9 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 42 of the trial, May 9, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
5978
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 May 9, 2001
9:50 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
5979
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 MICHAEL GARCIA
Assistant United States Attorneys
6
7 SAM A. SCHMIDT
JOSHUA DRATEL
8 KRISTIAN K. LARSEN
MARSHALL MINTZ
9 Attorneys for defendant Wadih El Hage
10 ANTHONY L. RICCO
EDWARD D. WILFORD
11 CARL J. HERMAN
SANDRA A. BABCOCK
12 Attorneys for defendant Mohamed Sadeek Odeh
13 FREDRICK H. COHN
DAVID P. BAUGH
14 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
15 DAVID STERN
DAVID RUHNKE
16 Attorneys for defendant Khalfan Khamis Mohamed
17
18
19
20
21
22
23
24
25
5980
1 (In open court)
2 THE COURT: I received nothing from defendants with
3 respect to the issue concerning alternates.
4 MR. RUHNKE: Your Honor, just one quick thing on the
5 alternates. In the Johnson case, which was cited by the
6 government, which is the 7th Circuit case I was thinking about
7 yesterday, there's also a case the government doesn't cite out
8 of the 5th Circuit, United States v. Webster.
9 THE COURT: United States v. Webster holds that it's
10 harmless error at a time when the statute specifically
11 mandated that the jurors be discharged.
12 MR. RUHNKE: Basically counsel messed up in both of
13 those cases by not asking that the jurors be discharged.
14 THE COURT: Excuse me?
15 MR. RUHNKE: Essentially, counsel made a mistake in
16 both of those cases by not asking that the jurors be
17 discharged at the end of the guilt phase.
18 I will tell you what our position is on behalf of Khalfan
19 Khamis Mohamed: While this is an unchartered area, if there
20 is any tradeoff at all to be made on timing or the
21 government's suggestion of combined penalty phasing, we're
22 prepared to consent to your Honor keeping the alternates and
23 substituting them in to penalty, if and when we come to that
24 moment, consider substituting, depending what the
25 circumstances are when we come do that. Basically, we're not
5981
1 asking you to discharge the alternates.
2 MR. BAUGH: On behalf of defendant Al-'Owhali, your
3 Honor, again, because of the bifurcation issue, if there is a
4 tradeoff, we would agree with Mr. Ruhnke and join in his
5 position.
6 THE COURT: Whatever your motivation for agreeing
7 with it, I am not going to discharge the alternates. As the
8 commentary to the latest revision to Rule 24(c) makes clear,
9 the matter is discretionary with the Court. There are a
10 number of reasons, many of which I cited yesterday, why that
11 would be particularly inappropriate in this case.
12 I will add to yesterday's list, one is that Mr. Rogers has
13 been promoted and is now in White Plains. I don't really
14 relish the thought of going through a voir dire process anew
15 without his very able assistance.
16 The rule in the Second Circuit even prior to the
17 revision was that it was harmless error and it's the only
18 instance in my practice in which I have ever adopted something
19 which was harmless error, and I adopted it for an entirely
20 different reason and in fact never had occasion to utilize the
21 alternates.
22 But I don't believe I have a right under the First
23 Amendment to instruct a discharged alternate not to talk to
24 the press, and so there is at least the possibility that a
25 discharged alternate will give an extensive interview to press
5982
1 less responsible than those that are presently in the
2 courtroom, which gets published and is read by a
3 non-sequestered jury. And therefore, keeping alternates as
4 members of the jury does empower the Court to say that.
5 In any event, that's the practice that we'll follow here
6 for many, many reasons.
7 Let me have counsel for both Al-'Owhali and K.K.
8 Mohamed, their statement of mitigating factors, requests to
9 charge and special verdict form by May 17th.
10 MR. RUHNKE: Fine, your Honor.
11 THE COURT: Let's bring in the jury.
12 MR. RUHNKE: Your Honor, we're just sort of asking
13 ourselves whether we have gotten your Honor's final charge,
14 and I don't know whether we have or not. No one seems to have
15 gotten it.
16 THE COURT: Yes, you have. The only changes that
17 were made were the insertion of the stipulation numbers, a
18 statement to the fact that the indictment contains background,
19 that the background is the government's version and is not
20 evidence. I think those are the only changes.
21 MR. RUHNKE: I suppose the inquiry is, are we going
22 to get it at some point in the form that is going to go to the
23 jury?
24 THE COURT: Yes.
25 MR. RUHNKE: Okay.
5983
1 (Jury present)
2 THE COURT: Good morning.
3 THE JURY: Good morning.
4 THE COURT: We are in the midst of the government's
5 rebuttal argument, and Mr. Fitzgerald, you may continue.
6 MR. FITZGERALD: Thank you, Judge.
7 Good morning.
8 THE JURY: Good morning.
9 MR. FITZGERALD: I'll finish this morning. I'm going
10 to talk to you about four people. I'm going to conclude the
11 discussion, finish the discussion about the rebuttal to
12 Mohamed Sadeek Odeh, then I'll discuss the case against
13 Mohamed Rashid Al-'Owhali, then I'll discuss the case
14 involving Khalfan Khamis Mohamed, and then I'll briefly talk
15 to you about one person who you have heard precious little
16 about.
17 Let's start with defendant Mohamed Odeh.
18 When Mr. Ricco and Mr. Wilford summed up to you,
19 basically they invoked an image of sending him back to Witu
20 and his mud hut, and there is something attractive about a mud
21 hut. It seems simple. It seems peaceful, particularly if you
22 forget the sketch that's in there that we'll talk about in a
23 moment. But I ask you to think of this. August 7th, 1998,
24 when those bombs went off, in Odeh's mind, in Odeh's physical
25 presence, he was not in a mud hut, he was in Pakistan, hoping
5984
1 to get to Afghanistan, to get to a cave where Bin Laden was.
2 You heard argument as to why it is that if Mohamed
3 Odeh was guilty, he left his family behind if others traveled.
4 I submit to you to think about three things: First, he often
5 left his family to go do Jihad. He went for months. That's
6 why you have those tape letters to the wife: I'm off. I'm
7 doing what I have to do. I'm doing good deeds. Sorry I'm not
8 home, but I'll come back when I can. He made the choice on
9 August 7th, 1998 -- earlier than that -- to go to the Hilltop
10 Hotel rather than with this family.
11 And I also submit to you that you learned that his
12 wife was pregnant. If your wife was pregnant, do you want her
13 to travel? Do you want her to travel to give birth in
14 Afghanistan, when you know that the navy, the U.S. Navy, is
15 supposed to send planes to retaliate? It makes sense. You
16 would leave her somewhere else.
17 Let's talk about the concept of innocent civilians for a
18 moment. It's one of those things about wishful thinking.
19 Nobody wants anyone to kill innocent civilians, but the point
20 is, what do people think? Who do they think are innocent
21 civilians?
22 The scary thing about terrorism is no one gets up in the
23 morning and says I'm going to be a bad person that day. They
24 do things, they commit crimes that have been justified as
25 being proper. And what have we learned about al Qaeda and
5985
1 what al Qaeda thinks about people in the embassies? Well,
2 we've seen that al Qaeda thinks that if the U.S. forces are
3 invited to Saudi Arabia and go there, that's blasphemy. If
4 U.S. forces go to Somalia to stop starvation, that's
5 colonization.
6 And what do we know from Kherchtou from the transcript at
7 4741 to page 42, when he says some believe that embassies was
8 a place for spying:
9 "Q. Were people told this in your presence?
10 "A. Yes.
11 "Q. Were people told that embassies were used to establish
12 covert operations?
13 "A. Yes."
14 What about the ABC speech, the speech or the
15 interview by Bin Laden to John Miller from ABC in May of 1998
16 where he talks about how, after the Khobar bombing, the
17 embassies are used to gather information. To al Qaeda,
18 embassies are not innocent places.
19 How about -- and we'll display Government Exhibit
20 351, a document found in the home of that person Abu Mohamed
21 al Amriki, the surveillance person. If you look at Government
22 Exhibit 351, page 1, section B, what does it talk about? It's
23 talking about a security system called Netaqat, the system of
24 the Netaqat to serve, number 2, the Netaq is the term used in
25 the security.
5986
1 For example, an embassy of a foreign country will have
2 several Netaq. The first Netaq will be inside the fence and
3 the security from the foreign country will take care of it.
4 The second Netaq is the police outside the gate. The third
5 Netaq might be a patrol car stationed about two blocks from
6 the embassy. The fourth Netaq might be a police unit
7 responsible to protect some sensitive targets in the area.
8 How about that other person who did surveillance, the
9 person Anas al Liby, the person whose passport photograph was
10 recovered in Wadih El Hage's files in the search of his home.
11 We'll display Government Exhibit 1677T, the translation, page
12 12.
13 When his house is searched in Manchester, that Jihad
14 manual, this is what you find. Down at the bottom, "The other
15 missions consist of the following: Number 7. Blasting and
16 destroying the embassies and attacking vital economic
17 centers."
18 I submit to you that when you look at Odeh's
19 statement, the one that says "Odeh stated that the errant
20 shock wave hit the wrong building," the right building is the
21 embassy. The right building is where they believe that the
22 people are not innocent, and that serves as an introduction to
23 the sketch.
24 Before I address that, Mr. Wilford said, in
25 addressing the sketch and the explosives residue, that this
5987
1 case comes down to simple physical evidence. I submit to you
2 that it does not. The physical evidence strongly
3 corroborates, convincingly corroborates what is there. But
4 you have to look at everything in context, because what do you
5 know aside from the sketches, aside from the residue?
6 You know that this was a bombing carried out, in
7 large part, by al Qaeda, and the al Qaeda people carrying out
8 the bombing were in the Hilltop Hotel. Who was Mohamed Odeh?
9 An al Qaeda soldier. Explosives training. Architectural
10 training. And where is he? At the Hilltop Hotel. Under what
11 name? Abdel Basit Awad. He's here. He's heard about the
12 fatwahs in '96 and '98. He's still with the group. He has
13 heard from Mustafa Fadhil that there's discussions about
14 whether or not an operation in Kenya is okay.
15 And that's his version. We'll see what it really means
16 when you look at the sketch. He's heard that it is urgent.
17 Everyone has to leave town by August 6th. You saw the way it
18 operates. Everyone gets out of town 24 hours beforehand,
19 except those carrying out the bombing.
20 He's got that tape in his house, the tape to his
21 wife, September of 1997, when there's American activity in
22 Kenya against the brothers where he says, "We will get them
23 back 20 fold. Time, thinking, and preparation."
24 In that context, in that context, where he's told
25 that the United States Navy is going to retaliate and the
5988
1 people back in Afghanistan have to move, then look at the
2 sketch, because its context is the whole picture taken
3 together, not one piece of the puzzle.
4 All right, 704. This is an enlargement of that
5 sketch. It's on the screen as well. Let me remind you that
6 when Mr. Wilford addressed you, he told you in a loud voice
7 that, you know what, this book had Mustafa Fadhil's
8 fingerprint on it and no one else's. And I'll look to the
9 transcript at 5295, 5296.
10 What Mr. Wilford told you is: It had one fingerprint that
11 the government was able to recover that the FBI found, and
12 that was a fingerprint of Mustafa. Not Mohamed Odeh, Mustafa.
13 What does that tell you? It was found in Mohamed Odeh's
14 house, yes, okay. Does it show you that he handled it? No.
