8 May 2001: Today the Court Reporter reissued the transcript for Day 40 to correct page numbers. This is now the corrected version.
7 May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 40 of the trial, May 7, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
5687 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7) 98 Cr. 1023 5 6 USAMA BIN LADEN, et al., 7 Defendants. 8 ------------------------------x 9 New York, N.Y. 10 May 7, 2001 9:55 a.m. 11 12 13 Before: 14 HON. LEONARD B. SAND, 15 District Judge 16 17 18 19 20 21 22 23 24 25 5688 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 KENNETH KARAS PAUL BUTLER 5 Assistant United States Attorneys 6 SAM A. SCHMIDT 7 JOSHUA DRATEL KRISTIAN K. LARSEN 8 MARSHALL MINTZ Attorneys for defendant Wadih El Hage 9 ANTHONY L. RICCO 10 EDWARD D. WILFORD CARL J. HERMAN 11 SANDRA A. BABCOCK Attorneys for defendant Mohamed Sadeek Odeh 12 FREDRICK H. COHN 13 DAVID P. BAUGH Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 14 DAVID STERN 15 DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed 16 17 18 19 20 21 22 23 24 25 5689 1 (In open court) 2 THE COURT: Mr. Schmidt had faxed me on May 4th that 3 his time computation is he's got 45 minutes left of the four 4 hours he requested, and so he will be allowed the 45 minutes. 5 Any reason not to bring in the jury? 6 (Pause) 7 MR. RUHNKE: Your Honor, while the jury is being 8 brought in. 9 THE COURT: Yes. 10 MR. RUHNKE: I received the government's response to 11 my Brady demand. 12 THE COURT: Yes. 13 MR. RUHNKE: I would like to have until Wednesday 14 morning to file a brief reply, if that's all right with your 15 Honor. 16 THE COURT: Yes, very well. 17 (Pause) 18 MR. FITZGERALD: Judge, while we're awaiting the 19 jury, with regard to Government Exhibit 6, which is a written 20 report by Agent Anticev concerning Mr. Odeh's statements, in 21 reviewing that statement we realized there were two areas that 22 needed to be redacted that we called to Mr. Ricco's attention. 23 He has agreed and he found an additional word, so we have 24 corrected the redactions. 25 Nothing has been added, just things have been taken 5690 1 out. But I just wanted to note that. 2 THE COURT: It is very important when the jury starts 3 deliberating that there is a set of exhibits in a condition in 4 which they can be sent into the jury upon request. 5 (Jury present) 6 THE COURT: Good morning. 7 THE JURY: Good morning. 8 THE COURT: Mr. Schmidt, you may resume your closing 9 argument on behalf of the defendant El Hage. 10 MR. SCHMIDT: Thank you, your Honor. 11 Good morning, ladies and gentlemen. 12 THE JURY: Good morning. 13 MR. SCHMIDT: I feel like I'm back at school. 14 Now, this is going to be my final opportunity to 15 speak with you. Obviously it's just a continuation from last 16 week. 17 Because of the great burden that the government has 18 on proving their case and every element beyond a reasonable 19 doubt, they get the benefit of going not just only first, but 20 also going last. While that's a great benefit, as jurors, you 21 have a very important job to do and I ask you to add a little 22 bit to that. 23 I have made some arguments to you based on reason and 24 rationale -- facts, lack of facts, evidence, lack of 25 evidence -- on Thursday, and I will continue to do it today so 5691 1 you will understand, hopefully, that my arguments hopefully 2 have made it clear to you, so when the government raises any 3 kind of point of evidence, any kind of argument, any kind of 4 inference, any kind of assumption, you should be able to know 5 what my response would have been if I had an opportunity to 6 respond to the government. And I ask you to raise that for 7 me, to raise that for Mr. El Hage, because we don't have that 8 opportunity. 9 And I ask you to ask one additional question relating 10 to the conspiracy charges against Mr. El Hage: When the 11 government raises another issue and they say that that proves 12 he joined in a conspiracy to murder Americans, ask yourself, 13 how does that really prove that? Because that's why we're 14 here, is because the government is asking you to make 15 assumptions, asking you to make leaps, asking you to connect 16 dots that they do not have. 17 They have also said a number of things of what proves 18 Mr. El Hage was a member of this global conspiracy to murder 19 Americans, and they cited a few things. One of them indicated 20 to you -- and I tried to show you that the evidence does not 21 show it's true -- that he was a payroll master of al Qaeda in 22 the Sudan. The government also has said to you that he was 23 the leader of the cell in Kenya. Therefore, he must have been 24 involved in this worldwide conspiracy over nine years to kill 25 Americans. 5692 1 Well, if you look at one of the government exhibits 2 carefully, it's a tape recording that has been translated as 3 GX208A-T, for the transcript, a call between what appears to 4 be Saif al Islam and Harun. In that, at the bottom of page 3, 5 Saif al Islam says, "How is our brother Mustafa?" meaning also 6 Abu Jihad. Harun says, "He is good, and he is the one who is 7 in charge after Mr. Karim was gone, may God have mercy on his 8 soul." 9 That means Karim is likely another name used by 10 Mr. Al Banshiri, unknown, clearly, to Mr. El Hage. No mention 11 of it. He is the only person that the government has alleged 12 died during this period of time. The government alleged that 13 he was a leader in Kenya and Tanzania. 14 Also, the important thing is this conversation takes 15 place in 19 -- I believe it's 1997 and Mr. Al Banshiri died in 16 1995, I believe it was. That means two years have gone by 17 with members of supposedly this worldwide conspiracy to murder 18 Americans without even having that information. 19 The government has alleged this worldwide conspiracy 20 to kill Americans by putting a little information here, a 21 little information here, and saying it's all tied up because 22 of Usama Bin Laden. And I'll get to that point, but what the 23 government has done is made allegations, and while the 24 government has the burden of proof, we have taken it upon 25 ourselves to show you where their allegations in many ways 5693 1 just simply not only is not proven but is simply wrong. 2 They made the allegation he was the payroll master. 3 That's wrong. They made the allegation that Mr. El Hage is 4 the leader of the Kenyan cell. That's wrong. They have made 5 the allegation that he was trying to bring Stinger Missiles 6 into Sudan for Somalia. We've shown the timing makes that 7 wrong. And if you recall even the testimony of Mr. Al Ridi 8 concerning the timing of it, Mr. El Hage made the connection 9 concerning the plane and he was done with it. He informed 10 Mr. Al Ridi that there were people going to be flying to Kenya 11 and he was done with it. He didn't have any more information. 12 The government did not show any more information, which leads 13 us up to the government claim that Mr. El Hage is setting up 14 the base for al Qaeda in Nairobi and that that's his role -- 15 to be the facilitator. Not to be the facilitator for lawful 16 activity, for political activity, for helping Muslims, but for 17 being the facilitator specifically in a conspiracy to murder 18 Americans. 19 The government uses that word "facilitator," and 20 please be careful. The judge is going to inform you of what's 21 necessary is not facilitation, it's joining a conspiracy, 22 knowingly, willingly, purposefully, joining in the aims of 23 murdering Americans. 24 But when you're involved, indeed, if this is a 25 conspiracy at that time to murder Americans, we're talking 5694 1 about now at that time when Mr. El Hage is in Nairobi, not in 2 1998 when Harun comes down and buys, rents the house, where he 3 does it in a manner that is quieter, more secret; he doesn't 4 let anybody in; he doesn't want Kherchtou, who is a member of 5 al Qaeda, to come into his home, or this person Mustafa, who 6 we have heard so little about who is supposedly the leader of 7 the cell in Kenya. We know so little about where he lives, 8 what he does. 9 Now that's what a person who maybe is doing something 10 wrong is doing, keeping himself quiet, keeping himself hidden. 11 And whether he's doing that because of a criminal purpose or 12 non-criminal purpose, because he knows that if he's helping 13 Islamic militants in Somalia, that he's going to get thrown 14 out of jail in Kenya. And we know that that's true based on 15 Kherchtou's statement. 16 If you recall, he mentioned Sheik Bailala, a Muslim 17 opposition leader whose followers were devout Muslims who the 18 government opposed. And if you recall, there was a phone call 19 to the apartment where Kherchtou was living in, one phone 20 call. And that's because apparently Khalid al Fawwaz knew 21 Sheik Bailala from the time that Sheik Bailala was in Saudi 22 Arabia going to school. One phone call to that apartment, and 23 the next day the apartment was raided and everybody in the 24 apartment put in jail. 25 Now, of course Mr. Kherchtou couldn't know for a fact 5695 1 that that was the result of it, but there was no other 2 information concerning why that apartment was raided except 3 for the next day, after a conversation with Sheik Bailala, 4 everyone is in jail. 5 And many many of the Kenyan authorities have to be 6 paid off to take people out of jail, not because they 7 committed crimes, because they associated with a Kenyan 8 opposition leader. Remember what I talked to you about the 9 third world is not the United States. Do not compare what 10 goes on and the motivations of people in there as you would 11 react in here, in the United States. 12 But we don't have just simply a phone call to an 13 opposition leader or from an opposition leader at Wadih El 14 Hage's home, we have members of parliament calling him and him 15 calling them. Ministers, police officers, that's Mr. Salim 16 Kheir, letters written to the commissioner of police, letters 17 written to President Moi. 18 Mohamed Ali Odeh, Oudeh, who is using the telephones, 19 who is using the computer, who is using the fax machine. The 20 other people were doing business, the two guards Rashid and 21 Ali, in and out of the home, using the telephone, using the 22 fax machine for business. We don't just simply have business 23 activity and the non-governmental organizational activity on a 24 level simply to provide a front that there is really nothing 25 going on there, we have activity swirling all around. And the 5696 1 concept of running a terrorist cell whose goals are to murder 2 Americans and having all these people around, having them 3 access to your computer just doesn't make sense. Doesn't make 4 sense at all. 5 And if you compare the computer that is seized in 6 Wadih El Hage's house, there was a hidden file prepared by 7 Harun that Wadih El Hage obviously could never have seen 8 because he wasn't in when it was prepared and seized, what has 9 the government provided as evidence of a conspiracy to murder 10 Americans out of Wadih El Hage's computer? Nothing. Nothing 11 that they have shows any intent, any knowledge, any purpose to 12 kill Americans. But that doesn't mean others may have not had 13 computers that may have military tactics, tactics that reflect 14 the possibility of criminal activity. 15 We have the computer found at Mr. Anas al Liby the 16 government going to talk about, Ali Mohamed's computer, but we 17 don't have it in Wadih El Hage. Not because that's not his 18 role, that's because there's no evidence to show that he ever 19 joined, belonged, agreed, intended to be part of a conspiracy 20 to murder Americans. 21 And the fact that people would talk a little bit 22 carefully on the telephone after the incident with Sheik 23 Bailala and what's known in Kenya and that people might not 24 tell the full truth about their activities, that's not 25 unusual. Mr. Al Ridi, who's a government witness, who had 5697 1 nothing to hide, he was scared of the Egyptian government, not 2 testifying on behalf of Wadih El Hage but testifying on behalf 3 of the United States Government, and he was still frightened. 4 Sikander Juma's friends eliminated his name from the 5 telephone book, not that he had to do with anything wrong, but 6 to avoid any contact with the Kenyan and the American agents. 7 I believe on one of the transfers of money to Mr. al-'Owhali, 8 even that person who did nothing wrong whatsoever, whited out 9 some information. 10 So, please, don't view every single suspicious fact 11 as evidence of being part of a conspiracy to murder his fellow 12 Americans when you are in a place where it's important to 13 avoid dealing with police and agents who may be corrupt, when 14 you are doing something that their government may not like, 15 when you are associated with people and have been associated 16 with people who are on a disfavored list. 17 But what has been done by Mr. El Hage doesn't show 18 that he has a guilty conscience, that he is trying to hide the 19 knowledge to the Americans that he's been trying to kill them 20 for the last seven years. It shows a consciousness of 21 innocence, a consciousness of a pure heart, a heart that has 22 done nothing wrong. 23 When the government seized all of his material, he 24 told them where to find it. He told them it went to Ahmed 25 Tawhil. Obviously Ahmed Tawhil wasn't there anymore. What 5698 1 effort did the Americans make to seek the material and locate 2 the new office of Mercy International Relief Agency? None. 3 Because after the bombing when they wanted to locate this 4 public-filed agency, like that (snaps fingers), they found it, 5 just like they found Mr. Harun's home in the Comoros. He 6 helped them. He tried to help them get his material back 7 because he had no belief that there was anything in there to 8 indicate he did any criminal activity. Because he didn't. 9 He made himself available to speak to the agents. 10 The next day he went to the hotel. Not only did he go to the 11 hotel voluntarily, but without his mother-in-law. He brought 12 back Agent Coleman's notebook that he left at the house. Now, 13 that shows a person looking to work with the American 14 government, not a person who has been trying to murder them. 15 He kept the agents informed of his travel plans. He 16 went to the Grand Jury without an attorney. He testified. He 17 went back to Texas. He didn't run away. He didn't seek to 18 flee to Afghanistan or Brazil or any other place. He stayed 19 with his family in the place he felt his family had the best 20 chance to grow up educated -- in the free United States. 21 After the bombing he did not flee. After the bombing 22 he not only spoke with agents in his home, he went down to 23 their office to speak with them. He did everything that was 24 consistent with not being part of a conspiracy to murder 25 Americans. 5699 1 Now, one thing he has made it clear both in his 2 testimony in the Grand Jury and the documents found on his 3 telephone conversations that he is a devout Muslim, and one of 4 the things that we have learned here is that Islam puts the 5 responsibility of your acts on yourself. You have the 6 responsibility to make individual determinations and you must 7 live by that responsibility. 8 It's not a responsibility of who you associate with, 9 the telephone numbers you have, who you allowed to speak on 10 your telephone and use your telephone, to stay in your home, 11 it's not whether or not you have helped people who have 12 multiple goals, including helping Muslims that you share, it's 13 individual responsibility. And that's very similar to what 14 his Honor is going to instruct you in this court. 15 We're not here to determine the responsibility of 16 Harun or Usama Bin Laden, but let's take a look a little bit, 17 though, since the government has tried to make that 18 assumption, that he is responsible for what Usama Bin Laden 19 says or writes. 20 And we know the concepts, a few of the concepts 21 involved. I will discuss it only briefly. It's fatwah and 22 bayat, two concepts other than the basic tenet of Islam, of 23 personal responsibility and personal decision-making. Again, 24 the government relies on Mr. Al-Fadl for so much, and even 25 Mr. Al-Fadl's descriptions of some of these things make no 5700 1 sense. They differ from Mr. Kherchtou and they differ from 2 the imam. 3 He says that, in answer to a question, "If a person 4 in al Qaeda gave you an order to do something that you knew to 5 be haram or forbidden, would you have to do it?" 6 "Yes, because the scholars in al Qaeda, the scholars 7 in the group, they discuss that and they make a fatwah and 8 they say it's okay." And we know based on Mr. Kherchtou and 9 the imam that that's hogwash. That's not true. Mr. Kherchtou 10 says that not only is there the individual responsibility, 11 that the religious committee in al Qaeda didn't even have the 12 standing to issue fatwahs. 13 Mr. Kherchtou says that while he was in Afghanistan, 14 while he was in Nairobi and while he was in Sudan, before 15 Mr. Bin Laden went to Afghanistan, he heard no fatwahs. And 16 he would have heard fatwahs because he knew of people while he 17 was in Afghanistan and Nairobi who were going to Somalia. He 18 talked with them. Certainly Mr. Harun had no problem of 19 saying anything he wanted, but during that whole time, not a 20 mention of a fatwah. 21 Mr. Al-Fadl, if you accept what he says, there was a 22 fatwah per week on all sorts of issues. I ask you to reject 23 Mr. Al-Fadl's statements about fatwahs because it's not only 24 contradicted by Mr. Kherchtou, it's contradicted by common 25 sense. 5701 1 And the government says that Mr. Kherchtou, well, he 2 wouldn't have heard about it, he wasn't there very much. 3 Remember this: He was going back every couple of months for 4 two weeks or four weeks and he went to check on the people and 5 he went to the meetings. So he went to, during that period of 6 time in 1994 to 1993, dozens of meetings. He went to meetings 7 in Pakistan. 8 He was unable to identify the photograph of Jamal 9 Al-Fadl, and Jamal Al-Fadl told you he went there all the time 10 because it was mandatory. Kherchtou said it wasn't mandatory. 11 Mr. Al-Fadl went to every single meeting he was supposed to 12 because he said it was mandatory, and not once during that 13 time did Mr. Kherchtou see that man or recognize his 14 photograph. 15 He also said, Mr. Kherchtou, that he never saw Wadih 16 El Hage there during his time, that he went to the guesthouse, 17 he went to the Soba farm and he knows Wadih El Hage, he knows 18 him very well, and he never saw him at any of those meetings. 19 We also know that most of the speeches against 20 American policy really occurred in the public mosques because 21 the American policy as to many, many Muslims around the world 22 was wrong. And that was no surprise and that was part of it, 23 but as Mr. Kherchtou said, there's a difference between saying 24 that America is your enemy because of their foreign policy and 25 attacking them and trying to kill them. 5702 1 As to bayat, one, there's no proof whatsoever that 2 Mr. El Hage ever took bayat. He was an early person who 3 volunteered to go to Afghanistan even before the Americans 4 were involved. He was highly respected because he dedicated 5 part of his life on three different occasions to going there. 6 It would be almost an insult to demand that he take bayat, 7 having proved himself to be a trusted and caring Muslim. 8 He also didn't take training like Mr. Kherchtou or 9 Mr. Al-Fadl. So when I talk about bayat, I don't talk about 10 Mr. El Hage. But even if a person who took bayat can say, no, 11 that's not an Islam that is -- that is unIslamic, obviously a 12 person who is there because he is trustworthy, is there 13 because he has never taken a bayat or sworn allegiance clearly 14 can say no. And as Mr. Al-Fadhl again says that: 15 "And is your responsibility the ultimate 16 responsibility as a good Muslim to make that determination on 17 your own, that this is a proper fatwah? 18 "No. No." 19 And he goes on to that on page 942. 20 It is clear from the testimony of the imam and 21 Mr. Kherchtou that you must make that individual determination 22 if something is said that doesn't sound right to you and, as 23 Mr. Kherchtou said, that he would never agree if someone said 24 to him we're going to go kill innocents, he would never agree 25 to that, nor would most people in al Qaeda agree to that. And 5703 1 if you ask him to do something wrong, "I would say no." 2 Also importantly is that when he was told that he's 3 taking bayat, he could belong to no other organizations. Of 4 course that makes sense. If you are swearing allegiance to 5 one person, how could you have allegiance to other people as 6 well? One organization. If you belong to another one, you 7 leave it to join al Qaeda. 8 Mr. al-Fadl said everybody belonged to different 9 organizations. He mentioned all these people, but remember 10 only three photographs came in, or four photographs came in 11 under him. He has his own agenda. He says what he wants. 