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?