25 April 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 32 of the trial, April 23, 2001. Transcript delayed due to outage of e-mail of Court Reporters Office.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
4345 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 New York, N.Y. 8 April 23, 2001 9:30 a.m. 9 10 11 Before: 12 HON. LEONARD B. SAND, 13 District Judge 14 15 16 17 18 19 20 21 22 23 24 25 4346 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 SAM A. SCHMIDT 7 JOSHUA DRATEL KRISTIAN K. LARSEN 8 Attorneys for defendant Wadih El Hage 9 ANTHONY L. RICCO EDWARD D. WILFORD 10 CARL J. HERMAN SANDRA A. BABCOCK 11 Attorneys for defendant Mohamed Sadeek Odeh 12 FREDRICK H. COHN DAVID P. BAUGH 13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 14 DAVID STERN 15 DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed 16 17 18 19 20 21 22 23 24 25 4347 1 (In open court) 2 THE COURT: Good morning. We have a very long agenda 3 for today. I note that the defendants have not yet arrived. 4 Let me, I'm aware of the fact that the defendants are 5 not here, but take up a matter which is very distressing, and 6 that is the government's complaint with respect to defense 7 counsels' relationship with the press. I had hoped that it 8 would not be necessary for me to address the issue, but I do 9 have to address it. 10 I was distressed, Mr. Ruhnke, the weekend before 11 last, it didn't get my full attention because I was in a car 12 with a lot of youngsters who were concerned that I had turned 13 off the Lion King tape, to hear you predicting to Ms. LeBlanc, 14 who broadcast the tape, broadcasting the interview, that your 15 client was going to be found guilty in the liability phase. 16 And what purpose did that serve other than to suggest that 17 that outcome would not be a reflection on your legal skills? 18 What utility is served by predicting that your client will be 19 found guilty? 20 The record will indicate the defendants are being 21 brought in. 22 There were also interviews given to a reporter from 23 the New York Times which seemed to detail the theories of the 24 defense counsel in the death penalty phase of the case. At 25 the same time, there is a request that the jury be be told 4348 1 that they not see, read or listen to anything with respect to 2 the McVeigh execution, a story which is going to be the lead 3 news story in America for a significant period of time. I 4 find the juxtaposition between those two matters very strange. 5 This is a death penalty case, and certain counsel 6 here are death penalty experts and in many respects special 7 rules apply, but the rules which deal with the 8 appropriateness, that is, rather than non-appropriateness, of 9 making statements intended to appear in the press with respect 10 to an ongoing jury trial remain in effect whether it is a 11 death penalty case or it is a petty misdemeanor case. And I 12 hope that it won't be necessary for me to address this matter 13 again. 14 The rules of this Court and the rules of professional 15 conduct adequately deal with the matter, and unless counsel 16 wishes to address the issue, I hope I will have no need to say 17 anything further about it during the course of these 18 proceedings. 19 MR. RUHNKE: Your Honor, in my own defense -- 20 actually, I think I need to defend myself, 21 THE COURT: Go ahead. 22 MR. RUHNKE: For example, the New York Times article, 23 I was repeatedly asked questions by the reporter about this 24 case, the strategy in this case, and -- 25 THE COURT: The words are "no comment." Are you 4349 1 familiar with that expression, "no comment"? 2 MR. RUHNKE: The client -- 3 THE COURT: Can you imagine if the situation were 4 reversed, if it were the government who was giving the 5 interviews to the press? 6 MR. RUHNKE: It would depend on what they were 7 saying. 8 THE COURT: Suppose, let us take the statement that, 9 "I fully anticipate that the jury will find my client guilty 10 during the liability phase," what was the purpose of that? 11 Why did you say that? 12 MR. RUHNKE: I was just answering the question 13 honestly, the question, "What's going on with your case?" and 14 really in a very way generalized, since it's what lawyers do 15 in death penalty cases all the time, which is to confront the 16 question of "what's going to happen." 17 THE COURT: You can say what is going -- if my client 18 is convicted, then there will be a separate proceeding. What 19 else do you want to tell me? 20 MR. RUHNKE: Your Honor, I have avoided discussing 21 the specifics of the case. I have avoided it with the New 22 York Times, and I obviously have incurred your Honor's anger. 23 It was not my intention to transgress. 24 THE COURT: I have such high respect for you. I have 25 such high respect for the way in which you have conducted 4350 1 yourself that I found it aberrational to hear a lawyer taping 2 an interview, predicting the outcome of the liability phase. 3 MR. RUHNKE: Well, your Honor, let's rest on it being 4 an aberration, and I understand your Honor's concerns. 5 MR. BAUGH: Your Honor, I have a concern. The 6 government has sent us a letter and our fax machine got jammed 7 up. It says, "The government respectfully submits this letter 8 in response to Al-'Owhali's letter of April 22." We didn't -- 9 concerning joinder and bifurcation, we didn't -- 10 MR. RUHNKE: They're referring to my letter, I'm 11 sure. 12 MR. FITZGERALD: Probably a typographical error 13 referring to Mr. Ruhnke's letter which was marked for public 14 filing. 15 THE COURT: All right. I hope I don't have to 16 address it again. It's very difficult. It's a very difficult 17 issue for the Court to deal with because I understand, I think 18 I understand some o the issues which are operative here. And 19 if I have to address it again, then I will do more than simply 20 discuss the issue, I will take action and impose sanctions. 21 All right, now in our long agenda I think the reason 22 why we were meeting at 9:30 was because of an Al-'Owhali 23 motion to bar the introduction by the government of certain 24 Somali-related evidence, and I haven't received anything in 25 writing on that. 4351 1 MR. COHN: You have not. I haven't sent it, that's 2 why you haven't received it. 3 THE COURT: Would you briefly tell me what the issue 4 is? 5 MR. COHN: The reason I didn't is because there isn't 6 a lot of case law. The government is going to, and by their 7 3500 material, I have confirmed this intent, to call a pilot 8 of a -- or somebody from a helicopter that was shot down in 9 Mogadishu and two of the people aboard were killed. 10 THE COURT: May I interrupt for a moment? There has 11 been previous testimony by one of the first two defendants 12 with respect to an incident involving a helicopter in Somali. 13 Is that the same pilot, the same incident? 14 MR. FITZGERALD: I think the first two witnesses 15 talked generally about incidents in Somalia. This witness, 16 Jim Yacone was a U.S. Army helicopter pilot who was involved 17 in the firefight on October 3, 1993 in which 18 U.S. 18 servicemen were killed and he was flying the -- 19 THE COURT: No, there's some testimony about I think 20 it was being in Somalia in a building opposite one which was 21 being attacked by an American helicopter. 22 MR. FITZGERALD: Yes, that testimony was non-specific 23 as to the day or event. That was tied to the overt act listed 24 in the indictment, the witness Yacone. 25 THE COURT: I see. And the objection is what? 4352 1 MR. COHN: The objection is this, your Honor. I 2 realize this is a charged overt act. 3 THE COURT: Yes. 4 MR. COHN: There is testimony that somebody -- I 5 think that al-Fadl testified that somebody bragged about that 6 18 people were killed as a result of their actions. That is 7 the only nexus to Mogadishu that we have. The government's 8 theory on Mogadishu is that al Qaeda in the conspiracy 9 provided training so that the American troops were ultimately 10 killed and that was the cause of that -- 11 THE COURT: And claiming credit for it. 12 MR. COHN: That's right. And they have that 13 evidence, that somebody claimed credit for it. 14 THE COURT: Yes. 15 MR. COHN: The fact that this person can put the 16 blood and guts into this thing, through no connection to the 17 fact that the people who did the training were really in any 18 way responsible for it, it just proves up further the fact 19 that there were 18 Americans soldiers killed. It really 20 doesn't connect to this conspiracy in any particular way. Its 21 probative value, in my view, is very low. 22 Now, you hear 403 arguments all the time about this, 23 but remember that these are the same -- none of these 24 defendants are charged with, in any way, or at least let me 25 limit it to Mr. al-'Owhali, he is not charged in any way in 4353 1 being involved in the training or involved ever being in 2 Mogadishu. 3 The jury is going to see this evidence and, in all 4 likelihood, they are going to be sitting in the penalty phase 5 where they are going to recall this evidence, and there is no 6 aggravator, none, towards Mr. al-'Owhali about Mogadishu, nor 7 can there be. So they are going to ask them to forget about 8 lurid testimony, about 18 dead soldiers and the results of a 9 firefighter, which was going to be very graphic and, I say, 10 most provocative. 11 The fact is that they have the connection that they 12 already need, which is al-Fadl saying somebody bragged about 13 it, we're responsible. This brings nothing extra to it 14 because they can't even prove the people that shot down the 15 helicopter are the people who were trained or that it was in 16 any way part of the plot. They can do nothing with this. 17 So its probative value is miniscule and, at least as 18 to the death-certified defendants, its prejudicial value is 19 extreme. I will say, also, that Mr. Odeh's lawyers, who are 20 upstairs in the Court of Appeals, told me to say that they 21 join in this application. 22 THE COURT: Yes. Mr. Herman is here on behalf of 23 defendant Odeh. 24 MR. COHN: He wasn't aware we talked about it. Mr. 25 Ricco told me to say it. 4354 1 MR. RUHNKE: Your Honor, on Mr. Mohamed's behalf, I 2 also join in the argument. I know we have a general rule that 3 arguments are joined, but just to echo Mr. Cohn's remarks 4 about this going to the penalty phase and the jury being asked 5 to consider whether to impose a death sentence or not, 6 assuming this goes to the penalty phase, let me put it this 7 way, and a jury being asked to decide or not to send somebody 8 to death, who will hear now evidence that, as framed in the 9 indictment, trainers, people trained by al Qaeda or trained by 10 trainers of al Qaeda were responsible for the deaths of 18 11 American soldiers, something that is not charged as a murder 12 count in the indictment but is alleged as an overt act and 13 will now work its way to the penalty phase of this case, Mr. 14 Cohn is correct, if the government wishes to argue this, it's 15 there if it wishes to argue the overt act as the evidence 16 before the jury, and I object to it as well. 17 THE COURT: Let me hear from you. 18 The argument that it's charged in the indictment, 19 it's an overt act but the government can't introduce evidence 20 in support of it is a little strange, but I understand the 21 argument is 403 because it's too much blood and gore. I have 22 to say, there has been relatively little blood and gore in 23 this case compared to what I'm sure is -- 24 Let me hear from the government in response. 25 MR. SCHMIDT: May I briefly comment, your Honor, 4355 1 before the government gets a turn? 2 THE COURT: Yes. 3 MR. SCHMIDT: I believe that the manner of proof of 4 this overt act is different than the manner necessary to prove 5 this overt act with even the parameter that the government has 6 in proving the way they want to prove something. I think this 7 goes way beyond what is necessary and is actually under 403 8 because it specifically -- 9 THE COURT: You have an advantage over me because you 10 have material which tells you more about the nature of the 11 government's testimony than I have or, to be truthful, have 12 read because it hasn't been furnished to me, has it? 13 It's in my 3500 book? 14 MR. SCHMIDT: Your Honor, my next point is, as to the 15 3500 material and the discovery material requested, I do not 16 know if we have all the discovery material requested 17 concerning this, we certainly don't have the videos that would 18 reflect about it. But what we do have is an incredibly 19 redacted conversation in which this witness participated which 20 makes the reading of the transcript impossible to follow, and 21 it also appears that it's redacted in a manner to take out 22 what will be normal cross-examination material. It looks like 23 the word "killed" or "shot at" seems to be crossed out and 24 left out. 25 The documents that I received from the government, 4356 1 the 3500, your Honor, I believe are inadequate to provide the 2 3500 under the obligation of the law. So I would ask that 3 they not be allowed to call this witness unless I can receive 4 an unredacted transcript of his statements. 5 THE COURT: I'm looking at 35107-7, the pilot 6 inquiry, is that the critical document? 7 MR. FITZGERALD: That's the pilot debriefing. It's a 8 joint debriefing, but we turned it over in any event. That's 9 a number of people, several people being interviewed. 10 THE COURT: Yes. 11 MR. FITZGERALD: Your Honor, if you would like a 12 proffer, I can tell you what the testimony would be. 13 THE COURT: Yes, I would like a proffer. 14 MR. FITZGERALD: Mr. Yacone was a pilot in a 15 helicopter. He was the platoon commander for what were to be 16 a squadron of eight helicopters going out on October 3, 1993 17 to arrest Mr. Aideed in Mogadishu. There were two helicopters 18 that were not involved in the action, one of which was a 19 command control helicopter, one of which was was a rescue 20 helicopter. 21 Mr. Yacone was flying one helicopter with a number of 22 people in the back. He and a second helicopter dropped the 23 assault team that would run into the building to arrest Aideed 24 pursuant to the United Nations warrant on the streets of 25 Mogadishu. Four of the helicopter which were in his 4357 1 platoon -- 2 THE COURT: A warrant issued in this case? 3 MR. FITZGERALD: A warrant issued by the United 4 Nations. 5 THE COURT: By the United Nations. 6 MR. FITZGERALD: For Aideed. 7 Four other helicopters dropped what we call blocking 8 teams which were other teams of Army rangers to try to prevent 9 anyone from attacking the team when they went into the 10 building and also prevent people from escaping. 11 After he dropped his team, when he was in orbit with 12 another pilot trying to do security for the people down below, 13 they came under heavy fire. The other helicopter in the orbit 14 was shot by a rocket-propelled grenade, which I note the 15 witness testified was one of the techniques they trained in 16 the al Qaeda camps in Afghanistan. The other helicopter 17 crashed near the scene where they made the arrest. The ground 18 troops went to rescue that other team. 19 This pilot was then in orbit around that crash site 20 under heavy fire. A second helicopter was sent in to support 21 him. He saw that helicopter be struck by a rocket with a 22 rocket-propelled grenade. That one crashed three-quarters of 23 a mile away. He then went to the site where the crowds 24 swarmed the crash site. There was no support there. As he 25 circled over that site, his helicopter was hit by a 4358 1 rocket-propelled grenade. 2 He crashed back at the airport. Before he was hit by 3 the rocket-propelled grenade, the people on the ground at the 4 crash site were being overrun and he dropped two snipers down 5 below to help the people who were at the crash site. His 6 helicopter then crashed near the airport. 7 He climbed into another helicopter and flew through 8 the night above in a command control position. Of the 18 9 persons killed, he knew 17 personally, 5 were under his 10 command and 2 more were in the back of his helicopter, the 2 11 snipers that he dropped down to rescue. 12 Through the course of the night, he saw for the first 13 time rocket-propelled grenades being fired at an incredible 14 rate. As many as over 100 were fired at the helicopters 15 through the night, and he establishes the overt act that there 16 were 18 people killed, the U.S. Army servicemen; that they 17 were going to apprehend Aideed; and that the majority of 18 casualties of the helicopters were by RPGs being shot from the 19 ground at the helicopters. 20 THE COURT: And the nexus to this case is? 21 MR. FITZGERALD: First, we had the testimony of 22 al-Fadl indicating that there was a fatwah given by Bin Laden 23 that the U.S. and U.N. involvement in Somalia was actually 24 pretextual as to an invasion of Africa or invasion of the 25 Sudan, that there was a fatwah given that we should fight 4359 1 America in Somalia, and al-Fadl also testified that the 2 military commander came back from a trip to Somalia and 3 indicated that all the casualties in Somalia were al Qaeda's 4 responsibility. 5 Kherchtou, the second cooperating witness, testified 6 that he was trained in al Qaeda in the technique of shooting 7 at helicopters with RPGs, which is very unconventional. He 8 then testified that Nairobi was set up as a support station 9 for al Qaeda people going to Somalia. He indicated that he 10 saw trainers that went up to Somalia to train the people and 11 that they were going to help train people to fight the U.N. 12 and the U.S. 13 He indicated that he heard from conversations with 14 Saleh, who turned out to be a principal participant in the 15 Nairobi Embassy bombing plot and Haroun, and Saleh and Haroun 16 were in Mogadishu for actions against the U.S. troops and, in 17 fact, were there for, as your Honor recalled, a firefight in 18 which helicopters were shooting at an adjacent building. 19 In addition to that, Bin Laden in his public 20 statements indicated that it was correct that he had in fact 21 supported Aideed in the fight against U.S. troops, and then in 22 Mr. El Hage's computer seized in August of 1997 was the 23 security report, apparently written by Haroun, which indicated 24 that they were concerned about the Nairobi cell of al Qaeda 25 because America knows well that it was a youth of the Sheik, 4360 1 Bin Laden, who attacked the Americans in Somalia and their 2 base was in Kenya. 3 It explains, in part, what the Nairobi cell was set 4 up to do. It was also very critical to establish that al 5 Qaeda was against America as early as 1993, when the 6 defendants are claiming that they were surprised in 1998 that 7 Bin Laden would go against America, and that was set forth in 8 the indictment since basically day one. 9 THE COURT: Mr. Cohn complains that there's going to 10 be too much blood and gore. 11 MR. FITZGERALD: There are no pictures, no 12 videotapes, no exhibits. It will be the witness simply 13 telling what happened. There won't be -- 14 THE COURT: And the significance of the fact, of the 15 18 killed, he knew 17 personally? 16 MR. FITZGERALD: I just meant to show his foundation 17 for his knowledge. He is not going to describe any of their 18 life histories. 19 THE COURT: Mr. Cohn? 20 MR. COHN: May I, your Honor? 21 THE COURT: Yes. 22 MR. COHN: I gather we finally have interpreters. 23 The problem is, your Honor, that, although it's 24 dramatic testimony, it adds nothing to what the government 25 already has, except the physical fact that people were killed. 4361 1 THE COURT: Your objection is it's cumulative? 2 MR. COHN: It's not. It is and it isn't, Judge. 3 Look, if this wasn't a death case, there would be 4 nothing that I could say that would -- but it has limited 5 probative effect because you don't need it. 6 THE COURT: Overruled. The motion to preclude the 7 introduction of the proffered testimony under 403 is denied. 8 It appears to the Court to be highly relevant and the fact 9 that it makes concrete, gives a specific example of things 10 which otherwise are presented to the jury in a more abstract 11 form is not a basis for a 403 motion. It is denied. 12 MR. HERMAN: Judge, with regard to Mr. Schmidt's 13 application. 14 THE COURT: Yes. 15 MR. HERMAN: Particularly with regard to the 3500 16 material, which I think your Honor has, it is severely 17 redacted, Judge. It presents confrontation problems for us, 18 due process -- 19 THE COURT: We've heard Mr. Fitzgerald's proffer. 20 What is there that you think you lack to deal with that 21 proffered testimony? 22 MR. SCHMIDT: May I give some examples, your Honor? 23 THE COURT: Let's have one at a time. 24 MR. SCHMIDT: I made notes, that's why I'm offering 25 it. 4362 1 THE COURT: Yes. 2 MR. SCHMIDT: On page 3-15, 3 THE COURT: 3-15 of what? 4 MR. SCHMIDT: Of 35107-4. 5 THE COURT: 35107-4. 6 MR. BAUGH: Your Honor? 7 THE COURT: Yes. 8 MR. BAUGH: Your Honor? 9 THE COURT: I have three at a time now. 10 No, I have it. Thanks. 11 MR. SCHMIDT: At the bottom, it says, "When they 12 launched" -- 13 THE COURT: On what page? 14 MR. SCHMIDT: 15. 15 THE COURT: Page 15. 16 Are these pages numbered? 17 MR. SCHMIDT: Yes, at the bottom. It's 3-15. 18 THE COURT: Yes. 19 MR. SCHMIDT: In the last one where Y apparently 20 talks, Y being Mr. Yacone, "When they launched us, we at that 21 point still didn't know which target we were going to," blank. 22 Now, was it going to shoot? I have no idea. Assault? "And 23 then they decided they would," blank, blank, blank, blank, 24 "and they went for the," blank. 25 Then, in another example -- 4363 1 THE COURT: Yes, and suppose specific targets were 2 identified. How does that change anything with respect to the 3 nature of what was happening or the relevance in this case? 4 MR. SCHMIDT: As your Honor is aware, it is our 5 position that this assault especially, as well as the July 12 6 assault, were military operations. 7 I am hamstrung by questioning this witness about the 8 nature of the operation to show the jury that it was a 9 terrible thing that Americans died, it was a terrible thing 10 that Somalis died, but this is the nature of a wartime 11 operation, an operation that it liked war. 12 Now, with this, I am missing all -- not just this, I 13 could go on for an hour, your Honor, and go on and point out 14 each page. I can show you page 18, page 24, page 25, page 26, 15 I can go on every page. 16 THE COURT: Mr. Fitzgerald, can you generally tell us 17 what has been redacted here and why? 18 MR. FITZGERALD: Your Honor, to be honest with you, 19 this is how I received it. It was classified and I believe 20 that they blacked things out to get it down to a declassified 21 level so it could be used. If if it were classified, we would 22 be stuck without the ability for counsel to use it. 23 MR. SCHMIDT: Not necessarily, your Honor. We would 24 be at a different stage and we would be arguing whether they 25 could call a witness. 4364 1 THE COURT: I take it that what you are saying is 2 that if the redacted material disclosed that there were 3 non-military targets, that the shooting down of the 4 helicopters would be, what? 5 MR. SCHMIDT: No, your honor. Perhaps I haven't made 6 myself clear. Whether it was a military target or not a 7 military target, the U.S. forces went on a military operation 8 against this group of people, armed -- 9 THE COURT: Is there any dispute as to that? 10 MR. SCHMIDT: Well, if the government is willing to 11 consent -- will stipulate that this was a military operation, 12 excuse me, an offensive military operation against the Aideed 13 supporters, all right, we'll discuss it with counsel. 14 THE COURT: My understanding of the government's 15 proffer is that the assignment here was to capture and bring 16 back Aideed, who was under a United Nations warrant. I don't 17 know that to be in dispute. 18 MR. SCHMIDT: Just as the government wants to be able 19 to fully show evidence as to this overt act, I want to be able 20 to fully cross-examine as to the nature of the attack, and 21 part of the nature of the attack is what he was thinking when 22 he went in there, what he felt his -- the enemy was, the enemy 23 was capable of, what he was told they were doing, all these 24 things are left out. 25 THE COURT: I understand from the government's 4365 1 proffer that the witness is going to testify that he's in the 2 United States Army, that this was an operation being conducted 3 by the military, that the object of it was to capture and 4 arrest somebody who was subject to United Nations warrant, and 5 I don't see any reason why you can't cross-examine with 6 respect to that. I don't think there is an ambiguity as to 7 why they went there. 8 MR. SCHMIDT: Your Honor, this is the problem. It's 9 a simplistic answer by the government, and I want to show that 10 the operation and operations were not a simplistic military 11 operation, it was much more complicated. There were political 12 and military things involved here. 13 I am being hamstrung. I have never been in a 14 situation where the government is putting on a very 15 substantial, important witness and I can't see what the 16 witness has said in prior statements. And I got this on 17 Friday and other material on Sunday, and I'm left with 18 cross-examining this witness with -- perhaps there's other 19 information about the operation that I even haven't received 20 yet. 21 THE COURT: You know, the weakest argument is a 22 timing argument, because I think the record must show at least 23 20, at least 20 occasions in which the Court said, "I 24 understand there are questions with respect to Somalia. I am 25 ready to address them," and the Court was told, "No, no, no, 4366 1 your Honor, it's not ready for you to concern yourself with 2 the issue because it's going to be stipulated." 3 So with respect to the timing, I think I alerted 4 counsel sufficiently to that. The motion is denied. 5 MR. SCHMIDT: Your Honor, as to timing, the time has 6 to do with the redactions of this material, not having any 7 alternatives to the redactions, redacted material, not that I 8 received 3500 material late. 9 THE COURT: Overruled. 10 MR. HERMAN: Two questions: It's our understanding, 11 Judge, that in addition to this being a military operation, 12 women and children were on the ground and were killed by bombs 13 or rocket fire that was taking place. 14 THE COURT: This witness is going to testify to what 15 he saw was happening on the ground. 16 MR. HERMAN: Judge, we can't cross-examine him 17 because what he saw happening on the ground has been blacked 18 out. 19 Secondly, Judge, with regard to RPGs, which seems to 20 be an important part of the government's case, that the 21 mujahadeen somehow were training people to use RPGs, it's also 22 our understanding that RPGs were very common among many 23 different groups, many different clans in Mogadishu and in 24 Somalia at that time, and that may also be reflected in what 25 has been blacked out here. 4367 1 At this point, it's a cross-examination problem. 2 THE COURT: If at the end of his direct you believe 3 that there is a need for a continuance before 4 cross-examination, I will take up that issue at that time, not 5 indicating what my ruling would be. But as I look at this and 6 I look at what has been blacked out, I really don't think 7 counsel is significantly prejudiced. 8 This issue is closed. The motion is denied. The 9 jury is here. The jury will be brought in. 10 MR. COHN: One question, your Honor. 11 THE COURT: Yes. 12 MR. COHN: Collaterally, in one of the 3500 13 interviews, there's an affidavit by a proposed prospective 14 witness. He says that he saw a videotape of soldiers being 15 dragged through the streets, their bodies, and also that the 16 two people were given the Congressional Medal of Honor. I'm 17 wondering if the government is going to elicit that testimony, 18 which I think neither one of which is particularly germane. 19 MR. FITZGERALD: Your Honor, we'll see on redirect 20 what the cross-examination is about civilian casualties and 21 what happened there. 22 MR. COHN: So it's not going to be offered on direct 23 testimony? 24 MR. FITZGERALD: I will lead around it on direct 25 testimony and we'll see where we are after the 4368 1 cross-examination. Your Honor, I believe -- 2 MR. SCHMIDT: If I may, your Honor, if I may, I know 3 your Honor can't make a ruling now, but I see no connection 4 between testimony about the civilian casualties and the 5 information that the government intends to elicit on redirect. 6 MR. FITZGERALD: Your Honor, I think if they want to 7 talk about 403, when we're not putting any pictures, if they 8 want to talk about civilian casualties and keep out what 9 happened to the American soldiers, I think it's plain. 10 THE COURT: I think we're trying to come to a level 11 playing field. 12 MR. FITZGERALD: Your Honor, I believe that Mr. Ricco 13 and Mr. Wilford wish to be here if Agent Yacone was 14 testifying, so we can flip the order. He's here, but I don't 15 want to do something to which Mr. Ricco and Mr. Wilford wish 16 to be present. 17 THE COURT: What will you do in lieu of it? 18 MR. FITZGERALD: That's it. The next thing is 19 Mr. Schmidt. 20 THE COURT: So I should not bring in the jury? 21 MR. FITZGERALD: Or, I think, I don't know if Mr. -- 22 MR. DRATEL: I'm sorry. 23 MR. FITZGERALD: I know that the El Hage team was 24 calling an expert on Somalia and I know he's going to testify 25 about Somalia in the 90s, but -- 4369 1 THE COURT: You have a witness? Do you have a 2 witness? 3 MR. DRATEL: Yes, your Honor. 4 THE COURT: Call your witness. 5 MR. DRATEL: Your Honor, this witness should not go 6 on before the other witness. This witness will have to 7 testify about that. 8 I had discussions with Mr. Fitzgerald, we've had 9 discussions with Mr. Fitzgerald this weekend about what the 10 parameters of the witness's testimony were going to be and 11 whether the pilot was going to testify or not and the pilot's 12 testimony puts the witness's testimony in a completely 13 different context. His testimony will have to be expanded. 14 He should not have to go on before the government's witness 15 goes on. 16 If he were to go on before, if he were going to go 17 and the pilot was not going to go on, it would be limited to 18 issues that did not discuss anything to do with the American 19 presence or that time period. And we were trying to get 20 there, but we didn't get there, and obviously we can still get 21 there, but if they're intending to put on the pilot no matter 22 what, then we're not going to get there. 23 So I don't know what the government's position is in 24 terms of, we had a discussion as to what the defense was going 25 to put on about Somalia. 4370 1 THE COURT: Is this witness's sole area going to be 2 related to matters being impacted by the government's case? 3 MR. DRATEL: No, your Honor, but it's a thread. 4 THE COURT: We'll interrupt the thread. Call him. 5 We will take so much up to this point. When Mr. Wilford and 6 Mr. Ricco arrive, we can interrupt and call the next witness. 7 MR. DRATEL: Your Honor, I don't know where we're 8 going to be in the course of the testimony with respect, 9 whether it going to be five minutes or twenty minutes. Your 10 Honor, I mean -- 11 THE COURT: All right. All right. The jury is 12 ready. I think we'll wait. 13 MR. FITZGERALD: Your Honor, my only concern is I 14 don't know what the foundation for this witness is going to be 15 about what happened regarding the events of October 3, 1993. 16 I do not believe he was in Somalia, so I think we're getting a 17 history geographer to talk about events that I don't know what 18 his foundation for his expert testimony is. 19 THE COURT: You have received nothing about him? 20 MR. FITZGERALD: I have received 3500 material 21 indicating that he's written on Somalia generally. He was 22 there, I believe, in the early 90s and the late 90s, but was 23 not there in 1993. I don't know what it is he's going to say 24 about it. 25 THE COURT: Why haven't they received the testimony 4371 1 about him? 2 MR. DRATEL: Your Honor, because -- 3 THE COURT: I'm going to accede to your request and 4 we'll leave it at that. 5 MR. DRATEL: Thank you, your Honor. 6 THE COURT: So we'll be adjourned, then, until 7 Mr. Wilford and Mr. Ricco return. 8 (Pause) 9 THE COURT: While we're waiting, there are a few 10 other matters. There is a request that the jury be told -- 11 first asked whether they have read or seen anything with 12 respect to McVeigh, which is a rather strange request to come 13 at this stage of the trial and given the amount of media 14 attention which has been given to McVeigh execution. 15 I don't understand what purpose that would serve, and 16 unless somebody wishes to be heard on it, I do not propose to 17 ask jurors the extent to which they have previously been 18 exposed to anything in the media concerning McVeigh's pending 19 execution. 20 MR. RUHNKE: Your Honor, my particular concern, 21 specific concern has to do with interviews of victims and 22 statements victims have made in the Oklahoma City bombing 23 case, Timothy McVeigh's execution, whether it be comfort, 24 whether it be -- 25 THE COURT: We are going to ask them. They are going 4372 1 to say yes or no. If they say yes, then what? 2 MR. RUHNKE: Then if they say yes, we ask them what 3 they have read and we inquire. 4 THE COURT: And if they say "everything I can get my 5 hands on with respect to it," and then what happens? 6 MR. RUHNKE: "And have you read any comments about 7 victims?" 8 THE COURT: Yes. 9 MR. RUHNKE: "And what have you read?" 10 THE COURT: "I read the anguish, how people are 11 looking forward to the execution and putting closure on this 12 terrible incident in their lives." 13 MR. RUHNKE: "And how do you think that will impact 14 on your service in this case?" 15 THE COURT: We're going to voir dire? We voir dired 16 for one month in this case. Now we start a new voir dire? 17 MR. RUHNKE: We now have a sitting jury that could be 18 exposed to prejudicial publicity, your Honor. They have not 19 been told not to read anything about this. 20 THE COURT: One is what they have previously read. 21 Now there is a request that they not read anything with 22 respect to McVeigh, and I am hesitant to do that on a number 23 of grounds. One is I don't think it serves any purpose to 24 impose on the jury unreasonable restraints. 25 To tell the jury not to read anything about this case 4373 1 I think is reasonable because the embassy bombing in a 2 terrorism trial, at least in the media that I regularly expose 3 myself to, are sort of consumed, but the McVeigh matter is a 4 matter of significant national debate with respect to capital 5 punishment in general and I'm very reluctant. 6 Does the government have any view on any of this? 7 MR. FITZGERALD: Your Honor, I would agree that it is 8 not productive to ask the retrospective question, but I think 9 it might be helpful, given that this jury may be sitting in 10 judgment on a capital case, for them to try to avoid the 11 coverage of McVeigh at least until their service is done. 12 We're not asking them to do that forever, but I think 13 it might be helpful not to have people commenting on the 14 McVeigh decision who may well during these broadcasts turn 15 around and, at the same time this is going on, there's a case 16 pending in New York. People could go back and forth, and I 17 think it would be best if they avoided the coverage for the 18 pendency of the trial. 19 THE COURT: Mr. Cohn? 20 MR. COHN: Your Honor, my take on it is a little 21 different and I was thinking of a way before we try and broach 22 this. I frankly don't think it's possible to avoid McVeigh 23 and I think we're almost in a situation like Shepard when we 24 are in the middle of a trial, and I understand, I was trying 25 to find some way so we can figure out whether or not we were 4374 1 and I was trying to formulate some -- 2 THE COURT: Shepard is different. In Shepard the 3 publicity was with respect to him and his trial. 4 MR. COHN: I understand. 5 THE COURT: There was a terrorist bombing in Israel 6 yesterday, a suicide bombing, and it's a fact of life today 7 that -- there's a rare day that goes by that the press doesn't 8 have some reference to some terrorist threat or incident. 9 MR. COHN: And we haven't whined about that. That is 10 a fact of life and there's no way to do anything about it 11 except to proceed. But here the government has already said 12 that they are going to bring more victim testimony during the 13 aggravated and mitigation part of its case, and what you are 14 essentially getting is generic victim testimony throughout the 15 press about the effects of the execution on victims. 16 THE COURT: Does anybody object if I tell the jury 17 that, to the extent possible, we request that they avoid in 18 the future reading anything with respect to the McVeigh case? 19 Anybody object to that? 20 MR. FITZGERALD: No, Judge. 21 THE COURT: I'll do that at the close of business 22 today, and if I forget, please remind me. 23 MR. RUHNKE: I do press my request, your Honor, that 24 you voir dire the jury on what they have read, if anything. 25 I'm just thinking realistically if there are members of the 4375 1 jury who have been moved, as anybody would be moved, by the 2 plight of the victims in Oklahoma City and the plight of the 3 victims in this case, who says -- 4 THE COURT: All of that existed in January. The 5 McVeigh case was on the books in January. I don't think it's 6 appropriate to conduct a new voir dire on a new coverage at 7 this stage of the case. 8 MR. RUHNKE: Your Honor, the question does not come 9 out of the clear blue sky, not for an unknown reason. The 10 reason -- and there's been a very significant change between 11 January and today, and that is that McVeigh is going to be 12 executed. The newspaper publicity, the Internet, the media, 13 the photo journalism, the T.V., as I said in my letter, it's 14 prolific, and it's now moving to the front page of every 15 newspaper, the lead story of every news book in this country. 16 It's going to be for the next two or three weeks and it's been 17 for the last couple of weeks. 