12 Everybody is al Qaeda. He tried to present this worldwide 13 conspiracy that just simply did not exist, and he added what 14 he wanted. And fortunately Mr. Kherchtou was there and 15 available to testify here to tell you especially what Al-Fadl 16 said was not true. 17 What he did tell you was that there were 18 disagreements. Not everybody accepted what Usama Bin Laden 19 said as correct. There were disagreements. Some of them may 20 have been over minor issues, but one of the things that 21 Al-Fadl tried to do, he tried to paint this secret, hidden 22 agenda of Usama Bin Laden, of being against what the Saudis 23 were doing and the Americans and wanted to kill them. 24 There was no secret agenda. As we put in under 25 stipulation WEHXS11, there are a series of six letters written 5704 1 by Mr. Bin Laden, to the Saudi royalty, to the clergy, to the 2 army, asking, requesting, demanding that they reform, they not 3 allow Americans to stay in there, they get the Americans out, 4 they do what's right for Islam. 5 Review these, please. They are available to you. 6 They are an exhibit and they will show you that the rhetoric 7 that he has in those declarations, in those letters are 8 somewhat similar to all of his writings. But there is no 9 violence in there, there is no demands for killing and death, 10 there is no question that everybody knew that Usama Bin Laden 11 is a Saudi citizen of prominence, lost his citizenship because 12 the Saudis took it away, he was in the Sudan because he 13 couldn't go back, that he opposed the Saudi government. That 14 was no surprise. Everybody knew it. And when he ranted or 15 yelled or argued rationally about why the Saudis are wrong, 16 everybody knew that that was his position. But there was no 17 position of going in and murdering Americans. 18 These documents were seized, among others, at the 19 home of Mr. Al Fawwaz, and what we know about that is that the 20 government has put in a few of the 1998 documents from him, 21 but they haven't put in the earlier ones. The earlier ones 22 show the ongoing, slow development of Mr. Bin Laden to become 23 more and more anti-Saudi government. 24 But even if he ends up against the Saudis, as his 25 1996 proclamation did, it doesn't mean Wadih El Hage either 5705 1 knew about it, joined in it, assisted in it, had anything to 2 do with it. It was just his next demand. And it was directed 3 solely at Saudi Arabia and the protection of the holy places, 4 and even though it affected the Americans because the American 5 troops were there, it was directed similarly to the Saudi 6 government. 7 And in Nairobi, Mr. El Hage wasn't, couldn't, didn't 8 do anything to help Mr. Bin Laden with his goals of getting 9 the Americans out, and certainly nothing to do with anything 10 about murdering Americans. 11 And the only thing that he is alleged to have brought 12 back are two documents: A very political Taliban report about 13 the Taliban. That is a historical and political document that 14 really has nothing to do with the United States, it has to do 15 with how he started the Afghani people. And it also has 16 nothing -- the Somalia report has nothing to do with the 17 Americans. It's about Somalia. 18 Is it something that the United States Government 19 opposes, the training of Somali Islamists, militant Muslims? 20 Of course they do. Is it against the United States policy to 21 support activist Muslims against more secular governments? 22 Absolutely. Is there a reason for Muslims who are helping 23 Somalis, Somali Muslims try to form a more Islamic country to 24 worry about Americans? Absolutely. To worry about Kenyans? 25 Absolutely. To worry about the Egyptian government? 5706 1 Absolutely. To worry about the Saudi Arabian government? 2 Absolutely. But does that provide the evidence that the 3 government wants you to convict a man for conspiring to murder 4 Americans? Absolutely not. 5 The government makes assumptions that Wadih El Hage 6 knew about it, that he agreed to it, that he participated in 7 it, that he intentionally and purposefully and knowingly 8 joined a conspiracy to kill Americans. As Mr. Kherchtou said, 9 well, that was wrong. And as Mr. Kherchtou said, that 10 especially in Afghanistan when he went back there, what he 11 said was not necessarily supported by the people of al Qaeda, 12 certainly not as non-members, and certain things changed. 13 And the fact that Mr. El Hage went to Pakistan to 14 visit and to sell stones, may have had some contact with some 15 people doesn't make him part of a conspiracy to kill 16 Americans. Because there is certainly no evidence of that, 17 not a single thing mentioned about Somalia during 18 Mr. Kherchtou's six months with Mr. El Hage in a way that 19 would cause one to believe that -- not about Somalia, not 20 about Americans, not even about Saudi Arabia. 21 Now, the government's case is built on assumptions, I 22 submit not reasonable, rational inferences where you can draw 23 a conclusion based on certain facts, as his Honor will 24 explain, but assumptions that require a leap, a jump over a 25 void of no evidence. Assumptions, not proof, about the 5707 1 existence of a nine-year-old conspiracy. Assumptions, not 2 proof, about Somalia. Assumptions and not proof about Harun 3 being a reliable teller of what occurred, while Fadl being a 4 reliable teller. Assumptions based on the conduct and 5 possibly intent of others, some of whom Mr. El Hage knew and 6 some that he didn't know. 7 They aren't giving you proof on what he did and what 8 he said, but what others did and what others said with the 9 assumption that he had to have agreed to do it. That's not 10 sufficient and, as the evidence has shown, that those 11 assumptions are simply wrong. 12 And I want to give you an example, one of the 13 examples, sort of microcosms, sort of a condensed version of 14 how the government presented its case, and that's presented in 15 Agent Miranda's testimony. The manner he testified on 16 cross-examination was calculated to put the image of Wadih El 17 Hage as a person of hatred against the United States because 18 the Americans were in Saudi Arabia. That's how he testified. 19 And he testified that when he asked about Usama Bin 20 Laden's hatred, that Mr. El Hage, in answering that question, 21 he often switched using "he" for Bin Laden and "we" when 22 describing the hatred of the United States. That's how he 23 tried to sell that to you. 24 But what we found out is that, one, Mr. El Hage was 25 open and honest about his disagreements with American foreign 5708 1 policy, with the treatment of Muslims and Palenstinians versus 2 the Israelis, his feelings that the Americans should not have 3 a presence there. That was a person talking with a clear 4 conscience a week or two weeks after the bombing, where there 5 was evidence of Mr. Bin Laden being involved in it and people 6 in Kenya being involved in it. And he spoke about that as 7 opposed to trying to hide his true feelings, not to make 8 himself a target. 9 We also learned that the "we" changes as on one 10 occasion when he was describing about having the money to be 11 able to live a life like a good Muslim, that Bin Laden had and 12 "we," all the other people, did not. We also learned that the 13 word "hatred" wasn't Mr. El Hage's word, it was the word of 14 Agent Miranda. 15 We learned about the true believing Muslim. Not only 16 was "true believing Muslim" used to describe that any true 17 believing Muslim believes that the U.S. should be driven out 18 of the Saudi Peninsula because the Koran has reserved the 19 Saudi Peninsula only for Muslims, he also used it, which Agent 20 Miranda didn't talk about and it took a while to get out on 21 cross-examination because he didn't remember the use of that 22 word until he had to review his notes, that a true 23 believing -- withdrawn. He was asked by me, I asked Agent 24 Miranda: "You asked him," meaning Mr. El Hage, "would you 25 support Bin Laden if you learned of his involvement in the 5709 1 bombing; isn't that right?" And the answer, "Yes, sir," that 2 he asked Mr. El Hage that question. "Right." 3 "And do you recall him telling you that, as a true 4 believing Muslim, I follow the guidance of the Koran and not 5 people; if Bin Laden was involved, it was mistake; that Bin 6 Laden would be wrong in conducting such an act because there 7 was no guidance for it in the Koran and I would not support 8 him?" 9 "That's correct, sir." Agent Miranda said that 10 indeed Mr. El Hage said that. "He said that, yes, sir." 11 He also indicated he would not support Mr. Bin Laden 12 if he learned that he was involved, that he did not have the 13 right to attack innocents. He doesn't remember who used the 14 word, if it was his word or not. 15 But what we have here is a clear picture, and even 16 Mr. Kherchtou said that killing innocents -- of course, 17 notwithstanding how he got involved -- is really a no-brainer. 18 There's no support about that in the Koran under these 19 circumstances, no. And Mr. El Hage made it clear he did not 20 support the position. And it wasn't in a manner that he was 21 trying to hide his true feelings, it was in a manner that he 22 expressed his true feelings, his opposition to American policy 23 that is just everyone's right in our country to do so, and he 24 did so as an American. 25 And he answered the questions about his beliefs at a 5710 1 time when all of the United States, if not the world, was 2 looking upon Muslims, especially ones who wanted the American 3 troops out of Saudi Arabia, looking at them as possible 4 terrorists. And he didn't avoid it, he admitted it. But he 5 told him what his feelings were. Yes, he wanted them out. 6 Yes, the Saudi should get them out. But you don't kill 7 innocent people. You don't do what Bin Laden did. 8 Now, there's one other example that shows the 9 assumptions made -- more than one example, but I want to 10 finish with one example that shows the government in 1997 was 11 making assumptions about Wadih El Hage. In 1991 -- excuse me, 12 in 2001 they're asking to you make the same assumption, and 13 it's wrong. I'm going to play a very short piece of tape, and 14 I want you to listen to the voice of Mr. El Hage and the voice 15 of the agent and how they're talking and see who 16 misunderstands who. 17 (Tape played) 18 MR. SCHMIDT: This agent is surprised that Mr. El 19 Hage is telling him he's flying on El Al, the Israeli 20 airlines, because they just simply make assumptions about 21 Wadih El Hage, not because what they really know about Wadih 22 El Hage, but because he worked for Bin Laden, that he has 23 friends and associates who are Muslims who are helping the 24 devout Muslims in Somalia fight the bandits and the warlords, 25 that he wants to help the Muslims in Tajikistan and Bosnia, 5711 1 that he opposes the American support of Israel in the manner 2 that they do and they don't treat the Palenstinians correctly. 3 And because of that, to the agents, to the United 4 States Government, he must be an Arab terrorist who wants to 5 kill Americans. And Bin Laden talks about Ismailis and Jews 6 as well while they misunderstand him, because what he is is a 7 caring, devout Muslim, who cares about his fellow Muslims but 8 cares about his family and cares about himself and wants to go 9 back to America and would prefer going on the Saudi airlines 10 because he's not paying three times the price to fly American 11 Airlines. He'll go on El Al if he has to, and he doesn't even 12 consider, until later, when he is informed that, you can have 13 trouble because you're from Lebanon, you're from a Muslim 14 country. 15 Ladies and gentlemen, we're here because of 16 assumptions about Wadih El Hage. We're here because the 17 government assumes he's the type of person who would murder 18 Americans because Harun worked for him, he had communications 19 and worked for Mr. Bin Laden, he supports much of what Mr. Bin 20 Laden did, but he does not support the killing and murdering 21 of innocent people and there is nothing in the evidence that 22 should change your mind. 23 I ask you, on this very difficult case, uphold the 24 burden of proof beyond a reasonable doubt, beyond a reasonable 25 doubt, before you can say that Mr. El Hage is a person who has 5712 1 agreed, conspired, intended to kill Americans. I ask you to 2 pause, I ask you to review what the government says proves 3 that, and I ask you to come back with the verdict of not 4 guilty. 5 Thank you. 6 THE COURT: Thank you, Mr. Schmidt. 7 We'll take a five-minute recess. 8 (Recess) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5713 1 THE COURT: Mr. Ricco, you asked for three and a half 2 hours. 3 MR. RICCO: Your Honor, we have allotted that amount 4 of time but I don't think it will be three and a half hours. 5 THE COURT: I never complain about brevity but I do 6 like keeping people to the maximum they requested. 7 (Jury present) 8 THE COURT: We will next hear from Mr. Ricco on 9 behalf of the defendant Odeh. 10 MR. RICCO: Good morning, your Honor. Ladies and 11 gentlemen. First, on behalf of Ms. Babcock, Mr. Herman, Mr. 12 Wilford and even Mohamed Odeh, we would like to thank you all 13 for paying attention to the case all the way through. From 14 time to time I would sort of look out the side of my eyes to 15 get a sense of whether or not you were still paying attention, 16 and most of you have been. 17 Now I am going to talk for the next two days about 18 Mohamed Odeh -- that's not going to happen. Let me tell you 19 this. I have this big notebook full of notes, and we spent 20 the whole weekend working on a computer disk so that we could 21 show you, you know, where somebody said this in the record and 22 show you this picture, and we were even up this morning, what, 23 about 6:00, trying to get this thing to work, and guess what, 24 it's not working. So that's OK. You know, I'm a true 25 believer that everything happens for a reason. 5714 1 I'm sort of glad that we had an opportunity not to 2 respond directly behind the fine summation that Mr. Karas 3 gave, because I think we would have spent too much time saying 4 to you, you know, Mr. Karas is a good lawyer, but he twisted a 5 word here and he twisted a word there, and showing you charts 6 where the witnesses didn't say this and didn't say that. I'm 7 not going to do that -- not that much. Instead, I want to 8 talk to you in my closing remarks about my collective thoughts 9 about this case. Those thoughts developed as the case 10 proceeded and unfolded. 11 I will tell you this, that my primary concern in this 12 case was what your expressions would be after you saw the 13 videotape. So as the videotape was playing, I was sitting 14 here watching, and I saw some of you react with your hands 15 over your mouth. Most of you reacted with revulsion and 16 disgust at the horror that was depicted there. Many of the 17 people who are here today, seated in the audience, are victims 18 or relatives of victims of that crime. I was concerned 19 whether or not as jurors you could survive watching that video 20 and still keep an open mind. My basis for that was a simple 21 one: It's hard for me or anybody else. When confronted with 22 that type of evidence, we all react viscerally to it. 23 So I thought over the weekend what would I say to 24 you. Where would I start. How would I find a place to talk 25 to you about Mohamed Odeh. I will tell you this. The best 5715 1 place to start is where the government says its proof is. 2 What I would like for you to do, rather than get involved in 3 the minutia of who said this, where they said it, what page it 4 was, how it contradicts this page and that page, I want you to 5 stay with some themes in this case when you go back in the 6 room to deliberate. The themes will take you to the 7 testimony, to the letters, to the documents, and you can see 8 it for yourself. 9 The government says that Mohamed Odeh was the 10 technical adviser to the bombing. Right? That's what 11 Mr. Karas told us, and the evidence of that, according to 12 Mr. Karas, is Mr. Odeh's statement that he gave to Agent 13 Anticev, who is also present today, seated in the back row, 14 over the 13 days he was held in communicado in Kenya. And 15 what Mr. Karas says is that Mr. Odeh danced with the truth, 16 danced around the truth. There is no evidence in this case 17 that Mr. Odeh even knows how to dance. All the evidence in 18 this case reveals that he is a man who speaks truthfully. I 19 don't say that as rhetoric. 20 This is what I want you to do. You take every 21 letter, every document that was seized from his house. Take 22 it in the back and put it on the table and start going through 23 that stuff. Not only the stuff that the government put in but 24 the stuff that we put in. You start going through the letters 25 to his family, the tapes and what not, and you see if that 5716 1 doesn't reflect the mind set of a man who dances or the mind 2 set of a man who handles and can deal with the truth. 3 I want you to remember something, and that is this: 4 That Mr. Karas says his flight and being with others proves he 5 is guilty, along with other evidence. He slips that in the 6 back. The judge is going to instruct you on the law. I am 7 not going to say no words on the law. But the judge will 8 explain to you how you deal with the evidence of one's 9 association, and I submit to you that the association does not 10 establish guilt. Physical evidence is what the government 11 spoke about. This was the trump card for the government. 12 This was the piece that got everyone on the jury looking at 13 Mohamed Odeh a little differently -- at least that was my 14 impression. What the government said was Mr. Odeh used a fake 15 passport. You using a fake passport, you know you doing 16 something wrong, right? And his clothing. The clothing had 17 PETN and TNT in it. Very important. 18 Mr. Karas also said that the tape letter and the 19 diagram -- that diagram. Where is it? That diagram shows 20 that Mr. Odeh is guilty. We blew it up big. This is the only 21 thing that -- I am sorry, we enlarged it. 22 (Laughter) 23 MR. RICCO: Excuse me, your Honor. That diagram, 24 that's it. Got you. That's what the government said, right? 25 When you look at that diagram at first blush, you sit back and 5717 1 you say they got him, there it is. 2 Mr. Wilford is going to handle a part of the 3 summation. Mr. Wilford is going to handle the forensic 4 evidence and that document. I am going to come back at the 5 end and wrap things up. I submit to you that one of the great 6 aspects of this country is that everybody charged with a crime 7 gets a lawyer. Some get more than one. But they are entitled 8 to a lawyer. And we get to ask questions about this document. 9 Like, for example, where it came from, who wrote it, is it 10 dated. How does it compare with the other documents. 11 Remember the ampersand and all the rest of it, that they can 12 prove something from an ampersand. Nobody stick this in the 13 face of an expert, you know, we found some books in the house, 14 why don't we compare that to that. Mr. Wilford is going to 15 handle that. That's it from the government's case. That's 16 what they said proved their case. What we are saying to you 17 is that the evidence in the case, all of it, every single 18 piece of it, down to the nanogram of TNT and PETN that was 19 found on his clothes, Mr. Odeh's clothes, do not establish his 20 guilt. 21 I want to share with you a story. There was a person 22 who testified in this trial. He was a young, nice-looking 23 fellow. He said he had delivered money for Al Qaeda secretly. 24 He didn't know who it was, he took money around. So he is 25 associated with Al Qaeda, right? He said I went and 5718 1 negotiated the contract for the house that was used to build 2 the bomb. OK. He said he was present at the bomb factory the 3 night before the bombing, but he was kept in the dark 4 downstairs. He didn't know what was going on. He said he 5 drove the family of Harun to the airport. You know, Harun 6 escaped, took his family with him. He helped get the family 7 out. Very important role, I would think, right? You going to 8 blow up a building in a country and you going to sneak on off? 9 I think it might be a good idea to take your wife and kids 10 with you, right? That's what he did, and this fellow helped 11 him. He said after Harun left he went and had the house 12 cleaned up. To try to get rid of what? That PETN and TNT, 13 whatever. He said after that, he cleaned the truck up that 14 was used to deliver the bomb supplies. He also told you that 15 he planted a piece of evidence in the house to divert the case 16 to somebody else and away from himself. 17 Remember that testimony? You know who I'm talking 18 about? I'm not talking about Mohamed Odeh, the technician, 19 right? I'm not talking about the guy who is sitting here at 20 this table this morning. I'm talking about a guy came in 21 through that door. His name was Sikander Juma. 22 He also told you something that was very important. 