16 April 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 28 of the trial, April 12, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
3898 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7) 98 Cr. 1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 April 12, 2001 2:30 p.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 3899 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 KENNETH KARAS PAUL BUTLER 5 Assistant United States Attorneys 6 ANTHONY L. RICCO 7 EDWARD D. WILFORD CARL J. HERMAN 8 SANDRA A. BABCOCK Attorneys for defendant Mohamed Sadeek Odeh 9 FREDRICK H. COHN 10 DAVID P. BAUGH LAURA GASIOROWSKI 11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 12 DAVID STERN DAVID RUHNKE 13 Attorneys for defendant Khalfan Khamis Mohamed 14 SAM A. SCHMIDT 15 JOSHUA DRATEL KRISTIAN K. LARSEN 16 Attorneys for defendant Wadih El Hage 17 18 19 20 21 22 23 24 25 3900 1 THE COURT: I am aware of the fact that Mr. El Hage's 2 attorney has not yet arrived. There seems to have been some 3 confusion as to when we would start. 4 MR. FITZGERALD: I apologize to the court for the 5 government being late. We were uniformly -- we did get the 6 notice of the allocutions and we did not notice the change of 7 time, and I apologize for that. 8 THE COURT: We have a very long agenda. I have 9 distributed a document called "Proposed charge to the jury, 10 April 12, 2001," which purports to be a working draft. It was 11 written prior to receipt of the government's response to the 12 defendants' Rule 29 motions. I read the government's 13 response. I am not aware of any immediate changes that have 14 been made, but it should be understood that it was written 15 prior to receiving the government's response and of course 16 prior to anything that may be decided this afternoon. 17 What I would like to do today is take up in order of 18 priority matters which must be resolved for Monday, then to 19 deal with the motions to dismiss and any other matters. The 20 first order of business was going to be the allocution of the 21 defendants with respect to which we will await Mr. Schmidt's 22 arrival. Then with respect to the matters which must be 23 resolved by Monday, there is the question of hearsay, Odeh, 24 Gaudin matter. I don't know what the Somalia matter is, but 25 let's await Mr. Schmidt's arrival, unless -- has it been 3901 1 resolved? 2 MR. FITZGERALD: I think it was almost resolved. I 3 was calling chambers when I found out the matter was at 2 4 instead of at 3. If we put that at the end of the calendar, 5 we may not have to deal with it. 6 THE COURT: I will put it at the end. I think it 7 really doesn't make sense to -- well. Mr. Ricco, is it your 8 understanding that your client wishes to testify or does not 9 wish to testify at the guilt phase of this case? 10 MR. RICCO: Your Honor, Mohamed Odeh will waive his 11 right to testify at the guilt phase of this case and he is 12 prepared to allocute to that. 13 THE COURT: Mr. Cohn, does Mr. Al-'Owhali wish to 14 testify? 15 MR. COHN: With respect, your Honor, I believe that 16 the inquiry is premature. I think forcing a decision today 17 would not be a reliable indicator of what might happen. As a 18 Constitutional matter, this is a decision that is made at the 19 last second, and I believe that it will be made at the last 20 second in this case. If he says something now and changes his 21 mind before this case is over, I don't think he would be bound 22 by it in any event. I don't want to surprise the court. If I 23 had my druthers, I would postpone this inquiry. 24 THE COURT: I scheduled it really more as an 25 accommodation to counsel. It is a matter of sublime 3902 1 indifference to me, but if fully scripted as to what will 2 happen Monday morning till the government rests -- but if you 3 wish to delay it until Monday morning -- 4 MR. COHN: The decision as a matter of law in my view 5 does not come about until Mr. Al-'Owhali's case comes up in 6 turn and he has to make a decision. If I can advise the 7 court -- 8 THE COURT: I think you have said enough. I accept 9 that. Mr. Ruhnke? 10 MR. RUHNKE: We are in exactly the same position, 11 your Honor. 12 THE COURT: Very well. But I take it that insofar as 13 the defendant Odeh is concerned, Mr. Ricco, as you said, you 14 are prepared to have him allocute on his waiver of the right 15 to testify. 16 MR. RICCO: Yes, your Honor, and we are mindful of 17 the fact that the defendant can change his mind, but as we 18 presently stand before the court he has no intention to 19 testify. 20 THE COURT: Mr. Kenneally, would you put Mr. Odeh 21 under oath. He need not rise. 22 (Defendant Odeh duly sworn) 23 BY THE COURT: 24 Q Mr. Odeh, I want to make sure that you understand what 25 your rights are under our system of criminal justice with 3903 1 respect to a defendant testifying or not testifying at a 2 trial. A defendant has the right, if he wishes, to testify in 3 his own defense, and if he elects to testify in his own 4 defense he is then a witness like any other witness and is 5 subject to cross-examination by the government, and he may not 6 refuse to answer questions put to him by the government on the 7 grounds that the answers might incriminate him. The defendant 8 also has a right not to testify, and if he elects not to 9 testify, the jury is explicitly told that no inference can be 10 drawn against him by reason of his not testifying, and the 11 jury is explicitly told that they may not discuss or consider 12 the fact that the defendant has exercised his constitutional 13 right not to testify. 14 The other thing as to which the law is clear is that 15 this is a decision made by the defendant. It is not a 16 decision which the attorney can make for the defendant. It 17 must be a decision made by the defendant freely and 18 voluntarily. 19 Do you understand all of that? 20 DEFENDANT ODEH: No, your Honor. 21 THE COURT: This is a decision that you are making 22 independently and not as a result of any force or pressure or 23 instructions from your attorney? 24 DEFENDANT ODEH: Absolutely. 25 THE COURT: Is there anything further anyone 3904 1 requests? Very well. We will adjourn until the arrival of 2 Mr. Schmidt, who I am told was advised that things were going 3 to begin at 3:00. 4 (Recess) 5 THE COURT: I am advised by Miss Hess, the court 6 reporter, that in answer to my inquiry of Mr. Odeh as to 7 whether he understood what I had said with respect to the 8 right to testify or to waive, that the answer recorded was no, 9 and I think -- 10 MR. FITZGERALD: I think what happened was, she 11 didn't hear the answer, indicated she didn't hear the answer, 12 and then you asked the next question do you waive. The court 13 reporter then indicated that she had not heard the prior 14 answer. I think Mr. -- 15 THE COURT: Let's do it again. 16 MR. FITZGERALD: Yes, right. 17 THE COURT: Mr. Odeh, do you understand what the 18 court said with respect to your right either to testify or to 19 waive your right to testify? Did you understand that? 20 DEFENDANT ODEH: Yes. 21 THE COURT: Do you wish to testify or do you wish to 22 waive your right to testify? 23 DEFENDANT ODEH: I waive my right. 24 THE COURT: And you do so freely and voluntarily and 25 not because anybody has forced that answer upon you? 3905 1 DEFENDANT ODEH: Absolutely not. 2 THE COURT: All right. Mr. Schmidt, in your absence, 3 as you have heard, Mr. Odeh allocuted to his desire to waive 4 his right to testify. Mr. Al-'Owhali and K.K. Mohamed have 5 asked to defer until it is their turn to present the defense 6 or not present the defense. What is your pleasure with 7 respect to that matter? Because we have a long, long agenda, 8 just tell me, do you wish Mr. El Hage allocuted on that? Yes 9 or no. 10 MR. SCHMIDT: May I have a moment on that? 11 THE COURT: Yes, sure. 12 Did you not get a fax indicating the 2:00 and the 13 3:00 and the schedule for Monday? 14 MR. FITZGERALD: We received a fax and whatever was 15 on the fax was on the fax. We knew that you had a 3:00 16 proceeding and that there would be allocutions today. We 17 didn't notice the change of time to 2:00. 18 MR. DRATEL: Your Honor, same with us. We received 19 the fax but neither of us noticed the time change. 20 (Pause) 21 THE COURT: Mr. Schmidt, why don't we defer this 22 until the end of this afternoon. 23 MR. SCHMIDT: Very good, your Honor. 24 THE COURT: The reason I sent the fax was to afford 25 counsel the opportunity in a leisurely fashion to explore the 3906 1 subject with their clients, but like so many other good 2 intentions, that does not seem to have been able to occur. 3 I said what I would like to be able to do today was 4 first deal with any matter which must be resolved on Monday, 5 of which I was aware of two: The issue on behalf of Odeh with 6 respect to Agent Gaudin's failure to identify Odeh, and the 7 government's redirect examination in which Agent Gaudin 8 indicated that Al-'Owhali had said that he was not going to 9 tell everything. That was the subject of a memorandum that I 10 sent to counsel, the memorandum in which I concluded that the 11 rules of hearsay would permit a carefully worded question 12 which elicited a carefully worded response to the effect that 13 there was nothing said by Gaudin with respect to Odeh, and 14 would permit the introduction of the redirect of 15 Mr. Al-'Owhali's statement to Agent Gaudin that he did not 16 intend to tell all that he knew. Has there been any 17 consensual resolution of that issue? 18 MR. WILFORD: Not quite. 19 THE COURT: Absent a consensual resolution of the 20 issue, I will permit the question to be asked as it is set 21 forth in my memorandum, and I will permit the government on 22 redirect to elicit the statement of Al-'Owhali's intention, 23 and that is it. Any attempt to gild the lily, to elaborate, 24 to elicit anything beyond that, beyond those two limited 25 things will be not only subject to objection but will be 3907 1 contrary to the court's direct order that it not be asked. 2 Having resolved that, I think the only other open 3 matter is the so-called Somalia issue. 