8 March 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 15 of the trial, 8 March 2001
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
2042
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 March 8, 2001
9:45 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
2043
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 DAVID KELLEY
KENNETH KARAS
5 PAUL BUTLER
Assistant United States Attorneys
6
7 SAM A. SCHMIDT
JOSHUA DRATEL
8 KRISTIAN K. LARSEN
Attorneys for defendant Wadih El Hage
9
ANTHONY L. RICCO
10 EDWARD D. WILFORD
CARL J. HERMAN
11 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
12
FREDRICK H. COHN
13 DAVID P. BAUGH
LAURA GASIOROWSKI
14 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
15 DAVID STERN
DAVID RUHNKE
16 Attorneys for defendant Khalfan Khamis Mohamed
17
18 (In open court; jury not present)
19 THE COURT: All right, let's begin. Mr. Butler,
20 there is a request on behalf of El Hage for a limiting
21 instruction. Have you seen that?
22 MR. BUTLER: Yes, we have, your Honor.
23 THE COURT: What is the government's position?
24 MR. FITZGERALD: We oppose that instruction I. Was
25 speaking with Mr. Dratel. Mr. Karas is reading a case. But I
2044
1 think the instruction is overly broad, and that there are
2 parts of the confession that are admissible. So I guess we'll
3 have to figure out at what time we want to take that issue up.
4 THE COURT: The request is that the instruction be
5 given prior to the commencement of the cross-examination. Let
6 me know when you're ready to address the issue.
7 MR. FITZGERALD: Okay.
8 (Recess)
9 (In open court; jury not present)
10 THE COURT: All right. Let's begin. There is a
11 request for an instruction to the jury limiting the testimony
12 with respect to statements made by al-'Owhali to be received
13 in evidence solely against the defendant al-'Owhali. Does the
14 government object to that?
15 MR. KARAS: We do, your Honor. We actually have been
16 speaking with counsel for El Hage and also for Odeh, and they
17 are speaking to co-counsel. What we would propose is to try
18 to work something out by either the mid-morning break or the
19 lunch break and get that language to you, and proceed in the
20 meantime.
21 THE COURT: That's acceptable to everyone that we
22 proceed in the meantime prior to there being a limiting
23 instruction?
24 MR. DRATEL: Yes. We worked out one aspect. There
25 is another aspect a little more complicated, so we'll just
2045
1 take the time to do that.
2 THE COURT: All right. With the unanimous consent
3 then of all of the parties I will defer giving a limiting
4 instruction at this time, and we'll take the matter up again
5 at the mid-morning recess. Mr. Cohn.
6 MR. COHN: Your Honor, just for convenience sake,
7 yesterday I handed up to the Court and gave a copy to the
8 government of all our premarked exhibits, and the government
9 has consented that they be marked in evidence now, and I would
10 read them into the record. So that we can just publish them
11 directly to the jury as I need them.
12 Is that satisfactory to the Court?
13 THE COURT: Yes.
14 MR. COHN: That's exhibit B, B1, B2, B3, B4, B5, B6,
15 B7, B8, C, D, E, F, G, H, I, J and K.
16 THE COURT: Very well.
17 MR. COHN: All al-'Owhali numbers obviously.
18 THE COURT: There is consent to those being received
19 in evidence?
20 MR. BUTLER: Yes, your Honor.
21 THE COURT: All right. They are all received in
22 evidence.
23 (Defendant's Al-'Owhali Exhibits B, B1, B2, B3, B4,
24 B5, B6, B7, B8, C, D, E, F, G, H, I, J and K received in
25 evidence)
2046
1 THE COURT: You don't want to do that in front of
2 jury? Very well, fine. The witness may take the stand. The
3 jury may come in.
4 STEPHEN GAUDIN, resumed.
5 (Jury present)
6 THE COURT: Good morning. We're at the stage of the
7 proceedings now of cross-examination of Agent Gaudin.
8 Agent Gaudin, the Court reminds you you're still
9 under oath.
10 THE WITNESS: Thank you, sir.
11 CROSS-EXAMINATION
12 MR. COHN: Thank you, why your Honor.
13 BY MR. COHN:
14 Q. Agent Gaudin, yesterday you told us as part of what the
15 interpreter said to you that Mr. Al-'Owhali said that
16 Mr. Al-'Owhali lobbied to have the bomb put underneath the
17 embassy rather than where it was planned to go. Do you
18 remember that testimony?
19 A. Yes, sir.
20 Q. And you testified, did you not, that it was the purpose,
21 Mr. Al-'Owhali's purpose in doing that to do more damage and
22 kill more Americans. Is that right?
23 A. Something to that effect.
24 Q. That's what you testified to, right?
25 A. Something to that effect, sir, yes.
2047
1 Q. Well, did you say, so we can be precise, at page 2020.
2 Al-'Owhali had expressed to Saleh that wouldn't it be
3 better if we were to put the bomb truck in front of the US
4 embassy and Saleh disagreed. And then Al-'Owhali suggested
5 wouldn't it be better for us to put the bomb underneath the US
6 embassy in the garage that goes underneath, and the way -- and
7 that way we would cause more damage to the Americans since the
8 US, since it's the US embassy, but Saleh explained to him that
9 it would be difficult to do to get past the section of the
10 security gate to Al-'Owhali. The plan didn't get charged --
11 change.
12 That was your testimony yesterday, is that right?
13 A. Yes, sir.
14 Q. That is not precisely true, is it?
15 A. I'm sorry, sir?
16 THE COURT: Is that a question?
17 MR. COHN: Pardon? Yes.
18 Q. That is not precisely true, is it? That's the question.
19 Do you understand the question?
20 A. I'm not sure, sir.
21 Q. What you said was Mr. Al-'Owhali's purpose in suggesting
22 that is not exactly what he told you during the 22nd, is that
23 right?
24 A. No, sir, that's what he told me.
25 Q. You issued a report called a 302, did you not?
2048
1 A. Yes, I did.
2 Q. And in fact, you have it in front of you, don't you? I
3 think it's tabbed in the black book, and if you would turn to
4 page 9 of your 302 that you generated for the period of 8/22
5 to 25/98. It's 3528 for the record.
6 Thank you, Mr. Ricco.
7 Q. Do you have page 9?
8 A. Yes, I do, sir.
9 Q. If you look in page 9 in the second full paragraph -- now,
10 this is something you signed, right?
11 A. Yes, sir.
12 Q. And you drafted it, right?
13 A. Yes, I did.
14 Q. And you drafted it from handwritten notes, did you not?
15 A. And my memory, sir.
16 Q. And your memory. And you knew that it was supposed to be
17 accurate in all respects, did you not?
18 A. This is a summary of what happened, sir.
19 Q. You knew that it was supposed to be accurate in all
20 respects, did you not?
21 A. Yes, sir.
22 Q. Fine. Did Mr. Al-'Owhali not say to you, according to
23 this report, that subject advised that his enemy is the United
24 States and not Kenya and try to get Saleh to reconsider his
25 plan. Subject believed that placing the bomb in the rear of
2049
1 the embassy would cause excessive collateral damage to the
2 Kenyans. Didn't he tell you that?
3 A. Yes, he did.
4 Q. And wasn't that the reason why he suggested to Saleh that
5 the bomb be placed in a different place?
6 A. No, sir.
7 Q. Not what you testified to yesterday?
8 A. What he told me, sir.
9 Q. Sir, is that, just yes or no will suffice.
10 MR. BUTLER: Objection, your Honor.
11 THE COURT: Yes, sustained.
12 A. He told me that the reason he wanted Saleh to reconsider
13 the plan is he wanted to cause more damage to the Americans by
14 placing the bomb in other places then where Saleh had
15 recommended.
16 Q. But that's not in your report. What I read to you is not
17 report, isn't it?
18 A. I believe they're both in there, sir.
19 Q. Oh, so what you're saying is you only told part of the
20 truth yesterday, not the part that you didn't want to tell?
21 MR. BUTLER: Objection, your Honor.
22 THE COURT: Sustained.
23 Q. We'll move on.
24 Now, please publish exhibit Al-'Owhali I.
25 You see Al-'Owhali I is on your screen?
2050
1 A. Yes, sir.
2 Q. Do you know the date that that picture was taken?
3 A. Yes, sir.
4 Q. What is the date?
5 A. Friday, the 21st of August, 1998.
6 Q. 21st.
7 Will you publish Al-'Owhali J.
8 And what date was that picture taken?
9 A. That was taken on the same day, sir.
10 Q. And that is a picture, is it not, of you and
11 Mr. Al-'Owhali in a cell, is that right?
12 A. Yes, sir.
13 MR. COHN: And will you publish Al-'Owhali K, please.
14 Q. And what is that?
15 A. That picture was also taken the same day.
16 Q. And that is a picture of you and a brother agent with
17 Mr. Al-'Owhali; is that right?
18 A. Another FBI agent, yes, sir.
19 MR. COHN: Thank you. You can take it down.
20 Q. Now, Mr. Al-'Owhali was arrested on August 12th, is that
21 right, five days after the bombing?
22 A. Yes, sir, August 12th.
23 Q. And you were with Kenyan CID officers to go out and do
24 whatever it was you were supposed to do on that day, is that
25 right?
2051
1 A. Yes, sir.
2 Q. And the CID officers went and made the arrest. Is that
3 right?
4 A. That's correct, sir.
5 Q. You weren't with them --
6 A. I was --
7 Q. -- at the time they made the arrest in the hotel room?
8 A. No, I wasn't in the hotel room.
9 Q. So you don't know of your own knowledge what was said to
10 Mr. Al-'Owhali at that time?
11 A. I wasn't in the hotel room, sir, no.
12 Q. And he came downstairs and then he was put in the back of
13 the truck with you; is that right?
14 A. Yes, sir.
15 Q. Now, did you tell him why he was arrested?
16 A. No, sir, I did not.
17 Q. In fact, the pretext used to arrest him was that he did
18 not have ID; is that right?
19 MR. BUTLER: Objection, your Honor.
20 THE COURT: Sustained.
21 Q. The reason given for arresting him was that he did not
22 have ID; is that right?
23 A. That's how it was explained to me, sir, yes.
24 Q. And you took him to the station, to the precinct, whatever
25 it is that they call it in Nairobi; is that right?
2052
1 A. It's the Kenyans took all of us to their headquarters, CID
2 headquarters in Nairobi, sir.
3 Q. And when you got him to CID headquarters did you, did
4 somebody advise him of his rights?
5 A. Yes, sir.
6 Q. In English?
7 A. Yes, sir.
8 Q. There was no interpreter present?
9 A. At the first time, no, sir.
10 Q. Now, that was read by you off a written form; is that
11 right?
12 A. Yes, sir.
13 Q. And was the Arabic form translation of that given to him?
14 A. Didn't have one, sir.
15 Q. Didn't have one. And did you ever have one during the
16 entire period of the next nine days?
17 A. No, sir, I did not.
18 Q. So he never saw one in Arabic; is that right?
19 A. That's correct, sir.
20 Q. Now, you noticed at the time, and I think there was a
21 series of pictures that you identified during direct, that he
22 had a number of injuries; is that right?
23 A. The pictures we looked at yesterday?
24 Q. Yes.
25 A. Yes, sir.
2053
1 Q. And those pictures were taken on the 13th or 14th, is that
2 right?
3 A. No, sir, they were taken on the 12th.
4 Q. On the 12th.
5 Could he we put up B, please.
6 Now, these, Agent Gaudin, are the same pictures that
7 we showed yesterday they are premarked as defense exhibits, is
8 that right?
9 A. That looks like one of the pictures I saw yesterday.
10 MR. COHN: Could you blow up a portion.
11 Q. That is a injury to his left hand; is that right?
12 A. Right. Yes, sir.
13 Q. And that's a laceration and that was about in the
14 condition it was when you saw it; is that right?
15 A. Yes, sir.
16 Q. Now, you're not a physician?
17 A. No, sir.
18 Q. Did you get him medical attention immediately?
19 A. No, sir.
20 Q. Okay.
21 MR. COHN: Could we have B1, please.
22 Q. That was his right hand that is there.
23 Could you blow up the portion of -- thank you very
24 much.
25 Q. Now, that was his right hand and there is a laceration
2054
1 there?
2 A. And stitches, yes, sir.
3 Q. And is it fair to say that the hand or at least the thumb
4 portion of the hand is noticeably swollen?