23 He said that when he first started interviewing with agents he 24 didn't tell them that he planted the evidence or had somebody 25 plant it, whichever story you feel more comfortable. He was 5719 1 dancing with the truth. Right? He was trying to make a scene 2 like this book belonged to somebody else. Remember that? And 3 when you look at the involvement of him and you say to 4 yourself, well, wait a minute, how come he's not sitting at 5 this table, well, the difference is, Mr. Odeh is a member of 6 Al Qaeda, Mr. Sikander isn't. 7 What's important, when I started this case I said to 8 you it is very important, it's crucial that you make a 9 distinction between inferences that are reasonable, they sound 10 reasonable, and inferences that are accurate. Again, looking 11 at this chart, what does it accurately depict? Not what does 12 it reasonably depict -- a circle, some boxes and a road, bomb 13 blast -- a term that Mr. Karas used, no bomb expert, he said 14 bomb blast cone. You say that sounds reasonable. Then you 15 start seeing pages ripped out. What happened to that page? 16 Whatever. Mr. Wilford will deal with it. The point is this, 17 the inferences should be accurate, not just reasonable, 18 because Mr. Sikander Juma testified to you that he had nothing 19 to do with the bombing of the embassy and he did the thing 20 with the book because he was afraid that his association with 21 others would result in people believing that he was guilty. 22 So given the world that we live in, where people prejudge and 23 make associations, he decided to help himself by planting 24 evidence and putting it somewhere else. 25 I just wanted to share that story with you, that 5720 1 testimony with you about the case. And I want to just take a 2 couple of minutes and look at an overview. But before that, 3 remember when I started I told you about who Mr. Odeh was? 4 Let's think back. Let's go back to January. I told you that 5 Mr. Odeh was a young man who left his college studies to go 6 fight jihad in Afghanistan. He was an engineering student. I 7 told you that the money that his father sent him for school, 8 he does what a lot of young people do with the money their 9 parents send him. He used it for what he wanted to do. And 10 he consulted with some scholars and he decided to go and 11 follow his conscience to Afghanistan. I told you that he was 12 a person trained -- he's not denying it. No problem. You 13 going to go to a war, you better be trained if you expect to 14 come home. He was trained in Afghanistan, trained in firearms 15 and everything else a person needs to be trained with in a 16 war. He survived Afghanistan. And when he decided to leave, 17 when things changed, he thought long and hard about joining Al 18 Qaeda. He had a concern. He said I don't want to join a 19 group that would require me to follow orders blindly. 20 Now, some men who go to war -- and women -- they 21 don't care what the orders are. Our history is replete with 22 men and women who have gone to war and have committed 23 tremendous acts of barbarism against people, right here in our 24 own nation. It was in the papers recently about something 25 that happened. 5721 1 The concept that somebody who is Islamic would have 2 those same moral scruples, is it foreign to you? That's why 3 we called Imam Siraj, because many of us don't know people in 4 the Islamic world. What Mr. Odeh said was, I believe in what 5 I'm doing, I sacrificed my studies to do it. But I can see 6 what's going on here. Got a lot of different kind of players 7 here. You saw some on the witness stand. I'm going to try to 8 find a group where I can fulfill my religious beliefs to do 9 good for people who are Muslim all over the world. That's 10 where he started, and that's the trick that they used to get 11 him out of Kenya at the end. That's me saying it was a trick. 12 That's my view of the evidence. 13 Mr. Odeh took bayat, and I told you straight up he's 14 a soldier. And you look at him. He looks like a soldier. He 15 watches everything. He takes notes. He's smiling sometimes, 16 serious at others. He is a person that I said few Americans 17 get to meet. You would meet him on a battlefield somewhere, a 18 legitimate battlefield. He has no shame in that. But there 19 are many men who fight wars who don't hate their enemies, who 20 don't shoot people in the back. Therefore many men who do 21 tremendous acts of bravery in the battlefield. They save 22 their enemy. They bring them to safe havens. Many men. And 23 what is in them? What is instilled in an individual that 24 would do that? It's your religious upbringing. It's your 25 moral values. Right? 5722 1 Some people will see an older person like Miss Allen 2 walking down the street. And Miss Allen is hobbling with her 3 cane, as usual. And her bag drops. And Miss Allen, 4 struggling so much just to get from one point to the next, is 5 not paying attention to the bag. And there's a lot of people 6 who will sit back and go, hm, opportunity. There are other 7 people would say, Miss, you dropped your bag. Of course we 8 are talking about someone more serious than someone dropping 9 the bag. But the state of mind is the same. It's a righteous 10 state of mind. So the government is right. Islam is not on 11 trial. What is Islamically correct is not on trial. 12 Mr. Odeh's state of mind, his intentions is on trial. And his 13 records and his phone calls and his taped notes to his wife 14 give you an insight into what? His state of mind. 15 He comes and he goes to Somalia and from Somalia he 16 goes into Kenya. The events lead him up to traveling to 17 Pakistan and being arrested. The government, if we go back 18 and look at the overview, the statements, the physical 19 evidence, the diagram, etc., the statement, according to the 20 government, shows that Mr. Odeh was dancing with the truth. 21 Government's Exhibit 6 is 34 pages, a single-spaced, 22 typewritten account of what Mr. Odeh told Agent Anticev. And 23 we know that he told him more, because Agent Anticev told us 24 that. He said he kept notes and that he made that statement 25 from the notes, and he told us that there were many things 5723 1 that were kind of left out and some things weren't included, 2 and we talked about some of it during the trial. 3 But you have to remember something. The FBI decided 4 not to tape these interviews. It's the FBI policy. OK. All 5 right. They didn't videotape it. That's their policy. 6 That's OK too, because their techniques are not on trial 7 either. But the evidence is on trial. So just because they 8 say they didn't want to do it or didn't do it don't make it 9 right. So when a person comes in here and starts explaining 10 to you the subtleties of what people are saying, oh, you need 11 that tape. Oh, yes, you need that video. That stuff is 12 helpful. Kherchtou told you when he was being interviewed, 13 that agency, whoever they were, from whatever country they 14 were from, they had a tape on, to record what and how he was 15 saying. Because this typewritten document is a reflection 16 back. He prepared it on the 31st of August, six days after he 17 left and 15 some odd days before the interview started. 18 He also asked him hypothetical questions and showed 19 him disturbing photographs. For example, it's not FBI policy 20 to take -- well, it's FBI policy not to use a tape, but it's 21 good FBI policy to show a person a picture of bomb victims to 22 get them to start talking. That's the policy. You have to 23 ask yourself, what's the purpose of the hypothetical 24 questions? Agent Anticev said it was to get him to start 25 talking. If you check out the report, the hypothetical 5724 1 questions don't come till page 25. So either the hypothetical 2 questions should have been at the beginning to get him to 3 start talking or he wasn't talking for the first 25 pages. 4 But as you go through his document, you will see that he 5 talked about the same stuff every day that he was there, in 6 and out all over again. 7 It is significant for everyone to realize that 8 Mohamed Odeh was in communicado. Let me break in communicado 9 down. Mohamed Odeh was kept without a lawyer, without being 10 able to see his friends, without being able to see his family 11 for 13 days. Anybody got a problem with that? No. You know 12 you don't. Because you wouldn't care if Mr. Magoo caught the 13 right people as long as they were caught. Right? Right? He 14 was kept 13 days in communicado, separated from his wife, his 15 family and his friends, and he gave his consent. 16 In addition to the 13 days he was kept in communicado 17 in Kenya, he was kept seven days in communicado in Pakistan. 18 Lovely place to be kept in communicado, for seven days there. 19 Do you get disoriented? What's the purpose of it? Is it to 20 extract statements? And when it doesn't work you start asking 21 hypothetical questions, well, if I can't get it this way, let 22 me try this way? Is that what the purpose is? Ultimately it 23 is for you to decide how reliable his statement is. 24 I submit to you, when you go in the back don't do 25 what the government did, let's focus on this paragraph and 5725 1 that -- take the whole statement and read it from front to 2 back, and read it more than once. Because I will tell you, 3 each and every one of you, that every time you read that 4 statement you find out something new about Mohamed Odeh. You 5 find out small facts about him. 6 I submit to you that Mohamed Odeh gave a truthful 7 account of his actions in detail. I submit that to you 8 because his statement is verified in every way. Each piece of 9 evidence in this case tells you that Mohamed Odeh was telling 10 the truth. Everything from his travel to Afghanistan, owing 11 his father the money, where they later find the letter in Witu 12 where he was talking to his dad about the money in school nine 13 years ago -- that's a heck of a son to say dad, I'm going to 14 pay you back the thousand dollars from nine years ago -- to 15 his decision to make bayat with Al Qaeda. It was all 16 verified. 17 And the government, I submit to you, is having it 18 both ways. Because, see, they look over in the corner at 19 Mr. El Hage and they say you know what, El Hage is guilty, 20 because El Hage had an opportunity to help the government 21 investigate this case and he went in there and lied. That's 22 what they tell you. And he lied and he slowed down the 23 investigation, he's wrong, he's unAmerican I think somebody 24 said, or something like that -- or somebody said that. I 25 don't know if the government said that. I think somebody 5726 1 responded to the government -- excuse me, Mr. Karas. What 2 they said was that he had a choice between his allegiance to 3 America and his allegiance to Al Qaeda, and he picked what? 4 Al Qaeda, according to the government. 5 Now let's look at Mohamed Odeh's 35-page statement. 6 Mr. Odeh also was at the threshold. He had to decide. Agent 7 Anticev told you, we gave him an opportunity to have a lawyer. 8 We wanted to find out about it. A pause was taken. Mr. Odeh 9 came up with a solution himself: Can I talk to the Americans 10 alone? No, not really. Go back over the testimony. Mr. Odeh 11 is coming up with, well, how can we work this out? And Agent 12 Anticev tells you that ultimately Mohamed Odeh decides to 13 speak to the agents. 14 When he was confronted at that crossroad between, 15 quote/unquote, helping the investigation or his allegiance to 16 Al Qaeda, what path did he choose? Take a look at the 17 evidence. And if he's wrong for doing what he did, how can he 18 be wrong for doing what he did? Wrong means guilty. The way 19 you make it work is that you say he was dancing with the 20 truth. Take it in the back. Go through it. And tell me the 21 name of this dance. Because what you going to find is that 22 this statement is verified by many, many small aspects of the 23 case. 24 I will tell you one. In his statement Mr. Odeh says, 25 well, I knew two Ubaidahs. Agent Anticev showed him a 5727 1 photograph. That's Banshiri. He was the boss. But when I 2 was back in the camp, there was another Ubaidah. He was a 3 bomb instructor. That's a little detail. Who confirmed that? 4 Kherchtou. Kherchtou told you that when he went to the camp 5 he had a guy that he ran with called -- I forgot his name 6 right now. But he ultimately became a bomb instructor, and 7 his name was Ubaidah. And Kherchtou told you that there were 8 Ubaidahs, one who was an instructor who was his friend at the 9 camps, and the Ubaidah Banshiri that he later found out. 10 Mr. Mohamed told you the same thing. He wasn't dancing on the 11 truth about that. Little small points. 12 So his statement, I submit to you, we submit to you, 13 is not evidence of his guilt in this case. I don't care what 14 you call it. Go through it. 15 Flight with others. The evidence will show that 16 Mr. Odeh's flight from Kenya was orchestrated by someone other 17 than himself. Nobody disputes that. He wanted to stay. 18 Nobody disputes that. The evidence in this case shows that it 19 was through a trick, telling him he had to go back and confer, 20 that they got the guy who somebody had to have some prescient 21 knowledge of. You don't want Mohamed Odeh in Kenya. Get him 22 out. Why? And why do I say that? Because the evidence shows 23 that by 1998 you had a new breed of people in the mix. 24 Remember the young hotheads? Abu Jihad, son of jihad? Harun? 25 These guys are now moving. He, Mr. Odeh, is a purist. He's 5728 1 living in a mud hut in the middle of nowhere with his Koran 2 and his wife and his child. He's not living in a fancy villa, 3 driving a car, cell phone, or satellite phones, fax, computers 4 and all the rest of that. By 1998 he's a problem. He's a 5 pain in the side. They want him out and they take him out. 6 He is a member, and he did associate with others who 7 did travel. He left with them, some of them. But his flight 8 doesn't establish guilt. His association with them does not 9 establish guilt. 10 I want you to remember that he was a member of Al 11 Qaeda, and this is important, because the government is kind 12 of having it both ways. They are kind of mixing the word Al 13 Qaeda with the conspiracy in Count 1. You got to be clear. 14 The conspiracy in Count 1 is not an Al Qaeda conspiracy. The 15 conspiracy in Count 1 is a conspiracy to kill Americans 16 wherever you find them. That means in the jury box, as 17 administrators, as judges, as lawyers. Children on the 18 street. Wherever you can find 'em, kill them. That's what 19 Count 1 charges, anywhere in the world, kill 'em. And what 20 the government has to prove to you is not that Mohamed Odeh 21 associated with Al Qaeda and Al Qaeda traveled out of Nairobi. 22 The government has to prove to you that he agreed to kill them 23 anywhere and everywhere that he can find them. And he talked 24 about that in his statement also. 25 His religious beliefs brought him to Al Qaeda, but 5729 1 even Mr. Fadhl had to admit that Bin Laden twisted religious 2 principles to justify acts of violence. Let me say that 3 again. Fadhl testified that Bin Laden twisted religious 4 principles to justify acts of violence. Many members of Al 5 Qaeda, including Mr. Odeh, opposed taking action that was not 6 supported by the Koran, the Hadith and the principles of 7 Islam. What I submit to you is that his association with Al 8 Qaeda is based on his religious beliefs, and he did not join 9 Bin Laden in twisting religious principles to satisfy acts, 10 justify acts of violence. And all them fatwahs that came into 11 evidence, and the CNN interview, in one of those interviews 12 you heard Bin Laden himself saying that these acts are not 13 from our religion but we're doing it because that's the only 14 way that you listen, Americans, we giving you back your own 15 medicine. He doesn't say there is a religious basis for it. 16 He says just the opposite. Imam Siraj took the stand. One 17 question. Is there any religious authority for the killing of 18 innocent women and children? People object, whatever. 19 Answer, of course not. 20 Physical evidence. I told you that Mr. Wilford will 21 go into that. The tapes and other documents, I've said that. 22 I've talked about Mohamed Odeh. I am going to move on. I 23 just talked about the issue of membership and it's very 24 important, because the government has to prove membership in 25 this conspiracy. They don't just get to stand up here and 5730 1 wave the flag, come on, we all Americans, we know what to do. 2 Because the government stands up here on one side of their 3 mouth and says I'm appealing to your common sense. But 4 they're really saying prove guilt by association. And they 5 say that in the absence of evidence. And when the government 6 comes up behind us, Mr. Fitzgerald comes up behind us and he 7 is talking to you about Mohamed Odeh, think to yourself, point 8 to the evidence, what evidence supports that. 9 I want you to remember this also about the membership 10 and association. Ladies and gentlemen, forgive me for not 11 flowing. I would like to be able to talk to you much faster 12 and a lot more comprehensively but it's a lot of stuff. Quite 13 frankly, I don't see how Ken Karas was able to do this for the 14 time he was able to do it. It is very difficult. I want you 15 to remember small parts, because I'm a great believer in the 16 small things. You know, remember Kherchtou -- when we talk 17 about membership and association, remember Fadhil traveling to 18 Kenya with his wife? I know he was on the stand for a long 19 time. But one of the things Fadhl told you, and the purpose 20 of me sharing this with you, I think it highlights this point 21 about membership, and you can't infer knowledge because me and 22 you happen to be together. I want to go to the evidence. 23 Remember Fadhil said there came a time when he got on a plane 24 and flew into Kenya. They took his wife. They give him an 25 envelope. He said nobody told me what it was about, but he 5731 1 assumed that him and his wife were going to stay in Kenya. He 2 said he met a person at the airport -- it wasn't Mr. Odeh -- 3 and they drove him somewhere. The person got out the car, 4 came back and told him, go to Pakistan. He took his wife, 5 went back to the airport, got on the plane and went to 6 Pakistan. 7 Now, I'm smiling because most of us who are married 8 know that would be a very difficult task to accomplish. You 9 moved your wife and family all the way to Kenya to tell them 10 to go back to the airport to get on the plane to go to 11 Pakistan? And he says I didn't know what it was about, but I 12 was a member, I did it. Did you believe that? I don't know 13 if it's true or not. Is it possible? It's possible. OK. 14 So that highlights my point, because a lot of you 15 will say, Mr. Odeh was at the hotel, come on, what do they 16 talk about, what do Muslim people talk about when they get 17 together other than blowing up buildings, things like this. 18 They don't have all these conversations about their wife and 19 kids and family circumstances and things like that. Right? 20 So I raise this point. 21 The other point with Kherchtou took place Ali Amriki 22 and Hamza Liby, and the other fellow. He says that they were 23 in his apartment and they had all of this equipment set up, 24 and he said, you know, I assume that they were doing some kind 25 of surveillance because they had a camera, you know, the 5732 1 developer -- very smart. Right? He was assuming. And it was 2 the surveillance instructor from the camps. He says these 3 guys are taking pictures, they doing something. I don't know 4 if it's a drill, I don't know if it's real, but I know they're 5 doing something. But you cannot take from that that 6 Mr. Kherchtou joined them in what they were doing unless he 7 shares the same intent. He's got to know. And if he knows 8 and he does it, he's guilty. But Mr. Kherchtou told you I 9 didn't know that they were looking at the American Embassy. 10 Do you believe him? Do you? Do you think he was lying to 11 you? Government witness. Wasn't my witness. He was either 12 telling you the truth or he was lying. 13 Sikander, I told you about him. Traveling, moving 14 around, getting a house, taking people to the country, 15 cleaning up the scene. He said he didn't know. Do you see a 16 pattern here? Do you see a pattern here? Kherchtou said that 17 he was in Kenya in August of 1998, that he went out looking 18 for his friend Harun, and he said he ultimately found Harun, 19 and that they spent some time together. These were within 20 days of the bombing. He said Harun has some guys around him 21 that he never saw before. That's what his testimony said. I 22 didn't know these guys that were around Harun. So it wasn't 23 Saleh, must have been some other guys. Wasn't Mohamed Odeh, 24 the bomb consultant, because he knows Mohamed Odeh. He knows 25 him as Marwan, a guy he believes was in Somalia. You can 5733 1 point out over there and say I saw Mohamed Odeh running around 2 with Saleh a couple of days of the bombing. You can say to 3 yourself was Kherchtou's associations, his travel, his contact 4 with the people of Al Qaeda around the 5th and 6th of August, 5 does that make him guilty? If he shared the criminal intent 6 it does. But if he didn't, it does not. Do you think that he 7 was telling the truth when he said that he didn't have 8 anything to do with the bombing? Same thing for Sikander 9 Juma. Remember Tawhil he was afraid to be seen with Kherchtou 10 after the bombing. Remember he ran into him at the hotel? 