4 MR. RICCO: Judge, before we move to the so-called 5 Somalia issue, I did receive the government's lengthy letter 6 about what it thought or thinks that we are going to do on the 7 defense case with respect to Agent Gaudin, and let me just 8 advise the court of what we intended to ask Agent Gaudin, 9 notwithstanding what the government thinks. The only question 10 that we had intended to ask Agent Gaudin, and I pose this now 11 so the court is aware, is whether or not he showed a 12 photograph of Mohamed Odeh to Mr. Al-'Owhali, which will 13 require either a yes or no answer from him. That does not 14 require a statement from Al-'Owhali at all, response from the 15 agent at all about what Mr. Al-'Owhali said, and I believe, 16 your Honor, that that is a permissible question to ask the 17 agent because it doesn't call for a hearsay response at all. 18 THE COURT: So you are going to ask the question as 19 posed at page 2 of my memo, which is, and did he, Al-'Owhali, 20 ever mention to you that Mohamed Odeh had anything whatsoever 21 to do with the bombing, the execution of or the planning of 22 the bombing of the United States Embassy, and presumably 23 elicit the response no. 24 MR. RICCO: Judge, at this point we don't even intend 25 to ask that question. 3908 1 THE COURT: What do you intend to ask? 2 MR. RICCO: We do know, and we will abide by the 3 court's ruling, what the response will be but we don't intend 4 to ask that question. 5 THE COURT: What do you intend to ask? 6 MR. RICCO: We merely intend to ask Agent Gaudin 7 during the course of his interview did he show a photograph of 8 Mr. Odeh to Mr. Al-'Owhali. 9 THE COURT: Is that the only question that you intend 10 to ask? 11 MR. RICCO: That's it. 12 THE COURT: Does the government have any objection to 13 that? 14 MR. RICCO: Your Honor, the reason we are limiting 15 that question is because at this point we are prepared to 16 abide by the court's prior ruling striking the testimony and 17 the court's instruction that Mr. Al-'Owhali's statement can 18 only be used for one purpose and that is against 19 Mr. Al-'Owhali. 20 THE COURT: You have that already. 21 MR. RICCO: Yes, we do, Judge. 22 THE COURT: And it has not been stricken. Page 2089 23 of the transcript. "You did not show him a photograph of 24 Mohamed Odeh? No, sir, I did not." 25 MR. RICCO: Your Honor, I note that we did ask the 3909 1 question but I was under the impression during the robing room 2 conference that your Honor had deemed all of that testimony 3 stricken and that you just chose not to inform the jury of it. 4 THE COURT: Well, I did say in the robing room 5 conference that they were stricken and I asked the government 6 to prepare a more specific order striking that testimony, 7 citing the page and line, which order I have not received. 8 Does the government have any objection to that 9 question being asked? 10 MR. KARAS: Your Honor, we don't have an objection to 11 the question being asked. Our only concern is that counsel 12 not be allowed to argue from the question that by not showing 13 the photograph to Al-'Owhali that there is some proof that 14 Odeh therefore is not involved in the bombing. 15 THE COURT: I don't understand that. Something is 16 admissible or it is not admissible. To say it is admissible 17 but you can't make a perfectly logical, rational argument 18 based on it, I don't find that in the rules of evidence. 19 MR. KARAS: Your Honor, I think, as we set forth in 20 our letter dated yesterday, the difficulty is that there is an 21 asymmetry. 22 THE COURT: Do you want then to ask on redirect, was 23 did Al-'Owhali tell you what his intent was with respect to 24 disclosing all of the information he knew of in connection 25 with the bombing? 3910 1 MR. KARAS: Your Honor, the answer to that question 2 is, that would be one question that we would want to ask on 3 redirect but it wouldn't be the only question. 4 THE COURT: What else would you ask? 5 MR. KARAS: We would want to be able to elicit what 6 it was that Al-'Owhali said about the people he did indicate 7 were involved in the bombing -- 8 THE COURT: No, denied. 9 MR. RICCO: Judge, my only response to what the 10 government wants to do on redirect is that it really is 11 outside the scope -- on its cross -- it really is outside the 12 scope of the direct of calling this agent. If the question is 13 did you ever show the defendant this photograph, that doesn't 14 call for an affirmative answer with respect to Al-'Owhali. 15 THE COURT: No, but what it is relevant to is why he 16 wasn't shown it, and relevant to that question would be his 17 understanding that Al-'Owhali was not going to tell he knew. 18 Since we have now limited it to that one question and one 19 answer, can't you stipulate to that? 20 MR. RICCO: Judge, the reason we can't stipulate to 21 it is because the government's question in response to that, 22 that the reasons why he didn't show him a photograph was 23 because of something that Al-'Owhali said, is not 24 chronologically correct. Photographs were shown to 25 Al-'Owhali. They chose not to show him a photograph of Odeh 3911 1 for the government's own reasons that were totally absent from 2 anything that was said to him. They showed him photographs. 3 They just chose not to show Mr. Odeh's photograph to 4 Al-'Owhali. The reasons Agent Gaudin and others made that 5 decision is something that I guess will be subject to their 6 testimony. We will learn about it on the witness stand. 7 THE COURT: Mr. Cohn. 8 MR. COHN: Your Honor, I just want you to know, the 9 question about what Mr. Al-'Owhali said about not fully 10 cooperating impacts on him and his case in this phase and, 11 more importantly, in the penalty phase, and I don't believe it 12 is a relevant question. We have, I think, standing on that 13 issue and we would object to that question being asked in the 14 defense of what Mr. Odeh's counsel intends to ask as the only 15 question. 16 THE COURT: Overruled. 17 The other matter I hear about every time you are 18 before me is the so-called Somalia stipulation, and the 19 government's letter to me said that if it is not resolved by 20 Thursday it would be presented to the court, but I take it you 21 want not to present it to the court. 22 MR. FITZGERALD: I thought if we were going to deal 23 with Rule 29 at the first break before 3:00, we were very 24 close. Mr. Schmidt sent a revised stipulation and we had a 25 conference today. I think we are pretty far down the road. I 3912 1 think it would take five minutes perhaps. 2 THE COURT: I will take a five-minute recess. 3 (Recess) 4 THE COURT: Is there anything which requires a court 5 action with respect to whatever the Somalia matter is? 6 MR. SCHMIDT: Yes, your Honor. Your Honor, as to the 7 so-called Somalia stipulation, there appears to be a lack of 8 agreement among defense teams as to the Somalia stipulation. 9 As a result, we cannot reach an agreement with the government. 10 Therefore, we require your Honor's intervention to enforce 11 your previous order concerning discovery material that the 12 government is to turn over to the defense so that we can 13 actually then present our defense concerning the Somalia 14 issue. 15 THE COURT: This is an outstanding order that I 16 issued when? 17 MR. SCHMIDT: I believe it was in January. 18 THE COURT: And what the Somalia stipulation has been 19 has been an effort to reach some accommodation other than 20 compliance with the court's order? 21 MR. FITZGERALD: And to remove an overt act and to 22 save proof and time. In other words, this stipulation was to 23 shorten the trial, remove an overt act, save trial time and 24 not delay the trial by what would have been a burdensome 25 production. 3913 1 THE COURT: Delay the trial in the defendants' case. 2 MR. FITZGERALD: Yes. 3 THE COURT: So there is really nothing for me to do 4 than to say absent a stipulation my prior order remains in 5 effect and should be complied with. My only question then is 6 when will there be compliance? 7 MR. FITZGERALD: Your Honor, I think if we could have 8 a brief conference in the robing room, some of the issues may 9 be classified. If we can articulate better where we are at, I 10 think it might save everyone some time. 11 THE COURT: We will do that at the end of our other 12 matters. 13 I have received motions pursuant to Rule 29 to 14 dismiss all or some of the counts on behalf of all of the 15 defendants, and I have received two documents from the 16 government. One was a letter dated September 5, which was in 17 the nature of a summary -- April 5 -- which was in the nature 18 of a summary of the government's evidence. Was that ever 19 filed or docketed? 20 (Continued on next page) 21 22 23 24 25 3914 1 MR. FITZGERALD: Your Honor, when we sent it to 2 chambers we did not file it or docket it, and we just advised, 3 I believe advised chambers we had no position whether it 4 should be public or not. 5 THE COURT: With respect to today's memorandum, the 6 government quotes and refers to it. What have you done with 7 respect to today's April 12th matter? 8 MR. FITZGERALD: I believe we served but have not -- 9 chambers has the original. So that if it's to be filed, we 10 gave the original to be chambers. 11 THE COURT: We will file them both the April 12th and 12 the April 5th since they should be read together. 13 MR. FITZGERALD: Okay. 14 THE COURT: I know there is a desire on at least 15 Mr. Schmidt's part for oral argument with respect to this, but 16 I think it might be helpful if I focus on the matters which 17 are troubling me and the matters as to which I have reached 18 tentative decision subject to whatever it is that you may wish 19 to tell me. 20 The first matter I wish to address is the so-called 21 Pinkerton issue. The Pinkerton issue is the legal theory 22 which enables a jury to find the defendant guilty of the 23 substantive counts which are an object of the conspiracy. 24 The lines between ordinary conspirator liability, 25 aiding and abetting, and the Pinkerton liability are weighty 3915 1 and they're not always carefully recognized by the courts. 2 My understanding of the proper application of 3 Pinkerton is that where there is a conspiracy, the object of 4 which is clearly defined, then a Pinkerton charge is 5 appropriate, in the discretion of the court. 6 Courts, especially the Second Circuit, have expressed 7 concern that where the objects of the conspiracy are not so 8 clearly defined, there is a risk that there will be a reverse 9 Pinkerton analysis by the jury, that is, that they will reason 10 from the commission of the substantive crimes to the existence 11 of the conspiracy, and of course that would be improper. 