5 A. It looks he had an injury, you know, it looks --
6 Q. Does it look swollen to you or not?
7 A. A little bit, sir.
8 Q. Did you get him a doctor?
9 A. No, sir, I didn't.
10 Q. Did you know at the time that there was a broken bone?
11 A. No, sir, I did not.
12 Q. Did there come a time when you did learn that he had
13 sustained a fracture?
14 A. No, sir.
15 MR. COHN: Would you put up E, please. Blow it up.
16 Q. Do you know what a radial styloid nondisplaced comminuted
17 fracture is?
18 A. No, sir, I do not.
19 Q. Fine.
20 MR. COHN: Will you put up B5, please.
21 Q. That's the way Mr. Al-'Owhali looked on the day he was
22 arrested; is that right?
23 A. Yes, sir.
24 Q. That's the way he was dressed?
25 A. That was the picture that I took on the 12th, sir.
2055
1 Q. And that picture is one of the exhibits that was shown to
2 you yesterday; is that right?
3 A. Correct, sir.
4 MR. COHN: Could you put up B6. Would you enlarge
5 the forehead section. Thank you.
6 Q. And those were the wounds that were in his forehead; is
7 that right?
8 A. Yes, sir.
9 Q. You didn't have those looked at then either, did you?
10 A. No, sir, I didn't.
11 Q. It's a fact that he never received any medical attention
12 until the 18th. Is that right?
13 A. I don't remember the exact date, sir, but it was within a
14 week of being there.
15 Q. So for a week more or less this person who was in -- he
16 wasn't in your custody, he was in the custody of the Kenyans;
17 is that right?
18 A. Yes, sir.
19 Q. And you had no control over him at all, did you, when he
20 wasn't being interrogated by you, is that right?
21 A. No, sir, I did not have any control.
22 Q. Okay. So he received to your knowledge no medical
23 attention until finally he was seen by a doctor, I think an
24 embassy doctor around the 18th or within a week?
25 A. Within a week, yes, sir, I believe that's correct.
2056
1 Q. And you don't know whether he was in pain, whether he had
2 medication, whether or not he had infections? You don't know
3 any of that?
4 A. He never expressed that to me, sir, no.
5 Q. The answer is no, you don't know that?
6 A. I did not, sir.
7 Q. Now, getting back to the interview, you did interview him
8 on the 12th; is that right?
9 A. Yes, sir.
10 Q. And there were two interviews that day, were there not?
11 A. Yes, there were.
12 Q. And the first one -- what time was he arrested?
13 A. Around 10 o'clock in the morning, sir.
14 Q. Okay. When did the first interview commence, if you know,
15 and if you don't, you can refer to your notes if you have
16 them.
17 A. I think it was around 11 o'clock.
18 Q. How long did that last?
19 A. The first interview lasted roughly 45 minutes to an hour.
20 Q. And then it stopped; is that right?
21 A. Yes, sir.
22 Q. And Mr. Al-'Owhali remained in general custody, in other
23 words, with you -- by the way, at the interview there were CID
24 agents, were there not?
25 A. Yes, sir.
2057
1 Q. And in fact, at every interview you conducted between the
2 12th and the 21st there were always CID people there?
3 A. Yes, sir.
4 Q. And did they ever ask a question?
5 A. Sometimes they did, sir.
6 Q. But rarely?
7 A. Sometimes they would ask a question through me or through
8 the interviews, they would present questions.
9 Q. But rarely?
10 A. I don't know if I'd use the word rarely. There was maybe
11 10 percent of the time.
12 Q. 10 percent of the time?
13 A. Maybe a little bit more.
14 Q. But they never spoke directly to Mr. Al-'Owhali?
15 A. Not exactly, sir, no.
16 Q. Just sat there, and you conducted, you and your colleagues
17 in the FBI, conducted the interview?
18 A. At logical points we would confer with them, sir, and ask
19 them questions on, how do you think we should proceed, are we
20 going the right way? Things like that. But it was a team
21 effort, sir.
22 Q. It was a team effort. Did they take notes?
23 A. I don't remember, sir.
24 Q. You don't remember. You were with them for nine days and
25 you don't remember whether they took notes?
2058
1 A. No, sir, I don't.
2 Q. And you certainly don't have their notes if they exist?
3 A. I do not have their notes, sir.
4 Q. Sir, the second interview started when on the 12th?
5 A. Actually, I'm sorry. I do remember between the 22nd and
6 25th someone was definitely taking notes for those days, but I
7 don't remember --
8 Q. I'm not asking you about those. I'm asking you during the
9 period from the 12th through the 21st, right?
10 A. I apologize.
11 MR. COHN: And, your Honor, if you could instruct the
12 witness to confine himself to my questions, perhaps it would
13 be helpful.
14 THE COURT: Very well. The witness is so instructed.
15 THE WITNESS: Yes, sir.
16 Q. So when did the second interview start?
17 A. On the 12th?
18 Q. On the 12th, yes.
19 A. I believe the second interview started sometime around 2
20 or 3 o'clock.
21 Q. And Mr. Al-'Owhali was in the room with you until that
22 started; is that right?
23 A. No, sir, I left.
24 Q. You left. But Mr. Al-'Owhali was in the interview room
25 during that entire period?
2059
1 A. I'm not sure, sir. I left. I believe he was, but he may
2 have been taken somewhere else and brought back. I don't
3 know.
4 Q. Okay. When you came back were any of your brother agents,
5 FBI agents, and when I say "brother agents," I'm referring to
6 American FBI agents or other American police officials. I'm
7 not referring to the CID people from Nairobi, okay?
8 A. Yes, sir.
9 Q. Were any -- during the period when you were gone were any
10 of your brother agents in the room with him?
11 A. I believe they were, but I was gone so I couldn't say for
12 sure, sir.
13 Q. Okay. But he, as far as you know, -- well, when you came
14 back was there an interpreter already there?
15 A. No, sir.
16 Q. Okay. So you secured the services -- and I say you
17 generically -- you secured the services of an interpreter for
18 the afternoon session; is that right?
19 A. That's why I left, sir. I went to get an interpreter.
20 Q. Okay. And when you came back, you put up a screen so that
21 Mr. Al-'Owhali couldn't see the interpreter, is that right? A
22 blanket I think it was.
23 A. It was a blanket, yes, sir.
24 Q. And essentially, you essentially conducted, did something
25 so you could string the blanket in such a way so
2060
1 Mr. Al-'Owhali could not see the interpreter?
2 A. It was more, yes, sir, that's correct.
3 Q. And so during this interview you or your colleagues would
4 ask a question, and the interpreter would interpret, this
5 disembodied voice from behind the screen, right?
6 A. That's correct, sir. We were very close together though.
7 Q. And how long did that interview take?
8 A. I believe that that interview lasted several hours, maybe
9 about three hours or so, maybe a little more.
10 Q. Okay. And at the end of it you surrendered custody.
11 Would you say it was about 4:30, 5 o'clock when it finished?
12 A. Maybe a little later than that, sir.
13 Q. 6?
14 A. I don't think it was any later than 6.
15 Q. Okay. So at the end of that time you surrendered custody
16 of Mr. Al-'Owhali to the Kenyan authorities?
17 MR. BUTLER: Objection. Form, your Honor.
18 THE COURT: All right.
19 Q. So at the end of the day the Kenyans took him to wherever
20 they take him and you went about your business for the rest of
21 the evening; is that right?
22 A. Yes, sir.
23 Q. And you don't know -- well, he was kept, if you know, at
24 the precinct in which you were interviewing him, is that
25 right, then on the 12th, sir? Yes?
2061
1 A. No, he was not.
2 Q. Do you know where he was taken?
3 A. They took him away in a vehicle. They took him to another
4 facility where they were housing prisoners, I believe.
5 Q. And you never saw that facility?
6 A. I've never been there, no, sir.
7 Q. So you don't know whether it was clean?
8 A. I'm sorry?
9 Q. You don't know whether it was clean?
10 A. I've never been inside.
11 Q. You don't know if it was filthy?
12 A. I've never been inside.
13 Q. You don't know if he had toilet facilities?
14 A. Sir, I don't.
15 Q. You don't know if he had a mattress?
16 A. I've never been there, sir.
17 Q. You don't know anything about the conditions in which he
18 was kept?
19 A. That's true, sir.
20 Q. And apparently -- withdrawn. And you have not inquired to
21 make yourself knowledgeable about that?
22 A. I've seen pictures of it, sir.
23 Q. You've seen pictures of it. Well, from the pictures that
24 you've seen of that facility, that first two days, did he have
25 a blanket?
2062
1 A. I couldn't tell. The pictures were taken, I believe the
2 pictures were taken this year, so I don't know --
3 Q. So you don't know whether anybody before the pictures
4 mopped up?
5 A. I have no idea, sir.
6 Q. Cleaned it up?
7 MR. BUTLER: Objection, your Honor.
8 THE COURT: Yes, sustained.
9 Q. Now, on the 13th so he was -- on the 13th he was
10 interviewed again; is that right, by you?
11 A. Yes, sir.
12 Q. And again -- oh, by the way, on the 12th, did you have a
13 tape recorder?
14 A. No, sir.
15 Q. Did you ever during the interview process over the next
16 nine days bring a tape recorder?
17 A. No, sir.
18 Q. You testified on direct that at one point you showed him a
19 tape on a VCR; is that right?
20 A. Yes, sir.
21 Q. Did you ever during the nine days or ever thereafter use a
22 video camera to record accurately his testimony?
23 MR. BUTLER: Objection, your Honor.
24 THE COURT: I'll allow it.
25 A. I never used a videotape, sir, no, to record the
2063
1 interview, no.
2 Q. And you've been an agent for nine years; is that right?
3 A. Yes, sir.
4 Q. Have you ever used a tape recorder to memorialize the
5 statement of somebody who you had interrogated?
6 A. No, sir, I haven't.
7 Q. And do you know of any agent that ever has?
8 A. I do not, sir.
9 Q. And in fact, it's policy not to use such electronic
10 documentation, is it not?
11 A. I'm not sure exactly what the policy is. I think there
12 are some instances where you are encouraged to use that type
13 of equipment, but I don't know all the details.
14 Q. But this was not one of them?
15 A. I've never used one in the entire time I've been in the
16 FBI, sir.
17 Q. Let me understand something. By the time you started
18 interviewing Mr. Al-'Owhali you knew that there had been a
19 massive destruction and over two hundred dead, and many, many
20 wounded, is that right?
21 A. I didn't know the exact count but I knew it was a terrible
22 tragedy, yes, sir.
23 Q. You knew that the deaths were at least in three figures
24 and the injuries in four. Is that right?
25 A. I don't remember that exactly, sir, but I, I think I know
2064
1 what you're saying, I knew there were a lot of people injured,
2 yes.
3 Q. And you knew with some precision the number of Americans
4 who had been killed at the embassy and the number of Kenyan
5 employees at the embassy because you were there on a criminal
6 investigation, right?
7 A. Like I said, I don't remember the exact numbers. I don't
8 remember being told the exact numbers. I know there was an
9 ongoing process, but I knew there were a number of both
10 American and Kenyan people killed, yes, sir.
11 Q. And you were there on a criminal investigation. This is
12 not an intelligence gathering mission, was it not?
13 A. I went over there to, my general instructions were to
14 assist in whatever way I could in the investigation.
15 Q. Sir, you knew that you were there for the purposes of a
16 criminal investigation?
17 A. For an investigation, yes, sir.
18 Q. Well, the FBI has no foreign intelligence gathering
19 authority, does it?
20 A. I don't work on that side of the house, sir. I'm not
21 really positive on all that.
22 Q. So on the second day, the 13th, he was interviewed again;
23 is that right?
24 A. On the 13th he was, yes, sir.
25 Q. What time did that start and finish?
2065
1 A. I believe that interview started probably around noon or
2 so, lasted a couple of hours.
3 Q. Lasted a couple of hours?
4 A. Actually later in the day, I'm sorry, on the 13th.
5 Q. So during the period from approximately 6 o'clock the
6 night before until a little after 12, whether it was 1 or 2,
7 for that intervening period, you don't know what anybody said
8 to him, right?
9 A. No, sir, I don't.
10 Q. You don't know if he was threatened by the Kenyans?
11 A. No, sir.
12 Q. Did you ever talk to the Kenyan CID agents on a social
13 level? I mean, you know, pass the time of day? They spoke
14 English, right?
15 A. Yes, sir.
16 Q. Did they tell you how upset they were with what happened
17 in their country and to their countrymen?
