. Let me say that again. He's proud of that. He's a 10 straight-up person. 11 In Afghanistan, he wasn't trained in terrorism. 12 That's a perspective. He was trained in how to fight in a 13 battlefield. He was a college student one week and he became 14 involved in a battlefield the next. Somebody had to teach him 15 how to do that, and he was taught those skills, and he was 16 taught them well, because he's still here. 17 In Afghanistan, he had an opportunity to meet others, 18 and one of those others were people associated with Usama Bin 19 Laden. 20 Now, I'm going to tell you something. Mohamed Odeh 21 does not distance himself from Usama Bin Laden, because as a 22 Muslim, he doesn't believe that that's his right or his 23 responsibilities. He is not Usama Bin Laden, and, contrary to 24 our perception of people in the Islamic world, that they are 25 sort of the horde of unthinking people who just act as robots, SOUTHERN DISTRICT REPORTERS (212) 805-0300 74 125kbin3 Opening - Mr. Ricco 1 just like other stereotypes that people have in this culture, 2 it is so far from the truth that it's choking. Mohamed 3 participated in Afghanistan, joined Al Qaeda, and when time 4 came for him to leave Afghanistan, he left there with a valid 5 Jordanian passport. 6 That becomes important. It becomes important because 7 to me it is important for you to understand a couple of 8 things. One, who is Mohamed Odeh? Two, what is Al Qaeda? 9 Three, what did he have to do with it? Four, how come he was 10 in Kenya? Five, why he left? And six, with all that training 11 and what not, how come he spoke to the American government 12 when they asked him to? 13 These are important points. These are points that 14 you need to focus in on if you're interested in giving Mohamed 15 a fair trial, in addition to the points that the government 16 wants you to listen to. I am not talking to the exclusion of 17 the government. 18 You got to understand what he was doing in Kenya, why 19 he left, and how he left. What the facts are going to show is 20 that Mohamed came to Kenya lawfully with his Jordanian 21 passport. He lived in Kenya. Mohamed fell in love in Kenya. 22 Yes, Muslims fall in love, just like everybody else. And 23 you're going to find that he met a Kenyan woman, and that they 24 have children, one of which he has never seen. What you are 25 going to find is that he had a home for himself in Kenya. I SOUTHERN DISTRICT REPORTERS (212) 805-0300 75 125kbin3 Opening - Mr. Ricco 1 like to say that he was living in less than modest 2 accommodations. He reminds me that they are very less than 3 modest. 4 What the evidence is going to show is that Mohamed 5 Odeh lived in a little town called Witu. Witu is a little 6 place barely on the map. It's less than 5,000 people. They 7 have no running water. At times he drinks rainwater, like 8 everybody else who lives in Witu. There is no postal service 9 in Witu. They have two telephones in the entire town. He 10 lived there in a mud-thatched hut with his wife. To live like 11 that, you got to be in love, in today's world. And he was in 12 love, and he still is. Witu is a completely isolated town. 13 Mohamed chose Kenya because of the involvement in Somalia, its 14 proximity, but he chose the countryside of Kenya because it 15 gave him solitude and a chance to think. 16 It becomes important for you to understand this 17 because the government puts into compartments the facts of his 18 life, and they say to you these three oblique facts, the 19 reason why he left Kenya, the fishing business, and his work 20 in Somalia proves he intended to kill Americans. 21 Several months before this event happened, people who 22 participated in the bombing started to come to Kenya. One of 23 those people spoke to Mohamed. They told Mohamed, you going 24 to have to leave Kenya several months from now. So get ready. 25 So what did Mohamed do? He applied for his passport. Several SOUTHERN DISTRICT REPORTERS (212) 805-0300 76 125kbin3 Opening - Mr. Ricco 1 months went by and he saw another visitor. We're going to 2 have to leave soon. Mohamed was not ready to leave. Mohamed 3 had a family, he had a business, he had some responsibilities. 4 As the day became closer to the time of August 7, 5 people began to get impatient with Mohamed. Now, it becomes 6 important, and Mohamed leaving Kenya is important, because 7 Mohamed knows everybody, even though he's living in Witu. 8 Why? Because he's trained with some of the people, he's 9 fought with them. 10 When he is approached, the attitude at first several 11 months ago was sort of soft. Now the attitude was more 12 urgent. What he was ultimately told was, you have to leave 13 now, you got to go. And Mohamed, who was not prepared to go, 14 ran into one of the persons on the street, and in the middle 15 of the street there was a shouting match between Mohamed and 16 one of the individuals. And they wanted him to leave. He 17 didn't have the travel papers to leave, so they offered to 18 give him the travel papers to leave. Mohamed would have 19 preferred to travel on his own passport, and he did not. He 20 took the advice of another, and he traveled with that 21 passport. And he didn't shave his beard to hide his identity. 22 He's going to Afghanistan where people know him. He shaved 23 his beard because the passport that they gave him had a 24 picture with a guy with a beard on it. So the notion was, I'm 25 going to say well, that's me without the beard. SOUTHERN DISTRICT REPORTERS (212) 805-0300 77 125kbin3 Opening - Mr. Ricco 1 Now, what you going to find, which is important, is 2 that after the bombing all of the people scattered. Some went 3 to Karachi, some went to Pakistan. Some made their way back 4 to Afghanistan. Mohamed was asked to leave Kenya, because 5 Mohamed was a link. 6 See, the one thing you want to understand about Islam 7 is that there are a lot of people in Islam who are really true 8 believers, and in Islam, the concept of committing suicide is 9 fundamental, of killing oneself is not permissible. The 10 concept of killing children is not permissible. The concept 11 of blowing innocent people up is not permissible. 12 I submit to you that when this plan was hatched, the 13 last person that anybody wanted to tell what was happening was 14 Mohamed Odeh, because Mohamed Odeh did not and would not 15 participate in any act that is contrary to his fundamental 16 religious beliefs, and those acts were. And we believe the 17 evidence in this case is going to show that without a doubt. 18 So it was important for him to leave. He was moving 19 too slow, but he had to go. When he was told you have to get 20 to Afghanistan, he had to go. 21 What you are going to find is that when he was 22 traveling with this passport that was given to him, when he 23 got to Karachi, everybody got through except for who? The guy 24 with the phony passport. In a lot of ways Mohamed, when he 25 got stopped at the airport, created a diversion that allowed SOUTHERN DISTRICT REPORTERS (212) 805-0300 78 125kbin3 Opening - Mr. Ricco 1 the other people to slide away. The evidence is going to show 2 that in that case. 3 Some of you may say, why did they ask Mohamed to 4 leave? Because they recognized that if you ask Mohamed a 5 question you're going to get an answer. And Mohamed did 6 exactly what I submit to you people feel he would do, because 7 he was brought back to Kenya and he was questioned by US 8 officials and Kenyan officials. And what did Mohamed say when 9 he was questioned? There was some talk about him getting a 10 lawyer and efforts were made to accomplish that, but 11 ultimately there was no lawyer available for him, and the 12 conversation went back and forth, and Mohamed said I want to 13 speak to the Americans alone, I'd like to speak to the 14 Americans about the questioning. He did that for a reason. 15 And ultimately what was accommodated was that he was 16 questioned by the Americans with the Kenyans present. And 17 Mohamed spoke about his involvement in Al Qaeda, his reasons 18 for joining Al Qaeda, his life in Kenya. 19 Mohamed Odeh had no reason to kill Kenyans. He is 20 married to a Kenyan. His children are Kenyan. His neighbors 21 are Kenyan. So he spoke to them about his involvement. And 22 when he was asked questions he answered them. That might be a 23 little difficult for some people but that's what happened. He 24 was shown pictures, he responded. So, they say, why did this 25 hardcore person who is trained in terrorism, etc., etc., why SOUTHERN DISTRICT REPORTERS (212) 805-0300 79 125kbin3 Opening - Mr. Ricco 1 did he speak? He spoke because he had nothing to hide. 2 During the trial, you will have the opportunity to 3 read his statements. You will find that the atmosphere that 4 Mr. Odeh was questioned in was calm, it was cordial. He had 5 an opportunity to speak and to be heard. Questions were 6 asked. He was given breaks. But you also are going to hear 7 there was a little stuff in the game, and the part of the game 8 was that he was held incommunicado there for about 13 days, 9 unable to contact his wife, unable to contact his family, and 10 subject to questioning over that time period. And throughout 11 that time period he was asked many questions over around 12 again, from different angles back and forth, and then when 13 they finally stopped asking him questions, they started asking 14 hypothetical questions. So in the statement you will see him 15 responding to hypothetical questions, what if, what if this 16 and what if that. 17 I mention that to you because it is going to be 18 important when you listen to the facts, and when you see us 19 during the trial, when you see Mr. Wilford, when you see 20 Mr. Herman, when you see Miss Babcock talking to witnesses, 21 asking them questions, the questions we ask them are going to 22 tie into those points that we think are important to his 23 defense and deal with the issues raised by the government in 24 its opening. 