15 That's not proof beyond a reasonable doubt. It does show you,
16 however, that Mustafa handled this book. That's what the
17 proof shows you. Don't be confused. You may be asked to make
18 inferences that Mr. Odeh drew this. The only proof we have in
19 this case that shows that anybody handled this book is
20 Mustafa.
21 There are several problems with that. First of all,
22 Mustafa Fadhil's fingerprint was not found on the book. The
23 evidence in this case, you can look at Mitch Hollars'
24 testimony, this book has many pages. This is page 3, and
25 we'll talk about page 3, page 4 and page 5 in a moment. This
5989
1 is page 3, this is page 4 -- what's left of it -- this is page
2 5.
3 The book has lots of writing in it. In fact,
4 Mr. Wilford said, "Elsewhere, you know when it's Odeh's
5 handwriting and other things because of discussion of fish."
6 You can look at this book. You can get gloves, you can look
7 through it in the jury room later on. In the book there's
8 discussion of king fish.
9 What Hollars told you, with all the pages that have
10 writing on it -- and there are more than a dozen pages of
11 handwriting -- only one fingerprint could be recovered in the
12 entire book. It's on page 1. Not on this page, not on that
13 page. And they compared the fingerprint on page 1 to Odeh and
14 to Mustafa Fadhil and neither hit. And as Mr. Wilford asked,
15 Mr. Hollars: You have no idea who that print belongs to; is
16 that correct, sir? And he said no. You don't know who put
17 that print on page 1?
18 Well, one thing you do know is somebody handled the book.
19 Somebody wrote on all those pages with writing, and the
20 fingerprints -- there are no fingerprints recoverable from any
21 of those pages, so you just don't know.
22 You also heard that no one tested the writing. Agreeable,
23 no one tested the writing, neither the government, and the
24 defense has no burden, but they didn't test the writing. And
25 I submit to you when Mr. Wilford implied to you that maybe the
5990
1 government tested it and didn't like the result and ditched
2 it --
3 MR. WILFORD: Objection.
4 THE COURT: Well, I sustain the objection and that
5 comment is stricken.
6 MR. FITZGERALD: I just submit to you the defense has
7 no burden, but if you think that there's something in here
8 that shows the handwriting is elsewhere --
9 MR. WILFORD: Objection.
10 THE COURT: Overruled.
11 MR. FITZGERALD: -- the defense could call an expert,
12 like they did Dr. Lloyd, and look at it.
13 Well, let's take a look at the handwriting, okay?
14 And look, don't rely upon amateur handwriting experts,
15 yourself or myself, but let's take a look. And when you look
16 at the handwriting, let's focus on another document taken from
17 the Odeh house, Government Exhibit 702. That's what was
18 referred to by the Odeh team as an inventory. The original is
19 the same type of brown paper, looks more like a budget.
20 I'll tell you right up front, 702, the budget, was
21 found at Odeh's house and that one does have Mustafa Fadhil's
22 fingerprint on it. Now, you may say, well, it's Mustafa's
23 fingerprints on it. Maybe Mustafa Fadhil wrote it. If it's
24 in Odeh's house, maybe Odeh wrote it.
25 You can take a look at what the contents of the document
5991
1 are, because you will see that this budget document is
2 important because of what light it sheds on the sketch. The
3 budget document has a translation, Government Exhibit 702-T.
4 We'll put up 702-T, page 1.
5 And before you look at this page, I'll tell you what
6 the significance is. If you remember that spring 1997 report,
7 that secret document that Wadih El Hage walked back from
8 overseas from Bin Laden to Kenya, after that new policy came,
9 you learned that four particular people got engaged in
10 activity in Somalia: The defendant Odeh, Marwan; Mustafa
11 Fadhil, known as Khalid, and you have seen his picture a
12 number of times; and this fella -- you heard about an Ahmed,
13 Ahmed the Egyptian or Ahmed al Saghir; and you also heard
14 about Harun. And you have seen his picture often enough,
15 Harun.
16 When you look at 702-T, there's no year on it, but
17 you can figure out it's not 1998. It's got entries in it past
18 August 7th, so when you see the references to weapons and
19 artilleries, we're not claiming that's for August 7th, the
20 bombing. It makes more sense it's before, 1997, when the
21 people are doing the work set forth in the policy.
22 When you look at the budget, on the first page you
23 will see in the lower right-hand corner and Ahmed al Saghir,
24 and it says, "Ahmed al Saghir was sent to Mombasa to brother
25 Khalid carrying a report to brother Khalid."
5992
1 That is a nine-page document. You can go through it. The
2 point is this: You will see references to an Ahmed, you will
3 see references to a Khalid and you will see references to a
4 Harun, all written in the third person. There is no reference
5 to Odeh, no reference to a Marwan. I submit to you either
6 Odeh wrote it; he's talking about the other three guys in the
7 third person; or one of those people wrote it and wrote a
8 budget using his own name as a third person. This is
9 important because it's about, quote, military work, getting
10 explosives, getting artillery, getting training.
11 Now let's go to the original, Government Exhibit 702-P,
12 and we'll go to 702-P1. And if we could go to 702-P1 and
13 focus on the number 3 on the first page as it's written on the
14 budget. If we could then magnify it and enlarge it on the
15 left.
16 Now if we could go to the sketch, 704P-2, on the right and
17 enlarge the number 3 and compare. Now if we could look at a
18 6. Go to Government Exhibit 702, page 5. Focus on the 6.
19 Magnify it on the left. Go back to the sketch on the right.
20 Magnify the 6. Very similar.
21 Now, you can go through different 3's different
22 times, the 6's seem to match. I tell you right now, if you
23 look at the 1's, the 1's are odd because the 1 here sometimes
24 it's drawn like this. You can see a little bit of a hook.
25 There's more hooks on the 1's there.
5993
1 You know what, I submit to you that there could be more
2 than one handwriting in this book or in that book, but it
3 appears it's Mustafa Fadhil and Odeh and the group writing
4 what's in the budget and drawing a sketch. And that's the
5 important piece, because if the people writing this budget,
6 the budget about the military work, about explosives and
7 artillery -- let's give them Mustafa Fadhil. Mustafa Fadhil
8 is drawing this and he's drawing this, this is not about a
9 snow cone. Mustafa Fadhil is not in the snow cone business.
10 You don't go to Witu for a snow cone.
11 And what did we hear from Odeh? Talk about dancing with
12 the truth. I'll borrow a line from Fred Cohn: "If you want
13 to make up a lie, get one grounded in the truth." Odeh tells
14 you Mustafa Fadhil came to visit him in the spring of 1998,
15 and he and Mustafa Fadhil were talking. Mustafa Fadhil was
16 talking about whether an operation in Kenya is something he's
17 for or against, and Odeh says Mustafa Fadhil has the same
18 mind-set. He likes Kenyans. But Saleh has a different
19 mind-set. He doesn't like Kenyans.
20 And I submit to you this document, whether it's Odeh
21 writing it down while he's discussing with Mustafa or Mustafa
22 writing it down while he's discussing it with Odeh, shows you
23 that they're not trying to decide whether an operation is a
24 good thing or a bad thing, they're trying to get it right,
25 point it at the right building, point it at the building that
5994
1 has the generators on the side.
2 Page 4, let's focus on page 4. A lot was made on,
3 where is page 4? Mr. Wilford basically said to you, to me,
4 have him get up here and tell us where page 4 is. Mr. Ricco
5 went a bit further. Mr. Ricco said, a quote from page 5320 to
6 5321 about the mystery of page 4:
7 "You see this here? You see this? This torn out page?
8 Do you see the writing on that torn-out part? When you go in
9 the back and deliberate, take the book out. This is the book.
10 You are going to find another torn-out page on here, another
11 torn-out page on here that somebody put another 4 on the back
12 of. So you will find a 4, but that number 4 does not match
13 this because the writing is not on the flip side of the tab."
14 He showed you this tab. He said, "Look at the writing. It's
15 not on the flip side."
16 And then he continued, page 5321: "This page on the
17 back, somebody wrote in a small number 4 so you would think
18 that when you take this, if you put it behind that and flip it
19 around, this should match up. What you are going to find? If
20 I put it on the Elmo and hold down that tab, what you see is
21 that the writing is not there. It's gone."
22 So now what you have, not only do you have a
23 coincidence that he's got a sketch in his house that matches
24 the description of what he thinks the physics works like, not
25 only does he have al Qaeda conspiring against them, they're
5995
1 dragging him to the Hilltop Hotel, under a fake name, making
2 him hang out with the bombers for days before he leaves under
3 a fake name, 24 hours ahead of time. Now the FBI lab is
4 joining in. When they frame people, they make little notes.
5 They draw a 4 on the page, rip it out, and put a new one in.
6 That's pretty desperate. But let's take a look. Let's
7 take a look, and I invite you to take this in the back with
8 you, to take some gloves and walk through it.
9 We have some of it scanned on the screen so we can
10 show you, but do not take my word for it. Take it in the
11 back, take your gloves, take your time. You can all look.
12 The staples are now removed from the book. It was processed
13 at the lab. But move the pages around and see if the 3, the 4
14 and the 5 don't fit.
15 If you look on the screen -- and I'll take this down so
16 it's not a distraction -- if you look at the screen on the
17 top, there's a picture 704-P, which is stipulated to be the
18 photograph taken of the exhibit before forensic analysis,
19 before the lab did their work. We'll come back to that.
20 Look at the lower left corner, if we could, Gerard, the
21 lower left corner on the top of the exhibit, and if we could
22 magnify that. And there you see the 3.
23 Now if we could go on the right. Look in the lower
24 right corner of that page and magnify it, and you see there's
25 a 5. It looks like a K538, which, if you check out, looks
5996
1 like the lab number for that exhibit.
2 Now let's look at the exhibit in the middle, down below
3 from the original, which you can look at yourself and magnify
4 that's on that little shred of paper. What do you see? A 4
5 with K538 and some initials, which appear to be like the
6 initials under the 5.
7 Someone was careful enough to say, hey, this is a
8 book, it's falling apart, number the pages, 3, 4 and 5.
9 Okay. We still got a problem, don't we? We got a
10 problem with what happened to the writing. Well, I submit to
11 you, you can take the book in there and you can flip the page
12 over and we can display the page with the little shred turned
13 over on the bottom.
14 If we could magnify the other side of what's left of page
15 4, if we could magnify the top, the picture from 704-P2, the
16 photograph of the exhibit before the lab tested it, put them
17 side by side, first look at the shape. Those are the outline
18 of what's in here. And you can look at it for yourself and
19 you can take -- there's an original exhibit that's smaller.
20 Compare it. They line up. They line up with the size.
21 What about the ink? Well, I'll tell you two things. Look
22 at the book at the top. Look at the book at the bottom. You
23 see those blue lines across the page? They're gone. They're
24 gone from testing. Remember that stipulation I told you?
25 Government Exhibit 46 is a stipulation that the coloration of
5997
1 the exhibit changed during testing. All those blue lines are
2 gone. The lab isn't going around stealing the blue lines out
3 of the page, it's gone from testing.
4 And if you look on the left and you can look at the
5 original, you can see outlines, little bits of blue on that
6 page. That's what's left of page 4. There's no mystery. It
7 wasn't stolen. It wasn't fabricated. It wasn't stolen,
8 documented and put back.
9 Now, we heard about the box in the circle. If you
10 look at the comparisons that we've done -- and you'll see them
11 in a moment -- on the comparison we did, we never put the box
12 in the circle. No one ever contended that Odeh or Mustafa or
13 whoever was there drawing during the discussion drew the tent
14 afterward.
15 What is this? We don't know. Could there ever have been
16 something on that circle beforehand? Could that be the car?
17 Remember Harun drives the lead truck? What is it? What, I
18 submit to you, is look at the entire picture. This is the
19 traffic circle. This is the embassy, and the direction is
20 correct.
