26 April 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 35 of the trial, April 26, 2001.

See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm


   2   ------------------------------x


   4              v.                           S(7)98CR1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

   7   ------------------------------x

                                               New York, N.Y.
   9                                           April 26, 2001
                                               9:50 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge













   1                            APPEARANCES

            United States Attorney for the
   3        Southern District of New York
   4        KENNETH KARAS
            PAUL BUTLER
   5        Assistant United States Attorneys

   8        Attorneys for defendant Wadih El Hage

            Attorneys for defendant Mohamed Sadeek Odeh
  13        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

  15        Attorneys for defendant Khalfan Khamis Mohamed


  17            (In open court; jury not present)

  18            THE COURT:  We said we wouldn't start until 10

  19   o'clock.  All counsel aren't here, but as soon as everybody is

  20   here we'll begin.

  21            (Recess)

  22            (In open court; jury not present)

  23            THE COURT:  Everyone be seated, please.  I

  24   understand -- Mr. Cohn.

  25            MR. COHN:  Sorry, your Honor.


   1            THE COURT:  I understand that --

   2            MR. HERMAN:  I can't hear you, Judge.

   3            THE COURT:  -- the government is considering

   4   consenting to the revision of some of the overt acts, is that

   5   correct?

   6            MR. FITZGERALD:  Yes, Judge.  If I can give you a

   7   status on three items.  We do not seek to have the jury

   8   sequestered.  On the overt acts in the indictment we are

   9   preparing a letter where the issues came up that may seek us

  10   to revise the letter, but we're preparing the proposed

  11   redacted indictment which would change language in some

  12   counts, also, not proceed on certain theories which we hope to

  13   have available later this morning.

  14            On the Somalia issue, however, two things.  First, I

  15   was just was handed additional 3500 material for the witness

  16   at two minutes before 10 o'clock.  He's about to testify at 10

  17   o'clock.  But there is an issue I think we need to put on the

  18   table.  It appears that the defense theory now is that al

  19   Qaeda may have been training people in Somalia but it was

  20   after the Abdi House attack that they began to help the

  21   Somalis attack Americans.

  22            THE COURT:  No, I think the reverse.  That any aid al

  23   Qaeda furnished to the Somalis was prior to the Somali

  24   anti-American activity.  Isn't that the theory?

  25            MR. SCHMIDT:  Yes, it was unrelated to the events in


   1   Mogadishu.

   2            MR. FITZGERALD:  Your Honor, if the relevance is that

   3   the aim of al Qaeda was not to kill Americans prior to the

   4   Abdi House attack, is that the reason it's offered to show

   5   what the Abdi House relevance is?

   6            MR. SCHMIDT:  That's part of it, that the training,

   7   that the government alleges took place, and the evidence shows

   8   in Ogaden and the Gedo region occurred before the Abdi House

   9   attack and was unrelated to the attack on the Americans.

  10            THE COURT:  It is not surprising that the government

  11   isn't entirely clear on what that claim is, because it has

  12   been stated at various times in various fashions, but my

  13   understanding of it is that just as there was aid given to the

  14   to Afghanistan opponents of the Russians -- the analogy would

  15   be -- so here al Qaeda's aid to Somalia took place prior to

  16   any anti-American activity.  Is that it?  Is that what the

  17   point is?

  18            MR. SCHMIDT:  That's the major point.  I mean some of

  19   the training apparently continued on, but it was still

  20   unrelated to Mogadishu.

  21            MR. FITZGERALD:  My point, your Honor, is the state

  22   of mind of anti-American animus, a relevant state of mind is

  23   al Qaeda, not the populace, what their activity was designed

  24   to do.  My point being --

  25            THE COURT:  I don't understand that.  If al Qaeda


   1   furnished aid to a group which did not have any anti-American

   2   animus or program would that not be irrelevant to Count One?

   3            MR. FITZGERALD:  Hypothetically, yes, but that's not

   4   the case.

   5            THE COURT:  Whether that's the case or not is a fact

   6   issue.

   7            MR. FITZGERALD:  But, your Honor, when Al Fadl

   8   testified the evidence that was precluded at that time or not

   9   gone into was the theory that appeared to be different was the

  10   fact that the Americans were attacked on their way to Somalia

  11   in December 1992 when President Bush dispatched the armed

  12   forces to Operation Restore Hope.  On the way over there on

  13   December 29, 1992, Bin Laden operatives bombed the Americans

  14   in a hotel in Yemen transiting through Yemen to get to

  15   Somalia.

  16            THE COURT:  Has any evidence of that been introduced

  17   here?

  18            MR. FITZGERALD:  No, your Honor, because it was

  19   precluded by the defense.  We would seek to put the Court on

  20   notice, I think if we go down the road then in the rebuttal

  21   case we ought to be able to call in examining this witness the

  22   fact that Bin Laden bombed the hotel where the Marines stayed

  23   on their way to Somalia, and the thought that the

  24   anti-American animus or activities started in July of 1993 is

  25   wrong.


   1            THE COURT:  That's true.  I can't preclude the

   2   defendants from introducing evidence in support of its claim.

   3   Whether the facts reached justified that is something else.

   4            MR. FITZGERALD:  I just want to put the Court on

   5   notice so no one thought they were being taken by surprise.

   6            MR. SCHMIDT:  Your Honor, I am taken by surprise.  I

   7   don't recall any preclusion of testimony concerning any other

   8   anti-American violent act.

   9            THE COURT:  But, in any event, it clearly would be

  10   appropriate for rebuttal evidence, whether the government

  11   could have produced it earlier not, I think it's perfectly

  12   clear that the nature of this defense claim has not been

  13   apparent.  Let me just ask one other question.

  14            MR. SCHMIDT:  Your Honor --

  15            THE COURT:  Using the old lettering of overt act, the

  16   overt act with respect to the 18 deaths in Somalia, I think

  17   it's Y.

  18            MR. FITZGERALD:  I can save you time on that.  In the

  19   proposed redacted indictment in terms of which overt act are

  20   which for the jury to vote on that is one where we're disposed

  21   to being redacted at.  There is an error.

  22            THE COURT:  All right.  That will save a lot of time

  23   and had I known that hours ago I would have saved some hours,

  24   but that's perfectly all right.  Are we ready now to bring in

  25   the jury?


   1            MR. SCHMIDT:  No, there is one issue I want to raise.

   2            THE COURT:  Yes.

   3            MR. SCHMIDT:  Mr. Scofield has brought with him --

   4            THE COURT:  That's your next witness.

   5            MR. SCHMIDT:  Yes -- videotape that was produced by

   6   the Australian television that includes footage taken by Mr.

   7   Hassan, a photographer in Mogadishu.  He has also brought with

   8   him hours of taped conversations with Mohamed Shafi, the

   9   surviving journalist of the group, that was after the Abdi

  10   House, who died recently.  I have not had the opportunity to

  11   listen to any of this.

  12            THE COURT:  Certainly you're not going to seek to

  13   play it to the jury before you have seen it and reviewed it,

  14   right?

  15            MR. SCHMIDT:  That is correct.  But this is part of

  16   the source material that allows him to testify concerning the

  17   events of the Abdi House and the Somali reaction.  I'm aware

  18   that it exists.  I am not in a position, because Mr. Scofield

  19   flew in yesterday, to present this with direct examination.

  20   Unless should the government open the door for that, I don't

  21   wish to do so.  I'm making your Honor aware that it is

  22   available and should that happen I would need the weekend to

  23   go through that and listen to it.

  24            THE COURT:  I think we spent sometime yesterday, even

  25   to the point of my outlining the line of questioning and the


   1   manner of questioning with respect to the Abdi House event.  I

   2   don't think of any of that is changed because of the witness'

   3   having other things available.  Obviously, if the government

   4   seek to undermine or impeach his knowledge for the sources,

   5   the basis on which he reaches certain conclusions, the fact

   6   that he has all that material is something that he can say,

   7   but my understanding of what you told me, and that is you do

   8   not intend in the present posture of the case to seek to

   9   introduce any of the videos or any of those interviews.

  10            MR. SCHMIDT:  At this moment, that is correct.

  11            THE COURT:  All right.

  12            MR. SCHMIDT:  Also, because of what we discussed

  13   yesterday, I am limiting his testimony concerning the events

  14   shortly before the Abdi House, the few months before and then

  15   the Abdi House events, and just simply the reaction to it.  I

  16   am not going to be questioning him concerning the continued

  17   warfare between the Aideed clan, Aideed supporters and the

  18   Americans and the UN after the Abdi House up to the October

  19   3rd.

  20            There are tremendous amounts of material that he is

  21   aware of both as a fact witness and as an expert witness of

  22   conduct by both sides that will take an extraordinary amount

  23   of time.  Because I'm limiting it, I'm asking your Honor also

  24   then to limit the government not to go into those areas where

  25   I am not going into, because, otherwise, it's going to open


   1   the door to a tremendous amount of material which, based on

   2   our discussion, we were not going to go into.

   3            THE COURT:  Let me say it again, and I think I'm

   4   repeating.  My understanding of the defense contention here

   5   and the role of this witness is, I said yesterday, temporal,

   6   to show that there was a time when Somali was not opposed to

   7   American presence or activity; that there was an identifiable

   8   point of time triggered by the Abdi raid which caused a

   9   radical revision in the attitude of the Somali populace with

  10   respect to the United States; and the function of this witness

  11   and the nature of this defense issue is to show that al

  12   Qaeda's support or training or aid to Somalia prior to that

  13   time was not pursuant to the anti-American animus which is

  14   part of the conspiracy count.  Is that it?

  15            MR. SCHMIDT:  Loosely, your Honor, --

  16            THE COURT:  You know, let's tighten it up.  I don't

  17   want -- you know, you equivocate.  Every time I try to state

  18   the position you say, well, that's most of it.  Let's have all

  19   of it so that we don't do all of this in front of jury.

  20            MR. SCHMIDT:  This witness is basically limited to

  21   Mogadishu.

  22            THE COURT:  Yes.

  23            MR. SCHMIDT:  He is not familiar with the other areas

  24   of Somalia, so he can't talk about that.  He can talk about

  25   the Aideed subclan and the other subclans that were supportive


   1   of Aideed.

   2            THE COURT:  Can he respond to the question whether

   3   asked on direct or cross, prior to the Abdi House raid were

   4   Somalians engaged in anti-American activities?

   5            MR. SCHMIDT:  The simple answer is yes, they were,

   6   but not of the nature that occurred after the raid.

   7            THE COURT:  The nature?

   8            MR. SCHMIDT:  There was, for example, Radio Mogadishu

   9   Aideed's radio station, broadcast anti-UN things a lot.

  10            THE COURT:  But al Qaeda is not alleged to have been

  11   supporting Aideed.

  12            MR. SCHMIDT:  That's correct.  What it will show is

  13   that the nature of the feelings towards the Americans changed

  14   from perhaps wariness and not wanting to deal with them that

  15   much, to, you know, physically having a war and battle.

  16   That's a substantial change.

  17            THE COURT:  Mr. Fitzgerald alerts us to the fact that

  18   he reserves the right in a rebuttal case to show that there

  19   was a bombing attributable to the Bin Laden group of Americans

  20   en route to Somalia in 1992.

  21            MR. FITZGERALD:  December 29, 1992.

  22            THE COURT:  The point is that the volume increased.

  23   Is that the point?

  24            MR. SCHMIDT:  Your Honor, the first American casualty

  25   in Mogadishu related to any hostile action was in August of


   1   1993 a month after the Abdi House.  The Americans became a

   2   target of Aideed after the Abdi House event.

   3            THE COURT:  American targets of Aideed.

   4            MR. SCHMIDT:  Of Aideed after the Abdi House events.

   5            THE COURT:  Yes.

   6            MR. SCHMIDT:  We believe that the American deaths

   7   that the government attributes to conduct of al Qaeda is

   8   attributed to Aideed and his supporters.  We also have

   9   indicated that the training that occurred prior to the

  10   Americans and the UN even showing up, and after that in other

  11   areas of Somalia, are unrelated to the attacks on the

  12   Americans.

  13            THE COURT:  I think it's appropriate that the

  14   government abandon Y in the overt acts because I don't think

  15   in the present state of the record there is evidence which

  16   shows that the 18 deaths named in that overt act were

  17   attributable to forces allied with al Qaeda as opposed to

  18   forces allied with any other faction in Somalia, but that

  19   overt act is out.

  20            You say there was a bombing of Americans en route to

  21   Somalia?

  22            MR. FITZGERALD:  In Aden, Yemen at a hotel being

  23   billeted as a way station, they were on their way over, they

  24   stopped in Yemen.  They were at a hotel.  I believe there were

  25   three bombs that went off that night that killed, I think, the


   1   janitor in the hotel and two Austrian tourists.  They did a

   2   poor job in the bombing.  And one of the individuals who

   3   worked for Bin Laden lost his arm.  There were some Marines

   4   injured.  There were no fatalities is my understanding from

   5   the bombing.  And then the force continued on to Somalia.  But

   6   the first attack against Americans was literally just across

   7   the Gulf when they flew into Yemen in December 29, 1992.

   8            THE COURT:  Was it known they were en route to

   9   Somalia?

  10            MR. FITZGERALD:  Yes.  It was announced by President

  11   Bush on December 9, 1992.  So en route they bombed them.

  12            Your Honor, getting the 3500 material, learning that

  13   this witness said he's basing his material and having

  14   refreshed his recollection on a number of audiotapes that he

  15   listened to before giving evidence today, knowing that he has

  16   videotapes, we are not in a position to cross-examine this

  17   witness, nor do I really -- honestly, I feel like I'm cutting

  18   water with a fork.

  19            I don't know what Mr. Schmidt is going to offer

  20   through this witness, and if the government is truly a party

  21   like anyone else, and we represent the victims here, I

  22   wouldn't dare put the witness on with this sort of notice to

  23   the defense, and I don't think we ought to be in a position

  24   where we have to hear a witness testify whose 3500 material

  25   indicates he talked about people eating flesh of the dead.


   1            THE COURT:  You're not going to introduce that, are

   2   you?

   3            MR. SCHMIDT:  No, I turned it over, and specifically

   4   why I raise the issue, we don't want to get into that.

   5            MR. FITZGERALD:  Now he's telling me he wants to get

   6   into what he wants in July 1993, he doesn't want anything

   7   beforehand.  I don't know what the relevance is.  There is no

   8   murder count charged having to do with the 18 dead in Somalia.

   9   The point is, what was al Qaeda's mind set?  Were they trying

  10   to help attack Americans?  Did they believe they were?  Abu

  11   Hafs, the military commander, told al Fadl that he believed

  12   they were responsible for the deaths.  Mr. El Hage's

  13   housemate, Harun, wrote a report saying, we're the cell in

  14   Nairobi that's responsible.

  15            The point is the state of mind of al Qaeda, are they

  16   attacking Americans?  We're going down detour as to what the

  17   Somali civilians thought about, just to get in the Abdi House

  18   attack.  This person interviewed people, people who were there

  19   who lost relatives.  I know it's something we're going to get

  20   into blood and gore about the Abdi House attack.  We are in

  21   the unfair position.  We're not given fair notice.  He's going

  22   to say he's testifying based upon refresh recollection based

  23   upon audiotapes we don't even have.

  24            THE COURT:  I know you're saying fair notice, so if

  25   we adjourn this until Monday, what difference does it make?


   1   What would you know on Monday that you don't know now?

   2            MR. FITZGERALD:  First of all, I don't know if we

   3   have tapes to review, but, more importantly, Mr. Schmidt, we

   4   asked him what are you seeking to elicit.  I think we're

   5   getting into --

   6            THE COURT:  Suppose, Mr. Schmidt, without

   7   interruption from the Court, and you know that takes

   8   considerable restraint, but without interruption from the

   9   Court, would you make a proffer of what it is that you hope to

  10   elicit from this witness?

  11            MR. SCHMIDT:  Yes, I will.  Your Honor, I will elicit

  12   his background and his sources of information and his

  13   experience.  I would elicit that the first significant

  14   conflict between Aideed's forces and the UN's forces occurred

  15   in June 5, 1993 as a result of an inspection and

  16   reconnaissance of a location where weapons were being held.

  17   After that, the UN reaction both prior to and after the

  18   issuance of the UN resolution that ordered the securing of the

  19   investigation, the action of the June 5th event were of the

  20   nature of pinpoint attacks on specific locations like places

  21   where weapons were held, the location where they believe

  22   Aideed was living.  There were warnings given to people.  It

  23   was done in a manner to minimize casualties.

  24            On July 12th, although he was out of the country at

  25   that time, after the media broadcast of that event, he


   1   questioned Mohamed Shafi who was the sole survivor and a

   2   person who saw the attack on the Abdi House.  He spoke with

   3   Somali witnesses.  He spoke with Admiral Howe who was the head

   4   of the UN forces.  He read the documents from the UN

   5   concerning those attacks, and that attack was very different

   6   in nature in that in that attack there was no warning given,

   7   the means of exit were destroyed and numerous missiles were

   8   fired into the building, and the casualty report as reported

   9   by the International Red Cross included approximately -- I

  10   don't have the number -- I think 67 people killed, many, many

  11   wounded.  Killed were mostly men, but there were a number of

  12   women who were also killed as well.

  13            Also, part of the source of his information is

  14   viewing the original footage which is approximately 41 minutes

  15   of the film taken by the Somali journalist which was -- and I

  16   won't bring this out, but it was also incorporated in his

  17   televised report.  I'm going to ask him was the reaction of

  18   the Somalis as a result of that, and his answer will be saying

  19   that they viewed the Americans much differently after that.

  20   That's it.

  21            MR. FITZGERALD:  Your Honor, that's trying the Abdi

  22   House assault with a question at the end, which is, oh, by the

  23   way, what did the Somalis think of Americans?  That was

  24   supposed to be the point of what the testimony is.  It's

  25   getting in before the jury a United Nations raid on Abdi House


   1   that is not relevant to the issue in this case, what was al

   2   Qaeda's mind set.  And there is a 403 issue here.  It's very

   3   serious.  And we are getting before the jury the issue what

   4   was al Qaeda thinking in 1992?  Were they going to attack

   5   Americans?  What was their interest?  The fact that the Somali

   6   populace turned against Americans after the attack on Abdi

   7   House --

   8            THE COURT:  The problem with that is that part of the

   9   government's theory is that al Qaeda and Mr. Odeh in

  10   particular were training Somalis.  Now, if at the time you

  11   were training Somalis it was comparable to training Afghans

  12   resisting the communists, then it is not within the scope of

  13   Count One, so the attitude of the Somalis is relevant, and

  14   whether or not one can say that training Somalis was in

  15   furtherance of the objectives of the conspiracy is relevant

  16   here.  I think that the government's concern is correct.

  17            I'm going to repeat what I said yesterday.  With

  18   respect to the raid on Abdi House I'll permit a few leading

  19   questions.  And I suggest before he takes the stand you

  20   caution the witness that you may ask him whether he was aware

  21   of an event, the time or whatever it is; whether based on what

  22   he has seen and heard that had a significant impact on the

  23   attitude of Somalians with respect to the United States forces

  24   working in connection with the UN; and whether or not there

  25   was -- if he knows -- and whether or not there was an


   1   escalation or initiation of anti-American feeling subsequent

   2   to that event, and that's it.  I mean, that's it with respect

   3   to Abdi House.

   4            MR. SCHMIDT:  Your Honor, I wasn't planning on doing

   5   more than that.

   6            THE COURT:  Very well.

   7            MR. FITZGERALD:  Judge, that's what concerns me.  We

   8   agree.  We've elicited from witnesses that people went to

   9   Somalia to train before the Americans were there.  We agree

  10   that there was a time when the training did not involve

  11   Americans.  But Mr. Schmidt agreeing with your Honor's

  12   description doesn't give me great comfort.  Every time --

  13            THE COURT:  I'll give you greater comfort.  The

  14   moment there is a significant deviation, the moment that the

  15   witness attempts to parade the blood and gore or the details

  16   of Abdi House, that witness' testimony will be concluded.

  17            Mr. Cohn.

  18            MR. COHN:  Your Honor, your Honor may recall that we

  19   sought to strike the 18 deaths --

  20            THE COURT:  That's not now.

  21            MR. COHN:  I understand, but it needs a little

  22   preface.  I'm sorry, I generally don't do a long windup, but I

  23   need to put this in some sort of context.

  24            The Court has now in a sense agreed with our argument

  25   then by telling the government that they didn't think the


   1   causal connection has been made, and you may remember that I

   2   tried to bar the testimony of Special Agent Yacone on the 403

   3   analysis which we lost because it was an overt act.  And now

   4   he's testified, the overt act is gone, and I believe that his

   5   testimony ought to be stricken on the present state of the

   6   record.  And, if the Court agrees with me, I know the

   7   government doesn't, because I asked them, and if the Court

   8   agrees with me that it ought to be stricken, but believes that

   9   after the testimony on Abdi House that will change, then I'm

  10   asking for a severance now, because this is the second time at

  11   least in which what the Court has moved the relevant defense

  12   to a non-death defendant is impacted on, if my analysis on

  13   Yacone is right, has impacted on the death phase.

  14            THE COURT:  The motion for the severance is denied.

  15            Mr. Schmidt, excuse me.  When did you learn that the

  16   government was willing to drop the, let's call it the old

  17   lettering, overt act Y?  Did you learn that prior to this

  18   morning?

