28 February 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 11 of the trial, February 27, 2001.

See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm


   2   ------------------------------x


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

   7   ------------------------------x

                                               New York, N.Y.
   9                                           February 27, 2001
                                               9:50 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge













   1                            APPEARANCES

            United States Attorney for the
   3        Southern District of New York
   4        KENNETH KARAS
            PAUL BUTLER
   5        Assistant United States Attorneys

   8        Attorneys for defendant Wadih El Hage

  11        Attorneys for defendant Mohamed Sadeek Odeh

  13        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

            Attorneys for defendant Khalfan Khamis Mohamed











   1            (Trial resumes; jury not present)

   2            THE COURT:  Are there any matters that need be

   3   addressed before the jury is brought in?

   4            MR. FITZGERALD:  No, Judge.  I think Mr. Dratel is

   5   going to lend me something that I needed, and we're good to

   6   go.

   7            THE COURT:  All right.

   8            MR. FITZGERALD:  Thank you, Judge.

   9            THE COURT:  The witness can resume the stand.

  10            The government's requests to charge is due on March

  11   the 9th.  Defendants' requests to charge are due on March

  12   23rd, March 23rd.  That is, the defendants on that day are to

  13   reply to the government's requests and to furnish any

  14   additional requests to charge.  Obviously I will entertain

  15   requests to charge subsequent to that date based on any

  16   subsequent developments in the case.

  17            It is my practice to give the jury a written copy of

  18   the charge while it is being delivered.  For that reason and

  19   for other reasons, I am very strict about not entertaining

  20   perfectly valid and proper requests to charge which are not

  21   made at the charging conference or prior thereto.  I do that

  22   not simply because of the logistics of modifying a charge

  23   which is given to the jury in writing, but because any

  24   supplemental instructions to the jury get blown out of

  25   proportion.


   1            So please understand that the requirement that the

   2   requests to charge which can be made at an earlier date will

   3   not be entertained at the 11th hour, the 11th hour being the

   4   charging conference, unless the circumstances indicate that

   5   the request could not have been made earlier.

   6            All right, let's bring in the jury, please.

   7            Counsel for Al-'Owhali will next cross-examine the

   8   witness, to be followed by Mr. Ruhnke on behalf of K.K.

   9   Mohamed.

  10            MR. COHN:  That's right, Judge.

  11            (Jury present)

  12            THE COURT:  Good morning.  Just one other matter of

  13   logistics, and that is on Tuesday, March 6th, we will start at

  14   1:30.  That's going to be post lunch and that is just for that

  15   day.

  16            I think our next order of business is

  17   cross-examination on behalf of defendant Al-'Owhali by Mr.

  18   Cohn.



  21   BY MR. COHN:

  22   Q.  Yesterday, Mr. Kherchtou, Mr. Wilford asked you some

  23   questions about scholars disagreeing about the killing of the

  24   women, children and innocents.  Remember those questions?

  25   A.  Yes.


   1   Q.  It is a fact, is it not, Mr. Kherchtou, that no fatwah

   2   issued by Usama Bin Laden or anybody else has called for the

   3   killing of innocents, isn't that true?

   4   A.  Well, I don't remember the statement of Usama Bin Laden.

   5   Q.  You don't know?

   6   A.  Yes.

   7   Q.  So what you were talking about with Mr. Wilford was

   8   speculation about if it had happened, then that's what would

   9   have been the result; is that right?

  10            (Witness consults with interpreter)

  11   A.  What I know, sir, is --

  12   Q.  Is that right, yes or no?

  13            (Witness consults with interpreter)

  14   A.  (Through the interpreter) The answer is no.

  15   Q.  It's not speculation?  Have you ever seen an affidavit --

  16   a fatwah issued by Mr. Bin Laden that called for the killing

  17   of innocents and women and children?

  18            (Witness consults with interpreter)

  19   A.  (Through the interpreter) I heard of the statement --

  20   Q.  Have you ever seen a fatwah?

  21            MR. FITZGERALD:  May he complete the answer, your

  22   Honor?

  23            MR. COHN:  Your Honor, may the answer be

  24   responsive -- not what he heard, but has he seen is the

  25   question.


   1            THE COURT:  All right.  I'll permit that question to

   2   be asked and permit counsel to inquire further on redirect if

   3   it sees fit.

   4            MR. COHN:  Good.

   5   Q.  Have you ever seen such a fatwah?

   6   A.  (Through the interpreter) No.

   7   Q.  Let me show you what has been marked as Government Exhibit

   8   1600-T in evidence.

   9            MR. COHN:  Your Honor, may I approach as needed

  10   without asking each time?

  11            THE COURT:  Yes.

  12            MR. COHN:  Thank you.

  13   Q.  Have you ever seen that document before.

  14            (Witness consults with interpreter)

  15            THE COURT:  Are you showing him the English version?

  16            MR. COHN:  Yes.

  17   A.  (Through the interpreter) No, but I heard about it.

  18   Q.  Fine.  So you don't know from seeing it whether there is

  19   any such reference to killing women, children and innocents in

  20   it, do you?

  21            (Witness consults with interpreter)

  22   A.  (Through the interpreter) What evidence?

  23   Q.  Excuse me?

  24            THE INTERPRETER:  The question which was posed by the

  25   witness is, what evidence?


   1   Q.  Sir, you do not know from seeing that document whether it

   2   has anything in it about killing women, children and

   3   innocents, do you, from seeing it?

   4            (Witness consults with interpreter)

   5            THE INTERPRETER:  You want him to read it?

   6            MR. COHN:  No, I think he's never read it.

   7            Never mind.  The point's made, I'll withdraw it.

   8            THE COURT:  That comment is stricken and please avoid

   9   similar comments.

  10            MR. COHN:  Thank you, your Honor.

  11   Q.  Let's turn to August 7th, 1998.  That was the day you were

  12   arrested at the airport, is it not?

  13            (Witness consults with interpreter)

  14   A.  (Through the interpreter) No.

  15   Q.  August 7th, 1998, the day of the bombing?

  16            (Witness consults with interpreter)

  17   A.  (Through the interpreter) I was arrested on the 11th of

  18   August.

  19   Q.  On the 11 of August, okay.

  20            Would you prefer to do this in Arabic, through

  21   translation?  Does that make you more comfortable, sir?

  22            (Witness consults with interpreter)

  23   A.  (Through the interpreter) It's the same.

  24   Q.  Fine, but we are -- you are turning to the interpreter on

  25   every question.  I just want to get a system done that we can


   1   do this.  Which do you prefer?

   2            (Witness consults with interpreter)

   3   A.  (Through the interpreter) Sometimes some of the words I do

   4   not understand and I want to make sure that I'm giving the

   5   correct answer.

   6   Q.  Well, you were interviewed in Nairobi for four days by

   7   someone where there was a recording.  Do you remember you

   8   talked to Mr. Wilford about that?

   9   A.  Yes.

  10   Q.  And those interviews were done in English, were they not?

  11   A.  Yes.

  12   Q.  Four days' worth?

  13   A.  Yes.

  14   Q.  Was there an interpreter there?

  15   A.  No.

  16   Q.  You managed?

  17   A.  Yes.

  18   Q.  So you were arrested on the 11th; is that right?

  19   A.  Yes, sir.

  20   Q.  And you in fact had been concerned that you might be

  21   arrested after the bombing; is that right?

  22   A.  Yes.

  23   Q.  But when you were arrested at the airport, you were

  24   initially told that you were not under arrest, isn't that

  25   true?


   1   A.  Yes.

   2   Q.  And you were taken to some precinct or other; is that

   3   right?

   4            (Witness consults with interpreter)

   5   A.  Yes.

   6   Q.  What time of day was that?

   7   A.  Around 9 or 10:00 in the p.m.

   8   Q.  P.M.?

   9   A.  Yes.

  10   Q.  Were you questioned at all that night?

  11   A.  No.

  12   Q.  Were you advised of any rights at all that you might have?

  13   A.  No.

  14   Q.  Were you told whether or not you were under arrest?

  15   A.  No.

  16   Q.  And where did they put you?  Did they put you in some sort

  17   of cell?

  18   A.  Yes.

  19   Q.  Describe the cell.

  20   A.  Well, it's a small room with many other criminals and no

  21   bathroom in it and nothing on the floor in which you can

  22   sleep.  It has only one small window on the top of the cell,

  23   and I think -- during the night, they closed the door and they

  24   came back at 2:00 to make a check for everybody.

  25   Q.  Just describe the cell for us.  I'll ask you about other


   1   things.  I'm just asking for a physical description of the

   2   cell at the moment.  Have you finished with that?

   3   A.  It's a small room, maybe four meters by four.

   4   Q.  Now, did you have a mattress?

   5   A.  No.

   6   Q.  Did you have a blanket?

   7   A.  No.

   8   Q.  Were there any washing or shower facilities available to

   9   you?

  10   A.  There is a restroom in the other part, but if it's closed,

  11   they gave us --

  12            (Witness consults with interpreter)

  13   A.  (Through the interpreter) -- a water jar or something.

  14   Q.  And that was for drinking water?

  15   A.  No.

  16   Q.  For bathing?

  17   A.  For if you had to --

  18            (Witness consults with interpreter)

  19   A.  (Through the interpreter) Just to piss in it.

  20   Q.  I'm sorry, I didn't catch it.

  21   A.  Just to piss in it.

  22   Q.  For elimination of your body waste?

  23   A.  (Through the interpreter) Urinate in.

  24   Q.  But they gave you nothing to wash your hands with or to

  25   shower or to prepare yourself to pray or anything like that;


   1   is that right?

   2   A.  Well, there is a toilet and bathroom where you can wash

   3   your hands, but if the door is open you can go there.

   4   Q.  But the door wasn't open, right?

   5   A.  During the night it's not open.

   6   Q.  I see.  Well, in fact -- well, we'll get to that.

   7            Now, even before you were arrested you were concerned

   8   about the Kenyan police, were you not?

   9   A.  Yes.

  10   Q.  I mean, you already knew that they were corrupt because

  11   they had purchased -- they made you bribe them on your

  12   brother's behalf, right?

  13   A.  Yes.

  14   Q.  And when I say they were corrupt, I'm not inferring that

  15   all Kenyan police were corrupt, but that there was a

  16   corruption problem, right?

  17   A.  Yes.

  18   Q.  Which you in fact thought was fairly systemic, did you

  19   not?  Do you understand that?  That it was widespread

  20   throughout the department?

  21            MR. FITZGERALD:  Objection, your Honor.

  22            MR. COHN:  It's his state of mind that I'm concerned

  23   about, your Honor, not what he knows.

  24            THE COURT:  I'll allow it as not for the truth but

  25   for this witness's understanding.


   1            (Witness consults with interpreter)

   2   A.  Yes.

   3   Q.  And in fact, by the 11th when you were arrested you knew

   4   that there had been widespread deaths, destruction and

   5   injuries to Kenyan citizens, didn't you?

   6   A.  Yes.

   7   Q.  And so at the time you were arrested, is it fair to say

   8   that you were concerned about the Kenyan police's reaction to

   9   that.

  10            (Witness consults with interpreter)

  11   A.  Yes, sir.

  12   Q.  Did anybody interview you on the 12th, the next day after

  13   you were arrested?

  14   A.  No.

  15   Q.  Did anybody come to see you, tell you whether or not you

  16   were going to be arraigned or could see a lawyer or what was

  17   going on with you?

  18   A.  No.

  19   Q.  What about the 13th?

  20   A.  No.

  21   Q.  14th?

  22   A.  I think on the 14th.

  23   Q.  What happened on the 14th?

  24   A.  It was two days or three days after that, some people came

  25   to me and they were interrogating me.


   1   Q.  You say the 13th or the 14th.  Are the people that began

   2   interrogating you at that time the Kenyan police, or was it

   3   somebody else, some person from another country?

   4   A.  Somebody took me to meet that person.

   5   Q.  And you say that was three or four days after you were

   6   arrested?

   7   A.  Yes, sir.

   8   Q.  Is that right?

   9   A.  Yes.

  10   Q.  Let me direct -- have you had an opportunity to look at

  11   the 800-page transcript of your interviews from that period?

  12            MR. COHN:  I'm referring, your Honor, to, for the

  13   record, I believe it's 3505-29.

  14   Q.  Have you had a chance to read that in preparation for your

  15   testimony?

  16   A.  I don't remember the --

  17   Q.  It was a big stack of paper about this high which had what

  18   purports to be a transcript of the recording that was made of

  19   your debriefings.  Have you looked at it?

  20            (Witness consults with interpreter)

  21   A.  (Through the interpreter) Which interrogation?

  22   Q.  The interrogation that took place over four days by this

  23   person who wasn't a Kenyan that you say was three or four days

  24   after you were arrested.

  25            (Witness consults with interpreter)


   1   A.  (Through the interpreter) No, nobody showed me that.

   2   Q.  Okay.  Well let me show you now pages 352 through 355.

   3            MR. COHN:  Bear with me one second, your Honor.

   4   Q.  I'm sorry, that's the wrong reference.

   5            While I'm looking for this, how many days did this

   6   interrogation take?  Was it four, is that a fair statement,

   7   four days in a row?

   8   A.  I don't remember exactly, but probably four or five times.

   9   Q.  How long were these interrogations, each of them, if you

  10   can say?

  11   A.  It depends.  The first one was very short and the others,

  12   they are quite longer.

  13   Q.  Let me show you what is page 97 of that transcript.

  14            THE COURT:  You want to ask a question before you do

  15   that?

  16            MR. COHN:  It's a refreshment question, your Honor.

  17            THE COURT:  As to what are you refreshing his

  18   recollection?

  19            MR. COHN:  I will --

  20            THE COURT:  Go ahead.

  21            MR. COHN:  Fine.

  22   Q.  Let me show you page 97 and ask you to look at the top and

  23   ask you if that refreshes your recollection as to what the

  24   dates of your interrogation were.

  25            Have you looked at it?


   1            Isn't it a fact that your interrogation was --

   2            THE COURT:  Wait a minute.  You had a question asked

   3   and there is no answer.  The question isn't what it says

   4   there, but having looked at that, does that refresh your

   5   recollection so that you now remember the dates of your

   6   questioning?

   7   BY MR. COHN:

   8   Q.  Does it refresh your recollection?

   9   A.  Yes.

  10   Q.  What is your refreshed recollection?  What were the dates

  11   of your interrogation?

  12   A.  No, this date, it was -- he was talking about the letter

  13   that issued right to my wife.

  14   Q.  Sir, does it refresh your recollection about what dates?

  15   I'm not asking what it refers to, I'm asking does it refresh

  16   your recollection, and if so, what are the dates?

  17   A.  It's 19th.

  18   Q.  The 19th was one of the days of your interrogation?

  19   A.  Yes.

  20   Q.  Was that the last day of your interrogation or was it the

  21   second day of your interrogation?

  22   A.  No, it was one of the last days.

  23   Q.  And that's page 97 of an 800-page transcript; is that

  24   right?

  25   A.  It's 97, yes.


   1   Q.  During the time that you were being held, including the

   2   time that you were interrogated, did the Kenyan police ever

   3   prefer charges against you?

   4            (Witness consults with interpreter)

   5   A.  No.

   6   Q.  And in fact, during that time you got no reading material;

   7   is that right?

   8            (Witness consults with interpreter)

   9   A.  On the last days in the cell they brought me some

  10   newspapers.

  11   Q.  The last days?

  12   A.  Yes.

  13   Q.  That was after, in fact, you asked your interrogator to

  14   please get you some, at least a newspaper to read, isn't that

  15   right?

  16   A.  Yes, at the last time, yes.

  17   Q.  So before that you had nothing to read to pass the time,

  18   including the four days you say you weren't even questioned at

  19   all?

  20   A.  Yes.

  21   Q.  And in fact, you asked your interrogator please to be able

  22   to get you to bathe or get -- because you were filthy, you

  23   smelled bad; is that right?

  24   A.  Yes.

  25   Q.  And you were ashamed of that, weren't you?


   1   A.  Yes.

   2   Q.  I mean, you are a religious person; is that right?

   3   A.  Yes.

   4   Q.  And you pray five times a day?

   5   A.  Yes.

   6   Q.  And you are required before you pray to wash?

   7   A.  Yes.

   8   Q.  And you had no water to wash with, right?

   9   A.  Well, sometimes it's difficult to find a clean place to

  10   wash.

  11   Q.  Okay.  Fine.

  12            In fact, if there is no water available, you were

  13   allowed to use clean earth instead; is that right?

  14   A.  Yes.

  15   Q.  And there wasn't any of that either because the floor was

  16   filthy because it was used as a toilet, isn't that right?

  17   A.  Yes.

  18   Q.  And when you wanted to sleep, if you could sleep, you had

  19   to lay down in the filth until this man who was interrogating

  20   you got you a blanket and a mattress or pallet, isn't that

  21   right?

  22   A.  Yes.

  23   Q.  And you complained to your interrogator that the Kenyan

  24   police were treating you like an animal, isn't true?

  25   A.  It was once.


   1   Q.  Yes, it was once.  Is that right, but you did complain

   2   about it?  You said that, didn't you?

   3   A.  Yeah, because I didn't sleep, I told him I was --

   4            THE COURT:  Can you repeat your answer?

   5   A.  I said I was trying to sleep, I was tired.  He wanted to

   6   interrogate me.  I said I couldn't because I'm tired.

   7   Q.  Did you say at page 297 of the transcript that --

   8            MR. FITZGERALD:  Objection, your Honor.

   9            THE COURT:  Sustained.

  10   Q.  Did you use the words "this guy treats me like an animal"?

  11            MR. FITZGERALD:  Asked and answered, your Honor.

  12            MR. COHN:  I don't think so, your Honor.

  13            THE COURT:  No, he did.

  14   BY MR. COHN:

  15   Q.  In fact, you told him at one point you couldn't sleep

  16   because you were cold, because the cell was kept so cold,

  17   isn't that true?

  18   A.  Yes.

  19   Q.  And isn't it a fact, sir, that from the time you were

  20   arrested until the time you -- I think you took a plane out of

  21   there on the 21st; is that right?