18 THE COURT: I will advise the jury, to the extent 19 possible, to avoid in the future reading anything with respect 20 to the McVeigh case. I will not interrogate the jury as to 21 what it is that they have previously read since the jury was 22 not at any time instructed not to read anything with respect 23 to the McVeigh case, nor was the Court previously requested to 24 address any inquiry to the jury with respect to the McVeigh 25 case. 4376 1 MR. RUHNKE: Your Honor, just so I can conclude my 2 record. I do make this application on Federal Constitution 3 grounds, Fifth, Sixth and Eighth Amendments as well. 4 THE COURT: Yes. And the Court's ruling has taken 5 all of that into consideration. 6 MR. RUHNKE: Thank you, your Honor. 7 THE COURT: There has been a lot of give and take in 8 the papers with respect to the bifurcation of the penalties 9 phase, if it is reached, and the government opposes the 10 bifurcation on the grounds that there has not been a 11 sufficient delineation by defense counsel of what they will 12 attempt to show in the respective phases of the death penalty 13 case and the government requested the Court get more detail as 14 to that issue. 15 And for reasons I think I have previously stated, I 16 am not inclined to do that for the reasons I have previously 17 stated. I don't believe the Court could reasonably enforce a 18 limitation imposed by counsel as a quid pro quo for obtaining 19 bifurcation. And the government also takes the position that, 20 depending upon the nature -- 21 Mr. Wilford and Mr. Ricco have arrived. 22 -- that depending on the nature of the presentation 23 made by the defendant, the government reserves the right to 24 introduce evidence of the attack on the prison guard at the 25 Al-'Owhali phase of the case. 4377 1 The Court grants the application to bifurcate the 2 penalty phase, recognizing that there is a risk that there may 3 be some duplication, but balancing the risk of duplication to 4 the strength of the defendants' position that they will be 5 significantly disadvantaged by any joint trial, I find the 6 balance is in favor of bifurcation and I think, even given the 7 risk of some repetitiveness, this is something which should be 8 done. 9 There is also a request, which I don't fully 10 understand, and I take it defense counsel don't fully 11 understand, a request by the government that there be an 12 allocution of Mr. Mohamed with respect to bifurcation. 13 MR. FITZGERALD: The issue had been, your Honor, with 14 regard to if there were bifurcation and there were proof at 15 the Al-'Owhali proceeding, if there was one, and the 16 Al-'Owhali proceeding went first, that he understood that the 17 attack in which he's alleged to have participated would have 18 been proven up before the jury on an occasion where he would 19 not be present in the courtroom to confront it at the first 20 instance. 21 THE COURT: So the question is whether 22 Mr. al-'Owhali -- but the assumption here is Al-'Owhali goes 23 first, is that the -- 24 MR. FITZGERALD: Yes. 25 THE COURT: Yes. 4378 1 MR. FITZGERALD: And if the assaulting of Officer 2 Pepe was proven at the proceeding, then obviously 3 Mr. Mohamed's attorneys would not be participating at that 4 time. And he should be aware that although it would be proven 5 again at his second proceeding, he would know that the jury 6 may hear a preview of the evidence without his being present. 7 THE COURT: Mr. Ruhnke, do you understand that? 8 MR. RUHNKE: I understand it. 9 THE COURT: Do you have any objection to Mr. Mohamed 10 being asked whether he understands that if your request for a 11 bifurcation takes place, the jury in the first death penalty 12 phase with respect to Mr. al-'Owhali may hear testimony with 13 respect to the attack on the prison guard, and will hear that 14 in a proceeding in which he will not be represented and will 15 not have an opportunity to call witnesses or cross-examine 16 witnesses? 17 MR. RUHNKE: Your Honor, I don't understand the need 18 to allocute Mr. Mohamed on it. 19 THE COURT: Do you have any objection? 20 MR. RUHNKE: I don't have any objection. 21 THE COURT: Mr. Mohamed, have you been following 22 this? 23 THE DEFENDANT: (Shakes head back and forth.) 24 THE COURT: Mr. Mohamed is saying, no, he has not 25 been following this. 4379 1 MR. RUHNKE: Why don't we do this, if your Honor 2 doesn't mind, do it at lunch hour. 3 THE COURT: We'll do it after the lunch. We'll do it 4 today. 5 MR. COHN: May I just ask for some clarification. By 6 this discussion, is your Honor ruling that if conditions in 7 jail are raised, that will allow in the Al-'Owhali part of the 8 case the direct proof of the Pepe affair or, as we say, we 9 take the position that you can't, you're allowed to have 10 generalized safety of guards -- 11 THE COURT: I am not ruling. I am not ruling on it 12 because I think there is merit in the government's position 13 that its ability to introduce such testimony will depend on 14 what it is that the defendants proffer, and so I am deferring 15 on that. But I am saying that even if the possibility exists 16 that the Pepe incident will be in evidence in the Al-'Owhali 17 case, bifurcation is still appropriate. 18 MR. COHN: I fine. I just wanted to make sure that 19 wasn't a concern. 20 MR. FITZGERALD: Your Honor, may I have one moment 21 with the witness to make sure he doesn't volunteer anything 22 about the videotape or the Medal of Honor? I was not 23 intending to elicit it. 24 THE COURT: Why don't you do that now. And it takes 25 a few moments to bring in the jury, but let's bring in the 4380 1 jury. 2 MR. FITZGERALD: Just two items, Judge. After this 3 witness, I don't know if we get to the Somalia expert, but 4 before Mr. Schmidt puts on exhibits, I think there are some 5 pictures in my copies of ostriches, perhaps children riding 6 ostriches. So if we can have a brief moment to confer before 7 the exhibits go to the jury when we got to the stage of today 8 when he offers transcripts and exhibits -- we were served with 9 three feet of paper late last night. I just wanted to make 10 sure we don't object to what goes in. 11 THE COURT: People riding ostriches? I recall there 12 has been some ostrich testimony in the case. 13 MR. SCHMIDT: There are going to be lots of 14 ostriches. Not lots. 15 THE COURT: There are going to be some ostriches, a 16 little ostriches maybe, about burying their head in the sand. 17 MR. SCHMIDT: I apologize. We're not going to 18 present lots of any particular evidence but some of lots of 19 evidence. 20 MR. FITZGERALD: Judge, will you tell the jury -- 21 it's going to be odd that the government is now calling a 22 witness. 23 THE COURT: I'm going to remind them, when the 24 government rested, it did so on the condition, and the 25 condition was this witness would testify. 4381 1 MR. FITZGERALD: Thank you, Judge. 2 (Jury present) 3 THE COURT: Good morning. I hope everyone had a 4 pleasant weekend. 5 You will recall that when the government rested, it 6 did so with a reservation, and that reservation was that as 7 part of the government's case it would call another witness. 8 I don't think we explained exactly what the reservation was, 9 but that is in fact why the government's resting was somewhat 10 equivocal. 11 And the government is now going to call that witness, 12 and you should understand that his testimony is part of the 13 government's case. It's as if this testimony was received in 14 evidence before the government rested. 15 And the witness is ready. The government may call 16 it's next witness. 17 MR. FITZGERALD: Thank you, Judge. The government 18 calls James Yacone. 19 JAMES FRANCIS YACONE, 20 called as a witness by the government, 21 having been duly sworn, testified as follows: 22 DEPUTY CLERK: Please be seated, sir. Please state 23 your full name. 24 THE WITNESS: James Francis Yacone. 25 DEPUTY CLERK: Please spell your last name. 4382 1 THE WITNESS: Y-A-C-O-N-E. 2 DIRECT EXAMINATION 3 BY MR. FITZGERALD: 4 Q. Mr. Yacone, would you tell the jury who you currently are 5 employed by? 6 A. The Federal Bureau of Investigation. 7 Q. And are you an FBI agent? 8 A. That's correct. 9 Q. For how long have you been an FBI agent? 10 A. A little more than six years. 11 Q. And prior to becoming an agent for the FBI, what did you 12 do for a living? 13 A. I was a commissioned officer in the United States Army for 14 about eight years. 15 Q. Did you have a special skill when you were in the Army as 16 a commissioned officer? 17 A. Yes. I was an aviator. 18 Q. What did you fly? 19 A. UH60 Blackhawks, which is a helicopter. 20 Q. Now let me direct your attention to 1993. Did there come 21 a time when you were deployed to Somalia as part of your 22 duties with the U.S. military? 23 A. Yes, that's correct? In August 23, 18993, we were 24 deployed to Somalia as part of a U.N. force to arrest Mohamed 25 Farahid Aideed and members of his clan. 4383 1 Q. Just for the record, we'll spell M-O-H-A-M-E-D, 2 F-A-R-A-H-I-D, A-I-D-E-E-D. 3 So is it fair to say you were working for the U.S. 4 military when you were carrying out an arrest on behalf of the 5 United Nations? 6 A. Correct. 7 Q. Now, what was your rank at the time you deployed Somalia 8 in late August of 193? 9 A. I was a captain. 10 Q. And did you have what's called a platoon? 11 A. That's correct. I was in command of a platoon. 12 Q. Can you explain to the jury how many people were in your 13 platoon? 14 A. At the time deployed with me were about 30, 32 people in 15 my platoon and five UH60 Blackhawk helicopters. 16 Q. Now let me direct your attention -- when you would fly a 17 Blackhawk helicopter, how many people in your crew would be in 18 a particular Blackhawk helicopter? 19 A. There would be four from my platoon, a pilot, a co-pilot 20 and two crew chiefs or door gunners in the back sitting behind 21 the pilot. 22 Q. And what role did the crew chiefs play when they were on 23 the ground? 24 A. They were aircraft mechanics that maintained the aircraft. 25 Q. And what role did they play when they were in the air? 4384 1 A. They were door gunners and helped us clear the aircraft 2 and fly it. 3 Q. And besides the two pilots and the two persons called crew 4 chiefs, how many other people could fit in a Blackhawk 5 helicopter? 6 A. We generally would carry 12, 12 ground force in the back. 7 Q. And what would you generally do with the ground force in 8 the back? What was your role? 9 A. To insert or infiltrate the ground force and put them 10 where they needed to go. 11 Q. Let me direct your attention to October 3 of 1993. Did 12 there come a time that day when you set out on a mission? 13 A. Yes. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 4385 1 Q. What generally was the nature of the mission? 2 A. We had intelligence -- 3 Q. Without telling us what you were told or your 4 intelligence, just tell us what your goal was, what you were 5 going to do? 6 A. The goal that day was to capture a bunch of these top 7 lieutenants or important members of the organization that were 8 gathering at a place across the street from the Olympic Hotel 9 from the Bakara market. 10 Q. Is the Olympic Hotel a notable landmark in Mogadishu? 11 A. It was one of the tallest buildings in Mogadishu. From 12 the air in the helicopter you could see all around the city. 13 Q. Focusing on Black Hawk helicopters for the moment, how 14 many Black Hawk helicopters were part of this mission on 15 October 3, 1993? 16 A. There were eight that day. 17 Q. Tell us what the role of the eight different Black Hawk 18 helicopters were? 19 A. There were two helicopters, the first two, were myself and 20 my wing man, and we were going to insert twelve people each to 21 a target building where we thought the meeting was taking 22 place. There were four Black Hawks behind us that were 23 inserting twelve soldiers each as a blocking force, and 24 setting up a perimeter around the objective, and then there 25 was a combat ship and rescue aircraft full of medics, and that 4386 1 was a contingency aircraft that stayed aloft and flew around, 2 and there was also one command control Black Hawk which had 3 the ground commander and the air commander, the overall 4 commanders, in the back of the aircraft. 5 Q. And just so we're clear, the first two helicopters 6 including yours, dropped a ground force that would actually go 7 in and make the arrests in the building? 8 A. That's correct. 9 Q. And the other four Black Hawk helicopters dropped ground 10 forces who you said were blocking forces? 11 A. Yes. 12 Q. What would they do? 13 A. They would establish a perimeter and basically contain any 14 civilians from coming into the objective area coming towards 15 the target building. They would keep people away from the 16 target building where the mission was going on. 17 Q. And did there come a time when you actually in your Black 18 Hawk dropped a ground force team at the target building? 19 A. That's correct. 20 Q. Can you tell us roughly what time of day that was? 21 A. It was about 3:15 or, correction, 3:30:30 in the afternoon 22 between 3:30 and 3:40 in the afternoon. 23 Q. How did you drop those forces into that location? 24 A. The streets are very narrow, and most of the streets were 25 dirt and we couldn't land, so we hovered at about an altitude 4387 1 of between you know forty and sixty feet, and the soldiers 2 slid down fast ropes or big thick ropes to the ground. 3 Q. And when you did that, how many people in the back or how 4 many soldiers in the back of your helicopter did you drop at 5 that location? 6 A. My aircraft and the aircraft ahead of me, we dropped nine 7 passengers off and we kept three of the soldiers on board to 8 be aerial snipers. They stayed on the aircraft and provided 9 precision sniper fire from the Black Hawks. 10 Q. So at the time after you dropped off the nine, how many 11 personnel were in your Black Hawk? 12 A. There were the three snipers and there were my two crew 13 chiefs, myself and my co-pilot. 14 Q. And what number was your Black Hawk referred to by that 15 day? 16 A. Call sign was Super 62. 17 Q. And the other Black Hawk that dropped off nine men and 18 kept three snipers, what was that referred to? 19 A. Super 61. 20 Q. And after you dropped offer your two contingents of 21 soldiers, what did the Black Hawks known as Super 61 and Super 22 62 do after that? 23 A. Well, what we would do is after we inserted our troops we 24 would then establish what we called and overhead cap, and 25 essentially that was kind of a racetrack pattern around the 4388 1 objective and again provide precision fire for the ground 2 force that was on the objectives. If they met resistance then 3 they would call, they call for fire us to us and tell us where 4 they were meeting resistance and we would assist them with 5 arial gunnery and sniper fire from our aircraft. 6 Q. What happened to the other four Black Hawks that dropped 7 off the ground forces that were part of the blocking force? 8 Where did they go? 9 A. Blocking force aircraft departed the battlefield, 10 essentially held about a mile north of the city out of harms 11 way and waited for any contingencies that would have occurred. 12 Q. And were there other helicopters besides Black Hawks in 13 the vicinity? 14 A. Yes, there were. We had four Little Bird, they're NB-5 15 McDonnel Douglas 500 aircraft. They're much smaller and each 16 of those carried and inserted four troops each. They also 17 held north of the city after making the insertion. And there 18 were two additional Little Bird gun ships which assisted 19 myself and my wing man in providing close air support and 20 arial gunnery fire for the ground force on the ground. 21 Q. And besides the ground force that was dropped into the 22 locations by the various helicopters was there another set of 23 ground troops being used at that time? 24 A. Repeat the question. 25 Q. Okay. What was the plan on how to get the people, if they 4389 1 were arrested, out of that location back to the base? 2 A. Because the streets were so narrow and the city was so 3 congested, there was no way to pick them up with the 4 helicopters. We had no place to land, no clear areas. So we 5 had a vehicle convoy of Humvees, and 500 trucks, military 6 vehicles, drive up and hold short of the objective area by 7 about two or three blocks away, and they would be radioed. 8 Once the mission was complete, and they had arrested and 9 detained all the people we were looking for they would be 10 called forward via radio with the vehicles and take all the 11 people, the soldiers and the detainees out of the objective 12 area and back to the forward support base which was Mogadishu 13 International Airfield. 14 Q. And with regard to the other helicopters in and or with 15 your helicopter Super 61, who were the pilots on that the 16 helicopter? 17 A. Cliff Wolcott and Donovan Briely were the pilots of Super 18 61. 19 Q. We'll spell W-O-L-C-O-T-T. Cliff Wolcott, and Donovan 20 B-R-I-E-L-Y. And were they part of your platoon? 21 A. Yes. 22 Q. Now, can you tell us after you went into the orbit what 23 happened next after you dropped offer the nine men on the 24 ground? 25 A. Well, we started receiving enemy fire almost instantly 4390 1 after the insertion, and the intensity of the enemy fire 2 increased steadily, the longer we stayed on the objective. 3 About 15 or 20 minutes after we inserted the ground force we 4 got a radio call from the objective, from the ground force on 5 the objective saying that they had secured all the people they 6 needed to get, and they were ready to exfilitrate or be picked 7 up and taken out of there by vehicle. Shortly after that, I 8 saw my wing man, Super 61 get hit with a rocket propelled 9 grenade in the half section of the helicopter near the tail 10 rotor, and he spun out of control, and crashed about two or 11 three blocks away from the objective area. 12 Q. Can you explain to the jury what a rocket propelled 13 grenade is? 14 A. It's a missile, a warhead probably a couple of feet long 15 that has a grenade on the end of it, and there is no guiding 16 system. You simply aim it and shoot it, and once you press 17 the trigger and it's gone, there is no way to control the 18 missile. It goes where you aimed it. 19 Q. In your training with the military when does an RPG 20 ordinarily detonate? When does it explode? 21 THE COURT: RPG is rocket propelled grenade. 22 A. That's correct. Generally on impact. 23 Q. And did you notice anything about what was happening with 24 RPGs or rocket propelled grenades on October 3, 1993 as to 25 when they detonated? 4391 1 A. They would detonate in the air. In other words, they 2 would not hit anything and they would simply explode after 3 about 500 meters or 500 yards. 4 Q. What effect would they have when they exploded in the air 5 if they did not strike the helicopter? 6 A. They throw shrapnel everywhere and you know could severely 7 damage a helicopter. 8 Q. Returning to Super 61, the helicopter piloted by Wolcott 9 and Briely, did they go to the scene where Super 61 crashed? 10 A. Yes. The mission, the focus of the mission shifted from 11 obviously capturing lieutenants to the assistance of the 12 downed helicopter crew, and I flew over and tried to identify 13 any survivors, and also assisted some of the ground force 14 moving through the streets from the objective area a few 15 blocks away to the crash site. 16 Q. What did you see when you flew over the crash site where 17 Super 61 had crashed? 18 A. Well I, it was on its side, and had been severely damaged 19 and I didn't think there was any survivors, and I was very 20 surprised when I saw two or three soldiers crawling out of the 21 back cabin area of the aircraft, so I radioed the commander 22 and let them know we had survivors. 23 Q. And during the time that you were over the crash site at 24 Super 61, what was the state of were you still taking enemy 25 fire? 4392 1 A. Yeah. As I said earlier, it just continued to build. The 2 amount of automatic weapons fire and rocket propelled grenade 3 fire continued to increase the longer we stayed over the 4 objective area. 5 Q. And had you been in an orbit or a rotating orbit with 6 Super 61 did there come a time when Super 61 was replaced by 7 another helicopter? 8 A. Yes, after he was shot down we made a request to the 9 commander to send one of the four Black Hawks holding north of 10 the city forward to join me in orbit, because there were so 11 many targets that needed to be engaged and the ground force 12 was in a very vulnerable area trying to run through the 13 streets to get to the crash site. So we made a request and 14 the ground force commander eventually sent Super 64 to join me 15 in orbit to provide aerial gunnery and close air support for 16 the ground force at the crash site. 17 Q. Who was the pilot of Super 64? 18 A. Mike Durrant, and Ray Frank. 19 Q. D-U-R-R-A-N-T and Ray Frank, F-R-A-N-K. 20 And what happened when Super 64 joined your 21 helicopter in the orbit above the crash site where Super 61 22 was down? 23 A. After probably only minutes, maybe two or three patterns 24 in orbit around the crash site responding to calls for fire 25 from the ground force, they too were hit by a rocket propelled 4393 1 grenade in the tail boom section right by the tail rotor. 2 They initially didn't lose control of the aircraft. They knew 3 they were hit. They made a radio call and they tried to head 4 directly back to the airfield or the forward support base 5 where we were stationed, which is about four miles straight 6 line. 7 After about 15 to 20 seconds of heading in that 8 direction back to the airfield, their tail rotor just came 9 apart, they lost control of the aircraft and they crashed in 10 and amongst a bunch of buildings and on top of a bunch of 11 buildings on the periphery of where the battle was going on. 12 Q. And did you in your helicopter go by the crash site? 13 We'll call it the second crash site where Super 64 was shot 14 down. 15 A. Yes, I did. We were directed by the commander to go down 16 and obviously look for survivors of my other wing man, and we 17 did so. That aircraft was unlike the first aircraft that had 18 crashed near the objective. That aircraft was probably a half 19 a mile, three quarters of a mile away from the objective area 20 and consequently all the friendly ground enforcement, so they 21 were very vulnerable. They had no one near them. 22 So we went and we were directed to go to crash site 23 number two and provide close air support and provide them 24 basically the only protection they had until they got a ground 25 convoy, the plan to get a ground convoy over to the second 4394 1 crash site to pick up survivors. 2 Q. Now, you mentioned earlier that there was a command or a 3 search and rescue helicopter above flying in a pattern. 4 During the time of the battle what happened to the search and 5 rescue helicopter? 6 A. About the same time Super 64 the, second aircraft crashed, 7 the command search and rescue aircraft with medics on board 8 was making a fast rope and search to the first crash site, 9 they got their troops inserted, were also hit with an RPG, a 10 rocket propelled grenade. The grenade glanced off the top 11 cabin area of the aircraft between the rotor system and the 12 top cabin of the aircraft, damaged i severely, but they were 13 able to limp it back to the airfield and land safely back at 14 the airfield. 15 Q. Now, did there come a time that you were waiting at crash 16 site number two for a ground force to arrive? And what 17 happened? 18 A. Yes. Again, we were in orbit over crash site number two 19 for probably ten or 15 minutes, awaiting the arrival of 20 another ground convoy being sent from the airfield at forward 21 support base, and at that time we identified that there were 22 in fact survivors on Super 64. I saw that Durant was moving 23 and Ray Frank was moving, and one of the two crew chiefs, both 24 crew chiefs were Tommy Field and Bill Cleveland. We 25 thought -- the crew chiefs in back of my aircraft, me and my 4395 1 co-pilot thought we saw Tommy Field at least waving an arm, so 2 we saw three of the four crew members moving. So we were 3 overhead providing close air support for them and trying to 4 keep away the unfriendly forces which were starting to mount 5 and encroach upon the aircraft. 6 Q. And did there come a time when an alternative was 7 suggested, instead of waiting for the ground force to arrive? 8 A. Yes. Again, we had three snipers in the back of our 9 aircraft and we decided at that time to insert two of the 10 three snipers to the crash site as close as possible to the 11 crash site. We probably would have inserted a third, but my 12 crew chief in the back of my aircraft had already been shot 13 through the arm. My aircraft had been hit by a barrage of 14 automatic weapons fire a couple of different times during the 15 battle, and he was bandaged up in the back of the aircraft. 16 So the third sniper had taken his place as a door 17 gunner of my aircraft. So we had two snipers left. We 18 inserted both Randy Shughardt and Gary Gordon to the crash 19 site number two. 20 Q. How far away from the crash site did you insert Randy 21 Shughardt and Gary Gordon? 22 A. It was probably 60, fifty to sixty yards or meters away 23 from that crash site. There was a bunch of shacks and 24 shanties and a collapsed building around the crash site and 25 the closest area we could get to that we could land to was 4396 1 about fifty or sixty yards away. 2 Q. And during this time in the battle can you tell us 3 approximately how often you would see an RPG being shot at the 4 helicopters? 5 A. Again, I wasn't able to see all the RPGs being shot, but 6 you know every thirty seconds or so we'd see the streak of 7 smoke and then the puff of where the thing would detonate in 8 the air. 9 Q. And over the course of the entire evening do you recall 10 approximately how many RPGs you saw being fired that day into 11 the following morning? 12 A. Hundreds. Well in excess of a hundred. 13 Q. After you dropped off Shughardt and Gordon at a location 14 near the second crash site, what happened next? 15 A. They again they took them about five minutes to make their 16 way through the maze and the labyrinth of shacks and shanties 17 and crawling over collapsed buildings to get to the crash 18 site, but they eventually made it. And, again, we were 19 overhead at this time providing them close air support and 20 keeping away any of the enemy trying to get to the crash site 21 or firing upon them. 22 The last thing, I saw the last pass I made was one of 23 the two snipers, either Shughardt or Gordon, I'm not sure 24 which, was tending to Mike Durrant on the right-hand side of 25 the aircraft in the pilot station. 4397 1 The other sniper had already gotten Ray Frank out of 2 the aircraft and Ray was propped up against the tree, just off 3 the nose of the aircraft, and that was the last sight of that 4 crash site that I had. 5 Q. What happened at that point to your chopper? 6 A. We got hit with a rocket propelled grenade in the crew 7 chief station or the door gunner's station just behind my 8 seat, and we then did a controlled crash to an area just along 9 the coast line called Newport. 10 Q. Can you tell us what happened inside your helicopter when 11 the RPG hit? 12 A. The explosion gravely wounded the sniper who had replaced 13 my door gunner and was in that crew chief station. It 14 basically took off his leg, peppered him with shrapnel. I had 15 a Kevlar seat, and my seat was made of Kevlar, but I caught 16 some shrapnel in my left arm, and my other crew chief had 17 already been shot through the arm earlier. 18 I had received some of the shrapnel from the rocket 19 propelled grenade. It took out one our engines. The Black 20 Hawk has two engines. We had partial power and partial 21 control of the aircraft. The windshield was gone, and the 22 window bubble, the plexiglas bubble below and above the pilot 23 station was gone. There was, you know, a bunch of smoke 24 filling the cockpit. 25 Q. And where did you actually crash land the helicopter? 4398 1 A. Again, it was a place called Newport which is just on the 2 coast line of Somalia, Mogadishu, and lucky for us there was a 3 UN contingent receiving goods at the port that day that saw us 4 come in there and crash land, and they came over and attempted 5 to provide assistance after we got on the ground. 6 Q. And were you and the remaining members of your crew in the 7 helicopter rescued at that location? 8 A. Yes. The search and rescue aircraft which had been shot 9 up earlier with rocket propelled grenades had gone, limped 10 back to the airfield. They got into a spare Black Hawk, came 11 out and picked up, first the gravely wounded sniper who had 12 lost his leg and abdomen was peppered with shrapnel, and my 13 other crew chief who had been shot through the arm also was 14 hit with shrapnel. 15 They took them to the hospital and they came back 16 about thirty minutes later and picked up myself, the other 17 crew chief, and Mike Goffena, the guy I was flying with, the 18 other pilot. 19 Q. Once you were brought back to your base in Somalia after 20 having your helicopter shot down, what did you do next? 21 A. I went to the tactical operations center which is where 22 the overall commander was sitting, and provided any 23 information I could on crash sites one and two. And then at 24 about, I don't know, maybe six or seven p.m. I replaced the 25 pilot of the flying the commander control aircraft flying the 4399 1 overall air and ground commanders around, and flew throughout 2 the night into the next morning until the mission was over. 3 Q. And during the night could you see what was happening 4 below you as you flew above Mogadishu? 5 A. Yeah, there was a battle raging on throughout the night. 6 Q. How could you see at night? Did you have any special 7 equipment? 8 A. We had night vision goggles which essentially amplify the 9 ambient illumination of the stars and the moon, and make it 10 able, make you able to see at night. 11 Q. Did there come a time when a ground force actually reached 12 crash site number one and was able to link up with the 13 soldiers who were at that crash site? 14 A. Yes. Earlier in the day when I was first shot down there 15 were two convoys that were dispatched that were attempting to 16 reach both crash sites. They were both repelled and had to go 17 back to the airfield. At about seven or eight in the evening 18 the UN or actually the US went to the UN contingent and asked 19 the Pakistanis and the UAE the United Arab Emirates forces if 20 we could borrow their armored vehicle to go back out and try 21 to rescue the aviators from the downed crash site and pick up 22 all the soldiers in the middle of the battlefield. 23 It took them until about 11:30 or 12 midnight to 24 actually launch out from the forward support base, and they 25 didn't reach the crash site or crash site number one until 4400 1 about 3 a.m. 2 Q. And what time had the crash happened when Super 61 was 3 shot down at crash site number one? 4 A. That was probably 4 p.m., 4:10 p.m., something like that. 5 Q. And once the ground force reached that crash site at about 6 3 a.m., how long did they spend in that location? 7 A. It took about two hours for them to effect a linkup of 8 friendly forces. It was in the dark. They were in the middle 9 of a battle. They didn't know exactly all the friendly force 10 locations because the friendly forces were hunkered down in 11 different areas around the crash site. So it took quite a 12 while to deconflict fires and make sure that friendlies didn't 13 shoot at friendlies. 14 And also ongoing during that time they were trying to 15 free the body of Cliff Wolcott. He was the pilot who was of 16 Super 61 and he was dead, but they wanted to get his body out 17 of the crash site and leave the crash site with all the bodies 18 of the dead soldiers. So it took them a couple of hours to 19 free Cliff. It wasn't until about maybe 5 a.m., 5:30 a.m. 20 that they finally had everybody on board this big long convoy 21 of armored personnel carriers and tanks and Humvees, and drove 22 out. 23 Q. And did they go to a separate location, a secure location 24 in Mogadishu? 25 A. Yes, they went to a place that was closer than the forward 4401 1 support base or our friendly location. They went to a place 2 called Pakistan Stadium which was about a mile away from the 3 objective area which provided our forces some security to 4 consolidate and regroup. 5 Q. And approximately what time did the people from crash site 6 one make it to Pakistan Stadium? 7 A. It was about probably 6:30 in the morning. 8 Q. And, similarly, with respect to crash site number two, did 9 a similar thing happen with regard to the ground force? 10 A. Yes. A separate or another convoy of Tenth Division 11 soldiers from United Nations force that was over there went 12 and took a look at crash site number two and it was picked 13 clean. There were no soldiers. There were no bodies at that 14 crash site when they reached it. 15 Q. And as of the following morning, October 4, 1993, did you 16 have an understanding of how much American casualties there 17 were at that time? 18 A. We had six missing in action, and we had 13 I believe 19 declared killed in action at that point. 20 Q. And did there later come a time when one of the missing in 21 action was recovered? 22 A. Yes. Later on that day or maybe the next day, we found 23 out through the Red Cross that Mike Durrant, one of the 24 lieutenants of Super 64, was actually taken captive and was 25 not killed at the crash site. 4402 1 Q. Was he recovered two weeks later alive? 2 A. Yes. 3 Q. And what happened to the other five missing in action? 4 A. They were killed. Total went up to 18 killed in action on 5 that day. 6 Q. And of the 18 who were killed in action how many were in 7 your platoon? 8 A. Five. 9 Q. And did that include Cliff Wolcott and Donovan Briely the 10 pilots of Super 61? 11 A. Yes. 12 Q. And who were the others in your platoon? 13 A. We had Ray Frank, the pilot of Super 64, and Bill 14 Cleveland, and Tommy Field who were his crew chiefs in the 15 back of that aircraft. 16 Q. And in addition to the people in your platoon, what 17 happened to the two snipers Mr. Shughardt and Mr. Gordon who 18 were dropped to rescue Super 64 crash site two? 19 A. They were killed as well. They were eventually overrun by 20 the enemy after we got shot down and they lost, they ran out 21 of ammunition and were overrun. 22 Q. Were there a substantial number of Somalis killed during 23 the fire fight in October 3th and 4th? 24 A. Yes. We received estimates from the Red Cross that there 25 were in excess of 500 killed, and about a thousand wounded. 4403 1 Q. And during the night these RPGs that were shot at the 2 helicopters, when you were trained in the military is that an 3 ordinary technique to use RPGs against helicopters? 4 MR. SCHMIDT: Objection, your Honor. 5 THE COURT: Overruled. 6 Q. What is the ordinary purpose of an RPG when you're trained 7 in the military? 8 A. Generally used against armored vehicles, but I mean it can 9 be used against personnel as well. 10 Q. When you're talking about armored vehicles, you mean 11 ground vehicles? 12 A. Yes. 13 MR. FITZGERALD: Thank you. Nothing further. 14 MR. SCHMIDT: Mr. Schmidt. 15 CROSS-EXAMINATION 16 BY MR. SCHMIDT: 17 Q. Good morning. Do you prefer being called Agent Yacone or 18 Capt. Yacone. 19 A. Agent. 20 Q. Agent Yacone, was this the first time that you ever saw 21 combat? 22 A. No. We had executed six missions over in Somalia prior to 23 3 October. Is that what you're talking about? 24 Q. Well, that's the first start. So prior to this -- 25 withdrawn. 4404 1 You would consider this a military operation on 2 October 3th and 4th, wouldn't you? 3 A. Correct. 4 Q. And prior to that military operation in Somalia you had 5 participated in six other military operations? 6 A. Over in Somalia from August to October 3rd from the time 7 we landed till that mission on October 3. 8 Q. Have you been involved in any other military operations 9 other than the ones in Somalia? 10 A. I was in Haiti in 1994, but there was a diplomatic 11 resolution to that conflict so, no. 12 Q. So other than the -- so the only two military operations 13 that you were involved in were Somalia? 14 A. In combat, that's correct. 15 Q. Prior to going to Somalia were you trained for combat in 16 the urban environment such as Mogadishu? 17 A. Yes. 18 Q. Where were you trained? 19 A. I was with my unit at that time which is the 160th Special 20 Operations Aviation Regiment. 21 Q. Were you trained in Somalia or outside of Somalia? 22 A. We had both. We had, you know, trained prior to that to 23 operate in urban environment, and then once we got on ground 24 in Somalia we had done rehearsals for the missions. 25 Q. If you -- the prior training for urban areas, was that 4405 1 separate and distinct from -- withdrawn. 2 How many years before you went to Somalia was that 3 training? 4 A. It was fairly continuous. It was part of kind of what we 5 considered a mission essential task to be able to operate in 6 an urban environment. So you know at least annually or maybe 7 twice, two times a year we try to get to an urban environment 8 within the United States and operate. 9 Q. And then you had specific training in Somalia that was 10 specifically related to military operations to be carried out 11 in Mogadishu, is that right? 12 A. Correct. 13 Q. And so really basically dealing now with the countryside 14 of Somalia, but not Mogadishu, is that correct? 15 A. We had conducted mission rehearsals away from Mogadishu 16 proper, kind of on the outskirts, maybe five or ten miles 17 south of the city at a area that we created as like a mockup 18 objective area. And then we had also done what we called 19 signature flights during the numerous days that we were over 20 there, because we were surrounded on three sides by the enemy 21 and the enemy was continuously watching us from roof tops with 22 radios. 