21 They talked a bit about turning the sketches around.
22 Remember when you looked at that big model that was in the
23 courtroom, when you were asked to look at the model, if you
24 are looking at the embassy, if the embassy is here and the
25 traffic circle is there, south is this way. And there's a
5998
1 stipulation that this word written here is "south." Another
2 great coincidence.
3 Look over here. Look at this. If this is a truck facing
4 the embassy, lo and behold, right in the parking garage, where
5 the truck is supposed to go, there's the generator, the round
6 circles of the generator you can see in the screen.
7 Now, you were told, why didn't they ask Mohamed Odeh
8 about it? They recovered it on August 25th. He's on a plane
9 on August 27th. I submit to you, look at your common sense.
10 There were searches going on all the over the place, the Mercy
11 search, the search in Witu on the Khost of Kenya. And when
12 that search evidence came in, there were boxes piled up here,
13 all different books.
14 And you saw the defense put in, which is proper, some of
15 the other books from that same bag. And you saw that box and
16 you saw things and papers and other things and other boxes and
17 other things and searches happening in Tanzania and
18 everywhere.
19 Does that mean if an FBI agent in Witu grabs a box of
20 papers, that he's suddenly read the back of this and knows
21 there's a shred of paper and he studied everything, and
22 everyone involved in the investigation in all the countries,
23 including Agent Anticev who is in the interview, suddenly
24 knows about every piece of paper from the Mercy search and the
25 Witu search and the Ilala search and all those other searches
5999
1 at once? No.
2 The blast cone. We were told that, where is the
3 expert testimony on the blast cone? That's Mr. Karas twisting
4 it. I submit to you the expert testimony on the blast cone is
5 right back here. The expert testimony on Odeh's state of mind
6 is what Odeh said. That's what he thought, that's how it
7 worked.
8 Don Sachtleben didn't think it worked that way. He
9 couldn't give expert testimony about the wrong physics. But
10 the wrong physics is what Odeh thought about. That's his
11 blast physics and that's on the sketch in his house.
12 Finally, my favorite argument on the sketch which
13 let's you know they're fighting way too hard: Government
14 Exhibit 253. Mr. Wilford said, you know what? They turned it
15 around. The government turned the sketch around, because,
16 look, it's facing that way. And look in the book, it's facing
17 this way. Wow. Who did that?
18 Well, let me tell you something. This looks pretty darn
19 incriminating, doesn't it? Because you've got the sketch
20 thing facing that way and it lines up with the generator.
21 Watch this: It's still incriminating. It doesn't change the
22 position. This sketch is facing down that way. The generator
23 is there. You look on the screen, it's the same thing. This
24 is the blast cone, the bomb, whatever you want to call it, the
25 force of the bomb being directed at what Odeh thinks is the
6000
1 right building. And these circles are the generators of the
2 right building, the embassy.
3 I submit to you that when you look at the case
4 against Mohamed Sadeek Odeh, it is not a case where there's
5 overwhelming evidence that he is there, that he's a member of
6 the group and he knows everything, and it's compounded by a
7 conspiracy by al Qaeda to drag him to the hotel and have him
8 hang around and leave under a fake name, with a conspiracy by
9 the lab and a conspiracy by the prosecutors to twist things,
10 what I submit to you is at some point your common sense, your
11 reason, your experience kicks in, it hits the evidence and it
12 says, you know what? He did it.
13 He wanted to bomb that building. He made a conscious
14 decision to participate. He sat and discussed with other al
15 Qaeda members how to do it. The Hilltop Hotel wasn't a
16 layover on the travel to Pakistan to confer, it was place to
17 go, a place to go where you can help. It was a place to go
18 where you could help under a fake name and get out of town,
19 and the only thing wrong with what he did was he didn't make
20 it all the way to Afghanistan, and now, after the fact, after
21 putting those Kenyans at risk, he's upset that the plan didn't
22 work, that it hit the right building, but it also hit the
23 wrong building.
24 And it's too late for sorry now. He made that decision to
25 participate. He made a decision to put those Kenyans at risk.
6001
1 He made the decision to kill Americans. And I submit to you,
2 look at the evidence as a whole picture: A person trained in
3 architecture and engineering, a person trained in explosives,
4 trained in intelligence, who went to the al Qaeda camps and
5 belonged to the group since 1992.
6 And remember, you learned from the Somalia proof the most
7 important thing: Al Qaeda is against America at least as
8 early as 1993. And he's with the group and he stays with the
9 group, and he stays with the group past August 1996 when the
10 war becomes public, not when it began. When Bin Laden
11 declares the public war, he doesn't drop out. And he stays
12 past February 1998 when the war is against American civilians
13 and military. He stays in.
14 He stays in the war in 1997. They're working on a
15 budget -- not for integration in Somalia, but for artillery
16 and explosives. He stays with the group when he hears from
17 Mustafa Fadhil that they're discussing whether an operation in
18 Kenya is a good thing or a bad thing. That sketch is in his
19 house. Mustafa Fadhil went there. I submit to you they
20 discussed it, they planned it, and that's why he went to
21 Nairobi.
22 He stayed in al Qaeda when he was angry in September
23 1997. And don't forget that tape they don't want you to
24 remember, the tape from Witu where he tells his wife, after
25 American activity in Kenya in August 1997, "They have won this
6002
1 time. We will get them back 20-fold. Time, thinking,
2 preparation."
3 He stays. He makes a conscious decision to
4 participate. He helps plan where the bomb truck should go.
5 He goes to Nairobi. He knows, as a Kenyan with a Kenyan I.D.
6 card, he doesn't want his name on that registry. He checks
7 into the hotel. He admits he knows that he's told that it's
8 urgent he leave, that an operation is coming, a big operation
9 is coming, told to him by Mustafa Fadhil, the person he was
10 talking to. He even admits he knows the U.S. Navy is going to
11 retaliate.
12 He gets out, according to the plan, 24 hours
13 beforehand. He sees his bomb trainer/instructor in the hotel.
14 He wasn't surprised. He knew this was a bombing. Maybe he
15 didn't know which bomb maker would show up. He even admits he
16 walks out on Moi Avenue on the Wednesday but doesn't know
17 where the embassy is.
18 He sees Saleh and Harun going out for a small job, but
19 says, "I know it wasn't shopping," and then he makes his
20 decision to get out of town. He flees. He's caught with a
21 fake passport and TNT and PETN. You heard that PETN is used
22 in detonators. It's not from grinding. You don't grind a
23 detonator. Detonators are to go pop. It's not on that
24 grinder in Dar es Salaam.
25 I submit to you that the evidence taken together is of
6003
1 such a convincing character, it's proof beyond a reasonable
2 doubt that he did it.
3 Let's talk about Mr. al-'Owhali. When we talk about
4 Mr. al-'Owhali I want to focus on law, justice and morality.
5 I submit to you we don't agree that you have to check one or
6 the other.
7 I'm going to focus on three types of arguments with regard
8 to Mr. al-'Owhali: The arguments Mr. Cohn made about the
9 conspiracy, the arguments Mr. Cohn made about voluntariness,
10 and the arguments he made about what other evidence in the
11 case there is besides the statement.
12 The conspiracy arguments: Mr. Cohn says he wasn't
13 part of that conspiracy in that indictment. That is wrong.
14 What did he know? He was, I don't know how old, 16, 19,
15 whatever that first date is. The judge will tell you the time
16 frame -- if you join the conspiracy, you don't have to join
17 when the conspiracy starts. If Bin Laden starts in '92, you
18 can join in '94, '96, '97, '98, you can join on August 6th of
19 1998 once you meet the requirements: You agree you are going
20 to participate in a plot to kill Americans.
21 And in looking at whether he joined the conspiracy,
22 remember, actions speak louder than words. In this case, from
23 Al-'Owhali you've got both. You've got actions, you've got
24 words.
25 The action, simple: He blew up the embassy. The
6004
1 words: He told you he did it and he told you why. I don't
2 think we should overlook how specifically he told us.
3 I'm going to read from the transcript page 2020 with
4 regard to Mr. al-'Owhali. This is the examination of Agent
5 Gaudin:
6 "Q. Did Saleh say anything about why the embassy in Nairobi
7 was targeted?
8 "A. Al-'Owhali explained to me that there were several
9 reasons for picking -- explained to him through Saleh there
10 were several reasons why the embassy in Nairobi was picked.
11 "First, there was a large American presence at the U.S.
12 Embassy in Nairobi; that the ambassador of the U.S. Embassy
13 was a female and if the bomb resulted in her being killed, it
14 would further the publicity for the bombing. Also, that there
15 were embassy personnel in Nairobi who were responsible for
16 work in the Country of Sudan. There was also a number of
17 Christian missionaries at the embassy in Nairobi; and, lastly,
18 that it was what Al-'Owhali explained as ease of access to the
19 embassy. It was an easy target.
20 "Q. Did Mr. al-'Owhali discuss any other targets with Saleh
21 at this time?
22 "A. Al-'Owhali explained to me, explained to me that there
23 were -- there's a number of different targets. He doesn't
24 know where they all are, but they're in the planning stages.
25 "Al-'Owhali discussed with Saleh when, you know, are there
6005
1 targets in the United States that we can attack? Saleh had
2 explained to him there are targets in the U.S. that we could
3 hit, but things aren't ready yet. We don't have everything
4 prepared to do that yet. First, we must -- Saleh explains to
5 Al-'Owhali that we have to have many attacks outside the
6 United States and this will weaken you, the U.S., and make way
7 for our ability to strike within the United States."
8 And listen to the next part when you think back to that
9 indictment section he posed about, well, was he trying to kill
10 soldiers? Was he trying to kill people in the embassies? On
11 the bottom of 2021:
12 "Q. Did Mr. al-'Owhali tell you about anything that he
13 learned about targets during his training camps in
14 Afghanistan?
15 "A. Al-'Owhali explained to me during his training they
16 emphasized priorities of attacks, three of those to be
17 military bases, U.S. missions or diplomatic posts, and
18 kidnapping ambassadors."
19 And just skipping ahead, make sure you understand exactly
20 what the scope of the conspiracy that Mr. al-'Owhali knew he
21 wanted to be part of, 2023:
22 "Q. Agent Gaudin, you testified, I believe, as to certain
23 information that Mr. al-'Owhali learned about targets while he
24 was in the training camps in Afghanistan. Did he tell you
25 anything about why embassies are specifically targeted?
6006
1 "A. In addition to telling me the types of targets, he also
2 explained that hitting embassies achieves certain objectives
3 that he was instructed or that he was taught at the camps.
4 And by hitting an embassy, the objectives are that you would
5 achieve -- would be you hit the ambassador by hitting the
6 embassy. You would also -- also, an objective would be the
7 military attache, the press attache, and what Al-'Owhali
8 described as, most importantly, the intelligence officers at
9 the embassy."
10 Mr. al-'Owhali is a bright man. He went to those camps
11 with a brain, well-educated, smart, fully capable of free
12 choice, and he listened and he remembered, he understood and
13 he agreed. He understood this is war against America,
14 military, civilian, embassies, whatever it takes, he's going
15 to do.
16 And remember, he wouldn't join al Qaeda because he wanted
17 to have a military mission. He didn't want to be the guy
18 doing paperwork. He wanted to kill. And you know what else?
19 His own statement told you that when he left Afghanistan to
20 Africa, all he was told was that it was an American target.
21 He didn't learn it was an embassy until he got to Africa.
22 What better proof than his goal, his agreement is, okay, it's
23 Americans, I'll kill them.
24 Mr. Cohn described Al-'Owhali as a most minor participant.
25 Those are the words, "most minor participant." This man over
6007
1 here, not only did he travel to Africa knowing that it was a
2 U.S. target, that's all he needed to know. Not only did he
3 want to kill, but he walked -- imagine him walking two days
4 before the bombing, he walks up to the embassy, broad
5 daylight, for surveillance.