11 Tawhil was nervous, upset, he didn't want to be seen with or 12 have anything to do with Al Qaeda. The association is 13 powerful. 14 I want to skip through. I want to skip through a 15 lot. I want you to bear with me. I want to share a point 16 with you and it might hurt somebody. But you know how life 17 is. When I was making the point to you about the tape 18 recorder or the videotape -- this is very important, because 19 sometimes it's not what we say, it's how we say it. That's a 20 lesson that all of us learn from when we this big. When those 21 devices are on we capture that. Mr. Karas pointed out to us 22 how Fadhl answered questions certain ways and he used the term 23 we. He is focusing in on the subtleties of what a person 24 says, not so much what but how they say it, how they 25 expressing themselves. Remember Agent Miranda? Agent Miranda 5734 1 said that he interviewed El Hage and showed him a picture. 2 And after the picture was shown to him there was a smirk. You 3 remember the testimony about that? And I asked him, what kind 4 of smirk was it? Because there's a lot of different kind of 5 smirks. And he said the smirk was, he's a fool. 6 Now, what I submit to you, I want you to keep that in 7 mind as we go through these points. The government says that 8 Mohamed Odeh was the technical adviser to the bombing. Let's 9 start from the basic proposition. One, what evidence is it 10 that he agreed to participate in the bombing? The government 11 said he was a prominent member of Al Qaeda. They used the 12 word prominent. They used the word prominent because they 13 wanted to influence you, just like people of prominence do. 14 Prominence means possessing or exercising influence, a person 15 who has indirect power over others through wisdom, force or 16 character. That's what a person of prominence is. A leader. 17 Ask yourself -- the government used that term -- how did they 18 prove his prominence? Who did Mr. Odeh influence in this 19 conspiracy? Name a person. Name one. And in what way? 20 Where? And how? Who did they prove he exercised prominent 21 influence over? Other than the government just saying it, 22 what is the evidence to support that accusation? Zip. None. 23 How did Mr. Odeh participate in the planning, 24 assembly, execution or coverup of the bombing as an adviser? 25 Let's look at the planning. Ask yourself the following 5735 1 questions. Who selected the target? Who said we're going to 2 bomb the embassy? Who selected the date? Were other targets 3 considered? When was this discussed? What evidence is there 4 that Mr. Odeh participated in those discussions? None. The 5 government says that the date is significant, had something to 6 do with President Bush sending troops into the Persian Gulf 7 area. Who made the decision to bomb the embassy on that 8 particular date? Was it Mr. Odeh? I don't think so. There 9 is no evidence of that. Who made the decision to bomb both 10 the United States Embassy and Kenya and Tanzania? And who is 11 responsible for coordinating the execution of simultaneous 12 bombings in two separate countries? Who is that person? And 13 when and how did Mr. Odeh advise that? 14 Let's look at what the government calls the bomb 15 factories. Who chose the type of house to build the bomb? 16 What is the evidence before you? That came from the lease 17 agreement, the negotiations with the landlord, testimony from 18 Sikander Juma in Nairobi. Mr. Odeh is not even charged with 19 anything in Tanzania, which is going to be very interesting 20 when Mr. Wilford gets up. But we will wait for that. Who 21 paid for the houses? Who was present for those negotiations? 22 It was Harun, Sikander Juma, and others. There was no 23 evidence whatsoever that Mr. Odeh participated in the planning 24 and selection of the bomb houses, factories. 25 The players. Who selected the men to participate in 5736 1 this? Who made the decision? Did they just sprout up one 2 day? Where did they come from? How were they recruited? Who 3 gave them their specific assignments? What evidence is there 4 that Mohamed Odeh participated in those discussions as the 5 technical adviser? What? There is none. 6 Travel. Who supervised the travel arrangements for 7 the players? Look at the statements of the defendants. 8 According to Odeh, his travel was coordinated by Saleh and 9 Fahad, and that is verified by the documentary evidence that 10 the government put in. Is there any evidence in this case to 11 contradict that statement? No. There is inferences to be 12 drawn from the physical passports that were recovered in 13 Tanzania. Those are the passports of Al-'Owhali and Azzam 14 that were found in Tanzania -- I am sorry, that were found in 15 the Comoros, right? They were found in the Comoros. Mr. Odeh 16 was a part of that? Who coordinated the travel plans of these 17 individuals into Kenya and Tanzania? Who paid the advance 18 money? Who consulted with that? The guy living in the shack 19 up in Witu? 20 Who coordinated the housing accommodations for the 21 participants in the bombing upon arrival in Nairobi? Look at 22 the defendant's statements. Again, look at Mr. Odeh's 23 statement. Look at the hotel registry. Look at 43 Runda 24 Estates. 25 Who was responsible for obtaining the passports and 5737 1 other travel documents for the participants, and where did the 2 passports come from? The government argued in its summation 3 that passports were the lifeblood of Al Qaeda, and that sounds 4 good. That sounds right. Who was the prominent person 5 responsible for and advising on where to obtain those travel 6 documents for the participants? Look at Odeh's statement. 7 Remember the testimony of Kherchtou and Fadhl, that 8 Al Qaeda had passport experts. Did you believe them when they 9 said that? They said that Al Qaeda had passport experts. 10 They had a bureau that was specifically set up, a department 11 for the production of these items. Remember, they said that 12 the participants, many men, and Al Qaeda documents were taken 13 from them and collected. 14 Again, remember Mr. Odeh's reluctance to leave Kenya. 15 Remember his testimony that he lost his Jordanian passport and 16 how that is confirmed by the government putting into evidence 17 a newspaper article where he advertises the lost passport. Do 18 you believe that the technical adviser for the bombing had to 19 pay for his own passport? The testimony is that he paid $400 20 for a passport with somebody else's picture on it that was 21 expired. There is no evidence to contradict that. The 22 passport is in evidence. And, significantly, that he did not 23 make travel arrangements for his own family. 24 I think Mr. Wilford is going to go into this a little 25 later, but I want you to remember one thing, that all the 5738 1 people who participated in this case, in the bombing, they 2 took care of their family. Odeh's family and kids. Saleh's 3 family and kids, in Afghanistan. Harun has Sikander get his 4 family out. The other man who is seated here, he is young, he 5 don't have no family. Azzam, he was destroyed in the bombing. 6 He was from somewhere else. The only person whose family, 7 whose pregnant wife and child that was left behind in Kenya 8 was the technical adviser to the bomb, according to the 9 government. 10 And what I submit to you is that the fact that his 11 family was there and that he traveled with so little clothing 12 is an inference that you can draw that supports his statement 13 that his intentions was to confer and come back, unless he was 14 a person who didn't really care about his wife or he was one 15 of these guys in Al Qaeda who had four or fife wives and it 16 didn't make no difference to him. You can tell from the 17 quality of his letters that he wrote to his wife about being 18 separated from her and etc., etc., that he loved his wife and 19 he missed her and that he would not have left her behind in 20 Kenya had he known of this bombing. He would have did what 21 everybody else did, got her out of there. 22 Let's look at the bombing itself. Who were the 23 technicians? Who selected and purchased the trucks to be 24 used? Who decided what bombs to use? Was it Mr. Odeh? Any 25 testimony of that? Who supervised the conversion of the 5739 1 trucks for the delivery of the bomb? Remember Mr. Karas told 2 you that 3, that shows that the truck was three meters long. 3 So I guess he was involved in the selection of the truck. Any 4 evidence of that? Mr. Wilford is going to come back to that. 5 It don't even represent that. Who supervised that? Who 6 assembled the bomb and where was the bomb assembled? Doesn't 7 the technical adviser to the bomb have to look at the bomb and 8 make sure it sets right, it's in its proper place? Doesn't he 9 or she? There is not a nanogram of evidence, forensic 10 evidence that Mr. Mohamed Odeh was at 43 Runda Estates. 11 Mr. Wilford is going to address that, but keep in 12 mind a point made by Mr. Karas in his remarks. He said that 13 the microscopic residue found on Mr. Odeh's clothes that were 14 in his bag contained PETN and TNT, and since there was no PETN 15 at 43 Runda Estates, according to the government, he did not 16 get it on his clothes from anything that was contaminated at 17 43 Runda Estates. So Mr. Karas says it must have happened 18 before then, because he's thought out his own logic, it didn't 19 take him nowhere. Mr. Wilford will explain to you where that 20 evidence came from. It came from somewhere else. Mr. Odeh's 21 statements indicate that there is no contact with Runda 22 Estates, Mr. Sikander or anyone else who ever set foot inside 23 of 43 Runda Estates. 24 Who then were the bomb technicians who calculated the 25 quantities of TNT to be used and the number of detonators 5740 1 necessary to destroy the building? What does the credible 2 evidence show? Abdel Rahman, the master bomber, the bomb 3 trainer from Afghanistan. Do you think on a job like this -- 4 let's think about it. These simultaneous bombings were going 5 to attract international attention and response. Do you think 6 they sent their best bomb man to do it? Or the fool? 7 Fahad, who wanted to be a Jihad warrior, the guy 8 looking for a fight, the guy whose name is son of jihad. 9 Remember, he took the expert course in bombing. He paid 10 $6,000 out of his own pocket to go to a bombing course in a 11 part of the world where the average worker makes $1,200 a 12 year? Wait a minute. The average worker in that part of the 13 world makes about $1,200 a year, if they got a job. He spent 14 $6,000 to go train on bombing? You think maybe he was the 15 technical adviser? I don't know. Could be. What does the 16 evidence show? 17 Where is the credible evidence that says that Mohamed 18 Odeh served as a technical adviser to Fahad, or to Abdel 19 Rahman, his former trainer from Afghanistan? It is important 20 to keep in mind the internal dynamics of Al Qaeda. At this 21 point Al Qaeda is moving in a different direction. Every 22 witness told you that. Different witnesses. There were many 23 young lions ready to move up to test out that $6,000 worth of 24 training and to do something to make a name for themselves, 25 who wasn't satisfied going to help people in Somalia and 5741 1 wanted to do something big. 2 Remember that many members of Al Qaeda, at least one 3 member of Al Qaeda or associate of Al Qaeda believed by this 4 time that Mohamed Odeh was a fool. There's a big difference 5 between people -- it is a big difference when people think 6 you're a fool and being a person who can be fooled. When I 7 was a kid growing up, I used to get up early in the morning, 8 go to school, my book bag, the whole nine yards. And I would 9 cross people on the street and they would say Anthony Ricco, 10 he's a fool, he ain't going nowhere, I don't know what he's 11 wasting his time for, he will be right here with the rest of 12 us. When Mohatmas Ghandi gave up his law practice, traded his 13 Brooks Brothers suits, fine clothes to take on the cloth of 14 the poor people, to take on the injustice of the British 15 empire, there were many people in his family who thought that 16 he was a fool. When Dr. King turned down a cushy place in the 17 church hierarchy to lead a fledgling civil rights movement, 18 his own father thought he was a fool. It's in his Bible. 19 When Nelson Mandela, the recently retired president of South 20 Africa, gave up his title of only one of six black lawyers in 21 the nation of South Africa to take on apartheid, there were 22 many people who considered him a fool. When Mohamed Ali -- 23 the boxer -- gave up his heavyweight championship and the 24 millions that came with it because of his conscientious 25 objection -- to what? War -- there were many people who 5742 1 considered that African American to be a fool. 2 And when you look back, who was the fool? And who 3 was not fooled? Many times you have to look at the person who 4 is using the label to get a full flavor of what that term 5 means in any given situation. The credible evidence in this 6 case establishes that this bomb was consulted and built by 7 Abdel Rahman, the master bomber from Afghanistan, and Fahad, 8 the wanna-be Jihad warrior who was running back and forth 9 between Nairobi and Tanzania making sure everything was right, 10 and Harun, who had some training in bombing. There was no 11 room for him, and there is no evidence that he participated. 12 There is no evidence whatsoever to support the government's 13 accusation that Mohamed Odeh was an adviser for the assembly 14 of the bomb. 15 Let's talk about the execution. There is no evidence 16 that Mohamed Odeh was a technical adviser to those young men 17 who executed the bomb in Nairobi. First question, who 18 debriefed the young men? Any evidence that said Mohamed Odeh 19 did? Who synchronized the watches, made sure the watches were 20 together? Who gave the men their last minute pep talk, come 21 on, let's go out and kill 2, 300 people? Any evidence of 22 that? No. Where did this pep talk take place? Is there any 23 evidence of it was Mohamed Odeh present? I submit this was 24 done by men like Fahad, Saleh and Harun, who were staying out 25 all night. If it was done by Mohamed Odeh, where is the 5743 1 evidence? There was no evidence whatever that Mohamed Odeh 2 was ever at 43 Runda Estates. Who does the government claim 3 drove the trucks? What evidence is there that Mr. Odeh ever 4 advised them? Remember that Agent Anticev showed Al-'Owhali a 5 photograph -- I am sorry. Excuse me, your Honor. Remember 6 that Agent Anticev showed Mohamed Odeh a photograph of 7 Al-'Owhali, and Mr. Odeh said I don't know him. Ask yourself, 8 what credible evidence is there in this case that says that he 9 is a liar? Where did they meet? When and where? What 10 evidence is there? Don't sit back there and say they met. 11 Point to the evidence that says they met. Look at his 12 statement. Look at the other evidence. 13 And there was never any allegation -- they're telling 14 me to move on. There is never any allegation that Mr. Odeh 15 was holding back anything. Did Agent Anticev say that on the 16 witness stand? No, he did not. 17 The bomb aftermath. There is no evidence that 18 Mr. Odeh consulted anybody on cleaning up the bombings and 19 what not after it was done. Nor did he even know Sikander 20 Juma, who testified here. There is no evidence that the two 21 of them ever met each other. So in this regard, what evidence 22 is it then that Mohamed Odeh consulted with anyone on any 23 subject, that is, the planning, the building, the bomb or the 24 execution of the bomb in this case? None. So how then, how 25 then does the government prove, not say -- because you can say 5744 1 anything -- how do they prove that he was the technical 2 adviser? They wave the flag, they say we Americans, he's not, 3 convict him. That's how it goes. 4 I want you to keep in mind, the coordinating of this 5 event must have been tremendous. It involved the arrival -- 6 just the arrival and departure of the participants alone must 7 have been a massive effort. The government says that Al Qaeda 8 was an army, an multinational corporation, and like all 9 multinational corporations, Al Qaeda was headed up by a 10 billionaire, Bin Laden, with assets in several countries. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5745 1 MR. RICCO: (Continuing) They had the ability to 2 purchase nuclear weapons. They had sophisticated businesses, 3 fax machines, computers, private jets. They had eight $80,000 4 cell phones. Do you think that the planners of this event 5 that was going to capture an international audience, do you 6 think that the planners selected a technical advisor for this 7 coordination who didn't even have a telephone? 8 He's living in Witu without a telephone. How is he 9 technically advising? How is he coordinating the people? I 10 submit to you that it did not happen. That's why it didn't 11 happen this way. You can't make something exist that doesn't 12 exist. And when it doesn't exist, the response will be to 13 say, well, let's dance around what there is. And I must say 14 to you that if there is evidence in this case that supports 15 that Mohamed Odeh was involved, let's deal with it. 16 Your Honor, this is a great place and Mr. Wilford 17 will be coming on next. 18 Thank you very much. 19 THE COURT: We'll take a brief recess. 20 MR. COHN: As soon as the jury is gone, your Honor. 21 (Jury not present) 22 MR. COHN: Your Honor, at this time, based on part of 23 Mr. Ricco's summation, I move for a mistrial as to 24 Mr. al-'Owhali. 25 Mr. Ricco found it incumbent on him, in commenting on 5746 1 people who had taken part in the bombing, taken care of their 2 family, to then include my client, who has no family, and 3 specifically inferred that my client was guilty, implied that 4 my client -- more than implied, said almost in terms. 5 I find that to be extraordinary from an experienced 6 and able trial lawyer. And nobody elected him the 13th juror, 7 and I move for a mistrial at this point. 8 THE COURT: Anybody want to comment on that? Nobody 9 wants to comment on it. All right, I'll comment on it. 10 I don't think that's a fair inference to be drawn. 11 The reference was to the government's allegations and what the 12 role of other people are said to have been by the government, 13 and obviously the government takes the position that 14 Al-'Owhali was one of the executors. And the fact that 15 somebody who is said by the government to be in that position, 16 is not identified by another person said to be in that 17 position is a relevant comment and doesn't assume guilt or the 18 role of a 13th juror. 19 MR. COHN: Your Honor, with due respect, reading his 20 remarks would not show you that he's commenting on the 21 government's theory of the case, but he said people who 22 participated in the bombing, that -- and I respectfully 23 disagree with the Court's analysis. 24 THE COURT: Is there any kind of instruction you want 25 to the jury? 5747 1 MR. COHN: I don't think that's going to particularly 2 help. I'll take care of it. If you won't give me the 3 mistrial, I'll take care of it. 4 THE COURT: We'll take a very brief recess. 5 (Recess) 6 (Jury present) 7 MR. RICCO: Excuse me, everyone. I had promised you 8 when we took the break that Mr. Wilford was going to be up, 9 but they reminded me that I left a few things out. 10 There is a great problem when you are involved in a 11 case as jurors and as lawyers where there is as much evidence 12 as there is here and there are so many different defendants. 13 There is always so much that we want to say, but there is only 14 really but so much of it that is really important, and lawyers 15 have a bad way of not just like, this is what we're trying to 16 say and be done with it. 17 Now, Mr. Odeh gave a very detailed statement. It was 18 detailed. He talked about people, their background, their 19 wives, their kids, what countries they came from, where he 20 thought they would be now. He could remember who he met at a 21 camp, what they talked about. 