23 We would randomly take off organized for combat, fly 24 around, you know, conduct a false insertion, do nothing and 25 then come back and land at the airfield, because we had lost 4406 1 the element of surprise, and they were simply there sitting 2 there watching us or waiting for us to take off. 3 Q. Let me go back to the training. Where you said you set up 4 a special kind of training operation, is that geared towards 5 the narrow streets of Mogadishu, how to work in that kind of 6 situation? 7 A. We had talked about it, but we were not in actual urban 8 area. We were on the outskirts on like the beach. So, no, we 9 weren't really able to effectively simulate the narrow streets 10 that were going to have to deal with in Mogadishu, no. 11 Q. But you were aware that you were going to be dealing in 12 then urban area with narrow streets? 13 A. Yes. 14 Q. An area that included the enemy militia and civilians as 15 well, is that right? 16 A. Correct. 17 Q. And it was a populated area, is that correct? 18 A. Yes. It was like 1.5 million people in Mogadishu. 19 Q. Now, during your training was there any discussion or use 20 or practice of using tow missiles? 21 A. Say that terminology. 22 Q. T-O-W missiles. I'm sorry, Tow missiles? 23 A. We had no tow missiles with my military unit. 24 Q. Is that, is there a particular reason why you had no Tow 25 missiles on that mission? 4407 1 MR. FITZGERALD: Objection. 2 Q. I'll withdraw that question. Are you familiar with tow 3 missiles. 4 A. Yes, I am. 5 Q. Are Tow missiles generally used in urban environments 6 where there are civilians? 7 A. Sure, I suppose they can be, absolutely. 8 Q. Tow missiles cause tremendous amount of damage, is that 9 right? 10 A. Depending on the target, yes. 11 Q. Now, when you were in your base, what part of Mogadishu 12 were you based in? 13 A. We were right at Mogadishu International Airport. 14 Q. In what part of Mogadishu is that? 15 A. That's the East Coast kind of in the southern portion of 16 the city. 17 Q. Is that in the area where Gen. Aideed militia supporters 18 and clansmen lived? 19 A. They had free reign of the entire city, but their 20 stronghold, at least the intelligence that I was given, their 21 stronghold was principally in the Bakara market, but they 22 operated all over the city. 23 Q. What about did you receive any information about a person 24 called Ali Magdi? 25 A. That name doesn't ring a bell. 4408 1 Q. Well, was there one operation, one of the six operations 2 prior to October 3rd and 4th where a number of people were 3 gathered up and taken away and imprisoned and learned that 4 they were members of some other militia and not Aideed 5 militia? 6 A. One of the missions, and I'm not sure which one you're 7 referring to, we did have to release some of the people that 8 we captured because they, we didn't have hard evidence that 9 the people we captured were part of the clan. They had a 10 number of nongovernmental forms of identification. Each of 11 them had many, many forms of ID, so we couldn't be sure who 12 they were, and we subsequently released them. 13 Q. Where were they released from? 14 A. I don't have any knowledge of that. I assume that forward 15 support base wherever they went to once they were brought back 16 to the forward support base. 17 Q. Just so we understand the nature of these operations, when 18 you went on an operation, the goal was to take custody of a 19 number of people and obviously it depends on what information 20 you have and the number of people are there, is that correct? 21 A. Correct. 22 Q. And I think you used the word arrest. 23 A. Detain is probably a better word. 24 Q. And the warrants that you mentioned, that was a UN 25 declaration to capture Aideed; is that correct? 4409 1 A. Correct. 2 Q. And only the person that actually mentioned was Aideed, 3 isn't that right? 4 A. I don't believe so. I think they had a number of others 5 supporters or his top lieutenants, the important people in his 6 organization that we were also looking for, but I don't know 7 if they were listed in the UN arrest warrants or equivalent. 8 I have no idea. 9 Q. Agent, obviously you only can testify to as to what can 10 you actually know. 11 A. Right. 12 Q. And it's obvious that based on your testimony that it was 13 a number of people that you were seeking to quote detain 14 unquote. But were you specifically aware, because you used 15 the word, arrest warrant, were you, have you, did you read the 16 document that you call arrest warrant? 17 A. No. 18 Q. So you're acting as a soldier, a commanding soldier 19 following the orders of those above you; is that right? 20 A. Correct. 21 Q. And you are given some understanding of why you're there 22 because you're entitled to, you're risking your life, you're 23 entitled to know or understand why you're there, isn't that 24 right? 25 A. Correct. 4410 1 Q. But all of the specific legal documents or arguments none 2 of your concern, isn't that right? 3 A. No. I mean I was following orders, you know, lawful 4 orders that given me by my chain of command. 5 Q. But lawful order came from your chain of command and 6 generally they explained to you what the UN did, but no one 7 provided with you a document saying, okay, here is the people, 8 here are their pictures? 9 A. That's correct. Well, actually, we did have pictures of 10 many of the people we were going after. I didn't see any 11 arrest warrants or legal documentation. 12 Q. You're now an FBI agent, is that right? 13 A. Correct. 14 Q. Have you been involved in any arrests of people? 15 A. Yes. 16 Q. Have you been involved in arrests of people where a 17 warrant was issued? 18 A. Absolutely. 19 Q. When you are going to arrest somebody with a warrant you 20 actually have that warrant, right? 21 A. Correct. 22 Q. And you usually have the photograph of the person and lots 23 of information, right? 24 A. Yes. 25 Q. And you go to arrest that particular person because you 4411 1 now have before you a signed, generally a copy, a signed 2 warrant of arrest issued by a Judge of the United States? 3 A. Correct. 4 Q. When you are a soldier you don't have all of that. You 5 have a chain of command that you follow? 6 A. Correct. 7 Q. Now, do you recall one of the missions where a police 8 official who, where there was insufficient proof that he was a 9 member of Aideed's clan was arrested with others? 10 A. Yes. 11 Q. He and others. Okay, now in that operation did people 12 from your team arrive in helicopters? 13 A. Yes. 14 Q. Members of the team then dropped down from the helicopter; 15 is that right? 16 A. Correct. 17 Q. How were they armed? 18 A. With you know M-16 or Kar 15 rifles, various weapons. 19 Most guys had handguns as a backup. We had some machine guns 20 as well. 21 Q. Grenades? 22 A. Yes. 23 Q. They were prepared all the people who went to detain, 24 we'll call it detain, these individuals they were prepared, 25 your team members, to defend themselves under the 4412 1 circumstances that their lives were in danger? 2 A. Correct. 3 Q. As a soldier you could do nothing less than that? 4 A. Right. 5 Q. And you can't ask a soldier to do anything less than that, 6 isn't that right? 7 A. We had pretty restrictive rules of engagement, yes. 8 Q. But you if you were attack, you certainly could -- 9 A. That's right. 10 Q. And your goal was detaining, coming down from the sky, 11 grabbing the people that you understood were supposed to be 12 grabbed, taking them from their home, office or wherever they 13 are and bringing them to a location where the UN would take 14 control, is that right? 15 A. That is correct, but, again, just to make this clear I was 16 an aviator. I was in charge of getting them to the site. I 17 wasn't actually sliding down on the rope and putting the hands 18 on people. 19 Q. But that was the operation's purpose? 20 A. Yes. 21 Q. You had a very important and difficult and dangerous job 22 sitting up there in the bird in the sky? 23 A. Yes. 24 Q. Now, as to the operations that you were involved in up to 25 October 3rd and 4th, there was fortunately very -- were there 4413 1 any casualties for your teams at all on the first six? 2 A. I believe two Rangers were wounded in one of the missions 3 of those six previous missions. 4 Q. And there were very few Somalia casualties as well? 5 A. That's correct. 6 Q. Everything worked fairly nicely? 7 A. Correct. 8 Q. Now, when you were there on and operation coming down to 9 make -- withdrawn. 10 There were a number of times during your operations 11 where you came up empty handed, there was nobody that you 12 thought you wanted was at the location, is that correct? 13 A. Yes. 14 Q. You called that a dry hole? 15 A. Yep, that was a common phrase used. 16 Q. Now, generally in these missions other than the October 17 3rd, 4th, when, how many helicopters were used? 18 A. There was I believe 18 helicopters. 19 Q. So if you went on a mission give, for example, the mission 20 that caused the detention of the non-Aideed militia police 21 officer and others, you would come with 18 helicopters flying 22 in some sort of pattern. Is that right? 23 A. Right. 24 Q. And you would, the helicopters were dropping off the 25 soldiers at some point lower themselves to a level where it 4414 1 was safe, and the soldiers, and these are special commandos, 2 right? 3 A. They were soldiers in the Army, yeah. 4 Q. But they were specially trained? 5 A. Correct. 6 Q. Urban commandos and other -- let's just use commandos, is 7 that good? 8 A. I think special operations soldiers is probably a better 9 term. 10 Q. And they would go down the ropes, hit the ground and go to 11 the location, is that right? 12 A. Correct. 13 Q. And all that time the helicopters would all be in a pretty 14 close location? 15 A. Again, after the insertion most of the helicopters would 16 hold north of the city out of harms way and only the 17 helicopters that were on standby and on call to provide, you 18 know, close air support or ariel gunnery would remain over the 19 objective. 20 Q. When your helicopters arrived, now, say in the operation 21 where the police chief was or police officer was mistakenly 22 detained, did you have special-ops soldiers going down from 23 your helicopter? 24 A. I don't specifically remember, but more than likely yes. 25 Q. You're in an urban area, right? 4415 1 A. Yes. 2 Q. I think sometimes the operations were like in the middle 3 of the night so it was quiet, right? 4 A. Correct. 5 Q. Sometimes it was not in the middle of the night and there 6 was more activity on the street? 7 A. Right. 8 Q. Can you describe to us what the people on the street would 9 do, the civilian people on the street, what would they do when 10 they saw 18 helicopters coming and letting down these troops? 11 A. They would generally, you know, flee or leave that 12 immediate area, and go the other way. 13 Q. Now, except for obviously the ones that started to engage 14 the aircraft and they stayed around, some of them would stay 15 around and fire? 16 A. Right. 17 Q. Now, you came in August of 1993, is that correct? 18 A. I think it was August 23rd, that's correct. 19 Q. And were you aware that there are other American troops at 20 the location, in Somalia, Mogadishu prior to you arriving, is 21 that right? 22 A. Yes. 23 Q. Now, you knew that you were to some extent vulnerable as a 24 helicopter pilot the longer you stayed in one location either 25 dropping off or picking up people; is that right? 4416 1 A. Yes, absolutely, I mean the longer you stayed in and 2 around a battlefield chances are, you know, you're going to 3 receive some fire. 4 Q. And the lower you go, the more chance you are getting hit? 5 A. Not necessarily true. We tried to vary our altitude but 6 if you remain low you actually present a quicker sight picture 7 for somebody on the ground trying to engage you. He has less 8 time to track you or engage you if you're low, if you're in a 9 densely urban area without a big field of view, because as he 10 tracks you he may lose you to the next rooftop that becomes, 11 or is between you the helicopter and if the guy is trying to 12 shoot you, so it depended. 13 Q. But you talked a little bit about RPGs, the rocket 14 propelled grenades? 15 A. Yes. 16 Q. Those are basically something like a rifle with a grenade 17 at the end of it, is that right? 18 A. Yes, it's a big about a three four foot tube and the 19 warhead sits on the front end of the tube and is fired out of 20 the tube. 21 Q. And that's a man-held weapon, right? 22 A. Yep, held on the shoulder. 23 Q. And it doesn't take very much training to actually fire 24 one of those things, does it? 25 A. I've never fired one myself, but I think to fire them 4417 1 accurately, yeah, you definitely have to get some training. 2 Q. To fire them accurately is probably very difficult, isn't 3 it? 4 A. Again, I've never fired them, so from what I've been told, 5 yes. 6 Q. Now, you described the, that night the day and night of 7 October 3rd and 4th as being hundreds of RPGs being fired, is 8 that right? 9 A. Yeah, through the course of the battle, that's correct. 10 Q. And during the course of the battle there were three 11 helicopters that were hit? 12 A. Four. 13 Q. So the percentages of the people there in firing them was 14 not very low, which is not surprising for RPGs, is that right? 15 A. When you consider the amount of aircraft that were 16 actually over the objective area, the percentages were pretty 17 high. Again, the other Black Hawks went and held north of the 18 city, so the only Black Hawks that flew over the battlefield 19 on that particular day were hit except for the command control 20 aircraft which was at much much higher altitude kind out of 21 harms way. 22 Q. But we're talking about hundreds of RPGs fired at the 23 helicopter, is that right? 24 A. Yeah, at all the helicopters over the battlefield, 25 correct. And at soldiers on the ground, you know, in and 4418 1 amongst the streets, and the vehicle convoys. 2 Q. Now, you were aware of previous attacks on Aideed's -- 3 withdrawn. When you went into in August on your first 4 operation, right, were you made aware that of the prior attack 5 on Somalis that was called the Abdi House in July 12, 1993? 6 MR. FITZGERALD: Objection, your Honor, beyond the 7 scope. 403. 8 MR. SCHMIDT: This goes into how he's conducting 9 himself, your Honor. 10 THE COURT: I'll permit it. That's a yes or no. 11 A. Yes, I was aware of the Abdi House incident. 12 Q. And were you aware of the Somali reaction to their 13 perceptions of the Abdi House attack? 14 MR. FITZGERALD: Objection, your Honor, 403. 15 THE COURT: Yes or no. 16 A. Yes. 17 Q. Were you aware that helicopters, therefore, the people in 18 the helicopters were in greater danger as a result of the 19 Somali reaction to the Abdi House attack? 20 A. Say that again. I'm not sure I understand the question. 21 Q. Were you aware that helicopters became more of a target of 22 the anger of the Somalis as a result of the Abdi House attack? 23 A. No, not necessarily. I just through the media -- I mean 24 basically through the media I became aware that most of the 25 Somalis became very irritated at perception of the attack, and 4419 1 the population who had backed the majority of the population 2 who was backing the UN mission over there at the time were 3 starting to be swayed towards Aideed's clan and what Aideed 4 was trying to carry out as a result of the Abdi House 5 incident. And, again, that was through the media that I 6 became aware of most of what happened. 7 Q. And you became aware that the Abdi House attack was very, 8 very different than the operations that you were conducting, 9 isn't that right? 10 A. It was a different military unit that did it. I mean it 11 was a US Force Tenth Mounted Division. 12 Q. It was a different type of operation? 13 A. Correct. 14 Q. Your operation, and you were under very strict limitations 15 not to fire into buildings or groups of people unless you 16 absolutely had to protect yourselves; is that right? 17 A. Yes. 18 Q. And you were aware that in the Abdi House attack Tow 19 missiles were fired in a building that was not firing at the 20 helicopters, had not attacked anybody? 21 MR. FITZGERALD: Objection, your Honor. 22 THE COURT: Sustained as to form. 23 Q. You were aware that the rules of engagement that caused 24 the Abdi House attack -- withdrawn. 25 Your rules of engagement changed as a result -- 4420 1 withdrawn. The rules of engagement that you were under -- 2 withdrawn. I'll try my best on this. Were you aware that the 3 rules of engagement that you were now under were different as 4 a result of the Abdi House attack? 5 A. I'm not really sure what their rules of engagement were on 6 that day, and I don't know what predicated the Abdi House 7 attack. In other words, I think there were four journalists 8 killed by a Somali mob earlier that day. I know there were 9 twenty-four Pakistan UN soldiers that were killed prior to the 10 Abdi House, but I have no idea what their rules of engagement 11 were on that day or what precipitated the Abdi House attack. 12 Q. You raised, you raised the issue about the -- 13 MR. FITZGERALD: Objection, your Honor. 14 Q. -- journalists -- 15 THE COURT: Yes, sustained. Just ask a question. 16 Q. You were there and you saw the media. Is that correct? 17 You saw the media while you were there? 18 A. Yes. 19 Q. You were aware that the journalists were killed by a crowd 20 of enraged Somalis as a result of the Abdi House attack, 21 weren't you? 22 A. I'm not sure which occurred first to be quite honest, 23 whether the journalists were killed and then the attack 24 occurred, or the attack occurred and then the journalists were 25 killed, I have no idea. 4421 1 MR. RICCO: Your Honor, I object. I'd like to be 2 heard. 3 THE COURT: We'll take our mid-morning recess. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4422 1 (Jury not present) 2 MR. WILFORD: Your Honor, may we state the reasons 3 for the objection? 4 THE COURT: Please. 5 MR. WILFORD: I believe that everything after the 6 witness answered yes with respect subsequent to saying yes to 7 the question regarding his knowledge of the Abdi House 8 incident should be stricken. 9 We're talking about information that is leading up to 10 I believe 24 other dead Americans. We're talking about a 11 situation that is not within the scope of this witness' 12 personal knowledge. He's talking about other information he 13 received from some other source, and most respectfully we ask 14 that everything after the Abdi House question with respect to 15 the witness' knowledge of the existence of the Abdi House 16 incident be stricken. 17 THE COURT: Mr. Schmidt. 18 MR. SCHMIDT: Your Honor, I think striking it doesn't 19 accomplish the purpose. The jury has heard it. What would 20 accomplish the purpose as to this witness would be perhaps a 21 stipulation that the Abdi House attack occurred and then after 22 the Abdi House attack occurred the correspondents were killed. 23 MR. FITZGERALD: Mr. Schmidt has gone into hearsay 24 that he knows the witness wasn't in country for, and he walked 25 into a door and when he gets an answer he doesn't like when 4423 1 the witness is saying, you're asking me what I heard from the 2 media, then he wants to turn around and straighten out and 3 leave just those facts he wants. If he doesn't want to get 4 inaccurate hearsay, don't ask someone what happened in July of 5 1993 in Somalia of a witness who was in America. He keeps 6 going down that road and he goes down that road and he gets 7 the answer he doesn't like, he wants to fix it. 8 MR. SCHMIDT: Counsel previously indicated that 9 additional response was not responsive to my question. It was 10 volunteered by this witness. 11 THE COURT: Your question was, did he know two 12 journalists and four Pakistanis were killed earlier that day. 13 MR. SCHMIDT: I didn't say that. 14 THE COURT: Then you asked whether he was aware of 15 the journalists who were killed before or after the attack. 16 MR. SCHMIDT: That was after he volunteered that. My 17 question to him did not require him stating about the 18 journalists being killed. I made very specific questions. 19 I'm up there asking him specific questions to avoid that type 20 of answer and he's volunteered that. 21 Go back and you'll see it is his volunteering that 22 information and for the government to get up here and say now 23 say they want to lead -- 24 THE COURT: The government has made no objection. 25 The only objection has been raise has been raised on behalf of 4424 1 Odeh. So let's be clear how this issue has arisen. 2 He was asked whether he was aware that the rules of 3 engagement were different as a result of the Abdi House. 4 MR. SCHMIDT: That requires a yes or no. 5 THE COURT: What he responded was he doesn't know 6 what precipitated the change but that he did know that two 7 journalists and four Pakistanis were killed earlier that day 8 and then he stated he was not aware whether the journalists 9 were killed before or after the attack. 10 MR. SCHMIDT: Your Honor. 11 THE COURT: Let me ask you this question. Do you 12 have further questioning along these lines? 13 MR. SCHMIDT: As to the Abdi House. 14 THE COURT: As to the Abdi House. 15 MR. SCHMIDT: I'm done. The only thing that I want 16 to elicit through this witness, whether I request the 17 introduction of the helicopter pilot in the Abdi House who saw 18 one of the journalists running away after the attack who was 19 very alive and explained how that journalist died, I'll do 20 that. I don't want to do that. I don't want to make this 21 into a circus. All I want is the jury now to know what is 22 undisputed. The death of the journalists came after the Abdi 23 House period. 24 THE COURT: But this witness doesn't know that. This 25 witness has already said -- 4425 1 MR. SCHMIDT: I'll do it another way if the 2 government doesn't want to, but the jury is left that way, so 3 I will do it, I will do it then another way, your Honor. 4 THE COURT: He can't answer that. 5 MR. SCHMIDT: If the government doesn't want to clear 6 this issue now I will have produce another witness and I'm not 7 sure where I'm going to get it. I did not -- he left that 8 question from that witness he put it in on his own. It was 9 not responsive to my answer. I don't think that the 10 government should try to protect them to allow misleading 11 information in front of the jury. 12 THE COURT: Why do you keep attributing this to the 13 government? The objection was raised by codefendant. 14 MR. SCHMIDT: Your Honor, this is not simply a former 15 Captain, your Honor. This is an experienced FBI agent. 16 MR. FITZGERALD: Mr. Schmidt asked what happened on a 17 different continent he was not present for and then is shocked 18 when he doesn't get the answer he wants. 19 THE COURT: All right. Let's cool it. Let's cool 20 it. Mr. Wilford. 21 MR. WILFORD: Your Honor, we're simply seeking a 22 ruling from the Court on my motion to strike. 23 THE COURT: Just very specifically what is it that 24 you wanted? 25 MR. WILFORD: Everything after the witness said he 4426 1 was aware of the Abdi House incident. He answered yes. 2 Everything after that should be stricken. 3 THE COURT: That includes was he aware that the rules 4 of engagement differed as a result of that Abdi House. 5 MR. WILFORD: Yes. 6 THE COURT: You want that stricken. Do you want to 7 have everything after that stricken? 8 MR. WILFORD: Everything after it stricken. 9 THE COURT: Does the government object to that being 10 stricken? 11 MR. FITZGERALD: No, Judge. I don't object to 12 striking all his Abdi House testimony as hearsay. He's not 13 competent to give it. 14 THE COURT: The question, were you aware of you know 15 is technically not hearsay. I know that Mr. Schmidt is 16 utilizing that device to avoid -- 17 Do you object, Mr. Schmidt, to the striking of 18 everything after the question relating to the change of rules 19 of engagement as a result of Abdi House? Do you object to 20 that being stricken? 21 MR. SCHMIDT: I'm thinking, your Honor. 22 THE COURT: I understand. 23 MR. SCHMIDT: I would, I don't object to being 24 stricken after he said, he does not know. 25 MR. FITZGERALD: Judge, he only said that. 4427 1 THE COURT: But that gets a question in. There is 2 really no evidentiary value in what he does not know about an 3 incident that took place prior to his arrival. Consensus. We 4 will strike everything after the question relating to rules of 5 engagement and Abdi House. We'll do that when the jury 6 returns, and I understand you have no further questions on 7 that subject. 8 MR. SCHMIDT: On that subject I have no further ones. 9 THE COURT: Very well. We'll take a three-minute 10 recession. 11 (Recess) 12 (In open court; jury not present. 13 THE COURT: Let's be seated. 14 MR. SCHMIDT: Your Honor, one point I want to make as 15 a result of actually the last discussion. On page 3500 16 material, SLM slash 3-3 the question asked to, I'm not sure 17 who was asking, was, when you were deployed over there what 18 idea were you given of the degree of threat that was opposing 19 US aircraft? 20 THE COURT: Yes. 21 MR. SCHMIDT: Those answers there would not only have 22 allowed me to cross-examine this witness more intelligently, 23 more limitedly, but also challenging him if he denies 24 something that is indicated in his cross-examination. 25 THE COURT: You asked, were you aware of the previous 4428 1 attack and some reference to Abdi House and aware of the 2 Somali action and the answer is yes. Were you aware of the 3 helicopters were in grave danger as a result of the reaction 4 to the Abdi House attack? And he said it was more of a 5 target, and then he went into his awareness of the media 6 reaction. He made very clear. 7 What is it that you think that you did not ask that 8 you might have asked him which would not have prompted the 9 objections similar to the one received with respect to the 10 question which you did ask? 11 MR. SCHMIDT: Judge, I'm asking a question which to 12 some extent defense attorneys should not do, because I don't 13 know the answer. This would have given me the answer of what 14 he knew the threat was. I don't know what's in there. I 15 don't know. 16 THE COURT: What he knew the threat was, you mean 17 awareness of a threat other than being shot down by hostile 18 Somalis? 19 MR. SCHMIDT: The basis of believing that the threat 20 of being shot down. 21 THE COURT: You asked that question and you got the 22 answer. 23 MR. SCHMIDT: I don't know I got the answer he gave 24 in the 3500 material. 25 MR. FITZGERALD: For the record, your Honor, the 4429 1 statement he's referring to that are redacted are not 2 statements of Yacone. This was a group interview. There is 3 no -- so whatever is redacted not a statement of the witness. 4 THE COURT: Let's bring in the jury. The witness may 5 resume the stand. 6 MR. FITZGERALD: My fear that Mr. Schmidt may be 7 asking questions purportedly not for Mr. Yacone's state of 8 mind but to try to get other information before the jury, 9 other casualties. 10 THE COURT: I will not permit that. I gave Mr. 11 Schmidt greater latitude than I would normally do, because I'm 12 aware of problems he has experienced with respect to witnesses 13 that were disclosed to the Court ex-parte, but I think the 14 objection that has been made on behalf of Odeh is well taken, 15 and there is unanimity to striking this, and Mr. Schmidt 16 advises he has no further questions along those lines. 17 The witness may resume the stand. Another matter. 18 The interpreters are having great difficulty hearing defense 19 attorneys except for Mr. Schmidt. Probably the speaker in 20 front of Mr. Wilford and Mr. Ricco, and Mr. Cohn and 21 Mr. Ruhnke are not functioning well. 22 MR. COHN: Your Honor, this is a constant sort of 23 balancing. The problem is that speakers get to be very 24 sensitive and then when we speak privately it gets overheard. 25 So it is constantly either turning them off or moving them 4430 1 away and I think it is important. I don't know. We've been 2 trying to balance that. I don't know how we do it. 3 MR. RICCO: We'll speak louder when we address the 4 Court, your Honor. 5 THE COURT: Not too loud. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4431 1 (Jury present) 2 THE COURT: I am aware that it is quite cool, and we 3 have asked the building to reduce the air conditioning while 4 you're here, and to turn it up. You want if off? 5 JUROR NO. 2: This is perfect. 6 THE COURT: Right now they have turned it down. 7 People seem to be shivering I think not as a result of 8 testimony but because it's actually cold. 9 The Court strikes, which means put it out of your 10 mind and disregard, the series of questions asked by Mr. 11 Schmidt which began with a reference to rules of engagement, 12 and what he knew of events that took place prior to his 13 arrival in Somalia. 14 MR. SCHMIDT: Your Honor, that's not my 15 understanding, your Honor, of the agreement. 16 THE COURT: I'm trying to instruct the jury without 17 repeating all the testimony which there was unanimous 18 understanding should be stricken, and it began with a 19 question: Were you aware that rules of engagement were 20 different as a result of the Abdi House event? That's from 21 that point to the time prior to the recess is stricken. 22 Mr. Schmidt you may continue. 23 MR. SCHMIDT: Thank you, your Honor. 24 Q. Agent Yacone, were you aware of any United States 25 casualties during the period that you were there that occurred 4432 1 outside the Mogadishu area? 2 A. No. 3 Q. When we talk about Aideed and militia, we're not talking 4 about a full-fledged Army, are we? 5 A. I don't know how you would describe, I mean a militia. 6 They were pretty well organized. There were enemy clan, you 7 know, was another way of describing them. And they did have a 8 rank structure, so, yeah, they were. 9 Q. They were a fairly well organized clan militia that 10 approached being an Army? 11 A. I think that's a fair description. 12 Q. However, the communication during -- withdrawn. 13 How did you communicate with your superiors and other 14 people under you during battle? 15 A. We had radios in the aircraft and each member, I shouldn't 16 say each member, most of the commanders and leaders on the 17 ground had radios with them to communicate back and forth 18 between the aircraft and each other. 19 Q. So the Somalis on the ground that you were fighting were 20 communicating often by banging garbage cans, didn't they? 21 A. That was one method and means. Again, we observed them 22 using radios continuously while they had us under surveillance 23 at the airfield. So they definitely had radios. They also 24 burned tires as kind of a signal to rally the troops and bring 25 everybody towards the battle. 4433 1 Q. So to contact other people to help in the battle a fire in 2 a location would draw the people? 3 A. That was one method or means they used. 4 Q. When you said that you saw radios, you're talking now 5 about the Somalis who were watching over the base and seeing 6 what was going on at the base; is that right? 7 A. They were outside of the base on the perimeter of the 8 airfield, up on rooftops. 9 Q. Those are the Somalis that you are talking about that at 10 times you saw radios? 11 A. Yes. 12 Q. But on October 3rd and October 4th the means of 13 communication were fires and garbage cans, right? 14 A. Those were two methods that I was aware of. I'm sure they 15 were using radios, but I don't recall ever seeing people with 16 hand held radios on the ground. 17 Q. Did you ever learn of the number of rounds of ammunition 18 that was fired by the Americans in Mogadishu on October 3rd 19 and October 4th? 20 A. The total quantity or total number of rounds? No. 21 Q. Who is the commanding officer? 22 A. General William Garrison. 23 Q. Did you ever hear General Garrison say that -- 24 THE COURT: I am going to be sustain the objection 25 that's about to be made. 4434 1 MR. SCHMIDT: I have no further questions with this 2 witness. 3 THE COURT: Mr. Wilford. 4 MR. WILFORD: Yes, your Honor, thank you. 5 THE COURT: On behalf of defendant Odeh. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4435 1 CROSS-EXAMINATION 2 BY MR. WILFORD: 3 Q. Good afternoon, Agent Yacone. 4 A. Good afternoon. 5 Q. Did I pronounce your name correctly? 6 A. Yes, you did. 7 Q. How are you doing today, sir? 8 A. Pretty good. 9 Q. Now, on August -- or, withdrawn. In August of 1993, you 10 went to Somalia; is that correct? 11 A. Correct. 12 Q. As a member of the United States Army? 13 A. Correct. 14 Q. As a captain in the United States Army; is that correct? 15 A. That is correct. 16 Q. And you went there with a -- not just you, but the United 17 States Army went there with a specific purpose; isn't that 18 correct? 19 A. Correct. 20 Q. As a matter of fact, during the time that you went to 21 Somalia, there was a lot of chaos in Somalia, isn't that 22 correct? 23 A. Yes. 24 Q. As a matter of fact, the forces of Aideed, this person 25 that you wanted to arrest on October 3, was in fact preventing 4436 1 other Somalians from receiving food, isn't that correct? 2 A. Members of his clan, they were intercepting U.N. convoys 3 and, correct, and preventing the logistical movement of food 4 and supplies to the starving Somalis. 5 Q. And it wasn't just members of his clan, they were doing it 6 at his behest, correct? 7 A. That's what it appeared to be, but again, I have no 8 knowledge, personal knowledge, of how his organization was 9 run. But, yes, that's what we were being told. 10 Q. You didn't speak to him directly and say, "Hey, Aideed, 11 are you stealing the stuff or not," right? 12 A. Right. 13 Q. But it appeared that they were taking it and selling it or 14 doing something other than allowing people who were starving 15 to eat; isn't that correct? 16 A. That is correct. 17 Q. Now, you went into Somalia in your capacity as soldier; is 18 that correct? 19 A. Yes. 20 Q. And you went in after having been trained as a soldier; 21 isn't that correct? 22 A. Yes. 23 Q. You were trained, prior to your training in aviation, in 24 other areas as a soldier; isn't that correct? 25 A. Yes. 4437 1 Q. And at some point you got trained as an aviator and you 2 became a helicopter pilot; isn't that correct? 3 A. Correct. 4 Q. And you had training in flying helicopters prior to going 5 to Somalia; isn't that correct? 6 A. Yes. 7 Q. And you were trained in using ammunition; isn't that 8 correct? 9 A. Yes. 10 Q. You were trained in using ammunition on the ground; is 11 that correct? 12 A. Yes. 13 Q. And also using ammunition from your helicopter; isn't that 14 correct? 15 A. Correct. 16 Q. Now, you were also trained in how to defend yourself from 17 attack; isn't that correct? 18 A. Correct. 19 Q. That's part of what you have called your ROE, or rules of 20 engagement; isn't that correct? 21 A. Correct. 22 Q. Now, you also were trained in how to defend others; isn't 23 that correct, sir? 24 A. Correct. 25 Q. As a matter of fact, that was your main purpose in being 4438 1 in Somalia, was to defend other people; is that correct? 2 A. Are you talking about me as an aviator, what my mission 3 was? 4 Q. Well, okay. 5 A. My mission as an aviator, again, on that particular day 6 was to bring in the ground force, insert them, and then 7 provide close air cover and fire support for the ground force 8 so that they could achieve their objective, which was to 9 detain or go after and grab people that we were interested in 10 in Aideed's clan. 11 Q. Aideed and the upper echelon of his clan; isn't that 12 correct? 13 A. That's correct. 14 Q. And that was in the belief that if you got Aideed and the 15 upper echelon of his clan off the streets of Mogadishu, the 16 rest of the people in Somalia would have an opportunity to 17 eat? 18 A. Correct. 19 Q. They would get some of that food that the United Nations 20 was bringing in? 21 A. Correct. 22 Q. That some of the chaos would be reduced? 23 A. Yes. 24 Q. You were also trained, sir, were you not, in urban 25 warfare? 4439 1 A. Yes. 2 Q. Now, as a soldier when you are in training, you try to get 3 prepared for whatever may come up; isn't that correct? 4 A. Yes. 5 Q. Now, you can't know what's going to come up, right? 6 A. Correct. 7 Q. For instance, when you got shot down, you didn't know 8 whether or not you would be able to make it to where you 9 landed or not; is that correct? 10 A. Correct. 11 Q. But your training kicked in, right? 12 A. Yes. 13 Q. Your training enabled you to think your way through that 14 situation and make the landing at the coastline of Somalia; 15 isn't that correct? 16 A. Training and a lot of luck. 17 Q. Well, without that, we would all be lost, right? 18 A. That's correct. 19 Q. Now, sir, you were trained for how long in urban warfare 20 before you arrived in Mogadishu? 21 A. I think as a soldier, the urban environment, you know, you 22 continuously train or at least talk about training in the 23 urban environment. Now, when I became of the 160th, we tried 24 to again do it annually, at least a couple times a year try to 25 get to an urban area and try in that environment. So a couple 4440 1 times a year for the preceding three years. 2 Q. And that urban warfare training had absolutely nothing to 3 do with your mission in Mogadishu, did it? 4 A. Correct. 5 Q. Now, sir, I want to talk for a moment, if I might, about 6 Somalia, just looking at the Country of Somalia, if we could. 7 MR. WILFORD: Mr. Keneally, I need to have the 8 defense tuned in on the system, on the technology system. 9 Q. Would you take a look at your screen. 10 MR. WILFORD: Your Honor, there is an agreement 11 between the government and Mr. Odeh that this can go into 12 evidence as Odeh A, as in Adam, 5. 13 MR. FITZGERALD: That's correct, Judge. 14 THE COURT: A5. And this is a map of Somalia? 15 MR. WILFORD: Yes. 16 THE COURT: It is received. 17 (Defendant Odeh Exhibit A5 received in evidence) 18 BY MR. WILFORD: 19 Q. Would you be kind enough, Captain -- I'm sorry, Agent 20 Yacone, to look at the map of Somalia, and could you indicate 21 where it was that you landed on the coastline when your 22 helicopter was shot down? 23 A. The map's really too large of a scale, but where you see 24 Mogadishu. 25 Q. In that general vicinity? 4441 1 A. Correct, right near the coast. 