  19            MR. SCHMIDT:  I didn't even know that.

  20            THE COURT:  You don't know it now?  Have you been

  21   listening?

  22            MR. SCHMIDT:  Your Honor, I have missed it.

  23            THE COURT:  Tell me if I'm wrong, that the government

  24   has advised us that in the submission it is going to make it

  25   will consent to the deletion, among other things, of overt act


   1   Y, using the old lettering, which is 18.

   2            In light of what you heard now, and in light of the

   3   government's reservation of the right on rebuttal to show that

   4   there was an attack made on Americans en route to Somalia in

   5   1992 and 1993, do you want to rethink the wisdom of calling

   6   this witness for the limited purposes for his testimony?

   7            MR. SCHMIDT:  Your Honor, we just, I found this out

   8   now.  I don't know if I missed something yesterday, but I just

   9   found this out now.

  10            If the government is not going to argue that any

  11   member of al Qaeda was involved in killing Americans in

  12   Mogadishu, I do not need this witness.  If they are going to

  13   argue that, they are just going to limit themselves to the

  14   training of, I do not need this witness.

  15            My concern was the fact that if you're charged with a

  16   conspiracy to kill, right, and then they bring, I have to

  17   bring in proof that was accomplished, my concern was that it

  18   was accomplished not by al Qaeda, it was accomplished by other

  19   people.  If they're not going to argue that it was

  20   accomplished by al Qaeda, I don't need this witness.

  21            THE COURT:  That's precisely my question.  Let's look

  22   at the indictment.  I'm looking at objects of the conspiracy

  23   page 10 of the indictment.  I don't know if we're all using

  24   the same version.

  25            MR. WILFORD:  Paragraph 11, your Honor.


   1            THE COURT:  Paragraph 11.  And that has to kill

   2   United States nationals who were serving in their official

   3   capacity in Somalia.  The government wishes to retain that?

   4            MR. FITZGERALD:  No.  But I didn't want to mislead

   5   your Honor.  Let me tell you what our position is.  The

   6   proposed revised indictment that language was reworked which

   7   is being typed now.

   8            The second and third objectives were being subsumed

   9   within the first, as we discussed was a possibility yesterday

  10   afternoon.  So what it's going to say is objective to kill

  11   Americans.  Let tell you what the government's theory has

  12   been, and we've had conversations about dropping that going

  13   back over months I realize.  There wasn't a stipulation.

  14            The testimony of al Fadl was that he understood that

  15   Abu Hafs, the military commander, went to Somalia to assess

  16   the situation to see how they might be able to fight the

  17   Americans.  The testimony was that al Qaeda people went to

  18   Somalia for various reasons.  There was issues going on

  19   separate from America.  There were attacks in Mogadishu where

  20   Harun and Sali were both later told the witness Kherchtou they

  21   were present in Mogadishu trying to help fight the Americans.

  22            There is a report in the computer that was found in

  23   Wadih El Hage's house where Harun describes the Nairobi cell

  24   as basically the support base for the cell because he said

  25   that the Sheik's people, Bin Laden's people are responsible


   1   for the attack in Somalia.

   2            THE COURT:  Give me a moment.

   3            Marshal, would you ask them to tell the jury we're

   4   going to be some time.

   5            MR. FITZGERALD:  The government's theory has never

   6   been a forensic case of proving a murder in Somalia saying

   7   this bullet came from al Qaeda members.  What we have sought

   8   to prove is that al Qaeda was involved in Somalia.  There were

   9   other issues going on there, but there was an issue in seeking

  10   to go to try to attack Americans, they provided training that

  11   they understood that some of the people they trained may be

  12   responsible or were responsible for the killings.

  13            We're not going to say that when Agent Yacone was

  14   shot down that an al Qaeda member pull the trigger.  Our point

  15   is to show the state of mind of the al Qaeda conspiracy.

  16            Bin Laden has issued fatwas saying that the United

  17   States is coming to Somalia to take over the country, to

  18   colonize it, to invade the Sudan.  A fatwa to attack the

  19   Americans in Somalia.  The point isn't how people got shot or

  20   how they got killed, but what the mind set is.  That's why

  21   we're willing to drop the overt act.  That's the argument

  22   we're going to make, but we're not going to say this soldier

  23   was killed by al Qaeda people.

  24            THE COURT:  So that in paragraph 11 the reference to

  25   killing American military in Somalia is not going to remain.


   1            MR. FITZGERALD:  That's the proposal.  I will read

   2   what it will state.  It was a part and object of such

   3   conspiracy that the defendants, and others, known and unknown,

   4   would and did murder United States nationals.  I think that's

   5   where it stops, period.

   6            THE COURT:  Does anybody object to that amendment of

   7   the indictment?

   8            MR. RUHNKE:  Your Honor, this is a death case for my

   9   client as well.

  10            THE COURT:  Excuse me?

  11            MR. RUHNKE:  This is a death case for my client as

  12   well.

  13            THE COURT:  You know, can I just say one thing,

  14   please?  I'm aware this is a death case, and I'm aware of

  15   which defendants are eligible for the death penalty, and I

  16   really do not have to be reminded of that repeatedly.

  17            MR. RUHNKE:  Your Honor, when I lectured seminars I

  18   tell lawyers to do exactly not that unless they really think

  19   the jury has forgotten, and I apologize.

  20            THE COURT:  Sometimes Judges resent it when it

  21   appears as if the Judge has to be reminded of that.

  22            MR. RUHNKE:  I apologize --

  23            THE COURT:  Very well.

  24            MR. RUHNKE:  -- for making the obvious point.  We

  25   have testimony in this case, very dramatic testimony from


   1   Capt. Yacone about what occurred in Mogadishu when the 18

   2   soldiers were dead, and, indeed, testimony about mortar fire

   3   that killed another member of the armed services.  If that

   4   testimony, if that overt act is no longer in the case, why,

   5   and I ask this rhetorically, why is that relevant at all?

   6            THE COURT:  Why is what relevant at all?

   7            MR. RUHNKE:  The death of the 18 American soldiers.

   8            THE COURT:  The government is taking that out.

   9            MR. RUHNKE:  But they're leaving the testimony.

  10            THE COURT:  Are you joining in Mr. Cohn's motion to

  11   strike that testimony?

  12            MR. RUHNKE:  What's the relevance, what's the

  13   remaining relevance of that testimony to this case?  Is it not

  14   a false gift to the defense to quote unquote take the overt

  15   act out of the indictment, leave the evidence there, and just

  16   recast it into another object of the conspiracy, allowing the

  17   government to say, see what kind of things al Qaeda can

  18   produce?  We had the testimony from Capt. Yacone about the

  19   dead 18 soldiers.

  20            THE COURT:  What is the government's response to the

  21   motion to strike, assuming, and I give you moment to tell us

  22   what other Somali-related changes you make to the indictment,

  23   and assuming that Mr. Schmidt on behalf of El Hage reaches the

  24   conclusion that those changes obviate this testimony, to the

  25   striking of the testimony of Agent Yacone, who, as I recall,


   1   the government called when it learned that the stipulation

   2   which had everyone assumed would be acceptable was not going

   3   to be entered.

   4            MR. FITZGERALD:  There are no other changes in the

   5   indictment.

   6            THE COURT:  All right.  I think we all have to be on

   7   the same page.  The change with respect to Somalia are what

   8   you've just said with respect to paragraph 11, the over act Y

   9   comes out in its entirety.  Y is simply deleted an Q remains.

  10   Odeh provided military training and assistance to Usama also.

  11            Is Q in or out?

  12            MR. FITZGERALD:  Q is in.  Just so we're clear, there

  13   are other changes made to the indictment not affecting

  14   Somalia.

  15            THE COURT:  We're just dealing now with Somalia.  I

  16   hope before our conference at the end of the day, and the end

  17   of the day may be sooner than 4:30, that we'll know what those

  18   other changes are.

  19            MR. FITZGERALD:  Yes, Judge.  The reason of timing I

  20   had to go through all the exhibits Mr. Schmidt put in

  21   yesterday and we finished the early part --

  22            THE COURT:  I'm aware of the burdens.  If you like to

  23   think about it, discuss it with your colleagues, we can take a

  24   recess.

  25            The suggestion is that the change be made with


   1   respect to the language in paragraph 11 and no defendant

   2   objects that that is an inappropriate amendment of the

   3   indictment; that Mr. Schmidt not call the Somali expert and

   4   the testimony of Agent Yacone be stricken.

   5            You want to think about that?

   6            MR. FITZGERALD:  Yes, but I can make two comments so

   7   other people can think about other things.

   8            First, your Honor, I think we ought to know what the

   9   defense position is, because people come to us, they say we,

  10   are not, redact the overt act, remove the overt act.  When I

  11   remove the overt act they accuse you of a false gift.  We keep

  12   reacting to things from the defense and then they change their

  13   position.

  14            Our view, however, and I'll talk with my colleagues,

  15   that Yacone's testimony should stay for the reason that there

  16   is discussion by Bin Laden, there is discussion by al Fadl of

  17   what Abu Hafs said of attacks on Americans in Somalia.  Those

  18   attacks were by RPGs, by techniques used by al Qaeda training.

  19   We're not saying al Qaeda's people pulled the trigger, but we

  20   had to put something in the record to establish those attacks

  21   to show that when Harun, who Mr. Schmidt tried to characterize

  22   as a braggart, is talking about the fact that al Qaeda

  23   considers itself responsible for those attacks, that would

  24   show what he meant.

  25            But the bottom line is we need to know the defense's


   1   position.  Every time we think over a position, they come back

   2   and then they switch back.

   3            THE COURT:  If we do it, it will all be on the

   4   record.

   5            MR. WILFORD:  Your Honor, I have a question of the

   6   government with respect to this December 29th incident that

   7   they intend to somehow connect to al Qaeda.  Can he be a

   8   little bit more specific about the proof, because the way it's

   9   been presented that there is a direct connection between that

  10   bombing and al Quaeda, and that's where we started off with

  11   the 18 servicemen.  I don't want to wind up in the same

  12   position.

  13            THE COURT:  Did Bin Laden take credit for that?  Yes,

  14   I understood to have been said.  You know what?

  15            MR. SCHMIDT:  Your Honor, may I have one point?

  16            MR. COHN:  I want to alert the government to some

  17   other --

  18            MR. SCHMIDT:  One issue remaining, that we may not

  19   call the witness, that the government sort of argued that

  20   while they're not going to put forensic proof in al Qaeda was

  21   involved in the killing, my concern is very simple.  I was

  22   prepared to live by the indictment.  The indictment said

  23   training and training trainers.

  24            If the government was going to argue that the words

  25   that Harun wrote in the security report and what Bin Laden has


   1   said indicate that they actually participated in the killing,

   2   I need my witness.  If the government is going to argue that

   3   what they said indicates that they felt they were responsible,

   4   they trained the people who did it, then I do not need my

   5   witness.  The government cannot argue either by the statement

   6   by the other witness' testimony that al Qaeda killed

   7   Americans.

   8            THE COURT:  Am I correct that the evidence includes

   9   Bin Laden's statements with respect to al Qaeda's objectives

  10   in activities in Somalia?

  11            MR. FITZGERALD:  Yes, Judge.  He indicated that he

  12   did help Aideed in one of his statements.  But our theory is

  13   training responsibility, not physical killing.

  14            MR. SCHMIDT:  If that is --

  15            THE COURT:  Training?

  16            MR. SCHMIDT:  Excuse me?

  17            THE COURT:  Are you saying that for you not to call

  18   the witness, the government has to abandon training?

  19            MR. SCHMIDT:  No.

  20            THE COURT:  Okay.

  21            MR. SCHMIDT:  The opposite.  They have to limit

  22   themselves to training and they have to abandon any claim that

  23   any member of al Qaeda actually participated in the physical

  24   act of attempting to kill or kill Americans in Somalia.

  25            MR. COHN:  You know, put this in perspective, and not


   1   changing my position, but just alerting the Court to a

   2   concern, and the government to it as well, and that is we're

   3   now talking about striking the testimony of a major witness in

   4   its entirety.

   5            You can't do that.  I'm not sure that works, but I'm

   6   not prepared to say it doesn't.  But you can't do that with

   7   just a simple charge saying, it's stricken.  I think you

   8   really have to advise the jury, if we do that, in somewhat

   9   stronger terms.

  10            THE COURT:  I would think that a more effective way,

  11   because regardless of the legal fiction that when you say

  12   something is stricken it goes out of the mind, I think a more

  13   pragmatic and useful device would be a stipulation that no

  14   claim is made with respect to the events testified to by

  15   Special Agent Yacone that any members of al Qaeda or persons

  16   directly trained by al Qaeda were responsible for the deaths

  17   of the Americans.  That language can use a little polishing.

  18            MR. FITZGERALD:  I can tell you where we would have a

  19   problem with the language.  I think we can say there is no

  20   contention.  We're not going to stipulate that al Qaeda --

  21            THE COURT:  There is no contention.  The government

  22   makes no contention that --

  23            MR. FITZGERALD:  But that no one from al Qaeda

  24   physically shot -- we don't want to exclude people trained by

  25   al Qaeda.  We're just saying responsibility, not that they


   1   physically killed the people in Mogadishu.

   2            THE COURT:  Why don't one of you start to work on

   3   some language?

   4            MR. COHN:  I would like that to include, and no

   5   defendant on trial is legally responsible therefore.

   6            THE COURT:  Now, you know, you're not, you're asking

   7   for --

   8            MR. COHN:  The problem it was 1992.  Yes, I can tell

   9   the jury my client was 12 or whatever age he was at the time

  10   or 14, but --

  11            THE COURT:  I think if we do this, the bombing in

  12   Yemen in 1992 is not relevant.  I think this is a very

  13   significant point.  I think this has been a very useful

  14   discussion I hope some of these matters are consummated.  Why

  15   don't we take a ten-minute recess, or, if at the end of ten

  16   minutes you think it is a productive to take a longer recess,

  17   we'll take a longer recess.

  18            MR. RUHNKE:  Practically speaking, your Honor, I

  19   think what probably needs to be done is the defense lawyers

  20   need to talk among themselves for a bit, and then meet with

  21   the government so that we have --

  22            THE COURT:  You want me to declare a longer recess?

  23            MR. COHN:  Yes.  You can tell the jury whatever you

  24   need to tell them.

  25            THE COURT:  Why don't we adjourn until a quarter


   1   after 11, and if either the government or defense lawyers

   2   believe at an earlier point that this is all an academic

   3   exercise, then let the Court know, and if any of you believe

   4   another five or ten minutes would be useful, let the Court

   5   know, and I'll repeat my instruction to the jury that they

   6   relax.

   7            MR. COHN:  Give us a half hour, because this is not a

   8   hallway discussion.  I think we have to talk in the defense

   9   room --

  10            THE COURT:  No, I don't think it's a hallway

  11   discussion.

  12            MR. COHN:  -- where we can ventilate at whatever

  13   volume we wish.

  14            THE COURT:  I'm just wondering whether it is too

  15   early perhaps for them to go out to lunch.  Half an hour.  So

  16   that would be 20 after 11.

  17            (Recess)

  18            (Continued on next page)









   1            (In open court; jury not present)

   2            THE COURT:  Gentlemen, you have returned.

   3            MR. WILFORD:  Not everyone, your Honor.

   4            Mr. Schmidt and Mr. Dratel will be up shortly.  They

   5   had an additional issue to discuss and they will be right up

   6   and we think we'll be able to present something to the Court.

   7   We'll need about two minutes to discuss it with the

   8   government.

   9            THE COURT:  I just like to keep the jury apprised

  10   because they're just sitting in that room.

  11            Are we going to have any proceedings this morning?

  12            MR. WILFORD:  We should, your Honor.  It's just as

  13   soon as they come up we'll be able to move rather rapidly, I

  14   believe.

  15            THE COURT:  Let me know when you are ready.

  16            (Recess)

  17            THE COURT:  Somebody want to tell me?  Mr. Ruhnke?

  18            MR. RUHNKE:  Your Honor, here's where we are.  We are

  19   going to ask the Court to strike the testimony of Agent Yacone

  20   and to deliver a strong curative instruction to the jury -- a

  21   strong instruction, not curative -- a strong instruction to

  22   the jury which we have drafted.

  23            If your Honor grants that motion, Mr. Schmidt and

  24   Mr. Dratel have agreed they will not call, and have no need to

  25   call, the witness.  So our initial action, our initial motion


   1   is to strike the testimony of Agent Yacone, and if your Honor

   2   does strike that testimony, the witness will not be called.

   3   And I have a limiting instruction, a curative instruction,

   4   that we have drafted for your Honor's consideration, which I

   5   can read if you would like.

   6            MR. FITZGERALD:  We oppose that, your Honor.  I

   7   haven't seen the instruction.

   8            Here is the point.  If what they are seeking to do is

   9   to take an issue out of the case and instruct the jury what

  10   the issues are, first of all, I don't think --

  11            THE COURT:  Why don't we listen to it first.  Why

  12   don't we listen to it.

  13            MR. RUHNKE:  Your Honor, we're not asking the Court

  14   to instruct the jury what the issues are, we're asking it to

  15   strike certain testimony.

  16            THE COURT:  Let me at least hear what it is.

  17            MR. RUHNKE:  Here is the instruction we've proposed:

  18            Ladies and gentlemen:  In the past I have instructed

  19   you from time to time to strike certain testimony.  In those

  20   such cases, the evidence in question was of a, relatively

  21   speaking, minor nature in terms of length or dramatic

  22   emotional nature.

  23            I am now about to instruct you will to strike from

  24   the evidence the testimony of Agent Yacone regarding the

  25   October 1993 events in Mogadishu, Somalia.  Frankly and


   1   candidly, I do not expect you to forget that evidence.  That

   2   would be humanly impossible.  However, what I call upon you to

   3   do as jurors is to pledge not to consider, use, or refer to

   4   that testimony in any way or for any manner in deciding the

   5   important issues before you.

   6            It would be a violation of your oath as jurors to

   7   disregard this instruction.  I will direct my clerk to collect

   8   the notes that you have on Agent Yacone's testimony and they

   9   will be disposed of in such normal manner.

  10            THE COURT:  Tell me the whole -- that's it?

  11            MR. RUHNKE:  That's it.

  12            THE COURT:  That's it?

  13            MR. WILFORD:  That's it.

  14            MR. RUHNKE:  That's it.

  15            THE COURT:  What is the government's position?

  16            MR. FITZGERALD:  Strongly opposed.

  17            THE COURT:  I am surprised at that because, first of

  18   all, it's a totally ineffective instruction.  It's saying go

  19   in the corner and don't think about the polar bear, and I warn

  20   you it would violate your oath for you in the corner, if you

  21   thought about the polar bear.  And I'm going to take away your

  22   notes, the notes of the jurors, personal belongings.  So that,

  23   apart from any other issue in the case, on the merits it is a,

  24   I think, an absurdly -- forgive me -- absurdly ineffective,

  25   inappropriate instruction.


   1            I think that because it is unrealistic to expect the

   2   jury to totally disregard it.  It makes considerably more

   3   sense, both as a matter of human experience and in accordance

   4   with the government's views on the merits, to have a statement

   5   to the jury with respect to that testimony:  You should

   6   understand that no contention is being made by the government

   7   that any defendant in this case, or whatever, was responsible

   8   for the deaths of the various people.

   9            I think that it would be contrary to everyone's best

  10   interests to run the considerable risk of the escalation of

  11   the Somalia matter, which, for three-quarters of this trial,

  12   everybody assumed was going to be resolved by a stipulation

  13   because of the government's objections and the Court's

  14   unwillingness to strike with an instruction of that sort

  15   rather than a stipulation such as I proposed.

  16            But that's for you.  The government called that

  17   witness only when a stipulation, which I have never seen and

  18   do not want to see, but which apparently all the lawyers

  19   agreed but a client blocked, as is his right.

  20            If that's the proposal, I would suggest that

  21   Mr. Schmidt call his witness.

  22            MR. RUHNKE:  Your Honor, can I just, speaking now for

  23   the discussion that we had.

  24            THE COURT:  Yes.

  25            MR. RUHNKE:  Your Honor may be correct to some degree


   1   or incorrect to some degree about the efficacy of limiting

   2   instructions.  For better or worse, we trust jurors to listen

   3   to courts' instructions, and if we can't trust them to listen

   4   to instructions, as many appellate courts have told us they

   5   are presumed to do, I don't know where we are at all in terms

   6   of the basic premises of trial law and judges instructions,

   7   Dostoyevsky and the white bear problem.  It's hard when

   8   someone says, "don't think about a white bear."

   9            However, what the government is doing is trying to

  10   have its cake and eat it too in a very real sense.  They want

  11   to say to us, here, defense, we are taking from the indictment

  12   the allegations about the dead 18 American soldiers and the

  13   19th soldier who was killed during the mortar attack, that's

  14   actually still in the record; however, we want to take that

  15   evidence and argue it exactly as if the overt act remained in

  16   the indictment.  Because it has never been the government's

  17   contention that any of the men on trial here participated in

  18   the attack in October of 1993.  It's never been the

  19   government's contention that anybody who was a member of al

  20   Qaeda ever participated in the attack.

  21            THE COURT:  I have another thought which I would like

  22   to put down on paper.  If I may have a moment.