  22   A.  Yes.

  23   Q.  Ten days passed; is that right?

  24   A.  Yes.

  25   Q.  And is it fair to say, sir, that until the very last day


   1   you didn't know whether they were going to put you on a plane;

   2   they kept you, they kept you wondering about that, yes?

   3   A.  Yes.

   4   Q.  Now, it's also true, is it not, sir, that this person told

   5   you how to lie, isn't that right?

   6            (Witness consults with interpreter)

   7   A.  (Through the interpreter) Lie to whom?

   8   Q.  Fine, did he tell you how to create a cover?

   9   A.  Yes.

  10   Q.  And to create a cover, you had to tell untruths, right?

  11   You couldn't tell the people that you were trying to keep from

  12   finding out that you had been interrogated in this way the

  13   truth or they would find out, right?

  14   A.  Yes.

  15   Q.  And did he tell you in fact that the best way to have a

  16   cover and to tell these untruths was to keep it as close to

  17   the truth as you possibly could so that there would be a large

  18   measure of truth in your lie?

  19   A.  Yes.

  20            MR. COHN:  I have nothing further.

  21            THE COURT:  Mr. Ruhnke, on behalf of defendant K.K.

  22   Mohamed.


  24   BY MR. RUHNKE:

  25   Q.  Mr. Kherchtou, to keep your testimony entirely accurate,


   1   I'm going to ask that you answer questions using the

   2   interpreter throughout your testimony.

   3   A.  Okay, sir.

   4   Q.  Sir, you were approximately 26 or 27 years old when you

   5   decided to go to Afghanistan; is that correct?

   6   A.  Yes.

   7   Q.  You had grown up in Morocco, correct?

   8   A.  Yes.

   9   Q.  You had graduated from high school and also taken some

  10   training in the field of catering, correct?

  11   A.  Yes.

  12   Q.  And after your training in catering, you lived in Europe

  13   for a number of years, living in both France and Italy; is

  14   that correct?

  15   A.  Yes.

  16   Q.  And by your own admission, until you went to Italy and had

  17   contact with the people in Italy, you did not consider

  18   yourself a very good Muslim; is that correct?

  19   A.  Yes.

  20   Q.  For example, you used to drink alcohol, which is forbidden

  21   by Islam; is that correct?

  22   A.  No, I did not drink alcohol.

  23   Q.  In any event, you came to the time when you went to Italy

  24   and you began talking about what was going on in Afghanistan

  25   with other Muslims; is that correct?


   1   A.  Correct.

   2   Q.  At the time, as you say, you were 26, 27 years old, you

   3   were not married, you had no family, you were young, and it

   4   was something of an adventure, was it not, to go to

   5   Afghanistan?

   6   A.  It was a duty as a Muslim.

   7   Q.  Did you describe it as an adventure to the foreign

   8   intelligence officer that you met in Kenya after the bombing?

   9   A.  If I have said that, so that would be correct.

  10   Q.  Do you recall being asked this question and giving these

  11   answers by the case officer who interviewed you, talking about

  12   your decision to go to Afghanistan -- these are your words:

  13   "So he was talking a lot about Afghanistan.  You have to help

  14   your people to do this, to do this, to do this."

  15            MR. RUHNKE:  You want to translate my sentence.

  16   A.  If I had said that, so that would be correct.

  17   Q.  And then you said to this case officer:  "And some

  18   Egyptian friend, like the one who was killed in Chechnya is a

  19   very good guy.  He told me, what do you think?"

  20   A.  I do not recall this conversation.

  21   Q.  I'm going to show you a document that I believe has a

  22   Jencks number, and I'll ask you to look at the bottom of page

  23   324 of that document on to page 325.

  24   A.  The bottom of here?

  25   Q.  The bottom of 324 onto the top of 325.  Would you look at


   1   that, please.

   2            (Pause)

   3   Q.  Have you now read that?

   4   A.  (In English) Yes.

   5   Q.  Does that help you remember what you told the case officer

   6   back in August of 1998?

   7   A.  At that time I was in jail I do not quite recall each word

   8   that I have said, but --

   9   Q.  Does this appear to be an accurate transcript of what you

  10   told the officer back in August of 1998?

  11   A.  Possibly it is correct.

  12   Q.  Did you tell the officer, "We are young.  We don't know

  13   anything.  Let's go.  It's an adventure of young.  Yeah, let's

  14   go.  And we went."

  15            Did you use those words to the case officer back in

  16   August of 1998 or did you not use those words?

  17   A.  I do not quite recall each word that I have articulated,

  18   but when I saw this, it's very possible that I have said that.

  19   Q.  Now, your purpose, in any event, was to go help Muslims

  20   who were in trouble; is that correct?

  21   A.  Correct.

  22   Q.  And you traveled to, first to Karachi, which is in

  23   Pakistan, correct?

  24   A.  Yes.

  25   Q.  And from Karachi, Pakistan you traveled to Peshawar,


   1   Pakistan, correct?

   2   A.  I went to Islamabad then Peshawar.

   3   Q.  And Peshawar is a town, it's been established, that is

   4   near the border to Afghanistan, correct?

   5   A.  Correct.

   6   Q.  At the time you went to Afghanistan, were the Russian

   7   troops still in Afghanistan?

   8   A.  They Communist's regime was there and there were Russians

   9   assisting them.

  10   Q.  But the Russian army had withdrawn from Afghanistan by

  11   that point; isn't that correct?

  12   A.  Correct.

  13   Q.  And what was going on in Pakistan at that point was that

  14   the Russians had been driven out by the mujahadeen and now

  15   they had returned to kicking out or overthrowing the

  16   Russian-backed government, correct?

  17   A.  Correct.

  18   Q.  You underwent training for approximately two months,

  19   correct?

  20   A.  Correct.

  21   Q.  And you trained in a camp in Afghanistan, correct?

  22   A.  Yes.

  23   Q.  Did this camp look like what we imagine a military base to

  24   be like, made up of permanent buildings, thousands of people

  25   there, or what did it look like?


   1   A.  No, it was a small camp.

   2   Q.  How many people were in the camp when you were there,

   3   including your trainers and people being trained?

   4   A.  It varied from time to time, but it never exceeded a

   5   hundred.

   6   Q.  After your training you were spoken to privately and asked

   7   to become a member of al Qaeda, is that true?

   8   A.  Yes, and there were other people with me.

   9   Q.  To your knowledge, how many people in your training group

  10   other than you and your friend, the veterinarian, the animal

  11   doctor, were asked to become members of al Qaeda?

  12   A.  Between three and five.

  13   Q.  And how many people were in your training group?

  14   A.  It varied between ten and twelve.

  15   Q.  Ten to twelve in your group?

  16   A.  Yes.

  17   Q.  And after being asked to become a member of al Qaeda, they

  18   asked you to take training -- "they" meaning al Qaeda as

  19   leaders -- asked you to take training as a pilot, correct?

  20   A.  When?  When was that?  After I graduated?  After I joined

  21   al Qaeda?

  22   Q.  After you joined al Qaeda, you were asked to take training

  23   as a pilot, correct?

  24   A.  I joined the al Qaeda in 1991 and I was offered the

  25   training to be a pilot in 1993.


   1   Q.  You also swore what we refer to as a bayat or a pledge to

   2   al Qaeda, correct?

   3   A.  Yes.

   4   Q.  And you understood your purpose in al Qaeda was to fight

   5   for Islam and to do good things for Muslims all over the

   6   world, correct?

   7   A.  Correct.

   8   Q.  As your beliefs progressed as a member of al Qaeda, you

   9   came to understand that one purpose of al Qaeda was to kill

  10   American nationals abroad, isn't that true?

  11   A.  Yes.  Correct.

  12   Q.  And you became aware of the structure of al Qaeda.  You

  13   knew, for example, that Usama Bin Laden was the emir or the

  14   leader of al Qaeda, correct?

  15   A.  Yes.

  16   Q.  The number two person in al Qaeda until he was killed in

  17   the ferry accident on Lake Victoria in 1996 was Abu Ubaidah al

  18   Banshiri, correct?

  19            THE INTERPRETER:  Can you kindly say the name again?

  20   I could hardly understand.

  21            MR. RUHNKE:  That's probably not your fault.

  22            Abu Ubaidah al Banshiri.

  23   A.  Yes.

  24   Q.  And that the military commander of al Qaeda was a man who

  25   was known as Abu Hafs, correct?


   1            THE INTERPRETER:  Abu who?

   2            MR. RUHNKE:  Hafs, H-A-F-S.

   3   A.  Abu Hafs, correct.

   4   Q.  And until Abu Ubaidah al Banshiri was killed in the ferry

   5   accident, Abu Hafs was number three in the al Qaeda

   6   leadership, correct?

   7   A.  Yes.

   8   Q.  And then he became number two after the death of the

   9   gentleman in the ferry accident, correct?

  10   A.  Yes.

  11   Q.  And al Qaeda had a ruling council called the shura

  12   council, shura committee; is that correct?

  13   A.  The shura council.

  14   Q.  And there were other committees that made up the structure

  15   of al Qaeda, correct?

  16   A.  Yes.

  17   Q.  For example, there was a religious committee that ruled on

  18   religious-type issues, correct?

  19   A.  Yes.

  20   Q.  And did you become aware as a member of al Qaeda that

  21   there was a man known as Abu Hajer al Iraqi?

  22   A.  Yes, he was present.

  23   Q.  Do you know that his correct name is Mamdouh Mahmud Salim?

  24   A.  I heard of his name.

  25   Q.  When I refer to Mr. Salim, I will be referring to Abu


   1   Hajer al Iraqi, okay?

   2   A.  Okay.

   3   Q.  Did you later come to learn that Mr. Salim had issued a

   4   statement that it was Islamically correct that in attacking

   5   enemies of Islam, if civilians were killed in that process,

   6   that that would be permissible since if they were good people,

   7   they would go to paradise, and if they were bad people, they

   8   would go to hell?  Did you become aware of that statement?

   9   A.  I never heard of anything as such.

  10   Q.  You are aware that there was disagreement, and you

  11   testified about disagreement within al Qaeda, as to whether it

  12   was Islamically correct to kill civilians or not kill

  13   civilians, is that true?

  14   A.  It's not a matter of disagreement, but killing innocent

  15   people is not permissible in Islam.

  16   Q.  Was there disagreement over that issue within al Qaeda?

  17   A.  This fatwah came about in 1996 after Bin Laden went to

  18   Afghanistan and people in Sudan, where I was, did not agree

  19   about this.

  20   Q.  Did you tell the FBI agents who interviewed you in August

  21   of the year 2000, August of last year, that many people were

  22   against this fatwah?

  23   A.  This was the place where I was in Sudan.

  24   Q.  Are you telling me that many people were against this

  25   fatwah?


   1   A.  Correct.

   2   Q.  But there were also people who accepted the fatwah, isn't

   3   that correct, within al Qaeda?

   4   A.  If they are convinced and their faith would allow them.

   5   Q.  I'm sorry, would you repeat that answer?

   6   A.  If they are convinced and their faith would allow them to

   7   be convinced.

   8   Q.  So the answer is there were people whose faith allowed

   9   them to become convinced of that; isn't that correct?

  10   A.  Possibly.

  11   Q.  In testifying here on your first day of testimony, you

  12   discussed the structure of an al Qaeda operation and described

  13   it as having four phases, is that true?

  14   A.  Correct.

  15   Q.  The first phase would be surveillance or

  16   intelligence-gathering, correct?

  17   A.  Yes.

  18   Q.  The second phase would be for those who did the

  19   surveillance and intelligence operation to report to the

  20   leadership of al Qaeda, correct?

  21   A.  The second phase is that the leadership would study the

  22   information that was presented to them or submitted to them.

  23   Q.  And then the leadership would decide whether to go ahead

  24   with an operation or not, correct?

  25   A.  Correct.


   1   Q.  If the leadership decided to go ahead, then a supply and

   2   logistical group would bring whatever necessary material was

   3   needed to carry out the operation, correct?

   4   A.  This is a military operation.  This is a military thought.

   5   Q.  And after the supplies were brought to wherever the

   6   operation was to take place, then the people who actually were

   7   going to carry out the operation would go to the place; is

   8   that correct?

   9   A.  Yes.

  10   Q.  When you were interviewed by the FBI beginning in the

  11   summer of 2000, the year 2000, you initially did not tell them

  12   about the people who came to your apartment in Nairobi to take

  13   photographs and developed the negatives in your apartment,

  14   correct?

  15   A.  Correct.

  16   Q.  That was not an mistake, you were nervous or afraid to

  17   tell them about that because you were afraid you might be

  18   connected to the bombing in Nairobi, correct?

  19   A.  Correct.


  21            (Continued on next page)






   1            (The following testimony is conducted through the

   2   interpreter)

   3   Q.  Did it occur to you, or was one of the reasons you lied to

   4   the FBI that the surveillance and the pictures that were

   5   developed in your apartment might have been the first phase of

   6   the operation that led to the bombing of the embassy in

   7   Nairobi?

   8            MR. SCHMIDT:  Objection, your Honor.

   9            THE COURT:  Objection sustained to the form of the

  10   question.

  11   Q.  You testified a moment ago that you did not tell the truth

  12   about the bombing -- I am sorry -- about the surveillance that

  13   took place and the development of photographs in your

  14   apartment, correct?

  15   A.  Correct.

  16   Q.  You testified that one of the reasons you didn't tell the

  17   truth is you were afraid of being connected to the bombing of

  18   the embassy in Nairobi, correct?

  19   A.  Correct.

  20   Q.  After the fighting in Afghanistan was concluded, there

  21   were other areas in the world where Muslims were facing

  22   difficulty, is that true?

  23   A.  Yes.

  24   Q.  One of those areas was the area of Bosnia Herzegovina,

  25   correct?


   1   A.  Yes.

   2   Q.  In fact, Muslims were facing in that area what has since

   3   been called genocide under the name of ethnic cleansing, is

   4   that correct?

   5   A.  Yes.

   6   Q.  And even after Afghanistan, hundreds of young Muslim men

   7   continued to come to the training camps in Afghanistan,

   8   correct?

   9   A.  Yes.

  10   Q.  And you participated in the training of some of those men,

  11   is that correct?

  12   A.  Yes.

  13   Q.  According to your information and according to your

  14   testimony, Mr. Salim, Mamdouh Mahmud Salim, also known as Abu

  15   Hajer al Iraqi, was a well-respected member or well-respected

  16   associate of Mr. Bin Laden's, is that correct?

  17   A.  Yes.

  18   Q.  He was somebody who had memorized the entire Koran.  Did

  19   you know that?

  20   A.  Correct.

  21   Q.  You have sometimes referred to Mr. Salim Abu Hajer al

  22   Iraqi as Sheik Abu Hajer al Iraqi, is that correct?

  23   A.  Correct.

  24   Q.  The word Sheik in Arabic is a term used for someone worthy

  25   of great respect, am I correct?


   1   A.  Yes.

   2   Q.  Mr. Salim sometimes served, according to your testimony,

   3   as the imam at the mosque during Ramadan, is that correct?

   4   A.  Correct.

   5   Q.  Even within Al Qaeda there were people paid salaries for

   6   carrying out activities within Al Qaeda, correct?

   7   A.  Correct.

   8   Q.  You yourself in fact were paid a salary for many, many

   9   years by Al Qaeda, is that true?

  10   A.  Correct.

  11   Q.  But there was a certain amount of unhappiness within Al

  12   Qaeda among its members because people seemed to get

  13   preferable treatment, is that correct?

  14   A.  Correct.

  15   Q.  The Egyptians, for example, many people in Al Qaeda

  16   thought that they received preferable treatment over all other

  17   members of Al Qaeda; is that true?

  18   A.  Not all the Egyptians.

  19   Q.  But some of the Egyptians.

  20   A.  Yes.

  21   Q.  With regard to Mr. Salim, Abu Hajer al Iraqi, there was a

  22   time when he lived in a villa, he had a car, an office, he had

  23   a very good salary from Al Qaeda; is that true?

  24   A.  Because he was the director of a company called Wadi al

  25   Aqiq.


   1   Q.  And Mr. Salim had also been one of the very early people

   2   to go fight in Afghanistan; is that true?

   3   A.  Correct.

   4   Q.  You have pleaded guilty yourself to a conspiracy that

   5   included the killing of Americans; is that correct?

   6   A.  Correct.

   7   Q.  For your role in your plea, do you face the death penalty?

   8   A.  No.

   9   Q.  You have been now admitted into the United States to live

  10   here, correct?

  11   A.  Yes.

  12   Q.  The United States government paid for that, correct?

  13   A.  Yes.

  14   Q.  You have been living here since approximately September of

  15   2000, correct?

  16   A.  Correct.

  17   Q.  And the government has agreed to assist you in becoming

  18   part of what is known as the Witness Protection Program,

  19   correct?

  20   A.  Yes.

  21   Q.  And the United States has paid to move members of your

  22   family here to the United States also to live in this country,

  23   correct?

  24   A.  Correct.

  25   Q.  How many members of your family has the government moved


   1   to this country?

   2   A.  My wife and three daughters.

   3   Q.  Since being in the United States, have you spent any time

   4   in jail?

   5   A.  I am under surveillance 24 hours a day.  I have an FBI

   6   agent around the clock.

   7   Q.  Have you spent any time in jail?

   8   A.  No.

   9   Q.  When you go from place to place, are you placed in

  10   handcuffs?

  11   A.  No.

  12   Q.  Although your guilty plea exposes you to a theoretical

  13   life sentence, it is your hope that you will not go to jail at

  14   all, for one single day; is that correct?

  15   A.  Nothing is guaranteed.  I cannot guarantee that I am not

  16   going to be incarcerated.

  17   Q.  Even though nothing is guaranteed, it is your hope that

  18   you will not spend a single day in jail; isn't that true?

  19   A.  Yes.

  20            MR. RUHNKE:  Thank you.  No further questions.

  21            THE COURT:  Redirect?

  22            MR. FITZGERALD:  Yes, Judge.

  23            (The following testimony in English except where

  24   noted.)




   2   Q.  Good morning.

   3   A.  Good morning.

   4   Q.  Please feel free to answer questions in English or through

   5   the interpreter, however you feel more comfortable.

