12 March 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 16 of the trial, 12 March 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
2228
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 12, 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
2229
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: Good morning. Everybody be seated,
20 please. Are there any matters which should be addressed
21 before bringing in the jury? Any reason not to bring in the
22 in the jury? The witness is here?
23 MR. KARAS: Yes, Judge.
24 THE COURT: All right. Let's bring in the jury.
25 MR. RUHNKE: Your Honor, there is one question we'd
2230
1 like to ask the jury. There was publicity over the weekend
2 about another terrorist trial in the State of Washington and
3 we just ask your Honor if the jury read anything about a trial
4 in Washington or words to that effect. It mentioned Bin Laden
5 and in the interview it says Cole. There was a lot of
6 publicity about it over the weekend. They may not have seen
7 it as being this case.
8 THE COURT: All right.
9 MR. FITZGERALD: Your Honor, for purposes of clarity,
10 that trial is in California because the venue has shifted, but
11 it involves the State of Washington.
12 THE COURT: All right, West Coast.
13 MR. FITZGERALD: West of the Hudson.
14 DONALD SACHTLEBEN, resumed.
15 (Jury present)
16 THE COURT: Good morning, ladies and gentlemen. I
17 hope everybody had a pleasant weekend. Has anybody read or
18 seen anything in the media about this case?
19 I'm advised that there has been some coverage in the
20 media with respect to a case on the West Coast involving
21 alleged terrorists. Has anybody read or seen anything about
22 that?
23 (No response)
24 I would ask if you see the word terrorist or
25 terrorist trial or anything of that sort, regardless of
2231
1 whether it's this case or not, please avoid reading it. There
2 may be a lot of media attention given to matters allegedly
3 related to terrorists besides this case. Please just avoid it
4 all.
5 I want to also remind you that I've asked you not to
6 discuss the case even amongst yourselves.
7 Agent Sachtleben, the Court reminds that you your
8 still under oath. The government may proceed.
9 MR. KARAS: Thank you, your Honor.
10 DIRECT EXAMINATION (continued)
11 BY MR. KARAS:
12 Q. Good morning.
13 A. Good morning.
14 Q. Now, Agent Sachtleben, you recall describing last week the
15 process that was in place for the collection of items from the
16 crime scene near the embassy in Nairobi?
17 A. Yes, sir.
18 Q. Before those pieces were collected and brought back to the
19 United States, did you have a chance to review each piece?
20 A. Yes, sir, I did.
21 MR. KARAS: Your Honor, may I ask that Mr. Sachtleben
22 be allowed to step down?
23 THE COURT: Yes.
24 (Witness left stand)
25 Q. Now, Agent Sachtleben, if you could take a look at the
2232
1 pieces collected here on this middle table and begin with
2 Government Exhibit 830. If you can tell us what that is?
3 A. I recognize this piece here to be a portion of the fence
4 that was a security fence that was around the United States
5 embassy in Nairobi.
6 Q. Could you point on the model that's marked as Government
7 Exhibit 800 where that fence is?
8 A. The security fence on the model is represented by a,
9 they've done it on the model here, it's this clear plastic
10 fence. You can see that the modelmakers have actually drawn
11 some black lines on that clear plastic. The vertical black
12 lines represent these pieces of the fence.
13 Q. And could you describe for us what conclusions you drew
14 from your analysis of that piece?
15 A. Well, when I saw this at the scene in Nairobi or what I
16 recognized, first of all, was that this piece of metal had
17 gone through a significant impact by high explosive charge.
18 Q. What in particular led to you that conclusion?
19 A. Well, first of all, the shape. As you look at this piece,
20 this is a fairly heavy piece of metal, and I recognized again
21 that this is a piece of fence, and I saw that at the, on the
22 security fence in the areas that were not affected by the
23 explosion they were nice and straight.
24 This piece is twisted almost into a corkscrew
25 fashion. Then there is also a number of impact marks here
2233
1 which I recognize to be what I would call high explosive
2 effects.
3 Q. And is that piece damaged on both sides?
4 A. There is some damage on this side of the piece, but mostly
5 what I see on this side of the piece is where the explosive
6 effects have actually gone completely through the piece. So
7 the vast majority of the damage is on this side, which I
8 believe was facing the explosion.
9 Q. Thank you, Agent Sachtleben. If you want to put that
10 piece down.
11 If you could look at the piece that's marked as
12 Government Exhibit 833. Can you tell us what that is?
13 A. This is a portion of a what I would refer to as a bollard
14 or I guess more commonly you think of it as a post. These
15 were part of the security perimeter of the embassy in Nairobi.
16 Q. Again, if you could use the model and point out where
17 those bollard posts were?
18 A. The posts are these little short black pieces of doweling
19 that you see around the perimeter here of the embassy.
20 They're fairly similar to what you see around this courthouse
21 here out on the street. They're just maybe about two or three
22 feet high, made for some fairly heavy metal, and in Nairobi I
23 believe that these were also filled with concrete to make them
24 more resistant to say vehicles being driven up on to the
25 sidewalk around the embassy.
2234
1 Q. What can you tell us about the damage to that piece?
2 A. Well, first thing I noticed was again how it had been
3 almost crushed and flattened. That again tells me that this
4 was hit by a high explosive shock wave. Secondly, I can see
5 the what I would call here the pitting or cratering. I think
6 on Thursday I may have referred to some of the effects from
7 high explosives. The hot gases and the hot particles of
8 unconsumed explosive will strike this at very high rate of
9 speed, and make these impact marks on the metal. There is
10 also some evidence of melting.
11 The temperature that we would typically see from a
12 large quantity of high explosives could be as high as five
13 thousand degrees, and when something like this is very close
14 to that amount of explosives, when they detonate, you can
15 actually get a little bit of this melting along the edges
16 here.
17 Q. Now, with respect to the item marked Government Exhibit
18 838 which I believe is right in front of you there.
19 A. Yes, it is.
20 Q. If you can tell us what that is?
21 A. I recognize this piece to be a fragment, that is a portion
22 of a pistol slide. This is, on a pistol this is the portion
23 that rests along the top and houses the barrel and the
24 chamber.
25 Q. What can you tell us about the damage to that piece?
2235
1 A. Well first of all, it's not intact. That is there should
2 be more to it. So there's almost a half of this pistol slide
3 that's missing. Secondly, it's twisted somewhat like this
4 piece was twisted, and there are a couple of impact marks on
5 it. I would say that this piece had been very close to a very
6 large explosion.
7 MR. KARAS: Your Honor, may we share this piece with
8 the jury?
9 THE COURT: Yes.
10 Q. If you could just hand it up to Juror No. 1 at the end
11 there. Thank you, Agent Sachtleben.
12 Now, the other pieces that are on this table and for
13 the record marked as Government Exhibits 829, 831, 832, and
14 834 through 837, can you just generally tell us what those
15 pieces are?
16 A. Generally what we have on the table here with the
17 exception of one piece which is Government's 831, these are
18 portions of the embassy security fence that are similar to the
19 item that I described previously which is government's 830.
20 Government's 831 would appear to me to be another portion of
21 the bollard posts.
22 Q. Now, Agent Sachtleben, did you also find that there were
23 what appeared to be vehicle parts in the vicinity of the
24 American Embassy?
25 A. Yes, I did.
2236
1 Q. And if you could go to the table to your left there, and
2 if you could begin with Government Exhibit 821. It should be
3 on the left part. Yes. If you could describe that piece for
4 us?
5 A. Government Exhibit 821 here I recognize this to be the
6 portion, a portion of a frame of a truck.
7 Q. What can you tell us about the damage to that piece?
8 A. Well, first of all, this piece is, the frame of a vehicle
9 is one of the strongest parts of a vehicle from my experience,
10 and this piece here is almost completely folded over on
11 itself. There is quite a bit of corkscrewing or twisting of
12 the metal. To me these are all indications that this piece
13 was extremely close to a very large explosion.
14 Q. And with respect to Government Exhibits 816 and 817 if you
15 could tell us about the damage to those pieces and what they
16 are?
17 A. Okay. Government's 816 which is this piece here and
18 Government's 817 which is this piece here I recognize these to
19 be parts of the chassis of a truck and both of these parts
20 have been twisted, torn, pitted. Once again they appear to me
21 that they were in very close contact with a large quantity of
22 explosives that detonated.
23 Q. If you could take a look at Government Exhibit 815 which I
24 think is just to the right of where your hand is now, and if
25 you could tell us what that is?
2237
1 A. Government's 815 is again I recognize this to be
2 consistent with a portion of a frame of a truck and this piece
3 here has some of those same damage that I noticed on the other
4 pieces.
5 Q. Are there any markings on that piece?
6 A. Yes. On this piece I noticed that there was some letters
7 and a number that were stamped into the piece.
8 Q. For the record what is stamped in there?
9 A. I read the letters B as in Bravo, U as in Union, and the
10 number 6.
11 MR. KARAS: Your Honor, if we could have this piece
12 published to the jury as well?
13 THE COURT: Yes.
14 Q. Agent Sachtleben, if you could take a look at Government
15 Exhibits 822 and 823 and tell us what those are?
16 A. Collectively Government Exhibits 822 and 823 I recognize
17 these to be the fragments of a rear axle from a truck.
18 Q. Which piece do you have there in your hand?
19 A. I'm currently holding Government's 822.
20 Q. Now, with respect to Government Exhibit 823, can you tell
21 us about the damage to that piece?
22 A. Government's 823 when I saw this at the scene in Nairobi,
23 what I recognized here was a very directional type of damage.
24 That is, the metal that you see here, this is the axle
25 portion, that is the part that drives the wheels, and there is
2238
1 a housing over it, there is a metal housing that contains like
2 the gears, that is the differential that turns the axle and
3 what you can see here is that the metal has actually been
4 pushed down against this heavy rod here, pushed apart, folded
5 over and in some cases actually partially melted.
6 This would indicate to me that an explosive shock
7 wave had hit this very directly and from a very close
8 distance.
9 Q. From which direction?
10 A. From above.
11 Q. Thank you.
12 Now, with respect to the remaining pieces on that
13 table, and for the record Government Exhibits 818, through
14 820, 824 through 828, if you could just tell us generally what
15 those pieces are?
16 A. The remaining pieces on this table here are portions of a
17 truck. They range from the additional pieces of the chassis
18 such as Government's 824 which I recognize to be a front axle,
19 to portions of the engine of a vehicle.
20 For example, this piece here which is Government's
21 825, this is a crankshaft which is found inside the engine
22 block of a vehicle.
23 Q. And with respect to Government's 826 if you could tell us
24 what that is and what the damage to that piece was?
25 A. Government's 826 is this piece right here. I recognize
2239
1 this piece to be part of the steering assembly of a vehicle.
2 It's commonly referred to as the Pitman arm.
3 Q. And can you tell us about the damage to that piece?
4 A. Well, damage to this piece, first of all, I know that
5 Pitman arms when they're manufactured are generally straight.
6 So that's the first thing is that there is definite twist to
7 this piece. Second thing is that there is explosive damage,
8 that is, that there is extensive cratering and pitting to this
9 one side of the piece here.
10 The other side is largely intact. There is very
11 little damage to this side here, but this side has almost the
12 entire length of it has explosive damage.
13 MR. KARAS: Thank you. If you would want to resume
14 the witness stand.
15 (Witness resumed stand)
16 Q. Agent Sachtleben, did you undertake efforts to determine
17 what identity of the vehicle that goes with the vehicle pieces
18 you just describe?
19 A. Yes, I did.
20 Q. And what did you do?
21 A. Well, in the first instance while we were in Nairobi I
22 contacted representatives of various vehicle manufacturers
23 that were in Nairobi. Basically I went to the service
24 departments of several different vehicle manufacturers and
25 asked them to come take a look at these parts.
2240
1 Q. And what else did you do?
2 A. From talking to the service representatives, a Toyota
3 representative thought that he recognized these as being
4 Toyota parts. So when I got back to the laboratory with these
5 pieces I made contact with Toyota Motor Corporation in Japan.