22 When you look at his statement, I want you to really 23 look at that statement very well and look at how Agent Anticev 24 put that statement together for you to read one day in a 25 courtroom, okay, and I want you to remember something. I was 5748 1 picking at Ken Karas' use of the word "prominent," and it only 2 struck me as odd that the prominent al Qaeda member was living 3 in the conditions that Mr. Odeh was living in: Rural, cut off 4 from everyone else, no telephones, no electricity, no running 5 water. "Prominent" is not a word that I would use to describe 6 that unless you are telling me he had some other influence, 7 like he's a great guru living in the mountains that people go 8 to for advice. I don't get that impression. 9 The impression that you got from one of his letters 10 is that Harun checked in on his wife and he said, oh, I have 11 good news about your wife. That's in one of his letters. And 12 also his letters to his wife are written by guy like a 13 country-type guy who misses a simpler life. And so it's very 14 important that you keep that in mind, because as we sit in 15 front of you and talk at you for hours and hours about this, 16 the most important thing is that you try to capture the 17 essence of who it is and what it is we're talking about and 18 not so much the minute details. 19 The one point that I wanted to make to you is that 20 the government put this up. This is page 25, I think, from 21 Mohamed's statement. 25, and what it says is, according to 22 Agent Anticev's typewritten notes, is that he was angry and 23 disappointed at the performance of al Qaeda's cell leader. 24 Odeh stated that if they couldn't get the pickup truck into 25 the garage of the embassy, then the occupants of the truck 5749 1 must die trying. They should not have left the truck to 2 explode and kill so many people, right? 3 Odeh stated that nobody, even Bin Laden, could be 4 happy with the results. Odeh further stated that the position 5 of the pickup truck was a mistake. The back of the truck 6 where the explosives were held should have been facing. So, 7 in other words, according to what Agent Anticev is telling 8 you, the truck should have made a U-turn and then backed in 9 all the way back down to the building or got under the 10 building, according to Agent Anticev. 11 Odeh stated that an errant shock wave hit the wrong 12 building. Remember what the experts told you how a bomb 13 explodes? You know errant shock waves. Bombs go like this. 14 And people who have been to war and trained around bombs know 15 that they go like this, which is why they duck when the bombs 16 go off. A guy in war doesn't say, well, the back of that 17 truck is not facing me so I don't have to get out of the way 18 when it blows up. When this thing goes up, he goes down, 19 okay? 20 Odeh said that he accepts responsibility for the bomb 21 because he's a part of the group. What group? Al Qaeda? Did 22 he ask him? The group that did this? And it was a big 23 mistake and Saleh blundered. Odeh stated that the truck had 24 to back into the building in order to prevent the cab from 25 acting as a hindrance to the shock wave, therefore preventing 5750 1 the surrounding buildings from being affected. 2 Then the government turns and shows you this, and 3 they go, well, if you kind of turn it sideways and look at it 4 like this, wow, that's the whole thing, isn't it? He's 5 guilty. 6 There's a problem with this, and it's a simple one. 7 Mr. Odeh is held incommunicado in Pakistan for seven days, 8 right? He's held incommunicado in Nairobi for 13 days. When 9 he's interviewed, he does not get to see family, friends, 10 newspaper, nothing. How does Mr. Odeh know that the truck 11 didn't get into the building? How? How does he know? 12 Now, some people will say, how does he know it was a 13 truck unless he was involved? But let's deal with it 14 step-by-step. 15 That truck was blown into a billion pieces, right? 16 How does Mr. Odeh know that if they couldn't -- that they 17 didn't get the truck into the garage? Because that's the 18 implication, right? How does he know that somebody didn't die 19 doing this? Who told him that? 20 Couldn't have been -- I can't say that. Let's just 21 say that there's no evidence that anybody said that to him. 22 How does he know that? How does he know that somebody 23 survived that? Where does he get that from? Where? How does 24 he know that it was a mistake and the truck should have been 25 backed up into the building? How does he know, if he's a part 5751 1 of it, that that didn't happen? How does he know that? 2 And I submit -- listen to what I'm saying because I 3 want to be clear. According to the government, the truck went 4 in face-first. According to the government, somebody jumped 5 off the truck. That's the government's theory. They got to 6 prove this case. That's what they said happened. They said 7 one of the guys ran, surviving those bomb blasts moving at 12, 8 13,000 feet a second. They got to prove that. 9 And I have made reference to young Al-'Owhali 10 earlier. Let's be clear. This is what the government says he 11 did. I don't know what he did. I'm talking about what the 12 government claims. 13 How does Mr. Odeh know that an errant shock wave hit 14 the wrong building, right? And when the government comes back 15 up, when we sit down, never to be heard from again, and 16 they're explaining to you and they are showing you the letter 17 to his wife and they are talking to you about Bin Laden and 18 whatever he's involved with in his mind, ask yourself the 19 question, who told Odeh that the wrong building got blown up? 20 Maybe he wasn't held incommunicado. Maybe the agent lied to 21 us about that. 22 How can you have it both ways? Does everybody 23 understand what "incommunicado" means? "Incommunicado" means 24 no wife, no friends, no newspaper, nothing. You're a suspect. 25 And if you want to talk about FBI policy, let me tell you 5752 1 something: I submit to you that you never let one guy get 2 together with the other guy. They always separate the guys, 3 because when you put them together, what do you get? A story. 4 Right? They always separate them and keep them separated. 5 And we asked Agent Anticev, well, were the Kenyans 6 involved? He said, well, sometimes I wasn't with him. When 7 he was alone, I don't know nothing about, let's blame the 8 Kenyans. Was he given this information by the Kenyan 9 authorities? Is there any evidence of that? No. 10 All right, so when Mr. Karas was pointing to this 11 chart earlier -- and it looked powerful, didn't it? No one 12 sat here and said to themselves, how did Odeh know this if he 13 was held in the way in which the government says he was held? 14 Now, this part about responsibility, I asked Agent 15 Anticev about that when he was on the witness stand, and what 16 Agent Anticev explained to us was Mohamed Odeh felt morally 17 responsible -- not criminally responsible, morally 18 responsible -- because he was a part of al Qaeda, and he, like 19 Kherchtou -- you know what Kherchtou said: I seen this. I 20 seen that. I started putting things together. 21 Well, they were hitting Mohamed with the hypothetical 22 questions. And Bin Laden this. He said it. He said he was 23 asking him the hypothetical questions. Maybe, too, Mohamed 24 Odeh has a brain and he started saying, damn it -- he wouldn't 25 have said that, I would have said that -- I feel morally 5753 1 outraged at this. 2 And one of the things that Agent Anticev did record 3 is Mohamed Odeh's reasons for speaking to them, his moral 4 outrage and the fact that he was pushed, pushed, pushed to get 5 out of the country for this. Huh-uh. What do you want to 6 know? Harun? He's from the Comoros. Where did they find 7 him? In the Comoros. Mustafa, he left with his wife and 8 kids. What did they find? Wife and kids playing, records, 9 etc., etc. 10 Odeh said they said something about Eagle Travel. 11 They went to Eagle Travel, what did they find? The flight 12 records. Mohamed said, I stayed in the hotel room, etc., etc. 13 What did they find? His fingerprint right where he said it 14 was. 15 You want to know about Ubaidah? I'll tell you about 16 Ubaidah. He was a secret guy, always running around. How 17 would you have reacted if you found out that a group that you 18 were involved with, it was even alleged to have done something 19 like that? Would you have done the right thing or you would 20 have said, I want my lawyer? 21 He told them about Fawwaz. You remember Fawwaz. 22 He's in London. That's what Mr. Odeh told them. He told them 23 about Tawfiq, also known as Mohamed Kampala. It's right 24 there. He told them about Abu Ibrahim. Told them about 25 Tayyib. He told them about Abu Hafs. He told them about Abu 5754 1 Rahman, the trainer in explosives. He told them about Ahmed 2 the Egyptian, the Tanzanian, Saleh, Harun, Fahad, Tawhil, 3 Nawawi. He said that Nawawi was an Egyptian living in 4 America. You remember him, he's the guy that was in the plane 5 with al Ridi when he crashed and he took off and fled the 6 county. He told about Atef. Even that was confirmed to you. 7 They put together a chronology and they take away the 8 chronology to sell us. Then they say, well, now he started 9 testifying, now he started speaking consistent with the 10 chronology. There was no chronology until they talked to 11 Mohamed Odeh. Go back and look at the statement. Compare it 12 to the indictment. 13 He told them about Sheikh -- I said this guys' name 14 wrong every time -- Mohamed. That was Swedan, the guy who 15 bought the trucks. He told them that he was in some kind of 16 transporting business. He told them about Mustafa and Ubaidah 17 and many, many others. 18 He told them about MIRA, right? Mercy International 19 Relief Agency. And when they go there and find the records, 20 what do they find? Lo and behold, a letter from Mohamed Odeh 21 talking about the lousy fishing business that he was in, that 22 he was losing money in the fishing business and he wasn't any 23 good at it. That's his report to Bin Laden. I can't sell 24 fish and we got to sell off the boats and the rest of the 25 stuff because we can't make any money doing this. 5755 1 And, no, I don't even think the government is taking 2 the position that Bin Laden was doing some good things at 3 times and that he ran businesses. Those had to include 4 people. You think all the people that worked for this 5 multinational corporation was, like, I'm going to kill an 6 American next time I see one? How can they work and function? 7 How can they think? How can they live? How can they love? 8 How can they have compassion? How can you write about God in 9 your life and the lives of your children's and your nephews 10 what you see him doing? 11 So this is very powerful, what the government 12 presents to you. They enlarged it, and they enlarged it for a 13 reason, just like we enlarged this. I'm not trying to put 14 anything on the government that I wouldn't do myself. I 15 enlarged this for a reason, but this was enlarged because this 16 is important to their case. Because what they want to say to 17 you is that's evidence of a bomb technician. 18 And then the government says this, well, it might be 19 kind of a hokey bombing, right? You know, with the blast cone 20 that no one ever testified. No expert in this case testified 21 to something called a blast cone, okay. That came from 22 Mr. Karas. 23 All right, I want to take a few minutes to talk about 24 Somalia. Not a few minutes. I really mean a few minutes. 25 I've been sitting here a lot of months, and I haven't figured 5756 1 it out yet and you are going to have to do that. 2 I will tell that you what we know from the evidence 3 is that Somalia is a vast country filled with nomadic tribes 4 and shifting allegiances. And I will tell you this. In 1993, 5 when Mohamed Odeh went to Somalia, according to the testimony 6 of witnesses, al Qaeda had been in Somalia already for a year 7 before any Americans even got there. 8 There's no evidence whatsoever that Mohamed Odeh went 9 to Somalia to kill Americans. He told Agent Anticev that if 10 he wanted to kill Americans, he could have went right down to 11 Malindi and shot people on the street if that's what he wanted 12 to do, snuck right back up to Witu somewhere and nobody would 13 have known the difference. 14 When he went to Somalia in 1993, he went there to 15 stop the carnage and starvation that was happening as a result 16 of the fighting amongst the clans. And Aideed was a major 17 force in the disintegration and anarchy in that country and 18 Mohamed went there to assist the tribes that were trying to 19 follow Islam, to live in peace and to form a unified Muslim 20 nation. 21 Mohamed Odeh went to Somalia to do good. You see, 22 because for all Muslims having a unified nation doesn't mean I 23 hate everybody else. Just like in this country, it's taken us 24 200 years for people to realize that the concept of 25 integration is not negative. It could be a good thing. It 5757 1 could be a bad thing, too, but it could be a good thing. And 2 you have to be aware of the fact that many people, millions of 3 Muslims in the world, some of them sitting in this room, 4 believe in building a Muslim state without it meaning death 5 and destruction to other people. 6 Mr. Odeh went to Somalia not to join Aideed's forces. 7 And what was Aideed doing, according to Dr. Samatar? He was 8 preventing people from getting food. We're talking about 9 starvation on a level that we can't even conceptualize as we 10 sit here in this courtroom. You don't even have a concept of 11 what it means to be hungry. Hungry means what time is lunch 12 and I want it whether or not the judge orders sandwiches. 13 Starvation means I know I'm going to die, I'm just wondering 14 if my children are going to die, too. And so Mohamed Odeh 15 went to stop it. 16 Now, me and you, we watch it on the 6:00 news. It 17 sounds terrible and we ask, baby, what times the Knicks coming 18 on? That's it. Other people, motivated by higher goals get 19 involved. Some of them people, we often call them fools. And 20 he left his hut and went to help somebody else eat, and 21 there's not a shred of evidence in this case to the contrary. 22 I don't care what Bin Laden was saying in Sudan up 23 there eating dates and drinking juice around the beautiful 24 house with Fadl and the rest of them. He wasn't down in the 25 bush with Mohamed Odeh. He's in the bush doing God's work, 5758 1 trying to help people live, and there's not one piece of 2 evidence in this case to the contrary. And you could take his 3 letters that he wrote to his wife and compare them to 4 statements that other people made that are totally out of 5 context. It doesn't work. 6 Now, Mohamed Odeh went there. The country was in 7 chaos. Samatar told us that everybody in that country was 8 armed to the teeth. Now, it's interesting. He said that he 9 trained on small arms and medicines and he took food. And 10 it's interesting for you to realize that Agent Anticev 11 testified to something very important in this case, and it was 12 going to be one of the things that we were going to put on the 13 computers screens and show you, but it's not to be. 14 But if you go back to his testimony, what we got 15 Agent Anticev to reveal, though he didn't say it in his direct 16 or his original cross, was that he left out that Mohamed Odeh 17 told him that he went to Somalia to help the tribes that were 18 against Aideed. That fact was left out of that 35-page 19 statement. And what he told us was, well, now that I've had a 20 chance to check my notes, I made a mistake, it should have 21 been there. 22 It's an important distinction. It's an important 23 distinction. It is as important as telling the person who is 24 reading this document that he was asked hypotheticals, because 25 it tells you what his state of mind was when he was going. He 5759 1 went there to help the people that were against the people who 2 were causing starvation. 3 Now, he also told you -- I think Kherchtou said he 4 believed that Marwan was a guy who was in southeastern Somalia 5 in the bush, not in Mogadishu. And Mohamed Odeh at this time 6 wasn't up in Sudan with Bin Laden like Fadl was, scheming on 7 how to steal $100,000 or more any chance he could get. He 8 wasn't like Kherchtou in Nairobi, helping people with 9 documents. He was in the bush. And there's no evidence in 10 the record whatsoever that would even suggest, let alone 11 support, that when he went to Somalia in 1993, that he went 12 there for no other reason but to save people's lives. 13 Now, if somebody sitting in a cabana somewhere wanted 14 to use that for their own personal benefit and gain, then 15 remember Fadl told you that Bin Laden was prepared to twist 16 religious beliefs to satisfy his own agenda. He says -- and 17 I'll be through with Somalia in about two minutes, believe it 18 or not, okay? Three minutes. 19 He says that when he was in Somalia, he ran into Abu 20 Hafs. But he didn't say he ran into Abu Hafs, he says that he 21 was at a camp, that is, Mohamed was with the Um Rahan Tribe. 22 I know I said it wrong: Um Rahan. And he's in the bush 23 working with the people, and lo and behold, here comes Abu 24 Hafs. They had just met, according to these other witnesses, 25 in Mogadishu. Now they're coming back from Mogadishu. 5760 1 And remember, Abu Hafs went to Mogadishu disguised as 2 a businessman to get the tribes together. Al Qaeda was going 3 to come in and help them, train them, like they needed 4 training for all the killing and destruction they were going 5 to do, but they were going to get together and now al Qaeda 6 was going to back Aideed. That's the story on it. 7 Now, Mohamed Odeh doesn't know that Abu Hafs is going 8 to that meeting. Fadl told you in the testimony at page 283 9 he was with Abu Hafs in the Sudan and he didn't know that Abu 10 Hafs was going to be going to that meeting. He only found out 11 when he came back. So here Abu Hafs is coming back from his 12 meeting. I guess it was successful. I don't know what the 13 evidence is. He's coming back and he runs into Mohamed Odeh 14 with the other side, right? According to the government, Abu 15 Hafs just cut a deal with the other people in Mogadishu, and 16 when he runs into Mohamed Odeh, Mohamed Odeh is with the 17 people who were being starved to death. 18 How does he share Abu Hafs' intent? They're 19 contrary. They clash. They are not the same. They are not 20 in Somalia for the same reasons. And I made this analogy 21 before and I'll make it again: Just because people go to 22 bootcamp together, they may even serve in the same platoon 23 together, they may even have the same sergeant, that doesn't 24 mean that they share the same state of mind. 25 A lot of people sign up for a lot of different 5761 1 reasons, some because they can't get a job somewhere else, 2 some because they want to be GI Joe, and in other cultures 3 people serve in the military for much more diverse reasons. 4 He doesn't have the same reasons. 5 And what Abu Hafs tells Mohamed Odeh is, according to 6 his statement, is what Abu Hafs was going to do in Mogadishu. 7 Going to do. What the purpose of the meeting was to be, not 8 him telling him, you know, I want to know what your opinion is 9 before I go to this meeting so we can get this straight. No 10 shred of state of mind. 11 Also, some other people told you that they were in 12 Mogadishu, according to the evidence. Harun and Saleh were 13 supposed to have been in Mogadishu, and according to Harun's 14 report, he makes the statement that "our young people hit the 15 Americans in Somalia." That's what he said. That's in his 16 report. There's not a shred of evidence in this case to 17 support that statement, that al Qaeda members hit Americans in 18 Mogadishu. There is no evidence in this record to support 19 that at any time. 20 It's, again, people capitalizing, people trying to 21 take credit for, people pushing their own agenda. Abu Hafs 22 told Odeh that al Qaeda was going to change its policy in 23 Somalia, not that it was changed. That's an important 24 distinction. 25 Now, there's also some testimony that he ran into a 5762 1 guy name Daoud and Daoud had claimed to have been in a 2 situation with U.N. troops. During the testimony, I think Mr. 3 Fitzgerald mistakenly asked him a question and he said U.N. 4 and U.S. troops. That's at page 1744. But Mr. Dratel 5 corrected it in his recross of Agent Anticev when he had the 6 agent look at his notes and found out he left another little 7 thing out, that it was only the U.N. troops. 8 Now, this happened in '93. We don't know what that 9 situation was about. We don't know what was the intent of 10 Daoud, who he was with, or anything about that. But we do 11 know one thing. He's also coming this way while Mohamed's in 12 the bush helping people. 13 Odeh subsequently went to train -- now, Mr. Karas 14 mistakenly said that after this happened in November 1993, 15 Mohamed Odeh left Somalia. I think he misspoke, because the 16 evidence shows that Mohamed Odeh stayed in Somalia and didn't 17 leave until August of '94. With all this talk about Somalia 18 this and Somalia that, it is easy to make a mistake about some 19 of these things, but it's clear that Mohamed Odeh is saying 20 that he's there until August and that he went into the Ogaden 21 region and it was there that he was with a group of people 22 that got involved with a skirmish with U.N. troops, that he 23 wasn't directly involved, but a troop ahead was directly 24 involved. 