25 During the preliminary charges to you, the judge SOUTHERN DISTRICT REPORTERS (212) 805-0300 80 125kbin3 Opening - Mr. Ricco 1 talked about inferences, rainy days, seeing people in 2 raincoats. I am going to submit to you this, that one of the 3 things I want you to keep in mind during the trial is not so 4 much whether or not an inference is reasonable, but I want you 5 to ask yourselves whether or not the inferences that people 6 are asking you to draw are accurate, whether they are 7 accurate. 8 I have said probably most of what I want to say at 9 this point. A lot of what I am talking about is difficult for 10 you to focus on now. That's because Mr. Butler was right. 11 There are so many names, there are so many events that it is 12 very difficult to understand how these things connect now. 13 But as the trial progresses, you will become more familiar 14 with the names, more familiar with the places, and you will 15 begin to make the connections. 16 My concern is that you don't rush to judgment before 17 the end process and that you resist the great urge to make up 18 one's mind and to look down at these men and say uh uh, not 19 me, I'm not hearing it. That is going to be our greatest 20 struggle. The government has said, they have talked about his 21 association, I want you to look at his association and to see 22 whether or not the inference that the government wants you to 23 draw is an accurate one. 24 In a lot of ways this case is about many, many 25 different things, too many to cover in an opening statement. SOUTHERN DISTRICT REPORTERS (212) 805-0300 81 125kbin3 Opening - Mr. Ricco 1 It's important for you to understand that Al Qaeda is a very 2 broad concept. The concept of Al Qaeda and what made it 3 attractive to so many young men, and not so young men, from 4 around the world was not that it stood for fighting but the 5 concept of Al Qaeda stood for helping people that were poor 6 and down, helping them financially, helping them spiritually. 7 And in some instances it also meant fighting. 8 But it is important for you to recognize, not to get 9 caught up in what I call demagoguery. It's done in our 10 culture. If you are a member of the Nation of Islam you're 11 this, if you're a member of that you're this. And people in 12 our culture make associations based on what people wear and 13 how they talk and they're often wrong. 14 It's very difficult to understand a concept like Al 15 Qaeda because we don't have one in our culture. So you're 16 going to have to try to deal with what that concept means, and 17 what it meant to Mohamed Odeh. Because, see, Mohamed Odeh is 18 a person who thinks. He's a man. He has a right to say no, I 19 don't want to be a part of that. And Al Qaeda does not 20 require his blind allegiance. He has a right to think and to 21 make an assessment. And he is very dogmatic about that. 22 Right? 23 That's about all I have to say. During jury 24 selection we spent a lot of time talking about the death 25 penalty, could you do this and could you do that. Mohamed SOUTHERN DISTRICT REPORTERS (212) 805-0300 82 125kbin3 Opening - Mr. Ricco 1 Odeh is not faced with the death penalty in this case. Your 2 decision on his case is guilt or innocence. It's the enormity 3 of the loss of life that makes it very, very difficult in this 4 case. 5 I am a person, very difficult for me to listen to 6 people that talk at me. As jurors y'all are about halfway 7 through a day of having lawyers talk at you. It's very 8 difficult to do it. All of the lawyers have so much to say, 9 both the government and the defense, so much to bring to your 10 attention. 11 You got to fight off the weakening, you got to hang 12 in there, because if you don't, you're going to miss it. And 13 in a case like this where so much is involved, it's apparent 14 from all the people who are here today, and the time and the 15 care that we took in selecting you as jurors, how important 16 this case is. 17 In the end, when it is all said and done, we have to 18 accept your judgment. We believed that we picked people who 19 can exercise sound judgment, and we hope and pray that we were 20 correct. If we were not correct, then this exercise is a 21 waste of time for everyone involved. 22 So with that, ladies and gentlemen, that's all I have 23 to say this morning, and let's see what the trial brings on. 24 Thank you very much. Thank you, your Honor. 25 THE COURT: Thank you, Mr. Ricco. We will take our SOUTHERN DISTRICT REPORTERS (212) 805-0300 83 125kbin3 Opening - Mr. Ricco 1 luncheon recess and we are adjourned until 2:15. 2 (Luncheon recess) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 84 12251BI4 Opening - Mr. Ricco 1 A F T E R N O O N S E S S I O N 2 2:15 p.m. 3 (In open court; jury not present) 4 THE COURT: Good afternoon. You may be seated. A 5 couple of logistical items. Just let me caution you again 6 about the fact that there is a speaker that takes everything 7 down to room 7 for the overflow. It picks up various things. 8 Mr. Cohn, you're talking to somebody. 9 MR. COHN: I know. We're concerned about it. We 10 don't know what to do about it. 11 THE COURT: Well, just be aware of it, that it is a 12 problem. 13 MR. COHN: I'm trying to cut out the speaker here and 14 we can't. 15 THE COURT: With respect to Thursday where the jury 16 is not coming in, but we're conferencing at 2:30, the 17 interpreters service asked whether interpreters will be needed 18 on Thursday. That's a question of whether counsel wish to 19 have their clients present. My understanding is it is 20 primarily discovery and CIPA matters. 21 MR. COHN: That's what it is primarily. 22 THE COURT: It's got to be a yes or a no. 23 MR. RUHNKE: No. 24 THE COURT: No, we do not need interpreters. 25 MR. RUHNKE: We are checking, but it's our feeling we SOUTHERN DISTRICT REPORTERS (212) 805-0300 85 12251BI4 Opening - Mr. Ricco 1 probably won't. 2 THE COURT: Please let me know definitively first 3 thing tomorrow because feelings don't translate into 4 instructions. 5 I have a recollection of having received a letter 6 which I cannot locate -- which isn't surprising because I'm 7 still working out the logistics of functioning in the two 8 courthouses -- dealing with the testimony of the next witness 9 and hearsay. Did somebody send me a letter? 10 MR. DRATEL: Yes, your Honor. 11 THE COURT: Do you have another copy of that letter? 12 MR. DRATEL: Yes. 13 THE COURT: My thought would be, unless anyone has 14 any strong objection, that we end early today. The weather is 15 pretty bad. I'm sure the jurors will appreciate it. And that 16 we use the time after the jury leaves to deal with problems, 17 if there are any, relating to the next witness. Is that 18 agreeable with everybody? 19 MR. COHN: Yes, your Honor, as far as I'm concerned I 20 think I'll be 15 or 20 minutes, and I don't know how long Mr. 21 Schneider has, but I can't imagine we're going to fill out the 22 day. 23 THE COURT: All right. This morning when I made 24 available the blank questionnaire I was unaware of the fact 25 that I received a letter from Cable News Network asking to see SOUTHERN DISTRICT REPORTERS (212) 805-0300 86 12251BI4 Opening - Mr. Ricco 1 the blank questionnaires. That we've given them. Their other 2 request is the completed juror questionnaires of the 18 chosen 3 members of the jury. 4 What I would ask is that the government and defense 5 designate some paralegal to carefully edit a set of those 6 questionnaires so that we are confident that there is nothing 7 contained in the questionnaire which can lead to establishing 8 the identity of the juror. Some of these questionnaires it 9 does not take very skilled investigator to ascertain who the 10 person is. So if in doubt the matter should be deleted. 11 Obviously, gender, age, general statement as to occupation, 12 things of that sort are all right. Can we have that by 13 Wednesday morning? 14 Our agenda for Thursday is El Hage discovery and 15 CIPA. Now, I received letters saying that the defense were 16 going to file letters with respect to CIPA on Friday. 17 Obviously, it would be much more helpful if we could have 18 those letters before the Thursday. 19 MR. SCHMIDT: I don't think it was concerning Mr. El 20 Hage, your Honor. 21 THE COURT: I think it was maybe Mr. Cohn. 22 MR. COHN: We have a more important problem, your 23 Honor. I just have to advise the Court that my client has 24 instructed me not to open, and I don't know if I am going to 25 obey that, but I'm putting it on the record that he has made SOUTHERN DISTRICT REPORTERS (212) 805-0300 87 12251BI4 Opening - Mr. Ricco 1 that instruction. 2 THE COURT: Well, that's a decision for you to make 3 in the first instance, Mr. Cohn. 4 MR. COHN: I know, but I think that given everything 5 if he gives me such an instruction, the record ought to 6 reflect it. 7 THE COURT: The record now reflects it. Whether you 8 open or not is something I think you ought to advise us as to 9 what you are going to do before the moment arrives and the 10 jury is here. 11 MR. COHN: Counsel having conferred, we're not going 12 to open. 13 THE COURT: No opening, all right. That will make 14 and even shorter afternoon. 15 All right. I take it there will be an opening on 16 behalf of KK Mohamed? 17 MR. SCHNEIDER: Yes, your Honor. 