1 March 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 13 of the trial, March 1, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
1796 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7) 98 Cr. 1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 March 1, 2001 9:50 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 1797 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 KENNETH KARAS PAUL BUTLER 5 Assistant United States Attorneys 6 SAM A. SCHMIDT 7 JOSHUA DRATEL KRISTIAN K. LARSEN 8 Attorneys for defendant Wadih El Hage 9 ANTHONY L. RICCO EDWARD D. WILFORD 10 CARL J. HERMAN SANDRA A. BABCOCK 11 Attorneys for defendant Mohamed Sadeek Odeh 12 FREDRICK H. COHN DAVID P. BAUGH 13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 14 JEREMY SCHNEIDER DAVID STERN 15 DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed 16 17 18 19 20 21 22 23 24 25 1798 1 (Trial resumes) 2 THE COURT: Mr. Fitzgerald, I received a letter from 3 Mr. Cohn on behalf of his client and K.K. Mohamed with respect 4 to separate trials. 5 MR. FITZGERALD: Oh, I thought -- just one letter 6 from Mr. Cohn, correct? 7 THE COURT: One letter. He said it's submitted on 8 behalf of the capital defendants Mohamed Al-'Owhali and K.K. 9 Mohamed. 10 MR. FITZGERALD: Okay. Yes, your Honor. 11 THE COURT: I assume this is a joint letter. 12 MR. COHN: It is, your Honor, and I gave a copy to 13 Mr. Fitzgerald the same time I sent it to you. 14 MR. FITZGERALD: Yes. 15 THE COURT: I just want to know when the government 16 will respond. 17 MR. FITZGERALD: We'll respond by next Tuesday. 18 THE COURT: Fine. 19 With respect to Ambassador Bushnell's testimony, has 20 she been apprised or will she be apprised of the limitation 21 agreed on in response to your in limine motion? 22 MR. BUTLER: Yes, your Honor. 23 THE COURT: I say that because just driving to the 24 courthouse today there was a report on the trial and the 25 testimony, her anticipated testimony, which was somewhat 1799 1 inconsistent with this. 2 I see Mr. Ruhnke is not here yet. 3 MR. STERN: Mr. Ruhnke is not going to be here. I 4 know he wrote you a letter asking to be excused. 5 THE COURT: There is a request for in limine 6 instruction. 7 MR. FITZGERALD: We'll consent. 8 THE COURT: You consent to it as written? 9 MR. FITZGERALD: Mr. Karas is looking at it. I think 10 he said he would consent. I want to check with him when he 11 comes down if there is any change in language, but I believe 12 so. 13 THE COURT: All right, there are some language 14 changes that I thought might be appropriate. "We will hear 15 testimony" and I don't see why it should be limited to today. 16 All right. 17 MR. FITZGERALD: Mr. Karas was looking at that. 18 THE COURT: All right. 19 MR. FITZGERALD: I think in concept we would consent. 20 MR. STERN: Fine. 21 THE COURT: Okay. All right. Is everybody here who 22 is going to be here? 23 No. We're still lacking counsel. 24 MR. FITZGERALD: Your Honor, we may need a moment. 25 We cleared out of the courtroom -- I know the defense team 1800 1 wanted certain exhibits in the courtroom. We are searching 2 for them and are bringing them to the courtroom. 3 THE COURT: I wanted to take up these preliminary 4 matters. Why don't you let me know when you are ready to 5 proceed. 6 MR. FITZGERALD: Thank you, Judge. 7 (Recess) 8 THE COURT: I've just been handed a letter from 9 counsel for El Hage requesting a continuance between the close 10 of the government's case and the start of defense case, and I 11 will consider that. 12 I have one thought that I would like to share with 13 counsel in that regard, and that is that if there is a 14 continuance, that any motions to be made at the close of the 15 government's case be made prior to any such continuance so 16 that if they require research or analysis or so on on the part 17 of the Court, that can occur during the continuance. And if 18 there is anyone who objects to that, I would like to know that 19 before I make a decision with respect to whether there will be 20 any continuance. 21 Any reason not bring in the jury? Are we ready for 22 the jury? 23 MR. WILFORD: One second, your Honor. 24 THE COURT: Yes? 25 MR. WILFORD: Just one second. 1801 1 MR. FITZGERALD: Yes, Judge, I think we can proceed 2 with regard to the reading. 3 THE COURT: All right. Mr. Karas, we were told that 4 you are going to be the final word on the -- or the next to 5 final word, second to final word on the limiting instruction 6 with respect to K.K. Mohamed? 7 MR. KARAS: We have no objection to the language that 8 is in that letter. 9 THE COURT: Okay. Just the way it is? 10 MR. KARAS: Yes. 11 THE COURT: Except we'll take out "today." 12 (Jury present) 13 THE COURT: Good morning. 14 THE JURY: Good morning. 15 THE COURT: Mr. Fitzgerald? 16 MR. FITZGERALD: Yes, your Honor. We're going to 17 continue reading the transcripts from yesterday. We're going 18 to start with 211B and Ms. Sada and Mr. Francisco again will 19 read the parts that is in Arabic conversation that was 20 recorded on February 7th, 1997 at the time of 20:58. That's 21 211B. 22 (Government Exhibit 211B, in evidence, read to the 23 jury) 24 MR. FITZGERALD: The next conversation that will be 25 read will be Government Exhibit 211C, also on February 7th, 1802 1 1997, at 21:11. 2 (Government Exhibit 211C, in evidence, read to the 3 jury) 4 MR. FITZGERALD: Your Honor, the next conversation we 5 will read is the following conversation, 211D, also occurring 6 on February 7th, 1997, at 21:15. 7 (Government Exhibit 211D, in evidence, read to the 8 jury) 9 MR. FITZGERALD: The next conversation the government 10 will read is Government Exhibit 212A-T, which is a 11 conversation recorded on February 14th, 1997 at 17:43. 12 (Government Exhibit 212A-T, in evidence, read to the 13 jury) 14 MR. FITZGERALD: Your Honor, the next conversation we 15 would read is Government Exhibit 213A-T, and that's a 16 conversation recorded on February 21, 1997 at 16:01. 17 (Government Exhibit 213A-T, in evidence, read to the 18 jury) 19 MR. KARAS: Your Honor, we will now read a 20 translation marked as 310-74A-T. 21 (Government Exhibit 310-74A-T, in evidence, read to 22 the jury) 23 24 (Continued on next page) 25 1803 1 MR. FITZGERALD: Your Honor, we would now leave the 2 computer documents for a moment to read four transcripts and 3 then go back to the computer documents. 4 The transcripts, we will start with transcript 5 Government's Exhibit 222A, which is a conversation recorded on 6 July 13 and 14 of 1997, and Mr. Francisco and Ms. Seda will 7 read the parts. 8 (Government's Exhibit 222A in evidence read to the 9 jury) 10 MR. FITZGERALD: The next conversation we will read 11 is Government's Exhibit 219A-T. That is a conversation 12 recorded on the following day, July 15, 1997, at 21:08. 13 Again, that is Government's Exhibit 219A. 14 (Government's Exhibit 219A-T in evidence read to the 15 jury) 16 MR. FITZGERALD: Your Honor, the next transcript we 17 would read is Government's Exhibit 220A-T, and that is a 18 conversation recorded on July 27, 1997 at 19:44. 19 (Government's Exhibit 220A-T read to the jury) 20 MR. FITZGERALD: Your Honor, we are going to read one 21 more conversation today, and that is Government's Exhibit 22 223A-T, which is a conversation report recorded on August 13 23 or 14, 1997. 24 (Government's Exhibit 223A-T in evidence read to the 25 jury) 1804 1 MR. KARAS: Your Honor, we would next propose to read 2 300A-T, which is a translation of 300A-1 and 300A-T, two of 3 the files that were retrieved from the computer. 4 THE COURT: We will take a recess. 5 (Jury excused) 6 MR. SCHMIDT: Your Honor, I want to make one thing 7 your Honor aware of. We received the transcript that the 8 government was using, I think it was last week. The 9 transcripts that we have have been fully modified without us 10 being made known that there are modifications in the 11 transcripts. There are words that are different on what was 12 shown to the jury today than appears in the copies of the 13 transcripts that we have. 14 THE COURT: Mr. Karas is shaking his head no, so why 15 don't you talk to each other over the recess. 16 MR. SCHMIDT: And the exhibit numbers are different 17 on some of them as well. 18 THE COURT: See if you can give me an example of 19 that -- 20 MR. SCHMIDT: I can give you an example now -- 21 THE COURT: Give it to Mr. Karas. 22 MR. KARAS: We will work it out, your Honor. 23 (Recess) 24 MR. BUTLER: Your Honor, Mr. Stern is unavailable. 25 THE COURT: When Mr. Stern returns, will you share 1805 1 this with him. 2 MR. BUTLER: Yes. 3 THE COURT: I have been thinking about the request 4 for the continuance between the government's case and the 5 defense case. This is just some tentative thinking that I 6 want to share with you. We don't know what day of the week 7 the government will rest, but perhaps what we could do is have 8 a formula which is that at day one the government rests, day 9 four -- these are business days -- day four any defendant's 10 motions normally made at the close of the government's case 11 are due. Day seven the government's reply is due. Day 13 we 12 resume with the jury the defense case. 13 MR. COHN: Your Honor, I just have one question, 14 which may be premature but I want to alert you to it. It is 15 our understanding should there be a penalty phase, there will 16 be a hiatus between that trial, the trial in chief, and the 17 penalty phase, and I want to make sure that this will not 18 affect that consideration. 19 THE COURT: That will be a week at the most. 20 MR. COHN: Whatever it is, I want to make sure that 21 doesn't enter into the equation. 22 THE COURT: Something like that. And then we should 23 talk about telling the jury that the working assumption is 24 that it will be concluded prior to August, so that jurors 25 don't start making plans based on the dates we gave them. Can 1806 1 I do that at the end of the day? 2 MR. COHN: As far as defendant Al-'Owhali is 3 concerned, yes. 4 THE COURT: Mr. Stern, all right if at the end of the 5 day I tell the jury that we anticipate that all proceedings 6 will be concluded prior to August 1? 7 MR. STERN: That makes sense, yes. 8 THE COURT: Have you worked out this matter of the 9 disparities between the transcripts given to the defense and 10 those -- 11 MR. FITZGERALD: We are working on it. We are trying 12 to work out if something got lost in the shuffle. There is a 13 more timely issue on the instruction that Mr. Karas wanted to 14 address. 15 THE COURT: Is there anything of a magnitude that 16 requires correction to the jury right now? Mr. Dratel is 17 shaking his head. 18 MR. KARAS: We had a chance to speak to counsel for 19 Mr. El Hage regarding their joining in an instruction proposed 20 by Mr. Ruhnke. We did not have a chance to talk about it with 21 Mr. Ruhnke and I would read out loud how we would propose to 22 read the charge. 23 In receiving this evidence, I wish to instruct you 24 that the defendants K.K. Mohamed and Wadih El Hage have not 25 been charged with participating in the bombing of the embassy. 1807 1 The next sentence will be changed to read instead of he is 2 not, they are not charged. Then we would propose to delete 3 the next sentence beginning the government does not contend. 4 Then the sentence beginning with evidence of the Nairobi 5 bombing is relevant to K.K. Mohamed and Wadih El Hage solely 6 to the extent it establishes the scope and goals. So and 7 goals would be added. 8 THE COURT: The scope and goals. 9 MR. KARAS: Of the overall conspiracy with which they 10 are, instead of he is. 11 THE COURT: Alleged to have been members. 12 MR. KARAS: Then the last sentence, we would propose 13 to add and El Hage. 14 THE COURT: The substance is, you have added El Hage 15 and you have deleted the sentence the government does not 16 contend. 17 MR. KARAS: Yes. And we have added and goals 18 regarding the conspiracy. 19 THE COURT: I have that. I will do that at what 20 point? 21 MR. KARAS: Before Ambassador Bushnell testifies. 22 THE COURT: Is she the next order of business? 23 MR. KARAS: She is not. We will finish reading the 24 computer document and then there will be testimony concerning 25 the Witu search. 