2 Q. And when you said that you were a little bit south of 3 Mogadishu on some other occasions, it was basically in that 4 general area; isn't that correct? 5 A. Yes. 6 Q. You weren't 600 kilometers away, were you? 7 A. No, we were maybe ten miles, fifteen miles. 8 Q. Maximum? 9 A. Yes, that's correct. 10 Q. And would that be in a ten-mile radius around Mogadishu? 11 A. Yes. 12 Q. So your whole time that you were in Somalia, you never 13 went to the north or to the south? 14 A. To the best of my recollection, no. I mean, not more 15 than, you know, ten, fifteen miles away from the city. 16 Q. The reason that you never went anywhere else is because 17 that's where Aideed was and that was the person that you 18 wanted to arrest, not you personally, but the United States 19 and the United Nations? 20 A. And that's where I don't necessarily know that Aideed was, 21 but that's where the majority of his clan was and the strong 22 hold of his clan, the important members. 23 Q. Now, when you talked about, on your direct examination and 24 in your prior cross-examination, I believe you mentioned that 25 you had six prior operations? 4442 1 A. Yes. 2 Q. During those other operations did you in fact have an 3 opportunity or need to discharge any of your weapons from the 4 helicopter? 5 A. Yes. Very limited, but yes. 6 Q. Do you know whether or not, as a result of the discharge 7 of your weapons from the helicopter, any people on the ground 8 died, any Somalians died? 9 A. I believe, I believe so. Again, we were -- the one 10 particular instance that I recall is we were essentially 11 trying to break contact. We were being fired upon, we fired 12 back and continued on. We were -- it was during the 13 exfiltration or the carrying out of the ground force and the 14 ground force and the ground convoy engaged where the enemy 15 fire was coming from as well. So I'm not sure the effects of 16 our fires. 17 Q. But you do know that as a result of the engagement on 18 October 3rd and October 4th, 500 Somalians died and at least 19 1,000 were injured; is that correct? 20 A. That was a Red Cross number that was furnished to us after 21 the battle. 22 Q. Now, you mentioned some terms that I'm really not familiar 23 with. I wanted to, just if you could clarify them. 24 You said that during the course of your hovering over 25 crash site number one, I believe, there was some targets that 4443 1 needed to be engaged. What does that mean, targets? 2 A. Essentially what would happen is we would observe somebody 3 with a weapon shooting at our soldiers or shooting at the 4 aircraft and we would -- the door gunners would engage them 5 with the door guns. 6 Q. They would try to shoot them? 7 A. Yes. 8 Q. Now, sir, when you observed these people shooting at your 9 soldiers, were they shooting light weapons? Were they 10 shooting RPGs only? What were they shooting? 11 A. The majority, we saw AK-47s, RPGs, other more antiquated 12 sub-machine guns, Soviet variants. That's about it. 13 THE COURT: That's, the people you observed on the 14 ground were using those weapons? 15 THE WITNESS: That's correct. 16 THE COURT: Was that your question? 17 MR. WILFORD: Yes. 18 Q. And they were shooting, the observation you made from the 19 helicopter was people on the ground were shooting at other 20 U.S. troops on the ground with those weapons; is that correct? 21 A. They were shooting at U.S. troops, they were shooting at 22 my aircraft, my wing man. 23 Q. So the fire that was being presented towards your 24 helicopter was both RPG and other weapons? 25 A. Yes. 4444 1 Q. Light weapons? 2 A. Yes. There was, also, later on that evening with the use 3 of night vision goggles we had seen heavy tracers from what 4 appeared to be a much larger weapon, which was some sort of an 5 anti-aircraft weapon that we didn't realize was operational 6 during the day, but at night we could see the tracers and knew 7 it was something a lot greater than a AK-47. 8 Q. By the way, is it correct that your operation on October 3 9 started around 4:00, 3:00 or 4:00 in the afternoon? 10 A. About 3:30. 11 Q. And, sir, you mention that there was shrapnel that came 12 out of these RPGs that were exploding near and around your 13 helicopter; is that correct? 14 A. Correct. 15 Q. Do you have any idea, sir, how close you would have to be 16 to the location of the RPG explosion for the shrapnel to hit? 17 A. I think that would depend on what it impacted upon. If it 18 was an air burst up in the sky, you know, you could be 19 probably 50 meters away and still receive effects of the 20 shrapnel being disbursed by the explosion. 21 Q. 50 meters? 22 A. Well, it depends on where it explodes, but again, if it's 23 hitting a wall and you're in a building, it would be a lot 24 closer. 15 meters, 10 meters. 25 Q. And, sir, you also mentioned that you saw collapsed 4445 1 buildings while you were hovering between crash site one and 2 crash site two; is that correct? 3 A. The collapsed buildings I think you are referring to is 4 the one where Supersix 4, the second aircraft, crashed on top 5 of. 6 Q. So there weren't other buildings that had collapsed during 7 the course of your time period in Mogadishu as a result of any 8 kind of fire from helicopters or from people on the ground? 9 A. Not to my recollection, no. 10 Q. Now, would it be a fair statement that the number of RPGs 11 on the ground at Mogadishu were about as common as dust mops? 12 A. I think I know the document you are referring to. They 13 were fairly common, yes, that is a true statement. 14 Q. Would it also be fair that it appeared as though every 15 other person had an AK-47? 16 A. Correct. 17 Q. So basically this is a situation where a lot of people 18 were walking around with some artillary? 19 A. With weapons, yes. 20 Q. I'm sorry, as a military -- some weapons? 21 A. Right. 22 Q. Not cannons, but weapons. 23 Now, it's also fair to say, then, that in Mogadishu 24 there was a high concentration of weapons that were readily 25 available for purchase or acquisition? 4446 1 A. The intelligence that we had prior to 3 October didn't 2 indicate that we would see the amount of weapons and certainly 3 RPGs that we saw on 3 October. In other words, we had no idea 4 that we were going to see that volume of fire come from the 5 enemy. That was my understanding from the intelligence 6 briefings that we received pretty much on a daily basis. 7 So I think we were pretty much surprised at the 8 volume of fire that they brought to bear on 3 October. 9 Q. And would it be fair to say, sir, that the intelligence 10 that you were aware of was that the weapons had been provided 11 by both the Russians and Americans during their support of the 12 prior regime of Siyad Barre? 13 A. No. I'm not aware of that. 14 Q. Sir, I just have a couple more questions. 15 So on October 3rd, 1993, your specific mission was to 16 arrest Aideed and/or members of his clan who were supposed to 17 be present at a particular location; is that correct? 18 A. Correct. 19 Q. And that was in response not only to the U.N. warrant, but 20 also in response to fatal ambushes that had been conducted by 21 members of his clan against United Nations personnel; isn't 22 that correct? 23 A. Correct. 24 Q. Now, sir, because of your efforts on October 3 and October 25 4, 1996, you were decorated; isn't that correct? 4447 1 A. Correct. 2 Q. And, sir, do you know the date specific on or about when 3 the United Nations and the United States troops pulled out of 4 Somalia? 5 A. Not the exact date, but it was within months after we left 6 in October. They started the withdrawal and it took a period 7 of time but they started the withdrawal within months of us 8 leaving in October. 9 Q. So it would be fair to say, as far as you knew, in 1997 10 there were no U.S. troops in Somalia; is that correct, as far 11 as you know? 12 A. As far as I know, you're correct. I have no knowledge of 13 what troops were over there. I was in the FBI in '95. 14 Q. In 1995 there were no U.S. troops in Somalia; is that 15 correct? 16 A. I'm not -- 17 Q. As far as you know. 18 A. I'm not sure. 19 Q. Unless you were involved in some sort of covert operation, 20 you wouldn't know of any? 21 A. I didn't know of any. 22 MR. WILFORD: Thank you very much. No further 23 questions. 24 THE COURT: Mr. Cohn, on behalf of Defendant 25 Al-'Owhali. 4448 1 CROSS-EXAMINATION 2 BY MR. COHN: 3 Q. Now, these Somali casualties that you referred to, 500 4 dead and a thousand wounded which was the estimate or the 5 number reported by the Red Cross, right? 6 A. Correct. 7 Q. Do you know whether or not any of the dead or wounded were 8 noncombatants? 9 A. I have no knowledge. 10 Q. Well, Mogadishu is a city of about a million and a half 11 people, right? 12 A. Correct. 13 Q. And fairly crowded conditions? 14 A. Yes. 15 Q. And in fact, at one time you referred to it as an armed 16 city; is that right? 17 A. Say again. 18 Q. You have referred to it in your own words as an armed 19 city, have you not? 20 A. Yes. 21 Q. And in fact, the words that Mr. Wilford used, "common as 22 dust mops," were your words in a debriefing that you had, 23 correct? 24 A. Not correct. 25 Q. Not correct? 4449 1 A. I think that was one of the crew member's that was being 2 interviewed with me from my crew. 3 Q. Pardon? 4 A. That was one of the other crew members of my crew that was 5 being interviewed during that time. 6 Q. I see. It's not your interview? 7 A. That is correct. 8 Q. Were you present while he was being interviewed? 9 A. Yes, I was. 10 Q. You didn't object to his use of the terms, did you? 11 A. I don't know that I understood his analogy. 12 Q. Well, you knew "as common as dust mops" was sort of a 13 derogatory kind of -- 14 MR. FITZGERALD: Objection. 15 THE COURT: Sustained. 16 Q. In any event, crowded city, armed city, and the weaponry 17 that the -- your contingent, the U.S. Army contingent, was 18 using could be characterized as weapons that were effective at 19 reasonably long-range, is that not true? 20 A. Yes, but we traditionally used close ranges to engage the 21 enemy. 22 Q. Well, I mean, and when the Blackhawks were up, were the 23 lights of surveillance helicopters also up? 24 A. Yes, there were. They were at a much higher altitude than 25 we were. 4450 1 Q. And they are in fact equipped with something called a mini 2 gun, aren't they? 3 A. Yes. 4 Q. And a mini gun fires 6,000 rounds per minute, does it not? 5 A. No. 6 Q. How many rounds per minute does it -- 7 A. 2,000 on low rate and 4,000 rounds a minute on high rate. 8 Q. Okay. It's a lot of bullets, right? 9 A. Yes, it is. 10 Q. They're large bullets; they're rifle rounds, right? 11 A. Correct. 12 Q. And at that rate of fire, pinpoint accuracy is not a high 13 priority, is it? 14 A. It's definitely a priority. 15 Q. I said a high priority. 16 A. Absolutely. It's a high priority whenever you are 17 engaging somebody. 18 Q. So these were accurate weapons that you would point at one 19 person and shoot 2,000 rounds into what's left of that person 20 after half a second? 21 A. Well, again, you're not shooting for a minute continuous, 22 but that is an area suppression weapon, you are correct, but 23 you can use it and minimize the effects of the fire with a 24 short burst. 25 Q. And with an area suppression weapon sometimes it's not 4451 1 easy to tell when you use it who are the friendlies and who 2 are the not friendlies, is it? 3 A. No, that's not correct. 4 Q. You can always tell? 5 A. We were flying at altitudes that we could tell. 6 Q. Well, they were above you, right, the helicopters with the 7 mini guns? They were up higher? 8 A. The mini birds, no, not necessarily. We tried to 9 deconflict air space and they would stay in an orbit outside 10 of the Blackhawks and a little bit above us. But again, to 11 make an engagement, they would do a gun run and they would, 12 you know, maneuver the aircraft and dive it down and engage 13 the enemy after a positive identification of what they were 14 shooting at. 15 Q. You will agree with me, will you not, that in the heat of 16 the moment, using the weaponry that was being used, that it 17 was likely that noncombatants were killed or wounded, isn't 18 that true? 19 A. I would say that, yes. It was not likely, but I'm sure 20 that there were a few noncombatants that were definitely -- 21 Q. It's a risk that was assessed by command and deemed -- 22 MR. FITZGERALD: Objection, your Honor. 23 Q. -- acceptable? 24 THE COURT: Ask him whether he knows. 25 Q. Do you know if this was a risk that would normally be 4452 1 assessed by command? 2 A. Absolutely. Command -- 3 Q. That's why you have rules of engagement, right? 4 A. Sure. 5 Q. Because you don't want innocent people hurt if it's not 6 necessary, right? 7 A. That's absolutely correct. 8 Q. But sometimes one takes a look at the risks, sees what the 9 mission is, and accepts the risk, right? 10 A. Civilian casualties are not acceptable, but unfortunately 11 they sometimes happen. 12 Q. Sometimes? 13 A. Is that what you are saying? 14 Q. I'm asking. I don't say anything, sir. Asking. 15 A. To kind of summarize exactly what happened, after 30 or 40 16 minutes or longer over the objective area, as battle is raging 17 on, people coming towards the fight are obviously coming 18 towards the fight for a reason. People -- 19 Q. Curiosity could be one of them, couldn't it? 20 MR. FITZGERALD: Objection, your Honor. Can he 21 finish the answer? 22 THE COURT: Yes. Sustained. 23 A. If you are asking me if I'm aware of any civilian 24 casualties that were sustained, I'm not directly aware of -- I 25 can assume that I'm sure there were. Of that 500 that were 4453 1 killed, were there some innocent civilians? Possibly, but I 2 don't have direct knowledge of it. 3 Q. Have you ever considered the question before this day? 4 A. Sure. 5 Q. Do you know whether any of the people who were killed were 6 women or children? 7 A. I know in fact that, you know, we saw women as ammo 8 bearers serve -- 9 Q. Sir, can you just answer the question. 10 MR. FITZGERALD: Objection. 11 A. I'm answering the question. 12 MR. COHN: Your Honor, would you instruct the witness 13 to answer the question. 14 A. I'm about to. 15 MR. COHN: The question was phrased in a way -- 16 THE COURT: You want to withdraw the question? 17 MR. COHN: No, I want an answer to it, which says, do 18 you know whether or not there were women or children killed. 19 THE COURT: You may answer that question yes or no. 20 Just yes or no. 21 A. Yes. 22 Q. And were there women and children killed? 23 A. Yes. 24 MR. COHN: Thank you. 25 THE COURT: Anything further from defendants? 4454 1 Redirect. 2 MR. FITZGERALD: Yes, Judge. 3 REDIRECT EXAMINATION 4 BY MR. FITZGERALD: 5 Q. On that last question, Agent Yacone. Did you see any of 6 the women engaging in hostile action at the U.S. troops? 7 A. Yes, absolutely, that was what I was alluding to was my 8 aircraft, we engaged a couple women that were involved in 9 resupplying rocket propeller grenades who were fed to a guy 10 that was shooting RPGs. So they were acting as ammo bearers. 11 They were also carrying weapons and shooting and it was not 12 uncommon to see a hostile, you know, male have a 13 woman in front of him kind of as a human shield and, 14 you know, engage the enemy or engage friendly troops 15 or the aircraft. 16 Q. And do the women appear to be willing shields when they do 17 this? 18 MR. COHN: Objection. 19 I'm sorry, can I have the question again? 20 THE COURT: Excuse me? 21 MR. COHN: Did they? 22 THE COURT: Could you repeat the question? 23 Q. Did the women appear to be shields against their will, 24 carrying ammo against their will? 25 MR. COHN: Objection. 4455 1 THE COURT: You can answer. 2 A. I can talk about my one engagement that I'm -- 3 MR. SCHMIDT: Your Honor, there's an objection. 4 MR. COHN: We need -- 5 THE COURT: The objection to the question, did the 6 women appear to be -- 7 MR. COHN: Willing shields, yes, I objected to that. 8 THE COURT: Well, were you able to see whether that 9 was the occasion or not? 10 MR. COHN: Your Honor, that calls for the operation 11 of somebody else's mind. 12 THE COURT: No. No. 13 Were you able to see? 14 THE WITNESS: The women that, or the one or -- the 15 one instance that I'm specifically speaking of, your Honor? 16 THE COURT: Yes. 17 THE WITNESS: The woman was carrying rocket propeller 18 warfare. She was involved in resupplying warfare and she was 19 participating, she looked like a wilful participant of what 20 was going on. 21 MR. COHN: Your Honor, it was not responsive to the 22 question. It's about being a human shield. 23 MR. FITZGERALD: I object to Mr. Cohn's remarks. 24 THE COURT: Objection is overruled. 25 Q. Now, sir, do you know if any of the Somali participants 4456 1 killed any innocent bystanders when they were shooting? 2 A. Again, I can only assume that happened, but I have no 3 personal knowledge. I didn't witness it. 4 Q. Now, you were asked questions by Mr. Wilford about whether 5 or not there were attacks by Aideed involving ambushes 6 separate and apart from October 3, 1993. Do you recall those 7 questions? 8 A. Yes. 9 MR. SCHMIDT: Objection. 10 Q. Were there also attacks on U.S. troops involving land 11 mines? 12 MR. SCHMIDT: Objection, your Honor. This was not 13 covered in cross-examination, either one of those questions. 14 THE COURT: Overruled. 15 Q. Were there also attacks by mortars? 16 A. Yes. 17 Q. Would you explain to the jury what a mortar is? 18 MR. SCHMIDT: Objection, your Honor. Let's get the 19 source of his information before he can talk about what -- 20 THE COURT: Establish the basis of the witness. 21 Q. Did you yourself witness a mortar attack on which U.S. 22 personnel was killed? 23 A. Yes. 24 Q. Tell us what happened and when. 25 A. Again, we were -- the airfield we were sitting on was 4457 1 surrounded on three sides by the City of Mogadishu where the 2 clan operated, and commonly they would set up a mortar tube, 3 which is maybe a three-foot tube with maybe a one-foot round. 4 They would drop in the tube and launch a mortar tube, mortar 5 round into the compound where they were staying, against the 6 aircraft, against the personnel that were staying at the 7 forward support base. And that would generally happen after 8 the hours of darkness where they could hide in the city. They 9 could drop a couple mortars, pick up the tube and move and get 10 away from the area where they just shot from. 11 On a few days after 3 October, we had sustained 12 mortar attacks, probably every two or three days we would get 13 mortared, and on 5 or 6 October we had our first casualty. A 14 guy named Matt Rierson was killed from a mortar round and 16 15 other people in our contingents were injured. 16 Q. And how do you know this? 17 A. I was sitting maybe 50 to 100 feet away from where the 18 round went off. 19 Q. Do you know the identities of the persons who carried out 20 the ambushes, the land mine attacks or the mortar attacks? 21 A. No. 22 Q. And do you know of the identities or nationality of the 23 people who carried out these attacks or trained people to 24 carry out these attacks? 25 A. Well, I know from the intelligence -- 4458 1 MR. WILFORD: Objection. 2 THE COURT: The answer is yes. Now ask another 3 question. 4 A. Yes. 5 Q. Mr. Wilford asked you whether or not Aideed's clan had 6 carried out ambushes against the U.S. troops. Do you know for 7 a fact one way or the other who it was that was training these 8 people how to do this? 9 MR. WILFORD: Objection. 10 THE COURT: Overruled. 11 A. Can you rephrase the question? 12 Q. My question to you, do you know if the people who trained 13 the persons who carried out their attacks, do you know if they 14 are from Aideed's clan or someone else, if you know? 15 A. We were not aware of, but we had received intelligence -- 16 MR. SCHMIDT: Objection, your Honor. 17 A. -- reports -- 18 MR. SCHMIDT: Objection. 19 THE COURT: Overruled. 20 A. We had received intelligence reports that they were 21 intercepting -- to drop a mortar round on somebody, it 22 requires a communication between the spotter, the guy talking 23 to the guy firing the mortar of where he wants the round to 24 land and then actually where it lands and he adjusts the 25 mortar round, and we were -- the U.S. was picking off radio 4459 1 transmissions in Arabic of the mortars being adjusted on the 2 airfield. 3 MR. FITZGERALD: Nothing further, Judge. 4 THE COURT: Anything further of this witness? 5 MR. SCHMIDT: Yes. 6 RECROSS-EXAMINATION 7 BY MR. SCHMIDT: 8 Q. Do you have a copy of these intelligence reports for us to 9 review, sir? 10 A. No. We were given daily briefings while we were over 11 there. 12 Q. You said that women and children were even 13 participating -- 14 THE COURT: I don't recall any testimony -- the 15 jury's recollection will control. I didn't recall anything, 16 any reference being made to children participating. 17 MR. SCHMIDT: There was and it was interrupted. I'll 18 limit myself to women. 19 Q. You said that there were women involved in assisting in 20 attacking -- or, withdrawn -- reacting to the attack by the 21 Americans, isn't that right? 22 MR. FITZGERALD: Objection to form. 23 THE COURT: Yes, sustained. 24 Q. You said that there were women who were involved in 25 reacting to the American military operation, isn't that right? 4460 1 A. I was talking about the one particular engagement that my 2 aircraft made when we spotted a woman carrying rocket 3 propeller grenades. 4 Q. Now, based on your briefings, wasn't it a fact that women 5 were not part of militias in this Muslim country? 6 MR. FITZGERALD: Objection, your Honor. 7 MR. SCHMIDT: He's allowed to talk about what his 8 briefings are. 9 THE COURT: Please don't argue. 10 Overruled. You may answer. 11 A. I'm not really sure. 12 Q. Isn't it a fact that by October 3, as a result of the Abdi 13 House attack and other attacks by U.N. and U.S. armed 14 forces -- 15 THE COURT: You are asking a question which has a 16 causal relationship to something that occurred before this 17 witness was here. You want to re-think your question? 18 MR. SCHMIDT: No, I don't, your Honor. 19 THE COURT: Very well. You may ask the question. 20 Q. As a result of the attacks -- 21 MR. FITZGERALD: I object, your Honor. 22 MR. SCHMIDT: I'll withdraw that question. 23 Q. As a result of the military operations that you were aware 24 of that occurred during the time that you were there and 25 previous to the time that you were there, the Aideed clan and 4461 1 supporters were -- felt they had to defend themselves against 2 further operations? 3 MR. WILFORD: Objection. 4 MR. FITZGERALD: Objection. 5 THE COURT: Mr. Wilford's objection is sustained. 6 Q. As to the -- I think you answered that -- withdrawn. 7 You previously testified that the militia that the 8 American troops were fighting appeared to be well-organized; 9 is that right? 10 A. As far as the enemy clan, yes, they had a rank structure. 11 Q. Were you made aware in your briefings to enable you to 12 understand your enemy that the Somali people had been at war 13 with each other for a number of years before the U.N. and the 14 U.S. troops arrived? 15 A. Yes. 16 Q. And that they had been fighting and killing each other 17 during the years before the Americans had arrived? 18 A. Yes. 19 Q. And that they were doing that with AK-47s, RPGs, and other 20 weapons? 21 A. Yes. 22 Q. And that every militia group in the Mogadishu area had a 23 very large amount of weapons? 24 A. No. 25 MR. FITZGERALD: Objection to form. 4462 1 Q. You said that there was a mortar attack on the base 2 October 5th and 6th; is that correct? 3 A. It was either the 5th or the 6th. 4 Q. Those were the last American casualties in Somalia, isn't 5 that right? 6 A. I'm not sure of that. From my Unit Task Force Ranger that 7 was over there, yes. 8 Q. When did you leave? 9 A. Mid to late October. 10 Q. When did the rest of the U.S. -- withdrawn. The rest of 11 the U.S. troops you testified left within months after that 12 attack; is that correct? 13 A. That was when they started the withdrawal, but I'm not 14 sure when the final American troops were pulled out. 15 Q. And is it fair to say you know of no other American 16 casualty in Somalia since October 6th of 1993, is that 17 correct? 18 A. I have no idea, no. 19 Q. It's correct that you have no knowledge? 20 A. That is correct. 21 Q. Did you remain in service after you left Somalia? 22 A. Yes. 23 Q. For how long did you remain in service? 24 A. I left there, again, October '93 and I got out of the army 25 in February '95 and right into the FBI. 4463 1 MR. SCHMIDT: I have no further questions of this 2 witness. 3 THE COURT: Anything further of this witness? 4 MR. WILFORD: Yes, your Honor. 5 THE COURT: Mr. Wilford. 6 RECROSS-EXAMINATION 7 BY MR. WILFORD: 8 Q. Agent Yacone, while you were in Somalia, did you hear 9 people speaking a variety of languages? 10 A. We really didn't interact much with the people outside the 11 airport, so, no. I mean, I wasn't really aware of any other 12 languages other than, you know, the people speaking Somali. 13 Q. You were speaking English -- 14 I'm sorry, were you finished? 15 A. Again, I was going to say that I don't know that I would 16 personally be able to differentiate between Somalian and 17 another language. I don't know the language that well. 18 Q. But you were speaking English; is that correct? 19 A. Correct. 20 Q. And you said that you had some intelligence about Arabic; 21 is that correct? 22 A. That is correct. 23 Q. And there's also the native language of Somalia; isn't 24 that correct? 25 A. Correct. 4464 1 Q. So they had at least three languages that were being 2 spoken; is that correct? 3 A. Yes. 4 Q. At least three? 5 A. That I was aware of. 6 Q. Sir, do you know that the second language in Somalia is 7 Arabic, do you know that? 8 A. I didn't know that, no. 9 Q. Sir, you mentioned -- or, withdrawn. You were asked some 10 questions about training. Remember those questions by Mr. 11 Fitzgerald? 12 A. Which ones that referred to training? 13 Q. About Aideed's group. 14 Well, do you remember being asked the question about 15 who was training Aideed's group, if you knew? 16 A. I'm not really sure. 17 Q. You're not really sure if you remember the question? 18 A. No, I'm not really sure who was training Aideed's group. 19 Q. And you weren't even sure that Aideed's group was being 20 trained by someone else, isn't that fair? 21 A. The reason why I remember about the Arabic intercepts of 22 Intel being given to us was because that was thought to be 23 unique, the fact that we were picking up Arabic, adjusting 24 mortar rounds on us, so that led the Intel briefing to say, 25 hey, there may be other people here training Aideed's clan. 4465 1 Q. Okay. Now, that's what Intel said, right? 2 A. That is correct. 3 Q. But you don't know for a fact and Intel didn't know for a 4 fact whether or not the Arabic that was being spoken was being 5 spoken by Somalians? 6 A. Correct. 7 Q. You don't know for a fact whether or not someone else, and 8 Intel did not know for a fact whether someone else who was not 9 Somalian was engaged in training Aideed's people; is that 10 correct? 11 A. I have no knowledge of that. I can't tell you the total 12 extent -- I was not privy to all that the intelligence 13 officers were aware of, but from what I was briefed, I was not 14 aware. 15 Q. And there's nothing that you are aware of, sir, that is 16 inherent in the fact of being Somalian that would prevent you 17 from being able to speak another language, is there? 18 A. No. 19 Q. And there's nothing inherent about being Somalian that 20 would prevent you from being able to learn how to shoot a 21 weapon or be trained by another Somalian; is that correct? 22 A. Correct. 23 Q. Particularly around Mogadishu, is that correct, when we 24 talk about all these weapons being available? 25 A. Correct. 4466 1 MR. WILFORD: Thank you. Nothing further. 2 THE COURT: Anything further of this witness? 3 MR. FITZGERALD: No, Judge. 4 MR. COHN: Not from me. 5 THE COURT: Very well, sir. Thank you. You may step 6 down. 7 (Witness excused) 8 THE COURT: Anything further from the government? 9 MR. FITZGERALD: No, Judge. 10 THE COURT: Government rests? 11 MR. FITZGERALD: Yes, Judge. 12 THE COURT: Government rests. 13 Mr. Schmidt. 14 Mr. Dratel. 15 MR. SCHMIDT: Your Honor, there is an application 16 that I would like to make at this point outside of the jury. 17 MR. WILFORD: I'm sorry, your Honor. I didn't hear 18 Mr. Schmidt. 19 THE COURT: He has an application he wishes to make 20 outside the jury. 21 Can we reserve on that until after 1:00 with the same 22 force and effect as if made at this time? 23 MR. SCHMIDT: Then no problem, your Honor. Thank 24 you. Yes. 25 THE COURT: El Hage may call its next witness. 4467 1 MR. COHN: Your Honor, I think we need a personal 2 break. 3 THE COURT: Excuse me? 4 MR. COHN: We need a personal break at the defense 5 table. 6 THE COURT: Personal break? 7 MR. COHN: I'm sorry. 8 THE COURT: We will take a recess at this time. 9 (Jury not present) 10 THE COURT: Mr. Schmidt. 11 MR. SCHMIDT: Your Honor, at this time I'm moving for 12 a mistrial. This witness testified as to intelligence that he 13 has given. One, I do not believe that the door was open for 14 him to testify as to intelligence that they heard Arabic 15 speakers on the mortar attack. 16 Secondly, we don't have access to intelligence 17 reports and we don't know exactly what the intelligence 18 reports say that would rebut the inference that the government 19 wants to draw based on that testimony. 20 THE COURT: Wait. It was defense counsel who sought 21 to elicit this witness's understanding and his perception of 22 these events. There was no need for such questioning. This 23 witness's state of mind with respect to or knowledge with 24 respect to such matters as who carried on the attacks, who 25 trained the attackers -- 4468 1 I withdraw the previous comments. 2 Your motion for a mistrial is based on the witness's 3 testimony that he had received intelligence reports; that 4 intelligence reports indicated that communications were 5 overheard in Arabic, causing the adjustment of mortar fire. 6 Is that the basis of your motion? 7 MR. SCHMIDT: That indeed is the basis, that 8 testimony, and it's a twofold objection and application as a 9 result of that testimony. 10 THE COURT: Yes. 11 MR. SCHMIDT: First was that it was improper to come 12 out in that manner, being intelligence, and the lack of 13 relevance to mortar fire and unrelated to not only the October 14 3 and 4th incident but any other mission that they went on. 15 It was not relevant at all and it was only done for the 16 purpose of them eliciting the Arabic language. 17 Secondly, the second basis is that it refers to 18 material that we do not have access to, we cannot challenge, 19 we have no way of testing, we don't know whether it as 20 accurate. 21 THE COURT: I think it was rather effectively dealt 22 with on the cross-examination by Mr. Wilford, but go ahead. 23 MR. SCHMIDT: Well, Mr. Wilford indeed effectively 24 dealt with it as best as any defense attorney could do. 25 However, that doesn't eliminate the fact that it is now out 4469 1 there based on double, triple or quadruple hearsay, in a 2 report that are known for not being terribly accurate, and 3 that we have no access for that there were Arabic people 4 speaking and helping place mortars. That, I think, should not 5 have been there. There was no basis it being there. 6 There are numerous conversations that I have had with 7 personnel involved with Somalia, and they can say there was no 8 intelligence report indicating anything to do with Bin Laden 9 or Afghan Arabs or his group, and that would be totally 10 hearsay; it would be useless and improper for me to bring that 11 out. If the government can bring that out, then I guess am I 12 allowed to bring out a witness who can then say intelligence 13 reports indicated no direction from Bin Laden, al Qaeda, or 14 Afghan Arabs at all. 15 THE COURT: Why would you be precluded from doing it? 16 MR. SCHMIDT: I don't have access to intelligence 17 reports. That's double, triple, quadruple hearsay. You don't 18 know what the basis is of those reports and, as your Honor is 19 well aware of and the media is well aware of, that 20 intelligence reports give out information no matter what the 21 source is and there is no way that that information can pass 22 the reliability test unless we know the source of that 23 information. So there is no way that that should come in, 24 especially when we don't even have access to it. 25 THE COURT: Mr. Fitzgerald, you you want to respond? 4470 1 MR. FITZGERALD: Yes. First of all, Judge, it was 2 defense counsel who opened the door as to what this witness 3 was briefed on, what he had been told about what the dangers 4 were, what he expected. This witness basically talked about 5 the events of a single day, on October 3 to 4th, on direct. 6 Then, on cross-examination, is what were you 7 debriefed upon, what you might expect, what kind of danger was 8 there, who was armed, what weapons are common, what kinds of 9 weapons are they, where did they come from, where we were they 10 supplied and what was the response to these attacks, and built 11 into the questions was the implication all of the people 12 involved in attacks on U.S. troops were Somali and Aideed and 13 were trying to establish whether he does not know whether they 14 were Somali or Aideed. 15 But they opened the door and asked this witness. No 16 one objected when he said this is what I had heard from the 17 media, this is what he was briefed on. When they get an 18 answer they don't like, suddenly the hearsay rule kicks in. I 19 think the motion for mistrial should be denied. 20 MR. SCHMIDT: Your Honor, there's a difference 21 between -- 22 THE COURT: I've heard sufficient argument. 23 Mr. Cohn, briefly. 24 MR. COHN: We join the motion. 25 THE COURT: Yes, the motion is denied. Let's bring 4471 1 the jury back in. 2 The jury's lunch is here. We're adjourned until 3 2:00. 4 MR. SCHMIDT: Your Honor, my second application is to 5 obtain all the briefing reports received by or the 6 intelligence reports received by this witness and I can 7 cross-examine him about those reports. 8 MR. FITZGERALD: Your Honor, you don't get discovery 9 by walking in on cross into, what's your intelligence, and 10 then coming back and saying, now I don't like the answer, so 11 hand it all over eight years after the fact. 12 THE COURT: Denied. 13 We're adjourned. 14 MR. SCHMIDT: I did not walk into that. 15 THE COURT: We are adjourned until 2:00. 16 Please don't argue with each other. 17 We're adjourned until 2:00. 18 (Luncheon recess) 19 20 21 22 23 24 25 4472 1 A F T E R N O O N S E S S I O N 2 2:00 p.m. 3 (In open court; jury not present) 4 THE COURT: Have you had an opportunity to discuss 5 with your client the proposed allocution? 6 MR. RUHNKE: Yes, your Honor, we discussed it with my 7 co-counsel. We do object to the allocution part. 8 MR. BAUGH: Your Honor, they can't hear. 9 MR. RUHNKE: The microphones here are not. 10 THE INTERPRETER: The system is not on right now. 11 MR. RUHNKE: Initially I had lodged no objection to 12 your Honor having a colloquy with the client about this issue. 13 This is basically an issue of trial strategy. 14 THE COURT: It may very well be during the first 15 phase of this case the defendant Al-'Owhali may see fit to 16 draw comparisons between himself and other defendants such as 17 your client. Material may be introduced at the first trial 18 which inculpates Mr. Mohamed. Mr. Mohamed by agreeing to two 19 trials gives up the right to participate during such a 20 proceeding, to raise objections, to be represented. The 21 decision whether or not to seek bifurcation, I agree is a 22 lawyer's decision to make in the first instance, but unless 23 your client is prepared to allocute to his conscious foregoing 24 of the right to participate with respect to the Al-'Owhali 25 death sentence proceeding, I won't grant it. 4473 1 MR. RUHNKE: Your Honor, if that's the price to pay, 2 obviously, we believe that separate penalty phases are very 3 very much in my client's best interest, if your Honor is 4 saying you will allocute the client over objection. 5 THE COURT: I don't understand your objection. What 6 is the objection? 7 MR. RUHNKE: The objection is that as a matter of 8 trial strategy and the sort of practice where the Court simply 9 allocutes a client after the government asks them to do so, 10 that the Court allocute a client on decisions that lawyers are 11 making, intrudes in the lawyer-client relationship. 12 THE COURT: I will allocute the standard procedure. 13 I've already done it with respect to Mr. Odeh, and I will do 14 it with respect to the other defendants, if they elect not to 15 testify, and that's because they will be giving up a very 16 fundamental right, and history and experience has told us that 17 often there is an attempt to second guess that decision. I 18 can't distinguish that from foregoing the right to participate 19 at the trial of a codefendant before the same jury where many 20 of the same issues will be presented. 21 MR. RUHNKE: Your Honor, we've made our position 22 clear. If your Honor wishes to inquire of Mr. Mohamed, he is 23 here. We've discussed this matter with him thoroughly all 24 along. We certainly are not going to have an objection 25 standing in the way of there not being separate penalty 4474 1 phases. 2 THE COURT: Mr. Mohamed, your lawyer -- can you hear 3 me? Is it being translated? Do you understand what I'm 4 saying. The defendant is nodding his head yes. 5 Do you understand that if you are convicted of 6 certain crime, and if Mr. Al-'Owhali is convicted of certain 7 crime there will be a subsequent proceeding in which the jury 8 will hear evidence and the arguments of counsel concerning 9 whether the sentence to be imposed is a sentence of death or 10 of life imprisonment without possibility of parole? Do you 11 understand that? 12 DEFENDANT MOHAMED: (Nods head) 13 THE COURT: The defendant is nodding his head yes. 14 Your attorney has requested that there be two separate trials 15 rather than a jury trial of yourself and Mr. Al-'Owhali, and 16 that Mr. Al-'Owhali's death sentence trial go first. You 17 understand that? 18 DEFENDANT MOHAMED: (Nods head) 19 THE COURT: Do you understand that if I agree to 20 separate the two trials that you will not be able to 21 participate either directly or through your attorney in the 22 Al-'Owhali death sentence trial? 