25 Now, the government uses that as evidence to say he 5763 1 was in Somalia with the intent to kill Americans, but there is 2 no evidence that the government has presented that there were 3 any American units in the Ogaden region or that there were any 4 Americans in the U.N. unit that this event took place around 5 or what the circumstances of it was. 6 Don't you need to know that? Wouldn't you like to 7 know that? I bet you would like to know it if you were 8 sitting over here. You would want somebody to prove that up. 9 Were there any Americans with them? What was it all about? 10 You may not want to know it sitting over here, but if you are 11 sitting over here, somebody's supposed to prove that up. I 12 can't just walk into a courtroom and make a statement and then 13 say that's so. 14 The U.N. is a multinational force. I know we think 15 it's ours, but it's not. It was a multinational force. And 16 more importantly, the government hasn't produced any evidence 17 in this case to show that Americans were in that unit and 18 Americans were attacked that would support an inference that 19 Mr. Odeh was there to kill Americans. 20 Dr. Samatar told us about these conditions in their 21 country, and we also learned that he returned to Somalia in 22 1997. And in 1997 he wrote to his family and he told his 23 family, I'm going back to Somalia. He said he was going to do 24 something good. I don't think he said he was going to 25 Somalia. 5764 1 He also told Agent Anticev something interesting 2 during the interview. He told Agent Anticev, you know, I 3 wrote to my parents and I told my friends that I was in 4 Tanzania so they wouldn't know I'm in Somalia. He said that 5 during his interview. And lo and behold, when they go to 6 Mohamed Odeh's house what do they find? Letters to his family 7 saying that he's doing good. A tape to his wife telling 8 people to say I'm in Tanzania. Another thing confirmed, a 9 little tiny thing confirmed about what he said. 10 But in 1997, he's back there to help the Somalians 11 fight anarchy and Ethiopians. Kherchtou, Fadl said nothing 12 about the Ethiopians. But there was no intent on the part of 13 Mohamed Odeh, when he returned to Somalia in 1997, to kill any 14 Americans. 15 And the government put in an inventory chart that 16 showed they were going to set up a camp, and they put in a 17 report, I think it's 710-T, and that report talks about al 18 Qaeda's efforts in Somalia. But what the government does is 19 use that on one hand and then, on the other hand, talk about 20 somebody, Al-Fadl, being caught. 21 And then the government says, Mohamed Odeh writes, 22 our situation is bad here. It's going to take thinking, 23 planning and strategy and we're going to hit 20-fold, and the 24 government says, remember Mohamed Odeh, patience, thinking, 25 planning. He's just waiting for the right opportunity to kill 5765 1 Americans. 2 Wrong. He was talking about a situation in Somalia, 3 and I guarantee you, to turn around the devastation in that 4 country it's going to take a lot more, but at least thinking, 5 planning, patience and a willingness to put down the people 6 with force, if you have to, that are willing to starve to 7 death hundreds of thousands of people. 8 MR. RICCO: Your Honor, this is really where I was 9 going to stop and Mr. Wilford was going to do the forensic 10 aspect of the summation. 11 THE COURT: You want to start or wish to take a 12 break? 13 MR. WILFORD: Prefer we take a break, your Honor. 14 THE COURT: All right, we'll take our break and 15 resume at 2:15. 16 (Jury not present) 17 THE COURT: Mr. Wilford, my records show that an hour 18 and 40 minutes have been used. 19 MR. WILFORD: Yes, Judge. I'm quite sure we will 20 finish within that time period. Thank you. Thank you for 21 reminding me. 22 THE COURT: That's good to hear. 23 MR. COHN: Your Honor, as long as we're on it, I 24 don't know when they are going to finish, but I suspect if I 25 start around 3, I would finish by 4:30. And I would ask you 5766 1 if I start at 3:15, if they wouldn't mind taking the extra 15 2 minutes rather than break mine up. I may ask them to make 3 that choice depending on -- of course, you can't predict 4 precisely, but that's where I think we are. 5 THE COURT: You would like to finish today? 6 MR. COHN: I would like to if it doesn't 7 inconvenience the jury and they don't look like they're antsy. 8 THE COURT: We're adjourned to 2:15. 9 (Luncheon recess) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5767 1 AFTERNOON SESSION 2 2:15 p.m. 3 (In open court; jury present) 4 THE COURT: Good afternoon. Mr. Wilford. 5 MR. WILFORD: Thank you, your Honor. Good afternoon, 6 ladies and gentlemen. 7 JURORS: Good afternoon. 8 THE COURT: How you doing? 9 JURORS: Fine. 10 THE COURT: You notice, I ask every witness that. So 11 you were expecting it. It's a nice way to relax everybody and 12 get everybody to focus that this is more than just getting up 13 there and testifying. 14 I want to start, before I even talk about the 15 evidence there is one point I want to bring up with you, and 16 it's real simple. That point is that Mr. Mohamed Odeh is not 17 guilty. It's a simple point, real simple point. But in order 18 for you to arrive at that point, you don't have to just 19 examine the evidence. I am going to show you why the evidence 20 that the government chiefly relies on does not point to proof 21 beyond a reasonable doubt. It doesn't rise to that level. I 22 am going to discuss that very shortly. But it's going to take 23 more than that. 24 You know, we have sat in this courtroom since 25 January, heard testimony since February. It's a major case. 5768 1 There are over 230 people dead. Thousands of people injured. 2 And you, each and every one of you have to go home, talk to 3 your wives, your children, your family, your neighbors, and 4 answer them a question, because at the end of this case the 5 only thing you can do is say that Mohamed Odeh is not guilty, 6 because that's what the evidence tells you to do. All of you 7 will have to go home and answer that question. And the 8 question is going to be real simple: How could you do that? 9 How could you find the guy not guilty, there is 233 people 10 dead. They blew the embassies up. How could you find them 11 not guilty? There is one word: Courage. Courage. You have 12 to be courageous enough to live up to the oath that 13 Mr. Kenneally gave you when you sat in this box as jurors. 14 All of you swore. You didn't just say it, you swore that if 15 the evidence that the government produces against Mohamed Odeh 16 did not rise to the level of proof beyond a reasonable doubt, 17 that you would say Mohamed Odeh is not guilty. Courage. 18 You also have to be courageous to sit here and listen 19 to me and all the other lawyers that are going to be talking 20 to you for a long time. But the real courage, ladies and 21 gentlemen, is going to come from within. It will be your 22 ability to live up to your oath and the world, the world. Not 23 just people in this courtroom, not just your family. That 24 when we as a country do something, we do it right. Our 25 justice system works, and if the government doesn't produce 5769 1 evidence that satisfies you and you and you and you and you 2 and you and all of you beyond a reasonable doubt, then you 3 will find Mr. Mohamed Odeh not guilty. 4 Now, having said that, this case, for the government 5 and for Mr. Odeh, comes down really, when you cut through all 6 the everything, all the bayat, the Bin Laden proclamations, it 7 comes down to simple physical evidence. There is forensic 8 evidence in this case. There is things in this case that you 9 can't change. I can make an argument about anything. I can 10 try to convince you that it's snowing outside right now and I 11 can put together all kinds of inferences to try to make you 12 believe that. But if you go outside and the snow doesn't hit 13 you on the head, that's an irrefutable fact. I can't change 14 that. As long as we are in a cocoon, I can argue to you and 15 say anything. But there is physical evidence in this case 16 that can't be changed. 17 For instance, there is fingerprint evidence. The 18 fingerprint evidence -- remember the agents that testified, 19 Agent Hollars testified about fingerprint evidence, and he 20 told you that everybody has ridges on their hands and their 21 palms and everybody has oils, and when you touch something, it 22 might not be able to be recovered but sometimes it is. If you 23 do, it means something particular happened. It means that a 24 person touched a particular object. Mr. Mohamed Odeh's 25 fingers touched several items. The Teach Yourself Swahili 5770 1 book had 25 of his fingerprints. We know for sure that 2 Mohamed Odeh handled that book. The hotel room, 107A, I 3 believe it is, that Mr. Mohamed Odeh says in his statement was 4 the room that Saleh was staying in, Mr. Odeh's fingerprint was 5 found on the back of that door. That doesn't mean that he 6 rented the room, because the registry doesn't show it in his 7 name. As a matter of fact, the government in its summation 8 showed you the piece of evidence which says that Mr. Mohamed 9 Odeh rented it in room 102. He registered in the room. 10 That's a piece of evidence. However, his fingerprint on the 11 back of that door in 107 lets us know that whatever room he 12 ventured in, he spent time in 107. 13 Let's look at the Crown exercise book, Government's 14 Exhibit 704. This enlargement comes from that book. It's a 15 part of it. That exhibit is a small notebook, and that 16 notebook has Mr. Odeh's prints on it -- I am sorry, does not 17 have his prints on it. It was recovered from his home. I 18 just made a mistake. It could be costly. But I want to say 19 it again. This book -- let me put on my gloves first. You 20 can tell I'm not a doctor. 21 704. This book contains this item, according to the 22 government's proof. This book did not have 25 Mohamed Odeh 23 fingerprints on it. Didn't have 15, didn't have 10, didn't 24 have any. It had zero. It had one fingerprint that the 25 government was able to recover that the FBI found, and that 5771 1 was the fingerprint of Mustafa, not Mohamed Odeh, Mustafa. 2 What does that tell you? It was found in Mohamed Odeh's 3 house, yes, OK. Does it show you that he handled it? No. 4 That's not proof beyond a reasonable doubt. It does show you, 5 however, that Mustafa handled this book. That's what the 6 proof shows you. Don't be confused. You may be asked to make 7 inferences that Mr. Odeh drew this. The only proof we have in 8 this case that shows that anybody handled this book is 9 Mustafa. 10 When you look at Government's Exhibit 702, which was 11 an inventory -- this is Government's Exhibit 702, this 12 inventory written in Arabic and translated into English. This 13 document found in Mohamed Odeh's house doesn't have Mohamed 14 Odeh's fingerprints on it. It has Mustafa's fingerprints on 15 it. Think about it now. What does that tell us? It tells us 16 that Mustafa handled it. It's written in Arabic. Doesn't 17 tell us that Mohamed Odeh wrote it, doesn't tell us that he 18 handled it. It's in his house. We know that Mustafa has been 19 to Mohamed's house because in his statement Mohamed Odeh said 20 Mustafa spent the night at my house before. So he had access 21 to his home. He's there. It's not like some stranger. This 22 is a friend of his, somebody that he knows. They spent time 23 together. It's not uncommon for somebody to spend time at 24 your home. If somebody came to your home and left a document 25 there and it is something that he owned, their fingerprints 5772 1 would be on it. The fingerprints show that it was not 2 Mohamed's, it was in fact Mustafa's. 3 There were other fingerprints recovered in this case. 4 I am not going to detail them all. But the fingerprints from 5 Harun were recovered at 43 Runda Estates. The fingerprints 6 from Harun were recovered from the pickup truck. Did anybody 7 come in here and testify that Mohamed Odeh's fingerprints were 8 found at 43 Runda Estates? No. Did anybody come in here and 9 say that Mohamed Odeh's fingerprints were found in any 10 vehicles involved in this case? No. 11 The fact that his fingerprint was, however, found at 12 the Hilltop Hotel establishes that he was there. Corroborates 13 the statement. Mohamed didn't say I wasn't at the hilltop. 14 As a matter of fact, it corroborates it. He said I spent the 15 night in room 107. Guess what is in the back of the door. 16 His fingerprint. That means he was there. The government 17 didn't take his fingerprint and put it on the door, they found 18 it there. It corroborates the statement. It shows the 19 truthfulness of the statement. 20 One thing it doesn't do, however, is create his 21 agreement to participate in a bombing anywhere in this world, 22 or his agreement to participate in killing Americans anywhere 23 in the world. It doesn't create his agreement or his 24 participation in any of the conspiracies charged against 25 Mohamed Odeh. 5773 1 The court will instruct you that mere presence in a 2 place or with people, even with knowledge, even with 3 knowledge, is not sufficient for you to find Mr. Odeh guilty 4 unless the prosecution can establish his agreement to 5 participate in the conspiracy. That's not here. Don't get it 6 confused. There's a lot of evidence in this case, a lot of 7 words going around, a lot of arguments being made. But keep 8 fast to the truth, keep fast to the evidence, and keep fast to 9 the instructions this his Honor is going to give you, and it 10 points one way: Odeh is not guilty. 11 The government spent a lot of time in this case with 12 another piece of forensic evidence, and that piece of forensic 13 evidence is the explosive residue, the explosive residue that 14 was found on Mr. Odeh's clothes. They were found on these 15 pieces of clothing: His pants that were found in this bag, 16 the wrap-around sarong -- one of the things that we introduced 17 into evidence was the box that the sarong was in. I am not 18 going to waste time with it, but you remember the box that I 19 walked past all of you here -- and the T-shirt. Three 20 articles of clothing. It's interesting. Some things just 21 don't jive. Agent Whitworth says I examined these particular 22 items because they appeared to be soiled and stained. Wait a 23 minute. Whitworth is a collections expert. He goes out and 24 collects evidence. For whatever reason, in his mind a stain 25 on clothing -- there ain't no stain on the jeans, there is no 5774 1 stain on a T-shirt, there is a stain on the pants, but for 2 whatever reason, that stain must be some residue. Every other 3 expert that testified in this case said we are talking about 4 residue, we are talking about something microscopic. We are 5 talking about something that you cannot see with the naked 6 eye. For whatever reason, Agent Whitmore decided to testify 7 about those particular articles. It doesn't square with the 8 fact that there was a stain on it. We are talking about 9 microscopic. I don't care what side called an expert. All of 10 them got up there and said we are talking about particles. As 11 a matter of fact, one witness said if you took an aspirin 12 tablet and broke it up, the millions and billions of particles 13 would be what we are talking about, residue, little traces, 14 tiny particles that they have to get a microscope. Think 15 about the tests that were done to see whether or not there was 16 residue. There's the EGIS test, microscopic analysis. 17 They're going through all sorts of tests just to be able to 18 say there is something there. This is not something that you 19 can say wait a minute, there's a stain on his clothes, must be 20 TNT. Remember, I asked Agent Mount, I said if you bumped into 21 the embassy, oh, I got TNT on me. No. But Agent Whitmore 22 comes and testifies that he has to test it because it got 23 stains. The government says yeah, yeah, we got proof, we knew 24 there was, for whatever reason Agent Whitworth tested the 25 clothes, he tested them. I am not disputing the fact that 5775 1 residue of TNT was found on them. When you look at that 2 sarong, please use the gloves, and look at that stain. My 3 vision is horrible and I can see the stain, even without my 4 glasses. That's not microscopic residue. But that's what he 5 said. 6 Remember, Dr. Lloyd said that a thimbleful, a 7 thimbleful -- everybody knows what a thimble is. I remember 8 my grandmother used to sew with a thimble, by hand. A 9 thimbleful -- we are not talking about a big giant -- of 10 explosive, of TNT could contaminate 10 to 20 million people. 11 That's his testimony. I didn't make that up. The man's an 12 expert. The government didn't object, no. Dr. Lloyd is not 13 an expert. He qualified as an expert in this courtroom. He 14 testified and that's what he told you. That's a scientific 15 fact. So what we are really talking about is something very 16 small. 17 The FBI did not measure the amount of TNT, and that 18 becomes significant, see, because if we are talking about 19 these little tiny particles that could be on anybody -- 20 remember Dr. Lloyd's testimony. He said as I sit here now, 21 because I examined the clothing I'm probably contaminated, and 22 if you put me through the EGIS I'd pop up positive for 23 explosive residue, if you wanted to establish that there is 24 TNT residue -- that sounds horrible. When you first heard 25 about it, wait a minute, they got the TNT residue on his 5776 1 clothes. What are we talking about here? But then when you 2 stop and you get the scientific fact of how small and 3 minuscule this is, it takes on a different tenor. 4 The FBI, remember, I asked Agent Mount the first time 5 she came to testify, I said, Agent Mount, can you quantify the 6 amount of TNT that was recovered? She said oh, no, can't be 7 done. She comes back. I ask her again, can you quantify the 8 amount of TNT? Yes, you can, but we just didn't do it in this 9 case. OK, they didn't do it. Maybe it's not significant. 10 Dr. Lloyd got up there and testified. Dr. Lloyd said to you 11 that it is significant. And he said the reason it is 12 significant is because the more TNT that you find means that 13 the person that was handling it more than just happened to 14 accidentally come into contact with it or somehow become 15 contaminated. That's important. Think about it. If you're 16 handling the TNT, you're going to have more of it on you. 17 Now, you are looking for proof beyond a reasonable 18 doubt. Hold on to that courage that I talked to you about. 19 You are looking at the scientific fact. The government 20 doesn't tell you we found TNT on Mohamed Odeh's clothes. They 21 just tell you we found TNT. They don't tell you how much they 22 found. If you want to be accurate and fair, then you say, 23 well, it might be a nanogram. That's what Dr. Lloyd called 24 it, a nanogram. It might just be that nanogram. It might be 25 just a little tiny piece or speck, something so tiny, so tiny. 5777 1 That's what it might be. But there's no proof that it's not. 2 The government wants you to accept that because there is TNT 3 residue, yes, that he had the ability to do it. I am 4 suggesting to you that when you come before a jury and you 5 have a case of this sort, they don't have to use any 6 investigative technique that I suggest. I am just suggesting 7 to you that as a quantum of proof you want more proof than 8 that. You want more than just to have to guess, to surmise, 9 to try to understand what it is. Put it in the lab, test it, 10 OK, on his clothes we found X amount of TNT. Large amount? 11 We found a milligram of TNT. Large amount? What we really 12 found was a nanogram. What we really found was something that 13 we don't have the capability of measuring, it was so small. 14 But you'll never know. They just want you to say TNT, 15 conviction. It doesn't work like that. There is some 16 question that has to be asked there. 17 And by not quantifying it, it really maximizes the 18 effect of that evidence. Now you've got maximum return on a 19 little bit of evidence. We are talking about maybe a speck 20 all the way to conviction, because we don't know how much it 21 is. 22 This is important, ladies and gentlemen. It's really 23 important because the evidence that connects Mohamed Odeh to 24 these crimes that the government is relying on is not 25 overwhelming, it's underwhelming, and if you pay close 5778 1 attention to it and analyze it, which you must, it makes a 2 difference. 