   6            You have been asked questions about what your

   7   understandings are with the United States government, what you

   8   expect to receive, and let me approach you with what has been

   9   marked for identification as 3505-27 and ask you to take a

  10   look at it.  I will ask you if you recognize what that is?

  11   A.  (Through the interpreter)  It is the agreement that I have

  12   signed with the FBI after the interrogation.

  13   Q.  Are you testifying here today pursuant to that agreement?

  14   (Interpreted)

  15   A.  Yes.

  16            MR. FITZGERALD:  Your Honor, I would offer that as

  17   Government's Exhibit 4.

  18            MR. COHN:  In its entirety, your Honor?

  19            MR. FITZGERALD:  Yes.

  20            MR. COHN:  I object.  I don't object to portions of

  21   it but I don't think the proper foundation has been laid for

  22   the entire document.

  23            THE COURT:  I will defer on that.  We will take that

  24   up during the mid-morning recess.

  25            MR. FITZGERALD:  Thank you, Judge.


   1   Q.  Yesterday you were asked questions by Mr. Schmidt as to

   2   whether or not members of the Egyptian groups Al Jihad and the

   3   Islamic Group were afraid of being arrested and how they would

   4   be treated if they went to Egypt.  Do you recall those

   5   questions?

   6   A.  Yes.

   7   Q.  The members of those groups, were they doing any violence

   8   in or against Egypt?

   9   A.  Yes.

  10            MR. SCHMIDT:  Objection.

  11            THE COURT:  Does he know?

  12   Q.  Do you know if the members of those Egyptian groups were

  13   doing violence in or against Egypt?

  14   A.  Yes.

  15   Q.  Were they?

  16            MR. SCHMIDT:  Objection.

  17            THE COURT:  How does he know?

  18   Q.  First of all, how did you know they were afraid of being

  19   arrested in Egypt?

  20   A.  Everybody is talking about many people who are facing

  21   death and many people were executed in Egypt.

  22   Q.  How do you know that they were doing violence in Egypt?

  23   A.  Many operations that we are talking in the guesthouse or

  24   with the Egyptian guys, in the Sudan.

  25   Q.  So you were having conversations in the Sudan about


   1   operations in Egypt?

   2   A.  Sometimes they are saying what happened in Egypt.

   3   Q.  Did you understand that the Egyptian groups were carrying

   4   out those operations?

   5            MR. SCHMIDT:  Objection, your Honor, for leading, and

   6   the foundation has not been properly raised.

   7            THE COURT:  Overruled.

   8   Q.  Did you understand that those Egyptian groups were

   9   carrying out those operations?

  10   A.  Yes.

  11   Q.  Did you know, yes or no, whether or not the Egyptian

  12   groups blamed the United States government for any assistance

  13   provided to the Egyptian government?

  14   A.  Yes.

  15   Q.  Did they?  Did the Egyptian groups blame the American

  16   government for support they perceived was given to the

  17   Egyptian government?

  18            THE INTERPRETER:  Can you kindly repeat the question.

  19   Q.  Yes.  Did the Egyptian groups blame the United States

  20   government for any support they believed the American

  21   government provided to the Egyptian government?  (Interpreted)

  22            MR. SCHMIDT:  Objection, your Honor.  Foundation as

  23   to what these groups -- who in the group, what in the group.

  24            THE COURT:  Overruled.  The court's rulings with

  25   respect to the admissible scope on redirect is consistent with


   1   my rulings with respect to the scope on cross.

   2   A.  (Through the interpreter) the American government handed

   3   over these people to the Egyptian government.

   4   Q.  And my question was, did the Egyptian groups blame or hold

   5   responsible the American government for what they thought was

   6   American government assistance to the Egyptians?

   7   (Interpreted)

   8   A.  (Through the interpreter)  Yes.

   9   Q.  You were asked questions yesterday about your working in

  10   Wadi Al Aqiq and the tannery in the Sudan.  Do you recall

  11   those questions?

  12   A.  Yes.

  13   Q.  How long in total did you work for the company Wadi Al

  14   Aqiq?

  15   A.  Probably a month and a half.

  16   Q.  How long did you work for the tannery?

  17   A.  Fifteen days, probably.

  18   Q.  Was that after you moved from Kenya to the Sudan?

  19   A.  Yes.

  20   Q.  Do you recall what year that was?

  21   A.  Sometimes in '95.

  22   Q.  You were asked about whether you had seen training in the

  23   Sudan.  Did you ever visit the Damazine facility in the Sudan?

  24   A.  No.

  25   Q.  You were asked questions yesterday and today about the


   1   content of statements or lectures given by the person known as

   2   Abu Hajer al Iraqi.  Can you tell us, in your entire life how

   3   many of Abu Hajer's lectures you have personally attended?

   4   A.  I attended many lectures in the mosque.

   5   Q.  How many lectures by Abu Hajer in particular?

   6   A.  It was in Friday prayers, probably 10 times or more.

   7   Q.  You were asked questions about the Thursday meeting that

   8   happened in Al Qaeda.  Do you recall those questions?

   9   A.  Yes.

  10   Q.  Did you ever see Wadih El Hage at the Thursday meeting?

  11   A.  No.

  12   Q.  Approximately how many people would attend these meetings?

  13   A.  It depends.  Sometimes 20, sometimes less, sometimes more.

  14   Q.  You were asked questions about Ahmed Hassan yesterday and

  15   whether or not Ahmed Hassan was a member of Al Qaeda, and I

  16   believe you testified that there were two Ahmed Hassans,

  17   correct?

  18   A.  Yes.

  19   Q.  One was in Al Qaeda?

  20   A.  Yes.

  21   Q.  And one was not?

  22   A.  Yes.

  23   Q.  He was in the Al Jihad organization?

  24   A.  Yes.

  25   Q.  Let me approach you with what has been marked for


   1   identification as Government's Exhibit 202A-T.  Is that a

   2   transcript of a conversation for which you have listened to

   3   the tape recording?

   4   A.  Yes.

   5   Q.  Is there a voice identified on that transcript as Ahmed

   6   Hassan?

   7   A.  Yes.

   8   Q.  Do you know which Ahmed Hassan it is, whether it is the

   9   person of Al Qaeda, the person in Al Jihad, or a different

  10   person, if you know?

  11   A.  The person in Al Jihad.

  12   Q.  The Ahmed Hassan who is a member of the Egyptian Islamic

  13   Jihad organization is the Ahmed Hassan on that transcript?

  14   A.  Yes.

  15   Q.  You were asked questions yesterday by Mr. Schmidt as to

  16   when it was that Abu Mohamed el Masry went to Mogadishu.  Do

  17   you recall those questions?

  18   A.  Yes.

  19   Q.  So we are clear, Abu Mohamed el Masry is a person also

  20   known as Saleh, is that correct?

  21   A.  Yes.

  22   Q.  You indicated that you thought it was before 1994 and then

  23   Mr. Schmidt refreshed your recollection with a document.  Do

  24   you recall that?

  25   A.  Excuse me again.


   1   Q.  You indicated that you thought Abu Mohamed el Masry went

   2   to Somalia before 1994 yesterday.  Do you recall that

   3   testimony?

   4   A.  Yes.

   5   Q.  Do you recall Mr. Schmidt showing you a document to

   6   refresh your recollection as to whether Mohamed el Masry went

   7   to Somalia in 1994?

   8   A.  Yes.

   9   Q.  Let me show you that same document, 3505-7, page 4.

  10   Mr. Kherchtou, I am going to show you that same document, that

  11   same page, that same paragraph, 3505-7, page 4, and ask you

  12   whether it refreshes your recollection that Abu Mohamed el

  13   Masry went to Somalia for the purpose of fighting Americans

  14   and also came to Kenya to bring the word from the Sudan that

  15   the purpose was to fight against the Americans.

  16            MR. SCHMIDT:  Objection, objection, your Honor.

  17            THE COURT:  It is a convoluted question.  Break it

  18   down.

  19            MR. SCHMIDT:  Objection that it is also not proper

  20   redirect examination, and also form.

  21            THE COURT:  Overruled.

  22   Q.  Let me show you 350-7, page 4, ask you to read a certain

  23   paragraph, and then I will ask you a question.

  24            MR. SCHMIDT:  Your Honor, there is no reason to

  25   refresh his recollection.


   1            THE COURT:  I have ruled.

   2   Q.  Would you read the paragraph with blue ink on it.  Don't

   3   read it out loud.  Read that paragraph to yourself.

   4   A.  Yes.

   5   Q.  Does that refresh your recollection as to whether Abu

   6   Mohamed el Masry went to Somalia for the purpose of fighting

   7   Americans?

   8            MR. SCHMIDT:  Objection.

   9            THE COURT:  I have ruled.

  10   A.  Yes.

  11   Q.  So whatever time it was that Abu Mohamed el Masry went to

  12   Somalia, the American forces were there, correct?

  13   A.  Yes.

  14            MR. SCHMIDT:  Objection, your Honor.  Objection.

  15            THE COURT:  Overruled.

  16   Q.  Is that the same Abu Mohamed el Masry you told us about

  17   earlier that was in a building next door to a building that

  18   was shot at by American helicopters?

  19   A.  Yes.

  20   Q.  Sir, you were asked yesterday whether or not you knew

  21   whether certain people were members of Al Qaeda.  Do you

  22   recall those questions?

  23   A.  Yes.

  24   Q.  How many people saw you take or make your pledge of bayat?

  25   A.  I made bayat myself and the doctor of animals and the guy


   1   who was, who I was given the bayat, and I think one or two

   2   others, I think.

   3   Q.  So a total of about five people were in the room?

   4   A.  Probably less.

   5   Q.  So some people you know were in Al Qaeda because you

   6   actually saw them make the bayat, correct?

   7   A.  Yes.

   8   Q.  Some people you simply know are not in Al Qaeda, correct?

   9   A.  Excuse me again.

  10   Q.  There are some people you know do not belong to Al Qaeda,

  11   right?

  12   A.  Yes.

  13   Q.  There are some people you are not sure of?

  14   A.  Yes.

  15   Q.  And there are some people you believe are in Al Qaeda but

  16   not because you saw them make the bayat.

  17   A.  Yes.

  18   Q.  You were asked a dozen questions or more about who you

  19   believed was in Al Qaeda.  Do you recall those questions?

  20   A.  Yes.

  21   Q.  You were asked questions about whether or not Abu Ubaidah

  22   and Abu Hafs even if they did not make the bayat were with the

  23   Al Qaeda group.  Do you recall that question?

  24   A.  Yes.

  25   Q.  You were asked whether you had personal knowledge that


   1   Wadih El Hage made the bayat.  Let me ask you this:  Did you

   2   have an understanding of whether or not Wadih El Hage was a

   3   member of Al Qaeda?

   4   A.  Yes.

   5   Q.  What was that understanding?

   6   A.  That he is from Al Qaeda.

   7            (Continued on next page)




















   1            MR. FITZGERALD:  I have nothing further, Judge.

   2            THE COURT:  Anything further of this witness?

   3            MR. SCHMIDT:  Yes, your Honor.  May we have a moment,

   4   your Honor?

   5            THE COURT:  Yes.

   6            JUROR:  Excuse me, your Honor.

   7            THE COURT:  You want to take a recess?  We will take

   8   a recess.  It is recess time anyway.

   9            (Jury excused)

  10            THE COURT:  We will take a recess.

  11            (Witness excused)

  12            (Recess)

  13            (Jury not present)

  14            MR. SCHMIDT:  Your Honor, before we bring the jury

  15   out I have a request.

  16            THE COURT:  Mr. Schmidt.

  17            MR. SCHMIDT:  Your Honor, during questioning by other

  18   counsel I have at times made objections.  When a question is

  19   either rephrased or asked again in a different manner, I have

  20   repeated my objections.  My understanding is that objection to

  21   one question does not satisfy for appeal if I do not object to

  22   the subsequent question even though it is similar.

  23            Your Honor has chastised me, perhaps unintentionally,

  24   in front of the jury in a manner I do not believe the jury

  25   should be seeing.  I am simply attempting to make a proper


   1   record, and I ask your Honor, if your Honor indeed disagrees

   2   with me, that you simply overrule my objection, and if your

   3   Honor has difficulty with the manner that I make my objection,

   4   that you do that outside the presence of the jury.

   5            THE COURT:  I don't know really what to say about

   6   that.  I don't believe that I chastise you.  I know I did say

   7   I have already ruled when it appeared to me that the objection

   8   that you were making, that there was no apparent basis for the

   9   reassertion of the objection.

  10            Your concern is an appellate rule that says that

  11   unless the objection is repeated after the question is

  12   rephrased that it is not preserved.  I am not aware of such a

  13   rule.  Where the objection was to lack of foundation or the

  14   form of the question or something of that sort, then

  15   reiteration of the objection to a rephrased question may be

  16   appropriate.

  17            It will be for others to judge the record, but I

  18   certainly don't believe that I have been chastising counsel,

  19   and indeed one of the, I think, relatively few bright spots

  20   about the trial is that there has been relatively little

  21   bickering among counsel or occasion for me to make comments.

  22   I may comment about the impropriety of saying before the jury

  23   that a point had been made, but other than that -- I note your

  24   comments, Mr. Schmidt.

  25            MR. COHN:  In my own defense, remember this is a


   1   capital trial and not a Victorian tape.

   2            THE COURT:  I don't think that changes the rules as

   3   to what is or is not appropriate comment before a jury.

   4            MR. RUHNKE:  Your Honor, not to jump into this too

   5   far, there has been some annoyance expressed in the tone of

   6   voice that your Honor used in ruling on objections,

   7   particularly Mr. Schmidt.  I rise not to protect Mr. Schmidt

   8   but because it spills over on other clients.  I just make that

   9   point for the record, your Honor.

  10            THE COURT:  I understand that.  I do understand and

  11   appreciate the role of defense counsel in a case in which

  12   cross-examination, and phrasing of objections may constitute a

  13   major portion of the defense case.  I bear that in mind.  If

  14   my tone of voice is not my usual amiable, genial tone of

  15   voice, why then I apologize.

  16            MR. COHN:  Your Honor, do you want to take up the

  17   document that I objected to part of?

  18            THE COURT:  Yes.

  19            MR. COHN:  I don't have it in front of me, but I

  20   believe that the document has the usual paragraph or two about

  21   truthful testimony as part of the deal.

  22            THE COURT:  Yes.

  23            MR. COHN:  As I recall the circuit law, you can only

  24   get that part in where there has been a challenge to the

  25   credibility of the witness, and I suggest to your Honor that


   1   there has not been, and a suggestion that he would lie --

   2            THE COURT:  That extensive examination as to the

   3   conditions of his confinement -- I understand that Mr. Ruhnke

   4   was making a record for another phase of this case, but

   5   nevertheless, wasn't that all designed to challenge his

   6   credibility?

   7            MR. COHN:  Not his credibility, actually, the

   8   credibility of another witness coming up.  I have never said

   9   and I will not say on summation that he lied, and I don't

  10   believe anybody else is making that argument.

  11            THE COURT:  If it wasn't relevant to his credibility,

  12   what was the relevance of the conditions of confinement to

  13   which he was subjected prior to --

  14            MR. COHN:  That he was making the statements that he

  15   made at all, not to whether or not they are truthful.  In

  16   fact, he didn't testify that anything that touched my client

  17   except in a general conspiracy way.

  18            MR. FITZGERALD:  Your Honor, Mr. Cohn himself

  19   elicited that the person who debriefed him in the jail taught

  20   him how to lie.  That was how he ended his cross-examination.

  21   I think that was directly put in, is this witness trained in

  22   how to lie, and the cooperation agreement shows what his

  23   incentives are with regard to telling the truth or lying.

  24            MR. COHN:  And I tell the court and I tell counsel

  25   that I will make no argument that he is using that technique.


   1            THE COURT:  So it was introduced for what purpose?

   2   Why did you plant that seed in the jurors' minds, other than

   3   to cast aspersions on his credibility?

   4            MR. COHN:  Your Honor, there will be another witness

   5   who I will maintain is a liar and is using a technique that a

   6   government witness was taught.

   7            THE COURT:  Do you want me to strike that testimony

   8   and advise the jury that there is no challenge to the

   9   witness's credibility?  Of course you don't.

  10            MR. COHN:  I don't want you to strike the testimony,

  11   but if you want to say that he is not lying, as far as I am

  12   concerned, that is fine with me.

  13            THE COURT:  I am sure other counsel would object to

  14   that.  If the sole basis to the introduction of Government's

  15   Exhibit 4 is that there has been no suggestion made that the

  16   witness's testimony is not entirely credible, the objection is

  17   overruled.

  18            MR. SCHMIDT:  I would just note, your Honor, that

  19   again, the issues of a joined trial and the problems related

  20   to it has again arisen based on the cross-examination of the

  21   death-eligible defendants and the nondeath-eligible

  22   defendants.  We object to the admission of this document in

  23   evidence, and we again move for a severance.

  24            THE COURT:  Overruled.

  25            MR. FITZGERALD:  Your Honor, I apologize.


   1   Government's Exhibit 4 should be called Government's Exhibit

   2   5.

   3            THE COURT:  The witness described it as an agreement

   4   with the FBI.  Is it?

   5            MR. FITZGERALD:  It is the standard cooperation

   6   agreement.

   7            THE COURT:  But it is addressed to the FBI?

   8            MR. FITZGERALD:  No, it's from the U.S. Attorney's

   9   Office to the counsel for Mr. Kherchtou.  I think he was

  10   treating --

  11            THE COURT:  He said it is the agreement with the FBI.

  12            MR. FITZGERALD:  Right, and then said it is the one

  13   he is testifying pursuant to.  The document is a standard

  14   cooperation agreement.

  15            THE COURT:  So I will tell the jury what we have

  16   previously referred to as Exhibit 4 is Exhibit 5.

  17            MR. FITZGERALD:  Thank you, your Honor.

  18            (Witness resumed)

  19            THE COURT:  While we are waiting, I have received a

  20   copy of a letter relating to the testimony of the ambassador.

  21   If there are any objections to the government's in limine

  22   motion, then I would like to be apprised of that by 9:45

  23   tomorrow morning.

  24            MR. BAUGH:  None from the defendant Al-'Owhali, no

  25   objection.


