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 29 of the trial, 16 April 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
3965 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 16, 2001 9:00 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 3966 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 3967 1 (Jury not present) 2 THE COURT: The question before the court, as I 3 understand it, concerns discovery requests made on behalf of 4 El Hage with respect to his testimony as to out-of-court 5 statements made by various alleged coconspirators. The 6 government's proposal is, rather than produce that discovery, 7 which has certain security classification issues, that it be 8 stricken from the record, those portions of al Fadhl's 9 testimony in which he quoted the statements made by the 10 coconspirators. 11 Counsel for El Hage objects. I take it the 12 government also takes the position that the scope of discovery 13 is material that would relate to the credibility of the 14 nontestifying declarants but not of the witness. Is that the 15 government's position? 16 MR. FITZGERALD: Yes, Judge, except the way I would 17 state it is, 806 impeaches the declarant or the declarant's 18 statement. It is not a device of impeachment of the witness 19 itself. 20 THE COURT: But 806 deals with admissibility, and the 21 issue raised now is not the question of admissibility but 22 discoverability, and that is a much broader question. 23 MR. FITZGERALD: 806 talks about impeachment -- the 24 most the defense could get by discovery of an 806 statement 25 would be to impeach the statement of a declarant, and the most 3968 1 they could hope to do in impeaching the statement of the 2 declarant is to basically take that statement out, and that is 3 what we are offering to do. 4 THE COURT: Why isn't it relevant for discovery 5 purposes -- I am making a sharp distinction between 806, which 6 deals with admissibility, and discoverability. If the witness 7 said declarant said A, B and C, and evidence exists which 8 would support the conclusion that the declarant never said A, 9 B and C, why isn't that relevant to the witness's credibility? 10 MR. FITZGERALD: And the way I understand that, your 11 Honor, if it was showing that the declarant did not say that 12 to the witness -- here is my hypothetical. Let's say the 13 witness says that person A, the declarant, made a statement in 14 the past. Person A is confronted tomorrow and gives a 15 self-serving denial, saying I wasn't involved in narcotics and 16 mass murder. The fact that A now disowns the statement he 17 made to the witness or disowns the substance of the statement, 18 goes to A's credibility, arguably. But that does not impeach 19 the declarant who says I was told by A in the past the 20 substance of that statement. 21 If the statement where A says I was not involved in 22 narcotics and mass murder comes in some sensitive form, where 23 you don't want to compromise techniques, the defendant is 24 better off than he otherwise would be by getting the entire 25 statement of A the declarant stricken. He has not just 3969 1 impeached the statement, he has removed it. 2 THE COURT: But suppose the material is that the 3 declarant I never said that to the witness, and the fact of 4 the matter is that I never met the witness. That would 5 arguably be relevant not only to the credibility of the 6 declarant but to the credibility of the witness as well. 7 MR. FITZGERALD: In that circumstance it would depend 8 whether or not the defendants have access to the declarant. 9 If they have access to the declarant and he is available to 10 testify, it is not a discovery device to find out everything 11 you have in your files for the declarants. 12 THE COURT: That is not usually the test that we have 13 for discoverability, the fact that there may be other means of 14 obtaining -- 15 MR. FITZGERALD: If it is not Rule 16 material and 16 Rule 806 is impeachment device, then discoverability under 17 Brady and Giglio does depend at times on whether the defense 18 has access to the information directly. If the defense has 19 access to public information or other information, he does not 20 have the same access to government files. 21 THE COURT: Are the declarants accessible to the 22 defendants? 23 MR. FITZGERALD: If you give me a hypothetical where 24 the defendant or the declarant says he never met the witness, 25 I think the facts before the court in many of the different 3970 1 cases, the statements are not impeaching of the witness. They 2 may impeach the statement of the declarant. 3 MR. SCHMIDT: If I may add one point. We have a 4 particular example that occurred here of Fadhl testimony where 5 originally he said that he trained with Ramzi Yousef, the 6 mastermind of the World Trade Center bombing, and later on he 7 admitted that he never met the man. If by getting a 8 statement, if I will get a statement that I never met the man, 9 I was in Lithuania when he said that occurred, that might give 10 me the opportunity to prove that the declarant was somewhere 11 else than the witness testified to being, to what the witness 12 said to be true. 13 So I don't know what is out there. I don't know if I 14 have the ability to obtain that material. If the witness's 15 statement is such that he may be somewhere else, for example, 16 the government may be in possession of that declarant's 17 passport that shows that he is actually out of the country at 18 the time that I would be entitled to get Brady from him. 19 THE COURT: Assuming that we recognize that we are 20 dealing with discovery, not admissibility under 806, is the 21 government in a position now to state whether, using the 22 hypothetical that we just dealt with, none of the material 23 which the government seeks not to produce would be relevant to 24 the witness's credibility? 25 MR. FITZGERALD: That is what I believe we set forth 3971 1 in the ex parte letter to your Honor. 2 THE COURT: Yes. Well, that is a little hard for me 3 to -- do I have all the material? Does this submission 4 contain all the material which is in issue? 5 MR. FITZGERALD: That has to do with one witness, and 6 I believe you should have the material attached to that. 7 THE COURT: Let me hand this to you, and then if you 8 could just identify where that is dealt with. 9 MR. SCHMIDT: Your Honor, one additional issue -- 10 THE COURT: Wait, wait. This page? 11 MR. FITZGERALD: Page 2, yes. 12 THE COURT: I just can't tell from this, because this 13 deals with excerpts, whether the criteria the government used 14 in determining whether the material was discoverable or not 15 was one which was limited to whether or not the material was 16 exculpatory of El Hage, or whether it also included 17 examination to see whether it contained any material which was 18 impeachment material insofar as the witness can concerned. 19 MR. FITZGERALD: And the way I would describe this, 20 and if you want, your Honor, we could do another letter to be 21 more clear but I am vague on the record because of its 22 sensitive nature -- 23 THE COURT: Are we dealing with one document here? 24 MR. FITZGERALD: There are two documents beneath the 25 letter -- 3972 1 THE COURT: The documents that are referred to in 2 this letter? 3 MR. FITZGERALD: Yes. 4 THE COURT: This is the totality of it? 5 MR. FITZGERALD: For that witness and that item, yes. 6 MR. SCHMIDT: Your Honor, if I may just add one 7 thing, I am very, very troubled by the manner that this 8 determination is going to be made. I have spent two years of 9 my life poring through documents relating to my client, poring 10 through documents that I have received concerning the 11 government's main witnesses. I am very familiar with not just 12 the witnesses but the different webs, or lack of webs, how 13 things relate to the tens of thousands or hundreds of 14 thousands of pages of material that we received. I know based 15 on my experience that I can look at a document and I may miss 16 the connection, and I know that I must be much more aware of 17 the connections than your Honor. We are going through a 18 process where your Honor is sort of following the government's 19 lead as to what they may think may be helpful -- 20 THE COURT: That is why I raise the question and that 21 is why I also want to look at the document itself. 22 MR. SCHMIDT: But the government historically takes a 23 narrow view of what helps the government, and that is an 24 ongoing thing where I am not able to give input as to how this 25 may be helpful to my defense. I have tried cases where one 3973 1 thing from a confidential informant I don't get and I have to 2 live with. I have never been in a case where there is so much 3 material concerning what appears to be the only piece of 4 evidence circumstantially linking my client to this conspiracy 5 concerning al Fadhl and Kherchtou and not having a chance to 6 have input. So I have trouble with that. I do have security 7 clearance and I have viewed secret documents. I am a good 8 American. I don't see why I can't review it, maintain a 9 promise on the threat of prosecution so I can participate in 10 this process. 11 THE COURT: I understand your position. 12 That dealt with one witness. 13 MR. FITZGERALD: Yes, your Honor. 14 THE COURT: But there are other -- one witness or one 15 declarant? 16 MR. FITZGERALD: I am sorry, one declarant. 17 THE COURT: With respect to the other declarants? 18 MR. FITZGERALD: The other declarants -- if I can 19 make one response in response to Mr. Schmidt. First of all, 20 Giglio or Brady is not a tool of open file discovery where any 21 defense counsel can say he would like to look through an 22 entire set of documents. In this case the record will speak 23 for itself. I think there has been extraordinary disclosure, 24 at least going in one direction. 25 If I could go back to the general point, the fact 3974 1 that witnesses may talk to us or the fact that we may get 2 statements from witnesses is very sensitive, and if every time 3 someone cites Rule 806 they have the right to look at every 4 witness's statement who talked to us, as a potential 5 cooperating witness, as a cooperating witness, as a potential 6 defendant, they get to look through it to see if it is 7 inconsistent is not the rule. 8 THE COURT: Let me give you a very specific thing. 9 We are dealing with whether any of this material, assuming 10 that the Brady and Giglio review has already been done we are 11 dealing with the question whether there is material available 12 which shows that when the witness said the declarant said X, 13 the material indicates that that was an untruthful statement. 14 That is not a broad area to warrant the concerns that you have 15 just expressed. It seems to me it is rather specific. 16 MR. FITZGERALD: Yes. 17 THE COURT: And if you are telling me that I have in 18 these secret submissions the original and the totality of what 19 is within the scope of the El Hage discovery requests, I think 20 I should just take a recess and read it in the light of this 21 colloquy. 22 MR. FITZGERALD: And if I could clarify the standard, 23 if the witness testified that the declarant said X and there 24 was evidence indicating that the declarant at a different time 25 to someone else may have denied X, we view that as impeachment 3975 1 of the declarant not of the witness. 2 THE COURT: That is right. What is discoverable -- 3 discoverable, not admissible -- is anything which would 4 support the conclusion that when the witness said declarant 5 told me X the witness was not truthful. Yes? 6 MR. FITZGERALD: Anything that would support -- I am 7 just wondering, does that take in a person who denies being 8 involved in murder and drug dealing when arrested and the 9 witness says I told him I did the murder? 10 THE COURT: It is maybe more abstract than it has to 11 do, since you tell me that the totality involves these pages, 12 which I have read but I have not read with the focus with 13 which I will now reread them. 14 MR. FITZGERALD: I would like to review the other 15 witnesses. If there is other material, I would like to review 16 that as well. There is exhaustive of one witness and there 17 are two other witnesses as to whom we have sought to strike 18 the testimony. 19 THE COURT: Yes. 20 MR. SCHMIDT: On a practical point, a person Mr. al 21 Fadhl testified about, Mr. al Nalfi, we did not learn about 22 it. He was indicted, I think in March, for similar charges. 23 Based on my experience, I would guess that during that time 24 the government was probably seeking his cooperation. The 25 resulting indictment would likely mean that they did not 3976 1 obtain what they wanted to from Mr. al Nalfi, either because 2 they didn't believe him or he said something different. It 3 appears to me since al Nalfi is supposedly a cousin by 4 marriage of Mr. al Fadhl, we have also a world of material 5 that might also affect the declarant al Fadhl as well as 6 the -- the declarant al Nalfi as well as the testifying 7 witness al Fadhl. 8 I would ask your Honor to request any material 9 concerning Mr. al Nalfi's statements relating to Al Qaeda and 10 his cousin by marriage -- uncle by marriage, or his cousin, I 11 am not sure -- that would tend to impeach the declarant's 12 statements, al Nalfi to al Fadhl as testified or Brady 13 material that contradicts al Fadhl. This is something that we 14 did not know back at the time that Mr. al Fadhl testified. 15 MR. FITZGERALD: I am not going to comment on Mr. 16 Schmidt's speculations. It is on public record that Mr. al 17 Nalfi pled not guilty. It is in open court and in the New 18 York Times. He can interview him. I don't think the fact 19 that someone else pled not guilty entitles them to open file 20 discovery of what that witness said. If they would like to 21 talk to that witness, go ahead. 22 THE COURT: The court will take a 10-minute recess. 23 (Recess) 24 (Classified conference held in robing room) 25 THE COURT: I have reviewed the original of the 3977 1 underlying documents which have been the subject matter of the 2 previous colloquy in opening court, and, leaning over 3 backwards in favor of discovery, I have directed that the 4 government furnish to El Hage a statement, and other than that 5 one statement, I find nothing which is in the government's 6 possession which has not been produced which would be required 7 to be produced under the principles which we discussed 8 earlier. 9 I understand the government is also going to review 10 material relating to other declarants from the broader 11 perspective of not merely impeachment of declarants but 12 impeachment of the witness as well, and I would ask that that 13 be done promptly and, regardless of the outcome of that 14 review, that the court and the parties be advised. 15 MR. FITZGERALD: Thank you, Judge. 16 THE COURT: I think that concludes this issue. Is 17 there anything else -- let me ask, does the government still 18 anticipate that it will rest at approximately 10:30 or so? 19 MR. FITZGERALD: Yes. 20 THE COURT: And will rest reserving the right to call 21 the witness who was the subject of our colloquy last week? 22 MR. FITZGERALD: Yes, your Honor, and the other 23 reservation, we are circulating or have circulated a chart 24 concerning the stipulations but we won't seek to offer it now 25 because, one, we haven't heard back from defense counsel as to 3978 1 the format, and, two, there are a few more stipulations being 2 corrected. 3 THE COURT: I requested that just to simplify the 4 task for the jury. The jury can ask for that one exhibit and 5 it will then have a chart for all the other stipulations. 6 In terms of the defense case, assuming that the 7 government rests at 10:30, is there understanding or agreement 8 among counsel as to the order of presentation? I know that 9 there was some issue about a witness on behalf of Mr. Odeh who 10 is available this morning -- 11 MR. RICCO: He is available this morning, and 12 Mr. Dratel and Mr. Schmidt have allowed us to call him out of 13 turn. 14 THE COURT: What is the turn, when you say out of 15 turn? 16 MR. RICCO: We were going to follow the indictment, 17 your Honor. Mr. Schmidt and Mr. Dratel will present their 18 case first and then we will follow, and Al-'Owhali and K.K. 19 Mohamed. 20 THE COURT: So I should tell the jury that the case 21 will be presented in the following order, however, to 22 accommodate a witness on behalf of Mr. Odeh he will be called 23 first, or are you going to complete your entire case? 24 MR. RICCO: No, your Honor. His entire testimony 25 should not take more than an hour, 45 minutes, tops. 3979 1 THE COURT: Then, Mr. Schmidt, are you prepared to 2 proceed on behalf of Mr. El Hage? 3 MR. SCHMIDT: Yes. 4 THE COURT: Then I think we will await the jury. 5 MR. FITZGERALD: Your Honor, with regard to expert 6 disclosure, as you know, we have been seeking reverse 7 discovery for quite sometime, and last week we pointed out 8 that we had not received disclosure for the El Hage team, and 9 Thursday we were told we would receive it the next day. Last 10 night we received notice for Ibrahim al Rabi, which includes a 11 statement that his testimony will cover the following subjects 12 and lists the meaning of Arabic terms. It then continues with 13 the statement that Mr. Abu Rabi will also review certain 14 documents admitted in evidence such as declarations by Usama 15 Bin Laden, statements by witnesses, and certain of the 16 defendants, and other documents purporting to state Islamic 17 principles. 18 I don't think that is the appropriate disclosure of 19 what the expert testimony ought to be. I understand Mr. Abu 20 al Rabi was interviewed in 10 of 2000 and now we are getting 21 this statement on the eve of his testimony. 22 Second, there is a great concern that Mr. Rabi may be 23 a surrogate witness of Mr. El Hage. If any defendant wants to 24 indicate what their statements meant, there is a device for 25 doing that. Calling Mr. Abu Rabi, particularly without 3980 1 telling us in advance what statements he is going to talk 2 about or what his opinion is rather than topics, I think is 3 entirely inadequate. 4 MR. SCHMIDT: Would you like me to respond, your 5 Honor? 6 THE COURT: Yes. Is Mr. Fitzgerald's concern that 7 this witness will testify as to what Mr. El Hage understood or 8 believed, is that a real concern? 9 MR. SCHMIDT: No, your Honor. 10 MR. FITZGERALD: Your Honor, would my concern be real 11 if we asked if he is going to testify about any of Mr. El 12 Hage's statements? It says here that Mr. Abu Rabi will review 13 statements by witnesses and certain of the defendants and I am 14 wondering whether he is going to testify and review any of 15 Mr. El Hage's statements or his grand jury testimony. 16 MR. SCHMIDT: We actually have a thought about 17 reviewing the grand jury testimony of Mr. El Hage -- perhaps 18 we will. That was not our plan. 19 THE COURT: Before you do that, alert the court and 20 we will have comments on that. If the court permits testimony 21 by this witness which indeed takes the government by surprise 22 and the government wishes to defer cross-examination, I will 23 entertain an application. I think the government is entitled 24 to the same notice and the same opportunity to prepare prior 25 to cross-examination as is accorded to the defendants. 3981 1 MR. FITZGERALD: Two points, your Honor -- three 2 points. First, his letter says they are going to review 3 statements by defendants. Could they specify statements? We 4 shouldn't close the barn door after the problem is out. 5 THE COURT: Does "defendants" refer to defendants on 6 trial or defendants listed in the indictment? 7 MR. SCHMIDT: If I may, your Honor, they review their 8 witnesses' testimony and the exhibits that they put in. Any 9 expert, if he is talking about matters that were raised by the 10 government, he should review what was said and he will do so. 11 So he will be reviewing testimony of the witnesses concerning 12 issues involving Islam -- 13 THE COURT: Talking about which witnesses? 14 MR. SCHMIDT: Al Fadhl, maybe Kherchtou, maybe -- 15 THE COURT: None of the four defendants on trial. 16 MR. SCHMIDT: The only statements that we would seek 17 to review are statements relating to perhaps Al-'Owhali and 18 Mr. Mohamed, but just to receive a full background of what is 19 before the court, not to make a specific comment on those 20 statements. 21 (Continued on next page) 22 23 24 25 3982 1 THE COURT: Any question which is designed to elicit 2 any statement by the witness with respect to something said by 3 Mr. al-'Owhali or any other defendant on trial should not be 4 done in open court before the court. And Mr. Cohn, you 5 obviously are agitated at the prospect of a witness testifying 6 as to what Mr. al-'Owhali meant or intended, and I think my 7 ruling should assuage that. 8 MR. SCHMIDT: Your Honor, we're not going to go into 9 anything to do with what somebody means. 10 THE COURT: Excuse me? 11 MR. SCHMIDT: We're not talking about saying what 12 somebody means, we're talking about referring to what a word 13 or statement signifies in Islam. That's all we're talking 14 about. So I don't think that should be a surprise to anybody. 15 THE COURT: Yes. 16 MR. FITZGERALD: Two points, your Honor. Rule 16 17 says "the defendant shall, at the government's request, 18 disclose to the government a written summary of testimony that 19 the defendant intends to use." 20 We have been asking for years and told there is 21 nothing and now we're told the topics. We're not told what he 22 is going to say. He's going to talk about Jihad, Islam terms 23 and defendant's statements. We are not told what he is going 24 to say. 25 I think if we're going to be fair here -- Mr. Schmidt 3983 1 stood up and told us about the two years he's worked on the 2 case and how he knows the nuances. I think he can come up 3 with a little bit more disclosure, a lot more disclosure, a 4 lot more, in advance of that. 5 THE COURT: What would you propose? 6 MR. FITZGERALD: He can give a summary of what his 7 testimony will be so we have a right to move to preclude and 8 we don't walk into a mistrial if he would have asked things 9 about Mr. al-'Owhali and, if appropriate, we have a Daubert 10 hearing. 11 In addition to that, there is no disclosure regarding 12 the Somalia expert they may call next week. So while he may 13 be called next week, the expert disclosure notice is not Jenks 14 Act material. We should know in advance so we can prepare. 15 THE COURT: Do you want to spend 15 minutes 16 questioning this witness outside of the presence of the jury? 17 MR. FITZGERALD: We want to know -- I don't know what 18 he has to say. If you tell me what he has to say, we can move 19 along, but we're just being told -- 20 THE COURT: Do you want to ask him? 21 MR. SCHMIDT: The letter talking about the subject 22 and the memoranda that accompanied the letter sets out in 23 as -- sets out very clearly the subject and what his beliefs 24 are. I don't think it needs to be a Q and A given to the 25 government. 3984 1 THE COURT: I think that on the first occasion, if 2 ever, on which a question is asked of this witness which you 3 think is a permissible question but which takes you by 4 surprise, you request a conference. 5 MR. FITZGERALD: Your Honor, could we have notice of 6 the Somalia expert, which is overdue, before he shows up next 7 week and we have the same issues, what he will testify about 8 Somalia? 9 THE COURT: Yes, and if it's not, if it's -- yes, is 10 the answer to Mr. Fitzgerald's question. And if it is not 11 really informative, then the Court will consider requiring a 12 full written statement, something which makes the government's 13 ability to cross-examine the witness meaningful. We'll 14 break -- 15 MR. SCHMIDT: One major problem with Somalia, your 16 Honor, is that we don't know what the government's case is yet 17 on Somalia. To set forth what our expert is going to testify 18 to when we don't know yet what the government's case is is 19 difficult. If the government wants to provide to us a 20 statement as to what their case will be in Somalia, we will be 21 better able -- 22 THE COURT: Didn't the government do that at the 23 conference last week? Didn't the government indicate to you 24 what the substance was going to be of a witness that they 25 would call in lieu of the stipulations? I believe -- 3985 1 MR. SCHMIDT: They indicated some extent, but not the 2 full extent. 3 THE COURT: We'll take a brief recess and then 4 proceed before the jury. 5 MR. RUHNKE: Just one question, your Honor. Are you 6 going to entertain argument this afternoon at the end of the 7 day on the severance issue? 8 THE COURT: Yes, the severance issue and the -- 9 MR. RUHNKE: Subpoenas. 10 THE COURT: -- subpoena issues. 11 MR. COHN: Your Honor, may I just inquire. We had 12 some difficulty because of the holidays filing the response. 13 Did your Honor receive it, our response? 14 THE COURT: Yes. 15 MR. COHN: Thank you. 16 THE COURT: Yes. The jurors are all here. 17 Tomorrow we're going to adjourn at 4:00 to 18 accommodate the juror's request. 19 MR. FITZGERALD: Your Honor, I did want to mention to 20 the jury there are a number of exhibits or stipulations being 21 corrected. For example, the El Hage team wanted a word 22 changed in an exhibit which we have circulated. Rather than 23 bore the jury, we'll offer whatever exhibits we're offering. 24 But for corrected stipulations or exhibits, we're circulating 25 them; I want to make sure counsel agrees with them. And I 3986 1 think we want to replace the stipulations. 2 THE COURT: All right. 