  23            MR. RUHNKE:  Of course, your Honor.

  24            (Pause)

  25            THE COURT:  This is rough, but the proposal would be


   1   that:  The parties have agreed to a stipulation as follows:

   2            1.  The government does not contend for the purposes

   3   of this case that any defendant on trial or al Qaeda members

   4   directly participated or caused the death of any Americans in

   5   Somalia.

   6            2.  In the light of this stipulation, the testimony

   7   of Special Agent --

   8            MR. RUHNKE:  Yacone.

   9            THE COURT:  -- Yacone as to the death of U.S.

  10   servicemen is no longer relevant, and his testimony is

  11   therefore stricken in its entirety.

  12            MR. FITZGERALD:  I would object, your Honor, and if I

  13   could just explain four brief points.

  14            First, in this case we would offer to prove Yacone's

  15   testimony is relevant.  I understand the concerns that people

  16   have that they think we need to place it in context.  The

  17   government has always been willing to try to establish the

  18   facts we wanted to prove by other methods, by stipulation.  No

  19   one agreed.

  20            But no one in the government sought to guild the

  21   lilly in the proof of the bombing.  We didn't put in a lot of

  22   gore.  In Agent Yacone's testimony, his direct testimony was

  23   entirely consistent with the proffer.  We have never contended

  24   that any defendant in this courtroom participated in that

  25   attack.


   1            The 403 prejudice, if you step back for a moment to

   2   an attack which the government has never contended that any

   3   defendant participated in, which was an attack on military

   4   personnel in 1993, in a case where the defendants are charged

   5   with being part of a conspiracy to kill civilians, where the

   6   main charge is the killing of over 200 civilians in a

   7   building, has to be looked at.

   8            What I would suggest would be an instruction for the

   9   Court -- I'll just give you the language.

  10            The Court instructs the jury that the government

  11   contends that al Qaeda viewed the United States as an enemy at

  12   some point prior to the incident.  Al Qaeda members trained

  13   persons in Somalia and al Qaeda members viewed al Qaeda as

  14   being responsible for attacks on Americans because of training

  15   provided.

  16            The government does not contend that the attacks

  17   carried out on October 3 were physically carried out by al

  18   Qaeda members.  There is no contention that any defendant on

  19   trial participated in the attack on October 3.

  20            The defense disputes the government's contentions,

  21   and you will hear further argument during summations from both

  22   sides about what the evidence means.

  23            The point here, it is irrelevant if the defense

  24   witnesses stipulate to the elements.  What is relevant is

  25   there were attacks on American soldiers that al Qaeda could


   1   believe they were responsible for because of their training.

   2   They train people in how to use RPGs.  That's a technique they

   3   developed in Afghanistan.  RPGs were used on October 3.  The

   4   point being, we have testimony that the number two man in al

   5   Qaeda, the military commander, said that he believed al Qaeda

   6   was responsible for the attacks on Americans.

   7            We have Harun, Fadhl, who carried out the bombing in

   8   Nairobi saying that.  If we had not put that proof in, they

   9   would come back and say, where is it in the proof that anyone

  10   in al Qaeda really believed that they were going against

  11   Americans?  That's been the purpose of the proof all along.

  12            We offered to do it a different way.  The defense

  13   didn't want to go that route, so we put the witness on after

  14   telling people, if you don't stipulate, here's what's coming.

  15            THE COURT:  I'll tell you what I suggest we do.  I

  16   don't think there is going to be unanimity here, although I

  17   suppose in the first instance it's up to El Hage's counsel to

  18   determine whether to call this witness.  What I suggest is

  19   that we leave the record as it is, that we leave the

  20   testimony, except that we do tell the jury that the government

  21   does not contend that any defendant now on trial or al Qaeda

  22   member was directly involved in the killing of Americans in

  23   the events of whatever that day is.

  24            MR. FITZGERALD:  October 3.

  25            THE COURT:  Does the government have any objection to


   1   that?

   2            MR. FITZGERALD:  I want to know what -- I want to

   3   hear what the defense says.  Every time we agree to

   4   something --

   5            THE COURT:  All right.

   6            MR. RUHNKE:  Your Honor, we have on the table and

   7   before your Honor a motion to strike the testimony.  The

   8   reason for the motion to strike is that the government has

   9   withdrawn an overt act in the indictment, and yet it appears

  10   that what the government wants to do is withdraw the overt act

  11   and yet argue it.

  12            Even the terms of the overt act itself I think bears

  13   thinking about in its worst case scenario, and that is that

  14   persons trained by al Qaeda, which does not include any

  15   members of al Qaeda, and persons trained by people who were

  16   trained by al Qaeda, which does not include any member of al

  17   Qaeda, and ipso facto, nobody in this room --

  18            THE COURT:  That's why I'm suggesting that even

  19   though Mr. El Hage's attorneys, if they wish, can call the

  20   witness and the government can offer proof in its rebuttal

  21   case of the bombing of American troops in Yemen and American

  22   troops in Mogadishu, Somalia, that with respect to the battle

  23   which was the subject of Agent Yacone's testimony, that the

  24   jury be advised that the government is not contending --

  25            MR. RUHNKE:  That is the government's theory of the


   1   indictment in the first place.

   2            THE COURT:  Excuse me?

   3            MR. RUHNKE:  It's the government's theory of the

   4   indictment in the first place that al Qaeda was not involved

   5   in the battle in Mogadishu.  That's where we started from,

   6   that al Qaeda was not involved.

   7            THE COURT:  Let me have the language again of what

   8   the government does not contend.

   9            MR. FITZGERALD:  Your Honor, yes.  The government

  10   does not contend that the attacks carried out on October 3

  11   were physically carried out by al Qaeda members.  There is no

  12   contention that --

  13            THE COURT:  A little slower, please.

  14            MR. FITZGERALD:  The government does not contend --

  15            THE COURT:  That the attacks on October 3 were

  16   physically carried out.

  17            MR. FITZGERALD:  By al Qaeda members.

  18            THE COURT:  Yes.

  19            MR. FITZGERALD:  There is no contention that any

  20   defendant on trial participated in the attacks on October 3.

  21            THE COURT:  Mr. Schmidt, it's your witness that you

  22   wish --

  23            MR. SCHMIDT:  May I be heard?  First of all, your

  24   Honor, it has to include not just the October 3 attack, it has

  25   to include all attacks mentioned by the witness, and that


   1   included an October 6th, I believe, attack.

   2            MR. RICCO:  Your Honor, I would like to be heard at

   3   some point on behalf of Mr. Odeh.  I don't want to give the

   4   impression that Mr. Schmidt, we're going to work this out, and

   5   all of a sudden we're hearing from other counsel there's no

   6   unanimity on this.

   7            MR. FITZGERALD:  If I could make one point how we

   8   proceed.

   9            THE COURT:  Mr. Schmidt has a right or not to call a

  10   witness.

  11            MR. RICCO:  He does, your Honor, but we have a right

  12   to have our motion to strike the testimony.

  13            THE COURT:  I understand that.  I haven't cut

  14   everybody off, but I'm just saying that the decision whether

  15   or not to call a witness is a decision made in the first

  16   instance by the proponent of the witness.

  17            MR. FITZGERALD:  Let me just say one thing.  It is

  18   important for the government to know where the defense stands.

  19   We get proposals, for example, where we are removing overt

  20   acts and there was a motion to strike an overt act.  We don't

  21   think there was anything wrong with offering that proof.  We

  22   think the proof was properly received and, frankly, the overt

  23   act can stay.  We thought we were resolving the issue.  Then

  24   we take the overt act out, say remove it from the indictment.

  25   Then we say, what's the evidence doing here?


   1            THE COURT:  I understand why you have that belief,

   2   but I have to tell you that I came on the bench this morning

   3   before word one was spoken with having spent some time, as I

   4   indicated, on the viability of Overt Act y. and had concluded

   5   that it was not viable.  So it isn't as if a good deed on the

   6   part of the government was being abused.

   7            MR. FITZGERALD:  But striking the overt act doesn't

   8   mean that the testimony -- okay, and all I'm saying is now

   9   we're treating this as if somehow the government improperly

  10   put testimony before the jury, and I think we ought to --

  11            THE COURT:  What I am leaning towards is not striking

  12   the testimony but limiting its possible usage by an

  13   instruction that says as I indicated before.

  14            There is an objection to limiting it to October 3

  15   because there was testimony with respect to the mortar attack

  16   that was on the later date.

  17            MR. FITZGERALD:  We can talk about October 3 and

  18   October 6.

  19            THE COURT:  October 3 or October 6.

  20            MR. SCHMIDT:  Your Honor, if I may.

  21            THE COURT:  I'm going to give you a full opportunity

  22   to be heard.  I just want to get this down on paper.

  23            The government does not contend that attacks in

  24   Mogadishu on October 3 or October 6 were physically carried

  25   out by al Qaeda members and no contention that any defendant


   1   on trial participated in attacks on those dates.

   2            Yes.

   3            MR. SCHMIDT:  I'm trying to save your Honor writing

   4   time.

   5            One, that there is no evidence that anybody was

   6   involved in any of the attacks.  I think the proper way would

   7   be "any attacks" in Mogadishu so that it doesn't leave the

   8   jury with any speculation that there might be other attacks

   9   not covered in the stipulation.  And since there is no

  10   evidence of any other one, I think it should be "all attacks."

  11            MR. FITZGERALD:  Your Honor?

  12            THE COURT:  That's your point?

  13            MR. SCHMIDT:  On that issue.

  14            THE COURT:  Yes.

  15            MR. FITZGERALD:  Your Honor, we do have -- if we're

  16   going down that road, there is proof.  The military commander

  17   says that al Qaeda is responsible.  We have documents saying

  18   they are responsible.  They're not specific as to which

  19   deaths.  We're trying to put Yacone's testimony in

  20   perspective.  But I think just --

  21            THE COURT:  I have to deal with the evidence that is

  22   before me.

  23            MR. FITZGERALD:  We have a document written by Harun,

  24   Fadhl, in a computer, which he had no motive to lie, saying

  25   everyone knows well that the member of the Sheik's cell in


   1   Nairobi were responsible for hitting the Americans.  He

   2   doesn't specify that they physically carried out the attacks

   3   or trained people, but now Mr. Schmidt is seeking to have the

   4   court basically charge the jury that that statement is false.

   5            MR. SCHMIDT:  Your Honor, what the government is

   6   saying, if I may, is that they want to argue that they are

   7   physically responsible.  Their theory --

   8            THE COURT:  This is a statement to the jury as to the

   9   government's contention and it can't be broader or less than

  10   the government's contention.

  11            MR. SCHMIDT:  Your Honor, I am perfectly satisfied,

  12   if you are not going to give that charge, because if you are

  13   not going to give what's called a stipulation is to say that

  14   because the government has gotten up here and said --

  15            Withdrawn.

  16            We do not argue that the government does not have the

  17   right to argue that Harun and al Qaeda is responsible for the

  18   deaths of Americans because they, as indicated in the

  19   indictment, train people or train the trainers.

  20            THE COURT:  And claim credit for it.  And claim

  21   credit for it.

  22            MR. SCHMIDT:  Claim credit.  But the manner are they

  23   criminally responsible as set forth in the indictment is by

  24   training or training the trainers, not by actually

  25   participating in the killing.  The government stands up and


   1   says that, well, this is relevant because he says he killed

   2   them and it sounds like they want to argue that they

   3   participated in the killing, and that's not what -- they are

   4   not allowed to do it based on the proof and the indictment.

   5   Otherwise, their theory of the indictment has changed.

   6            I think it is very simple.  I'm not asking to be

   7   precluded from arguing that they are responsible, I'm just

   8   saying they should be limited to say how they are responsible

   9   is by the indictment, period.

  10            THE COURT:  What the Court will do, because I'm

  11   dealing only with this testimony, I'm not dealing with

  12   anything beyond the testimony, is tell the jury:  Ladies and

  13   gentlemen, with respect to the testimony which you have heard

  14   of Special Agent Yacoon --

  15            MR. WILFORD:  Yacone.

  16            THE COURT:  Y-A-C-O-N-E, right?

  17            -- the government does not contend that the attacks

  18   in Mogadishu on October 3 or October 6 were physically carried

  19   out by al Qaeda members.  There is no contention that any

  20   defendant on trial participated in these attacks.

  21            MR. SCHMIDT:  Your Honor, because it's a conspiracy,

  22   I would ask that "it was not carried out by any members of the

  23   conspiracy," not just al Qaeda.

  24            MR. RICCO:  Your Honor, again I rise to say that the

  25   Court --


   1            THE COURT:  Do you have an objection to that?

   2            MR. RICCO:  Judge, I want to be heard on this.

   3            THE COURT:  Let me just ask this one point.  Do you

   4   have any objection?  The government.

   5            I'm trying to state what your contention is.

   6            MR. FITZGERALD:  Right.

   7            THE COURT:  And Mr. Schmidt is saying it shouldn't be

   8   "carried out by al Qaeda members" but should say "carried out

   9   by any member of the conspiracy" because it seems to me you

  10   could be a member of the conspiracy and not be a member of al

  11   Qaeda.

  12            MR. FITZGERALD:  That's fine, except I wonder, now

  13   we're going to tell the jury, bring them in and tell them what

  14   were not contending, so on balance, the jury may look and

  15   think, what they are saying is they want to hear what we are

  16   contending.

  17            THE COURT:  You will have two and a half days

  18   hopefully next week to do that.

  19            MR. FITZGERALD:  Can we just tell them that, you will

  20   hear what the government is contending.  You bring them in to

  21   say, the government is not contending X, Y and X, without

  22   telling them what our contentions are.  The government will

  23   explain --

  24            THE COURT:  With reference to the testimony of

  25   Special Agent Yacone.  I'm not making any broader statement.


   1            Are you ready to go ahead with your witness?

   2            MR. SCHMIDT:  If I may have a moment.  I think it

   3   should include any of the attacks.

   4            Whether you instruct them now or at the charge, I

   5   guess it doesn't make that much of a difference, but I guess,

   6   consistent with what the government's position is, the

   7   responsibility, they are not charged with directly

   8   participating in any attacks in Mogadishu.  So that's one

   9   point.

  10            THE COURT:  I'm dealing with what this witness

  11   testified to, the parameters of my instruction on the

  12   parameters of his testimony.

  13            Are you ready with your witness?

  14            MR. RICCO:  Your Honor, we would like to be heard on

  15   this subject.

  16            THE COURT:  Right.

  17            MR. SCHMIDT:  The other point, and --

  18            THE COURT:  How about the answer to my question?

  19            MR. SCHMIDT:  Your Honor has indicated that it would

  20   allow testimony concerning the bombing in Yemen as rebuttal.

  21   One of our determinations is going to be what offer of proof

  22   the government is going to have in allegedly proving this

  23   conspiracy's involvement in the Yemen bombing.

  24            If there is a document of some nature that proves

  25   that, then I believe that we should receive that and have an


   1   offer of proof now so we can make a decision as to our witness

   2   based on that.

   3            MR. FITZGERALD:  Your Honor, he hands me 3500 in

   4   discovery --

   5            THE COURT:  No.  No.  No.  No.  I know.  Just

   6   respond.  We really shouldn't be -- it's the syndrome in

   7   discovery when you say, I don't have something and, therefore,

   8   that explains why I didn't give him what he's entitled to.

   9            The question is, can you make some proffer as to what

  10   the evidence will be with respect to the bombing of troops en

  11   route to Somalia and whether there is a document which is the

  12   basis for it?

  13            MR. FITZGERALD:  Your Honor, we're trying to

  14   determine the best way to prove it.  I believe there are

  15   statements that have been turned over to the defense where Bin

  16   Laden has taken credit for it.  I think we're going to have

  17   testimony from a witness explaining Abdi House.  We want to

  18   put a witness on explaining about Yemen, and just as it

  19   took --

  20            THE COURT:  Will you, as soon as the government

  21   determines, furnish that information?

  22            MR. FITZGERALD:  Yes.

  23            MR. RICCO:  I would like to be heard.

  24            THE COURT:  Mr. --

  25            MR. RICCO:  Ricco.


   1            THE COURT:  Mr. Ricco, just give me a moment, please.

   2            (Pause)

   3            THE COURT:  Yes.

   4            MR. RICCO:  Yes, sir.  Your Honor, we had previously

   5   moved on behalf of Mr. Odeh to have this overt act stricken.

   6            THE COURT:  Yes.

   7            MR. RICCO:  Special Agent Yacone's testimony was

   8   allowed in this trial because of this overt act.  He came in

   9   to testify to the acts that took place in Mogadishu on October

  10   3rd and 4th, 1993.  The Court had previously denied our motion

  11   to strike.  The government now wishes to drop that overt act,

  12   and the Court had said that it was inclined to strike it

  13   anyway.

  14            Given that posture, we would ask to have Special

  15   Agent Yacone's testimony stricken in its entirety because its

  16   only purpose for being before this jury was to prove up Overt

  17   Act, now, y.  The government may take the position that some

  18   of what Agent Yacone testified to might have been permitted,

  19   but I don't --

  20            THE COURT:  May I interrupt you a moment?  I take it

  21   that whether I strike Special Agent Yacone's testimony or

  22   not --

  23            No.  Is it the defense position that if that

  24   testimony is stricken, that they will not call a Somali

  25   witness?


   1            MR. RUHNKE:  Yes.

   2            MR. RICCO:  Yes.

   3            THE COURT:  I'm sorry.  Go ahead.

   4            MR. RICCO:  The only thing I was going to add, your

   5   Honor, was that because that testimony would not have been

   6   allowed in the first instance, the 18 deaths, that testimony

   7   should properly be stricken at this point if that issue is no

   8   longer in front of the jury, that issue being the events that

   9   took place in Somalia on October 3rd and 4th, 1993, because

  10   I'm confident that with this overt act not in the indictment,

  11   the Court would have entertained a 403 argument to keep that

  12   evidence out in this case, and it's because of that that we

  13   would ask that that testimony be stricken in its entirety.

  14            And how the Court instructs the instructs the jury,

  15   that's to the Court and we'll have to live by whatever

  16   decision your Honor makes, but the first thing that should be

  17   decided is that we should have a ruling on our motion to

  18   strike that testimony in its entirety.

  19            And when the government rose after Mr. Ruhnke

  20   finished and said "we object," I'm not sure if they were

  21   objecting to the proposed instruction or the fact that it

  22   should be stricken, because it seems to me that the fact that

  23   it should be stricken is automatic because it was only allowed

  24   because it related to Overt Act y., which says October 3rd and

  25   4th, 1993.


   1            THE COURT:  You know, you all have to contemplate the

   2   possibility that, in any event, the government in its rebuttal

   3   case will present evidence of the bombing in Yemen of the

   4   troops on the way to Somalia.

   5            MR. COHN:  Responding to what if they don't produce

   6   their witness?  It will now be an issue we will have to face.

   7   If they don't produce the witness, what will the government be

   8   rebutting?  I haven't a clue, and we'll face that at the

   9   appropriate time, I suppose.

  10            I just want to make clear that Mr. Ricco speaks for

  11   me not only in his motion but in terms of his reasoning, with

  12   the additional factor which need not be mentioned to the

  13   Court.

  14            MR. RUHNKE:  Your Honor, what has changed in this

  15   colloquy this morning is your Honor's --

  16            THE COURT:  I'm going to grant the motion to strike

  17   the testimony.  I had attempted to encourage the parties to a

  18   position which would have, I think, been a little more

  19   realistic in terms of what the jury will practically do.  We

  20   can address later in the charge and the counts the other

  21   implications of the dropping of the overt act which was

  22   originally y.

  23            I want to make it clear that because all of this is a

  24   result of an 11th-hour determination not to enter into a

  25   stipulation with respect to Somalia, I am not now precluding


   1   the government from introducing in its rebuttal case evidence

   2   of anti-American action attributable to the coconspirators

   3   with reference to Somalia and which goes back as early as the

   4   entry of or proposed entry of American troops into Somalia.

   5            All right, now what does that leave us with?

   6            MR. SCHMIDT:  Your Honor, the state of the record

   7   right now, we do not intend to call that witness.  Obviously

   8   we --

   9            THE COURT:  And what?

  10            MR. SCHMIDT:  We reserve our right to make that

  11   decision depending on the government's rebuttal.

  12            THE COURT:  But you are prepared to go ahead with

  13   your --

  14            MR. SCHMIDT:  With our documents.

  15            THE COURT:  With your documents.

  16            MR. SCHMIDT:  I think the only thing that is

  17   necessary that the government -- I think there's a list that

  18   we have of documents that the government has an objection to.

  19   I think I can go forward with -- it may take to break early --

  20   go over the list and resolve them first.

  21            THE COURT:  And also I want to work on what I tell

  22   the jury as to the striking.  Maybe it would be better if we

  23   break now and --

  24            Let me make a logistical inquiry.

  25            (Pause)


   1            Mr. Fitzgerald.

   2            MR. FITZGERALD:  Yes, your Honor.  With Yacone's

   3   testimony stricken, there is no evidence in the record that

   4   there were American casualties in Somalia.

   5            THE COURT:  Yes.

   6            MR. FITZGERALD:  Now we have Bin Laden, evidence that

   7   Bin Laden's taken credit for those casualties and Harun,

   8   Fadhl, taking credit for those casualties.  I'm not sure which

   9   casualties they are responsible for.  So the government would

  10   like to advise the Court and counsel we now need to look at

  11   how we establish the casualties that occurred in Somalia.