12 Assuming you have a case such as Pinkerton where 13 there is a conspiracy to operate a still and two brothers, and 14 one brother is in jail so he could actually be operating the 15 still, but the nature of the conspiracy and the goals of the 16 conspiracy were sharp and defined, the court said in Pinkerton 17 that where the substantive offense was clearly "foreseeable, 18 necessary or natural consequence of the unlawful agreement," a 19 finding by the jury of the existence of the conspiracy would 20 enable the jury to find the substantive offense. 21 There are many reasons why I believe a Pinkerton 22 analysis is inappropriate in this case. First, one may say 23 many things about the conspiracy alleged, particularly in 24 Count One, but it is certainly not as sharply delineated as a 25 conspiracy to distribute cocaine or a conspiracy to run a 3916 1 still. 2 The government urges the application of Pinkerton 3 with respect to Al-'Owhali and Odeh on the theory that Count 4 One of the indictment alleges the conspiracy to kill U.S. 5 nationals, the bombing of the embassies was an act to kill 6 U.S. nationals and therefore a Pinkerton charge would be 7 appropriate. 8 I cannot equate that object of a conspiracy and the 9 bombing of the embassies as having that direct connection and 10 nexus as exists in those cases in which Pinkerton is properly 11 applied. I reach this conclusion independently of the very 12 significant question of whether Pinkerton can ever be the 13 basis for a finding of liability in a death case. 14 Accordingly, it is the Court's conclusion that the 15 government's request for a Pinkerton instruction should be 16 denied. 17 That raises the question of what evidence links 18 defendants Al-'Owhali and Odeh to the Tanzania bombings 19 independently of Pinkerton, and I'm not aware from the 20 government's response on the particular question of any 21 non-Pinkerton basis for finding Odeh liable with respect to 22 the substantive counts involving Tanzania. 23 The government urges that with respect to Al-'Owhali 24 he can be found liable with respect to Tanzania on the aiding 25 and abetting theory, and that is predicated, I believe -- and 3917 1 I'm going to ask the government in a moment to correct me if 2 I'm wrong -- is predicated on Al-'Owhali's presence at the 3 hotel, knowledge that it was going to take place. No? 4 MR. FITZGERALD: Just a clarification: Al-'Owhali or 5 Odeh? You may be transposing names as to who was at the 6 hotel. 7 THE COURT: Let me just ask you affirmatively. Is 8 there anything which lists Odeh to Tanzania other than 9 Pinkerton? 10 MR. FITZGERALD: No, Judge. 11 THE COURT: No. The Court therefore grants the Rule 12 29 motion insofar as Odeh is concerned with respect to 13 Tanzania. There are a variety of Tanzania counts. They 14 are -- 15 MR. COHN: Your Honor, there's a list of them in our 16 memorandum. There's a complete list of all the counts. 17 MR. RICCO: 222 through 234. 18 THE COURT: What are they? 19 MR. RICCO: I'm sorry, your Honor. I believe it's 20 222 through 234. 21 THE COURT: Wait a minute. 22 MR. RICCO: 224 to 234, and these are the murders -- 23 THE COURT: 224 to 234, yes. 24 MR. RICCO: And then 277 and 278, 279, 283, 286 and 25 10 and 8. 3918 1 THE COURT: With respect to Al-'Owhali, what evidence 2 is there other than the Pinkerton which links Al-'Owhali to 3 the Tanzania bombing? 4 MR. FITZGERALD: Your Honor, if there is no Pinkerton 5 liability for Mr. al-'Owhali on Tanzania, it would be an 6 aiding and abetting theory since Mr. al-'Owhali expressly knew 7 about the Dar es Salaam bombing and knew the two bombings were 8 both going to happen, and by his playing a role in carrying 9 out the one bombing he is freeing up the members of the crew 10 and helping the joint venture succeed, which is two bombings. 11 THE COURT: Well, but the standard rule on aiding and 12 abetting is that mere knowledge, acquiescence, presence, well 13 wishing is not enough, that there has to be some action taken, 14 some participation to enable an aiding and abetting charge. 15 MR. FITZGERALD: Judge, two responses. One is, 16 obviously the personnel by Al-'Owhali being in Runda Estates 17 and knowing that he is going to do the one job in conjunction 18 with the other, his taking the role of getting the truck to 19 Nairobi allows the venture to free up other people who would 20 do other roles in Dar es Salaam, but I would argue this one 21 point just on the Pinkerton point. 22 THE COURT: Yes. 23 MR. FITZGERALD: You can make the argument that the 24 conspiracy charged may not have been clearly defined in the 25 abstract as a case involving a still, but in this case, this 3919 1 is far more foreseeable to Al-'Owhali than in any case 2 involving a still. It was actually foreseen by him. He is 3 told that the enterprise is going to carry out the two 4 bombings, one in Nairobi and one in Dar es Salaam. 5 He carries out the Nairobi bombing under either a 6 Pinkerton analysis or an aiding and abetting analysis. This 7 was explicitly foreseen. He understood they were doing both 8 together. The fact that he physically carried out the Nairobi 9 bombing seems to me, either under the aiding and abetting 10 analysis or under Pinkerton, he understood exactly what was 11 going on. He is stronger than the other cases. It is 12 explicitly foreseen, not something foreseeable. 13 THE COURT: Let's stick to the aiding and abetting. 14 How did he facilitate the Dar es Salaam bombing? 15 MR. FITZGERALD: There is an overlap in personnel, 16 according to his own statement. Abdel Rahman is the same 17 person building the bomb in both places. By him taking the 18 role in Nairobi and helping at 43 Runda where his bomb is 19 wired -- 20 THE COURT: What did he do? Tell me one specific 21 thing that he did which was in furtherance of the Dar es 22 Salaam bombing. 23 MR. FITZGERALD: By carrying out the Nairobi bombing. 24 This wasn't a bombing and another bombing happening on a 25 different day. They want the bombings to happen the same 3920 1 time. By knowing that he is there in Nairobi to help get the 2 bomb truck into the embassy, he frees -- they now have that 3 role covered. It's a dual bombing. If there had been a 4 bombing across the street, not at the embassy but there were 5 two bombings in adjoining buildings, it's no different. He is 6 taking care of one role in what is to be a twin attack. 7 What they wanted to do was bomb two embassies on 8 Friday morning. He takes one role. He knows about the other 9 bombing. He's aiding and abetting a plan to bomb both 10 embassies. If there had been a building around the corner 11 from the embassy and there were two trucks going in, this is 12 no different other than geography. He is taking up a role to 13 carry out simultaneous bombings. 14 If he doesn't do what they want to do in Nairobi, if 15 they can't carry it off, the evidence was they wanted to do it 16 simultaneously. They may not have carried off Dar es Salaam. 17 They wanted to do both 10:30 Friday morning. 18 THE COURT: You want to be heard on it? 19 MR. COHN: Briefly, your Honor. First, I should note 20 that aiding and abetting is not charged against Al-'Owhali in 21 the indictment, and therefore the only theory we could presume 22 that the government was -- 23 THE COURT: But you and I well know that the Second 24 Circuit does not require an explicit aiding and abetting 25 definition. 3921 1 MR. COHN: That may be, but it doesn't necessarily 2 make it right. I just call your attention to it. There are 3 higher courts than the Second Circuit. You know this may get 4 there. 5 Second of all, your Honor, I never heard of the 6 theory of aiding and abetting attached to such passive 7 behavior. The government's proof which comes from 8 Mr. al-'Owhali's statement is that after, only after he was 9 told what his own mission was, which was the Nairobi bombing, 10 did he find out about the Tanzania bombing. 11 THE COURT: And in fact, the Nairobi bombing -- if 12 the Dar es Salaam bombing had been aborted for any reason at 13 the last moment, the Nairobi bombing would have gone forward 14 in any event. The masterminds behind the two bombings 15 obviously thought that there would be a greater impact by 16 having a simultaneous explosion, but there is nothing that he 17 does -- he, Al-'Owhali, does -- which furthers the Dar es 18 Salaam bombing itself. 19 MR. FITZGERALD: Two points. First, your Honor, 20 Section 2 is charged in the indictment explicitly. Secondly, 21 I believe the testimony from Agent Gaudin was that they were 22 to make a phone call before the bombings happened to make sure 23 they're still on and the central people will know that the 24 Nairobi bombing may be prominent, but if Al-'Owhali doesn't 25 carry out the Nairobi bombing and they can't go forward on 3922 1 Friday, August 7th, they may not go forward in Dar es Salaam. 2 The headquarters want to know that this is happening. 3 THE COURT: But the indictment itself separates the 4 two. You put the Nairobi bombing in one series of counts and 5 you put the Tanzania bombing in another series of counts. The 6 indictment itself treats them as independent. 7 MR. FITZGERALD: The indictment treats every victim 8 killed independently as well, but it doesn't mean that the 9 person is not responsible for all the people killed. There 10 may be 11 counts in Dar es Salaam and maybe 211 in Nairobi, 11 separate counts, but the enterprise, the way they looked at 12 it, they were doing two bombings simultaneously and he 13 expressly knew that at the time he carried out the bombing. 14 THE COURT: I think that is not sufficient for aiding 15 and abetting and I will grant the motions to dismiss as to the 16 substantive Tanzania counts as to Al-'Owhali, and those would 17 be the same counts that we had previously discussed, 8, 10, 18 282, 286, 277, 279, 224 to 234. 19 Now I have some other specific things, but one of 20 the -- there are two consequences on that -- 21 MR. RICCO: Judge, it may not be an important point, 22 but I think you misspoke with respect to the last two counts. 23 I think it is 283 and 286. 24 THE COURT: 8, 10, 289, 286, 277, 278, 279, 224 to 25 234. But if those are not the right numbers, we're dealing 3923 1 with the substantive Tanzania counts. 2 All right. Now, with respect to Al-'Owhali and the 3 death penalty, there is an aggravator, which was the subject 4 of previous discussion, as to whether his knowledge of 5 Tanzania was an appropriate aggravating consideration. 6 There is one thing we have to decide now, but there's 7 something else that we don't have to decide now. We don't 8 have to decide now whether the dismissal of the substantive 9 Al-'Owhali Tanzania counts creates a change with respect to 10 the Al-'Owhali Tanzania aggravator. 