1808 1 THE COURT: But the sentence some of these witnesses 2 suffered serious injuries in the bombing, you are leaving that 3 in? 4 MR. KARAS: Yes. 5 MR. COHN: Do you wish to tell the jury at the end of 6 the day about the two-week break? 7 THE COURT: I was just brooding about that. The 8 difficulty is that it is hard -- that is a movable matter and 9 it is so hard to tell when that will take place. I think when 10 we have greater certainty as to when it is that the government 11 would rest it would be helpful to them to know that. I might 12 say, and we are going to make every effort to have a week's 13 hiatus sometime in April. 14 Is the witness still ambassador? 15 MR. KARAS: Yes, your Honor, to Guatemala. 16 (Jury present) 17 MR. KARAS: Your Honor, just again, at this time we 18 are going to read 300A-T, which is the translation of 300A-1 19 and A-1, two of the documents from the computer about which 20 there was testimony yesterday. 21 THE COURT: Let me interrupt you, if I may. Is this 22 continuation of some document? Do we have any heading or 23 date? 24 MR. KARAS: No, your Honor. 25 THE COURT: This is the way the document begins? 1809 1 MR. KARAS: Exactly, your Honor. 2 (Government's Exhibit 300A-T read to the jury) 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1810 1 MR. FITZGERALD: Your Honor, the government would now 2 call Special Agent Howard Leadbetter. 3 HOWARD LEADBETTER II, 4 called as a witness by the government, 5 having been duly sworn, testified as follows: 6 DEPUTY CLERK: Please be seated, sir. Would you 7 please state your full name to the jury. 8 THE WITNESS: Howard Leadbetter II. 9 DEPUTY CLERK: Please spell your last name. 10 THE WITNESS: Leadbetter. 11 DEPUTY CLERK: Spell it. 12 THE WITNESS: L-E-A-D-B-E-T-T-E-R. 13 DIRECT EXAMINATION 14 BY MR. FITZGERALD: 15 Q. If you adjust the microphone, you won't have to lean to 16 your left. 17 Agent Leadbetter, can you tell the jury how you are 18 employed? 19 A. Yes, I'm a supervisor special agent for the Federal Bureau 20 of Investigation. 21 Q. For how long have you worked for the FBI? 22 A. Ten years and three months. 23 Q. Let me direct your attention to the period of August of 24 1998. Did there come a time that you were employed overseas? 25 A. Yes, there did. 1811 1 Q. Where were you employed? 2 A. I was sent to Nairobi, Kenya. 3 Q. Were you with a particular team? 4 A. Yes. I was the team leader of an evidence response team 5 from the New York office. 6 Q. I'm going to move ahead to your duties in August of 1998 7 to the time period of August 24th, 1998. 8 A. Yes. 9 Q. On that day were you assigned any particular duties as 10 part of your responsibility for the evidence response team? 11 A. Yes, I was. 12 Q. Can you tell the jury what you did that day. 13 A. Yes. On that day I was assigned to take a team to a 14 village in northeastern Kenya, a village named Witu, to 15 conduct a search of a residence. 16 Q. And can you tell us as best you can recall who the team 17 was composed of. You don't need to tell us the names, but 18 tell us if they were American or Kenyan officials. 19 A. Including myself, there were a total of seven American 20 personnel. There was also one Kenyan CID officer who 21 accompanied us from Nairobi. There was also a, I believe a 22 Kenyan national with him, and we were met en route by an 23 additional Kenyan CID officer and some Kenyan military 24 personnel, who served as escorts. 25 Q. You mentioned a Kenyan natural who traveled with you. 1812 1 What was the name of that person? 2 A. I don't know his name. I was led to understand, however, 3 he was the brother-in-law of one of the individuals whose 4 residence we were going to search. 5 Q. And when you got to Witu, did you find the location? 6 A. Yes, we did. 7 Q. And how did you get inside the location? 8 A. The Kenyan police, the Kenyan CID, were able to get us 9 access. I don't recall specifically how we initially gained 10 access. 11 Q. Do you know if the brother-in-law of the person helped get 12 in at all? 13 A. In the interior he helped us get into part of the house 14 that was -- but not initially. 15 Q. During the course of the search or during the course of 16 the day did you take photographs of this residence in Witu? 17 A. Yes, we did. 18 Q. Let me approach you with what is premarked as Government 19 Exhibit 709A through D. 20 If I could ask you to look at those pictures, and if 21 we could also display it on the screen for counsel and the 22 witness only at this time, and ask you to tell us whether or 23 not those are fair and accurate photographs of the location 24 that you conducted a search of on August 24th, 1998. 25 A. Yes, they are. 1813 1 MR. FITZGERALD: Your Honor, I would offer Government 2 Exhibits 709A through D. 3 MR. HERMAN: No objection. 4 THE COURT: Received. 5 (Government Exhibits 709A through 709D received in 6 evidence) 7 BY MR. FITZGERALD: 8 Q. If we could now display 709 to the public and to the jury, 9 and Agent Leadbetter, if you could describe what we're seeing 10 in this photograph. 11 A. Yes, this is a view looking at the rear of the residence. 12 There is an area that's covered that is kind of a workshop 13 area, and then you have the rear wall of the house itself. 14 Q. Did you understand this to be the residence of Mohamed 15 Odeh? 16 A. Yes. 17 Q. And can you now take us to 709B and describe what we see 18 in that picture. 19 A. This is a view looking along the side of the same 20 residence. 21 Q. And go to 709C next. 22 A. This is a view from the road in front of the residence, 23 looking at the front. 24 Q. And finally, 709D. 25 A. Yes, this is from the side entrance to the residence where 1814 1 we initially entered. Looking inside to the right is the main 2 part of the house, and to the left there are some additional 3 rooms at the rear of the residence. 4 Q. During the course of the search you conducted, did you 5 make a sketch of the interior layout of this residence? 6 A. Yes, I did. 7 Q. Let me approach you with what has been premarked as 8 Government Exhibit 708. If we could also display that to 9 counsel and the witness only for the moment, and I'll ask you 10 to look at that and tell us if you recognize what that is. 11 A. Yes, this is the sketch I prepared of the residence. 12 Q. Is that, to the best of your ability, a fair and accurate 13 sketch of the way the residence appeared to you on that day in 14 terms of the layout of the rooms? 15 A. Yes, it does. 16 MR. FITZGERALD: Your Honor, I would offer Government 17 Exhibit 708. 18 THE COURT: Received. 19 (Government Exhibit 708 received in evidence) 20 MR. HERMAN: No objection. 21 BY MR. FITZGERALD: 22 Q. Using this sketch now displayed on the screen to the jury 23 and public, as well as counsel, could you now describe what 24 the inside of the residence looked like and could you describe 25 on the left, that workshop area, whether that's the same 1815 1 location that was depicted in the photograph. 2 A. Yes, beginning with the far left of the sketch where it 3 says "workshop area," that was the photograph that was -- that 4 depicted the area of the house. Then we have, moving -- we 5 have rooms that are, each room is labeled. The rooms labeled 6 five, six -- numbered, I apologize, numbered five, six and 7 seven were at the very rear of the residence. 8 Number five was a, to the best of my recollection, 9 was a, if you will, a bathroom wash area. Six and seven were 10 storeroom, workshop areas. There was an open area that was 11 inside the exterior walls of the house. It's depicted on the 12 sketch as the patio area. That was, photograph 709D showed 13 that area. 14 From that area you could turn and go into the main 15 part of the house. There was a central hallway to the left, 16 room number one, which I would refer to as the kitchen area; 17 room number two, another room, the specific purpose I couldn't 18 tell you; room number three was the main, if you will, living 19 room area; and then room number four, in the front quarter of 20 the house, was a bedroom. 21 And then forward of that was the front entryway, 22 which in photograph 709C is shown with the thatched wall, if 23 you will, preventing view from the road. 24 Q. For how long was your team conducting a search of this 25 residence on August 24th? 1816 1 A. Approximately three to three and a half hours. 2 Q. What time of day, approximately? 3 A. It was midday. 4 Q. Approximately how many items did you take in terms of 5 volume? 6 A. I believe we recovered a total of 20 items. 7 Q. Did some of the items contain items within them? 8 A. Yes. In some of the areas what we did is we collected 9 numerous similar items, documents, tapes, other things like 10 that, and we just collected them altogether and called them 11 one item of evidence. 12 Q. Are you familiar with an item that you labeled item number 13 1? 14 A. Yes. 15 Q. Can you tell the jury what item number 1 was? 16 A. Well, item number 1 that we had collected was a swabbing. 17 However, I believe -- 18 Q. The item of evidence, physical evidence? 19 A. Yes. What I collected is not what you are referring to, 20 however. 21 Q. Okay. Did you take any papers from the residence? 22 A. Yes. 23 Q. Can you tell us where you took papers from and then what 24 you did with those papers? 25 A. Yes. There were several rooms where we took papers. In 1817 1 room number one we collected several miscellaneous documents. 2 We put them all in a paper bag, all of the miscellaneous 3 documents we collected, and that was labeled as evidence item 4 number 13. 5 Q. Okay. And did you take any paper -- any cassette tapes? 6 A. Yes, in the front bedroom we found many tapes. I think 7 there were slightly over 100. Again, we collected them 8 altogether as one item of evidence. 9 Q. And then when you collected the various items you took 10 from the residence, what did you do with them? 11 A. Once they had been collected, we, again, we packaged them 12 all. I sealed them and initialed them. I kept them in my 13 custody until we returned to Nairobi, where I turned them over 14 to the individual who was responsible for collecting and 15 maintaining all of the evidence that was collected. 16 MR. FITZGERALD: Your Honor, at this point I would 17 like to read a stipulation. 18 THE COURT: A stipulation. 19 Q. Sir, when the items were then put in evidence, do you know 20 if they were assigned different item numbers? 21 A. Yes. Subsequent to our return to Nairobi, when the items 22 were repackaged, they were -- the item numbers were changed. 23 Q. Do you know what item number 13 became? 24 A. It became item number 1. 25 MR. FITZGERALD: Your Honor, at this point I would 1818 1 like to read a stipulation that reads as follows: 2 "Government Exhibit 46. It is hereby stipulated and 3 agreed by and between the United States of America and the 4 defendants, by and with the consent of their attorneys, as 5 follows: 6 "That Government Exhibits 700, 702 and 704 were among 7 the papers in item number 1 recovered at the search of the 8 Witu, Kenyan residence of Mohamed Sadeek Odeh on August 24, 9 1998. They have since been removed from the bag by FBI 10 personnel for the purpose of copying, translation and forensic 11 analysis. In addition, the coloration of Government Exhibits 12 702 and 704 have changed due to the fact that those documents 13 underwent forensic analysis at the FBI laboratory." 14 Skipping ahead one line: "Government Exhibit 704P1 15 and P2 are photographs of the cover and pages 297A and 297B of 16 document GX 704 prior to such forensic analysis. 17 "2. Government Exhibit 710-96 is one of the tapes 18 seized during that same August 24, 1998 search of Odeh's 19 residence in Witu, Kenya. 20 "3. Government Exhibit 700T is a fair and accurate 21 translation of Government Exhibit 700. Government Exhibit 22 702-T is a fair and accurate translation of Government Exhibit 23 702. Government Exhibit 710-96T is a fair and accurate 24 translation of Government Exhibit 710-96." 25 At this time I would offer in evidence Government 1819 1 Exhibits 700, 702, 704, 704P1 and P2, 710-96, and 700T, 7002T 2 and 710-96T. 3 MR. HERMAN: No objection. 4 THE COURT: Received. 5 (Government Exhibits 700, 702, 704, 704P1 and 704P2, 6 710-96, 700T, 7002T and 710-96T received in evidence) 7 MR. FITZGERALD: I would also offer in evidence the 8 stipulation, Government Exhibit 46. 