6 Q. And did you actually meet with Toyota officials in Japan?
7 A. Yes, I did. I went to Nagoya, Japan in 1999, February of
8 1999, and I toured the assembly plant and met with various
9 representatives from Toyota.
10 Q. And did a representative from Toyota come to the
11 laboratory in Washington and review these pieces?
12 A. Yes. On two occasions in both 1999 and 2000 an official
13 from Toyota Motor Corporation, a Mr. Miyage, came to my office
14 to the laboratory and together we went through all of these
15 pieces.
16 Q. Did you go through all of the pieces, all the vehicle
17 pieces seized or just these pieces in particular you talked
18 about?
19 A. Right, yes. I'm glad you pointed that out. We actually
20 went through over six hundred pieces together looking at every
21 piece of metal that we had brought back from the scene in
22 Nairobi.
23 Q. Can you tell us approximately how many of those six
24 hundred pieces that Mr. Miyage reviewed were identified as
25 being Toyota pieces?
2241
1 A. The total number was roughly 50 to 60 pieces that he could
2 say with some degree of certainty came from Toyota. There
3 were quite a few other pieces that appeared to him as being
4 Toyota in origin, but because of the damage to them he really
5 couldn't come up with a definite conclusion as to their
6 manufacturer.
7 MR. KARAS: Now, if we could just show to the witness
8 and to counsel, Government Exhibit 840, please.
9 Q. Agent Sachtleben, I ask you to take a look at the screen
10 there on the left and if you could tell us what that is?
11 A. This is a photograph that I had, that I directed be taken
12 and these pieces here are the pieces that Mr. Miyage
13 identified to me as being from a particular type of Toyota
14 truck.
15 Q. Are some of the pieces that you've testified about earlier
16 today included in that picture?
17 A. Yes, all the pieces that are here on the table are
18 represented in the photograph.
19 MR. KARAS: Your Honor, we offer Government Exhibit
20 840.
21 THE COURT: Received.
22 (Government's Exhibit 840 received in evidence)
23 Q. Now, Agent Sachtleben, based on your surveillance of the
24 vicinity of the embassy and your review of these pieces, did
25 you draw any conclusion about the type of explosive that was
2242
1 used in this bombing?
2 A. Yes. My conclusion was that a very large quantity of high
3 explosives had been detonated in the parking area behind the
4 embassy.
5 Q. And did you draw any conclusions about the identity of the
6 vehicle that was used to deliver that bomb?
7 A. Yes. Based on my observation of the pieces here and my
8 conversations and meetings with the Toyota Motor Corporation I
9 came to the conclusion that it was a Toyota truck that had
10 carried these explosives to the bomb site.
11 Q. And, in particular, the pieces that you testified about
12 earlier today, can you tell us the relationship between those
13 pieces and the bomb delivery vehicle?
14 A. These pieces here, in particular the ones that I held up
15 for the Court, were specifically identified to me as a
16 variant, that is a type of Toyota truck that's known as the
17 Dyna, and a model of Dyna truck, and Dyna is D-Y-N-A, a model
18 of Dyna truck that is known to Toyota as the MDGT variant.
19 Q. And can you tell us what it is about these pieces versus
20 some of the other six hundred that led you to conclude that
21 these pieces were from the bomb delivery vehicle?
22 A. Well, these particular pieces here, these were the pieces
23 that exhibited the most noticeable, the most obvious explosive
24 damage. That is, these pieces in my opinion were very close
25 to, if not immediately touching the explosive charge, to the
2243
1 exclusion of say a vehicle that could have been as close as
2 ten or 15 feet away.
3 Q. Agent Sachtleben, did you have a chance to review where
4 some of these pieces were originally found?
5 A. Yes, I did.
6 Q. And based on your review of those pieces and their origin,
7 did you reach any conclusions about the general orientation of
8 the delivery vehicle when the bomb was detonated?
9 A. Yes, I did.
10 MR. KARAS: If we could display Government Exhibit
11 802C.
12 Q. Now, Agent Sachtleben, the piece that was marked as
13 Government Exhibit 815 that had the BU6 on it, could you tell
14 us what type of piece that is?
15 A. That piece, the piece with the BU6 on it is the part of a
16 frame on a Toyota Dyna that is located in the right front
17 portion of the frame.
18 Q. I believe there is a pen-like object on the screen. If
19 you could make a mark where it was that that piece was found
20 of the right front part of the vehicle?
21 A. Yes, it was located approximately here (marking) which is
22 the Pioneer House.
23 Q. And that appears to be north, northwest of the US Embassy?
24 A. Yes, it is.
25 Q. And roughly northeast of where it is indicated the bomb
2244
1 crater is?
2 A. That's correct.
3 Q. Now, can you tell us about where the two axle pieces were
4 found, Government Exhibits 822 and 823?
5 A. The two axle pieces were located on the other side of the
6 Kenya railway station, roughly 750 or so yards away. That
7 area is not depicted on this diagram, but if I could, I could
8 indicate the direction in which it is.
9 Q. Please.
10 A. (Marking) Pardon my feeble attempt at an arrow there, but
11 that is the going in largely a southeasterly direction away
12 from the embassy and the bomb crater.
13 Q. Those are pieces that belong to the rear axle of the
14 delivery vehicle?
15 A. Yes, that's correct.
16 Q. Now, based on where these pieces were found can you draw
17 for us in the back parking lot the orientation or general
18 sense of where the delivery vehicle was facing when the bomb
19 was detonated?
20 A. All right. I will draw an arrow and the point of the
21 arrow will be the general direction that I believe the front
22 of the truck was facing. So I've drawn an arrow that is
23 pointed in a northwesterly direction.
24 Q. And is your conclusion based on a specific 90 degree angle
25 of the Ufundi House, or is there a margin within which the
2245
1 orientation of the vehicle was situated?
2 MR. BAUGH: Objection, leading.
3 THE COURT: Overruled.
4 A. There is a certainly a range of angle that the, vehicle
5 angle that the vehicle could be facing. I believe that that
6 range of angle forms in effect a cone, if you will.
7 Q. Thank you. No further questions.
8 THE COURT: Mr. Wilford. On behalf of the defendant
9 Odeh.
10 CROSS-EXAMINATION
11 MR. KARAS: Your Honor, if I could just offer as an
12 exhibit what is on the screen now as marked by Agent
13 Sachtleben 802C-D1.
14 THE COURT: Yes, received.
15 MR. KARAS: Thank you, your Honor. (Marked
16 Government Exhibit 802-D.
17 (Government's Exhibit 802-D1 received in evidence)
18 MR. BAUGH: Excuse me. Will the agent's mark also
19 appear permanent on the exhibit that is filed?
20 MR. KARAS: We will print it out.
21 MR. BAUGH: Thank you.
22 MR. WILFORD: May I inquire, your Honor?
23 Q. Yes.
24 BY MR. WILFORD:
25 Q. Good morning, Agent Sachtleben. Am I pronouncing your
2246
1 name correctly?
2 A. Yes, sir.
3 Q. How you doing?
4 A. Very good, thank you.
5 Q. Now, when you conduct an investigation of an bomb crime
6 screen you'd like to have as uncontaminated an area as
7 possible, isn't that correct?
8 A. If we can, but unfortunately the nature of bombing scenes
9 makes that very difficult.
10 Q. But you want to get in as quickly as possible before
11 people move too much stuff around without some direction from
12 you and members of your team, isn't that correct?
13 A. Certainly.
14 Q. For example, when you investigated the Oklahoma City
15 bombing you were there rather quickly, or at least members of
16 your team were there rather quickly, isn't that correct?
17 A. That's correct.
18 Q. And when were you the team leader for the World Trade
19 Center bombing members of your team were there rather quickly,
20 isn't that correct?
21 A. That's correct.
22 Q. When we say rather quickly, we mean within minutes to
23 hours, isn't that correct?
24 A. Hours certainly, yes.
25 Q. Now, with respect to the bombing of the embassy in Kenya
2247
1 you didn't arrive until August 9th; is that correct, at about
2 2:30 in the morning, right?
3 A. That's right.
4 Q. You didn't do anything when you got there 2:30 in the
5 morning in terms of investigating, did you?
6 A. I did not.
7 Q. So you didn't start doing anything until about 7, 8
8 o'clock in the morning, right?
9 A. That's right.
10 Q. So you were already almost two full days time elapsed
11 before you got to commence your particular supervision of any
12 investigation related to the recovery of materials, isn't that
13 correct?
14 A. My supervision, that's correct. Of course there were
15 other people there before me.
16 Q. Well, who was there first?
17 A. Our legal attache, that is the agent who's assigned to the
18 FBI office in South Africa. I believe he arrived on the
19 afternoon of August 7th.
20 Q. But he's not a bomb expert, right?
21 A. I don't know his background. I know that he has had some
22 training in investigation like all FBI agents.
23 Q. I'm sure. But you are an expert in bombs and being able
24 to make determinations with respect to where you recover
25 stuff, isn't that correct?
2248
1 A. That's correct.
2 Q. He doesn't have the same qualifications you do, isn't that
3 correct?
4 A. That's correct.
5 Q. That's why they flew you over to Kenya because you have
6 this expertise, right?
7 A. Yes, sir.
8 Q. So until you got there no one was really conducting the
9 investigation from the same particular perspective of
10 expertise that you have, isn't that correct?
11 A. Perhaps with my depth of knowledge, but there were other
12 FBI personnel that were on the scene who had knowledge of
13 bombing investigations.
14 Q. Well, is it a fact that when you flew over you came over
15 with a whole team of experts?
16 A. I came over actually with a very small crew. The team
17 followed behind me, maybe by about eight hours or so.
18 Q. But all of the experts were being flown in, isn't that
19 correct?
20 A. Yes, for the most part, yes.
21 Q. Is it also true that you couldn't go close to the embassy
22 itself because the rescue and recovery operations were still
23 going on when you arrived and you said I believe on direct
24 that you started on a very far away perimeter and worked your
25 way in, isn't that correct?
2249
1 A. I actually went on to the rubble pile the day I arrived.
2 I looked at that, surveyed it and then directed personnel to
3 other locations.
4 Q. Took pictures of it?
5 A. I did not personally take pictures of it, but photographs
6 were being taken.
7 Q. Were you directing people at that point in terms of the
8 rescue and recovery operation as to perhaps putting rubble
9 that they moved in a particular place or was that not a
10 concern at all?
11 A. My concern was to stay out of their way, let them do their
12 job and be there to observe.
13 Q. Now, when you -- withdrawn. When there is in fact a
14 rescue operation, rescue-recovery operation, as you said, the
15 rubble is just being tossed around, right?
16 A. Yes.
17 Q. And things are being tossed around and there may be some
18 particular items which you would make a conclusion on that had
19 been moved that you didn't particularly find in the place
20 where they were, isn't that a fact?
21 A. That's correct.
22 Q. Now, I want to talk with you for a moment if I might about
23 the explosive device and the placement of it.
24 Is there a parking garage that goes underneath the
25 embassy?
2250
1 A. Yes, there is.
2 Q. And if you wanted to, for lack of a better word, blow up
3 the embassy itself, would you put this truck or bomb delivery
4 vehicle, whatever it may have been, underneath the embassy?
5 Wouldn't that have been optimum effect in terms of
6 blowing up the embassy?
7 A. That's a tough call, because it's going to depend very
8 much on the way the embassy was constructed and whether when
9 you put it in that garage if you put it at a point where it
10 would actually cause the structural supports to collapse. It
11 may or may not.
12 Q. Well, in the World Trade Center case, the bomb was placed
13 under the garage, under the World Trade Center, isn't that
14 correct?
15 A. Actually not under the World Trade Center, the bomb was
16 placed in the garage under the Vista Hotel.
17 Q. And it was an attempt to get under the World Trade Center
18 to effect the structural --
19 MR. KARAS: Objection.
20 THE COURT: Sustained.
21 Q. Sir, in this particular instance in your examination of
22 the embassy, if the bomb had been placed under the embassy
23 would that have any impact on the structure?
24 A. It may have. The embassy was built from extremely sturdy
25 construction and my observation, I'm certainly not an
2251
1 architect or an engineer, but my observation from seeing other
2 bombed-out buildings is that that embassy probably would have
3 withstood a fairly good sized blast without collapsing.