6 What does he see in the building? People, downtown
7 Nairobi crowded. Did that stop him? No. Then, this man
8 right here is in a truck. The truck drives down the street,
9 up into the embassy. He throws the flash bang grenades. And
10 what do they do? They bring all those people to a window, a
11 window that gets blown out. The lucky are blinded. The
12 unlucky are dead. And as he turned his back to the bomb so he
13 can save himself, the Ufundi House is crumbled.
14 That carnage lays at his feet. That is not the most minor
15 participant.
16 Let's keep it simple: Conspiracy to kill Americans is an
17 agreement. You agree to kill. He agreed. He killed. End of
18 story.
19 Let's talk about the voluntariness of the statement taken
20 by Agent Gaudin from Mr. al-'Owhali. You've had it thrown out
21 there he is in mortal fear of his life. No evidence of that.
22 We've heard about prison conditions. We heard about the
23 jail conditions of Kherchtou. He wasn't in the jail with
24 Al-'Owhali. He wasn't with the Americans or with the FBI and
25 didn't have Agent Gaudin coming by to see if he had milk.
6008
1 He's with some other people.
2 Now, Kherchtou, you heard, all right, he had to pee in a
3 bucket. He wasn't washing. What did you learn about
4 Al-'Owhali? Well, first of all, context. Al-'Owhali's been
5 training in Afghanistan, fighting the Taliban in the
6 mountains, and he comes to Nairobi to kill and to die. When
7 he is there in Nairobi, he expected to be dead. He walked
8 into a bomb scene. The bomb goes off. He sees it. He goes
9 to the hospital along with his victims.
10 I submit to you the evidence shows he didn't care. Do you
11 think if he didn't have a shower, that's going to overbear his
12 will? When he was with Agent Gaudin, Agent Gaudin told you he
13 took him to the bathroom. He took him to the bathroom so he
14 could wash to pray. And Agent Gaudin was alone with him.
15 You know what else Agent Gaudin told you? A couple of
16 remarkable things. Al-'Owhali never once complained. He
17 never said anyone was threatening me, anyone was ever hurting
18 me. You saw the pictures. Those scratches aren't being from
19 being beaten, those injuries, the only injuries he had, were
20 from the bomb he set of. Those cuts, that's from his running,
21 running away from the bomb. Let it kill someone else, not me.
22 I'm scratched.
23 Agent Gaudin told you another thing: No complaints. No
24 handcuffs. Can you imagine? The whole time that Agent Gaudin
25 was with him, that whole time, he never saw him in handcuffs
6009
1 until he left. Those are the conditions that struck fear into
2 Al-'Owhali's heart.
3 Mr. Cohn wanted to take a shot at Agent Gaudin and said,
4 you saw a picture, you saw a picture in a jail cell. That was
5 his trophy picture because he cracked the case. A little
6 problem with that: You learned he gave a statement on August
7 22nd, and the photo was taken the morning before. Don't let
8 that get in the way. We'll come back to how Mr. Cohn would
9 like to treat Agent Gaudin.
10 You have heard about the Kenyan handmaidens. What are
11 they doing? There ain't no bruises. There were no complaints
12 from Al-'Owhali. Why didn't we call them? Okay. Hi, sir.
13 Were you working in the jail? Did you beat Al-'Owhali? No.
14 What Mr. Cohn would say, maybe it was someone else.
15 What, do we call 350 people to say we didn't beat him?
16 Mr. Cohn will do what he did with Agent Gaudin. He lied. Do
17 what he did to Muwaka Mula. He lied. I submit to you the
18 agent is sitting there, talking to him alone, and he never
19 once says he's hurt.
20 The translator. You didn't hear from the translator. I
21 submit to you, you think about the statement. How bad could
22 the translator have been? He got it right. He's given him
23 the phone number in Yemen. I called 00578 in Yemen. Lo and
24 behold, checked the phone records, he's calling 00578 in
25 Yemen. Says he went to the M.P. Shah Hospital. Yep, he got
6010
1 it. Money transfer house.
2 And you know what? Look at the form. Look at the form
3 that Al-'Owhali signed. You can look at it. It's in
4 evidence, Government Exhibit 557. What does he say before he
5 gives a statement?
6 I'll back up a moment. Why did he give a statement?
7 Well, it's in evidence. He gives a statement after he is
8 picked out in the lineup by Muwaka Mula. He walks up, "That's
9 the guy."
10 He knows he's been picked out. He's shown the pictures of
11 43 Runda Estates. He now knows they got the bomb factory.
12 That thing is going to light up like a Christmas tree. And
13 they got the phone records. They showed him the phone
14 records. And what do the phone records from Runda show? His
15 name, or his fake name, Khalid Saleh. Khalid Saleh calling
16 that number in Yemen, 00578, the number in Yemen in touch with
17 the satellite phone. And you know what? It's Khalid Saleh
18 calling that number in Yemen an hour before the bombing,
19 checking in before mass murder, 9:30 in the morning.
20 So as he's sitting there in Nairobi, he says, well, I got
21 my fake name calling up Yemen from the place, the bomb
22 factory. They got pictures of the bomb factory and I got
23 picked out in the lineup. And you know what? When he signs
24 the form, what does he want? I don't know what word to use,
25 but he's got the gall to -- stronger words we can't use --
6011
1 he's got the gall to make demands.
2 Here it goes, after acknowledging that he was advised of
3 his rights, 557: "I understand that both Kenyan and American
4 authorities are investigating the murder of the various
5 American and Kenyan victims in and around the United States
6 Embassy in Nairobi. I have a strong preference to have my
7 case tried in the United States court because America is my
8 enemy and Kenya is not.
9 "I would like my statements about what I have done and why
10 I have done it to be aired in public in an American courtroom.
11 I understand that the American authorities who are
12 interviewing me want to know who committed the bombing of the
13 embassy and how it was carried out."
14 He wanted his day in the sun. He wanted to be in an
15 American courtroom with the media there to hear what he did,
16 why he did it, before he talked. He did, and he got it.
17 And you know what? This guy's fearing for his life and
18 he's the one making the demands and now they're going to tell
19 you, sit back and listen. Basically, shut up, stupid. I'm
20 going to tell you what happened, and when I'm done, then you
21 can ask me questions.
22 And you know what? The best proof of that is a defense
23 exhibit. Let's put up Defendant Al-'Owhali Exhibit C on the
24 screen. This is a man who just killed over 200 people, was in
25 the hospital with the victims, saw the people he blew up.
6012
1 There's no Agent Gaudin here. This is the one with the
2 reporter. He thinks he's a champ. Is he in fear of his life
3 or is he just, just brazen, arrogant, in your face, saying,
4 "Hey, America, you're the enemy. I'm going to fight you. I'm
5 going to meet you in court. I want to tell my story."
6 Is his story reliable? It's completely corroborated. He
7 talks about the gun, the .9 millimeter gun he left in the
8 truck, the slide, the slide for the .9 millimeter was found
9 there with the pitting, very close to the bomb and the
10 bullets, the bullets matched and were found in the hospital
11 where he was.
12 What else did he tell you? He told you about the Dihab
13 Shil money, and this checked out. And he told you about the
14 French Embassy. Remember, he said down in Dar there's this
15 other bombing and they had to move the truck around because
16 they didn't want to hit the French Embassy. And lo and
17 behold, Ambassador Lange comes out and says after the bombing,
18 I come out, I go across the courtyard, I shake hands with the
19 French ambassador.
20 Now, another thing about Al-'Owhali. You would think they
21 want you to think that the only evidence in the case is his
22 confession. I submit to you, very clearly, that there's more
23 than enough evidence, more than enough evidence to convict
24 Al-'Owhali beyond a reasonable doubt without the confession.
25 Strong words, but true.
6013
1 Muwaka Mula. Charles Muwaka Mula who came, the guy who
2 had the stun grenade thrown at him. How many times do you
3 think that happened in his life? Hopefully once. You think
4 he can remember the guy who threw it at him. When he took the
5 stand, you remember your recollection of what he did? I
6 submit to you, you may remember that he sat there and he
7 looked when he was there, looked this way for a long time, and
8 then he slowly started to turn around in his seat during the
9 testimony, and then, when he was called upon, he identified
10 him.
11 And what does Mr. Cohn do? Well, he calls it the worst
12 I.D. witness in the history of the Western world, which fits
13 if you make up that he cheated. He said, well, there's only
14 six bearded guys in the courtroom. Okay. Why would you have
15 to assume that Al-'Owhali would have to be bearded in the
16 courtroom? He says, well, someone told him, implies someone
17 told him where he sat.
18 Let's look at the record, quote from 2155:
19 "Q. And they told you that the suspect would be in the
20 lineup, yes, in the parade, right?
21 "A. No."
22 2156:
23 "Q. Okay. Well, since Friday, did anybody tell you where the
24 person you identified would be sitting in this courtroom so
25 that you could identify him?
6014
1 "A. No."
2 But in the ultimate cheap shot in the trial, he just
3 implies it must be that guy Gaudin. Or, it wasn't the people
4 at the table. Somebody told him who did it. There are plenty
5 of candidates, maybe someone we've talked a lot about. Didn't
6 even bring up his name, just implied that an FBI agent
7 obstructed justice by telling a witness something that the
8 witness lied about.
9 I submit to you he has no burden, but if he thinks that,
10 ask the man the question. He's available. He was on the
11 witness stand. Ask him about it.
12 What is the other evidence in this case? Besides Muwaka
13 Mula, here's what you have. You have TNT and PETN on
14 Al-'Owhali's clothes. You have a receipt in his pocket,
15 Khalid Saleh, when he is arrested, the fake name, the receipt
16 to the M.P. Shah Hospital where they find those bullets that
17 match the gun.
18 You have his name, Khalid Saleh, tied to the travel
19 records coming in. You have his name tied to the calls placed
20 in the bomb factory, 43 Runda; the name tied to the call on
21 August 7th, 1998 at 9:30 to Yemen.
22 You have him picking up the money from the wire service,
23 and you have not only Muwaka Mula putting him at the scene of
24 the crime, but you also have Harun's briefcase in the Comoros
25 Islands. Remember when they searched the house of Harun, the
6015
1 guy who was all over the bombing? His clothes test positive
2 for TNT and PETN between his clothing and his shoes.
3 They find Al-'Owhali's tickets under the fake name Khalid
4 Saleh with Harun's stuff with Al-'Owhali's fingerprint on it.
5 They find the passport for Al-'Owhali and for Azzam, who's
6 dead, killed himself along with the others.
7 I submit to you that Mr. Cohn would like you to think that
8 maybe there's some other conspiracies we should also have
9 charged. The charges in the indictment have been proven.
10 Mr. al-'Owhali had a brain, he had knowledge, he had an
11 understanding of the scope of the agreement, the agreement to
12 kill. He agreed. He killed.
13 Let's turn to Khalfan Khamis Mohamed. Mr. Ruhnke on
14 behest of Mohamed also talked about the conspiracy. I submit
15 to you two things: First, listen to the judge as to what he
16 says about conspiracy, but one thing I submit he will tell you
17 is that each member doesn't have to know every other member.
18 Each member does not have to know every other detail. Each
19 member doesn't have to have joined at the same time.