11 The language of the aggravator, as I recall it, 12 simply relates to his knowledge. It's somewhere in this pile 13 of papers. But I think the language is knowledge, not -- 14 doesn't allege participation in the Tanzania bombing but 15 alleges knowledge. 16 The concern that I have, and it's going to lead me 17 into my next major point, is the importance of our knowing 18 whether the jury has made a finding with respect to 19 Al-'Owhali's knowledge of Tanzania. Since it now is not a 20 part of a count, I assume that we would not want in the death 21 phase, if we reach it, to have the jury making a factual 22 finding as to whether or not Al-'Owhali knew of the Tanzania 23 bombing. And one thing that we could do is simply to put that 24 as a question in the special verdict form. 25 The indictment alleges 155 overt acts in Count One, 3924 1 and I know the government had pared down somewhat, but I tried 2 to put myself in the position of the jury. And the jury is 3 told there are 154 overt acts, you only have to find 1. 4 What does the jury do? What do we want the jury to 5 do? Do they just go down the list until they reach one and 6 they are unanimous and then stop? Do we want the jury to make 7 findings with respect to 154 overt acts? 8 And that line of thinking led me to the next thought: 9 Why are there, at this stage -- I understand it was a 10 different posture when the indictment was drafted and when one 11 did not know how many defendants listed in the caption would 12 in fact be on trial, but I can see great advantages to 13 everyone if that list of 154 overt acts gets pared down to 26. 14 Some of the problems are, obviously, if there is an 15 overt act as to which some appellate court finds there was 16 insufficient evidence, and we don't know which overt acts were 17 found by the jury, then the whole count may be in jeopardy. 18 Over and over again you will see in this draft charge there is 19 an admonition to the jury that where there are alternatives, 20 where you have to find one of three objectives of a conspiracy 21 but you must be unanimous as to which one, or one overt act 22 but you must be unanimous as to which one, the question is 23 whether we should ask the jury to indicate which objectives 24 they found for the various conspiracies and which overt acts 25 they found. 3925 1 There is a very, I think, erroneous decision in the 2 Court of Appeals -- and you know when a district judge says 3 "erroneous decision of the Court of Appeals" he is referring 4 to a decision in which he was reversed, but I think for many 5 other reasons the United States v. Garcia is bad law, but 6 Judge Pratt moans and groans about the fact that the absence 7 of a special verdict required reversal of conviction. The 8 Supreme Court in a later case a few months later said exactly 9 the opposite, but that didn't affect Garcia. 10 Anyhow, apart from the reasoning which leads me to 11 that conclusion, my question to the government is, wouldn't it 12 fully present the nature of the conspiracy, greatly facilitate 13 the jury deliberations, greatly diminish the government's 14 obligation to prove the sufficiency of the evidence with 15 respect to each overt act if instead of 155 overt acts we had 16 26? 17 Twenty-six is the number of the letters of the 18 alphabet. It's A to Z. We now have P to the 7th power, and 19 even with my new glasses I have difficulty counting the number 20 of letters. And if you do keep the present format, my 21 recommendation, and it isn't a direction, is that you go A to 22 Z and then A parentheses 1, B parentheses, so you don't have 23 to count them, you don't have to count up all that. 24 You want to think about that? 25 MR. FITZGERALD: Yes, Judge. We'll submit something 3926 1 next week indicating perhaps a proposed redacted indictment 2 that's pruned. 3 THE COURT: All right. Obviously some of the overt 4 acts are then incorporated by reference in subsequent counts 5 and you can't eliminate them in Count One. 6 My next note was whether the firearm acts, 285 and 7 286, a point raised in the motions to dismiss and I think the 8 government's submission today, makes clear that the firearm is 9 the bomb itself. And that's, I think, not a matter of basis 10 for dismissing the counts but simply to make clear that the 11 firearm is, as said earlier on, the firearm includes a 12 destructive -- 13 When I finish. 14 MR. COHN: Okay, Judge. I just want to be heard. 15 THE COURT: Silence is not acquiescence. I'm blocked 16 out until 7:00. 17 I have never seen the press look as distressed. 18 Okay. Two other points: The government suggests a 19 felony murder instruction as an alternate to premeditation. I 20 don't think the presence or absence of premeditation is going 21 to be something which gives this jury any pause, and I propose 22 not to include the felony murder charge because anything which 23 can be done to simplify without affecting serious interests 24 should be done. 25 The government also asks for a conscious avoidance 3927 1 instruction. I know that I'm mixing the charge with the 2 counts but I think of them as being so interrelated. 3 Conscious avoidance in this context is very different 4 from conscious avoidance in the money laundering context where 5 the motive for people knowing only is on a need to know basis. 6 In this context it is quite different. 7 I note, just in passing, there's a little conflict 8 between the Pinkerton theory and the conscious avoidance 9 theory, but we have crossed that bridge. 10 Here, if there is conscious avoidance, it wasn't for 11 fear of criminal liability, which is, I think, the last thing 12 that these defendants were thinking of, it was because 13 envisioning themselves to be engaged in a quasi military 14 operation and concerned of what informants might know and 15 disclose, people were left out of the loop. It is my intent 16 not to charge on conscious avoidance. 17 Venue. Am I correct that the defendants have stated 18 on the record and in their papers any and all objections they 19 have to venue? 20 Mr. Schmidt? 21 MR. SCHMIDT: Thank you. Yes. 22 THE COURT: Does the defendant have any objection to 23 venue other than as set forth in its submission? 24 MR. SCHMIDT: No, your Honor. 25 THE COURT: So that the record is absolutely clear, 3928 1 the defendant Al-'Owhali concedes the existence of venue with 2 respect to the false statement charged in the indictment -- 3 defendant El Hage? 4 MR. SCHMIDT: I don't believe we concede that, your 5 Honor. 6 THE COURT: This is an area of the law in which 7 silence is acquiescence, so I think you need to -- there are 8 cases which hold that a defendant who fails in his Rule 29 9 motion to make a challenge to venue waives that. 10 MR. DRATEL: Your Honor, then we challenge venue as 11 to the Count 308. 12 THE COURT: What is the basis for venue? 13 MR. FITZGERALD: Your Honor, the investigation being 14 conducted out of the Southern District of New York and the 15 agent testified he did it in conjunction with Agent Coleman 16 from New York, and the false statement would impact upon that 17 investigation being conducted out of this district. 18 THE COURT: So that anywhere in, well, in the United 19 States to which the agent would question a person on with 20 respect to this investigation would have venue in Southern 21 District? 22 MR. FITZGERALD: No, your Honor. Two things: First, 23 since this objection is late in the day, we would like to have 24 a chance to brief it, if that's important. 25 Secondly, this is a defendant who specifically knew 3929 1 the investigation was in the Southern District of New York and 2 in fact had testified in the Grand Jury here. So it's not 3 someone who can claim surprise or due process that he's in 4 Texas and suddenly he is obstructing investigation in New 5 York. 6 THE COURT: I'll give you an opportunity to brief it, 7 and of course, of course, you haven't previously briefed it 8 because it's never been raised before. 9 There are cases which hold that where there is a 10 continuity, venue may be predicated on the particular event 11 being one stage and in a continuous process. I have not been 12 able to find any case which is remotely similar to this. 13 Al-'Owhali -- I'm sorry, El Hage was questioned before a Grand 14 Jury in 19 -- 15 MR. FITZGERALD: In September 24, 1997. 16 THE COURT: Yes. 17 MR. FITZGERALD: And he was interviewed September 23, 18 1997 and then he was interviewed by the same agent in Texas in 19 August 20, 1998 in the presence of Agent Miranda. Having a 20 period in the Southern District of New York for a Grand Jury 21 investigation, he clearly understood that the investigation 22 was based here. And in October of 1997 he was interviewed by 23 agents from New York and Texas in Texas. 24 THE COURT: How much time do you want? 25 MR. FITZGERALD: Monday. 3930 1 THE COURT: Monday? Okay. 2 I will defer decision on whether the last count in 3 the indictment should be dismissed for lack of venue. You 4 want two days, you want by Wednesday to respond? 5 MR. DRATEL: Fine. Thank you, your Honor. 6 THE COURT: All right. Suppose I now let anybody who 7 wishes to be heard be heard on any aspect of the motions. 8 Mr. Cohn. 9 MR. COHN: Your Honor, may I just address the 924(c) 10 issue? 11 THE COURT: The 924(c) issue? 12 MR. COHN: The firearm issue. 13 THE COURT: Yes. 14 MR. COHN: The problem with it -- it was perfectly 15 conceivable to us that the government might be defining the 16 firearm as the bomb. The problem is I believe it merges 17 because the crime, one of the crimes charged is using a 18 destructive device to commit the murder and so the possession 19 of a firearm in furtherance of that is sort of a double 20 jeopardy issue. 21 THE COURT: You make it a double jeopardy issue. Of 22 course it isn't double jeopardy. Double jeopardy is a very 23 different concept. You are arguing multiplicity, duplicity, 24 whatever it is. Haven't I already ruled on that? 25 MR. COHN: I don't believe you ruled on that in terms 3931 1 of the 924(c). I'm not sure. And besides that, Judge, it was 2 not in the context of them defining this as a firearm. That's 3 really the issue. We never knew before your Honor elicited a 4 response that the firearm in the 924(c) was that. It could 5 have been -- 6 THE COURT: I did ask the government that a couple of 7 weeks ago. I think after I saw there was aiding and abetting 8 and I had difficulty with aiding and abetting and carrying of 9 a firearm, and the government said, no, we're talking about 10 the explosive. Now you know, right? 