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 was trying to report his or her 3 knowledge accurately? 4 How much you choose to believe a witness may be 5 influenced by the witness's bias. Does the witness have a 6 relationship with the government or the defendant which may 7 affect how he or she testified? Does the witness have some 8 incentive, loyalty or motive that might cause him or her to 9 shade the truth; or, does the witness have some bias, 10 prejudice or hostility that may have caused the witness -- 11 consciously or not -- to give you something other than a 12 completely accurate account of the facts he or she testified 13 to? 14 Even if the witness was impartial, you should 15 consider whether the witness had an opportunity to observe the 16 facts he or she testified about and you should also consider 17 the witness's ability to express himself or herself. Ask 18 yourselves whether the witness's recollection of the facts 19 stands up in light of his or her demeanor, the explanations 20 given, and in the light of all the other evidence in the case. 21 Approach the task of assessing credibility just as you would 22 in any important matter when you are trying to decide if a 23 person is truthful, straightforward, and accurate in his or 24 her recollection. In deciding the question of credibility, 25 remember that you should use your common sense, your good 6057 1 judgment and your own life experience. 2 In connection with your evaluation of the credibility 3 of the witnesses, you should specifically consider evidence of 4 resentment or anger on the part of any witness, if you find 5 this to be the case. 6 Evidence that a witness is biased, prejudiced, or 7 hostile requires you to view that witness's testimony with 8 caution, to weigh it with great care, and to subject it to 9 close and searching scrutiny. 10 In evaluating the credibility of the witnesses, you 11 should further take into account any evidence that the witness 12 who testified may believe that he or she will benefit in some 13 way from the outcome of this case. Such an interest in the 14 outcome creates a motive to testify falsely and may sway the 15 witness to testify in a way that advances his or her own 16 interests. Therefore, if you find that any witness whose 17 testimony you are considering may have an interest in the 18 outcome of this trial, then you should bear that factor in 19 mind when evaluating the credibility of his or her testimony 20 and accept it with great care. 21 This is not to suggest that every witness who has an 22 interest in the outcome of a case will testify falsely. It is 23 for you to decide to what extent, if at all, the witness's 24 interest has affected or colored his or her testimony. 25 You have heard witnesses who testified they were 6058 1 actually involved in some of the conspiracies charged in the 2 indictment. There has been a great deal said about these 3 so-called accomplice witnesses in the summations of counsel 4 regarding whether or not you should believe them. 5 You have been presented with evidence that the 6 government agreed not to further prosecute certain of these 7 witnesses in exchange for those witnesses' agreement to plead 8 guilty to various charges and testify at this trial against 9 the defendants. The government also promised to bring those 10 witnesses' cooperation to the attention of the court that 11 sentences them. Some of these witnesses and their families 12 have been placed in federal protective custody, and some have 13 received money in connection with their protective custodial 14 status. 15 The government argues, as it is permitted to do, that 16 it must take the witnesses as it finds them. It argues that 17 only people who themselves take part in criminal activity have 18 the knowledge required to show criminal behavior by others, 19 and that without such witnesses it would often be difficult or 20 impossible to detect or prosecute wrongdoers. 21 For those very reasons, the law allows the use of 22 accomplice testimony, and such testimony is properly 23 considered by you. Indeed, it is the law in the federal 24 courts that the testimony of accomplices may be enough in 25 itself for conviction, if you find that the testimony 6059 1 establishes guilt beyond a reasonable doubt. Like the 2 testimony of any other witness, an accomplice's testimony 3 should be given such weight as it deserves in light of all the 4 facts and circumstances. 5 However, as the defense argues, you should bear in 6 mind that a witness who has entered into an agreement with the 7 government has an interest in this case different than an 8 ordinary witness. A witness may have a motive to testify 9 falsely if he realizes that he may be able to obtain his own 10 freedom, gain federal protection for himself and his family, 11 or receive a lighter sentence by giving testimony favorable to 12 the prosecution. Accomplice testimony is thus of such a 13 nature that it must be scrutinized with great care and viewed 14 with particular caution when you decide how much of that 15 testimony to believe. 16 You should ask yourselves whether the so-called 17 accomplice would benefit more by lying, or by telling the 18 truth. Was his testimony made up in any way because he 19 believed or hoped that he would somehow receive favorable 20 treatment by testifying falsely? Or did he believe that his 21 interests would be best served by testifying truthfully? If 22 you believe that a particular witness was motivated by hopes 23 of personal gain, was the motivation one which would cause him 24 to lie, or was it one which would cause him to tell the truth? 25 Did this motivation color his testimony? 6060 1 You should reject the testimony if you find it was 2 false. However, if, after a cautious and careful examination 3 of the testimony and the witness's demeanor, you are satisfied 4 that the testimony is true, you should accept it as credible 5 and act on it accordingly. As with any other witness, let me 6 emphasize that the issue of credibility need not be decided on 7 an all-or-nothing fashion. Even if you find that a witness 8 testified falsely on one part, you still may accept his or her 9 testimony in other parts. That is a determination entirely 10 for you, the jury. 11 In sum, you should look at all of the evidence in 12 deciding what credence and what weight, if any, you should 13 give to the testimony of an accomplice witness. 14 On a related note, let me say a few words about the 15 agreements between the government and certain of its witnesses 16 other than alleged accomplices. Some of these witnesses and 17 their families have been placed in federal protective custody, 18 and some have received money in connection with their 19 protected custodial status. 20 Again, you must examine the testimony of such a witness 21 with caution. Weigh it with great care. If, after 22 scrutinizing such testimony you decide to accept it, you may 23 give it whatever weight, if any, you think it deserves. 24 Some of the witnesses who testified for the 25 government have pleaded guilty to charges arising out of 6061 1 circumstances relating to the facts of this case. You are 2 instructed that you are to draw no conclusions or inferences 3 of any kind about the guilt of the defendants on trial here 4 from the fact that a prosecution witness pleaded guilty to 5 similar charges. The decision of that witness to plead guilty 6 was based on a personal decision of his concerning his own 7 guilt, and in light of the benefits afforded by the government 8 to a cooperating witness. In short, a witness's decision to 9 plead guilty may not be used by you in any way as evidence 10 against or unfavorable to the four defendants on trial here. 11 During the course of this trial you have heard 12 testimony from what the law calls expert witnesses -- 13 interjecting: Handwriting, chemists, witnesses of that sort. 14 An expert is allowed to express his or her opinion on those 15 matters about which he or she has special knowledge and 16 training. Expert testimony is presented to you on the theory 17 that someone who is experienced in the field can assist you in 18 understanding the evidence or in reaching an independent 19 decision on the facts. 20 In weighing an expert's testimony, you may consider 21 the expert's qualifications, opinions, reasons for testifying, 22 and all of the other considerations that ordinarily apply when 23 you are deciding whether or not to believe a witness's 24 testimony. You may give expert testimony whatever weight, if 25 any, you find it deserves in light of all the evidence in this 6062 1 case. You should not, however, accept the testimony merely 2 because the witness is an expert. Nor should you substitute 3 it for your own reason, judgment, and common sense. The 4 determination of the facts in this case rests solely with you. 5 You have also heard testimony of government law 6 enforcement officials. The fact that a witness may be 7 employed by the government as a law enforcement official does 8 not mean that his or her testimony is necessarily deserving of 9 more or less consideration or greater or lesser weight than 10 that of an ordinary witness. 11 At the same time, it's quite legitimate for defense 12 counsel to try to attack the credibility of a law enforcement 13 witness on the ground that his or her testimony may be colored 14 by a personal or professional interest in the outcome of the 15 case. 16 It is your decision, after reviewing all the 17 evidence, whether to accept the testimony of the law 18 enforcement witnesses and to give that testimony whatever 19 weight, if any, you find it deserves. 20 You have heard argument about witnesses who have not 21 been called to testify. The defense has argued that the 22 witnesses could have given material testimony in this case and 23 that the government was in the best position to produce these 24 witnesses. 25 If you find that any uncalled witness could have been 6063 1 called by the government and could have given important new 2 testimony, and that the government was in the best position to 3 call him, but failed to do so, you are permitted, but are not 4 required, to infer that the testimony of the uncalled witness 5 would have been unfavorable to the government. 6 In deciding to draw an inference that the uncalled 7 witness would have testified unfavorably to the government, 8 you may consider whether the witness's testimony would have 9 merely repeated other testimony and evidence already before 10 you. 11 Now let me just say a few words about stipulations. 12 And going beyond the text, I'm sure you realize that the 13 fact that stipulations have been entered into is a reason why 14 I'm instructing you now on the law in May rather than July. 15 Numerous stipulations have been entered into by the 16 parties and have been reported to you. A stipulation is an 17 agreement among the parties that a certain fact is true or 18 that a certain witness, if called, would have given certain 19 testimony. Each of these stipulations is the equivalent for 20 your purposes of the presentation of evidence or live 21 testimony to the same effect. You should regard such agreed 22 facts as true, and accept that the witness would have given 23 that testimony. However, it is for you to determine the 24 effect to be given those facts or that testimony. 25 Exhibit GX7 contains a list and brief description by 6064 1 the government of all the stipulations which have been entered 2 entered into this case and which were introduced during the 3 government's case. Exhibit WEHX-S14 contains a list and brief 4 description of all the stipulations which have been entered 5 into this case on behalf of defendant El Hage. 6 Some of the witnesses testified with respect to 7 various charts and summaries which were based on other 8 evidence in this case. The documents from which they were 9 made are before you as evidence. The charts and summaries 10 were intended to make the other evidence more meaningful and 11 to aid you in considering the evidence. Charts and summaries 12 which are not admitted into evidence are no better than the 13 testimony or the documents upon which they are based, and are 14 not independent evidence. Therefore, you are to give no 15 greater consideration to these charts and summaries than you 16 would give to the underlying evidence. 17 It is for you to decide whether the charts or 18 summaries correctly present the information contained in the 19 testimony and in the exhibits on which they are based. In the 20 event that a chart or summary differs from your recollection 21 of the testimony or actual documents on which the chart or 22 summary is based, you are to rely upon the actual testimony or 23 document, not the chart or summary. You are entitled to 24 consider the charts and summaries if you find that they are of 25 assistance to you in analyzing and understanding the evidence. 6065 1 The government and defendant El Hage have offered 2 evidence in the form of tape recorded conversations with the 3 defendants and the defendants' alleged coconspirators. These 4 conversations were obtained by the United States Government 5 without the knowledge of the parties to the conversations. 6 You are instructed that these intercepted conversations were 7 lawfully obtained and the parties are entitled to use such 8 evidence in this case. You must, therefore, regardless of any 9 personal opinions, give this evidence equal consideration 10 along with all the evidence in the case in determining whether 11 the government has proven a defendant's guilt beyond a 12 reasonable doubt. That is to say, you should give this 13 evidence such weight as you believe it deserves in light of 14 all the facts and circumstances. 15 In connection with these tapes, the party presenting 16 the evidence has been permitted to hand out or otherwise 17 display typed documents which it prepared containing its 18 interpretation of what appears on the tape recordings. 19 With respect to those conversations which were 20 conducted in English, any documents which were distributed to 21 you are merely aids or guides to assist you in listening to 22 the tapes and are not evidence. You should make your own 23 assessment of what appears on those tapes based on what you 24 heard when the tapes were played. 25 Some of the transcripts, however, are translations of 6066 1 the tapes because some of the conversations were in a foreign 2 language. Those transcripts are provided to you because that 3 is the only way you can understand what was said during those 4 conversations. Those transcripts are in evidence in order to 5 assist you to find out what the tapes say and you may rely on 6 them during your deliberations. If, however, during your 7 deliberations you would like to hear any of the tapes, they 8 will be made available to you. 9 During the trial, different parties introduced 10 exhibits which were marked for identification, but not 11 admitted into evidence. Also, at various times, witnesses 12 were asked to refresh their recollection by consulting 13 documents or other materials which were not admitted into 14 evidence. Exhibits marked for identification but not admitted 15 are not evidence, nor are any materials brought forth only to 16 refresh the recollection of any witness. You cannot consider 17 or speculate as to the content of any exhibit not received in 18 evidence. 