9 THE COURT: Received. 10 (Government Exhibit 46 received in evidence) 11 MR. FITZGERALD: Thank you. I have nothing further. 12 THE COURT: Mr. Herman. 13 MR. HERMAN: Thank you, your Honor. 14 THE COURT: On behalf of defendant Odeh. 15 MR. FITZGERALD: If I could just display on the 16 screen, only, Government Exhibit 704P1 and P2 by themselves, 17 now in evidence, for everyone. 18 With regard to that, I would read the last paragraph 19 of stipulation Government Exhibit 46. If we could put 704P2 20 back on the screen. 21 "It is further stipulated that, if called to testify, 22 a person fluent in Arabic would testify that the handwriting 23 on page 297B of GX704 is an Arabic word meaning south. 24 I have nothing further. 25 THE COURT: Meaning? 1820 1 MR. FITZGERALD: Meaning south, the direction south. 2 THE COURT: South, S-O-U-T-H? 3 MR. FITZGERALD: S-O-U-T-H. 4 CROSS-EXAMINATION 5 BY MR. HERMAN: 6 Q. Good afternoon, Agent Leadbetter. 7 A. Good afternoon. 8 Q. You told us that your involvement in this case started 9 when you were deployed from the United States; is that 10 correct? 11 A. That's correct. 12 Q. And you were told to go over to Nairobi, Kenya? 13 A. Yes. 14 Q. And, specifically, you were the team leader of the 15 evidence response team? 16 A. The team from New York that deployed, yes. 17 Q. Okay. And there came a time when you were assigned to go 18 to this village of Witu; is that correct? 19 A. That's correct. 20 Q. And had you ever been to Witu before? 21 A. No. 22 Q. Have you ever been to Kenya before? 23 A. No. 24 Q. When they told you to go to Witu, did you say, where is 25 Witu? 1821 1 A. I was shown the location. 2 Q. Did they show you a map or something to that effect? 3 A. Yes. 4 Q. Do you think, would you recognize the map of that area? 5 A. Probably. 6 Q. Let me show you what has been marked Odeh Exhibit C. 7 MR. HERMAN: With your permission, your Honor? 8 THE COURT: Yes. 9 Q. Agent Leadbetter, would that be a map of Kenya showing 10 where Witu is located? 11 A. Yes. 12 MR. HERMAN: Judge, I would move it into evidence. 13 MR. FITZGERALD: No objection. 14 THE COURT: Yes. That's Odeh Exhibit? 15 MR. HERMAN: I think we're up to C. 16 THE COURT: There has been a C. 17 MR. HERMAN: It's going to have to be Z. 18 THE COURT: Z? 19 MR. HERMAN: Z, as in zebra. 20 (Defendant Odeh Exhibit Z received in evidence) 21 THE COURT: What is the exhibit? 22 MR. RICCO: It's going to be Z, like in zebra. 23 MR. HERMAN: I've already used up the other letters. 24 BY MR. HERMAN: 25 Q. Agent Leadbetter, can you read that map on the screen? 1822 1 A. Yes. 2 Q. When you went to Witu, did you start off in Nairobi? 3 A. We went from Nairobi, yes. 4 Q. And from Nairobi where did you go? 5 A. We went by aircraft to the town of Lamu. From there, we 6 actually had to take a boat because the landing strip is on 7 the island. We took a boat across the channel and then we 8 drove from Lamu to Witu. 9 Q. And you see Lamu on Odeh Exhibit Z marked in yellow there? 10 A. Yes. 11 Q. And Lamu is actually on an island? 12 A. The airfield was on the island. 13 Q. So you flew from Nairobi to Lamu? 14 A. Correct. 15 Q. You then took a boat to Lamu? 16 A. The boat just took us across from the island back over to 17 the mainland side, yes. 18 Q. To the mainland side. 19 And from there you took -- thank you. That's a 20 better view. You then drove from Lamu to Witu; is that 21 correct? 22 A. That's correct. 23 Q. And how many individuals were with you at that time? 24 A. There were seven U.S. personnel, there were two Kenya CID 25 officers, there was the brother-in-law, and then there was a 1823 1 group of Kenya military personnel. I don't recall the 2 specific number. I believe we had three vehicles. 3 Q. Were these like tanks or some type of transporters? 4 A. They were like Land Rovers. 5 Q. Land Rovers. Four-wheel drive? 6 A. Correct. 7 Q. Okay. And would it be fair to say that the road from Lamu 8 to Witu was not the best road that you have ever been on; is 9 that fair to say? 10 A. That's fair to say. 11 Q. We're not talking about like a paved road or something to 12 that effect; is that right? 13 A. Portions of it are paved, portions of it are not. 14 Q. And how long did it take you to get the from Lamu to Witu? 15 A. Approximately an hour and a half. 16 Q. And was there traffic coming the other way at all? 17 A. There was some traffic, yes. 18 Q. There would be buses or lories, trucks coming the other 19 way? 20 A. Correct. 21 Q. And were the Kenya individuals, were some of them armed 22 with weapons? 23 A. The military escort we had, yes. 24 Q. And the reason that you had a military escort was there 25 was some concern that you might have the need for a military 1824 1 escort; is that correct? 2 A. I believe there was some concern about security, yes. 3 Q. When you were in this area did you ever get down to 4 Malindi? Can you see that on the map? 5 A. I see it on the map. I did not go there. 6 Q. Was it discussed that when you would go to Witu that you 7 would go from Lamu to Witu when you were directed to go? 8 A. Yes. 9 Q. Was there any discussion about taking this road from 10 Malindi? 11 A. No. 12 Q. Because that would appear to be a much longer way to go; 13 is that right? 14 A. It appears it from the map, yes. 15 Q. And were there any other villages on the way from Lamu to 16 Witu? 17 A. To the best of my recollection, there may have been one or 18 two small villages just off the road, you know, that could 19 have been set back a little bit that I seem to recall seeing 20 some houses. I don't know if you could accurately describe 21 them as villages. 22 Q. Okay. Lamu itself is a good-sized town, one might say? 23 A. Yes. 24 Q. I mean, there are buildings there and shops and hotels and 25 that type of thing? 1825 1 A. That's correct. 2 Q. Restaurants? 3 A. Yes. 4 Q. Did you actually stay overnight in Lamu? 5 A. No. 6 Q. And on the way from Lamu to Witu, over this hour and a 7 half, you said you maybe saw some scattered dwellings; is that 8 right? 9 A. That's correct. 10 Q. But basically you are going back into the interior of 11 Kenya; is that correct? 12 A. I guess that would be a fair statement, yes. 13 Q. When you get to Witu, is there a sign there that says 14 "entering Witu" or anything like that? 15 A. Not that I recall. 16 Q. Witu is basically -- the road widens to some extent and 17 you see some houses over to the left; is that right? 18 A. It was a, I would call it a fair-sized village. 19 Q. And the village was primarily composed of huts; is that 20 correct? 21 A. I would say actually the buildings were mostly as depicted 22 in the photographs, some kind of stucco wall construction, but 23 thatched roofing. 24 Q. Okay. So most of the buildings in this village looked 25 like the residence that you were going to search; is that 1826 1 correct? 2 A. Similar to that, yes. 3 Q. Were you told that what appeared to be stucco is 4 essentially mud that was painted over or -- 5 A. It may well have been. I'm using "stucco" as a 6 descriptive term, not as what it definitively is. 7 Q. Okay. Well, before you were given this assignment to go 8 to Witu, were you told, you know, what kind of tools or 9 equipment would be appropriate to bring? 10 A. We were told that we were going to search a residence, so 11 we brought the equipment we normally would take to support 12 that. 13 Q. Was it in your mind that you would have to perhaps break 14 into the residence? 15 A. No. 16 Q. Were you confident at that point that you would be 17 admitted entry into the residence without any resistance? 18 A. Yes. 19 Q. Did you know what the residence looked like at that time? 20 Did you know whether there was going to be, you know, a 21 wood-framed house or a stone house or anything of that regard? 22 A. I did not know. 23 Q. When you got to Witu there is kind of a main street in 24 Witu; is that right? 25 A. That's correct. 1827 1 Q. And there are some small stores along the way? 2 A. There may have been one or two, yes. 3 Q. Agent, I would like to show you, with the Court's 4 permission, Odeh E and Odeh F, which have been shown to the 5 government, and ask you whether you can identify what is in 6 those photos. 7 A. Photograph Odeh E is a building with a, again, it has -- 8 I'll continue to use the word "stucco," although I don't know 9 what the material is. It's some kind of a building with a tin 10 roof, and the sign on it or the sign that's painted on it says 11 "Witu General Store." 12 Q. Agent, do you recognize that as one of the buildings that 13 you saw that day in Witu? 14 A. It looks vaguely familiar, yes. 15 Q. If you could go to the next item, please. 16 A. Yes, Odeh F. Again, it's a closer picture of a building, 17 and it says on the building "Store Witu." 18 Q. Again I'll ask you the same question: Would that have 19 been one of the buildings that you saw that day in Witu? 20 A. Very possibly, yes. I don't specifically recall it, but I 21 wouldn't say it wasn't there. 22 MR. HERMAN: Move those into evidence. 23 MR. FITZGERALD: No objection. 24 THE COURT: E and F are received. 25 (Defendant Odeh Exhibits E and F received in 1828 1 evidence) 2 MR. HERMAN: This is Odeh E, your Honor. 3 Q. Agent, that would be the, kind of the downtown, so to 4 speak, area of Witu? 5 A. If you want to call it that, yes, that's what it would 6 pass. 7 Q. I was just speaking kind of generally, but you see the 8 Witu general store there and are there some goats or animals 9 hanging around outside the store? 10 A. That's correct. 11 MR. HERMAN: Your Honor, for the record, I think this 12 is Odeh F. 13 Q. Agent, Odeh F is on the screen. Would that be a store 14 that also would be in the -- 15 A. The same general area, yes. 16 Q. The same general area? 17 A. Yes. 18 Q. Is that a pretty good impression of what Witu looked like 19 at the time that you were there? 20 A. Yes. 21 Q. When you got to Witu, did you know where the house was 22 that you were looking to search? 23 A. No, not until it was pointed out to me. 24 Q. It was pointed out to you by the individual who was 25 accompanying you? 1829 1 A. That's correct. 2 Q. A family member? 3 A. That's correct. 4 Q. You remember his name at all? 5 A. No. I may have heard it, but I don't recall it. 6 Q. When you got to the house in question, you were admitted 7 entrance to the house; is that correct? 8 A. Yes, the Kenyan CID were able to gain us access. I don't 9 specifically recall how we got through the outer door. 10 Q. I gather that this was a joint investigation from your 11 viewpoint, "joint" meaning United States and Kenya? 12 A. Yes. 13 Q. And that the Kenyans were helping the Americans and -- was 14 that accurate? 15 A. Yes, we were working together. 16 Q. Working together. And the Americans were helping the 17 Kenyans in whatever help they required of you folks; is that 18 correct? 19 A. Correct. 20 Q. And were the Kenyans also kind of doing their own 21 investigation? 22 A. I don't know. 23 Q. Were they always in your presence? 24 A. In my presence, yes. 25 Q. What language were they speaking? 1830 1 A. Both Swahili and English. 2 Q. And with regard to the -- did you have any contact with 3 the people who actually lived in Witu, the residents? 4 A. No. 5 Q. Did you interview anybody about Mr. Odeh or about the 6 search or anything in that regard? 7 A. No, I did not. 8 Q. Did you hear people speaking while you were in Witu? 9 A. Yes. 10 Q. Were they speaking Swahili? 11 A. Yes. 12 Q. Do you understand Swahili? 13 A. No. 14 Q. Did you expect when you got to the residence in Witu that 15 there would be anybody actually living there at the time? 16 A. I was prepared for either, but I wasn't specifically told 17 one way or the other whether there would be. 18 Q. Well, you knew, for instance, that Mr. Odeh would not be 19 there; is that right? 20 A. Yes, that's correct. 21 Q. Mr. Odeh was in custody? 22 A. I believe that's correct, yes. 23 Q. And you knew that his wife would not be there, is that 24 accurate? 