20 And I submit to you, one thing that should be crystal
21 clear is that Khalfan Khamis Mohamed knew what the plan was,
22 he knew the plan was to kill Americans, and he knew that the
23 target was the embassy. I'm going to walk through that in a
24 moment when we get to the time line, because the timeline that
25 Mr. Ruhnke went through yesterday, there are some things that,
6016
1 I submit, in your mind you should add that paint a fuller
2 picture.
3 First of all, Mr. Ruhnke referred several times to the
4 manual labor, Khalfan Mohamed was doing manual labor, always
5 under the supervision of someone else. He just had the sense
6 of a blue collar guy just showing up, doing his job, and
7 somebody else is telling him what to do.
8 Okay, what was the manual labor? The manual labor was
9 grinding TNT. It was loading TNT and explosives, a bomb onto
10 a truck. It's not manual labor, it's making a bomb.
11
12 (Continued on next page)
13
14
15
16
17
18
19
20
21
22
23
24
25
6017
1 MR. FITZGERALD: (Continuing) You also heard, and
2 this is important, you heard Mr. Ruhnke say that they had to
3 tell him that it was TNT. Didn't that sound like a pathetic
4 bomber, they had to tell him it was TNT? I submit to you, if
5 you look at the record, if you look at the report, which is in
6 evidence, they had to tell him it was TNT, they told him it
7 was TNT because the TNT came, as he said, in a closed bag that
8 was stitched up. It's inside a closed bag. Not knowing
9 what's in the bag doesn't mean you don't know what TNT is. In
10 fact, if you read the rest of the statement, Khalfan Khamis
11 Mohamed says, he admits he went to Afghanistan and got
12 explosives training. He was trained in how to join wires and
13 do detonators. He knows what TNT is. He just may not know
14 from a closed, stitched, non-see-through bag that it is in the
15 bag at the time. And he certainly knew what TNT was when he
16 grinded it through the grinder for the bomb and loaded it up.
17 If there is any doubt that Khalfan Khamis Mohamed
18 didn't know what was going on, I will show you a couple of
19 sections. Page 20 of his report, KKM stated that all the
20 members of the group -- he is referring to the people in the
21 Dar es Salaam bombing, he said he didn't know about Nairobi.
22 KKM stated that all the members of the group were aware of the
23 plan to bomb the American Embassy in Dar es Salaam. KKM
24 stated that no one in the group was fooled or tricked into
25 being involved. KKM stated that this bombing could not have
6018
1 been done without the entire group's knowledge. He also said
2 not only did he know the plan, he knew the target.
3 I suggest if you put in your time line, five days before
4 the bombing, August 7, KKM was told the target. Take his word
5 for that, not mine.
6 Look at the report, page 10. Quote, KKM stated that when
7 he moved to the Ilala house -- the bottom paragraph -- he knew
8 that a bomb was planned, not because of what he had been told
9 at that point but because he had seen the TNT and other things
10 associated with the bombing. KKM stated that initially he did
11 not know what was going to be bombed, where the bombing would
12 take place or when the bombing would occur. Before Hussein --
13 this guy Hussein, Mustafa Fadhl -- before Hussein left to go
14 to Kenya, approximately five days before the bombing, however,
15 he told KKM that there was going to be a bomb at the American
16 Embassy in Dar es Salaam, Tanzania. Hussein told him at that
17 time that the bombing was going to occur sometime over the
18 weekend of August 7, 1998, but did not inform him of the
19 specific time. KKM stated that Ahmed the driver told him on
20 Thursday, August 6, that the bombing would occur at 10 a.m. on
21 Friday, August 7, 1998. KKM stated that he did not know why
22 10 a.m. was chosen as the time for the bombing to happen and
23 he never asked why that time was chosen. KKM stated that the
24 time must have been important but he did not know the reason.
25 KKM stated that Hussein often spoke with a person in Kenya for
6019
1 plans. He stated that he really did not know anyone involved
2 in the bombing other than those in the group around him. Goes
3 on to say that he knew nothing about the bombing in Nairobi
4 until he saw it reported on television. OK, he didn't know
5 about the Nairobi bombing. He is not charged with the Nairobi
6 bombing. But he says I knew, I was told, I was told five days
7 before, he saw the TNT, he grinded it. He did it.
8 You know what's more important? More important to
9 put on the time line? Later on you find out that when the
10 bomb's going off he's praying. He's praying and hoping things
11 go well, and when he hears that the bombing happened, he's
12 happy.
13 And you know what else? Put this in the time line for
14 October 1999, because remember, when he is interviewed it's
15 more than a year, more than a year after the bombing. And
16 what does he say? Think about it. Is he someone that says
17 hey, what did I do, I killed 11 men, 11 people are dead
18 because of what I did? What do we hear? Page 32 of his
19 report, under KKM's motivation. KKM stated that he was not
20 sorry for the fact that Tanzanians were killed, and he
21 described it as part of the business. He goes on to say that
22 KKM stated that Allah would take care of those Tanzanians who
23 were killed.
24 Below, skipping two sentences, KKM was asked whether he
25 considered this bomb to be a successful operation, and he
6020
1 stated that it was successful because the bomb worked. It
2 sent a message to America and it kept Americans busy
3 investigating it. KKM stated he would rather kill only
4 Americans.
5 Next paragraph, KKM stated that if he had not been
6 caught by the police he would have done it again. KKM
7 specifically stated that he would kill Americans and he would
8 help with another bombing against Americans. KKM also stated
9 that if he was ever released from custody he would kill
10 Americans and help with another bombing. KKM stated that he
11 hopes that others will carry on now that he is caught, and
12 stated that he would still carry on if he could.
13 Down below, scope of the conspiracy: KKM stated he
14 must do anything necessary to get the American soldiers out of
15 Saudi Arabia and that it is his duty to kill these soldiers.
16 KKM stated that because it was very difficult to get to the
17 soldiers, his group targets and attacks the United States
18 government to include American embassies and other United
19 States government buildings.
20 He's had a year to think. Eleven people killed by
21 him, 11 people he wasn't even targeting, and after a year he
22 says I ain't sorry, I wish I had killed more Americans. This
23 is not someone who accidentally got involved in a bombing. He
24 made a conscious determination that he had agreed to kill
25 Americans. Bombing the embassy was a way to do it and he did
6021
1 it. The key evidence, certainly the confession is important
2 but I submit, without the confession you could still convict
3 Khalfan Khamis Mohamed beyond a reasonable doubt.
4 We heard about Mr. Ruhnke bringing up some problems
5 about Agent Perkins' notes yesterday, some discrepancies. I
6 submit two things. He has no burden to do anything but he had
7 Agent Perkins on the stand. He could have asked in front of
8 you and saw what he said. Remember when Mr. Stern implied the
9 thing about killing Americans wasn't in her notes.
10 Transcript, Stern: You said in your report that Mr. Mohamed
11 said if he hadn't been caught by the police he would have done
12 it again, specifically stated that he would have killed
13 Americans and would have helped with another bombing if ever
14 released from custody. Would kill Americans and help with
15 another bombing. Then he says where is it, OK, page 77, it
16 says here, KK stated if released from custody or never caught
17 would do it again, would kill Americans, would do bomb. That,
18 I submit to you, is why no further questions were asked of
19 Agent Perkins. It is in her report, it's in her notes.
20 One other thing. You also heard argument that one of
21 the reasons there is evidence against K.K. Mohammed is that he
22 talked, and without that there would be precious little to
23 link him to the bombing. Not true. Go back to the
24 cross-examination of Agent Perkins. Mr. Sterns said you knew
25 an awful lot of information when you talked to him, didn't
6022
1 you? He went through different things K.K. Mohammed already
2 said, you knew that, you had already. Remember, they were
3 there to arrest Mr. Mohamed. They had done an investigation.
4 He didn't roll down the street.
5 What does the independent evidence show apart from his
6 confession? The evidence places him at 15 Amani Street.
7 Passport photos there, passport application with his
8 fingerprints on it. Also, there is a detonator. The other
9 evidence places him, different witnesses place him at 22
10 Kidugalo Street with Mustafa Fadhl, this guy he calls Hussein.
11 The items in there, the carpet you saw, the reddish carpet and
12 the foam, they test positive for explosives residue. The
13 evidence shows he bought the Suzuki with Fahad, a bomber, the
14 person you saw fleeing on the plane from Nairobi with Mohamed
15 Odeh. The evidence shows, proves he rented the bomb factory
16 from the broker, from his nephew, from the lease. And the
17 bomb factory is the bomb factory. Explosives test, light to
18 place them up like a Christmas tree. In there is that
19 blasting cap and the detonator, and the razor with the DNA of
20 Ahmed the German, the suicide bomber from Dar es Salaam.
21 The nephew tells you that he gave him that grinder,
22 the grinder that tested positive for TNT, not PETN. You grind
23 TNT. PETN you don't grind. It's a detonator. He gave it to
24 him and said clean it, it's been used for unclean things.
25 There is something Mr. Ruhnke said that I think we
6023
1 need to address. It was a comment he made and I want to quote
2 it accurately. It was yesterday, at 5873. Thanks. I told
3 Mr. Karas I'd lose it, bring an extra. He said this: As the
4 world turns, as events go, if Khalfan Mohamed had left to go
5 to London to start a new life, probably the embassy would have
6 been bombed on August 7, 1998 anyway, and that would not have
7 changed. But everything would have changed for him and he
8 would not be sitting here facing your judgment. But that's
9 not how the world turned.
10 Two comments on that. First, he assumes it would
11 have happened anyway. Let us not get to the point where we
12 assume that if someone says I'm not participating in mass
13 murder that there is just someone else there to do it. Let us
14 not be numb. We talk about the 18th century, we talk about
15 the 19th century, we talk about the 20th century. In the 21st
16 century, let's keep the fact in mind that you have a mind, you
17 have a brain, you have choices, and you decide what you do.
18 You are accountable for your actions. As the world turns.
19 This is not like the weather. This wasn't an event that
20 happened to him. This was a bombing he did to others.
21 I submit to you, the evidence is clear, the evidence is
22 crystal clear that he knew the design was to kill Americans.
23 He knew what the TNT was for. He was told what the target
24 was. He did it. He made a decision. He didn't flee to
25 London, he fled to South Africa. He turned the world, the
6024
1 world didn't turn him. And you know what, a year later he is
2 not saying gee, if only I had gone to London. He is saying
3 yeah, I did it, I'm glad I did it, I'm glad, I wish more
4 Americans had died, I don't care that Tanzanians died and I
5 would do it again. That shows you beyond a reasonable doubt
6 that he is guilty.
7 I told you at the beginning I would talk about El Hage,
8 that I would talk to you about Odeh, I would talk to you about
9 Al-'Owhali, I would talk about Khalfan Khamis Mohamed, and
10 then I would talk to you about someone you have had heard
11 precious little about. That is Roselyn Wanjiku Mwangi.
12 Roselyn Wanjiku Mwangi. You may not remember that name. She
13 was not a witness. She could not be a witness. She is a
14 victim in this case.
15 This trial is about her murder. The pathetic part is, so
16 many people got killed, so much human carnage. Roselyn
17 Wanjiku Mwangi. She is Count No. 123 in the indictment. You
18 have to get to page 45 of the indictment to see her name. But
19 she is not just a name. She is not just a count. It is not a
20 name on a list. It's a person.