19 With all of the aforementioned preliminary 20 instructions in mind, let us now turn to the indictment. 21 And I'm going to pause for a few minutes and stand and 22 stretch, and if you would like to pause for a few minutes and 23 stand and stretch, that's okay. Your lunch is on order for 24 1:00, and at 1:00, if I'm in the middle of a sentence, I'll 25 stop. 6067 1 (Pause) 2 THE COURT: Returning, then, to the charge, and if 3 you are all following me, I'm on page 27. 4 The indictment, you have the indictment. That's the 5 document in the plastic cover. 6 In a moment I will explain to you what the elements are of 7 the various violations of the United States with which the 8 defendants are charged. I instruct you now, however, that 9 unless the government proves beyond a reasonable doubt that 10 the defendant you are considering committed each and every 11 element of an offense with which he is charged, you must find 12 him not guilty of that offense. 13 The indictment in this case contains 302 individual 14 counts, each charging a separate offense or crime. 15 Let me interject. I see some of you shaking your head. 16 Understand that the vast majority of these counts relate to 17 victims and the evidence with respect to the victims is 18 evidence which relates to all of them. 19 Some of the counts involve crimes allegedly committed 20 by just one of the defendants, others involve allegedly some 21 but not all of the defendants, and still others involve 22 allegedly all four defendants. You must, therefore, as a 23 matter of law, consider each count of the indictment and each 24 defendant's involvement in that count separately, and you must 25 return a separate, unanimous verdict as to each defendant on 6068 1 each count in which he is charged. You will be given a 2 special verdict form that will ask you to mark a separate 3 verdict for each count and for each defendant named in that 4 count. Your answer to each of these special verdicts will be 5 "yes" or "no" or "guilty" or "not guilty" and must be 6 unanimous. Throughout these instructions, I will advise you 7 that when there is a verdict or finding, I will advise you 8 when there is a verdict or finding that you must indicate on 9 the special verdict form. 10 In reaching your verdict, you must bear in mind that 11 guilt is personal and individual. Your verdict of guilty or 12 not guilty must be based solely upon the evidence about each 13 defendant and you may only find a defendant guilty of a 14 particular count if the government has proven each element 15 beyond a reasonable doubt. The case against each defendant on 16 each count stands or falls upon the proof or lack of proof 17 against that defendant alone, and your verdict as to any 18 defendant on any count should not control your decision as to 19 any other defendant or any other count. No other 20 considerations are proper. 21 Let me also remind you that the indictment itself is 22 not evidence. It is nothing more than a set of accusations, a 23 statement of what the government intends to prove by offering 24 evidence at trial. It gives the defendant notice of the 25 charges against him and informs the court and the public of 6069 1 the nature of the accusation. As such, you cannot find a 2 defendant guilty of any crimes that are not charged in the 3 indictment. 4 Because the indictment merely describes the charges 5 made against the defendants, it may not be considered by you 6 as any evidence of the guilt of any defendant. Only the 7 evidence or the lack of evidence decides that issue. 8 In the indictment, the conspiracy counts are preceded 9 by a section captioned "Background." The information 10 contained in that section is the government's version of the 11 origin and history of the conspiracies which are set forth in 12 Counts One through Four. Likewise, there is a "Background" 13 section prefacing the perjury counts in which the government 14 outlines its view of the relevant events which preceded the 15 alleged Grand Jury perjury by defendant El Hage as set forth 16 in Counts 285 through 302. You should understand that these 17 background sections, as with the rest of the indictment, are 18 not evidence. 19 The indictment makes reference to various dates. It 20 does not matter if the indictment charges that a specific act 21 occurred on or about a certain date and the evidence indicates 22 that, in fact, the act occurred on a different date. The law 23 requires only a substantial similarity between the dates 24 alleged in the indictment and the dates established by the 25 evidence. It is for you to determine whether any such 6070 1 difference is material and, if you find it was material, then 2 you must find the defendant you are considering not guilty on 3 the counts for which you find the evidence to be materially 4 different from the charges in the indictment. 5 Before you begin your deliberations, you will of 6 course be provided with a copy of the indictment containing 7 these charges, and you already have that. I will not read the 8 entire indictment to you at this time. 9 Rather, I will first group the offenses charged in the 10 indictment into three general categories. Then I will 11 proceed, category by category, explaining in detail the 12 elements of each alleged offense contained within each of the 13 three general categories. By the way, you should by no means 14 draw any significance from the fact that I have grouped 15 certain counts in the indictment together for purposes of my 16 instructions to you; I do so simply for organizational 17 clarity, not because of any legal import. 18 The first category of charges includes Counts One 19 through Four of the indictment. These charges all allege 20 conspiracies to violate certain laws of the United States. 21 All four defendants face charges in this category. However, 22 while three of the alleged conspiracies charge all four 23 defendants, one charges only three of defendants. 24 The second category of charges includes Counts Five 25 through 284 of the indictment. These charges all allege 6071 1 substantive offenses arising out of the bombings of the United 2 States embassies in Kenya and Tanzania. Only defendants 3 Mohamed Sadeek Odeh, Mohamed Rashid Daoud Al-'Owhali and 4 Khalfan Khamis Mohamed face charges in this category. 5 Defendants Odeh and Al-'Owhali are charged only in those 6 substantive counts from Five through 284 that arise out of the 7 Nairobi, Kenya bombing. Likewise, defendant Khalfan Khamis 8 Mohamed is charged only with those counts from Five through 9 284 that arise out of the Dar es Salaam, Tanzania bombing. 10 The third category of charges includes Counts 285 to 11 302 of the indictment. These charges all relate to alleged 12 perjury by defendant Wadih El Hage -- the perjury count, 13 alleged perjury, by defendant Wadih El Hage. 14 The first portion of the indictment alleges four 15 separate conspiracies to violate certain laws of the United 16 States, and they may be summarized briefly as follows. 17 Count One charges that all four defendants, while 18 they were situated outside the United States, conspired to 19 murder nationals of the United States. 20 Count Two charges that all four defendants conspired 21 to murder officers or employees of the United States, as well 22 as internationally protected persons. 23 Count Three -- which involves only defendants Mohamed 24 Sadeek Odeh, Mohamed Rashid Daoud Al-'Owhali, and Khalfan 25 Khamis Mohamed -- charges that these three defendants, without 6072 1 lawful authority, conspired to use weapons of mass 2 destruction -- that is, bombs -- against United States 3 nationals while such nationals were outside of the United 4 States, and against property that is owned, leased or used by 5 the United States. 6 Count Four charges that all four defendants conspired 7 to maliciously damage or destroy United States property, by 8 means of an explosive. 9 I reiterate that each of these four counts 10 constitutes a separate alleged conspiracy and thus is a 11 separate offense or crime. Again, each of the four charged 12 conspiracies must be considered separately by you, and you 13 must return a separate, unanimous verdict as to each count and 14 as to each defendant charged in the count. 15 Before I instruct you in detail on the specific 16 elements of each of the four conspiracies alleged in the 17 indictment, I want to first instruct you on the law of 18 conspiracy in general. This is because there are certain 19 requirements that the government must always satisfy whenever 20 it seeks to prove any allegation of criminal conspiracy 21 against any defendant. Of course, there are some exceptions 22 to the general rule and when those exceptions are relevant to 23 this case, I will so instruct you. But unless I say 24 otherwise, whatever I tell you to be true of conspiracy law 25 generally should be considered by you to be equally true of 6073 1 the four specific conspiracies alleged in the indictment. 2 Remember, however, that each of the four alleged conspiracies 3 is an independent crime and that, as to each charged 4 defendant, each alleged conspiracy must independently be 5 proven by the government beyond a reasonable doubt. 6 As I have indicated, the indictment alleges four 7 separate conspiracies. A conspiracy is a kind of criminal 8 partnership -- a combination or agreement of two or more 9 persons to join together to accomplish some illegal objective 10 in violation of the laws of the United States. 11 Let me repeat that. A conspiracy is a kind of criminal 12 partnership -- a combination or agreement of two or more 13 persons to join together to accomplish some illegal objective 14 in violation of the laws of the United States. 15 Although the government has presented evidence that some 16 of the defendants and alleged coconspirators engaged in 17 activities in foreign countries that may or may not have 18 violated the laws of those foreign countries, the crime of 19 conspiracy applies only to those illegal agreements that seek 20 to violate United States law. Of course, a given activity, 21 even if it occurs abroad, may sometimes constitute a violation 22 of both foreign and United States law. 23 The crime of conspiracy to violate United States law 24 is an independent offense. It is separate and distinct from 25 the actual violation of any specific laws, which the law 6074 1 refers to as "substantive crimes." 2 Indeed, you may find a defendant guilty of the crime 3 of conspiracy to commit an offense even though the substantive 4 crime that was the object of the conspiracy was not actually 5 committed. Moreover, you may find a defendant guilty of 6 conspiracy despite the fact that he himself was incapable of 7 committing the substantive crime. 8 Generally speaking, and unless I tell you otherwise, in 9 order to sustain its burden of proof with respect to one 10 allegation of conspiracy, the government must establish, 11 beyond a reasonable doubt, each of the following four elements 12 as to each defendant charged in that conspiracy. 13 First, that there in fact existed the alleged 14 conspiracy, the object of which was to violate United States 15 law, as charged in the indictment; 16 Second, that the defendant you are considering 17 knowingly and willfully became a member of that conspiracy, 18 with the intent to further its illegal purpose; 19 Third, that one or more of the conspirators, not 20 necessarily the defendant you are considering, knowingly 21 committed at least one of the overt acts charged in the 22 indictment, at or about the time alleged; and 23 Fourth, that at least one overt act which you 24 unanimously find to have been committed was knowingly and 25 willfully committed to effect the object of the conspiracy. 6075 1 And after lunch we will separately consider these 2 four elements. 3 We'll break for lunch and resume at 2:15. 4 (Luncheon recess) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6076 1 AFTERNOON SESSION 2 2:20 p.m. 3 (Jury present) 4 THE COURT: There was an inquiry as to whether you 5 may take material home with you and the answer is no. It will 6 be left in the jury room. 7 You will recall, when we broke for lunch we were 8 talking about the general principles of conspiracy law which 9 apply to the first four counts, which are the conspiracy 10 counts. The other counts in the indictment are referred to as 11 the substantive counts. We are now going to proceed with a 12 discussion in more detail of what the various elements are of 13 the crime of conspiracy as it applies to the first four 14 counts. If you are following me, I am on page 33, and if you 15 are not following me, I'm on page 33. 16 The first element which the government must prove 17 beyond a reasonable doubt to establish the offense of 18 conspiracy is that two or more persons entered into the 19 unlawful agreement charged in the indictment. You must ask: 20 Did the conspiracy alleged in the indictment exist? Was there 21 such a conspiracy? 22 Since the indictment in this case charges four 23 separate conspiracies on the part of the multiple defendants, 24 you must independently determine as to each conspiracy count 25 and as to each defendant charged in the count whether that 6077 1 conspiracy in fact existed and whether it was in fact directed 2 at the unlawful purpose or purposes specifically alleged in 3 the indictment. 4 As I mentioned just a few moments ago, a conspiracy 5 is a combination, an agreement or a mutual understanding of 6 two or more persons to accomplish, by concerted action, a 7 criminal or unlawful purpose. The gist, the essence of the 8 crime of conspiracy is the unlawful combination or agreement 9 to violate the laws of the United States. The success of the 10 conspiracy or the actual commission of the criminal act which 11 is the object of the conspiracy is not an essential element of 12 the crime. In other words, a conspiracy alleges an agreement 13 to commit a crime and is an entirely distinct and separate 14 offense from the actual commission of that crime. 15 To show that a conspiracy existed, the government is 16 not required to show that two or more people sat around a 17 table and entered into a solemn pact, orally or in writing, 18 stating that they had formed a conspiracy to violate the law 19 and spelling out all the details. It is sufficient if the 20 evidence demonstrates that two or more persons, in some way or 21 manner, formally or informally, impliedly or tacitly, came to 22 a common understanding that they would violate the law and 23 accomplish an unlawful plan. 24 The proof that people simply met together from time 25 to time and talked about similar conduct is not enough to 6078 1 establish a criminal agreement. That is something that you 2 may consider in deciding whether the government has proved an 3 agreement. Without more, that is not enough. 4 You may, of course, find the existence of the 5 agreement to disobey or disregard the law has been established 6 by direct proof. However, because conspiracy is by its very 7 nature characterized by secrecy, you may also infer its 8 existence from the circumstances of this case and the conduct 9 of the parties involved. 10 In a very real sense then, in the context of 11 conspiracy cases, actions often speak louder than words. In 12 this regard you may, in determining whether an agreement 13 existed, consider the actions and statements of all those 14 persons you find to be participants as proof that a common 15 design existed on the part of the persons charged to act 16 together to accomplish an unlawful purpose. 