3 (Jury present) 4 THE COURT: Morning, ladies and gentlemen. Welcome 5 back. I hope you all had a pleasant holiday. May I ask 6 whether during the recess any juror has seen, read or heard 7 anything related to this case? 8 THE JURY: No. 9 THE COURT: Tomorrow we will adjourn promptly at 4 10 p.m. to accommodate a juror's request. If I get carried away 11 at 4:00 and forget, raise your hand and we'll adjourn. 12 Mr. Fitzgerald. 13 MR. FITZGERALD: Yes, Judge. Thank you. At this 14 time the government would offer Government Exhibits 127, 128, 15 and 129, which are photographs of three persons with their 16 names listed on the exhibit. 17 We would also offer Government Exhibit 507 and 508, 18 fingerprint cards previously referred to; Government Exhibit 19 526B, as in boy; Government Exhibit 617T, which is a 20 translation of Government Exhibit 617; Government Exhibit 21 800A, as in alpha, which is a photograph of the model that was 22 called Government Exhibit 800; Government Exhibit 1070 and 23 1071, which were the report and notes of Special Agent 24 Perkins; Government Exhibit 1100A, as in alpha, which is a 25 photograph of the model of Government Exhibit 1100; Government 3987 1 Exhibit 1360T, which is a translation of a letter in Swahili 2 which was marked as Government Exhibit 1360; Government 3 Exhibits 1421 and 1421T, which were referred to in the 4 stipulation which has been marked as Government Exhibit 60; 5 and finally, Government Exhibit 1460T, a translation of 6 Government Exhibit 1460. 7 THE COURT: All of those exhibits are received. 8 (Government Exhibits 507, 508, 526B, 617T, 800A, 9 1070, 1071, 110A, 1360T, 1421, 1421T and 1460T received in 10 evidence.) 11 MR. FITZGERALD: At this time we would like to just 12 pass out copies of 127 and 128 and 129 to the jury for their 13 books. Those are the three photographs. 14 THE COURT: May I see a copy? 15 MR. FITZGERALD: Yes. 16 MR. BUTLER: Your Honor, at this time the government 17 calls Ismail Jama Ali. 18 ISMAIL JAMA ALI, Recalled. 19 THE COURT: You've previously been sworn, have you 20 not? 21 THE INTERPRETER: No. 22 THE COURT: You have never been sworn? 23 THE INTERPRETER: Previously, but -- 24 MR. BUTLER: Yes, your Honor, I believe he was the 25 prior interpreter for Mr. Ali. 3988 1 THE COURT: The court advises Mr. Ali and advises 2 you, the translator, that you are still under oath. 3 And your name, sir? 4 THE INTERPRETER: Ahmed Jama, A-H-M-E-D J-A-M-A. 5 MR. BUTLER: Your Honor, today Mr. Ali will testify 6 through the interpreter. 7 THE COURT: Very well. 8 MR. BUTLER: May I proceed? 9 THE COURT: Yes. 10 DIRECT EXAMINATION 11 BY A JUROR: 12 Q Mr. Ali, I believe you previously testified that you are 13 the owner of a money transfer business called Dahab Shil 14 located in the Eastleigh section of Nairobi, correct? 15 A Correct. 16 Q After you completed your testimony and returned to Kenya, 17 did you look for any documents related to the transaction that 18 was the subject of your testimony? 19 A Yes. 20 Q Could you tell the jury what you did? 21 A I found the records and when I left over here, that's what 22 I was told to look. 23 Q And you looked for which records? 24 A The voucher payment. 25 Q Were you able to locate them? 3989 1 A Yes. 2 Q And once you located them, what did you do with them? 3 A I made a photocopy and I took it to the FBI agent. 4 Q What did you do with the original? 5 A Also I gave the original to the FBI agent. 6 Q Mr. Ali, I would ask if you would mind just putting on the 7 white gloves that are there on the witness stand for you, and 8 I would like to show you what has been previously marked for 9 identification as Government Exhibit 580A. 10 A I have seen that. 11 Q Mr. Ali, do you recognize Government Exhibit 580A? 12 A Yes. 13 Q What is Government Exhibit 580A? 14 A That's the book we use when we make a payment. 15 Q Are those records kept in the ordinary course of the 16 business of Dahab Shil? 17 A At that time that's what we used to use. 18 Q I would ask you, sir, there's a page that's been flagged 19 with a Post-It that's been marked as Government Exhibit 20 580A-6383. Could you just turn to that page, sir. It's 21 marked with a yellow flag there, Mr. Ali. 22 MR. BUTLER: May I approach, your Honor? 23 THE COURT: Yes. 24 Q You see it, Mr. Ali? 25 A Yes, I can see it. 3990 1 Q Do you recognize the page that's been previously marked as 2 Government Exhibit 580A-6383? 3 A Yes. 4 Q What is that page? 5 A That's the page we used for the transaction. 6 Q And is that a document that's kept in the ordinary course 7 of business of Dahab Shil? 8 A Yes. 9 MR. BUTLER: Your Honor, at this time I would offer 10 Government Exhibit 580A, including the page marked at 11 580A-6383. 12 MR. COHN: No objection. 13 THE COURT: Received. 14 (Government Exhibits 580A and 580A-6383 received in 15 evidence) 16 BY MR. BUTLER: 17 Q If we could publish to the jury the page marked as 18 Government Exhibit 580A-6383. 19 Mr. Ali, there's some writing on that page that's not 20 in English. Could you tell us what language that's in? 21 A It's a Somalian language. 22 Q If we begin with the information on the top of the middle 23 of the page that's in the box, could you tell us what that 24 says? 25 A Yes. 3991 1 Q What does that say? 2 A The first page -- 3 Q The top of the middle of the page there's a box with a 4 language that begins X-A-A, could you tell us what that means? 5 A That is the form of payment. 6 Q And if we move down to the left-hand side, the information 7 beginning on the left that begins T-A-A, what does that mean 8 there? Mr. Ali, what does that mean? 9 A The date we received the transaction. 10 Q And what date is listed on the payment voucher? 11 A August 11, 1998. 12 Q If we move down to the next line where it begins X-A-W, 13 could you tell us what that information is? 14 A The transaction number. 15 Q Is that a number that is used by Dahab Shil? 16 A That's the number we receive from the central office. 17 Q Now if we move to the middle of the page, the word Wadan 18 and then the word Yemen appears, what information is that? 19 A The Somalian language, the word that is the country. 20 Q And when it says country Yemen, what information is that 21 providing in the payment voucher? 22 A The way we use in the office, is the country we receive 23 the transaction. 24 Q If we move across the page there is a word that looks like 25 T-A-A-R-I-I-K-H, what does that mean? 3992 1 A The date we give out the money. 2 Q And what date appears there? 3 A Same date we received the transaction. 4 Q And what date is that? 5 A August 11, 1998. 6 Q On the next line there is a serial number 6383, what is 7 that? 8 A That's the serial number for the payment voucher number. 9 Q If we go across it says "cash" and then there is 1,000. 10 What denomination of currency is that indicating? 11 A American dollars. 12 Q If we go down to the next three or four lines there, there 13 is some writing and then the name Khalid Salim Bin Rashid and 14 then some more. Could you just translate that for us? 15 A "Khalid Salim Bin Rashid. I declare I received from Dahab 16 Shil a total amount 1,000 only." 17 Q And now if we look at the very bottom of the page on the 18 left-hand side, there's a signature and Somali words under 19 that signature, what does that say there? 20 A The name and the signature. 21 Q Whose name is that? Whose signature is that? 22 A The person who received the money. 23 Q If we look over to the right-hand side of the page on the 24 bottom, there's another signature, and whose signature is 25 that? 3993 1 A The person who gave out the money. 2 MR. BUTLER: No further questions, your Honor. 3 MR. COHN: Thank you, your Honor. 4 THE COURT: Mr. Cohn. 5 Mr. Cohn, on behalf of defendant Al-'Owhali. 6 CROSS-EXAMINATION 7 BY MR. COHN: 8 Q Sir, when last you testified was about a month and a half 9 ago; is that right? 10 A At that time. 11 Q Yes. And you presented two documents which were marked 12 Government Exhibit 580-115 and 580-117 at that time; is that 13 right? 14 A Yes. 15 Q And those documents were ledger sheets that had been 16 tampered with by your office before they were presented; is 17 that correct? 18 MR. BUTLER: Objection, your Honor. 19 THE COURT: Sustained. 20 BY MR. COHN: 21 Q Well, let's put -- if your Honor would permit me, ask the 22 government to put up 581-115, and if they would highlight the 23 three entries that are in about the middle of the page, or the 24 two entries and the one smudge. Just the lower ones. The 25 ones in the middle, not the top. Can you do that? 3994 1 Now, you recollect that document? 2 A Yes. 3 Q And what appears to be the empty line is in fact an entry 4 that had been erased somehow; is that right? 5 A Yes. 6 Q Would you put up 172, 580-117 and highlight the same area, 7 please. 8 And this is the other ledger page that you had then 9 brought with you, is it not? 10 A Yes. 11 Q And the middle line, apparently something was also erased; 12 is that right? 13 A Yes. 14 Q And the erasures were done so that people in authority 15 could not see the entry, is that not true? 16 A The reason it has been erased, because one of my staff, he 17 was paranoid and he erased it. 18 Q He was paranoid. Is that a psychiatric evaluation? 19 MR. BUTLER: Objection, your Honor. 20 THE COURT: Sustained. 21 Q It was erased so that it would not be seen by somebody, is 22 that not correct? 23 A I don't know what he was thinking, but I think he was 24 scared. 25 Q Do you know whether those two documents have been 3995 1 subjected to any tests to see what is underneath the erasure 2 or to resurrect the -- 3 THE COURT: You can answer that. 4 Q -- the signature? 5 THE COURT: Do you know? 6 Q Do you know? 7 THE INTERPRETER: Can you repeat the question for me? 8 MR. COHN: Can we have it read back, your Honor? 9 THE COURT: Does he know what tests were performed on 10 these documents to make the erasure visible, yes or no. 11 THE WITNESS: After we erased it? 12 THE COURT: Yes. 13 THE WITNESS: Yes. 14 Q Yes, you know? 15 A Can you repeat it again? 16 Q Do you know, sir, do you personally know, whether the 17 government or anybody else has performed tests on those two 18 documents, or either of them, to determine what was written 19 underneath the erasure? 20 A Yes. 21 Q And was it done? Was such a test performed? 22 A When I realized he erased it, I rewrite it and we had no 23 reason to erase it. 24 MR. COHN: Move to strike as non-responsive, your 25 Honor, and I'll go on to something else. 3996 1 THE COURT: Yes. 2 BY MR. COHN: 3 Q Now, you said on direct testimony that the government 4 asked you to look for this document that you have now 5 produced; is that right? 6 MR. BUTLER: Objection, your Honor. 7 MR. COHN: That was precisely his testimony. 8 THE COURT: Please. 9 MR. COHN: I'm sorry, your Honor. 10 THE COURT: Why don't you just ask the question 11 without the preamble. 12 MR. COHN: Respectfully, I believe I'm entitled to 13 ask it this way. 14 THE COURT: Go ahead. 15 MR. COHN: Thank you. 16 Q You said on direct that the government asked you to look 17 for the document that you now produced; is that correct? 18 MR. BUTLER: Objection, your Honor. 19 Q And when did they make this request of you? 20 A The government never called me and told me I have to look 21 for the document. 22 Q So it's now your testimony that you did this on your own? 23 MR. BUTLER: Objection, your Honor. 24 THE COURT: Sustained. Stricken. 25 Q When did you commence looking for this document? 3997 1 A Are you asking me, myself, or the government? 2 Q You, yourself. 3 A At the same day he erased, he told me, and after he told 4 me, I rewrite it. 5 MR. COHN: Can we have that read back? I didn't 6 understand it. 7 THE COURT: It will be stricken as non-responsive. 8 No. 9 You told us that after you returned to Kenya you 10 looked for some further documents? 11 THE WITNESS: Yes. 12 THE COURT: When did you do that? 13 THE WITNESS: After I went back. 14 BY MR. COHN: 15 Q Immediately after you went back? 16 A Yes. 17 Q And that was about a month and a half ago? 18 A I left here March 10 and I don't remember the exact date I 19 did the search, but soon I discover it after I start the 20 search. 21 MR. COHN: I have no further questions. 22 MR. BUTLER: Nothing further, your Honor. 23 THE COURT: Thank you. You may step down. 24 MR. BUTLER: At this point I would ask if we could 25 just put Government Exhibit 580A-6383 on one side of the 3998 1 screen, and on the other side of the screen if we could put up 2 Government Exhibit 575, which has been previously admitted 3 into evidence, which is the landing card from the flight from 4 Kenya into -- from Pakistan into Kenya. And if we could 5 highlight the signature at the bottom left-hand corner of 6 Government Exhibit 580A and then the signature on Government 7 Exhibit 575. 8 Nothing further, your Honor. 9 THE COURT: Anything else? 10 MR. FITZGERALD: Yes, the government rests. 11 THE COURT: The government rests. The government 12 rests subject to certain stipulations and certain statements 13 that have been previously made to the Court. 14 We'll be three minutes, and I'll see counsel and the 15 reporter in the robing room. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 3999 1 (In the robing room) 2 THE COURT: The Court has previously heard oral 3 argument on the government's motion pursuant to Rule 29. The 4 government has also been heard, and the Court made various 5 rulings at that time, all of which the Court reaffirms and 6 reasserts. 7 The only matter which was left unresolved was the 8 jurisdictional challenge to the last count in the indictment, 9 as to which the Court has reserved decision pending 10 submissions by the parties. 11 The Court finds at the conclusion of the government's 12 case that the government has made an adequate showing of the 13 existence of a conspiracy and that the statements which were 14 received in evidence were statements made by coconspirators 15 during the course of and in furtherance of the conspiracy. 16 Thank you. 17 MR. COHN: Your Honor, you might want to correct. 18 You misspoke and said it was the government's motion and it -- 19 you misspoke. 20 THE COURT: The defendants' motion. The Rule 29 21 motion was a motion made on behalf of the defendants. 22 (Continued on next page) 23 24 25 4000 1 (In open court) 2 THE COURT: Ladies and gentlemen, as you have heard, 3 subject to some qualification, which you need not concern 4 yourself with now, the government has rested and so we now 5 proceed with the defense case. 6 My understanding is that the defendants will present 7 their case in the order in which they are listed in the 8 indictment, that is, Mr. El Hage, on behalf of Mr. El Hage, 9 Mr. Odeh, Mr. al-'Owhali and Mr. K.K. Mohamed. However, to 10 accommodate a witness who will otherwise be unavailable, 11 counsel have agreed that Mr. Odeh may call a witness out of 12 turn. 13 The sequence in which defense presents their case is 14 of no consequence. 15 Mr. Ricco. 16 MR. RICCO: Ladies and gentlemen, the first witness 17 called by defendant Mohamed Odeh is Dr. John Lloyd. 18 Mr. Herman will be conducting the examination, and since you 19 are taking notes, please keep in mind this witness is being 20 taken out of turn so the rest of the witnesses for Mr. Odeh, 21 we will not be hearing from them until after the completion of 22 the case of Mr. El Hage. 23 Thank you very much. 24 Thank you, your Honor. 25 JOHN BRIAN FORD LLOYD, 4001 1 called as a witness by the Defendant Odeh, 2 having been duly sworn, testified as follows: 3 DEPUTY CLERK: Please be seated, sir. Please state 4 your full name. 5 THE WITNESS: My name is John Brian Ford Lloyd. 6 DEPUTY CLERK: Please spell your last name. 7 THE WITNESS: L-L-O-Y-D. 8 DEPUTY CLERK: Thank you. 9 DIRECT EXAMINATION 10 BY MR. HERMAN: 11 Q Good morning, Dr. Lloyd. 12 A Good morning. 13 Q If you would be good enough to either lean into that 14 microphone or bend it towards you so everyone can hear you. 15 Thank you. 16 Dr. Lloyd, can you tell the jury where you live? 17 A I live in England. 18 Q Can you tell the jury, what is your occupation? 19 A I'm a forensic scientist. 20 Q How long have you been a forensic scientist? 21 A Since 1966. 22 Q Can you give the jury the benefit of your education in the 23 area of your specialty? 24 A My qualifications are doctor of philosophy, doctor of 25 science, a fellow of the Royal Institute of Chemistry and a 4002 1 chartered chemist. 2 Q After you received your education, where were you 3 employed? 4 A I was employed in the Home Office Forensic Science Service 5 of United Kingdom. 6 Q And can you tell the jury, who may not be familiar with 7 that, what is the Home Office Forensic Science? 8 A The Home Office is a department of government responsible 9 for law. The department had a series of laboratories, 10 forensic science laboratories, throughout England and I worked 11 in one of those. 12 Q How many years did you work for one of those laboratories? 13 A Until 1991. That is about 25 years. 14 Q During your service for those 25 years what type of 15 activities did you engage in? 16 A I was involved in case work and in research. The case 17 work was involved the chemical and physical examination of 18 specimens submitted to the forensic laboratories. I have a 19 particular interest in explosives traces. 20 Q About how much of your time during those 25 years was 21 devoted to research in the area of explosives and trace 22 evidence regarding explosives? 23 A Off and on, about ten years, I suppose. 24 Q And was this laboratory research you were doing at the 25 time? 4003 1 A It was laboratory research, yes. 2 Q The Home Office, is that -- and I know that England 3 doesn't have an FBI like the United States, but is the Home 4 Office essentially associated with law enforcement in England? 5 A Yes, it is. 6 Q During the course of your career as a forensic scientist, 7 have you had the opportunity to testify in courts? 8 A Yes. 9 Q In which countries have you testified as an expert? 10 A Mostly in United Kingdom. I have testified also in 11 Germany, in Ireland, and in the United States. 12 Q Approximately how many occasions, if you know, 13 approximately, have you testified as an expert in the area of 14 forensic science? 15 A Of the order of 100 times. It's very difficult to give a 16 precise estimate because this covers 30 years' work. 17 Q Have you had occasion to testify both for the prosecution 18 and the defense in criminal matters? 19 A That is correct. 20 Q And have you also had occasion to testify in civil 21 matters? 22 A Yes. 23 Q During the course of your career, Dr. Lloyd, have you 24 received any honors for the work that you have done? 25 A I was awarded the honor OBE, as it is called, which stands 4004 1 for the Officer of the Order of the British Empire, which was 2 awarded by the queen. 3 Q And have you had the occasion to involve yourself with the 4 publication of scientific articles or other publications? 5 A I have published more than 50 articles on various areas of 6 forensic science, some roughly 20 of these would be concerned 7 with explosives traces. 8 Q Have you also been appointed by any judicial bodies in 9 England in terms of judicial inquiries? 10 A Yes. I've been appointed as the independent expert on 11 explosives and firearms residues to the governmental inquiry, 12 which has been set up by the government to investigate the 13 Bloody Sunday Affair which took place in Northern Ireland in 14 the 1970s. 15 Q And is your appointment in that situation, is that as an 16 independent expert? 17 A Yes, it is. 18 Q Now, Dr. Lloyd, did there come a time when you were asked 19 by lawyers for Mr. Odeh to look at certain items and documents 20 associated with this case? 21 A Yes. 22 MR. HERMAN: Judge, I don't know if there's any 23 objection by the government, but I would move to have 24 Mr. Lloyd qualified as -- 25 MR. FITZGERALD: No objection. 4005 1 THE COURT: All right. 2 MR. HERMAN: Thank you, your Honor. 3 BY MR. HERMAN: 4 Q Dr. Lloyd, I was asking you about information which you 5 were requested to examine as it pertains to this case. Were 6 you given such information? 7 A Yes. 8 Q Could you tell the jury generally the types of documents 9 that were provided to you in terms of your participation in 10 this case? 11 A The documents are almost completely laboratory reports 12 prepared by Agent Mount and others in this case. 13 Q Were you also given documents pertaining to the chain of 14 custody of certain exhibits? 15 A Yes, I was. 16 Q And were you also permitted the opportunity to review the 17 minutes of the trial testimony of some of the witnesses who 18 have testified previously in this case? 19 A That is correct. 20 Q And also did you have the opportunity to look at certain 21 items of evidence associated with this case? 22 A Yes, I have seen some. 23 Q Directing your attention to results of the FBI Chemist 24 Kelly Mount, are you familiar with the testing that she did 25 with regard to this case? 4006 1 A Yes. 2 Q And did she determine with regard to three items -- that 3 would be K53, which is a pair of pants, Government Exhibit 4 535A; K54, Government Exhibit 535B, which is a plaid cloth; K 5 55, Government Exhibit 535C, which is a red shirt with the 6 words Team-Shell on it -- did she come to a conclusion with 7 regard to whether or not those items were positive for 8 explosives? 9 A She came to a conclusion that those items were positive 10 for explosives, yes. 11 Q And have you reviewed her bench notes regarding the 12 testing that she did with those items? 13 A I have. 14 Q Is it your understanding based on what you know about this 15 case that those items were associated with a particular Nike 16 bag which was seized from Mr. Odeh when he was apprehended in 17 Pakistan? 18 A That is my understanding, yes. 19 Q Dr. Lloyd, please look at what has been marked in evidence 20 Defense Exhibit Odeh DD. Have you seen that photo before? 21 A I have seen the photo before, I believe. I'm not quite 22 certain whether this particular one has been seen by me, 23 but -- 24 Q You got to speak into the microphone. 25 A I beg your pardon. 4007 1 Yes, I have seen a photograph, or one similar to 2 this, before. 3 Q Did you see the actual bag as well? 4 A Yes, I have seen the bag. 5 Q Dr. Lloyd, looking on your screen, I hope -- thank you -- 6 is Odeh Exhibit DD. Is that the bag that you looked at with 7 the clothing in it? 8 A Yes, it appears to be. 9 Q Is it your understanding that that's how these items were 10 contained in the bag before they were taken out and packaged 11 or some of them packaged individually? 12 A It is my understanding, yes. 13 Q Taking you back to the analysis that Kelly Mount 14 performed, is there any indication from any of the documents 15 that you have reviewed or from her testimony that she was able 16 to determine the amount of explosives which she found on these 17 various items? 18 A I've seen no evidence that the amount of explosives on 19 these items was determined. 20 Q As a forensic scientist, is it important to you when you 21 make an analysis of items and you come up with a positive 22 finding to make a determination as to the amount of the 23 explosives on a particular item? 24 A Yes, it is very helpful to do that. 25 Q Could you explain to the jury, based on your knowledge and 4008 1 experience and background, why that's important and helpful? 2 A First of all, very simply, the more explosive there is, 3 the more significant the evidence is likely to be. If there's 4 a large amount of explosive on a person's clothing, that is 5 clearly of greater significance or likely to be of greater 6 significance than if a very tiny trace of explosive is 7 present. 8 If a person has been in recent contact with 9 explosives, with intact explosive or perhaps has been trying 10 to make a bomb or something of that sort, then one would 11 expect to see a large amount of explosive on his clothing. 12 One would not expect to see merely a trace of explosive. It 13 could be a residue from a contact with explosive a long time 14 ago, or it could be a trace picked up because he's been in 15 contact with a contaminated surface, a contaminated person. 16 This sort of information can be indicated to a person if he 17 knows how much explosive was there. In this case, it seems we 18 do not. 19 Q Dr. Lloyd, given the techniques which the FBI used, do you 20 have an explanation or can you determine why the amounts were 21 not identified in this case? 22 A It seems to me that the reasons given by the FBI are that 23 they do not consider this to be an important matter. There's 24 no fundamental reason why the quantities couldn't have been 25 determined, in my view. 4009 1 Q Could the tests that the FBI lab performed, could they 2 have been calibrated to give us some information as to the 3 amount of explosives as well as whether or not explosives were 4 found to exist? 5 A Yes, in my view, without too much difficulty they could 6 have been calibrated to determine the amount of explosive that 7 had been recovered or detected on the items that we're 8 concerned with. 9 Q Are you familiar with the sensitivity of the tests which 10 the FBI used to determine whether or not there were explosives 11 on various items of clothing in this case? 12 A Yes, in general terms I am. 13 Q And is it -- can you tell the jury how small a trace of 14 explosives could be and still be picked up by the tests 15 utilized by the FBI? 16 A The amount that can be detected -- it's called the 17 detection limit technically -- does depend somewhat on exactly 18 how the item has been tested, but for general purposes one can 19 consider that down to a nanogram amounts are detectable. A 20 nanogram is a billionth of a gram. It is a submicroscopic 21 amount, as it has been described here, a very tiny amount. 22 Q Is a nanogram of explosives visible to the naked eye? 23 A It is not. 24 Q Is there any way that you can give the jury a description 25 of how small a nanogram is? 4010 1 A A very tiny dust particle might give you some indication. 