4 Q. When you say a fairly good sized blast one of the
5 magnitude of this one?
6 A. Possibly.
7 Q. But you can't say with any certainty, can you?
8 A. Oh, certainly not. That's just my estimation.
9 Q. Would be fair to say, sir, that if the bomb had actually
10 been placed under the embassy as opposed to on the south end
11 of it that the damage to the embassy itself would have been
12 greater than suffered in this particular damage?
13 A. That's possible. That one is pretty difficult to
14 speculate because, again, it's going to depend on where it
15 exactly is within the building.
16 Q. So you have no way of telling whether or not it would have
17 been greater or not?
18 A. I don't have any magic formula for that one, sir, no.
19 Q. Now, when you went through this recovery process with all
20 the items that are now on the table before the jury, that was
21 done with an intent to try to determine what type of explosive
22 was used, is that correct?
23 A. Not so much the type of explosive, because generically
24 we're just looking to classify it as say a low explosive
25 versus a high explosive, but as to the particular type of
2252
1 explosive, that's almost impossible to do, just from
2 observation.
3 Q. Well, I didn't mean just from observation. You collected
4 these items and in fact sent them back to the FBI lab so some
5 further forensic analysis could be done, isn't that correct?
6 A. But the type of forensic analysis that we did on these
7 pieces was not to identify the type of explosive used.
8 Q. Well, are you aware of whether or not any findings were
9 made as to the type of explosives?
10 A. I am aware that there were findings made to the type of
11 explosive.
12 Q. Sir, could you tell the jury what TNT is?
13 A. TNT is trinitrotoluene. It is a type of high explosive.
14 Q. And what forms does TNT come in?
15 A. TNT is generally manufactured by a casting process. That
16 is raw materials are mixed together, heated up until they're
17 form kind of a liquid slurry, soupy kind of a mixture and then
18 that material can be poured into molds and cast into blocks.
19 Q. Can TNT be ground up?
20 A. Certainly.
21 Q. What happens when it's ground up?
22 A. When it's ground up it becomes more of a powdery granular
23 type of material, but it retains most of its explosive power.
24 Q. That doesn't have the impact inn the manner in which the
25 explosive device will be utilized, does it?
2253
1 A. It could. When you start to grind up material, high
2 explosive, in particular high explosives need a particular
3 density for them to work. If you grind something up and make
4 it into too fine a powder, you can actually decrease the
5 sensitivity of it.
6 Q. And isn't it a fact that when the TNT is ground up that it
7 is dispersed into the air and it can get on clothing and other
8 objects that are in close proximity?
9 A. Certainly.
10 Q. Now, could you tell the jury what PETN is?
11 A. PETN is another type of high explosive. I probably have
12 to go back to my reference book to give you the exact spelling
13 of what the PETN stands for, but suffice it to say it is
14 another variant of high explosives.
15 Q. It's different from TNT?
16 A. Yes, it is.
17 Q. Now, C4, what is that, sir?
18 A. C4 is the designation that the United States government
19 has given to a type of plastic explosive.
20 Q. It's not a chemical explosive, is it? It's just a plastic
21 explosive, isn't that correct?
22 A. Well, all explosives are made from chemicals so certainly
23 C4 is made from a particular type of high explosive. It's a
24 type of high explosive. The main component is an explosive
25 called RDX.
2254
1 Q. The plastic explosives are they used in the detonation
2 devices?
3 A. Plastic explosives can be used like any other explosive.
4 The reason they're called plastic is because there is some
5 materials put into them known as plasticizers, that is it make
6 them pliable. It's kind of like Silly Putty is how it looks
7 and so you can mold it somewhat.
8 Q. Now, Agent Sachtleben, when the collection and evidence
9 gathering was going on were you aware that the Israelis also
10 had people involved in collection and gathering of evidence
11 with respect to the embassy bombing?
12 A. I don't know about gathering evidence. There was an
13 Israeli urban search and rescue team there. That is there was
14 a group of Israelis who had come down to assist the Kenyans in
15 the rescue of the wounded from the you Ufundi House.
16 Q. Are you aware, sir, that the Israelis conducted their own
17 analysis forensic analysis of materials recovered from the
18 bomb scene?
19 A. Yes, I'm aware that they took away some samples from the
20 scene.
21 Q. Did they share that information with you?
22 A. I've seen a report, yes.
23 Q. And are you aware of the results of the Israeli forensic
24 examination?
25 A. Yes. Generally I'm aware of it, yes.
2255
1 Q. Would you -- and you're also aware of the results of the
2 FBI forensic examination, isn't that correct?
3 A. Certainly.
4 Q. Are those results the same?
5 A. They're not exactly the same, no.
6 Q. Now, sir, when a high explosive device is detonated and
7 you have this explosion would it be fair to say that the
8 explosive material is dispersed and dissipated, it's not going
9 to remain in a large clump, isn't that correct?
10 A. Well, the explosive material isn't necessarily dissipated.
11 What happens during a detonation is that a solid material is
12 chemically changed from that solid into a gas, so that there
13 is actually a molecular change that takes place. Some times
14 material does not react. That is the explosive material
15 doesn't change into the gas. That material is sometimes
16 projected away from the explosion site.
17 Q. But in the recovery process then in this particular case
18 the items that you recovered they didn't have large amounts of
19 explosive material on them, did they?
20 A. I'm not aware that any of these items that are here had
21 any explosive material found on them.
22 Q. They just in fact gave an indication that some charring
23 and pitting had occurred to indicate that it was in fact an
24 explosion?
25 A. Yes. What I looked at was the physical characteristics,
2256
1 that is the appearance and the changes that I observed from
2 what I knew they looked like in their original states and from
3 what they looked like when I saw them at the crime scene.
4 Q. When you were conducting your investigation you also had
5 agents who were particularly assigned to do swabbing of
6 particular material, isn't that correct?
7 A. That's correct.
8 Q. And that swabbing was in fact to gather material to see
9 whether or not there were any traces of explosive devices in
10 that material that they were swabbing, isn't that correct?
11 A. That is correct.
12 Q. And would it be fair to say that that swabbing would not
13 reveal large amount of explosive devices, but what we call or
14 where you would call in your expertise a trace amount, is that
15 correct?
16 A. That is correct.
17 Q. Could you explain to the jury what a trace amount is?
18 A. Well, when an explosive reacts, when it changes from the
19 solid to the gaseous state it leaves very minute in some cases
20 microscopic particles of the chemicals that make up an
21 explosive. Those particles will actually adhere to other
22 surfaces. Very often they don't adhere to the pieces that are
23 the closest to the explosion because of almost a scouring
24 effect that you have on those pieces of metal there.
25 We typically fine those particles away from the scene
2257
1 where they've had a chance to kind of slow down if you will
2 and grab on to things.
3 Q. Because the whole process is that in order to change from
4 a solid to a gas gets heated up and the molecule starts moving
5 very fast, is that correct?
6 A. That's correct.
7 Q. And when it hits something it slows down the momentum and
8 maybe will convert back to a solid or adhere to that
9 particular surface, right?
10 A. That's right.
11 Q. Now, sir, how minuscule can the FBI or forensic analysis
12 go in terms of determining what you described as trace
13 evidence? How small can it go?
14 A. I'd have to probably defer to the chemists to give you
15 exact numbers. I'm aware that it is an extremely small
16 amount. It is certainly smaller than what could be seen with
17 the naked eye, and really we're talking microscopic levels.
18 Q. Even, and a high powered microscope at that, isn't that
19 correct?
20 A. Certainly.
21 Q. Now, sir, the items that are on this table that you
22 described as being from the truck, do those items contain the
23 entirety of the truck parts that you found?
24 A. Oh, no, this is a fairly small number of pieces
25 representative I have what we found.
2258
1 Q. Did you during the course of your investigation recover
2 parts of the truck that would allow you to associate them with
3 the cab of the truck?
4 A. Cab. I'm not -- perhaps you could define that a little
5 more closely?
6 Q. Okay. The cab would be the area where the person who is
7 driving the truck is.
8 A. Okay. Well, I found pieces that were identified to me as
9 for example the brake pedal which I would associate with the
10 cab of the vehicle.
11 (Continued on next page)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2259
1 Q. Where did you find the brake pedal?
2 A. I would have to look -- well, my recollection of the brake
3 pedal was that it was located -- in fact, I think it might be
4 on that table if I am not mistaken. It was located in what we
5 termed the rubble pile.
6 MR. WILFORD: Can we have 802-CDS up again, please.
7 Q. Agent Sachtleben, looking at that particular exhibit,
8 could you demonstrate for the jury where it was that you
9 recovered the brake pedal?
10 A. The best I am going to be able to do is give you the
11 general area of the rubble pile, but I must caution you and
12 say that I have to review the evidence tag on that piece to
13 say in fact that it was from the rubble pile. That is my
14 recollection at this point.
15 MR. WILFORD: Your Honor, with the court's
16 permission, can Agent Sachtleben step down and come to the
17 table?
18 THE COURT: Yes. Agent, tell us the exhibit number.
19 THE WITNESS: Yes, sir. I am referring here to
20 Government's Exhibit 818. This piece here was identified for
21 me as the brake pedal, and the location -- and I was mistaken
22 in my recollection. The location was not the rubble pile.
23 Generator building of American Embassy.
24 Q. Could you return to the witness stand and indicate on
25 802C-DS where that is.
2260
1 Are you OK?
2 A. Yes. The hazards of testifying.
3 If I may be permitted to mark on this.
4 MR. WILFORD: As long as the government has no
5 objection.
6 THE COURT: Go ahead.
7 A. I am going to circle -- this is a building that on this
8 diagram is not labeled, but my recollection is that that
9 square, if you will, is the generator house.
10 Q. This area right here on the exhibit?
11 A. Yes, sir.
12 Q. The container portion of the truck, Agent, did you find
13 any pieces of the container portion of the truck?
14 A. If you are referring to, say, the sheetmetal or the wood
15 or whatever form the rear area of the truck?
16 Q. Yes.
17 A. Not to my knowledge, no.
18 Q. None whatsoever?
19 A. None that could be identified as such. We certainly found
20 fragments of wood and sheetmetal, but none that we could say
21 to any degree of certainty came from this particular Toyota
22 truck.
23 Q. When you were discussing previously with Mr. Karas the
24 location for your estimation of the location of the vehicle,
25 you said that there was a range that it could have been in; is
2261
1 that correct?
2 A. Yes.
3 Q. Would you be kind enough to exhibit that range by drawing
4 it.
5 A. Certainly. What I am drawing is a curved line, and I will
6 put at either line an airhead -- I am attempting to put an
7 airhead -- to indicate that generally that swing could
8 represent the orientation of the vehicle.
9 Q. Of the vehicle?
10 A. Of the truck, yes. The rear end of the truck could very
11 well have been oriented to the either left as you are looking
12 at the diagram or right of that curved line with the airheads.
13 MR. WILFORD: Thank you. No further questions.
14 THE COURT: Mr. Baugh on behalf of the defendant
15 Al-'Owhali.
16 MR. BAUGH: Just a few.
17 CROSS-EXAMINATION
18 BY MR. BAUGH:
19 Q. Good morning, sir.
20 A. Good morning.
21 Q. The Ufundi House collapsed?
22 A. Yes, sir.
23 Q. And the American Embassy did not?
24 A. No, sir, it did not.
25 Q. Did you notice something in the difference of the
2262
1 construction that caused that to occur?
2 A. Again, I am not an architect or engineer but it appeared
3 to me that perhaps the American Embassy had some greater
4 substance to it.
5 Q. When you say substance, did you notice a difference in the
6 amount of reinforcement?
7 A. I never actually saw any of the internal structure of the
8 American Embassy because it was largely intact.
9 Q. What is over-pressure, by the way?
10 A. Over-pressure is the shock wave that is produced in an
11 explosion. If you wanted to perhaps visualize it, if you can
12 think of when you drop a pebble in a pond and you see those
13 ripples that come off when the pebble strikes the pond, that
14 is a kind of visualization of the pressure waves that come off
15 an explosion.