17 However, remember that if you choose to consider a 18 defendant's postarrest statements made to law enforcement 19 officials for purposes of determining the existence and scope 20 of the alleged conspiracy, you may only consider those 21 postarrest statements in connection with the specific 22 defendant who made those postarrest statements. In order for 23 you to find that the existence and scope of the alleged 24 conspiracy has been proven in connection with those defendants 25 who did not make the postarrest statements at issue, you will 6079 1 have to rely on evidence other than the postarrest statements. 2 To recap, it is sufficient to establish the existence 3 of the conspiracy if, from the proof of all the relevant facts 4 and circumstances, you find beyond a reasonable doubt that the 5 minds of at least two alleged coconspirators met in an 6 understanding way to accomplish, by the means alleged, the 7 objective of the conspiracy. 8 In finding the existence of the conspiracy, you must 9 also conclude that the conspiracy in fact had the unlawful 10 purpose specifically alleged in the indictment. If you find 11 beyond a reasonable doubt that the conspirators agreed to 12 accomplish the illegal objective charged in the indictment, 13 the illegal purpose element of the conspiracy offense will be 14 satisfied. And if the indictment alleges that a given 15 conspiracy had more than one unlawful purpose, then you need 16 only find that the conspirators agreed to accomplish any of 17 those multiple unlawful objectives. Although the finding of 18 one unlawful objective is sufficient to satisfy the illegal 19 purpose element, I instruct that you the jury must unanimously 20 agree on which, if any, was the specific unlawful objective of 21 the alleged conspiracy. 22 On the special verdict form, if you find that the charged 23 conspiracy existed, you must indicate unanimous agreement as 24 to the conspiracy's specific unlawful objectives. 25 If the government fails to prove beyond a reasonable doubt 6080 1 that at least one of the unlawful purposes alleged in the 2 indictment was in fact an objective of the conspiracy named in 3 a particular count, or if you cannot unanimously agree as to 4 which of the unlawful purposes alleged in that count of the 5 indictment have been proven beyond a reasonable doubt, then 6 you must find the defendants named in the count not guilty as 7 to that conspiracy charge. 8 Moreover, if you conclude that an agreement existed but 9 that its purpose, even if unlawful, was in fact not one of the 10 specific unlawful purposes described in that count of the 11 indictment, you must also find the defendants named in that 12 count not guilty. 13 Just a few more general points relating to this first 14 element of the offense of conspiracy. 15 First, while the indictment may allege that a given 16 conspiracy existed on certain dates, it is not essential that 17 the government prove that the conspiracy started and ended on 18 those specific dates. Instead, it is enough if you find that 19 the conspiracy was formed and that it existed for some 20 substantial time within the period set forth in the 21 indictment. 22 Second, a conspiracy, once formed, is presumed to 23 have continued until its objectives are accomplished or there 24 is an affirmative act of termination by its members or it is 25 otherwise terminated. 6081 1 Third, you heard me repeatedly use the terms 2 "unlawful purpose," "unlawful objective," "illegal purpose," 3 "illegal objective" in discussing the elements of the offense 4 of conspiracy. Understand that these terms are all synonymous 5 and that they refer only to violations of United States law. 6 As I said before, the crime of conspiracy applies only to 7 those illegal agreements that seek to violate United States 8 law. An agreement to violate foreign law standing alone does 9 not satisfy the illegal purpose element of the offense of 10 conspiracy. 11 One last word about the government's burden of 12 proving the existence of a charged conspiracy. In this case 13 the indictment contains four different conspiracy counts. 14 Each count alleges a single overall conspiracy the existence 15 of which must be independently proved as to each charged 16 defendant beyond a reasonable doubt. Here, some of the 17 defendants contend that the government's proof fails to show, 18 under any of the four conspiracy counts, that there existed 19 only one overall conspiracy. Rather, they claim that as to 20 each of the four conspiracy counts, to the extent the 21 government has proven the existence of any conspiracy, there 22 were actually several separate and independent conspiracies by 23 various members of the group. 24 By way of illustration and illustration only, 25 consider Count 1 of the indictment. It alleges a conspiracy 6082 1 on the part of all four defendants to murder United States 2 nationals. Whether under this count there existed a single 3 unlawful agreement, or many such agreements, or indeed no 4 agreement at all, is a question of fact for you the jury to 5 determine in accordance with the instructions I am about to 6 give you. 7 When two or more people join together to further one 8 common unlawful design or purpose, in violation of United 9 States law, a single conspiracy exists. In contrast, multiple 10 conspiracies exist when there are several unlawful agreements 11 to achieve distinct purposes. Proof of several separate and 12 independent conspiracies is not proof of the single overall 13 conspiracy charged in Count 1 of the indictment unless one of 14 the conspiracies proved happens to be the single conspiracy 15 described in Count 1. 16 You may find that there was a single conspiracy 17 despite the fact that there were either changes in 18 personnel -- by the termination, withdrawal or addition of new 19 members -- by changes in activities, or both, so long as you 20 find that some of the coconspirators continued to act for the 21 entire duration of the conspiracy for the purposes charged in 22 Count 1 of the indictment. The fact that members of the 23 conspiracy are not always identical does not necessarily imply 24 that separate conspiracies exist. 25 On the other hand, if you find that the conspiracy 6083 1 charged in Count 1 of the indictment did not exist, you cannot 2 find any defendant guilty of the conspiracy charged in Count 1 3 of the indictment. This is so even if you find that some 4 conspiracy other than that which is charged in Count 1 of the 5 indictment existed, even though the purposes of both 6 conspiracies may have been the same, and even though there may 7 have been some overlap in membership. 8 Similarly, if you find that a particular defendant 9 was a member of another conspiracy but not the one charged in 10 Count 1 of the indictment, then you must find the defendant 11 not guilty of the conspiracy charged in Count 1. 12 Therefore, what you must do is determine whether the 13 conspiracy charged in Count 1 of the indictment existed. If 14 it did, you then must determine the nature of the conspiracy 15 and who were its members. 16 These principles concerning the distinction between the 17 proof of a single, overall conspiracy and proof of multiple 18 conspiracies apply not just to Count 1 of the indictment but 19 to all four conspiracy counts. 20 Let us move on now to the second element necessary to 21 establish the offense of conspiracy. The government must 22 prove beyond a reasonable doubt that the defendant you are 23 considering knowingly, willfully and voluntarily became a 24 member of the charged conspiracy with the intent to further 25 its illegal purpose. Each time you are satisfied that one of 6084 1 the four conspiracies charged in the indictment existed, you 2 must next ask yourself whether a defendant on trial was a 3 member of that particular conspiracy. 4 In deciding whether or not the government has proved 5 beyond a reasonable doubt that the defendant you are 6 considering was in fact a member of the charged conspiracy, 7 you should consider whether that defendant knowingly and 8 willfully joined the conspiracy. Did he participate in it 9 with knowledge of its specific unlawful purpose, and with a 10 specific intent of furthering that illegal objective? 11 An act is done knowingly and willfully if it is done 12 purposefully and deliberately; that is, the defendant's act 13 must have been the product of the defendant's conscious 14 determination rather than the product of mistake or accident 15 or mere negligence or some other innocent reason. 16 "Unlawful" simply means contrary to United States 17 law, as I have already told you. The defendant you are 18 considering need not have known that he was breaking any 19 particular provision of law or any particular rule. The 20 defendant you are considering need only have been aware of the 21 generally unlawful nature of his act. 22 As I have mentioned, before the defendant you are 23 considering can be found to have been a conspirator, you must 24 find that he knowingly joined in the unlawful agreement or 25 plan. The key question is whether the defendant joined the 6085 1 conspiracy and did so with an awareness of at least some of 2 the illegal aims and purposes of the unlawful agreement to 3 violate the laws of the United States. 4 It is important for you to note that each defendant's 5 participation in the conspiracy must be established beyond a 6 reasonable doubt, by independent evidence of his own acts or 7 statements, as well as acts or statements of persons alleged 8 to be coconspirators in the same conspiracy, and the 9 reasonable inferences that may be drawn from them. 10 Let me remind you of the rule regarding a defendant's 11 postarrest statements to law enforcement authorities. Such 12 statements may be considered by you as evidence only as to the 13 specific defendant who made those statements, including for 14 the purpose of your determining whether or not that specific 15 defendant was a member of the alleged conspiracy. 16 Accordingly, the defendant's postarrest statements may not be 17 considered by you in determining whether any of the other 18 defendants charged in the same conspiracy were in fact also 19 members of that conspiracy. 20 A defendant's knowledge is a matter of inference from 21 the facts proved. Science has not yet devised a manner of 22 looking into a person's mind and knowing what that person is 23 thinking. However, you do have before you evidence of certain 24 acts and conversations alleged to have taken place with 25 certain defendants or in their presence. The government 6086 1 contends that these acts and conversations show beyond a 2 reasonable doubt knowledge on the part of the defendant in 3 question of the unlawful purpose of the charged conspiracies. 4 On the other hand, each defendant denies that these acts and 5 conversations showed that he had such knowledge. It is for 6 you to determine, with respect to each of the four conspiracy 7 counts alleged in the indictment, whether the government has 8 established beyond a reasonable doubt that such knowledge and 9 intent on the part of the defendant you are considering 10 existed. 11 To become a member of the conspiracy, the defendant 12 in question need not have known the identities of each and 13 every other member, nor need he have been apprised of all 14 their activities. Moreover, the defendant need not have been 15 fully informed as to all of the details or the scope of the 16 conspiracy to justify an inference of knowledge on his part. 17 Furthermore, the defendant need not have joined in all of the 18 conspiracy's unlawful objectives. Nor is it necessary that a 19 defendant receive any monetary benefit from participating in 20 the conspiracy. All that is required is that the government 21 prove beyond a reasonable doubt that the defendant you are 22 considering participated in the conspiracy with knowledge of 23 some of its unlawful purposes and with the intent of 24 furthering those unlawful purposes. 25 You heard during the trial about certain 6087 1 organizations, including Al Qaeda, Egyptian Islamic Jihad, and 2 others. All four of the conspiracies charged in the 3 indictment are alleged to have been formed by members and 4 nonmembers of these organizations. You need not find that a 5 particular defendant was a member of Al Qaeda or any other 6 organization to find that the defendant was a member of the 7 conspiracy in question. Similarly, even if you find that a 8 particular defendant was a member of Al Qaeda, that does not 9 necessarily mean that the defendant was a member of the 10 charged conspiracy you are considering. 11 I caution you that individuals, including the 12 defendants in this case, have the right under our Constitution 13 to assemble and discuss even the most unpopular ideas, 14 including discussion of unlawful acts. Such assembly and 15 discussion does not by itself necessarily establish an 16 unlawful agreement unless, of course, you find that an 17 unlawful agreement was reached during that conversation. 18 Expressions of sympathy and support for those who commit 19 unlawful acts do not, without more, constitute entry into an 20 unlawful agreement. Nor does vigorous criticism of the United 21 States government. One may belong to a group, knowing that 22 some of its members commit illegal acts, without having 23 entered into an agreement that those unlawful acts be 24 committed. A frank expression or exchange of political views, 25 no matter how vehement, radical or unpopular, does not, 6088 1 without more, constitute an unlawful agreement. 2 If you determine that a defendant became a member of 3 the conspiracy, the extent of his participation in that 4 conspiracy has no bearing on the issue of the defendant's 5 guilt. A defendant need not have joined the conspiracy at the 6 outset. A conspirator's liability is not measured by the 7 extent or duration of his participation. Indeed, each member 8 of a conspiracy may perform separate and distinct acts and may 9 perform them at different times. Some conspirators may play 10 major roles, while others play minor roles in a scheme. An 11 equal role is not what the law requires. In fact, even a 12 single act may be sufficient to draw the defendant within the 13 ambit of the conspiracy, so long as the defendant has 14 knowingly and willfully joined the conspiracy. 15 I want to caution you, however, that the following 16 factors, standing alone, do not make the defendant you are 17 considering a member of the conspiracy: (1) his mere presence 18 at the scene of the alleged crime; (2) his mere presence at 19 meetings with other conspirators; or (3) his mere residence in 20 a particular country or neighborhood. 21 Similarly, mere association with one or more members of 22 the conspiracy does not automatically make that defendant a 23 member, even coupled with knowledge that a conspiracy is 24 taking place. A person may know or be friendly with a 25 criminal, or persons who are members of a conspiracy, without 6089 1 being a criminal or coconspirator himself. Mere similarity of 2 conduct or the fact that they may have assembled together or 3 discussed common aims or interests does not necessarily 4 establish proof of the existence of a conspiracy. 