  12            We're back to where we were because we rested with

  13   that proof in there.  So we may be coming back, in addition to

  14   anything that may have happened in Yemen, we need to talk

  15   about how we prove up casualties in Somalia.  So I think that,

  16   given that, we ought to think about waiting for the

  17   instruction until we put whatever other proof is in.

  18            THE COURT:  Maybe I should just say it's stricken,

  19   just say the testimony is stricken without more.

  20            MR. FITZGERALD:  Your Honor, why does that need to be

  21   done now?

  22            THE COURT:  That's a good question.  That's a good

  23   question.  I'm not sure it does have to be done now.

  24            MR. COHN:  It does have a certain attractiveness of

  25   finality rather than pro-explication for reconsideration by a


   1   government that has been known to do that before.  The

   2   government asked for reconsideration of your ruling.  I just

   3   like to see finality of the issue.

   4            MR. WILFORD:  Your Honor, if I may.  The only reason

   5   why --

   6            THE COURT:  I can say it's stricken and -- you know,

   7   it will be stricken.

   8            I don't want to say anything to the jury which will

   9   compel the government to introduce more.  I was thinking of

  10   saying it will be stricken because in the nature of other

  11   evidence which the government will elicit, the government may

  12   determine that Somalia is not the heart of this case nor

  13   essential to this case.

  14            MR. COHN:  I don't speak for the others necessarily,

  15   but I'm content with just telling them it's stricken.  If it

  16   needs more, that's what your charge is for at the end.  I

  17   mean, it's still not written in stone.

  18            MR. FITZGERALD:  Your Honor, we're prejudiced by

  19   that.  The jury is going to be called out, said the government

  20   offered testimony, it's been stricken, as if we've done

  21   something wrong, with no explanation of where we're going.  I

  22   think that it is inappropriate.

  23            THE COURT:  I don't think this jury is going to spend

  24   the weekend brooding on the pilot's or the agent's testimony,

  25   and so I will withhold an instruction with respect to that


   1   testimony.  And I take it that by Monday the government will

   2   have determined whether it is going to call another witness or

   3   other documents with respect to causalities in Somalia.  Maybe

   4   that's something that can be the subject of a stipulation.

   5            We're going to break for lunch and resume at a

   6   quarter of 2, 1:45, and then I take it we'll complete El

   7   Hage's testimony except that El Hage will rest or will not

   8   rest, but whatever it will do will be subject to calling of a

   9   fingerprint expert on Monday.

  10            MR. SCHMIDT:  Your Honor, we also have, in addition,

  11   finishing the stipulations between the government and defense

  12   counsel relating to documents, etc., that we may or may not be

  13   finished with today, and we would ask that we be able to

  14   finish those up and offer them on Monday as well.

  15            THE COURT:  But you will rest subject to that?

  16            MR. SCHMIDT:  Subject to that and after discussion

  17   with my client.

  18            THE COURT:  You will rest subject to whatever it is

  19   that you wish to reserve?

  20            MR. SCHMIDT:  That's correct.

  21            THE COURT:  But I would like to have a statement as

  22   to what it is that you wish to reserve on.

  23            MR. SCHMIDT:  Yes.

  24            THE COURT:  We're adjourned until 1:45.

  25            (Luncheon recess)


   1                 A F T E R N O O N    S E S S I O N

   2                             1:45 p.m.

   3            (In open court; jury not present)

   4            THE COURT:  I think what I will tell the jury is

   5   these things are not matters determined, but it is possible

   6   that in approximately two weeks or so they will be called upon

   7   to begin their deliberations at which time we will be sitting

   8   on Fridays, and so they should not make any Friday plans for

   9   that period of time.

  10            MR. FITZGERALD:  Your Honor, with regard to the

  11   documents that Mr. Schmidt intends to offer this afternoon, I

  12   have some objections.  Briefly, by way of background, a number

  13   of the documents received, in the government's view, were

  14   turned over in violation of discovery obligations.  There was

  15   a search at the airport in 1997 of Mr. El Hage.  The

  16   government copied documents.  Evidently, Mr. El Hage had

  17   additional documents that were not copied.  Some of those

  18   documents were just recently the last couple of weeks, not in

  19   the last two years turned over to be offered as exhibits.

  20            THE COURT:  Turned over by whom to whom?

  21            MR. FITZGERALD:  From the defense to us.

  22            THE COURT:  Yes.

  23            MR. FITZGERALD:  And no witness is being called to

  24   authenticate them.  I have a belief that there may have been

  25   other documents that were received that are in the same


   1   position.  We have not been able to find out what those other

   2   documents are.

   3            THE COURT:  I haven't been following, the documents

   4   were not seized?

   5            MR. FITZGERALD:  Some documents were seized at the

   6   airport and copied.  Evidently, there are additional documents

   7   in the possession of El Hage that were not copied.

   8            THE COURT:  They were seized from him at the airport

   9   but not copied?

  10            MR. FITZGERALD:  Either seized and not copied or not

  11   seized.  There are additional documents which the government

  12   did not have copies of.

  13            THE COURT:  Okay.

  14            MR. FITZGERALD:  El Hage has been offering those

  15   documents after just turning them over, but I do not have a

  16   representation that I have a complete.  We're being offered

  17   what it is they wish to offer.  I do not know what else is in

  18   the pile of documents that were not seized or not copied and

  19   they are being offered to show that they are legitimate

  20   papers.  Notwithstanding this, we haven't objected to most of

  21   it.  I realized at 1 o'clock in the morning yesterday ostrich

  22   photographs were in evidence yesterday when those piles went

  23   in.  We've been very liberal, even though we think that there

  24   are discovery violations.

  25            THE COURT:  I think they have been received subject


   1   to your right to remove to strike.

   2            MR. FITZGERALD:  Yes, Judge.

   3            MR. SCHMIDT:  Maybe I'm missing the point.

   4            THE COURT:  Why don't we let the government finish

   5   making the point.

   6            MR. FITZGERALD:  Your Honor, what I'm saying is we've

   7   been very liberal on what has been going in.  There are

   8   documents this afternoon that Mr. Schmidt wishes to offer, for

   9   example, WEHX-14, which are hearsay.  They are self-serving

  10   statements about how good the NGO organization is.

  11            THE COURT:  On top of everything else, if these are

  12   documents the only basis for which or the inspection of which

  13   is Mr. El Hage's claim that he had them with him at the

  14   airport, it seems to me that's not a sufficient foundation for

  15   the introduction of the documents.  It's one thing when it's a

  16   document which the government turned over to the defendant,

  17   and which can be identified by reason of that circumstance,

  18   but if it's just a statement by counsel that this is a

  19   document that Mr. Hajj had at some earlier point --

  20            MR. SCHMIDT:  Judge, the WEHX-DSK are the documents

  21   in one of the floppy discs seized from Mr. El Hage's home in

  22   Nairobi, kept in the government, and that we received in

  23   discovery.

  24            THE COURT:  Mr. Fitzgerald is saying there are some

  25   documents which the government did not have.


   1            MR. SCHMIDT:  Those are other documents.

   2            THE COURT:  And that the government is seeing for the

   3   first time a representation that those were documents were

   4   never seized by the government.  There is no basis for

   5   introducing those documents.

   6            MR. SCHMIDT:  Your Honor, I'm not introducing.  If

   7   you recall when Mohamed Ali Odeh testified I had him identify

   8   this handwriting of Mr. El Hage on a number of documents.  The

   9   ones that I am putting in that the government is complaining

  10   about, that they may not have been copied by them when they

  11   first seized them, those few, and there is not many, there are

  12   a few of them, and they were identified by his handwriting.

  13   So they will be identified as Mr. El Hage's document and it

  14   relates to other documents or other testimony or other

  15   exhibits already in evidence.

  16            THE COURT:  Even if there is no dispute as to whose

  17   handwriting it is, you can't simply introduce a document and

  18   say, here's a document written by the defendant at some

  19   earlier date.

  20            MR. SCHMIDT:  Are we talking about authentication

  21   issues?

  22            THE COURT:  Both.  Start with that.

  23            MR. SCHMIDT:  Authentication issues, your Honor,

  24   simply authentication, a person testifying that that appears

  25   to be the handwriting of a particular person authenticates the


   1   document.

   2            THE COURT:  No, it doesn't.  No, it doesn't.

   3            MR. SCHMIDT:  Also authenticating the document.

   4            THE COURT:  It may establish the fact that the

   5   document is written by the defendant when it was written, who

   6   it was shown to, or what are the circumstances.

   7            MR. SCHMIDT:  If the document itself --

   8            THE COURT:  No, no, it's not self-authenticating.

   9            MR. SCHMIDT:  The date of it.

  10            THE COURT:  Oh, please, Mr. Schmidt.  If the

  11   defendant sits down today and writes a document and the fact

  12   that somebody else says, oh, that's his handwriting, that's

  13   not enough.

  14            MR. SCHMIDT:  You're right.  You're absolutely right.

  15   This is a document that is dated July 15, 1995.

  16            THE COURT:  What is the proof that that is in fact

  17   the date on which the document was written?

  18            MR. SCHMIDT:  That the date relates to the business

  19   transaction that he had in Slovakia and we have another

  20   document that comes from his computer that's seized by the

  21   government that is dated, that is about the same topic that

  22   authenticates that document.

  23            THE COURT:  It does not.  The Court will not receive

  24   if there has been inadvertently received documents which were

  25   not seized by the government and returned to El Hage, or given


   1   to El Hage during discovery.

   2            MR. SCHMIDT:  Some of the documents are indeed --

   3            THE COURT:  Then those documents will not be received

   4   or if already received, will be stricken.  Anything else?  Do

   5   we know which documents they were?

   6            MR. SCHMIDT:  I would need to go through the

   7   documents to make that determination.  Some of them, your

   8   Honor, if I may, are originals of documents that were seized

   9   by the government and turned over to the defense.

  10            THE COURT:  As long as it can be established that

  11   there was a time in which the government obtained that

  12   document, and this is the original or a copy of that document,

  13   then there is a basis, but when there is simply the statement

  14   by counsel that this was a document which my client had and

  15   the contents of it would seem to indicate a date when it was

  16   written, and what it was written about, I think there is no

  17   way that it is admissible absent the witness on the stand.

  18            MR. FITZGERALD:  We won't object to documents for

  19   which he wants to put the original in if they are a better

  20   copy of what we already have.  The documents that we did seize

  21   which is WHEX-14 we have a hearsay objection, which is it's a

  22   document from the computer, but I can hand up a copy to your

  23   Honor.

  24            THE COURT:  Yes, please.

  25            MR. SCHMIDT:  Give him the second page also.  Thank


   1   you.

   2            (Pause)

   3            THE COURT:  Yes.  This is an August 26, 1996 letter

   4   from the director of the Ministry of Planning.

   5            MR. FITZGERALD:  The context, your Honor, talks about

   6   police conduct in Kenya, it's a complaining letter, and I

   7   think as we had the other day with the phone calls to the

   8   jury, there is the 403 prejudice problem.  If he wants to

   9   establish that, as I was told, that other people used the

  10   computer, we can agree that there was a letter dated August

  11   26, 1996 to the addressee, signed by the person at the bottom

  12   but his polemic on how Kenya, he perceives, treats him I think

  13   is not relevant and runs the risk of confusing the jury.  It's

  14   hearsay.  It's not offered for the truth and we don't need the

  15   content.

  16            THE COURT:  For what purpose is this being offered?

  17            MR. SCHMIDT:  Obviously Ahmed Sheikh used Mr. El

  18   Hage's computer and fax machine.

  19            THE COURT:  If that's the reason, if that's the sole

  20   purpose for which it is offered, then it seems to me that the

  21   letter itself should be stricken.  Just the address and the

  22   facts at the top and the signature.  The contents of the

  23   letter itself are not relevant.

  24            MR. SCHMIDT:  The contents of the letter not relevant

  25   for the purpose I wanted to put it in, but I wanted the jury


   1   to be aware of the existence of the letter drafted in fact by

   2   this document.

   3            THE COURT:  But no reference in front of the jury to

   4   the contents.

   5            MR. SCHMIDT:  Very good, your Honor.

   6            MR. FITZGERALD:  I ask it be simply redacted.  That

   7   goes for WEHDSK-19 and W1290.

   8            THE COURT:  Can we bring in the jury?

   9            MR. SCHMIDT:  Your Honor, I want, because I have an

  10   example of one of the issues of authentication.  The defendant

  11   exhibits WEHX-DAC56 through 62 is an intercepted, poorly

  12   drafted, poorly transmitted contract for sugar.  The other

  13   exhibit one of the WW is the original one that identifies the

  14   from the date, et cetera, as the original.

  15            THE COURT:  The government said it has no objection

  16   to the submission of the original of a document which was

  17   seized.

  18            MR. SCHMIDT:  I understand.  The third document is

  19   another contract from the same company a week earlier that

  20   relates to the same subject that is dated, clearly on the

  21   evidence before the Court --

  22            THE COURT:  No, please, let's not reargue it.  There

  23   is no concept in the law that a document other than one of the

  24   type listed in the rules of evidence is self-authenticating.

  25            MR. SCHMIDT:  Your Honor, I think the law is take all


   1   the circumstances and make a determination if those documents

   2   appear to be genuine, and based on the fact that it's printed

   3   from another company and it relates exactly to the same thing

   4   that was faxed to him a week later, I think that that is

   5   sufficient to be authenticated, and it is possible for

   6   somebody to recreate that, and that the government can

   7   argue --

   8            THE COURT:  Denied.  Can we bring in the jury?

   9            MR. SCHMIDT:  Yes.

  10            THE COURT:  Let's bring in the jury, please.  I have

  11   received a letter from Mr. El Hage with respect to so-called

  12   jeopardizing my health with respect to the MCC, and I will

  13   forward it to the warden and ask him to advise.

  14            MR. DRATEL:  Thank you, your Honor.

  15            THE COURT:  Mr. Fitzgerald, does the government still

  16   plan on having a redacted indictment?

  17            MR. FITZGERALD:  Yes, it's being typed at this time.

  18            (Continued on next page)









   1            (Jury present)

   2            THE COURT:  Good afternoon.  First, let me apologize

   3   for the fact that you came in punctually this morning and that

   4   we kept you in the jury room for all morning.  These things

   5   happen.  Matters come up which require immediate attention,

   6   and all we say in our defense is that this is the first time

   7   in this case we've had that and we certainly will try to avoid

   8   it.

   9            Second, let me tell you where we are in the case.

  10   Understand that one can't judge the timing of these things

  11   with any precision.  You've already been in court long enough

  12   to observe that sometimes things go very quickly and sometimes

  13   things go very slowly, and sometimes witnesses are unavailable

  14   and so on.  But it is our present belief that sometime next

  15   week all of the evidence will have been presented, and that

  16   closing arguments by counsel will begin and will take a week

  17   or so.

  18            After that, you'll begin your deliberations.  Let me

  19   say two things about them.  One, we sit on Friday, so please

  20   understand that starting two and a half weeks hence we'll be

  21   sitting five days a week, that is, we'll be sitting here

  22   awaiting word from you in the jury room because you'll be

  23   deliberating, so please don't make any appointments or plans

  24   for Fridays.

  25            You will not be sequestered.  You'll go home when the


   1   day is over.  I say that because in some courts, in state

   2   courts once a jury begins deliberating they're sequestered.

   3   In other words, they go to a hotel at night.  We're not going

   4   to do that to you.  You're going to go home.

   5            The other thing is in terms of the hours of

   6   deliberation, we will start at 10, we'll end at 4:30, the same

   7   routine we've been following now, unless you say that you

   8   would like to start earlier, or, you say you'd like to

   9   continue.  You know sometimes a jury will say, you know, if we

  10   can spend another hour on this it will really be very

  11   productive and sometimes the jury will think the most

  12   productive thing we could do would be go home and get a good

  13   night's sleep.

  14            So I want to let you know that you have some

  15   flexibility with respect to that.

  16            All right.  Mr. Schmidt on behalf of El Hage.

  17            MR. RUHNKE:  Excuse me.  Unless somebody is

  18   uncomfortably warm, the air conditioners are on.  It's very

  19   difficult to hear your Honor and hear what's being said.

  20            THE COURT:  Can we turn off the air conditioning.  I

  21   could speak a little louder.  Of course, let's see if we can

  22   lower the air conditioning.  Mr. Schmidt.

  23            MR. SCHMIDT:  At this time, your Honor, I'd like to

  24   have WEHX- -- I'll eliminate the WEHX-from now on because

  25   that's for Mr. El Hage's exhibits -- M7X-8-T offered into


   1   evidence and displayed to the jury.

   2            These documents that are marked M-7X are documents

   3   that are received at Mercy International and found in room J.

   4   The original is 7X -- excuse me -- 8.  Please display 7X-8T.

   5   It is about the fifth or sixth document.  Please put on the

   6   translation.

   7            To save time, your Honor, since these are available

   8   to the jury, I will briefly describe each letter and read only

   9   the important areas.  This is a letter to Abu Abdallah Yemeni

  10   from Wadih El Hage concerning following information that he

  11   wants to be passed upon to the president of the administrative

  12   council concerning contacting the company for tractors, and it

  13   gives information concerning the tractors.  This is dated --

  14   unfortunately, this document is undated, and we'll probably

  15   have to obtain the date and amend the document at a later

  16   time.

  17            I ask that you put on we HX-K360.  The documents that

  18   begins with K are documents that were seized, that were found

  19   in the computer seized by the government in Mr. El Hage's home

  20   in Nairobi.  The ones that say Cylim Company indicates a

  21   printout from the hard drive.  This is a letter to Zero Credit

  22   concerning money being transferred on the account of ZTS

  23   Trading in Slovakia.

  24            We're going to skip a few pages to K358.  This

  25   concerns also, it's August 23, 1996 letter to ZTS Trading


   1   concerning the shipment of tractors that were to be reach

   2   their destination in July, 1998.  And if we can put on the

   3   next page indicates it's from Wadih El Hage stressing the

   4   concern of not receiving the tractors for the season.

   5            Now we skip a page to K362, again, October 29, 1996

   6   letter to ZTS concerning the tractor and a request for

   7   specifications.  It's not necessary -- the next page shows the

   8   name Wadih El Hage as the person.

   9            Skip a page to 364.  Again, this is dated November

  10   27, 1996 to ZTS Trading concerning a balance of the account

  11   that's being paid through a bank in Oregon.  And the next page

  12   indicates that it was prepared by Mr. Wadih El Hage.

  13            This completes this section now for this time.

  14            I ask that we turn to the Help Africa People section

  15   WEHX-W19.  I think the exhibit says W19.  Bring down so you

  16   can see a portion of the heading of Help Africa People that is

  17   cut off.  The W series also indicates that this was seized

  18   from, this is from the computer seized from Mr. El Hage's home

  19   that signifies WEH.com.

  20            This one is a letter concerning a multiple visa

  21   application on behalf of Mr. El Hage signed by H. Rodolf.  The

  22   next one K17 which also signifies that it came -- excuse me --

  23   the last one I apologize should not be W19.  It should be K19.

  24   This one is K17.  This concerns the minutes of the board of

  25   directors of Help Africa held in 1995 with the names Wadih El


   1   Hage, Ahmad Younes and April Ray.

   2            I ask that we show the next one, which is K24 which

   3   is a letter dated November 27, the last year is not clear on

   4   this copy, to brother Mohammad Salman concerning request for

   5   donation signed by Wadih El Hage.  K37 is dated December 30,

   6   1995.  It is a document indicating the introduction and

   7   objective of Help Africa People and 38 which is not necessary

   8   to show is the second page of that.

   9            K40 through K -- excuse me K -- let us replace that.

  10   Let's skip to K15 which is a list of documents that was found

  11   in the computer.  It indicates number 2 is introduction to the

  12   agency.  Three is a letter to the CID about the Jax case, the

  13   minutes, other things including the malaria project, budget

  14   project, and other matters.  And if we turn to K20, K20

  15   through K23 is the description of the malaria project by Help

  16   Africa People in the Gedo region, and it includes statement of

  17   objectives, estimated number of beneficiaries, description of

  18   the target population group activity and justification.

  19            The second page talks about the costs of various

  20   items, as does the third page.  The third page also includes

  21   the account and the fourth page K23 gives a further

  22   explanation of the malaria control project.

  23            Your Honor, at this time actually I do need to

  24   approach your Honor to clarify some matters concerning the

  25   next exhibit.


   1            THE COURT:  Can you defer that and take some others?

   2            MR. SCHMIDT:  I can do some others and then come back

   3   to that.

   4            THE COURT:  I'll see you.

   5            (Continued on next page)






















   1            (In the robing room)

   2            MR. SCHMIDT:  I have a series of photographs that

   3   reflect the malaria project in Somalia from Help Africa People

   4   which are directly attributed to the documents that were

   5   showed.

   6            THE COURT:  Were they part of these?

   7            MR. SCHMIDT:  They were, these were seized.  I'm not

   8   offering them through the seizure of them and the return.  I'm

   9   offering the original photograph that was there because they

  10   directly relate to the document that I just showed.  Now,

  11   there are other --

  12            THE COURT:  Is there any issue in this case as to

  13   whether or not there was a malaria project by Help Africa?

  14            MR. SCHMIDT:  There may be and I'm trying to show the

  15   legitimacy of this by the photographs combining with them.