18 A. They were all, you know, as anybody else would be, they
19 were saddened by what had happened.
20 Q. They were angry, weren't they?
21 A. I didn't see anybody expression any anger, but sadness,
22 more.
23 Q. Well, I mean, if you were in a city where there was a
24 massive explosion and hundreds of your countrymen were killed
25 you'd be angry, wouldn't you?
2066
1 MR. BUTLER: Objection.
2 THE COURT: Sustained.
3 Q. So, anyway, your interview took a couple of -- the second
4 interview took a couple of hours, is that right?
5 A. Generally, sir.
6 Q. Back he went into Kenyan custody, is that right?
7 A. On Tuesday?
8 Q. On Tuesday or whatever day that was. I don't know the
9 days of the week. I'm referring to the 13th.
10 A. I'll say it the same way, then, sir, the 13th he went
11 back.
12 Q. And once again, you don't know what happened? You don't
13 know what was said to him? And you don't know the conditions
14 of confinement?
15 A. Correct, sir.
16 Q. The 14th was there an interview?
17 A. Yes, sir, there was.
18 Q. And what time was that interview?
19 A. I think that day we started much later in the day,
20 probably around 4 o'clock, 3 o'clock, something like that.
21 Q. So by that time, is it fair to say, he had been in
22 custody -- by the way, after the first day, you know, don't
23 you, that he was kept in isolation, that he had no roommates,
24 is that right?
25 A. No, sir, I didn't know that.
2067
1 Q. You didn't know that?
2 A. No.
3 Q. And you don't know that today?
4 A. No, sir.
5 Q. In any event, more or less he was kept by the Kenyans for
6 approximately 24 hours before he saw you between the interview
7 of the 13th and the interview of the 14th?
8 A. I don't know if it was, almost 24 hours.
9 Q. Give or take, I mean we didn't have a stop watch.
10 A. Okay, sir.
11 Q. And how long did that interview take?
12 A. This interview took a couple of hours on the 14th.
13 Q. And then back into Kenyan custody?
14 A. Yes, sir.
15 Q. And there was no interview on the 15th; is that right?
16 A. No, sir.
17 Q. And there was no interview on the 16th; is that right?
18 A. That's correct, sir.
19 Q. So that's another 48 hours unsupervised by American
20 officials in Kenyan custody, is that right?
21 A. Sir, I did see him on the 16th.
22 Q. You saw him on the 16th?
23 A. On the Sunday, the 16th, yes, sir.
24 Q. Went to his cell?
25 A. Yes, sir, he had --
2068
1 Q. You went to his cell, yes?
2 A. Yes, sir.
3 Q. And you were given access by the Kenyan authorities, were
4 you not?
5 A. Yes, sir.
6 Q. And, in fact, you brought him a container of milk, didn't
7 you?
8 A. I believe I did, sir.
9 Q. And so aside from your -- I mean your visit took what, 15
10 minutes?
11 A. About that, sir.
12 Q. You didn't interrogate him?
13 A. No, sir.
14 Q. I mean you weren't authorized to interrogate him under
15 those conditions; is that right?
16 A. There was no authorization or lack of authorization. We
17 just didn't interview him on that day.
18 Q. Your visit with the milk was an act of pure friendship, is
19 that right?
20 A. Yes, sir. Kindness I guess.
21 Q. Guidance?
22 A. Kindness.
23 Q. Kindness?
24 A. Yes, sir.
25 Q. By this time you already, he had been charged with murder
2069
1 by the Kenyan authorities, is that right?
2 A. I don't believe so, sir.
3 Q. You knew by the end of the second day that he was a
4 suspect in the murder investigation; is that right?
5 A. He became a suspect, yes, sir.
6 Q. And so that he was being held on account of it was
7 believed that he had something to do with the murder of many,
8 many people and the serious injury to a lot more, yes?
9 A. I believe so, sir.
10 Q. And so you brought him milk on a sudden whim on the 14th
11 out of pure kindness?
12 MR. BUTLER: Objection to form, your Honor.
13 THE COURT: Sustained.
14 Q. I'll withdraw the sudden whim. You brought him the milk
15 on the 14th -- on that Sunday out of pure kindness?
16 A. When I spoke to him I asked him if he needed anything. He
17 said he would like some milk, and that's why I brought him
18 milk.
19 Q. Sir, sir, I'm asking you a question --
20 MR. BUTLER: Objection.
21 Q. The answer to that is no. What you spoke to him about and
22 what he said is irrelevant.
23 MR. BUTLER: Objection, your Honor.
24 THE COURT: You're asking him what his reason for
25 doing it was. You want a yes or no?
2070
1 MR. COHN: Yes. He said it was kindness, so I'm
2 asking him, is it kindness.
3 THE WITNESS: Yes, sir, kindness.
4 THE COURT: By the way, the day I believe it was
5 testified was Sunday the 16th, not the 14th.
6 Q. Now, on the 17th there was another interview, is that
7 right?
8 A. Monday the 17th, yes, sir.
9 Q. How long was that interview?
10 A. A couple hours.
11 Q. What time did it start?
12 A. I think on Monday we started around 11 o'clock or so.
13 Q. So it went till 1 more or less?
14 A. Maybe 2 or 3.
15 Q. Maybe 2 or 3. So it could have been four hours?
16 A. It could have been four hours, yes, sir.
17 Q. You didn't keep time records on when it started and ended,
18 on this interview?
19 A. I did not.
20 Q. And still no tape recorder?
21 A. No, sir.
22 Q. And afterwards he was put back into Kenyan custody; is
23 that right?
24 A. Yes, sir.
25 MR. BUTLER: Objection to form, your Honor.
2071
1 THE COURT: Sustained.
2 Q. Afterwards he was, the Kenyans took him wherever they take
3 him?
4 A. They brought him back to the holding cell at CID
5 headquarters right in the building that we were interviewing
6 him.
7 Q. Now, on the 18th, no interview?
8 A. No, sir.
9 Q. You didn't bring him milk or anything else that day?
10 A. I don't believe I did, sir.
11 Q. What about the 19th?
12 A. The 19th I don't believe I did, no, sir.
13 Q. You didn't. And there was no interview?
14 A. No, sir, there wasn't.
15 Q. So that was another 48 hours during which there was no FBI
16 supervision of his custody; is that right?
17 A. Supervision, no, sir.
18 Q. And in which you were not present in his cell for any
19 appreciable period of time?
20 A. I may have just checked on him just, you know, maybe I
21 might have saw him face to face, but I didn't interrogate him
22 and I didn't spend a substantial amount of time there, no.
23 Q. And, again, I may have asked you this. You had no control
24 over his conditions of confinement, is that right?
25 A. No, sir, I didn't.
2072
1 MR. COHN: Publish exhibit G, please.
2 Q. Do you recognize exhibit G?
3 A. Yes, sir, I do.
4 Q. And what is it?
5 A. That is a magazine, that would be part of the Sunday
6 newspaper, the Kenyan newspaper.
7 Q. The cover of the magazine to be precise; is that right?
8 A. It's a cover.
9 Q. It's not the whole magazine?
10 A. Sorry, yes, it's the cover of the magazine.
11 Q. You remember that there was a time when you visited his
12 cell and you saw him looking at this magazine; is that right?
13 A. Yes, sir, I did.
14 Q. And did you not instruct the Kenyan guards that they
15 should remove that magazine?
16 A. No, sir.
17 Q. You didn't make such an instruction?
18 A. I had a conversation with them, sir.
19 Q. You had a conversation. And in that conversation you made
20 the suggestion that they get it out of there. Is that right?
21 A. No, sir, I asked them the question, if he's supposed to
22 have anything to read. How did he get that. Is he allowed to
23 read, is he allowed to have that. And they said he's not.
24 Q. And as a result of your conversation or calling it to
25 their kind attention they remove the magazine, is that right?
2073
1 A. That's correct, sir.
2 Q. And in fact, they told you that he was not supposed to
3 have anything to read at all when he was in their custody; is
4 that right?
5 A. I don't believe that was said, sir.
6 Q. Well, you asked is he allowed to have the magazine? They
7 said, no. So I mean --
8 A. Right.
9 Q. I mean did you ask them if he was allowed to read Proust?
10 A. No, I didn't ask him anything like that.
11 Q. Now, on the 20th there was an event, there was an
12 identification parade; is that right?
13 A. Yes, sir, on the 20th.
14 Q. And could you explain to the jury what an identification
15 parade is?
16 A. Yes, sir. An identification parade is a Kenyan term what
17 we would call a lineup. Do you want me to go any further than
18 that?
19 Q. Well, that's -- is it fair to say that it's an opportunity
20 for people who may have had a chance to see somebody do
21 something, see if they can identify him under conditions that
22 are not suggestive?
23 A. I guess you can describe it like that, yes, sir.
24 Q. Is that a fair -- I mean, I'll take any description you
25 want to do?
2074
1 A. It's fair. It's up to you, sir.
2 MR. COHN: Will you publish exhibit D, please.
3 Q. Now, what is exhibit D?
4 A. Sir, this picture on my screen right here is the picture
5 of the people who were part of the lineup. There are nine
6 people in total that the CID had put in to be subjects of the
7 lineup, and Mr. Al-'Owhali is in between the fourth and fifth
8 person.
9 Q. And this picture was taken by one of your colleagues, was
10 it not?
11 A. I may have taken this picture, yes, sir.
12 Q. It's taken by an FBI agent. This is not something that
13 CID took?
14 A. Correct, sir.
15 Q. And Mr. Al-'Owhali is in the center; is that right?
16 A. He's the fifth person from the left, sir.
17 Q. And also the fifth person from the right?
18 A. Correct, sir.
19 Q. The center. Now, a number of people viewed that parade
20 that day; is that right?
21 A. Yes, sir.
22 Q. Six. Is that correct?
23 A. That's correct, sir, six people.
24 Q. And he was identified by the first person; is that right?
25 A. Yes, he was.
2075
1 Q. And the following five people did not identify him; is
2 that correct?
3 A. That's correct, sir.
4 Q. Are you aware that the first person who identified him had
5 assisted in making a composite picture of him?
6 A. At the time then or now?
7 Q. Are you aware of it now?
8 A. I'm aware of it now, yes, sir.
9 Q. Are you aware that one of the people who failed to
10 identify him had also assisted in another composite picture?
11 A. No, sir.
12 Q. And you're not aware of that now?
13 A. No, sir.
14 Q. Okay. But of the six people brought to the parade five
15 failed to identify him?
16 A. Five. One person identified him of the six. The other
17 people didn't pick anyone, no, sir.
18 Q. So six minus one equals five, is that right?
19 MR. BUTLER: Objection, your Honor.
20 THE COURT: Sustained.
21 Q. How long did the parade take?
22 A. I believe it lasted about 45 minutes to an hour.
23 Q. Okay. After that once again the Kenyans took custody of
24 him?
25 A. Yes, sir.
2076
1 Q. Because he was the Kenyans prisoner?
2 A. Yes, sir.
3 Q. On the 21st you had another interview with him; is that
4 right?
5 A. Yes, sir, on the 21st.
6 Q. And how long after the interview -- how long did that
7 interview continue?
8 A. On the 21st I'd say it probably also lasted about two
9 hours.
10 Q. And it was at that point --
11 MR. COHN: Can you put up exhibit I again, please.
12 J, I'm sorry. No, this is it. That's the right one. I'm
13 sorry.
14 Q. It's at that point that you decided to take his
15 fingerprints; is that correct?
16 A. No, sir, that was taken before the interview.
17 Q. That was taken before the interview?
18 A. The fingerprints were taken before the interview.
19 Q. And what about exhibit J, before or after the interview?
20 A. Before the interview.
21 Q. And K, before the interview?
22 A. All three of those photos were taken before the interview.
23 Q. By the way, there is a system in place in Kenya for
24 logging in photographs as exhibits; is that right?
25 A. I'm not sure, sir.
2077
1 Q. You're not sure?
2 A. I'm not sure.
3 Q. Nobody told you about what to do with photographs if you
4 took them. Is that right? You were not briefed on this?
5 A. For the Kenyans?
6 Q. No, by the Americans. By the FBI itself.
7 A. Is there an FBI procedure what to do with photographs?
8 Q. Yes.
9 A. Yes, sir.
10 Q. And there was one in place in Kenya, was there not?
11 A. Yes, sir.
12 Q. And in fact, there was somebody who was in charge of that,
13 was there not?