3 You know, when you really look at this evidence, this 4 TNT evidence, it turns from a damning piece of evidence into 5 the microscopic speck that it really is. And you ask 6 yourselves, well, gee, you know, Mr. Karas stood up in his 7 summation and said to you -- and I was really surprised by 8 this because Judge Sand hasn't said anything, Mr. Ricco hasn't 9 said anything. But Mr. Karas said Mohamed Odeh's defense 10 argues to you, says to you, they make the argument to you, 11 they discuss the fact that the TNT got on Mr. Mohamed's 12 clothing maybe by contamination in Kenya, right, when it was 13 handled by the Kenyan authorities, maybe from being on a 14 table, maybe from being on the lap of a Tyvex suit. That's 15 nice. It's not our theory. The first time I am suggesting 16 any view of the evidence to you is now. Yes, we did ask 17 questions. Yes, we did want to know what the chain of custody 18 was. It's important. You need to know that in assessing and 19 making a determination as to how much weight, how much value 20 you decide to give to this evidence. 21 The burden of proof is on the government. Mr. Odeh 22 has to prove nothing. When you look at the evidence in this 23 case, we know from Mr. Mohamed's statement -- and I am just 24 suggesting it to you. We will get to the point I will tell 25 you where I think the evidence shows you these traces of TNT 5779 1 came from. But Mr. Mohamed Odeh in his statement tells you 2 that the bag and pair of paints were given to him by Saleh, 3 and that Saleh and Harun stayed out all night on August 5. At 4 page 27 of the statement, he says probably at Harun's house, 5 43 Runda Estates, the place that Harun rented, the place where 6 there were significant traces of TNT recovered, aluminum, 7 pieces of wire detonators, all evidence being significant with 8 a place where a bomb was constructed. Further, Harun's truck 9 also had traces of TNT recovered from it. 10 The chain of custody becomes important because the 11 government is saying to you trust this evidence, the traces of 12 TNT found on Mohamed's clothes, because it was preserved and 13 tested in an uncontaminated state once it came into the 14 possession of the FBI. However, there are several problems 15 with that. Chain of custody, as is every chain, is only as 16 strong as its weakest link. Notwithstanding the FBI using 17 Tyvex suits and gloves, vacuuming items recovered from the 18 bag, signing items in and out, there are weak links in the 19 chain. 20 First, the items recovered from Mohamed were received 21 by Kenyan CID officer named Mutunga when Mohamed was delivered 22 from Pakistan to Kenya. Agent Mutunga didn't wear a Tyvex 23 suit or gloves, and he visited the bomb site. That is a 24 potential source of contamination. All I am telling you is 25 that this chain of custody is not as strong as it appears to 5780 1 be. Mutunga took the items and placed them in his locker, 2 somewhere other than CID headquarters. He placed them on a 3 table that was not protected with forensic paper, as it was 4 when Agent Whitworth and Agent McLaughlin took pictures of the 5 items, again a potential for contamination. No one had 6 anything on their feet or Tyvex suits on when the items were 7 turned over in Ed Muchari's office from Kenyan CID to the FBI. 8 Another possible source of potential contamination. The 9 integrity of the chain of custody is challenged by the 10 disappearance, separation, whatever you want to call it, of 11 Mohamed Odeh's money from his other personal belongings, the 12 money, the watch and the eyeglasses. Somehow they get 13 separated. Somehow, in 1999 the money is in a safe in Kenya 14 and Mohamed Odeh is here in America, in custody. Everything 15 is together. Remember the list we went through with Mr. Ricco 16 on cross-examination of Mr. Mutunga, money, eyeglasses, watch. 17 Somehow it gets separated. It gets back together because 18 Agent Doran makes a phone call and writes a letter. Suddenly, 19 oops, here's the money, the money comes back in. 20 Agent Doran also puts a little chink in the chain of 21 custody. She signs the same letter. Same evidence, same 22 time, two different dates. What happened? Mistake. OK, it 23 was a mistake, fine. Mistakes happen. Even with the FBI 24 mistakes happen. I didn't do that to try to embarrass the 25 agent. I did it to show you mistakes happen. And when 5781 1 mistakes happen, you don't have a reliable chain. Remember, 2 Mr. Ricco asked Mr. Mutunga, where did this jacket come from? 3 It's a big green jacket. I don't know how it was missed. 4 Somehow this jacket was missed. And Mr. Ricco asked him, was 5 it a mistake? And he said no. How do you explain it? I 6 don't know. But we do know that the list covering the 7 transfer indicated that the jacket wasn't there. 8 Another opportunity for unexplained contamination. 9 This becomes important. You know, when mistakes 10 happen, OK, sometimes they don't mean that much. But when 11 we're talking about the potential for contamination from a 12 microscopic particle, it is very important that we keep these 13 situations contamination-free, that we don't allow that 14 opportunity to happen. Didn't happen here. 15 But, you know, I suggest to you, I submit to you that 16 the evidence in this case shows you where the traces of TNT 17 and PETN found on those items of clothing came from. The 18 evidence in this case shows you that this exhibit right here 19 was used to grind TNT and PETN and mix them together, 20 whatever. Traces of both of those were found. And where was 21 this recovered from? Tanzania. Whose fingerprint is on that 22 grinder? Fahad. The man who has $6,000 to spend on an 23 explosives training course, his fingerprint is found on that 24 grinder. OK, what does it mean? It means the following. 25 Amongst the items found in Mr. Mohamed Odeh's bag was a 5782 1 magazine called Humsafar. On the Humsafar magazine was a 2 fingerprint. Whose fingerprint? Fahad's, who was traveling 3 on the same plane as Mr. Mohamed Odeh. Where was the magazine 4 found? In the bag. Where was the clothing found that had 5 traces of TNT? The bag. 6 We asked the experts, if these items were in the bag 7 and they came in contact with one another, was it possible, 8 likely, that the contamination would go from the contaminated 9 items to the uncontaminated? Yes. You can see the ridges on 10 your hands and your palm. We are talking about stuff that 11 could fit inside the ridges that you still couldn't see that 12 were on that magazine that was put in that bag and got on to 13 Mr. Odeh's clothing. The government sits there and tells you 14 there wasn't any PETN in the Nairobi bombing. Absolutely 15 correct. Absolutely correct. But if the traces of PETN and 16 TNT that were found on Mr. Odeh's clothing came from him 17 traveling with Fahad and Fahad sticking that magazine in his 18 bag, those microscopic particles of TNT and PETN, that's where 19 it came from. That's the argument that we are telling you 20 about. There is no discussion about maybe it came from Kenya. 21 No. Remember what I said? You've got forensic evidence here. 22 We are not trying to play a game. This is where it came from. 23 It's an accurate inference, not a reasonable inference. We 24 know Fahad was handling that TNT and the PETN. We know Fahad 25 handled that magazine. We know that when you handle TNT and 5783 1 PETN, especially when you grind it, your hands get loaded. 2 Remember I asked the experts? Your hands get loaded. He 3 handled that magazine. The more reasoned and accurate 4 inference is that the TNT and PETN found on Mohamed's clothes 5 came from Fahad. 6 I want you to do the following, ladies and gentlemen. 7 When Mr. Fitzgerald stands up in his rebuttal, ask him, why 8 didn't the government tell you about Fahad's fingerprints on 9 the grinder in Tanzania when they were doing its summation? 10 Why didn't the government tell you about the PETN found in 11 Tanzania when they were doing their summation? Why didn't the 12 government tell you about the Fahad fingerprint on the 13 magazine when they were doing their summation? Ask him, was 14 it because it didn't fit your theory? I submit to you that's 15 why. But ask him anyway. Ask him. Of course you can't ask 16 the question, but have that in your mind. Let him tell you 17 how it got there and why they didn't tell you this. 18 You know, an unknown microscopic amount, a nanogram 19 of explosives the source of which could have been several 20 different origins, clearly such evidence cannot provide a 21 pillar upon which you, the judges of the facts, can rely upon 22 to find Mohamed Odeh guilty beyond a reasonable doubt. 23 Therefore, if the government is relying upon this evidence, 24 which it is, the microscopic traces of TNT found on Mohamed's 25 clothes, for any purpose, then I submit to you that you should 5784 1 reject that proof as insufficient. You should reject that 2 proof as not rising to proof beyond a reasonable doubt, and 3 then you must find Mohamed Odeh not guilty. 4 I am going to turn to one of the more interesting 5 pieces of evidence in this case, this diagram, this book, 6 Government's Exhibit 704. You know, a lot, a lot, a lot has 7 been said about this sketch, what it means, has to mean. This 8 was a sketch of the embassy, this is a sketch of the embassy, 9 this is a sketch of, as Mr. Karas referred to it, a bomb 10 blast. That's what the government said. The government seeks 11 to argue by inference that Government's Exhibit 704, 12 particularly these particular pages, somehow is a sketch of 13 the embassy and a bomb blast which was created during 14 surveillance of the U.S. Embassy in Nairobi and used to 15 facilitate the bombing. Otherwise it doesn't make any sense. 16 That is what they have to argue for these little sketches to 17 make any sense. The sketch is inaccurate, both the so-called 18 embassy portion and the bomb portion. 19 Mr. Francisco, would you be kind enough to put up 20 Government's Exhibit 805G. If you look at 805G, in that 21 circle you see a box. Do you see the box? Everybody see the 22 box. You look here on the enlargement, there's a box. 23 Corroboration, embassy. Drawing of the embassy. One small 24 point. Remember when Ambassador Bushnell was testifying and I 25 asked her the question, these tents and things that you see 5785 1 there, were they up before the blast? Her answer was no. 2 Nothing in that circle. What does it mean then? If you want 3 to argue that this is the embassy, a drawing of the embassy, 4 it's not accurate. The box wasn't there. There is no way, 5 even if this was supposed to be a sketch of the embassy, that 6 Mr. Odeh could possibly have known that they were going to put 7 a tent up there. No way. Impossible. 8 The bomb portion, the so-called bomb portion is 9 inconsistent with Mohamed Odeh AA, and Mohamed Odeh AA was 10 created by the government's expert, depicting the shock wave 11 pattern of concentric circles going outward, not the snow cone 12 shape depicted here. 13 It is important when you compare this document -- we 14 had it enlarged for a reason, two very important reasons. You 15 see, if you look right here, there is a 2 in a circle, a 3 in 16 a circle, a 5 in circle. Somebody numbered these pages. 17 Somebody numbered the pages to make sure that they didn't get 18 lost, and if they did get misplaced, you know that they came 19 from this book. They were shuffled around, they were tested. 20 Now when you look at it you say OK, first thing I need to know 21 is where is page 4, right? The government argued that they 22 were the next pages in their summation. 3, 5. Somewhere I 23 learned that 4 comes between 3 and 5. So they are not the 24 next pages, number 1. OK. When you look at this exhibit, and 25 you will have the actual exhibit in the back, somebody 5786 1 numbered it and put the number 4 on one of these pages. So 2 you say OK, there's the number 4, what is Wilford all excited 3 about? What I am excited about is that when you compare the 4 page that has 4 on it, it doesn't match, because this writing 5 is not there. It's not there. It's not the page 4. I don't 6 know. Maybe it's no big thing. But I don't think it is 7 enough to rely on to say somehow this is the next page, this 8 is what it means. There is a missing page. Ask the 9 government to tell you where that missing page is. 10 This is a major case. There is no evidence in this 11 case that the handwriting in this book matched Mohamed Odeh's 12 handwriting, none. None whatsoever. None whatsoever. You 13 heard a witness who was a handwriting expert come in and 14 testify. Mr. Osborn testified that as far as he knew the FBI 15 had at least 21 document examiners. He told you that they had 16 the ability to do handwriting analysis based on Arabic 17 writing. Was there a comparison done in this case? If there 18 was, we don't know about it. There is no evidence of it 19 before you. No evidence to say that this handwriting is 20 Mr. Odeh's. But wait a minute, did they have it in Mr. Odeh's 21 handwriting? Could we show that exhibit, please. This item, 22 Odeh 83 in evidence, was recovered from Mohamed Odeh's home. 23 It has his handwriting on it. He signed it. The government 24 could very easily have taken this document and this document, 25 given it to a handwriting expert and said do these matches 5787 1 match? Did they do it? No. But Mohamed Odeh, he's a 2 technical adviser, found in his home. Wait a minute. A case 3 of this magnitude, this importance, we are not going to say 4 where is a handwriting match? Mr. Fitzgerald had this guy 5 write some stuff down and compare it from something that was 6 supposed to be of Mr. El Hage right here in this courtroom, 7 from things as small as an ampersand sign, and the expert was 8 able to do it right here in the courtroom. What about these 9 21 experts? Why didn't the government take one of those 21 10 experts, give them the known sample of Mr. Odeh's and say 11 look, we think this belongs to Mr. Odeh, it's his writing, 12 tell us if it's right? Did it happen? No, didn't happen. 13 But because we say it, because it's our theory, it works. 14 Wait a minute. We are talking about proof beyond a reasonable 15 doubt here. We are talking about being courageous here. It's 16 easy enough to do. Mr. Fitzgerald did it in five minutes 17 right in the courtroom. You mean to tell me we got all this 18 investigation going on and it can't be done? It wasn't done, 19 we know that. 20 Or maybe they did one and it didn't match. I don't 21 know. 22 MR. FITZGERALD: Objection, your Honor. 23 THE COURT: Sustained, stricken. 24 MR. WILFORD: There is no evidence in this case to 25 establish that the handwriting in that book with Mustafa's 5788 1 fingerprint on it is the handwriting on Mohamed Odeh. None. 2 You have the opportunity, not as experts but as human 3 beings, to make the comparison, because we put in other 4 evidence from Mohamed Odeh's home that has writing on it, that 5 has numbers on it, that has 3's on it. None of those 3's 6 match what the government tells you is a 3. Well, I don't 7 know, let's turn it this way. Or maybe let's turn it this 8 way. We can make it whatever we want it to be. They tell you 9 that's a 3. I don't know what it is. And then they argue 10 that this is a 3 because it is the number of meters of the 11 flatbed. There is examples here. We know this is Mohamed 12 Odeh's handwriting. It deals with the fish business. There 13 is fish and lobsters, a lot of examples of this, and a 14 notebook that contains a lot of these particular items is G3. 15 There is a series of them. Compare the numbers. When you 16 look at A3, which is the first document I showed you, it has a 17 signature on it, and there are measurements on that page. 18 Maybe, I don't know. The government wants this to be a 3. If 19 that's inches and feet that match with the drawing, how could 20 that be meters? You will see there is no mixing of metric and 21 nonmetric in Mr. Odeh's work. They want you to believe that 22 because that's their theory. 23 It is also logical that directional points on this 24 drawing should match with the embassy. They put 252, I 25 believe, next to 704, the page numbered 5, and it matches the 5789 1 embassy. And you put this one next and it's supposed to 2 match. You know, if it fits the theory, it matches. But is 3 that proof beyond a reasonable doubt that is going to satisfy 4 you? The only testimony in this case about anything about a 5 truck, when a truck was purchased by Swedan. He didn't ask 6 how long was the truck going to be. He asked how much could 7 it hold. Sheik Swedan asked how much can it hold. He didn't 8 say is it three feet long. If this is supposed to be used as 9 some sort of guide for people to blow up an embassy, don't you 10 think there would have been a question about how long it was, 11 if this is supposed to be a 3? 12 And think about this. You know, it's amazing. 13 Mohamed Odeh is in Witu. In his statement he tells you he had 14 to go to Malindi to Mombasa, by bus from Mombasa to Nairobi. 15 This is supposed to be the sketch. We need this sketch so 16 that we can know what the embassy looks like, so that we can 17 say hey, you have to go down this road, make this left, put 18 the truck here, boom. What the heck is it doing in Witu when 19 this is in Nairobi? And the government says yes, this sketch, 20 this is the bomb sketch. 21 I ask you a real simple question. If it is supposed 22 to be used by the people who're going to blow up the bomb, 23 there is no testimony that somebody asked can we see the 24 sketch? This sketch is found in a room in a book with 25 Mustafa's fingerprint on it on August 25, 1998. It is not 5790 1 found in the hotel, and it is not found in Mohamed Odeh's bag. 2 But the government is still going to tell you yeah, it matches 3 up, this is it, boom, we got it. And this, this blast cone? 4 I don't know if it's a snow cone, a fishing net hanging off 5 the back of a boat to catch fish. It can be whatever you want 6 it to be. But we are not talking about that. We are talking 7 about what the evidence proves in this case. 8 You know, the government also argued that they 9 couldn't even ask Mr. Odeh about the handwriting, about the 10 book, the sketches in the book, because they didn't have it. 11 Well, small problem with that. They had it on August 25. 12 Yes, it was still in custody in Kenya on August 25. Mohamed 13 Odeh. Guess who was still being questioned on August 25. And 14 I suggest to you that it is not only reasonable and accurate 15 to infer that he was still being questioned, because when he 16 was asked to get on a plane to come to America, the testimony 17 is that he was still being questioned. Bomb sketch. It's 18 his. Show it to him. Hey, buddy, check this out. He has 19 told everything else, this is this, this is that, I know these 20 people, I did this, I did that. Ask him about this. It 21 wasn't done. You don't have that? We had it, just didn't ask 22 him about it. 23 They never even had an expert come in here and 24 testify to you about what this means. They had Agent Gorman 25 come in and tell you by looking at the documents taken from 5791 1 Harun's house in the Comoros that this document had something 2 to do with explosives. Gee, Agent Gorman, take a look at 3 this. What does it mean? Wasn't done. 4 The government made a very interesting argument. 5 They said on the one hand, Mohamed Odeh is an explosives 6 expert. On the other hand, he is so silly in his explosives 7 knowledge that he thinks a bomb is going to blow up like this. 8 Well you just can't have it both ways. It's one way or the 9 other. I submit to you, ladies and gentlemen, the evidence 10 doesn't support the interpretation that the government forces 11 for that document. 12 You know, clear example. When the government 13 introduced this document, they didn't have any expert come in 14 here, say what they did with that trace evidence. When they 15 thought they had something that could be forensically 16 supported, they promptly and prominently displayed it to you 17 through an expert. Not with that document. What the 18 government does, to coin a phrase, is tapdance, choreographs a 19 dance around the document to make it what they want it to be, 20 because there is no identification of the author of that 21 document being Mohamed Odeh. There is no connection with that 22 document being of Mohamed Odeh, except for it being found in 23 his house. 24 You know, Arabic is read from right to left, but the 25 government turned the sketch around. I didn't hear anybody 5792 1 testify or say that you have to read Arabic upside down to 2 make sure it works. It's not there. Talk about tapdance. 3 That's what you do when you try to make a theory fit in the 4 absence of solid forensic truth. 5 When you ask the government these questions in 6 relation to that -- I am going to repeat them but I want you 7 to remember them. Nothing at all was asked of Mohamed about 8 these drawings. Why? Where is page 4? I repeat, where is 9 page 4? Where is page 4? Where is the page 4 that goes in 10 this book, that fits between this 3 and this 5? Not any page 11 4, that page 4. 