25 A. I did not know that personally, no. 1831 1 Q. Had you been told or did you learn that his wife had also 2 been taken into custody before this date? 3 A. I don't believe I knew that, no. 4 Q. But you were prepared to either search an empty residence 5 or to ask the people to leave while you searched, is that fair 6 to say? 7 A. Yes. 8 Q. And as you think back on it today, you don't know how the 9 CID gained, the Kenyan CID gained entrance to the residence, 10 is that your recollection? 11 A. The outer door was opened. It was not broken down. I 12 don't recall whether they were able to get a key from someone 13 in the village or how they, how that happened. The interior 14 door was opened from the inside. The brother-in-law went over 15 the wall under the eaves and opened the door from the inside. 16 That was the interior door. 17 Q. So it was fairly easy to gain access to the interior door? 18 A. Yes. Once we were inside the patio area, it was easy just 19 to go over the wall up under the eaves and climb over. 20 Q. Your job that day was to search and gather evidence; is 21 that correct? 22 A. That's correct. 23 Q. I gather you were looking for anything which might be 24 related to the criminal investigation, is that accurate? 25 A. That's correct. 1832 1 Q. And the criminal investigation was principally the bombing 2 of the embassy in Nairobi, is that fair to say? 3 A. Yes. 4 Q. In pursuit of that evidence, what did you do? 5 A. Initially when the outer door was opened, myself and 6 another special agent who was a bomb technician put on Tyvek 7 clothing. We went inside and we collected swabbings that 8 could be tested for the possibility of any residue. 9 Q. I'm going to stop you now. I'm sorry. I'll let you 10 continue in a second. 11 You say Tyvek clothing. The jury may not know what 12 that is. Tell them what it is and why you wear it. 13 A. It's just a protective overgarment that is clean. It's 14 sealed. We take it out of a bag and put it on. What it does 15 is ensure that if there's any kind of contamination on our 16 clothing, it's not going to translate over to the swabbings 17 that we're taking. 18 Q. Now, you used the word "contamination"? 19 A. Correct. 20 Q. And tell us why that's of concern to you as an FBI agent. 21 A. Generally speaking, when I'm collecting evidence I want to 22 ensure that what I'm collecting is from the specific location 23 where I am at the moment; that from moving from location to 24 location in my search I'm not carrying evidence from one 25 location to another because that would, could potentially 1833 1 invalidate the results of whatever I'm -- whatever search I'm 2 conducting. 3 Q. Would it be fair to say that your concern about 4 contamination is that if one potential piece of evidence comes 5 into contact with another piece of evidence, there could be 6 transfer of material? 7 A. Yes. 8 Q. Either between pieces of evidence or between an 9 investigator and a piece of evidence? 10 A. Yes, that is a concern. 11 Q. And obviously you have been trained to do a very careful 12 job in terms of retrieving evidence, is that fair to say? 13 A. Yes. 14 Q. And that's why when you retrieve a piece of evidence you 15 make sure that you wrap it or secure it in a way that it 16 doesn't come into contact with other pieces of evidence, is 17 that -- 18 A. If we have specific concerns about contamination, yes. 19 Q. Now, you had some kind of bomb expert with you? 20 A. Yes. We had a special agent of the FBI who is trained as 21 a bomb technician. 22 Q. If you know, was that special agent looking for bomb 23 components, TNT, TNT residue, or all of the above? 24 A. All of the above, to include residue, if you didn't 25 mention that. 1834 1 Q. And in fact, that's why the swabbings were done; is that 2 correct? 3 A. That's correct. 4 Q. Did you do them or did someone else do that? 5 A. He did them. I assisted. 6 Q. How long did that process take? 7 A. 15 to 20 minutes. 8 Q. Would it be fair to say that a swabbing is a piece of 9 cloth or cotton that is immersed in some liquid and is then 10 rubbed over various areas? 11 A. Yes. It's generally a cotton ball, but that's an accurate 12 description of how it's done. 13 Q. And then the swabs are maintained in separate containers 14 or envelopes? 15 A. They are each individually packaged, yes. 16 Q. And again, care is taken that the swabs don't come into 17 contact with each other for fear of contamination? 18 A. And in addition, we change gloves and we use a different 19 set of forceps for each swab we take. 20 Q. Based on your training, this is the proper and appropriate 21 way to go about gathering evidence, is that accurate? 22 A. That is one of the methods to be used for collecting that, 23 yes. 24 Q. And that's the method that, one of the methods you have 25 been trained in as an FBI agent? 1835 1 A. That's correct. 2 Q. And a method you used that day, is that fair to say? 3 A. That is correct, yes. 4 Q. And everybody with you maintained the same, used the same 5 procedures? 6 A. Yes. In fact, in this case we were the only two who did 7 that whole portion of the search. The other people remained 8 outside until we had completed. 9 Q. So you can be sure, because it was you and this other 10 gentleman, that these procedures were maintained between the 11 two of you? 12 A. Yes, that's correct. 13 Q. Are there also concerns from an investigative standpoint 14 with regard to chain of custody? 15 A. Yes. 16 Q. Could you tell the jury what that phrase means based on 17 law enforcement, your knowledge of law enforcement? 18 A. The term "chain of custody" refers to a direct 19 relationship where you can positively account for the 20 whereabouts of any item of evidence that is collected. 21 Someone always has positive control over the evidence or can 22 account for it being secured in an appropriate manner. 23 Q. What's the reason for that particular procedure? 24 A. Again, it's to ensure that the evidence is maintained in 25 a, I guess in a secure and in the same form as which it's been 1836 1 collected. 2 Q. Again, the concern might very well be contamination, that 3 is, it's unaccounted for for a particular period of time? 4 A. Not only contamination, but that other items of evidence 5 could have been added, some could be removed, that we would 6 lose accountability for the evidence. 7 Q. So part of your training, it appears, is to ensure that 8 all items of evidence are maintained in a chain from one 9 person to another until they get to their ultimate 10 destination; is that correct? 11 A. Yes. 12 Q. Typically there is paperwork which is filled out when you 13 turn over a piece of evidence to another individual, there's 14 documentation which is prepared which establishes the chain, 15 is that fair to say? 16 A. Which supports that, yes. 17 Q. The goal is to always know where the piece of evidence is; 18 is that correct? 19 A. Yes, and who's responsible for it. 20 Q. And who's responsible. 21 Ultimately, some of these items of evidence come back 22 to the United States; is that correct? 23 A. That's correct. 24 Q. And they might be analyzed by a laboratory in New York or 25 Washington, D.C., right? 1837 1 A. For our purposes, Washington, yes. 2 Q. And again, at that point procedures are in place to make 3 sure that everybody who handles the evidence is in the chain 4 of custody so the evidence is accounted for? 5 A. That's correct. 6 Q. And then eventually it can be brought up to a courtroom, 7 even in New York, and again the paperwork follows along with 8 the evidence? 9 A. Yes. 10 Q. So if you are shown something today and the chain of 11 evidence is all intact, you can say that's the same item that 12 I seized in Witu in the jungles of Kenya two and a half years 13 ago? 14 A. Yes. 15 Q. And that's in fact what you are telling us today, and in 16 fact, what we have stipulated to, that these are the same 17 items, in the same condition? 18 A. That's correct. 19 Q. The items that have been shown to you today and which have 20 been entered into evidence constitute a small portion of all 21 of the materials that you seized that day in Witu; is that 22 correct? 23 A. Yes. 24 Q. In fact, if I could just -- Agent, I'm sorry. If I could 25 just direct your attention. I've asked the government to put 1838 1 in this area all of the boxes of all the materials that were 2 seized. Are you in a position to see that? 3 A. Okay. 4 Q. I know you haven't had the opportunity to go through it, 5 and if you want to, I can allow you to, but -- 6 MR. FITZGERALD: There's one more. 7 MR. HERMAN: Oh, there's even more. 8 Q. I'll just indicate that there's been -- I think there are 9 about seven cartons, some are full, some aren't, but which I 10 have been told represents the materials that you seized in 11 Witu. 12 Would that be a fair representation based on your 13 recollection? 14 A. Yes. I mean, it may look like more because the packaging 15 of it has changed, but that's probably, I would say that's a 16 fair representation. 17 Q. All right. You told us today that, and you have shown us, 18 a portion of a notebook that was seized. I think it's 704. 19 704 is the notebook. In fact, there were a number of 20 notebooks that you seized, is that accurate? 21 A. Yes, I believe there were. 22 Q. These would be small, very thin paper notebooks? 23 A. I believe that's correct, yes. 24 Q. Like maybe a child would use to, as a primer, or something 25 to that effect? 1839 1 A. I suppose that is possible, yes. 2 Q. And there were, for lack of better, there were a bunch of 3 these types of materials; is that correct? 4 A. Yes, there were a lot of documents that we seized. 5 Q. A lot of written materials? 6 A. Yes. 7 Q. Recipes? Remember actually finding some recipes in the 8 home? 9 A. There may have been. Again, if it was written in Swahili 10 and we couldn't tell what it was, we would have collected it. 11 Q. So basically you gathered up all of these items? 12 A. Anything that looked like it could possibly be relevant, 13 yes. 14 Q. And did you then kind of go through them at all, yourself, 15 just to see what you had gathered up, or you just packaged it 16 up and sent it on? 17 A. A very brief glimpse. But again, to my recollection 18 everything was written in Swahili, so I was unable to tell 19 what was important and what wasn't. So we just took it all. 20 Q. And you weren't paying attention too much to whether any 21 of these items had dates on them or names on them or anything 22 to that effect? 23 A. No. 24 Q. Incidentally, when you were searching for these items, 25 this was daytime; is that right? 1840 1 A. That's correct. 2 Q. And you were using the daylight to look? 3 A. Yes. I believe we also used flashlights inside. 4 Q. Were there lights, electric lights inside the home? 5 A. I don't believe so, no. 6 Q. What about running water? 7 A. No, I don't believe so. 8 Q. Was there running water anywhere in Witu that you recall? 9 A. There may have been down at the store, but I can't say for 10 sure. 11 Q. And you described a bathroom area? 12 A. Yes. 13 Q. It was, indeed, just a bathroom area, right? 14 A. That's correct. 15 Q. There was no toilet, no sink, no shower? 16 A. No. 17 Q. It was an opening and a pit? 18 A. Yes. And then there was another area where it looked like 19 people had used, concrete floor area that looked like was 20 where people would bathe. 21 Q. Did you see, was there a kitchen in the home? 22 A. Well, the room I would describe as or that I identified as 23 room number 1 I would describe as the kitchen only because, to 24 my recollection, there were some cooking utensils, pots and 25 pans, that kind of thing, located there. 1841 1 Q. And did you take any photographs of the interior of the 2 residence? 3 A. Photographs were taken, yes. 4 Q. And I understand what you were saying is you did not 5 actually take, yourself, take photographs? 6 A. That's correct. 7 Q. Another individual in your search party was assigned the 8 task of taking photographs? 9 A. That's correct. 10 Q. The four photographs that you have identified here today 11 were in fact taken by the other person, but you recognize them 12 as being what you saw that day; is that right? 13 A. Yes. 14 Q. But according to the photographic log, it appears that 15 about 35 photographs were taken? 16 A. I believe that's correct, yes. 17 THE COURT: Mr. Herman, approximately how much longer 18 do you have? I'm not trying to rush you or anything. 