18 THE COURT: Very well. Mr. Cohn, will you rise and 19 say that you waive opening? 20 MR. COHN: Yes, your Honor. 21 THE COURT: Now I prepared the jury for that in my 22 preliminary remarks saying -- 23 MR. COHN: I would appreciate it. 24 THE COURT: Who would be next? 25 MR. SCHNEIDER: Mr. Schneider, your Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 88 12251BI4 Opening - Mr. Ricco 1 THE COURT: Mr. Csakany, I take it transportation 2 will be available for the jurors as soon as they're finished? 3 MR. CSAKANY: That's right, your Honor. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 89 12251BI4 Opening - Mr. Ricco 1 (Jury present) 2 THE COURT: Ladies and gentlemen, I think we're going 3 to have a relatively short afternoon. We began a little early 4 and we're going to end a little early. I can't guarantee that 5 that will happen regularly, but we can do it today and since 6 the weather is very bad out there, I'm sure you'll appreciate 7 being able to get home early. 8 Please, tomorrow morning, allow for the weather 9 conditions so that we can begin promptly tomorrow. I fully 10 anticipate we'll have a full day tomorrow. 11 I believe the next order of business is an opening 12 statement on behalf of the defendant KK Mohamed. Mr. 13 Schneider. 14 MR. SCHNEIDER: Thank you, your Honor. 15 Good afternoon. Now this morning Mr. Butler got up 16 to you and he spoke and he had very powerful images that he 17 gave you in his opening statement. 18 THE COURT: You are going to have to use that 19 microphone. 20 MR. SCHNEIDER: Whether I like it or not. 21 THE COURT: Only if you want to be heard. 22 (Laughter) 23 MR. SCHNEIDER: As long as the jurors can hear me, 24 your Honor. Now, when those compelling images that he 25 conjured up that you were thinking about the feelings that you SOUTHERN DISTRICT REPORTERS (212) 805-0300 90 12251BI4 Opening - Schneider 1 had, the thoughts that you went through he spoke about the 2 Kenyan embassy, the bombing of the United States embassy in 3 Kenya, excuse me. And at that point he was talking about it 4 and you pictured people coming to work, just living their 5 lives the regular way and then all of a sudden, boom, the 6 world changes. 7 Then he began to speak to you and he said: Well, 8 these two bombings were part of a worldwide plot, and he kept 9 discussing everything. And I like jerked up, and I had to 10 listen and I had to say to myself: Did I miss something? Did 11 I miss the whole point of his opening? Because all he spoke 12 to you about in the beginning was the bombing in Nairobi. 13 He completely forgot in the beginning of his opening, 14 before he said to you these two bombings are part of a 15 worldwide conspiracy, he didn't say word one about the bombing 16 in Tanzania. And I have to tell you it concerns me that the 17 government in their opening, the first few minutes when 18 they're talking to you about very powerful moving images 19 forgets about the Tanzania bombing especially when my client 20 KK Mohamed is involved only in that in their charges, in their 21 allegations. 22 So I have to remember to try to speak to you now, so 23 you won't forget things, so you won't combine things, so you 24 won't confuse things. And what's important about that is that 25 you have to know facts, you have to know names, you have to SOUTHERN DISTRICT REPORTERS (212) 805-0300 91 12251BI4 Opening - Schneider 1 know dates, and places. And Mr. Butler is correct, it's 2 important to give just a road map, because there is years and 3 years and hundreds of miles and so many names, foreign and 4 nonforeign names, that will be difficult for you to remember. 5 So I'm going to try to make your life a little bit 6 easier if I can. I'm going to try to make what really matters 7 in this case regarding my client, Khalfan Khamis Mohamed, who 8 I am going to refer to KK, so that there will be no confusion, 9 because you're going to hear so many names over the months 10 that may overlap that are initially unfamiliar to you. So 11 there is no one else that's going to refer to anybody except 12 KK. So that's what I'm going to talk to you about. I'm going 13 to make it clear for you. I'm going to make it easier for 14 you. 15 The government's evidence is going to show you that 16 in the months preceding the August 7, 1998 bombing they are 17 going to show you that he knowingly participated in the making 18 of a bomb. They are going to show you -- this is what the 19 evidence is going to show -- they are going to show you that 20 the bomb that he knowingly participated in was later used to 21 bomb the American embassy in Tanzania. And he's going to show 22 you, the government's going to show you, that as a result of 23 that one bomb 11 Tanzanians were killed, dozens were hurt. 24 Ladies and gentlemen, we are not running away from 25 the evidence. We are not running away from the truth. We are SOUTHERN DISTRICT REPORTERS (212) 805-0300 92 12251BI4 Opening - Schneider 1 here confronting it, telling you the parts that refer to him 2 and reminding you of the parts that do not refer to him. 3 When you're asked to judge someone or asked to judge 4 someone's conduct, it's important for you to know who that 5 person is, who he's not, what that person actually did and 6 what he didn't do; why he did certain things; what he knew and 7 what he didn't know. And that's how you can first analyze and 8 judge someone, someone's actions, someone's conduct, when you 9 know all of those things. 10 Now, let's look, if we can, at what he did not do, 11 what he didn't know about, because this will take those issues 12 off the table and make your life, I hope, easier and clearer 13 and more confined, discrete and finite. Because I am speaking 14 to you no matter how many times I may get up and laugh and 15 joke with the other members of the defense team for all these 16 defendants, I represent one defendant here, Khalfan Khamis 17 Mohamed. We're friendly. We get along, everybody, that's it. 18 But, remember, I'm speaking to you on his behalf and his 19 behalf only. 20 So let's look at what he didn't do. He never had 21 anything to do with the Kenyan bombing. Did you hear that? 22 He never had anything to do with the Kenyan bombing. I'm not 23 just saying that as a lawyer. I'm telling you that because he 24 is not charged with it. He never knew about it until he heard 25 about it in the news. He never talked to anybody about it. SOUTHERN DISTRICT REPORTERS (212) 805-0300 93 12251BI4 Opening - Schneider 1 He had no knowledge about it. He never discussed it. He 2 never planned it. He had nothing to do with the Kenyan 3 bombing. 4 Usama Bin Laden, number one guy, worldwide terrorist. 5 Remember during jury selection how many of you when you were 6 asked what you heard about this, what you read about, not one 7 of you, not one of you knew any of the names of the people 8 here. You did, some of you, knew Bin Laden: Bin Laden's 9 this, Bin Laden's that; Bin Laden did this; he did that. 10 That's about Bin Laden. 11 What I'm telling you, ladies and gentlemen, see that 12 guy sitting right there, okay? He never met Mr. Bin Laden. 13 He never talked to Mr. Bin Laden. He never heard him speak. 14 He never heard him speak at a rally. He never heard him speak 15 on the radio. He never heard him speak on the TV set. He 16 never heard him speak on any kind that have been distributed 17 world wide to his so-called followers. He was, if he bumped 18 into him on the street and saw him somewhere in Tanzinia, he 19 wouldn't know who the man was back in 1998. 20 Not only did he have nothing to do with Mr. Bin Laden 21 himself, he had nothing to do with any organization remotely 22 connected to Mr. Bin Laden. He nothing to do with any 23 businesses remotely connected to Mr. Bin Laden, and he had 24 nothing to do with any group remotely connected to Mr. Bin 25 Laden. That now takes that issue off the table for you. It's SOUTHERN DISTRICT REPORTERS (212) 805-0300 94 12251BI4 Opening - Schneider 1 uncontroverted, and you can't forget it. You have to remember 2 what they charged, what he did and what he didn't do. 3 Al Qaeda. He is not today, nor was he in '98 or 93, 4 '94, in any year, he was not, nor was he ever a member of this 5 thing called al Qaeda. Never. Never signed his name to 6 membership. Never swore any kind of oath. Bayat, B-A-Y-A-T, 7 that's a sworn oath to become a member of al Qaeda. If this 8 thing exists the government will tell you about that. And I'm 9 telling you there is no evidence in the world that you will 10 hear from the witness presented by the government that he ever 11 swore to any oath to al Qaeda. 12 He never discussed with anybody who he may have 13 talked about anything about al Qaeda. He never heard of the 14 group. He never heard of the organization. Nothing 15 whatsoever to do with that. Now, so that's off the table. 16 Remember him and the evidence. A fatwa, one of these 17 statements, F-A-T-W-A, a statement that was supposedly issued 18 by Mr. Bin Laden. He, KK Mohamed, never heard any statements 19 issued by Mr. Bin Laden to kill anybody, Americans, military, 20 civilians, nothing whatsoever. 21 These are things you can't ignore. These are things 22 you can't forget. These are things you must always focus on 23 when you're asked to evaluate the evidence against someone who 24 is facing the death penalty. 25 (Pause) SOUTHERN DISTRICT REPORTERS (212) 805-0300 95 12251BI4 Opening - Schneider 1 Well, let's look at again when what else KK didn't do 2 or didn't know in evaluating this case. Let's look at who 3 else is more -- let's look at who else was more involved. 