23 DEFENDANT MOHAMED: Yes. 24 THE COURT: You understand that. Do you understand 25 that at that trial evidence may be introduced and arguments 4475 1 may be made on behalf of Mr. Al-'Owhali which may be against 2 your interests. Do you understand that? 3 DEFENDANT MOHAMED: Yes. 4 THE COURT: And that will be made to the same jury as 5 the jury that will later sit on the trial to determine whether 6 or not you should receive the death sentence or life 7 imprisonment. Do you understand that? 8 DEFENDANT MOHAMED: Yes. 9 THE COURT: And you understand then that you will 10 have no opportunity at that first, at the 'Owhali trial to 11 bring out evidence or to argue to the jury on your behalf? 12 You understand that? 13 DEFENDANT MOHAMED: Yes. 14 THE COURT: And is that agreeable to you? 15 DEFENDANT MOHAMED: Yes, it is. 16 THE COURT: You understand that you have the right to 17 say no, if there is going to be evidence introduced before 18 this jury with respect to me, or any of the issues that affect 19 me I want to participate and I want my lawyer to participate. 20 You understand that you have that right? 21 (Pause) 22 DEFENDANT MOHAMED: Yes. 23 THE COURT: And what is your wish in this regard? 24 DEFENDANT MOHAMED: Separate this trial. 25 THE COURT: Anything further by way of allocution? 4476 1 MR. FITZGERALD: No, thank you. 2 MR. COHN: Your Honor, just before you address the 3 jury on this issue, I'd like to be heard again sometime. If 4 you want to do it now. 5 THE COURT: I was going to do at the end of the day. 6 MR. COHN: That's why I'm alerting the Court now that 7 at sometime convenient to the Court and jury. 8 THE COURT: How about now? 9 MR. COHN: That's fine. 10 THE COURT: Go ahead. What is it you want to say? 11 MR. COHN: I have been thinking about the McVeigh 12 issue and I am convinced that the Court in dismissing the 13 Shepherd issue is being uncharacteristically short sighted; 14 that the Court may think of this as a partisan issue, but in 15 fact it's not. I mean I can conceive of away of looking at 16 the McVeigh execution that would repel any sane person as a 17 circus and make them opposed to the death penalty. 18 On the other hand, I think that is unlikely. There 19 is no way for us to tell, and were this another time in the 20 trial I would ask the Court for funds to commission a study, 21 something which I think the Court, given at this point, would 22 not be happy with. I suggest respectfully that the Court 23 commission its own study as to the anticipated effect of the 24 McVeigh execution and what, I short circuit a long 25 dissertation by saying, the circus surrounding it as it 4477 1 affects the jury. 2 THE COURT: Therefore, what would you have the Court 3 do? 4 MR. COHN: Well, I think the Court should not 5 immediately assume that a jury that is -- 6 THE COURT: Don't tell me what I shouldn't do. Tell 7 me what it is that you want the Court do. 8 MR. COHN: I want the Court to hire an expert 9 suggested by all sides to determine whether or not this jury 10 can ignore the McVeigh execution and the impact that it may 11 have with the ultimate view of delaying, of potentially 12 delaying the penalty phase for some months. 13 I think Shepherd is in fact terribly apt, not inapt 14 and that there is no way -- 15 THE COURT: Tell me how Shepherd relates to this 16 case. 17 MR. COHN: Shepherd says that there was no way of 18 circumventing publicity at that time and the case should have 19 been postponed forever. 20 THE COURT: With respect to Shepherd. 21 MR. COHN: That's right. And I'm telling the 22 Court -- 23 THE COURT: Denied. Let's bring in the jury, please. 24 MR. COHN: Great. 25 THE COURT: Who is the next witness. 4478 1 MR. DRATEL: Dr. Samatar, your Honor. 2 THE COURT: He may take the stand. Doctor, if you 3 just have a seat over here for a moment. 4 It's my intention to have a charging conference this 5 afternoon, take as long as it takes and to go over the charge 6 line by line and page by page dealing with the objections and 7 other issues. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4479 1 (Jury present) 2 THE COURT: We're now back on the case on behalf of 3 the defendant El Hage. Mr. Dratel, you may call your next 4 witness. 5 MR. DRATEL: Thank you, your Honor, Dr. Abdi Samatar. 6 ABDI ISMAEL SAMATAR, 7 called as a witness by the defendant, 8 having been duly sworn, testified as follows: 9 DIRECT EXAMINATION 10 BY MR. DRATEL: 11 Q. Dr. Samatar, good afternoon. 12 A. Good afternoon. 13 Q. Where were you born? 14 A. I was born in a country called Dijbouti in East Africa. 15 MR. DRATEL: If we could display El Hage E3 to 16 counsel and the witness, please. 17 -- E2, I'm sorry. 18 MR. FITZGERALD: We won't object if he wants to offer 19 it in evidence. 20 MR. DRATEL: I would move it into evidence. 21 THE COURT: Received. 22 (Defendant's Exhibit E2 received in evidence) 23 MR. DRATEL: It's on its side. Turn it around. 24 Q. Is that a map of Somalia and Dijbouti? 25 A. That's a map of Somalia, Kenya, Ethopia and Dijbouti. 4480 1 MR. DRATEL: I move it in evidence, your Honor. 2 MR. FITZGERALD: No objection. 3 THE COURT: Received. 4 MR. DRATEL: If we can publish it to the jury, 5 please. 6 Q. Would you point out Dijbouti? 7 A. Dijbouti's in the northeast corner. 8 Q. Just turning to the coloring, the yellow part is Somalia, 9 is that correct? 10 A. It seems like yellow color is Somalia. 11 THE COURT: It's the very, very top of the map. 12 THE WITNESS: That's correct. 13 Q. Right where the yellow part is in the top left that would 14 be Dijbouti. That's where you were born? 15 A. That's where I was born, right. 16 Q. And what citizenship do you hold? 17 A. I'm an American citizen. 18 Q. And what is the highest degree that you've received? 19 A. I have received a doctoral of philosophy from the 20 University of California. 21 Q. In what specialized area? 22 A. I'm a geographer specializing in development studies and 23 world development. 24 Q. What was the topic of your thesis, your doctoral thesis? 25 A. The topic of my doctoral thesis was on Somalia. 4481 1 Q. And you also hold a masters degree? 2 A. I have a master's degree in community and regional 3 planning. 4 Q. And from what institution? 5 A. Iowa State University in Iowa. 6 Q. And you have a bachelors degree as well? 7 A. I have a bachelors degree in geography and economics from 8 the University of Wisconsin. 9 Q. What is your current employment? 10 A. I was just promoted to a professor at the University of 11 Minnesota. 12 Q. It's Professor of geography? 13 A. Geography. 14 Q. Have you written on Somalia? Have you written about 15 Somalia in academic journals? 16 A. I have a book published by the University of Wisconsin 17 Press which was published in 1989, and then I have something 18 in the order of about 17, 18 articles on international 19 academic journals on Somalia. 20 Q. And have you, have you been to Somalia? 21 A. I go to Somalia every year and I was there in last August. 22 Q. And have you ever been consulted by the United States 23 State Department with respect to Somalia? 24 A. I was brought as a member of a committee in 1992 before 25 the American troops were sent to Somalia as part of the United 4482 1 Nations. 2 Q. And the purpose of your being -- what was the purpose of 3 your consultation with the State Department? 4 A. The purpose of the consultation was to inform and educate 5 our officers in that place, in Washington, about the 6 conditions in Somalia at the time. 7 Q. And have you previously been qualified as an expert on 8 Somalia in court? 9 A. Yes. I have numerous occasions maybe in the order of 10 about ten times as an expert witness on asylum cases in the 11 United States. 12 Q. That would be immigration cases? 13 A. Immigration cases. 14 Q. And what languages do you speak? 15 A. I speak English apparently, Somali, Arabic and a couple of 16 other local languages in East Africa. 17 Q. And is Somalia included in your curriculum as a professor? 18 A. Yes. I don't teach any course on Somalia, but in many of 19 the courses I teach usually for or five a year, parts of the 20 reading deal in Somalia. 21 Q. In addition, have you had grants or appointments that 22 relate to Somalia and the area around Somalia whether it is 23 Ethopia or Dijbouti? 24 A. Yes. I had a grant in 1986 from something called the 25 Social Science Research Council based here in New York to do 4483 1 work in marketing in Somalia. I had a grant from the World 2 Bank in Washington to do studies in Somalia, Mogadishu upper 3 and lower Somalia, and I have a few others over the years. 4 Q. Anything in Ethiopia? 5 A. I was in Ethiopia as a US government Fulbright scholar in 6 1999. 7 MR. DRATEL: Your Honor, I would move to have 8 Mr. Samatar qualified as an expert at this time. 9 MR. FITZGERALD: No objection. 10 THE COURT: He may so testify. 11 MR. DRATEL: Thank you, your Honor. 12 Q. Now, just getting back to language for a moment, is Arabic 13 spoken in Somalia? 14 A. Arabic is spoken, not as sort of everyday language, but 15 it's taught in schools. Every child who goes to public 16 schools from grade one on. 17 Q. And how about in Mogadishu itself, the capital city? 18 A. Mogadishu when Somalia became independent in 1960 three 19 languages were used by the government of Somalia, Brit -- 20 English. I almost said British. But English, Italian, 21 because one region of the country was a British colony and the 22 other part of the country was an Italian colony, and then 23 Arabic was the third language used by government in official 24 circles. 25 Q. Was Somalia a written language at that time? 4484 1 A. No, it wasn't until 19770-71. 2 Q. And was there a particular language -- withdrawn. Was 3 Arabic a language that might be used in the Somali military? 4 A. Yes, quite a number of Somali officers were trained in 5 places like Syria, Egypt, Libya, and I believe Iraq as well. 6 So for them to be trained there they need to speak Arabic. 7 Q. Thank you. 8 If we could go back to E2. That's on the screen. 9 Somalia is the area that yellow rather than green? 10 A. Correct. 11 Q. And can you tell us what it borders on in terms of body of 12 water? What Somalia borders in terms of bodies of water? 13 A. Indian Ocean and the Gulf of Aden. 14 Q. And the Indian Ocean would be to the east? 15 A. Indian Ocean be to the east. The Gulf of Aden will be 16 north. 17 Q. Thank you. 18 If we could put E3 the small box of E3 if we could 19 display that, please, publishing it to the witness and to 20 counsel. 21 Dr. Samatar, do you see the square in that frame? 22 A. Yes, I do. 23 Q. Is that the a representation of Somalia superimposed on 24 the United States? 25 A. On the eastern part of the United States. 4485 1 Q. Is that a fair and accurate representation of the amount 2 of territory that Somalia covers in comparison with the United 3 States? 4 A. I have seen this map before and it seems like that. 5 MR. DRATEL: I move it in evidence your Honor. 6 MR. FITZGERALD: No objection. 7 THE COURT: Received. 8 (Defendant's Exhibit E3 received in evidence) 9 Q. Just so the jury is aware, the red part is Somalia 10 superimposed on to the eastern part of the United States, 11 correct? 12 A. That's correct. 13 Q. And the southern part goes as far as Tallahassee, Florida? 14 A. That's correct. 15 Q. The northeastern part goes north of Albany into Vermont; 16 is that correct? 17 A. That's correct. 18 Q. And the western part goes as far west as Kalamazoo, 19 Michigan? 20 A. Yes. 21 Q. And also just in terms -- 22 A. If I may just correct there. It doesn't go to Kalamazoo. 23 Dijbouti is where Kalamazoo is. Somalia would be sort of 24 eastern part of Michigan. 25 Q. Thank you. 4486 1 With respect to just in terms of scale a country such 2 as Sudan in Africa, compared to the United States, what is the 3 land mass of the Sudan? 4 A. Area of the Sudan is about 980,00 square miles which is 5 about the area of the United States east of the Mississippi 6 River. 7 Q. That's the country of Sudan? 8 A. Sudan, correct. 9 Q. And if you could, Dr. Samatar, apparently you need to 10 speak louder or to move the microphone closer to you if it's 11 possible or move closer to the microphone. Thank you. 12 If we could get E2 back up, please. Thank you. 13 Actually, that's just, if you can move it up just up 14 a little bit, and then a little bit to the right. That's 15 perfect. 16 If we could just look at the map and can you tell us 17 looking at the left border of Somalia, the western border of 18 Somalia at the bottom there what country is to the left there? 19 A. Ethopia and Kenya. 20 Q. If you could identify for us the Gedo region of Somalia, 21 G-E-D-O. Is that listed on the map? 22 A. That's listed on the map and it's the northwest of that 23 part of Somalia. 24 Q. But what part of Somalia would that be? 25 A. In terms of the totality of Somalia in terms of area you 4487 1 mean? 2 Q. Yes. What geographic region would Gedo be in Somalia? 3 How would you describe it? 4 A. Gedo is the name of administrative province. 5 Q. What part of Somalia is it in? 6 A. Southern Somalia. 7 Q. And just so we can identify some towns that are in the 8 Gedo area there is Luuq, is that correct? 9 A. That's correct. 10 Q. And on the border of Kenya is El Wak? 11 A. That's correct. 12 Q. And just over the border into Kenya is Mandera? 13 A. That's correct. 14 Q. And could you also point out to us where the town of 15 Baidea is? 16 A. Baidea is in the region of bay, B-A-Y. It's the central 17 town spelled as D-A-I-D-O-A. 18 Q. That would be to the right of Gedo is that the area? 19 A. It would be to the right of Gedo to the southeast of Gedo. 20 Q. And the town of Belahowa, can you tell us where that would 21 be located? 22 A. It's not shown on the map, but it will be sort of 23 northwest of Garbahaarey, directly southwest of Luuq on the 24 border. 25 Q. So Garbahaarey is right there in the middle of Gedo? 4488 1 A. Yes. 2 Q. Belahow will be west of that? 3 A. Belahow will be west on the Kenya border. 4 Q. The distance from Mogadishu if you know? 5 A. A little over six hundred kilometers. 6 Q. That would be four hundred miles? 7 A. About four hundred miles. 8 Q. Thank you. 9 If we could also point out Kissmayo? 10 A. Yes, Kissmayo is on the Indian Ocean. It's the last large 11 major city in the south on the Jubbada Hoose. 12 Q. It's the last city on the map on the bottom on the coast? 13 A. That's correct. 14 Q. And up the coast is Mogadishu, correct? 15 A. Yes. 16 Q. And Mogadishu is the capital city? 17 A. The former capital of former Somalia. 18 Q. Now, in terms of Somalis as an ethnic group, is that 19 confined just to the country of Somalia? 20 A. No, Somalis live in Kenya, in the northeast province of 21 Kenya, in two areas of Ethopia called the Ogaden and the Haud, 22 and in Dijbouti and then of course in Somalia proper south. 23 Q. And is Somalia the country a state that was created out of 24 two colonial entities? 25 A. Somalia was created out of former British Somaliland and 4489 1 former Italian Somaliland. 2 Q. So it doesn't necessarily encompass the entirety of the 3 Somali people? 4 A. Not at all. 5 Q. If we could show the entire, actually, if we can just show 6 a little bit north. Good. Thank you. 7 If we can look at the map again, Doctor. the border 8 between Somalia and Ethopia? 9 A. Yes. 10 Q. If you look at the part that's on an angle a straight line 11 essentially on an angle southwest to northeast, if you can 12 read what's written there along that broken line? 13 A. Provisional administrative line is what's written up 14 there. 15 Q. The provisional administrative line means what? 16 A. That's a boundary that has not been fixed and recognized 17 by both countries. 18 Q. Either Ethopia or the former Somalia? 19 A. Ethopia I think recognizes it. Somalia did not. 20 Q. If we could show the entire map again, please. 21 When we're talking about, the people talk about 22 northern Somalia generally what part of the country are they 23 referring to? 24 A. Conventional northern Somalia is that part which used to 25 be a British colony. That's to the south of the Gulf of Aden. 4490 1 And there is the Ethopia sitting, if you may, or just sitting 2 between southern Somalia and northern Somalia. 3 Q. So that everything below that would be considered southern 4 Somalia? 5 A. Southern Somalia will be all the way from the extreme 6 northeast of the horn to sort of south of Kissmayo. 7 Q. Thank you. And is Somalia an Islamic country or Islamic 8 land? 9 A. Most of the statistics that we know of suggest that 10 anywhere up to 95 to 97 percent are Muslims. 11 Q. And how long has that been the case? Not in terms of 12 proportion, but when did Somalis become Muslim? 13 A. Almost seventh to eighty years under the Prophet's 14 pilgrimage to Medina. 15 Q. What century would you put that in? 16 A. 7th century. 17 Q. Thank you. 18 Now, Somalia became a nation when? 19 A. 1960, a nation state. 20 Q. An independent state? 21 A. That's correct. 22 Q. And what type of government did it have? 23 A. Once British and Italian Somaliland became the Somalia 24 Republic in 1960 they had a parliamentary democracy. 25 Q. How long did that last? 4491 1 A. Between 1960 and 1969, for nine years. 2 Q. What happened in 1969? 3 A. The military took over and denounced the Constitution, and 4 disbanded the parliament. 5 Q. Who was the military leader? 6 A. The military leader was General Muhamed Seyad Barre. 7 Q. Can you spell that for us, please? 8 A. Last name is B-A-R-R-E. 9 Q. And how long did his rule last? 10 A. From 1969 to 1990. 11 Q. And at the time that his rule ended what was the 12 condition, the political condition in Somalia? 13 A. All political authority broke down, civil institutions 14 collapsed, and public order was history. 15 Q. And what power, where was power vested at that time? 16 A. At that point power was vested in small groups of 17 warlords, both in the north and in the south of the country. 18 Q. And describe what you mean by warlords? 19 A. Warlords are former military people who are able to access 20 guns and ammunitions from government stores and then who claim 21 to control territory without any elections, without the rule 22 of law, and their only source of legitimacy was the power of 23 their gun. 24 Q. When you say military people, they were former Somalia 25 military? 4492 1 A. Somali military people. 2 Q. With respect to the Somali military during the Barre 3 regime was Somalia aligned with any particular country or 4 countries over that period of time? 5 A. Somalia had several allies over the years. From 1964 to 6 1978 it was allied with the former Soviet Union. After 1978 7 and the defeat of the Somali troops in Ethopia, Somalia leaned 8 westwards and became an ally of the United States. 9 Q. So did Somalia, did the government of Somalia the former 10 state of Somalia, and the military receive arms during that 11 period from both the Soviet Union and then from the United 12 States? 13 A. Correct. 14 Q. And was one of the warlords who commanded a militia during 15 the period when the Barre regime was deposed was that Mohammed 16 Fara Aideed? 17 A. That's correct. Probably the strongest one of them all. 18 Q. And can you tell us a little bit about him? 19 A. Aideed was military man who wasn't in good friendship with 20 Sayed Barre, the General who commanded the country. He was 21 removed from the military and posted as an ambassador overseas 22 for a while and then he came back as things began to fall 23 apart and created his own militia and then ultimately he was 24 the General who chased Barre out of Mogadishu and out of the 25 country. 4493 1 Q. And when did that occur? 2 A. Which one? 3 Q. The last part the chasing, well, actually first chasing 4 Barre out of Mogadishu? 5 A. 1991, early '91 January to be precise, and later on in 6 1992. 7 Q. And Gen. Aideed would he be described as Islamist or an 8 Islamic activist in any way? 9 A. I have never heard that before today. 10 Q. So it's yes or no? 11 A. No. 12 Q. Do you know if Aideed -- 13 A. That doesn't mean he wasn't a Muslim person, but he was an 14 Islamic political person, that he was a military man. 15 Q. And he was never identified as such? 16 A. No. 17 Q. Do you know if Gen. Aideed ever held a position in the 18 government of either Barre or previous government? 19 A. He was an ambassador and a General in the Army of the 20 Barre regime. 21 Q. Was he ambassador to Egypt, do you know? 22 A. I'm not sure whether he was an ambassador to Egypt or 23 Pakistan. 24 Q. Thank you. 25 And would Barre be classified politically as an 4494 1 Islamist either? 2 A. In fact, he was, the public thought of him as a 3 non-Islamic person because his government shot ten religious 4 people in the early part of 1970's because they came against 5 his sort of a stipulation of a new decree which said that 6 woman could divorce men, which was a first in that country's 7 history. And these who opposed him which was led by Mullahs 8 or Islamic men were beheaded or shot in Mogadishu. 9 Q. And when Gen. Aideed chased Barre from the capital from 10 Mogadishu, where did Barre flee to? 11 A. If you look at the map he went to Baieda first, and then 12 ultimately Gedo region. 13 Q. If we could focus on the Gedo region which is the 14 southwest part of the map. 15 A. There is a paved road and there are aren't too many paved 16 roads in Somalia that runs from Mogadishu to Baieda on a red 17 line, and that's the road he took. In part Baieda used to be 18 a major military base of the Somali Army and the Air Force had 19 a airport in Baieda. That's where he went. 20 Q. What was the response of Gen. Aideed when Barre moved to 21 Baidea? 22 A. Aideed wanted to pursue, but he first wanted to 23 consolidate his power in Mogadishu, and there were a number of 24 political deals that he attempted which didn't work, but he 25 moved against Barre. Barre tried to come back from Mogadishu 4495 1 and he was almost captured in a town just outside Mogadishu 2 called Afigoy, and then he fled back to Baieda and then to 3 Gedo region. 4 Q. What was the effect on the populace in the Gedo region 5 when Aideed and Barre were in conflict during this time 6 period? 7 A. The general population was caught in the middle of that 8 conflict or tussle, and large number of people began to get 9 access to weapons, not only in Gedo but across the country. 10 Once the civil and the political order and authority 11 collapsed, people didn't have anybody to protect them, so 12 people either bought or somehow got access to former military 13 weaponry. 14 Q. Just again, the time period that this is occurring? 15 A. This is anywhere from late 1990 to 1992 and thereafter. 16 Q. And in terms of resources, other resources, not just 17 weapons, but food and daily resources for sufficiency 18 purposes, was there any impact of this fighting on that to the 19 populace, particularly in the Gedo region? 20 A. Unlike the United States, for instance, if I may sort of 21 use that comparison, there isn't a great deal of food in 22 storage that you can have if the crops fail this year, nor 23 people had a lot of money in which they can use to import and 24 access foods. So if cropping failed one season, and there was 25 nothing in the next season you could almost invariably expect 4496 1 famine and once farmers were terrorized by idea and other sort 2 of warlords and marauding gangs, most of the people became 3 vulnerable to famine and in the end thousands of them died 4 because of that. 5 Q. Also did Aideed attack ultimately Baidea and Barre in 6 Baieda? 7 A. He attack by Baieda, captured Bidaua and then went after 8 Sayed Barre until Sayed Barre left the country for Kenya. 9 Q. The time period would be? 10 A. This was in 1992. 11 Q. And during this period of time or towards the end, at the 12 time when the fighting is going on in Gedo, were there groups 13 within Gedo that were looking to establish some sort of order? 14 A. Aideed's rule in Gedo was not firm and sort of a fighting 15 militias ran back and forth. Most people began to see that 16 neither Sayed Barre groups nor Aideed really had the people's 17 interest in mind or at heart as people began to starve in 18 large numbers. And so it wasn't only in Gedo at all, but in 19 many parts of the country people began to look for other 20 sources of normalcy, legitimacy and law, and Islam was the 21 only source they could find as close reach, and that they can 22 appreciate. 23 Q. Have you ever heard of a organization called Alika Had? 24 A. Yes, I did. 25 Q. Is the full name Alika had al Islam? 4497 1 A. Alika had al Islam. 2 Q. Can you tell us how that emerged during that time period 3 in the Gedo region? 4 A. What you had, it's very difficult to establish the exact 5 date when groups got together and talked about the creation 6 and the establishment of Ali Kahad Al Islam, but somewhere in 7 the 1992 period as these military movements ran back and forth 8 between the two groups it was about that time it said that Ali 9 Kahad people began to talk about Alkihad and the formation of 10 Alkihad, but nobody in my mind can pin the date and the time 11 and the place with any degree of precision. 12 Q. Did Ali Kahad during this period of time have any presence 13 in Mogadishu? 14 A. No. 15 Q. And what was the role of Islam in Ali Kahad in during the 16 chaos of that period? 17 A. Most people that's citizens of the country were looking 18 for someone to take responsibility for public order, and since 19 the warlords and the roaming militias were not able to do so 20 and Barre has run away from the country that they began to see 21 Ali Kahad as a group who were not secondary in the sense of 22 one clan versus another, one warlord versus another, but they 23 were ones who were public began to see them as a group who 24 were looking after all Muslims as a community. 25 And they saw that Alikahad and Islam may be the 4498 1 closest thing that a civic organization that can insure the 2 peace that they thought Al Islam al Kahad as that possible 3 organization. 4 Q. And that would be in the Gedo region? 5 A. Gedo region, correct. 6 Q. Also, just have you heard of the Afar? 7 A. Yes. 8 Q. And what are the Afar? 9 A. Afar or Ganati people live in three countries in East 10 Africa or in the horn of Africa, Ethopia, Dijbouti, and 11 Eretria. 12 Q. And if we could show the entire map of E2 again, please. 13 And again Dijbouti is just beyond Somalia in the northwest? 14 A. That's correct. 15 Q. And Eretria would be further north and west? 16 A. It doesn't show on this map in terms of the boundary but 17 it will be further northwest of the Dijbouti. 18 Q. And Ethopia is that area that encompasses those three 19 countries? 20 A. Right, where the Afar people, the people live is just a 21 little bit sort of to the southwest of Dijbouti which means 22 sort of north of Ethopia, and south east of Eretria. 23 Q. And did they have any connection or presence in the Gedo 24 region? 25 A. Not at all. 4499 1 Q. Do they have any presence or connection to Mogadishu? 2 A. No. 3 Q. And could you also point out the Agaden region? 4 A. Yeah. It's sort of if you look at that triangle of 5 looking area into Somalia, if you look, even Ethopia, the 6 southern part of that is what's called Ogagan region. 7 Q. Would that also be where that broken line is, would that 8 be a fair statement? 9 A. That's correct. 10 Q. And the Afar have any connection or presence in that 11 Ogaden area either? 12 A. No. 13 Q. Now, during the period of time when Barre is fleeing the 14 country, Aideed is consolidating power, are there other 15 competing warlords at the same time in other parts of Somalia? 16 A. Yes. It's hard to enumerate them because they come and go 17 in many ways, but the enduring ones will be Mohammed Hersi 18 General Morgan, will be Ali Mahdi in Mogadishu in and Morgan 19 was in the south in Kisomoy area. There was at least further 20 northeast, and others. 21 Q. And during this period of time what kind of weapons were 22 available to these warlords, those foreign military men? 23 A. They had access and control basically what used to be the 24 armory of the Somalia military. 25 Q. So everything that had been received from the United 4500 1 States or the USSR? 2 A. And anybody else. 3 Q. Was available to the warlords? 4 A. That's correct. 5 Q. That includes rocket propelled grenades also known as 6 RPGs? 7 A. That's correct. 8 Q. And heavier weapons, too? 9 A. Tanks and others, yes. 10 Q. And what was the number of men under arms in the Somali 11 Army when it was constituted as a national army? 12 A. Nobody exactly knows that because they never used to 13 publish it, but estimate, educated estimates are anywhere from 14 70,000 to 90,000 and then militias on top of that. 15 Q. So there was a large available trained armed group 16 available to these warlords to make combat against each other? 17 A. At some point in the 1970s persons in the United States 18 and elsewhere suggested that the Somali Army was the strongest 19 Army in Africa outside South Africa. 20 Q. And in addition to the militias and the warlords you had 21 also mentioned that there was a widespread Army of the entire 22 populace to a certain extent? 23 A. Yes. This is one of the tragedies of that country as a 24 citizen of the globe so to speak is a society unlike ours 25 where nobody could get access to weapons, including small 4501 1 pistols and what not prior to sort of early '80s. Over the 2 years since then I've been going to that country every year 3 and I don't know of a single household which I visited 4 anywhere in the country which doesn't have a gun and usually 5 an AK-45. 6 Q. AK-47? 7 A. 47, not 45. 8 Q. And, generally, what's the purpose that is explained to 9 you in terms of these weapons in the house? 10 A. One, I asked, I actually remember asking that question to 11 a gentleman who had a shop in a number of towns because I went 12 to each store to fix up my glasses because he ran that kind of 13 business, and as we were in the back of the shop I saw a 14 couple of guns lying, and I said, what is that for? And he 15 said, this is his security because there is no state. 16 Q. And the fighting that was going on between the warlords 17 the factions, was full-scale military battle at times? 18 A. At times, yes. 19 Q. And the warlords themselves were formally trained military 20 personnel? 21 A. Most of them were captains, generals, colonels and what 22 not in the Somali Army. 23 Q. And many of their militia were also former Somali Army, 24 either officers or other personnel? 25 A. Significantly so. 4502 1 Q. And in your opinion would they require the training by 2 outside forces to use any of the weaponry at their disposal? 3 A. They were well trained. 4 Q. In your opinion would they need the training by outside 5 persons? 6 A. Not in my opinion. 7 Q. And in your studies and in your visits to Somalia have you 8 ever heard of any outside training by others to any of the 9 militia people in Somalia? 10 A. Before the government of the country collapsed there were 11 Americans came to train before that the Soviets came to train. 12 Somewhere in the middle Libyans, Iraqis, Syrians, Egyptians 13 came to train, but I didn't hear of any thereafter. 14 Q. Now, was there an international response to civic and 15 humanitarian crisis that existed in Somalia in 1992? 16 A. Yes, there were all kinds of NGOs. 17 Q. NGO being nongovernmental organizations? 18 A. Nongovernmental organizations that people who had the 19 nonprofit business came to help because there was a great deal 20 of shortage of all things from pencils for children in school 21 to food, to medicine and what not and anything in between. 22 Q. Was there also a problem with respect to orphans due to 23 the fatalities in the fighting? 24 A. Not only orphans, but children and elderly people 25 generally. 4503 1 Q. And was that NGO response sufficient in and of itself that 2 to create order or to end the crisis? 3 A. The NGOs were not armed. Its people like OxfarmAmerica, 4 OxfarmBrit and they were humanitarians in the sense they 5 didn't bring their guns and their security so they couldn't 6 create order. Their purpose was to provide by and large 7 sustenance for the general population, particularly children 8 and older people. 9 Q. And at some point did the United Nations become involved? 10 A. It became involved in large measure because Aideed and 11 others have denied significant population of southern Somalia 12 in the Bay region. 13 Q. They denied them? 14 A. They denied them access to food that was brought in either 15 by NGOs or private business people couldn't get through 16 because of these road checks and road blocks and so people 17 began to die in large numbers. That's when the United Nations 18 began to get intervene militarily. 19 Q. And were there estimates on how many people died as a 20 result? 21 A. The figures are many, but a reasonable for one to me is 22 anywhere between two hundred and 400,000 people. 23 THE COURT: Between when and when? 24 THE WITNESS: We're talking anywhere from sort of the 25 middle of the 1992 to 1993. 4504 1 Q. So you're not talking about the people who died in the 2 fighting in the early part of the Civil War. You're really 3 talking about from the humanitarian crisis that resulted as a 4 result, that was the result of what you were just talking 5 about? 6 A. That's correct. 7 Q. The food and other resources? 8 A. That's correct. 9 Q. Now, with respect to Baydo with and also Gedo, Barre had 10 fled to that region. Did he have a particular identification 11 with that region? 12 A. I think Sayed Barre his regime not as an individual but 13 his government introduced into Somali culture something that 14 was not terribly important earlier on, and that was to divide 15 the community into smaller groups in a sense what Africans 16 used to call divide and rule mentality. 17 For him to stay in power he has to set one group 18 against the other and arm one group and disarm another and 19 create all kind of vulnerabilities and so people began in the 20 absence of a government that protects all its citizens, people 21 began to see the Gedo region as the base of Sayed Barre's 22 regime. 23 Q. Was it also base of the Maraha clan? 24 A. That's what's assumed. 25 Q. Now, did the international relief effort included in late 4505 1 1992 United States troops, is that correct? 2 A. That's correct. 3 Q. And what was the initial response first of the populace 4 and then of the warlords, first, we'll do the populace, to the 5 international relief efforts by the UN in conjunction -- 6 withdrawn? 7 Did the United States send its troops in conjunction 8 with the United Nations effort? 9 A. No. First the United Nations sent troops and many of them 10 Pakastanis and Indians, few Africans and elsewhere, and when 11 it proved that that wasn't effective in terms of opening up 12 the road so that food can get to victims of strangulation, 13 then the UN and other people appealed to the United States to 14 sort of help the UN to sort of deliver on it's humanitarian 15 agenda, and it's at that point that the US intervened. 16 Q. But in conjunction with the United -- 17 A. In conjunction under the umbrella of the United Nations. 18 Q. What was the initial response to the international effort 19 including the United States involvement provided by the 20 populace of Somalia? 21 A. I remember I was asked the question at NBC Today Show, and 22 I think I suggested to my host that if President Bush, then 23 President Bush, the senior, that is, ran for president in 24 Somalia, the public would have voted him in hands down. 25 Q. And what was the warlords' reaction to the introduction of 4506 1 the UN and the US? 2 A. I think the warlords were ambivalent. They were not 3 certain. There were risks and there were advantage to the 4 intervention. 5 Q. What would the risks be? 6 A. The risks will be that they will be neutralized since they 7 were the principal course of the famine and the mayhem in the 8 country, what brought the United Nations and the United States 9 to Somalia in the first place. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4507 1 Q. And the advantages might be? 2 A. The advantages was that if indeed and we are talking 3 primarily of two warlords, Sayid Barre and General Aideed, and 4 that if they convinced the United States and the United 5 Nations that they were the authority that could deliver some 6 of the things that the United Nations and the U.S. were 7 interested in, then they could piggyback on the U.S. and the 8 U.N. and become the de facto rulers of the country. 9 Q. Did that opinion change by the fall of 1993? Was there a 10 shift in opinion either among the warlords and the populous? 11 First of all, we'll talk about the warlords at this time, by 12 the sort of latter part of 1993. 13 A. From the general public's vantage point and since one 14 treads on a tricky ground here because there were no public 15 service or you couldn't say and according to A, B, C, blah, 16 blah, this survey, 70 percent of the public supports this or 17 that, but the general feeling in the country was that the U.N. 18 and the United States were not delivering on what the Somalis 19 hoped they would deliver, that's peace and liberation from the 20 warlords. 21 Q. And by the way, were you in Somalia during periods of 22 1993? 23 A. I was there in the spring of 1993. 24 Q. And the fall of 1993? 25 A. And late summer in 1993. 4508 1 Q. Do you recall what the reaction was amongst Somalis to an 2 incident that occurred at something called Abdi House in July 3 of 1993? 4 A. I heard about the Abdi House affair through the British 5 Broadcast Corporation in Somali service news in the evening. 6 Q. And did you speak to Somalis about it when you were in 7 Somali subsequently? 