2 One could put it another way that if you had a thimble full of 3 explosive, you would have enough nanograms there to 4 contaminate generally 20 billion people, most of the 5 population of my country. 6 Q Were you given information, Dr. Lloyd, that in this case 7 the TNT which was allegedly used in the bombs was ground up by 8 a device? 9 A I understand that that may have occurred, yes. 10 Q And is that, the grinding up of TNT, is that something 11 that you have encountered in other cases over your 30 years of 12 experience? 13 A I have not. 14 Q Do you know whether there is a scientific basis for 15 utilizing a grinder on TNT before it's placed into a bomb? 16 A I don't understand the reason why this was done. There 17 does not seem to be a scientific basis for it. 18 There are some explosives compositions which are a 19 mixture of TNT with one of the components that is used in 20 fertilizers. That is a possible explanation, although it does 21 rather seem to be a waste of a very powerful explosive to 22 grind it up. 23 The power of an explosive depends upon the extent to 24 which it is compacted. If you grind it up and powder it, it 25 is obviously a less compacted material and less effective as 4011 1 an explosive. 2 Q Nonetheless, would the act of grinding up the TNT, would 3 that create finer particles of TNT and therefore make it 4 subject to greater dispersion? 5 A Yes. Anything, anybody in the vicinity of this sort of 6 operation would be contaminated with it. I think that cannot 7 be reasonably doubted. 8 Q Would you expect -- when you say contamination, would you 9 expect, relatively speaking, a fairly large amount of 10 contamination given the fact that the TNT was put through a 11 grinder? 12 A Yes. In terms of the amount that can be detected by 13 laboratory tests, then I think there could be quite an extreme 14 contamination. 15 Q Now, Dr. Lloyd, have you performed or read about or been 16 involved with studies of how explosives residue is transferred 17 from one surface to another surface? 18 A I have conducted some studies and I'm familiar with other 19 studies that have been conducted in this area, yes. 20 Q Incidentally, do you go to conferences and communicate 21 with other individuals in your field to kind of keep up with 22 what is happening in terms of trace evidence and explosives? 23 A Yes. 24 Q How many individuals are there in the world, let's say, 25 who do what you do as a specialty? 4012 1 A I don't really know. I think there must be quite a 2 number, really. 3 Q How many in England do you know? 4 A I don't, I don't know anybody working as a consultant in 5 this area in England. 6 Q It's a highly specialized area that you are involved with? 7 A Yes, I suppose it is, yes. 8 Q Can you explain to the jury, based on your own 9 experiments, your reading, your experience, as to in effect 10 how explosive residue is transferred from one surface to 11 another surface? 12 A The transfer occurs when two surfaces come into contact. 13 It's as simple as that. Just as though if you came into 14 contact with somebody who had been working on a building site, 15 you might get dust on your clothing, or if he had been working 16 on his car and got oily clothing, you might get oil stains on 17 your nice new clothing. It's just the same thing. 18 There's nothing special about the readiness with 19 which explosives are transferred. It's simply the physical 20 phenomenon of transferring two bits of material from one 21 surface to another. 22 Q And for instance, could it be transferred by someone who 23 had explosive residue on their hand, let's say, shaking hands 24 with another person? 25 A Yes, it could be. 4013 1 Q And if they had explosive residue on their clothing and 2 they came into contact with another person by perhaps giving 3 them an embrace or somehow brushing up against them, would 4 this be a common way that there would, could be a transfer of 5 explosives from one person to another person? 6 A Yes, this would result in a transfer of explosive between 7 two people. 8 Q And has this been demonstrated in laboratory experiments 9 that you are familiar with? 10 A In respect of some explosives, yes. In respect of TNT, so 11 far as I'm aware there have been no experiments conducted 12 between two people contaminated with TNT. But I have seen 13 cases of contamination by TNT where people have been in an 14 area where TNT has been handled. 15 Q Merely by being in an area where TNT has been handled 16 there has been contamination to another previously 17 uncontaminated item; is that correct? 18 A Yes. 19 Q If Mr. Odeh was not personally involved with handling TNT, 20 but assume that he received an item of clothing from an 21 individual who had been involved personally with TNT, could 22 there be a transfer from that individual to the item of 23 clothing? 24 A Yes. 25 Q If that item of clothing came into contact, for instance, 4014 1 in this Nike bag that we're looking at, physical contact with 2 one or more other items of clothing in that bag, could there 3 again be a transfer from that item to other items in the bag? 4 A Yes. 5 Q By the same reasoning, if an item of clothing had 6 previously not been contaminated but was placed on a surface 7 which had been contaminated with explosives, could there be a 8 transfer from that surface to that particular item of 9 clothing? 10 A Yes. That is quite possible, yes. 11 Q If there were items in the bag such as we have pictured 12 here, Odeh DD, would there necessarily be contamination of all 13 of the items in the bag? 14 A Not necessarily contamination of all of the items. The 15 contamination would occur primarily between the contaminated 16 item and any items that it touched. If it touched only two, 17 then only two items might become contaminated. 18 It should be said, however, that what we are talking 19 about is the amount of explosive which is detectable. It may 20 be that rather more than two or three items were contaminated, 21 but there might only be a limited amount of explosives to go 22 around so that one would end up with a detectable amount of 23 explosive only on one, two or three items. 24 Q Reviewing the bench notes and reports prepared by Kelly 25 Mount, does it appear that she tested the bag itself for the 4015 1 presence of explosives? 2 A Yes. 3 Q And does it appear that she tested the items which were 4 left in the bag by Agent Whittington -- Whitworth, I'm sorry, 5 the agent who separated some items back in Kenya and bagged 6 those individual items and then put the rest of the items back 7 in the bag, did Kelly Mount test the remaining items in the 8 bag, based on what you have reviewed? 9 A On the material that I have seen, there is no reference to 10 any testing of the items in the bag except for those which 11 were first separated out and given laboratory K numbers. 12 Q In terms of preservation of evidence, is the best way to 13 preserve evidence uncontaminated to keep it in a bag such as 14 this, or is it more appropriate, more proper to individually 15 bag individual items to keep them from cross-contamination? 16 A Well, in general, it is better to bag individual items. 17 Though if something has been jumbled together in a bag of this 18 sort, well, then that is a less critical matter because, as 19 we've explained, that the actual contact between different 20 items can result in a transfer so that one can never be sure 21 where the transfer traces come from under those circumstances. 22 Q So that the best that we can determine from what Kelly 23 Mount concluded here is that when she looked at these items, 24 these three items that I have indicated, K53, which was the 25 pants, K54, which was the plaid cloth, K55, which was the red 4016 1 "Team Shell" shirt, when she examined them at the end of 2 August in 1998, she found explosives on these items; is that 3 correct? 4 A Yes. 5 Q But other than that, there is no way of knowing, based on 6 anything you have seen in this case, where those explosives 7 came from, is that fair to say? 8 A That is correct. It's not possible to say where the 9 explosive came from. 10 MR. HERMAN: Excuse me one second. 11 (Pause) 12 BY MR. HERMAN: 13 Q Dr. Lloyd, did Kelly Mount test the clothing that Mr. Odeh 14 was wearing, his shoes and another pair of jeans? 15 A Yes, I believe she did. 16 Q And that was negative? 17 A That is correct. 18 Q Are you aware whether she tested the remaining items in 19 the bag other than the bag itself? 20 A I'm not aware that she tested the remaining items. 21 Q In any case, the only items that were deemed to be 22 positive were the three items that we have discussed here this 23 morning; is that correct? 24 A Yes. 25 Q If there were tests done on the remaining items but the 4017 1 level of contamination or the level of explosives was below 2 the FBI standard, would those items test positive or negative? 3 A They would be reported as negative. 4 Q And are there situations where there exists contamination, 5 but simply the instruments which are used to make the 6 determination are insufficient to establish that contamination 7 has taken place? 8 A Yes, that is quite correct. I am probably contaminated 9 with explosive at the moment because I have been examining 10 these items, but I do not imagine, after all this period of 11 time, that any of it would be detectible with the 12 instrumentation which is at present available. 13 Q And is that because of the passage of time since the items 14 were first seized? 15 A Yes, sir. Yes. 16 Q And also would that be related to the relatively small 17 amounts of contamination that you picked up simply by handling 18 the items? 19 A Well, we don't know how much was there in the first place. 20 I mean, if they were heavily contaminated, perhaps there might 21 be detectable amounts upon me. But I really don't know. 22 But just in principle, I would be contaminated, but 23 not necessarily detectibly. 24 Q Now, this morning did you have an opportunity to look at 25 K53, which is Government Exhibit 535A, which is that pair of 4018 1 jeans that Kelly Mount found tested positive for explosives? 2 A Yes. 3 Q And did you make a determination, based on your handling 4 of the jeans and viewing the jeans, whether they appear to be 5 new or worn or used? 6 A The jeans exhibit an appreciable level of wear. 7 Q And what is the basis for your conclusion with regard to 8 that? 9 A If one examines the pockets, the pockets are substantially 10 worn inside of them. There is an accumulation of fluff inside 11 the pockets, the sort of stuff that does accumulate in pockets 12 as the clothing is worn, and the button on the waistband of 13 the jacket, the button hole is very badly worn indeed. 14 Q Dr. Lloyd, you are aware that sometimes, at least in this 15 country, jeans are sold which look like they're old even 16 though you buy them and they're new? 17 A Yes. 18 Q Some people like the idea of used-looking clothing, is 19 that your -- 20 A Yes, it is. 21 Q Is that what we're talking about, or are you talking 22 about, from your vantage point, that these are actually jeans 23 which not only may have been manufactured to look used but, in 24 fact, were used? 25 A Yes, they were used. They wouldn't have been sold with a 4019 1 wrecked button hole on them. 2 MR. HERMAN: That's all I have. Thank you, your 3 Honor. Nothing further. 4 MR. FITZGERALD: May I have one moment, your Honor? 5 (Pause) 6 THE COURT: Mr. Fitzgerald. 7 MR. FITZGERALD: Yes. 8 CROSS-EXAMINATION 9 BY MR. FITZGERALD: 10 Q Good morning, sir. 11 A Good morning. 12 Q My name is Pat Fitzgerald. If I talk too fast, please 13 slow me down. 14 Now, you left the Home Office laboratory in 1991, 15 correct? 16 A Yes. 17 Q And in the ten years since that time, is it fair to say 18 that each time you have testified in court it's been on behalf 19 of the defense, correct? 20 A No. 21 Q No? 22 A I beg your pardon. That I have testified in court, yes. 23 But I have not been instructed on behalf of the defense on 24 each occasion. I have conducted work for the police. In 25 fact, I just concluded a case for the police. And I am 4020 1 appointed as an independent expert by a government inquiry to 2 give independent evidence as an expert on explosives and 3 firearms residues in one of the most important inquiries 4 that's been held in England for very many years. 5 Q My question to you is, when you have testified in court -- 6 start there, we can discuss the other matters -- when you have 7 testified in court since 1991, have you testified on behalf of 8 the defense each time? 9 A Yes. 10 Q And when you have testified in court, is it fair to say 11 that in no case can you ever rule out the possibility of 12 contamination, correct? 13 A That is quite right. 14 Q Your work in this case, you haven't yourself performed any 15 chemical analyses on the items in this case, correct? 16 A That is correct. 17 Q You have reviewed the items of the work that had been done 18 by Agent Mount, correct? 19 A Yes. 20 Q As you sit here today, do you know whether Agent Mount 21 analyzed any of the clothing items that were in the Nike bag 22 other than the ones that were tested positive, meaning the 23 pants, the shirt and the sheet? 24 A I have seen nothing in the reports with which I have been 25 provided that these other items have been examined. 4021 1 Q Have you seen Agent Mount's testimony? 2 A Yes. 3 Q As you sit here today do you recall whether or not she 4 testified as to whether or not she conducted any analysis of 5 whether or not the clothing in the Nike bag was tested for the 6 presence of residue? 7 A The bag was tested for residue. 8 Q My question to you is, do you recall whether or not Agent 9 Mount testified as to whether or not any of the items in the 10 bag were tested for residue? 11 A The only items that she referred to that came from the bag 12 were the K items, the five items which included the three K 13 items on which explosives were found. 14 Q My question to you is simply whether you know something or 15 not, yes or no: Do you know whether or not Agent Mount 16 testified about whether she examined any of the items in the 17 bag other than the K items that tested positive? 18 A I do not know that she tested these other items from the 19 bag. 20 Q You don't know either way, correct? 21 A I can only form my view on the reports and the testimony 22 that I have seen. 23 Q And from the testimony you have seen, you do not recall 24 her testifying about testing those items in the bag; is that 25 correct? 4022 1 A Yes. Yes. 2 Q Now, sir, you haven't spoken to Agent Mount, correct? 3 A I beg your pardon? 4 Q Have you spoken to Agent Mount? 5 A No. 6 Q Is it fair to say that nowhere in the reports and nowhere 7 in any testimony did you see Agent Mount state that she 8 thought this was an unimportant matter, correct; yes or no? 9 A I beg your pardon? Could you repeat that? 10 Q You have stated earlier that you came to the conclusion 11 that the FBI thought that this was an unimportant matter, was 12 that your testimony? 13 A I stated that the FBI seemed to think it unimportant that 14 quantitative measurements were made of the amount of explosive 15 on these various items. 16 Q So the matter -- so let's make sure we're clear. So it's 17 your testimony that you believe that the FBI thinks 18 quantitative measurement is unimportant, correct? 19 A That appears to be the case. 20 Q You weren't talking about this case being unimportant to 21 the FBI? 22 A I -- 23 MR. HERMAN: Objection, Judge. That is a 24 mischaracterization of his testimony. 25 THE COURT: Sustained. 4023 1 MR. HERMAN: Thank you. 2 BY MR. FITZGERALD: 3 Q You will agree with me that sometimes at crime scenes, 4 often at crime scenes involving very large explosions no 5 residue is left behind; is that correct? 6 A It's not exactly correct. It is very often that any 7 remaining explosive is not detected. 8 Q So it's not unusual to have a large, a crime scene where a 9 large explosive devise was used with no residue being 10 detected, correct? 11 A That is correct. 12 Q You testified concerning your review of evidence 13 indicating that TNT was grinded, correct, in this case? 14 A I have been given to understand or to assume that that may 15 have occurred, yes. 16 Q And it's your understanding that that doesn't make sense 17 scientifically to grind the TNT, correct? 18 A I don't see what the reason was unless it was to combine 19 the ground TNT with other materials, such as ammonium nitrite 20 fertilizer. 21 Q Have you seen any evidence or been told of any evidence as 22 to whether or not the TNT used in the Nairobi bomb was grinded 23 or ground, yes or no? 24 A I have not seen such evidence, so the answer is no. 25 Q Now, sir, you have testified that contamination can be 4024 1 viewed very simply by analogy to a situation where the person 2 works on a car, correct, and gets oil on their clothing, 3 correct? 4 A Yes. Yes. 5 Q And somebody else who comes into contact with that person 6 also could get oil on their clothing, correct? 7 A Yes. 8 Q So a person could be working on a car and they could go 9 consult with somebody else about the work on the car, correct, 10 and that person could be contaminated? 11 A Yes. If they came into contact with one another, yes. 12 MR. FITZGERALD: Thank you. Nothing further. 13 THE COURT: Anything further? 14 MR. WILFORD: One moment, your Honor. 15 (Pause) 16 THE COURT: Redirect. 17 MR. HERMAN: Thank you, Judge. 18 REDIRECT EXAMINATION 19 BY MR. HERMAN: 20 Q Dr. Lloyd, Mr. Fitzgerald asked you whether it was unusual 21 to find residue or something to that effect, unusual to find 22 TNT residue at a bomb site. You remember that, that area of 23 inquiry? 24 MR. FITZGERALD: Objection to form. 25 THE COURT: Sustained. 4025 1 Q Let me ask you, in this case did they find TNT residue at 2 the Nairobi bomb site? 3 A Yes. 4 Q With regard to the issue of Agent Mount, you were asked 5 whether she tested the other items in the bag. My question 6 for you is, irrespective of whether or not she may have 7 testified that she tested those items, did you, looking at all 8 of the bench notes and lab notes in this case, see any 9 indication that they were actually tested? 10 A I found no indication that they were tested. 11 Q And you were asked about oil or oils being transferred 12 from one individual to another. With regard to TNT, are we 13 talking about an oily substance or are we talking about 14 something much smaller like dust or powdered sugar or 15 something to that effect? 16 A Yes. Rather more powdery than oily, yes. 17 Q And finally, with regard to transfer, we talked about a 18 transfer from one item of clothing to another item of clothing 19 from contamination to a piece of clothing which had previously 20 been uncontaminated, could also a transfer take place through 21 someone touching a or being in contact with a book or a 22 magazine which then came into contact with an article of 23 clothing? 24 A Yes. 25 Q Would there be any difference there, that would also be 4026 1 the similar type of contamination? 2 A It is all basically a physical contact between one surface 3 and another. The type of surface will have an effect upon the 4 amount transferred, but the principle is the same. 5 MR. HERMAN: Thank you, Dr. Lloyd. 6 I have no further questions, your Honor. 7 MR. FITZGERALD: Nothing further. 8 THE COURT: Thank you, Doctor. You may step down and 9 we'll take our midmorning recess. 10 (Recess) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4027 1 THE COURT: We had at one time discussed holding a 2 charging conference this afternoon, but in light of the extent 3 to which we have dealt with those matters, and to give people 4 an opportunity to comment on the court's proposed charge, I 5 suggest that we defer that. We have a number of other matters 6 to take up at 4:30. 7 MR. COHN: I believe one of them has dropped off the 8 table, your Honor. 9 THE COURT: What does that mean? 10 MR. COHN: I believe the government -- 11 MR. FITZGERALD: Your Honor, if certain 12 representations are made, even ex parte in the robing room, 13 and we can clarify certain things to the defense, the 14 government may withdraw its opposition to the bifurcation but 15 I would like to finalize that with counsel before we advise 16 your Honor. We may withdraw our opposition based on 17 representations of counsel. 18 THE COURT: That does not entirely resolve the 19 matter. In any event, we will do that at 4:30, right? 20 MR. FITZGERALD: Yes, Judge. 21 THE COURT: Let's bring in the jury. Mr. Schmidt, 22 who is your first witness? 23 MR. SCHMIDT: Mohamed Ali M.S. Odeh, O-D-E-H. 24 MR. FITZGERALD: Before the jury comes in, I just 25 want to make sure of Mr. Schmidt that we are not going to 4028 1 offer any tapes or transcripts before we have a chance to 2 speak or be heard. 3 MR. SCHMIDT: I am going to ask him if he has 4 listened to the particular tape, if it accurately reflects 5 what is on the tape and offer it into evidence. 6 THE COURT: He is a translator -- 7 MR. SCHMIDT: No. He is a person who speaks Arabic 8 and English fairly well. 9 THE COURT: But the subject matter of his testimony 10 is going to be variations between what he hears and what 11 appears on the transcript? 12 MR. SCHMIDT: No. I prepared transcripts both in 13 Arabic -- the witness is going to testify as to his 14 relationship with Mr. El Hage and other people who have had 15 relationships with Mr. El Hage. 16 THE COURT: This is a character witness? 17 MR. SCHMIDT: No, a fact witness. 18 THE COURT: A fact witness. I am told that there is 19 a desire to hand out headsets to all the jurors. Why is that? 20 MR. SCHMIDT: Because in order to hear the tapes 21 clearly you need headsets. The system that broadcasts out the 22 sound distorts the sound and makes it very difficult to hear. 23 THE COURT: Is the government aware of what tapes you 24 intend to play? 25 MR. SCHMIDT: I have given them our transcripts, yes. 4029 1 MR. FITZGERALD: Your Honor, on Friday I received the 2 first designations of draft transcripts. I received a letter 3 yesterday listing numbers of calls, dozens, and was told I 4 would get them later that evening, the finals. I got some in 5 the afternoon. When I left at 1 in the morning they were not 6 there yet. I came in this morning and found a large stack of 7 transcripts, some of which appear new, and I haven't had a 8 chance to read through them. I don't think we should be in 9 the position of having tapes going in without us being able to 10 even check the transcripts or see the relevance of the 11 transcripts. I think it is inappropriate to put the 12 transcripts in unless we have a chance to go through the 13 materials. 14 THE COURT: Do you have another witness available? 15 MR. SCHMIDT: No, I do not. We have transcripts -- 16 there are two types of transcripts. One is the translation of 17 the Arabic conversations. The other transcripts are English 18 conversations and they are transcripts of the English 19 conversation used as an aid because most of the people who are 20 speaking, or all of the people who are speaking -- almost all 21 the people speaking are not American English or English 22 English, and to fully understand easily enough without playing 23 the tapes they have a transcript to review. The government 24 has the transcripts. They are for the most part very short. 25 I can give them the first three that I plan to use. They are 4030 1 all in English, and they total seven -- five -- four full 2 pages and three partial pages. 3 THE COURT: Which are those? Which exhibits? 4 MR. SCHMIDT: Those are Exhibits W1E -- 5 unfortunately, looking at it, we have two W1E's. So that 6 should not be. W1E should be NB002-3 of the tape and we 7 should call W1A -- 8 THE COURT: This witness is going to be on the stand 9 for how long? 10 MR. SCHMIDT: I would expect that the witness will be 11 on the stand today and tomorrow -- 12 THE COURT: Why don't you conduct your general 13 examination of him other than with regard to tapes other than 14 those three, and then we will break for lunch and the 15 government will have an opportunity -- we will take a little 16 longer than usual lunch break to review some of the other 17 things. Does the government know the sequence in which you 18 are going to produce the tapes? 19 MR. SCHMIDT: I actually sat down and put the likely 20 sequence in order. I can give the following likely sequence 21 right now. 22 MR. FITZGERALD: Even though three, we are not going 23 to offer the three before lunch, I take it. 24 THE COURT: Play and offer no tapes until after the 25 lunch break. 4031 1 MR. SCHMIDT: Your Honor, I am going to be fairly 2 short before lunch, because I was -- 3 THE COURT: You told me he was going to be on the 4 stand for two days because he is going to talk about various 5 things -- 6 MR. SCHMIDT: He is going to talk about various 7 things related to the tape recorded conversations that -- 8 THE COURT: We will take a recess for as long as 9 necessary for the government to review those first three tapes 10 and just advise Mr. Kenneally when it is that you have 11 completed that review. We will talk later in the day, after 12 the jury has gone home, about a process so that this doesn't 13 become a recurring problem. 14 (Recess) 15 THE COURT: Where are we, Mr. Fitzgerald? 16 MR. FITZGERALD: Your Honor, I have reviewed the 17 first four transcripts, which are English conversations. I 18 obviously haven't had a chance to listen to tapes. 19 MR. SCHMIDT: May I have a moment. Mr. Kinecki and 20 Mr. Odeh, can you step out, please. 21 THE COURT: These are the witnesses? 22 MR. SCHMIDT: One is a witness and one is our 23 investigator. 