16 Q. Do the pressure waves come in all speeds from all
17 directions or can they be affected by being, for instance,
18 behind the cab of a truck?
19 A. The effect would be negligible based on that quantity of
20 explosives.
21 Q. To destroy the embassy, would it be better to put the
22 device as close to the embassy as possible?
23 A. Certainly.
24 Q. Under the embassy would have been the optimum place to
25 destroy the embassy?
2263
1 A. I don't think I am qualified to judge that. It is
2 possible but there are so many variables that I couldn't say
3 for certain.
4 Q. If the device had been situated under the American
5 Embassy, within these walls contained around here, would that
6 have lessened the damage to these other buildings?
7 A. It could have.
8 Q. Would it have been foreseeable to you, for instance, that
9 if the bomb was placed underneath the embassy, the Ufundi
10 House could have collapsed? Would that have been conceivable?
11 A. It would be possible but perhaps less likely.
12 Q. Would it minimize damage to others, placing the bomb under
13 the embassy?
14 A. Define others.
15 Q. Other than Americans. If you wanted to protect the lives
16 of Kenyans in these other buildings, the Cooperative House and
17 the Ufundi House, would the best place to have place a device
18 been within the walls of the embassy?
19 A. I don't know about the Kenyans in the American Embassy but
20 perhaps the people outside.
21 Q. But it would have helped these people in the other
22 buildings?
23 A. Possibly.
24 Q. Based on what you could observe of the three structures
25 here, would you say that the U.S. Embassy was a more durable
2264
1 building? Better made?
2 A. It held up better than the Ufundi House, and the damage to
3 the Cooperative Bank was similar.
4 THE COURT: Similar to the embassy?
5 THE WITNESS: Yes, sir, similar to the embassy.
6 Q. So the people in the U.S. Embassy would have been better
7 protected than the people outside the building and the people
8 in these other buildings?
9 A. Perhaps -- see if I can break that question down.
10 Q. Would the people inside the embassy building have been
11 better protected than the people standing outside?
12 A. Based on what scenario?
13 Q. The size of the explosion and where it was situated.
14 A. Yes, the people in the embassy were perhaps better
15 protected against, say, collapse but not against blast
16 pressure and the effect of breaking glass.
17 Q. In your training and experience, were you surprised to see
18 that the Ufundi building collapsed entirely?
19 A. Not particularly. Again, I am not an engineer so I can't
20 necessarily say what caused that building to collapse.
21 Q. Didn't you evaluate that in determining the size of the
22 device?
23 A. No, other than just coming to the conclusion that there
24 was a large quantity of explosives present in the parking lot
25 behind the embassy.
2265
1 Q. And the damage from this bomb would have radiated equally
2 in all directions?
3 A. Yes, sir.
4 MR. BAUGH: Thank you.
5 THE COURT: Anything further of this witness?
6 MR. WILFORD: Your Honor, I do have a question based
7 on the questioning.
8 THE COURT: Yes.
9 MR. WILFORD: Your Honor, I just need one second.
10 Your Honor, may I approach the witness with a blank piece of
11 paper?
12 THE COURT: Yes.
13 MR. WILFORD: Which we will mark Odeh AA for
14 identification.
15 CROSS-EXAMINATION
16 BY MR. WILFORD:
17 Q. With the court's permission, I would ask that Agent
18 Sachtleben draw a diagram of the pebble effect that he was
19 discussing with Mr. Baugh. Could you be kind enough to start
20 in the center of the page, Agent.
21 A. Certainly.
22 Q. Thank you.
23 A. What I will do is assume that this entire sheet of paper
24 would perhaps be representative of a pond, and I will draw a
25 circle in the center, put an X in it, and that would represent
2266
1 the pebble dropping into the pond.
2 Now I am going to draw the best I can a series of
3 circles around that, and for simplicity I will just do five,
4 and then I am going to draw some arrows in four directions,
5 leading away from the pebble in the center, if you will.
6 MR. WILFORD: Your Honor, I would ask if the
7 government has an objection to this item coming in.
8 MR. KARAS: No objection.
9 MR. WILFORD: I am offering it in. I would also like
10 to have it published to the jury.
11 THE COURT: It may be published.
12 MR. WILFORD: Subsequent to the publication, I have
13 no further questions.
14 MR. BAUGH: Nothing further.
15 THE COURT: Odeh AA.
16 (Defendant's Exhibit Odeh AA received in evidence)
17 MR. KARAS: Just one question, your Honor.
18 REDIRECT EXAMINATION
19 BY MR. KARAS:
20 Q. Agent Sachtleben, the shock waves you described, can they
21 bounce off those structures and sort of shock back, as it
22 were?
23 A. Yes. Perhaps if I could use one other brief analogy to
24 illustrate that. This, of course, what you see on the screen
25 here, is to the ripple effect. The only problem with this
2267
1 analogy is that we all think of the ripples of a pebble as
2 kind of benign. They gently go off and dissipate at the end.
3 Perhaps if you thought of it more as a billiard table and you
4 think about the rack, the triangle, the billiard balls, and
5 when you pack them very tightly together and you strike the
6 cue ball and the cue ball goes into that triangle and hits it
7 with some force, and those balls are broken apart and go off
8 in all directions, if you do it hard enough and you have a big
9 enough person doing this, they can come off with a great deal
10 of violence, and when they come to the rail of the tables,
11 they bounce and come back and strike each other again. That's
12 what is happening when you take the quantity of explosives,
13 you hit it with a shock wave and break that explosive apart
14 and release its energy.
15 So yes, this diagram here does show just the ripples
16 coming above but what it doesn't show is when they strike the
17 side of a building and bounce back into where the bomb is
18 located, now you have the force going in almost every
19 conceivable direction depending on the angles surrounding it.
20 MR. KARAS: Thank you. No further questions.
21 MR. WILFORD: Judge?
22 THE COURT: Yes.
23 RECROSS-EXAMINATION
24 BY MR. WILFORD:
25 Q. Agent Sachtleben, you are absolutely correct, the shock
2268
1 waves will bounce back, correct?
2 A. Yes.
3 Q. But we are talking about the point of ignition. When the
4 explosive device is ignited, when it first occurs, that is
5 what you are talking about from a pebble being dropped in the
6 stream and it goes out, expands in all directions.
7 A. Yes. It releases from the point of detonation. It may
8 not be the center. From where the explosives are detonated
9 the energy releases and goes out in a 360-degree pattern.
10 MR. WILFORD: Thank you very much.
11 THE COURT: Thank you, Agent. You may step down.
12 (Witness excused)
13 MR. KARAS: Your Honor, the government calls Junichi
14 Myagi.
15 JUNICHI MYAGI,
16 called as a witness by the government,
17 having been duly sworn, testified as follows:
18 (Eugene Nakada was duly sworn as the Japanese
19 interpreter)
20 DIRECT EXAMINATION
21 BY MR. KARAS:
22 Q. Good morning, sir. Can you tell us a little about your
23 education.
24 A. In 1966 I graduated from the University of Yamanashi.
25 Q. What did you study there?
2269
1 A. I studied mechanical engineering.
2 Q. Where did you first begin to work after you graduated from
3 the University of Yamanashi?
4 A. Immediately I was employed by the Toyota Motor
5 Corporation.
6 Q. That is in 1966?
7 A. Yes.
8 Q. For how long did you work for Toyota?
9 A. It has been about 32 years.
10 Q. Where do you work currently?
11 A. This January, I retired as the general manager, one of the
12 general managers, at the Toyota Motor Corporation. Since then
13 I was employed by the subsidiary of Toyota called Araco, where
14 I am general manager of the research and engineering
15 department.
16 Q. What type of work does Araco do? What type of business it
17 is it?
18 A. The Araco Company designs the body of Toyota vehicles that
19 are mounted on a Toyota chassis and frame. We also
20 manufacture the seats installed in the Toyota vehicles.
21 Q. While you worked for the Toyota Corporation, what did you
22 do?
23 A. As soon as I joined the Toyota Corporation, my job was to
24 design, I was assigned to the designing section of the Toyota
25 Dyna company.
2270
1 Q. What type of vehicle is a Toyota Dyna?
2 A. It's, roughly speaking, a 2-ton truck.
3 Q. Between 1966 and 2000, can you tell us about some of the
4 positions you have held within the Toyota company.
5 A. When I first started working I was designing part of the
6 Dyna. By 1975 I was the assistant manager in charge of the
7 overall design of the chassis and frame of the Dyna.
8 Q. Can you tell us -- I am sorry, go ahead.
9 A. By 1985 I was the manager in charge of the overall design
10 of the Dyna frame, plus five other vehicles of the Toyota
11 Corporation. In 1983, I became the manager and I was in
12 charge of the designing of Toyota Dyna as well as five other
13 vehicles. In 1991, I became the general manager responsible
14 for the designing of the frame and chassis of 10 vehicles,
15 including the Toyota Dyna.
16 Q. Can you tell us what exactly a chassis is.
17 A. A chassis is, using a human body as an example, it would
18 be like our leg.
19 Q. What function does it serve for the vehicle?
20 A. It enables the vehicle to be anal to able to run, stop,
21 turn, and that type of function.
22 Q. Can you give us some examples of what are considered
23 chassis parts?
24 A. Front axle, rear axle, steering mechanism, and the frame.
25 Q. Can you tell us what a frame is.
2271
1 A. It's the component that supports these chassis.
2 Q. Mr. Miyagi, are you familiar with a Dyna model known as an
3 MDGT?
4 A. Yes, I am aware of it.
5 Q. Did Toyota start to produce that model before or after you
6 began working for Toyota?
7 A. It is after I started work for Toyota.
8 Q. What role did you have in the production of the MDGT?
9 A. I was responsible for the designing of its chassis.
10 Q. Can you tell us what the M stands for within MDGT?
11 A. M refers to the manual transmission.
12 Q. What about the D?
13 A. It's the type of vehicle referring to -- the D stands for
14 deluxe.
15 Q. And the G?
16 A. It indicates that the truck bed is at a low level and that
17 it is lined with wood.
18 Q. It's a flat bed?
19 A. It's flat, yes.
20 Q. Finally, can you tell us what the T means.
21 A. It refers to the rear tire. It means that on one side
22 there are two wheels, so on the rear there would be a total of
23 four tires.
24 Q. Can you distinguish between the cab and the bed?
25 A. A cab is where the driver and his assistant would be
2272
1 sitting. It's that compartment. The bed would be where the
2 load is carried.
3 Q. In the mid-1980's, Mr. Myagi, can you tell us how much the
4 average MDGT weighed?
5 A. The vehicle itself weighed two tons. With a load it would
6 weigh four tons.
7 Q. Can you tell us in the mid-1980's how long the truck bed
8 was of the MDGT?
9 A. About 3,100 millimeters.
10 Q. Does that translate into approximately 3 meters?
11 A. That's right.
12 Q. Mr. Miyagi, did there come a time that you were asked to
13 go to Washington, D.C. and meet with officials from the FBI?
14 A. Yes, I met them.
15 Q. Do you remember when, approximately, that was?
16 A. The first time it was in June 1999. The second time was
17 also in June, year 2000.
18 Q. What did you do when you went to the FBI?
19 A. I extracted -- there were many parts laying around. From
20 there, my job was to identify and extract what belonged to a
21 Dyna.
22 Q. Were you able to find parts that you identified as being
23 from a Dyna?
24 A. Yes, I was able to.
25 Q. Can you tell us whether or not you were able to identify
2273
1 parts that were unique to an MDGT model of a Dyna?
2 A. Yes, there were.
3 MR. KARAS: If we could display Government's Exhibit
4 380, please, which is already in evidence.
5 Q. Mr. Myagi, if you could look to the screen there to your
6 left.
7 A. Yes.
8 Q. Do you recognize what is on the screen?
9 A. This is the Dyna parts that were identified among other
10 others, and were displayed.
11 Q. Can you tell us on which side of the picture are what
12 would have been front pieces of the Dyna appear.