14 A. More or less, yes, sir.
15 Q. Were these photographs logged in?
16 A. No, sir, they weren't.
17 Q. And, in fact, in regard to J and K, you kept them as
18 memorabilia for a while, did you not?
19 A. Not true, sir.
20 Q. Well, you testified at another proceeding, did you not?
21 A. Yes, sir, I did, sir.
22 Q. And at the other proceeding, as part of the other
23 proceeding, you were asked to read in advance an affidavit
24 made by a public official; is that right?
25 A. More or less, yes, sir.
2078
1 Q. And you testified at that proceeding, did you not, that
2 you had looked at it very carefully, and that the
3 representations made in it were true, is that right?
4 A. To the best of my ability, yes, sir.
5 Q. And were you aware when you looked at it that there was a
6 note that said that you had taken these pictures and placed
7 them in memorabilia, and that only later had you realized
8 their importance and brought them recently? Do you recall
9 that?
10 A. I don't recall that exact word, no, sir.
11 Q. You don't?
12 A. No, sir.
13 Q. Do you recall any approximate wording like that?
14 A. Not really, sir, no. I took pictures, I found those
15 pictures much later after I was asked to find any pictures of
16 Mr. Al-'Owhali's cell and I found those pictures.
17 Q. You found them much later. What do you mean by much
18 later, a year?
19 A. I found these pictures in January of this year.
20 Q. This year?
21 A. Of 2001.
22 Q. Of 2001?
23 A. Yes, sir.
24 Q. After they were taken on the 21st of August, 1998?
25 A. Yes, sir.
2079
1 Q. And where did you find these pictures?
2 A. Someone had given those pictures to me much later. They
3 didn't get those pictures while I was in Kenya. I got them
4 somewhere when I was in transfer back and forth between the US
5 as I continued on in this investigation. I put those pictures
6 in an accordion folder along with other miscellaneous
7 documents. By the time I got those pictures, by the time I
8 actually received a hard copy of those pictures they were
9 pretty much irrelevant to me to tell you the truth.
10 Q. Well, let me ask you, is it fair to say that when those
11 pictures J and K were taken you already knew that
12 Mr. Al-'Owhali had expressed a preference to be -- withdrawn.
13 At the time you took those pictures you knew that
14 Mr. Al-'Owhali was about to confess, didn't you?
15 A. No, sir, I didn't.
16 Q. You didn't?
17 A. No, sir.
18 Q. You didn't know that Mr. Al-'Owhali would the next day say
19 he would rather be, that in consideration of being tried in
20 America rather than Kenya -- by the way, does Kenya have a
21 death penalty?
22 MR. BUTLER: Objection, your Honor.
23 THE COURT: Sustained.
24 Q. Well, do you know if Kenya has a death penalty?
25 MR. BUTLER: Objection.
2080
1 A. I do not, sir.
2 MR. COHN: I'm sorry. I didn't hear the Court's
3 ruling. He said, I did not. Okay, he doesn't know.
4 THE COURT: The witness has responded.
5 Q. In all the time you were there --
6 THE COURT: Give me an opportunity to rule before you
7 answer.
8 Q. In all the time you were there you never discussed with
9 your CID colleagues what the potential penalty in Kenya was
10 for killing two hundred people?
11 MR. BUTLER: Objection, your Honor.
12 THE COURT: Sustained.
13 Q. So let's go back. It's your testimony that you didn't
14 know at the time you took those pictures, which didn't show up
15 for a year and a half, that the interrogation had been
16 successful and he was about to agree to come to the United
17 States. Is that right?
18 A. That's correct, sir. I did not know that he was going to
19 confess when we took those pictures or those fingerprints.
20 MR. COHN: Put up exhibit C.
21 Q. Do you know when that picture was taken?
22 A. I don't know the exact date, sir, but I believe it was
23 taken after the 20th of August. I'm sorry, after the 20th of
24 August.
25 Q. So the 21st or thereafter?
2081
1 A. I'm sorry, when I say after the 20th, I mean the 20th or
2 thereafter.
3 Q. Thereafter.
4 A. Right.
5 Q. Close upon the time in which the government agreed to take
6 Mr. Al-'Owhali to the United States where he wanted to be; is
7 that right?
8 MR. BUTLER: Objection, your Honor.
9 MR. COHN: I'm sorry, your Honor?
10 THE COURT: Restate the question.
11 MR. COHN: I don't think I have to, your Honor. I
12 have nothing further.
13 THE COURT: Anybody else?
14 MR. RICCO: Yes, your Honor.
15 MR. COHN: Excuse me, your Honor. Just bear with me.
16 (Pause)
17 MR. COHN: Thank you. I am through.
18 THE COURT: Mr. Ricco on behalf of defendant Odeh.
19 MR. COHN: Your Honor, I'm sorry. I apologize. A
20 couple of more questions.
21 Q. When you interviewed him on the 22nd he gave you a rather
22 extensive personal history, didn't he?
23 A. If you mean he described in detail about his training in
24 Afghanistan, yes, sir.
25 Q. Well, he said, for instance, that his mother had a
2082
1 profound effect on him and that she placed him in religious --
2 and that's why he had such a religious upbringing, did he not
3 tell you that?
4 A. He, there was a number of reasons why his religion became
5 so important to him. I believe one of them was his mother was
6 influential in religion.
7 Q. Well, if you need to refresh your recollection, why don't
8 you look at your report on page 2?
9 A. Report I looked at earlier, sir?
10 Q. Yes.
11 A. Okay, sir.
12 Q. Look at the second paragraph. Did he tell you about his
13 mother's having a profound effect on him and his strong
14 religious upbringing?
15 A. Yes, sir.
16 Q. He told you that around age 14 he began being
17 indoctrinated in conservative Islamic teaching?
18 A. Yes, sir.
19 Q. By the way, again, you mentioned it on direct, he was born
20 on January 18th?
21 A. I believe I said that, yes, sir.
22 Q. 1977?
23 A. I believe so.
24 Q. And in 1989 he would have been how old?
25 A. 12? 1989?
2083
1 Q. Yes.
2 A. Ten in '87, about 12.
3 Q. And he said that he secretly read magazines which promoted
4 his religious beliefs among which were Al Jihad, is that
5 right?
6 A. Yes, sir.
7 Q. And that he admired books on people who had been martyred
8 in the defense of Islam; is that right?
9 A. Something to that effect, yes.
10 Q. He told you that during his high school years all he cared
11 about was the Muslim brotherhood, didn't he?
12 A. Yes, sir.
13 Q. Now, and he also said that the college he went to for two
14 years was a college that was primarily engaged in religious
15 teaching, did he not?
16 A. He described it as a religious university.
17 Q. Now, you testified on direct, also, I believe, that he
18 went to Afghanistan and went to training schools there, is
19 that right?
20 A. Yes, sir.
21 Q. And he went there before he had met Usama Bin Laden; is
22 that right?
23 A. I believe so, sir.
24 Q. And he didn't meet Usama Bin Laden until he had finished
25 some training and afterwards he got other training; is that
2084
1 right?
2 A. Based on what he told me, yes, sir.
3 Q. Now, you don't believe that he was a confidante of Usama
4 Bin Laden, do you?
5 A. I don't know to answer that sir.
6 Q. I mean he's 22, or 21, right?
7 A. I don't see what that has to do --
8 Q. Do you know what confidante means?
9 A. You mean was he --
10 Q. Was he inducted --
11 A. Got close to him?
12 Q. -- into the higher circles of Usama Bin Laden who
13 consulted him on important decisions?
14 A. He told me that he had sought a decision directly from
15 Usama Bin Laden, was what he told me.
16 Q. His mission was to kill himself, is that right?
17 A. He didn't tell me at that time, no, sir.
18 Q. That's what you know, right?
19 A. That's one of the missions he got.
20 Q. He was supposed to take all this training and all their
21 association and blow himself up, right?
22 A. If he chose to accept the mission, yes, sir.
23 Q. That's what he was supposed to do and he did, didn't he?
24 A. He didn't blow up, sir, no.
25 MR. COHN: No. And you told us the reason why not.
2085
1 Thank you very much.
2 THE COURT: Mr. Ricco on behalf of Mr. Odeh.
3 MR. RICCO: Just a few requests.
4 CROSS-EXAMINATION.
5 BY MR. RICCO:
6 Q. Good morning, Agent Gaudin.
7 A. Good morning, sir.
8 Q. I just want to ask you a few questions.
9 During your interview with Mr. Al-'Owhali you
10 discovered a great deal of information about the bombing of
11 the US embassy, isn't that right?
12 A. That's correct, sir.
13 Q. Now, Mr. Al-'Owhali explained to you in detail his
14 involvement, correct?
15 A. His involvement, yes, sir.
16 Q. He also explained to you and identified to you names of
17 other individuals that participated in the execution of the
18 bombing, isn't that correct?
19 A. Yes, sir.
20 (Continued on next page)
21
22
23
24
25
2086
1 Q. He also explained to you in detail the names of
2 individuals who had participated, to his knowledge, in the
3 planning of the bombing?
4 A. What he said to me regarding the names, sir, were things
5 were going to be code names -- I'm sorry, the names that he
6 was going to describe to me during the interviews would be
7 code names or movement names. They may not in fact be
8 people's true names but the names that he may have known them
9 as.
10 Q. Okay. And one of those names, code names, movement names,
11 was a name Harun?
12 A. Harun, yes, sir.
13 Q. And another one was the name Saleh?
14 A. Saleh, yes, sir.
15 Q. And another one was Ahmed Abdallah, also known as Ahmed
16 the German, correct?
17 A. That was another one, yes, sir.
18 Q. And another one was the name of a young man named Azzam,
19 who blew himself up in the execution of the bombing; isn't
20 that correct?
21 A. Yes, sir.
22 Q. In addition to the names, he also named a person named
23 Khalid, a Saudi Arabian who provided him with instructions
24 regarding his role even before he got to Nairobi, isn't that
25 right?
2087
1 A. Yes, sir, that's true.
2 Q. And these individuals, he gave you more than just a name,
3 he described them, right?
4 A. To a certain degree, yes, sir.
5 Q. As best he could?
6 A. I wouldn't go as far as "as best he could." As best as he
7 wanted to tell me, sir.
8 Q. Let's see. For example, he told you what Harun looked
9 like, his complexion?
10 A. That's true.
11 Q. His height?
12 A. Yes, sir.
13 Q. His weight?
14 A. Approximately.
15 Q. Right?
16 A. Yes, sir.
17 Q. He did the same with each one of these individuals; isn't
18 that correct?
19 A. That's correct, sir.
20 Q. He also looked at photographs and said "that's the guy
21 Harun" when he looked at the videotape?
22 A. Yes, sir.
23 Q. When he looked at another photograph, he said "that's the
24 guy Azzam"?
25 A. That's correct, sir.
2088
1 Q. Now, he also told you that he stayed at a house that was
2 either owned by or under the direction of Harun; isn't that
3 correct?
4 A. That's correct.
5 Q. And he said at the house he was advised and told that the
6 bomb was made at the house; isn't that correct?
7 A. That's correct, sir.
8 Q. He also said that he had been shown photographs and
9 diagrams of the embassy at the house, that's what he told you,
10 right?
11 A. Yes, sir.
12 Q. He also indicated to you that he had left the keys and
13 bullets behind in a location, correct?
14 A. Yes, sir.
15 Q. And when the Kenyan investigators or people went out, they
16 actually found those things in the place that he said he left
17 them at, isn't that right?
18 A. They were found before he told us about them, sir. The
19 keys and the bullets were found where ultimately he said they
20 were, but not because he told us. The Kenyans had already
21 found those bullets and then he told us where they were.
22 Q. Okay.
23 A. Okay, I'm trying to clarify.
24 Q. He told you the bullets were left somewhere and, lo and
25 behold, they were left there?
2089
1 A. That's true, sir.
2 Q. And this young man gave you more information about his
3 role and the others; isn't that correct?
4 A. Yes, sir.
5 Q. I think I said this, but he also indicated that there were
6 surveillance photographs and diagrams shown to him of the
7 embassy?
8 A. Yes, sir.
9 Q. He also said that Saleh took him out to look at the
10 embassy?
11 A. That's correct.
12 Q. Right?
13 A. Yes, sir.
14 Q. And during the interview of him over these days, several
15 photographs were shown to young Al-'Owhali; isn't that
16 correct?