  16            THE COURT:  There is no challenge to their

  17   legitimacy.

  18            MR. SCHMIDT:  I don't know there is.

  19            MR. FITZGERALD:  There is no challenge to the fact

  20   that Help Africa was involved in malaria projects and other

  21   causes.

  22            MR. SCHMIDT:  With these projects as well as there is

  23   for example, so I'd like to put in some of the photographs of

  24   the malaria project.

  25            THE COURT:  That show what?


   1            MR. SCHMIDT:  That show the malaria project in

   2   Somalia.  I'll show them to you your Honor.  I don't have to

   3   show all of the photographs.

   4            MR. FITZGERALD:  Just a comment, your Honor.

   5            THE COURT:  Yes.

   6            MR. FITZGERALD:  Most of these were seized at the

   7   airport and given back and counsel moved to suppress.  Are we

   8   now able to move in whatever documents we seized?

   9            MR. SCHMIDT:  I am not offering it through the

  10   seizure.  I'm offering the original documents that I have in

  11   my possession.

  12            THE COURT:  If you are not offering them through the

  13   seizure then what I said earlier with respect to other

  14   documents is true, and there is no authentication.  There is

  15   no basis for it.

  16            MR. SCHMIDT:  If I may, your Honor, not just on this,

  17   I think there is sufficient authentication of the project

  18   existing in Help Africa.

  19            THE COURT:  The government is willing to stipulate.

  20            MR. SCHMIDT:  I understand that.  I understand that.

  21   The government wants to offer other, perhaps other documents

  22   from the original seizure and return, and we don't wish them

  23   to offer that.  We are seeking to authenticate that document

  24   because of the evidence now came in that Help Africa People

  25   has the malaria project.


   1            THE COURT:  We had this argument ten minutes ago.

   2   It's not a self-authenticating document.  You don't have a

   3   witness who is going to testify.  Your only basis on which

   4   I've permitted the others in they were documents that the

   5   government seized and gave to Mr. El Hage, so the government

   6   could hardly put in issue the question of whether those were

   7   documents that existed at that time and were taken from that

   8   source.  They may not be received in evidence.

   9            MR. SCHMIDT:  Your Honor, I think the law of

  10   authentication has changed.  For one example is one document I

  11   didn't put in before that is a document of a fax.  It's a

  12   letter with pictures of ostriches on it.  One of the tapes

  13   played here and offered in evidence was a conversation with

  14   Abu Abdullah al Yemeni where he requested Mr. El Hage to send

  15   him by fax photographs of the ostriches.  That letter is

  16   directly in response to that conversation.  It authenticates

  17   that conversation, whether it be an actual person or not.

  18            MR. DRATEL:  Your Honor, if I may just speak --

  19            THE COURT:  You may not, because one lawyer, one

  20   issue.

  21            MR. DRATEL:  I understand.  I just want to save time.

  22            THE COURT:  There is a limit really to how much time

  23   you can spend on totally undisputed issues, and if the

  24   government were saying that they were there were not in fact

  25   five projects conducted by Help Africa, or that there were not


   1   in fact bona fide commercial transactions in which Mr. El Hage

   2   was engaged, then you could do this forever, but you can't.  I

   3   gave you two hours, and I did that simply because I think you

   4   have a difficult client who maybe is pushing you to do this.

   5            In any event, I adhere to my ruling that the only

   6   documents which may be admitted are documents which the

   7   government seized from El Hage or from the premises of Mercy

   8   International or originals of such documents.  That's my

   9   ruling.

  10            (Continued on next page)

















   1            (In open court)

   2            MR. SCHMIDT:  At this time I ask to exhibit K43T --

   3   we're skipping a number of pages -- a letter dated October 11,

   4   1996 -- may we have the original first there?  First, we'll

   5   show the letter it's dated October 11, 1996 to dear brother

   6   Farid.  It's a request for donations because of the drought

   7   and its requesting donations to come to Help Africa People.

   8   The Arabic.  That is the Arabic.

   9            I ask that we exhibit K44, the next document which is

  10   a letter to President Daniel Arap Moi from Mr. El Hage

  11   requesting assistance in obtaining the exemption for the value

  12   added tax and duty.  I ask you show to exhibit K46.  That's a

  13   letter to the income tax department also from Wadih El Hage.

  14   I do not ask you to exhibit but I offer --

  15            Your Honor, by the way, I don't know if it's clear

  16   that all the documents that I am exhibiting obviously I have

  17   offered into evidence I believe without objection.

  18            THE COURT:  All those documents that have been

  19   exhibited thus far this afternoon are received in evidence

  20   without objection.

  21            MR. SCHMIDT:  Thank you.

  22            (Defendant El Hage Exhibits MTX, M7X-8-T, K360, W19

  23   received in evidence)

  24            MR. SCHMIDT:  Again, the documents that are being

  25   asked, I assume I don't need to repeat, request that they --


   1            THE COURT:  When you complete doing that, then you

   2   make a motion for --

   3            MR. SCHMIDT:  Thank you, your Honor.  The next

   4   exhibit which is not to be, WDSK1, which indicates it's from a

   5   floppy disk that was received from Mr. El Hage's home in

   6   August of 1997.  It's a letter to the external marketing

   7   officer Al-Ramz Group in Saudi Arabia.  The letter was

   8   prepared by Ahmed S.  Aden.

   9            Then the next document that is not to be displayed is

  10   WEHX--W1286, which reflects that it was intercepted on the

  11   Nairobi wiretap of Mr. El Hage's home and it is the same

  12   letter that indicates that it was faxed through Mr. El Hage's

  13   fax machine.  It's to the external marketing officer at

  14   Al-Ramz Group in Saudi Arabia, and it indicates it's from

  15   Ahmed S.  Aden.

  16            The next documents that I offer into evidence is also

  17   DSK18 and W1287, is a letter that, and the copy of the letter

  18   intercepted on the fax machine.  One is a letter that is

  19   written by Nassir Al Fawz the financial controller concerning

  20   the letter of Ahmed Aden previously donated.

  21            The next one is a facsimile copy indicating that that

  22   letter was faxed by Nassir Al Fawz to Wadih El Hage, the

  23   director of Help Africa People, concerning food for refugees

  24   in Kenya dated August 24, 1996.

  25            The next letter also not to be displayed at this time


   1   is DSK14 dated August 26, 1996 to the Honorable Norris

   2   assistant minister office of the vice-president administration

   3   for planning and national development in Nairobi relating to

   4   relief services in Mandera that has the ending of sincerely A.

   5   S.  Aden, director.

   6            The following W1290 is the same letter that was

   7   intercepted on the Nairobi wiretap and was a facsimile.

   8            The following document also not to be shown is a

   9   letter to the financial controller of the Al-Ramz Group in

  10   Saudi Arabia.  That is also taken from the disc WSK19 dated

  11   August 26, 1996, and W1289 which is the faxed intercept of the

  12   same letter.

  13            The following is WEH-WW51 which is the original of

  14   those documents.  I ask that that one be displayed, WW51.  I

  15   ask to show the bottom which is a signature.  The signature is

  16   Wadih El Hage.

  17            WEHX, skipping a number of pages, K346.  Skipping

  18   about three or four pages.  That's a letter to Mohammad Salman

  19   dated September 1, 1996 that was on the hard drive of the

  20   computer seized from Mr. El Hage's house.  As the middle

  21   paragraph indicates it says as for the agency things are all

  22   right so far, we have implemented our project in one of the

  23   areas we have indicated an area about fifty thousand

  24   inhabitable.  It was successful and promise the people in the

  25   locality were very happy and thankful.  We had to rent a pick


   1   up for a few days because one was still not yet released as to

   2   the registration of the agency over there.  Kindly inform me

   3   to be able to communicate with our brothers in the other

   4   states for donations.

   5            It also discusses business opportunities including

   6   mining opportunities.

   7            I ask to show the K352 which is another letter to

   8   Mohamed Salman indicating that he visited Pakistan,

   9   Mr. Salman, and visited the El Hage's and requesting and give

  10   their requests for to do good deeds for the holy month.  On

  11   the next page he talks about the registration of the

  12   organization and collecting donations from Muslims in

  13   Lafayette, signed by Mr. El Hage.

  14            The next letter, next document is K47 also a letter

  15   to Mohamed Salman concerning the opportunity to give for Ifta

  16   and Zakat for the brothers and sisters in the refugee camps,

  17   and it discusses other matters and makes additional requests

  18   for additional funds for the nongovernmental agency.

  19            The next letter is K49 which is in Arabic, the

  20   translation you can put on, the T also discusses the drought

  21   and the request for donations.

  22            WDAT27 which is a facsimile intercepted indicating

  23   date February 2, 1997, and the translation of the Arabic which

  24   need not be shown.  K48 which is a similar letter that was

  25   seized off of the computer.  I ask you to go to M-7X-32.  And


   1   we only need to show the translation at this time.  It's a

   2   letter to Abu Kadija indicating that they would like to do a

   3   fast breaking meal in the refugee areas again asking for

   4   donations to enable them to do that.  It's dated January 7,

   5   1997.  Next is K343.  That is a letter to Mohammed Salman

   6   concerning obtaining a decision from the Internal Revenue

   7   Service and also relating to the stone business.

   8            K354 is another letter to Mohamed Salman indicating

   9   the correct name of the organization Help Africa People and

  10   asking questions concerning the registration, concerning the

  11   Internal Revenue Service in the United States.

  12            The next page signed by Mr. El Hage.

  13            May I have one moment, your Honor?

  14            (Pause)

  15            WW58 which is a letter from the Internal Revenue

  16   Service with a fax notation on the top of August 10, 1997 from

  17   M Salman Faruk and a telephone number area code 318 I will

  18   read it.  Dear taxpayer, thank you for your correspondence

  19   dated June 24, 1997.  To change your name on our records you

  20   need to submit a copy of one of the following.  And it lists

  21   what you need to do.  It's signed by a tax service

  22   representative and it relates to Africa Help Inc., with the

  23   post office with the number care of Bill Gains in Baton Rouge,

  24   Louisiana.  It relates back to the other exhibit concerning

  25   the IRS.


   1            I'm done with these exhibits.  Now at this time we'll

   2   go to the next group.  You have available M-44?

   3            (Continued on next page)
























   1            MR. SCHMIDT:  I'll go back.

   2            Do you have that one?  Okay.  Can you put the

   3   translation M-44T and the M indicates that it was seized from

   4   Mercy International Relief Agency.  This is a letter referred

   5   to by the witness, the same Kherchtou, that was sent

   6   requesting money that was faxed from Mr. El Hage's home.

   7            Thank you.

   8            Next I ask you to exhibit the translation of

   9   M-7X-21-T, offering the original as well, M-7X-21, but only

  10   show the translation.  It's a letter dated June 21, 1996 to

  11   Mr. El Hage concerning trying to reach a number of people and

  12   indicating the item of something that is $850 or $100 a ton

  13   from Port Sudan.

  14            I next ask you to show 7X-11, which is a letter dated

  15   June 25th from Wadih to Abu Abdallah concerning the same name

  16   of Mohamed Kassem concerning the prices of sugar.

  17            Next 7X-10 and 7X-10T.  You only have to show the

  18   translation.  It's also a letter to Abu Abdallah el Yemeni

  19   concerning prices and discussions with Fared, and then the

  20   next paragraph also concerns sugar.

  21            Again if you would show 19T and move into 19 --

  22   excuse me, M-7X-19, as well as 19-T is another letter from Abu

  23   Abdallah to brother Wadih concerning a number of items,

  24   including gasoline, sugar, mentioning the Kenana company and

  25   Brazilian sugar.


   1            Next, 369, dated August 23, 1996, is a letter

   2   relating to sugar, written by Mr. El Hage.

   3            367, 384, need not to be shown, are related to the

   4   same items.

   5            385 I ask to be shown.  This letter is to Mr. Alleh

   6   at Mottassem that relates to one of the conversations that was

   7   played -- excuse me, that was read to the jury where Abu

   8   Abdallah el Yemeni asks for a letter to go to Saleh at

   9   Mottassem.  This letter is dated December 3, 1999 --

  10            MR. FITZGERALD:  1996.

  11            MR. SCHMIDT:  I'm sorry, 1996.  Thank you.

  12            Then WDAT56.  Did we put on the contract for sugar

  13   that was intercepted, correspondence on the Nairobi wiretap

  14   that is mostly illegible, but WW-2 is the legible original and

  15   the date is November 14, 1996 and it's a contract for sugar.

  16            Then the next is 7X-16T, the letter dated November

  17   27, 1996 concerning opening up an account in Saudi Arabia.

  18            Also not needed to be shown is Exhibit M7X-12 and its

  19   translation 12T, which is another letter relating to other

  20   commercial items from Abu Abdallah from Wadih and mentions

  21   Mohamed Qassem as well.

  22            Next if we could show 33T, which is a letter to

  23   brother Mohanad from Wadih El Hage that relates to a number of

  24   products, including corn, coffee, dear, ostriches for sale and

  25   a number of gems and coal.  It's dated September 30th, 1996.


   1            I ask to show 7X-35T, and offer in both the original

   2   letter, 35, and the translation, which is a letter from Abu

   3   Abdallah to both Wadih El Hage and Ahmed, which concern a

   4   number of items, including kerosene and benzene and sugar and

   5   requesting pictures of the ostriches and the dears and

   6   information concerning their weight.

   7            And 26T it's not necessary to put on the screen, is

   8   another letter.  This one is dated June 29, 1997, concerning

   9   coffee and sugar from Abu Abdallah to Wadih El Hage.

  10            At this time I completed my recital and I believe

  11   that Mr. Dratel will begin his recital.

  12            MR. DRATEL:  The following documents -- first, I want

  13   to read a document that is in evidence as WEHX-K-32, which is

  14   a document taken from the computer seized from the Nairobi

  15   residence of Wadih El Hage and it's dated July 16, 1997, it's

  16   to the director, C.I.D., Nairobi.

  17            (Document read)

  18            MR. DRATEL:  The next group of documents to which I

  19   will be moving in evidence and referring were seized from the

  20   offices of Mercy International on August 18, 1998 in Nairobi.

  21            The first is WEHX-M-134.

  22            MR. FITZGERALD:  No objection.

  23            THE COURT:  Received.

  24            (Defendant El Hage Exhibit WEHX-M-134 received in

  25   evidence)


   1            MR. DRATEL:  I'm not going to read this document, I'm

   2   just going to read some headings as we go through it.

   3            It's called Assessment Mission into Gedo Region of

   4   Somalia, and some of the sub-headings on page 1 are political

   5   spheres and observations and then Luke area, and then on page

   6   4 there's a Bullahowa area and it talks about population,

   7   food, shelter, water, and villages in the bullahowa area.

   8            Page 8 talks about the Dolo area, also the Garbohara

   9   area, and on the last page it says, "This assessment mission

  10   was carried out between June 15th and July 25th, 1993."

  11            Next we would like to move in WEHX-M13-10.

  12            MR. FITZGERALD:  No objection.

  13            THE COURT:  Received.

  14            (Defendant El Hage Exhibit WEHX-M13-10 received in

  15   evidence)

  16            MR. DRATEL:  This is a letter dated October 17, 1996.

  17   I'm going to read the translation, which is M13-10T.  The

  18   heading is Mercy International Relief Agency.

  19            (Document read)

  20            MR. DRATEL:  Next is WEHX-M13-97.

  21            MR. FITZGERALD:  No objection.

  22            MR. DRATEL:  And the translation, WEHX-M13-97T, which

  23   I will read.

  24            (Document read)

  25            (Defendant El Hage Exhibit WEHX-M13-97 received in


   1   evidence)

   2            MR. DRATEL:  I'll stop there and move on.

   3            Another document is WEHX-M4517-18.

   4            MR. FITZGERALD:  No objection.

   5            THE COURT:  Received. Defendant's Exhibit received)

   6            (Defendant El Hage Exhibit WEHX-M4517-18 received in

   7   evidence)

   8            MR. DRATEL:  Which is a document on Mercy

   9   International Relief letterhead, authored by Ahmed Sheik Adan,

  10   Regional Director for East Africa, which is a statement of the

  11   mission and purposes of Mercy International, and I will not

  12   read that now.

  13            The next set of documents is WEHX-M21-29, M21-30,

  14   M21-31, M21-32, M21-33, M21-34, M21-35, M21-36, M21-37,

  15   M21-38, M21-39 and M21-40.

  16            MR. FITZGERALD:  No objection.

  17            THE COURT:  Received.

  18            (Defendant El Hage Exhibits WEHX-M21-29, WEHX-M21-30,

  19   WEHX-M21-31, WEHX-M21-32, WEHX-M21-33, WEHX-M21-34,

  20   WEHX-M21-35, WEHX-M21-36, WEHX-M21-37, WEHX-M21-38,

  21   WEHX-M21-39 and WEHX-M21-40 received in evidence)

  22            MR. DRATEL:  These are letters to Mercy International

  23   from a variety of sources, and I will read:  United Nations

  24   High Commission for Refugees, November 12, 1993, from AKFEM

  25   dated 9/26, 1997.  Again, United Nations High Commissioner for


   1   Refugees, October 6, 1993.  A letter from the Honorable Anan

   2   M. Noor, M.P., Member of Parliament for Mondara Central.

   3   Honorable Ahmed M. Khalif, Member of Parliament, February 3,

   4   1997.  From the Supreme Counsel of Federal Muslims, February

   5   3, 1997.  From the Office of the President, the District

   6   Commissioner in Washir, September 25, 1997.

   7            Office of the President, District Commissioner,

   8   Mondara.  September 19, 1997, Ministry of Home Affairs And

   9   national heritage, Mondara.  September 19, 1997, Ministry of

  10   Home Affairs and National Heritage, Children's Department,

  11   Washir Children's Office, July 3, 1996.  Ministry of

  12   education, Northeast Province, Washir, September 24, 1997.

  13   Ministry of Education, District Education Office, Northeastern

  14   Province, Mondara, September 19, 1997.

  15            And I'm just going to read two letters, the two

  16   letters from the United Nations High Commission for Refugees.

  17   The first one November 12, 1993, to the Executive Director,

  18   Mercy International Relief.

  19            (Document read)

  20            MR. DRATEL:  The other letter from United Nations

  21   High Commissioner for Refugees, October 6, 1993, to all NGOs


  23   NRC.

  24            (Document read)

  25            MR. DRATEL:  Just one more, February 3, 1997, from


   1   the Honorable Ahmed M. Khalif, Member of Parliament, Assistant

   2   Minister for Public Works and Housing.

   3            (Document read)

   4            MR. SCHMIDT:  There are a few other documents.

   5            That concludes this reading.  Your Honor, I just move

   6   all those in evidence that are mentioned, having neglected to

   7   move the other ones into evidence.

   8            MR. FITZGERALD:  No objection.

   9            THE COURT:  Received.

  10            MR. SCHMIDT:  There are just a few more documents,

  11   WEHX-K26, which is a letter also dated January 9, 1996 to

  12   Mohamed Salmon.  This one concerns the requesting of his help

  13   registering the NGO in the United States.  It also talks

  14   about -- I'm going from the second paragraph, going back to

  15   the relief agency.

  16            (Document read)

  17            MR. SCHMIDT:  The next page is simply the agency

  18   account number, and again on K128 is the new registration name

  19   and an introduction letter to the relief agency.  And K29, a

  20   letter that is undated to Mohamed Salmon concerning his

  21   letter, registered letter he sent concerning the registration

  22   of the organization in Louisiana or anywhere else in the

  23   United States.

  24            At this point, your Honor, we're completed with our

  25   readings.


   1            THE COURT:  I understand, you have advised me that

   2   there is a witness that you wish to call who was not available

   3   until Monday morning.

   4            Anything further subject to that?  Anything further

   5   on behalf of defendant El Hage?

   6            MR. SCHMIDT:  Your Honor, there are two other

   7   matters.  One is certain stipulations that we are getting

   8   together.  That would be prepared on Monday.  There is one

   9   other matter I would like to reserve, but outside the presence

  10   of the jury.

  11            THE COURT:  We'll take a brief recess.

  12            (Recess)

  13            THE COURT:  What is the other matter on which you

  14   wish to reserve?

  15            MR. SCHMIDT:  Your Honor, Mr. El Hage wishes to

  16   discuss with us concerning whether he wishes to testify.

  17   Because of the time frame, I plan to speak to him tomorrow

  18   concerning all that matter and then report back to the Court.

  19            THE COURT:  Any objection?

  20            MR. FITZGERALD:  No, Judge, but we would like to know

  21   if he is going to testify so we can schedule accordingly.

  22            THE COURT:  When do you think that decision will be

  23   reached?

  24            MR. SCHMIDT:  I plan to spend a good part of tomorrow

  25   speaking with Mr. El Hage.  I hope to have a decision


   1   tomorrow.  If not tomorrow, if we require additional time, it

   2   would be Saturday morning, at the latest.

   3            THE COURT:  Can you make arrangements to communicate

   4   to the government?

   5            MR. SCHMIDT:  Both the government and defense counsel

   6   have been easily available on Saturdays.  Saturday hasn't made

   7   much of a difference.

   8            THE COURT:  If the decision is that Mr. El Hage is to

   9   testify, then he is to take the stand on Monday morning.

  10            MR. SCHMIDT:  That is correct.  I would assume the

  11   expert would go briefly first and then Mr. El Hage would

  12   follow.