4 Let's look at who else was more necessary for the successful 5 completion of any operation. Let's look at who else was 6 irreplaceable in this organization or in this plan. Let's 7 look at who else is more culpable, more guilty, more involved 8 than KK Mohamed, because that's something that you can't just 9 ignore when you are deciding someone's fate. 10 You know whenever you have an organization or a group 11 or a plan there is usually an organization hierarchy somehow 12 somewhere, and what happens is people that do the theory they 13 discuss, they plan the theory, the ideology. They're the 14 thinkers. Well, he clearly was not part of that. That was 15 not his job or his role. He was not part of the ideology in 16 terms of making up how he followed what he should be doing. 17 He is not the source of any money. You need money to 18 run these organizations, to run these plans, these 19 conspiracies, these plots. He was never the source of any 20 money. 21 He was never the source of any supply of anything 22 that was needed to be made or to be done. He never supplied 23 those necessary items. He was not a planner of any of these 24 next steps. He didn't give orders. 25 He was not a leader. He was not someone who said SOUTHERN DISTRICT REPORTERS (212) 805-0300 96 12251BI4 Opening - Schneider 1 okay, now you must do this; now you must make arrangements to 2 do that. That was not his role. He was not a recruiter to go 3 and find other people to help in this plan. 4 He was not an expert. An expert is someone who you 5 need to carry out a mission. Nobody needed him for anything. 6 He was not an expert. There are experts in military, in 7 tactics, in escape, in making bombs, in engineering, in 8 mechanics, in travel, anything of that. He was not a 9 necessary element in any aspect of any mission whatsoever. He 10 was not a technician. He didn't even know how to put one 11 thing together with something else. 12 What was he? He was a gofer. That's it. Do this. 13 Okay. Get that. Okay. We need this. Okay. I'll obey. 14 I'll listen. I'll do whatever you need me to do. 15 He was used by the higherups, by the leaders, by the 16 people who make the ultimate decisions in these kind of things 17 out in the world. Not him. 18 He was a fungible worker, someone who can easily be 19 exchanged, interchanged with anybody else. When you hear 20 about what he did, when the government presents the evidence 21 to you about what he did, you can just pick him up, you can 22 just take him out, you can move him away, and you can put 23 anybody else in the world in his spot and that person will 24 fill his role just like that. 25 And that means a lot in a case like this. That means SOUTHERN DISTRICT REPORTERS (212) 805-0300 97 12251BI4 Opening - Schneider 1 a lot when you are discussing or evaluating the relative 2 responsibilities of people involved in a mission, or when 3 you're asked to evaluate in a death penalty case the relative 4 culpability of people involved in a mission. 5 THE COURT: Ladies and gentlemen, I want to remind 6 you of what I said earlier, and what I said with respect to 7 the death penalty, and that is that punishment and the death 8 penalty is not and issue with respect to the determination 9 whether the government has proved beyond a reasonable doubt 10 the guilt of the defendant. 11 When you hear arguments with respect to death penalty 12 and relative culpability and so on, understand that punishment 13 is not at all a consideration with respect to the question of 14 whether or not at the end of this proceeding the government 15 will have proven the defendant guilty beyond a reasonable 16 doubt. 17 MR. SCHNEIDER: Thank you, your Honor. 18 Now, when you are evaluating the evidence in this 19 proceeding and listening to who did what and the evidence 20 against KK Mohamed, you'll hear what he did, and what others 21 did. That is an appropriate thing for you to consider at the 22 first proceeding, as the Judge just told you. 23 So he is someone who had no special knowledge. He 24 had no unique talents. He had nothing that he brought to the 25 table that was all of his own. He was a pawn and he was a SOUTHERN DISTRICT REPORTERS (212) 805-0300 98 12251BI4 Opening - Schneider 1 pawn that was used by people who are not here before you now. 2 Now, I told you a little bit about what he didn't do 3 and what he wasn't involved in. And I also spoke to you about 4 Mr. Butler's compelling powerful opening. And he himself said 5 that the words do not or cannot convey to you the devastation, 6 the feeling, the damage that went on there back in August of 7 1998, and he's right. 8 But I'm telling you now, ladies and gentlemen, you're 9 going to see photographs, you're going to see videos, you're 10 going to hear, you're going to see images that could very well 11 stay with you forever, and you're going to react in your 12 hearts, in your stomach, and in your head, and you're going to 13 hear people, victims talking to you about what it was like. 14 You're going to hear it, and you're going to react in your 15 heart, in your stomachs and in your head. 16 And you're also going to hear some of the words, some 17 of the words, some of the biting, the terrible words that the 18 government says KK Mohamed used when he was questioned after 19 he was arrested. 20 And you're going to react. You're going to react 21 when you hear the words, see the pictures and hear the phrases 22 that were used. And you know what you may do? You may gasp. 23 You may turn away. You may get sick to your stomach. You may 24 get scared, and you may get angry, and when Mr. Ricco spoke to 25 you earlier before lunch and he said: Trial? Trial? You may SOUTHERN DISTRICT REPORTERS (212) 805-0300 99 12251BI4 Opening - Schneider 1 hear some things and you may want to jump right over this rail 2 and get to us right now. And I'm telling you that's going to 3 happen. 4 You're going to feel that way. You're going to have 5 a normal reaction to seeing and hearing the most horrible 6 devastation that happened in August of 1998. But I need -- 7 you're allowed to react, you know. No one can tell you how to 8 feel. No one can tell you what to think about. But we can 9 ask you just to withhold were your judgment. We can ask you 10 to remember that it is not just how you feel in February, but 11 it's going to be February, March all the way until the end, 12 until the case is through, you have to withhold your judgment 13 in this case. You're going to see and hear things that are 14 going to make you shiver. 15 You know, I'm telling you and I want to remember, 16 this moment now, okay, when you get that reaction, I want you 17 to remember to say to myself: Oh, I have to remember to just 18 back up, just to withhold. Just remember what we're dealing 19 with here, because you're going to hear the government is 20 going to present witnesses that are going to say that that guy 21 sitting right there, KK, wished Americans had been killed, 22 instead of Tanzanians. You're going to hear the government 23 say that. 24 You're going to hear the government witness get up 25 and testify that he said: I'm not sorry for it. You're going SOUTHERN DISTRICT REPORTERS (212) 805-0300 100 12251BI4 Opening - Schneider 1 to hear them get up and say: I would consider doing it again. 2 That's going to make you at that point, you want to jump up, 3 get over and say: How could you say that? How could you do 4 that? How could you sit here and ask me to just not throw my 5 hands up and say, forget about it? 6 Well, as of October 5th of 1999, from that point on 7 that's when, October 5th to October 7th, that's when Mr. 8 Mohamed was arrested and he was questioned. Withhold your 9 judgment. 10 But you know what you can do when you hear all these 11 terrible things, when you hear what he said, when you hear 12 what his reaction was, when you hear what he felt? You need 13 to ask yourselves why? Why? Because why people do certain 14 things matters. Why they act a certain way matters and a 15 number of you even spoke about it during the voir dire portion 16 of the trial. 17 I'm telling you, ladies and gentlemen, KK Mohamed 18 acted purely out of principle. He acted purely out of deep, 19 deep religious beliefs, out of deep philosophical convictions 20 out of his understanding of the Koran, out of the fact that 21 his interpretation of the Koran and of Islam may be extreme, 22 but it's his. He believes it. And let me tell you something 23 else: It is also a belief held by millions of other people 24 around this world. 25 That's what he did, act. That's why he said those SOUTHERN DISTRICT REPORTERS (212) 805-0300 101 12251BI4 Opening - Schneider 1 things because of what he believed, what he felt, what he 2 thought what he learned about and what he knew. Why didn't he 3 act? In other words, why didn't he do this bomb? He didn't 4 act out of greed. He didn't act to make any money. He didn't 5 act out of lust, out of personal ambition, out of personal 6 gain, out of any attempt for him to gain power in the world 7 organization, for him to move up within any kind of an 8 organization. He didn't do that. He didn't in any way act 9 out of a sense to move up the ladder of the organization or do 10 anything for purely personal gain. 11 Now, I think there is a hierarchy of evil in this 12 world, you know, and people who act out of principle, out of 13 religious convictions or religious beliefs, should they be 14 judged the same way as someone who is completely acting out of 15 greed or money or power? Is there a hierarchy of evil? Is 16 there a way that you judge people and acts differently 17 depending on why one does something? 