   1            MR. RUHNKE:  We have no objection, your Honor.

   2            (Jury present)

   3            THE COURT:  Ladies and gentlemen, you recall that on

   4   the government's redirect the government offered in evidence a

   5   document which the witness says was his agreement with the FBI

   6   after his interrogation and which was then referred to as

   7   Exhibit 4.  I deferred on whether or not it would be received

   8   in evidence.  First let me tell you that the correct

   9   designation of that exhibit is Exhibit 5, and it is received

  10   in evidence.

  11            We are now at recross on behalf of the defendant El

  12   Hage.  Mr. Schmidt.

  13            (Government's Exhibit 5 received in evidence)

  14            (Examination in English except where noted)

  15            (Continued on next page)













   2   BY MR. SCHMIDT:

   3   Q.  Mr. Kherchtou, I think you answered questions on redirect

   4   examination when by Mr. Fitzgerald that Abu Hafs and Al

   5   Banshiri was part of Al Qaeda.  Do you remember saying

   6   something of that nature?

   7            MR. FITZGERALD:  Objection.

   8            THE COURT:  My notes don't have all the names, but I

   9   will allow the question.

  10            Did you testify to that effect?

  11            THE WITNESS:  He said Abu Hafs Banshir.  There is no

  12   Abu Hafs Banshir.

  13            THE COURT:  Would you state that into the microphone,

  14   please.

  15   Q.  Abu Hafs and Al Banshiri.

  16   A.  Yes, the question, please, again.

  17   Q.  Did you testify on redirect that Abu Hafs and Al Banshiri

  18   were part of Al Qaeda?

  19   A.  Yes.

  20   Q.  Because of their early arrival in Afghanistan, they had a

  21   special role, is that right?

  22   A.  Yes.

  23   Q.  You have indicated that you don't know if they ever took

  24   bayat, is that correct?

  25   A.  Yes.


   1   Q.  So if they were associated with Al Qaeda, it depended on

   2   their individual friendship with Mr. Bin Laden and not a

   3   pledge; is that right?

   4   A.  Well, these two people, they were our leaders.  We

   5   received orders from these two people.

   6   Q.  But if they were associated with Al Qaeda and had not

   7   taken a bayat to Al Qaeda, then their association was based on

   8   their friendship to Usama Bin Laden, and not on any religious

   9   obligation; isn't that right?

  10            MR. FITZGERALD:  Objection to form.

  11            THE COURT:  No, I will allow it.

  12   A.  Well, in the military things, for example, Abu Hafs was

  13   the head of military committee.  Religiously, if he wants to

  14   be that, he has to be like one of the emirs.  It's not like

  15   associate and we will receive orders from him.  That's why he

  16   has some special stature.  That is why everyone in Al Qaeda

  17   agrees that Abu Hafs is member of Al Qaeda, head of Al Qaeda.

  18   Q.  From Al Qaeda doesn't mean having given bayat, is that

  19   right?

  20   A.  I don't know if they gave bayat.

  21   Q.  You just testified on redirect examination for the first

  22   time saying Wadih El Hage was of Al Qaeda.  Do you remember

  23   that?

  24            MR. FITZGERALD:  Objection to the form.

  25            THE COURT:  Strike for the first time, and you may


   1   answer the question.

   2   Q.  Did you testify on redirect examination that Wadih El Hage

   3   was of Al Qaeda?

   4   A.  Yes.

   5   Q.  Is that the first time that you testified here that Wadih

   6   El Hage was of Al Qaeda?

   7   A.  Yes.

   8   Q.  Back in 1998, as you testified on both direct examination

   9   and cross-examination and redirect examination, you were

  10   interviewed by a person while you were in jail in Kenya; is

  11   that correct?

  12   A.  Yes.

  13   Q.  That was in August of 1998, is that right?

  14   A.  Yes.

  15   Q.  That was more than two and a half years ago, is that

  16   right?

  17   A.  Yes.

  18   Q.  During your conversations with that person, you were asked

  19   all about your affiliation with Al Qaeda and Al Qaeda members;

  20   is that right?

  21   A.  Yes.

  22   Q.  Did you tell that individual that you did not know whether

  23   Wadih El Hage was Al Qaeda?

  24   A.  I don't remember.

  25   Q.  I am going to ask you to take a look at what has been


   1   previously marked 3505-29, page 270, and read to yourself --

   2   actually, starting at 269 where I made a blue line, and

   3   reading to the next page where I made another blue line.  Read

   4   that to yourself, please.

   5   A.  Excuse me.  From here?

   6   Q.  Yes, from here to here.

   7            (Pause)

   8   Q.  Do you need it translated for you?

   9   A.  No.

  10            (Pause)

  11   A.  Yes, sir.

  12   Q.  Having read that, does it refresh your recollection that

  13   you told that individual back in August of 1998 that you did

  14   not know if Wadih El Hage was Al Qaeda?

  15   A.  Yes, I told him that I didn't know exactly if he is from

  16   Al Qaeda.

  17   Q.  But you knew that he was one of the first in Afghanistan

  18   and was trusted because of that; isn't that correct?

  19   A.  Yes, he was trusted.

  20   Q.  You also said that you knew Wadih El Hage well.

  21   A.  Yes.

  22   Q.  That he was your friend.

  23   A.  Yes.

  24   Q.  That he was a nice person.

  25   A.  Yes.


   1   Q.  And you simply did not know, based on all of what you knew

   2   about Wadih El Hage, whether he was an Al Qaeda member or

   3   someone who simply worked with people from Al Qaeda; isn't

   4   that correct?

   5            MR. FITZGERALD:  Objection only to form.

   6            THE COURT:  Overruled.

   7            MR. SCHMIDT:  Would you repeat the question, please.

   8   Can we have the court reporter repeat the question, please.

   9            (Record read)

  10            (Question interpreted)

  11   A.  (Through interpreter) this person, when he interrogated me

  12   I was in jail.  I did not tell him the entire truth.  All my

  13   aim was to have him get me out of my jail cell.

  14   Q.  Mr. Kherchtou.

  15   A.  Yes.

  16   Q.  Are you telling us now that in 1998, that you said to this

  17   person that Wadih El Hage -- that you did not know Wadih El

  18   Hage, whether -- withdrawn.

  19            Are you saying to us that in 1998 when you said to

  20   this person that you did not know if Wadih El Hage was Al

  21   Qaeda, that you were lying to him?  Is that your testimony

  22   now?

  23   A.  (Through interpreter)  Yes.

  24   Q.  Didn't you tell the FBI agents when you were interviewed

  25   that you did not know whether Wadih El Hage was Al Qaeda?


   1   (Interpreted)

   2   A.  (Through interpreter) Probably.

   3   Q.  Are you telling us now that when you told the FBI agents

   4   six months ago, five months ago, four months ago, whenever

   5   that was, that you did not know that Wadih El Hage was Al

   6   Qaeda, that you were lying to them?  (Interpreted)

   7   A.  (Through interpreter) I told them that I am not aware

   8   whether he is in the Al Qaeda or not.

   9   Q.  Was that the truth?  (Interpreted)

  10   A.  (Through interpreter)  Yes.

  11   Q.  Not only did you not know, all the Al Qaeda members that

  12   you knew did not know if Wadih El Hage was a member of Al

  13   Qaeda; isn't that correct?  (Interpreted)

  14   A.  (Through interpreter) Not all the members of the Al Qaeda.

  15   The majority of the members there.

  16   Q.  Did you explain to the FBI agents that none of the regular

  17   Al Qaeda members know if Wadih El Hage is an Al Qaeda member

  18   or not?  (Interpreted)

  19   A.  (Through interpreter) Those who are like me do not know

  20   the entire truth of what's going on.

  21   Q.  Would it be fair to say, right now as you sit here, you do

  22   not know whether Wadih El Hage was ever a member of Al Qaeda?

  23   (Interpreted)

  24   A.  (Through interpreter) That is true, but when I have

  25   indicated or mentioned that he is a member of the Al Qaeda, it


   1   was in relation or in reference to the way that we were

   2   relating to him, and it was open in how he handled matters.

   3            MR. SCHMIDT:  Your Honor, I would --

   4            THE COURT:  He is still answering the question.

   5            THE INTERPRETER:  Not yet.

   6            MR. SCHMIDT:  He answered the question with the first

   7   word.

   8            THE COURT:  You may translate the rest of his answer.

   9            THE INTERPRETER:  He did not finish the sentence yet,

  10   your Honor.

  11            THE COURT:  Finish.

  12   A.  (Through interpreter) Persons who are not members in the

  13   Al Qaeda, we cannot talk to them openly as the way we address

  14   members of the Al Qaeda and as the way we addressed him.

  15   Q.  Except for Mr. El Hage was considered an extraordinary

  16   trustworthy person because he was one of the first in

  17   Afghanistan; isn't that right?  (Interpreted)

  18   A.  (Through interpreter) Correct.

  19   Q.  There have been people that you have told, both the United

  20   States government last year and that man in Nairobi in 1998,

  21   that you said were Al Qaeda, even though you never saw them or

  22   heard them take bayat; isn't that right?

  23            MR. FITZGERALD:  Objection to form, your Honor.

  24            THE COURT:  Overruled.

  25            THE INTERPRETER:  Kindly repeat the question again.


   1            THE COURT:  Restate your question.

   2   Q.  There are times in this courtroom, in answering my

   3   question or answering the government's question, that was this

   4   person Al Qaeda, you said yes.  Do you remember doing that?

   5   A.  Yes.

   6   Q.  And these people that you said here in court were Al

   7   Qaeda, you told the United States government back in August of

   8   last year that they were Al Qaeda, right?

   9            MR. FITZGERALD:  Objection to form.

  10            THE COURT:  Yes.  You threw in lots of things in your

  11   restating the question.  Restate your question, and try to not

  12   put everything in a single question.

  13   Q.  You testified here of people that you knew were Al Qaeda,

  14   is that correct?

  15   A.  Yes.

  16   Q.  People that you knew were Al Qaeda without hesitating, is

  17   that correct?

  18   A.  Yes.

  19   Q.  You also told the government, the United States government

  20   back in August of 2000, of people that you said were Al Qaeda.

  21   A.  Yes.

  22   Q.  And you did that without hesitation, is that correct?

  23   A.  Yes.

  24   Q.  And then back in 1998 to this man in Nairobi, you told him

  25   people that you said were Al Qaeda; is that right?


   1   A.  Yes.

   2   Q.  And you didn't hesitate to say those particular people

   3   were Al Qaeda; is that correct?

   4   A.  Yes.

   5   Q.  And for almost all of those people, you did not see or

   6   hear them take bayat; is that correct?

   7   A.  Yes, some of them, yes.

   8   Q.  With Mr. El Hage back in 1998, you told that person that

   9   you did not know that he was Al Qaeda; is that correct?

  10   A.  Yes.

  11            (Continued on next page)
















   1   Q.  In August 2000 you told the United States Government that

   2   not only did you not know whether Mr. El Hage was al Qaeda,

   3   that none of the regular members of al Qaeda knew whether he

   4   was al Qaeda; isn't that correct?

   5   A.  Yes.

   6   Q.  Now, you have testified on redirect examination about

   7   members of al Jihad and the Islamic group being afraid of

   8   being arrested in Egypt?

   9   A.  Yes.

  10   Q.  And you also testified on redirect examination that

  11   Egyptian groups had carried out attacks against Egypt; is that

  12   right?

  13   A.  Yes.

  14   Q.  Now, were you aware that the Egyptian government made it a

  15   capital offense to have military training in Afghanistan?

  16   A.  I heard about that.

  17   Q.  So even non-Egyptian Jihad -- withdrawn.  So all Egyptians

  18   who trained in Afghanistan, be they Egyptian Jihad, Islamic

  19   group, al Qaeda, member of no group, all feared going back to

  20   Egypt, facing imprisonment or execution, isn't that right?

  21            MR. FITZGERALD:  Objection, your Honor.

  22            THE COURT:  Establish the basis for his knowledge.

  23   Lay a foundation for the question.

  24   BY MR. SCHMIDT:

  25   Q.  You had conversations with members of Egyptian Jihad about


   1   their fear about going back to Egypt, right?

   2   A.  Yes.

   3   Q.  You had conversations with members of the Islamic group

   4   about going back to Egypt; is that correct?

   5   A.  Yes.

   6   Q.  You had conversations with al Qaeda members who were

   7   Egyptian and their fear about going back to Egypt; is that

   8   right?

   9   A.  Yes.

  10   Q.  And you had conversations with unaffiliated Egyptians who

  11   were in Afghanistan who were afraid to go back to Egypt; is

  12   that right?

  13   A.  Yes.

  14   Q.  And they were all afraid that the Egyptian government

  15   would at least put them in jail and very possibly torture and

  16   execute them, isn't that right?

  17   A.  Yes.

  18   Q.  As you testified on redirect examination some of these

  19   Egyptian groups did attack against Egypt and in Egypt; is that

  20   right?

  21   A.  Yes.

  22   Q.  And the manner that was -- withdrawn.  And the membership

  23   of al Qaeda disagreed with the manner of some of these attacks

  24   by these Egyptian Jihad groups, isn't that right?

  25            (Witness consults with interpreter)


   1   A.  Can you repeat, please?

   2            MR. SCHMIDT:  Could you please read that question for

   3   the interpreter?

   4            (Record read)

   5            (Witness consults with interpreter)

   6   A.  (Through the interpreter) This was the public opinion of

   7   the al Qaeda.

   8   Q.  That was also your opinion, isn't that right?

   9            (Witness consults with interpreter)

  10   A.  (Through the interpreter) My opinion is not that of the

  11   members of the al Qaeda.

  12            MR. SCHMIDT:  Members of?

  13            THE INTERPRETER:  Of the al Qaeda.

  14   Q.  Now, you testified on redirect that you heard Abu Hajer or

  15   Mr. Salim at least more than ten times speaking; is that

  16   correct?

  17   A.  Yes.

  18   Q.  And you previously testified that you never heard Abu, I

  19   think on cross-examination by one of the other attorneys, that

  20   you never heard Abu Hajer talk about --

  21            MR. FITZGERALD:  Objection to scope, your Honor.

  22            THE COURT:  I can't tell until I hear the rest of the

  23   question.

  24   Q.  You testified on cross-examination by Mr. Ruhnke, the

  25   other gray-haired gentleman over there, that you never heard


   1   Abu Hajer or Salim issue a statement about it being okay to

   2   kill civilians because if they're good, they will go to

   3   heaven, if they're bad, they will go to hell.  Remember

   4   testifying to that?

   5   A.  Yes.

   6            MR. FITZGERALD:  Objection to scope, Judge.  Recross.

   7            THE COURT:  Overruled.

   8   BY MR. SCHMIDT:

   9   Q.  In fact, not only did you never hear Abu Hajer say that,

  10   you never heard any discussion with al Qaeda about something

  11   like that; isn't that correct?

  12   A.  I don't remember.

  13   Q.  You don't remember ever having a discussion like that or

  14   hearing a discussion; isn't that correct?

  15   A.  About what is going on in Egypt?

  16   Q.  No.  Mr. Ruhnke asked you if you have heard Mr. Salim, Abu

  17   Hajer, make a statement in effect that it's okay if civilians

  18   get killed because if they're good, they go to heaven, if

  19   they're bad, they go to hell; you remember that conversation?

  20   A.  Yes.

  21   Q.  And you remember you told him, you said, I never heard Abu

  22   Hajer say anything like that; isn't that correct?

  23   A.  Yes.

  24   Q.  In fact, you never heard any member of al Qaeda having

  25   discussion like that; isn't that correct?


   1   A.  A discussion about killing innocent people?

   2   Q.  They will go to heaven and to hell, am I correct?

   3   A.  Yes.

   4   Q.  You also testified on cross-examination -- excuse me, on

   5   redirect examination by the government that Mohamed el Masry

   6   deftly went to Somalia to fight against the Americans; do you

   7   remember saying that?

   8   A.  Yes.

   9   Q.  Now, what you heard was that the Somalis asked for help to

  10   get the United Nations and the United States out of Somalia,

  11   isn't that right?

  12   A.  I don't know if they asked for help and to who they asked

  13   for help from who, but they were training there and they were

  14   fighting United Nations.

  15   Q.  Are you aware of the date that the Americans left Somalia?

  16   A.  No.

  17   Q.  You were in Kenya already by the time that you heard this

  18   information; is that correct?

  19   A.  Yes.

  20   Q.  And you had been in Kenya for many months when you heard

  21   that information; isn't that correct?

  22   A.  Yes.

  23   Q.  And you also heard that the U.N. and the United Nations

  24   and the United States killed many Somalis by the time that --

  25            MR. FITZGERALD:  Objection to scope, 401 and 403.


   1   Q.  -- Mohamed el Masry --

   2            THE COURT:  Objection sustained.

   3            MR. SCHMIDT:  I have no further questions.

   4            THE COURT:  Anything further?

   5            MR. WILFORD:  No questions on behalf of Mr. Odeh,

   6   your Honor.

   7            MR. COHN:  Mr. al-'Owhali has none.

   8            MR. RUHNKE:  No questions, your Honor.

   9            THE COURT:  Very well.

  10            MR. FITZGERALD:  None from the government.

  11            THE COURT:  Very well.  Thank you.  You may step

  12   down.

  13            (Witness excused)

  14            THE COURT:  And the government may proceed to the

  15   next order of business.

  16            MR. KARAS:  Your Honor, at this time we would ask

  17   that the stipulation marked as Government Exhibit 35 be read.

  18            THE COURT:  Very well.

  19            "It is hereby stipulated and agreed by and between

  20   the United States of America and counsel for all the

  21   defendants, and the defendants with the consent of their

  22   counsel, as follows:

  23            "1.  Government Exhibit 93 is an authentic copy of an

  24   article that appeared in a newspaper known as Al Quds 

  25   al-Arabi, which is published daily in London, England, on


   1   February 23, 1998, and that Government Exhibit 93-T is a fair

   2   and accurate translation of the article that is marked as

   3   Government Exhibit 93."

   4            It is so stipulated.

   5            MR. KARAS:  Your Honor, at this time we would offer

   6   Government Exhibits 35, 93 and 93-T.

   7            THE COURT:  Received.

   8            (Government Exhibits 35, 93 and 93-T received in

   9   evidence)

  10            MR. KARAS:  What we would propose to do, your Honor,

  11   is to display 93 and then read 93-T.