13 A. It's on the right side.
14 Q. And the rear pieces?
15 A. It's aligned on the left side of the screen.
16 Q. Mr. Myagi, when you were involved in the design of the
17 chassis parts, were you also involved in the creation of
18 blueprints or diagrams of these parts?
19 A. Yes, I took part.
20 Q. Mr. Myagi, I would like to have you shown what has been
21 marked as Government's Exhibit 841A through 841F. Take a
22 moment to review each one.
23 A. Yes, I have recognized these.
24 Q. If you want to take a look at all of them and then I will
25 ask you some questions.
2274
1 A. Yes. Yes. Yes. Yes.
2 Q. Mr. Myagi, can you tell us what those exhibits are?
3 A. Those are the design drawings of parts of the Dyna.
4 Q. Does your name appear on those design drawings?
5 A. Yes, I see my signature.
6 Q. Are they fair and accurate depictions of the design
7 drawings that you participated in creating?
8 A. It's the same thing.
9 MR. KARAS: Your Honor, the government offers
10 Government's Exhibits 841A through 841F.
11 MR. WILFORD: No objection.
12 THE COURT: Received.
13 (Government's Exhibits 841A through 841F received in
14 evidence) kilo.
15 MR. KARAS: Your Honor, may I ask that Mr. Myagi be
16 asked to step down and approach the exhibit table?
17 THE COURT: Yes.
18 Q. Mr. Myagi, if you would like to put them on, there is a
19 pair of gloves there. Mr. Myagi, could you take a look at the
20 piece marked with little yellow stickers 816, which should be
21 towards the left side of the table.
22 A. Yes.
23 Q. Could you tell us what that part is.
24 A. This is a support assembly to support the rear spring
25 suspension on the rear.
2275
1 Q. Can you tell us whether or not that part is unique to the
2 Dyna MDGT model?
3 A. Yes.
4 Q. Did you help design that part?
5 A. Yes, I participated.
6 Q. And looking at the drawing that is marked as Government's
7 Exhibit 841A, if you could point to where that part appears,
8 on the diagram. The piece you just identified, is it on that
9 diagram?
10 A. This portion is drawn right in. This portion is right
11 there.
12 Q. Referring to the lower left-hand corner of the diagram.
13 A. This portion is reflected.
14 Q. If you could take a look at the piece marked as
15 Government's Exhibit 817, which should be near the piece you
16 just picked up.
17 A. Yes, I found it.
18 Q. Can you tell us what that piece is.
19 A. It's part of a support bracket that supports the spring
20 suspension assembly.
21 Q. Did you help design that piece?
22 A. Yes, I participated.
23 Q. If you could look at the diagram marked as 841B and point
24 to where that appears on the diagram.
25 A. Yes, it's reflected there.
2276
1 Q. By the way, does your name appear on that diagram marked
2 as 841B?
3 A. Yes, that's where it is written.
4 Q. Down at the bottom right, for the record.
5 A. Yes.
6 Q. Mr. Myagi, if you could put that piece down, and just
7 point to Government's Exhibits 822 and 823. I think 823 is
8 just to the right of the piece you just had.
9 A. Yes, I see.
10 Q. Can you tell us what those are.
11 A. This is portion of the Toyota Dyna rear axle assembly.
12 Q. Can you tell us whether or not those pieces are unique to
13 the MDGT model?
14 A. Yes.
15 Q. What is the distinguishing characteristic of those pieces
16 among the other Dyna rear axle pieces?
17 A. As you can see, this has only four holes to mount the
18 part. All others will have six holes to mount.
19 Q. Did you help design the rear axle piece for the MDGT?
20 A. Yes. It's my design.
21 Q. And if you look at the diagram that is marked as 841C, can
22 you point to the four holes in the diagram.
23 A. Yes.
24 Q. If you could just point to where they are on the diagram.
25 A. The four holes here are reflected there.
2277
1 Q. Mr. Myagi, if you could take a look at what is marked
2 Government's Exhibit 821, just to the right of the axles.
3 A. I found it.
4 Q. Can you tell us what that piece is.
5 A. This is part of a Toyota Dyna frame, the rear portion.
6 Q. Is that piece unique to the MDGT?
7 A. Yes.
8 Q. Does it appear on that diagram behind you?
9 A. Yes, it's drawn there.
10 Q. Which, for the record, is marked as 841D.
11 Mr. Myagi, could you take a look at the piece marked
12 as 815. What piece is that?
13 A. It is a fragment of the front portion of the Toyota frame,
14 Toyota Dyna frame.
15 Q. Can you tell us if it's the left or the right portion?
16 A. This belongs to the right side.
17 Q. How do you know that?
18 A. There is a frame number marked there. A frame number like
19 this is always stamped on the right side.
20 Q. Can you tell from the frame number if that's a Toyota Dyna
21 part?
22 A. Yes, I recognize.
23 Q. Just by your right hand there, if you could take a look at
24 the brake pedal marked as 818, and do you see the number 82
25 stamped on that part?
2278
1 A. Why, it's marked there.
2 Q. Can you tell us whether or not you recognize that as a
3 Dyna brake pedal?
4 A. It shows that it belongs to a Dyna with a right steering
5 wheel.
6 Q. And if you could take a look at what has been marked as
7 828, just by your right hand there.
8 A. Yes, I see.
9 Q. Can you tell us what that is?
10 A. This is part of a Toyota Dyna front axle.
11 Q. Is there anything about that part that tells you whether
12 that part was used in a right side or left side driver
13 vehicle?
14 A. On the vehicle it would be roughly in this position, and
15 facing the front, to my front would be the front. Therefore,
16 it can be said that this belongs to the right side.
17 Q. Are there any markings on that piece that tell you which
18 side the driver is on?
19 A. Yes. Here is stamped UR.
20 Q. Thank you. If you could take a look at what has been
21 marked as Government's Exhibit 826, which I believe is the
22 Pittman arm. Can you tell us what that part is used for.
23 A. It's attached to the steering gearbox. As the steering
24 wheel rotates, it moves back and forth.
25 Q. Could you, if you sort of face the table, show the jury
2279
1 how that piece is oriented, which is the front and which is
2 the back.
3 A. This is way up front of the vehicle. It's on the right
4 side. So the front of the vehicle will be in this way.
5 Q. Do you see any damage on that piece?
6 A. Yes, I see damage on that side.
7 Q. The side that you say you see damage on, which way would
8 that be facing? To the front of the truck or the back?
9 A. The vehicle when facing front, this would point to the
10 rear side of the front.
11 Q. Is that piece used in all Toyota Dyna trucks?
12 A. Just there is a letter P stamped right there. This
13 indicates that it is used only for power steering models.
14 Q. Do you see that part on the diagram marked as 841F?
15 A. That's the portion and that's where the letter P appears.
16 Q. Thank you. Do you see an engine block on that table?
17 A. I see one component that belongs to an engine.
18 Q. Can you tell us whether or not that type of engine block
19 was used in Toyota Dyna MDGT vehicles?
20 A. This is the component from a B type engine which is also
21 used in the --
22 Q. In MDGT vehicles?
23 A. Yes, it is being used.
24 Q. And I believe for the record that is Government's Exhibit
25 825.
2280
1 MR. KARAS: I have no further questions. Mr. Myagi,
2 if you would like to resume the witness stand.
3 MR. RICCO: Judge, can he stay there?
4 THE COURT: Yes, certainly. Would you ask the
5 witness to go back to the table. Cross-examination by Mr.
6 Ricco on behalf of defendant Odeh.
7 CROSS-EXAMINATION
8 BY MR. RICCO:
9 Q. Good morning, sir. Many parts that we see here are of
10 cast iron; isn't that correct?
11 A. Cast iron is only a portion of the displayed items.
12 Q. Yes, sir. And other pieces are forged steel; isn't that
13 correct?
14 A. Yes.
15 Q. The cast iron is used in the undercarriage of the vehicle
16 so that it can withstand great weight; isn't that correct?
17 A. Although only cast iron part would be shown right there,
18 yes, cast iron materials are down there.
19 Q. And this would be Government's Exhibit 827.
20 A. Yes.
21 Q. And other pieces that are here are forged steel; isn't
22 that right?
23 A. Most appear to be that way but there are some which are
24 already excluded in a board form.
25 Q. These materials are used so that they can withstand great
2281
1 weight and pressure over a long time period?
2 A. Yes.
3 Q. The destruction that we see to these parts, for example, a
4 car accident could not have caused this type of destruction;
5 isn't that correct?
6 A. That's correct.
7 Q. This was caused from a powerful force; isn't that right?
8 A. That's what I figure.
9 Q. Right. To get the crankshaft out of an engine, out of an
10 engine block, takes a great amount of power and force; isn't
11 that correct?
12 A. That's correct.
13 Q. The bed area of the truck, the Toyota truck, doesn't have
14 a covering, right?
15 A. Could you explain that portion, the cover.
16 Q. The design of the truck has a flat bed which is made of
17 wood, right?
18 A. Yes.
19 Q. Is the flat bed area covered?
20 A. Some have covers, others don't.
21 Q. Are you able to tell us whether or not this vehicle had a
22 cover or not?
23 A. No, I am not able to.
24 Q. Because there were no parts recovered from the cover that
25 Toyota makes that is present here; isn't that right? I will
2282
1 rephrase the question.
2 Toyota makes some trucks with a cover, but those
3 covers are used with a different type of material than the
4 materials we see here on the table; isn't that right?
5 A. That is correct.
6 Q. What type of material is used for the cover on the Toyota
7 truck?
8 A. There are so many different types of cover that I am not
9 able to generalize.
10 Q. And I don't want you to. But certainly the covers are not
11 made from cast iron and the type of heavy material and metals
12 that we see here.
13 A. That's correct.
14 (Continued on next page)
15
16
17
18
19
20
21
22
23
24
25
2283
1 MR. RICCO: I have no further questions. Thank you
2 very much.
3 THE COURT: Anything further of this witness? Any
4 redirect?
5 MR. KARAS: No, your Honor. Thank you.
6 THE COURT: Thank you, sir. We will take our
7 mid-morning recess.
8 (Witness excused)
9 (Jury excused)
10 THE COURT: We will take a recess.
11 (Recess)
12 (Continued on next page)
13 (In open court; jury present)
14 THE COURT: Ladies and gentlemen, I understand you
15 had some questions and I got a message from the jury
16 commissioner, Mr. Rogers, saying that he will see you at lunch
17 tomorrow when he distributes checks and he will be able to
18 answer those questions. I don't know what they were, but they
19 are not forgotten.
20 The government may call it's next witness.
21 MR. BUTLER: Your Honor the government calls Said
22 Salim Omar.
23 SAID SALIM OMAR,
24 called as a witness by the government,
25 having been duly sworn, testified as follows:
2284
1 DIRECT EXAMINATION
2 BY MR. BUTLER:
3 Q. Mr. Omar, how old are you, sir?
4 A. I'm thirty-one years old.
5 Q. Where do you live?
6 A. In Mombasa, Kenya.
7 Q. And how are you employed?
8 A. I was employed in warehouse company in Mombasa.
9 Q. And when did you cease being employed in a warehouse
10 company in Mombasa?
11 A. Last year, December.
12 Q. And were you employed there in 1998?
13 A. I was employed there as from 1993.
14 Q. And also in 1998?
15 A. Up to 2000.
16 Q. Are you involved in any other businesses?
17 A. Of course.
18 Q. What other business are you involved in?
19 A. Poultry farming.
20 Q. Were you involved in your poultry farming business in 1998
21 as well?
22 A. As from 1996 to date.
23 Q. And did there come a time when you purchased a truck in
24 connection with your poultry business?
25 A. Of course, yes.
2285
1 Q. And do you recall what kind of truck that was?
2 A. Yes.
3 Q. What kind of truck was it?
4 A. It was a Toyota Dyna truck.
5 Q. Approximately when did you purchase that truck?
6 A. It was early 1998, approximately May.
7 Q. Who did you purchase that truck from?
8 A. From Acca Insurance Company based in Mombasa.
9 Q. And could you just describe the truck for us, please? For
10 example, what color was the truck?