19 MR. HERMAN: Let's take a break, Judge. 20 THE COURT: We'll take our luncheon break and resume 21 at 2:15: 22 (Luncheon recess) 23 24 25 1842 1 AFTERNOON SESSION 2 2:15 p.m. 3 HOWARD LEADBETTER, resumed. 4 (Jury present) 5 THE COURT: Mr. Herman, you may continue. 6 MR. HERMAN: Your Honor, I have four photographs that 7 I will indicate for the record the government has stipulated 8 may go into evidence. They are Odeh D as in dog, H, G, and I. 9 With the court's permission I will approach the witness and 10 show him the exhibits for identification. 11 CROSS-EXAMINATION continued 12 BY MR. HERMAN: 13 Q. Mr. Leadbetter, if you could simply look at those photos. 14 They have been stipulated into evidence, but are they 15 photographs of Witu, Kenya? 16 A. To the best of my recollection, yes, they are. 17 THE COURT: That is D, G, H and I, received. 18 (Defendant's Exhibits Odeh D, G, H and I received in 19 evidence) 20 Q. Agent Leadbetter, you indicated this morning that one of 21 the rooms in the home appeared to be a carpenter's room, is 22 that correct? 23 A. Yes, at the rear of the residence, yes. 24 Q. Right, indicated on the diagram, in the area -- maybe we 25 can put that exhibit up, 709A in evidence. 1843 1 That's not the one I was talking about. I was 2 talking about 709A, which shows the rear of the residence. B 3 it's B. 4 Maybe it's C. 5 I meant to say 709D, Judge. 6 Q. Agent Leadbetter, can you see that? 7 A. Yes. 8 Q. That is the rear area of the home? 9 A. That's what I was calling the patio area, yes. 10 Q. That is where in the back the bathroom area is? 11 A. Yes, in the rear left. 12 Q. Closer up to us on the left, there appear to be some 13 wooden items. Do you see them in the photograph? 14 A. Yes. 15 Q. Did you see them that day when you were in Witu? 16 A. Yes. 17 Q. On your diagram, you have indicated there is a curtain and 18 another room where the curtain is; is that correct? 19 A. Yes. There are actually two additional rooms on that 20 side. 21 Q. One of the rooms you have designated as a carpenter's 22 room; is that accurate? 23 A. What I would call a workshop, yes. 24 Q. Did it appear that there was a carpentry workshop in this 25 home? 1844 1 A. Yes. 2 Q. And evidence of that would be the pieces of wood to the 3 right-hand part of the screen? 4 A. Yes. 5 Q. Did you see other tools or other types of implements? 6 A. Yes, there were. 7 Q. Also on the left part of the screen appears to be an item 8 of carpentry that was being worked on at the time or was 9 unfinished? 10 A. Yes. 11 MR. HERMAN: Thank you. You can take that off the 12 screen. 13 Q. Incidentally, when you were going through the home, I 14 gather there was no telephone or anything like that in the 15 home. 16 A. No, I did not see a telephone in the home. 17 Q. You had your own communication devices that you were using 18 if necessary? 19 A. No. 20 Q. You had no connection to the rest of the world when you 21 were in Witu? 22 A. We would use public telephone or make arrangements through 23 the Kenyan CID if we needed to. 24 Q. Was there a public phone, if you recall, in town? 25 A. In town? I didn't specifically look for one, so I 1845 1 couldn't say. 2 Q. Did you notice a post office or anything that would be 3 involved with postal delivery, mail delivery, anything to that 4 effect? 5 A. I don't recall whether there was or not. 6 Q. When you were doing your search and collecting the items 7 that you have indicated, were all of them readily available to 8 you in that you didn't have to break into a safe or break into 9 a closet, anything of that nature? 10 A. While they weren't all in plain view, there was nothing 11 that we had to force open. 12 Q. So they were easily accessible to you when you gathered 13 them? 14 A. Yes, once we went looking, yes. 15 Q. These items that you collected were turned over to 16 American officials; is that your understanding? 17 A. When I returned to Nairobi, I turned them over to another 18 American who was responsible for maintaining custody. 19 Q. When you left, you left the residence in the custody of 20 the Kenyan officials; is that the way it worked? 21 A. Yes. 22 MR. HERMAN: Thank you, Judge. That is all I have, 23 your Honor. 24 THE COURT: Anything further of this witness? 25 MR. FITZGERALD: No, Judge. 1846 1 THE COURT: Thank you. 2 (Witness excused) 3 MR. BUTLER: Your Honor, we would like to read a 4 stipulation now, Government's Exhibit 38. 5 It is hereby stipulated and agreed by and between the 6 United States of America, by Mary Jo White, United States 7 Attorney for the Southern District of New York, Patrick J. 8 Fitzgerald, Kenneth M. Karas, and Paul W. Butler, Assistant 9 United States Attorneys, of counsel, and the defendants, by 10 and with the consent of their attorneys as follows: 11 1. Government's Exhibit 83A is an excerpt of the 12 videotape of the immediate aftermath of the bombing of the 13 American Embassy in Nairobi, Kenya, on August 7, 1998. The 14 video was taken by a Kenyan news organization. 15 2. Government's Exhibits 804A through 804C are three 16 photographs of the American Embassy in Nairobi, Kenya, and 17 surrounding area taken on August 7, 1998, soon after the 18 bombing by an individual located on the upper floors of a 19 building in the vicinity. 20 3. Government's Exhibits 805A through 805J are ten 21 photographs of the American Embassy in Nairobi, Kenya, and 22 surrounding area, taken on August 7, 1998, soon after the 23 bombing, from a helicopter. 24 4. Government's Exhibit 800 is a three-dimensional 25 model which accurately depicts the American Embassy in 1847 1 Nairobi, Kenya, and the immediate surrounding area as it 2 looked before the bombing on August 7, 1998. 3 5. Government's Exhibits 801A through 801G are four 4 diagrams of the American Embassy in Nairobi, Kenya, which 5 accurately reflect the location of certain offices within the 6 embassy on August 7, 1998. 7 6. Government Exhibits 802A through 802H are eight 8 drawings of the American embassy in Nairobi, Kenya, and 9 surrounding areas drawn to approximate scale. The drawings 10 accurately reflect the distance between the embassy and 11 certain areas indicated in the drawings, including the 12 distance from the embassy to the Kenyan Railway Yard. 13 7. Government's Exhibits 806A through 806K are 14 photographs of persons injured in the bombing of the American 15 Embassy in Nairobi, Kenya, and surrounding areas on August 7, 16 1998, or photographs of the damage caused in the bombing of 17 the American Embassy in Nairobi, Kenya, and surrounding areas 18 on August 7, 1998. 19 8. Government's Exhibits 809A through 809AF are 20 photographs of the damage caused to the American Embassy in 21 Nairobi, Kenya, as a result of the bombing on August 7, 1998. 22 9. Government's Exhibits 803A through 803E are 23 photographs of the American Embassy in Nairobi, Kenya, taken 24 before the bombing in or about February 1998. 25 It is further stipulated and agreed that all of the 1848 1 above-referenced exhibits are fair and accurate depictions of 2 the persons and property in and around the vicinity of the 3 American Embassy on August 7, 1998, and thereafter. 4 It is further stipulated and agreed that the 5 foregoing exhibits may be received in evidence at trial. 6 And it is further stipulated and agreed that this 7 stipulation may be received in evidence as a government 8 exhibit at trial. 9 The government would now offer the stipulation, which 10 is Government's Exhibit 38, and the exhibits included in the 11 stipulation. 12 THE COURT: They are received. 13 (Government's Exhibits 38, 83A, 800, 801A through 14 801G, 802A through 802H, 803A through803E, 804A through 804C, 15 805A through 805J, 806A through 806K, and 809A through 809AF 16 received in evidence) 17 THE COURT: I suggest also for purposes of a record 18 that there be a photograph made of the model so that the 19 photograph can be in the record rather than the model itself. 20 MR. BUTLER: We have one, your Honor, and we will 21 mark it. 22 THE COURT: Very well. They are all received. 23 With respect to testimony that you will hear from 24 witnesses who were at the United States Embassy in Nairobi, 25 Kenya, on August 7, 1998, when it was bombed, you should bear 1849 1 the following in mind: In receiving this evidence, I want to 2 instruct you that the defendants K.K. Mohamed and Wadih El 3 Hage have not been charged with participating in the bombing 4 of the embassy in Nairobi. They are not charged with the 5 murders of those who died in that bombing. Evidence of the 6 Nairobi bombing is relevant to K.K. Mohamed and Wadih El Hage 7 solely to the extent that it establishes the scope and goals 8 of the overall conspiracy of which they are alleged to have 9 been members. You may consider the evidence with respect to 10 the Nairobi bombing as to K.K. Mohamed and El Hage solely for 11 that limited purpose. 12 MR. KARAS: Your Honor, at this time we would read 13 stipulation marked as Government's Exhibit 37. It is hereby 14 stipulated and agreed by the parties that: 15 1. On August 2, 1990, military forces from Iraq 16 invaded Kuwait. 17 2. On August 7, 1990, President George Bush publicly 18 announced that he ordered the first contingent of American jet 19 fighters and a brigade of American soldiers to Saudi Arabia. 20 The American forces were dispatched after the Saudi government 21 agreed to permit these forces to land in Saudi Arabia. 22 At this time we would offer Government's Exhibit 37 23 into evidence. 24 THE COURT: Received. 25 (Government's Exhibit 37 received in evidence) 1850 1 MR. BUTLER: Your Honor, the government calls 2 Ambassador Prudence Bushnell. 3 At the same time, your Honor, we would like to 4 publish Government's Exhibit 800, which is the 5 three-dimensional model. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1851 1 PRUDENCE BUSHNELL, 2 called as a witness by the government, 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. BUTLER: 6 Q. Ambassador, would you tell us what your current position 7 is. 8 A. I am currently the United States ambassador to the 9 Republic of Guatemala. 10 Q. How long have you held that position? 11 A. I have been there since October of 1999. 12 Q. How long have you been with the United States State 13 Department? 14 A. Since 1981. 15 Q. Prior to becoming ambassador to Guatemala, what was your 16 position? 17 A. I was the United States ambassador to the Republic of 18 Kenya. 19 Q. For what time period were you the United States ambassador 20 to the Republic of Kenya? 21 A. From July of 1996 until May 1999. 22 Q. So you were the ambassador to Kenya on August 7, 1998? 23 A. That is correct. 24 Q. Could you please describe to the jury generally what an 25 embassy like the one in Kenya is and what it does. 1852 1 A. An embassy is the official presence of one government, in 2 this case the United States, in a foreign country, Kenya, 3 accredited to the government of Kenya to represent US 4 interests. It was in our case an amalgam of 17 different 5 federal agencies, from the Department of Defense and 6 Department of State all the way to Peace Corps and the Library 7 of Congress, doing things from helping the Kenyans develop 8 their democracy to fighting disease, taking care of helping 9 Kenyans taking care of their environment -- a full array of 10 activities. 11 Q. Do you recall about how many people worked in the American 12 Embassy in August of 1998? 13 A. In the embassy building -- and I say that because we were 14 a very large embassy and we had a number of buildings around 15 the city. But in the main building, which we called the 16 embassy building, we had at any one time about 200 people. 17 Q. What types of people worked for the embassy? 18 A. Most of the people who work in the embassy, in this case 19 Nairobi, are Kenyans, foreign -- we call them foreign service 20 nationals -- who do everything from computer services to 21 operating motor pool personnel, budget and fiscal. We also 22 had a number of Americans, American officers. We had American 23 contractors. We had part-time employees. And because this 24 was the summertime and there were a lot of people on vacation 25 and transferring from one spot to another, we had summer 1853 1 interns, college students, and also high school students from 2 a summer hire program. 