5 I also want to caution you that mere knowledge or 6 acquiescence, without participation, in the unlawful plan is 7 not sufficient to satisfy the government's burden of proof. 8 Moreover, the fact that the defendant you are considering, 9 without knowledge of the conspiracy's illegal objectives, 10 merely happens by his actions to further the purposes or 11 objectives of the conspiracy does not make the defendant a 12 member of the conspiracy. More is required under the law. 13 What is necessary is that the defendant in question must have 14 participated in the conspiracy with knowledge of at least some 15 of the illegal purposes or objectives of the charged 16 conspiracy and with the intention of aiding in the 17 accomplishment of those unlawful acts. 18 Remember too that the unlawful objective which you 19 find the defendant had knowledge of, and which he sought to 20 further through his participation in the agreement, must have 21 been an objective in violation of United States law and must 22 have been an actual objective, as determined by you, of the 23 specific conspiracy count you are considering. 24 In sum, the defendant you are considering, having had 25 an understanding of the unlawful character of the conspiracy, 6090 1 must have intentionally engaged, advised or assisted in it for 2 the purpose of furthering the illegal undertaking. The 3 defendant thereby becomes a knowing and willing participant in 4 the unlawful agreement -- that is to say, a coconspirator. 5 A conspiracy, once formed, is presumed to continue 6 until either of its objectives is accomplished or there is 7 some affirmative act of termination by its members. So, too, 8 once a person is found to be a member of a conspiracy, that 9 person is presumed to continue being a member in the venture 10 until the venture is terminated, unless it is shown by some 11 affirmative proof that that person withdrew and disassociated 12 himself from it. 13 One last issue. The distinction I mentioned earlier 14 between proof of a single, overall conspiracy versus proof of 15 multiple or different conspiracies also arises with regard to 16 the question of a defendant's membership in an alleged 17 conspiracy. As I have already stated, you may not find a 18 defendant guilty of any conspiracy count in the indictment 19 unless you find beyond a reasonable doubt that he joined the 20 specific conspiracy alleged in this count. In this regard, if 21 the defendant joined a different or separate conspiracy -- 22 that is, if you find that he, one, joined a conspiracy other 23 than the one charged in the particular count of the indictment 24 which you are considering, but, two, did not also join the 25 count you are in fact considering -- then you must find the 6091 1 defendant not guilty of the conspiracy charged in the count 2 you are considering, even if the conspiracy he did join had a 3 similar purpose. 4 For example, let us assume that under the first element of 5 the offense of conspiracy, you the jury unanimously find that 6 conspiracy X existed and that such conspiracy was directed to 7 unlawful purpose X, an unlawful purpose specifically charged 8 in the indictment. Let us also assume that you find that the 9 defendant you are considering was aware only of unlawful 10 purpose Y and intended to further only unlawful purpose Y. 11 Under these circumstances, you the jury may not find that the 12 defendant knowingly, willfully and voluntarily joined in 13 conspiracy X, even if unlawful purpose Y and unlawful purpose 14 X are substantially similar and even if unlawful purpose Y is 15 alleged elsewhere in the indictment. Because the second 16 element of the offense has not been proven, you must find the 17 defendant not guilty of conspiracy X. 18 Of course, if you find that the conspiracy charged in 19 any count of the indictment existed and the defendant 20 knowingly, willfully and voluntarily joined in that conspiracy 21 and its specific illegal objectives, then the first two 22 elements of the offense of conspiracy are satisfied. 23 Before moving on to the third element of the offense 24 of conspiracy, I want to mention a word about coconspirator 25 evidence. You will recall that during the trial you heard 6092 1 evidence concerning the acts and statements of persons whom 2 the government charges were coconspirators with the defendants 3 on trial here. 4 I instruct you that, in determining the factual issues 5 before you, you the jury are permitted to consider 6 coconspirator evidence against a defendant but only according 7 to the conditions I now describe. 8 The reason for allowing this type of evidence to be 9 received against a defendant has to do with the nature of the 10 crime of conspiracy. Conspiracy has often been referred to as 11 a partnership in crime. Thus, as with other types of 12 partnerships, when people enter into a conspiracy to 13 accomplish an unlawful end, each and every member becomes an 14 agent for the other conspirators in carrying out the 15 conspiracy. 16 Accordingly, the reasonably foreseeable acts, 17 declarations, statements and admissions of any member of a 18 conspiracy which are made in furtherance of the unlawful 19 purpose of that conspiracy are deemed under the law to be the 20 acts of all the members, and all of the members are 21 responsible for such acts, declarations, statements and 22 omissions. 23 What does this mean? It means that if you the jury find 24 beyond a reasonable doubt that a conspiracy charged in the 25 indictment existed and that the defendant you are considering 6093 1 was a member of that particular conspiracy -- in short, if you 2 find that the first two elements of the offense of conspiracy 3 have been met as to a conspiracy charged in the indictment and 4 as to the defendant you are considering -- then any acts done 5 or statements made during and in furtherance of that 6 particular conspiracy, by persons also found by you to have 7 been members of that conspiracy, may be considered as evidence 8 against the defendant under consideration. This is so even if 9 such acts were done and statements were made in the 10 defendant's absence and without his knowledge. 11 However, before you may consider the statements and 12 acts of a coconspirator in determining the factual issues 13 before you, you must first determine that the acts and 14 statements were made during the existence and in furtherance 15 of the charged conspiracy. If the acts were done or the 16 statements made by someone whom you do not find to have been a 17 member of the charged conspiracy, or if they were not done or 18 said during and in furtherance of the charged conspiracy, they 19 may be considered by you as evidence only against the person 20 who did or said them. 21 That is why on numerous prior occasions I have instructed 22 you that a defendant's postarrest statements to law 23 enforcement officials are to be considered by you only as to 24 the particular defendant who made the statements and not ever 25 as to any of his codefendants. Such postarrest statements, 6094 1 under the law, are not statements made during the existence 2 and furtherance of the conspiracy, and thus do not qualify as 3 coconspirator evidence which a jury may properly consider. 4 Let us now return to our discussion of the core 5 elements of the offense of conspiracy. 6 The third element that the government must prove 7 beyond a reasonable doubt to establish the offense of 8 conspiracy is that one or more of the conspirators in that 9 conspiracy knowingly committed at least one of the overt acts 10 charged in the relevant conspiracy count, at or about the time 11 and place alleged. The purpose of the overt act requirement 12 is clear. There must have been something more than mere 13 agreement. Some overt act, some overt step or action must 14 have knowingly been taken by at least one of the conspirators 15 in furtherance of the conspiracy. 16 In order for the government to establish this 17 element, it is not required that all of the overt acts alleged 18 in the relevant conspiracy count have been proven. All that 19 is required is that you find beyond a reasonable doubt that at 20 least one such act was knowingly committed by at least one of 21 the coconspirators in that particular conspiracy. 22 Although the finding of one overt act is sufficient to 23 satisfy the overt act element, I instruct you that the jury 24 must unanimously agree on which, if any, was the specific 25 overt act committed. 6095 1 Similarly, you need not find that the defendant you 2 are considering committed the overt act. It is sufficient for 3 the government to show that an individual whom you find beyond 4 a reasonable doubt to be a conspirator knowingly committed an 5 overt act in furtherance of the conspiracy. This is because 6 such an act becomes, in the eyes of the law, the act of all 7 the members of the conspiracy. 8 You are further instructed that the overt act need 9 not have been committed at precisely the time alleged in the 10 indictment. It is sufficient if you are convinced beyond a 11 reasonable doubt that it occurred at or about the time and 12 place stated in the indictment. 13 To be clear, in this case the indictment alleges four 14 separate conspiracy counts. As to each of these four counts, 15 as to each defendant charged in the count, unless I inform you 16 otherwise, you must independently determine whether the overt 17 act element has been satisfied in the manner I have just 18 explained. Of course, a single act may satisfy the overt act 19 requirement with respect to more than one conspiracy. Indeed, 20 as you will see from the indictment, many acts are alleged to 21 have been in furtherance of a number of the alleged 22 conspiracies. 23 Each of the four conspiracy counts indicates which 24 overt acts were allegedly taken in furtherance of the 25 particular conspiracy charged in that count, which of the 6096 1 various conspirators allegedly committed those overt acts, and 2 the approximate dates and locations those overt acts allegedly 3 occurred. 4 The fourth element that the government must prove 5 beyond a reasonable doubt to establish the offense of 6 conspiracy is that at least one of the overt acts which you 7 unanimously find to have been committed was knowingly and 8 willfully committed for the purpose of carrying out the 9 unlawful agreement. For the government to satisfy this 10 element, it must prove beyond a reasonable doubt that at least 11 one overt act was knowingly and willfully done by at least one 12 conspirator in furtherance of what you determine to be the 13 unlawful objective or purpose of the conspiracy. In this 14 context, "knowingly and willfully" means that the conspirator 15 committed the overt act with knowledge of some of the illegal 16 objectives of the conspiracy to violate United States law and 17 with intent to further those illegal objectives. 18 You should bear in mind that the overt act standing 19 alone may be an innocent, lawful act. Frequently, however, an 20 apparently innocent act sheds its harmless character if it is 21 a step in carrying out, promoting, aiding or assisting the 22 conspiratorial scheme. You are therefore instructed that the 23 overt act does not have to be an act that, in and of itself, 24 is criminal or constitutes an objective of the conspiracy. 25 As was the case with respect to the three other 6097 1 elements of the offense of conspiracy, the government must 2 independently prove this element beyond a reasonable doubt for 3 each of the four conspiracy counts charged in the indictment 4 and for each defendant charged in the count. In other words, 5 the fact that you have already found that an overt act was 6 committed for the purpose of carrying out one of the other 7 charged conspiracies does not relieve you of your obligation 8 to find, unanimously and beyond a reasonable doubt, that it, 9 or some other overt act, was committed in furtherance of the 10 specific conspiracy that you are considering. 11 I have now finished explaining to you the four core 12 elements of the offense of conspiracy. To recap, they are: 13 First, that the alleged conspiracy, the object of which 14 was to violate United States law, in fact existed as charged 15 in the indictment; 16 Second, that the defendant you are considering knowingly 17 and willfully became a member of that conspiracy, with the 18 intent to further its illegal purpose; 19 Third, that one or more of the conspirators, not 20 necessarily the defendant you are considering, knowingly at 21 committed at least one of the overt acts charged in the 22 relevant conspiracy count, at or about the time alleged; and 23 Fourth, that at least one overt act which you unanimously 24 find to have been committed was knowingly and willfully 25 committed to effect the object of the conspiracy. 6098 1 In this case, as to each conspiracy charged in the 2 indictment, that is, Counts 1 through 4, and as to each 3 defendant charged in the count, the government must 4 independently prove each of these four elements beyond a 5 reasonable doubt, unless I instruct you otherwise. I say 6 "unless I instruct you otherwise" because there are some 7 allegations of conspiracy in the indictment where the 8 government's burden of proof will not require all of these 9 four elements, or where its burden will require proof of 10 additional elements other than those four, or both. 11 Whenever such circumstances exist, I will of course 12 inform you. In the meantime, I instruct you that proof beyond 13 a reasonable doubt as to all four core elements is necessary 14 for the government to establish any allegation of criminal 15 conspiracy as to any defendants. 16 We are now ready to consider in detail, count by 17 count, the specific elements of each of the four conspiracies 18 alleged in the indictment. I am going to break for a minute 19 and stand and stretch, and if you want to break for a minute 20 and stand and stretch, be my guest. If you don't, that's OK 21 too. 22 (Pause) 23 THE COURT: So we are now, if you are following, on 24 page 52, looking at the specific counts in the indictment. 25 The first count in the indictment alleges that all four 6099 1 defendants, while they were situated outside the United 2 States, engaged in a conspiracy to murder nationals of the 3 United States. Specifically, Count 1 charges, and I am now 4 reading from paragraphs 10 and 11 of the indictment, that: 5 From at least 1991 until the date of the filing of 6 this indictment, which was May 8, 2000, in the Southern 7 District of New York, in Afghanistan, the United Kingdom, 8 Pakistan, the Sudan, Saudi Arabia, Yemen, Somalia, Kenya, 9 Tanzania, Azerbaijan, and elsewhere out of the jurisdiction of 10 any particular state or district, the defendants and others, 11 at least one of whom was first brought to and arrested in the 12 Southern District of New York, together with other members and 13 associates of Al Qaeda, Egyptian Islamic Jihad, and others 14 known and unknown to the grand jury, unlawfully, willfully and 15 knowingly combined, conspired, confederated, and agreed to 16 kill nationals of the United States. 17 It was a part and object of said conspiracy that the 18 defendants, and others known and unknown, would and did murder 19 United States nationals. 20 The federal statute that the defendants are charged 21 with violating in Count 1 is a provision of the United States 22 Code which provides in relevant part: 23 Whoever outside the United States ... engages in a 24 conspiracy to kill a national of the United States shall ... 