24 THE COURT: Yes. 25 MR. FITZGERALD: Starting with the first four 4032 1 transcripts, which are in English but which we have not had a 2 chance to listen to, I am concerned generally both with 3 admissibility and relevance about the stack of transcripts. 4 The first four, for example, three do not involve this witness 5 whatsoever. It is El Hage's wife to speaking to someone on 6 the phone. I think if I handed up the exhibits your Honor 7 would have a sense. I don't know why they are not hearsay and 8 why they are not irrelevant. I have a feeling we will be 9 listening to calls for two days to prove that no terrorism was 10 discussed during the call. The first call does involve the 11 witness, although I still don't waive the hearsay objection. 12 The next three involve other people. 13 THE COURT: Is the point of this to show that Mr. El 14 Hage engaged in certain conversations which are not 15 incriminatory? 16 MR. SCHMIDT: No. 17 THE COURT: What is the relevance? 18 MR. SCHMIDT: Your Honor, the government seems to say 19 that in a circumstantial case of theirs where my client is 20 charged with being a participant, a very important cog in a 21 wheel of an ongoing worldwide conspiracy -- 22 THE COURT: Could you spare me the rhetoric, and, 23 please, there are conversations here which have nothing to do 24 with any criminal activity. What is the relevance of those 25 conversations? 4033 1 MR. SCHMIDT: What I plan to do is to show through 2 this witness, who had both social and business relationships 3 with Mr. El Hage -- and the people named in here are mutual 4 business relations -- that during that period of time that 5 Mr. El Hage was actively involved in business activity, 6 legitimate business activity on his home phone as opposed to 7 the office of Al Qaeda, on the cell phone -- 8 THE COURT: I am interrupting you because I am going 9 to rule in your favor. I am going to allow some of it. 10 Obviously if a person engages in a thousand telephone 11 conversations and only 10 of them involve clearly illegal 12 activity, the defendant doesn't have a right to introduce 990 13 conversations to say look, criminal activity wasn't all this 14 person did. I will allow a little bit of that. 15 MR. SCHMIDT: If I may -- 16 THE COURT: I have ruled in your favor. Do you want 17 to attempt to dissuade me? 18 MR. SCHMIDT: You haven't ruled in my favor because 19 that is not the only purpose we are doing it. The reason why 20 a lot of these conversations are necessary and not just a 21 little bit is that the government's conversations and conduct 22 doesn't show that he is doing illegal activity. 23 THE COURT: Why don't we proceed and when we get to 24 the point where either the government believes that it has 25 become excessive or the court sua sponte believes it is 4034 1 becoming excessive, we can address the issue. Let's bring in 2 the jury. 3 MR. SCHMIDT: Your Honor, to react before having a 4 full understanding of why I am attempting to put in more 5 conversations than the government may think and your Honor may 6 think are necessary, I thought I would give you that general 7 idea so that your Honor would have that in mind before seeing 8 more is unnecessary. 9 THE COURT: Tell me before the jury arrives. 10 MR. SCHMIDT: Mr. El Hage's conduct concerning large 11 numbers of activities were not only open, but his home, which 12 is supposedly the Al Qaeda office, his telephones, which are 13 supposedly being used for Al Qaeda, the people he is in 14 contact with, show all the activity, that for him to be a 15 secret member of a secret organization capable of committing 16 horrendous acts, it is inconsistent with the manner in which 17 he carried himself, spoke to people, involved himself in 18 public activities. It would be completely inconsistent with 19 the government theory of Mr. El Hage's involvement with the 20 government conspiracy and that is why a little bit wouldn't 21 make a difference, but more than that, a not overwhelming 22 number will make a difference. 23 THE COURT: I don't think I can now quantify what a 24 little bit or a little more is. I will content myself with my 25 analogy to the thousand conversations in which 10 are 4035 1 relevant. 2 Has the jury come in? 3 (Jury present) 4 THE COURT: Ladies and gentlemen, you recall that Dr. 5 Lloyd was taken out of turn. He was a witness called on 6 behalf of Mr. Odeh. But we now return to the scheduled 7 sequence in the defense case, so we are now on the defense 8 case on behalf of the defendant El Hage. Mr. Schmidt, you may 9 call your first witness. 10 MR. SCHMIDT: Our first witness is Mohamed Ali Odeh. 11 He is outside, if we could have him, please. 12 MOHAMED ALI MURAWEH SALEH ODEH, 13 called as a witness by the defense, 14 having been duly sworn, testified as follows: 15 THE WITNESS: My name is Mohamed Ali Muraweh Sal 16 Odeh. It is written in English O-D-E-H, but in Arabic O-U-D, 17 like this. 18 THE COURT: The interpreter has been previously 19 sworn. 20 THE INTERPRETER: No, your Honor, I have not. 21 MR. SCHMIDT: He has not been sworn, your Honor. I 22 believe the witness would either swear on the Koran or would 23 affirm. 24 (Toufic Maged was duly sworn as an Arabic 25 interpreter) 4036 1 DIRECT EXAMINATION 2 BY MR. SCHMIDT: 3 Q Sir, how would you like your last name to be pronounced? 4 A O-U-D, but it is in the passport O-D-E-H. 5 Q How would you like me to pronounce it? 6 A Odeh, because in the Arabic O-U-D-E. But in the passport 7 they write it O-D-E-H. 8 Q Mr. Odeh, good afternoon. 9 A Good afternoon to you. 10 Q Where were you born and raised? (Interpreted) 11 A I born in Haifa, February 1939, and the date of 9. 12 Q Where were you raised? 13 A I base nowadays? 14 (Interpreted) 15 A In Jordan. 16 Q Did there come a time that you moved to Kenya? 17 (Interpreted) 18 A I am resident in Kenya. 19 Q How long have you been a resident in Kenya? 20 A I come 1988 up to now. 21 Q In what city or town have you been living? 22 A Nairobi only. 23 Q Mr. Odeh, please wait until I finish the question before 24 you answer. OK? 25 A OK. 4037 1 Q With whom do you live with? (Interpreted) 2 A With my family. 3 Q What does your family consist of? (Interpreted) 4 A I have four daughters, one boy, and my wife. 5 Q What is your present business now? (Interpreted) 6 A I am retired for time being but sometime to sometime I do 7 gemstone business. 8 Q What are you retired from? 9 A Because I have a problem, heart problem. 10 Q What kind of work were you doing before you retired? 11 A Gemstone and commodities business. 12 Q What kind of work were you doing -- withdrawn. 13 Do you remember approximately -- withdrawn. 14 Did you ever meet a man named Wadih? (Interpreted) 15 A Odeh? 16 Q Wadih. 17 A Wadih, yes, I met him. 18 Q What was his name when you met him first? 19 A Abu Abdullah. 20 Q Did you learn that his first name was Wadih? 21 A Yes, later on I recognize that his name is Wadih. 22 Q Can you tell us approximately when you first met him. 23 A Maybe May, June 1996. 24 Q Where did you meet him? 25 A There is an estate called Fedha Estate. I shift to stay 4038 1 there. Then one time I have to take my daughter to hospital 2 and he give me a lift to hospital. 3 Q How old was your daughter at that time? 4 A Nearly about three months. 5 Q Did you have a car? 6 A At that time I haven't a car. I haven't a car. 7 Q You said that Abu Abdallah drove you and your daughter to 8 the hospital? 9 A That is correct. 10 Q That is the first time that you met him? 11 A And this is the first time, yes, we met. 12 Q Did you learn where he lived? 13 A Yes, he told me he live in neighborhood in the first 14 estate, because Fedha is two estates, phase 1 and phase 2. I 15 am staying in phase 2 and he staying in phase 1. 16 Q Did you become friendly with Wadih? 17 A Yes. 18 Q Did you visit his home? 19 A Sometime, yes. 20 Q Did he visit your home? 21 A Sometime, yes. 22 Q Did any other family members become friendly? 23 A Yes. 24 Q Could you explain that to us. 25 A We start talking about business and he told me that he 4039 1 also dealing in gemstone and sometimes exporting to America. 2 For that he suggested if we can do this business with each 3 other. 4 Q The business that you described the type of business that 5 you were doing at that time? 6 A At that time I was doing gemstone business. 7 Q What type of gemstone? 8 A Sometimes amethyst, ruby, sapphire, white chrysoprase. 9 Q Where were your primary sources of supplies? 10 A From the miner. 11 Q In what continent? 12 A Different type. Some of them from Bokot, some from Voi, 13 because some of them from different locations. 14 Q The locations you said was in Africa? 15 A All Nairobi. This is all locations in Kenya -- sorry, not 16 Nairobi. 17 Q Where were the people that you would sell these stones to? 18 Were they local or were they in other -- 19 A No, my market was in Hong Kong, Korea, China. 20 Q Did you have a telephone at the time that you met Wadih? 21 A Unfortunately, I haven't a telephone cause it was new and 22 the new lines -- and there are many no new lines for that 23 estates. 24 THE COURT: So you had no telephone when you first 25 met him? 4040 1 THE WITNESS: No, I have no telephone. 2 Q Was it difficult doing business without a telephone? 3 A Very difficult, yes. 4 Q What did you do? 5 A I request Wadih if I can use his telephone for receiving 6 my call and calling his place, and using his fax machine also. 7 Q Did you receive permission to do that? (Interpreted) 8 A Yes, he permit me, he give me permission to do that. 9 Q Did you go to his -- where did you go to use his telephone 10 and fax machine? 11 A Sometime, usually I start receiving a call because I 12 request, I ask him to allow me to give my contact to his 13 house. For that, when there is somebody call me he come and 14 told me. Of course they will close the line, then he come and 15 told me and sometimes I immediately find him, sometimes two 16 minutes, five minutes difference. 17 Q Was your using the telephone or fax machine in downtown 18 Nairobi, someone's residence? Where was it? (Interpreted) 19 A In his house. In his house. In Fedha Estate, phase 1 20 house. 21 Q What kind of room -- 22 A It was outside the house in the sitting room, which was 23 preparing as an office for him. It is very small room. It is 24 outside. 25 Q Could you describe the furnishings of that office? 4041 1 A Very low quality. It is not so high quality. 2 Q What kind of things were in the office? 3 A Small chair, one desk, telephone, fax, I think one 4 computer also. That's all what I saw. 5 Q Did there come a time that you used the home to make your 6 telephone calls, receive your telephone calls, send facsimiles 7 and receive facsimiles? (Interpreted) 8 A Yes, that's correct. 9 Q Did you tell your people that you did business with -- 10 withdrawn. 11 Did you give out the telephone number of Wadih's home 12 and facsimile to people that you did business with? 13 A Actually, I did not tell anything like that, but what I 14 say, that used this telephone, this is my contact. 15 Q In other words, you told people that you could reach that 16 telephone? 17 A Yes, if you want to talk with me you can reach that 18 telephone. 19 Q Did you start doing business or try or discuss becoming a 20 partner with Mr. El Hage? 21 A Yes. We plan to start some business in the same field 22 which is I am interested, gemstone business. 23 Q Did you learn at the beginning of your relationship with 24 Wadih what gemstones he was mostly dealing with? 25 A What he told me, tanzanite and some diamonds to America. 4042 1 Q Do you know a person named Stanley Mburuti? 2 A Yes, I know him very well. 3 Q Who is he? 4 A He is the office which is authorized to see our 5 consignment when we export it from Kenya to overseas. 6 MR. SCHMIDT: I would ask that we now play Exhibit 7 WEHX-1. 8 THE COURT: WEH -- 9 MR. SCHMIDT: For Wadih El Hage, X-W1, and that we 10 review the English transcription of that document. 11 THE COURT: Is this something that you want -- 12 MR. SCHMIDT: I want the jurors to listen to the 13 conversations with their earphones on 1, and turned on with 14 the light facing outward. 15 Q Before you put that on, Mr. Odeh, have you listened to a 16 number of tape recorded conversations of you and other people 17 recently? 18 A With you. 19 Q The answer is yes? 20 A Yes. 21 Q Did you review the transcripts of those conversations? 22 (Interpreted) 23 A How, because the tape recorder with you and everything 24 with you. But I can recognize what we talk about. 25 Q Did you review the writing of what was said on the tape 4043 1 recorder? 2 A Yes, with Mr. Schmidt, yes. 3 Q Did you make corrections sometimes? 4 A We correct some of these. 5 Q Were you satisfied with the written word accurately saying 6 what is on the tape? 7 A Yes. 8 THE COURT: Do you want to explain how this is used. 9 MR. LARSEN: Yes. You have some headphones in front 10 of you. There is a switch with the numbers 1, 2 and S. 11 Switch it to 1. The volume control is up here on the top, 12 round button. Turn it on, the yellow indicator here when the 13 volume is all the way up. There is a glass globe in the front 14 that should be facing forward so you can see the signal. If 15 you would be so kind to turn them off at the break by turning 16 the round button completely off. 17 THE COURT: When it is on is there a light that 18 shines? 19 MR. SCHMIDT: There is a yellowish line that becomes 20 fuller when you make it louder and it goes down to make it 21 smaller. 22 MR. LARSEN: The important thing is that the setting 23 should be number 1. That is the frequency these headsets are 24 on. 25 MR. SCHMIDT: This is WEHXW1 which corresponds with 4044 1 NB1-002. We have put the transcript on the monitor as well. 2 (Tape played) 3 THE INTERPRETER: Your Honor, the witness is saying 4 something. 5 (Pause) 6 THE INTERPRETER: Your Honor, the witness is saying 7 he doesn't want to be sketched or any pictures of him taken, 8 that his family -- 9 THE COURT: The press is advised that the witness is 10 requesting of the press that his face not be sketched. 11 MR. SCHMIDT: Thank you, your Honor. 12 Q Mr. Odeh, who is Abu Kefah? 13 A Myself. My name is Abu Kefah, because in Arab tradition, 14 when you call some people you call him by his elder son name. 15 Q And the Stanley that we are talking about is Stanley 16 Mburuti, M-B-U-R-U-T-I, is that correct? 17 A Yes. 18 Q What is his position? 19 A Mr. Mburuti have an office and dealing -- register office 20 and authorized to export gemstones, semiprecious and gem. 21 Q Anyone who exports stones, do they deal with Mr. Mburuti? 22 A No, there is a few officers, but myself I like to deal 23 with Mr. Mburuti. 24 Q Who is the director -- excuse me, the chairman that was 25 referred to? 4045 1 A There is one called Joseph -- I couldn't remember the 2 second name. He is the small-scale mining chairman. His 3 first name is Joseph. 4 Q Why would you be talking to Joseph? 5 A What you mean? 6 Q Why would you need to talk to Joseph? 7 A Yes, because also I need him when we are exporting 8 sometimes the stones. Chairman with small-scale mining. 9 Q I am going to show you an exhibit that is marked 10 WEHXJ20-B, but before I offer that exhibit, counsel is going 11 to read a stipulation that is agreed upon by the government. 12 MR. FITZGERALD: If I may have one moment. 13 MR. DRATEL: It is hereby stipulated and agreed by 14 and between the United States of America, by Mary Jo White, 15 the United States Attorney for the Southern District of New 16 York, Patrick -- 17 THE COURT: Do you have another copy of that? 18 MR. DRATEL: I do. 19 THE COURT: Would you give it to Miss Hess. 20 MR. SCHMIDT: Your Honor, we are not going to read 21 the stipulation at this time. 22 THE COURT: The stipulation is withdrawn, all right. 23 Q Could you tell us what consignments are, related to the 24 gem business. 25 A It was chrysoprase, white chrysoprase, and some other 4046 1 consignment, it was some ruby and some amethyst. 2 Q The stones that Mr. El Hage dealt with, tanzanite, where 3 is that usually found? (Interpreted) 4 A The name of tanzanite is come from one country only, it is 5 Tanzania, and from that name tanzanite, because only one 6 country have this type of stone. 7 Q In what area of the country is that? 8 A Sometimes Rusho, which is near the boarder of Kenya, 9 sometimes Dodonia. But usually it is near is the border of 10 Kenya. 11 Q There were also discussions of ruby in that conversation. 12 Where is the ruby you usually found? 13 A The ruby usually come from Kenya. 14 Q There was also talk about tourmaline. 15 A Also it is Voi, but sometimes we are thinking, but did not 16 bring it from Mozambique because Mozambique have the best 17 quality of tourmaline. 18 Q When you met Wadih and his family -- withdrawn. 19 Did you meet Wadih and members of his family at home 20 sometimes? 21 A Usually if I met Wadih, I met him personally and some of 22 his kids only. 23 Q Did you spend time with his wife? 24 A I never met his wife. Only in the street or when she come 25 to visit us and she go to visit with my wife. 4047 1 Q What name did you know her by? 2 A Um, U-M, Adullah, A-D-U-L-L-A-H. 3 Q Did you know her by another name? 4 A No. 5 Q What was your wife's name known? 6 A Um Reem. 7 Q Spell Reem. 8 A U-M-M, R-E-E-M. 9 Q Why was she named Umm Reem? 10 A Her full name is Fatima, but usually, as I said, Arab 11 tradition we call the father and mother in her nickname. We 12 call Um for the wife and Abu for the father. 13 Q You are Abu Kefah and she is Reem. What is the 14 difference? 15 A Because I have two wife. 16 Q What is the name of your oldest child by Umm Reem? 17 (Interpreted) 18 A Yes, Reem. 19 Q Were there any men that worked, that were generally around 20 Mr. Wadih's house who worked for them? 21 MR. FITZGERALD: Objection to form. 22 (Interpreted) 23 MR. SCHMIDT: I will rephrase that question. 24 A Yes, we have -- 25 THE COURT: No, next question. 4048 1 MR. SCHMIDT: I will withdraw that question. At this 2 time, your Honor, I would like to play WEHXW1-E, mistakenly 3 the same number, where I put W1A-E, as the exhibit. It 4 correlates with NB1-004-1. It is an English conversation. I 5 also ask that the translation, WEHXW1A-E -- not translation, 6 the transcription -- also be shown to the jury while we play 7 that tape. 8 (Tape played) 9 BY MR. SCHMIDT: 10 Q Mr. Odeh, do you recognize the two voices on the tape? 11 A Yes, Wadih and Rasheed. 12 Q How do you know Rasheed? 13 A He was working, when I come to know Wadih he was working 14 as his watchman, and sometimes he bring for him some business 15 in stone. 16 Q Was there anyone else working in Mr. El Hage's home 17 sometimes as a watchman other than Rasheed? (Interpreted) 18 A Yes, there is one called Ali, but I did not know his full 19 name. 20 Q Ali, was he also a driver? 21 A Yes, sometimes he driver. At the beginning, no. Later 22 on, yes. 23 Q Could you tell us about why watchmen are hired in Nairobi 24 area. 25 A Yes. Every house have his watchman because the security, 4049 1 it is not so good there. 2 Q What do you mean by the security is not so good? 3 A You know, some thief can come to the house for that. 4 Everyone have security, either some have -- also besides the 5 security as a person, they have -- there is a lot of companies 6 in Kenya. You can hire directly from the company or you can 7 take private security. In the same time also you find a lot 8 of dogs in the house, not only one, sometimes one, sometimes 9 two, sometimes three like this. It depends on the area. 10 Q Fedha Estates, is that a middle class area? 11 A It is little far away from town. It is near the airport 12 and it is need a lot of tight security because many incidents 13 happen in that area. 14 Q Is that an area that people are making middle class money, 15 moderate income people? (Interpreted) 16 A Yes, of course, that area is for low income. 17 Q And how much approximately would a watchman cost at that 18 time when you met Mr. El Hage? 19 A Between 30 to $50. 20 Q How -- 21 A Maximum. Maximum. 22 Q Per what? 23 A Per month. 24 Q So the watchman would be there, for how many hours would 25 the watchman be working there a day? 4050 1 A Depends on your agreement with them. Some people, if it 2 is private, he can watch in the night and sometimes in the day 3 he go to sleep a little bit and start continuing in the day 4 like this. It depends how is your agreement. But usually and 5 from the company it will be 12 hours, if you hire directly 6 from the company 12 hours. 7 Q From the time that you met Mr. El Hage to the time that 8 Mr. El Hage left Nairobi, were you aware that he always had 9 security or watchmen? (Interpreted) 10 A Yes, that's what I knew. 11 Q Did you have any business dealings with Rasheed concerning 12 stones? 13 A Not directly, indirect. Sometimes, as you hear now, I 14 take from Abu Abdallah some of the ruby which Rasheed was 15 bringing to him from Bokot area, called. 16 Q From where? 17 A Area called Bokot. 18 Q Was Rasheed working for Wadih El Hage or on his own? 19 A No, with Mr. Wadih El Hage, yes. 20 MR. SCHMIDT: I ask at this time that we play 21 WEHW14-E, corresponding with NB1052-1, and that we also 22 publish the English transcription for the jury. 23 (Tape played) 24 Q Did you have any business dealing in stones with Walid? 25 A I don't know who is Walid first of all. For that I can't 4051 1 no comment. 2 Q Do you recognize the people's voices on this tape? 3 A Yes, correct, because first of all he mention his name 4 Rasheed, and I recognize Rasheed, and other the lady, I think 5 Um Abdulla was. 6 Q Do you know who they were talking about when they 7 mentioned the name Harun? 8 A Yes, I recognize, I know. 9 Q Where did you meet -- did you ever meet this person Harun? 10 A Yes, sometimes in Mr. Wadih house. 11 Q Was there anyone that you worked with regularly in Kenya? 12 (Interpreted) 13 A You couldn't work with some person regularly in Kenya 14 because the stone business, most of the people who dealing, 15 they broker, because the people who bring this come from mines 16 and you have to deal with different style of brokers there. 17 But the office usually which I use, Stanley office. 18 Q Was there somebody there that you associated with who 19 helped you out, somebody who worked for Wadih like Rasheed, 20 was there somebody that worked with you like that 21 (Interpreted) 22 A Yes, I have, one called David Mutu, M-U-T-U. 23 Q How long had you worked with David Mutu? 24 A Since I come to Kenya, 1988. 25 Q Has David Mutu worked with Wadih El Hage as well? 4052 1 A Maybe sometime, yes. 2 MR. SCHMIDT: Your Honor, now would be a good time to 3 break before I play the next one. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4053 1 THE COURT: We will break for lunch and resume at 2 2:15. 3 (Jury excused) 4 THE COURT: Counsel remain in the courtroom, please. 5 What time are counsel suggesting a charging 6 conference? I said we won't have a charging conference this 7 afternoon because we have other things. Tuesday? Wednesday? 8 MS. BABCOCK: Your Honor, I would request that we do 9 it next Monday, for reasons entirely related to my own travel 10 schedule. 11 THE COURT: Monday at 4:30. 12 It would be extraordinarily helpful, if people want 13 to have maximum input in the process, if I were to have things 14 in writing before that weekend. Adjourned to 2:15. 15 PRESS ARTIST: Your Honor, may I ask a question? For 16 narrative purposes of this story, can I do an out-of focus 17 depiction, where you would never recognize him if you didn't 18 already know him? 19 THE COURT: Mr. Schmidt, your witness has requested 20 that he not be sketched. CNN has requested for purposes of 21 the story an out-of-focus depiction from which he could not be 22 recognized. 23 MR. SCHMIDT: May I ask him, your Honor? 24 THE COURT: Why don't I let you work that out with 25 Mr. Schmidt. 4054 1 PRESS ARTIST: Thank you, sir. 2 (Luncheon recess) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4055 1 A F T E R N O O N S E S S I O N 2 2:15 p.m. 3 MOHAMED ALI ODEH, Resumes. 4 THE COURT: Good afternoon. Let's be seated, please. 5 Mr. Schmidt, the witness may resume the stand. The 6 jury may be brought in. 7 MR. KARAS: Your Honor, we're missing counsel for 8 Mr. al-'Owhali. 9 THE COURT: Counsel for Mr. al-'Owhali. 10 MR. RICCO: They're coming in. 11 THE COURT: There is a request from a juror to leave 12 around 3:30 or 4 "to go to my doctor's for an afternoon 13 appointment." It's a little late request, but in light of 14 everything else we have this afternoon and so on, suppose we 15 adjourn at 4:00 today, that is, insofar as the jury is 16 concerned. 17 All defendants are represented. 18 (Jury present) 19 THE COURT: Good afternoon. We'll try to break 20 around 4:00. 21 Mr. Schmidt, you may continue. 22 MR. SCHMIDT: Thank you, your Honor. 23 DIRECT EXAMINATION (Continued) 24 BY MR. SCHMIDT: 25 Q Mr. Odeh -- Auda; is that correct? 4056 1 A (Nods head.) 2 Q Mr. Odeh, do you know a person named Dr. Misoi? 3 A Yes, I know him. 4 Q And how do you know him? 5 A Since I come to Nairobi 1988, I have a good relation with 6 him. We come very family friendly. 7 Q Could you push the mike a little closer to you. There you 8 go. Thank you. 9 Now, in 1996 when you met Wadih El Hage, were you 10 still friendly with Dr. Misoi? 11 A Yes, up to now. 12 Q And what was -- 13 THE COURT: How is that last name spelled, please? 14 THE WITNESS: Dr. Misoi, you talking about? 15 THE COURT: Yes. 16 THE WITNESS: Dr. Misoi, M-I-S-O-I. 17 THE COURT: M-I-S-O-I. Go ahead. 18 BY MR. SCHMIDT: 19 Q What position did he hold at that time? 20 A When I come to know him, he was member of parliament for 21 Eidoret area. 22 Q Was he a minister or a deputy minister in charge of 23 anything? 