17 A. That's correct, sir.
18 Q. And one of the photographs that you showed him was a
19 photograph of Mohamed Odeh?
20 A. That's not true, sir.
21 Q. Okay. You did not show him a photograph of Mohamed Odeh?
22 A. No, sir, I did not.
23 Q. Was that a conscious decision?
24 A. On my part it was, yes, sir.
25 Q. And did he ever mention to you that Mohamed Odeh had
2090
1 anything whatsoever to do with the bombing, the execution of
2 or the planning of the bombing of the United States embassy?
3 A. He never mentioned Odeh's name, no, sir.
4 MR. RICCO: I have no further questions. Thank you
5 very much, your Honor.
6 THE COURT: Anything further from defendants with
7 respect to this witness?
8 MR. DRATEL: No, your Honor.
9 MR. COHN: No, your Honor.
10 THE COURT: We'll take a brief recess.
11 (Jury not present)
12 THE COURT: I want to resolve the matter of a
13 limiting instruction before we begin redirect.
14 I'll be in the robing room. Please let me know
15 whether you have reached an agreement on it or not.
16 (Recess)
17 THE COURT: Have counsel reached an agreement as to
18 the language of the instruction?
19 MR. KARAS: We're just trying to hone in the last
20 couple of sentences, your Honor.
21 THE COURT: Last couple of sentences?
22 MR. DRATEL: Last sentence.
23 MR. KARAS: Last sentence, actually.
24 MR. FITZGERALD: In the meantime, your Honor, if I
25 could just put on the record that the following witness will
2091
1 be Charles Mwaka Mula, and we would not like him sketched to
2 prevent the identification of the witness.
3 THE COURT: Anyone here from CNN or any other press?
4 Any press present?
5 (Hands raised in the gallery)
6 THE COURT: All right, if any sketch artist arrives,
7 would you please advise that the next witness's facial
8 features should not be sketched.
9 A MARSHAL: Yes, your Honor.
10 MR. FITZGERALD: And the witnesses following him
11 until Donald Sachtleben -- Sachtleben is an FBI agent, but the
12 civilians until Sachtleben, we would object to the sketching.
13 MR. COHN: Your Honor, my client has an application
14 which should be made in closed court.
15 THE COURT: He has an application?
16 MR. COHN: Yes, your Honor. It's going to have to be
17 separate.
18 THE COURT: It's something that has to be dealt with
19 now?
20 MR. COHN: I believe so. It's probably not a subject
21 that should be raised with other counsel.
22 THE COURT: All right. I will see the defendant
23 Al-'Owhali and Mr. Cohn and the court reporter in the robing
24 room, and that will give other counsel an opportunity to work
25 out the language.
2092
1 It's not the most complex school of evidence that one
2 is confronted with.
3 (Pages 2093 through 2096 filed under seal)
4 (Continued on next page)
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2097
1 (In open court)
2 THE COURT: Two matters: First matter is, has there
3 been an agreement on the language?
4 MR. KARAS: Yes, your Honor.
5 THE COURT: With what, does somebody have it in
6 writing?
7 MR. KARAS: I have it in writing, yes.
8 THE COURT: Will you state it on the record.
9 MR. KARAS: Yes, Judge. The instruction would be as
10 follows:
11 You have heard testimony regarding the statements
12 allegedly made by the defendants Odeh and Al-'Owhali. You may
13 consider these statements as evidence of the activities only
14 of the people who made the statements, and that is relevant to
15 the case.
16 You may consider the evidence of these statements if
17 you feel that they are probative in this direction. You may
18 consider the evidence of these statements on the issue of
19 whether there was or was not a conspiracy to kill United
20 States nationals or a conspiracy to bomb buildings or the
21 other charged conspiracies, and whether the conspiracies
22 included the bombings of the embassies in Nairobi, Kenya and
23 Dar es Salaam, Tanzania.
24 I remind you that the defendant El Hage is not
25 charged with participating in the embassy bombings.
2098
1 At the end of the trial I will give you the
2 instructions on the law that you will apply to this case.
3 Among those instructions will be further guidance on the use
4 of the statements allegedly made by the defendants and any
5 limitation.
6 The reason for that, your Honor, is as follows: The
7 statements, in addition to being probative of the existence
8 and the scope of the charged conspiracies, may also be
9 relevant to the defendant Odeh and the defendant Al-'Owhali as
10 to the Dar es Salaam bombings which may rest on a Pinkerton
11 theory, and there is some support in the case law that
12 suggests that statements that come in under 804(b)(3) may be
13 used in those circumstances but would not be admissible
14 against the defendant El Hage.
15 THE COURT: Mr. Dratel, that statement is acceptable
16 to you?
17 MR. DRATEL: With the understanding with the
18 government, and just to alert the Court, that that last
19 sentence, which is that the Court -- that the jury will be
20 further instructed really relates to delineating the
21 difference between the defendants, which we all feel too
22 complex right now in terms of Pinkerton v. non-Pinkerton and
23 the limitation of the use of the statements against El Hage.
24 THE COURT: There are very serious Pinkerton issues
25 in this case, but I didn't think we were addressing them now.
2099
1 I thought we were addressing the ability of the jury to use a
2 statement made by co-conspirator not in furtherance of the
3 conspiracy with respect to other defendants. That is what I
4 thought was the thrust of your request for a limiting
5 instruction.
6 And I don't know that that really addresses it, but
7 if there is unanimous agreement that that is a limiting
8 instruction that I should give, I will give it. And I will,
9 of course, in my final instructions to the jury, spell out at
10 greater length the difference between statements made in
11 furtherance of a conspiracy and furtherance statements which
12 are not in furtherance of the conspiracy.
13 MR. DRATEL: If I may have one second, your Honor.
14 THE COURT: One other matter, and that is I am going
15 to allow Mr. Cohn to ask some further questions on
16 cross-examination before the government's redirect.
17 MR. DRATEL: Your Honor, we've discussed with counsel
18 with the government. We'll hold off on it right now.
19 THE COURT: We'll hold off on what?
20 MR. DRATEL: The instruction.
21 THE COURT: On any instruction?
22 MR. DRATEL: On any instruction right now.
23 THE COURT: I'm not entirely comfortable with that.
24 I think the instruction is, if anything, somewhat late and I'm
25 just sort of wondering about all the time we spent yesterday
2100
1 morning on matters that I think are of considerably less
2 moment.
3 I will tell the jury that I will in due course
4 explain to them the extent, if any, to which statements made
5 by Al-'Owhali while he was in custody may be used with respect
6 to the other defendants, and that they should now just bear in
7 mind that such instruction will ultimately be given.
8 All right, let's bring in the witness and the jury.
9 (Jury present)
10 THE COURT: Ladies and gentlemen, I just want to
11 alert you to one matter, which I will address later, and that
12 is there are special rules of evidence which relate to the
13 extent, if any, to which statements made by an alleged
14 conspirator after he is in custody, the extent to which such
15 statements may be used or considered by you with respect to
16 other defendants.
17 And I will certainly, before you begin any
18 deliberation, explain in some detail those rules, and my only
19 point now is to alert you that those instructions will be
20 given to you and that there are special rules which do apply
21 when a statement is made by a codefendant after he is arrested
22 with respect to the circumstances surrounding the matters
23 about which he is questioned.
24 Mr. Cohn has requested on behalf of defendant
25 Al-'Owhali that he be permitted to reopen cross-examination,
2101
1 and I have granted that request.
2 CROSS-EXAMINATION
3 BY MR. COHN:
4 Q. Agent Gaudin, I'm going to ask you a number of questions
5 about the interrogation, the general interrogations over the
6 period of time that you did it, and I'm not asking you for the
7 content, I'm asking you for other things. And so if there is
8 any misunderstanding or you think that the content is called
9 for, please tell me, because that's not what I'm asking, okay?
10 A. I just wanted -- I'm already just a little bit confused,
11 but I'll try to follow your instructions.
12 Q. I'll give you an example. During the period of, the
13 general period of the investigation, is it fair to say that
14 Mr. al-'Owhali became angry from time to time?
15 I'm not asking you what he said, I'm asking you --
16 A. Okay.
17 Q. I'm asking you, did he become angry from time to time?
18 A. There were a couple of times when he was angry.
19 Q. Very well. Angry?
20 A. He became angry, yes.
21 Q. And he exhibited that anger by appearing angry?
22 A. Yes, sir.
23 Q. Were there times when he appeared terribly worried about
24 his predicament?
25 A. I'm not sure what you mean by "terribly worried about his
2102
1 predicament."
2 MR. COHN: Will you bear with me for a second, your
3 Honor?
4 THE COURT: Yes.
5 (Pause)
6 BY MR. COHN:
7 Q. Now, were there times when he was upset?
8 A. Along the same times that he was angry, I would say angry
9 or upset, yes, sir.
10 Q. Well, I mean, so he did exhibit, from time to time, upset
11 during this process?
12 A. Yes.
13 Q. And were there times when, as part of the investigative
14 process, you made certain accusations about what you thought
15 he might have done?
16 A. I expressed upon him things that I thought I knew, yes,
17 sir.
18 Q. And did you ever show him pictures, for instance, of the
19 bombing of the Al Ameriyah Shelter?
20 A. The what shelter, sir?
21 Q. Al Ameriyah Shelter in Lebanon?
22 A. No, sir, I did not.
23 Q. Never did?
24 A. No, sir.
25 Q. There were times when he evasive, was he not?
2103
1 A. That's correct, sir.
2 Q. Getting back to this advice of rights that was -- you say
3 was given to him when he -- on the 12th?
4 A. On the 12th, yes, sir.
5 Q. Did you tell him when you arrested him on the 12th that he
6 was entitled to a lawyer?
7 MR. BUTLER: Objection to form.
8 Q. Did you tell him he had a right to remain silent?
9 THE COURT: I --
10 MR. COHN: I'm sorry, your Honor. I'll withdraw the
11 question. I'll do it over again.
12 Q. Did you tell him he had a right to remain silent?
13 A. I would feel move comfortable if I had the actual form
14 here, but I believe he did say that.
15 Q. Did you tell him if he was in America he would have a
16 right to a lawyer, but since he wasn't in America, that one
17 would not be provided?
18 A. That wasn't the exact wording. As I remember it, it
19 was --
20 Q. Did you tell him if he was in America, that he would have
21 a right to a lawyer?
22 A. I explained that to him, yes, sir.
23 Q. And it was clear to you that you were not in America; is
24 that right?
25 A. We were in Kenya, sir.
2104
1 Q. And it was clear to you that, therefore, no lawyer could
2 be provided to him; is that right?
3 A. No, that wasn't clear to me, sir.
4 Q. It wasn't clear to you?
5 A. No.
6 Q. You thought that if he asked for a lawyer, one would be
7 provided for him?
8 A. What the form said, and what I explained to him, sir, was
9 that because we're not in America, that I myself, as an agent
10 of the FBI, cannot guarantee that he would be afforded one in
11 the manner in which, if we were in the United States, he would
12 be guaranteed an attorney.
13 Q. In fact, if he had asked for a lawyer, you would have had
14 to stop questioning and leave him with the -- to whatever CID
15 was going to do under their law, right?
16 A. If he had asked for a lawyer, sir, I would have had to
17 stop interviewing him, correct.
18 Q. And you would have left and CID would have continued to
19 question or not as they saw fit?
20 A. He was in their custody, yes, sir, whatever they decided.
21 Q. And in fact, you told him that, didn't you?
22 A. It -- he never, he never balked at what we had read to
23 him, sir, and he agreed to talk with us from the beginning.
24 So that conversation didn't happen.
25 Q. On the morning of the 12th you asked him -- you read him
2105
1 his rights, so to speak, in English, right?
2 A. On the morning of the 12th, in English, yes, sir.
3 Q. So he didn't know -- well, he didn't speak much English,
4 does he?
5 A. The way it happened, sir --
6 Q. Sir, does he speak much English?
7 A. He speaks some broken English.
8 Q. Not enough to understand a complicated advice of rights,
9 does he?
10 A. He said he understood at that reading, yes, sir.
11 Q. He said he understood?
12 A. Yes. He said he couldn't read it, but if we were to read
13 it to him, and slowly, he would stay along. And he agreed at
14 the end of it, and as we were reading it to him, that he
15 understood what we were saying.