3 Q. Where was the embassy located in Nairobi? 4 A. The embassy was located on a very busy downtown corner of 5 Moi Avenue and Haile Selassie Avenue. 6 MR. BUTLER: Your Honor, with the court's permission 7 I would like to ask Ambassador Bushnell to temporarily step 8 down from the witness stand and approach Government's Exhibit 9 800. 10 THE COURT: Yes, you may. 11 Q. Ambassador Bushnell, if you could, could you describe 12 first the buildings on Government's Exhibit 800 for the jury. 13 First, what is the building closest to you? 14 A. This yellow-tone building is the American Embassy 15 building. This is the building called the Ufundi House. And 16 this is the Cooperative Bank Building. 17 In front of the embassy you have Moi Avenue here. On 18 the side of the embassy you have Haile Selassie Avenue. So as 19 you can see, this building was right on the corner of Haile 20 Selassie and Moi. 21 Q. What is at the intersection of Haile Selassie and Moi 22 Avenue, the area in the corner bottom of the diagram? 23 A. Here? 24 Q. What was located in this area, intersection? 25 A. This was a round-about, a circle. Over on the other side 1854 1 was the railway station, which is one of the reasons why this 2 was one of the busiest streets in Nairobi, because with the 3 railway station you had a lot of vendors, you had street 4 preachers, and you had an enormous number of buses which would 5 pick people up and take them to their final distinction. 6 Q. I think you testified that the front of the embassy faces 7 Moi Avenue, correct? 8 A. That's correct. The front is right here. 9 Q. If I could just draw your attention to the rear of the 10 embassy, over here, could you just describe for the jury what 11 is depicted in the rear of the embassy now. 12 A. The rear of the embassy is a parking lot, and the fence 13 you see is where the actual embassy property ends. Underneath 14 is the entrance to our underground parking lot. This right 15 here was a refrigeration unit, and this right here is a 16 generator unit. 17 Q. The building next to the parking lot there, the smaller 18 one, the Ufundi House, what was in the Ufundi House? 19 A. The Ufundi House was an all-purpose office building that 20 housed various small offices, as well as a secretarial 21 college. So you had any number of kinds of people who would 22 be going in and out of there. 23 Q. Going back to the embassy for just a moment, do you recall 24 how many stories the embassy was? 25 A. The embassy was three stories above ground, and we had two 1855 1 stories underground. 2 Q. And the large building, the Co-op House, what was the 3 Co-op House? 4 A. This was the Co-op Bank Building, which housed the Co-op 5 Bank as well as various offices and the Ministry of Culture -- 6 I am sorry, the Ministry of Commerce. 7 Q. Thank you. You can resume the witness stand. 8 I would like to show you a photograph that has 9 already been admitted into evidence as Government's Exhibit 10 803A. Could you just describe for the jury what is in 803A, 11 Ambassador. 12 A. What you see here is a photograph of the embassy that is 13 taken from the other side of the round-about. The large 14 building off to the left is the Cooperative Bank Building. 15 Q. And the side of the embassy that you see the most, is that 16 the front entrance? 17 A. That is the front of the building, and the area of the 18 building of which you only see a portion is the back. 19 Q. Could we now publish Government's Exhibit 803B. 20 What is in Government's Exhibit 803B, Ambassador? 21 A. You can get a sense of the amount of everyday traffic and 22 people walking by. You see in the background the embassy and, 23 again the Cooperative Bank Building. 24 Q. Can we please publish Government's Exhibit 803C. 25 What is depicted in Government's Exhibit 803C, 1856 1 Ambassador Bushnell? 2 A. This is the rear of the embassy. You can see the fence 3 which I showed on the model, as well as, by the guard booth, 4 the entrance to the underground parking lot. 5 Q. Please publish Government's Exhibit 803D. 6 What is depicted in Government's Exhibit 803D, 7 Ambassador? 8 A. This is the gate, face-on shot of the entry to the 9 underground parking lot. 10 Q. And if we could publish Government's Exhibit 803E. 11 What is Government's Exhibit 803E, Ambassador? 12 A. This is the entryway, the reception of the main entrance 13 into the embassy. People who came in, you can see the metal 14 detector, and people who came in would walk through that metal 15 detector. The booth that you can see behind, I think you can 16 see some reflection of light, that is where the marine guard 17 would stand. 18 Q. Does that have a name that it was called, the area where 19 the marine guard would stand? 20 A. Where the marine guard stands is called Post One. So what 21 you are seeing in back again where you see the reflection off 22 the glass, that is Post One. 23 Q. Ambassador Bushnell, do you recall the morning of August 24 7, 1998? 25 A. Yes, I do. 1857 1 Q. Did you go to the embassy that morning? 2 A. Yes. It was an ordinary Friday. I went to the embassy, 3 about 8:00 arrived there. 4 Q. Do you recall where you were later on that morning? 5 A. I had a meeting in the Cooperative Bank Building with the 6 Minister of Commerce. We had a trade delegation coming, 7 headed by then Secretary of Commerce Daley I, and I was going 8 over there to brief the minister and talk about the Daley 9 visit. Fridays were the day on which we had our weekly staff 10 meetings, so it was unusual that I was absent, but all of the 11 members, senior members of the embassy team were in my office, 12 and I was in the Cooperative Bank Building behind the embassy 13 building. 14 Q. Do you recall approximately what time that meeting began? 15 A. That meeting began at 10:00 in the morning. 16 Q. Do you recall generally what floor you were on in the 17 Cooperative Bank House? 18 A. It was on the top floor of the Cooperative Bank Building. 19 Q. Who else attended that meeting? 20 A. I went to the meeting with two colleagues from the 21 Department of Commerce, and on the Kenyan side you had the 22 Minister of Trade and six or seven other people, Kenyans. 23 Q. May we publish now Government's Exhibit 806G, which has 24 already been received in evidence. 25 Can you tell us what Government's Exhibit 806G 1858 1 depicts, Ambassador. 2 A. This is a photograph taken from the side of the Minister 3 of Commerce, Kamotho and myself. Part of the routine with 4 visits of ministers in Kenya is that initially the press is 5 there and it gives the minister an opportunity to say some 6 words to the press, a photo op. That picture was taken at the 7 very beginning of the meeting when the press was still there. 8 Q. That is you in the photograph, is that correct? 9 A. That is correct. 10 Q. And the other person is Minister Kamotho? 11 A. That is correct. 12 Q. Do you recall what happened after this meeting began, 13 Ambassador Bushnell? 14 A. After about 15 or 20 minutes with the press, the minister 15 dismissed the press. Someone came in with some tea, and we 16 began to talk about the Daley visit. We had only -- we were 17 maybe two or three, four minutes into the conversation when we 18 all heard a very loud explosion. I turned to the minister and 19 asked if there was construction going on in the area, because 20 to me it sounded like the kind of explosion you would hear 21 associated with construction. He said no. He got up and 22 walked to the window. Most of the other people in the room 23 went to the window. And it was at that point that an enormous 24 explosion came. I was the last person out of my seat and had 25 just taken a few steps before this huge explosion happened. I 1859 1 was thrown back, and although I didn't think at the time I was 2 unconscious, I must have been because when I brought myself 3 back to reality, I was sitting down with my hands over my head 4 because the ceiling was falling down. I will never forget the 5 rattling of a teacup, just kept rattling. I thought to myself 6 that the building was going to collapse, that I was going to 7 tumble down all those stories, and that I was going to die, 8 and every cell in my body was just steeled toward waiting for 9 the fall. 10 But it didn't. The teacup stopped rattling and there 11 was quiet, and I looked up and I was alone in the room, which 12 is why I must have lost some consciousness. I was alone in 13 the room. The only other person present was a man who was 14 prone, face down on the floor. I thought he was dead. 15 Almost simultaneously, one of my Department of 16 Commerce colleagues came rushing into the room and the man who 17 was prone on the floor raised his head. My colleague said 18 Ambassador, we've got to get out of here. 19 So I got up. I didn't want to leave people in the 20 same position I found myself in, which was alone. So we 21 walked around the top floor to make sure there were no other 22 people there. We found two. And we climbed over the door 23 into the stairwell, which had been blown into the stairwell. 24 Q. What did the top floor look like after you gained 25 consciousness? What did you see around you? 1860 1 A. The office was a mess because the ceiling had, part of the 2 ceiling had fallen in, and the furniture was overturned and 3 papers were scattered all over the place. I frankly don't 4 remember the hallway. There was nothing particularly 5 significant about the hallway. But as we climbed over the 6 door I saw someone's shoe and a great deal of blood. And then 7 the reality of, the enormity of the blast began to hit. 8 Q. You said you made your way to the doorway. What happened 9 after you made your way to the doorway? 10 A. We began to climb down the stairs very slowly, and at the 11 upper floors there were not very many people, but as we got 12 down, the further down we got the more and more people we 13 found in the stairway, until we were a procession of human 14 beings who were smashed together, going down those endless 15 stairs. 16 There was no panic, which was amazing, and also 17 something that probably saved a lot of lives. 18 I was also struck of the almost eerie silence. It 19 was a very hushed procession. As people joined us from 20 different floors, sometimes you would hear somebody yell out 21 welcome. You could also hear some people who were praying. 22 Some other people were singing hymns. Down we went. As we 23 got to the lower floors, this huge procession of people, who 24 were bleeding all over one another -- there was blood 25 everywhere, on the bannister, I could feel the person behind 1861 1 me bleeding on my hair and down my back. As we got to the 2 lower floors the procession stopped, and somebody yelled out, 3 there's a fire, hurry. We had stopped in the middle of smoke. 4 That was the second time that day that I was fairly confident 5 that I was going to die, and all I could think of was well, at 6 least I'm not going to be burned alive, at least I will die 7 from asphyxiation. 8 Q. Ambassador Bushnell, had you sustained any injuries at 9 this point? 10 A. The one that was most apparent to me was that my lip was 11 bleeding profusely. I had a lot of blood on me but I was very 12 unsure as to which was my blood and which was the blood of 13 other people. 