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)
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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