11 A. It was a beige color.
12 Q. And what did the back of the truck look like?
13 A. It was an open body truck with an open sides.
14 Q. And was it a flat bed truck in the rear?
15 A. It was a flat bed truck.
16 Q. What was the bed made out of?
17 A. It was made of wooden base, and sides were made of metal
18 sheets.
19 Q. And how many tires were in the rear of the truck?
20 A. Four tiers.
21 Q. And how many tires were in the front of the truck?
22 A. Two tires.
23 Q. And what side of the truck was the steering wheel on?
24 A. Right-hand drive.
25 Q. And approximately how long was the bed of the truck?
2286
1 A. Not less than ten feet.
2 Q. Just explain to the jury briefly, if you can, what types
3 of documents are exchanged when somebody buys a truck in
4 Kenya?
5 A. You first make a document with the person the truck of
6 possessing it from you. Then they transfer from that the
7 person normally signs. The transfer form is normally taken to
8 the registration office in Nairobi to change ownership of the
9 truck to the person possessing the truck.
10 MR. BUTLER: Your Honor, may I approach?
11 THE COURT: Gentlemen.
12 Q. I put before you Mr. Omar what has been marked as
13 Government Exhibits 583 A through D. Do you recognize those
14 documents marked Government Exhibits 583 A through D?
15 A. Yes, I do.
16 Q. And what are Government Exhibits 583A through D?
17 A. First one is a sale document, the second one is an
18 insurance receipt and the third one is an inspection check
19 form.
20 Q. You've only listed three. Let's start first. What's
21 Government Exhibit 583A?
22 A. What's that?
23 Q. What is Government Exhibit 583A?
24 A. This one is a sale document.
25 Q. And what is Government Exhibit 583B?
2287
1 A. It's an insurance form, receipt.
2 Q. And what is Government Exhibit 583C?
3 A. An inspection form.
4 Q. And what is Government Exhibit 583D?
5 A. Sorry. I couldn't see it here. It's an inspection form.
6 Q. Were these documents something that you prepared in
7 connection with your purchase of the vehicle?
8 A. Yes.
9 MR. BUTLER: Your Honor, I offer Government Exhibits
10 583A through D at this time.
11 MR. WILFORD: No objection.
12 THE COURT: Received.
13 (Government's Exhibits Government Exhibits 583A
14 received in evidence)
15 MR. BUTLER: If we could just publish to the jury
16 Government Exhibit 583A, please.
17 Q. Now looking at Government Exhibit 583A what date is listed
18 as the purchase of the vehicle?
19 A. 18 May '98.
20 Q. Going down the page, what is the make of the vehicle
21 listed there?
22 A. It's a Toyota DYNA pickup.
23 Q. Is that consistent with your recollection of the truck
24 that you purchased in May?
25 A. Yes, sir.
2288
1 Q. Now, looking at the chassis number, could you read off the
2 chassis number for the jury there?
3 A. BU61-0001636.
4 Q. And what was the registration number of the vehicle?
5 A. KAG662B.
6 Q. And how much did you pay to purchase this vehicle?
7 A. 240,000 Kenya shillings.
8 Q. Tell me what did you use this vehicle for?
9 A. I used it to, since I am a poultry farmer I used to carry
10 the poultry feed from the manufacturing company to my farm.
11 Q. Did there come a time that you sold this truck?
12 A. Yes.
13 Q. And approximately when did you sell the truck?
14 A. Approximately one and a half to two months from the date I
15 purchased the truck.
16 Q. So that would put it sometime in late June or early July,
17 1998 approximately correct?
18 A. Yes.
19 Q. And who did you sell the truck to?
20 A. I sold it to Mr. Sheikh Ahmed Swedan.
21 Q. Who is Sheikh Ahmed Swedan?
22 A. He's a businessman in Mombasa.
23 Q. And did you know Mr. Sheikh Ahmed Swedan?
24 A. Yes.
25 Q. And how long did you know him for?
2289
1 A. I knew him for a long because he's just our neighbor. He
2 lives three blocks from my father's house.
3 Q. If we could just show the witness just for identification
4 Government Exhibit 123, please.
5 Do you recognize that photograph?
6 A. Yes.
7 Q. Who is depicted in that photograph?
8 A. Is Sheikh Ahmed Swedan.
9 MR. BUTLER: Your Honor, I would offer Government
10 Exhibit 123 at this time.
11 THE COURT: Yes. Received.
12 (Government's Exhibit 123 received in evidence)
13 MR. BUTLER: Your Honor, at this point I think the
14 parties would like it if the Court could read the stipulation
15 to the jury.
16 THE COURT: Yes. May I see counsel at the bench,
17 please.
18 (At the sidebar off the record)
19 THE COURT: Ladies and gentlemen, the parties have
20 stipulated that the Sheikh Ahmed Swedan referred to by Mr.
21 Omar in his testimony is not the Ahmed Sheikh associated with
22 Mercy International relief agency who is referred to by the
23 government witness L'Houssaine Kerchtou during his testimony.
24 The full name of the Ahmed Sheikh referred to by Mr.
25 Kherchtou is Ahmed Sheikh Adan, and he is known also as Ahmed
2290
1 Tawil. The real name of the Sheikh Ahmed Swedan referred to
2 Mr. Omar is Sheikh Ahmed Salim Swedan and is also known as
3 Sheikh Ahmed Swedan and Sheikh Bahamadi.
4 Q. Mr. Omar, I believe you testified that Ahmed Sheikh Swedan
5 was a businessman in the Mombasa, correct?
6 A. Yes.
7 Q. Do you know what business he was involved in?
8 A. Transportation.
9 Q. And when you say transportation, what would he transport?
10 A. He used to transport cargos from the Mombasa port to some
11 warehouses within Mombasa and sometimes up country.
12 Q. And what types of vehicles would he use to do that?
13 A. Long trucks, open vehicles.
14 Q. Did there come a time when Ahmed Sheikh Swedan appearance
15 changed from how you previously knew him?
16 A. Yes, from the picture we see here he appeared changed.
17 Q. How did he change?
18 A. This time when he came to me he had long beard. He put on
19 a Pakistan way of clothing and he looked so religious.
20 Q. And when were you first contacted by Ahmed Sheikh Swedan
21 about possibly selling the truck to him?
22 A. I cannot remember the date, but it was one afternoon where
23 we had just left for afternoon prayers about to go to the
24 office, he came to me and asked me if I would sell the truck
25 to him.
2291
1 Then I jokingly said that if you pay me $10,000 I can
2 sell the truck to you. I never expected that man to just
3 agree with the price so easily as he did. He just asked me to
4 give him the key. I gave him the key of the truck. He went
5 around one of the Mombasa streets to test the truck. Then he
6 came back to me and told me fine. He wanted to pay me the
7 $10,000, but I refused that $10,000. I then asked him if he
8 can pay that Kenya shilling.
9 Q. Approximately in 1998 approximately how many Kenyan
10 shillings was $10,000?
11 A. Approximately 550,000 Kenya shillings.
12 Q. Did Ahmed Sheikh Swedan talk to you about any
13 specifications that he needed for the truck?
14 A. Yes. He first asked me what weight the truck could carry.
15 I then told him I normally carry feed up to three tons to
16 three and a half tons. He then asked me if that weight on the
17 truck if the truck could climb mountains. I told him I live
18 in Kilifi where it's so mountainous and I do it easily
19 everyday.
20 Q. And did you eventually, did you agree to sell the truck to
21 Mr. Swedan at that time?
22 A. Yes.
23 Q. And how were you paid?
24 A. I was paid cash.
25 Q. Who actually paid the money to whom?
2292
1 A. Ahmed Swedan because he wanted to pay me in dollars. I
2 then refused that money in dollars since I'm not used to the
3 dollars currency. I feared that it could be a fake some sort
4 of fake dollars. So I told him to go and change that into
5 Kenya shillings and pay to my brother, because I was going to
6 report to duty.
7 Q. Now, did you ever fill out any of the paperwork connected
8 with the sale of the truck?
9 A. It was very late and I was in a hurry going back to the
10 office. So since Sheik just lives three blocks from my
11 father's house I told him I'm going to make this agreement in
12 my office, then we come and meet here in the evening so that
13 we can have this agreement signed together with a transfer
14 form so as to enable us to change the ownership of the truck.
15 Q. And did you give the keys to the truck to Sheikh Swedan?
16 A. Yes, he did take the keys.
17 Q. And did you ever see him again after that day?
18 A. Up to date I have never seen him.
19 Q. And did anyone ever come back to fill out the paperwork
20 for the sale of the truck?
21 A. No one.
22 Q. Now, did you see the truck again?
23 A. Yes, I saw the truck two days later parked in front of a
24 mosque where we normally pray.
25 Q. And what did the truck look like then?
2293
1 A. It was just as the same as I sold it to him.
2 Q. And did you see the truck again after that?
3 A. Yes. Few days later I saw the truck on my way to my farm.
4 I just came across the truck driving on my way of driving.
5 Q. And what did the truck look like at that time?
6 A. This time it looked different.
7 Q. How did it look different?
8 A. It was covered by metal sheets, covered fully behind, and
9 the body was about one and a half, one to one and a half feet
10 longer than the cabin.
11 Q. And so the entire back of the bed was covered now?
12 A. Totally covered.
13 Q. And when you say that the bed was bigger, was it higher or
14 wider?
15 A. It was higher, not wider.
16 Q. Now, did you have any contact with anybody from Ahmed
17 Sheikh Swedan's family after this sale of the truck?
18 A. Yes. Some days later his brother send his son to my
19 father to collect the log book.
20 Q. And what's the log book?
21 A. It's a legal document showing the ownership of the truck.
22 Q. And did that occur before or after the bombing of the
23 American Embassy in Nairobi?
24 A. That occurred few days after the bombing.
25 MR. BUTLER: No further questions, your Honor.
2294
1 MR. WILFORD: May I, your Honor?
2 THE COURT: Yes. Mr. Wilford on behalf of the
3 defendant Odeh.
4 CROSS-EXAMINATION
5 BY MR. WILFORD:
6 Q. Good afternoon, Mr. Omar.
7 A. Good afternoon.
8 Q. How are you, sir?
9 A. All right.
10 Q. Now, Mr. Omar, the truck that you were talking about when
11 you owned it in fact had holes in the bed so that a container
12 could be placed on it, isn't that correct?
13 A. It's a very small truck that cannot carry containers.
14 Q. No. Let me try to make myself clearer.
15 The third time you saw the truck you indicated that
16 it was completely enclosed the bed of the truck and that it
17 was about an inch or two higher than the cab, is that correct?
18 A. That's correct.
19 Q. Now, that covering that was over the bed, when you owned
20 the truck, the truck was equipped so that the covering could
21 be placed on the bed, isn't that correct?
22 A. No, that is not correct.
23 Q. So it was just flat?
24 A. It was a flat with some side short about one foot, that
25 short side. I had made some holes on those sides so as to
2295
1 have a metal frame cover. In case of rain I used to put a
2 tarpaulin to cover whatever I was carrying to my farm.
3 Q. So you yourself drilled in the holes so a covering of some
4 sort could be placed on it?
5 A. Yes, of the framework.
6 Q. And the covering that you saw on the third time you saw
7 the truck, after you sold it, you said it was metal?
8 A. Yes, metal.
9 Q. And there was no glass on it?
10 A. No.
11 Q. Did you see any doors on it?
12 A. No. From behind?
13 Q. Yes.
14 A. Yes, I saw some doors.
15 Q. You saw doors?
16 A. Yes, there are two shutters.
17 MR. WILFORD: Thank you.
18 THE COURT: Anything further of this witness?
19 MR. BUTLER: No, your Honor.
20 THE COURT: Thank you. You may step down. Thank
21 you.
22 (Witness excused)
23 MR. BUTLER: The government calls to Tamarra Ratemo
24 formerly Kipignor.
25 TAMARRA RATEMO,
2296
1 called as a witness by the government,
2 having been duly sworn, testified as follows:)
3 DIRECT EXAMINATION
4 BY MR. BUTLER:
5 Q. Ms. Ratemo, you're doing it so far, but I just remind you
6 if you keep your voice up and speak into the microphone so
7 everybody can hear you. Thank you.