14 Q. So after you hit the point where the smoke was coming in, 15 what happened after that? 16 A. Eventually we started walking down again very slowly. I 17 will say that in this procession down, at one point a woman 18 collapsed. I am not sure if she died or, I have no idea what 19 happened to her, but she was passed down over my head and 20 passed down. Now and again I would see the body of somebody 21 and the body would be picked up and taken down. 22 Eventually we came towards the bottom. I had no idea 23 that this was an explosion directed at anything but the bank 24 building. My reality was simply inside that building. I kept 25 thinking, all I have to do is get out of here and go back to 1862 1 my embassy, into the medical unit, because we had a medical 2 unit, and somebody will take care of me. 3 My colleague and I came out of the front of the 4 Cooperative Bank Building, and I saw what seemed like 5 thousands of people across the street looking on. At that 6 point my colleague said put your face down, the press is here, 7 and literally pushed my face down. So the first thing I saw 8 was what was on the street. A lot of glass, lot of glass, 9 twisted pieces of charred metal. So I was stepping over an 10 enormous amount of debris. As we came out and we came by our 11 parking lot, what was our parking lot, I looked up and saw 12 burning vehicles. I saw the charred remains of what was once 13 a human being. I saw the back of the building completely 14 ripped off, and utter destruction, and I knew that no one was 15 going to take care of me. 16 We came along the side of the building and were 17 spotted by our security people, who started yelling get her 18 out of here, get her out of here. I think there was a great 19 deal of concern, as there often is, that there might be 20 another attack. They didn't want the US ambassador, having 21 found her alive they didn't want anything to happen. So I was 22 literally pulled around the front of the building where we 23 found a vehicle. I was pushed into the vehicle with my two 24 colleagues. We had by that time found the second man from the 25 Department of Commerce, both of whom were bleeding profusely. 1863 1 And I asked the driver to take me to a hotel rather than a 2 hotel, because I very much needed to get to work, and I was 3 afraid if we went to a hospital it would just take too long 4 waiting in the emergency room. 5 Q. I would like to publish now Government's Exhibit 804A. 6 Ambassador Bushnell, could you tell us what is 7 depicted in Government's Exhibit 804A. 8 A. That is very likely -- that photograph was very likely 9 taken after the bombing, because you can see the huge amount 10 of smoke coming. 11 Q. Is this similar to the scene that you encountered once you 12 got out of the Cooperative Bank House? 13 A. I was on the ground obviously, but yes, this was -- it was 14 this kind of scene from a war. 15 Q. Could we publish Government's Exhibit 804B. 804C. 16 Again, that is -- 17 A. It's another shot, yes. 18 Q. Why don't we go to Government's Exhibit 806F, which has 19 been received in evidence. 20 Is this a photograph of you after the bombing, 21 Ambassador Bushnell? 22 A. Yes. That was taken a day or so after the bombing. I had 23 a number of bandages on my hands, again because I had my hand 24 over my head. The debris came and hit hand and arms. I have 25 absolutely no idea how I cut my lip, but there you are. I had 1864 1 stitches in my lip. 2 Q. Will you publish Government's Exhibit 806D. 3 Do you recognize the person depicted in Government's 4 Exhibit 806D? 5 A. That is Minister Kamotho, who had been sitting next to me 6 on a couch just before the bomb went off. 7 Q. Did you go back to the embassy in the days following the 8 bombing, Ambassador Bushnell? 9 A. The first time I went back to the embassy was the next 10 day. There was just too much chaos, and I had too much to do 11 to go back on the Friday. So the first time I was back in the 12 building was Saturday morning. 13 Q. Did you pay several visits to the area of the embassy in 14 the days and weeks following that? 15 A. For the subsequent months I was in the building very 16 often. 17 Q. I would like to show you a series of photographs beginning 18 with Government's Exhibit 805A. What is depicted in 19 Government's Exhibit 805A, Ambassador Bushnell? 20 A. That is an aerial view. You can see the Cooperative Bank 21 Building, the tall building. You can see the embassy. What 22 you will not see is the Ufundi House. Do you see the rubble 23 in the corner between -- if you look at the embassy and you 24 look to the left of the embassy, you can see some white 25 rubble. That was once a seven-story building. 1865 1 Q. Could we publish 805B. 2 What is depicted in 805B, Ambassador? 3 A. Again, it's a shot down to the embassy building. If you 4 will notice, virtually every window in the Cooperative Bank 5 Building has been blown out. The embassy building itself 6 looks pretty good from the outside. In fact, it was utter 7 devastation on the inside and in the back. 8 Q. We go to 805C. 9 A. May I just say that the embassy had been built in the 10 seventies to withstand an earthquake, which was why the outer 11 walls managed to stay pretty much put. 12 Q. Looking at 805C, this again is a photograph of the embassy 13 after the bombing, in the area? 14 A. That is correct. Again, what you are looking at, if you 15 take as reference point the Cooperative Bank Building, you 16 will see in the back face of the Cooperative Building the 17 embassy, and again I will just point out that in the corner to 18 the right of the embassy where you see the white rubble is 19 what was once an office building filled with people. 20 Q. Looking to the upper left-hand corner of the screen, you 21 had mentioned before that there was the Kenyan rail station 22 and rail yard. Could you just point that out for the jury. 23 A. Again, if you take a as a reference point the Cooperative 24 Bank Building and go immediately to your left, you will see 25 red tiled roofs. That was the railway station. And you can 1866 1 see in fact behind the trees you can see the tracks. The 2 railroad tracks. 3 Q. Let's go to 805D. 4 Actually, let's go to 805E. 5 Just for a second, take a look at 805E. About the 6 middle of the screen you described a traffic circle before. 7 Do you see that in the photograph? 8 A. Yes, I do. 9 Q. Could you just point that out for the jury. 10 A. If you take as reference point the embassy and you go to 11 your right, you will see the traffic circle that at one time 12 had a lot of vegetation on it. 13 Q. And again, the building to the lower right-hand corner 14 with the orange or red tile, that is the railway yard? 15 A. That is the railway station, yes. 16 Q. Why don't we go to F. 17 And once again, behind the railway yard were the 18 actual train tracks, is that correct? 19 A. That is correct. What you are seeing now are the train 20 tracks. 21 Q. Let's go to G. 22 Just describe what is in Government's Exhibit 805G 23 for the jury. 24 A. Again, you are looking down onto the round-about, the 25 circle, and then a little bit to the left is the top of the 1867 1 embassy building, the top of the Cooperative House, and the 2 white sand is the Ufundi House, the white rubble. 3 Q. Let's go to 805H. 4 Again, is that an accurate depiction of the embassy 5 area, including the former Ufundi House? 6 A. That is correct, and you can see the windows blown out of 7 the Cooperative Bank Building, the top of the embassy 8 building, and the rubble of the Ufundi House. 9 Q. 805I. 10 Why don't we go to 805J, actually. 11 Again, Ambassador, that is just another picture of 12 the area of the embassy after the bombing? 13 A. That's correct, and again I would just draw to your 14 attention the reference point of the Cooperative Bank 15 Building, and across from that is the railway station. 16 Q. You mentioned that there was damage to the interior of the 17 embassy. Were you inside the embassy after the bombing? 18 A. As I said, the first time I went inside the embassy was 19 the Saturday morning after the bombing. 20 Q. Did you take tours of some of the damage on the inside of 21 the embassy? 22 A. I went throughout the embassy. 23 Q. Can we publish Government's Exhibit 809A. 24 Is this a picture of the interior of the embassy 25 after the bombing? 1868 1 A. That's correct. That is one of the hallways, I believe. 2 Q. Why don't we skip ahead to 809D, as in dog. 3 A. That is the roof of the building. 4 Q. Let's go to 809E. 5 A. That is also on the roof of the building. 6 Q. If you look in the background of the photograph, what is 7 that building depicted there? 8 A. That is the Cooperative House -- I am sorry, the 9 Cooperative Bank Building. 10 Q. Why don't we go to 809G. 11 Is that another photo of the interior of the embassy 12 after the bombing? 13 A. That is correct. That is the inside of what used to be an 14 office. 15 Q. And 809H. 16 A. Another office. Used to be. 17 Q. Let's move ahead to 809I. 18 Do you recognize this as another photo of the 19 interior of the embassy, Ambassador? 20 A. That's correct. Once again, that's an office in which 21 people worked. 22 Q. Let's go to 809K. 23 Is this another photo of the interior of the embassy? 24 A. Yes, it is. 25 Q. Why don't we skip ahead to 809Q. 1869 1 Is this another photo of the interior of the embassy 2 after the bombing? 3 A. Yes, it is, including a file cabinet with one of the 4 drawers thrown open. 5 Q. If you look in the photo through the opening in the middle 6 of the photo, do you see a building in the background? Do you 7 recognize what that is? 8 A. That is the Cooperative Bank Building, so what you are 9 seeing is a photo that is taken from inside the embassy out 10 the back. 11 Q. Let's go ahead to 809S. Is this another photo of the 12 interior of the embassy after the bombing? 13 A. Yes, it is, including somebody's red, white and blue 14 notebook. 15 Q. Why don't we skip ahead to 809Y. 16 Do you recognize this as another depiction of the 17 interior of the embassy after the bombing? 18 A. That is correct, and you can see the blue sky between what 19 was once a wall. 20 Q. Let's go to 809AZ. 21 Again, do you recognize this as a photo of the damage 22 to the interior of the embassy? 23 A. That is correct, and once again, the photo is taken from 24 inside the building. You are looking at Ufundi House and what 25 was once a wall, no longer there, caved in. 1870 1 Q. Let's skip ahead to 809AC. Do you recognize this as 2 another photo of damage that the embassy sustained in the wake 3 of the bombing? 4 A. That's a hole in a wall. 5 Q. And finally, let's go to 809AE, as in Edward. 6 Again, is there another photo of damage to the 7 interior of the embassy? 8 A. That is correct. This is another office. 9 MR. BUTLER: No further questions, your Honor. 10 THE COURT: Any cross-examination? 11 MR. WILFORD: I have just a couple. 12 THE COURT: Mr. Wilford, on behalf of the defendant 13 Odeh. 14 CROSS-EXAMINATION 15 BY MR. WILFORD: 16 Q. Good afternoon, Ambassador. 17 A. Good afternoon. 18 Q. How are you doing? 19 A. I am OK. It is very difficult to be taken back. 20 Q. I understand. Do you need a moment? 21 A. No, thank you. I am all right. 22 Q. When you commenced your direct examination, you indicated 23 that part of your responsibilities at the embassy was to have 24 a whole host of governmental agencies involved with the Kenyan 25 government; isn't that correct? 1871 1 A. That's correct. 2 Q. Part of your responsibility and concern was to understand 3 and know the economic conditions of the people in Kenya; isn't 4 that correct? 5 A. That is correct. 6 Q. Would it be fair to say that you had some familiarity 7 during your time as the ambassador in Kenya as to the yearly 8 income, the per capita income of Kenyan people, the average? 9 Did you have some knowledge about that? 10 A. I can't tell you the -- I frankly have forgotten what the 11 per capita income is, but I was familiar with it at the time 12 and it is very low. 13 Q. And the average monthly income is very low; isn't that 14 correct? Is that a fair statement? 15 A. That's a fair statement. 16 Q. By the way, do you remember the exchange rate at the time 17 that you were there for Kenyan shillings to US dollars? 18 A. I believe it was between 700 and 800 shillings to the 19 dollar. 20 Q. I know this is a while ago and you are in another country 21 now, but do you happen to remember approximately how many 22 shillings per month would be the average earning? 23 A. I am sorry, I don't. 24 Q. Ambassador, would it be fair to say that after the 25 incident occurred, that there was a significant amount of 1872 1 press coverage in Kenya? 2 A. Yes, there was. 3 Q. There was press coverage in Kenya dealing with the 4 explosion; is that correct? 5 A. That is correct. 