18 Now, let's be very clear. Let's move the mic here so 19 you can be very clear. I am not telling you I agree with what 20 he did. I am not telling you that I agree with his beliefs or 21 his understanding or his interpretation of Islam. I am not 22 telling you that I am trying to justify what he did. I am not 23 trying to excuse what he did. I am not. 24 I am only, only trying to explain. I, David Stern 25 and David Ruhnke, we are three lawyers representing KK SOUTHERN DISTRICT REPORTERS (212) 805-0300 102 12251BI4 Opening - Schneider 1 Mohamed. No one sitting at that table is agreeing, is 2 justifying, is excusing what happened. 3 When I talk to you about a hiearchy of evil or deep 4 philosophical beliefs, I'm just trying to explain it. I'm 5 trying to clarify it, and I'm trying to just ask you to 6 individualize the evidence and the conduct against individual 7 people who are charged with very specific crime. So if you 8 believe that someone acts out of principle or deeply held 9 religious or political beliefs, then it shouldn't surprise you 10 if they don't feel sorry for what they did. It shouldn't -- 11 THE COURT: Again, I remind the jury that some of the 12 issues which you are hearing, which may be very pertinent if 13 and when the question of punishment comes before you, are not 14 pertinent with respect to whether or not the evidence in this 15 case will prove beyond a reasonable doubt what a particular 16 defendant did, providing you find that he did it 17 intentionally, voluntarily, willfully, and it's a distinction 18 which should not be confused. 19 Please proceed. 20 MR. SCHNEIDER: Thank you, your Honor. 21 THE COURT: Please proceed in accordance with the 22 statements that I've just made. 23 MR. SCHNEIDER: Always, your Honor. 24 The reason I'm telling you this, the reason I'm 25 talking about hierarchy of evil, and what you have to be SOUTHERN DISTRICT REPORTERS (212) 805-0300 103 12251BI4 Opening - Schneider 1 concerned about, is because during the guilt phase, during the 2 first phase that the Judge is talking about, you're going to 3 hear witnesses talk about statements that were made by Mr. 4 Mohamed, and that's going to be in the guilt phase, in the 5 guilt first portion of this case. So it's relevant for you 6 now to know what his motivations were, because you're going to 7 hear about it in the guilt phase of the case, and you're going 8 to know about it. 9 So it may be relevant later for the penalty phase, 10 but you're going to hear about it in the guilt phase, from the 11 government's own witnesses, and don't forget about it. So 12 that's why I need to tell you about it now, because, remember, 13 I'm asking you, okay, you can react when you hear things that 14 you don't like or see things you don't like, but withhold 15 judgment. That's why it's relevant for the guilt phase of 16 this case against that man right there. 17 On October 5th when KK was taken into custody in 18 South Africa, which you'll hear a little bit about, he was 19 questioned for a few days, the 5th, the 6th, the 7th, portions 20 of those days, and when he was questioned really the only 21 promise that was made by the agents was that the Judge and the 22 prosecutors would be informed of any cooperation, any 23 information he may give to them. Those are the only deals 24 that were made. There was really no other deals or promises 25 made to him. And he spoke to them from the 5th, the 6th, the SOUTHERN DISTRICT REPORTERS (212) 805-0300 104 12251BI4 Opening - Schneider 1 7th, broken down over a few periods of during those times. 2 Now, I do need to talk to you a little bit about the 3 historical background or perspective of the case and where KK 4 fits in, because you know this indictment talks about years 5 and years of activity. This indictment talks about hundreds 6 and hundreds of miles of different places all over the world. 7 So you have to know -- I suggest you should know where he fits 8 into the world and what make him who he was back years and 9 years ago. 10 He's 27 years old now. He was born in 1973 in a tiny 11 island called Pemba. It's right off Tanzania. Now it's so 12 tiny that this morning when Mr. Butler had the map flashed on 13 your screens of Tanzania, of Kenya, of Africa, and you all 14 were able to see it, it's not even there. That's how tiny. 15 It doesn't even exist on that particular map that the 16 government showed you. That's where he was born. 17 He'd never been to this country until the agents 18 brought him here. His father passed away when he was a very 19 young boy. He has three brothers, three sisters. He is one 20 of a twin, he has a twin sister, and he has a number of half 21 brothers and sisters as well. 22 Now, that's 1973 in this very tiny island of Pemba. 23 A number of years later, 1978, the communists took over 24 Afghanistan, okay. He's five years old at the time. The 25 communists take over Afghanistan by force. They become the SOUTHERN DISTRICT REPORTERS (212) 805-0300 105 12251BI4 Opening - Schneider 1 ruling party in Afghanistan. 2 Sometimes in 1979 freedom fighters called Afghan muja 3 hadin or resistance fighters they declare jihad, a word that 4 you heard about on Mr. Butler's opening, they declared jihad 5 against the Communist government in Afghanistan. 6 In the end of 1979, the Russians, the communist 7 government of the Soviet Union invaded Afghanistan and the 8 mujadin declared war against the Russians. 9 Now, you know, ten to 3. You've been here since a 10 quarter to 10. It's hot, or at least I'm hot, it's -- worried 11 about the snow. We heard a lot of lawyers talking. You heard 12 a lot of information. I'm sure you tried hard, and I hope you 13 are trying now to listen to all of it, but I know it's hard. 14 I know you want to get out of here. I know a lot of what I'm 15 saying is going like, you know, kind of going away. 16 And I know that because I know what it's like to sit 17 and listen as Mr. Ricco said, to lawyers talking at you. I'm 18 trying not to talk at you. I'm trying to tell you what it's 19 about when someone charged right there and how he fits into 20 the world, because the government brought these charges of a 21 worldwide conspiracy, so I need to try to put him in a 22 perspective of the worldwide events that molded him, that 23 affected him, that will affect you in deciding this case, the 24 guilt part of this case. 25 So he goes to school in Pemba, enters primary school SOUTHERN DISTRICT REPORTERS (212) 805-0300 106 12251BI4 Opening - Schneider 1 when he's 7 years old. Now, this is a relatively significant 2 time. 1984 when he's 11 years old, thousands and thousands of 3 young Arab men flock to Afghanistan. They can't wait to get 4 there. They can't wait to get there to be trained. They 5 can't wait there to fight. They can't -- it's like kind of 6 like a rite of passage for a young Arab Muslim man to go to 7 Afghanistan during this period, because they want to go to 8 fight to help their brothers and sisters who are being 9 oppressed under the Communist regime. 10 And the USSR, the Soviet Union, backed that Communist 11 government. And you know what? You know who backed the Arab 12 freedom fighters? United States. United States. We 13 supported the Arab resistance in 1984 in Afghanistan. We, the 14 United States, supported the training in Afghanistan. We, 15 United States, supported the fighting in Afghanistan. We 16 didn't just support it by having some politicians getting up 17 there and say, we think it's a good thing. We gave them guns. 18 We, you, them, everybody gave them guns to fight there in 19 Afghanistan, these training camps that the government has 20 talked to you about. 21 Sometime in '89 or '90 a number of years later, KK 22 attends secondary school in the island where he lived. And 23 during that same year that's when the Soviet Union, they got 24 beat, they're out, they're gone. Later the next year, KK 25 moves to Dar-es-Salaam, that little tiny island off Pemba, SOUTHERN DISTRICT REPORTERS (212) 805-0300 107 12251BI4 Opening - Schneider 1 with his family moves to Dar-es-Salaam, which is a bigger city 2 in Tanzania, and he lives with his brother and his family and 3 he works in his brother's shop. 4 His brother owns a little store, a little store in 5 Sar-es-Salaam and KK works there in 1990. 1991, the very 6 beginning, that's when the Gulf War. Mr. Butler spoke to you 7 about the Gulf War. Iraq had invaded. They were defeated, 8 and then the US, we went into Saudi Arabia. 9 That's when everything began to churn, and gets 10 involved with Saudi Arabia being the holy place and two holy 11 sites and things of that nature. 12 Well, in the early '90s there was tribal warfare in 13 Somalia and hundreds of thousands of people died because of 14 famine, because of the tribal wars in the early '90s. This is 15 the context. This is the world under which he is growing up, 16 someone who is a Muslim, someone who is learning about his 17 life, his world, and the world around him. 18 So you have the issues in Bosnia in 1991 and 1992 in 19 the end of '92 the US sends, I think they were called a 20 humanitarian mission to Somalia. '93, that's when the US 21 planes bombed Somalia, and that's when you had some issues 22 regarding other people going there to fight. 23 Now, that's kind of all kind of a background to what 24 led KK to certain activities in 1994. It gives you the 25 context of who he is in the world. In 1994 he decides to SOUTHERN DISTRICT REPORTERS (212) 805-0300 108 12251BI4 Opening - Schneider 1 exercise his rite of passage as someone who studies Islam, 2 someone who was brought up in a Muslim world, and he decides 3 to go to Afghanistan and he goes to Afghanistan to learn to 4 help others; to see what he can do to help his Muslim brothers 5 and sisters around the world, and, if necessary, use armed 6 struggle. 