24 A No. Later on, I think since 1992, he become assistant 25 minister for agriculture. 4057 1 MR. SCHMIDT: Now, I'm going to play Defendant's 2 Exhibit WEHX-W8 and from counter number 6363 NB1008, and I ask 3 that the English transcription also be allowed to be viewed by 4 the jury. 5 MR. FITZGERALD: No objection, Judge. 6 THE COURT: Proceed. 7 (The audiotape, WEHX-W8, is played) 8 MR. SCHMIDT: I ask that we start this over again, 9 your Honor. 10 THE COURT: Excuse me? 11 MR. SCHMIDT: I ask that we start the tape over 12 again. 13 THE COURT: Start the type over again? 14 MR. SCHMIDT: The problem is the -- 15 THE COURT: Very well, start it over again. 16 A JUROR: Your Honor, can I request that the 17 transcript be made visible? It's really too small. 18 THE COURT: The transcript be made visible? 19 A JUROR: My visual acuity isn't 20/10. 20 THE COURT: Okay. Very well. 21 (The audiotape, WEHX-W8,is played) 22 BY MR. SCHMIDT: 23 Q Mr. Odeh? Auda? 24 A It's okay. It's okay. Everyone is better his own way. 25 Q I'm going to show you what has been marked as Defendant's 4058 1 Exhibit WEHX-JJ. I'm going to ask you to take a look at this 2 document, leaf through it. 3 MR. SCHMIDT: May I approach, your Honor? 4 THE COURT: Yes. 5 Q Do you recognize that document? 6 A This is a memorandum for Black Giant. 7 Q And is your signature on that document in two places? 8 A That's correct, my signature is there. 9 MR. SCHMIDT: Your Honor, I offer that exhibit into 10 evidence. 11 MR. FITZGERALD: No objection, Judge. 12 THE COURT: Received. 13 (Defendant's Exhibit WEHX-JJ received in evidence) 14 MR. SCHMIDT: And I ask to show the front page of 15 that document to the jury as well. 16 THE COURT: Yes. 17 Q Now is this the memorandum that was being talked about in 18 the conversation between Mr. Misoi and Mr. El Hage, if you 19 know? 20 MR. FITZGERALD: Objection to competence, your Honor. 21 THE COURT: If you know; and the witness also signed 22 this. Overruled. 23 First answer, do you know? 24 THE WITNESS: Yes, I know from the conversation it 25 seemed to me that it is about this memorandum because he say 4059 1 Mohamed Ali add something to this memorandum. 2 Q Now I ask you to open that up to the first page. 3 If we show the first page after the cover, is that 4 the -- one of the pages of the memorandum of association for 5 Black Giant? 6 A That's correct, yes. 7 Q I ask you to turn to page 8, which is a signature page, 8 and I ask you to show that -- 9 A Yes. 10 Q I ask you to tell us who is the person, the first person 11 on the top where it lists names, address, and description of 12 subscribers? 13 A This is my name. 14 Q And what post office box were you using? 15 A I have to be the chairman of the company and the marketing 16 for the stuff of this company. 17 Q The post office box, can you read us the -- 18 A 72239. 19 Q Okay. And then who is the person who's below that? 20 A I think it was for Wadih. 21 Q And what post office box was he using? 22 A Before I was using 53669. 23 Q At the time that you signed this memorandum, were you 24 using the same post office box as Mr. El Hage? 25 A Yes. 4060 1 Q Now, the person below that, could you tell us who that 2 was, who signed that? 3 A I couldn't understand your question. Please repeat it. 4 Q Could you tell us the third person in the list, who that 5 is? 6 A That's Denal Casmiri. 7 Q And who is that person? 8 A This is one of my friend who is an old miner. 9 Q And so how long have you known Mr. Casmiri? 10 A Before this memorandum, about seven years, because he was 11 my neighbor where I was living before I shift to Fila Estates. 12 Q And who brought Mr. Casmiri into Black Giant? 13 A You know, I am the one who select the other directors. 14 Q What was Mr. Casmiri supposed to be doing in Black Giant? 15 What was his role? 16 A As I say, he is an old miner. For that, he have more 17 experience than me on the area and the mining. 18 Q What was Black Giant? What's the basic business that 19 Black Giant was going to get involved in? 20 A Mining for semi-precious stone and precious stone. This 21 is a major -- 22 Q What kind of stone was it? 23 A Semi-precious stone. 24 THE COURT: Semi-precious. 25 A Semi-precious stone and precious stone, in general. 4061 1 Q And where was that going to be mined? 2 A In Kenya, because this memorandum belong to Kenya. 3 Q And who is the last person on the list over there? 4 A This is Dr. Joseph Misoi. 5 Q And is that the person that we almost heard speaking on 6 that tape recorded conversation? 7 A That is the one who was talking in that tape recorder. 8 Q And what was Dr. Misoi going to be doing? 9 A You know, we booked him for only friendship relations, not 10 more than that. 11 Q I ask you to turn to the last page, and if we could put 12 the last page on the screen as well. 13 Although there are signatures and names as well, are 14 those the same people? 15 A Yeah, the same people. My first name, I'm signing in 16 Arabic language here; the second is Wadih; the third one is 17 Misoi, but the third one -- the last one, it is not signed 18 yet. 19 Q Now, whose idea was -- by the way, at the time of the 20 signing, was Dr. Misoi still the deputy minister of 21 agriculture and a member of parliament? 22 A Yes. 23 Q Whose idea was it to come up with forming a Kenyan company 24 for the purpose of mining? 25 A We share this idea, me and Mr. Wadih. 4062 1 Q And what was your hope and expectation in forming the 2 company? 3 A You know, during my business I was buying and selling the 4 stones. When you have a company for mining, for that you can 5 go further in the business. You couldn't choice one or two 6 items. For that you can have lease for land and mine what you 7 want to mine. 8 MR. SCHMIDT: Now, I ask now if we can play Exhibit 9 WEHX-W20 that corresponds with NB1016, conversation number 2, 10 and allow the jury to view the transcript of that 11 conversation, WEHX-W20-T. 12 MR. FITZGERALD: No objection, Judge. 13 THE COURT: Received. 14 (Defendant's Exhibit WEHX-W20 and WEHX-W20T received 15 in evidence) 16 MR. FITZGERALD: If we could just have the same 17 instruction -- that it is the tape, not the transcript, that 18 controls. 19 THE COURT: Yes. 20 Ladies and gentlemen, whenever a transcript is 21 played -- whenever a tape is played in English and you have a 22 transcript, it's obviously what you hear that controls. The 23 printed transcript is just an aid. 24 (The audiotape, WEHX-W20, is played) 25 BY MR. SCHMIDT: 4063 1 Q Mr. Odeh? 2 A Yes, sir. 3 Q Do you recall in that conversation that Mr. El Hage was 4 talking about somebody coming to visit him from the States? 5 Remember hearing that in this conversation? 6 A Yes, I see this conversation and I hear it now. 7 Q Did you have a discussion with Mr. El Hage concerning his 8 friend who was coming from the United States? 9 A There is some idea Mr. El Hage come with it. I think he 10 talking about the same guy, but I did not see him or I know 11 about him, that if we can -- if this man can finance us in 12 some of our mining project, but I refuse because I did not see 13 the man, I did not know him. For that I say that we able to 14 make our own finance for our own mines. 15 Q Now, there is mention of a place called Eidoret, Eldoret. 16 Where is that? 17 A This is the place of Dr. Misoi, who is the member of 18 parliament for that area. 19 Q And what part of Kenya is Eidoret in? 20 A You know, I couldn't say what direction, but it is on the 21 way to Kisumu to Lake Victoria, but I don't the direction. It 22 is in the South, I think. Maybe some people from Kenya would 23 know better than me. I'm very bad in geography. 24 Q Did you have other business arrangements with Dr. Misoi 25 other than Black Giant? 4064 1 Let me rephrase that question. Had you had other 2 business dealings with Dr. Misoi other than Black Giant? 3 A Yes. Sometime I bring some investor to him before I know 4 Mr. El Hage to do, you know, we try to support any part of 5 investment in Kenya. For that I try with my relation to get 6 some from Middle East, some from Europe, some from everywhere. 7 Q Had you ever visited Dr. Misoi in Eidoret? 8 A I never visit him in his house because his house usually 9 in Nairobi. 10 Q Did you say you visited him in Nairobi? 11 A Yes, many times. 12 Q Did you ever visit Dr. Misoi with Wadih El Hage either in 13 his home or at his office? 14 A I think that maybe we visit him. You know, this is now a 15 long story. For that, maybe definitely we visit him. 16 Q I'm going to show you what's previously been entered into 17 evidence as Government Exhibit 306. 18 I'm not going to do that now. 19 Do you know a person named Samir? 20 A Can you give full name of him, please? 21 Q Samir. 22 A Samir Rahman Mohamed? 23 Q That's correct. Thank you. 24 A Thank you. 25 Q How do you know him? 4065 1 A You know my business usually I told you in Hong Kong and 2 he have an office in Hong Kong. 3 Q Excuse me? 4 A He have a business in Hong Kong. His company is named 5 Asia Business Network. 6 Q Okay. Now I will show you what has been marked Government 7 Exhibit 306. It might be easier if I just walk over. 8 Once it gets clear, do you recognize that business 9 card? Do you recognize that business card? 10 A Yes. Yes. This is his business card, yes. 11 MR. SCHMIDT: For the record, this is from Exhibit 12 306 that was seized from the home of Wadih El Hage. 13 Q Now, how long had you been dealing with Samir? 14 A 1992, '93. 15 Q Did you ever visit him personally? 16 A Yes, every time I went to Hong Kong I visit him. 17 Q How often did you travel to Hong Kong? 18 A This is my documents. You have a lot. Maybe every two 19 months, every one month. Depends on the business. I was very 20 active in business. For that, I traveled a lot. 21 Q Did you ever speak with him on the telephone in 1996 and 22 7? 23 A Yes, he was calling me. I told you I have no telephone 24 when I shift to Feli Estates. For that, he tried to call me 25 and communicate with me through Mr. Wadih El Hage telephone 4066 1 and sometimes I call him on the same line. 2 Q And did you ever fax him or receive faxes from him on that 3 line? 4 A Yes, of course. We are in business colleagues. 5 MR. SCHMIDT: Now, I wish to play Exhibit WEHX-W19, I 6 believe it's that one, and have the jury view the English 7 transcript as well. 8 Excuse me, this is the translation of that telephone 9 call. 10 THE COURT: The conversation is not in English? 11 MR. SCHMIDT: It's not in English, it's in Arabic. I 12 ask to play the tape, play the tape and read -- 13 THE COURT: Playing the tape in Arabic for the jury? 14 MR. SCHMIDT: Play it for the jury so they can hear 15 the voices and they can read the transcript. 16 THE COURT: How long is it? 17 MR. SCHMIDT: It's six pages. 18 THE COURT: I'll let this be played, but I'm not sure 19 that's a precedent. 20 MR. SCHMIDT: This is probably the longest one, your 21 Honor, in Arabic. 22 THE COURT: Very well. 23 MR. FITZGERALD: We'll waive objection to the 24 transcript. 25 MR. SCHMIDT: And we offer the transcript in 4067 1 evidence, your Honor, as well as, obviously, all the tapes -- 2 THE COURT: T, then, shall we call it? 3 MR. SCHMIDT: Excuse me? 4 THE COURT: W19-T? 5 MR. SCHMIDT: That should be 19T, that is correct. 6 (The audiotape, WEHX-W19, is played) 7 MR. SCHMIDT: We will read this one because -- 8 THE COURT: I really think that that would be wise. 9 (Transcript WEHX-W19T read) 10 BY MR. SCHMIDT: 11 Q Because of our problem, we are going to read the 12 transcript. I am going to be reading your voice and 13 Mr. Dratel is going to be reading Wadih El Hage's voice. You 14 can just read along with the transcript and we'll do the 15 talking for now. 16 Thank you. 17 (Transcript WEHX-W19T read) 18 MR. SCHMIDT: Now if I may interrupt the reading to 19 ask a few questions, since we're doing it this way. 20 THE COURT: Yes. 21 Q Mr. Odeh, where were you calling from at that time? 22 A From Hong Kong. 23 Q When you were talking about some guys who wanted to open 24 up a partnership, who were you talking about? 25 A The brother of Mr. Samir and his cousin. 4068 1 Q And what is his name? 2 A The brother of Samir is named Ezaladen Abdel Rahman 3 Mohamed. 4 Q Could you spell Ezaladen? 5 A E -- 6 Q Z? 7 A E-Z-A-L-A-D-E-N. 8 Q And was Mr. Ezaladen also going to come with another 9 person? 10 A Yes, his cousin. 11 Q And what nationality were they? 12 A They carry a Sudanese nationality passport, but they based 13 in Bangkok at that time and they have office in Senegal and 14 other office in China. 15 Q And what kind of business did they want to open in a 16 partnership in Kenya? 17 A Assembly watches. 18 Q And why were you calling Mr. El Hage concerning obtaining 19 visas for them? 20 A Because we planned to make a business with El Hage. For 21 that he is the first one who is to assist. 22 Q Why didn't they simply obtain visas in Hong Kong? 23 A Because I am in Hong Kong. Nobody there in Nairobi. 24 There is not any embassy of Kenya in Hong Kong. 25 MR. SCHMIDT: Now we're going to continue reading. 4069 1 Thank you. 2 (Transcript continues) 3 BY MR. SCHMIDT: 4 Q Now, if I interrupt the reading and ask you a few 5 questions, Mr. Odeh. 6 4,000 that was mentioned, in what currency was that? 7 A In Kenyan shillings. 8 Q Approximately how much is 4,000 Kenyan shillings? 9 A Approximately $50. 10 Q Is that the regular price to obtain a visa in a 11 business -- a visa used by a businessman in Kenya? 12 A No, the first visa, it will be an entrance visa. This is 13 nearly the cost. It is not a business visa. To be only for 14 entrance. Then there is another procedure for a business. He 15 have to arrange the memorandum, he have to apply for resident 16 visa. 17 MR. SCHMIDT: Now if we may continue. 18 (Transcript continues) 19 BY MR. SCHMIDT: 20 Q If I may interrupt, do you recall what the issue was? 21 A I transferred some money to Wadih because when I left, I 22 owed some money from Wadih. 23 Q And how much money did you transfer? 24 A 2,000 U.S. dollars. 25 Q Was that the amount that you borrowed from him? 4070 1 A Somehow, yes. 2 MR. SCHMIDT: Continuing. 3 (Transcript continues) 4 A Can you repeat what this paragraph? 5 Q Excuse me? 6 A The previous, I couldn't listen the previous paragraph. 7 Q I'll repeat that. 8 MR. SCHMIDT: I don't have it on this screen. Is 9 there a reason? 10 (Pause) 11 (Transcript continues) 12 BY MR. SCHMIDT: 13 Q If I may interrupt, Mr. Odeh, did -- were you successful 14 in selling the stones in Switzerland? 15 A No. 16 MR. SCHMIDT: Continuing. 17 (Transcript continues) 18 BY MR. SCHMIDT: 19 Q If I may interrupt now, who is Sheik Sill? 20 A He is one of the diamond specialists. I know him 1988. 21 Q And is he also known by another name? 22 A Sheik Suleiman Sill, about 72 years old. 23 Q Excuse me? 24 A He's about 72 years old. 25 Q And have you dealt with him previously concerning 4071 1 diamonds? 2 A Yes. From time to time, I deal with him and he is my 3 consultant for diamond and some other stones. He is very 4 expert on that stuff. 5 Q Now you were talking to Wadih about Wadih going with Sheik 6 Suleiman Sill to Mwanza; is that correct? 7 A What I was meaning on that, actually I meant to go, 8 because if you notice what I say, Sheik Suleiman know where he 9 can buy the stones. But maybe when I talking I make some 10 miss. 11 Q Now, where is Mwanza, what country? 12 A Mwanza, it is a part in the south maybe of Tanzania. It 13 is near the Lake Victoria and this is the region of diamond in 14 that country. 15 Q Now, were you working in some kind of financial 16 arrangement with Mr. El Hage for this deal? 17 A No, what I say that I want to arrange the finance. I said 18 that clearly. I say that I will send the $3,000 to buy the 19 stones. 20 Q Would Mr. El Hage benefit in any way if it was a 21 successful deal? 22 A Of course. If it had been a successful deal, everyone 23 will benefit. Wadih will benefit, Sheik Suleiman Sill will 24 benefit, everyone one will benefit. This is business. 25 MR. SCHMIDT: Thank you. Continuing. 4072 1 (Transcript continues) 2 BY MR. SCHMIDT: 3 Q Let me interrupt again. When you say you wanted to be 4 heavy, what do you mean? 5 A What? 6 Q When you said, "Even $3 is a good price, but let us wait 7 because we want to be heavy"? 8 A I think there's translating from Arabic to English, it is 9 not like this way. 10 Q What do you mean? 11 A Because what I mean, I want to see a big consignment, not 12 a small consignment, and I mean it at that on container in a 13 month. 14 Q When you say "heavy," you might mean large? 15 A Large quantity. For that, the people who translated it 16 did not translate it quite well. 17 Q Who is Nadhir? 18 A Who. 19 Q Nadhir? 20 A Can you repeat the name, please? I couldn't understand. 21 Q We'll continue and then we'll come back to that. 22 A Yes, please. 23 (Transcript continues) 24 BY MR. SCHMIDT: 25 Q Let me interrupt. Do you understand the conversation 4073 1 concerning the the green tourmaline? 2 A Yes. 3 Q Who is the person that you and Wadih were talking about? 4 A I am the one who talking. I say, I tell Wadih to arrange 5 with my man, who is David Matwah, or he can use Mr. Ali Gab 6 because he dealing with him. What I mean bought, David or 7 Ali, but I need the stuff according to my specification, which 8 is olive three carats. 9 Q Now, you said Ali Gab, is Mr. Gab's real name Ali Omar 10 Mohamed? 11 A Yes, I think so. Ali -- what I know him is Ali Gab, but 12 maybe he's the same one. Ali Omar something else. 13 Q And could you tell us what he looks like? 14 A What? 15 Q What does he look like? 16 A He's a small guy, short. For that maybe "Gab" means 17 short, but I don't know. 18 MR. SCHMIDT: Continuing. 19 (Transcript continues) 20 BY MR. SCHMIDT: 21 Q Let me interrupt again. Could you tell us who Abu al 22 Mutaz is? 23 A He is one of Jordanian businessman in Hong Kong. His 24 company is Lucky. His name of his company is Lucky, 25 L-U-C-K-Y. (Continued on next page) 4074 1 Q Do you do business with him? 2 A Yes, of course. 3 Q What kind of business do you do with him? 4 A You know I told you my business is stone. For that, when 5 I come with the stone I put it in the place where I trust, and 6 he start using his facilities to market for me the stone, send 7 faxes here and there. 8 Q Who is Dr. Tilib? 9 A Yes, also one of my friends, but he is Arab China media, 10 his company name. 11 Q I am going to ask you to take a look at a card that comes 12 from Government's Exhibit 306. It is about the fifth page on 13 the very bottom. Have we located it? Don't bother. Once it 14 stops moving, can you see that? 15 A Yes, this is a correct, I told you, Arab-Chinese Trade 16 Media Group. 17 Q At the bottom where it says -- 18 A Dr. el Sayed Tilib. He is consultant, medicine doctor, 19 but he go back to business. 20 MR. SCHMIDT: For the record, this card is from 21 Government's Exhibit 306, seized from Mr. El Hage's Nairobi 22 home. 23 Now if we may continue. 24 (Reading continued) 25 Q Now, if I may interrupt, could you tell us what that 4075 1 portion of the conversation was about. 2 A Mr. Abdul Motaz, he offer me the stock of his business 3 because part of his activity is textiles, and he have about 4 six parcels, quite big. It is all the stuff. And he told me 5 if you can take it to some poor people in Kenya -- in Islam 6 they would have Zaka. Then I suggest Wadia can take it and 7 distribute it because he have Help Africa nongovernment 8 organization at that time. 9 Q Could you tell us -- 10 A In Islam call Zaka. It mean the thing which you have big 11 on behalf of what you have money, and it is have a very big 12 formula sometimes -- (Through interpreter) alms giving. You 13 pay a percentage of your income. 14 (Reading continued) 15 Q If I may interrupt again, Mr. Odeh -- 16 A Never mind. 17 Q I want to get it right. 18 A Yes. 19 Q Could you explain to us about these calculators. 20 A Yes, sir. The calculate machine, we have some factory in 21 China offer us very good prices for about 1 million 22 calculators, at that time Casio. And I was looking for a 23 buyer because I can make money from that. 24 Q Did you have discussions with Wadia concerning finding a 25 buyer for that? 4076 1 A I think so, because it is now the conversation, because 2 you couldn't remember every incident. When you are in 3 business you have many things on your mind, and you have to 4 understand my concern. When it is coming away, it is other 5 things. 6 Q You have listened to this tape recorded conversation in 7 the original Arabic before, haven't you? 8 A Yes, I listen, but I find some difference in translations 9 here. 10 Q Who were the people that you and Wadia were reaching out 11 to to try to sell the calculators to? 12 A I think we reach Sheik Ishaq. 13 Q Would that be I-S-H-A-Q? 14 A Yes. 15 Q That would be one manner of spelling, is that correct? 16 A Yes. Any people who is interested, but we concern about 17 Sheik Ishaq. 18 Q By the way, when you are translating an Arab name into 19 English, it is completely phonetic; is that correct? 20 A Yes, sometimes it is very difficult because, you know, 21 each area have their own accent. For that, when you translate 22 to English, everyone translate in his own way. For that you 23 find some people say Odeh, some people say Odeh. For that, 24 when man is writing in English, there the difficulties come 25 out. 4077 1 Q So, for example, if somebody gives a name, because of the 2 difference in dialect you may not understand who it is? 3 A Yes, that is correct. 4 (Reading continued) 5 Q Were you discussing having Dr. Motaz assist Mr. El Hage in 6 his Help Africa nongovernmental organization? 7 A Yes, this is Dr. Motaz. He asked me to ask Wadih about 8 it. 9 (Reading continued) 10 Q Do you recall what the other issue was? 11 A About other business in general, because you see what I 12 told you, and this is not the first fax. Other faxes about 13 the stone, about the quality of the stone I need, about visas. 14 (Reading continued) 15 Q Concerning the shipment of the goods, is it a very simple 16 matter or is it a little complicated to even get the free 17 goods from the Far East, the clothing, into Kenya? 18 A Especially the textiles have some complicated, because at 19 that time it was not allowed to import any textile. For that 20 maybe because it is come Indonesia, they can accept it into 21 the country -- because what I see, unfortunately there is some 22 mistakes in the translation. For that you read it wrongly. 23 You say I write, which is we not responsible for enter into 24 Nairobi. Abu Motaz did not responsible to get it into 25 Nairobi, not we. This is one. 4078 1 Second, I told him my conversation. We give you the 2 authority to what type of poor people you can distribute, 3 otherwise have nothing to be involved on that issue. You can 4 distribute your own way but conditionally to the poor people. 5 Q When you are shipping something from the Far East -- this 6 is Hong Kong, is that correct? You are shipping from Hong 7 Kong to Nairobi, how do you normally ship large items like 8 that? 9 A Sometimes by air, sometimes by sea. 10 Q If you ship it by sea, where does it arrive generally? 11 A Mombasa, but we did not ship it anyhow. 12 Q Which is the port for things coming in by sea -- 13 A Mombasa port. 14 Q Things coming by sea ending up in Nairobi, where would 15 they enter Kenya? 16 A By air or boat? 17 Q By boat, what port would the goods first arrive in? 18 A If it is by sea, must be brought in Mombasa. Only if 19 there is some condition on consignment with the carrier that 20 it can be in Nairobi depot, where the container can sit. This 21 is for the government of -- yes. If there is condition with 22 the shipper who is put, the shipper sign on it. It can be 23 that way, yes. 24 Q Our next conversation is also in Arabic, and we have an 25 English translation, WEHXW10, the transcript being WEH-W10-T. 4079 1 We will play the same roles. We offer these conversations, 2 the original tape recording and the transcript into evidence. 3 THE COURT: Any objection? 4 MR. FITZGERALD: No objection at this time, your 5 Honor, subject to the earlier application. 6 MR. SCHMIDT: Excuse me. 7 MR. FITZGERALD: No objection at this time. 8 (Defendant Exhibit WEH-W10 and WEH-W10-T received in 9 evidence) 10 MR. SCHMIDT: This is a telephone call, 8:30, 11 December 17, 1996, between Wadih El Hage and Abu Kefah, as we 12 know, Mohamed Ali Odeh. 13 THE WITNESS: Yes, I am the one. 14 MR. SCHMIDT: This one we have it says Abu Kefah. 15 (Defense Exhibit WEH-W10-T in evidence read to the 16 jury) 17 THE WITNESS: It is half million, not one half. 18 Correction. 19 Q Half million, OK. 20 A Yes. 21 Q Were the sales, did the sales end up between December 17 22 and June to be one half million dollars or was that an 23 overestimate? 24 A No, within six months, because the plan which I was making 25 to sell a lot of gem quality stones. 4080 1 Q Were you able to sell gem quality stones over that period 2 of time? 3 A Korea, Singapore to Japan and -- 4 Q Did you end up selling all those stones? 5 A What do you mean? 6 Q Were you successful in selling those stones? 7 A Yes, when we plan to success, yes. 8 (Reading continued) 9 Q If I may interrupt, what does he mean by the shipping 10 policy? What is meant by the shipping policy? 11 A The method of the shipping, because I was not the one who 12 send them. Samir supposed to send them, the brother of 13 Mr. Moaz he ought to send them. For that, I do not know how 14 we have to send. You remember I said by DHL. Then I did not, 15 because I was in Korea. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 4081 1 THE COURT: Let's take a very brief recess. We are 2 going to quit at 4. Let's take a very brief recess now. 3 (Jury excused) 4 THE COURT: We have another note from a juror who has 5 to go to a wake tomorrow. We said we would close at 4. She 6 wants us to adjourn at 2. I will split the difference and say 7 3. She says that she just learned about this this afternoon. 