11 MR. COHN: Now I know and now I believe that that 12 merges, Judge. You can't have carrying of a firearm when you 13 are using a firearm. If the firearm they are carrying is the 14 bomb and the bomb is used -- 15 THE COURT: Aren't you talking about sentencing? 16 MR. COHN: No, I don't believe so. I believe that 17 there's an absolute merger of the issues, not at sentencing at 18 all. 19 THE COURT: Government wish to respond to that? 20 MR. FITZGERALD: Your Honor, I am responding because 21 you are looking at he me, but Mr. Karas has been the Rule 29 22 person. 23 THE COURT: He is the Rule 29 person. That's what 24 that 2-9 on your forehead is? 25 MR. KARAS: Your Honor, the responses which we made 3932 1 in our papers was that whether you call it a Blackburn 2 analysis or any other type of analysis, the count that the 3 924(c) relates to is the 844(f), which says it covers 4 malicious destruction of property by either an explosive or 5 fire. 6 So it's not necessarily the case that to prove the 7 844 we would have to prove the use of an explosive, and of 8 course the 924(c) doesn't require proof of the destruction of 9 a building. So there is no absolute merger under a plain 10 reading of the two statutes. 11 MR. COHN: Your Honor should look at the charge of 12 844(h), which is in the indictment, which is use of the 13 destructive device during commission of a felony. It's the 14 same charge using the same destructive device. 15 MR. KARAS: And the answer is the 844(h) charge 16 relates to Count One, this is conspiracy to murder U.S. 17 nationals. That's Count 284. The 924(c) counts are 285 and 18 286. Those relates to the 844(f) counts. 19 THE COURT: I think it's the -- yes, that's right. I 20 was driving a car last weekend and I was behind a car that had 21 a bumper sticker on it which had a quote from Thoreau on it -- 22 will someone explain to the defendants who Thoreau is -- and 23 it said "simplify." And as I read the indictment and as I 24 read the Court's proposed charge, I really wonder whether this 25 is not the time for the government to simplify the burden on 3933 1 the jury by abandoning some of these counts. 2 For example, the sixth -- I'm using the old 3 numbers -- the sixth conspiracy count, whether that really 4 isn't a redundancy. When I say redundancy, I'm not talking 5 about legal adequacy, I'm talking about the effective, 6 intelligible presentation of the case to this jury, which we 7 know has been very conscientious. You witnessed the complaint 8 that the stipulations were being read too quickly so all of 9 the numbers couldn't be written down. 10 MR. WILFORD: Your Honor? 11 THE COURT: Yes. 12 MR. WILFORD: With respect to Count 284, as it 13 relates to Mr. Odeh, we're in a different posture because 14 there's no substantive -- Mr. Odeh didn't participate in a 15 substantive act, the delivering of a bomb. There's no proof 16 whatsoever of that. 17 Even though the government relies on the conspiracy 18 count, that particular charge is in effect the same as 285 and 19 merger does exist with respect to Mr. Odeh. And also, your 20 Honor, as we stated in our papers, the government seeks to 21 prove up the conspiracy by the overt act, which is really an 22 inverse Pinkerton situation, and Count 284 should be dismissed 23 as to Mr. Odeh as well for those reasons. 24 THE COURT: 284 is on page 100. The government's 25 theory as to Odeh and 284? 3934 1 MR. KARAS: Judge, first of all, Odeh is charged with 2 carrying out the bombing. So to the extent that the jury were 3 to find that he were involved in the bombing counts as they 4 relate to Nairobi, then they would find that he used and 5 carried a firearm, a bomb, in connection with the first count 6 in the indictment. 7 THE COURT: Yes. Is it correct to say that the crime 8 in which the defendant used and carried bombs was conspiracy 9 to murder as distinguished from murder? 10 MR. KARAS: Yes, that's -- in terms of Count 284, the 11 predicate offense in the conspiracy to murder is the 12 conspiracy to murder. 13 THE COURT: Denied. 14 Mr. Dratel? 15 MR. DRATEL: Thank you. Your Honor, with respect -- 16 THE COURT: You have seen, I take it, with respect to 17 the perjury counts, you have seen the government's brief? 18 MR. DRATEL: Yes, your Honor. I think there are two 19 counts in which they withdrew specifications. 20 THE COURT: Specifications. 21 MR. DRATEL: 292 and -- 22 MR. KARAS: 287. 23 MR. DRATEL: With respect to the conspiracy counts, 24 the government in both it's April 5th letter and again in 25 today's letter has yet to provide any evidence of the 3935 1 agreement by Mr. El Hage to join in the conspiracy to kill 2 Americans. There's a lot of association and there's a 3 presence, but there is no evidence of any agreement. And they 4 can stand inference upon inference, but they don't get there. 5 This is not a negligence standard. 6 THE COURT: Yes. Yes. But it's a cliche that 7 agreement doesn't require that two or more persons sit around 8 a table and form the agreement that they're going to be 9 conspirators, that the jury can draw inferences from the facts 10 and circumstances. 11 Mr. El Hage talks with his wife on the telephone in 12 code. 13 MR. DRATEL: But the question is how -- when he talks 14 in code to his wife about money in Kenya, we don't even know 15 what the money is for, 1996 or '97, having nothing to do with 16 the United States, when -- just to point out the two examples. 17 The government talks about two trips to Pakistan in 1997, yet 18 the two documents that come back from Pakistan have nothing to 19 do with the United States. One is about the Taliban and one 20 is about Somalia. So it's not even an explained context. The 21 context has nothing to do with the United States. Even on its 22 plain contact the cases say that is not enough. 23 THE COURT: Let me just say that I have read very 24 carefully your submission on the conspiracy counts as well as 25 the submission on the others and I am satisfied. Of course, 3936 1 it's entirely circumstantial and given the nature of the 2 alleged conspiracy, the sophistication of the conspirators 3 vis-a-vis conspiratorial activity, the fact that the case is 4 circumstantial is hardly surprising. But the motion to 5 dismiss Count One as to El Hage is denied. 6 MR. DRATEL: Your Honor, we'll rest -- we submitted 7 sufficient paper, but with respect to the perjury, it did make 8 it into our papers, there is a Pinkerton argument on the 9 multiplicity, to renew our multiplicity argument, and the 10 basis for that is that in addition to the fact that it was 11 really the same question, as we argued pre-trial, and now the 12 evidence is in. In fact the government in its response groups 13 them in a certain -- in three groups, in the Bin Laden counts, 14 the Abu Hafs counts and Ali Mohamed. They group them together 15 because they really are together. 16 What the government hasn't established is any proof 17 that there was separate harm for that second Grand Jury, which 18 is a predicate for allowing that second question to be a 19 separate count. In fact, they haven't -- what the government 20 hasn't also proved is that there's any difference as to the 21 question as to 97 and the question as to 98. 22 THE COURT: I thought you were talking about multiple 23 conspiracies. 24 MR. DRATEL: Multiplicity of the perjury counts. 25 THE COURT: Multiplicity of the perjury counts. 3937 1 MR. DRATEL: With respect to that, your Honor, they 2 have grouped them together, as I noted. 3 Also, there's no proof of the separate harm in the 4 second grand jury that would allow the government in the 5 course of what is really -- and the government concedes in the 6 pretrial motion -- what is really one Grand Jury broken up 7 into two appearances, to allow them to make that second 8 question a separate count. 9 In fact, the evidence is exactly the same. There is 10 no evidence of any -- just to give your Honor an example, with 11 respect to contacts with Bin Laden, it all pre-dates the first 12 Grand Jury appearance. There's no evidence of any contact 13 between the first Grand Jury and the second Grand Jury. 14 So what you really have is all questions reverted 15 back to the interceding -- intercedes the first Grand Jury 16 appearance. The same is true with contact with Abu Hafs. It 17 all pre-dates the first Grand Jury. So there is nothing new 18 between the first Grand Jury appearance and the second Grand 19 Jury appearance that would create a separate harm, and they 20 simply haven't established anything. 21 The same thing is true with Ali Mohamed. There is no 22 evidence of any contact between Mr. El Hage and Ali Mohamed 23 between the first Grand Jury and second Grand Jury. Those are 24 three separate groups of counts that one of them should be 25 dismissed. The government should elect which one it wants, 3938 1 the first one or second one, but it should not be permitted to 2 pursue both. 3 THE COURT: Government wish to respond? 4 MR. KARAS: Two things, your Honor. First is that 5 our arguments have already been resolved, we think, by the 6 Court last year. The second point is the difference in the 7 harm is between '97, September '97 and September '98, there 8 was a bombing and, as it's alleged in the indictment, the 9 focus of the Grand Jury therefore expanded to cover the 10 bombing. 11 So of course it makes sense that there would be a 12 different harm on questions relating to Bin Laden, who is 13 believed to be involved in the bombing, and questions about 14 Ali Mohamed, who were also suspected of being involved in the 15 bombing. It's alleged in the indictment and common sense 16 indicates that would be the difference in the harm. 17 MR. DRATEL: Still all the evidence they were looking 18 for still all pre-dates the first Grand Jury appearance. 19 There hasn't been any proof in the record that there was a 20 second and separate harm. The rest is in our papers. 21 THE COURT: Except to the extent to which the 22 government has consented in its April 12th filing to the 23 deletion of various specifications, the El Hage motions 24 addressed to the perjury counts are denied. 25 Let me just throw out some questions, which I do not 3939 1 need answers now, but in the El Hage motion at a number of 2 places there's a reference to court instructions, the court 3 should instruct the jury, for example, with respect to 4 recantation, page 41 of your brief, and I believe there's some 5 other -- 6 MR. DRATEL: Withdrawal, your Honor? 