25 in the case of a conspiracy by two or more persons to commit a 6100 1 killing that is a murder ... if one or more of such persons do 2 any overt act to effect the object of the conspiracy, is 3 guilty of a crime. 4 As to each of the four defendants charged, in order 5 to satisfy its burden of proof as to Count 1, the government 6 must establish each of the following five elements beyond a 7 reasonable doubt: 8 First, that two or more persons entered into an 9 unlawful agreement, the object of which was to murder 10 nationals of the United States as charged in Count 1 of the 11 indictment; 12 Second, that the defendant you are considering knowingly 13 and willfully became a member of that conspiracy, with the 14 intent to further its illegal purpose of murdering United 15 States nationals; 16 Third, that the defendant you are considering 17 knowingly and willfully engaged in the conspiracy while 18 outside of the United States; 19 Fourth, that one or more of the conspirators, but not 20 necessarily the defendant you are considering, knowingly 21 committed at least one of the overt acts charged in Count 1 of 22 the indictment, at or about the time alleged; and 23 Fifth, that at least one overt act which you 24 unanimously find to have been committed was knowingly and 25 willfully committed to effect the object of the conspiracy. 6101 1 The first element of Count 1 that the government must 2 prove beyond a reasonable doubt is that two or more persons 3 entered into the unlawful agreement charged in Count 1 of the 4 indictment. I have already instructed you as to what a 5 conspiracy is and how you should go about determining whether 6 one exists or not. However, you must keep in mind that each 7 of the conspiracy counts in the indictment charges a different 8 conspiracy, and you must make an independent determination on 9 each count as to whether the government has proven beyond a 10 reasonable doubt that the particular conspiracy existed. 11 In Count 1, the alleged purpose of the conspiracy was 12 to murder United States nationals. If you unanimously find, 13 beyond a reasonable doubt, that the conspirators agreed to 14 accomplish this unlawful objective, then the illegal purpose 15 element will have been satisfied. 16 I instruct you that a murder is defined as the 17 "unlawful killing of a human being with malice aforethought." 18 A killing is done with malice aforethought if it is done 19 consciously, with the intent to kill another person. In order 20 to establish this element, the government must prove that the 21 defendant you are considering acted willfully, with a bad or 22 evil purpose to break the law. However, the government need 23 not prove spite, malevolence, hatred or ill will. 24 I further instruct you that a "national of the United 25 States" is simply a citizen of the United States. 6102 1 The second element of Count 1 that the government 2 must prove beyond a reasonable doubt is that the defendant you 3 are considering knowingly, willfully and voluntarily became a 4 member of the conspiracy, with the intent to further its 5 unlawful purpose of murdering nationals of the United States. 6 I have previously explained to you how you are to 7 determine whether or not a person was a member of a charged 8 conspiracy, and you should rely on those instructions here and 9 in connection with the remaining counts. I have also defined 10 the terms "knowingly and willfully" and what sort of evidence 11 may help you guide your assessment of a defendant's state of 12 mind. Please rely on those instructions as you consider Count 13 1 and the other conspiracy counts. 14 The third element of Count 1 that the government must 15 prove beyond a reasonable doubt is that the defendant you are 16 considering engaged in the charged conspiracy while outside 17 the United States. 18 Thus you must find that the conspirators' illegal 19 agreement to murder United States nationals existed outside 20 the United States, and that the defendant you are considering 21 knowingly and willfully engaged in that conspiracy while 22 outside the United States. It does not matter if you find 23 that he also engaged in that conspiracy while in the United 24 States. 25 The term "United States" is used in its territorial 6103 1 sense. It includes all the states, territories and 2 possessions of the United States and all places whether on the 3 North American continent or on islands, and all waters subject 4 to the jurisdiction of the United States. 5 I instruct you that the following places, to name but a 6 few, are all outside of the United States: Afghanistan, 7 Azerbaijan, Canada, Iran, Kenya, Pakistan, Saudi Arabia, 8 Somalia, Sudan, Tanzania, the United Kingdom, and Yemen. 9 The fourth element of Count 1 that the government 10 must prove beyond a reasonable doubt is that one or more of 11 the conspirators, but not necessarily any of the four 12 defendants, knowingly committed at least one of the overt acts 13 charged in Count 1 of the indictment, at or about the time and 14 place alleged. Count 1 alleges that various conspirators 15 committed 65 overt acts, which appear in paragraphs 12A to 16 12MMM of the indictment. For the government to satisfy this 17 element, you must find beyond a reasonable doubt that at least 18 one of these overt acts was knowingly committed by at least 19 one individual whom you find to be a coconspirator in Count 1, 20 and you the jury must unanimously agree on which, if any, was 21 the specific overt act committed. 22 The fifth and final element of Count 1 that the 23 government must prove beyond a reasonable doubt is that at 24 least one of the overt acts which you unanimously find to have 25 been committed was knowingly and willfully committed for the 6104 1 purpose of carrying out the unlawful agreement to murder 2 nationals of the United States. 3 I have already instructed you as to this element in 4 my general remarks on conspiracy law, and you should rely on 5 those instructions in evaluating this element of Count 1. 6 When you reach a unanimous verdict as to each defendant 7 charged in Count 1, you must enter that verdict in the 8 appropriate space of the special verdict form. 9 Now, let's just turn from this document to the 10 document headed "Verdict Form". It says on the cover: Please 11 note that as to each question on this form and as to all 12 verdicts on this form, your vote as a jury must be unanimous. 13 Then you see on page 1 it says: Count 1 charges that 14 defendants Wadih El Hage, Mohamed Sadeek Odeh, Mohamed Rashed 15 Daoud Al-'Owhali, and Khalfan Khamis Mohamed, while they were 16 situated outside the United States, engaged in a conspiracy to 17 murder nationals of the United States. Do you find that the 18 defendant listed below is guilty or not guilty of this 19 offense? The four defendants are listed below and there is a 20 place to check your verdict, guilty or not guilty. 21 Going back to the on page 57, we turn to Count 2 of 22 the indictment, charging all four defendants with conspiring 23 to murder officers or employees of the United States while 24 such officers or employees were engaged in or on account of 25 the performance of official duties, and to murder 6105 1 internationally protected persons. Specifically, Count 2 2 charges, and I am now reading from paragraphs 14 and 15 of the 3 indictment, that: 4 From at least 1991 until the date of the filing of 5 this indictment, May 8, 2000, in the Southern District of New 6 York, in Afghanistan, the United Kingdom, Pakistan, the Sudan, 7 Saudi Arabia, Yemen, Somalia, Kenya, Tanzania, Azerbaijan, the 8 Philippines and elsewhere out of the jurisdiction of any 9 particular state or district.... the defendants, at least one 10 of whom was first brought to and arrested in the Southern 11 District of New York, together with other members and 12 associates of Al Qaeda, Egyptian Islamic Jihad, and others 13 known and unknown to the grand jury, unlawfully, willfully, 14 and knowingly combined, conspired, confederated and agreed 15 unlawfully to kill individuals. 16 It was a part and objective of said conspiracy that 17 the defendants, and others known and unknown, would and did: 18 (1) kill officers and employees of the United States and 19 agencies and branches thereof while such employees were 20 engaged in, and on account of, the performance of their 21 official duties, and persons assisting such employees in the 22 performance of their duties ... including members of the 23 American military stationed in Saudi Arabia, Yemen, Somalia 24 and elsewhere, and employees of the United States embassies in 25 Nairobi, Kenya, and Dar es Salaam, Tanzania; and (2) kill 6106 1 internationally protected persons ... 2 The statute which the defendants are charged with 3 violating in Count 2 is a statute which provides in relevant 4 part: 5 If two or more persons conspire to violate section 6 1114 or 1116 of this title and one or more of such persons do 7 any overt act to effect the object of the conspiracy, each is 8 guilty of a crime. 9 Section 1114 makes it a crime to kill any officer or 10 employee of the United States while such officer or employee 11 is engaged in or on account of the performance of official 12 duties, or any person assisting such officer or employee in 13 the performance of such duties, or on account of that 14 assistance. Section 1116 makes it a crime to kill an 15 internationally protected person. 16 With respect to each of the four defendants charged, 17 in order to satisfy its burden of proof as to Count 2, the 18 government must establish each of the following four elements 19 beyond a reasonable doubt: 20 First, that two or more persons entered into a 21 conspiracy, the objects of which were to murder officers or 22 employees of the United States while such officers or 23 employees were engaged in or on account of the performance of 24 official duties, as well as to murder internationally 25 protected persons, as charged in Count 2 of the indictment; 6107 1 Second, that the defendant you are considering 2 knowingly and willfully became a member of that conspiracy, 3 with the intent to further one or both of these two unlawful 4 purposes; 5 Third, that one or more of the conspirators, but not 6 necessarily the defendant you are considering, knowingly 7 committed at least one of the overt acts charged in Count 2 of 8 the indictment at or about the time alleged; and 9 Fourth; that at least one overt act which you 10 unanimously find to have been committed was knowingly and 11 willfully committed to effect the illegal objective of the 12 conspiracy. 13 The first element of Count 2 that the government must 14 prove beyond a reasonable doubt is that two or more persons 15 entered into the unlawful agreement charged in Count 2 of the 16 indictment. I have already instructed you as to what a 17 conspiracy is and how you should go about determining whether 18 one existed. 19 In Count 2, the unlawful objectives alleged to be the 20 objects of the conspiracy were: (1) to kill, in a manner 21 which constitutes murder, officers or employees of the United 22 States, or agencies and branches thereof, while such officers 23 or employees were engaged in, or on account of, the 24 performance of their official duties, or persons assisting 25 such employees in the performance of their duties, including 6108 1 members of the American military stationed in Saudi Arabia, 2 Yemen, Somalia or elsewhere, or employees of the United States 3 embassies in Nairobi, Kenya, or Dar es Salaam, Tanzania; and 4 (2) kill, in a manner which constitutes murder, 5 internationally protected persons. 6 Recall that "murder" is defined as a killing which is done 7 consciously, that is, with the intent to kill another person. 8 If you find, beyond a reasonable doubt, that the 9 conspirators agreed to accomplish one or both of these two 10 unlawful objectives as charged in Count 2 of the indictment, 11 then the illegal purpose element will be satisfied. Although 12 the finding of one unlawful objective is sufficient to satisfy 13 the illegal purpose element, you the jury must unanimously 14 agree on which, if any, were the specific unlawful objects of 15 the alleged conspiracy. You must indicate your unanimous 16 finding on the special verdict form, and we will look at that 17 in a moment. 18 I instruct you that an individual performs an 19 "official duty" when he acts within the scope of what he is 20 employed to do. To murder someone "on account of the 21 performance of their official duties" is to murder someone 22 because he or she performs that duty. 23 The term "officers and employees of the United 24 States" is self-explanatory. It includes officers and 25 employees of any agency in any branch of the United States 6109 1 government, including members of the uniformed services. 2 The parties have stipulated that 41 persons were inside 3 the United States Embassy in Nairobi, Kenya, on August 7, 4 1998, and that they were officers and employees of the United 5 States, and that two persons were inside the American Embassy 6 in Dar es Salaam, Tanzania, on August 7, 1998, and they were 7 officers and employees of the United States. 8 An "internationally protected person" is a 9 representative, officer, employee or agent of the United 10 States government who at the time and place concerned was 11 entitled, pursuant to international law, to special protection 12 against attack upon his person, freedom or dignity. The 13 parties have also stipulated that two persons who were inside 14 the American Embassy in Nairobi, Kenya, on August 7, 1998, 15 fall under the definition of "internationally protected 16 persons." 17 The second element of Count 2 that the government 18 must prove beyond a reasonable doubt is that the defendant you 19 are considering knowingly, willfully and voluntarily became a 20 member of the conspiracy, with intent to further its unlawful 21 purpose. 22 I have previously explained to you how you are to 23 determine whether a person was a member of a charged 24 conspiracy, and also the definition of the terms "knowingly" 25 and "willfully," and you should rely on those instructions as 6110 1 you consider Count 2 and the other conspiracy Counts. 2 The third element of Count 2 that the government must 3 prove beyond a reasonable doubt is that one or more of the 4 conspirators, but not necessarily the defendant you are 5 considering, knowingly committed at least one of the overt 6 acts charged in Count 2 of the indictment, at or about the 7 time alleged. 8 Count 2 alleges as overt acts the same 65 overt acts 9 that are charged in Count 1, which are found in paragraphs 12A 10 to 12MMM of the indictment. 11 To satisfy this element of Count 2, you must find 12 that at least one of these overt acts was committed by at 13 least one individual whom you find to be a coconspirator in 14 Count 2. You the jury must unanimously agree on which, if 15 any, was the specific overt act committed. 16 Even if you may have already found one of these overt 17 acts to have been knowingly committed in connection with the 18 other conspiracy counts, you still must separately find beyond 19 a reasonable doubt that one of these overt acts was knowingly 20 committed with respect to Count 2. 