  12            THE COURT:  Yes, you may.

  13            A JUROR:  We're having a problem.

  14            THE COURT:  You're having a problem with that viewer?

  15            A JUROR:  We just got to pick it up.

  16            THE COURT:  Oh.

  17            A JUROR:  Fixed.

  18            THE COURT:  There we go.

  19            (Exhibit 93-T read)

  20            MR. KARAS:  Your Honor, the next order of business

  21   will involve the playing of a tape which will last

  22   approximately 50 minutes.

  23            THE COURT:  50 minutes?

  24            MR. KARAS:  Five, zero, yes.

  25            THE COURT:  You want to break it up?  I don't know,


   1   it doesn't have to be all at once, does it?

   2            MR. KARAS:  No, we can break it up.

   3            THE COURT:  Why don't you start and we'll break.

   4            MR. KARAS:  Your Honor, we have a stipulation that's

   5   marked as Government Exhibit 34.

   6            THE COURT:  Very well.

   7            MR. KARAS:  "It is hereby stipulated and agreed by

   8   and between the United States of America and the defendants

   9   with the consent of their attorneys as follows:

  10            "1.  Government Exhibit 81 is an authentic copy of a

  11   videotape of an interview conducted by representatives from

  12   ABC news with Usama Bin Laden in Afghanistan on May 28, 1998.

  13            "Portions of the interview aired on ABC on June 10,

  14   1998, and a transcript of the entire interview later appeared

  15   on the ABC news website.  Government Exhibit 81-T is a fair

  16   and accurate translation of the interview that is depicted in

  17   Government Exhibit 81."

  18            Signed by counsel.

  19            Your Honor, at this time we would offer Government

  20   Exhibits 34, 81 and 81-T.

  21            THE COURT:  Received.

  22            (Government Exhibits 34, 81 and 81-T received in

  23   evidence)

  24            MR. KARAS:  And we would propose to hand out 81-T

  25   while we play the videotape.


   1            THE COURT:  Yes, you may.

   2            (Government Exhibit 81 played)

   3            THE COURT:  Perhaps this is a good place to break and

   4   we'll pick that up after lunch, and we're adjourned until

   5   2:00.

   6            (Luncheon recess)





















   1                         AFTERNOON SESSION

   2                             2:10 p.m.

   3            (Jury not present)

   4            MR. SCHMIDT:  Your Honor, we have some issues with

   5   the redactions that the government has made to the statement

   6   of Mr. Odeh.  My understanding today is that they plan to

   7   offer the statement this afternoon, and we received a copy

   8   during lunch of the redacted statement.

   9            THE COURT:  We will take it up.  We have about what,

  10   another half hour of this video?

  11            MR. KARAS:  About 20 minutes of the video.

  12            THE COURT:  And then there are some other matters?

  13            MR. FITZGERALD:  Yes.  If the stipulation is signed

  14   by all counsel on the wiretap, we will have a chunk of

  15   transcripts to read and a brief witness before we get to Agent

  16   Anticev.

  17            THE COURT:  We will take it up then before that.

  18            (Jury present)

  19            THE COURT:  I believe we were on page 6, is that

  20   correct?

  21            MR. KARAS:  Yes, Judge.

  22            (Videotape resumed)

  23            THE COURT:  Mr. Fitzgerald.

  24            MR. FITZGERALD:  Yes, your Honor.  At this time I

  25   would offer in a stipulation previously marked as Government's


   1   Exhibit 36 for identification.

   2            THE COURT:  Yes.

   3            MR. FITZGERALD:  I would ask the court to read the

   4   first three paragraphs, and -- or if you prefer I could read

   5   it -- to omit dates and times specified, to save time.

   6            THE COURT:  Go ahead.

   7            MR. FITZGERALD:  It is hereby stipulated and agreed

   8   by and between the United States of America and the defendants

   9   by and with the consent of their undersigned attorneys as

  10   follows:

  11            1.  That for the time period including on or about

  12   July 1996 through September 1997, the Kenyan telephone number

  13   254820067 was assigned to a telephone which was located at

  14   1523 Fedha Estates, a building in Nairobi, Kenya, which was

  15   used as a residence by Wadih El Hage and his family.  During

  16   that time period the telephone was wiretapped.  Calls to and

  17   from the telephone number were being recorded on a tape

  18   recording machine in a secure location in the Nairobi, Kenya,

  19   area.  The parties agree that the tapes generated by the

  20   wiretap are fair and accurate recordings of the conversations

  21   taking place over those telephone lines.  Tapes generated by

  22   the wiretap included the following government's exhibits,

  23   which were recorded on or about the date and time indicated

  24   and outgoing telephone calls were placed to the telephone

  25   number indicated.


   1            It then recites approximately 25 different exhibits

   2   with times and dates, which I will not read into the record at

   3   this time.

   4            THE COURT:  Very well.

   5            MR. FITZGERALD:  Paragraph 2 states that for the time

   6   period including in or about July 1996 through September of

   7   1997, the Kenyan telephone number 25471202219 was assigned to

   8   a telephone in Nairobi which was subscribed to by Ahmed Sheik

   9   Aden.  During that time period, the telephone was wiretapped.

  10   Calls to and from the telephone number were being recorded on

  11   a tape recording machine in a secure location in the Nairobi

  12   area.  The tapes generated by the wiretap included the

  13   following government's exhibits, which were record on or about

  14   the dates indicated and outgoing calls placed to the telephone

  15   number indicated.  I omit reading now the exhibit dates and

  16   times.

  17            THE COURT:  Very well.

  18            MR. FITZGERALD:  Paragraph 3 states that for the time

  19   period including in or about July 1996 through September 1997,

  20   Kenyan telephone number 254820067 was assigned to a telephone

  21   in Nairobi which was subscribed to by Wadih El Hage.  During

  22   part of that time period, the telephone was wiretapped to

  23   intercept facsimile transmissions to and from the telephone

  24   number, which were recorded on a machine in a secure location

  25   in the Nairobi area.  The fax transmissions recorded include


   1   the following government's exhibits, which were received on or

   2   about the date and time indicated and outgoing faxes were sent

   3   to the telephone number indicated.  I will omit reading

   4   particular numbers, and there are other paragraphs that need

   5   to be read at another time.

   6            THE COURT:  Very well.

   7            MR. FITZGERALD:  At this time, your Honor, I would

   8   offer in evidence the following tapes and tape transcripts:

   9   201A and 201A-T; 202A and 202A-T; 203A and 203A-T; 204A and

  10   204A-T; 204B and 204B-T; 205A and 2505A-T; 207A and 207A-T;

  11   207B and 207B-T; 207C and 207C-T; 208A and 208A-T; 209A and

  12   209A-T; 209B, 209B-T and 209C-T; 210A and 210A-T; 211B and

  13   211B-T; 211C and 211C-T; 211D and 211D-T; 212A and 212A-T;

  14   213A and 213A-T; 214A and 214A-T; 215A, 215A-T; 216A and

  15   216A-T; 217A and 217A-T; 217B and 217B-T; 218A and 218A-T;

  16   219A and 219A-T; 220A and 220A-T; 220B and 220B-T; 221A and

  17   221A-T -- just two more -- 222A and 222A-T; and 223A and

  18   223A-T.  And the stip, Government's Exhibit 36.

  19            THE COURT:  All this is offered in evidence?

  20            MR. FITZGERALD:  Yes, your Honor.

  21            THE COURT:  Exhibit 36 and 201A to 223A-T as just

  22   read are received in evidence.

  23            (Government's Exhibits 36; 201A and 201A-T; 202A and

  24   202A-T; 203A and 203A-T; 204A and 204A-T; 204B and 204B-T;

  25   205A and 2505A-T; 207A and 207A-T; 207B and 207B-T; 207C and


   1   207C-T; 208A and 208A-T; 209A and 209A-T; 209B, 209B-T and

   2   209C-T; 210A and 210A-T; 211B and 211B-T; 211C and 211C-T;

   3   211D and 211D-T; 212A and 212A-T; 213A and 213A-T; 214A and

   4   214A-T; 215A, 215A-T; 216A and 216A-T; 217A and 217A-T; 217B

   5   and 217B-T; 218A and 218A-T; 219A and 219A-T; 220A and 220A-T;

   6   220B and 220B-T; 221A and 221A-T; 222A and 222A-T; and 223A

   7   and 223A-T received in evidence)

   8            MR. FITZGERALD:  At this time, your Honor, we will be

   9   reading a subset of those exhibits and we have a book to hand

  10   to the jury.  Where the calls are in English they will be on a

  11   loudspeaker but the translations will be read aloud.

  12            THE COURT:  Ladies and gentlemen, where the

  13   transcripts are in English, it is what you hear that is in

  14   evidence and the transcripts are only an aid for you.  If in

  15   your opinion there is a difference between what you hear in

  16   English and what appears on the transcript, it is what you

  17   hear that controls.

  18            MR. FITZGERALD:  I just need to distribute the

  19   binders.

  20            THE COURT:  Yes.

  21            MR. FITZGERALD:  Your Honor, Mr. Francisco and Mr.

  22   Butler will read the parts until Miss Sader arrives.  On the

  23   transcript I will indicate from the stipulation when we read

  24   the date and time of the call.

  25            The first one we shall read is transcript 201A-T,


   1   which is a call from October 3, 1996.

   2            (Government's Exhibit 201A-T read to the jury)

   3            MR. FITZGERALD:  The next conversation we will read

   4   is 202A, recorded on October 28, 1996.

   5            (Government's Exhibit 202A read to the jury)

   6            MR. FITZGERALD:  Your Honor, at this time we would

   7   play Government's Exhibit 204A and 204B, which are telephone

   8   calls recorded on November 6, 1996, at 1636 and 1902, and they

   9   are in English but there is a transcript to aid in reviewing

  10   the tape.

  11            (Tapes 204A and 204B played)

  12            THE COURT:  DHL is what?

  13            MR. FITZGERALD:  DHL, the company.

  14            THE COURT:  After, explain it.

  15            (Playing continued)

  16            MR. FITZGERALD:  DHL is a company.

  17            The next one is a short call, 204B, also November 6,

  18   1996, in 1992, in English, and DHL will refer to the business,

  19   not a person.

  20            THE COURT:  DHL, the delivery company?

  21            MR. FITZGERALD:  Exactly, Judge.

  22            (Government's Exhibit 204B played)

  23            (Continued on next page)


  25            MR. FITZGERALD:  The next call we will read is


   1   205A-T, which occurred six days later, on November 12th, 1996

   2   at 15:14.  It's in Arabic so we will read the translation.

   3            (Government Exhibit 205A-T read to the jury)

   4            MR. FITZGERALD:  And the next one and last one in

   5   this series we'll read is Government Exhibit 207-C, which was

   6   recorded on December 17th, 1996, at 8:35.  It is in Arabic, so

   7   we will read the transcript.

   8            (Government Exhibit 207-C read to the jury)

   9            MR. FITZGERALD:  Your Honor, at this time the

  10   government would call Kibarua Mjitta.

  11            THE COURT:  We'll take a recess before that time.

  12   We'll take our mid afternoon recess.

  13            (Jury not present)

  14            THE COURT:  Do the defendants want to take this as a

  15   prayer recess?

  16            MR. HERMAN:  I think it's a little early for a prayer

  17   recess.

  18            THE COURT:  A little too early.

  19            MR. SCHMIDT:  You want to deal with that other issue?

  20            THE COURT:  All right.  What is the other issue?

  21            MR. DRATEL:  We have two issues with respect to

  22   Mr. Odeh's statement of the government's redactions.  One is a

  23   Bruton issue, which I'll address first, which is, I'll read

  24   the -- if I have the redacted version here.  I'll find the

  25   unredacted.  It has to do with the identification of Mr. El


   1   Hage.

   2            THE COURT:  Yes.

   3            MR. DRATEL:  They take out the names, but in fact

   4   everything around it clearly indicates who it is based on not

   5   only other evidence, but also the fact that Mr. El Hage is

   6   asked specifically about this in the Grand Jury.

   7            THE COURT:  I have to see something in front of me.

   8   This is getting a little too abstract.

   9            What page are we on?

  10            MR. DRATEL:  Page 23, your Honor, of 3507-1, I think

  11   it is.  The redacted one is not marked.  3507-1.

  12            MR. FITZGERALD:  We'll call it Government Exhibit 6.

  13   In 3505 the numbers are different.  We gave you the unredacted

  14   one for 3500 purposes, so we'll call this Government Exhibit

  15   6.

  16            MR. DRATEL:  Right.

  17            THE COURT:  What pages am I looking at?

  18            MR. DRATEL:  Page 23, your Honor.

  19            THE COURT:  Page 23, which begins with "the other"

  20   blank?

  21            MR. DRATEL:  Yes, it's the -- yes.  Go down to the

  22   third full paragraph, the one that begins "Odeh stated that

  23   Wadih El Hage."

  24            THE COURT:  I have the redacted copy, which says

  25   "Odeh stated" blank.


   1            MR. DRATEL:  Right.  "Odeh stated Wadih El Hage gave

   2   him an identification card for NGO Africa Help," and it's our

   3   position that that could be redacted easily so as not to make

   4   it obvious that it's Mr. El Hage, not to identify Mr. El Hage.

   5            You could just simply say "Odeh stated that he was

   6   given an identification card for an NGO" and that would

   7   resolve the issue.

   8            MR. FITZGERALD:  Your Honor, that would be redacting

   9   out which NGO it is.  We intend to elicit --

  10            THE COURT:  How about, "Odeh stated he was given an

  11   identification card for NGO Africa Help"?

  12            MR. DRATEL:  Africa Help is Mr. El Hage's NGO.

  13            THE COURT:  Yes.

  14            MR. DRATEL:  In fact, he's asked that in the Grand

  15   Jury based upon this very statement.  Mr. El Hage is asked

  16   that question in the Grand Jury, a month later, based on this

  17   very statement by Mr. Odeh about the I.D. card.

  18            MR. FITZGERALD:  His perjury shouldn't take out

  19   relevant evidence.  Are we going to redact al Qaeda?  It's the

  20   NGO Help Africa People that did something wrong.  The witness

  21   will say he received an identity card the minute he received

  22   an identity card to Help Africa People.  The fact that he

  23   received an NGO shouldn't give him license to take out that

  24   proof.

  25            THE COURT:  There isn't anything inherent in Africa


   1   Help or an NGO that indicates this has to be El Hage.

   2            MR. DRATEL:  But, your Honor, if you couple this

   3   statement -- when the government took his statement August of

   4   '89, a month later, Mr. El Hage in the Grand Jury, they asked

   5   him specifically about this identity card.  And when you put

   6   the two together, it is going to be inescapable for the jury

   7   to know it's Mrs. El Hage.  And we can't cross examine that

   8   information and that's what Bruton is all about.

   9            THE COURT:  So you want it to read, "Odeh stated that

  10   he was given identification card for an NGO and Odeh used this

  11   card," right?

  12            MR. DRATEL:  Yes.

  13            THE COURT:  That's what you want?

  14            MR. DRATEL:  Yes.

  15            MR. FITZGERALD:  First of all, it is not disputed

  16   that Harun has been involved in false documents.  The witness,

  17   Kherchtou, indicated that he saw El Hage and Harun had

  18   identification documents in the computer.

  19            If we take out "the Help Africa People gave out an

  20   identity card," Mr. Schmidt or Mr. Dratel will be arguing to

  21   the jury that that was nothing but the pure, clean NGO relief

  22   work.

  23            Odeh admitted he got an identification card from that

  24   document.  It does not indicate that it has to be Wadih El

  25   Hage versus Haroun, and I don't think that's what Bruton calls


   1   for.

   2            THE COURT:  I agree.  And the fact that the

   3   identification card is for Africa Help doesn't mean that in

   4   fact it was an authentic identification card or that somebody

   5   else didn't make up an identification card for Africa Help.

   6            I'm familiar with the Supreme Court and other cases

   7   that say there is a Bruton problem even though the name is

   8   deleted when the context makes it clear that it could only be

   9   one person, but this context doesn't make it clear that it

  10   could only be El Hage who furnishes the identification card.

  11            MR. DRATEL:  Your Honor, the government, from what

  12   Mr. Fitzgerald just said, they're planning to use this as

  13   affirmative evidence against Mr. El Hage, which we cannot meet

  14   by cross-examination.

  15            The other thing is that with respect to evidence, the

  16   government has other evidence about I.D. cards.  Coming from

  17   the computer they have what's already in evidence are I.D.

  18   cards that were printed from the computer.  They also have the

  19   testimony, I believe, of Mr. Kherchtou that he saw I.D. cards

  20   being used.

  21            MR. FITZGERALD:  Unless I hear Mr. Dratel saying he

  22   will stipulate Mr. El Hage was involved in false

  23   identification documents, I don't think the fact that there

  24   may be other evidence in the record takes this out.  In fact,

  25   in the Grand Jury Mr. El Hage denied he gave a card.  He's not


   1   charged with perjury for that answer, so he will --

   2            THE COURT:  He is or is not?

   3            MR. FITZGERALD:  He is not charged with perjury for

   4   that answer.

   5            MR. DRATEL:  But, your Honor, what they want to do is

   6   argue against Mr. El Hage for Mr. Odeh's statement, which is

   7   exactly what Bruton's all about.

   8            MR. FITZGERALD:  We're not going to take that

   9   statement and argue Mr. El Hage gave that card.  We do intend

  10   to argue that Help Africa People was involved in providing

  11   identity cards, just like we intend to argue that the al Qaeda

  12   identity was corrupt.

  13            MR. DRATEL:  Your Honor, the point is it's not

  14   produced --

  15            THE COURT:  I don't see this as a Bruton problem.  

  16   Bruton applies where the context makes clear that the only

  17   person who could have been the reference is the defendant.

  18   But anybody could have given an identification card for Africa

  19   Help, it need not have been only El Hage.

  20            I don't know whether any other people were involved

  21   in Africa Help or if it was a one-man operation, and the jury

  22   won't know that either, so that it isn't a compelled

  23   inference.