7 Make no mistake about it. I am not saying he's just 8 out there as some preacher preaching the good of the rest of 9 the world. He went there to see whatever he could do, armed 10 struggle if necessary. And he was trained for a number of 11 months, about nine or ten months, in some light weapons there. 12 And he also studied. He had religious studies in this 13 Afghanistan training camp that the government talked about. 14 He had religious studies. You know what else did there? He 15 played volleyball. He played soccer. 16 And there were thousands of others that were trained 17 over the years during the time he was there and times he was 18 not there. In fact, this camp is not just like a very 19 discrete camp that they have very specific training for a 20 specific mission, they go out and they commit all these 21 crimes. There is sometimes that there was -- you know why 22 there was no training going on during the camp when he was 23 there? Because they didn't even have any facilities. They 24 didn't have the weapons. They didn't have what was necessary 25 for training to be done. SOUTHERN DISTRICT REPORTERS (212) 805-0300 109 12251BI4 Opening - Schneider 1 So at this time during his training in 1994 in these 2 Afghanistan camps he never even heard of Usama Bin Laden, he 3 never heard of him, never new of him,didn't know anything 4 about him. He heard of other people talking about him. 5 In 1995 he left the camp and he went back to live in 6 Dar-es-Salaam. Now, this is interesting. When he left the 7 camp he was told to leave a contact number in case we need you 8 for something, if it is necessary for you to become a soldier 9 in the war against whoever. Leave a number we could reach 10 you. Okay? 11 He did. He left a number and address where he could 12 be reached. He was never called. Never a letter. Never a 13 communication. No one ever said: We need you for '94, 95, 14 '96 and '97. There was no such contact at all. Don't call 15 us, we will call you. They never called him. They never 16 needed him. He was never part of any plan. 17 In 1995 when he went back to Dar-es-Salaam. He lived 18 there with his brother and he continued to live with his 19 brother, his brother's family and he worked there with him. 20 '96, his brother lost the shop, but he still continued to live 21 with his brother. '97, he still lived with his brother and 22 the family but when his brother had to move to London for 23 whatever reason, for business reasons, so he began to live 24 with other members of his family. 25 For '95, '96 and '97 he just went about his life. SOUTHERN DISTRICT REPORTERS (212) 805-0300 110 12251BI4 Opening - Schneider 1 There was no contact with anyone, no bombs, no discussions, no 2 Bin Laden, no al Qaeda. There was nothing, no training, 3 nobody contacted him, nothing. He was working. He was 4 studying. He was living with his family. And that's what he 5 did. 6 In 19'97 he took a trip to Mombasa, a city in Kenya, 7 not Nairobi. Mombasa is a different city. He went there. He 8 traveled. He met some people. He discussed Islam with other 9 people, and he prayed at different locations. He had no 10 discussions no nothing, no meetings with Bin Laden, nothing to 11 do with al Qaeda, no bombing. That's '97. 12 He goes again sometime in '97 because he goes to 13 Mombasa. He's only in Mombasa for a couple of weeks. He 14 comes back to Mombasa. When he comes back from Mombasa, 15 again, he just travels. He met some people. He met some 16 friends. He was there and he discussed Islam with others. He 17 was there for maybe a month or two. No Bin Laden, no al 18 Qaeda, no bombings, nothing. 19 '97, he goes to Somalia. Now, these are all, you 20 know, you'll see them from the map in terms of the trips that 21 he makes, goes to Somalia, and the first time he went there to 22 see if he could help anybody in Somalia because there was a 23 terrible, terrible situation there. He was told that there 24 were tribal wars going on there, that he went to see if he 25 could help. SOUTHERN DISTRICT REPORTERS (212) 805-0300 111 12251BI4 Opening - Schneider 1 When he was there he showed others about the little 2 bit he had learned running light weapons at the training camp 3 in Afghanistan in 1994. There was no fighting of any kind in 4 Somalia in '97 that he was involved in. Nothing whatsoever. 5 He went back to Dar-es-Salaam to live there. 6 He went back to Somalia a second time in '97, again, 7 to try to help. Not only was there no fighting there. There 8 was no training in Somalia during this time, no Bin Laden, no 9 al Qaeda, nothing. He went to Mombasa in '98 for a third time 10 and again he stayed there for a while, and then went back to 11 Dar-es-Salaam. 12 Now, in the very beginning of '98 he made efforts to 13 try to get a passport so he can go visit his brother in 14 London. And he made those efforts, and he used a fake or 15 tried to use fake information, fake identification. And this 16 is before he was ever contacted by anybody for any bomb, for 17 any plan, any mission, anything like that. He did that 18 because in order to get the necessary documents you needed 19 other proof that he didn't have. So he did that, again, using 20 his own initiative to try to go and get the information that 21 he needed. 22 Now, finally, in March or April of 1998, years after 23 he was trained in Afghanistan, years after studying Islam, and 24 years after discussing what his life was going to be about in 25 the world of Islamic religion, something specific happened. SOUTHERN DISTRICT REPORTERS (212) 805-0300 112 12251BI4 Opening - Schneider 1 Somebody came to him, a friend came to him and said: You want 2 to get involved in a jihad job? And right away KK said: Yes. 3 The person never said: We want you to do a bomb. The person 4 never said what it is we want you to do, where we want you to 5 do it, when we want you to do it, why you should do it. 6 Nothing, not even, and as Mr. Butler said, jihad has many 7 different meetings, some illegal, some not illegal some 8 extremist, some not extremist. 9 So someone asked him do you want to do a jihad job. 10 He said yes without knowing anything more about what it 11 entailed, didn't ask why, nothing at all. In April of '98 he 12 is told to rent a little apartment in an area of Tanzania. He 13 obeys that directive. He is given money to pay for it. Not 14 his own. He pays with someone else's money. He uses his own 15 name to rent that apartment, to rent that place. 16 Now is that the work of a clever terrorist? Is that 17 the work of someone who is trying to hide what he's doing 18 because he knows what he's doing is illegal and improper? And 19 is that the work of someone who is sophisticated? Or is that 20 the work of someone who just obeys when he's told to do 21 something, and is at the lowest very rung of the totem pole or 22 the ladder? 23 That's how someone acts when he rents the apartment 24 with someone else's money and uses his own name. For that 25 month, April and May, he and this other person and their SOUTHERN DISTRICT REPORTERS (212) 805-0300 113 12251BI4 Opening - Schneider 1 family move into this place together. 2 Now, I'm going to try not to use names. I'm just 3 going to try to refer to people as what their roles were, so I 4 hope it will make more sense for you, and you won't just be 5 looking out there like all these different names that are 6 unfamiliar to you. 7 Sometime in June he is told to buy a truck. Mr. 8 Butler's right. He was told to buy a particular kind of 9 truck. He was never told why to buy the truck. He never 10 asked: Why do you want the truck? He's told to buy a truck. 11 What does he do? He obeys. He buys the truck. With his 12 money? No. Somebody, the person who told him to buy the 13 truck gave him the money to buy the truck. 14 Again, he uses his own name and the government has 15 the receipt. The government is going to show you the 16 evidence. He has the receipt that he signed his own name for 17 that truck. Sometime later in June, this is when it begins to 18 get a little hairy. Others, two others begin to bring TNT 19 dynamite bomb stuff into the place and they begin to store it 20 there. 21 To show how you knowledgeable he is and how much 22 training he received when he was in Afghanistan in the camps 23 he said: What is that? What is that? He was told. So he 24 knew. I'm not saying he didn't know. I'm not saying he was 25 an unwitting participant. I'm saying he was only told SOUTHERN DISTRICT REPORTERS (212) 805-0300 114 12251BI4 Opening - Schneider 1 whatever he needed to be told at the very last minute because 2 he had no say in what was going to happen in terms of future 3 steps. 4 So he didn't know where the TNT came from. He didn't 5 know who bought it. He just knows that these two people 6 bought it. And he began to store it. And then he is no 7 dummy. He may be used by the higher up, but he's not a dumb 8 young man. He knew sounds like we're probably making a bomb 9 here. He knew it. We're not backing away from the evidence. 10 We're not backing away from the truth now. But he didn't know 11 the location. He didn't know the time. He didn't know the 12 purpose at any point in June of '98. 