21 The fourth element of Count 2 that the government 22 must prove beyond a reasonable doubt is that at least one 23 overt act was knowingly and willfully committed for the 24 purpose of carrying out the unlawful agreement. I have 25 already instructed you as to the same element in connection 6111 1 with my general remarks on the law of conspiracy, and you 2 should rely on those instructions in evaluating this element 3 of Count 2. 4 Here too, the fact that you have already found that 5 an overt act was knowingly and willfully committed for the 6 purpose of carrying out some other conspiracy charged in the 7 indictment does not relieve you of your obligation to find, 8 beyond a reasonable doubt, that it, or some other overt act, 9 was knowingly and willfully committed in order to fulfill the 10 unlawful purposes of the conspiracy charged in Count 2. 11 For each of the defendants charged in Count 2, once you 12 have reached a unanimous verdict, you must indicate that 13 verdict on the special verdict form. Let's turn again to the 14 special verdict form on Count 2, which is on page 2 of the 15 special verdict form. It reads: 16 Count 2 charges Wadih El Hage, Mohamed Sadeek Odeh, 17 Mohamed Rashed Daoud Al-'Owhali and Khalfan Khamis Mohamed 18 with conspiring to murder officers or employees of the United 19 States while such officers or employees were engaged in or on 20 account of the performance of official duties, and to murder 21 internationally protected persons. 22 Do you find that the defendant listed below is guilty or 23 not guilty of this offense? 24 And then there are the names and the box for guilty or not 25 guilty. 6112 1 (Continued on next page) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6113 1 THE COURT: (Continuing) But Count Two goes on, as 2 Count One did not, because the conspiracy alleged in Count Two 3 has two separate objectives. Count One has only one 4 objective: To kill nationals of the United States. Count Two 5 has two objectives. For that reason, we ask you in the middle 6 of that page, "If you find at least one defendant guilty of 7 Count Two, answer part A below. If you find all four 8 defendants not guilty of Count Two, skip part A below." 9 And what part A below asks is: Did the conspiracy 10 charged in Count Two include one or both of the following 11 objectives? And we ask you to check "yes" or "no" as to the 12 objective alleged in the indictment as an objective of this 13 conspiracy. If you found both, then you check "yes" as to 14 both. If you found neither, then you check "no" as to both 15 and your verdict would be not guilty. If you found "yes" as 16 to one and "no" as to the other, the object of the conspiracy 17 requirement would be satisfied. 18 And that takes us to Three. You get to reserve as 19 you go along because you see there's a pattern and there's a 20 repetition here, although it is important that you follow 21 carefully these instructions and the language of the 22 indictment. 23 We'll turn to Count Three after we take our mid 24 afternoon recess. 25 (Recess) 6114 1 THE COURT: Turning then to Count Three and page 62 2 of the court's instructions, if you are reading along with me, 3 Count Three of the indictment charges only defendants Mohamed 4 Sadeek Odeh, Mohamed Rashed Daoud Al-'Owhali, and Khalfan 5 Khamis Mohamed with conspiring to use weapons of mass 6 destruction -- to wit, bombs -- against United States 7 nationals while such nationals were outside the United States, 8 and against property owned, leased, or used by the United 9 States. 10 Defendant Wadih El Hage is not named as a defendant in 11 this Count. 12 Count Three charges, and I am now reading from 13 paragraphs 18 and 19 of the indictment, that: 14 From at least 1991 until the date of the filing of 15 this indictment [May 8, 2000], in the Southern District of New 16 York, and in those other countries, those three defendants, 17 that is, all of the defendants except the defendant Wadih El 18 Hage, at least one of whom was first brought to and arrested 19 in the Southern District of New York, together with other 20 members and associates of al Qaeda, Egyptian Islamic Jihad, 21 and others known and unknown to the Grand Jury, unlawfully, 22 willfully, and knowingly combined, conspired, confederated, 23 and agreed unlawfully to use weapons of mass destruction, to 24 wit, bombs, against nationals of the United States while such 25 nationals would be outside the United States and against 6115 1 property that is owned, leased, and used by the United States 2 or by departments and agencies of the United States. 3 It was a part and an object of said conspiracy that 4 the defendants, and others known and unknown, would and did: 5 (i) bomb the American embassies in Nairobi, Kenya, and Dar es 6 Salaam, Tanzania, and employees of the American government 7 stationed at those embassies, and (ii) attack American 8 military facilities in the Gulf region and the Horn of Africa, 9 and members of the American military stationed in Saudi 10 Arabia, Yemen, Somalia, and elsewhere with bombs. 11 The statute that defendants Odeh, Al-'Owhali and 12 Mohamed are charged with violating in Count Three is a section 13 of the criminal code which provides, in relevant part, that: 14 A person who, without lawful authority ... conspires 15 to use a weapon of mass destruction ... against a national of 16 the United States while such national is outside of the United 17 States ... or against any property that is owned, leased or 18 used by the United States or by any department or agency of 19 the United States, whether the property is within or outside 20 of the United States, [is guilty of a crime]. 21 With respect to each of the three defendants charged, 22 in order to satisfy its burden of proof as to Count Three, the 23 government must establish each of the following three elements 24 beyond a reasonable doubt: 25 First, that two or more persons entered into an 6116 1 unlawful agreement to use weapons of mass destruction against 2 nationals of the United States while such nationals were 3 outside of the United States, and against any property owned, 4 leased, or used by the United States or any department or 5 agency of the United States; 6 Second, that the defendant you are considering 7 knowingly and willfully became a member of that conspiracy, 8 with the intent to further one or both of these two illegal 9 purposes; and 10 Third, that the conspiracy existed on or after 11 September 13, 1994, and that the defendant you are considering 12 was a knowing and willful member of that conspiracy on or 13 after that date. 14 The first element of Count Three that the government 15 must prove beyond a reasonable doubt is that two or more 16 persons entered into the unlawful agreement to use weapons of 17 mass destruction against United States nationals while such 18 nationals were outside the United States, and against any 19 property owned, leased, or used by the United States. Again, 20 the principles of conspiracy that I have already explained to 21 you apply here as well. 22 You need to understand the definition of certain 23 terms used in the count. A "weapon of mass destruction" is 24 defined to include, among other things, any explosive or 25 incendiary bomb or similar device. As I instructed you 6117 1 earlier, a "national of the United States" is simply a citizen 2 of the United States. Finally, the term "outside the United 3 States" depends on the territorial definition of "United 4 States" that I gave you earlier. 5 In Count Three, the unlawful objectives alleged to be 6 the objects of the conspiracy were: (i) to bomb the American 7 Embassy in Nairobi, Kenya, or Dar es Salaam, Tanzania, or 8 employees of the American government stationed at those 9 embassies; and (ii) attack American military facilities in the 10 Gulf region or the Horn of Africa, or members of the American 11 military stationed in Saudi Arabia, Yemen, Somalia, or 12 elsewhere with bombs. 13 If you find, beyond a reasonable doubt, that the 14 conspirators agreed to accomplish one or both of these two 15 unlawful objectives, as charged in Count Three of the 16 indictment, then the illegal purpose element will be 17 satisfied. Although the finding of one unlawful objective is 18 sufficient to satisfy the illegal purpose element, you, the 19 jury, must unanimously agree on which, if any, were the 20 specific unlawful objects of the alleged conspiracy. Your 21 unanimous finding must be indicated on the special verdict 22 form. 23 The second element of Count Three that the government 24 must prove beyond a reasonable doubt is that the defendant you 25 are considering knowingly, willfully, and voluntarily became a 6118 1 member of the conspiracy, with the intent to further its 2 illegal purpose. 3 You should rely on my previous instructions 4 concerning how you are to determine whether a person was a 5 member of a charged conspiracy, and also regarding the 6 definitions of "knowingly" and "willfully." 7 The third and final element of Count Three that the 8 defendant must prove beyond a reasonable doubt that the 9 conspiracy charged in Count Three existed at some point on or 10 after September 13, 1994, and that the defendant you are 11 considering was a knowing and willful member of the conspiracy 12 on or after that date. 13 Now, this requirement is necessary because, although 14 Count Three alleges that the conspiracy existed "from at least 15 1991 until the date of the filing of this indictment [May 8, 16 2000]" the statute under which Count Three is charged was not 17 enacted until September 13, 1994. 18 That's the first time you have heard that day and 19 that's the reason for it. 20 You may be wondering why I have not mentioned the 21 overt act elements of conspiracy in connection with Count 22 Three. That's because, unlike the conspiracies charged in 23 Count One and Count Two, which require you to find at least 24 one overt act was committed by one of the conspirators in 25 furtherance of the conspiracy, the conspiracy charged in Count 6119 1 Three has no overt act requirement under the terms of the 2 relevant statute. Thus, you may find that the elements of 3 Count Three are satisfied without finding that an overt act 4 was committed. 5 And when you reach a unanimous verdict as to each 6 defendant charged in Count Three, you must enter that verdict 7 on the special verdict form. And let's look at the special 8 verdict form for Count Three, which is on Count Three. 9 And it says, Count Three charges the defendants Odeh, 10 Al-'Owhali and Mohamed, with conspiring to use weapons of mass 11 destruction -- to wit, bombs -- against the United States 12 nationals while such nationals were outside the United States, 13 and against property owned, leased, or used by the United 14 States. 15 And then it asks you to indicate your finding as to 16 the guilt or not guilt. 17 And then, because there are two objects of the 18 conspiracy, we ask that if you find at least one defendant 19 guilty of Count Three, answer part A below. If you find all 20 three defendants not guilty, skip part A. 21 Part A says: Did the conspiracy charged in Count Three 22 include one or more of the following objectives? 23 1. To bomb the American embassies in Nairobi, Kenya, or 24 Dar es Salaam, Tanzania, or employees of the American 25 government stationed at those embassies? Yes/No. 6120 1 2. To attack military facilities in the Gulf region 2 or the Horn of Africa, or members of the American military 3 stationed in Saudi Arabia, Yemen, Somalia, or elsewhere with 4 bombs? Yes/No. 5 If you unanimously find both, then you check "yes" 6 for both. If you unanimously find "no" as to each, then you 7 check "no" as to each, in which case you must find the 8 defendants not guilty. If you find "yes" as to one and "no" 9 as to the other, so indicate. And as long as you unanimously 10 find one of the objectives to be satisfied, that requirement 11 of the government's burden of proof will be satisfied. 12 Then we turn to the last of the conspiracy Counts, 13 Count Four. Count Four of the indictment charges all four 14 defendants with conspiring to maliciously damage or destroy 15 United States property by means of an explosive. 16 Specifically, Count Four charges, and I am now reading 17 paragraphs 22 and 23 of the indictment, and then the beginning 18 of that is the same as the previous one, and the allegation 19 is: 20 Unlawfully, willfully and knowingly, combined, conspired, 21 confederated and agreed unlawfully to maliciously damage and 22 destroy, by means of fire and explosives, buildings, vehicles 23 and other personal and real property in whole or in part owned 24 and possessed by, and leased to, the United States and 25 departments and agencies thereof ... 6121 1 It was a part and an objective of said conspiracy 2 that the defendants would and did: (i) bomb American 3 facilities anywhere in the world, including the American 4 embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania; 5 [and] (ii) attack military installations and members of the 6 American military stationed at such military installations in 7 Saudi Arabia, Yemen, Somalia, and elsewhere with bombs ... 8 The statute that the defendants are charged with 9 violating in Count Four reads in pertinent part: 10 [A] person who conspires to [maliciously damage or 11 destroy ... by means of an explosive ... any building, vehicle 12 or other personal or real property in whole or in part owned 13 or possessed by, or leased to the, the United States, or any 14 department or agency thereof] shall be [guilty of a crime]. 15 With respect to each of the four defendants charged, 16 in order to satisfy its burden of proof as to Count Four, the 17 government must establish each of the following three elements 18 beyond a reasonable doubt: 19 First, that two or more persons entered into an unlawful 20 agreement with one another, the object of which was to 21 maliciously damage or destroy United States property, by means 22 of an explosive, as charged in Count Four; 23 Second, that the defendant you are considering 24 knowingly and willfully became a member of that conspiracy, 25 with the intent to further its unlawful purpose of maliciously 6122 1 damaging or destroying United States property by means of an 2 explosive; and 3 Third, that the conspiracy existed on or after April 4 24, 1996, and that the defendant you are considering was a 5 knowing and willful member of that conspiracy on or after that 6 date. 7 The first element that the government must prove 8 beyond a reasonable doubt is that two or more persons entered 9 into the unlawful agreement charged in Count Four of the 10 indictment. I have already instructed you as to what a 11 conspiracy is, and how you should go about determining whether 12 one existed. And you should rely on those instructions in 13 considering this element of Count Four. 14 In Count Four, the alleged unlawful purpose of the 15 conspiracy was to maliciously damage or destroy United States 16 property, by means of an explosive. Specifically, Count Four 17 charges that the illegal objectives of the conspiracy were to: 18 (i) to bomb American facilities anywhere in the world, 19 including the American embassies in Nairobi or Dar es Salaam; 20 and (ii) attack military installations or members of the 21 American military at such military installations in Saudi 22 Arabia, Yemen, Somalia or elsewhere with bombs. 