8 Where are you from?
9 A. I'm from Kenya.
10 Q. And where do you live?
11 A. I live in Nairobi.
12 Q. And how are you employed?
13 A. I work for the public service.
14 Q. And what branch of the public service do you work for?
15 A. I am a senior officer in the real estate section.
16 Q. Do you also earn income by leasing out real estate in
17 Kenya?
18 A. Yes, I do.
19 Q. Are you familiar with a house known as number 43 Runda
20 Estates in Nairobi?
21 A. Yes.
22 Q. Do you own that property?
23 A. Yes.
24 Q. How long have you owned that property?
25 A. Just over ten years now.
2297
1 Q. And about how far from Nairobi is the property?
2 A. 15 kilometers.
3 MR. BUTLER: May I approach, your Honor?
4 THE COURT: Yes.
5 Q. I'd like to show you some photographs that have been
6 marked as Government Exhibits 567A through G, and I'll just
7 ask whether you recognize these photos.
8 A. Yes, I do.
9 Q. And what is depicted in those photographs?
10 A. Please repeat the question?
11 Q. What is depicted in those photographs? Are those
12 photographs of your house at 43?
13 A. Yes, is the front of the house.
14 Q. And each one of those photographs a fair and accurate
15 depiction of your house at 43 Runda Estates?
16 A. Yes.
17 MR. BUTLER: I offer Government Exhibits 567A through
18 G at this time, your Honor.
19 (Government's Exhibits 567A through G received in
20 evidence)
21 MR. BUTLER: If we could publish 567A to the jury,
22 please.
23 Q. What is shown in 567A, Ms. Ratemo?
24 A. The front of the house, the front entrance.
25 Q. If you could tell the jury just approximately how big is
2298
1 the house at 43 Runda Estates?
2 A. It's about ten rooms in all including the kitchen and the
3 garage.
4 Q. How many bedrooms does the house have?
5 A. Four bedrooms.
6 Q. Where is the garage located?
7 A. Just before the entrance.
8 Q. Is the garage attached to the building or is it detached
9 from the building?
10 A. Detached.
11 Q. Detached. What's around the outside of the house at 43
12 Runda Estates?
13 A. The front or the back?
14 Q. The front of the house.
15 A. The front is the garage to the left and then there is an
16 entrance on the front is the kitchen.
17 Q. Before you enter the grounds what's at the front of the
18 house?
19 A. The gate.
20 Q. Is there anything next to the gate?
21 A. There is a small security guard house.
22 Q. And is there anything that is next to the guard house?
23 A. The parking.
24 Q. Why don't we go to 567B. What is shown in 567B?
25 A. That's the lounge.
2299
1 Q. Why don't we go to 567C. What's shown in 567C?
2 A. That is the entrance gate from outside.
3 Q. And is there a wall attached to that gate?
4 A. Yes. The whole house is surrounded by a perimeter wall.
5 Q. What can you see from outside the perimeter wall?
6 A. On this picture --
7 Q. Can you see into the house from outside the perimeter
8 wall?
9 A. No, not much.
10 Q. And where does the front of the house face in relationship
11 to the gate?
12 A. It's facing to the right.
13 Q. Is it on the same level as the gate or is it raised or
14 down from the gate?
15 A. It's slightly down.
16 Q. Why don't we go to 567D. What's shown in 567D,
17 Ms. Ratemo?
18 A. That is the back of the house showing the veranda from the
19 back.
20 Q. Let's go to 567E. What's shown in 567E?
21 A. That's the inside of the yard between the kitchen and the
22 domestic quarters.
23 Q. Is there, in the area inside is there like a courtyard
24 area?
25 A. Yeah, that's a courtyard. That's an open space between
2300
1 the domestic an the kitchen.
2 Q. Could we go to 567F, please. What's shown in 567F?
3 A. That's one view of the house from the back side behind,
4 from the garden side.
5 Q. Let's go to 567G. What's depicted in 567G?
6 A. Those are the two entrances of the garage.
7 MR. BUTLER: May I approach, your Honor?
8 THE COURT: Yes.
9 Q. I am going to show you what has been previously marked as
10 Government Exhibit 582.
11 I ask you to take a moment to look at 582, and I'll
12 ask you whether that is a fair and accurate sketch of the
13 layout of the ground floor of 43 Runda Estates?
14 A. That's correct.
15 MR. BUTLER: I would offer Government Exhibit 582 at
16 this time, your Honor.
17 THE COURT: Received.
18 (Government's Exhibit 582 received in evidence.
19 Q. If we could display Grand Jury Exhibit 582 to the jury.
20 Now, if you could just briefly describe maybe starting at the
21 garage area, what is depicted on this sketch?
22 As you go through the garage where do you go to next?
23 A. From the garage there is a door to the open yard and from
24 the yard you can enter directly to the kitchen. It's one door
25 there. And from the kitchen you can go through. There are
2301
1 two doors in the kitchen, one to go to one room called the
2 family room, and to the dining. Down the hallway there's
3 another door to the lounge. And then at the end of it to the
4 far right is the guest room. And then in the open yard to the
5 left there is two domestic servants. So the total there eight
6 rooms.
7 Q. The courtyard that you spoke about before, where is that
8 located on the sketch?
9 A. Sorry? The --
10 Q. The courtyard that you identified before on the
11 photograph, where is that located on the sketch?
12 A. Between the double garage and the kitchen.
13 Q. And what is that area listed as on the diagram as the yard
14 area?
15 A. It's called a yard.
16 Q. Now, were you renting the property at 43 Runda Estates
17 back in early 1998?
18 A. Yes.
19 Q. In the beginning of 1998 who was your tenant?
20 A. There was a Mr. Bashir.
21 Q. And when did -- approximately when did Mr. Bashir begin
22 renting the house at 43 Runda Estates?
23 A. In mid '96.
24 Q. And directing your attention to about mid -- I'm sorry
25 withdrawn.
2302
1 Did there come a time when Mr. Bashir stopped being
2 your tenant?
3 A. Yes.
4 Q. And approximately when did that occur?
5 A. Mid-March.
6 Q. Of what year?
7 A. 1998.
8 Q. And was there a telephone in the premises at 43 Runda
9 Estates at this time?
10 A. Yes.
11 Q. What was the telephone number?
12 A. The number was 512430.
13 Q. Whose name was the telephone under at this time?
14 A. In the name of Mr. Bashir.
15 Q. Approximately how long had the phone been in the name of
16 Mr. Bashir?
17 A. About one year.
18 Q. When Mr. Bashir decided to end his tenancy what, if
19 anything, did you do about the telephone?
20 A. He went to the telephone company office and he wrote a
21 letter to transfer the number to my name.
22 Q. Approximately how long does it take for that to actually
23 happen after you request a telephone company to change it back
24 to your name?
25 A. About nine months.
2303
1 Q. And was that ultimately done?
2 A. By that time, no.
3 Q. Eventually did the phone go back to your name?
4 A. Yes, it did.
5 Q. About how long after you went to the phone company?
6 A. About nine months.
7 Q. Now, drawing your attention to April, 1998 did there come
8 a time when you were called by a potential tenant for 43 Runda
9 Estates?
10 A. Yes.
11 Q. And who called you?
12 A. There was a Mr. Fazul Abdullah.
13 Q. And was anybody else on the phone with you at that time?
14 A. Yes, there was Mr. Sikander.
15 Q. And had you ever spoken to these people before?
16 A. No.
17 Q. Could you tell us about your conversation with Mr. Fazhul
18 Abdallah and Mr. Sikander on that day?
19 A. They had seen the advert that the house was vacant so they
20 called, they expressed their interest that they wanted to rent
21 the house.
22 Q. And did you tell them how much it cost to rent the house
23 at that time?
24 A. Yes, I told them the amount, but they wanted to, they
25 thought it was too much.
2304
1 Q. How much were you charging to rent 43 Runda Estates at
2 that time?
3 A. I was charging about 55,000 Kenya shillings.
4 Q. Was that per month?
5 A. That's per month, yeah.
6 Q. And what happened after that conversation?
7 A. They said that they thought about it and call me again.
8 Q. Did you see them again?
9 A. They called again about three two to three days.
10 Q. Who called?
11 A. I think it was Mr. Sikander because of the language.
12 Q. You had difficulty communicating with --
13 A. Fazhul could not, I couldn't understand him.
14 Q. And what was discussed during that telephone call?
15 A. That they had agreed to pay the amount that I requested,
16 50,000.
17 Q. And did you see them again after this telephone
18 conversation?
19 THE COURT: When you say "see again," had you seen
20 these people?
21 THE WITNESS: No, I hadn't.
22 Q. I'm sorry. Did you have any further contact with them
23 after this telephone conversation?
24 A. No. They called again.
25 Q. They called again?
2305
1 A. They were willing to take the house at that amount. They
2 this agreed on the phone 50,000.
3 Q. Just so we can be clear, you had your first telephone
4 conversation, correct?
5 A. Yes.
6 Q. And then you spoke with Fazhul and Sikander, correct?
7 A. Yes.
8 Q. And then you had a second telephone conversation, correct?
9 A. Yes.
10 Q. And was it during the second telephone conversation that
11 they agreed to pay the amount for the lease?
12 A. Yes.
13 Q. When is the next time that you had contact with Fazhul and
14 Mr. Sikander?
15 A. During that second telephone conversation we made an
16 appointment to meet at the house.
17 Q. And --
18 A. This it was two, three days later or I don't remember
19 exactly.
20 Q. Did you eventually meet at the house?
21 A. Yes.
22 Q. And what happened at that meeting at the house?
23 A. I saw my prospective tenant, had asked them a few
24 questions, asked him a few questions, and we agreed that we
25 sign an agreement.
2306
1 Q. Did you sign the agreement at that meeting?
2 A. No. We made another appointment.
3 Q. And who did you understand was going to be the actual
4 tenant at 43 Runda Estates?
5 A. Mr. Fazhul.
6 Q. And how long did he want the lease for?
7 A. He wanted the house for a short length which was five to
8 six months.
9 Q. And was there any discussion of who would actually sign
10 the lease?
11 A. Yes.
12 Q. And who did you understand would actually sign the lease?
13 A. Mr. Sikander would. Mr. Fazhul told me Mr. Sikander would
14 sign the lease on his behalf because he was not a Kenya
15 citizen.
16 Q. And did Mr. Fazhul tell you anything about why he needed
17 such a large house?
18 A. Yes, he said he had a family and he had some business
19 people who would be coming to visit frequently.
20 Q. And what kind of business people?
21 A. He said the kind of people that are dealing with, they are
22 trading in gold and they would come from Dubai.
23 Q. I show you what has been admitted as Government Exhibit
24 110 into evidence. Do you recognize the person depicted in
25 that photograph?
2307
1 A. Yes.
2 Q. Who is that?
3 A. Mr. Fazhul Abdallah.
4 Q. Now, during this meeting at 43 Runda Estates did you, was
5 any money exchanged at that time?
6 A. No.
7 Q. And as a result of this meeting what did you do?
8 A. We made an agreement to meet, we agreed whereby the
9 agreement would be signed and they would pay.
10 Q. How long after that meeting at 43 Runda was the next
11 meeting supposed to take place?
12 A. It was within two to three days.
13 Q. Did that meeting occur?
14 A. Pardon me, please?
15 Q. Did you actually have that meeting?
16 A. Yes.
17 Q. Where did that meeting take place?
18 A. In my office.
19 Q. And who was at that meeting?
20 A. Mr. Sikander and Mr. Fazhul.
21 Q. And what took place at that meeting?
22 A. We signed the agreement and they paid 30 percent.
23 Q. And --
24 A. Two months deposit and one months rent.
25 Q. And how were you paid?
2308
1 A. He paid in cash.
2 Q. And in what, Kenya shillings?
3 A. Yes, Kenya shillings, yes.
4 Q. And during the course of the tenancy who paid the rent?
5 A. Mr. Fazhul.
6 Q. And how did he pay you?
7 A. In cash.
8 Q. And was that normal for you to be paid in cash?
9 A. I would say yes.
10 Q. Did Mr. Bashir pay you in cash?
11 A. No. It was a company leased to the company, paid me by
12 check.