21 You heard a little bit about the person. I want to talk
22 about her as a symbol, as a symbol because there were a lot of
23 people who were killed. A lot of people were killed in
24 Nairobi and in Dar es Salaam. You heard about that man that
25 Lizzie Slater talked about lying there, burned and dying, so
6025
1 bad she wished he would hurry up and die. Rosie -- that's who
2 Roselyn is -- Rosie you heard about from Sammy Nganga. He was
3 in Ufundi House, what Odeh calls the wrong building, next to
4 the embassy, the right building. Ufundi House that Sammy
5 Nganga had his back to as Odeh sprinted away to save his life.
6 MR. WILFORD: Objection.
7 MR. FITZGERALD: I apologize. Mohamed Al-'Owhali
8 sprinted away from. You know what, Sammy Nganga, when the
9 bomb went off, was buried beneath the rubble. He was the guy
10 with the injured leg buried beneath the rubble, and he stayed
11 there for two days. He is in there in the darkness with the
12 smell, with the sounds. One of the sounds is Rosie's voice,
13 because she is buried there too. The searches come and they
14 look for Rosie and look for Sammy. They have a light and they
15 are looking with the light to find them. They save Sammy and
16 he says they'll be back in two hours for you. They don't make
17 it back in time.
18 Rosie dies. She is Count 123, page 45. Her life was
19 lost. Her life was taken from her.
20 Now, I submit to you, this trial has been a search, a
21 search through the rubble pile of the evidence, for truth and
22 for justice, for those that did this, those that drove a truck
23 or rode in a truck right into the embassy to bomb people,
24 those who gave the advice as to where to place the bomb to hit
25 the right building, those who helped set up the plot, the
6026
1 terror cell in East Africa so it could operate, so people
2 could do their work and get out of town, and those who grind
3 TNT and drive a truck into a different embassy moments later
4 and kill, and have no regrets.
5 I submit to you it's been a long journey. It takes
6 work to go through the rubble pile of evidence, because we
7 have to. We have to uphold justice. We have to work through
8 it. We have to prove guilt beyond a reasonable doubt. I
9 submit to you, we have taken that journey, we have proved it,
10 we are there. Now it's time for light, light of the truth to
11 shine through and give Rosie one thing: Justice. Thank you.
12 THE COURT: Thank you, Mr. Fitzgerald. We will take
13 a morning recess.
14 (Jury excused)
15 THE COURT: We will place on every juror's seat three
16 documents: The indictment, the court's charge, and the
17 special verdict form. I received a note from a juror: "Your
18 Honor, I apologize in advance if my request is a major
19 inconvenience. Is it possible for us to adjourn at 3:30 on
20 Friday?" Then she goes on to detail a birthday and a surprise
21 party which her husband has told her that her children are
22 planning for her.
23 (Laughter)
24 THE COURT: It gives some reflection of the impact on
25 which jury service impacts on people's everyday lives. Unless
6027
1 there is objection, we will adjourn early on Friday.
2 MR. RICCO: No objection. Can we adjourn to the back
3 to be heard on one brief matter?
4 MR. COHN: And I would like to be heard here.
5 During Mr. Fitzgerald's rebuttal he mentioned for the
6 second time during summations, the first time during
7 Mr. Karas's summation, certain material that was shown to
8 Mr. Al-'Owhali that caused him to confess, and I think what he
9 said was pictures about Runda Estates and something about
10 telephone numbers. We searched the record both times and
11 cannot find that. If the government would favor us with a
12 record reference, we won't make the motion that you instruct
13 the jury that it never happened and that it be stricken.
14 MR. FITZGERALD: We will do that.
15 THE COURT: Very well. There was some other record
16 inference?
17 MR. WILFORD: Yes, your Honor, page 5934.
18 THE COURT: What does it say?
19 MR. WILFORD: The portion of the transcript.
20 MR. BAUGH: Excuse me. We are advised the
21 translators cannot hear.
22 MR. WILFORD: We will speak loudly.
23 THE COURT: You can do that?
24 MR. WILFORD: Only when I have the microphone. Your
25 Honor, it's a portion of the transcript where Mr. Fitzgerald
6028
1 is talking about an argument of Mr. Schmidt in terms of being
2 a facilitator and what was needed to succeed as a facilitator.
3 Then he goes on to say, particularly at line 12, Kherchtou
4 explained it to you. You don't have to shoot the gun if you
5 are helping someone else you know is going to do it. I think
6 that is an oblique reference that Kherchtou pled guilty to the
7 activities.
8 THE COURT: Overruled.
9 MR. RICCO: Your Honor, I might as well raise it
10 since we are here. I only have one point with respect to Mr.
11 Fitzgerald's summation, and that was his explanation to the
12 jury of what PETN is -- they can't hear? My only objection is
13 to what Mr. Fitzgerald said PETN is and how it was used in
14 connection with this case. He said it was only used in
15 connection with detonator caps and explaining the role of
16 Mohamed Odeh. But the transcripts in the case said at page
17 2483, the testimony of Kelly Mount, the question is, can you
18 tell us whether or not PETN is a high explosive? Answer, PETN
19 is also a high explosive, yes. Question, do you know what
20 kind of use PETN is in connection with explosives? Answer, it
21 has several uses. It may be found in blasting caps, it can be
22 used in detonator coils, and it can be used as an explosive in
23 and of itself.
24 Maybe I misunderstood Mr. Fitzgerald. Maybe he said it
25 can be used for other purposes. I didn't hear that and I
6029
1 would like to have an opportunity to look at the record. If
2 he did say to be used in other connections, fine. But if he
3 is making a representation to the jury that the only way PETN
4 is used, it's not mixed with TNT, I heard him say that, and it
5 is only used for detonator caps, that is a mischaracterization
6 of the record that should be corrected.
7 THE COURT: Why don't I take a recess, during which
8 time we will do the distributions, and having consulted with
9 the record we will take up these matters before the jury comes
10 back in.
11 (Recess)
12 THE COURT: With respect to the issue raised by Mr.
13 Cohn, I understand reference to the record has satisfied you
14 and the objection is withdrawn.
15 MR. COHN: The record reflects that a question about
16 telephone numbers and the photos of the house was asked.
17 MR. FITZGERALD: On the other matter, Judge, I think
18 it was fair argument to point out that with regard to the
19 grinder in Dar es Salaam, first Kelly Mount said it could be
20 used for a detonator and Mr. Ricco correctly described her
21 testimony that you could use it for a detonator or an
22 explosive. In this case in Dar es Salaam, the grinder was
23 tested and it had TNT but not PETN. I think it is a fair
24 conclusion to say that the PETN is used as a detonator. I
25 didn't say it was only used as a detonator and I think it is
6030
1 fair argument on the evidence.
2 MR. RICCO: His statement on the record is that PETN
3 is a detonator. That's what he said.
4 THE COURT: I thought it was PETN is not ground.
5 Isn't that the issue?
6 MR. FITZGERALD: I also said it is a detonator. If I
7 misspoke, it is in a detonator.
8 THE COURT: What would you have me do?
9 MR. RICCO: I would have the court instruct the jury
10 that there was testimony in this case that PETN is also a high
11 explosive. It can be used in detonating coils, it can be used
12 as an explosive in and of itself, which is the testimony in
13 this case.
14 THE COURT: But that would only be part of the story.
15 The other part of the story is that PETN was not found on the
16 grinder.
17 MR. RICCO: That's right. PETN was also found in the
18 room where the grinder was. That's beside the point. I am
19 not raising it, your Honor, to connect it to the grinder.
20 THE COURT: You want the jury to be told that the
21 testimony indicates that PETN may be used --
22 MR. RICCO: Judge, the testimony was PETN is also a
23 high explosive. It may be found in blasting caps. It can be
24 used --
25 THE COURT: Let's keep it very short and very simple.
6031
1 MR. RICCO: There was testimony that PETN is also a
2 high explosive and it can be used in detonating --
3 THE COURT: Is a high explosive, it is also used in
4 detonators, no PETN was found on the grinder. Yes? Is that
5 all right?
6 MR. FITZGERALD: Judge, my argument is, I remember
7 discussing that you don't grind the PETN, it's like a blasting
8 cap. The argument is that there is no PETN on the grinder. I
9 think that is a fair argument. There is TNT, blasting caps
10 and no PETN in the grinder. Her testimony is that PETN was
11 found in blasting caps. I understand Mr. Ricco would like to
12 argue it differently.
13 MR. RICCO: It is not that I would like to argue it
14 differently. Mr. Fitzgerald said in his remarks to this jury
15 that PETN is not an explosive. There was another reference in
16 addition to the reference we just found in the record, and I
17 just want the record correct.
18 MR. FITZGERALD: Your Honor, I don't believe I stated
19 that PETN --
20 THE COURT: Does the record indicate that it is not
21 ground?
22 MR. FITZGERALD: I argued that it was not ground
23 because the grinder in this case tested negative.
24 THE COURT: PETN is sometimes used as a high
25 explosive. It is also used for detonators and blasting caps.
6032
1 No PETN was found on the grinder. Is that all right?
2 MR. FITZGERALD: Fine.
3 THE COURT: When the verdict is returned, no one will
4 leave the courtroom until the jury is outside the building.
5 (Continued on next page)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6033
1 (Jury present)
2 THE COURT: Ladies and gentlemen, it is now going to
3 be your great pleasure to listen to me for many hours. If at
4 any point anybody wants to take a break, just raise your hand
5 and we will take a break. We will take our usual breaks.
6 Let me first tell you, with respect to PETN, you
7 heard references to that in closing statements. PETN is
8 sometimes used as a high explosive. It is also used for
9 detonators and blasting caps. And no PETN was found in the
10 grinder in this case.
11 Let me also answer some questions that you had about
12 the logistics. Just before the jury begins deliberating,
13 which will probably be tomorrow afternoon, because we are not
14 sitting tomorrow morning, just before that happens the
15 alternates, that is, assuming everyone stays healthy the last
16 four persons in the back row, will be excused temporarily.
17 You will continue to be members of the jury. You will be
18 subject to all the instructions that I have previously given
19 about not reading, listening to or talking with anybody about
20 the case. And you will be on telephone call. The jury
21 clerk's office has both your work and home telephone numbers.
22 When it becomes appropriate and if it becomes appropriate for
23 you to return, we will give you a telephone call and you will
24 have as much notice as possible. And if it will not be
25 necessary for you to return you will also be given a telephone
6034
1 call to let you know that you are off the hook.
2 I am sorry to say that you will not be paid when you
3 do not come to the courthouse. I looked into that rule and
4 there is just nothing I can do about it.
5 Tomorrow we start at 1:00. On Friday we will adjourn
6 at 3:30 to enable a juror to attend a happy event.
7 There are three documents that you found on your
8 seat. One of them is the indictment, and I don't think I will
9 be making too much reference to that where it is necessary
10 that you look at the indictment yourself. So that if you have
11 difficulty juggling all the papers on your lap, the indictment
12 is something that you can put on the floor. The two other
13 documents are the charge to the jury, sometimes referred to as
14 the instructions, and the other is the verdict form, which we
15 will go through during the course of my instructions to you,
16 and that's the road map. That tells you what it is that you
17 will have to answer, and you will see that more clearly as we
18 go through it.
19 I am going to read the charge to you. Sometimes the
20 impulse to deviate from the printed text may be irresistible
21 and I hope I will remember that, and to alert you and to alert
22 the court reporter to the fact that I am doing that. But
23 otherwise I will follow the text.
24 You may wonder why if I am going to do all this
25 orally you have it in writing, and why if you are going to
6035
1 have it in writing I am going to do it orally. The reason for
2 that is, it is very important, and we are not simply going
3 through a ritual. We are going through a process which I hope
4 you will understand. Our own experience and the experts on
5 learning and understanding tell us that some people absorb
6 concepts better when they hear them, when they just listen,
7 and some people absorb them better when they read, and some
8 people prefer to read and listen at the same time. What we
9 are doing is, we are giving you the option. If you would like
10 to put the charge, the written charge on the floor or face
11 down on your lap and just listen, that's fine. If you would
12 like to read along with me, that's fine. If you would like to
13 vary it from time to time, that's OK. There is no right way,
14 there is no wrong way. It is whatever you think will be most
15 useful to you in following and understanding the very
16 important functions that you will soon be called upon to
17 discharge.