23 I instruct you that to act "maliciously" means to act 24 intentionally or with willful disregard of the likelihood that 25 damage or injury would result from one's acts. 6123 1 The statute defines "explosives" as "gunpowders, 2 powders used for blasting, all forms of high explosives, 3 blasting materials, fuses (other than electric circuit 4 breakers), detonators, and other detonating agents, smokeless 5 powders ... and any chemical compounds, mechanical mixture, or 6 device that contains any oxidizing and combustible units, or 7 other ingredients, in such proportions, quantities, or packing 8 that ignition by fire, by friction, by concussion, by 9 percussion, or by detonation of the compound, mixture, or 10 device or any part thereof may cause an explosion." The 11 statute also includes within its definition of "explosives 12 "dynamite and all other forms of high explosives, any 13 explosive bomb, grenade, missile, or similar device, including 14 any incendiary bomb or grenade, fire bomb, or similar device, 15 including any device which consists of or includes a breakable 16 container including a flammable liquid or compound, and a wick 17 composed of any material which, when ignited, is capable of 18 igniting such flammable liquid or compound, and can be carried 19 or thrown by one individual acting alone." 20 If you find, beyond a reasonable doubt, that the 21 conspirators agreed to accomplish one or both of these two 22 unlawful objectives, as charged in Count Four of the 23 indictment, then the illegal purpose will be satisfied. 24 Although the finding of one unlawful objective is sufficient 25 to satisfy the illegal purpose element, you, the jury, must 6124 1 unanimously agree on which, if any, were the specific unlawful 2 objects of the alleged conspiracy. Your unanimous finding 3 must be indicated on the special verdict form. 4 The second element of Count Four that the government 5 must prove beyond a reasonable doubt is that the defendant you 6 are considering knowingly, willfully, and voluntarily became a 7 member of the conspiracy, with the intent to further its 8 illegal purpose of maliciously damaging or destroying United 9 States property by means of an explosive. 10 I have previously explained to you how you determine 11 whether a person was a member of a charged conspiracy, and you 12 should rely on those instructions here. I have also defined 13 the terms "knowingly" and "willfully," and what sort of 14 evidence may help you guide your assessment of a defendant's 15 state of mind. Please rely on those instructions as you 16 consider this element of Count Four. 17 The third and final element of Count Four that the 18 government must prove beyond a reasonable doubt is that the 19 conspiracy charged in Count Four existed at some point on or 20 after April 24, 1996, and that the defendant you are 21 considering was a knowing and willful member of that 22 conspiracy on or after that date. 23 Here too, this element is needed because, although 24 Count Four alleges that the conspiracy existed "from at least 25 1991 until the date of the filing of this indictment [May 8, 6125 1 2000]," the statute under which Count Four is charged was not 2 enacted until April 24, 1996. 3 As with the conspiracy charged in Count Three, the 4 conspiracy charged in Count Four has no overt act element. 5 Thus, you may find that the elements of Counts four are 6 satisfied without finding that an overt act was committed. 7 Now, if, but only if, you find that the government 8 has proven, beyond a reasonable doubt, all of the elements of 9 Count Four as to defendants Odeh, Al-'Owhali or K.K. Mohamed, 10 then you must consider an additional question as to those 11 three defendants. 12 You must determine whether the unlawful conduct 13 committed by the defendant you are considering in Count Four 14 directly or proximately caused the death of at least one 15 person other than a conspirator. 16 "Directly caused" means that the conduct of the 17 defendant you are considering directly resulted in the death 18 in question. 19 "Proximately caused" means that there was a 20 sufficient causal connection between the act of the defendant 21 under consideration and the death of any victim. An act is a 22 proximate cause if it was a substantial factor in bringing 23 about or actually causing death, that is, if the death was a 24 reasonably foreseeable consequence of that defendant's act. 25 If a death was a direct result or a reasonably probable 6126 1 consequence of that defendant's act, it was proximately caused 2 by such act. In other words, if that defendant's act had such 3 an effect in producing the death that reasonable persons would 4 regard it as being a cause of the death, then the act is a 5 proximate cause. 6 A proximate cause need not always be the nearest 7 cause either in time or in space. In addition, there may be 8 more than one proximate cause of a death. Many factors or the 9 conduct of two or more people may operate at the same time, 10 either independently or together, to cause a death. 11 A defendant's act is not a proximate cause of a death 12 if the death was caused by a new or independent source that 13 intervened between the defendant's act and the death, and that 14 produced a result that was not reasonably foreseeable by the 15 defendant you are considering. 16 For purposes of this narrow inquiry only, it is not 17 relevant whether or not the defendant being considered 18 intended for his unlawful conduct to cause death. The simple 19 question being asked of you here is, having already found 20 beyond a reasonable doubt that a defendant committed the 21 offense alleged in Count Four of the indictment, do you 22 additionally find that his unlawful conduct directly or 23 proximately caused death to a person other than a conspirator? 24 Your unanimous answer to this question, with respect to the 25 particular defendant you are considering, must be marked in 6127 1 the appropriate place on the special verdict form. 2 When you reach an unanimous verdict as to each 3 defendant charged in Count Four, you must enter that verdict 4 on the special verdict form. 5 And let's turn to page 4 in Count Four of the indictment. 6 And it says there, Count Four charges that ther are four 7 defendants charged with conspiring to maliciously damage or 8 destroy United States property, by means of an explosive. Do 9 you find the defendant listed below is guilty or not guilty of 10 this offense, and then the four defendants are listed. 11 And then other questions follow. 12 If you find at least one defendant guilty of Count Four, 13 answer parts A through D below. If you find all four 14 defendants not guilty of Count Four, skip parts A through D 15 below. 16 And A asks, as was the case with Counts Two and 17 Three, with respect to the objectives: Do you unanimously 18 find that objective one was considered or that objective two 19 was considered. If you find them both, you answer them both 20 "yes." If you find them both "no," then you have to find the 21 defendants not guilty. If you find one "yes" and one "no," 22 then the requirement of proving the object of the conspiracy 23 will have been satisfied. 24 Then it goes on, and it says: If and only if you 25 find defendant Mohamed Sadeek Odeh guilty as to Count Four, 6128 1 answer the following question. If you find Mohamed Sadeek not 2 guilty as to Count Four, skip the following question and 3 proceed to part C below. 4 And question B is: Do you find beyond a reasonable 5 doubt that defendant Mohamed Sadeek Odeh's crime of conspiracy 6 in Count Four directly or proximately caused the death of at 7 least one person other than a conspirator? Yes or no. 8 And C asks the same question as to Al-'Owhali and D 9 asks the same question as to K.K. Mohamed. 10 So you see that all the things that you are called 11 upon by my instructions to decide are indicated in the special 12 verdict form, which is why I say it's a road map. 13 That finishes the conspiracy counts and I come now, 14 ladies and gentlemen, to the substantive counts of the 15 indictment arising out of the bombings of the United States 16 embassies in Kenya and Tanzania, and these are numbered as 17 Counts Five through 284 in this indictment. 18 All these substantive counts allege violations of 19 United States law which are also alleged to have been some of 20 the objects of the conspiracy charged in Counts One through 21 Four of the indictment. 22 Conspiracy, as you will recall, is a crime separate 23 from the actual violations of the United States law that forms 24 its objective. Accordingly, because the government contends 25 that the substantive violations I will now instruct you on 6129 1 actually occurred, some of the defendants are charged in the 2 indictment with committing the substantive offenses in 3 addition to conspiring to commit them. 4 Now, Counts Five and Six may be considered together. 5 Count Five charges defendants Odeh and Al-'Owhali with 6 explosive damage or destruction of federal property, that is, 7 the American Embassy in Nairobi, Kenya. Specifically, Count 8 Five charges: 9 On or about August 7, 1998, in Nairobi, Kenya, and 10 outside the jurisdiction of any particular state or 11 district, ... Mohamed Sadeek Odeh ... and Mohamed Rashid Daoud 12 Al-'Owhali, the defendants, at least one whom was first 13 brought to and arrested in the Southern District of New York, 14 and others known and unknown, unlawfully, willfully and 15 knowingly did maliciously damage and destroy, by means of fire 16 and an explosive, buildings, vehicles and other personal and 17 real property in whole and in part owned or possessed by, and 18 leased to, the United States, to wit, the defendants, together 19 with other members and associates of al Qaeda and the Egyptian 20 Islamic Jihad, detonated an explosive device that damaged and 21 destroyed the United States Embassy in Nairobi, Kenya, and as 22 a result of such conduct directly and proximately caused the 23 deaths of at least 213 persons, including Kenyan and American 24 citizens, as listed in Counts Nine to 221. 25 Count Six of the indictment charges K.K. Mohamed with 6130 1 explosive damage or destruction of the United States Embassy 2 in Dar es Salaam, Tanzania. It follows the same language as 3 Count Five, except that it says, "and as a result of such 4 conduct, directly and proximately caused the deaths of at 5 least 11 persons, including Tanzanian citizens, as listed in 6 Counts 222 to 232." 7 Both Counts Five and Six charge a violation of the 8 statute which provides: "Whoever maliciously damages or 9 destroys, or attempts to damage or destroy, by means of fire 10 or an explosive, any building, vehicle, or other personal or 11 real property in whole or in part owned or possessed by, or 12 leased to, the United States, or any department or agency 13 thereof is guilty of a crime. 14 Before I explain these elements of the offenses, let 15 me pause to remind you of something I emphasized earlier. 16 Although, to expedite matters, I may in these instructions 17 occasionally refer to separate counts in pairs or in a group, 18 you, the jury, are required, as a matter of law, to consider 19 each count of the indictment and each defendant's involvement 20 in that count separately. 21 To satisfy its burden of proof as to Counts Five and 22 Six, the government must prove each of the following elements 23 beyond a reasonable doubt: 24 First, that the defendant you are considering used an 25 explosive to damage or destroy a building or other property; 6131 1 Second, that the building or other property which was 2 damaged or destroyed was federal property; and 3 Third, that the defendant acted unlawfully, 4 willfully, knowingly, and maliciously. 5 The first element of Counts Five and Six that the 6 government must prove beyond a reasonable doubt is that the 7 defendant you are considering, by means of fire or explosive, 8 damaged or destroyed property. 9 The terms "damage" and "destroy" have their ordinary 10 meaning. 11 When I explained the elements of the conspiracy 12 alleged in Count Four, I provided you with the statutory 13 definition of "explosives." You should apply that definition 14 here, as well. 15 If you find the defendant you are considering did 16 damage or destroy the United States Embassy in Nairobi, Kenya, 17 (in the case of Count Five), or the United States Embassy in 18 Dar es Salaam, Tanzania (in the case of Count Six), by means 19 of an explosive device, the first element of the offense is 20 satisfied for the count you are considering. 21 To satisfy this element, it is also sufficient if you 22 conclude that the defendant aided and abetted another person 23 in placing the explosive. 24 And interjecting: That's a concept we have not dealt with 25 before. 6132 1 And I will define this other type of criminal 2 responsibility -- "aiding and abetting" the commission of an 3 offense -- in a few moments and you should apply that 4 definition here. It is important for you to note that, with 5 respect to Count Five and each of the following counts through 6 Count 284 in which he is charged, defendant Odeh is only 7 accused by the government of aiding and abetting the 8 commission of the offenses charged. The government does not 9 contend that he physically committed the crimes charged in 10 those counts. 11 Let me say now that if you find that the government 12 has proven beyond a reasonable doubt that the defendant you 13 are considering aided and abetted the commission of the 14 offense, only this first element of Counts Five and Six is 15 established. To satisfy its burden of proof as to Counts Five 16 and Six, the government must prove beyond a reasonable doubt 17 each of the three of the elements that I listed a moment ago. 18 And I will now describe the second and third required elements 19 in greater detail. 20 The second element of Counts Five and Six that the 21 government must prove beyond a reasonable doubt is that the 22 property which was damaged or destroyed was federal property. 23 Federal property is defined in the statute as any 24 building, vehicle, or other real or personal property in whole 25 or in part owned, possessed, or used by the United States 6133 1 Government, or any institution or organization receiving 2 federal financial assistance. 3 The third and final element as to Counts Five and Six 4 the government must prove beyond a reasonable doubt is that 5 the defendant you are considering acted unlawfully, knowingly, 6 willfully, and maliciously. Earlier, when discussing 7 conspiracies in general and, in particular the elements of 8 Count Four, I defined all of those terms for you, but now I 9 will explain more about what it means to act "maliciously." 10 To act with malicious intent means to act either intentionally 11 or with willful disregard of the likelihood that damage will 12 result, and not mistakenly or carelessly. To find the 13 defendant you are considering guilty, you must find that the 14 defendant used the explosive, or aided and abetted the use of 15 the explosive, with the intent to cause damage, or that he did 16 so recklessly and without regard to the likelihood that damage 17 would result. 18 If, but only if, you find that the government has 19 proven beyond a reasonable doubt each of the elements of 20 Counts Five and Six as to the defendant you are considering, 21 then, as with Count Four, you must consider an additional 22 question as to that defendant. 