16 Q. He never -- but ultimately, after an hour, you decided
17 that it was not productive to continue this in English, he
18 needed an interpreter, is that right?
19 A. I felt it would be better for everybody involved if we had
20 an interpreter.
21 Q. So that's when you got the interpreter and the blanket,
22 right?
23 A. Got the interpreter, yes, sir.
24 Q. And then you say that the rights were read to him in
25 Arabic?
2106
1 A. The same form was read to him again in Arabic, yes, sir.
2 Q. You read it and the interpreter interpreted?
3 A. I believe so.
4 Q. You know that what she said is exactly what you said?
5 A. To the best of my recollection, I don't speak Arabic, but
6 I believe, I believe she was speaking it to him, and he said
7 that he understood it in Arabic now as we had read it to him
8 in English.
9 Q. You don't know whether she said to him that, if you don't
10 answer questions, we'll leave you with the Kenyans?
11 A. No, sir, I don't know that.
12 Q. You don't know that?
13 A. No, sir.
14 Q. And you wouldn't know that she didn't? It's just your
15 expectation that she didn't?
16 A. Based on what Mr. al-'Owhali said to me, I didn't think --
17 I didn't think that she had derived from the form at all based
18 on his response.
19 Q. You think that if she said that, he would have complained
20 to you, as his protector?
21 A. I don't know what he would have said, sir.
22 Q. That's fair.
23 There were times Mr. al-'Owhali, during these
24 investigations or interrogations, became, I think you -- did
25 you characterize his conduct as agitated?
2107
1 A. Or angry, yes, sir.
2 Q. You did use the word "agitated" from time to time?
3 A. I could have. I'm not sure.
4 Q. Let me --
5 MR. COHN: May I approach, your Honor?
6 THE COURT: Yes.
7 Q. Let me show you a document of the government, a report of
8 yours of 8/13/98; ask you to look at the last paragraph.
9 A. Yes, sir.
10 Q. Did you use the word "agitated"?
11 A. The word "agitated" is used there, yes, sir.
12 Q. And you wrote it?
13 A. This particular report I did not write. I had co-authored
14 it, meaning I just, after the person who was responsible for
15 writing it did write it, I agreed in context what it said.
16 Q. You read it?
17 A. I did read it.
18 Q. And after reading it, you signed it as authorizing it as a
19 co-author?
20 A. That's right.
21 Q. Is it fair to say, sir, that over the period of the nine
22 days that he was interrogated and left in isolation various
23 times --
24 MR. BUTLER: Objection.
25 THE COURT: Sustained.
2108
1 MR. COHN: May I finish the question?
2 THE COURT: Sustained.
3 Q. Over the period of the nine days of interrogations and
4 periods when you did not see him, that he became progressively
5 more and more agitated for more of the time?
6 A. I wouldn't say that.
7 Q. You would not?
8 A. No, sir.
9 MR. COHN: Bear with me one minute, your Honor.
10 (Pause)
11 MR. COHN: I have nothing further.
12 THE COURT: Government redirect.
13 MR. BUTLER: Briefly, your Honor.
14 REDIRECT EXAMINATION
15 BY MR. BUTLER:
16 Q. Agent Gaudin, Mr. Cohn asked you some questions about, on
17 cross-examination about the interviews that took place from
18 August 12th to August 21st. Remember those questions?
19 A. Yes.
20 Q. And during those interviews, did you take breaks during
21 those interviews?
22 A. Yes, we did.
23 Q. And was Mr. al-'Owhali permitted to pray during those
24 interviews?
25 A. Whenever he asked to pray, he was granted the opportunity
2109
1 to pray, yes, sir.
2 Q. And was Mr. al-'Owhali given food during the course of
3 those interviews?
4 A. Whenever he asked for it, he was.
5 Q. And did you voluntarily give him food, even if he didn't
6 ask for it?
7 A. Yes. There were times that I became hungry during this
8 process and I would take food out for myself, whether it be a
9 candy bar or whatever I had with me, and I didn't feel right
10 eating it in front of anyone in the room. I would ask them if
11 they wanted some and I asked him if he wanted some. Sometimes
12 he took it, sometimes he didn't.
13 Q. During these interviews from August 12th on to August
14 21st, did Mr. al-'Owhali ever complain about the treatment
15 that he was receiving?
16 A. He never complained to me once about his treatment.
17 Q. Did he ever complain about the treatment he was receiving
18 from the Kenyans?
19 A. He never once complained about his treatment at all.
20 Q. During this period did you ever hear anyone threaten
21 Mr. al-'Owhali?
22 A. No, I did not.
23 Q. During the course of these interviews that took place
24 between August 12 and August 21, was Mr. al-'Owhali ever
25 handcuffed in your presence?
2110
1 A. In my presence, I never saw him in handcuffs, no, sir.
2 Q. Was there ever any occasion when you helped take him from
3 the cell to the interview room?
4 A. Many occasions. I went with -- I went whatever time the
5 interview was going to start, I went to the cell and would
6 walk right to the interviewing room with him.
7 Q. While he was brought from the cell to the interview room,
8 was he handcuffed?
9 A. No, he was not.
10 Q. Did Mr. al-'Owhali ever say anything to you about being in
11 pain during the course of these interviews?
12 A. He never complained about being in pain to me, sir.
13 Q. And prior to the time that he received medical treatment
14 on August 18, did he ever ask for medical treatment in your
15 presence?
16 A. Not in my presence, no, he didn't.
17 Q. Were you there on August 18 when he received the medical
18 treatment?
19 A. Yes, I was.
20 Q. What did they do for him?
21 A. They took a look at the stitches that had, that he had
22 received when he had got treated on the 7th of August, and the
23 doctor and the paramedic that were there decided it was
24 probably time for them to come out. So they removed the
25 stitches from him -- it was right in the interview room where
2111
1 we were talking to him. They removed his stitches and they
2 applied some sort of antibiotic or some sort of ointment onto
3 the wounds, and it was a very congenial process.
4 Q. I believe you testified on cross-examination that after
5 the interview on August 12, Mr. al-'Owhali was taken to a cell
6 not at the CID headquarters, correct?
7 A. That's correct, on the 12th he went to some other
8 location.
9 Q. And you also testified about visiting him in his cell on
10 August 16th, correct?
11 A. Yes, I did.
12 Q. Where was that cell?
13 A. On the 16th he was housed at CID headquarters in Nairobi
14 in the same complex, same building that we were interviewing
15 him.
16 Q. Approximately when was he transferred from this cell
17 outside the facility's headquarters back to the cell in CID
18 headquarters?
19 MR. COHN: Objection. Foundation.
20 Q. Did there come a time when he was eventually placed in a
21 cell in CID headquarters?
22 A. Yes, he was.
23 Q. When was he placed in the cell in CID?
24 MR. COHN: Objection. How does he know?
25 THE COURT: If he knows.
2112
1 Q. When is the first time you saw him in the cell in CID
2 headquarters?
3 A. The first time I saw him physically in the cell was on
4 Sunday, the 16th.
5 Q. You said that you would go down and pick him up to take
6 him to the interrogations, correct?
7 A. That's correct.
8 Q. And do you know when -- were you ever informed when he was
9 taken to the cell at CID headquarters?
10 A. Yes, I was.
11 MR. COHN: That's a yes or no answer.
12 Q. When was that?
13 MR. COHN: Objection.
14 THE COURT: Overruled.
15 A. I believe it was on Friday, the 14th, is when he started
16 to stay at CID headquarters.
17 Q. And you testified that you also brought him some milk
18 while he was in that cell, right?
19 A. Yes, I did.
20 Q. Where did you bring him that milk?
21 A. He asked for some milk. I had saw him in there. I saw
22 him, he was eating, and I asked him if he was okay, if he
23 needed anything else, and he said he would like some milk and
24 I arranged for some milk to be brought to him.
25 Q. Now, there came a time when he participated in an
2113
1 identification parade, correct?
2 A. Yes, he did.
3 Q. And that was on August 20th, I believe you testified?
4 A. Thursday, the 20th.
5 Q. And six people viewed the identification parade, correct?
6 A. That's right, six people.
7 Q. Who chose the people who were selected to view the
8 identification parade?
9 A. The Kenyan CID people chose who were going to be the
10 persons who would view the identification lineup.
11 Q. Mr. Cohn showed you a photograph that was introduced as
12 Defense Exhibit C.
13 Could we bring up Defense Exhibit C, please.
14 I believe you testified that this photograph was
15 taken some time after the identification parade, correct?
16 A. That's correct.
17 Q. Did you take this photograph?
18 A. No, I did not.
19 Q. Do you know who took this photograph?
20 A. I don't know exactly who took it, but it would -- I
21 believe it was a reporter from the Kenyan newspaper.
22 Q. When is the first time that you saw this photograph?
23 A. It was on Saturday, August 22.
24 Q. Where did you see it?
25 A. It was in the newspaper in Kenya.
2114
1 Q. During this period between August 12 and August 21 were
2 you ever alone with Mr. Al-'Owhali?
3 A. Yes, I was.
4 Q. When were you alone with Mr. Al-'Owhali?
5 A. Whenever he requested to pray, he would have to go to the
6 bathroom and wash himself in preparing to pray, and it was
7 something that I had never seen before so I had asked him to
8 explain to me what he was doing. And he did. So whenever he
9 needed to pray and we would leave the room together and I
10 would go with him to the bathroom, he would show me his
11 washing ritual and actually tell me why and what he was doing,
12 amongst other things.
13 Q. And during this period that you were alone with
14 Mr. Al-'Owhali, did he ever complain to you about the
15 treatment he was receiving from the Kenyans?
16 A. No, he did not.
17 Q. Going ahead to August 21st, first, I believe Mr. Cohn
18 showed you three photographs identified as Defense Exhibits I,
19 J and K, which were the photos of you taking fingerprints and
20 in the cell with Mr. Al-'Owhali.
21 Why did you take those photographs, Agent Gaudin?
22 A. On August 20th, the day before these pictures were taken,
23 the United States had launched cruise missiles into
24 Afghanistan and Sudan --
25 MR. COHN: Objection, your Honor.
2115
1 THE COURT: Overruled.
2 A. -- in retaliation for the attacks on the two embassies,
3 two American embassies. We didn't know anything about that,
4 being in Kenya when that had happened. We actually viewed it
5 on the news. Our leadership, the FBI leadership, was very
6 worried about the large American presence overseas --
7 MR. COHN: Objection as to the leadership's state of
8 mind.
9 THE COURT: Yes. Sustained.
10 Q. Were you told anything as a result of the missile strikes
11 about what you might be doing in Kenya?
12 A. I was told because of --
13 THE COURT: After you were told that, then what?
14 After he was told, what did you do?
15 Q. What did you do after you had these conversations?
16 A. We were told that --
17 THE COURT: No, no. What did you do after you
18 received information?
19 THE WITNESS: We prepared to leave Kenya.
20 Q. And so why did you take the photographs on August 21?
21 A. As we prepared to leave Kenya, I had realized that I
22 hadn't -- I didn't have a set of fingerprints for
23 Mr. al-'Owhali, so I asked Kenya investigators if I could get
24 a copy. They explained to me that they don't fingerprint
25 people until right before they're actually charged. In the
2116
1 investigative process, they don't take the fingerprints.
2 So I asked if it would be all right if I could take
3 some fingerprints for him, and they said it would be okay.
4 And it took some time to gather up whatever I could to take
5 his fingerprints. It wasn't very readily available over
6 there. So I took his fingerprints.
7 At that time, I saw that someone had a camera and I
8 realized, I know I took pictures of him on the 12th, but I
9 didn't know where those pictures exactly were and I figured it
10 would be a good idea to have a picture of him, and that's why
11 I took the picture. That's why the picture was taken and the
12 fingerprints.
13 Q. Moving ahead to the interview that took place after you
14 took these photographs, and without describing any of the
15 conversation that you had with Mr. Al-'Owhali, did you show
16 Mr. al-'Owhali anything during the course of these interviews?
17 A. On the?
18 Q. On the 21st?
19 A. Yes, I did.
20 Q. What did you show him?
21 A. I showed him some phone records. I showed him some
22 photographs of a house.
23 Q. What house was that?
24 MR. COHN: Objection.
25 THE COURT: Overruled.
2117
1 A. 43 Runda Estates, Harun's house, as I knew it. I knew it
2 to be Harun's house.