18 The charge begins with a table of contents, and that
19 is just to assist you if during your deliberations you want to
20 check a point, and then it begins on page 1, where I welcome
21 back members of the jury. And I join the parties in thanking
22 you for your service thus far.
23 I told you at the outset of the trial before you begin
24 your deliberations I will instruct you on the law in greater
25 detail, and that time has now come.
6036
1 It's been obvious to me and to everyone in this courtroom,
2 you have faithfully discharged your duty to listen carefully
3 and observe each witness who testified. Your interest has
4 never flagged and you have followed the testimony with close
5 attention. I ask that you give me the same careful attention
6 as I instruct you on the law.
7 The following instructions are rather extensive, so
8 let me provide you with a brief overview of what to expect. I
9 will begin by instructing you on the rules generally
10 applicable to all criminal trials. Then I will proceed to
11 review the counts which are charged in the indictment and
12 instruct you on the specific rules of law that you will have
13 to consider in deciding each count. Finally, I will instruct
14 you on the procedures you should follow while conducting your
15 deliberations.
16 Let me encourage you at the outset not to be dismayed
17 or discouraged by the length of these instructions. The
18 instructions are extensive because you are being asked to
19 resolve several different types of charges, and the various
20 elements of each count must be explained separately. I have
21 tried to make these instructions as clear and concise as
22 possible. If you proceed step by step and count by count, you
23 should have no difficulty applying these instructions to help
24 you weigh the evidence and decide the case.
25 For your convenience, there is a table of contents to
6037
1 assist you in locating any particular instructions you may
2 wish to consult, although, as I will instruct you later, no
3 part of the charge should be considered out of context, and
4 the captions are simply a reference and have no other
5 significance.
6 You have now heard all of the evidence in the case as
7 well as the final arguments of the lawyers for the parties.
8 My duty at this point is to instruct you as to the law. It is
9 your duty to accept these instructions of law and apply them
10 to the facts as you determine them, just as it has been my
11 duty to preside over the trial and decide what testimony and
12 evidence are relevant under the law for your consideration.
13 On these legal matters, you must take the law as I
14 give it to you. If any attorney has stated a legal principle
15 different from any that I state to you in my instructions, it
16 is my instructions that you must follow. Moreover, if you
17 find a conflict between the language of my instructions and
18 the indictment, you rely on my instructions.
19 You should not single out any instruction as alone
20 stating the law but you should consider my instructions as a
21 whole when you retire to deliberate in the jury room. You
22 should not any of you be concerned about the wisdom of any
23 rule that I state, regardless of any opinion that you may have
24 as to what the law may be or ought to be. It would violate
25 your sworn duty to base a verdict upon any other view of the
6038
1 law than that which I give you.
2 It is the role of the jury to pass upon and decide
3 the fact issues that are in the case. You the members of the
4 jury are the sole and exclusive judges of the facts. You pass
5 upon the weight of the evidence, you determine the credibility
6 of the witnesses, you resolve such conflicts as there may be
7 in the testimony, and you draw whatever reasonable inferences
8 you decide to draw from the facts as you have determined them.
9 Before we proceed, let me explain to you what an
10 inference is. During the trial you have heard references by
11 the attorneys to the term "inference" and in their arguments
12 they have asked you to infer, on the basis of your reason,
13 experience and common sense, from one or more established
14 facts, the existence of some other fact.
15 An inference is not a suspicion or a guess. It is a
16 reasoned, logical decision to conclude that a disputed fact
17 exists on the basis of another fact which you know exists. An
18 inference is a deduction or conclusion which you, the jury,
19 are permitted to draw -- but not required to draw -- from the
20 facts which have been established by the evidence.
21 In determining the facts, you must rely upon your own
22 recollection of the evidence. What the lawyers have said in
23 their opening statements, in their closing arguments or in
24 their questions or objections is not evidence. In this
25 connection, you should bear in mind that a question put to a
6039
1 witness is never evidence. It is only the answer that is
2 evidence. However, please keep in mind, you are not to
3 consider any answer that I directed you to disregard or that I
4 have directed be stricken from the record. Do not consider
5 such an answer.
6 Nor is anything that I have said during the trial or
7 may say during these instructions about an issue of fact to be
8 substituted for your own independent recollection. What I say
9 is not evidence. Because you are the sole and exclusive
10 judges of the facts, I do not mean to indicate any opinion as
11 to the facts or what your verdict should be. The rulings I
12 have made during the trial are not any indication of my views
13 of what your decision should be as to whether or not the guilt
14 of any defendant has been proven beyond a reasonable doubt.
15 I also ask you to draw no inference from the fact
16 that on occasion -- and I interject, I believe on very rare
17 occasion -- I asked questions of certain witnesses. These
18 questions were only intended for clarification or to expedite
19 matters. They were not intended to suggest any opinions on my
20 part as to either the verdict you should render or whether any
21 particular witness may have been more credible than any other
22 witnesses. You are to expressly understand, the court has no
23 opinion as to the verdict you should render in this case. If
24 there is any difference or contradiction between what any
25 lawyer has said and what you decide the evidence showed, or
6040
1 between anything I may have said or what you decide the
2 evidence showed, it is your view of the evidence, not the
3 lawyers' and not mine, that controls.
4 I may refer to evidence during the course of this
5 charge -- and, I interject, I do so, I think, very little if
6 at all. You have heard days and days of closing argument, and
7 I see no point in reprising all that for you. If I do make
8 any reference to evidence, I will try to be as accurate as
9 possible. If I should make a mistake, it is your recollection
10 and yours alone that governs.
11 As to the facts, you, the members of the jury, are
12 the exclusive judges. I know that you will try the issues
13 that have been presented to you according to the oath which
14 you have taken as jurors in which you promised that you will
15 well and truly try the issues joined in this case and a true
16 verdict render. If you follow your oath and try the issues
17 without fear or prejudice or bias or sympathy, you will arrive
18 at a true and just verdict.
19 You should know that it is the duty of the attorneys
20 on each side of the case to object when the other side offers
21 testimony or other evidence that the attorney believes is not
22 properly admissible. Counsel also have the right and duty to
23 ask the court to make rulings of law and to request
24 conferences at the sidebar or in my robing room out of the
25 hearing of the jury. All such questions of law must be
6041
1 decided by me the court. You should not show any prejudice
2 against an attorney or against an attorney's client because
3 the attorney objected to the admissibility of evidence or
4 asked for a conference out of the hearing of the jury, or
5 asked the court for a ruling on the law.
6 On a related note, you have also noticed throughout
7 the trial that counsel for various defendants have consulted
8 with each other in an effort to facilitate their presentation
9 and to avoid duplication. The fact that defense counsel have
10 consulted and cooperated with each other in the conduct of
11 their defense is not to be considered by you as having any
12 significance with respect to the issues in the case. The
13 issue of each defendant's guilt is personal, and you must make
14 a separate determination as to whether or not each defendant's
15 guilt has been proven beyond a reasonable doubt.
16 In making that judgment, you are to disregard
17 entirely the circumstance that counsel for various defendants
18 have worked together during the trial. Indeed, especially in
19 a case of this length, it would be unusual and wasteful of
20 time and effort if counsel did not share the burdens of the
21 defense and cooperate with the government where possible.
22 In weighing the evidence presented to you, your
23 assessment should not be influenced by how much time the
24 lawyers spent on certain topics or how emphatically or
25 eloquently they spoke about particular issues. Similarly, it
6042
1 is not who introduced an exhibit, or who read a stipulation,
2 or who called a witness, or who did not question a witness
3 that is important, but rather what the exhibit or stipulation
4 or witness testimony proves.
5 One of your principal tasks in deciding the weight
6 and importance of the evidence you have heard is to separate
7 the important from the unimportant. Keep in mind that
8 evidence that took five minutes to present may be as important
9 or more than evidence that took an entire day to present.
10 It's not how much time or effort the lawyers spent on
11 particular evidence but what that evidence proves that is
12 important.
13 While I am on the subject of the lawyers, I imagine
14 that over the last several months you have developed
15 impressions of the lawyers in this case -- largely favorable,
16 I hope. Such impressions, whether positive, negative or
17 mixed, are natural. Please remember, though, it is not the
18 lawyers who are on trial here. Lawyers are here to help
19 present evidence and to argue its significance, but it is the
20 evidence or lack of evidence alone which must be the basis for
21 your decision. Your deliberations must be independent of your
22 impressions of the attorneys and must be focused on the
23 evidence which has been presented to you. You are to perform
24 the duty of finding the facts without bias or prejudice to any
25 party.
6043
1 The case is important to the government, for the
2 enforcement of criminal laws is a matter of prime concern to
3 the community. Equally, it is important to each of the
4 defendants, who are charged with serious crimes.
5 The fact that the prosecution is brought in the name of
6 the United States of America entitles the government to no
7 greater consideration than that accorded to any other party in
8 this case. By the same token, it is entitled to no less
9 consideration. All parties, whether government or individual,
10 stand as equals at the bar of justice.
11 Your verdict must be based solely upon the evidence
12 developed at trial, or lack of evidence. It would be improper
13 for you to consider, in reaching your decision as to whether
14 the government sustained its burden of proof, any personal
15 feelings you may have about the race, religion, national
16 origin, sex or age of the defendant you are considering. All
17 persons are equally entitled to the presumption of innocence,
18 and, as I will explain to you in a moment, the government has
19 the same burden of proof with respect to all defendants.
20 It would be equally improper for you to allow any
21 feelings you might have about the nature of the crimes charged
22 to interfere with your decision-making process.
23 Under your oath as jurors, you are not to be swayed by
24 sympathy. You are to be guided solely by the evidence in this
25 case. The crucial question that you must ask yourselves as
6044
1 you sift through the evidence is whether the government has
2 proven the guilt of the defendant you are considering beyond a
3 reasonable doubt.
4 It is for you alone to decide whether the government has
5 proven that the defendants are guilty of the crimes charged,
6 solely on the basis of the evidence and subject to the law as
7 I charge you. I am sure you understand that once you let fear
8 or prejudice, bias or sympathy interfere with your thinking,
9 there is a risk that you will not arrive at a true and just
10 verdict.
11 If you have a reasonable doubt as to a defendant's
12 guilt on a count, you must not hesitate for any reason to find
13 a verdict of not guilty on the count you are considering. On
14 the other hand, if you should find that the government has met
15 its burden of proving the defendant's guilt beyond a
16 reasonable doubt, you should not hesitate because of sympathy
17 or any other reason to render a verdict of guilty on the count
18 you are considering against that defendant.
19 The question of the possible punishment of any
20 defendant is of no concern to you at this stage of the
21 proceedings and should not in any sense enter into or
22 influence your deliberations. Your function now is to weigh
23 the evidence in the case and determine whether the government
24 has proven each defendant guilty beyond a reasonable doubt,
25 solely on the basis of such evidence or the lack thereof.
6045
1 Under your oath as jurors, you cannot allow a consideration of
2 the punishment which may be imposed upon the defendants, if
3 they are convicted, to influence your verdict in any way or in
4 any sense enter into your upcoming deliberations.
5 You may not draw any inference, favorable or
6 unfavorable, towards the government or the defendants on trial
7 from the fact that any person in addition to the defendants
8 was not named as a defendant in this case or, whether or not
9 named as a defendant in the indictment, was not tried with the
10 defendants. Those matters are wholly outside of your concern
11 and should play no part in your deliberation.