12 Ask yourself, when Mr. Fitzgerald gets up in his 13 rebuttal, why did they say the sketches were the next page 14 when they're not? Remember, Mr. Odeh didn't put those tiny 15 numbers on that book. I didn't. Those numbers were put there 16 by the FBI in order to keep track of what was going on. 17 However, the government never brought those numbers to your 18 attention. They never said this is page 3 and this is page 4. 19 They couldn't, because it's 3 and 5. Never happened. 20 I want to reiterate one thing. Did you ever hear any 21 expert talk about a blast cone, any expert? The first time we 22 heard anything about a blast cone was when Mr. Karas stood up 23 and said this is a blast cone. I never heard that expression 24 before. We had a lot of experts up here. They could have 25 called. I submit you don't have to and you should not accept 5793 1 this proof. Why didn't they ask Agent Gorman about it? 2 You know, the government argues that Mohamed's 3 statement reflects what is in this sketch, because it 4 discusses in his statement that the truck was positioned 5 incorrectly. However, a close examination makes it crumble 6 under the weight and the reality of the truth. Remember, 7 Mohamed Odeh was flying to Pakistan when the bomb exploded in 8 Nairobi. He was taken into custody immediately upon landing. 9 He was taken from Pakistan to Nairobi. He was held, and here 10 is the word again, in communicado from that time on. In other 11 words, not only did he not speak to anybody other than law 12 enforcement personnel, he didn't see any TV, he didn't hear 13 any radio. He didn't have any intimate access. He had no 14 knowledge what was going on in the outside world except what 15 he was told. He had no way of knowing the number of deaths, 16 the number of injuries, whether the driver coordinated the 17 blast, where the truck was kept prior to the blast, or 18 anything else about the bombing unless it was provided to him 19 by his interrogators. How would he know? How could he know? 20 Many times in fact, the accurate inference is that Mohamed 21 received this information from his interrogator, who had 22 received this information during his interrogation of others 23 and used during his questioning of Mohamed. 24 Mohamed responded to the questions posed to him based 25 on the information the government provided. The government 5794 1 turns around and says because he gave us the answers he must 2 be guilty. Well, he got the information from you. It's a 3 circular argument and you'll miss it, because it's so 4 seductive. But it's the wrong conclusion. 5 There is so much I got to say to you. I could go on 6 for days and days and days about this. But Mr. Ricco has some 7 things he wants to say to you and I just want to wind it up. 8 The evidence, the forensic evidence doesn't stand for 9 the proposition put forth by the government, and without that 10 forensic evidence, there is no proof beyond a reasonable doubt 11 that Mohamed Odeh is guilty. 12 You know, the forensic evidence gives you the power, 13 each and every one of you the power, armed with that evidence 14 and your courage, to do what's right and to do what's proper 15 and what's just, and that is to show the world, to show 16 Mohamed Odeh, to show the country, to show yourselves, to show 17 the government, to show everyone and everybody that our system 18 of justice requires all people who come before our courts to 19 be acquitted -- it's important -- all people who come before 20 our courts to be acquitted unless the prosecution can 21 establish their guilt beyond a reasonable doubt, so matter how 22 horrible the crime, and Lord knows this was a horrible crime, 23 no matter who the accused may be or where he may be from, the 24 standard is always, always the same: Proof beyond a 25 reasonable doubt. And in this case the forensic evidence put 5795 1 forth by the government as the proof beyond a reasonable doubt 2 that Mohamed Odeh is guilty falls woefully short of that 3 standard, and you, each and every one of you as the judges of 4 the facts, abiding by your oath and analyzing this evidence 5 dispassionately and courageously, must find Mohamed Odeh not 6 guilty. That's what the evidence requires. 7 Now I am going to turn it over to Mr. Ricco for a 8 final windup. Thank you very much for your time and 9 attention, ladies and gentlemen. I really appreciate it. 10 MR. RICCO: OK, ladies and gentlemen. We are really 11 near our end, and I know it's been tough. The reality is that 12 you have been talked at for a week. I don't like people 13 talking at me for 15 minutes, and I know it's been tough. But 14 we really are wrapping this thing down. We should be 15 finishing in 15 minutes. 16 Mr. Wilford is driving home a point. You see this 17 here? You see this, this torn out page? Do you see the 18 writing on that torn out part? When you go in the back and 19 deliberate, take the book out. You are going to find another 20 torn out page on here that somebody put another 4 on the back 21 of. So you will find a 4. But that number 4 does not match 22 this, because the writing is not on the flip side of the tab. 23 Does everybody understand? No. Let me just take a moment to 24 show you. 25 If you go in the back you are going to see this 5796 1 document, this page. This page on the back, somebody wrote in 2 a small number 4. So you would think that when you take this, 3 if you put it behind that and flip it around, this should 4 match up. What you are going to find, if I put it on the Elmo 5 and hold down that tab, what you see is that the writing is 6 not there. It's gone. 7 Some may argue that, well, maybe the writing went 8 away when they did the test. But look at the rest of the 9 book. There is all the writings, all of them except this. 10 Sikander Juma told us about a page being torn out of 11 a book, and I'm not getting spooky because I don't think this 12 document reflects that case, but this document does not 13 reflect what the government purports it to be. They took a 14 gamble on it. Maybe it could go into evidence without an 15 expert, maybe you wouldn't care to ask. But it didn't add up. 16 I am going to show you exactly how it played out. 17 You remember Mr. Karas in his closing remarks when this was 18 up, the other enlargement, when he was explaining, you know, 19 the performance thing? They connected them. When he said 20 was, Mohamed Odeh is not saying that he is not unhappy about 21 how the Americans were killed, because things didn't work out 22 according to the plan, and he put up evidence of the plan, 23 because that's what this says. 24 We are taking the position that that is an argument 25 that is not supported. What the government did is very 5797 1 subtle. They said Mohamed Odeh is not happy about the 2 Americans. They put up this chart and everybody was taken 3 aback by that, because that's the theory of the case. He 4 doesn't care about the Americans. He says there is nowhere in 5 this statement that he says anything about the Americans, he 6 only cares about the Kenyans. Do you read, the Americans, 7 this information that he could not have had, that's the 8 argument, and then they said later on we got the diagram and 9 that put it all together. 10 First of all, Mohamed Odeh testified that he was 11 concerned about everybody that was killed, and at 1747 of the 12 transcript, my question to Agent Anticev was -- I am sorry, 13 this was Mr. Fitzgerald's question. 14 My question then is, with regard to Mr. Odeh 15 indicating his being upset and angry with the number of people 16 who were killed, isn't it fair to say that Mr. Odeh did say 17 that he was affected that the bombing had affected buildings 18 around the embassy and killed many people? Yes. Question by 19 Mr. Fitzgerald. Did he ever indicate that he was concerned or 20 upset by Americans in the embassy that had been killed? 21 Answer, no. 22 So it fits the theory. Problem. That's only part of 23 it. Mr. Ricco on recross. Mr. Fitzgerald just asked you 24 questions as to whether or not he expressed any concern that 25 Americans were killed. Isn't it a fact that Mohamed Odeh 5798 1 didn't make any distinction between Americans or Kenyans, he 2 was upset that the people were killed; isn't that right? 3 Answer, I don't know what he was thinking when he made that 4 statement. Made what statement? Question, made what 5 statement, that he was concerned that people were killed? 6 Answer, I truly believe, truly believe that he was concerned 7 that people were killed, innocent people were killed. So my 8 question was a simple question. He never made a distinction 9 to you that he was concerned because they were only Kenyans 10 and not Americans, did he? That was never said by him, was 11 it? No, he never specifically said that he broke it down, I'm 12 upset, Kenyans are killed and Americans are not. 13 That was his testimony, what the agent truly believed 14 he was saying. Now look at the argument that was made in 15 support of that. First it said, as that chart is in front of 16 you as it is now, you will not see in there once a statement 17 of remorse about the dead Americans. That's not bothering 18 Mr. Odeh. That was Mr. Karas's remarks. He went further. It 19 says he's not saying that he is unhappy about the Americans 20 who were killed, what he is telling the FBI, what he is 21 telling the FBI is that that was not the plan. But the FBI 22 doesn't have this diagram at the time. Just like I said, when 23 he gives the statement, the statement is partly true just as 24 it sits there, and the complete truth comes when you compare 25 the statement to this diagram. 5799 1 And the reason why this becomes important is because, 2 number one, to say that Mohamed Odeh was not concerned that 3 Americans die is a mischaracterization of his statement as 4 testified to by Agent Anticev. Two, to compare it to 5 information that he could not have had unless he was there 6 further distorts the evidence against Mr. Odeh. It is very 7 subtle, because what it means is this: If he is held in 8 communicado, then the only way he knows this information is if 9 what? He was a part of the plan. Right? If he was a part of 10 the plan. But the fact of the matter is, he could not have 11 known where the truck was left, whether or not somebody died 12 or not, from the plan. But if you believe that he was held in 13 communicado, it doesn't matter. 14 So the setup is complete for you to turn towards 15 Mr. Odeh, look at that diagram for whatever it's worth, even 16 if that is a 3 -- if that's a 3, then what's that and what's 17 this? -- and say gotcha. That's how it works. His testimony 18 was different than the argument that was advanced, but you 19 need it to change it to fit it together with the piece to make 20 it work. 21 Now let me say this. Mr. Odeh never said Harun's 22 house, 43 Runda Estates, right? If you go to his report, his 23 report says Harun's house. So Mr. Wilford misspoke a little 24 bit, and it becomes important. He don't know 43 Runda Estates 25 from 40 Runda Estates. But he knows Harun lives in Mombasa 5800 1 because he knows that he was affiliated with MIRA -- Nairobi. 2 Thank you, Mr. Wilford. People misspeak all over. 3 And it is important to note that the FBI did 4 determine that the PETN was microscopic, microscopic, and 5 that's very important. Here, too, the book and the bag, 6 contamination. It's the only reasonable and accurate 7 inference that can be drawn from the evidence in this case, 8 because there is no PETN anywhere else other than where Fahad 9 has been. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5801 1 MR. RICCO: (Continuing) Now, there's been a lot of 2 talk in the case about what Bin Laden said, and Mr. Odeh is 3 charged by the government in the conspiracy with aiding and 4 abetting others. 5 Mr. Bin Laden has made some outrageous statements. 6 He's made statements that have influenced many. To ask a 7 young man to get in a truck with a thousand pounds of TNT 8 behind him is powerfully irresponsible, powerfully -- look at 9 the results. Look at the people that are here today. You 10 want to hurt the Americans? Those people over there are 11 Kenyans and Tanzanians and some Americans. And I started this 12 case talking to you about their great loss, our great loss, 13 and I meant it then and I mean it now. 14 This case calls for you to evaluate the evidence in a 15 serious way. Don't leave out the fingerprints from Tanzania. 16 That's shading and pushing the evidence in a direction. Don't 17 miscategorize the testimony. When you go in the back, I want 18 you to remember it is Mr. Odeh's state of mind that you have 19 to determine on the issue of his guilt. 20 And the judge is going to instruct you on what 21 evidence you may or may not consider in connection with that, 22 and we remain confident that when you review that evidence you 23 will find that Mr. Odeh is the man we told you he was -- no 24 more, no less. His state of mind and the evidence that points 25 to his state of mind, the flight of everybody from Nairobi 5802 1 with their families, and his pregnant wife and child being 2 left behind is powerful evidence that goes to his state of 3 mind. All of the organizers left, and they also wanted to 4 take with them a guy who could tell them about the Comoros, 5 London, Somalia and everything else, even if he was what some 6 of them may have considered a fool. 7 Now, Mr. Wilford said he was kept out of the loop, 8 and as I explained to you earlier, he was kept out of the loop 9 for the planning, the execution, the bomb and the cleanup. He 10 was also kept out of the loop, I forgot to say this morning, 11 with the surveillance, because the government's theory is that 12 the surveillance in this case took place when Amriki and the 13 rest of the people came and they were staying with Kherchtou. 14 Now, maybe they are implying that there was some other 15 surveillance, and maybe there was, but there's no evidence of 16 that. 17 And so we come to a close with Mohamed Odeh, and it's 18 important that you remember something that Mr. Wilford touched 19 on: That this is our nation. And it is a broad nation. It's 20 present in this courtroom. It's present in you, your faces, 21 the faces of the defense, the prosecution, the court 22 personnel, when you look around this courtroom, and when the 23 people from overseas come over here and they see so much 24 effort being put on behalf of people who are charged with 25 doing something so terrible, they see what our fathers and 5803 1 some of us put their lives on the line for. 2 Mr. Karas touched on a statement by Mr. Odeh saying 3 "planning, thinking, patience," and I will submit to you what 4 we have in our nation, what you see before you is the result 5 of planning, thinking, patience, wisdom and a few wars thrown 6 in. 7 We also took a pledge, like the defendants, Mohamed 8 Odeh, bayat. When we were children, we took a pledge. We 9 pledged "allegiance to a flag, the United States of America, 10 and to the republic for which it stood, one nation, under God, 11 indivisible, with liberty and justice for all." But that 12 pledge does not mean, just like bayat, that we somehow turn 13 into something that we're not because somebody points us to a 14 village where there are innocent civilians, or somebody asks 15 us to engage in activity that deprives us of our human 16 dignity. With the pledge, we still conduct ourselves in 17 accordance with the laws of our nation and our belief in God, 18 if we so choose. 19 Now, here the term "justice" is applied, and justice, 20 to me, is a meaningless term by itself. Justice, as I stated 21 to you when I started this case, has to be served by you 22 day-in, day-out. It's late in the day. Still on your job. 23 Day-in, day-out. "Justice" is an empty word, but "justice" is 24 a promising word. 25 Justice assumes that there will be people like 5804 1 yourselves to see that it is done. There have been many men 2 like Mohamed Odeh in our nation's history and throughout the 3 world. He chose to fight against oppression and injustice in 4 Somalia and Afghanistan, but he did so without losing his 5 human dignity, his sense of what is good and evil, and with 6 his willingness to serve Allah. And there's not a single 7 piece of evidence in this case to the contrary. 8 Everything that you heard about Mohamed Odeh from his 9 letters and his statements is that he's a righteous soldier, a 10 loving husband, a beloved son and a brother and an uncle. As 11 I stated probably too many times, to some, he was a fool, but 12 to the people in Somalia, when people like him showed up, when 13 we were back home watching T.V., he was a blessing -- I'll say 14 it again -- because he went to Somalia for the same reasons 15 that the U.N. went, which is to save lives. 16 Many young men decide to give up their studies and 17 endure poverty and live a righteous life. Today, Mohamed 18 Odeh's fate, his immediate faith, is in your hands. I remain 19 confident that you will serve the ends of justice. Whatever 20 you decide is right. That's not for me to take from you or 21 anybody in this jury box. It's your decision, your collective 22 decision, that counts. 23 What I suggest to you is to take every document, each 24 clothing item, each letter, every fingerprint, take a look at 25 all of the testimony in its entirety and in connection with 5805 1 each other. Pay attention to the law as Judge Sand gives it. 2 Shut out the wishes of defense counsel -- me, Mr. Wilford. I 3 suggest shut out the government's arguments. The Judge is 4 going to tell you that you can decide and take them for 5 yourself if you want. 6 Shut mine out. Go back there with the evidence and 7 come up with your own. You then have to decide on your own 8 whether or not the government has proven its case against 9 Mohamed Odeh, beyond a reasonable doubt, that he conspired to 10 kill Americans, men, women, children, anywhere in the world 11 where they could be found. 12 A long time ago Dr. King talked about justice and he 13 talked about a notion called the royal arc of justice, and he 14 said that it moves slowly, it turns slowly, slowly, slowly it 15 turns towards the truth. And so it does. You will decide 16 what the truth of this case is, what the evidence represents. 17 You have heard a lot of testimony from Imam Siraj 18 about religious beliefs, and I agree with Mr. Karas: This 19 case is not about Islam. It's about his state of mind and 20 whether or not it affected his actions or inactions, period. 21 Because in the end, you will decide this case on the same 22 principles of law that every person who walks in a courtroom 23 in this country is entitled to. And they're not foreign 24 principles. 25 He's entitled to them no matter how many innocent 5806 1 people lost their lives, how many dreams were taken, and how 2 painful it is for the people who suffered through this. The 3 greatness of what we have here is our ability to keep you with 4 an open mind until you decide. And when you decide, 5 everybody's got the backup. And accept that. 6 If we don't have that, if you are quick to convict, 7 irresponsible to acquit, we will find ourselves mired in the 8 same anarchy that existed in Somalia. Remember Imam Siraj: 9 "You can't have a society where everybody makes up their own 10 mind about what's right and wrong." Your collective wisdom 11 will come into play in this case. 12 I am finished. And I will say to you in the end, 13 what happened is about 200 years ago a man from Africa was 14 brought into a court in the United States. He was unable to 15 speak the language and he represented a very unpopular cause. 16 In fact, he was represented by a former president of the 17 United States, John Quincy Adams, and he was involved in a 18 cause that ultimately tore the nation apart. 19 He couldn't speak the language, but he knew one 20 thing. He stood up in a courtroom, manacled, and in his own 21 way said, "Give us free." And what I'm asking you on behalf 22 of Mohamed Odeh is to give him free. Give Mr. Odeh his 23 freedom and send him back, send him back to that mut hut in 24 the middle of nowhere, in a village called Witu and a country 25 called Kenya, because in the end that is the only thing that 5807 1 this evidence in this case shows with respect to him. 2 I want to thank you all. I want to thank you, Judge 3 Sand. I want to thank you for the patience and the 4 opportunity for giving both sides, both the government and 5 defense, an opportunity to present the evidence in this 6 important case so that the jurors here can make a decision on 7 an issue that is so important to so many people. 8 Thank you very much on behalf of Mohamed Odeh, on 9 behalf of Ms. Babcock, Mr. Herman, of course, Mr. Wilford. 10 Thank you very much. 11 THE COURT: Thank you. 12 Ladies and gentlemen, rather than start another 13 closing statement, we'll call it a day and we'll resume 14 tomorrow at 10 a.m. 15 Have a good evening. 16 (Jury not present) 17 MR. COHN: Thank you, your Honor. 18 THE COURT: Anything else? We're adjourned until 10 19 a.m. tomorrow. 20 (Adjourned to 10:00 a.m. on May 8, 2001) 21 22 23 24 25
HTML by Cryptome.