3 Q. Going back for just a moment to the interviews that took
4 place between August 22nd and August 26th, I believe counsel
5 for Mr. Odeh asked you some questions about what
6 Mr. Al-'Owhali told you during those interviews.
7 Was there anything that Mr. al-'Owhali said he would
8 not tell you?
9 A. He told me he wasn't going to tell me everything. He told
10 me that he was in the plan -- he was not in the planning, in
11 the preparation phase of the mission, he was only in the
12 execution phase of the mission. There were certain things he
13 would tell me and there were things -- there were certain
14 things he would not tell me.
15 MR. BUTLER: No further questions.
16 THE COURT: Anything further of this witness?
17 MR. RICCO: Yes, your Honor.
18 MR. COHN: Yes, your Honor.
19 RECROSS-EXAMINATION
20 BY MR. COHN:
21 Q. Do you know what the meaning of the phrase "plausible
22 deniability" is?
23 MR. BUTLER: Objection, your Honor.
24 THE COURT: Sustained.
25 Q. Well, if you wanted to create a situation that was
2118
1 coercive --
2 THE COURT: I think any question that begins with
3 "if" is very dubious.
4 Try it again.
5 Q. You were interrogating Mr. al-'Owhali for nine days; is
6 that right? From the 12th to the 21st, off and on?
7 A. Right. Not every single day, yes, sir.
8 Q. And he was not always in your custody?
9 A. That's correct, sir.
10 Q. You did not ask the Kenyans what they were doing to him or
11 saying to him during the period in which he was not in your
12 custody?
13 A. No, sir, I didn't.
14 Q. Were you not curious?
15 A. Not really, sir, no.
16 Q. Never occurred to you to inquire as to whether or not they
17 were threatening him and to make sure of his well-being?
18 A. The interviews were a team effort and when an interview
19 would end, we would agree that we would start up again
20 tomorrow. So it's my understanding that there would be no
21 other questioning of him until we were all together.
22 Q. You have been an agent for nine years, you said?
23 A. Yes, sir.
24 Q. There was a period in which you were in the military
25 before that?
2119
1 A. Yes, I was.
2 Q. How long were you in the military?
3 A. I was on active duty for six years.
4 Q. As part of your training in the military, were you taught
5 how to resist interrogations if you were captured by the
6 enemy?
7 A. I did go to a school for that training, sir.
8 Q. You didn't go to a school?
9 A. I did go to a school.
10 Q. You went to a school?
11 A. Yes, sir.
12 Q. So you were aware at the time that Mr. al-'Owhali was
13 being interrogated for those nine days that there might be
14 circumstances in which foreign nationals might use, could use
15 tactics that would be unacceptable in the United States?
16 MR. BUTLER: Objection, your Honor.
17 THE COURT: Sustained. Sustained.
18 Q. After having had that training, it never occurred to you
19 to ask the Kenyans whether or not they were treating
20 Mr. al-'Owhali decently?
21 MR. BUTLER: Objection, your Honor.
22 THE COURT: I'll allow that question.
23 A. My training in the military was for military
24 interrogations. In other words, if I was ever captured as an
25 American fighting soldier by the enemy, not -- had nothing to
2120
1 do with law enforcement interrogation.
2 Q. So you were confident, were you, that the Kenyan CID
3 people were playing by the same rules that you were playing by
4 because of mandative law?
5 MR. BUTLER: Objection.
6 THE COURT: Sustained.
7 MR. COHN: I have nothing further.
8 THE COURT: Mr. Ricco, on behalf of defendant Odeh.
9 RECROSS-EXAMINATION
10 BY MR. RICCO:
11 Q. I want to focus right in on Mr. Butler's questions about
12 Mr. al-'Owhali not saying things.
13 A. Yes, sir.
14 Q. Okay. Now, you asked Mr. al-'Owhali to describe to you
15 the people who he knew were involved in the bombing, correct?
16 A. I don't remember exactly how the question came, sir, but I
17 do remember us getting to a point where he told me "I'm not
18 going ot tell you everything." I remember that.
19 Q. Okay, I heard that. Now I want to ask you about my
20 question.
21 A. Yes, sir.
22 Q. And my question is about whether or not you asked
23 Mr. al-'Owhali to describe to you the people that he knew was
24 involved in the planning.
25 Did that happen?
2121
1 A. I wanted to get all that information, yes, sir.
2 Q. Did that happen?
3 A. Yes, sir, I asked him.
4 Q. And what he said was, he described Azzam, right?
5 A. Yes, he did.
6 Q. And he described Azzam as the person who drove the truck,
7 detonated the bomb at the United States Embassy, isn't that
8 right?
9 A. Yes, he did.
10 Q. He described him as being 26 years old, approximately 170
11 centimeters tall, weighing 80 kilograms, black hair and brown
12 eyes, isn't that right?
13 A. I believe that's correct, sir.
14 Q. He described to you Saleh, right?
15 A. Yes, he did.
16 Q. He says Saleh was an Egyptian, and that he was the planner
17 for both the U.S. Embassy bombings in Dar es Salaam and
18 Nairobi, isn't that right?
19 A. That's correct, sir.
20 (Continued on next page)
21
22
23
24
25
2122
1 Q. He further described Saleh as being in his 30s, about five
2 seven, medium build with black hair and brown eyes. Isn't
3 that right?
4 A. That's true, sir.
5 Q. You asked him to describe the fellow Harun, right?
6 A. Yes, I did.
7 Q. An he said Harun was a light-skinned black Somali-looking
8 man who assisted in the planning of the bombing of the United
9 States embassy in Nairobi and is further described as being
10 about 24 years old, isn't that correct?
11 A. That sounds about right, sir.
12 Q. He said he was about five foot five, that he was skinny
13 with short black hair and dark eyes, isn't that right?
14 A. That sounds about right, sir.
15 Q. He told you even more. He said Harun's house --
16 MR. COHN: Objection, your Honor.
17 THE COURT: Sustained.
18 MR. RICCO: Okay.
19 Q. Along the lines of Mr. Butler's question, he also
20 described to you Ahmed Abdallah, isn't that correct.
21 A. Yes, sir.
22 Q. Described Abdallah also as Ahmed --
23 MR. COHN: Objection.
24 THE COURT: Mr. Ricco, would you confer for a moment
25 with Mr. Cohn?
2123
1 MR. RICCO: Yes.
2 (Pause)
3 Q. He complained to you who Ahmed Abdallah was and what his
4 role was, isn't that correct?
5 A. He gave me that information, yes, sir.
6 Q. He also described to you that Ahmed Abdallah was blonde
7 haired?
8 A. Either fair hair or blonde hair, I believe so.
9 Q. And he gave you height and weight, isn't that correct?
10 A. I believe he did.
11 Q. He also explained to you Abdul Rachman. He explained to
12 you that he was a technician, isn't that correct?
13 A. That was the term he used, technician.
14 Q. And he also gave you the height and weight of this
15 gentleman, isn't that correct?
16 A. I believe so, sir.
17 Q. He also explained to you a fellow by the name of Khalid?
18 A. Khalid, yes, sir.
19 Q. And he explained to you his height and weight and his age,
20 isn't that correct?
21 A. Yes, sir.
22 Q. And you also showed him photographs of Azak, right?
23 A. That's true.
24 Q. Now, he didn't hold back when you showed him the
25 photographs of Azak. He said that's Azak in the picture,
2124
1 isn't that right?
2 A. Not that fast, but, yes, sir, he did say it was Azak.
3 Q. All right. And you showed him a videotape of Harun. He
4 didn't hold back when you showed him the videotape of Harun.
5 He identified Harun from the photographs, isn't that correct?
6 A. From the videotape, yes, sir.
7 Q. And when you showed him the photograph of the house he
8 said that's the house where we put the bomb together and the
9 house that I stayed at, isn't that right?
10 A. True.
11 Q. Was he holding back then or did he say --
12 A. I don't believe he was holding back then, no, sir.
13 Q. Now, who made the decision not to show him the photograph
14 of Mohamed Odeh, him or you?
15 A. I believe I was probably part of the decision not to show
16 him the picture of Odeh.
17 MR. RICCO: No further questions.
18 THE COURT: Anything further of this witness?
19 MR. BUTLER: Very briefly.
20 REDIRECT EXAMINATION
21 BY MR. BUTLER:
22 Q. During the interviews -- just going back to the recross by
23 counsel for Mr. Odeh -- during the interviews between August
24 22nd and August 25th, did Mr. Al-'Owhali ever mention someone
25 named Ahmed Kalfan Galani?
2125
1 A. No, he did not.
2 Q. Did he mention someone named Mustafa Fadal?
3 A. No, he did not.
4 Q. Did he mention someone named Fahad el Islam?
5 A. No, he didn't.
6 Q. And did he mention someone mention Ahmed Sheik Sudan?
7 A. No, he didn't.
8 MR. BUTLER: No further questions.
9 RECROSS-EXAMINATION
10 BY MR. RICCO:
11 Q. Did you ask him if he knew who any of those people were?
12 A. I didn't even know those names, sir. I never asked.
13 MR. RICCO: No further questions.
14 THE COURT: The government may call the next witness.
15 You may step down.
16 (Witness excused)
17 MR. FITZGERALD: The government calls Charles Mwaka
18 Mula.
19 CHARLES MUWAKA MULA,
20 called as a witness by the government,
21 having been duly sworn, testified through the interpreter,
22 as follows:
23 DIRECT EXAMINATION
24 BY MR. FITZGERALD:
25 Q. You do have a soft voice. If you could try to keep your
2126
1 voice up, and if you at any time need to use the interpreter
2 who is seated to your left, please feel free to do so.
3 THE COURT: Did we swear you yesterday?
4 THE INTERPRETER: Yes.
5 Q. Mr. Mwaka, if you could tell the jury what country you
6 were born in?
7 A. (In English) American Embassy Nairobi Kenya.
8 Q. I asked you what country you were born in.
9 A. (Through the interpreter) Kenya.
10 Q. And can you tell the jury have you ever worked as an
11 employee at the American embassy?
12 (Following answers in English)
13 A. Yes.
14 Q. Can you tell the jury when you began to work at the
15 American embassy in Nairobi?
16 A. It was a Thursday, 28 July, 1986.
17 Q. It was a Thursday, July 28, 1986 when you first began to
18 work at the embassy?
19 A. Yes.
20 Q. Then did you work at the embassy through August of 1998?
21 A. Yes.
22 Q. And while you worked at the embassy did you know a man by
23 the name of Francis Kibe?
24 A. Yes, I do.
25 Q. And what did France Kibe do as a worker at the American
2127
1 embassy?
2 A. Was a driver of the scooter in the mail room section.
3 Q. You mentioned a scooter. What did Mr. Kibe do with the
4 scooter from the mail room section?
5 A. He picked.
6 Q. I'm sorry. If you could use the interpreter perhaps
7 (Through the interpreter)
8 A. He was delivering some letters and bring them back to the
9 embassy.
10 Q. So Mr. Kibe's job was to deliver mail to and from the
11 embassy with the scooter?
12 A. Yes, sir.
13 Q. And let me direct your attention to a particular day,
14 August 7th of 1998. Were you working at the embassy in
15 Nairobi that day?
16 (Witness consults with interpreter)
17 A. Yes, sir, I was working.
18 Q. Let me direct your attention to the period after 10
19 o'clock in the morning. Can you tell the jury what it was
20 that you were doing as part of your work at the American
21 embassy in Nairobi?
22 A. It was between 25 minutes to 10:30 when I was going to the
23 submersible pump when I saw a truck coming into the embassy
24 trying to get inside the embassy by force.
25 Q. Let me stop you for a moment. You mentioned a submersible
2128
1 pump. Can you tell the jury where the submersible pump was
2 that you were going to as part of your work?
3 A. It was located at the left side of the embassy.
4 Q. What was your job at the time of August 7th?
5 A. I was a technician.
6 Q. So as a technician you were going to fix the submersible
7 pump outside the embassy?
8 A. Yes.
9 Q. And was it in the back of the embassy or the front of the
10 embassy that you were going?
11 A. At the back.
12 Q. And when you went outside between 10:25 and 10:30 did you
13 see Mr. Kibe?
14 A. Yes, I saw his scooter.
15 Q. I am going to put -- where was Mr. Kibe's scooter when you
16 saw it?
17 A. It was parked at the outside of the embassy.
18 Q. Outside the embassy.
19 Let me put on the screen Government Exhibit 802G in
20 evidence.