13 Q. And how did you receive your rent from Mr. Bashir?
14 A. Through a company check.
15 MR. BUTLER: One moment.
16 (Pause)
17 Can I approach, your Honor?
18 THE COURT: Yes.
19 Q. I show you what has been marked as Government Exhibit 568.
20 Do you recognize Government Exhibit 568?
21 A. Yes.
22 Q. What's Government Exhibit 568?
23 A. The agreement, the lease we signed.
24 Q. And if you turn to the last page of Government Exhibit 568
25 does your signature appear there?
2309
1 A. Yes.
2 Q. And does anyone else's signature appear there?
3 A. Mr. Sikander.
4 MR. BUTLER: I would offer Government Exhibit 568 at
5 this time, your Honor.
6 THE COURT: Received.
7 (Government's Exhibit 568 received in evidence)
8 Q. Now, on the day that the lease was signed did Mr. Fazhul
9 indicate when he would be moving in?
10 A. Indicated that he, he explained that he would move in
11 immediately.
12 Q. And when was, what was the term of the lease for?
13 A. Six months.
14 Q. And beginning when?
15 A. The first day of May, 1998.
16 Q. And did Mr. Fazhul mention anything that he needed to do
17 before he moved in?
18 A. Yes. He said he wanted to go to Sudan to get his family
19 to get his wife who needed to travel accompanied because of
20 religious reasons.
21 Q. Now, did there come a time when you had some dealings with
22 Mr. Fazhul regarding the telephone service at the house?
23 A. Yes.
24 Q. And what happened regarding the telephone service at the
25 house?
2310
1 A. There was a phone in the house but he had problems ringing
2 international.
3 Q. And why did he ever problems ringing internationally?
4 A. Because the international facility was not provided.
5 Q. What does somebody need to have in order to make an
6 international call in Kenya at that time in 1998?
7 A. You needed, one needed special permission. One needed to
8 prove that you are the owner of the phone, and a special
9 written permission from the telephone service company to be
10 given authority to overseas.
11 Q. Were you contacted by Mr. Fazhul about this problem?
12 A. Yes.
13 Q. And what did you do as the result of that contact that you
14 had from Mr. Fazhul about the problem with the international
15 calling?
16 A. I went, collected him at the house, went to the telephone
17 company office and authorized in writing to he be given that
18 facility.
19 Q. And approximately when did that occur?
20 A. About mid May. Yeah, about around the 20th something.
21 Q. And did Mr. Fazhul mention whether he had been able to
22 make any international calls prior to your visit to the phone
23 company?
24 A. Yes, he did. He said he had talked to the post office,
25 the local post office employee to allow him to call and --
2311
1 Q. How long did Fazhul Abdallah actually stay at the house at
2 43 Runda Estates?
3 A. He stayed for three months.
4 Q. When did he leave the house at 43 Runda Estates?
5 A. He left on the 8th of August, '98.
6 Q. And how much contact did you have with him during this
7 period of time?
8 A. I had about three or four, we contacted him when he would
9 come to pay us, and then there was a visit to the house.
10 Q. Did there come a time when you met his wife and family?
11 A. Yes.
12 Q. When was that?
13 A. The first time I met the wife is when I went to fix the
14 phone, because I went to the house and picked him up. The
15 second is when they made an unexpected visit to my house.
16 Q. And when did that unexpected visit to your house occur?
17 A. Sometime in I think June, can't remember.
18 Q. And who came to your house?
19 A. Mr. Fazhul came to my house with the wife and two
20 children.
21 Q. And you had not been expecting him?
22 A. No, that is unexpected, and it was late at night, 8
23 o'clock, 8 p.m.
24 Q. Had you ever given him your home address before?
25 A. No.
2312
1 Q. And did you ever find out how he knew where your home
2 address was?
3 A. Yes, I did ask him how he came to know where I live and he
4 said he was just within the district.
5 Q. And did they come inside the house?
6 A. Yes.
7 Q. And what happened once they got inside the house?
8 A. When they came in to the house I opened the door. I led
9 them to the lounge we were watching television. And
10 apparently -- my brother was there -- and the wife was dressed
11 all in black including the eyes, and once she entered the
12 lounge, she had to run away because my brother was there.
13 Q. And was there some conversation about where Fazhul was
14 from during this visit?
15 A. Yes. My brother did ask him where he came from and he
16 said he came from Morocco, but according to my brother he
17 thought he came from Yemen.
18 Q. What did Fazhul do, if anything, when your brother said he
19 came from Yemen?
20 A. He was kind of caught in a surprise but he convinced him
21 he came from Morocco.
22 Q. Now, did you see what type of car Fazhul was driving
23 during the time of his visit to you?
24 A. Yes.
25 Q. And what type of car was that?
2313
1 A. He's driving a red car Mitsubishi old.
2 Q. How did you find out what kind of car he was driving?
3 A. This is because we escorted him out, I saw the car and in
4 my yard I have security lights so I was able to see. And he
5 couldn't start the car, so we had to help him to push, and
6 until the car started.
7 Q. And did you see him in that car on other occasions?
8 A. Yes. Noticed that the car was around when I went to the
9 telephone, the car was in the yard, in the yard at the house
10 in Runda.
11 Q. Now, did there come a time when you took a trip to Europe
12 during this period when Fazhul was renting the house at 43
13 Runda Estates?
14 A. Yes. Soon after we signed the agreement I traveled to
15 Europe around the 10th of March.
16 Q. Where did you go in Europe?
17 A. I went to London.
18 Q. And did you mention to Fazhul that you were going to
19 Europe?
20 A. Yes.
21 Q. And did he ask you for anything in connection with your
22 trip?
23 A. He asked me if I could buy him a computer part.
24 Q. And did he give you anything in connection with that?
25 A. He gave me a copy of that part, that item he wanted.
2314
1 THE COURT: I didn't get that. He asked you if you
2 would buy a what?
3 THE WITNESS: A computer part.
4 MR. BUTLER: May I approach, your Honor?
5 THE COURT: Yes.
6 Q. I show he you what has been previously marked as
7 Government Exhibit 586. Do you recognize Government Exhibit
8 586?
9 A. Yes, I do.
10 Q. What is that?
11 A. It's a copy of a Sharp adapter.
12 Q. How did you get that document?
13 A. He gave me the copy himself.
14 Q. Who gave that to you?
15 A. Mr. Fazhul.
16 MR. BUTLER: Offer Government Exhibit 586 at this
17 time, your Honor.
18 MR. BAUGH: No objection.
19 THE COURT: Received.
20 (Government's Exhibit 586 received in evidence)
21 Q. The handwriting that's on that document, whose handwriting
22 is that?
23 A. At the bottom of the photocopy that's the handwriting of
24 Mr. Fazhul.
25 Q. What does that handwriting say?
2315
1 A. He say is four pin.
2 Q. And the handwriting on the upper part of the document,
3 whose handwriting is that?
4 A. That's mine.
5 Q. What does that say?
6 A. Adapter.
7 Q. Do you recall what particular part Fazhul was looking for?
8 A. Pardon?
9 Q. Do you recall what particular computer part Mr. Fazhul was
10 asking you to get when you were in London everyone?
11 A. He told me it was an adapter for his computer. That's
12 what he told me. That's why I wrote it in my handwriting to
13 make sure, I get to know what it is.
14 Q. And did you actually pick up that item for him while you
15 were in Europe?
16 A. No.
17 Q. Now, do you recall the day that the United States Embassy
18 in Nairobi was bombed?
19 A. Yes, I do.
20 Q. And is there any particular reason why you remember that
21 day?
22 A. Yes.
23 Q. Why is that?
24 A. I lost a very close relative.
25 Q. And who was that?
2316
1 A. Brother-in-law.
2 Q. And where was he at the time of the bombing?
3 A. He was an employee of the American Embassy.
4 Q. And did you play any role in trying to determine what
5 happened to your brother-in-law during the day of the bombing?
6 A. Yes, I was communicating link because we were calling each
7 other every thirty minutes to get to know who is where and
8 what.
9 Q. And did there come a time on August 7, 1998 when you saw
10 Fazhul Abdallah?
11 A. Yes, he came to my house that night around 8 p.m. Nairobi
12 time.
13 Q. And was anyone with him?
14 A. Mr. Sikander was with him.
15 Q. What happened when Fazhul came to your house?
16 A. He came to tell me that he was vacating the house.
17 Q. And did he tell you why he was vacating the house?
18 A. Yes. He told me his father-in-law has been very ill, had
19 a terminal disease and therefore he have to go home.
20 Q. And what did you do after this meeting with Fazhul and
21 Sikander on August 7, 1998?
22 A. We made an appointment to meet at the house.
23 Q. And when was that appointment for?
24 A. The next day.
25 Q. And did you actually meet Fazhul at the house the next
2317
1 day?
2 A. Yes, he was at the house with Mr. Sikander.
3 Q. And what took place at the house on August 8, 1998?
4 A. We looked around the house to see what was missing or --
5 original tenant you have to leave the house the way you
6 occupied. So I check the house and it all was fine.
7 Q. Was there any furniture in the house at that time?
8 A. No, none.
9 Q. Did you ever see any furniture in the house during the
10 time Fazhul was renting the house?
11 A. There was no furniture at all.
12 Q. And after you checked the house to see if everything was
13 okay, what happened after that?
14 A. He give me my key, he return the key back to me, and there
15 was one key which was missing, so he told me to follow them
16 towards town up to a place where they would give me the other
17 key. That's what I did.
18 Q. Did you have any agreement with regard to the security
19 deposit?
20 A. Yes.
21 Q. What was that agreement?
22 A. The deposit which he left was to redecorate the house, and
23 if, if there was more than required, I would give the balance
24 to Mr. Sikander.
25 Q. When you say "redecorate," what exactly?
2318
1 A. To repaint.
2 Q. Did you see what kind of car Mr. Fazhul was driving that
3 day?
4 A. Yes.
5 Q. What kind of car was that?
6 A. It was a pickup 1200 white car.
7 MR. BUTLER: One moment, your Honor. No further
8 questions, your Honor.
9 THE COURT: Anyone else?
10 MR. SCHMIDT: May I have a moment, your Honor?
11 THE COURT: Yes.
12 (Pause)
13 CROSS-EXAMINATION
14 BY MR. SCHMIDT:
15 Q. Good afternoon. In what language did you communicate with
16 Mr. Fazhul?
17 A. In Swahili and a little French.
18 Q. Did you communicate with him at all in English?
19 A. Not much, not at all I can't remember.
20 Q. What language did you communicate with Mr. Sikander in?
21 A. English and Swahili.
22 THE COURT: Mr. Schmidt --
23 MR. SCHMIDT: Two minutes, that's all.
24 Q. The time in August 8 when they gave up the key, was any
25 other person with Mr. Fazhul at that time?
2319
1 A. Yes, Mr. Sikander was with him.
2 Q. Was there a woman with him as well?
3 A. No.
4 Q. Somebody's sister there?
5 A. Sorry?
6 Q. Was somebody's sister there?
7 A. Not where they give me the key, no.
8 Q. Did you meet Mr. Sikander's, one of Mr. Sikander's sisters
9 at any time?
10 A. Yes.
11 Q. When was that?
12 A. The first time they came to see the house.
13 Q. What language -- did you talk with her at all?
14 A. I did spoke English, the sister of Sikander.
15 Q. Do you recall her name?
16 A. No.
17 MR. SCHMIDT: I have no further questions.
18 THE COURT: Anything further of this witness?
19 MR. BUTLER: No.
20 THE COURT: Any redirect?
21 Thank you ma'am. You may step down.
22 (Witness excused)
23 THE COURT: The government may call the next witness.
24 MR. KARAS: Your Honor, the government calls Ron
25 Kelly.
2320
1 RONALD L. KELLY,
2 called as a witness by the government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. KARAS:
6 Q. Good afternoon, sir. Can you tell us how you're employed?