  13            THE COURT:  Anything else that --

  14            MR. DRATEL:  Your Honor, just one.

  15            THE COURT:  Anything that applies to the jury?  Can I

  16   send the jury home?

  17            MR. DRATEL:  No.

  18            THE COURT:  All right.  Let me just tell the jury

  19   that we're adjourned until Monday morning.

  20            Why don't we take a five-minute recess.  I'll go tell

  21   the jury that and then we'll resume.

  22            (Recess)

  23            THE COURT:  Please be seated.  I think there is not

  24   as much that we can productively do this afternoon as I had

  25   hoped, but that's all right.


   1            I think we have all just received Version 5 of the

   2   government's proposed indictment, which keeps the same

   3   numbering as the original, or you revised the number, also.

   4            MR. FITZGERALD:  The numbering should be revised.

   5   Not having proofread it, what it's supposed to be is the

   6   indictment as it would now stand, a proposed redacted

   7   indictment, with the red line changes being the changes from

   8   the last version, not going back to the original, which we

   9   thought was too complicated.

  10            THE COURT:  But this purports to reflect the changes

  11   contained in your letter of April 26.

  12            MR. FITZGERALD:  Yes.  So all the red lining should

  13   only indicate changes since the last version.

  14            THE COURT:  All right.

  15            MR. FITZGERALD:  So the numbers should have changed

  16   and the overt acts letters should have changed.

  17            THE COURT:  What I would like to do, I started to do

  18   it this morning, is to take up the verdict form, and I started

  19   to mark up my copy of the verdict form to reflect these

  20   changes, but I think maybe you would take us through,

  21   following your letter, the verdict form.  Or I can do it and

  22   tell me if I'm correct.

  23            MR. FITZGERALD:  I didn't realize we would be done at

  24   3:30.  Somebody is bringing down my copy of the verdict form,

  25   which I left on my desk.


   1            MR. DRATEL:  I can take care of something really in a

   2   minute, your Honor.

   3            THE COURT:  Yes.

   4            MR. DRATEL:  Just one document that I did not read

   5   it, was just -- that I did not intend to read to the jury but

   6   did intend to move into evidence.  I missed it going through

   7   the numbers.  I showed it to Mr. Fitzgerald.  I don't think

   8   the government has any objection.

   9            MR. FITZGERALD:  We have no objection.

  10            MR. DRATEL:  I can move it into evidence and it does

  11   not have to be read to the jury.

  12            THE COURT:  What is the exhibit number?

  13            MR. DRATEL:  WEHX-M13-98.

  14            THE COURT:  Received.

  15            (Defendant El Hage Exhibit WEHX-M13-98 received in

  16   evidence)

  17            MR. FITZGERALD:  On those same grounds, the exhibits

  18   to Wadih El Hage's 1998 Grand Jury testimony were received in

  19   evidence outside the presence of the jury through a similar

  20   oversight but occurred in the robing room, so it was sealed.

  21   We just need to do that now so it appears in the record so

  22   that in the transcript the exhibits to the 1998 Grand Jury are

  23   received.

  24            THE COURT:  Do know what numbers they have?

  25            MR. FITZGERALD:  I could put it in a letter.  It's on


   1   the sealed transcript.  I just want to adopt that so --

   2            THE COURT:  They're received.

   3            (Government Exhibits 420A and 420B received in

   4   evidence)

   5            MR. FITZGERALD:  Thank you.

   6            MR. DRATEL:  Your Honor, there's one other.  During

   7   this afternoon's session, when the Court refused to permit

   8   introduction of certain photographs, there is one particular

   9   photograph that is different in character than the others and

  10   I think is self-authenticating or is at least satisfactory

  11   with respect to what is required by Rule 901, and that is a

  12   photograph that was developed from negatives, that we

  13   developed from negatives, that has a date stamp on it and, in

  14   addition, Mr. El Hage is in the photograph, which does put it

  15   in a time obviously before 1998.  So it's date-stamped July

  16   13, 1997.

  17            THE COURT:  Do you offer it for what purpose?

  18            MR. DRATEL:  To corroborate and amplify the

  19   conversation about ostriches, to put that in -- I could show

  20   the Court the photograph.

  21            THE COURT:  This is on the theory, having been

  22   deprived of the opportunity to introduce a picture of a dog,

  23   you would be entitled to introduce a picture of an ostrich?

  24            MR. DRATEL:  There are faxes and phone conversations

  25   about the ostrich situation and that is part and parcel of


   1   that entire line.

   2            THE COURT:  And there is no contention by the

   3   government that puts that in issue.

   4            What does this picture purport to show?

   5            MR. DRATEL:  This is Mr. El Hage and an ostrich, date

   6   stamped July 13, 1997.

   7            THE COURT:  Government object?

   8            MR. FITZGERALD:  I can't see Mr. El Hage.  I can see

   9   the ostrich.

  10            THE COURT:  Is Mr. El Hage on the ostrich?

  11            MR. DRATEL:  Yes, he is.  Your Honor, he's astride

  12   the ostrich.

  13            MR. FITZGERALD:  Is this the last exhibit we'll be

  14   offering respecting an ostrich?

  15            MR. DRATEL:  Yes.

  16            MR. FITZGERALD:  No objection.

  17            THE COURT:  You're very generous.  I won't object sue

  18   sponte.

  19            MR. DRATEL:  Thank you.

  20            THE COURT:  That's received.

  21            The press would probably like a copy of that.

  22   They're nodding their head yes.

  23            MR. FITZGERALD:  The other two items we need to take

  24   care of administratively is there are a number of defense

  25   exhibits for which I don't believe the government has a


   1   complete set.  I don't know if co-counsel have a complete set.

   2   We really need to have copies of the defense exhibits before

   3   we go into summation.  A lot of exhibits were in draft form or

   4   displayed on the screen differently.  If we could have -- we

   5   really need a set of defense exhibits tomorrow.  And if there

   6   are exhibits that need to be copied or something, we're happy

   7   to produce them ourselves.

   8            THE COURT:  You told me that you had circularized a

   9   copy to the defendants, but we still need the exhibit, which

  10   is a table of contents of all the other stipulations.

  11            MR. FITZGERALD:  Yes.  We have not received comments

  12   back, and there are, I think, three stipulations we circulated

  13   which were corrected stipulations, to correct typographical

  14   errors.  We were hoping to have that signed off on before we

  15   put the stipulation chart in.

  16            MR. DRATEL:  We're endeavoring to do that, your

  17   Honor, and obviously we have put in a lot of stuff.  We have

  18   to go through it ourselves to make sure what was put in is

  19   among our list and obviously to exclude what was not put in

  20   and but was precluded, and we are endeavoring to do that.  I

  21   hope we can devote the time tomorrow to do that and clean that

  22   up.

  23            THE COURT:  At some point in the indictment prior to

  24   this revision there is the allegation that the defendants did

  25   kill in Somalia.  Is that still in this indictment?


   1            MR. FITZGERALD:  The indictment does not now read

   2   specifically that any defendant killed anyone in Somalia.  The

   3   language is that it was the object of the conspiracy -- the

   4   standard language -- that the object of the conspiracy was

   5   that the defendants would and did -- not defendants,

   6   coconspirators, would and did murder United States nationals,

   7   period.

   8            THE COURT:  Without a reference to Somalia.

   9            MR. FITZGERALD:  Yes.

  10            THE COURT:  If we could turn to the verdict form, and

  11   let's -- does everybody have a copy of the verdict form?

  12            MR. WILFORD:  Yes.

  13            THE COURT:  April 20.  And am I correct that with

  14   Count One there is now only one object and so that everything

  15   below the name of K.K. Mohamed in that verdict form is

  16   stricken?

  17            MR. FITZGERALD:  Yes, Judge.

  18            THE COURT:  All right.  Now, Mr. Dratel writes and

  19   thinks that because of the presumption of innocence, it should

  20   read "not guilty" and then "guilty," and I'm not going to do

  21   that because, "Do you find the defendant guilty or not

  22   guilty?" is the standard language and if I reverse this, there

  23   is more of a risk of confusion than there is any possible

  24   benefit.

  25            MR. SCHMIDT:  As long as it's not a butterfly ballot,


   1   your Honor.

   2            THE COURT:  Excuse me?

   3            MR. SCHMIDT:  As long as it's not a butterfly ballot.

   4            THE COURT:  With respect to Count Two, Count Two has

   5   as an object -- is the object to kill in Somalia, among other

   6   places, still in this?

   7            MR. FITZGERALD:  Yes.  It says, "including members of

   8   the military" on page 31.

   9            THE COURT:  Page 31?

  10            MR. FITZGERALD:  It talks generically about military

  11   installations in Saudi Arabia, Yemen, Somalia and elsewhere

  12   and employees of the embassies in Kenya and Tanzania.

  13            THE COURT:  It still has two objects?

  14            MR. FITZGERALD:  Yes, and the second object is to

  15   kill internationally protected persons.

  16            THE COURT:  Okay.

  17            MR. FITZGERALD:  So the only suggested change that

  18   the government has to page 2 of the verdict form would be to

  19   put the question under section A, subsection 1 in the

  20   disjunctive rather than conjunctive.

  21            THE COURT:  This is before "to murder internationally

  22   protected persons" in the first paragraph?

  23            MR. FITZGERALD:  No, Judge, down in subsection A, 1,

  24   the word "and" being switched to "or" to track the statute,

  25   "to kill officers or employees," as set forth in the letter,


   1   "or persons assisting such employees."

   2            THE COURT:  Or persons.

   3            MR. FITZGERALD:  And then "Somalia, or elsewhere, or

   4   employees of the embassies in Kenya or Dar es Salaam."

   5            THE COURT:  How about in the first paragraph under

   6   Count Two?

   7            MR. FITZGERALD:  I think that --

   8            THE COURT:  It says "and to murder

   9   internationally" -- it paraphrases the indictment.

  10            MR. FITZGERALD:  I think the top can stay the same as

  11   long as the language down below tracks the statute.

  12            THE COURT:  Then with respect to Count Three, you

  13   strike B, C and D?

  14            MR. FITZGERALD:  Yes, Judge.

  15            THE COURT:  And with respect to Count Four, you

  16   strike A, 2, 3 and B?

  17            MR. FITZGERALD:  One moment.

  18            A2, not A --

  19            THE COURT:  You strike A2, yes.

  20            MR. FITZGERALD:  But we leave 1 and 3.

  21            THE COURT:  You leave 1 and 3.

  22            MR. FITZGERALD:  And then striking B.

  23            THE COURT:  Yes.

  24            MR. FITZGERALD:  But leaving C, D and E.

  25            THE COURT:  Yes.  Okay.  Yes, that's consistent with


   1   what I thought the impact of this was.  And Count Five, you

   2   strike 1.

   3            MR. FITZGERALD:  Yes, Judge.

   4            THE COURT:  And 3.

   5            MR. FITZGERALD:  Yes, under subsection B.

   6            THE COURT:  Yes.

   7            MR. FITZGERALD:  Yes.

   8            THE COURT:  Now, on Count Five, C1, page 14.

   9            MR. FITZGERALD:  I'm sorry, Count Five, C1 --

  10            THE COURT:  You strike or "whether he caused another

  11   person to use an explosive."

  12            MR. FITZGERALD:  Yes.

  13            THE COURT:  Because you have taken that out of the

  14   indictment.  You have taken that out of the indictment.

  15            MR. FITZGERALD:  Let me just look at the language of

  16   Count Five.

  17            THE COURT:  We strike anything with respect to

  18   "caused another person" wherever the P is in this verdict form

  19   because you have taken out wherever the P is in the

  20   indictment, correct?

  21            MR. FITZGERALD:  Yes, but I want to verify that we

  22   have done that.

  23            (Pause)

  24            MR. FITZGERALD:  There's no language in the

  25   indictment that says "caused others to do that."  If there is,


   1   we'll have to strike it.  The only language in Count Five

   2   about "cause" is "caused the deaths of."

   3            THE COURT:  That's a different "cause."

   4            MR. FITZGERALD:  Right, but there's no "cause"

   5   elsewhere.

   6            THE COURT:  But, in any event, it comes out of the

   7   verdict form on Count Five, C1, the language "or whether it

   8   caused another person to use an explosive" is deleted.

   9            MR. FITZGERALD:  Yes, Judge.

  10            THE COURT:  And with the three choices, "caused

  11   another person to use an explosive" is deleted.

  12            MR. FITZGERALD:  Yes, Judge.  And then 3, subsection

  13   3 of C is gone as well.  It's the attempt.

  14            THE COURT:  Yes, 3 of C.  Oh, the attempt.

  15            MR. FITZGERALD:  Yes.

  16            THE COURT:  C of 3, the attempt is out.

  17            MR. FITZGERALD:  Yes.

  18            THE COURT:  All right.  What comes out in count --

  19   you're eliminating "attempt."  You are eliminating "caused

  20   another person."

  21            MR. FITZGERALD:  Yes.

  22            THE COURT:  And you are not alleging "caused deaths"

  23   with respect to one of the earlier counts.

  24            MR. FITZGERALD:  Count Three.

  25            THE COURT:  Count Three.  All right.  So with respect


   1   to Count Six?

   2            MR. FITZGERALD:  Yes, your Honor, it's our belief,

   3   and that feeds into the aiding and abetting point, we're not

   4   pressing the "causing."

   5            THE COURT:  So that comes out, third line from the

   6   bottom of B1.

   7            MR. FITZGERALD:  Right.  But then we have the

   8   argument which we left off on yesterday as to whether our

   9   belief that the jury doesn't have to pick between being a

  10   principal or aiding and abetting.

  11            THE COURT:  All right.  Let me announce my ruling on

  12   that, having given the matter much thought, and I believe that

  13   the jury does have to be unanimous in indicating whether

  14   liability is predicated on a defendant being a principal or

  15   somebody who aided and abetted a principal.

  16            I recognize there is authority to the contrary,

  17   but -- and we summarized that authority yesterday -- I believe

  18   in those cases which have either held or indicated in dicta

  19   that the requirement of unanimity could be satisfied so long

  20   as all the jurors believed that a defendant either was a

  21   principal or an aider, abettor are cases which involved such a

  22   closeness in facts between being a principal and aider or

  23   abettor that one could make that assumption.  But as even

  24   Judge Friendly recognized in his dictum, that would not be the

  25   case in a more complex factual situation.


   1            Therefore, the Court will continue to require the

   2   jury to indicate the basis upon which it reached its verdict,

   3   that is, as either that he did the act or aided and abetted

   4   another person who did the act.

   5            MR. FITZGERALD:  Realizing I lost that, my question

   6   is, I don't understand why they have to be exclusive, why a

   7   person couldn't carry out a bombing while helping his partner,

   8   which may very well be the -- it won't be a hypothetical.

   9   Al-'Owhali is in a truck, driving a truck into an embassy, one

  10   person might say he stepped out of the truck, therefore he

  11   added and abetted the driver.

  12            THE COURT:  You want a sentence in the instruction

  13   which says, "If you find a defendant committed the offense and

  14   also aided another in the commission of the offense, then you

  15   should find him guilty as a principal?"  That's not the

  16   language that was used, but you want that expressed in the

  17   charge?

  18            MR. FITZGERALD:  Yes, Judge.

  19            THE COURT:  All right, we'll handle it that way.

  20            MR. FITZGERALD:  And if we could change the language

  21   here, it says, "You are to put an X next to only one of the

  22   following choices," and then it's "himself used an explosive,"

  23   then not putting an X in the second box might indicate a

  24   finding that he is not an aider and abettor and I think that's

  25   what concerns me.  Perhaps we should say "you should


   1   consider" --

   2            THE COURT:  Where are you now?

   3            MR. FITZGERALD:  On page 10 of the special verdict

   4   form.

   5            THE COURT:  Page 10 of the special verdict form.

   6   Yes.

   7            MR. FITZGERALD:  Right now it says, "You have to put

   8   an X next to only one of the following choices."  Then if the

   9   jury finds he is guilty as a principal but also thinks he's an

  10   aider and abettor, following your instruction, they would only

  11   check one box, not two.

  12            THE COURT:  We can add here, "If you find that he was

  13   both, check the first box."

  14            MR. FITZGERALD:  Okay.  Thank you.  That's fine,

  15   Judge.

  16            Then on Count Six.

  17            THE COURT:  Count Six.

  18            MR. FITZGERALD:  Subsection 3 of B.

  19            THE COURT:  Wait a minute.  In Count Five, we

  20   eliminate B1, right, Odeh aiding and abetting?

  21            MR. FITZGERALD:  Yes, Judge.

  22            THE COURT:  And we eliminate 3, Odeh --

  23            MR. FITZGERALD:  Yes.

  24            THE COURT:  Attempt.

  25            MR. FITZGERALD:  Yes, Judge.


   1            THE COURT:  And C we strike, "to cause another,"

   2   middle of 1?

   3            MR. FITZGERALD:  I'm sorry, Judge.

   4            THE COURT:  We strike, as we do everywhere it

   5   appears, any language "or of causing another person."

   6            MR. FITZGERALD:  Yes, Judge.

   7            THE COURT:  And we strike from Count Five C3, that's

   8   attempt.

   9            MR. FITZGERALD:  Yes, Judge.

  10            THE COURT:  That's Al-'Owhali attempt and that's

  11   stricken.

  12            On Six, we strike "caused another person."  Anything

  13   else we do with Count Six?

  14            MR. FITZGERALD:  And then we just change the language

  15   about putting the X next to only one of the following choices

  16   by indicating, "If you find he is both principal and aider and

  17   abettor, then check the first box only," and then we drop

  18   subsection 3 of B.

  19            THE COURT:  Now you keep in "Odeh, causing the

  20   death"?

  21            MR. FITZGERALD:  Count Six is K.K. Mohamed.

  22            THE COURT:  I'm using a different one.

  23            Okay.  Then Seven.

  24            MR. FITZGERALD:  On Seven, we don't need subsection 1

  25   of B since there is only one theory.


   1            THE COURT:  Count Seven, we don't need -- there is

   2   only one now and Count Seven only has one object.

   3            MR. FITZGERALD:  Aiding and abetting.

   4            THE COURT:  Excuse me?

   5            MR. FITZGERALD:  Yes, one theory of liability, aiding

   6   and abetting for Odeh.

   7            THE COURT:  So that Odeh -- I'm sorry, what number

   8   are you on?

   9            MR. FITZGERALD:  Count Seven, page 12 of the special

  10   verdict form.

  11            MR. RUHNKE:  Your Honor, while we're going through

  12   this, I don't want to interrupt, but there's a point I would

  13   like to address being guilty as a principal and an aider and

  14   abettor as it applies to the factual situation of Mr. Mohamed.

  15            THE COURT:  Hold that.  I know this is very tedious,

  16   but I think it's worth doing.  It will take another five

  17   minutes.

  18            With respect to Count Seven, tell me what comes out

  19   besides "caused another person."

  20            MR. FITZGERALD:  I think since we're only relying on

  21   the aiding and abetting theory for Odeh, there's no need to

  22   have a special inquiry in subsection 1 of B.  There is only

  23   one theory.  So the jury can be instructed that the only

  24   theory of liability for Odeh is aiding and abetting.  They

  25   need not engage in the inquiry of subsection 1 of B.


   1            THE COURT:  I see what you are saying, because it's

   2   only aiding and abetting.  Okay.

   3            MR. FITZGERALD:  And then subsection 3 about the

   4   attempt comes out.

   5            MR. WILFORD:  Excuse me, your Honor.

   6            THE COURT:  Yes.

   7            MR. WILFORD:  On this point, if we're going to strike

   8   out language dealing with Mr. Odeh or a theory of whether he's

   9   a principal or aiding and abetting, we have to inform the jury

  10   at some point that Mr. Odeh is only charged with being an

  11   aider and abettor if that's what we're going to do, because

  12   otherwise it's very confusing and misleading.

  13            THE COURT:  I'm using this really as a shorthand,

  14   because obviously from this we've got to go back to the

  15   charge.

  16            MR. FITZGERALD:  We would agree with Mr. Wilford on

  17   that point.

  18            THE COURT:  All right.

  19            MR. FITZGERALD:  On subsection C of Count Seven,

  20   under 1, the "caused" language would come out of paragraph 1,

  21   and then the third alternative would be stricken.

  22            THE COURT:  Yes.

  23            MR. FITZGERALD:  And then subsection 3 would no

  24   longer be needed.

  25            THE COURT:  And subsection 3 is out.


   1            MR. FITZGERALD:  Yes.

   2            THE COURT:  All right.

   3            MR. FITZGERALD:  Ready for Count Eight?

   4            THE COURT:  Yes.

   5            MR. FITZGERALD:  "Caused" comes out of subsection 1

   6   of B, the paragraph, the language, and again we have to deal

   7   with the language that follows about what the jury should do

   8   if they find both principal, being a principal and aiding and

   9   abetting and we would strike the third alternative, "caused,"

  10   and once again, subsection 3 would come out.

  11            THE COURT:  Okay.

  12            MR. FITZGERALD:  And then on Nine through 221, the

  13   entire clause "the killing of" should be out and the "himself

  14   killed" column should have the box next to Odeh Xed out or

  15   blacked out.  Actually, for Odeh it should just stop at

  16   "guilty or not guilty" since there's an aiding and abetting

  17   theory, and for Al-'Owhali -- there should be two boxes next

  18   to Odeh and four boxes next to Al-'Owhali.  Odeh's lines would

  19   be "guilty, not guilty"; Al-'Owhali would say "guilty, not

  20   guilty, himself killed or aided and abetted."