12 You are about to be asked whether or not the government
13 has proven beyond a reasonable doubt the guilt of these
14 defendants. You are not being asked whether any other person
15 has been proven guilty. Your verdict should be based solely
16 upon the evidence or lack of evidence as to these defendants,
17 according to my instructions and without regard to whether the
18 guilt of other people has or has not been proven.
19 With respect to publicity, let me reiterate my
20 earlier admonitions. During your deliberations you should
21 avoid reading, watching or listening to any press coverage
22 about the case. I have been vigilant about these reminders
23 because you are required as jurors to limit the information
24 that you get about this case to what comes to you in the
25 courtroom through the rules of evidence.
6046
1 Your verdict must be based solely on the evidence
2 presented in this courtroom and in accordance with my
3 instructions. You must completely disregard any report which
4 you have read in the press, heard on the radio or seen on
5 television or elsewhere. Indeed, it would be unfair to
6 consider such reports since they are not evidence. The
7 parties have no opportunity to contradict their accuracy or
8 otherwise explain them. In short, it would be a violation of
9 your oath as jurors to allow yourselves to be influenced in
10 any manner by such publicity.
11 Although the defendants have been indicted, you must
12 remember that the indictment is only an accusation. It is not
13 evidence. The defendants have each pled not guilty to the
14 indictment. As a result of the defendants' pleas of not
15 guilty, the burden is on the government to prove guilt beyond
16 a reasonable doubt. This burden never shifts to any
17 defendant, for the simple reason that the law never imposes
18 upon a defendant in a criminal case the burden or duty of
19 calling any witness or producing any evidence.
20 The law presumes the defendants to be innocent of all the
21 charges against them. I therefore instruct you that the
22 defendants are each presumed by you to be innocent throughout
23 your deliberations until such time, if ever, you as a juror
24 are satisfied that the government, with respect to the
25 defendant you are considering and the count you are
6047
1 considering, has proven him guilty beyond a reasonable doubt.
2 Each defendant begins the trial here with a clean slate.
3 The presumption of innocence alone is sufficient to acquit a
4 defendant unless you as jurors are unanimously convinced
5 beyond a reasonable doubt of his guilt on the count you are
6 considering, after careful and impartial consideration of all
7 the evidence in this case. If the government fails to sustain
8 its burden as to a defendant on a particular count, you must
9 find the defendant not guilty on that count.
10 The presumption of innocence was with each defendant when
11 the trial began and remains with him even now as I speak to
12 you, and will continue with each defendant into your
13 deliberation. It is not removed with respect to a defendant
14 and with respect to a particular count unless and until you
15 are convinced the government has proven that defendant's guilt
16 beyond a reasonable doubt on that count.
17 The defendants did not testify in this case. Under
18 our Constitution, a defendant has no obligation to present any
19 evidence, because it is the government's burden to prove each
20 defendant guilty beyond a reasonable doubt. That burden
21 remains with the government throughout the entire trial and
22 never shifts to the defendants. A defendant is never required
23 to prove that he is not guilty.
24 You may not attach any significance to the fact that
25 a defendant did not testify, nor should you speculate as to
6048
1 why that defendant did not testify. No adverse inference
2 against him may be drawn by you because he did not take the
3 witness stand. You may not consider this against any
4 defendant in any way in your deliberations in the jury room.
5 I have said that the government must prove each
6 defendant guilty beyond a reasonable doubt. The question
7 naturally is, what is a reasonable doubt? The words almost
8 define themselves. It is a doubt based upon reason and common
9 sense. It is a doubt that a reasonable person has after
10 carefully weighing all the evidence. It is a doubt that would
11 cause a reasonable person to act in a matter of importance in
12 his or her personal life. Proof beyond a reasonable doubt
13 must therefore be proof of such a convincing character that a
14 reasonable person would not hesitate to rely and act upon it
15 in the most important of his affairs. A reasonable doubt is
16 not a caprice or whim. It is not a speculation or suspicion.
17 It is not an excuse to avoid the performance of an unpleasant
18 duty. And it is not sympathy.
19 In a criminal case, the burden is at all times upon
20 the government to prove guilt beyond a reasonable doubt. The
21 law does not require the government to prove guilt beyond all
22 possible doubt. Proof beyond a reasonable doubt is sufficient
23 to convict. This burden never shifts to a defendant, which
24 means that it is always the government's burden to prove each
25 of the elements of the crimes charged beyond a reasonable
6049
1 doubt.
2 If, after careful and impartial consideration of all
3 of the evidence, or the lack of evidence, on a particular
4 count, you have a reasonable doubt as to the defendant you are
5 considering, it is your duty to find that defendant not guilty
6 on that count. On the other hand, if, after careful and
7 impartial consideration of all the evidence on a particular
8 count, you are satisfied of the guilt of the defendant you are
9 considering beyond a reasonable doubt, you should find that
10 defendant guilty on that count.
11 The fact that one party called more witnesses and
12 introduced more evidence than the other does not mean that you
13 should necessarily find the facts in favor of the side
14 offering the most witnesses. By the same token, you do not
15 have to accept the testimony of any witness who has not been
16 contradicted or impeached if you find the witness not to be
17 credible. You have to decide which witnesses to believe and
18 which facts are true. To do this, you must look at all the
19 evidence, drawing upon your own common sense and personal
20 experience.
21 In a moment I will discuss the criteria for
22 evaluating credibility. Let me say again, though, you should
23 keep in mind that the burden of proof is always on the
24 government. The defendants are not required to call any
25 witnesses or offer any evidence, since they are presumed to be
6050
1 innocent.
2 You have heard reference in the arguments of counsel
3 in this case to the fact that certain investigative techniques
4 were used by the government and that certain others were not
5 used. You may consider these facts in deciding whether the
6 government has met its burden of proof because, as I have told
7 you, you should look to all the evidence or lack of evidence
8 in deciding whether a defendant is guilty. However, you
9 should understand that there is no legal requirement that the
10 government use any of these specific investigative techniques
11 to prove its case. Your concern is to determine whether or
12 not, on the evidence or lack of evidence, the government has
13 proved the guilt of each of the defendants beyond a reasonable
14 doubt.
15 There are two types of evidence which you may
16 properly use in deciding whether a defendant is guilty or not
17 guilty. One type of evidence is called direct evidence.
18 Direct evidence is where a witness testifies about something
19 the witness knows by virtue of his own senses, something the
20 witness has seen, felt, touched or heard. Direct evidence may
21 also be in the form of an exhibit, where the fact to be proved
22 is its present existence or condition.
23 The second type of evidence is circumstantial evidence,
24 which tends to prove a disputed fact by proof of other facts.
25 In other words, to say that something is circumstantial
6051
1 evidence merely means that one needs to use some kind of
2 reasoning power to draw inferences from one fact to arrive at
3 some conclusion.
4 (Continued on next page)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6052
1 THE COURT: (Continuing) In case that sounded
2 complicated, let me give you an example of circumstantial
3 evidence that is often used in the courthouse.
4 Assume, as is the case, that when you came into the
5 courthouse this morning the sun was shining, it was a clear
6 day. Assume that the courtroom blinds were drawn, so you
7 could not look outside. Assume as you were sitting in the
8 jury box, a man walked into the courtroom with an umbrella
9 that was dripping wet, followed shortly by a woman wearing a
10 raincoat, and the raincoat was wet.
11 Now, under our assumptions you cannot look out of the
12 courtroom and see whether it is raining, so you have no direct
13 evidence of that fact. But certainly on the combination of
14 facts that I have asked you to assume, even though when you
15 entered the building it was not raining outside, it would be
16 reasonable and logical for you to conclude that it had been
17 raining recently.
18 You would arrive at this conclusion from
19 circumstantial evidence. In other words, you infer on the
20 basis of reason and experience from one or more established
21 facts -- in this example, the dripping umbrella and the wet
22 raincoat -- the existence of some other fact. That is all
23 there is to circumstantial evidence.
24 In this case, you have been asked to draw inferences
25 from the evidence that you have seen and heard. You are not
6053
1 required to draw any inference unless you believe that such an
2 inference follows reasonably from the evidence.
3 The law does not distinguish between direct and
4 circumstantial evidence. Circumstantial evidence is of no
5 less value than direct evidence. You may consider both. The
6 question in this case is whether based on all the evidence,
7 both direct and circumstantial, you find that the government
8 has proven its case against the defendant you are considering
9 beyond a reasonable doubt.
10 There are times when different inferences may be
11 drawn by the facts, whether they are proved by direct or
12 circumstantial evidence. The government asks you to draw one
13 set of inferences. The defendants ask you to draw other
14 inferences. It is for you, and you alone, to decide which
15 inferences you will draw.
16 There has been evidence that some of the defendants
17 made statements in which the government claims they admitted
18 certain facts relevant to the charges in the indictment.
19 In deciding what weight, if any, to give those
20 statements, you should first examine with great care whether
21 each statement was made and whether it was voluntarily and
22 understandingly made. I instruct you that you are to give the
23 statements such weight as you feel they deserve in light of
24 all the evidence.
25 You are cautioned that, unless I explicitly instruct you
6054
1 otherwise, the evidence of one defendant's statement to the
2 authorities after his arrest may not be considered or
3 discussed by you in any way with respect to any defendant on
4 trial other than the defendant who made the statement.
5 You have heard evidence that one or more of the
6 defendants made certain statements outside the courtroom to
7 law enforcement officials in which they exonerated or
8 exculpated themselves in connection with some aspect of the
9 charges against them, and the government claims that these
10 statements are false.
11 If you find that a defendant gave a false statement
12 to divert suspicion from himself, you may, but are not
13 required to, infer that the defendant believed that a truthful
14 answer would have placed him in jeopardy, legal or otherwise,
15 or that he believed that he may be guilty of some crime. You
16 may not, however, infer on the basis of this alone that the
17 defendant is, in fact, guilty of the crimes for which he is
18 charged. Nor can any such false exculpatory statements alone
19 establish, or be sufficient for an inference to be drawn, that
20 the defendant knew of and intentionally joined the
21 conspiracies charged.
22 Whether or not the evidence as to a defendant's
23 statements shows that the defendant believed that he was
24 guilty, and the significance, if any, to be attached to such
25 evidence, are matters for you, the jury, to decide.
6055
1 You have had the opportunity to observe all the
2 witnesses. It is now your job to decide how believable each
3 witness was in his or her testimony. You are the sole judges
4 of the credibility of each witness and of the importance of
5 his or her testimony.
6 It must be clear to you by now that you are being
7 called upon to resolve various factual issues under the counts
8 of the indictment, in the face of the very different pictures
9 painted by the government and the defense, which cannot be
10 reconciled. You will now have to decide where the truth lies,
11 and an important part of that decision will involve making
12 judgments about the testimony of the witnesses you have
13 listened to and observed. In making those judgments, you
14 should carefully study all of the testimony of each witness,
15 the circumstances under which each witness testified, and any
16 other matter in evidence which may help you to decide the
17 truth and the importance of each witness's testimony.
18 Your decision whether or not to believe a witness may
19 depend on how that witness impressed you. Was the witness
20 candid, frank and forthright? Or, did the witness seem as if
21 he or she was hiding something, being evasive or suspect in
22 some way? How did the way the witness testified on direct
23 examination compare with how the witness testified on
24 cross-examination? Was the witness's testimony consistent, or
25 did he or she contradict himself? Did the witness appear to
6056
1 know what he or she was talking about and did the witness
2 strike you as someone who