8 Mr. Schmidt, you will have to pick it up. We want to 9 move forward because you see it is very slow and tedious. 10 MR. SCHMIDT: If I may, your Honor, what I am doing 11 is, I am making the reading of it longer because I am 12 interrupting the questions during it as opposed to doing that 13 part and -- 14 THE COURT: I understand. 15 MR. COHN: Could you call Joel Blum? I was talking 16 to my client in what for me is moderate tones and I am told it 17 can be heard on the system through these microphones. I would 18 like to get these microphones cut off. 19 THE COURT: Tomorrow is gradually being whittled 20 down. 3:00? Tomorrow we will adjourn at 3:00. 21 All right, Mr. Schmidt. 22 MR. SCHMIDT: Thank you, your Honor. 23 (Reading continued) 24 (Continued on next page) 25 4082 1 BY MR. SCHMIDT: 2 Q Mr. Odeh. 3 A Yes. 4 Q Do you recall what the issue was with the moonstone? 5 A That's correct. 6 Q What were you going to do with the moonstone? 7 A You know, moonstone is semiprecious stone. 8 Q What kind of stone? 9 A Semiprecious stone. It is not gem quality. It is coming 10 for craft usually, not for jewelry. Handicraft, usually done 11 for handicraft. 12 Q Where were you and Wadih going to send it to? 13 A I have what is stone maybe five years with me. It is 20 14 kilos. I want to show the samples. For that DLH will need a 15 lot of money, $350. 16 Q So when you want to send a container every month to China, 17 who are you going to send it to? 18 A Me. 19 Q You are going to send it and who is going to receive it? 20 A I told you that I was planning to make a contract with 21 some factory for handicraft. For that I ask the sample but 22 the sample was not coming because the expense of the sample 23 was heavy. 24 MR. SCHMIDT: If I may continue. 25 (Reading continued) 4083 1 Q If I may interrupt, who was your source of amethyst? 2 A Different people, because amethyst usually come from 3 Tanzania, Zambia, Mozambique, and Congo. 4 Q Did you do any business with Wadih concerning amethyst? 5 A Yes, I tried to arrange with Wadih. He have to arrange 6 that amethyst. 7 Q Did you or he travel to countries that you mentioned to 8 obtain the amethyst? 9 A No, he is the one who traveled, not me. 10 Q And the partnership that was being discussed about 11 Indonesia, can you explain that to us? 12 A Yes, because we agree with Samir -- I see my partner many 13 times in the faxes, and some businessman to make low-quality 14 necklace, because the rich people can buy the heavy one but 15 what about the poor and medium people, and we find good market 16 for the medium class of the people. For that we have to make 17 this semiprecious stone as moonstone as chrysoprase, as the 18 second degree or third degree of the other stone, which is 19 usually used to facilitate. We prepared to make it for low 20 class jewelry for the common people everywhere in the world. 21 (Reading continued) 22 Q What country is Voi located in? 23 A Voi, it is a district in Kenya. 24 Q Did Mr. El Hage or Rasheed or David go to find the stones 25 as you discussed here at a later date? 4084 1 A No. What I suggest in my letter that this as much as I 2 need is not available in Kenya, neither in Tanzania, it can be 3 available only in Mozambique. For that David usually go to 4 Zambia to bring tourmaline for what he know, I mentioned 5 clearly, where he can get that stuff to me, because this is a 6 very special color stone, because tourmaline come different 7 color. It is green, but what we need, an olive tree color of 8 tourmaline. This what we need, a specified color. 9 Q And David did go -- 10 A No, I say I am coming. I say I am coming because I have 11 to plan. 12 Q This is in December of 1996. Sometime in 1997 did David 13 go to get the stone? 14 A No, I get some of the sample to me, and I give to David to 15 arrange. But unfortunately, he did not go because there is 16 some war in this area. Unlucky. 17 (Reading continued) 18 Q Do you recall what that discussion was about what you saw 19 that was stolen from you previously? 20 A Can you repeat your question, please. 21 Q It says on the transcript that you saw something, which 22 was inaudible, that could what was stolen from me, meaning 23 you. Do you recall that? (Interpreted) 24 A Some of the stone was stolen, you mean? 25 Q I am asking, do you recall having read that portion of the 4085 1 transcript, what you and Wadih El Hage was talking about? 2 A No, can you repeat to me, please, I couldn't hear. 3 Q I saw the, and it is inaudible, the word, which I told you 4 it could be what was stolen from me. Wadih: Yes, you told 5 me. 6 A Yes, I understand stone. You know, sometimes before some 7 stone was stolen from me and go to Hong Kong for cutting. The 8 question is not really stolen, I give to some people to cut 9 for me some stone, it is ruby, and unfortunately they 10 disappear. I find some of these stones in the market in some 11 shops in Hong Kong. 12 (Reading continued) 13 Q If I may interrupt, could you tell us who Hazim is? 14 A Hazim, not Hazim. Yes. He is one of the stone business 15 dealers from Jordan. 16 Q Where does he reside? Does he live in Jordan or does he 17 live elsewhere? 18 A What you mean? 19 Q Where does Hazim live? 20 A Yes, he come to Kenya, to Tanzania, to buy stone and go 21 back. 22 Q To go back to Jordan? 23 A Yes. This what I know. 24 (Reading continued) 25 Q Going back to the individual who was going back to 4086 1 America, the Pakistani going back to America, does this relate 2 to a conversation we just heard earlier? 3 A According to what I heard, yes, he was arranging a 4 financier, and you hear, I think everybody hear that I say it 5 is not necessary because we want to make our money and finance 6 our own efforts. 7 Q As to the machines needed for Nairobi in March, what kind 8 of machines are you talking about? 9 A Air compressor. 10 Q What was the purpose of air compressors? 11 A For mining. 12 Q Where were you going to be mining? 13 A We plan in Bokot, we plan in area Voi. We have a lot of 14 plan. Of Kenya. I am talking about Kenya, because also I 15 want to try to develop that area where I am. 16 Q Was this part of the plan concerning Black Giant? 17 A Yes. 18 (Continued on next page) 19 20 21 22 23 24 25 4087 1 (Reading continued) 2 MR. SCHMIDT: This would be a good time to break, 3 your Honor. 4 THE COURT: No quarrel. We are adjourned until 5 tomorrow, and tomorrow we will sit till 3:00. 6 (Jury excused) 7 THE COURT: Why don't we take a five-minute recess 8 and then we have three matters on the agenda. We have two 9 motions to quash and we have an issue as too bifurcation. 10 MR. BAUGH: Do you want to do the motion to quash 11 first? 12 THE COURT: Is counsel for the French agency here? 13 Yes. 14 (Recess) 15 THE COURT: I didn't realize that one of the 16 defendants was not in the courtroom, and we will await his 17 presence. 18 MR. FITZGERALD: I think I can put this on the record 19 with just Mr. El Hage here. The defendant El Hage moved to 20 suppress items seized at the Kennedy Airport in September 21 1997. The government said since we did not intend to offer 22 those documents the court need not decide the motion. Today 23 we have stipulated, since the El Hage team wants to introduce 24 some of those documents, to authenticity, but also agreed that 25 the previous motion is waived so that if the government 4088 1 authenticates items by that same stipulation, we could offer 2 them subject to an objection by defense counsel as to a 3 particular item but not on the basis that they should be 4 suppressed as an illegal search. 5 MR. SCHMIDT: If I may, while that is correct, I am 6 reserving my right at this time until we decide to put some of 7 those documents into evidence. So for lack of a better word, 8 until we make an affirmative decision, the decision is stasis 9 with respect to the authenticity issue as to the things seized 10 and copied at the JFK Airport. 11 THE COURT: The only thing that I have deduced from 12 this colloquy is that everybody agrees that there is nothing 13 for me to do on the issue at the present time. Is that 14 correct? 15 MR. SCHMIDT: Well said. 16 MR. FITZGERALD: I wanted to preserve my rights 17 because we had signed it without it being retyped for the 18 jury. 19 THE COURT: There is more waiting in this trial than 20 I normally tolerate but it is all due to understandable 21 circumstances. 22 I have two motions to quash subpoenas before me, one 23 on behalf of, and my French pronunciation I am sure is very 24 defective -- Agence France-Presse? Is that good enough? 25 MR. KAUFMAN: Perfect. 4089 1 THE COURT: And another on behalf of CNN, and I am 2 told there are more in the offing. It might be helpful if we 3 begin with some understanding of basic legal principles, and 4 we are not completely at a loss, because there is a Second 5 Circuit opinion en banc, Gonzalez v. National Broadcasting 6 Company, 194 F.3d 29, which deals with a reporter's privilege 7 with respect to nonconfidential material and which holds that 8 there is a privilege even with respect to nonconfidential 9 material but that of course the burden on the party seeking 10 discovery is lower with respect to where what is sought is 11 nonconfidential than when what is sought is confidential. 12 Also, because there is some suggestion that the 13 shield law does not apply in criminal cases there is also the 14 Second Circuit opinion in US v. Cutler, 6 F.3d 67, which holds 15 that the privilege applies even in respect to criminal 16 matters. 17 Who represents the French agency? Your name, sir? 18 MR. KAUFMAN: Joshua Kaufman. 19 THE COURT: Sir, apart from all else that you say in 20 your moving papers, you estimate that the time to complete 21 compliance with the subpoena as is presently drafted, you say 22 at page 6, Agence France-Presse calculates that having an 23 editor going through the archives on a full-time basis would 24 take three months to comply with the subpoena. 25 MR. KAUFMAN: That is correct, your Honor. The 4090 1 request goes back 15 years worth for tens of thousands of 2 photos. These are not digitized or computerized. They are in 3 sleeves like we are all familiar with. Somebody would have to 4 go through drawers, put them on a light box, and look at each 5 negative. 6 THE COURT: I have a few questions. There are 7 organizations that exist which furnish films, photographs. 8 Bettman Archives used to be the leading agency of that sort. 9 Does your client engage in that business? 10 MR. KAUFMAN: Our client does, but not like Bettman. 11 They have a contract with Bettman, now Corbis. So for certain 12 pictures that have been digitized since 1997, those are 13 organized so Bettman and Corbis can provide it. These are pre 14 that period. These generally are not available for sale like 15 through a Bettman and so on. 16 THE COURT: They go back to '97? 17 MR. KAUFMAN: The digitization process began in 1997. 18 THE COURT: And are there other photo supply 19 houses -- what do you call them? 20 MR. KAUFMAN: Stock houses. 21 THE COURT: -- that go back to an earlier day? 22 MR. KAUFMAN: Yes, but that is not AFP's stock in 23 trade, no pun intended. These are for different kinds of 24 archives like a Bettman who can readily go through them. 25 THE COURT: What is comparable to Bettman that now 4091 1 exists? 2 MR. KAUFMAN: Corbis, Suba Stock -- there are a 3 number of those types of entities. 4 THE COURT: So if the defendants' need was simply to 5 obtain photographs depicting, for example, the extent of 6 damage done to Iraq as a result of American bombing, could the 7 defendant go to Corbis and order what is sought for in the 8 subpoena? 9 MR. KAUFMAN: Yes. I don't know about as far back as 10 some of the earlier ones. Certainly the later images. There 11 is Press Link, where if you have an account you can go on line 12 and click on a picture by picture basis and download them. 13 THE COURT: And obviously that does not involve any 14 economic burden to your client nor does it involve any issues 15 under the shield law? 16 MR. KAUFMAN: No, those would not affect my client at 17 all. 18 THE COURT: That's what they do. 19 MR. KAUFMAN: That's those people's business, 20 correct. 21 THE COURT: Would such an agency have unpublished 22 photographs or only published photographs? 23 If you don't know, you don't know. 24 MR. KAUFMAN: I am thinking back. My client is here. 25 I can get an answer. 4092 1 MS. MANN: Yes, we would. The coverage involves 2 every photograph that was ever taken, every negative of a 3 coverage. 4 MR. KAUFMAN: This is Maria Mann. She is director 5 for photography in North America for Agence France-Presse. 6 They would have some unpublished works as well. 7 THE COURT: May I now address Mr. Baugh. 8 MR. BAUGH: I agree with you, your Honor. 9 THE COURT: Subpoena is withdrawn? 10 MR. BAUGH: Subpoena withdrawn. 11 THE COURT: Does that apply to CNN subpoena as well? 12 MR. BAUGH: Withdrawn. 13 MR. KAUFMAN: Thank you, your Honor. 14 MR. SCHMIDT: Your Honor, I would like to address -- 15 MR. BAUGH: Excuse me, your Honor. By withdrawing 16 it, I assume you will give me reasonable time to reissue to 17 Bettman -- OK, that's fine. 18 THE COURT: I want to say something for the record 19 that the lawyers are well aware of but maybe is not so well 20 known, and that is that defendants in this case have been 21 granted virtually every request that they have made for 22 funding, for investigators, for paralegals, for 23 interpreters -- you name it. If there was a colorable claim 24 of need, it has been granted. You want the court to tell you 25 that if you contact the photo service and make an arrangement 4093 1 for the procurement of these photographs and you submit a 2 voucher to that effect the court will sign it? The court so 3 advises you. 4 MR. BAUGH: Your Honor, I am going to tell you, at 5 the risk of destroying all this, no, I will agree that you 6 have been more than fair when it came to granting privileges. 7 It is just that the last several weeks you have been churning 8 fast. That is my concern. The court has been very amenable. 9 THE COURT: What you have been doing is you have been 10 churning out subpoenas which you know defeat themselves, 11 because under the clear law, in order to sustain a subpoena of 12 a news agency, you have to demonstrate that the material is 13 obtainable from no other source. So the very existence of the 14 alternative, or the multiple negatives negates it. We have 15 resolved it consensually. Everyone is happy. Let's move to 16 our next item. 17 MR. BAUGH: I didn't want you to think I was agreeing 18 with you at the end. Can we move to the next issue? 19 THE COURT: No, because I thought we had reached it. 20 Am I correct that all of the subpoenas that you have issued to 21 news gathering media, with the possible exception of those who 22 may not oppose the subpoena, who may be delighted to comply 23 with it, are withdrawn? 24 MR. BAUGH: Yes, sir. 25 THE COURT: Very well. I think the only -- all 4094 1 right. Mr. Schmidt, you have a subpoena addressed to Cable 2 News Network? 3 MR. SCHMIDT: Yes, your Honor. We are notorious in 4 leaving out letters. I would like to explain ex parte, in 5 camera, why not only is this situation different than 6 cocounsel's situation, but why we resorted to the subpoena to 7 CNN for this specific piece of evidence, at this specific 8 time. 9 MR. BAUGH: Your Honor, on behalf of Al-'Owhali, we 10 would like to join in counsel's request for that specific item 11 and we would rely upon their subpoena, that specific item, 12 which is different. 13 THE COURT: I think it would be very difficult to do 14 this on an ex parte basis, because you are seeking raw and 15 uncut footage of Cable News Network and that is an issue which 16 the Second Circuit has clearly addressed, and I am not going 17 to grant such a subpoena without giving CNN an opportunity to 18 oppose it. 19 MR. SCHMIDT: I am perfectly willing to address the 20 situation with CNN. I am not willing to address the situation 21 with the government unless your Honor signs it, and I can even 22 deal with the motion to quash right now. 23 THE COURT: Is CNN still here? 24 MR. SCHULZ: Yes, your Honor. 25 THE COURT: Let's take up the bifurcation issue, 4095 1 because then I think maybe we can let some people go home. I 2 was told earlier in the day that the government's position 3 with respect to bifurcation -- by bifurcation, talking about 4 separate penalty trials with respect to Al-'Owhali and K.K. 5 Mohamed. The government has filed a memorandum opposing 6 bifurcation on the present state of the record. What is the 7 government's position? 8 MR. GARCIA: Judge, that is correct, we filed a 9 motion opposing bifurcation on the present record. The 10 government read Mr. Ruhnke's response to that motion wherein 11 he indicates that there will not be significant overlap 12 between the two phases, which was the government's concern 13 expressed in the response, and has offered to make a proffer 14 to the court to that effect outside the presence of the 15 government, which is acceptable to the government in 16 addressing that issue. If that is acceptable and the 17 government accepts Mr. Ruhnke's representation that there will 18 be no significant overlap, that addresses the government's 19 concern that there will be two, essentially, overlapping, 20 significantly overlapping proceedings, and the cases cited in 21 that response. In that case the government would be prepared 22 to withdraw its opposition. 23 THE COURT: I have some problems, and let me tell you 24 what my main problem is. The original principal argument in 25 support of bifurcation related to the attack on the prison 4096 1 guard and the desire on Al-'Owhali's part that that not be 2 brought out at a trial in which he is the defendant. In the 3 government's response, the government raises the issue whether 4 if counsel for Al-'Owhali seeks to introduce as reasons why 5 the death penalty should not be imposed the nature of maximum 6 security and lack of dangerousness, that the government might 7 then seek to introduce at the Al-'Owhali trial evidence of the 8 attack on the guard by K.K. Mohamed, and if that were to 9 occur, then the reason why bifurcation was granted in the 10 first instance would really have disappeared, because then we 11 would have two separate trials at each of which the jury would 12 hear of the attack on the guard, and I don't know how one 13 deals with that. 14 Just in terms of what you just said about assurances 15 that there is no overlap, I don't know how in a death penalty 16 phase the court enforces such an understanding. 17 Let's deal with the first matter, which is really my 18 main concern, and that is, does the government foresee a 19 circumstance under which it seeks to introduce at the 20 Al-'Owhali death penalty phase evidence of the attack on the 21 guard? 22 MR. GARCIA: Your Honor, it is definitely possible, 23 as we said in the brief. I don't want to overstate to the 24 court how much evidence we could get in or would get in in an 25 effort to have trials together. I am trying to be as 4097 1 forthcoming as possible here. I think as a preliminary matter 2 the government would oppose at least to a certain extent any 3 exploration of maximum security conditions in different 4 prisons under a case called Johnson. 5 THE COURT: How can you do that? Why isn't it one of 6 the key elements for the jury in determining whether the death 7 penalty is appropriate to consider what the alternative is? 8 MR. GARCIA: That is clearly an element, but there is 9 a case out of the Fourth Circuit called Johnson which 10 determines where the defendant gets assigned, how long he will 11 be assigned, mainly dealing with the Florence ADMAX 12 situation -- 13 THE COURT: We know, Mr. Baugh has given us the 14 benefit by his subpoenas of having some insights. He's got 15 subpoenas out to the wardens of every maximum security prison. 16 I would be amazed if an attempt were not made to describe to 17 the jury what the terms of confinement would be of somebody 18 who did not receive the death penalty. Correct me if I am 19 wrong. 20 MR. RUHNKE: I have had some very specific experience 21 with exactly what you are talking about. There are two or 22 three different things going on at this particular point. If, 23 for example, a defendant in the penalty phase of a capital 24 case, where the government alleges future danger, as is done 25 in this case, for a defendant to obviously introduce evidence 4098 1 that he is going to be locked up for the rest of his life 2 under very severe conditions may be a relevant inquiry -- 3 Mr. Al-'Owhali's case is distinct from Mr. Mohamed's case -- 4 if the government were to say well, just because somebody is 5 in maximum security doesn't mean he cannot be a future danger 6 theoretically. The government has said within the last two 7 years or five years in the Bureau of Prisons, under maximum 8 security there have been four murders of corrections officers 9 or there ever been five serious assaults on staff members in 10 order to rebut the idea. But I think what the government may 11 be recognizing, they are not certain how much evidence they 12 may get in. 13 THE COURT: If they can do that in the abstract, why 14 would they not be able to do it when dealing with a 15 coconspirator who is ideologically attuned, who has had the 16 same training and motivation and so on? 17 MR. RUHNKE: That is exactly the danger. I think 18 that would be a wholly inadmissible idea, that because one 19 codefendant did it, the other codefendant is just waiting to 20 get his chance, and that is why there is a separate penalty 21 phase in the first place. 22 THE COURT: You know, Mr. Baugh tries to convince me 23 that the appropriate analogy here is to warfare, and warfare, 24 one of the governing principles is that a prisoner shall do 25 everything in his power to seek to escape. 4099 1 You know, I am really sharing with you a concern I 2 have because if we bifurcate and we end up with the attack on 3 the guard coming out in evidence in each stage, it can be 4 harmful to either side. 5 MR. RUHNKE: I think on the point we are trying to 6 make, or I am trying to make, it is that it would even -- I 7 don't want to make other counsel's arguments for them, but 8 even in the case of a bifurcated trial where evidence is 9 presented of what the maximum security conditions are like in 10 a general sense, to bring into evidence a specific assault 11 that happened at a specific institution, which brings it very, 12 very close to a codefendant, would allow the jury to make the 13 impermissible leap that this defendant is ready to do the 14 particular thing. 15 I don't think the government is saying this is 16 warfare. I do not conceive of this as warfare, and just so we 17 are crystal clear, we concede no role on Mr. Mohamed's part in 18 the attack on the officer at all. The government has said 19 many times that the evidence may be, quote/unquote, 20 circumstantial in the attack. We are waiting for DNA results. 21 We are waiting for the key in those results. The government 22 has basically said, put us on notice that it will try that 23 case in its entirety from start to finish, witness after 24 witness, in our penalty phase, so that within our penalty 25 phase we will be defending an independent charge not 4100 1 previously before the jury of this attempted murder and 2 attempted escape attempts that have been noticed in the 3 aggravating factors. 4 THE COURT: Does the government accept the principle 5 that Mr. Ruhnke has just espoused, that although the 6 government might, in a statistical or abstract form, argue to 7 the jury that experience has shown that defendants in maximum 8 security conditions have nevertheless succeeded in murdering 9 or seriously injuring prison guards, but could not show a 10 specific instance, could not show in the penalty phase with 11 respect to Al-'Owhali that K.K. Mohamed and Salim attacked the 12 guard? Does the government accept that? 13 MR. GARCIA: No, Judge. I think a few things. Some 14 of this will depend on Mr. Baugh and Mr. Cohn in terms of what 15 they do. There may be a difference, as Mr. Ruhnke says, as to 16 the quantum of proof that will be able to come in in terms of 17 proving Mr. KK's participation in the attack on the guard and 18 that the attack happened in 10 South under maximum security 19 conditions. I concede there may be a difference in how it 20 comes in and how Mr. Baugh opens the door with respect to the 21 maximum security conditions. For example, he has subpoenaed 22 the MCC and records and attacks in the MCC in the maximum 23 security wing. 24 I think, though, Judge, the fact that subpoenas were 25 issued for all this material does not mean that the evidence 4101 1 comes in, and that the standard for subpoenaing the evidence 2 was very low and the standard for admitting it would be 3 higher. 4 THE COURT: That is why it is helpful to thresh this 5 out now, because I think it would all be relevant. I think 6 where the issue is future dangerousness on one hand and on the 7 other hand to argue to the jury that life imprisonment without 8 possibility of parole is an adequate punishment, one would, I 9 think, be entitled to show in considerable detail what 10 confinement consists of. I just don't want to be put in the 11 position where, unanticipated by defense counsel, the 12 government seeks to introduce evidence of the attack on the 13 guard and defense counsel says that's the whole reason why we 14 bifurcated, was to keep that out. 15 Mr. Baugh. 