8 A. I did speak to them and it was -- many of them were quite 9 taken aback and surprised because they were saying that too 10 many civilians were getting caught in the middle of this what 11 became the conflict between the warlords and the United 12 Nations. 13 Q. Just for one second, the principal target of the United 14 Nations was which warlord? 15 A. General Mohamed Farahid Aideed. 16 Q. And so, if you continue with respect to the Somali 17 response. 18 A. And I'm sure people were beginning to wonder if they have 19 asked for something, although their asking wasn't what 20 initiated the U.N. and the U.S. to intervene, something they 21 did back and forth, and that's many of civilians who were now 22 getting killed in this crossfire and that this wasn't what 23 they thought the U.N. and the United States will do. 24 Q. And what was the warlords' response to this? Would it be 25 fair to say there was an escalation of conflict, armed 4509 1 conflict between the U.N. and Aideed during this period of 2 1993? 3 A. Right. I think what you have is if you -- in their 4 initial assessment, which was that the warlords, and Aideed in 5 particular, thought there's a chance that he can piggyback on 6 the U.N. and the U.S. and become the new law of Somalia, but 7 once the process of disarmament began -- 8 Q. Do you recall when that was, the process of disarmament, 9 do you recall when that occurred? 10 A. I can't remember the exact date, but it was sometime in 11 1993. 12 Q. So, go ahead. 13 A. So certainly before -- 14 Q. What was Aideed's response? 15 A. Certainly it was before late summer 1993, and Aideed was 16 one of the first warlords to be told to sort of identify where 17 he kept weapons and whatnot. 18 Q. And his response? 19 A. The response was that if this was not taking place 20 uniformly across the warlord terrain, that's all warlords who 21 were being disarmed simultaneously, that in fact he might be 22 disadvantaged if there is sort of an explosion of conflict 23 between him and others, and that is the assumption that he 24 could possibly piggyback on the United States and the U.N. was 25 in danger. 4510 1 Q. And what areas did he control -- withdrawn. 2 Did Aideed control a significant portion of 3 Mogadishu? 4 A. Mostly Southern Mogadishu, including what used to be 5 Radio, Mogadishu. 6 Q. And the seaport? 7 A. The seaport and the airport. 8 Q. How was the -- withdrawn. Did the warlords attempt to use 9 the shifting opinion of the Somali populous with respect to 10 the U.S. and the U.N. to their advantage, to the advantage of 11 the warlords? 12 A. I think particularly Aideed was more successful than the 13 other warlords. I was, I remember, in Hurat in Zimbabwe and I 14 ran into a professor of public policy and political science in 15 Syracuse University who was going to attend a Pan-Africanist 16 conference in Kampala, Uganda late that fall and the professor 17 told me that one of the key speakers in that conference was 18 expected to be General Aideed himself. 19 So I asked him the question, what is General Aideed, 20 a warlord, doing in a Pan-Africanist conference in Kampala, 21 and apparently what Aideed has been very successful is to 22 convince a few Africans across the continent that he was one 23 of the key leaders of the new Pan-Africanist movement to unite 24 all of Africa together and that his struggle with, 25 quote/unquote, the Americans in Somalia was precisely 4511 1 anti-imperialist, as they put it. And so he certainly was 2 able to convince some elements in Africa, broadly speaking, 3 that way and then -- 4 Q. What about the population in Somalia in particular? 5 A. And the population in particular with Aideed and few 6 others, but Aideed in particular, said what the Americans in a 7 sense are doing in Somalia is, one, to redominate Somalia -- 8 this was the language that he used -- and that their 9 involvement was not only about providing services to rebuild 10 the country but they had a larger agenda, and he wired this 11 into sort of a conflict in the Middle East and elsewhere. 12 Q. After the U.S. and U.N. forces left Somalia, do you recall 13 when that was, not exactly but generally? 14 A. 1994. 15 Q. And did the anarchy in Somalia continue? 16 A. The anarchy continued, but strangely enough, many people, 17 including myself, many observers thought that Somalia was even 18 going to implode more so than it was before if the U.N. and 19 the United States troops left. But all chaos continued. 20 There was no sort of a major explosion other than what was 21 already taking place in the country. 22 Q. To sort of jump ahead, then, to the time period 1996 in 23 Somalia, were conditions effectively the same in the sense, 24 was there a central government yet? 25 A. No, there was no central government yet. 4512 1 Q. Were there effective regional governments of any size or 2 authority? 3 A. Probably the one that comes closest in that sense is what 4 is currently called Somali Land. 5 Q. And on the map that would be all the way to the north? 6 A. All the way to the north, just south of the Gulf of Aden. 7 Q. So not in Southern Somalia? 8 A. Not in Southern Somalia. 9 Q. Not in Gedo? 10 A. Not in Gedo. 11 Q. And what was, at that time period, 1996, what was the 12 presence of Ali Ittihad in Gedo at that point? 13 A. Ali Ittihad, from what we know and the evidence by all 14 sources put together will suggest that they were, as I said 15 earlier on, that their primary role from the vantage of the 16 public was to create an antisectarian community in Gedo and 17 fill the vacuum between Siyad Barre and Aideed. But as that 18 time progressed, as Europeans began to send encouragement into 19 Somalia, it's at that point I think where the popularity 20 validly begins to become a factor in the region on certain 21 incidents in Somalia. 22 Q. Just to back up a second, in the Ogaden region, in the 23 region itself, were there conflicts between Ethiopia and armed 24 groups in the Ogaden region? 25 A. When the new Ethiopian government came to power in 1991, 4513 1 this was a government dominated by a group called Tigre people 2 from the north of the country, south of Eritrea, and the 3 military that they brought to bear was not the European army, 4 all the European army, but their militias became the national 5 army immediately. 6 And so the army began, the new army began to fan out 7 into the country, and I remember hearing an interview in the 8 BBC with Somali Services in London where one group called 9 Ogaden National Liberation Front, a Somali group who live in 10 Ethiopia, announced over the radio a message to the Ethiopian 11 government not to send its troops to that part of the country 12 of Ethiopia which was accommodated and populated by Somalis, 13 or to be prepared for war if they do so. 14 So that was the first signal that there was conflict 15 in Ethiopia in the era after the revolution, so to speak, in 16 1991. 17 Q. And that continued through the mid 90s? 18 A. Continued to the present. 19 Q. And just to situate us in the 1996 time period, also with 20 respect to just in terms of the map, the way it is on the 21 screen right now, also, the Gedo region essentially sits -- it 22 borders on not only Ethiopia, but Kenya, as well, correct? 23 A. That's correct. That's correct. 24 Q. And in fact, all of Kenya's Northeastern border there, I 25 mean after Ethiopia, is Somalia all the way to the coast? 4514 1 A. That's correct. 2 Q. And did the government of Kenya have concerns about the 3 border activity with respect to Somalia because there was not 4 any central government in Somalia during this period of the 5 1990s? 6 A. I think the principal concern -- I mean, one has to think 7 of the Kenyan government at its multiple levels. At the 8 central level in Nairobi, the concern was that the absence of 9 government in Somalia may mean a lot of weapons coming from 10 Somalia into Kenya itself. That was the only concern that the 11 Kenya government expressed. 12 Lower level officials who are into corruption and 13 bribes were concerned about money moving back and forth and 14 commercial goods moving back and forth, but the key security 15 issue for the Kenyan government was the shipment of arms 16 across Somalia, from Somalia to Kenya. 17 Q. And did something occur in the summer of 1996 that sort of 18 changed the conditions in the Gedo and the Gedo region with 19 respect to Ethiopia and Somalia? 20 A. Yes, I think it's -- actually, I was in a place called 21 Jijiga in Ethiopia. At that time was the time I was beginning 22 to do my current research, and over the radio, both on the 23 Ethiopian radio initially did an announcement, but it was 24 announced in the British Broadcasting Corporation local Somali 25 Service, that Somalis in the region are claiming that 4515 1 Ethiopian troops have come across the border and have created 2 mayhem in the region, Gedo in particular. 3 Q. And what did they use as part of this assault, the 4 Ethiopia troops? 5 A. The reports suggested that they used helicopter gunships, 6 heavy weaponry, artillery and the like. 7 Q. And this is in the summer of 1996? 8 A. About that time, yes. 9 Q. Did this involve the United States in any way in terms of 10 troops or anything like that? 11 A. Absolutely not. 12 Q. And what was the impact of this Ethiopia invasion in the 13 Gedo region of Somalia? 14 A. I think the impact was many, but the key ones were 15 destruction of a lot of property, the death of many civilians 16 and armed men and -- mostly men, not women, and the gradual 17 creation of -- what's the word in English? I speak English, 18 but sometimes I run out of steam -- local support, the local 19 militia supporters. The Ethiopian government, reports 20 suggested, were laying the groundwork for creating armed 21 groups in Somalia that will support its own agenda in that 22 country. 23 Q. And -- 24 THE COURT: That would support? 25 THE WITNESS: An Ethiopian agenda in Somalia. 4516 1 Q. And the Ethiopian envision, what was the reason given by 2 the Ethiopian government for the invasion? 3 A. Formerly they suggested that they were in hot pursuit of 4 Ittihad Islam, among others, but the key one was that. But 5 Ethiopia had other interests in Somalia, also, which were not 6 spoken of, and that was there's the largest community, ethic 7 community, in Ethiopia is a group called Oromos which 8 constitutes anywhere up to 45, maybe even 50 percent of the 9 population of the country who claim not to be part of the 10 government as they would like, the democratic government, and 11 that many of them or their organizations are said to be based 12 in Somalia and to move into Ethiopia back and forth. So I 13 think one of the agendas of the Ethiopian intervention into 14 Somalia was also to ensure that Oromos who were armed did not 15 come across Ethiopia into Somalia. 16 Q. And what was the impact on Ali Ittihad of the Ethiopian 17 envision in 1996? 18 A. I think it had two impacts. One was they certainly were 19 not a match for the Ethiopian troops, so they were sort of not 20 completely destroyed but deeply maimed, but it also had the 21 effect of creating a basis of legitimacy even more so for Ali 22 Ittihad in the minds of Somali public, particularly in that 23 region, for being one of the few forces who can carry, sort of 24 a protect Somalis from the Ethiopian army. 25 Q. Did the Ethiopian influence and presence in the Gedo 4517 1 region of Somalia cease once the envision stopped, or was it 2 something that continued for a considerable period of time? 3 A. The reports we have suggest that the Ethiopian invasion 4 and presence declined shortly thereafter that immediate 5 intervention, but has persisted and have been -- has escalated 6 in more recent times. 7 Q. But it continued throughout '96 and '97? 8 A. To 19 -- to 2001. 9 Q. Did you review before you testified Government Exhibit 10 310, Dr. Samatar? 11 A. Yes, I did. 12 Q. And this is something that's called "Report on the Latest 13 News in Somalia"? 14 A. That's correct. 15 Q. Can you read the first line? It's already in evidence. 16 "Abdel Sabbur brings to light the new policy. When Abdel 17 Sabbur arrived on February 22, 1997, he contacted Khalid 18 directly and asked him to come to Nairobi." 19 And so that sets a time frame in February of '97, 20 correct? 21 A. Correct. 22 Q. And having read this document, would you say that it, in 23 many ways it describes some of the events that you have been 24 talking about in terms of 1996, 1997? 25 A. Yes, it does. 4518 1 MR. FITZGERALD: Objection to competence, your Honor. 2 THE COURT: Yes, sustained. 3 Q. Well, just looking at the bottom of page 1 -- 4 THE COURT: That question and answer is stricken. 5 MR. DRATEL: Excuse me? 6 THE COURT: I'm saying the last question and answer 7 is stricken. 8 MR. DRATEL: Thank you. 9 Q. With respect to the bottom of page 1, and that paragraph 10 that starts, "Before Khalid's move to the interior," and it 11 goes on to talk about Islamic courts in Kismayo, and was that 12 something that Ali Ittihad been working on, the institution of 13 Islamic courts? 14 MR. FITZGERALD: Objection to leading. 15 THE COURT: I'll allow it, but then refrain from 16 leading. 17 A. No, Ittihad was not active and strong. 18 Q. And with respect to, moving down the page, at the very 19 bottom, the last line, "Khalid met with the director of 20 foreign affairs (for the Federation of Ogaden in Western 21 somalia)," is that a reference to the liberation movement of 22 Ogaden that was present that you discussed before? 23 A. It seems to. I haven't, I never heard about the 24 federation, but I heard of the Ogaden National Liberation 25 Front, which is a Somali group in Ethiopia. 4519 1 Q. And on page 2, there's a reference to a Sheikh Hassan, and 2 are you familiar with the name Sheikh Hassan in the context of 3 the Ogaden region? 4 A. I heard his name in a place called Jijiga in Eastern 5 Ethiopia. 6 Q. In what context? 7 A. A passing context, as a major religious figure. 8 Q. In the area? 9 A. In the area, in the Ogaden region. 10 Q. And if we move to page 5, right underneath the second 11 asterisk where it says, it talks about security situations in 12 the region, Somalia-Ethiopia. You see that? 13 A. On page 5? 14 Q. Yes, I think it's 5. 15 A. The next, second asterisk is "Haroun's meeting with the 16 director." 17 Q. Right. And the sentence under that says -- 18 A. Okay, I see it. 19 Q. "On the security situations in the region," and it says 20 Somalia-Ethiopia? 21 A. Correct. 22 Q. At this time period, February 1997, there were serious 23 security issues with respect to the Somalia-Ethiopia border? 24 A. That's correct. 25 MR. FITZGERALD: Objection, leading. 4520 1 THE COURT: Yes, refrain from leading. Restate your 2 question. 3 Q. Just read it and then say whether or not it reflects what 4 was going on at the time in terms of the Somali-Ethiopia 5 border. 6 A. The Somali-Ethiopia region? 7 Q. Yes. 8 A. Is an unstable region and that Ogaden National Liberation 9 Front and Ali Ittihad move in and out of that region and sort 10 of put bombs on roads, harass the Ethiopian military from time 11 to time. That has been the case since 1992. 12 Q. And during this period of February '97, it was relatively 13 close -- was it particularly an issue in February 1997? 14 MR. FITZGERALD: Objection to leading. 15 THE COURT: It's a valid objection, but what was the 16 condition in February 1997. 17 Q. What was the condition in February 1997? 18 A. The condition -- 19 MR. FITZGERALD: Thank you. 20 A. In Ogaden, so to speak, was one in which the Ethiopian 21 military was not formally on the alert but looking for Ali 22 Ittihad, as they said, and the Ogaden National Liberation 23 Front inside Ethiopia in the Ogaden itself. So it was a 24 condition in which there was literally security and some 25 degree of political instability in the country. 4521 1 Q. Were they also, was the Ethiopian army also active inside 2 Somalia during that period, looking for -- 3 MR. FITZGERALD: Your Honor, objection to repeatedly 4 leading. 5 THE COURT: Yes. 6 MR. DRATEL: What? 7 THE COURT: When you state the fact and ask whether 8 it's so, it's a classic leading question. 9 Q. Were they in Somalia? 10 THE COURT: What was the question? 11 Q. Was the Ethiopian army in Somalia? 12 A. The reports tell us yes. 13 Q. And the reasons stated by the Ethiopians for being there? 14 A. They were in hot pursuit of Ali Ittihad and Islam. 15 Q. And also if we look on the next page, page 6, on the 16 bottom, the portion in bold, it says, "The Front of the 17 Liberation of the Oromos," and if you tell us again about the 18 Oromos at that time period and the area that we're talking 19 about, Somalia, Ethiopia, Ogaden, early 1997. 20 A. The Oromo -- it's actually not called the Front of the 21 Liberation of the Oromos, it's called the Oromo Liberation 22 Front, and I know for sure because one of my former students 23 dropped out of my department and disappeared and then I found 24 out that he was in Mogadishu working with the Oromo Liberation 25 Front. So the Oromo movement was using Somalia as a base to 4522 1 go into Ethiopia during this period. 2 Q. Are the Oromos originally from Somalia? 3 A. No. 4 Q. But are they originally from Ethiopia? 5 A. They are the majority ethnic group in Ethiopia and there 6 are Oromos in Kenya. 7 Q. Did the government of Ethiopia have concerns about -- 8 withdrawn. 9 What was the Ethiopian government's position with 10 respect to Islamic groups and Islamic charities as opposed to 11 any other types of charity work? 12 MR. FITZGERALD: Objection, competence. 13 THE COURT: Yes. 14 Do you know? Is that something within your area of 15 expertise? 16 THE WITNESS: Yes, sir. 17 THE COURT: You may answer. 18 A. What I have heard in Ethiopia is that the Ethiopian 19 government allows Christian missionaries and NG organizations 20 to register and do business in Ethiopia. That's since the new 21 regime came to power. That is what the reports say, that is 22 not only my opinion, that they have not allowed Islamic groups 23 of the same kind to come to Ethiopia, register and 24 proselytize. 25 Q. This is the same Ethiopian government that was in power in 4523 1 1996 and 1997? 2 A. Yes, this is the government that has been in power since 3 1991 to the present. 4 MR. DRATEL: Thank you. Nothing further, your Honor. 5 THE COURT: Any defense counsel have questions of 6 this witness? 7 Cross-examination. 8 MR. FITZGERALD: Yes, Judge. 9 CROSS-EXAMINATION 10 BY MR. FITZGERALD: 11 Q. Sir, if you could look at that document in front of you, 12 Government Exhibit 310. 13 A. That's correct. 14 Q. If you could look at that first paragraph that was cited 15 to you by Mr. Dratel. 16 A. Is that the one which says, "Abdel Sabbur brings to light 17 a new policy"? 18 Q. Exactly. Thank you. 19 Do you know who Abdel Sabbur is? 20 A. No. 21 Q. Do you know who the person Khalid is that Abu Sabbur 22 brought that new policy to? 23 A. No. 24 Q. Do you know who the person El Hajj, H-A-J-J, is that they 25 brought the policy from? 4524 1 A. There are plenty of El Hajjs in Eastern Africa, but no 2 particular one. 3 Q. Do you know who it is? 4 And if we could focus in on that first paragraph on 5 the screen, as you sit here today, do you know if the person 6 Abdel Sabbur had recently visited a person named El Hajj prior 7 to the date on this document? 8 A. That's not what my research is about, sir. 9 Q. So you don't know who these people are, who they met with, 10 and where they came from, correct? 11 A. My testimony here is not about individuals. 12 Q. And so you don't know what this first paragraph refers to 13 in terms of who was meeting with whom, correct? 14 A. No, I don't know that, but what I know is, when I read 15 this, of the context that's being talked about. 16 Q. Do you have any idea whether Usama Bin Laden was involved 17 in these activities? 18 A. No. 19 Q. Let me ask you this: You mentioned that the group was 20 setting off explosions on the roadways since 1992, correct? 21 A. That's correct. 22 MR. DRATEL: Objection. 23 THE COURT: Overruled. 24 MR. DRATEL: Your Honor, just identify when he says 25 "the group" right after the last question. 4525 1 Q. You mentioned -- which group did you say set off 2 explosions in the roadways? 3 A. I said the reports of the Ethiopian government, not my 4 reports, say that there are people called Ittihad Islam. They 5 don't actually use the word "Islam," they use the word Ali 6 Ittihad, they're called fundamental Islams, who have done this 7 in Ethiopia. Others suggest that the Ogaden National 8 Liberation Front has done this. 9 Q. Did you hear about reports of them setting off explosions 10 in the cities? 11 A. I have heard that, yes. 12 Q. Did you see it in this report that's sitting before you, 13 Government Exhibit 310? 14 A. There was reference to that. 15 Q. So there were references to the explosions being in the 16 cities, not on the roads, correct? 17 A. In this report? 18 Q. Yes. 19 A. There was reference to the cities, but they also have 20 reference to the rural areas. 21 Q. Do you know a person by the name of Haroun? 22 A. No, I don't know. 23 Q. Do you know a person by the name of Saleh the Egyptian? 24 A. No, I don't. 25 Q. No one you interviewed in connection with your research? 4526 1 A. Repeat. 2 Q. You never interviewed anybody by the name of Haroun and 3 Saleh in connection with your research about Somalia, correct? 4 A. I interviewed neither. I worked with a person called 5 Haroun in Somalia during 1986. He worked for me as research 6 assistant in a place called Berber when I was doing research 7 on livestock experts. Also, Haroun is a relatively common 8 name, so which Haroun, I don't know. 9 Q. Do you know any Haroun from the Comoros Islands? 10 A. No, I don't. 11 MR. FITZGERALD: Thank you. Nothing further. 12 THE COURT: Any redirect? 13 MR. DRATEL: Just briefly, your Honor. 14 REDIRECT EXAMINATION 15 BY MR. DRATEL: 16 Q. Dr. Samatar, on cross-examination Mr. Fitzgerald asked you 17 about explosions or reports of explosions in the road 18 attributed to Ali Ittihad by the Ethiopian government. 19 MR. FITZGERALD: Objection to form. 20 Q. He asked you about explosions in the road, correct? 21 A. He did. 22 Q. Would it serve the Ethiopian government's purpose 23 politically to justify its invasion of Somalia to blame 24 Islamic organizations such as Ali Ittihad for any such 25 explosions? 4527 1 A. That's actually the official position of the Ethiopian 2 government. 3 Q. But would it serve their political, their political 4 purpose? 5 A. Yes, it would. 6 MR. DRATEL: Nothing further, your Honor. 7 MR. RICCO: Your Honor, may I have cross based on Mr. 8 Fitzgerald? 9 THE COURT: I'm just a little concerned about the 10 sequence here. 11 MR. RICCO: I just have a couple questions, your 12 Honor. 13 THE COURT: Very well. 14 RECROSS-EXAMINATION 15 BY MR. RICCO: 16 Q. Doctor? 17 A. Yes, sir. 18 Q. Mr. Fitzgerald asked you questions about particular 19 individuals? 20 A. That's correct. 21 Q. Is it fair to say that you don't know any of the men who 22 are charged in connection with this case? 23 A. I wouldn't know. That may be you, sir. 24 Q. Okay. And you were called as an expert witness, I take 25 it? 4528 1 A. I think so. 2 Q. And your opinion was based on your scholarship; isn't that 3 correct? 4 A. It's based on my scholarship and observations on the 5 ground. 6 MR. RICCO: Thank you very much, sir. 7 THE COURT: All right. Thank you. 8 Thank you, Doctor. You may step down. 9 We'll take our mid-afternoon recess. 10 (Witness excused) 11 (Jury not present) 12 THE COURT: What is the next order of business? 13 MR. SCHMIDT: The next order of business, we're going 14 to be playing a series of tape recordings of conversations 15 between agents named Joseph and/or William with Mr. El Hage 16 and his wife April Ray. 17 THE COURT: Very well. How long will that take? 18 MR. SCHMIDT: It certainly will take, my guess, with 19 everything working correctly, approximately an hour or so. 20 THE COURT: Is this ostrich pictures, is that 21 relevant? 22 MR. SCHMIDT: They're not the ostrich pictures. 23 THE COURT: All right. We'll take a five-minute 24 recess. 25 MR. FITZGERALD: Two items, your Honor. I will go 4529 1 through with Mr. Schmidt, I think he has identified the topic, 2 whether the calls are of the 403 objection on some of them at 3 the break. 4 The other comment I just wish to make on the record 5 is you requested the government, if they were caught off guard 6 by expert testimony, to put it on the record. On this witness 7 we didn't get any expert disclosure that he was going to talk 8 about Ethiopian military capability or the Ethiopia government 9 and we get put in a position where, in front of jury, we are 10 asking rank hearsay and in leading form about what someone 11 heard on BBC and we either have to sit here and let in hearsay 12 and eat up time or object in front of the jury, which I think 13 is unfortunate. 14 THE COURT: The criterion for an expert hearsay is 15 whether the reliance is on those things which experts in that 16 particular field traditionally rely upon, and an expert or an 17 observer even in Somalia might very well rely on BBC accounts 18 of what is going on because there's probably very little else. 19 MR. FITZGERALD: I agree with that, Judge, but in 20 this case we weren't given any expert disclosure that he was 21 going to speak to the military capability of the militia, 22 whether they need training or not. We get a geographer 23 allocution for expert testimony. Since we don't know what's 24 coming, we don't object to his qualifications, and then we're 25 off to him telling us who needs training, who doesn't, what 4530 1 the Kenyan view of -- 2 THE COURT: If there had been an objection to the 3 question as to whether, in his opinion, there was a need for 4 outside training, I would have sustained the objection. There 5 was no objection to it. 6 MR. FITZGERALD: I don't think we should be put in 7 the position where we're not given adequate disclosure. 8 THE COURT: I can't quarrel with that. 9 We'll take a five-minute recess. 10 (Recess) 11 THE COURT: Mr. Submit, is there going to be a 12 witness on the stand? 13 MR. SCHMIDT: No, there's not. 14 THE COURT: No witness on the stand. 15 MR. FITZGERALD: Your Honor, I have some issues with 16 regard to the transcripts. 17 THE COURT: Yes. 18 MR. FITZGERALD: First, these transcripts are 19 conversations largely between Wadih El Hage and a U.S. 20 government person, or his wife and a U.S. government person. 21 There are actually two U.S. government persons they speak to 22 named Joseph and named William recorded on the wiretap. 23 First of all, they are obviously hearsay 24 conversations to the extent that Mr. El Hage is speaking. I 25 don't know if they are offered for the truth or the fact that 4531 1 words were said, but the entire set of conversations is Mr. El 2 Hage and his wife speaking to government agents and, in 3 particular, in two particular calls, Mr. El Hage in one, 4 indicates that the warrant used to search his residence was a 5 phony piece of paper, and on another occasion, Mrs. El Hage, 6 his wife, is talking about bugs and whether there are lawfully 7 used in the case. 8 And I think it's both hearsay and also, under 403, 9 greatly prejudicial to put in conversations where El Hage is 10 spouting his view that the warrant is phony. If they are 11 trying to establish that Wadih El Hage was in touch with the 12 government and told the government that he had traveled, then 13 we can stipulate to that. We certainly don't need to have 14 Mr. El Hage express his view of the Kenyan warrant or have 15 Mrs. El Hage ask questions about American law on tape. I 16 don't know how they will get it in as non-hearsay. 17 THE COURT: Mr. Schmidt. 18 MR. SCHMIDT: Your Honor, the purpose of the 19 conversations were not for the truth of the matter, which we 20 will not allege, it's for him complaining to the government 21 agents about these things, to show -- 22 THE COURT: That is for the truth. It's not for the 23 truth, but to show that he was complaining. 24 MR. SCHMIDT: I'm not -- no, I'm not claiming that 25 the warrant was in fact invalid. I'm putting it in for the 4532 1 fact that Mr. El Hage is complaining to the agent that he 2 believed it's invalid. He is basically talk to the American 3 agents because he views the American agents as being on his 4 side and not the Kenyan authority's side. That's the only 5 reason. Not for the fact that -- if your Honor wants to give 6 a charge saying that's not evidence as to whether the -- 7 whether it was valid or invalid, that's perfectly okay as 8 well. 9 THE COURT: Tell me again. Tell me affirmatively 10 what is the argument that you make to the jury based on these 11 transcripts. 12 MR. SCHMIDT: The ones that the government mentioned? 13 THE COURT: Yes. 14 MR. SCHMIDT: That Mr. El Hage had been in contact 15 with the government agents to obtain return of his property, 16 and he is complaining that he is having -- to the American 17 agents, he is seeking their assistance to get his property 18 back. 19 THE COURT: What date is this? What period of time 20 are we talking about? 21 MR. SCHMIDT: This is August and September of 1997. 22 THE COURT: And where is Mr. El Hage? 23 MR. SCHMIDT: In Nairobi. This is after he returns 24 to Nairobi. He's questioned by the agents. His home is 25 searched. They give them a copy of the -- Wadih gets a copy 4533 1 of the inventory, and there is, for the period of time from 2 then until he leaves, he is in regular contact with the 3 government agents. 4 THE COURT: And the significance of that is Mr. El 5 Hage's perception that this was an American operation? 6 MR. SCHMIDT: No. 7 THE COURT: The American rather than Kenyan 8 government? 9 MR. SCHMIDT: His perception that the people who can 10 help him are the Americans, not the Kenyans, and that he is -- 11 THE COURT: And what follows from that? 12 MR. SCHMIDT: His perception of the Americans and him 13 being an American and the Americans on his side and is 14 consistent with innocent conduct, consciousness of innocence. 15 And he's maintaining contact with the agents on a regular 16 basis. He's not running from them, he's not using code, he's 17 not hiding from them, being open, available. 18 In a normal case, I would call the agents, your 19 Honor. 20 THE COURT: It would be the same issue whether you 21 call the agent. It is what would be the relevance, what the 22 basis for admission would be. And, what about it? 23 MR. SCHMIDT: Mr. El Hage is charged with being a 24 member in a nine-year worldwide conspiracy against the United 25 States. 4534 1 THE COURT: Yes. 2 MR. SCHMIDT: His first regular contact with 3 officials of the United States is in September of -- excuse 4 me, August of 1997. After his contact with the Americans, he 5 maintains close, personal and informational ties with them. I 6 think that's relevant. The government may not think it's 7 particularly relevant. 8 THE COURT: The question right now is whether I think 9 it's relevant, not what the government thinks or not what you 10 think. 11 And its relevance is to show that Mr. El Hage thought 12 that he had a relationship with the United States Government 13 which caused him to initiate calls with them and that that's 14 inconsistent with somebody who was in fact a hostage in the 15 United States? 16 MR. SCHMIDT: Your Honor, the government has brought 17 out in their testimony, both -- 18 THE COURT: Is what I said wrong? 19 MR. SCHMIDT: In a general sense, in a general sense, 20 the government has brought out perjury in the Grand Jury, the 21 use of -- 22 THE COURT: These are all arguments. 23 To contrast this with perjury in the Grand Jury, you 24 have to be asserting the truth of what he said to the agent, 25 but you are disclaiming that. 4535 1 MR. SCHMIDT: It's showing his willingness to deal 2 with the Americans, to inform them when he is traveling to the 3 United States, the difficulties he's having shows a 4 consciousness of innocence as opposed to a consciousness of 5 guilt. That, I think, is part of -- it also shows the 6 opposite side of the government's version of hostility to the 7 United States. Not the specific words that he is using, it is 8 the tone, the repeated contact with them, the regular contact 9 with them, his willingness to call them back, he's asking for 10 help. 11 THE COURT: Would it be fair to say that they are 12 being offered not for the truth but to evidence the fact that, 13 while in Nairobi, Mr. El Hage engaged in communications with 14 the American authorities, period? Would that be a fair -- 15 MR. SCHMIDT: No, that's not near what -- 16 THE COURT: You tell me, then. 17 MR. SCHMIDT: He communicated with American 18 authorities in a manner of cooperativeness, without fear, 19 asking for help. 20 THE COURT: I'm not going to summarize all that. In 21 the manner demonstrated -- 22 MR. SCHMIDT: In the demonstrated by the tapes, yes. 23 THE COURT: All right, I'll allow it and tell the 24 jury it's for that limited purpose. 25 MR. FITZGERALD: Your Honor, under 403 we're now 4536 1 going to have, one, two, three, four, five, six, seven, eight, 2 nine, I believe ten transcripts read to the jury. 3 THE COURT: Let me see them. 4 MR. SCHMIDT: Your Honor, that's just simply not 5 true. I just went over with the government that we have pared 6 them down to at least now to seven, at the most, because six 7 is leading into another issue. 8 THE COURT: Tell me which is the first one you are 9 going to play. 10 MR. SCHMIDT: The first one is August 23, 1997. 11 THE COURT: August 23, 11:46? 12 MR. SCHMIDT: That's correct. It expresses-- 13 THE COURT: I'm reading it. 14 (Pause) 15 THE COURT: And this shows, I'm now looking at W68-E, 16 August 23, this shows what was Mr. El Hage initiating this 17 meeting? 18 MR. SCHMIDT: It appears that it is Joseph asking if 19 he wants to speak with them, then making arrangements to meet. 20 I think that's the following day after he was initially 21 detained at the airport. 22 THE COURT: But do we know -- this doesn't tell us. 23 Do we know who initiated this? 24 MR. SCHMIDT: It's an incoming call from Joseph to 25 Wadih El Hage. 4537 1 THE COURT: Joseph says, "Okay, I wanted to know if 2 you wanted to talk today." Is there a request, do we know 3 whether the request to talk originated with El Hage or with 4 Joseph? 5 MR. SCHMIDT: I think the conversation basically 6 speaks for itself. It's actually a conversation from the day 7 before that I think put in that indicates a conversation 8 between one of the agents and Ms. Ray, which indicated that 9 they were going to try to talk the next day, but I have 10 selected this out of about 15 to 20 conversations between the 11 parties. 12 THE COURT: I'm just looking at the second one of 13 these tapes, August 26, and I think the government's objection 14 is well-taken. Discussion about the dog and so on. 15 MR. SCHMIDT: Your Honor, it's impossible to take 16 every little thing that really is important in a conversation 17 and take it out. The United States Government goes to Mr. El 18 Hage, all right? He's questioned at the airport. His home is 19 searched. He's told that they think he's working with 20 terrorists, and the reaction of Mr. El Hage is not running 21 from them, it's having conversations of this nature with the 22 government agents. 23 As is important that his conduct and conversations 24 that show a consciousness of guilt, these conversations show a 25 consciousness of "I have nothing to hide" with these people. 4538 1 That is the importance of it. 2 To eliminate these conversations with the government 3 agents is to eliminate what I believe is a very important part 4 of our case, is Mr. El Hage's conduct from the time he was 5 approached by the government in August of 1997 until his 6 arrest in 1998, including testifying two times in the Grand 7 Jury, not asking for an attorney. I think this is consistent 8 with his consciousness of innocence, and to eliminate these 9 conversations, your Honor, I obviously very strenuously 10 object. 11 (Pause) 12 MR. SCHMIDT: If I may just make a brief analogy, 13 your Honor. 14 THE COURT: Let me read them, please. You go on and 15 on about irrelevant things about -- 16 MR. SCHMIDT: Maybe I can make an analogy that 17 perhaps your Honor may change his mind. If a police officer 18 approaches somebody and the person runs away, that is evidence 19 of consciousness of guilt. 20 THE COURT: I understand what -- 21 MR. SCHMIDT: If he walks towards the police officer 22 to enter into a conversation with the police officer and not 23 run away, that shows consciousness of innocence. That's what 24 I'm trying to show by the few of these conversations. 25 THE COURT: First of all, you don't have a few, you 4539 1 have a great many, most of which are plane reservations and 2 what the time of leaving is and what the route is and so on. 3 MR. SCHMIDT: I was trying to skip over some of that, 4 but informing the government of the exact -- 5 THE COURT: Give me a moment. 6 (Pause) 7 THE COURT: I proposes the following. I propose that 8 you play them, if you wish, and the jury be told as follows by 9 the Court: You are about to hear records of conversations had 10 between El Hage or his wife with a representative of the 11 United States. These conversations are not being offered or 12 received as evidence of the truth of anything said to the 13 agents or to the El Hages. They are being offered and are 14 being received solely to show that the El Hages were in 15 communication with representatives of the United States while 16 they were in Kenya, and to reflect the general tone and nature 17 of the conversations. They are being offered and received for 18 no other purpose. 19 MR. FITZGERALD: Your Honor, and if we are putting 20 them as they are, which includes some conversations about the 21 law of bugging etc., there's one conversation being left out 22 where Mrs. El Hage acknowledges that the U.S. government was 23 just trying to help them. I think that shows a completer 24 picture. I believe it's August 20. 25 THE COURT: You want to reply that? 4540 1 MR. FITZGERALD: Yes. 2 THE COURT: You may play that. 3 MR. SCHMIDT: I have no objection, your Honor. 