  24            MR. DRATEL:  Your Honor, they could use it against

  25   Mr. El Hage, not against Mr. Odeh.  So what we have is a


   1   codefendant statement coming in against another defendant and

   2   not against the defendant who made it.

   3            THE COURT:  Well, what use is the government going to

   4   make of it?

   5            MR. FITZGERALD:  It goes to the enterprise which says

   6   that, as charged in the indictment, al Qaeda used

   7   non-government organizations to carry out its work.  It's

   8   going to the overall existence of the conspiracy, not to El

   9   Hage's participation in it.

  10            MR. DRATEL:  If that's the case, your Honor, then the

  11   name of the NGO is not important enough to overcome the

  12   Bruton, the problem of introducing Mr. Odeh's statement

  13   against Mr. El Hage.

  14            MR. FITZGERALD:  No, the --

  15            THE COURT:  No, no, I've heard enough.  I've heard

  16   enough argument.  Well, if we leave "Africa Help," it doesn't

  17   make any difference if we put it in the passive or the active.

  18            MR. DRATEL:  I think it is better in the passive as

  19   well, your Honor, if we're going to leave out --

  20            THE COURT:  "Odeh stated that he was given an

  21   identification" --

  22            MR. DRATEL:  -- card for the NGO Africa Help," if

  23   "Africa Help" is going to stay in.

  24            THE COURT:  All right.

  25            MR. FITZGERALD:  That's fine, Judge.


   1            THE COURT:  Very well.  Is that it?

   2            MR. DRATEL:  That's it for the Bruton issue.  There

   3   is another issue, which was a 403 issue, and it also has to do

   4   with the certain things that were redacted -- not redacted,

   5   but were not addressed in the cross-examination of other

   6   witnesses, which is the -- I'll find the page for your Honor.

   7            Page 25.

   8            THE COURT:  Page 25.

   9            MR. DRATEL:  And at the end of the second full

  10   paragraph, the last statement, which is, "Odeh stated that the

  11   operation conducted against Khobar was 100 times better than

  12   Nairobi."

  13            THE COURT:  Yes.

  14            MR. DRATEL:  And we've taken Khobar out of the case

  15   and we think that this is just simply too prejudicial, too

  16   confusing, misleading for the jury.  It doesn't affect the

  17   nature of the statement at all.

  18            THE COURT:  Has Khobar been taken out?

  19            MR. FITZGERALD:  Yes, Judge.  We're not contending

  20   that Odeh had participated in Khobar.  What is distinguishing

  21   here is the fact that in Khobar they successfully got the bomb

  22   near the building.  They killed their targets, which were

  23   Americans.  In Nairobi, what he says during this time is that

  24   the bomb killed the civilians surrounding it.  His analogy

  25   that Khobar was much better shows that he thinks that a good


   1   operation was one which would blow up the embassy and leaving

   2   the buildings nearby intact, and that goes to precisely what

   3   is charged in the indictment -- killing Americans.

   4            MR. COHN:  Your Honor, the record should be clear, we

   5   join in this application.

   6            THE COURT:  It's denied.

   7            MR. DRATEL:  Your Honor, may I just -- can we

   8   stipulate that, just what Mr. Fitzgerald said:  None of the

   9   defendants are accused of participating in the Khobar bombing

  10   and that al Qaeda is not responsible for the Khobar bombing.

  11            MR. FITZGERALD:  I'll stipulate that none of the

  12   defendants are charged with participating in the bombing.  I'm

  13   not giving al Qaeda --

  14            MR. DRATEL:  Charged with -- no, your Honor, that

  15   raises the issue there is another case, they're charged

  16   somewhere else.  They didn't participate.  They have no

  17   evidence that any of the defendants participated in that

  18   bombing.  Or even al Qaeda.  They know it's not al Qaeda.

  19            MR. FITZGERALD:  I'm not standing up here and telling

  20   your Honor al Qaeda had nothing to do with a terrorist act in

  21   Saudi Arabia.  I would say no one is charged with it.

  22            THE COURT:  I don't think the government should be

  23   compelled to stipulate to something that it doesn't believe is

  24   truthful.  It has offered to stipulate to what is relevant to

  25   this case, and that is that the defendants in this case are


   1   not charged with any involvement with respect to Khobar.

   2            MR. DRATEL:  I think to say -- they didn't

   3   participate in it.  Your Honor, just not charged with it is

   4   vague.  It's always like being told that you're not supposed

   5   to think about something outside the box and then they think

   6   what's outside the box.

   7            It also raises the question for us as, what can we do

   8   to meet this?  Do we now want discovery on Khobar?  Do we have

   9   to put evidence on about Khobar that al Qaeda didn't know?

  10            THE COURT:  What is the language you want in the

  11   stipulation?

  12            MR. DRATEL:  That the defendants, that there is no

  13   evidence --

  14            THE COURT:  The government does not claim in this

  15   case that there is any participation by the defendants with

  16   respect to Khobar?

  17            MR. DRATEL:  No, "in this case" raises an issue of

  18   another case.  That's what I think when I hear "in this case."

  19            The government stipulates that the defendants did not

  20   participate -- these defendants did not participate in Khobar

  21   and they do not have evidence that al Qaeda did.

  22            MR. COHN:  Your Honor, I don't know about Mr. Dratel,

  23   but I'm willing to say that we'll do that without prejudice to

  24   any other case they want to bring, this case now.  If they are

  25   concerned we're going to bind them in some later case, I'm


   1   willing to get rid of that on the spot, but I don't know

   2   whether Mr. Dratel is or not.  But the fact is that I think

   3   he's eminently correct that by saying, not now, maybe later,

   4   the jury speculates what to think.

   5            MR. FITZGERALD:  I think if we tell the jury that no

   6   defendants are charged with participating, that that is

   7   sufficient and not giving people clean bills of health as to

   8   things I don't know what they did.  I think every time we do

   9   this --

  10            THE COURT:  No defendants are charged, not in this

  11   case.  It is stipulated that.

  12            MR. DRATEL:  "In this case" I think is --

  13            THE COURT:  Yes.

  14            MR. DRATEL:  I don't want "in this case."

  15            THE COURT:  No, I'm saying, "It is stipulated no

  16   defendants are charged with participating" --

  17            MR. FITZGERALD:  "In the Khobar bombing."

  18            THE COURT:  -- "in the Khobar bombing."

  19            MR. DRATEL:  Your Honor, also I think we should say

  20   the government does not allege that al Qaeda was responsible

  21   for the Khobar bombing, which I think is a correct statement.

  22            THE COURT:  If al Qaeda was responsible -- do you

  23   want me to tell now the jury what the law of conspiracy is?

  24            MR. DRATEL:  It's not charged in the indictment, your

  25   Honor.  It's not been charged at all.


   1            THE COURT:  I think, "It is stipulated that no

   2   defendants are charged with participating in the Khobar

   3   bombing" really, I think --

   4            MR. COHN:  Or in conspiring to do same, how about

   5   that, your Honor?  That leaves al Qaeda out of it and gets us

   6   out of the conspiracy.

   7            THE COURT:  "Or in conspiring with respect thereto."

   8            MR. COHN:  That is great.

   9            MR. DRATEL:  Your Honor, I think you can say "the

  10   defendants are not alleged to have been involved."

  11            THE COURT:  You prefer that?

  12            MR. DRATEL:  That the defendants are not alleged to

  13   be involved.

  14            THE COURT:  Instead of "are charged with"?  Now, this

  15   is getting to be like a committee drafting a horse.

  16            "It is stipulated that no defendants are charged with

  17   participating in the Khobar bombing or in conspiring with

  18   respect thereto."  Okay?

  19            Now is it time for the -- can we now have a prayer

  20   recess.

  21            MR. COHN:  Yes.

  22            (Recess)

  23            MR. DRATEL:  Just to complete what we did before

  24   recess, it was pointed out to me that perhaps my silence might

  25   be construed as assent.  Obviously our position would be that


   1   the Court's intended instruction is insufficient; that we

   2   would prefer the language that we had proposed -- simply that

   3   the government does not allege that al Qaeda or any of the

   4   defendants here were involved in or participated in the Khobar

   5   bombings in Saudi Arabia.

   6            THE COURT:  Okay.  And your objection is noted, but

   7   the language that we are going to use is:  "It is stipulated

   8   that no defendants are charged with participating in the

   9   Khobar bombing or in conspiring with respect thereto."

  10            And I'll read that -- you're going to read that

  11   statement?

  12            MR. FITZGERALD:  The agent will testify and I think

  13   at some point we may offer the statement, but when it comes up

  14   in his testimony, if your Honor doesn't do it sua sponte, I

  15   will remind you.

  16            THE COURT:  Okay.

  17            MR. DRATEL:  Is the government going to offer the

  18   document?

  19            MR. FITZGERALD:  We're going to mark the document.

  20   We're going to discuss it with Mr. Ricco.  Mr. Ricco may want

  21   the document evidence.  We're not going to do that in the

  22   presence of the jury.  We can discuss that out of the presence

  23   of the jury at the end of the day.

  24            MR. DRATEL:  The only question I have, your Honor, is

  25   just the issue of redaction, the jury being aware of


   1   redactions and some instruction as to the -- about redactions.

   2   I'm not sure exactly how to address that.  Something to the

   3   effect that, you are not to draw any conclusions, it has

   4   nothing to do with anything that is relevant to them.

   5            THE COURT:  There gets to be a point, you know, you

   6   keep making an analogy about being instructed not to think of

   7   something, there gets to be a point where it becomes

   8   counterproductive.

   9            MR. DRATEL:  I understand, your Honor, but if --

  10            THE COURT:  You give me in writing tomorrow morning

  11   the language that you would like the jury to have if and when

  12   the document itself is received in evidence.

  13            MR. DRATEL:  Thank you, your Honor.

  14            (Jury present)


  16        called as a witness by the government,

  17        having been duly sworn, testified as follows:

  18            DEPUTY CLERK:  Please stand for a moment, sir.

  19   Please rise for a moment and please face the jury.

  20            THE WITNESS:  Stand up?

  21            (Witness sworn)

  22            DEPUTY CLERK:  Stand up.

  23            THE WITNESS:  I should say that?

  24            What I'm saying is the truth and nothing but the

  25   truth.


   1            DEPUTY CLERK:  Please be seated.

   2            Please state your full name, sir.



   5   Q.  If you lean forward into the microphone and state your

   6   name, full name for the record.

   7   A.  My name is Kibarua Mikiir Mjitta.

   8   Q.  You have to sit forward with the microphone.  It's

   9   directional.  If you get it six inches away from your mouth

  10   and speak clearly, then everyone will hear.

  11            If you could just state your name again.

  12   A.  My name is Kibarua Mikiir Mjitta.

  13   Q.  Why don't we go over that a little more slowly.  Kibarua,

  14   can you spell Kibarua for the record?

  15   A.  K-I-B-A-R-U-A.

  16   Q.  Okay.  And Mikiir, could you spell that?

  17   A.  M-I-K-I-I-R.

  18   Q.  And Mjitta, could you spell that?

  19   A.  M-J-I-T-T-A.

  20   Q.  Can you tell the jury where you were born, what country?

  21   A.  Kenya.

  22   Q.  And could you tell the jury how old you are?

  23   A.  Born in 1957.

  24   Q.  And what do you do for a living?

  25   A.  I'm a civil servant.


   1   Q.  And as a civil servant who do you work for in Kenya?

   2   A.  Fisheries Department.

   3   Q.  And for the Fisheries Department, do you work in a

   4   particular location or job?

   5   A.  Kilifi.

   6   Q.  Is that K-I-L-I-F-I?

   7   A.  K-I-L-I-F-I.

   8   Q.  And can you tell the jury roughly where Kilifi is in

   9   Kenya?

  10   A.  I beg your pardon?

  11   Q.  Is it near Khost, Kilifi?

  12   A.  It's Khost province.

  13   Q.  How long have you worked for the Fisheries Office?

  14   A.  This is the 21st year.

  15   Q.  21st year?

  16   A.  Yes.

  17   Q.  How long have you worked for the Fisheries Office in

  18   Kilifi?

  19   A.  From 1988.

  20   Q.  Can you tell the jury what you do for the Fisheries

  21   Department in Kilifi?

  22   A.  I write both monthly and annual reports and collect

  23   statistics and do fish processing, meaning inspection, and the

  24   quality control.

  25   Q.  Inspection and what type of control?


   1   A.  Fish quality control.

   2   Q.  So you make sure that the fish are of good quality?

   3   A.  For human consumption.

   4   Q.  Now, did there come a time when you met a person by the

   5   name of Mohamed Odeh?

   6   A.  Yes.

   7   Q.  Can you tell the jury how you met Mohamed Odeh?

   8   A.  I met him in early 1996.  I was introduced to him by my

   9   fellow officer.

  10   Q.  And where was it that you met Mohamed Odeh?

  11   A.  Pardon?

  12   Q.  Where did you meet him?

  13   A.  Where?

  14   Q.  Yes.

  15   A.  At the Fishery port.

  16   Q.  Is Mohamed Odeh involved in the fish business?

  17   A.  Fishery?  I beg your pardon?

  18   Q.  Is Mohamed Odeh, was he working in the fish business?

  19   A.  Yes, he was working fish business, yes.

  20   Q.  And how often did you see Mohamed Odeh after you first met

  21   him in 1996?

  22   A.  Twice or once every month.

  23   Q.  And do you know, was there a particular boat that he

  24   worked with in the fish business?

  25   A.  Yes, al Munarwar.


   1   Q.  And do you know if al Munarwar is an Arabic word or

   2   Swahili word?

   3   A.  Looks like Arabic word.

   4   Q.  And do you know what kind of car Mohamed Odeh drove?

   5   A.  Pardon?

   6   Q.  Did he drive a particular car?

   7   A.  Yes.  Toyota Corolla model 1990, KAD550V.

   8   Q.  So it's a 1990 Toyota Corolla.  And is KAD550V the license

   9   plate?

  10   A.  What?

  11   Q.  Is KAD550V the license plate, the registration?

  12   A.  Sure.

  13   Q.  And how do you remember the registration of his car?

  14   A.  He used to drive me in his car.

  15   Q.  What do you do when you meet people who work in the fish

  16   business?  What contact do they have with you at your job for

  17   the Fisheries Office in Kilifi?

  18   A.  Well, as a fish dealer, as Mohamed was a fish dealer, was

  19   supposed to produce for me a fish movement permit, a fish

  20   trader's license and a -- because he was telling me that he

  21   was bringing fish from Kiunga, was to give me what you call

  22   the daily fisherman's permit, which is issued by either

  23   another office in Lamu or Kiunga.

  24   Q.  And you mentioned Lamu, L-A-M-U, and Kiunga, K-I-U-N-G-A,

  25   and those are other towns in the Khost of Kenya, those


   1   other --

   2   A.  He told me he came from Kiunga or Lama, so those are the

   3   places I always knew about.

   4   Q.  And where is your office located?

   5   A.  Just at the beach.

   6   Q.  On the beach itself?

   7   A.  Yes.

   8   Q.  Now, did you notice anything unusual about the fish

   9   business that Mohamed Odeh was involved in?

  10   A.  Yeah, there was something unusual.

  11   Q.  What was that?

  12   A.  The problem was that he was loading off the fish at night.

  13   Q.  And are you allowed to offload fish -- strike that.  What

  14   happens during the day when people offload fish?

  15   A.  There's always the Customs officer, there's always the

  16   Fisheries officer.

  17   Q.  What do they do?

  18   A.  They inspect the fish.  The Customs officer makes sure

  19   that they issue the dockman, they inspecting always, and we,

  20   as the Fisheries Department, make sure that the fish is fit

  21   for human consumption and we get the correct documents.

  22   Q.  And does there come a time during the day when your office

  23   is closed?

  24   A.  Beg your pardon?

  25   Q.  Does there come a time every day when you close the office


   1   and go home?

   2   A.  Sure.  Yes.

   3   Q.  What time is that?

   4   A.  4:30.

   5   Q.  And the people who unload the boats, do they go home a

   6   certain time?

   7            The unloaders, are there people who work at Kilifi

   8   Port unloading boats?

   9   A.  Yeah, they go home.

  10   Q.  And how did you learn that Mohamed Odeh was offloading at

  11   night?

  12   A.  Yeah, the loaders complained to me that they are not

  13   receiving money from him because he was offloading his fish at

  14   night.  So they came, they complained to me.

  15   Q.  And did you ever have a conversation with Mohamed Odeh

  16   after you heard these complaints about the offloading at

  17   night?

  18   A.  Yes.

  19   Q.  And can you tell us what you said to him and what he said

  20   to you?

  21   A.  I called him in my office and I told him that the loaders

  22   were complaining that he was offloading fish at night and that

  23   they are not getting anything out of him, so he said he would

  24   stop.

  25   Q.  And did he stop offloading at night, as far as you know?


   1   A.  Well, first of all, I had to, before I told him I had to

   2   further investigate what the people were complaining was

   3   right.  In fact, we discovered that he was doing that, I

   4   called him in the office and I told him that he should don't

   5   quarrel with it, the office, because of the offloading fish at

   6   night.

   7   Q.  During that conversation, did he ever indicate to you why

   8   he was offloading at night?

   9   A.  No, he didn't tell me why.

  10   Q.  After he told you he would stop offloading at night, as

  11   far as you know, did he ever offload at night again?

  12   A.  He stopped offloading at night.

  13   Q.  And do you recall when it was that you had this

  14   conversation with Mohamed Odeh to stop offloading the fish

  15   boat at night?

  16   A.  The time?

  17   Q.  Yes.  I mean the year, the year and month.

  18   A.  The year, 1997.

  19   Q.  When did you start working in Kilifi?

  20   A.  Who?

  21   Q.  When did you start working in your current job at Kilifi?

  22   A.  Me?

  23   Q.  Yes.

  24   A.  Stop working?

  25   Q.  Start working.


   1   A.  I'm still there.

   2   Q.  When did you begin?

   3   A.  I began in 1988 to date.  I was in Kilifi station from

   4   1988 to date.