7 THE COURT: Withdrawal. Withdrawal and recantation, 8 those are the two matters. If you want such an instruction, 9 you should submit one, although the language of those 10 instructions is a bit standard. But is it your position that 11 the record in its present state would warrant the granting of 12 either of those? 13 MR. DRATEL: Certainly recantation, just based on the 14 two Grand Jury appearances and the way the questions and 15 answers are asked and answered, we are not -- your Honor, this 16 is something we can address at the charge conference as to 17 whether we are addressing specific instructions in that 18 regard. I also notice that the court's proposed instruction 19 does have language with respect to both, so we can address 20 that. 21 THE COURT: Is there anything else anybody wants to 22 raise now? I understand there's some other matter, whatever 23 that is, that is unresolved. 24 MR. WILFORD: Yes, your Honor. Just with respect to 25 venue on behalf of Mr. Odeh, with respect to Counts One 3940 1 through Six, it's our position that the government has not 2 proven that the coconspirators were first brought to and 3 arrested in the United States. I believe that that's the 4 conjunctive that's required, and it said "and," first brought 5 to and arrested. 6 And there's been testimony that some people were 7 arrested, most of them were arrested outside of the United 8 States, outside of the Southern District based on the 9 testimony that was elicited from the agents that were called 10 by the government, and I do not believe they have established 11 the conjunctive with respect to all or any one of the alleged 12 coconspirators. 13 MR. KARAS: Your Honor, it may be Mr. Wilford is 14 reading from the indictment, but the statute that I'm reading 15 from, 3238 says that trial of all defense begun shall be in 16 the district in which the offender or any of two or more joint 17 offenders is arrested or is first brought. 18 THE COURT: That's the standard. The section says 19 "or" and the indictment says "and" and it's the standard 20 treatment. I wondered why some of your cross-examination 21 alerted me to the fact that you were raising that. I think 22 the reasonable question as to venue that I had was the one I 23 previously addressed. 24 MR. DRATEL: Your Honor, just while some of the 25 issues do not pertain to Mr. El Hage, he's not charged in some 3941 1 of these counts, we would join the other motions by the other 2 defendants to the extent just as the one Mr. Wilford just made 3 and any others that relate to the counts, there's multiple 4 conspiracy, things like that, other arguments that counsel 5 have made in the papers as well. 6 THE COURT: The government has conceded that 7 specifications B, D, F of Count 292 should be dismissed. 8 Specification C of 292 refers to question B and the question 9 is whether, with respect to 292, is that going to be -- if C 10 is left in, did anyone tell you Abu Hafs had drowned in that 11 third accident? No. Is that self-sufficient? 12 MR. FITZGERALD: Yes, Judge. There's earlier 13 testimony in the Grand Jury testimony where he's asked if he 14 went to Lake Victoria after a ferry accident and he said yes. 15 THE COURT: All right. 16 MR. DRATEL: Your Honor, our argument is that it 17 refers back to the previous question which talks about the 18 summer of '96, which is why the other specifications have been 19 withdrawn, because in fact it was the spring of 1996 when the 20 ferry accident occurs. 21 The next question C following B, which is that ferry 22 accident, the ferry accident that is referred to in the 23 previous question talks about the summer of '96. That's why 24 we moved to dismiss that. 25 THE COURT: Denied. 3942 1 With respect to venue, the government had requested a 2 venue predicated on an alternate to where the conspiracy took 3 place, and again I think that the basis for the venue is clear 4 enough so that that alternate theory is a redundancy and 5 confusing. 6 MR. KARAS: Just so I'm clear, your Honor, are you 7 talking about the conspiracy counts and venue resting under 8 the 3237? 9 THE COURT: Yes. 10 MR. KARAS: Your Honor does not intend to charge as 11 an alternative theory to 3238 on the conspiracy counts? 12 THE COURT: Yes. I'm not as conversant as you with 13 the numbers, but I think what you are saying is right. It 14 will be reflected in the draft that you have. 15 All right, Mr. Wilford. 16 MR. WILFORD: Yes, your Honor. It was not in our 17 letter, I'm sorry and I apologize to the Court for that, but 18 the defendant Odeh would move to dismiss the following overt 19 acts: J, M, N, P -- 20 THE COURT: E? 21 MR. WILFORD: No, P. 22 THE COURT: P, as in Peter. 23 MR. WILFORD: As in Peter. Q, Y, 2C -- that's double 24 C, I'm sorry, double Z and quintuple, five, R. 25 THE COURT: And the reason for that and what they 3943 1 have in common is what? 2 MR. WILFORD: Specifically, your Honor, the N, P, Q 3 and Y relate to Somali. Y is the murder of the 18 servicemen. 4 I don't believe there is any proof or testimony or anything in 5 the case regarding that whatsoever and I would ask that that 6 count be dismissed. It's just not there. 7 THE COURT: I think nothing with respect to Somali, 8 because I didn't know what the Somali stipulation was going to 9 be. Is the Somali stipulation relevant to these overt acts? 10 MR. FITZGERALD: Yes, Judge. What I might suggest is 11 since we may be pruning overt acts, perhaps knowing what the 12 list is from Mr. Wilford, after we have pruned them, whatever 13 is left that he is attacking, we then address at that time. 14 MR. WILFORD: Very well. 15 THE COURT: Anything else anybody wants to bring up? 16 I wish everybody a happy holiday. 17 MR. SCHMIDT: Your Honor? 18 THE COURT: Your spoliation issue. 19 MR. SCHMIDT: Spoliation. I thought it was 20 spoilation, but it's spoliation. 21 THE COURT: Yes. Yes. Is there anything you want to 22 add to your papers on that? 23 MR. SCHMIDT: Yes. There is some things I could do 24 on the record in the public forum and some that would require 25 doing it in camera. 3944 1 THE COURT: We're going to be having a session in the 2 robing room on some matters. 3 MR. SCHMIDT: Some things we still can do in the 4 public venue, if your Honor wishes me to go into those issues. 5 THE COURT: Yes. And is there anything you want to 6 add to what is in your papers? 7 MR. SCHMIDT: Yes. 8 THE COURT: What is it you want to add to what is in 9 your papers. 10 MR. SCHMIDT: The information that I can raise in the 11 public meeting is, for example, the government -- one of the 12 major problems is when we learned that these tape recordings 13 were not preserved was during trial, not before. The 14 government, for example, presented their chart of telephone 15 calls to Pakistan. Included in those telephone calls to 16 Pakistan from Mr. El Hage's telephone number was an October 17 6th telephone call of 1996. 18 Now, from the view of the material that we received 19 that had been declassified that included that appeared to be 20 translations of facsimiles that were not preserved was a 21 facsimile from Harun to Mohamed Atef, also known as Abu Hafs, 22 that appears to cover one exact telephone call from Mr. El 23 Hage's telephone to Pakistan, which is a specific contact 24 between Harun and Mohamed Atef. 25 The other, a number of other telephone calls that 3945 1 occurred in September of 1996 and November of 1996, which were 2 the majority of those telephone calls, those contacts, there 3 are no preserved telephone conversations nor preserved 4 facsimiles that cover that period. And it is our belief that 5 these calls originated by -- 6 THE COURT: There are neither the transcripts nor the 7 calls themselves? 8 MR. SCHMIDT: There's neither the transcripts, the 9 calls themselves, summaries or faxes for most of those, most 10 calls, and almost all of them are very short. Some of them 11 are the same amount of time as that short facsimile was. Some 12 of them are even shorter where the phone calls didn't go 13 through. 14 There appears to be one or two longer calls that 15 appear to be conversations, and the government has presented 16 that as evidence against Mr. El Hage, that these contacts to a 17 telephone number that Mr. Atef can be reached coming from his 18 home is evidence of contact and, therefore, evidence of 19 perjury and of participation in the conspiracy. 20 THE COURT: You are saying regardless of what was 21 said, it indicates that there is a relationship between the 22 two which led to communications? 23 MR. SCHMIDT: Well, it didn't -- 24 THE COURT: Are these the record references that the 25 government has offered to strike? 3946 1 MR. SCHMIDT: No, your Honor. That's another issue 2 that we need to do on the 806 and Brady issue. No, they did 3 not. Of course we learned about this -- 4 THE COURT: Get to the bottom line. 5 MR. SCHMIDT: We want to offer substitute evidence. 6 We want to offer evidence, for example, of the notes of the 7 U.S. agency of the facsimile that was sent during that period 8 of time with direction that that is that phone call -- 9 THE COURT: For what purpose? 10 MR. SCHMIDT: So show that it is Harun that is 11 contacting Mohamed Atef and not Mr. El Hage. The government 12 has been -- 13 THE COURT: Is that what you want? You just want to 14 know who the participants in that conversation were? 15 MR. SCHMIDT: That's an example of the prejudice that 16 we suffered by the government loss of that material and that 17 we were not informed of that until March 2nd. 18 There are a number of other telephone conversations 19 that appear to be exculpatory, for example, and where the 20 agency taking down notes or translations of those telephone 21 calls obviously don't take very many notes of the calls that 22 they think are not relevant to a possible contact -- 23 THE COURT: You want a stipulation that every 24 telephone conversation made between the numbers did not 25 contain inculpatory material? 3947 1 MR. SCHMIDT: No, I don't think we're entitled to 2 that and that's not what I'm asking. I'm asking to be able to 3 put in substitute evidence with the indication of that -- 4 THE COURT: Substitute evidence, that is, you want 5 discovery to obtain the material which you will use as 6 substitute evidence? 7 MR. SCHMIDT: No, we have some of the material 8 already as substitute evidence. We have summaries that were 9 prepared by government agents. 10 THE COURT: Do you want a ruling from the court that 11 the best evidence rule will permit you to introduce that 12 material because the originals no longer exist? 