4 THE COURT: Very well. 5 All right, let's bring in the jury. That's the next 6 order of business? 7 MR. FITZGERALD: Yes. 8 THE COURT: Mr. Schmidt, at what point do you think 9 El Hage will rest? 10 MR. SCHMIDT: I'm thinking, your Honor. It depends 11 how long the Odeh defense is tomorrow. I would -- 12 THE COURT: I don't understand that. 13 MR. SCHMIDT: They were going to go tomorrow with 14 their witnesses. 15 MR. WILFORD: Your Honor, that's what we discussed 16 last week. We indicated that we would have a witness that 17 would be available tomorrow. We would be prepared to put our 18 entire case on tomorrow. 19 THE COURT: How much time, apart from the sequence, 20 about how many more hours do you anticipate? 21 MR. SCHMIDT: I would anticipate, other than today, 22 probably two and a half to three days. 23 THE COURT: What I'm really trying to find out is, 24 are we going to complete live tomorrow by Thursday on behalf 25 of all defendants? 4541 1 MR. COHN: It appears not. 2 THE COURT: It appears not. 3 MR. COHN: If he has two and a half more days -- 4 THE COURT: Two and a half hours. 5 MR. SCHMIDT: No, days. 6 THE COURT: Two and a half days? 7 MR. SCHMIDT: Days, because I have a lot of documents 8 we're going to be putting in. 9 MR. COHN: I'm listening. 10 MR. SCHMIDT: Some of which we are going to read, 11 some of which we are going to flash, some of them we're not 12 going to be able to flash. We may have a couple more 13 witnesses, also. 14 THE COURT: The suggestion is that if we turn down 15 the microphone, that will improve the quality of the playing. 16 That will interfere with the interpreters, but there is the 17 printed text available. 18 Is that acceptable? 19 MR. SCHMIDT: Yes. 20 THE COURT: Is that acceptable to all defendants? 21 All right. I don't know how that gets done, but if you will 22 do that. 23 (Jury present) 24 THE COURT: Ladies and gentlemen, I'm advised that we 25 are about to hear records of conversations had between the 4542 1 defendant El Hage or his wife, April, with a representative of 2 the United States. These conversations are not being offered 3 or received in evidence as evidence of the truth of anything 4 said to the agents or said to either of the El Hages. They 5 are being offered and are being received solely to show that 6 the El Hages were in communication with representatives of the 7 United States while they were in Kenya, and to reflect the 8 general tone and nature of the conversations. They are being 9 offered and received for no other purpose. 10 Mr. Schmidt. 11 MR. SCHMIDT: Your Honor, I also ask that the English 12 transcriptions be published to the jury as they go. 13 THE COURT: Yes. You may proceed. 14 Why don't you offer in one fell swoop all of those 15 that you are going to play, and they are all subject to this 16 statement to the jury and will all be received in one fell 17 swoop, subject to the limitations just stated. 18 What exhibits are they? 19 MR. SCHMIDT: Your Honor, it's WEHX-W68E, a telephone 20 call -- 21 THE COURT: Just 68. Do that later before each one 22 is played, just give the exhibits, 68E, 54 -- 23 MR. SCHMIDT: Excuse me, it's W68, W54, W55, W56, 24 W49, W57 and W69, and before each one is WEHX for "Wadih El 25 Hage exhibit." 4543 1 THE COURT: Yes. Those two, four, six, seven, they 2 are received subject to the direction which I just stated to 3 the jury. 4 (Defendant El Hage Exhibits WEHX-W68, WEHX-W54, 5 WEHX-W55, WEHX-W56, WEHX-W49, WEHX-W57 and WEHX-W69 received 6 in evidence) 7 MR. SCHMIDT: The first one is August 23, 1997. 8 (Tape played) 9 MR. SCHMIDT: The next telephone conversation will be 10 September 11, 1997 at approximately 6:55. 11 (Tape played) 12 THE COURT: All right, ladies and gentlemen, we'll 13 take up at that point tomorrow. 14 MR. SCHMIDT: Can you remind the jury to shut these 15 off? 16 THE COURT: Yes, the jury is reminded to shut them 17 off. 18 I have something else to tell you, and that is this: 19 I have heretofore asked that you not read, watch, listen to or 20 discuss with anyone anything related to this case, and I know 21 you understand that and are complying with it. 22 I would now like to broaden that and ask you, to the 23 extent to which it is reasonably possible, that you avoid 24 reading, watching or listening to anything in connection with 25 the Timothy McVeigh case. The Timothy McVeigh case is going 4544 1 to receive a great deal of publicity in the next several 2 weeks, and I know it's going to be hard to avoid it, but I ask 3 that you make every effort just not to read or listen or watch 4 anything with respect to the Timothy McVeigh case. 5 Other than that, my only other comment is, have a 6 good evening. 7 (Jury excused) 8 THE COURT: We'll take a five-minute recess and then 9 we'll proceed with the charging conference. Whether or not 10 the defendants are present is a matter of their choice. 11 MR. COHN: We'll ask, your Honor -- 12 THE COURT: The record should be clear they have a 13 right to be here if they wish. 14 MR. RUHNKE: Judge, my client wishes to be excused at 15 this charge conference. 16 MR. COHN: Mr. Al-'Owhali asks to be excused. 17 MR. SCHMIDT: Mr. El Hage is going to stay. 18 (Recess) 19 (In open court; jury not present) 20 THE COURT: All right. I have in front of me the 21 various submissions by the defendants with respect to the 22 second working draft as of April 19, 2001, 5 p.m. proposed 23 charge to the jury, which we'll mark as -- 24 MR. COHN: Excuse me, your Honor, since 25 Mr. Al-'Owhali, I've just been advised that since 4545 1 Mr. Al-'Owhali is not allowed to go back because Mr. El Hage 2 is still here he wants to come back out, because he can't go 3 back to the -- 4 THE COURT: So they all have to come back. 5 MR. COHN: I was just told that. I don't know that 6 for a fact. 7 THE COURT: I maintain the position that for 8 logistical reasons they all go back or they all stay, and I'm 9 not going to -- 10 MR. COHN: I'm not suggesting that you interfere. I 11 just said he'd rather come out rather than sit in back and 12 stair at a brick wall. 13 THE COURT: It makes sense. I have no problem with 14 that. 15 We'll mark as Court Exhibit A of April 23rd, and as I 16 indicated during the course of the day I plan to go over each 17 objection, page by page, but I'd like to first begin with some 18 general rulings. 19 (Court Exhibit A marked) 20 The motion to dismiss the last count for a lack of 21 venue is granted for reasons which I will elaborate in an 22 opinion to follow, the substance of which is I do not find 23 that to be a continuous offense. It's an offense completed 24 when the false statement is uttered regardless of its impact. 25 Indeed, as counsel for El Hage notes in the prior submission 4546 1 the jury is specifically told that the impact of the false 2 statement is irrelevant, and that the cases on which the 3 government relies in which there is a transmission of a false 4 statement and which permits venue to be either in the place of 5 origin or place of impact are distinguishable. 6 The government has requested that the Court revisit 7 the Pinkerton issue with respect to Count Five of the 8 indictment, and with respect to the defendant Odeh on the 9 grounds that Count Five of the indictment has the specificity 10 between the nature of the conspiracy and the substantive 11 offense, the lack of which caused the Court to indicate that 12 it would not grant the Pinkerton charge with respect to the 13 other count. 14 The problem with that is Count Five has three 15 separate objects and does not in fact contain the degree of 16 specificity which the government asserts. Conceivably one 17 could say if you have found with respect to Count Five -- I'm 18 using original numbers throughout -- if you have found that an 19 object of the conspiracy was to bomb the embassy in Nairobi, 20 then you may find, but that really requires a limitation of 21 what Count Five is about, or may also raise the question in 22 the jury's mind why that applies only to that one count and 23 one defendant. The Court adheres to its prior ruling not to 24 give a Pinkerton charge. 25 While on this subject, you will note the special 4547 1 verdict form, which is a critical document, certainly at least 2 as important as the charge itself, the jury is asked to 3 indicate where multiple objects to the conspiracy which 4 objects it has found. I worried a long time about this. The 5 concern that I have of course is the jury, having found one 6 may spend a great deal of time debating or trying to reach 7 unanimity with other objects of the of the conspiracy count. 8 My inclination is, it's worth the time, although in one 9 instance I think there are five objects of a conspiracy, but 10 if anyone thinks that's not worth doing, I'm ambivalent on 11 that point. 12 I think also it may be helpful with respect to those 13 defendants who may be subject to a death penalty phase to have 14 that added insight into the jury's reasoning and finding. 15 Does anybody think that we should not require the 16 jury to indicate which objects of a conspiracy it found, 17 although it has unanimously found one object, then I would 18 like to be so advised. 19 Silence. We'll leave it the way it is. 20 Let me make one other general observation. The 21 structure of the indictment is the conspiracy, the agreement 22 to do among other things, let's say X, the doing of X, the 23 attempt to do X, the aiding and abetting in the doing of X, 24 and the causing of another to do X. I'd like to focus on the 25 role of the attempt charge. 4548 1 Now, with respect to killing of individuals, I see 2 that, the testimony is that there is a particular desire to 3 kill Ambassador Bushnell. The agenda would make that the 4 subject of greater attention. So there is an attempt to kill 5 her, and not the actual killing of her, and, therefore, I 6 think with respect to the killing count, it's appropriate to 7 have both a substantive, the killing, the actual killing and 8 the count which talks about attempt to kill, making clear to 9 the jury, as I believe the proposed instructions do, that the 10 jury cannot consider the same people. You can't consider an 11 attempt to murder somebody who in the previous count you have 12 found to in fact have been murdered. 13 But I have difficulty understanding what the role of 14 an attempt is with respect to the other count. My 15 understanding of an attempt is when there has not been a 16 consummation. An attempt to kill the prison guard is an 17 attempt, but what is the role of an attempt with use of 18 weapons of mass destruction -- 19 MR. FITZGERALD: Your Honor, I could save you time. 20 THE COURT: Yes. 21 MR. FITZGERALD: We have debated it back and forth 22 and now we're back over the edge. We'll drop the attempt 23 counts beyond the attempted murder of Ambassador Bushnell. 24 Beyond the attempted murder of Ambassador Bushnell we would 25 drop the other attempt counts. 4549 1 THE COURT: Nine goes out. 2 MR. FITZGERALD: Not the counts, I'm sorry. The 3 counts that talk about murder and attempted murder in the 4 conjunctive we will specify that at the break if you want 5 which counts there are. We would not proceed on the attempt 6 language. We're keeping the count for murder. 7 THE COURT: I don't see what you just said. 8 MR. FITZGERALD: The use and attempted use count in. 9 Count Nine we would not proceed on the attempted 10 use. 11 THE COURT: You're keeping the count but you're 12 striking the attempted use. Okay. Use of weapons. I 13 understand. Very good. 14 Now, the government objects to the requirement that 15 in the special verdict form the jury has to be unanimous as to 16 whether they find the defendant guilty as a principal or as an 17 aider and abettor, and I am not prepared to resolve that 18 question. I have not had an opportunity to read these papers. 19 I don't recall ever requiring a special verdict on whether the 20 jury has to be unanimous in finding defendant guilty as a 21 principal or as an aider or abettor, and I am going to defer 22 on that. 23 If the defendants are of the view that the Court 24 should retain the present language requiring a special verdict 25 as to the alternate theory of aiding and abetting or causing, 4550 1 then I would like to be so advised, and I would like to have a 2 written submission on behalf of the defendants by Thursday 3 morning. 4 MR. COHN: Excuse me, which morning, Thursday? 5 THE COURT: Thursday morning. 6 MR. COHN: Thank you, your Honor. 7 THE COURT: Having said all of which, I am going to 8 just go page by page and going to rely on counsel to tell me 9 where there is an issue or a point to be made. What's the 10 first page -- I'm going to have a table of contents, but tell 11 the jury not to pay any attention to the captions. There are 12 cases where the parties litigate the meaning of captions, and 13 simply add, on the top of page 2 on line 2 the phrase, and the 14 captions are simply as a reference and have no other 15 significance. 16 On page 3, middle paragraph line 2, during the trial 17 you insert, may have heard. Three lines from the bottom on 18 page 3, strike the word, struck, and substitute, be stricken. 19 What's the first page on which somebody has a comment 20 or objection? 21 MR. COHN: I have something on 35 unless somebody has 22 something else. 23 THE COURT: On page 35. 24 MR. COHN: May do I this sitting down, your Honor? 25 THE COURT: Yes. You may even take off your jackets 4551 1 if you like. This would normally be down in the robing room. 2 MR. COHN: There is a limit to how much I'll burden 3 the Court with unsightliness. 4 THE COURT: Now, with respect to the conduct of 5 counsel, I put in the bracket and say, if used. Is there 6 anybody who does not want that paragraph? We raised this at 7 the beginning of the trial and there was not unanimity. Do 8 counsel want this in or out? 9 MR. COHN: I want it, but I would like it amended to, 10 in fact, you know the jury has seen a number of us spend the 11 time talking to the government as well, and so what I really 12 wanted was conduct of cooperation of all counsel rather than 13 leave it just with the defendants. I don't know how my 14 colleague on the defense side feel about that. 15 MR. DRATEL: That's fine with us, your Honor, but we 16 also request the instruction be given. 17 THE COURT: The first sentence, divided the work. 18 That relates only to the -- 19 MR. COHN: I'm not sure they know we divided the work 20 if you really must know. I mean they've seen us consult. 21 They've seen us pass notes to each other, but I don't know 22 that they know on legal issues we've divided the work, but I 23 don't know that we've done it on factual issues particularly. 24 THE COURT: You propose that that language be 25 retained. 4552 1 MR. COHN: No, I would say, and have divided the 2 work -- well, I did propose it. I didn't think of it in that 3 context. 4 THE COURT: You know what, I'd better mark Court 5 Exhibit B of today's date is Al-'Owhali's proposed changes. 6 Court Exhibit C is the government's letter of April 20th. 7 Court Exhibit D is Mr. Dratel's letter of April 20th. Am I 8 missing anyone? 9 (Court Exhibits B through D marked) 10 MR. DRATEL: Your Honor, my letter is on behalf of 11 both El Hage and Odeh. 12 THE COURT: That's Court Exhibit D is on behalf of 13 those. Mr. Odeh I think submitted something only with respect 14 to the Pinkerton charge and I have ruled on that. 15 I'll strike, and has divided. I have also noted 16 throughout the trial counsel for various defendants have 17 consulted with each other. Strike, and have divided the work 18 of the trial, and leave in an effort to facilitate their 19 presentation and to avoid duplication. 20 MR. COHN: You are not going to accept the language 21 that we've consulted with the government as well? 22 THE COURT: No, I am going to put that in. I can't 23 put that in the first sentence. Have consulted with each 24 other. I can put that in the first sentence. Have consulted 25 with each other and with the government? Anybody object to my 4553 1 saying that? 2 MR. FITZGERALD: No, your Honor. I just think it's 3 very odd. It looks like I don't think anyone is going to 4 think there is something wrong with cooperating. The fact 5 that they're coordinating, you may want to instruct the jury, 6 but I don't see why it look like we're cooperating with the 7 defense. I think -- 8 MR. COHN: It doesn't say you cooperated with us. It 9 says we cooperated with you. 10 THE COURT: With each other. We're going too long to 11 have that type of humor. 12 MR. FITZGERALD: It might make sense just to put the 13 cooperation with the government at the end of paragraph. 14 THE COURT: Yes, I'm coming to that conclusion. How 15 about share the burdens of defense? Is that all right? Last 16 phrase? 17 MR. COHN: Sure. 18 THE COURT: And cooperated with the government 19 without -- 20 MR. FITZGERALD: I might suggest -- 21 THE COURT: Without -- when this did not -- where 22 possible. Just, where possible. That it would be unusual and 23 waste of time and effort if counsel did not share the burden 24 of the defense and cooperated with the government where 25 possible. Is that agreeable to everyone? 4554 1 MR. COHN: Yes. 2 THE COURT: Next page after page 5? 3 MR. COHN: Next one I have is 10. 4 THE COURT: Before we get to that, I'm reminded 5 Counts Seven and Eight also have attempt language in addition 6 to counts Nine and Ten. 7 MR. FITZGERALD: Yes, Judge, we'll treat Counts Seven 8 Eight and Nine the same, and Ten. 9 THE COURT: Now we're on -- 10 MR. COHN: On page 10 I am requesting a charge of 11 failure to testify. I am requesting a charge that the 12 defendant's right not to testify -- 13 THE COURT: You want -- 14 MR. COHN: I am asking for it. Again, I don't speak 15 for my colleague. 16 THE COURT: Does anybody not want it in? We don't 17 have to decide that now. 18 MR. DRATEL: Your Honor, just from page 8, we 19 skipped. 20 THE COURT: Page 8. Yes. 21 MR. DRATEL: Persons not on trial, number 2 in my 22 letter, second to last line, defendant was not named as a 23 defendant in this case, or I would just add, whether or not 24 named as a defendant in the indictment was not tried with the 25 defendant. 4555 1 THE COURT: Any objection? 2 MR. FITZGERALD: No strong objection. 3 THE COURT: Whether or not named as a defendant in 4 the indictment. 5 With respect to the indictment and the long list of 6 names and aliases with respect to defendants not on trial, is 7 there some way we can simplify that or make it clearer to the 8 defendants? Delete them entirely? Delete them entirely, may 9 have to delete many of them. 10 MR. FITZGERALD: You might be able to. We'll take a 11 look at that, Judge, and we can certainly bold face. 12 THE COURT: Underline or do something so you can more 13 readily identify who are the defendants in a particular case. 14 On page 9, second paragraph under publicity, third 15 line, strike, or the Internet, and substitute, elsewhere. I 16 didn't want to suggest to the jury some other place where they 17 could find out about what's going on here. 18 Next page? 19 MR. COHN: I have something on 12, your Honor, if 20 nobody has anything before that. 21 THE COURT: On page 12. 22 MR. COHN: Actually it starts on page 12. Use of 23 particular investigative techniques. 24 THE COURT: Yes. 25 MR. COHN: I object to the use just instructed that 4556 1 law enforcement techniques are not their concern. In fact, 2 they can be their concern under certain circumstances and I 3 just don't know that that's necessary language. 4 MS. BABCOCK: We join that objection, your Honor, and 5 that's mentioned in the letter that we jointly submitted with 6 El Hage. I think that language what the Court does earlier in 7 that the jury can consider investigative techniques in 8 considering whether the government's met further proof. I 9 think it reached too broadly. It is communicated adequately 10 in the previous sentence which says as a legal requirement 11 that the government use any specific investigative technique 12 to prove its case. 13 THE COURT: I have no problem striking that sentence, 14 although it offends tradition, I don't think I have not used 15 that sentence, but I don't know it really adds anything. 16 MR. FITZGERALD: Judge, I would not that we say I 17 think three times it's whether or not the case has been proved 18 by whatever techniques and we can just reinforces the issues 19 not the techniques use, but whether the result gives prove 20 beyond a reasonable doubt or not. 21 MR. COHN: The problem is, your Honor -- 22 THE COURT: The issue is clearly drawn. Give me a 23 moment. I don't think there is any need. 24 Change it to read, the use of specific law 25 enforcement techniques or the failure to use them are not your 4557 1 concern. Your concern is to determine whether or not. 2 Next. 3 MR. FITZGERALD: The government has something on 16. 4 MR. DRATEL: Your Honor, I have something on 13 5 before that, direct and circumstantial evidence. We would 6 prefer something that would give the jury an example of a weak 7 circumstantial inference. That was just the virtue of the 8 example that Judge Leval used and the one that we cited. 9 THE COURT: Now, you know, there was one judge who 10 got tired of the wet umbrella, analogy so he had some other 11 analogy, and the Court of Appeals reversed, and said, you know 12 I don't understand why people don't stick to the tried and 13 true. I know Judge Leval changes the rain to snow, but -- 14 MR. DRATEL: Also the subway platform one, that I'm 15 talking about with that. 16 THE COURT: Let's not. This is classic, well-proved 17 language, and it's perfectly clear and I see no reason to 18 change it. 19 MR. COHN: In that same charge I have asked for a 20 charge that where two inferences -- 21 THE COURT: Yes, and there is law that's 22 inappropriate. 23 MR. COHN: I can still ask. 24 THE COURT: Recent case. The Judge said he was going 25 to do it. He then consulted leaving Friday on a subject, 4558 1 which I don't identify, then did not give it and the objection 2 was that he had not charged it in the way he had indicated in 3 the charging conference that he was going to give it. 4 MR. DRATEL: Just in terms of procedurally, your 5 Honor, could I restate our objection, for example, if we raise 6 and objection, the Court denies it, should we then restate it 7 or is it preserved by the denial we restate our objection to 8 the circumstantial evidence? 9 THE COURT: You don't need to say, I object. 10 MR. DRATEL: Thank you. 11 THE COURT: Next item? 12 MR. COHN: Your Honor, before we get to 16, your 13 Honor, on page 15 where you deal exceedingly briefly with 14 voluntariness, having collapsed it into near invisibility 15 and -- 16 THE COURT: You want the words, if any, after, what 17 weight? Yes. 18 MR. COHN: Yes. 19 THE COURT: I have no problem with that. The next 20 thing is page 18. 21 MR. FITZGERALD: Page 16. The fifth line from the 22 top. My suggestion is that after we say, nor can any such 23 false exculpatory statement, put the words, alone establish, 24 or, alone be sufficient for an inference to be drawn that the 25 defendant knew of and intentionally joined in the conspiracies 4559 1 charged. 2 THE COURT: Any objection? I'll add a line after at 3 the end of the fourth line on page 16. I'm up to 18. 4 MR. FITZGERALD: Judge, we object to the first two 5 paragraphs indicating that the government witnesses had anger 6 toward the defendant, and I don't think that's borne out that 7 the government witnesses had anger or hostility toward the 8 defendants and certainly if we're going to talk about anger or 9 hostility, we should just make it neutral, any witness having 10 any hostility toward any party. I think it singles out the 11 government witnesses for impeachment. 12 MR. DRATEL: Your Honor, that's not true. With 13 respect to al Fadl who expressed a resentment of people who 14 make more money than him which included Mr. El Hage, and he 15 also had -- 16 THE COURT: Strike government from the second 17 sentence, which some witnesses may have toward one or more of 18 the defendants. 19 MR. FITZGERALD: Judge, anger, hostility towards 20 Mr. El Hage in this courtroom over the pay dispute? I think 21 there may be people who had anger toward al Qaeda or toward 22 the bombing, but why are we singling out that no witness had a 23 hostility toward a party? 24 THE COURT: I don't recall. Was this requested or 25 did this come from the Court sua sponte? 4560 1 Sua sponte. 2 (Pause) 3 The change is to read: In connection with your 4 evaluation of the credibility of the witnesses you should 5 specifically consider evidence of resentment or anger on the 6 part of any witness if you find this to be the case. Evidence 7 that a witness is biased, prejudiced or hostile -- strike, 8 towards the defendant, requires you to view that witness' 9 testimony. And then continued. So it's completely neutral. 10 Next? 11 MR. COHN: Your Honor, in accomplice testimony at the 12 starting at the bottom of -- 13 THE COURT: Yes. 14 MR. COHN: I think that you have neglected, although 15 I think it's implied, that they can reject the entire 16 testimony or accept any part of it. 17 THE COURT: I have that someplace. 18 MR. COHN: It's not there. 19 THE COURT: I don't -- 20 MR. COHN: I mean imply that by saying you should 21 reject, and then you go on to say that. 22 THE COURT: Next paragraph. On page 20, as with any 23 witness let me emphasize that the issue of credibility need 24 not be decided in and all or nothing fashion. 25 MR. COHN: Yes. 4561 1 THE COURT: Even if you find the witness testified 2 falsely. 3 MR. COHN: You never make specific that it's their 4 right to reject it in its entirety, and it is their right. 5 MR. FITZGERALD: Which is said elsewhere. 6 THE COURT: I think it's covered on page 20. 7 MR. FITZGERALD: The next objection the government 8 had was on page 20. 9 THE COURT: Yes. 10 MR. FITZGERALD: At the top of page 20 the standard 11 language that a jury is told to look at an accomplice and to 12 determine whether his motive is to testify truthfully or 13 falsely is for them to determine. And then at the bottom of 14 page 20 we have a second charge on cooperating witnesses, 15 somehow distinguished from accomplice witnesses, where the 16 jury is instructed that cooperating witnesses have a motive to 17 testify falsely. 18 That I believe is on the top of page 21 it says: A 19 witness who realizes that he may be able to obtain his own 20 freedom, et cetera has a motive to testify falsely. I think 21 the entire paragraph going from 20 on to 21 and the next two 22 paragraphs is unnecessary in light of the standard charge of 23 accomplice witnesses. 24 THE COURT: Why isn't that true? There is no point 25 in, there are no cooperating witnesses who were called other 4562 1 than accomplices. 2 MR. DRATEL: There are, your Honor. There were for 3 example Ashef Juma. There are certain, the one that comes to 4 my mind right now. There may be others. I don't remember. 5 But who have protection agreements with the United States 6 brought them over, brought 17 members of his family over but 7 he's not an accomplice and a Ashef Juma he's the one I know 8 just off the top of my head. 9 MR. FITZGERALD: Your Honor, also it describes a 10 cooperative witnesses that the agreement not to further 11 prosecute. You can merge, if there is a distinction from 12 accomplice witnesses to witnesses receiving benefits they can 13 be merged into one section. I don't think we should single 14 them out twice and particularly the way the cooperating 15 witness section reads it indicates that all motives are to 16 testify falsely. Cooperative witness section talk about 17 people pleading guilty with cooperation agreements which does 18 not employ to either of the Jumas. 19 THE COURT: I think that's a valid point. I think 20 what I ought to do is to simply say, cooperating witnesses 21 called by the government, that the previous instruction given 22 with respect to accomplices and judging their credibility 23 applies as well to any cooperating witnesses called by the 24 government who may receive some benefit such as, and then pick 25 up the bottom of page 20. 4563 1 MS. BABCOCK: Judge, we would object to removing the 2 cooperating witness instruction because we also, like counsel 3 for El Hage, believe there is a distinction to be drawn 4 between accomplices and witnesses who are cooperating. In 5 fact -- 6 THE COURT: I'm keeping it a separate instruction. 7 The test is really the same with respect to both, and -- 8 MS. BABCOCK: Well, the test is not really the same 9 because cooperating witnesses receive a greater incentive and 10 have a great motive to testify falsely. 11 THE COURT: That's right. That's what we tell them 12 with respect to in the accomplice provision. 13 MS. BABCOCK: My co-counsel reminds me there were at 14 least two witnesses who were cooperating witnesses, but not 15 accomplices. 16 THE COURT: All right. 17 MS. BABCOCK: Ashef Juma and a Ashef Sekander. 18 THE COURT: Suppose we said, cooperating witnesses 19 called by the government on a related note let me say a few 20 words about the agreements between the government and certain 21 of its witnesses other than accomplices and then keep what's 22 at the bottom of page 20. 23 MR. FITZGERALD: Your Honor, there is no agreement 24 not to further prosecute for people to plead guilty. The 25 second sentence of that does not apply to the Juves, one of 4564 1 whom in fact was a defense witness. 2 THE COURT: Strike that sentence. 3 MS. BABCOCK: Your Honor, that language about the 4 government bringing the witnesses cooperation -- 5 THE COURT: Give me a moment, please. 6 (Pause) 7 THE COURT: Suppose we say, on a related note, let me 8 say a few words about the agreements between the government 9 and certain of its witnesses other than accomplices. Strike 10 the next two sentences. 11 Some of these witnesses have been placed in federal 12 protective custody and some have received money in connection 13 with their protective custodial status, and. Then go down to 14 three lines from the bottom. Strike, therefore, you must 15 examine the testimony of such a witness with caution and weigh 16 it with great care if -- and then leave it the way it is. 17 MS. BABCOCK: Judge, we would ask the Court to keep 18 in the sentence that says the government also promised to 19 bring those witnesses' cooperation to the attention of the 20 Court that is sentencing them. 21 THE COURT: That only applies to the accomplice. 22 That doesn't apply here. That's the point. 23 MS. BABCOCK: It's not in the accomplice instruction. 24 THE COURT: Yes, it is. It isn't? 25 MR. DRATEL: Your Honor, all the parts that have to 4565 1 do with that should be reincorporated back into the prior 2 structure. Also, witnesses realize they may be able to -- 3 THE COURT: I see what the problem is. Okay. 4 MR. FITZGERALD: Judge, should we balance it? That 5 there is also a agreement that not only says that the 6 government will bring the cooperation to the attention of the 7 government. 8 THE COURT: You should ask yourselves whether 9 so-called accomplices benefit more by lying than by telling 10 the truth. What we have to do is we have to take what I've 11 just stricken from cooperating witnesses called by the 12 government who are not accomplices and move it into the 13 preceding paragraph. We will do that. 14 MR. FITZGERALD: And without, Judge, the language 15 that was stricken on page 21 indicated that such witnesses had 16 a motive to testify falsely. 17 THE COURT: I'm striking that. 18 MR. FITZGERALD: Okay, great. Thank you. 19 THE COURT: Let me do it. Let me take the time. 20 Page 20, under cooperating witnesses called by the 21 government, the second and third sentence gets inserted on 22 page 19 as a second full paragraph. Otherwise, that remains 23 the same. 24 Cooperating witnesses called by the government then 25 reads: On a related note, let me say a few words about the 4566 1 agreements between certain of the government witnesses other 2 than accomplices. 3 We delete the next two sentences because we move them 4 to page 19, and we strike the first paragraph on page 21 and 5 the first two sentences of the second paragraph on page 21. 6 We strike the word, therefore, and begin, examine that 7 testimony of such a witness with caution and weigh it with 8 great care. After scrutinizing such testimony if you decide 9 to accept it, you may give it what weight, if any, you find it 10 deserves. Next. 11 MR. COHN: Your Honor, it's not on the page because 12 you took it out, but I don't know why you took out government 13 witnesses, took out of the second draft quote government 14 witness improper to consider guilty plea as it existed in the 15 first draft, and I think it ought to be put back in. 16 MR. FITZGERALD: It's still there. 17 MR. COHN: Is it? 18 MR. FITZGERALD: Page 21. In fact, we suggest one 19 change to it. The bottom of page 21 in the second draft talks 20 about how it's improper to consider a guilty plea, with which 21 we obviously agree. The only question the government suggests 22 that the third line from the bottom that we strike in light of 23 the benefits afforded by the government to a cooperating 24 witness that the only issue to tell them the plea is not their 25 concern. 4567 1 MR. COHN: In the words of Emily Latella: Never 2 mind. 3 MS. BABCOCK: Your Honor, we would like that language 4 to remain in there. We think that there is a real danger that 5 the jury goes to be drawing comparisons between those 6 witnesses who pled guilty under similar circumstances, and I 7 think to say that it's simply a personal decision concerning 8 his dealings is sufficient. 9 THE COURT: I'll leave it in. Next page? 10 MR. COHN: 26, your Honor. 11 MR. HERMAN: Judge, can we go back to page 21? We're 12 confused when the Court struck the first paragraph. 13 THE COURT: Why the Court struck the first paragraph 14 on page 21? 15 MR. HERMAN: Yes, sir. 16 THE COURT: I'm sure the government would object to 17 being put in. 18 MR. FITZGERALD: You can put it back in, that's fine. 19 THE COURT: We'll put it back in. 20 MS. BABCOCK: Would it be possible just to read the 21 instruction? 22 THE COURT: Yes. On page 19 I'm going to insert the 23 second and third sentences under the caption, cooperating 24 witnesses called by the government on page 20. 25 The section called cooperating witnesses called by 4568 1 the government will then read: On a related note, let me say 2 a few words about agreements between the government and 3 certain of its witnesses other than accomplices. Then it 4 should read: Now the government is permitted to enter into 5 agreements of this sort. 6 MR. FITZGERALD: I think you omitted the prior 7 sentence, Judge. I'm sorry, the last sentence on page 20 was 8 staying. Some of these witnesses -- 9 THE COURT: Yes, that's in there. That's in there. 10 The government is permitted to enter into agreements of this 11 sort. You in turn may accept the testimony of such a witness 12 and convict each of them on the basis of his testimony alone 13 if it convinces you a defendant's guilty beyond a reasonable 14 doubt. Then we go down to, you must examine the testimony of 15 such a witness with caution and weigh it with great care. And 16 then last sentence remains the same. Next. 17 MR. FITZGERALD: Page 23, Judge. 18 THE COURT: Page 23. 19 MR. WILFORD: I'm sorry, your Honor, with respect to 20 witnesses who have entered into cooperation agreements the 21 language that you have in page 21, while realizing that the 22 witness may, I think it's important for the jury to consider 23 that. 24 THE COURT: 21? 25 MR. WILFORD: Second paragraph on 21 which begins 4569 1 with, however. I understand you don't want it included in 2 this particular section. However, it's important that the 3 jury have an opportunity to consider the cooperation agreement 4 and the motive of the witnesses who have entered the 5 cooperation agreement. It's not anywhere else. 6 THE COURT: It's in 19. 7 MR. WILFORD: It's in 19? 8 THE COURT: Yes, the last two lines. 9 MR. DRATEL: Your Honor is putting it back in the 10 accomplice testimony part is my understanding, because it 11 wasn't in the original. 12 MR. FITZGERALD: The bottom of 19. 13 THE COURT: Enough of this. We'll give you another 14 draft. I think we all know what is intended. Let's move on. 15 MR. FITZGERALD: Your Honor, page 23. The last 16 paragraph singles out to endorse an attack by defense counsel 17 and the legitimacy of the law enforcement witness I don't 18 think that's necessary in light of the prior paragraph. Quite 19 legitimate for defense counsel to try to attack the 20 credibility of a law enforcement witness. 21 THE COURT: Also you know the foundations of the 22 courthouse would shake if that were not included in the 23 charge. 24 MR. COHN: On 24, your Honor, the government objects 25 to the missing witness charge, and I think that in the second 4570 1 paragraph -- 2 THE COURT: That's a question. First of all, is 3 anybody going to argue missing witness? 4 MR. COHN: I am. 5 THE COURT: Who is the missing witness? 6 MR. COHN: Missing witnesses are Kenyan police 7 authorities to testify to the conditions of confinement. 8 MR. FITZGERALD: He didn't seek to produce them. He 9 didn't seek a letter rogatory to go to Kenya to bring them 10 over here. 11 MR. COHN: Your Honor, we couldn't even get the names 12 of the Kenyan witnesses when we tried. The government had 13 control of these witnesses and their identity. It's their 14 obligation to show the conditions of confinement, and the fact 15 that they didn't can be argued to the jury. 16 MR. FITZGERALD: They could have sent a letter 17 rogatory to Kenya saying please produce whatever witnesses 18 were present for prison conditions. 