13 Let's move on a little bit, June-July of '98. We're 14 getting now about a month or two before the bombing. He's 15 told to rent a different house because the first house wasn't 16 good. He obeys. He goes with the leader, the person who is 17 kind of describing things, instructing him, giving him the 18 money, and he goes, and this other person is the one who 19 begins to negotiate with the owner of the apartment or the 20 house for the rent. The other person does the negotiating. 21 The other person actually physically gives KK the money and 22 tells KK: Hand it to him. So KK is the one who physically 23 hands the money. And you know what KK does? He signs the 24 document himself with his own name. 25 Well, what does the leader do? The person who gives SOUTHERN DISTRICT REPORTERS (212) 805-0300 115 12251BI4 Opening - Schneider 1 him the money, the person who tells him what he's supposed to 2 do, the person who tells him that we need a different house 3 the person who negotiates, he witnesses the transfer; and he 4 signs a name, not his own name, he signs an alias, a fake 5 name. 6 So this guy the guy who pays the money, the guy who 7 gives it, who transfers it, signs his own name and the guy who 8 is the leader, the guy who is the organizer, the one who 9 directly is in charge of what has to be done, he's there, he 10 negotiates and he signs an alias, at that time, at that place. 11 So all he does is obey what he's told to do and this 12 truck that he bought was used to carry bomb materials back and 13 forth. Make no mistake about it, it was used. He knew it. 14 He saw it. He knew what was going on. He knew where it came 15 from. He never knew who paid for it or how it was paid for, 16 but he did see it at that time. 17 And at some point about a week or so before the 18 bombing, another individual comes and delivers a truck to the 19 place and leaves the truck there. That truck had already been 20 altered. It had been made specially so that the bomb 21 materials can be used around the truck. So it was altered 22 even before it got to the house. So somebody else must have 23 altered it. It was driven by somebody else, never by him, the 24 Subaru Suzuki truck he bought. He doesn't even know how to 25 drive. He's never driven that car or truck. He doesn't know SOUTHERN DISTRICT REPORTERS (212) 805-0300 116 12251BI4 Opening - Schneider 1 how to drive. There is this expert, someone who you really 2 need to do all of this work in Tanzania. 3 So the truck is delivered already altered. And, by 4 the way, the truck has a padlock on the back. He never had a 5 key to that padlock. He never had access to it, unless 6 somebody else opened it and directed him to go in and bring 7 this or bring things out. 8 Also, a week before the bombing, the technical expert 9 comes. We'll call him the bomb maker, the engineer, the 10 organizer, the one who knew how to make the bomb, the one who 11 knew how to set the bomb, the one who organized it, the one 12 who knew how to grind the TNT. Mr. Butler says that KK 13 Mohamed grinded TNT. Yes, he did, he's right. But he did it 14 after the bomb maker told him, grind the TNT. This is how you 15 do it. This is what you should do. 16 The bomb maker oversaw all of the people who worked 17 on this and told them what had to be done, and how to do it. 18 And the bomb maker was so expert in this he knew exactly what 19 he had to do. He never used a map. He never used a book. He 20 never used a diagram. He just did it because he is the 21 expert. 22 And at that point KK still doesn't know the target of 23 the bomb. He don't know when, he doesn't know where, he 24 doesn't know why. This is a week before the bomb. Also, a 25 week before the bomb, he goes and he gets a visa to go to SOUTHERN DISTRICT REPORTERS (212) 805-0300 117 12251BI4 Opening - Schneider 1 Yemen. 2 Now, sometime after the bomb maker, the expert, 3 comes, someone else is brought to the house. Let's call him 4 the suicide truck driver, because he's the one that's going to 5 be his job to drive the bomb laden truck into the embassy, 6 push a button when it gets there and have it blow up. 7 He helps the bomb maker. He helps, he -- this is the 8 person who does the truck driving, the suicide driver. He 9 helps the bomb maker. They work closely together. It take 10 days and days for them to complete making the bomb, putting 11 wires together, detonators, distributors. In fact, at this 12 point when they bring the cylinders, what does KK say with all 13 of his training and experience in Afghanistan? What are 14 those? What is that? And someone has to tell him those are 15 the cylinders for the bomb. 16 Let's be clear, I am not saying he didn't grind. I 17 am not saying he didn't help carry in the bomb-making 18 materials into the truck. He obeyed his orders. He obeyed 19 his directions. He did what was told. Anybody, anybody could 20 have done what he did then. 21 At that point, even as he's carrying the stuff into 22 the bomb laden truck, as he's bringing them in, he still 23 doesn't know the target. He still doesn't know when. He 24 still doesn't know why. And he's acting because this is what 25 he's told to do. SOUTHERN DISTRICT REPORTERS (212) 805-0300 118 12251BI4 Opening - Schneider 1 Now, a few days before the bomb goes off, the leader, 2 the money man, the guy who gave him more money to always buy 3 things and rent things, the planner, he leaves. He gets out. 4 The bomb isn't even finished yet and the leader is gone. He 5 high tails it out into the wings, and he gives money to KK and 6 said, when it's time for you to leave, here's the money for 7 you. 8 He doesn't even have his money to go and, by the way, 9 the organization never even gave him any kind of a fake 10 passport. They had the ability to make fake identification 11 make fake passports. They had part of the organization that 12 was their expertise. Nobody in this organization, in this 13 cell, in this group, in this mission, no one gave him any kind 14 of identification or passport to leave to use or gave him any 15 kind of a safe route, a safe trip or anything like that. 16 Whatever he did, he did on his own after they all left and 17 left him there on his own to fend for himself. 18 Some of the other people began to leave a couple of 19 days before. Then the bomb expert leaves as well. So who's 20 left? Three days, three days, the bomb is now complete. The 21 bomb maker's going, everybody gone, only people left KK and 22 the suicide driver. 23 Now, Mr. Butler said that you know he stayed there 24 because he was going to help the driver and help, you know, 25 and clean up afterwards. Well, he was there because he was SOUTHERN DISTRICT REPORTERS (212) 805-0300 119 12251BI4 Opening - Schneider 1 the only one who spoke Swahili in that land of Tanzania. 2 Swahili was the dominant language that was spoken by the 3 people, so if anybody came to the house the truck driver, who 4 was there alone, who didn't speak the language, couldn't have 5 dealt with anything, couldn't have said anything, couldn't 6 have sent people away, couldn't have deflected the suspicion 7 from the house. He's got to be there because he is the only 8 one who spoke Swahili, and he was the only one, beside the 9 suicide driver, who was expendable, who was replaceable, who 10 was not necessary for the operation. The operation was about 11 to be completed. It didn't matter if they left him there to 12 do what he had to do. 13 Now, this is kind of like almost a Keystone Kops 14 routine what happens next. A couple of days before the bomb 15 goes off, the truck, because it's so heavy with the bomb, 16 sinks. It just kind of like goes down in the sand. And the 17 driver comes out and sees it, and he says: Whoa, what's this? 18 What's going to be now? We have a truck, a bomb, a bomb a 19 giant bomb that's going to be there, and the truck just kind 20 of goes down. 21 They don't know what to do this. This guy he's not 22 the planner. He's not the leader. He doesn't know what to 23 do. He doesn't have the money. He has no idea what to do. 24 He sits there. What do they do? They try to dig it out. 25 They're not successful. They leave it there and do nothing. SOUTHERN DISTRICT REPORTERS (212) 805-0300 120 12251BI4 Opening - Schneider 1 You have a bomb truck sitting in a, near a red near a 2 house, sunk in the sand. They do nothing about it because he 3 has no idea what to do. He doesn't even know where it's 4 supposed to go, when it's supposed to go, how it's to be. He 5 don't know. He's a nobody. He's a nothing. So they just sit 6 there and let the truck sit in the sunken sand. 7 A day or so later, suicide driver gets a phone call 8 on a cell phone and it turns out -- I'm sorry -- gets a phone 9 call on a cell phone, excuse me, pardon me. 10 (Pause) 11 And he's no dummy, the driver. The driver says to 12 the people who are talking to him: Er, by the way, truck is 13 stuck in the sand and I need a little help here. And at that 14 point people on the phone say to him: You know what? Go get 15 a second truck and that second truck can be used to pull the 16 other truck out of the sand if necessary. 17 Now, he didn't think of that. He didn't take any 18 action for the two or three days or two days that the truck 19 was sitting in the sand. He did nothing. He had no idea what 20 to do. He had no resources to do anything. He had no 21 initiative. Had he no ideas, no plans, no ability to do 22 anything. So they sat there and they waited and luckily, 23 lucky for them, unlucky for the rest of the world, that 24 somebody called up and said: Get a second truck. 