  21            MR. COHN:  Could we address something collateral

  22   on --

  23            THE COURT:  Why don't you wait just a few minutes.

  24            MR. COHN:  It's on this count.

  25            THE COURT:  Wait just a minute.  We'll do the whole


   1   thing.  We're nearly finished.

   2            MR. COHN:  Pardon?

   3            THE COURT:  We're nearly finished with this and then

   4   I'll hear you on everything.

   5            MR. COHN:  That's what I thought you said.

   6            THE COURT:  It would be helpful, I thought it would

   7   be helpful, if we all worked with the same thing before us.

   8            MR. FITZGERALD:  Then I would jump to page 33, and

   9   then as to those counts the last column, "caused the killing

  10   of" comes out.

  11            THE COURT:  Yes.

  12            MR. FITZGERALD:  And then on 233 to 273, the same

  13   thing would happen.  In the language above the chart or the

  14   grid, we would take out the "caused" language, and I believe

  15   we may have to do that in the earlier counts as well.

  16            THE COURT:  Yes.

  17            MR. FITZGERALD:  And then for Odeh there would be two

  18   boxes, "guilty or not guilty" and for Al-'Owhali there would

  19   be four boxes, "guilty, not guilty, himself killed, or aided

  20   and abetted."

  21            THE COURT:  Yes.  All right.

  22            MR. FITZGERALD:  That would take us to page 39.

  23   That's Count 274.

  24            THE COURT:  Yes.

  25            MR. FITZGERALD:  And again, subsection A we need not


   1   consider for Odeh since it would only be one theory of

   2   liability.

   3            THE COURT:  Yes.

   4            MR. FITZGERALD:  And as to subsection B, "caused"

   5   language would be out for the text and the third alternative

   6   would be deleted.

   7            THE COURT:  So 234A what changes are made?

   8            MR. FITZGERALD:  It would be stricken.

   9            THE COURT:  A is stricken.

  10            MR. FITZGERALD:  Yes.

  11            THE COURT:  In its entirety?

  12            MR. FITZGERALD:  Yes.

  13            THE COURT:  And in B?

  14            MR. FITZGERALD:  We would strike the "caused another

  15   person."

  16            THE COURT:  "To cause another person."

  17            MR. FITZGERALD:  And that third option on page 40.

  18            THE COURT:  Right.  Okay.

  19            MR. FITZGERALD:  And then, at page 41, Counts 275 and

  20   276, the text would strike the "cause another person" language

  21   and then the "caused the killing" column, the last box, would

  22   be deleted.

  23            THE COURT:  Yes.

  24            MR. FITZGERALD:  Then on Count 277, the subsection B,

  25   the "caused another person" language would be deleted and the


   1   third alternative for liability would be deleted.

   2            THE COURT:  Yes.

   3            MR. FITZGERALD:  Counts 278 and 279, again the

   4   language about "caused another person" would be deleted, and

   5   next to Odeh would be just two boxes, "guilty" and "not

   6   guilty," and as to Al-'Owhali, there would be four boxes,

   7   deleting the last column about "caused the killing of."

   8            THE COURT:  Yes.

   9            MR. FITZGERALD:  Turning to Count 280.

  10            THE COURT:  Yes.

  11            MR. FITZGERALD:  Subsection A would be deleted again.

  12            THE COURT:  280A is deleted.

  13            MR. FITZGERALD:  Yes.  And then B, the language would

  14   delete "caused another person," carrying on to page 48, and

  15   the third alternative box would be deleted.

  16            Count 281, subsection B, "caused another person"

  17   language would be deleted and the third alternative deleted.

  18            THE COURT:  All right.

  19            MR. FITZGERALD:  Count 282, as to defendant Odeh,

  20   again, subsection A could be deleted, and then as to

  21   subsection B, "caused another person" language would be

  22   stricken and the third alternative removed.

  23            THE COURT:  Right.

  24            MR. FITZGERALD:  And the same on C.

  25            THE COURT:  Right.


   1            MR. FITZGERALD:  And Count 283 will be parallel.

   2   Section A would be stricken.

   3            THE COURT:  Right.

   4            MR. FITZGERALD:  "Caused another person" language

   5   would be removed from B and the third alternative removed from

   6   B.

   7            THE COURT:  Right.

   8            MR. FITZGERALD:  Count 284, subsection B, the "caused

   9   another person" language would be removed and the third

  10   alternative stricken.

  11            THE COURT:  All right.

  12            MR. FITZGERALD:  And then the other suggestion we had

  13   regarding 285 through 302 was to put the letters A through

  14   whatever for each count, put "proven" or "not proven" next to

  15   it so the jury indicated an answer one way or the other as to

  16   each specification.

  17            THE COURT:  All right.  Now, counsel want to be --

  18            MR. FITZGERALD:  If I could just bring up one issue.

  19            If the jury is going to find -- say they found a

  20   person guilty as both principal and aider and abettor, I

  21   recognize that we would, in that circumstance, impose

  22   liability as a principal, but I wondered if they are filling

  23   out the form, if there's a box there they shouldn't check that

  24   they found it on both bases.

  25            THE COURT:  Counsel want to be heard on that?


   1   Somebody?  Mr. Ruhnke, you want to be heard on that?

   2            MR. RUHNKE:  It's difficult to conceive how someone

   3   could be found guilty both as a principal and aider and

   4   abettor, because theoretically under the law those are

   5   separate culpable conduct.  But in the particular case of

   6   Khalfan Mohamed, Mr. Fitzgerald before used an example --

   7            THE COURT:  Can I just interrupt?  Why don't we say,

   8   "If you have found that he's a principal, you need not

   9   consider whether he was also an aider and abettor, and you

  10   should indicate that you have found him guilty as a

  11   principal."

  12            MR. RUHNKE:  I'm kind of jumping ahead, I think, to

  13   probably --

  14            THE COURT:  Why doesn't that solve the problem?

  15            MR. FITZGERALD:  May I have one moment with

  16   Mr. Karas.

  17            (Pause)

  18            MR. FITZGERALD:  Yes, Judge, that makes sense.

  19            THE COURT:  Doesn't that solve the problem?  Before,

  20   as an introduction to the aiding and abetting we said, "If you

  21   have found the defendant you are considering guilty on this

  22   count, you need not consider whether he is an aider and

  23   abettor," and then --

  24            MR. RUHNKE:  Just because, practically speaking and

  25   putting together a verdict sheet, I'm moving ahead to a Rule


   1   29 argument to argue that Mr. Mohamed could not be considered

   2   a principal on the facts of this case, he could only be

   3   considered as an aider and abettor.

   4            I don't want to argue the relative merits of two

   5   different cases, but it's one thing to drive up to an embassy

   6   and jump out, as Mr. Fitzgerald used as an example earlier,

   7   it's another thing to watch the truck leave and go across an

   8   entire town where somebody has to get there and decide to

   9   actually push the button before the bomb is going to explode.

  10            We can reserve that for a Rule 29 argument, but my

  11   point is that, with regard to my client in this situation, the

  12   specific facts and circumstances of the case against him, I

  13   don't see his liability as a principal.  I see it as analogous

  14   to Mr. Odeh's, only as an aider and abettor.

  15            THE COURT:  Reserving that issue, just in terms of

  16   this form, I think the way we'll do it, then, is we'll just

  17   put "check only one" but tell the jury in the instructions

  18   that if they found the defendant guilty as a principal --

  19   we'll put in the appropriate language -- then they need not

  20   consider aiding and abetting.  I think that's a logical and

  21   classical way of handling it.

  22            Now, obviously what we will do is get to you as

  23   promptly as we can a revised special verdict form, which will

  24   be essentially what we have just done here, and a revised

  25   instruction form, instruction to the jury, which will embody


   1   these changes.  Like a reverse Pinkerton.  The verdict form to

   2   the instruction and the instruction to the verdict form, the

   3   reverse Pinkerton.

   4            Until we do that, is there anybody who wishes to be

   5   heard on any matter?

   6            MR. DRATEL:  Your Honor, did you talk about the

   7   perjury?  Do we go over that?

   8            MR. FITZGERALD:  Yes, briefly.  The only suggestion I

   9   made on perjury was the --

  10            MR. DRATEL:  But we haven't discussed it.  We need

  11   the Court's --

  12            THE COURT:  We haven't discussed anything other than

  13   the --

  14            MR. DRATEL:  The verdict form.  The government's

  15   proposal as to perjury that they put in writing, we would ask

  16   to maintain what the Court did initially.  It's a very clear

  17   and precise question that has unanimity within it and there's

  18   no ambiguity in the question.

  19            THE COURT:  You are objecting to the government's

  20   proposed change in the format of the --

  21            MR. DRATEL:  Of the perjury counts.

  22            THE COURT:  I have not had an opportunity to really

  23   consider that so I'm going to reserve on that.  I understand

  24   what the proposal is.  I'm not ruling one way or the other.  I

  25   have to see which in fact is clearer and more --


   1            MR. COHN:  Your Honor, another issue that you raised

   2   yesterday which I said we were considering which is the effect

   3   of the unanimity on aiding and abetting issues and the death

   4   penalty statute, and I just hope we're reserving on that issue

   5   at the moment.

   6            THE COURT:  On the preclusive effect of a finding on

   7   this?

   8            MR. COHN:  Yes.

   9            THE COURT:  Yes, I reserved on it.

  10            Now, as I look at the statute, it seems to require

  11   that the finding be made at the 3952, whatever letter it is,

  12   hearing, and I think as a practical matter one would

  13   anticipate that the jury would be consistent.  One would hope

  14   so.  But as we know from the voir dire, jurors may require a

  15   higher standard than beyond a reasonable doubt in the death

  16   penalty phase and so I'm not sure it would be inconsistent.

  17            MR. COHN:  We would just like to address that at some

  18   time.

  19            THE COURT:  You don't object to the Court's tentative

  20   view that the jury has to do it again?

  21            MR. COHN:  Not in the least.

  22            THE COURT:  Yes.

  23            MR. FITZGERALD:  Judge, so we're clear, in the

  24   government's view, the findings in the 3591 can be made by a

  25   person who aided and abetted.  The test under 3591 is not


   1   whether you are a principal or aider and abettor.

   2            THE COURT:  I think we're addressing a different

   3   issue.  We're addressing the issue of whether one says to a

   4   jury in the death penalty phase "you have already found," and

   5   as to that, Mr. Cohn is arguing or is reserving, and I plan to

   6   agree, that the jury has to make the findings again at the

   7   death penalty phase.  That's all we need.

   8            MR. COHN:  The other thing, this is one of

   9   practicality and I'm not sure exactly whether it's even

  10   permissible, and that's this:  That we have long pages of

  11   charts of dead people.

  12            THE COURT:  Of what?

  13            MR. COHN:  Of dead people, names of dead people with

  14   verdicts next to them.

  15            THE COURT:  Yes.

  16            MR. COHN:  And I don't think it is possible under the

  17   state of facts to have inconsistent verdicts on them, and it

  18   is my view that for practical reasons, as well as others, that

  19   this be collapsed into a much smaller form.

  20            THE COURT:  Well, I'm glad you raised it.  Somebody

  21   made a reference to a ballot, you know, you have one button

  22   you can push and it's for the whole slate.  Whether there

  23   should be a box here, a single box at the front which says,

  24   "Do you find that all of the people listed in those

  25   counts...," then I think you have to list them.  But say, "If


   1   you check this box, go to count --"

   2            MR. COHN:  It's an exercise that will take time,

   3   cause confusion and, quite frankly, effect delay the stage of

   4   the case, which I think is unnecessary in this context.

   5            THE COURT:  Does anybody object to that?

   6            MR. FITZGERALD:  Yes, Judge.  My concern is that if

   7   there is a conviction, 211 counts are combined into 1, that on

   8   appeal it will be claimed that the jury didn't make a specific

   9   finding as to each count.  There's a murder count, 211 murder

  10   counts found as 1.

  11            MR. COHN:  Except that I represented on the record

  12   that I don't believe that it is possible to do otherwise and

  13   that, as far as I'm concerned, a finding to one is a finding

  14   to all.  We stipulated to the cause of death and the cause of

  15   death being the result of a bomb.

  16            I mean, I don't know what's left as to the individual

  17   counts.  It's either up or down, 200 counts or not.  That's my

  18   view.  And I don't see who could say that there was prejudice

  19   to this and the obvious gain to be made both from the Court's

  20   economy and for what the Court obviously understands are my

  21   concerns about being later in the case --

  22            THE COURT:  Mr. Ruhnke, do you join in that?

  23            MR. RUHNKE:  I join in that, yes, your Honor.

  24            THE COURT:  Your concern if we said, "If you find

  25   that the defendant is guilty of the murders listed in counts,"


   1   whatever the number are, "check this box," which will be the

   2   equivalent of your checking the other boxes on all other

   3   counts, do you think that that leaves it open to the argument

   4   that there was not an individual decision made with respect to

   5   each count?

   6            MR. FITZGERALD:  Yes, Judge.  The doubt would be

   7   successor counsel would say that there's no way a jury can

   8   pass verdict on 211 counts in one box.

   9            THE COURT:  That was the concern I had which led to

  10   our having all this.  I assumed that we'll have a line,

  11   whatever the verdict is, we'll have a line that goes down all

  12   the pages.  I think the time that might be expended in arguing

  13   that point, that is, your successor arguing that point in

  14   whatever forum he or she might be in, is probably in excess of

  15   the time that would be spent in checking all of the boxes.

  16            MR. COHN:  I'm not so concerned about the time of my

  17   successor as I am the fact that the real practical import of

  18   this is that essentially they start the penalty phase on this

  19   when they start to count the deaths.

  20            THE COURT:  What is the difference between their

  21   drawing the line down the page --

  22            MR. COHN:  Page after page of the names and each one

  23   checking them off.  If you don't see that as a practical issue

  24   in terms of the penalty phase, then you are saying that I'm

  25   being hypersensitive to it.  I see it very differently.


   1            THE COURT:  No, I see the magnitude.  It's the most

   2   compelling argument.

   3            MR. COHN:  And it's unnecessary to do, and the notion

   4   that we cannot consciously at this point specifically waive

   5   that issue by saying this is what we want and we enter into

   6   whatever allocution you need to do with counsel on the issue

   7   to show that it is a waiver made by counsel obviates the issue

   8   of maybe on appeal somebody will claim that Tuesday came on

   9   Thursday, I mean, you can't stop them from doing that.

  10            THE COURT:  I understand the point.  I will reserve

  11   on it and my decision will be reflected in the next version of

  12   the verdict form.

  13            MR. COHN:  Thank you, your Honor.

  14            THE COURT:  Mr. Wilford.

  15            MR. WILFORD:  Yes, your Honor, focusing on the

  16   indictment, the latest version.

  17            THE COURT:  Yes.

  18            MR. WILFORD:  That is, Version 5.

  19            THE COURT:  Yes.

  20            MR. WILFORD:  I believe that we didn't address fully

  21   my motion with respect to what is now Count j and also --

  22            THE COURT:  Overt Act j?

  23            MR. WILFORD:  Yes, Overt Act j.

  24            THE COURT:  On the new lettering.

  25            MR. WILFORD:  Yes.  And also, your Honor, ask the


   1   Court that we also dismiss Overt Act e.

   2            THE COURT:  Which j, new j or old j?

   3            MR. WILFORD:  New j.

   4            THE COURT:  New j on page 15?

   5            MR. WILFORD:  That's correct.

   6            THE COURT:  Of the fifth version, which is that

   7   Fawwaz provided Bin Laden with various means of communication.

   8            MR. WILFORD:  Yes, including a satellite telephone.

   9            THE COURT:  Yes.

  10            MR. WILFORD:  While there is some evidence in the

  11   record that certain documentary items were found in Fawwaz's

  12   possession concerning the telephone bills, there is no

  13   connection in terms of Fawwaz providing a satellite telephone

  14   to Bin Laden.  The testimony that we have in the case is that

  15   someone named Khalil purchased the telephone and was directly

  16   involved in the negotiations and continued purchasing time

  17   with regard to communication, and nothing to indicate that

  18   there was any connection or direct provision of the phone to

  19   Bin Laden by Fawwaz, that there was some direction to Khaleel

  20   to do that.  That's just not there.  It's not in the record.

  21            MR. KARAS:  Your Honor, I respectfully disagree.

  22            First, there is an exhibit that was found in Fawwaz's

  23   computer where he is writing a letter that effectively is a

  24   security report back to the headquarters in al Qaeda where he

  25   says, among other things, it is necessary to obtain a


   1   satellite phone for secure communication.  For the record,

   2   that's Exhibit 1626.

   3            There are a number of documents in Fawwaz's house

   4   that are found by Scotland Yard, including wire transfer

   5   records from Fawwaz to Ziyad Khalil in May of '97.  In

   6   addition to that, in May of '97 there is this the purchase by

   7   Khalil of minutes for the satellite phone and there is an

   8   invoice provided.  That same invoice appears in Fawwaz's

   9   residence.

  10            So the inference that the jury could certainly draw

  11   is Fawwaz is a reimbursing Khalil for the minutes for the

  12   phone that the evidence shows Fawwaz doesn't use because it's

  13   calling his own numbers in London.  So he's not using the

  14   phone in London to call his own number.  And Khalil's phone

  15   number is in Fawwaz's address book and there are other

  16   documents, there are other records that show telephone calls

  17   from the satellite phone to Fawwaz on dates right before

  18   additional minutes are ordered for the phone.

  19            THE COURT:  I think there is sufficient evidence to

  20   support j.

  21            MR. WILFORD:  Your Honor, the other overt act is

  22   Overt Act e.

  23            THE COURT:  E?

  24            MR. WILFORD:  Yes, on page 13.

  25            THE COURT:  Yes.


   1            MR. WILFORD:  The overt act indicates that the

   2   training and assistance was provided to Somalia tribes opposed

   3   to the United Nations' intervention in Somalia.  There is no

   4   evidence in the record of that.

   5            MR. FITZGERALD:  Your Honor, Mr. Odeh's statement to

   6   agent Anticev, which is both oral testimony and the document

   7   itself, Government Exhibit 6, indicating that.

   8            MR. WILFORD:  Your Honor, if the Court believes that

   9   the evidence in the record was that the statement Anticev made

  10   a mistake in that he did not include the exact information

  11   that Mr. Odeh provided to him, not that they were providing --

  12   they were providing training and assistance to troops opposed

  13   to United States.  That's not what he said to them.  He said

  14   he was providing training to Somalia factions that were

  15   opposed to Aideed.  There is nothing in there about opposition

  16   to the United Nations.  This particular overt act goes to

  17   tribes opposed to the United Nations' intervention, and that's

  18   not what's here.

  19            (Continued on next page)








   1            THE COURT:  I think I'll have to check the transcript

   2   on that.  Do you have that transcript?

   3            MR. WILFORD:  I will give you the page number in one

   4   second, your Honor.

   5            (Pause)

   6            THE COURT:  You want to put it in a letter to the

   7   Court?

   8            MR. RICCO:  First reference is 1647.  The second

   9   reference, your Honor, is 1707 and 1708.  1707 and 1708 would

  10   be where he corrected his testimony from 1647.

  11            THE COURT:  I will review that testimony and reserve

  12   on the motion to strike overt act e.  Anything else?

  13            I think we should get together early on Monday

  14   morning.  I've been looking through version five.  I don't

  15   want to keep the jury waiting again the way we did today.

  16            I would expect to know then whether Mr. El Hage is

  17   going to testify in which case we're going to have to make

  18   certain arrangements.  And whether the government is in fact

  19   going to call a witness with respect to the bombing of

  20   American troops en route to Somalia and temporarily stationed

  21   in Yemen.  9:15 on Monday.

  22            MR. COHN:  I just hope that the Court did not take as

  23   my silence on the issue because of the length of what went on

  24   before that there is an automatic accession to the

  25   presentation of that testimony.  I will want to be heard on it


   1   when we hear what it is.

   2            THE COURT:  Let's deal with that now, because

   3   obviously there is a question of whether the government should

   4   be allowed to present evidence in the rebuttal case, and the

   5   reason why I am inclined to allow it, assuming it is an

   6   appropriate witness, and assuming that it's based on documents

   7   and made available to the defendants, is a whole set of

   8   circumstances with respect to the Somali testimony which as we

   9   said earlier today, the Court had been assured as to each of

  10   its repeated inquiries that the matter was going to be dealt

  11   with by a stipulation.

  12            It was only at the last moment that we learned that

  13   there was no stipulation.  So the government called its

  14   witness, and then there is the whole question of Mr. El Hage

  15   and so on.  It seems to me to strike the testimony of Special

  16   Agent Yacone and to preclude the government from providing

  17   additional testimony on that would be unfair.

  18            Also, the Court notes that it did not perceive, until

  19   very recently, the nature of the defense being asserted by El

  20   Hage, which I will refer to as the temporal defense, that at

  21   the time when aid was being by supplied by al Qaeda in its

  22   adherence to Somalia, Somalia was not militantly hostile

  23   vis-a-vis the United States and the UN and that took place

  24   some time after the Abdi House raid.  That theory I think was

  25   not articulated until very recently, and I think the


   1   government, if it wishes, and if it has a witness should be

   2   given the opportunity to present that.