19 THE COURT: What is your objection to it? 20 MR. COHN: In the second paragraph, your Honor, you 21 restated what you said in the first paragraph, and instead of 22 the word, could, you used, would, which means makes the jury 23 project. And new testimony is not exactly material testimony, 24 but I would just leave out the word, new. So I would, on the 25 second sentence of the second paragraph replace the word, 4571 1 would, with, could, which I think is fair, and strike the word 2 new. 3 THE COURT: Strike what word. 4 MR. COHN: New like in N-E-W, like in recent or 5 something different, a different subject matter. I think it 6 implies too much. 7 THE COURT: Oh, no. New testimony is just 8 concatenation of a whole long paragraph which usually says 9 bear in mind, however, that the government has no obligation 10 to call any witnesses whose testimony would merely be 11 duplicative of the prior testimony. So we cut all that out 12 and put in new. You'd rather have -- 13 MR. COHN: It's hardly a place I'm going to draw a 14 battle line, your Honor. 15 THE COURT: I think you're well advised. I'm going 16 to leave it in, and I'm going to put, may, after, you. You 17 may have heard. It shouldn't be evidence. You may have heard 18 arguments. 19 MR. COHN: Yes, that's right, your Honor. 20 THE COURT: You may have heard argument about a 21 witness who has not -- about witnesses. 22 MR. COHN: Yes. 23 THE COURT: About witnesses who have not been called. 24 The defendants argue that these witnesses, and then if you 25 find that any uncalled witness. 4572 1 MR. COHN: And, could have given, instead of would 2 have given? We have no idea what they would have done. I 3 mean I think that's fair to everybody. 4 MR. FITZGERALD: I think I know Mr. Dratel wants to 5 speak. Your Honor, I would ask that this be balanced by an 6 instruction that the defendants have no burden of proof, but 7 they have been given subpoena power and they do have the power 8 to seek letters rogatory. I think the jury should understand 9 that it's not just the government that can produce witnesses. 10 MR. COHN: In the history of this case, Judge, we 11 have been asking since last August for identification of 12 witnesses. Letters rogatory require that we be able to 13 identify people. We have been denied access to that. It's 14 clearly the government's -- 15 THE COURT: You may consider whether witnesses 16 testimony would have merely repeated other testimony and 17 evidence already before you. All right. To change a, would, 18 to a, could, that's a nuance that I'll change the, would, to 19 the, could. 20 MR. COHN: The jury may say to themselves that -- 21 THE COURT: I've granted your request. Let's move 22 on. 23 MR. DRATEL: With respect to missing witness and 24 identification, but I just make it clear that we made a formal 25 request of Ali Mohamed's attorney. 4573 1 THE COURT: I put it in. I put it in. Let's not 2 argue discovery now. I'm leaving it in. Next? 3 MR. DRATEL: 26, 24 from the government. 26, your 4 Honor, recording and transcripts. 5 THE COURT: Exhibit X on top of page 25 contains a 6 list of all the stipulations which have been entered into in 7 the case. I hope there will be such an exhibit. 8 MR. FITZGERALD: Yes, Judge, we handed out the drafts 9 last week. We're just waiting to see. 10 MR. COHN: Your Honor, there is one issue that sort 11 of comes up collaterally with that, and while they're not 12 charged in the case, there probably will be on summations 13 things like power point presentations, which obviously will be 14 previewed to the Court, but I'm not sure they come within 15 charts and summaries. 16 In addition to all of it, we're probably going to 17 present things by way of electronic blackboard and things 18 which are illustrative on argument, but are not really charts 19 that have been admitted in the case. 20 THE COURT: Page 7, certain materials displayed 21 during the trial is not evidence. 22 MR. COHN: I guess during the trial, summation as 23 well. Okay. Thank you. 24 THE COURT: Next. 25 MR. DRATEL: Your Honor, recording of transcripts, 4574 1 page 26. It's also number 6 I believe in my letter. Yes, 2 just to add the sentence which the Court has in many other 3 instances it says quote, like any other evidence the 4 recordings of transcripts should be given such weight as they 5 deserve in light of all the facts and circumstances. I just 6 ask that that be added and put it on equal footing or not more 7 equal footing than anything else. 8 THE COURT: This is your item 6? 9 MR. DRATEL: Yes, your Honor. The quoted portion at 10 the end. 11 MR. FITZGERALD: It seems to say that already in 12 paragraph 1 of 26, the last sentence. 13 THE COURT: You must therefore regard give this 14 evidence equal consideration along with all the other evidence 15 in the case. 16 MR. DRATEL: I don't think that's a correct statement 17 because they don't have to give it equal consideration. They 18 should give it whatever weight they think it deserves. They 19 don't have to give it equal consideration because you're sort 20 of putting tapes above everything else. You say you have 21 everything else that you give the weight it deserves, but 22 tapes you have to give equal consideration to everything else 23 and I think it's over emphasizing the importance of tapes. 24 THE COURT: Where do you want this to go, this 25 language? 4575 1 MR. DRATEL: I think at the end of the first 2 paragraph or at the end of the third paragraph, either way. 3 THE COURT: You want something more than give this 4 evidence equal consideration along with all the other evidence 5 in the case? 6 MR. DRATEL: To me when I read it the reason I put 7 that in when I read it, it's to be overemphasized. 8 THE COURT: Denied. Next. 9 MR. DRATEL: Next is I think 32 and 33. 10 MR. COHN: No, I have something on 28. 11 THE COURT: I have something on 28, also. Talk about 12 numbers and counts and so on, they are going to change, right? 13 We've stricken the last count. You abandoned six so there are 14 two left. Whatever it is. 15 MR. FITZGERALD: We'll figure out the number, Judge. 16 THE COURT: Let's make sure we have the right number 17 and also your answer to each of these special verdicts will be 18 yes or no, or, guilty or not guilty because some of the 19 questions are yes, no. Some are guilty or not guilty. What 20 is on page 28? 21 MR. COHN: Your Honor, we would like you to say in 22 that when you talk about the difference in dates and variance 23 I'd like you to add the language saying, unless the difference 24 in date is material. You seem to give the impression that any 25 date will do. 4576 1 THE COURT: Where are you? 2 MR. COHN: That's on page 28 variance in dates. 3 MR. FITZGERALD: That's 29. 4 THE COURT: The jury should determine whether any 5 such difference is material and if you find it is material. 6 It's right there. 7 MR. COHN: Okay, that's fine, I'm sorry I missed it. 8 THE COURT: Okay. Next. 9 MR. COHN: Anybody before 31? 10 MR. DRATEL: No, 32. 11 MR. COHN: Your Honor, I understand that my comments 12 for page 31, the overview of conspiracy law and the issue of 13 joining one object of the conspiracy being enough flys in the 14 face of a long line of cases, but reviewing those cases it 15 seems to me that all of them deal with conspiracies where the 16 conduct is of such like nature no matter what the charge that 17 joining one of the objects really contemplates joining all, 18 even if they didn't know about all the objects. 19 For instance, in the Bill Cosby, whatever the name of 20 the case is, the Cosby thing there were two objects of 21 conspiracy. One was a travel act and the other was a Hobbs 22 Act, but they both were for the same purpose of extorting 23 money from Bill Cosby, and so they used both of these as 24 objects of the conspiracy. 25 Here we have objects which can be viewed as very, 4577 1 very limited, which is, for instance, bombing in Nairobi 2 embassy, as that's an object of the conspiracy, and then there 3 is killing all Americans essentially everywhere. That I don't 4 know that you can draw from that one object that they could 5 have joined the other. And what that does is so confuses the 6 multiple conspiracy issue that I think it is misleading to the 7 jury in this kind of case. 8 So, again, I know that all the cases, even the most 9 recent pronouncement of the circuit have said that proving one 10 object is sufficient. I think there has never been a case 11 where the objects are so different and, therefore, and it sort 12 of backs into your Pinkerton analysis. 13 THE COURT: It also backs into my reasoning in asking 14 the jury to indicate which object it has found. 15 MR. COHN: Just because they tell us doesn't mean 16 that it satisfies the requirement of law. 17 THE COURT: No, but it tells us what they have 18 considered. I understand your objection not really to be to 19 the charge, but a substantive objection to the indictment and 20 it is denied. 21 MR. COHN: In that regard, also, your Honor, I do 22 suggest a multiple conspiracy charge that is somewhat 23 different than yours, coming on page -- 24 THE COURT: Page 4 of your letter. 25 MR. COHN: -- page 37 of your draft in which I take 4578 1 the language of United States against Berger, and I think 2 again is less confusing to the jury under these circumstances. 3 THE COURT: This is the language in the case. 4 MR. COHN: That is a direct quote, your Honor. 5 THE COURT: In which the Court is suggesting what the 6 charge should say? 7 MR. COHN: Yes. I'm sure your Honor wants to look at 8 the same case as the case in full, and I just suggested to you 9 and we can proceed on this after you've read it. 10 THE COURT: I am going to reserve on that. I 11 reserved now on two things. I think only two things I'm 12 reserving on, the government's request that the jury not be 13 required to be unanimous as to whether a defendant is 14 convicted as a principal or an aider and abettor, and I'm 15 reserving on the proposal that the multiple conspiracy charge 16 language on page 37 tracks that in the United States against 17 Berger. My resolution of both of those things will be 18 reflected in the next day. 19 Next. 20 MS. BABCOCK: Your Honor, page 33, which we object to 21 the use of the term combination to define a conspiracy, and 22 this is something that the Court uses in a couple of different 23 places throughout the charge. Again, on page 35, I think we 24 list, do we list the pages in our letter? 25 MR. DRATEL: No, just the three places without the 4579 1 pagination. 2 MS. BABCOCK: Our pagination was a little bit 3 different than yours, so we didn't list all the specific 4 pages, but object to that because to me common sense meaning 5 of the word combination is just a joinder, and it doesn't, 6 it's not the same as what is required for conspiracy which is 7 a meeting of the mind or a mutual agreement. I think the term 8 is also vague. I don't think the jury is going to know what 9 it means. I think it lowers the government's burden of proof 10 on that element. 11 MR. FITZGERALD: Your Honor, the language follows 12 immediately after combination of two or more persons to join 13 together to accomplish some illegal objective in violation of 14 the laws of the United States. 15 THE COURT: Denied. I think this is time honored 16 standard language, the meaning of which I think is quite 17 clear. 18 Next. 19 MR. COHN: Your Honor, although I didn't do the pages 20 I believe as to Mr. Al-'Owhali aiding and abetting is just not 21 possible under the evidence and no aiding and abetting charge 22 ought to be given to him. Either he's a principal, or he's 23 not. 24 THE COURT: Denied. Typo page 36 next to the last 25 line should be conspiracy in fact had the unlawful purpose 4580 1 specifically alleged in the indictment. 2 MR. DRATEL: The proof of multiple conspiracies page 3 38, that second paragraph with respect to the defendants 4 intention is item 9 in our letter. We would ask the Court to 5 wait to determine what the defendants are going to argue, what 6 the defendants' intentions are. 7 THE COURT: Wait till the arguments? 8 MR. DRATEL: I'm sorry, your Honor, I misspoke. Wait 9 till there is, that there is articulation of what is going to 10 be argued. I don't know that we're going to argue at that 11 point, but no one else is going -- 12 THE COURT: You just don't understand the sequence. 13 The Court is mandated under the rules to advise the defendant 14 prior to closing argument what it will charge, so apart from 15 the logistics I don't think I can withhold advising you what 16 the charge until you've made your argument. 17 I do, however, and this is as good as time as any, to 18 alert you to the fact that although there will be a printed 19 charge which the jury will have, that I reserve the right to 20 deviate from the printed charge in the event that I conclude 21 that in closing argument any counsel has deviated improperly 22 from the record or the law. This is known by my colleague and 23 good friend Judge Brieant as the right to spear the red 24 herring, and as I understand, and counsel should understand, 25 that that is a right that the Court specifically does reserve. 4581 1 Now, you want me to wait with respect to what issue? 2 MR. DRATEL: It says here the defendants contend that 3 the government's proof failed to show under any of the 4 coconspiracy counts that there existed only one overall 5 conspiracy. Rather they claim -- first, if we're going to put 6 something here that's going to be conclusive I would ask that 7 it say, some of the defendants. It's not clear that all the 8 defendants are going to argue that. 9 THE COURT: Is there any doubt that this is an 10 argument that is going to be advanced by at least some of the 11 defendants? 12 MR. COHN: I'll be making that argument. I don't 13 know who else is. 14 THE COURT: I'll put in here, some of. 15 MR. DRATEL: The only other change I would have then 16 to that is the last sentence reads: Rather, they claim that 17 in each of the four conspiracy counts, before it gets to there 18 actually just to put in to the extent that the government has 19 proved the existence of any conspiracy. 20 THE COURT: No. That doesn't really add anything. I 21 see what you are saying because this is what the defendants 22 are saying. You want to say to the extent? 23 MR. DRATEL: The government has proved the existence 24 of any conspiracy, and then. 25 THE COURT: I'll put that in. 4582 1 MR. DRATEL: Thank you, your Honor. 2 THE COURT: Let's take a five-minute recess. 3 (Recess) 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4583 1 THE COURT: Let's resume. Some of the defendants 2 have taken a prayer break but Mr. El Hage is the only 3 defendant who wishes to be present, and he is present. 4 Mr. Dratel, I revisited your concern about recording 5 the transcripts, and would it alleviate your concern if on 6 page 6 at the end of the first full paragraph we said, that is 7 to say, you should give this evidence such weight as you 8 believe it deserves in light of all the facts and 9 circumstances? 10 MR. DRATEL: Yes, your Honor. 11 THE COURT: We will put that in. 12 MR. DRATEL: Thank you. 13 THE COURT: Where are we? 14 MR. FITZGERALD: The government has nothing until 43. 15 THE COURT: Does anybody have anything before 43? 16 MR. COHN: The only other thing I had, your Honor, 17 and I raise it just by way of caution for the record, is that 18 you are not giving me a single act charge. 19 THE COURT: What do you mean by single act charge? 20 MR. COHN: In other words, I suggested in my request 21 to charge -- it's a Porelli charge. 22 THE COURT: Yes. 23 MR. COHN: Single act is not necessarily evidence of 24 joining a conspiracy but must be considered in the context 25 that -- it's that charge. 4584 1 THE COURT: We say on 43, in fact, even a single act 2 may be sufficient to draw the defendant within the ambit of 3 the conspiracy so long as the defendant has knowingly and 4 willfully joined the conspiracy. Tell me the language you 5 want. 6 MR. COHN: I had suggested it in my request to 7 charge, your Honor, and I don't have it with me. I will get 8 it to you again. 9 THE COURT: No, no. I have your requests to charge. 10 MR. COHN: Not the objection but the requests. I 11 didn't bring that with me, I am sorry. 12 MS. BABCOCK: We actually have something on 42. 13 THE COURT: 42. 14 MS. BABCOCK: The first full paragraph, the second 15 sentence from the end says on the other hand, each defendant 16 denies that he was a member of any of those conspiracies. We 17 have asked that that be stricken and substituted for the 18 following sentence: On the other hand, the defendants contend 19 that while they may have been acquainted and in contact with 20 others named as coconspirators in the indictment, they did not 21 have knowledge of the illegal purpose or purposes of the 22 charged conspiracies. 23 THE COURT: We have that. Look at page 44. 24 MS. BABCOCK: The reason we suggest it there, your 25 Honor, is that the sentence that you have is kind of a non 4585 1 sequitur. What you are saying in the preceding sentence is, 2 the government contends that these acts and conversations show 3 beyond a reasonable doubt knowledge on the part of the 4 defendant, and then you say on the other hand each defendant 5 denies he was a member. 6 What we are trying to do there is to make that 7 consistent with and sort of the opposite of what the 8 government contends. On the other hand, each defendant 9 contends that the acts and conversations, that he was 10 acquainted with them but that they don't show knowledge of the 11 illegal purpose. 12 THE COURT: I see what you mean. So it would read, 13 on the other hand, each defendant denies that these acts and 14 conversations showed that he had such knowledge. All right, I 15 will make that change. Next? 16 MR. FITZGERALD: On page 43, your Honor, as suggested 17 at the bottom of page 2 of the government's letter, I think 18 that the first paragraph should be amended to make clear that 19 having a conversation where you agree to an unlawful agreement 20 can make you guilty. So I think the language would be at the 21 end of the first paragraph, such assembly and discussion does 22 not by itself insert the word necessarily, establish an 23 unlawful agreement -- 24 THE COURT: I have lost you. Where are we? 25 MR. FITZGERALD: Page 43, the end of the first 4586 1 sentence of the first full paragraph. Such assembly and 2 discussion does not by itself necessarily establish an 3 unlawful agreement, inserting the word necessarily -- 4 THE COURT: I am sorry. We are on page 43? 5 MR. FITZGERALD: Yes, first full paragraph. 6 THE COURT: The one that begins I caution you. 7 MR. FITZGERALD: Yes, the end of that first sentence. 8 Sorry. The phrase and such assembly and discussion does not 9 by itself, insert the word necessarily, establish an unlawful 10 agreement, and then adding unless, of course, you find that an 11 agreement was reached during that conversation. 12 THE COURT: I think that is fair. Unless you find 13 that -- I question whether we have to modify agreement. 14 Unlawful agreement? 15 MR. FITZGERALD: Yes. 16 THE COURT: An unlawful agreement was reached at that 17 time. 18 MR. DRATEL: Your Honor, I just think it somehow has 19 to be tied to the agreement charged in the indictment. 20 THE COURT: Excuse me. An unlawful agreement charged 21 in the indictment was reached at that time? 22 MR. DRATEL: Yes. 23 MR. FITZGERALD: But the discussion of the law here 24 generally discusses free discussion of ideas generally. It is 25 not illegal unless you have reached an illegal agreement. It 4587 1 is not limited to the context of the indictment. 2 THE COURT: Yes, you can't put everything in one 3 sentence. I think the government's point is well taken. 4 Next? 5 MR. FITZGERALD: The government has nothing until 6 102, reserving its right on page 84. 7 THE COURT: Anything between 42 and 102? 8 MS. BABCOCK: Yes. On 46, I believe it is, regarding 9 the acts and declarations of coconspirators. It is actually 10 on page 47. We move to strike that entire paragraph, starting 11 with what does this mean, and the reason we move to strike it 12 is because we believe that there is a risk that when the jury 13 reads this they are going to be misled regarding the 14 government's burden of proof on the substantive crimes charged 15 in the indictment and might be tempted to convict on the 16 substantive crimes based on the Pinkerton theory. 17 THE COURT: But, you see, this deals with statements 18 made, which is very much relevant to the existence of the 19 conspiracy and its objects. 20 MS. BABCOCK: Your Honor, I misspoke. The paragraph 21 that we wanted stricken is the one that begins with 22 accordingly. 23 THE COURT: OK. No. I understand what your concern 24 is and I am not going to charge Pinkerton, and I don't think 25 Pinkerton will occur to a lay jury absent a specific 4588 1 instruction to that effect. Next. The government has nothing 2 until 102. Anybody have anything until 102? 3 MR. DRATEL: Yes, page 50. This is number 12 and to 4 a certain extent 13 as well, because it is the same section, 5 Count 1 and Count 3. The overt act committed in furtherance 6 of a conspiracy, the last sentence on page 50. In other 7 words, the fact that they already found an overt act was 8 omitted, and we would just add the portion underlined at 12. 9 Where it says your obligation to find unanimously, I would 10 just add there beyond a reasonable doubt, and then at the end 11 of the entire sentence, considering, and then a comma and then 12 before finding that element has been proved. Just as a 13 reference point, on 62 -- 14 THE COURT: Just a moment. I will put in beyond a 15 reasonable doubt, and before finding that element has been 16 proved just repeats what is at the beginning of the paragraph. 17 MR. DRATEL: That last language, the reasonable doubt 18 language is already in 62, the second-to-last paragraph. 19 THE COURT: I am going to change the last sentence on 20 page 50 by putting after the word unanimously, and beyond a 21 reasonable doubt. 22 MR. DRATEL: Right. 23 THE COURT: Otherwise I will leave it the way it is. 24 MR. DRATEL: Thank you very much. 25 THE COURT: Next? 4589 1 MR. DRATEL: I just wanted to say at 62 I had the 2 same addition at the end but it is the same as the one your 3 Honor just put in. We can move on to 71, which is, we would 4 not request a withdrawal charge. 5 THE COURT: And you said something about page 62 the 6 same -- 7 MR. DRATEL: Just at the end, I would ask for it to 8 say before you find that element. 9 THE COURT: Page 62? 10 MR. DRATEL: Yes, second to last paragraph. 11 THE COURT: Yes. 12 MR. DRATEL: Which is essentially the same 13 instruction as the one we looked at at page 50. I am just 14 asking you to add the language that your Honor didn't want to 15 add to page 50. 16 THE COURT: Reasonable doubt is already in there, OK. 17 Now, you are telling me you do not want a withdrawal 18 charge. Next thing that somebody wants. That's it? 19 On page 109 I am going to add the sentence this is 20 because the offense of attempted murder does not apply to 21 victims who were actually killed. And at page 120, after 22 Counts 280 and 281, whatever the correct numbers will be, I 23 think I will say that is Julian Bartley, Sr. or Prabhi Gutpara 24 Kavaler, who were actually killed. 25 MR. FITZGERALD: Judge, I am lost on the page 4590 1 numbers. I think we may be on different pages. 121? 2 THE COURT: This is the attempt to kill 3 internationally protected persons. 4 Is there any evidence of an attempt to kill 5 internationally protected persons other than those who were 6 killed? 7 MR. FITZGERALD: I am still -- 8 THE COURT: You are still lost. 9 MR. FITZGERALD: Yes. 10 THE COURT: I am still on 120. 11 MR. FITZGERALD: My 120 says -- 12 MR. COHN: Mine says using explosives. 13 MR. WILFORD: Mine says please note. 14 THE COURT: Does any government attorney have a page 15 120 that says please note? 16 MR. FITZGERALD: No, but we have it on 118. Please 17 note, however, that to satisfy this element -- 18 THE COURT: Yes. 19 MR. FITZGERALD: Thank you. 20 THE COURT: My question is -- I make the same point 21 made on 109. You can't intend to kill somebody actually 22 killed, so this is somebody other than Bartley and Kavaler who 23 were actually killed. 24 MR. FITZGERALD: Yes. 25 THE COURT: My question to the government is, is 4591 1 there any evidence -- 2 MR. FITZGERALD: Yes. 3 THE COURT: This is both Kenya and Dar es Salaam. So 4 the ambassadors. 5 MR. FITZGERALD: Yes. 6 MR. COHN: I don't know that they ever proved that 7 the ambassador is an internationally protected person. They 8 asked for a stipulation as to the two people who did die, but 9 I have no recollection that there was any evidence that the 10 ambassador was such a person. 11 THE COURT: How about the definition of 12 internationally protected person? 13 MR. FITZGERALD: Your Honor, the statute defines 14 internationally protected person to include ambassadors. 15 THE COURT: I have some problem -- 282, attempted 16 murder of the ambassador and other employees. Yes? 17 MR. FITZGERALD: Yes, Judge. 18 THE COURT: 283 is what? 19 MR. FITZGERALD: The same with regard to Tanzania, 20 the ambassador employees of the U.S. Embassy in Tanzania. 282 21 is the count with regard to the embassy in Nairobi. 22 THE COURT: And 283, the acting ambassador was not in 23 fact killed. He testified -- never mind, I withdraw the 24 question. 25 Next. 4592 1 MR. FITZGERALD: Your Honor, 102 on my pages, which I 2 will tell you is Counts 235 to 275 and 277 to 278, under the 3 elements, second element, victim status, we just wanted to 4 change your Honor's instruction, the last sentence on the 5 partial paragraph of page 102 that says individuals employed 6 in United States Embassies are officers and employees. We 7 wanted to change that to by, employed by United States 8 Embassies. That comes up twice. 9 THE COURT: Where is it? 10 MR. FITZGERALD: It is the second element of Counts 11 235 to 275. 12 THE COURT: In should be by, OK. 13 MR. FITZGERALD: The same thing happens roughly six 14 pages later under the second element of Counts 276 and 279 at 15 the end of the first paragraph. 16 THE COURT: Yes. What is the next point? 17 MR. HERMAN: Judge, I am sorry. On page 116 where 18 the discussion is Count 282, it is my understanding that Mr. 19 Odeh is no longer charged in Count -- 20 THE COURT: 282 is Kenya. 21 MR. HERMAN: The red-lined copy I got took him out of 22 283. 23 MR. FITZGERALD: He should be charged in 282. 24 THE COURT: Count 283 charges K.K. Mohamed. I am 25 looking at page 116. The caption is Counts 282 and 283. 4593 1 Next. 2 MR. FITZGERALD: On page 139, unless there is 3 something before then. 4 MR. DRATEL: 138. 5 THE COURT: What does your page 138 begin with? 6 MR. DRATEL: Second element, falsity. 7 THE COURT: Good. 8 MR. DRATEL: End of the second line. To satisfy this 9 element the government must prove, I would just add beyond a 10 reasonable doubt. 11 THE COURT: It's in the previous sentence. 12 MR. DRATEL: When I see the government must prove -- 13 THE COURT: Yes, I know, but read the sentence 14 before -- OK. 15 MR. DRATEL: Your Honor, I think the government is on 16 140. 17 MR. FITZGERALD: Under the fourth element knowingly. 18 It might be 138. 19 THE COURT: I have it 140. 20 MR. FITZGERALD: Then it says the defendant may have 21 given incorrect testimony because of -- 22 THE COURT: Yes, last line, page 140. May have given 23 incorrect testimony because -- 24 MR. FITZGERALD: And I you go either that the 25 defendant contends he may have given or a person may have. 4594 1 Otherwise it may sound to the jury that the court is giving -- 2 THE COURT: If a defendant, change the to a. 3 MR. FITZGERALD: He is the only defendant charged 4 with perjury. A witness can give, as long as it is generic 5 and doesn't look like the court is endorsing a view. 6 THE COURT: Let's change the defendant to a witness. 7 MR. DRATEL: If a witness may have given. 8 THE COURT: May have given. 9 MR. DRATEL: Your Honor, on the same page, 10 materiality, the last paragraph, the last sentence, need only 11 find beyond a reasonable doubt. 12 THE COURT: Change a witness to someone, someone may 13 give incorrect testimony because of. 14 What is next? 15 MR. FITZGERALD: Nothing from the government. 16 THE COURT: Is there a request for recantation? 17 MR. DRATEL: Yes, your Honor. 18 THE COURT: And the government agrees that the 19 defendant is entitled to a recantation instruction? 20 MR. FITZGERALD: I don't believe so, Judge. I 21 believe a recantation is supposed to be a statement that what 22 you said earlier is false. We oppose the recantation because 23 there was no testimony from El Hage that he gave false 24 testimony earlier. He merely tripped over that testimony. 25 THE COURT: I am just looking at the bottom of 142. 4595 1 You must find that the defendant El Hage admitted that a prior 2 declaration was false -- what is the evidence that he admitted 3 a prior declaration was false? My understanding of the 4 recantation is that it's got to be a very explicit statement. 5 You can't deduce recantation by inference. 6 MR. DRATEL: Your Honor, our position is that it 7 would be a question for the jury. 8 THE COURT: I am going to require briefing on that, 9 and that is the reason why I put recantation in brackets. Let 10 me have a memorandum on behalf of El Hage by Thursday, 11 indicating why defendant believes the evidence supports a 12 recantation charge and the response from the government on 13 Tuesday. Is that it on the charge? 14 Have people gone over the special verdict form? 15 MR. COHN: I have not. 16 THE COURT: Let's take up the special verdict form on 17 Wednesday together with the motion to quash. There is a 18 motion to quash -- 19 MR. FITZGERALD: Department of Defense subpoenas. 20 THE COURT: Will Mr. Baugh be here? 21 MR. COHN: I think he will. I know that he submitted 22 something. I will check. He should be here tomorrow. 23 THE COURT: If he is not here tomorrow, ask him 24 whether he wants to withdraw the subpoena, and that might 25 resolve the whole matter. 4596 1 MR. DRATEL: Your Honor, I can do this in writing. 2 This is to give the government an opportunity. The most 3 recent redacted indictment that the government provided, there 4 are still a couple of things that I think should be redacted. 5 THE COURT: Do it in writing so the government will 6 have an opportunity to reply in writing. I see I was unable 7 to convince the defendants to omit the initials for the 8 multiple acts. 9 MR. FITZGERALD: Third alphabet we throw in the 10 towel. 11 THE COURT: Anything else? 12 MR. FITZGERALD: With regard to tomorrow, there is an 13 issue with regard to two witnesses that the defendant Odeh 14 seeks to recall. Defendant Odeh wishes to recall Kherchtou as 15 a witness with respect to what his knowledge was in the 1994 16 time frame when Ali Mohamed was coming through Nairobi. 17 Because they were provided materials with respect to Kherchtou 18 relevant to that point, we do not object. However, I 19 understand there may be an intention to cross-examine him on 20 his cooperation agreement, which I think was amply covered in 21 his prior appearance. So there is no objection to Kherchtou 22 being produced but there is in going beyond the scope of the 23 surveillance in the 1993 and 1994 time frame. 24 THE COURT: Any quarrel with that? 25 MR. RICCO: Yes. 4597 1 THE COURT: Why? 2 MR. RICCO: We don't believe that our defense case is 3 limited by the scope that the government presents in its 4 direct case and our cross-examination. We initially were 5 going to call Mr. Kherchtou with respect to the Somalia issue. 6 That was not resolved until this morning. We put the 7 government on notice with respect to that. But in our 8 preparation for that Somalia issue, we saw an outstanding 9 issue that we had not fully explored with respect to his 10 knowledge about the decision to kill Americans wherever they 11 could be found, worldwide, and his decision to enter a plea. 12 So our question to Mr. Kherchtou is really a very simple 13 question: At what point did he join the conspiracy to kill 14 Americans wherever they are found. I don't see any prejudice 15 to the government at all by asking that question. 16 THE COURT: I don't think a defendant is precluded 17 from calling a witness in the defendant's case simply because 18 the witness was a government witness on the government's case. 19 MR. FITZGERALD: No, Judge, but if it is 20 cross-examination on issues previously covered, I do not think 21 that you can call someone back in the defense case and have a 22 second run at cross-examination. I understand if new ground 23 is covered, but we have gone down the road of the cooperation 24 agreement and, one, I don't know what else the Odeh team is 25 going to do, I don't know what other defense teams might do, 4598 1 but I don't think we should have another round of 2 cross-examination of Mr. Kherchtou. That is why we did not 3 object to further questioning on the surveillance. 4 THE COURT: Thank you for alerting me to the issue, 5 but I think I have to hear the questions before I can make a 6 ruling. 7 MR. FITZGERALD: The second and last issue is with 8 regard to Special Agent Dohrn, who was sort of a summary 9 witness, who was aware of some money that Mr. Odeh had, which 10 was not offered in evidence. It was taken from Mr. Odeh in 11 Nairobi. Evidently it was placed with, I believe, the Kenyan 12 authorities. It was taken by the FBI, given back for 13 safekeeping. The FBI lost track of it but recovered it later 14 and later gave it to Michael Young when he needed funds. My 15 understanding is that she will be called to testify as to the 16 tracking of the funds and I don't understand questioning with 17 respect to chain of custody with respect to something not in 18 evidence. 19 MR. WILFORD: First, there was testimony with respect 20 to other items seized from Mr. Odeh. Additionally, there is 21 evidence with respect to the chain of custody. These items 22 were seized from Mr. Odeh and they were together at one point 23 and then they were separated. I think it is appropriate for 24 the jury to determine the weight to give that evidence. 25 THE COURT: When you say chain of custody, was this 4599 1 money kept together with other things as to which the chain of 2 custody is relevant? 3 MR. WILFORD: For a period of time, and then all of a 4 sudden the money goes someplace, we don't know, and reappears 5 after a full-blown search, and not only do they find the 6 money, they find his glasses and other property which was 7 separated from the other property. I think it goes to chain 8 of custody. The government presented evidence to show that 9 when the FBI came into the picture it was a very tight chain 10 of custody. That was presented to the jury. The jury should 11 have the opportunity, your Honor, to have the ability to 12 examine that chain of custody. Part of the examination of the 13 chain of custody is the disappearance and reappearance of the 14 currency and his glasses and other items, which were all 15 seized from him at the same time. 16 THE COURT: Were seized at the same time as the Nike 17 bag? 18 MR. WILFORD: Everything was seized at the same time, 19 Judge. 20 THE COURT: I will allow it. 21 Is Odeh going to present its entire case tomorrow? 22 MR. RICCO: Entire case tomorrow, God willing. 23 THE COURT: To coin a phrase. 24 Where are you with respect to the hearsay in the 25 Gaudin matter? 4600 1 MR. RICCO: We are not going to call Gaudin but we 2 don't believe his testimony should be stricken. We can do 3 that at any time before closing arguments. 4 THE COURT: This Somalia thing with the stipulation 5 wasn't enough of a stipulation, with today as a result. I am 6 not going to push counsel any harder. 7 So Odeh will rest tomorrow and Mr. Odeh has already 8 allocuted on his not testifying. 9 MR. RICCO: That is correct. Your Honor, Mr. Cohn 10 has always said that he has an objection to a witness that we 11 are calling tomorrow and I think he wants to put that 12 objection on the record. 13 MR. COHN: Your Honor, I started to apologize because 14 I know that Mr. Ricco sent an e-mail this weekend. 15 Unfortunately because I have moved and Verizon does not seem 16 to be on line -- 17 THE COURT: Maybe you can find a good friend whose 18 house you can use for telephone and faxes. 19 MR. COHN: In any event, I don't know precisely what 20 this witness is going to opine about but I believe that he is 21 a religious expert who will testify about proper 22 interpretation of the Koran and who may issue fatwahs and how 23 they are followed. If that is the case, I fail to see the 24 relevance to this trial, and I regard the potential testimony 25 most prejudicial, particularly if he interprets the Koran in 4601 1 ways that are at odds with actions of some of the defendants 2 here. 3 THE COURT: I don't think I can preclude the 4 defendant from offering that. 5 Odeh is going to be tomorrow. How long tomorrow? 6 MR. RICCO: If we get started on time, Judge, we may 7 finish before the lunch hour. 8 THE COURT: And then go back to El Hage, two and a 9 half days? 10 MR. COHN: Is that subjective or objective time? 11 MR. DRATEL: Mr. Schmidt has a better sense of it. I 12 am going by his estimate. 13 THE COURT: Is Mr. El Hage going to testify? 14 MR. DRATEL: Not at this time, your Honor, no. 15 THE COURT: Not at this time. What does that mean? 16 Not at 10 minutes of 7? 17 MR. DRATEL: Your Honor, we will have to defer that 18 question. I understand your Honor's previous point. 19 THE COURT: I think if you recall my previous remarks 20 in chambers I don't need to reiterate. 21 Wednesday we will have a motion to quash with respect 22 to the military. 23 MR. COHN: Is that the morning or the end of the day? 24 THE COURT: 4:30. And we will deal with the special 25 verdict form, which really requires a great deal of thought 4602 1 and a great deal of attention, certainly equal to that given 2 to the charge. Thank you all. 3 (Adjourned until 10:00 a.m., Tuesday, April 24, 2001) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4603 1 2 INDEX OF EXAMINATION 3 Witness D X RD RX 4 JAMES FRANCIS YACONE....4381 4403 4454 4459 5 ABDI ISMAEL SAMATAR.....4479 4523 4526 4527 6 DEFENDANT EXHIBITS 7 Exhibit No. 8 A5 .......................................4440 9 E2 .........................................4479 10 E3 .........................................4485 11 WEHX-W68, WEHX-W54, WEHX-W55, WEHX-W56, 12 WEHX-W49, WEHX-W57 and WEHX-W69............. 4543 13 14 15 16 17 18 19 20 21 22 23 24 25
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