25 By the way, this cell phone that was used he never SOUTHERN DISTRICT REPORTERS (212) 805-0300 121 12251BI4 Opening - Schneider 1 even had access to the cell phone. One of the people had 2 access to the cell phone. When he left, he gave it to the 3 suicide driver that he used. He wasn't allowed to use it. He 4 made one phone call one time in the time he was there on that 5 cell phone to call his family to tell his nephew to come to 6 the house, to tell his sister to tell his nephew to come to 7 the house to get something. 8 Now, August 7, 1998, the day that brought us here. 9 He gets a bus ticket. He's told that's the time it's supposed 10 to happen. He goes. He rents a truck with the money that had 11 been given to him by the leader. And he gets a driver of the 12 other truck, because he didn't drive it, he doesn't know how 13 to drive a truck of any kind. 14 At that point, sometime in the morning, the suicide 15 driver gets in the truck, the bomb-laden truck, and tests it, 16 see if it could work, and they get it out. At that point KK 17 gets in the truck with the suicide bomber in the passengers 18 seat. Driving a little bit fast, goes with him a little bit 19 past the house to a place called Urur Road. There is an 20 intersection there. You'll see it on some maps or evidence 21 during the government's presentation. 22 KK gets out. Before this particular run, before this 23 drive on August 7th, there had been no dry run so to speak. 24 There had been discussions as to what route should be taken 25 with KK. There was no discussion as to where we should drive, SOUTHERN DISTRICT REPORTERS (212) 805-0300 122 12251BI4 Opening - Schneider 1 when we should drive, how fast, what route to take, who's 2 going to do it. There were no discussions at all ever by him 3 on that day regarding the route or the truck was going to 4 happen. 5 So he gets out, and at that point the reason he gets 6 out because he's of no use to the driver. You know why? He 7 doesn't even know where the embassy is. He had never been to 8 the embassy in his life. He had never seen the embassy 9 before. He had no special knowledge of the embassy or the 10 roads or the routes or the best way to go. 11 He just was there to make sure the truck was there 12 with the driver, and that he spoke Swahili. That was it. He 13 gets out of the truck. He doesn't drive it part of the way to 14 make sure the guy goes down. He gets out in the very 15 beginning and miles away, is when the truck goes to the 16 embassy. He pays the rental driver and that guy goes on his 17 way. And then he sits in the house. 18 He never hears the blast. He never hears the 19 explosion. He learns about it on the radio. And at some 20 point he calls his nephew. Now, this is the kind of guy 21 you're talking about, okay? This is just a world terrorist 22 bomb crazy person. He calls his nephew and tells his nephew, 23 I need you to come to the house and in case you rent the house 24 you should give to my mother and I have some items that I want 25 to give to you and to give to my sister. What are those SOUTHERN DISTRICT REPORTERS (212) 805-0300 123 12251BI4 Opening - Schneider 1 items? A mattress, some kitchen items, curtains, a child's 2 toilet seat, and carpets. 3 And I won't forget, a grinding thing, the thing that 4 was used for grinding the TNT. So when the government says 5 that he was there to clean up afterwards, that he was there to 6 get rid of the evidence, no, no. He was there just to finish 7 up and he gave the grinding to his family to give to his 8 mother with the children's toilet seat and the carpets. 9 That's the kind of simplistic man he is. That's the kind of 10 that's where he comes from, island of Pemba. He's in this 11 world of Islamic resistance, so what he thinks about the bomb 12 is giving some of these pieces of property to his family. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 124 125kbin5 Opening - Mr. Schneider 1 MR. SCHNEIDER: (Continued) Now, the day after the 2 bombing he does use in fact false identification that he had 3 to leave, and he takes a bus or train, he does leave, and he 4 goes away. He travels to South Africa. When he traveled to 5 South Africa, he traveled alone. He did not use any of the 6 identification, passport or visa or anything supplied by any 7 organization. 8 He arrived in Capetown a couple of days later and he 9 got a job -- as a trainer? No. Did he get a job in an 10 Islamic mission to do any kind of jihad? No. He got a job at 11 Burger World. Burger World, flipping burgers. In 1998, 12 September of 1998. That's how he spent his life. He went to 13 work every day. He studied his religion. In fact, after 14 about a month or so he moved into his boss's house with his 15 boss's family. That's where he lived. That's the kind of 16 life he lived after this happened. 17 This is the kind of guy you're talking about, this 18 expendable, nonessential, unnecessary pawn in this whole 19 event. 20 When he lived there, he just went to work every day. 21 He studied. In fact, he even tutored his boss's wife and his 22 boss's son in the Koran. He never had any meetings, he never 23 got any letters, he didn't get any calls. He had nothing 24 connected to any of these past activities or anticipated 25 future activities. SOUTHERN DISTRICT REPORTERS (212) 805-0300 125 125kbin5 Opening - Mr. Schneider 1 This is interesting. Before he left Tanzania, he was 2 given three phone numbers by one of the other members there 3 that were with him, who said in case he needed help he should 4 use one of these three numbers to call. Almost a year later, 5 in June 1999, he makes a phone call, somebody answers, and -- 6 this highly organized mission, this extremely intelligent, 7 financially secure terrorist organization. He makes a phone 8 call and then when the guy answers, the phone call is cut off. 9 The guy answered the phone, the 20 rands on the phone card run 10 out, that's it, never calls back, person doesn't call him 11 back, that's the end of that. He says OK, let me try the 12 second number, not because he needed help, just to see. He 13 calls a second number, the machine answers, wrong number. OK, 14 let me try the third number. He tried the third number. It 15 never worked. He is left out in the cold, fend for yourself. 16 The three numbers he was given, nobody there for him at any 17 point in time. 18 When he is in South Africa, he applies for political 19 asylum under false identification. October 5 he is arrested 20 and questioned by agents. He speaks to them the 5th, the 6th, 21 and the 7th. 22 This Tanzanian bombing, it required concerted, 23 concentrated, coordinated effort by a number of different, 24 specialized people. The government has shown you, they showed 25 you in their opening and they will show you during their SOUTHERN DISTRICT REPORTERS (212) 805-0300 126 125kbin5 Opening - Mr. Schneider 1 presentation of evidence the role that K.K. Mohamed played. 2 They will show you that the role that he played was purely, 3 merely a pawn in this much greater, larger, this much more 4 devious, worldwide, chess-game conspiracy. But all they will 5 show you is that he was a willing participant, someone who was 6 willing to do what he was told to do. The leaders, the higher 7 ups, the policy makers, people like that in these kinds of 8 organizations, they manage to insulate themselves, they manage 9 to protect themselves, and they manage to expose, to sacrifice 10 and to just leave out in the cold the people at the bottom, 11 the workers, the ones who don't matter. 12 When I spoke to you earlier about a hierarchy of evil 13 and I talked to you about different motives in that hierarchy 14 of evil? Well, what about evil people versus evil deeds? I 15 need you to look over at K.K. Mohamed, OK. He is not, he is 16 not, the government will not be able to prove that he is an 17 evil person. They will prove, I suggest to you, that he 18 participated in an evil act, just because the higher ups are 19 prepared to sacrifice this pawn. We are asking you after the 20 government's evidence not to sacrifice this pawn. He is not 21 an evil person, recognizing evil as evil. Thank you. 22 THE COURT: Thank you. Mr. Cohn on behalf of 23 Al-'Owhali. 24 MR. COHN: Your Honor, at this time Mr. Al-'Owhali 25 relies on the right to put the government to its proof and SOUTHERN DISTRICT REPORTERS (212) 805-0300 127 125kbin5 1 waives opening. 2 THE COURT: Very well. Al-'Owhali waives opening. 3 Ladies and gentlemen, you recall I told you that was a right 4 and an option available to a defendant. 5 Ladies and gentlemen, we are going to call it a day. 6 Couple of things. 7 There is certainly going to be a lot of press 8 tomorrow or this evening about the opening of this trial. 9 Please remember what I said about discipline, and please don't 10 read it, don't watch it. 11 Please allow time so that you are not delayed by the 12 weather tomorrow morning, and follow the same timetable with 13 the marshals that you followed today. 14 Have a good evening, and we will see you tomorrow. 15 (Jury excused) 16 THE COURT: We will take a 10-minute recess, and then 17 I will see counsel and the reporter in the robing room to take 18 up the matters that we discussed earlier, and we are adjourned 19 for that purpose. 20 MR. WILFORD: Excuse me, your Honor. There is 21 something that I would also like to take up in the robing 22 room. 23 MR. RUHNKE: Your Honor, you do not require our 24 clients any longer? 25 THE COURT: I do not need the clients. I understand SOUTHERN DISTRICT REPORTERS (212) 805-0300 128 125kbin5 1 we will be taking up legal issues. The clients may be there 2 but are not required. 3 (Recess) 4 (Pages 129 through 157 sealed) 5 (Proceedings adjourned until Tuesday, 10:00 a.m., 6 February, 6, 2001) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300
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