16 MR. BAUGH: Your Honor, I agree with the court that 17 on the issue of future dangerousness we would be defeating our 18 duty to our client if we didn't bring in conditions of 19 confinement that were available under the law for defendants 20 who were convicted and sentenced to life without parole. On 21 the other hand, while, say, for instance, that there was an 22 assault at MDC and there was an assault at ADMAX in Florence, 23 those would probably be admissible if the government offered. 24 If, on the other hand, they offered an assault where the 25 potential prejudice outweighs the probative value, the 4102 1 evidence of that particular assault would not be admissible. 2 We have issued subpoenas to MCC because earlier in 3 this trial we filed a Brady request for any information that 4 the government had indicating that our client had nothing to 5 do with what happened at the MCC on November 1. We issued 6 subpoenas based on our investigation that our client had 7 nothing to do with that assault. No one even asked him if he 8 wanted to be involved and he was not involved. Therefore, his 9 lack of involvement would certainly weigh on whether or not 10 the evidence of that singular assault would be admissible 11 because its probative value outweighs its prejudice. 12 So I agree with the government that if they raise 13 future dangerousness, we have an obligation to get into 14 conditions of confinement. Additionally, if we get into 15 conditions of confinement, they have a right to rebut the 16 evidence we put in on conditions of confinement. However, and 17 we should get a ruling now, whether or not if they cannot 18 connect that conduct to my client specifically in some way, 19 shape or form, we would submit the probative value is 20 outweighed by the prejudice and as to that, it should be 21 excluded. 22 MR. COHN: Your Honor, can I ask to break your rule 23 and say something? 24 THE COURT: Yes. 25 MR. COHN: The rule of no two lawyers. 4103 1 THE COURT: There is also a rule of compassion that 2 when the judge looks down and sees such anguish -- that is not 3 your anguish? 4 MR. COHN: No, it wasn't anguish, Judge. I don't 5 know the Johnson case, but United States v. Battle is the only 6 case I am aware of where a specific assault on guards is 7 admitted in the penalty phase. The Fourth Circuit seemed to 8 make reasonably clear that had the defendant not participated 9 directly in that event, that that kind of direct testimony 10 with respect to future dangerousness would not be admissible. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4104 1 THE COURT: Well, give my clerk the citation. 2 Battle? 3 MR. COHN: B-A-T-T-L-E. We'll call your chambers 4 with the direct cite. 5 THE COURT: Let me suggest two things that should 6 happen. One is you should get some statement from Mr. Ruhnke 7 assuring that there will be no overlap, and the enforceability 8 of that I think is going to be counsel's representation in 9 good faith. 10 I think I would also like to have a statement by the 11 government as to whether it takes the position that on the 12 facts as known to the government it would ever seek to 13 introduce at the Al-'Owhali penalty phase the fact that two 14 codefendants participated in an attack on a prison guard and 15 what circumstances would -- if the answer to that is yes, 16 under what circumstances would the government believe that the 17 record permitted that to happen. 18 I think we should not leave that issue to a 19 last-minute argument while the jury is in the jury box, and if 20 I could have those by the end of the week, I will attempt to 21 deal with that. I should tell you that I'm favorably disposed 22 to the notion of bifurcation for the reasons, for the most 23 part, set forth in the defendants' briefs and also because I 24 do think based on what I have heard primarily from Mr. Baugh 25 as to the avenues which at least are being contemplated with 4105 1 respect to Mr. al-'Owhali and Mr. Ruhnke's statement on the 2 record when we last addressed the issue that it was not his 3 intention to introduce similar matters with respect to his 4 client, all of which would lead to the conclusion that 5 bifurcation would be appropriate, but I am concerned about 6 this one point: That we not get to having two trials in which 7 the guard attack is a significant factor in each trial. 8 Very well. I will reserve on that. 9 MR. RICCO: I sorry, your Honor. 10 THE COURT: Mr. Ricco. 11 MR. RICCO: Yes. Before we end today, I wanted to 12 raise an issue relating to the Court's ruling with respect to 13 Agent Gaudin's testimony. 14 THE COURT: You haven't stipulated to that yet? 15 MR. RICCO: Well, no, unfortunately. Your Honor, I 16 raise this issue because the government has submitted a 17 proposed order to the Court, and this is my concern. I have 18 had an opportunity to go back through Agent Gaudin's direct 19 testimony and his cross. 20 THE COURT: This is the order striking? 21 MR. RICCO: Yes. 22 THE COURT: I haven't seen that yet. 23 MR. FITZGERALD: We just passed out a draft this 24 morning. I'm sorry. 25 MR. RICCO: What I would submit to the Court for the 4106 1 Court's consideration -- 2 THE COURT: Yes. 3 MR. RICCO: -- is that Agent Gaudin's testimony with 4 respect to two questions and answers -- and I'll pinpoint the 5 Court specifically to those questions and answers -- should 6 actually remain, should not be stricken, and my reasoning for 7 that is very simple, your Honor. 8 THE COURT: Aren't they the same two questions that 9 you said you were going to ask him if he is recalled, right: 10 "Did you show him the photograph?" 11 MR. RICCO: Judge, that question should probably 12 remain because when you go through Agent Gaudin's direct 13 testimony and his cross-examination, the only question that is 14 not directly related to his direct testimony is the question, 15 "Did Al-'Owhali ever mention to you that Odeh had anything 16 whatsoever to do with the bombing, the execution or the 17 planning of the bombing of the U.S. Embassy?" and he says, 18 "No, sir, he never mentioned that." Now other than that, the 19 questions about whether or not Al-'Owhali described Harun, 20 that was brought out by the government on direct. The 21 question -- 22 THE COURT: I don't understand. If that remains in 23 the record -- 24 MR. RICCO: Yes. 25 THE COURT: -- and the photograph, "Were you ever 4107 1 shown the photograph?" "No." 2 MR. RICCO: That's correct. 3 THE COURT: And if that remains in the record, why is 4 there any need to recall him? 5 MR. RICCO: Well, there would be no need to recall 6 him. That's my point. My point is that there would be no 7 need to recall him because the only question remains is your 8 Honor's ruling as to how that evidence can be argued. And our 9 position is that we're prepared to comply with the Court's 10 ruling with respect to how that evidence is argued. 11 THE COURT: I understand what you are saying. It is 12 that the order say -- the order does not include in what is 13 stricken the failure to make reference to Odeh. 14 MR. RICCO: No. 15 THE COURT: No? 16 MR. RICCO: That's a part of it. Your Honor, what 17 the order doesn't include is to tie it to direct testimony. 18 Because when the Court looks at his direct testimony and 19 compares it to my cross, on his direct testimony he is asked 20 by the government, were you shown -- "Was he shown the 21 pictures of Harun?" He answers yes. He is asked on his 22 direct testimony, "Was he shown a picture of Azzam?" And his 23 answer is yes. He's asked on the direct testimony, "Was he 24 shown a picture of Runda Estates?" He says yes. Those 25 questions then again are asked on cross. 4108 1 THE COURT: Yes. 2 MR. RICCO: The government proposed striking the 3 cross but allowing the direct to remain, and it seems to me, 4 your Honor, that the only area that is left that would concern 5 the Court is that one question and answer about the unspoken 6 response. 7 THE COURT: Was that the government's intent, to 8 strike from the cross questions which are simply duplicative 9 of the questions that had been asked on direct? 10 MR. FITZGERALD: Yes, Judge. I'm missing something 11 here, but the direct, as I understand it, is admissible 12 against Al-'Owhali. All the cross by Mr. Ricco concerning 13 Mr. Odeh and all the government redirect we understood that 14 your Honor wanted out subject to Mr. Ricco putting in what was 15 appropriate in light of the Court's order. 16 THE COURT: Yes. 17 MR. FITZGERALD: So the order we believed to have 18 been drafted to strike all of the Odeh cross and all the 19 government's redirect directed at the Odeh cross to make it 20 seem as if the Odeh cross never happened and they could put 21 whatever questioning they wanted back in. 22 THE COURT: No. No. Then I could have just done it 23 in a single sentence. And the reason why I thought it had to 24 be on a line-by-line basis is that the only part of the cross 25 which is hearsay is anything which seeks to elicit what he 4109 1 said, the two exceptions being the silence, the silence 2 analogy, the cases that say a failure to say something is not 3 a testamentary act subject to the hearsay rule and the 4 statement as to future mention. 5 I think you can be able to work this out. 6 MR. RICCO: I'll get together with the government. 7 THE COURT: If the question is asked on direct and 8 the same question is asked on cross and there is no objection 9 as to repetitiousness, it seems to me that there is no basis 10 to strike it. 11 MR. FITZGERALD: But, your Honor, my understanding -- 12 and we should get this straight because it's going to be 13 important in summation -- my understanding is the entire 14 direct is not admissible against Odeh. 15 MR. RICCO: Nor is the cross. So that part of it we 16 don't object to. 17 Your Honor, let me get together with the government 18 at the end of the day because I have gone through it 19 line-by-line and I only see two lines of questions that are 20 not directly related to questions that were asked and maybe I 21 can persuade the government. 22 THE COURT: We'll take it up. Let me know when you 23 want to take it up. 24 Did I not share with you a memo on this issue, on the 25 hearsay? 4110 1 MR. RICCO: Yes. 2 MR. FITZGERALD: Yes. 3 THE COURT: All right. We'll take a five-minute 4 recess. I will see counsel for CNN and I'll see counsel for 5 El Hage and the reporter in the robing room. 6 MR. BAUGH: There's another issue left. You want to 7 do that later still? 8 THE COURT: Later today? It's 5:00. Mr. Ricco says 9 "at the end of the day." If this isn't the end of the day, 10 his day didn't begin as early as mine did. 11 MR. BAUGH: I assume the Court hadn't forgotten 12 Ambassador Madeleine Albright. 13 THE COURT: I'm trying to. 14 MR. BAUGH: I'm not. 15 You want to hear that first or second? 16 THE COURT: I want to hear that tomorrow. 17 MR. SCHMIDT: Your Honor, I have one request on 18 behalf of my client, who has requested it before but I waited 19 until this moment now that the government has rested, he has 20 asked that your Honor revisit the conditions of confinement 21 based on the allegations that the government had made at the 22 beginning of this case concerning the dangerousness of Mr. El 23 Hage, and the lack of proof that has come out of this case 24 concerning the dangerousness of Mr. El Hage and of course the 25 fact that now we're in the year 2001, that he has asked that 4111 1 he not be held in the conditions that he is presently being 2 held under, that few, if any other, inmates are being held. 3 THE COURT: I am aware of the fact that the trial has 4 run free of incidents or disturbances. I am also aware of the 5 elaborate preparations and warnings that were given to prevent 6 that. I'm also aware of the circumstances which led to the 7 very unfortunate event that we were talking about earlier, the 8 attack on a guard. 9 I think insofar as Mr. El Hage is concerned we are 10 very close, relatively speaking, we are very close to the 11 trial being concluded. We talk about one to three weeks as 12 Mr. El Hage's defense. I would hope, based on today's 13 experience, that would be truncated. That's not a order, 14 that's just a hope. The other defendants together constituted 15 that. 16 So we're relatively close to the jury beginning to 17 deliberate with respect to Mr. El Hage, and I think it would 18 be imprudent, if not dangerous, to at this stage of the game 19 change the conditions of confinement. So the application is 20 denied. 21 All right. Five minutes I'll see counsel. 22 MR. COHN: Your Honor, can we come back to the 23 government on another issue I want to raise that's sort of 24 collateral to some of the today's stuff? 25 THE COURT: Come back when? 4112 1 MR. COHN: In the robing room. 2 MR. WEISER: On behalf of press, could the First 3 Amendment issue be addressed in open court? 4 MR. SCHMIDT: This is not really a First Amendment 5 right issue now, it's to sign a subpoena. So I don't think 6 it's at that stage yet. It's also -- 7 THE COURT: Let me grant Mr. Schmidt's request that 8 he tell me not in open court whatever it is he thinks cannot 9 be said in open court, and if I decide that it is more 10 appropriately in open court and there's a strong presumption 11 in that direction, we will return. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 4113 1 (In the robing room; present: Mr. Dratel, Mr. 2 Schmidt, Mr. Baugh, Mr. Herman, and Mr. Schulz, counsel on 3 behalf of CNN) 4 MR. SCHULZ: I just have to say for the record, my 5 clients out there are very troubled by the idea of doing this 6 in camera, but here we are. 7 THE COURT: Tell me what it is that you think you did 8 not want to state in open court. 9 MR. SCHMIDT: So counsel knows what I'm asking to be 10 subpoenaed, it's a videotape of the July 12th, 1993 attack on 11 what's called the Abdi House in Somalia. It's a videotape 12 that was shot by -- actually, it was a Super 8 or a High 8 13 tape that was shot by a local Somali photographer, not under 14 contract with CNN, that CNN and my understanding maybe the 15 Australian network and the Italian network purchased from that 16 individual. So it's not involved in news-gathering. 17 THE COURT: Okay. Let's stop at that point. 18 19 (Pages 4114 through 4115 filed under seal) 20 (Continued on next page) 21 22 23 24 25 4116 1 (In open court) 2 THE COURT: I have concluded that all of what was 3 said on this issue in the robing room can be stated in open 4 court, except for counsel's explanation at the very end as to 5 why he didn't want to say it in open court. I'm just going to 6 ask that the reporter read everything. 7 (Record read) 8 THE COURT: All right. There are two aspects of the 9 request: One is the footage which was in fact broadcast, and 10 so that I take it there -- am I correct that there is very 11 little dispute as to the making available of that which was 12 broadcast? 13 MR. SCHULZ: Judge, I think that CNN's position is we 14 would object to any subpoena served unless the standards are 15 met. I'm not quite sure what footage he is exactly referring 16 to that is broadcast. I assume we can sort that out. But 17 there are a couple of issues. 18 THE COURT: You say "standards are met." What is 19 your understanding of the standard that has to be met? 20 MR. SCHULZ: I think, as your Honor stated earlier, 21 the recent Supreme Court cases are clear that there is a First 22 Amendment privilege that applies in criminal cases and there 23 are sort of two steps to the analysis. The first is that the 24 defendant has to show that this is even appropriate discovery 25 under 17C, which means that it has to be evidentiary and 4117 1 relevant, and I think there are real questions about that. 2 But even if they can get over that, they have the 3 burden of showing that it is relevant to a significant issue 4 in the case and not available elsewhere. And the reason for 5 that, as the Supreme Court made clear in the Gonzalez case 6 that you cited earlier, was that the press is not to be use as 7 a resource tool in situations like this. 8 And I think that there are two fundamental problems 9 here. One is that it's hard to understand the relevance of 10 this nine-year-old tape that has nothing to do with this 11 proceeding to this case. This is not -- I don't know that 12 there is any allegation that this is tape that a particular 13 defendant saw, that there's some claim that this particular 14 viewing of this specific tape that was broadcast on CNN 15 somehow insighted, there is nothing that like. It doesn't 16 involve the defendants here. It's really a tangential 17 relevancy at best. 18 But even getting past that, the other part of the 19 test is that it has to be unavailable elsewhere, and as has 20 already been pointed out, there are many commercial houses 21 where they can seek information about this bombing. There is 22 nothing unique that I have heard about the specific fact that 23 this tape was shown on CNN. And the defendants have an 24 obligation first to see if they can get this from other 25 sources other than journalists. 4118 1 And it's not just the news houses, the photo shops 2 that sell this type of information, but also the government is 3 a party here, and if the government has tapes of these 4 bombings, we would submit that they are another available 5 source that should be exhausted before the press is looked to 6 as an investigative arm. 7 And I would just make one further point, which is in 8 the letter that was submitted on the original subpoena that 9 has not been withdrawn -- 10 THE COURT: Yes. 11 MR. SCHULZ: -- that there are significant safety 12 issues here that make this a rather unique circumstance. CNN 13 is in a different position than the other networks that have 14 been subpoenaed because it has bureaus in the region. The 15 other networks do not. There were specific safety issues, 16 concerns raised after the government used CNN footage earlier 17 in this tape, and I think those are properly considered in 18 weighing the balance of the defendant's need against the 19 reporter's First Amendment privilege in this context. 20 And because of the specific safety concerns that are 21 articulated by CNN, I think there should be a heightened 22 burden imposed on the defendants of exhausting all other 23 available remedies or avenues for getting this information 24 first. 25 THE COURT: Mr. Schmidt. 4119 1 MR. SCHMIDT: Yes. I would be absolutely thrilled to 2 be able to obtain this material elsewhere, and let me explain 3 to the Court our efforts to obtain this material elsewhere. 4 I am not interested only in the public version that 5 was broadcast, because having compared now what I know of the 6 public broadcast and the actual footage shot by independent 7 persons sold, I believe, for $100 to CNN in 1993 of the actual 8 footage taken by him, it is incredibly different. 9 So, first, I have discovered the existence of this 10 whole -- of some degree of the tape through the book called 11 "Me Against my Brother" by Scott Peterson. Mr. Peterson in 12 his book indicated that he reviewed the copy of the film that 13 CNN had, so CNN apparently allowed Mr. Peterson to review it, 14 and he discussed a little bit about it in his book, describing 15 that it was so bad that they couldn't have put very much of it 16 in the broadcast version. 17 THE COURT: Is he available? 18 MR. SCHMIDT: Mr. Peterson? Mr. Peterson was injured 19 early on in the scene and is not a witness to what occurred at 20 the Abdi House, but he apparently did review the film, but I 21 don't think somebody reviewing the film is a substitute for 22 the film itself. So once CNN has made it available, so it's 23 not a question that it is not available. 24 Second, that it wasn't their reporters or their 25 seeking out and gathering up the information, they bought it 4120 1 on the public market for $100. Now the problem is the public 2 market is in Mogadishu, Somalia, which is really difficult for 3 us to get to. 4 But notwithstanding showing it to Mr. Peterson, we 5 have attempted both through subpoena to the government -- 6 excuse me, by discovery requests to the government, by 7 contacting the U.N., by contacting other broadcasting 8 companies to try to locate that material. We were unable to 9 locate that material. However, I was able to obtain a copy of 10 another book, which the author also reviewed the film, and -- 11 THE COURT: What issue with respect to Mr. El Hage is 12 this relevant to, assuming that he has never seen the uncut 13 footage? 14 MR. SCHMIDT: There are two issues, your Honor. One 15 issue I do not mind discussing in open court and one issue 16 that I would reserve to explain to your Honor ex parte at this 17 point because part of it, the defense in this matter, I agree 18 with counsel that my client is not involved in it at all. 19 However, he is charged with being part of a group that is 20 alleged to have conspired to kill Americans and were the ones 21 responsible for all the American death in Somalia in 1993. 22 The first American death in Somalia I believe was in August of 23 1993, the July 12th -- the death related to the battle with 24 Mogadishu. 25 THE COURT: Are you suggesting that the attack on the 4121 1 Abdi House is a justification? 2 MR. SCHMIDT: If I may. The attack on the Abdi House 3 was a seminal event in Mogadishu. Up to that point when the 4 U.N. or the American troops acting under the U.N. did a 5 peace-keeping act, the person that they were doing a 6 peace-keeping act against were always warned to surrender, or 7 if they shot first, they were able to return fire. 8 The Abdi House was an attack on a building which had 9 clan leadership -- 10 THE COURT: Could you answer my question? My 11 question is, is what you are saying is that this event was the 12 seminal event in generating anti-American hostility in 13 Somalia, that your client is accused of engaging in 14 anti-American activity in Somalia, and therefore this is 15 evidence of a justification, or what -- 16 MR. SCHMIDT: It's not simply a justification. One, 17 it shows the type of attack, the reaction of Aidid's people to 18 that attack and their justification -- their motivation of 19 attacking American troops within that area of Mogadishu. 20 THE COURT: That's a lot more words, but it all comes 21 back down to saying it's a justification. 22 MR. SCHMIDT: It's not just that. It not only shows 23 that this other group of people, not Bin Laden's group of 24 people, had a real motivation and the ability to attack 25 Americans, that's number one; number two, that the manner of 4122 1 attack made it warfare; that even the U.N. legal scholars 2 indicated that that kind of attack was not only warfare, could 3 be called a murderous attack, and that Somalis reacting to 4 that attack would have felt justified of protecting themselves 5 in that area from Americans. 6 Your Honor, just very simply, the October 3rd and 4th 7 events where 18 Americans died -- and understand, of course, I 8 think it was terrible. It's a horrible thing. I remember 9 reading about it in 1993 and thinking how terrible it was. 10 Learning more about it, 18 Americans died, 500, 700 Somalians 11 died, and it all started with the American rangers and 12 commandoes from an unnamed force dropping down into the 13 territory and seizing individuals. 14 And the government has tried to portray that as an 15 ambush, and all of the writings have indicated that it is not 16 an ambush. What the government has done is paraded the film 17 of the bombings to show the horror. What I'm trying to do is 18 show why Somalis would be attacking American troops. 19 THE COURT: And let's take that. Let's say that 20 there was strong anti-American sentiment on the part of 21 Somalis and, right or wrong, Somalis sought to kill Americans. 22 Now how does that impact on Mr. El Hage? 23 Mr. El Hage is accused of aiding Somalian 24 anti-American activity. You resist saying it's a 25 justification, but what you are saying is that there was some 4123 1 basis for anti-American sentiment on the part of Somalis. But 2 that really that would not justify or decriminalize a 3 conspiracy to kill Americans. 4 MR. SCHMIDT: It depends on what the alleged 5 conspiracy is. 6 THE COURT: How does this impact on what the alleged 7 conspiracy is? 8 MR. SCHMIDT: The government conspiracy is that they 9 have trained people who either killed Americans or trained 10 others who killed Americans. 11 THE COURT: With the knowledge and intent that that 12 would occur. 13 MR. SCHMIDT: That's correct. Now, the people that 14 the government has alleged and all the evidence that has come 15 out are people are not Aidid's group from Mogadishu, but 16 others who are outside of Mogadishu in far places. They have 17 trained -- they haven't proven, they haven't offered evidence 18 that they trained people and said, now go kill the Americans. 19 They haven't shown that. It's a circumstantial case. 20 THE COURT: If the anti-American hostility in Somalia 21 is so prevalent, is so intent, and has a basis in factual 22 events which have to be well enough known in Somalia to have 23 generated that sentiment, I find it very difficult to believe 24 that it's essential to that presentation, assuming it's 25 relevant, that there is a single film clip which is essential 4124 1 to your case. 2 MR. SCHMIDT: Your Honor, we're talking about 3 Somalia, we're not talking about Brooklyn, and we're limited 4 in what we can do with Somalia. And what your Honor is trying 5 to do is turn this into solely a, quote, self-justification 6 defense and I'm trying to explain to your Honor that it is so 7 much more than that. What it is -- 8 THE COURT: But the more than that that it is -- if 9 you want to parse that sentence -- the more you argue about 10 the prevalence of the sentiment, the factual basis which gave 11 rise to it and its intensity, the more you undercut the 12 necessity for this one bit of film which your client never saw 13 and which, presumably, most Somalians never saw. 14 MR. SCHMIDT: Your Honor, I don't understand. I 15 mean, what other way am I to prove the source of this, the 16 distress of the Somalians without that? I don't have Somalis 17 coming saying, please bring me to New York so I can tell the 18 story. I don't have any other source. 