   5            MR. FITZGERALD:  Excuse me one moment, your Honor.

   6            (Pause)

   7            MR. FITZGERALD:  Nothing further, Judge.

   8            THE COURT:  Mr. Wilford.

   9            MR. WILFORD:  Thank you, sir.

  10            May I inquire, your Honor?

  11            THE COURT:  Yes.

  12            MR. WILFORD:  Thank you.


  14   BY MR. WILFORD:

  15   Q.  Good afternoon, Mr. Mjitta.

  16   A.  Good afternoon, sir.

  17   Q.  Did I pronounce your name correctly, sir?

  18   A.  Well, I can't get some of your words.

  19   Q.  Is your last name Mjitta; is that correct?

  20   A.  Yeah, my last name.

  21   Q.  Could you say it for me, please?

  22   A.  Spell?

  23   Q.  No, say it, pronounce it.

  24   A.  Mjitta.

  25   Q.  Mjitta.  Thank you, Mr. Mjitta.


   1            Mr. Mjitta, when you were working at Kilifi --

   2   A.  I'm still working there.

   3   Q.  I understand.  Back in 1997, there was a lot of fishing

   4   boats that came into that particular port; isn't that correct?

   5   A.  Sure.

   6   Q.  And is it your testimony that you have been working for

   7   the Department of Fisheries for about 21 years; is that

   8   correct?

   9   A.  Sure.

  10   Q.  Now, I would like to have displayed, only to the witness

  11   and to counsel, what has previously been marked as Odeh A for

  12   identification.

  13            I ask you to take a look at that screen, sir.  Do you

  14   see something on there?

  15   A.  Yeah, that is my office.

  16   Q.  Okay.  So you recognize that to be a fair and accurate

  17   depiction of the Port of Kilifi and the Fisheries Department

  18   office there; is that correct?

  19   A.  Yeah, that is my fish port and the other one in red is the

  20   office I sit.

  21            MR. WILFORD:  Your Honor, if there is no objection, I

  22   offer Odeh A into evidence.

  23            MR. FITZGERALD:  No objection.

  24            THE COURT:  Received.

  25            (Defendant Odeh Exhibit A received in evidence)


   1            MR. WILFORD:  I ask that the picture now be displayed

   2   to the jury as well.

   3            I would now ask that Odeh Exhibit B be displayed to

   4   the witness and counsel.

   5   Q.  Do you recognize that, sir?

   6   A.  Beg your pardon?

   7   Q.  Do you recognize that photograph?

   8   A.  Yes, this is the marine club.

   9   Q.  I'm sorry?  Is that part of the Kilifi fishing port?

  10   A.  The other side.

  11   Q.  The other side?

  12   A.  Yes.

  13   Q.  Is that a fair and accurate depiction of how it looks,

  14   Mr. Mjitta?

  15   A.  That is, that's the other side of.

  16   Q.  But that's the way the other side of it looks, right?

  17   A.  Yes.

  18            MR. WILFORD:  Your Honor, without objection, I offer

  19   Odeh B in evidence.

  20            THE COURT:  Received.

  21            (Defendant Odeh Exhibit B received in evidence)

  22   BY MR. WILFORD:

  23   Q.  In your capacity, in your job as the -- working for the

  24   Kenya Department of Fisheries, you are familiar with the

  25   process by which boats are registered, licensed and fishing


   1   permits are issued; isn't that correct?

   2   A.  Yes.

   3   Q.  What paperwork must be presented in order for a boat to be

   4   registered?

   5   A.  Well, when a boat is new, we first of all go to measure

   6   it, see the length, and then you give what you call the local

   7   vessel registration.

   8   Q.  Local vessel registration?

   9   A.  Yes.

  10   Q.  And then?

  11   A.  And the names, the owner, such like information.

  12   Q.  Okay.  Does any paperwork need to be presented to the

  13   Department of Fisheries to identify who the owner is or the

  14   person registering a particular boat?

  15   A.  Only for, only for fishing vessels.  Only for fishing

  16   vessels.  The owner is supposed to present that paper to show

  17   to us that that boat has been registered as a fishing vessel.

  18   Q.  And does the boat also have to get a particular license

  19   for that boat?  In addition to it being registered, is there a

  20   license for the boat as well?

  21   A.  If it is not a fishing vessel, it is a vessel that is

  22   carrying fish, it's supposed to have a fish movement permit, a

  23   fish movement permit, which is issued for vessels and is

  24   costing 1,000 Kenyan shillings.

  25   Q.  1,000 Kenyan shillings?


   1   A.  Shillings.

   2   Q.  Do you know how much that is in U.S. dollars, sir?

   3   A.  Well, maybe you can compute by dividing it by 78 Kenyan

   4   shillings.  By 78 shillings, because one dollar is 78 Kenyan

   5   shillings.

   6   Q.  A fishing license, there are two kinds of permits that you

   7   talked about, right?

   8   A.  Yes.

   9   Q.  One to move fish?

  10   A.  Yes.

  11   Q.  And one to actually fish, to actually catch fish from the

  12   ocean; is that correct?

  13   A.  Yes.

  14   Q.  Do you remember, sir, whether or not the boat that you

  15   described Mr. Odeh as owning, did that boat have a permit to

  16   move fish?

  17   A.  Yeah, I can remember it had a permit to move fish, but I

  18   can't remember where it was issued, but it had a fish movement

  19   permit.

  20   Q.  So it had a permit to move fish and also to catch fish

  21   from the ocean?

  22   A.  No, no, no, no, not to catch fish.

  23   Q.  No?  Only to catch fish?

  24   A.  Not to cash fish.

  25   Q.  Not to catch fish.


   1            Now, how many tons of fish, if you know, sir, were

   2   being transported on this boat?

   3   A.  Well, sometimes they used to tell me he had come with two

   4   tons, sometimes one ton.

   5   Q.  And the cost for the fishing permit you said was a

   6   thousand shillings.  What was the cost to simply register the

   7   boat?

   8   A.  I beg your pardon?

   9   Q.  The cost to register the boat, how much did it cost to

  10   register the boat?

  11   A.  The register?

  12   Q.  Yes.

  13   A.  For fishing or what?

  14   Q.  For fishing.  I'm only going to be speaking about fishing,

  15   not pleasure or cruises, only for fishing vessels.

  16   A.  For fishing vessels --

  17            THE COURT:  To catch or to move?

  18            MR. WILFORD:  Fishing vessels that move fish.

  19   A.  Fishing vessels, we have different classes.  We have

  20   called the canoes.  That's only registered with only 100

  21   Kenyan shillings.  Then you have the sports fisherman

  22   licenses, which are registered at 500 Kenyan shillings.

  23   Q.  The boat that you have described, the Munarwar, what would

  24   be the cost to register that particular boat as a fish moving

  25   vessel?


   1   A.  As for Mr. Odeh's boat, if it were for fishing, it would

   2   cost 500 shillings.

   3   Q.  And what about for moving fish?

   4   A.  1,000.

   5   Q.  So it's more expensive to move fish than it is to catch

   6   it?

   7   A.  Sure.

   8   Q.  Now, you met with agents from America and Kenyan Criminal

   9   Investigation Division personnel in October 1998; isn't that

  10   correct?

  11   A.  Well, it's not my country, but I know I met them.  I met

  12   them.

  13   Q.  You met with them in October 1998?

  14   A.  Yes.

  15   Q.  You met with them in February -- you met with only

  16   American agents on February 1, 1999; isn't that correct?

  17   A.  Yes.

  18   Q.  They came to your office and you talked with them?

  19   A.  Yes.

  20   Q.  And in May of last year, May 27 of last year, you met with

  21   American agents and CID personnel; isn't that correct?

  22   A.  Yes.

  23   Q.  And CID is the Criminal Investigation Division of the

  24   Kenyan police; is that correct?

  25   A.  Yes.


   1   Q.  That's a different branch of government than the one that

   2   you're in; is that correct?

   3   A.  Yes.

   4   Q.  You have to answer, sir, so she can take down what you are

   5   saying.

   6   A.  Oh, yes.

   7            THE COURT:  You had two questions.  You asked whether

   8   he met with them and whether CID was a different branch of

   9   government, and the answer was yes, I assume it was, to both

  10   parts, but it's not clear.

  11            MR. WILFORD:  The witness answered the first one.  I

  12   believe the answer to both was yes.

  13            THE COURT:  Very well.

  14   Q.  Isn't it a fact, sir, that Mr. Odeh personally went out on

  15   a boat, with a boat and went out to get fish and move fish;

  16   isn't that correct?

  17   A.  I beg your pardon?

  18   Q.  Mr. Odeh personally went out on a boat when the boat went

  19   out to move fish from one location to another; isn't that

  20   correct?

  21   A.  Sometimes he had accompanied the boat to go and take the

  22   fish.

  23   Q.  Right.  Not all the time, but sometimes he accompanied the

  24   boat; isn't that correct?

  25   A.  Yes.


   1   Q.  And he also, sir, isn't it correct, had people working for

   2   him on the boat; isn't that correct?

   3   A.  There were people working on his boat.

   4   Q.  Yes, there was a captain?

   5   A.  Yes.

   6   Q.  And there were some crewmen; isn't that correct?

   7   A.  Yes.  I know their names.

   8            MR. WILFORD:  I would ask that the map be displayed

   9   to the witness and counsel at this point.

  10            (Pause)

  11            MR. WILFORD:  I'll move on and hopefully we'll solve

  12   the technology glitch.

  13   Q.  Sir, when you were discussing Mr. Odeh's moving fish on

  14   the boat, do you know where he went to obtain the fish?

  15   A.  He told me personally that he took the fish from Kiunga.

  16   Q.  From where?

  17   A.  Kiunga.

  18   Q.  Could you spell that please, sir?

  19   A.  K-I-U-N-G-A.

  20   Q.  And that's in Kenya; isn't that correct?

  21   A.  Yes, it's in Kenya.

  22   Q.  Now, isn't it a fact that he also went to Kismayo,

  23   Somalia, to get fish as well?

  24   A.  That much I don't know.

  25   Q.  Excuse me?


   1   A.  That much he didn't tell me.

   2   Q.  Well, did you, sir, in fact not tell the American

   3   authorities when you spoke with them that one of the places

   4   that Mr. Odeh went to obtain fish was Kismayo, Somalia?

   5            You want to take a moment to think about it?

   6   A.  Me?

   7   Q.  Yes, you.

   8   A.  No, I didn't.  What he told me, Mr. Odeh, is that he took

   9   fish from either Lama or Kiunga.

  10   Q.  I'm not asking you what he told you at this point, sir.

  11   I'm asking you, isn't it a fact that you told the American

  12   authorities when they spoke with you that he obtained fish at

  13   Kismayo, Somalia?

  14   A.  No.  I don't remember that.

  15   Q.  You don't remember that?

  16   A.  No.

  17            MR. WILFORD:  The map is up now?  No.

  18            Judge, may I have just one moment?  May I approach

  19   the witness --

  20            THE COURT:  Yes.

  21            MR. WILFORD:  -- in an effort to refresh his

  22   recollection.

  23   Q.  Sir, I would ask you to read that particular paragraph to

  24   yourself and tell us if that refreshes your recollection as to

  25   whether or not you have told the American authorities that


   1   Mr. Odeh obtained fish at Kismayo, Somalia.

   2            MR. WILFORD:  Your Honor, may I just stay here for a

   3   moment?

   4            THE COURT:  Yes.

   5   A.  Yeah.

   6   Q.  Did you have an opportunity to read this, sir?

   7   A.  Now I remember.

   8   Q.  Did it refresh your recollection?

   9   A.  Yeah.

  10   Q.  Isn't it a fact that you told them that?

  11   A.  I beg your pardon?

  12   Q.  Isn't it a fact that you told them that you obtained fish

  13   in Kismayo --

  14   A.  Yeah.

  15   Q.  -- somalia; isn't that correct?

  16   A.  Yeah.

  17   Q.  Now, sir, I would ask you to be kind enough to look at the

  18   screen.  You might want to use your glasses because it's

  19   not --

  20            Yes, do you see Kismayo?  Do you see Kiunga on the

  21   map?

  22   A.  I see Kiunga, but I don't see Kismayo.

  23   Q.  Okay.  Kismayo is north of Kiunga; isn't that correct?

  24   A.  North?

  25   Q.  North of Kiunga?


   1   A.  Yeah.

   2   Q.  Now, when you were -- I'm sorry, could you please tell the

   3   jury what the distance is from, if you know, from Kilifi,

   4   Kilifi to Mombasa?

   5   A.  Should be around 56 kilometers.

   6            (Continued on next page)





















   1   Q.  Fifty-six kilometers?

   2   A.  Yes.

   3   Q.  Do you know how far it is from Kilifi to Witu?

   4   A.  I don't know.

   5   Q.  What about from Mombasa to Nairobi?

   6   A.  I don't know.  I don't exactly know.

   7   Q.  Is it a long drive from Mombasa to Nairobi?

   8   A.  It's very far.

   9   Q.  When you were speaking about the fish being offloaded at

  10   Kilifi, the fish was then transported to Mombasa; isn't that

  11   correct?

  12   A.  Yes.

  13   Q.  Mr. Odeh used a driver, a truck to drive the fish from

  14   Kilifi to Mombasa for sale; isn't that correct?

  15   A.  Yes.

  16   Q.  Because there are no markets in Kilifi.  The real markets

  17   where you can make money with your fish is in Mombasa; isn't

  18   that correct?

  19   A.  Yes.

  20   Q.  Sir, when you spoke about the fish being offloaded at

  21   night by Mr. Odeh, he wasn't doing that by himself, was he?

  22   A.  He was doing it maybe with his crews.

  23   Q.  With his crew?

  24   A.  Yes.

  25   Q.  And the reason you got a complaint was because he was


   1   using his own people to offload the fish and the people at the

   2   port who were making money offloading the fish weren't getting

   3   paid, right?  That's the reason you got the complaint, right?

   4   A.  No.  Personally, the department was missing information,

   5   statistics from Mr. Odeh.  One of our duties is to collect

   6   statistics.

   7   Q.  So you were missing statistics?

   8   A.  Yes, because he was making it at night.

   9   Q.  But didn't you also just tell the jury on direct

  10   examination that the people who offloaded the fish from the

  11   boats came to you and said Mr. Mjitta, this boat is unloading

  12   at night because you didn't know because you went home, right?

  13   A.  The complaint was there and we were also missing the

  14   statistics for Mr. Odeh.

  15   Q.  I understand, but there was a complaint.

  16   A.  From?

  17   Q.  People who told you about it, right, people who offloaded

  18   the fish, isn't that correct, they told you there is a problem

  19   here, right?

  20   A.  Sure.

  21   Q.  Sir, the truck that was used, that was a personal contract

  22   that Mr. Odeh had with that particular truck; isn't that

  23   correct?

  24   A.  I beg your pardon.

  25   Q.  The truck that was used to transport the fish from Kilifi


   1   to Mombasa, that wasn't one of the trucks that was part of the

   2   ordinary Kilifi run; isn't that correct?

   3   A.  It was not from Kilifi.

   4   Q.  Right.  Mr. Odeh had his own contract with that truck,

   5   right, and he used the same truck all the time, right?

   6   A.  I can't remember, but I know there was a truck with a

   7   double cabin, blue, that used to carry his fish.

   8   Q.  And that was the only truck that carried his fish; isn't

   9   that correct?

  10   A.  Yes.

  11   Q.  Sir, isn't it a fact that fish that sold at the market in

  12   Mombasa has to be there very early in the morning?

  13   A.  Not necessarily.

  14   Q.  No?  You don't have the fish when the market opens, fresh

  15   fish early in the morning for restaurants and entities of that

  16   sort?

  17   A.  Not necessarily.

  18   Q.  OK.  The bottom line is this, though.  When Mr. Odeh was

  19   offloading his boat at night, you spoke to him and told him

  20   that you shouldn't do that; isn't that correct?

  21   A.  Yes.

  22   Q.  And when you spoke to him, he stopped offloading at night

  23   and it wasn't done again; isn't that correct?

  24   A.  He didn't do it but it was up there, it was the end of

  25   1997, and then I didn't see him again.


   1   Q.  But it ended.  You told him not to do it and he didn't do

   2   it any more, isn't that correct?

   3   A.  Yes.

   4            MR. WILFORD:  Thank you very much.  No further

   5   questions, your Honor.

   6            THE COURT:  Any redirect?

   7            MR. FITZGERALD:  No, Judge.

   8            THE COURT:  Thank you.  You may step down.

   9            (Witness excused)

  10            MR. FITZGERALD:  The government calls Special Agent

  11   John Anticev, A-N-T-I-C-E-V.


  13        called as a witness by the government,

  14        having been duly sworn, testified as follows:



  17   Q.  Agent Anticev, just keep your voice up, as you have been

  18   doing, and recognize that is a directional microphone.  So if

  19   you stay close to it, everyone will hear.

  20            Can you tell the jury what you do for a living.

  21   A.  I am a special agent with the FBI, assigned to the New

  22   York office.

  23   Q.  For how long have you been an FBI agent?

  24   A.  I am in my 14th year.

  25   Q.  Directing your attention to August 1998, did there come a


   1   time that you deployed to Kenya as part of your duties with

   2   the FBI?

   3   A.  Yes.

   4   Q.  Was that following the bombings in Africa?

   5   A.  Yes.

   6   Q.  Let me direct your attention to later that month.  Did

   7   there come a time when you interviewed Mohamed Sadeek Odeh?

   8   A.  Yes.

   9   Q.  Can you tell the jury what day you began to interview

  10   Mohamed Sadeek Odeh.

  11   A.  We began the interview on August 15.

  12   Q.  For how many days did you interview Mohamed Odeh in Kenya?

  13   A.  Until August 27.

  14   Q.  After that point in time, was Mohamed Odeh brought back to

  15   the United States?

  16   A.  Yes, he was.

  17   Q.  Between August 15 and the 27th, did you interview him

  18   every day?

  19   A.  Not every day.

  20   Q.  Do you know how many days you did not speak to him during

  21   that time?

  22   A.  Approximately two days.

  23   Q.  When you did interview him, what was the earliest, or when

  24   did you generally start interviewing him during each

  25   interview?


   1   A.  During the daytime we started about, the earliest we

   2   started was about 9, sometimes later.