6 Q. And also with the fact that certain individuals were being 7 held in custody; isn't that correct? Do you remember that? 8 A. That was not until later. My recollection of press 9 coverage was of the amount of damage and the number of people 10 who died, because it took a fair number of days to tally the 11 number of people who had been wounded and who had died. 12 Q. Yes, but I am speaking several days later. The press 13 coverage continued, isn't that correct, and several days later 14 there was some coverage, in fact, quite a bit of coverage 15 about people who had been arrested and were being interrogated 16 in Kenya; isn't that correct? 17 A. I quite frankly don't have a recollection of that, but I 18 am sure there would have been press coverage, yes. 19 Q. During the course of your examination you were shown 20 several photographs. I believe one or two of them are 805A 21 and 805G. In those photographs, I noticed that there were -- 22 could you put those up, please. 23 I notice that there appear to be several what look 24 like perhaps tents in the photograph. Do you see those? 25 A. Yes. 1873 1 Q. Would it be fair to say that those were erected to assist 2 in the rescue and recovery operation that was ongoing at that 3 time? 4 A. That is correct. 5 MR. WILFORD: Thank you. I have no further 6 questions. 7 THE COURT: Mr. Baugh, on behalf of the defendant 8 Al-'Owhali. 9 CROSS-EXAMINATION 10 BY MR. BAUGH: 11 Q. Good afternoon, Ambassador. 12 A. Good afternoon. 13 Q. I notice sometimes some people say Kenya, some people 14 Kenya. Which is proper? 15 A. Kenyans say Kenya. 16 Q. Actually, following Mr. Wilford, taking the liberty of 17 pulling some information from the United States Central 18 Command, would you agree with the figure that the exchange 19 rate in 1998 was about 1 US dollar to 61.164 Kenyan shillings? 20 Would that be approximately right? 21 A. You are correct. I added a zero. 22 Q. Yes, ma'am, and also that the per capital income in 1997, 23 US dollars, was approximately $1,600? 24 A. That sounds about right. I can't say exactly. 25 Q. Believe me, I didn't know till last night myself. 1874 1 Do you recollect all the agencies of the United 2 States government that utilized the building of the U.S. 3 Embassy? You mentioned DOD, the Department of Defense. 4 A. We had, it was primarily -- let's see. We had the 5 Department of Agriculture in the building. We had Immigration 6 and Naturalization Services in the building. We had the 7 regional headquarters of the Department of Commerce. We 8 had -- 9 Q. Ambassador, may I interrupt you. 10 A. Sure. 11 Q. Am I correct that the United States Embassy in Kenya also 12 has facilities for secure satellite up-links of -- 13 MR. BUTLER: Objection, your Honor. 14 THE COURT: Sustained. 15 Q. Ma'am, would you agree that the agencies you just listed 16 don't need top secret communication facilities, do they? 17 MR. BUTLER: Objection, your Honor. 18 THE COURT: Sustained. 19 MR. BAUGH: Then I will ask it this way. 20 Q. This diagram, this mock-up, in the photographs there are a 21 lot of antennae and satellite dishes on top that are not on 22 this model, are they? Is that correct? 23 A. That is correct, you don't see satellite dishes on the 24 model. 25 Q. Those satellite dishes are for direct communication to the 1875 1 United States -- 2 MR. BUTLER: Objection, your Honor. 3 THE COURT: No, I will allow it. 4 Q. Those satellite dishes are for direct communication to the 5 United States, am I correct? 6 A. That's correct. 7 Q. And further, without getting into what goes over them, 8 some of those communication systems are set up with encryption 9 devices, am I right? 10 Don't answer yet. 11 MR. BUTLER: Objection, your Honor. 12 THE COURT: Sustained, sustained. 13 Q. Ma'am, are there agencies that work in that agency which 14 require secret communication devices? 15 Don't answer. 16 MR. BUTLER: Objection, your Honor. 17 THE COURT: I will allow that. That is yes or no, if 18 you know. 19 Q. Thank you. Are there agencies in that building that 20 require secret communication facilities? 21 A. Yes. 22 MR. BUTLER: Objection, your Honor. 23 THE COURT: Overruled. 24 Q. Thank you. You have been with the State Department -- 25 before you became an ambassador -- you were appointed by the 1876 1 president, right? 2 A. Pardon me? 3 Q. Ambassadors are appointed by the president? 4 A. That is correct. 5 Q. But unlike many ambassadors, you were a State Department 6 employee? 7 A. That's correct. 8 Q. And had been one for years. 9 A. That is correct. 10 Q. What year were you made US ambassador in Kenya? 11 A. In 1996. 12 Q. In 1996, as part of your duties, were you told about this 13 Bin Laden thing that was going on over there? 14 MR. BUTLER: Objection, your Honor. 15 THE COURT: Sustained. Sustained. 16 Q. As United States ambassador, did you ever warn the Kenyans 17 about threats made against US embassies, US facilities? 18 MR. BUTLER: Objection, your Honor. 19 THE COURT: Sustained. 20 Q. Ma'am, were you ever told that the FBI had developed -- 21 MR. BUTLER: Objection, your Honor. This is beyond 22 the scope. 23 MR. BAUGH: If I might, Judge. 24 THE COURT: I will permit you to ask the question. 25 Please let me rule. 1877 1 Q. Don't answer till the judge rules. 2 Ma'am, were you ever told that in 1996 a man named al 3 Fadl, F-A-D-L -- 4 MR. BUTLER: Objection, your Honor. 5 THE COURT: Sustained. 6 Q. Ma'am, as an employee of the State Department, your boss 7 would have been Madeleine Albright, am I correct? She was 8 head of state at that time, wasn't she? 9 A. Actually, I represent the president of the United States 10 and my boss was at that time William J. Clinton. 11 Q. When you became an ambassador, you were no longer a State 12 Department employee. 13 A. Any ambassador is the personal representative of the 14 president. You report through the Secretary of State, who at 15 that time was Madeleine Albright. 16 Q. When you took your position in 1996, were you mindful of 17 certain threats that had been made against the United 18 States -- 19 MR. BUTLER: Objection, your Honor. 20 THE COURT: I will confine my remarks to objection 21 sustained. 22 I will see counsel and the reporter in the robing 23 room. 24 (Continued on next page) 25 1878 1 (Conference in the robing room sealed and filed under 2 separate cover) 3 (In open court) 4 MR. BAUGH: In light of the Court's ruling, no 5 further questions. 6 THE COURT: No further questions. Anything further 7 of the witness? Any redirect? 8 MR. BUTLER: No, your Honor. 9 THE COURT: Thank you, Madame Ambassador. And we'll 10 take a recess. 11 (Jury not present) 12 THE COURT: Have you worked out your logistics? 13 MR. RICCO: Yes, we're okay. 14 THE COURT: You're okay. 15 What's the next order of business? 16 MR. FITZGERALD: We're going to display some 17 photographs or sketches and then call witnesses in the order 18 in which they are set forth in the letter. 19 THE COURT: All right. So we'll take a recess. 20 Defendants want to take a recess? 21 MR. HERMAN: This will be for prayer? 22 THE COURT: Yes. 23 MR. HERMAN: Thank you. 24 (Recess) 25 THE COURT: I'm aware that there is about to be filed 1879 1 a motion to suppress and I just want to set a timetable for 2 this. 3 When was it going to be planned to introduce the 4 evidence which is sought to be suppressed? 5 MR. FITZGERALD: Probably in about two and a half 6 weeks. 7 THE COURT: Two and a half weeks. 8 MR. FITZGERALD: Not next week. 9 THE COURT: Not next week. 10 MR. FITZGERALD: What I could do, if we could have a 11 chance to -- Mr. Ricco gave us a copy, but if I could get a 12 chance to look at it tonight and talk to Mr. Ricco and contact 13 chambers tomorrow about a briefing schedule. 14 THE COURT: You're out of town tomorrow? 15 MR. RICCO: I'll call Mr. Fitzgerald. 16 THE COURT: All right. I didn't realize we had that 17 much time. Okay. Very well. 18 So you're going to play the videotape and that will 19 take us until 4:30. 20 One other logistic matter: March 29 we're going to 21 have to end at 3:00 to accommodate a juror who has to attend a 22 wedding. We can do that. 23 All right, we'll resume, then, as soon as the 24 defendants return. 25 I'm also told that I should not say anything to the 1880 1 jurors about timing. 2 MR. COHN: I think that things have sort of changed, 3 and there are thoughts at the moment to -- 4 THE COURT: All right, I won't do it then. Just let 5 me know when the defendants have returned. 6 (Recess) 7 (Jury present) 8 THE COURT: I've already advised counsel on March 29, 9 that Thursday, we're going to end by 3:00 as requested. No 10 problem. 11 Next order of business? 12 MR. FITZGERALD: Yes, your Honor. At this time 13 Government Exhibit 802A was received in evidence earlier 14 today. We will offer 802I, which is a closeup of that sketch, 15 substantially identical to 802A except that the markings had 16 been removed, certain markings shown to counsel, and we offer 17 802I, and 802J, which is a closeup of 802G and H, and then 18 Government Exhibits 252 and 253, which is a side-by-side 19 comparison of 802I and Government Exhibit 704P2, and 253 is 20 the comparison of 802J and 704P1. So we offer 802I, 802J, 252 21 and 253. 22 THE COURT: And this is agreed to? Any objection to 23 this? 24 MR. WILFORD: No objection, your Honor. 25 THE COURT: Very well. 1881 1 (Government Exhibits 802I, 802J, 252 and 253 received 2 in evidence) 3 MR. FITZGERALD: At this time we would publish to the 4 jury Government Exhibit 252, which is the side-by-side of 802A 5 and Government Exhibit 704P2 received earlier today. 6 (Government Exhibit 252 displayed on the screen) 7 MR. FITZGERALD: At this time the government would 8 display Government Exhibit 253, which is a side-by-side 9 comparison of 802J and 704P1 received earlier today. 10 (Government Exhibit 254 displayed on the screen) 11 MR. FITZGERALD: And we would invite counsel and the 12 Court and the jury to compare also the area with the model, 13 Government Exhibit 800, near the parking area and the garage. 14 MR. BUTLER: At this time, your Honor, the government 15 would like to play the videotape that's been previously 16 entered into evidence as Government Exhibit 83A. 17 THE COURT: 80? 18 MR. BUTLER: 83A. 19 THE COURT: 83A. Very well, we'll do so. 20 (Government Exhibit 83A, the videotape in evidence, 21 was played) 22 THE COURT: All right, ladies and gentlemen, we'll 23 call it a week. Enjoy your weekend. We'll resume on Monday 24 morning, the usual time. 25 Please remember to avoid exposure to any media 1882 1 coverage of this trial and have a pleasant weekend. 2 (Jury not present) 3 THE COURT: I changed the seating of the first and 4 the fourth alternate jurors simply because the fourth juror, 5 fourth alternate, requested more immediate access to the 6 restroom. It has no significance to their -- has no legal 7 consequences in terms of their sequence as alternates. 8 So the next order of business are, then, the Kenyan 9 witnesses? 10 MR. FITZGERALD: Yes, Judge. 11 THE COURT: And that should be Monday morning? 12 MR. FITZGERALD: Yes, Judge, and I think rapidly to 13 Agent Gaudin for the testimony concerning the Al-'Owhali 14 statement. 15 THE COURT: Very well. Anything counsel would wish 16 to take up with me? 17 MR. WILFORD: No, your Honor. 18 THE COURT: I will refrain from making any statement 19 to the jury about timing until counsel tell me it's 20 appropriate to do so. 21 All right, we're adjourned until Monday morning. 22 (Adjourned to March 5, 2001 at 10:00 a.m.) 23 24 25 1883 1 INDEX OF EXAMINATION 2 Witness D X RD RX 3 HOWARD LEADBETTER II....1810 1820 4 PRUDENCE BUSHNELL.......1851 1870 5 GOVERNMENT EXHIBITS 6 Exhibit No. Received 7 709A through 709D ..........................1813 8 708 ........................................1814 9 700, 702, 704, 704P1 and 704P2, 710-96, 10 700T, 7002T and 710-96T ....................1819 11 46 .........................................1819 12 38, 83A, 800, 801A through 801G, 13 802A through 802H, 803A through 803E, 14 804A through 804C, 805A through 805J, 15 806A through 809AF . .......................1848 16 37 .........................................1849 17 802I, 802J, 252 and 253 ....................1881 18 DEFENDANT EXHIBITS 19 Exhibit No. Received 20 Z ..........................................1821 21 E and F ....................................1827 22 Odeh D, G, H and I .........................1842 23 24 25
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