13 MR. SCHMIDT: No, we want your Honor to sanction -- 14 to remedy the government misconduct. 15 THE COURT: By doing what? 16 MR. SCHMIDT: To allow us to present this evidence in 17 lieu of the original evidence that has been destroyed by the 18 government. 19 THE COURT: What is the difference between what you 20 just said, other than some pejorative terms, and what I said? 21 What you want is the Court to say that since the 22 originals have been destroyed, through no fault of Mr. El 23 Hage, those documents constitute the best evidence and are 24 admissible. 25 MR. SCHMIDT: That is correct with one proviso. 3948 1 THE COURT: Yes. 2 MR. SCHMIDT: That is that the government, because of 3 their conduct, as a sanction, cannot produce as best evidence 4 the summaries produced by government agents as well because 5 the government -- 6 THE COURT: What are you seeking to discover other 7 than the summaries by the government? 8 MR. SCHMIDT: I'm not asking for anything other than 9 what your Honor said. I'm satisfied with what your Honor 10 said. The government has indicated that they wish then to 11 say, well, if I'm putting in these summaries that were made by 12 government agents who had a certain view of this matter, that 13 they also should be allowed to put in the summaries of those 14 agents as a result. 15 THE COURT: Isn't the purpose to try and put the 16 parties as near as may be to the position that they would 17 occupy had the tapes not been destroyed? Isn't that what the 18 Court should seek to do? 19 MR. SCHMIDT: The Court should seek to do that to the 20 party that was injured by the other party's failure to 21 preserve it. It should not seek to put the other party in 22 better position than they would have been if they had not 23 destroyed the evidence. 24 THE COURT: But you want to put them in a worse 25 position. You want to put them in a position where you can 3949 1 put in those portions of the transcripts which you think are 2 helpful but preclude the government from putting in other 3 material of equally probative value but with different 4 content. 5 MR. SCHMIDT: I'm not -- 6 THE COURT: Suppose I hear from the government. 7 MR. FITZGERALD: Let me make it very simple, Judge. 8 35 faxes that were recovered at the time were not preserved 9 but they were typed up what the contents of the faxes were at 10 the time. Mr. Schmidt would like us, and we're willing to 11 agree, to authenticate all 35 faxes. He wants to put in the 12 25 transcripts of the faxes that are largely irrelevant, 13 "hello, happy holiday," and keep out the 10 where Wadih El 14 Hage is contacting his co-conspirators, sending them fake 15 passports and providing them the address of the person he 16 denies knowing. What he is basically saying is because the 17 government wasn't looking to preserve this as evidence at the 18 time, this could now mislead the jury. 19 THE COURT: I will permit the defendant El Hage to 20 offer in evidence transcripts of those faxes which, because of 21 the destruction of the originals, will constitute the best 22 evidence. I will permit the government to introduce 23 transcripts of other faxes which have the same probative value 24 as the faxes which the defendant wishes to introduce. I see 25 no basis -- 3950 1 MR. SCHMIDT: Your Honor -- 2 THE COURT: Let me finish. 3 I see no basis in anything that is presented to me to 4 conclude that there has been any bad faith on the part of the 5 government or deliberate destruction by the government or 6 anything which would lead to the imposition of sanctions or 7 enable El Hage to skew what the facts are. 8 I think what the defendant is entitled to, and I 9 grant it, is the right to introduce those faxes in evidence 10 and, since that will be predicated on a finding that the 11 transcripts are authentic and accurate, permit the government 12 as well to introduce other similar transcripts. 13 MR. SCHMIDT: Your Honor, that takes the transcripts 14 of the faxes -- they're not transcripts of the faxes, they are 15 translations of the faxes. 16 We also come now to the summaries of conversations of 17 that. 18 THE COURT: Yes. 19 MR. SCHMIDT: For example, we have a different 20 problem. On WEH71, there is a brief summary of the 21 conversation there where there is a conversation where they 22 talk about how Wadih El Hage and Harun are talking, they're 23 discussing some work Harun is doing for Wadih. 24 Now, that's all it is, and this is being taken by 25 some agent of the government. It doesn't say what the work 3951 1 is, so it could be work that the government my allege is part 2 of the conspiracy. It could be work related to the 3 non-governmental organization or it could be work related to 4 his business. I don't know. But that makes it clear to me 5 that if it was related to something bad, that they would have 6 had a long transcript or a long summary of about what that 7 work was. That alone shows the bias. 8 THE COURT: What is it that you want with respect to 9 that? 10 MR. SCHMIDT: I want to be able to put in, then, 11 information of either better summaries that the government may 12 or may not have, or I want to be made whole, where -- 13 THE COURT: Does anybody have any better summary? 14 MR. SCHMIDT: In the beginning, your Honor, it shows 15 the bias -- 16 THE COURT: One moment, please. 17 Does the government have any other summaries of those 18 conversations? 19 MR. FITZGERALD: No, Judge. Let me tell you what we 20 have. 21 THE COURT: No. Okay, so the answer to that is there 22 aren't any. 23 When you say you want to be made whole, what does 24 that mean? 25 MR. SCHMIDT: It is clear that the agents who are 3952 1 taking this down have a certain bias and so they -- 2 THE COURT: What do you want? Tell me specific -- 3 MR. SCHMIDT: Because of their bias, what they write 4 down is not necessarily accurate for the benefit of El Hage. 5 THE COURT: What do you want? 6 MR. SCHMIDT: I want to be able to put the ones in 7 that, even with the bias of the agents, the obvious bias of 8 the agents, that are relevant to our defense, without allowing 9 the government to put in summaries of telephone conversations 10 that these obviously biased agents write down that look, would 11 look worse in their summaries than are actually true in the 12 telephone conversations. 13 THE COURT: Denied. 14 MR. SCHMIDT: One other point, your Honor. 15 THE COURT: Denied. 16 MR. SCHMIDT: One other point. You made clear that 17 this was not done by the government in bad faith, right, and 18 that very well may be so. However, we did not learn of the 19 missing tapes until March 2nd, 2001, and efforts -- 20 THE COURT: The Court did grant a request for the 21 hiatus between the close of what was virtually all of the 22 government's case and the 16th. There's a limit to how much 23 mileage you can get out of that. 24 MR. SCHMIDT: I'm not asking for mileage. If we had 25 known this prior to trial, your Honor -- and there was no way 3953 1 that we would be able to reach a resolution that we felt was 2 proper for Mr. El Hage -- we would move to preclude all of the 3 statements. The government was able to put in three-quarters 4 of their telephone conversations before the jury before we 5 found out that the other ones were missing, and we believe 6 that they would not be allowed to do that if we were aware of 7 that prior to that. 8 THE COURT: Let's take the picture in the best 9 conceivable light. Best conceivable light is that there is 10 nothing incriminatory, nothing inculpating in those telephone 11 conversations as to which there is no recordings or 12 transcript. 13 MR. SCHMIDT: No, the best is that they are 14 exculpatory. 15 THE COURT: Such as? 16 MR. SCHMIDT: Such as discussions explaining his 17 conduct with individuals which show that it is either 18 business-related or related to non-governmental organizations, 19 humanitarian purposes, or other matter that doesn't relate to 20 criminal conduct against the United States. 21 THE COURT: But there is no suggestion, is there, 22 that there's a selective destruction and selective retention 23 of these messages? 24 MR. SCHMIDT: Yes, to some extent, to some extent, 25 there -- 3954 1 May I have a moment, your Honor? 2 MR. FITZGERALD: Your Honor, I think we can prove 3 there was no selective destruction by two facts: There was a 4 conversation admitted in evidence where Ahmed the Egyptian, 5 who is known as Shuaib, who turns out to be a key player in 6 the conspiracy, his voice was not identified until months ago, 7 reviewing evidence for trial. It was viewed as just an 8 unknown male calling his wife. 9 The people who don't have a bias, there are great 10 calls that are missing. I'll give one example. Mr. El Hage, 11 in his legitimate enterprise efforts, passed license plate 12 numbers to somebody else and when you take the license plate 13 numbers and you put them together, you get the phone number of 14 a terrorist overseas. We would love to have that telephone 15 call. We don't. 16 The calls, we gave them the tapes we have. We gave 17 them the transcripts we have. We have been trying to marry up 18 transcripts to tapes. We would love to find some of those 19 conversations. We don't. There's a bias -- I don't think 20 there's a bias. Whoever listened to the tapes did not know 21 what we all know today, which is what some people had done, 22 what some phone numbers meant. There is no selective 23 destruction. 24 MR. SCHMIDT: Your Honor, there is a bias in what 25 these people are listening for and how they are writing down 3955 1 their summaries. That is clear from the summaries that 2 they -- 3 THE COURT: What is it that you want by way of 4 redress? What is it that you ask? 5 MR. SCHMIDT: I'm asking that I be allowed to put in 6 some of the summaries of the telephone conversations that 7 counteract the telephone calls that the government has put in 8 already. 9 THE COURT: What does that mean? 10 MR. SCHMIDT: There are allegations that have been 11 made -- 12 THE COURT: What does that mean, "counteract"? What 13 does that mean? 14 MR. SCHMIDT: Well, a perfect example, I gave the 15 example of the fax. The government submitted to the jury a 16 chart of telephone calls from Mr. El Hage's home to Pakistan. 17 We have a fax from Harun that affirmatively proves by the 18 handwriting of the government agent taking it down that it was 19 Harun sending a fax. I would like to put that one in. That 20 one -- 21 THE COURT: No problem. No problem. 