21 I ask you to look at the TV screen to your left. If
22 you can describe to the jury, and perhaps we'll turn the TV,
23 if you find the location where you saw Mr. Kibe's scooter and
24 you can just point to it?
25 A. It was on this location. (Pointing)
2129
1 THE COURT: He can come down.
2 MR. FITZGERALD: You can step down with the
3 microphone.
4 (Witness left stand)
5 Q. If you could point to the general location where you saw
6 Mr. Kibe and his scooter?
7 A. It was on this location.
8 Q. If we could now bring up on the screen 802H in evidence
9 which is a closeup. If you could point to where you saw
10 Mr. Kibe's scooter and describe the area?
11 A. It was on this location.
12 Q. And is that where Mr. Kibe generally kept his scooter?
13 A. Yes.
14 Q. And can you describe what you saw Mr. Kibe and his scooter
15 do at the time?
16 A. (Witness consults with the interpreter)
17 The scooter was going to leave from the parking lot
18 heading to Hale Selassie. I don't know which post office he
19 was heading to.
20 Q. How would the scooter in the parking lot get out of the
21 parking lot area? Where would it drive to?
22 A. (Witness consults with interpreter)
23 Move the scooter from this area, because this is the
24 gate and this is a gate, but he used this gate through this
25 barrier to get to Halie Sallasie on the other side.
2130
1 Q. You mentioned the last barrier, the dark line. Is that a
2 drop bar? Is that a bar that goes up and down?
3 A. Yes, this is a barrier.
4 Q. Did you see Kibe and his scooter going through the area
5 where the bar is?
6 A. Last time I saw him he was waiting at the main road.
7 Q. What happened after Mr. Kibe and his scooter went past the
8 drop bar toward the main road?
9 A. After he lifted the barrier the truck came which was
10 somehow not the correct color, and tried to get into the
11 embassy by force, but the guy tried to lower the barrier,
12 guard tried to lower the barrier and in passing they broke
13 their way and start. The guard refused to open.
14 Q. Let me stop you there for a moment. When the truck was at
15 that area you're pointing to the bar, can you tell the jury
16 where you were staying?
17 A. I was turning just a few meters from this. I was turning
18 15 meters behind the house guard.
19 Q. You say house guard. Is that the guard house, the place
20 where the guard, a building where the guard stands?
21 A. (Witness consults with interpreter)
22 Yes, but there are two. One was on this one and the
23 other one on this one.
24 Q. And you mentioned that the passenger got out of the truck.
25 Can you tell the jury, in Kenya which side of the truck the
2131
1 driver sits in and which side the passenger sits in?
2 A. The driver was on the right side and the passenger was on
3 the left side.
4 Q. Okay. Now, focusing on the passenger, can you tell us
5 what the passenger did when he got out of the truck?
6 A. When he alighted from the truck he talked to the guard and
7 the guard didn't know what he was saying, ignored what he was
8 saying, and he refused to permit him.
9 Q. Let me stop you there. When the passenger got out of the
10 truck can you describe what he looked like and what, if
11 anything, he was carrying?
12 If it's easier you can sit down at this point if that
13 makes it easier.
14 (Witness resumed stand)
15 THE COURT: Tell him not to hold the microphone quite
16 so close.
17 Q. If you can tell the jury what you remember about what the
18 passenger looked like and what, if anything, he was carrying
19 and try to keep your microphone just a few inches away from
20 your face.
21 A. (Through the interpreter) When the passenger alighted I
22 thought first he was an Indian, and I came to realize he was
23 not when he went to the police station for identification.
24 MR. COHN: Your Honor, I can't understand.
25 Q. Perhaps we can use the interpreter and if you could tell
2132
1 the answer in Swahili to the interpreter?
2 THE COURT: Probably be better to put the microphone
3 back on the stand.
4 Q. If you could give the answer in Swahili to the interpreter
5 to your left and then the interpreter will put it into
6 English.
7 (Following answers through the interpreter)
8 Q. If you could tell us what the passenger looked like?
9 A. I thought he looked like an Indian.
10 Q. Okay. Anything you recall about his appearance and what
11 he was wearing?
12 (Witness consults with the interpreter)
13 (Following answers in English)
14 A. He was wearing a black jacket on that day, some red T
15 shirt.
16 Q. You mentioned a jacket. Did you say a black jacket?
17 A. Black jacket.
18 Q. You mentioned a T-shirt. Can you describe the color of
19 the T-shirt?
20 A. A T-shirt which was somehow red.
21 Q. Somehow red?
22 A. Yes.
23 Q. And you mentioned his pants. Can you describe them?
24 A. And jeans, and bluejeans which was faded.
25 Q. Faded bluejeans?
2133
1 A. Yes.
2 Q. Did you notice anything else about his appearance,
3 anything he was caring?
4 A. Say again.
5 Q. Did you notice anything else about how he looked that day?
6 (Witness consults with interpreter)
7 A. He was wearing a sports shoes black with some few stripes
8 white.
9 Q. And was he carrying anything when you saw him?
10 A. The first time he arrived I saw four things which I
11 thought they were soundproof microwaves.
12 MR. COHN: I'm sorry?
13 A. Microphones.
14 THE COURT: I'm sorry. Take the microphone and tell
15 this gentleman and then tell Mr. Fitzgerald.
16 MR. FITZGERALD: If you could ask Mr. Mwaka Mula to
17 tell us, he described four things, what he thought they were.
18 He can tell you in Swahili.
19 (Witness consults with interpreter)
20 (Following answers through the interpreter)
21 A. He thought he had something like microphone, heavy set
22 like the one they use in the airlines.
23 Q. Let's focus on what you described as microphones. Can you
24 tell the jury where it is that you've seen these things you
25 described as the microphones before?
2134
1 A. Was two on one side to another side.
2 Q. And are you talking about what the passenger that day?
3 THE INTERPRETER: Repeat.
4 Q. You mentioned that there were two on each side. I'm not
5 talking August 7th. I'm asking him where he's seen those
6 microphones, what he called microphones in the past?
7 A. He was using that kind of some kind of microphone when
8 he's doing his duty.
9 Q. Okay. Can you tell the jury how would you use the
10 microphone, what you're calling a microphone.
11 A. He was using to cover himself avoiding to get more, to
12 have a vibration when he's doing his job.
13 Q. Where would you put what you call the microphone?
14 A. Would put on his head.
15 Q. And when you put those things on your head what would
16 happen?
17 A. I was unable to hear any voice which are in my ears.
18 Q. So these are things that you put on your ears to block
19 sound?
20 A. Yes.
21 Q. And you mentioned before that you had seen them in
22 connection with an airline. Can you describe to the jury
23 where you had seen them with an airline before?
24 A. I have seen when I go to the airport to get my visitors
25 and I see people are wearing outside the airline.
2135
1 Q. Are those the people working near the engines?
2 A. He have seen also at the airport.
3 Q. Okay. Can you tell us what happened? You said that
4 you -- where did you see these items with the passenger, where
5 on his person were they on August 7th?
6 A. I saw this from the passenger who was coming from the car.
7 Q. And where were they on his person?
8 A. Is behind the American embassy.
9 Q. But these items that you, that one would put on their head
10 to block out sound, the things that look like them, where were
11 they on the passenger?
12 A. He have two on one side and two on the other.
13 Q. And did you see the passenger do anything with these
14 items?
15 A. I saw he threw to the guard.
16 Q. And what happened when the passenger threw this to the
17 guard?
18 A. He threw to the guard and the guard he didn't get to the
19 guard, and the one flew to the gate of the embassy.
20 Q. And when he threw these items, did the items do anything?
21 A. Exploded.
22 Q. And how many does he recall the passenger throwing of
23 these items?
24 A. Was three of them.
25 Q. And after these three items were thrown what, if anything,
2136
1 did you see the passenger do?
2 A. He walked so fast went to Haille Selassie Avenue.
3 Q. When you saw the passenger walking toward Hallie Sallasie
4 Avenue what did you do?
5 A. He ran away.
6 Q. And in which direction did you run away?
7 A. He ran to northern side of the embassy.
8 THE COURT: Who ran?
9 THE INTERPRETER: He ran.
10 THE COURT: The passenger ran?
11 THE INTERPRETER: After he saw the --
12 Q. Describe to the jury which direction the passenger ran and
13 which direction you ran?
14 A. The passenger went south and he ran to north.
15 Q. And when you ran north -- why don't we put up again 802G
16 in evidence. I could just ask you to briefly step down with
17 the microphone and just point to the direction in which you
18 ran.
19 (Witness left stand)
20 Q. Just indicate for the jury which direction you ran in?
21 Did you run between the embassy and the generator?
22 MR. COHN: Your Honor, because it's hard to tell
23 could Mr. Fitzgerald sort of repeat for the record what the
24 witness is shown because we can't see from here?
25 MR. FITZGERALD: I believe indicating running between
2137
1 the embassy and the generator structure.
2 Q. And when you ran in that direction did there come a time
3 when you encountered a fence.
4 A. Yes.
5 Q. Is that a large metal fence that surrounds the embassy?
6 A. Yes.
7 MR. FITZGERALD: Perhaps it would be easier if he can
8 sit down again now.
9 (Witness resumed stand)
10 Q. If you could tell the jury what you did when you got to
11 the large metal fence?
12 A. I tried to jump but I was unable to.
13 Q. Were you able to get over the fence?
14 A. I tried to jump over the fence but I couldn't do it.
15 Q. So what did you do then?
16 A. He tried on the left side and the right side. He couldn't
17 do it, also.
18 Q. What did you try to do on the right side?
19 A. He was trying to use his right side to force himself
20 through the fence.
21 Q. What did you do when you could not force yourself through
22 the fence with your right side?
23 A. And then I tried on left side.
24 Q. What happened then?
25 A. Then I went through the fence on the other side.
2138
1 Q. Did you actually physically put your body through the bars
2 between the fence?
3 A. Yes.
4 Q. What happened after you put your body through the bars in
5 the fence?
6 A. I was caught on the fence, stuck on the fence with the
7 bar. Then I tried again and again and then I was about to
8 pass, able to pass through.
9 Q. After you passed through the fence what happened next?
10 A. That's the time when the bomb exploded.
11 Q. And what happened to you when the bomb exploded?
12 A. I went to Ngala.
13 Q. I'm sorry?
14 A. I went to Ngala.
15 Q. Ngala up country in Kenya?
16 A. No.
17 Q. If you could repeat the last answer? You said: I went
18 Ngala?
19 A. It's a town within Nairobi.
20 Q. At the scene of the bombing did you receive any injuries
21 to your hearing?
22 A. Yes.
23 Q. Now, after you left the embassy bombing scene did you come
24 back to work the next week?
25 A. Yes.
2139
1 Q. And had you seen anything that you recognized during the
2 course of over the weekend before you went back to work?
3 A. I saw on the newspaper the person who came out from the
4 car.
5 Q. You saw a picture of the person that you believed came out
6 from the car in the newspaper?
7 A. Yes.
8 Q. Do you recall what day that was?
9 A. Was on Saturday the following day.
10 Q. And when you went back to work did there come a time when
11 you spoke to the FBI about what happened?
12 A. Yes.
13 Q. And did you give a description of the person that you saw
14 get out of the truck and throw the things that exploded?
15 A. Yes.
16 Q. And what do you recall the person looked like?
17 A. He looked like an Indian.
18 Q. And can you describe his build? Was he thin or heavy?
19 A. Was thin.
20 Q. Tall or short?
21 A. Was medium, medium size.
22 Q. Do you recall how tall he was?
23 A. About five inches and, five foot and two inches.
24 Q. Do you recall what color hair he had?
25 A. Black.
2140
1 Q. Do you recall if the person you saw on August 7th had a
2 beard or no beard?
3 A. Was no beard.
4 Q. Glasses or no glasses?
5 A. No glasses.
6 Q. And was he wearing anything on his head?
7 A. No.
8 Q. And did the FBI agents you were speaking to prepare a
9 sketch of the person you described?
10 A. Yes.
11 Q. And I ask you to look around the courtroom and see if you
12 recognize today the person that you saw on August 7, 1998 get
13 out of the truck?
14 A. Yes.
15 Q. Could you point out who it is that you recognize from
16 August 7, 1998?
17 A. Over there.
18 Q. Okay. If you can look at the, if you can describe where
19 he's sitting, the person you recognize?
20 A. The one who is wearing a white hat.
21 Q. Who is he sitting next to?
22 A.