   3            MR. COHN:  Well, could I address the issue of

   4   unfairness and first deal with it, and then assuming it still

   5   exists subject it to harmless error analysis?  Because I don't

   6   think it was unfair, and I don't think that, because I don't

   7   think the Court is really aware and shouldn't have been as to

   8   what was going on in terms of the stipulation, --

   9            THE COURT:  Not that I didn't try.

  10            MR. COHN:  No, I know, Judge.  But the problem was

  11   that none of us knew and ground kept shifting and the Court in

  12   its way had something to do with that, and this is not a

  13   ascription of blame.  I just want to put this in some sort of

  14   context and that is this was always an El Hage issue.  And I

  15   must say that I've been pretty much out of it, and I think

  16   pretty much everyone else was, and we sort of said, well,

  17   yeah, they're going to put some proof in about this, and we

  18   think that it's terrible stuff to put in 18 dead people.

  19   That's a bad thing for us and we don't want it.

  20            And at the time that the stipulation was coming to

  21   fruition, and we hadn't seen drafts of it, nor should we

  22   have -- I don't think we were excluded for any bad reason by

  23   anybody -- it became clear to some of us, and I think borne

  24   out by the Court's ruling that there will be no connection

  25   made between the 18 deaths and the conspiracy, and we argued


   1   that, and so we had a choice when presented with the

   2   stipulation which contained facts about the 18 dead soldiers

   3   to accede to that and waive issues that were not waivable.

   4            I mean this was not only defendants.  There was a lot

   5   of ambivalence amongst defense counsel to waive that issue or

   6   to put the government to proof, which we didn't think they had

   7   a right to prove, and motions were made, perhaps not as

   8   articulately as we could, to address that issue.

   9            And you may remember that I made an oral application

  10   addressed to the 403 issues, said there was an overt act,

  11   therefore, we couldn't keep it out, but we ought to because of

  12   the 403 analysis, it wasn't fair, and as it started to develop

  13   the Court started to see and ultimately ruled that there was

  14   no connection and therefore that overt act was stricken.

  15            Now, so that's what I call the harmless error

  16   analogy.  Assume that the government was led down some sort of

  17   primrose path that they had to put that evidence in, so what?

  18   The evidence was not competent ultimately and it was stricken

  19   because it had nothing to do with it.  To allow them now to

  20   make again another trial choice and say, well, you can't get

  21   that in, put in some other dead Americans, I don't think is

  22   particularly fair to us, and I don't see -- sooner or later

  23   the government has to make final choices in a case, and there

  24   has been a history here of them coming back and saying, you

  25   know, well, we can't, we didn't, we couldn't; give us another


   1   chance.

   2            I don't see where Somalia particularly helps anything

   3   for anybody except providing more dead Americans, and while I

   4   don't denigrate the power of dead Americans, you know, I don't

   5   think it's something that's particularly helpful in the case

   6   to anybody, and to let the government to open it on a new on

   7   essentially a new theory --

   8            THE COURT:  I think what you're ignoring is the fact

   9   that the nature of the defense issue to Somalia deals with the

  10   dates when various things happened, and it seems to me that

  11   not to permit the government to show that Bin Laden identified

  12   himself with a bombing of American troops en route to Somalia

  13   in 1992 in a case in which a major issue is going to be made

  14   that at the time aid was being furnished by coconspirators to

  15   Somalia that hostility didn't exist is really a very strong

  16   sanction against the government having relied on the fact that

  17   there was going to be a stipulation.

  18            MR. RICCO:  Your Honor, I just wanted to be heard

  19   before Mr. Schmidt started, and, your Honor, this was --

  20            THE COURT:  I'm just wondering, you know, I thought

  21   9:15.  Is it clear the government is going to present this?

  22            MR. FITZGERALD:  Your Honor, the government I believe

  23   we will, and I think there are two things really need to be

  24   said.

  25            The proof in this case we cannot point with


   1   specificity a military soldier killed by al Qaeda, but there

   2   is no doubt in my mind that al Qaeda did train people for the

   3   purpose of trying to kill Americans and was responsible for

   4   some deaths.

   5            Now, in a case where not only does Bin Laden take

   6   credit for it, but his military commander in a coconspirator's

   7   statement at headquarters tells a witness that, we're

   8   responsible for the death of the Somalians, and a document

   9   which is not by a witness subject to a cooperation agreement,

  10   but by Harun Fadl who knows the Nairobi cell, is a key person

  11   in Nairobi cell, knows that's in their on handwriting.  They

  12   say in an internal memorandum, we're the Nairobi cell.  We're

  13   the ones responsible for the Sheik hitting the Americans in

  14   Somalia.  Why does that always get ignored?

  15            Because I tell you something, if this were a drug

  16   case showing that certain things happened, the fact that we

  17   can't point to a particular body and say we don't know who the

  18   shooter was so therefore we can't say that shooter was framed

  19   by somebody doesn't mean it's not probative and relevant, and

  20   to say it's unfair to put in evidence, we wanted to establish

  21   that there were casualties.  We offered to do it in a way that

  22   didn't gild the lily.

  23            I think the evidence is probative.  Frankly, I think

  24   the evidence shouldn't have been stricken, and the other point

  25   is I don't know that we're seeing a case where no one is


   1   charged with killing those 18 people.  Several of the people

   2   are charged with having no association with al Qaeda

   3   whatsoever at the time it happened and do we really think lie

   4   that Mr. Al-'Owhali who is going to be convicted of bombing

   5   the embassy in Nairobi because of unfair prejudice, that the

   6   jury will be upset by attack on the military people which we

   7   contend he had nothing to do with, rather than bombing the

   8   embassy, I don't think there is unfair prejudice there.

   9            THE COURT:  There are two things.  One is, you know,

  10   your analogy to the drug case has a limitation and the

  11   limitation is the broad scope of the conspiracy alleged in

  12   Count One.  It is the breadth of the government's claim of

  13   conspiracy which I think makes all this relevant.  Also, what

  14   you are addressing is really not Mr. Cohn's point.

  15            What you are addressing is whether the evidence

  16   already in the record is persuasive that al Quaeda and its

  17   leaders were directing anti-American military activities in

  18   Somalia.  The point that he was making, which is counter, is

  19   not answered by an assertion that the record already has

  20   enough -- let me just finish the sentence -- is your ability

  21   to introduce the evidence on rebuttal.

  22            MR. FITZGERALD:  First, your Honor, I think when we

  23   rested our case after calling Agent Yacone, we thought the

  24   testimony was in evidence, so I think even putting aside

  25   rebuttal, we're seeking to put ourselves back in a position of


   1   where we should have been, and I think already it's unfair to

   2   the government that it's going to look to the jury through not

   3   our fault, I'm not blaming anyone, that we put the evidence on

   4   and then it's afterward stricken -- the defense sought to

   5   revisit the issue as if we did something improper.  We did

   6   nothing more than we proffered to do.

   7            My point is --

   8            THE COURT:  I don't think that's a risk, but if you

   9   think that is a risk, give me some language.  Give me some

  10   language to tell the jury.

  11            MR. FITZGERALD:  The other point, Judge, we now have

  12   Dr. Samatar's testimony saying that the Somalis had no animus

  13   toward the Americans until after Abdi House and I think

  14   forgetting the fact that we should not be in a position we

  15   were, we also have the right to rebut that.

  16            MR. RICCO:  Your Honor, about 15 minutes ago you were

  17   talking about the revelation that the Court had about

  18   Mr. Schmidt's defense.  Yesterday when Kherchtou was on the

  19   witness stand and Mr. Smith took two hours in the middle of

  20   our case to have a witness support his theory, we requested

  21   redirect because we perceived that that's exactly what Mr.

  22   Schmidt was doing to our case.

  23            He took our case through that witness and crafted in

  24   testimony to fit the theory that he was going to argue, and

  25   what we were asking for was the opportunity to refocus the


   1   testimony back to our theory of the case, which was the reason

   2   why we called that witness.  And it was unfair, because as Mr.

   3   Schmidt had taken so much time that understandably the Court

   4   had little patience at that point to hear further testimony,

   5   and we were put also at unfair disadvantage with respect to

   6   what Mr. Schmidt did.

   7            THE COURT:  I didn't cut redirect.  I didn't put time

   8   limites on redirect.

   9            MR. RICCO:  What happened was --

  10            THE COURT:  You may have thought that I was impatient

  11   but that's --

  12            MR. RICCO:  What happened is that what Mr. Schmidt

  13   did was he had Mr. Kherchtou support his theory of the case,

  14   and he did it in a way such a broad way, two and a half hours

  15   of cross-examination, when we wanted an opportunity to refocus

  16   his testimony back to the reason why we called him in the

  17   first place, we were denied the opportunity to do so.

  18            THE COURT:  In what sense are you denied the

  19   opportunity to do so?  I didn't give you a time limit on

  20   redirect.

  21            MR. RICCO:  No, sir, you didn't give us a time limit,

  22   but when Mr. Schmidt asked questions about the plea agreement

  23   as it related to Somalia, we wanted to have redirect to show

  24   that the event that was discussed with respect to the plea

  25   agreement related to the Nairobi bombing, which is an issue


   1   that we are confronted with, and we wanted to have an

   2   opportunity to do that because we were --

   3            THE COURT:  What deprived of you that opportunity?

   4            MR. RICCO:  The Court denied us an opportunity after

   5   cross.

   6            THE COURT:  There was an objection, was there not,

   7   from Mr. Cohn about further questioning with respect to the

   8   plea agreement?

   9            MR. COHN:  No, that was not my objection.

  10            MR. FITZGERALD:  That was my objection, Judge, that

  11   had been that they had covered it when Mr. Kherchtou testified

  12   on the government's case, we had covered it the day before.

  13            MR. RICCO:  That may very well be true that it was

  14   covered, but through his examination --

  15            THE COURT:  What has that to do with the issue that

  16   we're now addressing?

  17            MR. RICCO:  We're at this issue now because 15

  18   minutes ago the Court was focused in on the fact that what the

  19   El Hage defense is that has the Somalia issue focused at a

  20   point where Bin Laden may not have issued a fatwa against

  21   Americans, and we aware of that.

  22            THE COURT:  What are you asking the Court to do or

  23   not to do?

  24            MR. RICCO:  I'm asking the Court to give us an

  25   opportunity to ask our questions of the witness who was on the


   1   witness stand.

   2            THE COURT:  You want to cull Kherchtou back?

   3            MR. RICCO:  Yes, sir.

   4            MR. FITZGERALD:  Your Honor.

   5            THE COURT:  That's a separate issue.

   6            MR. RICCO:  It is a separate issue, Judge, but it is

   7   related to where we are right now.

   8            THE COURT:  Let's deal with one issue at a time.

   9            MR. SCHMIDT:  I'd like to address the Somali issue,

  10   your Honor.  In my cross-examination of Mr. Kherchtou the

  11   first time he took the stand, I cross-examined him in a

  12   temporal way as well as other ways.

  13            In our discussions with the government concerning the

  14   Somalia stipulation it has always been a temporal discussion

  15   as well as events.  I think that, your Honor, I think I've

  16   been consistent with the multifaceted defense of Somalia as it

  17   relates to my client.  It's not one single thing as to my

  18   client.  The conspiracy charges Somalia.  Therefore, it's

  19   always of a concern to me for my client.

  20            But it is, it should be no surprise to the

  21   government.  In fact, their redirect examination of Mr.

  22   Kherchtou back originally was to go after the time element of

  23   when people came to Nairobi and went to Somalia, so they

  24   already dealt with the time issue back then.  So while the

  25   government may be disadvantaged to some extent as to the


   1   casualty issue, because of the testimony, the temporal issue

   2   was a decision that they made in the beginning not to deal

   3   with the Yemen incident that is alleged, and it's not

   4   something new, is effected by the striking of the testimony of

   5   Agent Yacone.

   6            The government has always taken the position during

   7   the discussions concerning the stipulation that if we don't

   8   read the stipulation --

   9            THE COURT:  I don't want to hear about that.

  10            MR. SCHMIDT:  It relates to what they say they will

  11   prove.  They always indicated that they would be putting on a

  12   helicopter pilot.  They have never indicated that there was

  13   going to be a series of other witnesses relating to other

  14   events, period.

  15            So I think it's disingenuous for the government to

  16   allege now that they're surprised at this temporal issue, as

  17   your Honor has claimed, allowing them to go back not to the

  18   helicopter pilot or even August, but to go back to December of

  19   1992.  I just wanted the record to be clear that this is not

  20   new to the government.

  21            MR. FITZGERALD:  So the record be clear, I don't at

  22   all agree with those representations.

  23            MR. RICCO:  Your Honor, even though the record is

  24   clear with respect to Mr. Schmidt, I'd like to address the

  25   specific issue before the Court.


   1            THE COURT:  Yes.

   2            MR. RICCO:  If the purpose of having testimony in

   3   Somalia about the dead troops was because it related to overt

   4   act 1y now e, and that act is now stricken, it seems to me

   5   that if we offer testimony about those events we're right back

   6   in the same place that we're in now with Special Agent

   7   Yacone's testimony.

   8            THE COURT:  But the indictment still alleges, the

   9   fifth version, of an intent to killing of Americans in

  10   Somalia, and the government obviously very strongly feels that

  11   in fact when Bin Laden was taking credit for his military

  12   actions in Somalia he was not taking false credit, so the

  13   issue is still before the Court.

  14            MR. RICCO:  Your Honor, at what point is the

  15   government's proof going to end on this?  I mean the jury is

  16   now, in addition to --

  17            THE COURT:  Is it unfortunate that towards the very

  18   end of the case the jury is going to hear about Americans

  19   being killed in Yemen?  Yes.

  20            MR. RICCO:  Your Honor, I'm not talking about

  21   unfortunate.  I'm talking about after I've rested and the

  22   government is going to put on --

  23            THE COURT:  Do you want to have a surrebuttal case?

  24            MR. RICCO:  Judge, I may or may not.  I'm not

  25   quibbling with the Court about it.  But we presented a defense


   1   based upon the proof that was known to us in the world of

   2   Somalia.  We haven't been put any proof on about Yemen or any

   3   place of the sort.  We are disadvantaged with respect to the

   4   evidence that we put forth in our case.  We're now dealing

   5   with an entire different country, an entire different time

   6   period, and no notice, and we rested.

   7            THE COURT:  You can reopen.

   8            MR. WILFORD:  Your Honor.

   9            THE COURT:  In moving trying to push the case to a

  10   conclusion it's not to curtail a valid defense or presentation

  11   of evidence.  Obviously I get distressed when I think

  12   something which should take a half hour take two days, but

  13   that's something else.

  14            MR. RICCO:  Your Honor, I don't believe that the

  15   government should be able to be disadvantaged, just as I don't

  16   think the defense should be disadvantaged if the Court is

  17   going to permit us an opportunity to reassess where we are

  18   after this evidence comes in to determine whether or not we

  19   want to put on additional evidence, I'm certain it's

  20   acceptable to do that.

  21            THE COURT:  I was deliberately very vague when I

  22   talked to the jury about when it is that deliberations might

  23   be.  I think it is clear beyond a doubt that if the government

  24   presents evidence and the defendants believe that they want to

  25   present evidence to counteract that, they have the right to do


   1   so.

   2            In terms of recalling Kherchtou to cross-examine him

   3   further about his plea agreement, you have to make a showing

   4   to me of what it is that has not been asked.  To say you want

   5   to do it to refocus it, you're going to have a closing

   6   argument, and what's in the record with respect to that is in

   7   the record, and you don't need any refocusing.

   8            MR. RICCO:  Judge, the option with respect to Yemen

   9   right now I see that is a difference.

  10            THE COURT:  There is another resolution to this, and

  11   I don't know whether it's feasible are not.  Mr. Cohn, I'd

  12   like you to be listening to this.

  13            MR. COHN:  I'm sorry, your Honor?

  14            THE COURT:  I'm saying there is another resolution to

  15   this.

  16            MR. COHN:  What is that, your Honor?

  17            THE COURT:  Which may or my not be possible, and that

  18   is to revisit the stipulation issue.

  19            MR. COHN:  I am not stipulating to dead soldiers

  20   anywhere.

  21            MR. WILFORD:  Your Honor, may I be heard on the issue

  22   of the government's proof with respect to Yemen.  Would it be

  23   possible, your Honor, to have the government lay out in a

  24   letter perhaps that we have some understanding because --

  25            THE COURT:  The government has said that as soon as


   1   it has that in hand, it will make it available to you.

   2            MR. WILFORD:  If there is some, for instance, with

   3   respect to other accreditations or fatwas that were attributed

   4   to Bin Laden, there was a particular ABC interview or CNN

   5   interview, something that we would be able to examine.  If the

   6   government is relying on a particular incident where Bin Laden

   7   specifically said that and it's public somewhere, perhaps they

   8   can let us know about it, so we can begin to take a look at it

   9   and not wait for the last minute.

  10            If there is some particular instance by Bin Laden

  11   that at that particular time related to this particular

  12   incident, then we should know about it.

  13            MR. FITZGERALD:  Your Honor, we'll tell counsel as

  14   soon as we know what we're proving.  If we have documents,

  15   we'll identify them tomorrow.  I've spent nights reading stuff

  16   that we get in piles with little notice.  The discovery they

  17   have there is some I believe in Bin Laden's statement, we'll

  18   parse through them.  As we get it, we'll share with defense

  19   counsel.  We've always laid out what we've tried to do.  We

  20   haven't always gotten it in reverse.  I just think we'll do

  21   what we can.

  22            THE COURT:  Anything further?

  23            MR. SCHMIDT:  Let me note one thing.

  24            THE COURT:  Yes.

  25            MR. SCHMIDT:  That as Mr. Kherchtou testified both in


   1   February and this week the initial, and I think the government

   2   doesn't disagree, that Bin Laden's people were ready to go

   3   over to Somalia a year before the American and the UN were

   4   there, and that's always been a temporal issue and that the

   5   Yemen issue is a separate one that the government, it's not

   6   part of the overt act.  It's a separate issue, and they made a

   7   decision on their initial case not to bring it in.  I don't

   8   think that they have the chance now.

   9            THE COURT:  I think this argument can be much more

  10   focused and productive when we know what it is the government

  11   seeks to introduce, by what witnesses, and by what documents,

  12   and we'll revisit it again and that will be at 9:15 on Monday

  13   morning.

  14            MR. RICCO:  Your Honor, in addition to the pages I

  15   gave 1740 and 1741.  That's to overt act e.

  16            THE COURT:  All right.  We're adjourned.

  17            MR. DRATEL:  Your Honor, we're still talking about

  18   the indictment, and I don't have to do it orally, because it's

  19   in writing, it's in my letter.

  20            THE COURT:  Tell me what it is.

  21            MR. DRATEL:  There are two parts of the indictment in

  22   which there has been absolutely nothing in the record.  One is

  23   that al Qaeda maintained and office or a center at Alkifah

  24   refugee center in Brooklyn, that's on page 4.  Also on page 4,

  25   the notion that collaborators --


   1            THE COURT:  I started to look for that and I didn't

   2   find it.

   3            MR. DRATEL:  It's in the first paragraph.  First

   4   paragraph page 4.

   5            THE COURT:  Alkifah refugee center in Brooklyn, New

   6   York.  Yes.

   7            MR. FITZGERALD:  Al Fadl testified about that.

   8   Alkifah refugee center is not part of al Qaeda.  It's part of

   9   the services office.  It says this organization grew out of

  10   its services offices which maintained offices in various parts

  11   of the world and there has been --

  12            MR. DRATEL:  The language of the indictment is clear.

  13   It says al Qaeda.  Number two, when al Fadl went there, there

  14   was no al Qaeda even.  Al Fadl was there in 1987 or '88 before

  15   he even went to Afghanistan the first time.

  16            THE COURT:  What's your other point?

  17            MR. DRATEL:  The other point the bottom of the

  18   paragraph, I think the last full paragraph on the page is

  19   about collaborators against al Qaeda would be identified and

  20   killed.  There is nothing in the record about that, nothing.

  21            MR. FITZGERALD:  There is.  Al Fadl testified about

  22   that.

  23            MR. DRATEL:  That they would be identified and

  24   killed?

  25            THE COURT:  Yes, I believe he did.


   1            We're adjourned to 9:15 on Monday morning.

   2            (Adjourned to Monday, April 30, 2001 at 9:15 a.m.)

























   1                        GOVERNMENT EXHIBITS

   2   Exhibit No.                                     Received

   3    420A and 420B ..............................5004

   4                         DEFENDANT EXHIBITS

   5   Exhibit No.                                     Received

   6    MTX, M7X-8-T, K360, W19 ....................4987

   7    WEHX-M-134 .................................4995

   8    WEHX-M13-10 ................................4996

   9    WEHX-M13-97 ................................4996

  10    WEHX-M4517-18 ..............................4997

  11    WEHX-M21-29, WEHX-M21-30, WEHX-M21-31, WEHX-M21-32,

  12    WEHX-M21-33, WEHX-M21-34, WEHX-M21-35, WEHX-M21-36,

  13    WEHX-M21-37, WEHX-M21-38, WEHX-M21-39,

  14    WEXH-M21-40 ................................4997

  15    WEHX-M13-98 ................................5003











HTML by Cryptome.