22 MR. SCHMIDT: I do not believe that opens the door 23 for the government then to select other faxes to put them in. 24 I don't think that they should be allowed to do it because if 25 I was in a position of knowing all this information before 3956 1 they offered the evidence, I would have been more clear to 2 your Honor saying they should not be allowed to make these -- 3 present this evidence because it is misleading as it stands, 4 because I'm being precluded from showing proof that this 5 conversation did not come from Mr. El Hage. 6 THE COURT: The Court has already ruled you may offer 7 in evidence documents to demonstrate who the caller or who the 8 recipient of a particular message is. So there is nothing -- 9 MR. SCHMIDT: So that he opens the door with 10 summaries and writings of government agents who I am not able 11 to cross-examine, who I am not able to show that the tapes 12 are -- the summaries or the translations are not accurate. I 13 have to accept the government's version. They are another 14 party. 15 THE COURT: Why would the introduction of a document 16 for the sole purpose -- assuming these facts -- the sole 17 purpose to show that a particular telephone call listed by the 18 government on its chart was in fact between someone other than 19 El Hage, why would that open the door to the government 20 presenting the contents of some other similarly recorded 21 conversation? 22 MR. FITZGERALD: If Mr. Schmidt wants to tee up what 23 he wants, we'll be fair in response. If he wants to chart out 24 from what faxes have been lost whether or not El Hage was also 25 in those lost faxes, which he is, on the charts in evidence, 3957 1 we'll agree to that. If he can show us a conversation 2 reflected on the chart and it shows that Harun is in touch 3 with Abu Hafs, Mohamed Atef, and also where we show that the 4 faxes show Wadih El Hage was in touch with people, we'll 5 stipulate. That's the facts. 6 If we're saying that these transcriptions or 7 translations of faxes are accurate, let's put them before the 8 jury, and the ones that he wants to put before the jury which 9 talk about irrelevant matter or what he purports is business 10 matter and the ones where he's talking about sending false 11 passports should all be before the jury. There is no 12 misconduct. Mr. El Hage sent faxes. He didn't keep them 13 either. 14 THE COURT: The scope, in other words. In other 15 words, another way to phrase this is that the extent to which 16 the door will be opened is a function of what it is that the 17 defendant seeks to introduce. If the defendant seeks to 18 introduce matters which simply reflect the fact that the 19 participants in telephone conversations or faxes which the 20 government has listed in its chart were persons other than El 21 Hage, then obviously all that would open the door to would be 22 the government showing from the same source of material the 23 number of conversations in which El Hage was a participant. 24 If El Hage wants to introduce a fax or a transcript 25 or summary which says my jam tray is very slow because I have 3958 1 not been able to get the sources, or something of that sort to 2 show that he was engaged in legitimate business activity, and 3 the government has a similar document which shows that that's 4 code language or that it was really for some other purposes, 5 then the door has been opened to permit that to happen. Okay. 6 MR. SCHMIDT: That makes it clearer, and I can then 7 see what the final of the faxes of the conversations that I 8 wish to propose. 9 One other issue that we should raise -- 10 THE COURT: Just so the record is clear, the 11 application for the imposition of sanctions against the 12 government is denied because the Court finds the absence of 13 any basis to assume that there was bad faith on the part of 14 the government. Indeed, as the government has indicated, it 15 has not been advantaged but disadvantaged by virtue of the 16 failure to preserve this material which was initially 17 recorded, the government says, not in connection with a view 18 to criminal prosecution but for intelligence purposes. 19 MR. SCHMIDT: The 806 issue, which also relates to 20 the Brady issue? 21 THE COURT: Yes. 22 MR. SCHMIDT: The government, after the witnesses 23 testified, has now given us material which impacts on the 24 declarants' statements to by certain witnesses. 25 THE COURT: Yes. 3959 1 MR. SCHMIDT: And they have offered to redact some of 2 the declarants' statements but not all of the three 3 declarants' statements instead of giving us the 806 material. 4 One, we oppose that because should the 806 material 5 that we're entitled to impact on the credibility of those 6 declarants for some statement, it certainly impacts on the 7 declarant's credibility for all of the statements made by the 8 declarant. So the government should not be in a position to 9 select which declarant's statements should come out. 10 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3960 1 THE COURT: What is -- 2 MR. SCHMIDT: We want material. We don't want them 3 to offer to redact. 4 THE COURT: You want the material. I received and I 5 have not yet seen some CIPA material. Does that deal with 6 this issue? 7 MR. FITZGERALD: Yes, Judge. As to some declarants, 8 all statements were withdrawn. As to one declarant, there was 9 an ex parte submission upon notice to El Hage. 10 THE COURT: I have not had an opportunity to review 11 this material, and we can take it up, if you like, at 9:00 12 a.m. on Monday. 13 MR. SCHMIDT: There is one other related issue to 14 that. It appears that the government makes a decision of 15 which person's statement they want to accept, whether the 16 declarant's statement, which they have now withdrawn, or the 17 witness's statement of what the declarant says. 18 Let me start over again. A witness testifies that X, 19 the declarant, says this to him, says Y to him. The 20 government now wishes to withdraw statement Y because it is 21 determined that instead of giving us the material they will 22 withdraw Y. However, the material that they have that impacts 23 on the credibility of declarant X very likely also impacts on 24 the witness who is testifying. It is a choice between 25 believing the witness who is testifying and the declarant, 3961 1 they choose to believe the witness who is testifying. I 2 believe that that is Brady material because I don't 3 necessarily believe the witness who was testifying. 4 THE COURT: The relief that you want from the court 5 is what? 6 MR. SCHMIDT: Is something that the declarant might 7 have said in the nature of I never said those things. 8 THE COURT: Tell me what you want the court to do. 9 MR. SCHMIDT: I want to know the impeachment material 10 that the government is obligated to give us because that 11 impeachment is not only impeachment against the declarant, it 12 is clearly impeachment against the witness. 13 THE COURT: I will review the matter submitted by the 14 government and we will take up the matter at 9 a.m. on Monday. 15 9 a.m. on Monday. Promptly at 9 a.m. on Monday. 16 MR. FITZGERALD: Speaking of Monday, we are in the 17 position where we think the government will rest by 10:30 and 18 then the defense case. I understand the El Hage case will be 19 a week to three weeks. We have received no Jencks Act 20 material, and in order not to have delays, I think we ought to 21 know what witnesses are coming, what the Jencks Act material 22 is. 23 THE COURT: Is there any objection to Mr. El Hage's 24 case being the last of the four defendants' cases? 25 MR. COHN: May we have time to think about that, 3962 1 Judge? 2 THE COURT: I tell you what I am not going to do. I 3 am not going to bring this jury back on Monday and send them 4 home. Will I bring them back and send them home after three 5 of the defendants have rested because a day's work has been 6 done? Yes. 7 MR. COHN: It is not unreasonable. We don't have to 8 accept anything. I am trying to consider a request from the 9 court to see if we can do what the court requests and I want 10 time. I don't know why I get snapped at for that. 11 THE COURT: If I didn't snap at you from time to time 12 and if you didn't make sarcastic jokes from time to time, life 13 wouldn't be as we know it and love it. 14 MR. COHN: I am trying to keep the Times from being a 15 liar. They said I am sarcastic so it must be true. 16 THE COURT: Should we take a recess now? 17 MR. COHN: We are going to talk in the back about 18 something, I will talk to counsel, and we will try and resolve 19 it, Judge. 20 THE COURT: Mr. Schmidt, are you able to be more 21 specific with respect to your estimate of one to three weeks 22 for the defendants' case, assuming that all your discovery 23 requests and are granted? 24 MR. SCHMIDT: The Somalia issue presents a big 25 unknown. Other than that, I would guess -- and I use that 3963 1 word judiciously -- that we have over a week of testimony 2 without Somalia, and it could stretch to two weeks. 3 THE COURT: That is helpful. Just so that I don't 4 rely on faxes which seem sometimes to not fully communicate, 5 we have on one day the motion to quash the subpoena. Mr. 6 Baugh -- 7 MR. BAUGH: I will get the answer to the motion 8 tomorrow afternoon. I thought it was going to be argued 9 Monday first thing. 10 THE COURT: One of the points made repeatedly in 11 their papers is that they have been unable to communicate to 12 you. That is a matter which I think you might very easily 13 consensually resolve. 14 MR. BAUGH: Yes. 15 THE COURT: We also have oral argument on Monday on 16 the severance of the penalty phase. 17 MR. RUHNKE: Your Honor, your Honor had given us 18 until tomorrow to reply to the government's -- we intend to 19 reply tomorrow. 20 MR. HERMAN: With regard to scheduling on Monday, we 21 have a witness who is only available on Monday, an expert 22 witness, probably an hour of testimony at the most. We have 23 gotten permission from the El Hage group if we can present 24 that witness out of turn. It was not our intention to 25 complete our defense on Monday. Unless there is something 3964 1 else that changes for the rest of the day, that would be the 2 only disruption we anticipate. 3 THE COURT: We will adjourn at least in open court 4 and we will take up in the robing room the Somalia issue? Is 5 that what we are dealing with? Anything else? I again wish 6 you a good holiday weekend. 7 (Sealed conference filed separately) 8 (Adjourned until 9:00 a.m., Monday, April 16, 2001) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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