   3   Q.  How late would you work during those interview sessions?

   4   A.  We never worked past -- one time we worked till 6.  That

   5   was probably the latest.

   6   Q.  Did you always interview him for the full day or did you

   7   ever work half days?

   8   A.  We worked several half a days.

   9   Q.  Let me direct your attention to the first day of the

  10   interviews, August 15.  Do you know what time you started that

  11   day?

  12   A.  We started approximately 10:00.

  13   Q.  Where did the interview take place?

  14   A.  At Kenyan police department headquarters.

  15   Q.  Was it inside that Kenyan police headquarters building?

  16   A.  Yes.

  17   Q.  Can you tell the jury who was present for the interview?

  18   A.  Myself, two other US officials, and three Kenyan

  19   officials.

  20   Q.  Over the course of the following days, was it always the

  21   same people there?

  22   A.  No.

  23   Q.  Generally, how many American officials were present during

  24   the interview?

  25   A.  Two to three.


   1   Q.  How many Kenyan officials would be present?

   2   A.  It varied.  Sometimes three, sometimes two, sometimes one.

   3   Q.  In what language did you conduct the interview?

   4   A.  In English.

   5   Q.  Did you have any difficulty understanding Mr. Odeh in

   6   English?

   7   A.  No.

   8   Q.  Did you ever have to repeat a question or have him repeat

   9   an answer to a question?

  10   A.  Yes.

  11   Q.  Did he ever ask you to repeat a question to him?

  12   A.  Yes.

  13   Q.  Can you tell the jury how you began the interview on

  14   August 15.

  15   A.  On August 15 we started the interview by first advising

  16   Mr. Odeh of his rights.  We told him that he had the right to

  17   remain silent, anything he said would be used against him.  We

  18   were going over a form that the FBI uses when dealing with

  19   subjects overseas, and the form also went on to say that if

  20   you were in the United States you would have the right to have

  21   an attorney present and if you were in the United States, if

  22   you could not afford an attorney one would be appointed to

  23   you.

  24   Q.  Let me approach you with what has been premarked as

  25   Government's Exhibit 3 for identification, and I will ask you


   1   if you recognize this form?  Do you recognize Government's

   2   Exhibit 3?

   3   A.  Yes.

   4   Q.  What is that?

   5   A.  That is the advice of rights form that he signed.

   6   Q.  You mentioned that you read it to him.  Did you show him a

   7   copy of that form?

   8   A.  Yes.

   9   Q.  What happened when you finished reading the form or while

  10   you were reading the form and showing him a copy of the form?

  11   A.  While we were explaining the form to him he had a

  12   question.  When we were talking about attorneys, he said, he

  13   mentioned something about having an attorney available; a

  14   Kenyan attorney.

  15   Q.  What happened then?

  16   A.  He asked a couple of other questions, and that original

  17   question got lost because he followed up with another

  18   question, and eventually he stated that he would be willing to

  19   talk to us, but he did not want to sign the form, he first

  20   wanted to talk, how he called it, small talk to get to know

  21   each other.

  22   Q.  What happened then?

  23   A.  At that point we didn't want to pursue that, with that

  24   question that he had outstanding, so we broke and we went out

  25   into the hallway to discuss that amongst ourselves and with


   1   the Kenyans.

   2   Q.  Did you go back into the room with Odeh after that?

   3   A.  Yes.

   4   Q.  What if anything was Odeh told at that point?

   5   A.  We told him that I had talked to the Kenyan authorities

   6   and that under their rule of law, that a Kenyan -- that they

   7   don't have the same thing as we do, they don't have the right

   8   to counsel at that stage of the investigation.

   9   Q.  What else if anything was said to Odeh at that point about

  10   his rights?

  11   A.  We told him that we could not provide him with an

  12   attorney, we did not have a United States, a U.S. attorney

  13   with us to represent him.  We told him that if he wished to

  14   have an attorney that we would respect that wish, and then the

  15   US representatives would not partake in the interview and we

  16   would leave the room.

  17   Q.  Just so we are clear for the record, he had asked about an

  18   Kenyan attorney and one of the things you made clear to him

  19   was that you did not have an American attorney available there

  20   to represent him.

  21   A.  Right.

  22   Q.  Can you explain what you understood about a Kenyan

  23   attorney.

  24   A.  We also asked him if he had his own Kenyan attorney.  He

  25   said he did not have an attorney.  We told him we could not


   1   provide him a Kenyan attorney.

   2   Q.  What was he told about what his options were at that point

   3   in time?

   4   A.  We told him he had basically three options.  One was that

   5   he had the right to remain silent and he did not have to talk

   6   to either the Kenyan authorities or the US authorities, and if

   7   he invoked that right to not talk, that would have ended the

   8   matter right there.  And the second option was that if he

   9   wished to have an attorney present during that questioning,

  10   that we would oblige that and we would leave the room.  And

  11   then he would have to be with the Kenyan authorities to

  12   continue the interview or interrogation, but he also had the

  13   right to tell them that he didn't want to talk.  And the third

  14   option was that he could talk to the US authorities and the

  15   Kenyan authorities together with no attorney.

  16   Q.  What if anything did Odeh say when that was explained to

  17   him?

  18   A.  He came up with a fourth one.  He said can I just talk to

  19   the US authorities alone?

  20   Q.  What happened at that point?

  21   A.  At that point we all left the room to discuss that.

  22   Remaining in the room with Mr. Odeh was a Kenyan official, and

  23   by the time I got out to the hallway, the Kenyan official came

  24   out and said he's agreed to talk to both of us, to both

  25   authorities.


   1   Q.  Did you go back in the room with Odeh at that point?

   2   A.  Yes.

   3   Q.  Did he indicate anything about whether he was willing to

   4   talk to both the Kenyan and American authorities?

   5   A.  Yes.  He said that he figured that if he spoke to the US

   6   authorities alone, that we would tell the Kenyan authorities

   7   anyway, so he figured why not just talk to both of them at the

   8   same time.

   9   Q.  What happened at that point?

  10   A.  At that point he agreed to talk and he signed the form.

  11   Q.  What happened then?

  12   A.  He asked some questions about what if I change my mind.

  13   We told him that it was fine, that he was the boss, that he

  14   was in complete control of his own way of dealing with us.  He

  15   could stop talking at any time.  He could pick and choose to

  16   answer the questions, if he didn't like a question he didn't

  17   have to answer it.

  18   Q.  Did he then answer questions after that point?

  19   A.  Yes.

  20   Q.  What did he tell you about where he was born and where he

  21   grew up?

  22   A.  He told me that he was born in Saudi Arabia and grew up in

  23   Jordan.

  24   Q.  Did he indicate what his ethnic heritage was?

  25   A.  That he was of Palestinian heritage.


   1   Q.  Over the course of the interviews, did he indicate what

   2   other names he was known by besides Mohamed Sadeek Odeh?

   3   A.  He is also known as Abu Yasser, Noureldine, Marwan, and

   4   Abu Moath.

   5   Q.  Did he indicate whether he had a son during the interview?

   6   A.  Yes.

   7   Q.  What was the son's name?

   8   A.  Yassi.

   9   Q.  What did he tell you about where he went to school?

  10   A.  He, I believe, went to school for the earlier grades back

  11   in Jordan, but in 1986 he went to university, the Far Eastern

  12   University in Manila, Philippines.

  13   Q.  Did he indicate what he studied at that school?

  14   A.  Architecture and engineering.

  15   Q.  Did he indicate whether he became involved in any studies

  16   besides school during the time he was in the Philippines?

  17   A.  Yes.  During his studies in the Philippines, he became

  18   active in Islamic societies, and he also mentioned a Kuwaiti

  19   Islamic center that he used to go to.

  20   Q.  Did he indicate what if anything he was exposed to when he

  21   would go to Islamic societies in the Philippines?

  22   A.  Yes.  He became particularly interested, he told me, in

  23   the concept of jihad by listening to tape recordings and

  24   videos of individual named Abdallah Azzam, who was the leader

  25   of Arabs who were fighting in Afghanistan.


   1   Q.  Did he indicate whether there came a time when he left the

   2   Philippines?

   3   A.  Yes.  In his final year of school, he was getting ready to

   4   do his thesis, but he needed a thousand dollars, and his

   5   father sent him a thousand dollars, and when he got that money

   6   he decided to call a religious scholar back home where he came

   7   from, to ask him his advice on what to do with the thousand

   8   dollars, should he use it to complete his studies or should he

   9   use it to join the jihad movement and go to Afghanistan and do

  10   jihad.

  11   Q.  Did he indicate what advice he was given and what he did?

  12   A.  His advice that was given to him was to stop what he was

  13   doing immediately and go do jihad.

  14   Q.  What did he tell you that he did?

  15   A.  From the Philippines he traveled to -- made his way to

  16   Afghanistan but he traveled first to Hong Kong and then to

  17   Pakistan.

  18   Q.  Did he indicate where he went in Pakistan?

  19   A.  Yes.  He landed in Karachi and then went from Karachi to

  20   the city of Peshawar.

  21   Q.  Did he indicate how he got from Karachi to Peshawar?

  22   A.  By bus.

  23   Q.  What did he tell you that he did once he arrived in

  24   Peshawar?

  25   A.  When he first arrived at Peshawar, he went to a place


   1   called Bait Al Ansar, which I think it translates to House of

   2   Support, where people who were doing that, that's the first

   3   place they stopped.

   4   Q.  Did he tell you approximately what year, and, if you

   5   remember, what month it was that he went from the Philippines

   6   to Peshawar, Pakistan?

   7   A.  I think it was October 1990.

   8   Q.  What did he tell you happened when he arrived at the Bait

   9   al Ansar in Peshawar, Pakistan?

  10   A.  He stayed there for two days, I believe, and then he made

  11   his way by bus to the Afghan border.

  12   Q.  Then what did he tell you happened there?

  13   A.  After he got to the border they transferred to another

  14   vehicle, and they went to one of the camps, called the Farouq

  15   camp.

  16   Q.  Did he tell you what city, if any, was located near the

  17   Farouq camp?

  18   A.  It's in the area of Khost.

  19   Q.  What did Mr. Odeh tell you happened at the Farouq camp?

  20   A.  That was where he received his first series of basic

  21   training.

  22   Q.  Did he tell you how long he spent at the Farouq camp?

  23   A.  Approximately two months.

  24   Q.  Did he tell you what type of training he received during

  25   those two months?


   1   A.  He received military training that was broken up into

   2   three segments.  The first segment was basic use of firearms,

   3   particularly the AK47, and kind of moved up to a belt-fed

   4   machine gun.

   5   Q.  Did he describe what the second level of training was like

   6   at the Farouq camp?

   7   A.  The second level, they started learning about topography,

   8   map reading, and they got introduced to explosives,

   9   particularly C3, C4, and TNT.

  10   Q.  Did he indicate what happened at the third level of

  11   training?

  12   A.  The third level of training involved more sophisticated

  13   weapons, like antitank missiles, rocket launchers, mortars,

  14   and antiaircraft weapons.

  15   Q.  Did Odeh indicate who was the person in charge of the camp

  16   at the time he was training?

  17   A.  For most of the time there, except for the first two

  18   weeks, the person in charge was a guy named Basheer.

  19   Q.  Did Odeh indicate what country Basheer was from?

  20   A.  I don't remember.

  21   Q.  Did Odeh indicate whether or not he was approached by any

  22   organization at or about the time or after the time he

  23   attended the Farouq camp?

  24   A.  While at the Farouq camp, he was approached by members of

  25   the of Al Qaeda organization, if he was interested in joining.


   1   Q.  Did he indicate his belief as to why he had been

   2   approached?

   3   A.  He stated that he was approached because of his good

   4   character, his understanding of the religion, and his ability

   5   to get along with other people.

   6   Q.  Did Mr. Odeh tell you at that time whether he decided at

   7   that time to join the Al Qaeda group?

   8   A.  At that time he decided against joining.  He wanted to

   9   wait for a while.

  10   Q.  Did he tell you what he then did after he finished his

  11   training at the Farouq camp?

  12   A.  After he finished the training at the Farouq camp, they

  13   were sent back to Peshawar, where they were going to be

  14   deployed.

  15   Q.  Did he indicate how long he stayed at Peshawar after he

  16   went back there?

  17   A.  He didn't stay very long.  He had to take care of some

  18   dental work.  He had dental problems.

  19   Q.  What happened after that?

  20   A.  After that, he was sent to Jalalabad to work -- that's not

  21   too far from where the fighting was going on.  He was sent to

  22   Jalalabad to work in a rear area support for the front lines.

  23   Q.  Did he indicate what role he played in the rear area

  24   support in Jalalabad?

  25   A.  I believe he was taking care of wounded.


   1   Q.  Do you know if he was working as a medic?

   2   A.  Yes, medic.  He was taking care of wounded people.

   3   Q.  Did Odeh indicate how long he spent in the area of

   4   Jalalabad at that time?

   5   A.  I believe he was there for about a month.

   6   Q.  What did Odeh tell you he did after that month in the area

   7   of Jalalabad?

   8   A.  After that, he went back to Peshawar.

   9   Q.  Did he indicate what he did there?

  10   A.  After he returned to Peshawar, he was only there a short

  11   time, and then I believe he wound up going back to Jalalabad.

  12   Q.  Did he indicate what happened on his second time he went

  13   to Jalalabad?

  14   A.  The second time he went to Jalalabad, he went back as a

  15   medic and he was -- well, when he was in Peshawar that

  16   first -- after the camp, after Jalalabad the first time, a

  17   doctor, I believe his name was Mohamed, approached him and

  18   said if he wanted to go back and be a medic for a small

  19   salary, and he did.

  20   Q.  What happened when he went back to Jalalabad to serve as a

  21   medic?

  22   A.  While there, he was injured in an air raid.  He was

  23   wounded in the head.

  24   Q.  What did he do as a result of the wounds?

  25   A.  He went again back to Peshawar to recover.


   1   Q.  Did he indicate what he did after he recovered from the

   2   injury?

   3   A.  I believe that --

   4   Q.  Let me ask you this.  Did he tell you about a number of

   5   different camps and places where he served --

   6   A.  He went back into Afghanistan to several of the camps.  I

   7   believe the second camp he went to after that was the Jihad

   8   Wal camp.

   9   Q.  What did he tell you -- first of all, did he tell you how

  10   long, approximately, he spent at the Jihad Wal camp?

  11   A.  I think 45 days.

  12   Q.  Did he tell you what he did at the Jihad Wal camp?

  13   A.  At that camp, they learned different military tactics.

  14   They trained in how to attack certain installations and

  15   certain points.

  16   Q.  Did he indicate whether or not he received any nonmilitary

  17   training during that time period after he was done in the

  18   Jihad Wal camp?

  19   A.  After the Jihad Wal, a friend of his asked him if he

  20   wanted to go for a three-month religious studies course.

  21   Q.  Did Odeh indicate whether he did --

  22   A.  Yes, and he did, he went to that course.

  23   Q.  Did he indicate where he attended these studies?

  24   A.  In the area, I believe, around Pakistan -- I mean, in

  25   Peshawar.


   1   Q.  Did he indicate when he was done the three months of his

   2   Islamic training or study, do you recall what time frame he

   3   indicated that would be?

   4   A.  That was around early '92.

   5   Q.  Did he indicate whether or not the topic of his joining Al

   6   Qaeda ever came up again in 1992?

   7   A.  Yes.  And he was approached to join Al Qaeda at that time,

   8   and he decided that he wanted to join Al Qaeda, he was

   9   impressed with the philosophy of it and he wanted to join.

  10   Q.  Did he indicate what it was about Al Qaeda versus other

  11   groups that made Al Qaeda attractive to him?

  12   A.  He liked Al Qaeda because it represented the whole Muslim

  13   world.  He told me that he didn't want to join like a

  14   Palestinian group or another group based upon one country, one

  15   ethnic background, because Al Qaeda represented all Muslims.

  16   Q.  Did he indicate what he thought of whether or not Al Qaeda

  17   was Islamically pure as compared to the other groups?

  18   A.  He did.  He said that compared to the other groups that Al

  19   Qaeda was Islamically pure and that the leadership in other

  20   groups might do things that are not Islamically correct.

  21   Q.  Did he indicate how he went about becoming a member of Al

  22   Qaeda?

  23   A.  Yes.  He took bayat, it's called.

  24   Q.  Did Odeh explain to you what his understanding -- this

  25   will be the last question, your Honor.


   1            Did Odeh indicate to you what his understanding was

   2   of what the bayat required him to do?

   3   A.  Bayat is when he pledges his allegiance to Usama Bin Laden

   4   and that he will follow his orders as long as those orders are

   5   Islamically correct.

   6            (Continued on next page)





















   1            MR. FITZGERALD:  Your Honor, I think we could break

   2   there.

   3            THE COURT:  All right.  We will call it a day.  Thank

   4   you for your patience and cooperation, and we will resume

   5   tomorrow at 10:00 a.m.

   6            (Witness excused)

   7            JUROR:  Your Honor, can we take these transcripts

   8   with us?

   9            THE COURT:  Are the transcripts to be taken or not?

  10            MR. FITZGERALD:  I think they should, yes.

  11            THE COURT:  Yes, you may keep them.

  12            (Jury excused)

  13            THE COURT:  Anything which needs to be addressed

  14   before we continue?  We are adjourned until tomorrow.

  15            (Proceedings adjourned until 10:00 a.m., Wednesday,

  16   February 28, 2001)











   1                        INDEX OF EXAMINATION

   2   Witness                    D      X      RD     RX

   3   L'HOUSSAINE KHERCHTOU...1508   1508    1538    1556

   4   KIBARUA MJITTA..........1593   1601


   6                        GOVERNMENT EXHIBITS

   7   Exhibit No.                                     Received

   8    5 ..........................................1555

   9    35, 93 and 93-T ............................1571

  10    34, 81 and 81-T ............................1572

  11    36; 201A and 201A-T;

  12    202A and 202A-T; 203A

  13    and 203A-T; 204A and 204A-T;

  14    204B and 204B-T; 205A and 2505A-T;

  15    207A and 207 ...............................1577

  16                         DEFENDANT EXHIBITS

  17   Exhibit No.                                     Received

  18    A ..........................................1602

  19    B ..........................................1603







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