19 THE COURT: I certainly have authorized investigators 20 and travel. 21 MR. SCHMIDT: Somalia didn't have a government until 22 six months ago, Judge. I mean, this is probably the most 23 anarchic country in the world until six months ago, where now 24 it is probably the second worst in the world. I mean, I had 25 no ability to go into Somalia, and every foreigner who were 4125 1 present were running away from me. And this is on only pieces 2 of evidence that is independent, that doesn't require somebody 3 coming in and being on CNN or the other networks to show what 4 happened there. 5 THE COURT: But you are saying that nothing else 6 exists but this, what is it, few minutes of uncut footage? 7 MR. SCHMIDT: Of the events and of the immediate 8 reaction of the Aidid group in reacting to the American 9 attack, that's absolutely correct. I'm going to also try to 10 show -- 11 THE COURT: You made reference to two books. There 12 are no historians or experts or observers to this? 13 MR. SCHMIDT: Judge, if I'm allowed to bring the 14 reporter who spoke to all the Somalis about what happened and 15 put them on the stand and tell, let them testify to what they 16 saw in the film, I would be perfectly willing to do it. My 17 understanding is that if we -- unless I can prove, bring a 18 witness to the events, I can't bring it out. I'll take 19 substitute evidence. I'll get a reporter who is willing to 20 testify to what the people they spoke to said about what 21 happened. I have no problem with that. 22 THE COURT: I have a lot of problems. One problem I 23 have is that this case has been pending since -- we started 24 jury selection on January 3. Nothing really has happened 25 that's a surprise. The hundreds and hundreds of vouchers that 4126 1 I have signed I thought were designed to permit the 2 investigation and attaining of evidence, and now you are 3 telling me this whole issue of, assuming its relevance -- I 4 have great difficulty with it, but assuming -- of course, it's 5 discovery, not admissibility, but assuming its conceivable 6 relevance, that it all comes down to this one unbroadcast 7 clip, I find that very difficult to understand. 8 MR. SCHMIDT: Your Honor, I explained ex parte 9 exactly what the surprise was and I would not be here but for 10 the surprise. So since that surprise, we've been scrambling 11 to replace the loss of the evidence that we had, and this is 12 the only eyewitness or "lens witness" evidence that we can 13 come up with because we learned during our investigation that 14 there was no other eyewitness other than Somalis, who the 15 government would put them in jail immediately if they came to 16 the United States because they would blame them. 17 I am also, I guess, a little bit at a loss that this 18 evidence would show an attack on the Abdi House where the 19 exits were destroyed and 16, I think it is, Tao missiles are 20 directly in the building and the only purpose is to kill the 21 occupants. On October 3rd, I think it was, 12 helicopters 22 with incredibly armed soldiers came down in this territory to 23 capture the leaders of this group. 24 What your Honor is saying, notwithstanding whether we 25 have proven it or not, what your Honor is saying, that any 4127 1 Somali who was living there did not have a right to defend 2 themselves from the Americans when they came down. 3 THE COURT: What does that got to do with El Hage? 4 MR. SCHMIDT: Well, if the Somalis are the ones who 5 are shooting at the Americans, and even if they were -- 6 THE COURT: Excuse me. Excuse me. Excuse me. Are 7 you advancing the claim that the only use that was made of the 8 weapons and training furnished to Somalians was for defensive 9 purposes? Do you really want to inject that in this case? 10 MR. SCHMIDT: I don't think it was any weapons, first 11 of all, that was testified to, it was training. And indeed, 12 at least the October 3rd and 4th -- I think there is a valid 13 legal argument that the October 3rd and 4th, which is one of 14 the overt acts in the indictment, that could under law be 15 considered defensive, because the Americans came first in 16 there and whether -- 17 THE COURT: Are you going to subpoena -- excuse me. 18 Do you have a subpoena out to the government? Do you have a 19 discovery request from the government which includes this? 20 MR. BAUGH: I do, your Honor. 21 THE COURT: You do? 22 MR. SCHMIDT: We have the discovery out to get the 23 American after-action report that would cover it, in the 24 American view, of what happened. 25 THE COURT: Yes. What is the status of your 4128 1 discovery request? 2 MR. BAUGH: We don't know. We have a subpoena to 3 General Tommy Franks of Central Command including any tape 4 from whatever source concerning the attack on the Abdi House. 5 We have done that. However, the military is playing some kind 6 of, we can't, you know, General Franks is in Europe right now, 7 we'll-get-to-you-later-type thing. And there are other issues 8 I wanted to raise, if I might. 9 THE COURT: Are you finished, Mr. Schmidt? 10 MR. SCHMIDT: Your Honor, what I was saying is simply 11 that is a valid argument that the people who were trained by, 12 allegedly, al Qaeda, they ended up participating in the battle 13 against the Americans; that the fact that it changed the tenor 14 into warfare, right, and caused other people from outside 15 Mogadishu to help people inside Mogadishu, it would be a 16 defense to a conspiracy to train those people to kill 17 Americans. There is testimony -- 18 (Continued on next page) 19 20 21 22 23 24 25 4129 1 THE COURT: It is a defense to a conspiracy to train 2 people to kill Americans that the people who were planning and 3 intending to kill Americans believed that they were acting in 4 a righteous cause. 5 MR. SCHMIDT: No, that is not what I am saying. The 6 training of these individuals began even before the Americans 7 or the UN was there. That is the testimony from the mouth of 8 the government's witnesses. At some point, the government 9 claimed, that training also turned against American troops. I 10 am trying to show factually that it wasn't the training that 11 turned against the American troops or the trainers who turned 12 against the American troops, it was the circumstances that 13 were occurring inside of Mogadishu under war-type occurrences, 14 and therefore you can't blame in 1992 or even in 1993 the 15 trainers for those people going inside -- 16 THE COURT: That is a very different issue. That is 17 a very real issue in the case. 18 MR. SCHMIDT: I am sorry, I guess I left out that 19 portion. 20 THE COURT: Wait a minute. There is a time factor 21 here. If you are saying that there are two time periods, a 22 time period in which there was not an intent or desire on the 23 part of Somalians to kill Americans, and at that point 24 Somalians were being trained in military purposes for internal 25 tribal warfare -- 4130 1 MR. SCHMIDT: Or defensive purposes to prevent 2 outside tribes from taking their land and killing their 3 people. 4 THE COURT: -- and that helping Somalians train 5 Somalians during a time period in which there was no 6 anti-American hostility is not in furtherance of a conspiracy 7 to kill Americans because that was not the intent of the 8 training at that time, that's a different issue. Now if you 9 are saying that the turning point from an attitude which was 10 not anti-American to an American attitude was the attack on 11 Abdi House on July 12, 1993, and that your client's aid to 12 training or whatever it is with respect to Somalia did not 13 continue to pass that point, I can understand that as a 14 defense argument. I find it mind-boggling to suggest that a 15 piece of unbroadcast film is the essential evidence to 16 demonstrate that. 17 I want to come back to Mr. Baugh -- and I really 18 can't believe that there aren't historians or scholars or 19 experts on Somalia who would not be available. 20 You know, the other concern that I have, the more you 21 magnify the importance of this single bit of film shot by an 22 unidentified and unavailable person, the more problems one is 23 going to have in terms of authenticity. 24 MR. SCHMIDT: I don't think that would be a problem, 25 your Honor, with the government records of the attack as well. 4131 1 THE COURT: Which gets us back, apart from the 2 historians and the experts and so on, which gets us back to 3 what you have just said and to the outstanding subpoena 4 against the government. 5 MR. SCHMIDT: I understand, your Honor, and if we 6 knew what was even there, of course it would be helpful. But 7 understand that the American military writing up and 8 describing these events are likely going to be different than 9 other people writing up the events. I don't take this 10 lightly. I have read all the UN material that has come out on 11 this that has criticized the American attack and I would only 12 be too happy to put on those people. However, I have no 13 access nor could even locate the people who did the 14 investigations of those events. The importance of the film -- 15 it is an important event and there is nothing else that I have 16 access to. 17 THE COURT: American universities do not have any 18 experts on African affairs? 19 MR. SCHMIDT: We plan to have an expert on Somalia 20 but this is not an expert on the time of the intervention -- 21 THE COURT: And the experts are not going to be able 22 to testify as to a change in attitude on the part of the 23 Somalians which went to, not anti-American hostility, to 24 attempts to kill? 25 MR. SCHMIDT: Those types of experts wouldn't have 4132 1 been in Mogadishu at the time. 2 THE COURT: You don't know. 3 MR. SCHMIDT: We have spoken to a number, Judge. I 4 have spoken to a lot. The problem we have in being a, quote, 5 defendant in a, quote, terrorism case is that we are the 6 defendant and not the government and we are not the people 7 that these experts want to flock to to develop their 8 reputation. 9 THE COURT: Do you want to add anything? 10 MR. SCHULZ: Just to underscore, everything counsel 11 has said here he has learned already from other sources and 12 there are other available means. 13 Showing this videotape, the people didn't see this 14 videotape and most of them didn't see this event. So it is 15 going to be some other source of information that was made 16 available to them that caused this. Again, there are real 17 relevance questions and I think US v. Burke, the Second 18 Circuit case that said privilege applies in this context made 19 clear that where what is wanted by a criminal defendant is 20 facts put in front of a jury to argue motive or other things 21 to impeach a witness, you don't need cumulative evidence. 22 Number two, the only case where they dealt sort of with this 23 issue was the McVeigh case, and the Tenth Circuit said that 24 the materials which the defendant hadn't even seen couldn't be 25 offered as a justification or reasonable expectation. If this 4133 1 is something that the Somalian people didn't see, it is not 2 directly relevant to the arguments being advanced and the 3 defendants can put whatever facts they want to in front of the 4 jury about how the Somalis reacted, but seeing this videotape 5 is not critical and therefore it wouldn't meet their standard. 6 THE COURT: Mr. Baugh -- as I said it. I have been 7 good lately. 8 MR. BAUGH: Yes, you have, your Honor. 9 First, a couple points. One, I must disagree with 10 Mr. Schulz's representation that the tape of which Mr. Schmidt 11 speaks is cumulative. The court as an old trial lawyer knows 12 the difference between cross-examining a tape. A tape is 13 dispositive, it cannot be crossed, and it resolves the issue. 14 THE COURT: And therefore what? And therefore one 15 has to be more cautious about permitting something which has 16 such an importance, astounding importance which Mr. Schmidt 17 ascribes to it without knowing who photographed it, whether it 18 was ever edited or not edited, or anything else about it. 19 MR. BAUGH: Your Honor, I was merely inhaling. There 20 wasn't a period at the end of that sentence. I was still 21 going. 22 The evidence in this case has been that there is a 23 very involved and detailed conspiracy initiated by Mr. Bin 24 Laden to kill Americans wherever he can and that one of the 25 manifestations of that desire was the assault on the American 4134 1 troops in Mogadishu that led to the death of 18 Americans. 2 I have heard about this tape that Mr. Schmidt is 3 talking about and we issued subpoenas to central command. The 4 reason we want it, if it could be found, during the guilt 5 phase is that this tape is the only tape that can show that 6 when the sentiment against Americans changed in Somalia, and 7 it was way after this alleged training thing started, and the 8 fact that there is enough evidence to support an alternative 9 hypothesis that the attack on the American troops did not rise 10 as a consequence of Al Qaeda, it was in reaction by a group of 11 Somalis -- the attack on the Abdi House angered so many 12 Somalis that they rose up against the Americans totally 13 unrelated to Al Qaeda. 14 THE COURT: Because it was so well known, right? 15 MR. BAUGH: The attack was well known, yes. 16 THE COURT: And because it was so well known it was 17 covered in the local press? How did it become so well known 18 in Somalia that there was an uprising because of it? 19 Certainly not because of this little piece of tape that no one 20 saw -- 21 MR. BAUGH: It is not the tape that caused the 22 uprising. The tape was not shown to the Somalis as far as we 23 know. The attack on the Abdi House with the death of hundreds 24 of men, women and children -- 25 THE COURT: Excuse me. The footage that was 4135 1 broadcast elsewhere was not broadcast in Somalia? 2 MR. SCHMIDT: There are no TV stations in Somalia. 3 MR. BAUGH: It is the back side of the moon, or was. 4 However, in all the materials that we read it was this 5 incident -- 6 THE COURT: Who are the authors of all this material 7 that you have read? 8 MR. BAUGH: One is a book called Black Hawk Down. 9 There is reference to Abdi House. There is a bunch of stuff 10 on the Internet. 11 THE COURT: And these are people who have studied all 12 these facts and conducted interviews and have reached 13 conclusions and would qualify as experts on the subject of the 14 origin and nature of anti-American hostility in Somalia and 15 when it had its inception. 16 MR. BAUGH: There are people out there who can give 17 opinion, yes. 18 THE COURT: But you do understand -- I know I am 19 interrupting you again. 20 MR. BAUGH: I didn't object. 21 THE COURT: You can't breathe when you are arguing. 22 You do understand that your burden is very explicit. 23 MR. BAUGH: Yes, sir. 24 THE COURT: To show the absence of any alternative 25 sources of this information other than the subpoena of the 4136 1 media. You know, the facts in the Gonzales case are -- 2 MR. BAUGH: I understand. By the way, I am not going 3 to forget my guilt phase argument. And when I heard McVeigh 4 over there, I was all fired up. I am going to get to the 5 guilt phase -- 6 THE COURT: We are not at that phase. Mr. El Hage is 7 not subject to the death penalty. 8 MR. BAUGH: But I am riding his horse. 9 THE COURT: Tell me then the answer -- 10 MR. BAUGH: Yes, sir, directly. 11 THE COURT: -- to the question why in the light of 12 the books that have been written on the subject, the 13 widespread sentiment, I think you said the people of Somalia 14 rose up, why then this bit of film becomes the only evidence 15 of anything? 16 MR. BAUGH: Your Honor, I will answer you directly. 17 Based upon my investigation and research, this film is the 18 most clearly dispositive, unimpeachable piece of evidence to 19 prove the assertions made by Mr. Schmidt, in which I join, 20 period. It is the best quality evidence in existence to my 21 knowledge. 22 THE COURT: This film that no one in Somalia ever 23 saw. 24 MR. SCHMIDT: If I may interrupt, your Honor, it is 25 not the film, it's the event. 4137 1 THE COURT: The event. But you don't need the film 2 to prove the event. 3 MR. SCHMIDT: But I do, because I don't have Somalis. 4 In a city that has almost no electricity, when 12 helicopters, 5 helicopter gunships go in the air, everybody around there, the 6 Somalis hear it, and they see it, and they see the fire and 7 they run to it and they talk to their neighbors. Within days 8 everybody from the community knows about it. I can't go to 9 Mogadishu, Judge. I am sorry, I am sorry, I will try my best 10 for Mr. El Hage but I'm not going to Mogadishu to collect 11 witnesses and that's what I'm left at. Risking somebody to go 12 to Mogadishu to try to convince, respectfully, Somalis to come 13 here and testify or getting a tape that shows it all. I 14 simply don't understand what the alternative is. 15 THE COURT: I think we have really exhausted this 16 topic. 17 MR. BAUGH: But not on the penalty phase. 18 THE COURT: We are not dealing with the penalty 19 phase. The issue before the court is whether or not I sign a 20 subpoena directed to Cable News Network, commanding them to 21 appear on Wednesday and bring with them the following 22 documents or objects, colon, all original footage, including 23 all raw and uncut footage of the attack on Abdi House in 24 Mogadishu, Somalia, on or about April 12, 1993. 25 MR. SCHMIDT: Your Honor, so the record is clear, 4138 1 your Honor, my understanding that includes one videotape or 2 super 8 tape, is all we are asking for, one physical thing. 3 We are not asking them to search through archives. One 4 physical thing. 5 THE COURT: The court declines to sign the 6 stipulation on several grounds. 7 MR. BAUGH: Your Honor, may I then ask the court -- 8 may I adopt that subpoena -- 9 THE COURT: May you adopt that subpoena? 10 MR. BAUGH: Yes, unless you have already killed it. 11 I mean, if it's dead, it's dead. 12 THE COURT: It is now 5 minutes of 6. You now want 13 to adopt the subpoena which the court has denied. No. You 14 submit a similar subpoena and I will deny that as well. 15 MR. BAUGH: When Mr. Schmidt stood up before, I told 16 the court that I wished to adopt his subpoena and rely upon it 17 then. 18 THE COURT: You did, you are right. Yes, you may 19 adopt it and on behalf of your client -- but you understand, 20 we are dealing here now with the guilt phase. 21 MR. BAUGH: Yes, sir. 22 THE COURT: If you want to adopt it as the totality 23 of your argument on the penalty phase, I am sure you would be 24 ill-advised to do so. 25 MR. BAUGH: No, sir, farthest thought from my mind -- 4139 1 not the farthest. 2 THE COURT: There are a number of grounds on which 3 the proponent of the subpoena fails to satisfy the clearly 4 enunciated rules when one seeks in either a civil or a 5 criminal case to require a news organization to produce raw 6 and uncut footage. First and foremost is the obligation to 7 demonstrate that the recourse to the news media is indeed the 8 last resort. I have very much in mind the frustration, 9 including recent unanticipated frustration, which El Hage has 10 experienced in gathering evidence with respect to the attack 11 on Abdi House. But the whole thesis advanced in support of 12 the subpoena was that this single event had such a profound 13 effect on the attitude of the Somali people toward America 14 that it is critical to enable the defendant El Hage to develop 15 the thesis that at the time in which Al Qaeda was training and 16 aiding the Somalians, the Somalians were not hostile to 17 America, and that the training and supplies were to deal with 18 internal Somalian problems, sometimes referred to as internal 19 warfare. The argument that the relevance of this event is its 20 profound widespread impact on the Somalians is difficult to 21 square with the argument that the only available evidence to 22 demonstrate that this is so is a single bit of film none of 23 which was shown in Somalia and some of which was never shown. 24 The court finds it very difficult to believe that there are 25 not students of African political affairs in the universities 4140 1 and elsewhere who could not qualify as experts on the subject 2 of American-Somalian relations. 3 Moreover, there is outstanding a subpoena addressed 4 to the American military seeking to obtain reports on these 5 events. I understand the concern expressed by counsel for El 6 Hage that the government's version of the events of July 12, 7 1993, may be more favorable to America than the film which is 8 sought to be subpoenaed. But we do not at this point know 9 what those reports will be. I understand they include an 10 after-attack report. 11 Independently, the fact that the defendant would seek 12 to ascribe such enormous significance to this bit of film shot 13 by an unidentified local camera man raises questions with 14 respect to its authenticity and probative value. But the 15 bottom line is, assuming, with very profound reservations, its 16 relevancy and admissibility, the court nevertheless concludes 17 that there has not been an adequate showing that there are not 18 other sources who can describe the events, the attack on Abdi 19 House and the reaction of the Somalian people to that. The 20 subpoena will not be entered. 21 MR. SCHMIDT: I just want to note two things, your 22 Honor. One, I did not say that the photographer was 23 unidentified. 24 THE COURT: But he is unavailable. 25 MR. SCHMIDT: It might be that he is unavailable. 4141 1 There is a difference between that and unidentified. 2 THE COURT: Yes, except that he is not subject to 3 cross-examination in either event. 4 MR. SCHMIDT: Most of the time the tapes are somewhat 5 self-authenticating and that would be my expectation. If that 6 was your ruling I would understand it. We are not at that 7 stage. We are at the discovery stage. 8 Second, we are not at liberty to subpoena experts, my 9 understanding of the law. If your Honor is willing to sign a 10 subpoena to allow us to order experts to appear to give expert 11 testimony, I would be perfectly happy then to subpoena any 12 number of experts which may have sufficient information. 13 THE COURT: Are you telling me that there are no 14 students or historians or writers or lecturers knowledgeable 15 with respect to events in Somalia who would not be willing to 16 testify as to the history of American and Somali relations? 17 MR. SCHMIDT: Your Honor, if we are talking about 18 academic -- 19 THE COURT: I am talking about anybody -- 20 MR. SCHMIDT: We will try but if we are talking about 21 academics, your Honor, I can tell you that I have had people 22 not return my call, tell me forget it, tell me, who do you 23 represent, I am not going to associate myself with those 24 people. I have gone to the book that lists articles written 25 by people to locate ones -- 4142 1 THE COURT: Reference has been made to two books, 2 which is the source really of your information on this. Have 3 you attempted to talk to the authors? 4 MR. SCHMIDT: Yes. One of the authors is an expert 5 for October 3 and 4, not July 12. The other one I have been 6 unable to get hold of. I have reached out to try to get hold 7 of and had people reach out to try to get hold of him. I do 8 not know where he is. He does not respond through his 9 publisher. I cannot get hold of him, period. 10 THE COURT: Anything further? 11 MR. SCHMIDT: Your Honor, the only thing additional 12 would be that I ask that the film be preserved, held as part 13 of the record for future reference when the government 14 presents their case as to Somalia and that if your Honor not 15 allow the tape in evidence that I would renew the application 16 and it would be available for the Court of Appeals. 17 THE COURT: Is there objection? 18 MR. SCHULZ: Yes, Judge. We believe it would be 19 highly unusual and it would be in effect that the subpoena is 20 granted and then ruled inadmissible. If we are expected to go 21 and produce a copy, we have done all the things that the 22 privilege exists to prevent the interference with the 23 investigative pros and he is. 24 THE COURT: No, I will just issue one direction, that 25 it not be destroyed. 4143 1 MR. SCHULZ: Certainly to the extent it exists, and I 2 will make inquiries to see if it can be located, and certainly 3 to the extent that it does exist, I believe we can make a 4 representation that won't be destroyed. Certainly that's not 5 the problem. 6 THE COURT: I think we are finished for the night. 7 Did we set a date for -- 8 MR. BAUGH: You said tomorrow. Do you want to tell 9 us the time? 10 THE COURT: We are breaking at 3. 3:00. 11 (Adjourned until 10:00 a.m., Tuesday, April 17, 2001) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4144 1 2 INDEX OF EXAMINATION 3 Witness D X RD RX 4 ISMAIL JAMA ALI......... 3987 3993 5 JOHN BRIAN FORD LLOYD.... 4000 4019 4024 6 MOHAMED ALI M.S. ODEH.... 4035 7 GOVERNMENT EXHIBITS 8 Exhibit No. Received 9 507, 508, 526B, 617T, 800A, 10 1070, 1071, 110A, 1360T, 1421, 11 1421T and 1460T............................. 3987 12 580A and 580A-6383 .........................3990 13 DEFENDANT EXHIBITS 14 Exhibit No. Received 15 WEHX-JJ ....................................4058 16 WEHX-W20 and WEHX-W20T .....................4062 17 WEH-W10 and WEH-W10-T ......................4079 18 19 20 21 22 23 24 25
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