23 First, you must determine whether the conduct 24 committed by the defendant you are considering in Count Five 25 or Six directly or proximately caused the death of at least 6134 1 one person other than a conspirator. I defined "directly 2 caused" and "proximately caused" for you earlier when I 3 explained the elements of Count Four and you should apply 4 those definitions here. 5 The government is not required to prove that the 6 defendant you are considering intended to kill any person. It 7 is enough that the crime directly or proximately caused a 8 person's death, and the person would not have died except for 9 the crime. 10 With respect to each of the defendants that you are 11 considering, you must indicate your unanimous finding as to 12 this question on the special verdict form. 13 With respect to Counts Five and Six and each of the 14 following counts through Count 284, the indictment also 15 charges the defendants named in those counts with violating 18 16 U.S.C. Section 2, in addition to other sections. Section 17 2(a), which is the one we're dealing with here, is called the 18 aiding and abetting statute, and it provides that "[w]hoever 19 commits an offense against the United States or aides, abets, 20 counsels, commands, induces or procures its commission, is 21 punishable as a principal." In other words, a defendant may 22 be held criminally responsible for certain conduct or actions 23 even if the evidence does not show the defendant personally 24 committed these acts. 25 Under this statute it is not necessary for the 6135 1 government to show that the defendant himself committed the 2 crime with which he is charged in order for you to find him 3 guilty. A person who aids and abets another to commit an 4 offense is just as guilty of that offense as if he committed 5 it himself. Accordingly, you may find the defendant guilty if 6 you find beyond a reasonable doubt that the government has 7 proven that another person actually committed the offense and 8 that the defendant aided and abetted that person in the 9 commission of the offense. 10 Please remember that this instruction applies only to 11 Counts Five through 284, which is why we include it at this 12 point in our instructions. The legal principles outlined in 13 this instruction are distinct from those described in Counts 14 One through Four, all of which dealt with the crime of 15 conspiracy. You are not to consider this instruction when 16 deliberating whether the government has proven the elements of 17 conspiracy beyond a reasonable doubt with regard to a 18 particular defendant. 19 As you can see, the first requirement is that you 20 find that another person has committed the crime charged. 21 Obviously, no one can be convicted of aiding and abetting the 22 criminal acts of another if no crime was committed by the 23 other person in the first place. But if you do find that a 24 crime was committed, then you must consider whether the 25 defendant you are considering aided and abetted the commission 6136 1 of the crime. On a related note, let me say here that if you 2 are finding the defendant you are considering himself 3 committed the crime charged, you need not consider whether he 4 also aided and abetted another person's commission of the 5 crime. That is to say, if you find that the defendant you are 6 considering acted as a principal -- interjecting: by acting 7 as a principal, we mean somebody who himself did it. If you 8 find the defendant you are considering acted as a principal 9 and personally committed the offense, then you do not need to 10 evaluate whether he might also have acted as an aider and 11 abettor with another person. 12 To aid and abet another to commit a crime, it is 13 necessary that the defendant willfully and knowingly associate 14 himself in some way with the crime, and that he willfully and 15 knowingly seek by some act to help make the crime succeed. 16 When I explained the elements of a conspiracy, I gave you the 17 definitions of the terms "willfully" and "knowingly" which you 18 should apply here. 19 The mere presence of a defendant where a crime is 20 being committed, even coupled with knowledge that a crime is 21 occurring, or the mere acquiescence by the defendant in the 22 criminal conduct of others, even with guilty knowledge, is not 23 sufficient to establish aiding and abetting. An aider and 24 abettor must participate in the crime charged as something he 25 wished to bring about. 6137 1 In other words, you may not find the defendant you 2 are considering guilty unless you find beyond a reasonable 3 doubt that every element of the offense as defined in these 4 instructions was committed by some person or persons, and that 5 the defendant willfully and knowingly participated in the 6 commission of the crime. 7 To determine whether the defendant you are 8 considering aided and abetted the commission of the crime with 9 which he is charged, ask yourself these questions: 10 Did he participate in the crime charged as something 11 he wished to bring about? 12 Did he associate himself with the criminal venture 13 knowingly and willfully? 14 Did he seek by his actions to make the criminal 15 venture succeed? 16 If he did, then the defendant is an aider and 17 abettor, and therefore guilty of the offense. If, on the 18 other hand, your answers to these questions is "no," then the 19 defendant is not an aider and abettor, and you must find him 20 not guilty. 21 Before I move on, let me explain that for each count 22 where the government has alleged that defendants have aided 23 and abetted the commission of an offense -- that is, Counts 24 Five through 284 -- if you determine that the government has 25 proven that the defendant you are considering is guilty of the 6138 1 offense charged, you will be asked to indicate, on the special 2 verdict form, whether the defendant personally committed the 3 offense in question or whether he aided and abetted another 4 person to commit the offense. Only one of these options may 5 be marked and your decision must be unanimous. 6 However, as I have already mentioned to you, in those 7 counts between Count Five and 284 in which he is named as a 8 defendant -- that is, Counts Five, Seven, Nine through 221, 9 233 through 273, 274, 278, 279, 280, 282 and 283 -- defendant 10 Mohamed Sadeek Odeh is only charged by the government to have 11 aided and abetted the commission of the crimes charged. When 12 you are evaluating defendant Odeh's culpability under each of 13 those counts, you must assess whether he aided and abetted 14 another to commit the offense; you do not need to consider 15 whether he personally committed the crimes charged. 16 And when you reach a unanimous verdict as to the 17 defendant you are considering in Counts Five and Six, you must 18 enter your unanimous verdict in the appropriate place on the 19 special verdict form. 20 And if you look at Count Five, Count Five charges 21 defendants Mohamed Sadeek Odeh and Mohamed Rashed Daoud 22 Al-'Owhali with explosive damage or destruction of the United 23 States Embassy in Nairobi, Kenya. You must answer parts A 24 through C below. 25 Do you find that the defendant listed below is guilty 6139 1 or not guilty of explosive damage or destruction of the United 2 States Embassy in Nairobi, Kenya? 3 And it lists Odeh and it reminds you that Odeh is charged 4 with aiding and abetting only. And then Al-'Owhali. 5 Then with respect to Odeh, if and only if you find 6 Odeh guilty of aiding and abetting the explosive damage or 7 destruction of the Nairobi Embassy under Count Five, consider 8 the following question. If you find him not guilty, then 9 don't consider it. Go on to C. 10 And that asks: Do you find beyond a reasonable doubt that 11 defendant Mohamed Odeh's crime of aiding and abetting the 12 explosive damage or destruction of the Nairobi Embassy in 13 Count Five directly or proximately caused the death of at 14 least one person other than a conspirator? And it calls for a 15 "yes" or a "no." 16 Then with respect to Al-'Owhali, the questions are 17 different because as to Al-'Owhali he may be found guilty 18 either as a principal, as someone who did it himself, or as an 19 aider and abettor. 20 And so question C as to Al-'Owhali asks: If you found him 21 guilty: 1. Please specify whether unanimously you find that 22 defendant Al-'Owhali himself used an explosive to damage or 23 destroy the Nairobi Embassy, or whether you find that he aided 24 and abetted the use of an explosive to damage or destroy the 25 embassy. You are to put an "X" next to only one of the 6140 1 following choices. 2 And that's because, as we repeat in the footnote, if you 3 unanimously find the defendant you are considering himself 4 committed the offense charged, you need not consider whether 5 he also aided and abetted in the commission of that same 6 offense. 7 And this principle applies everywhere in this verdict form 8 in which you are required to indicate whether unanimously you 9 find the defendant you are considering himself committed the 10 offense or that he aided and abetted in the commission of the 11 offense. You only look to aiding and abetting if you have 12 concluded that the defendant did not personally commit the 13 offense. 14 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 6141 1 THE COURT: (Continuing) Then in 2 it asks: Do you 2 find beyond a reasonable doubt that defendant Mohamed Rasheed 3 Al-'Owhali's crime of explosive damage or destruction of the 4 Nairobi embassy in Count 5 directly or proximately caused the 5 death of at least one person other than a coconspirator? A 6 yes or no. 7 Count 6 is parallel to Count 5, relating to K.K. 8 Mohammed and the Dar es Salaam embassy, and asks the same 9 question with respect to K.K. Mohammed and Dar es Salaam. 10 If we may, we will continue until 5:00. You are such 11 good sports, really. 12 Count 7 charges defendants Odeh and Al-'Owhali with 13 the use of a weapon of mass destruction for bombing the 14 American Embassy in Nairobi, Kenya, and alleges that on or 15 about August 7, 1998, in Nairobi, Kenya, and outside the 16 jurisdiction of any particular state or district, Odeh and 17 Al-'Owhali -- and then the jurisdictional allegations which we 18 have previously seen -- unlawfully, willfully and knowingly, 19 and without lawful authority, did use a weapon of mass 20 destruction against nationals of the United States while such 21 nationals were outside the United States, and against property 22 that was owned, leased and used by the United States and by an 23 agency of the United States, to wit, the defendants attacked 24 the American Embassy in Nairobi, Kenya, and employees of the 25 American government stationed at this embassy with a bomb, 6142 1 which use of such weapon of mass destruction resulted in 2 death. 3 So you see what is happening is, the substantive 4 counts are following the conspiracy counts, have the same 5 pattern. The conspiracy counts allege these were the unlawful 6 objects of the conspiracy, the substantive counts allege that 7 they in fact did what the conspiracy counts allege they 8 conspired to do. 9 Count 8 follows the language of Count 7 except that 10 it relates to K.K. Mohammed and the American Embassy in Dar es 11 Salaam. 12 The statute that the defendants are charged with 13 violating in Counts 7 and 8 provides: 14 A person who, without lawful authority, uses... a weapon 15 of mass destruction... against a national of the United States 16 while such national is outside of the United States... or 17 against any property that is owned, leased or used by the 18 United States or by any department or agency of the United 19 States, whether the property is within or outside the United 20 States, is guilty of a crime. 21 To satisfy its burden of proof as to Count Counts 7 22 and 8, the government must establish each of the following 23 elements beyond a reasonable doubt: 24 First, that without lawful authority the defendant 25 you are considering knowingly and willfully used, or aided and 6143 1 abetted the use of, a weapon of mass destruction; and 2 Second, that the weapon of mass destruction was used 3 against a national of the United States while such national 4 was outside of the United States, or against any property that 5 was owned, leased, or used by the United States or by any 6 department or agency of the United States. 7 The first element of Counts 7 and 8 that the 8 government must prove beyond a reasonable doubt is that, 9 without lawful authority, the defendant you are considering 10 knowingly and willfully used, or aided and abetted the use of, 11 a weapon of mass destruction. I have previously defined the 12 terms "knowingly" and "willfully," and you should rely on 13 those definitions here. I instruct you that to act "without 14 lawful authority" is to act illegally and with a criminal 15 purpose. Lastly, I remind you that, as I explained when 16 reviewing the elements of Count 7, a "weapon of mass 17 destruction" is defined to include an explosive or incendiary 18 bomb. 19 In discussing Counts 5 and 6 I explained the concept 20 of "aiding and abetting," and you should rely on those 21 instructions when considering this first element of these 22 counts. Recall that with respect to Count 7 and defendant 23 Odeh, the government's theory is that he aided and abetted the 24 commission of the offense. The government does not allege 25 that defendant Odeh physically carried out the crime charged 6144 1 in Count 7. 2 To find the defendant you are considering guilty of 3 Counts 7 and 8, you must find that the government has 4 established beyond a reasonable doubt both elements of the 5 crime. 6 The second element of Counts 7 and 8 that the 7 government must prove beyond a reasonable doubt is that the 8 weapon of mass destruction was used against a national of the 9 United States while such national was outside the United 10 States and against any property that was owned, leased or used 11 by the United States or by any department or agency of the 12 United States. 13 I defined the terms "national of the United States" 14 and "United States" when I explained the elements of Count 3, 15 and you should rely on those definitions in considering these 16 counts. 17 Keep in mind that the government may prove Counts 7 18 and 8 by proving either that a weapon of mass destruction was 19 used against a national of the United States while that 20 national was outside the United States, or that a weapon of 21 mass destruction was used against property owned, leased or 22 used by the United States or by any department or agency of 23 the United States. The government is not required to prove 24 both, although you may find that both have been proven. All 25 that is required is that the government prove either 6145 1 allegation beyond a reasonable doubt with respect to the 2 defendant and count you are considering and that you be 3 unanimous as to the allegation proven. 4 Please remember that you must indicate your unanimous 5 verdict as to Counts 7 and 8 for each of the defendants you 6 are considering on the special verdict form. 7 If, but only if, you find the government has proven 8 beyond a reasonable doubt that the defendant you are 9 considering committed the offense charged in Counts 7 and 8, 10 you must then determine whether the conduct of that defendant 11 resulted in the death of any person other than a conspirator. 12 A death resulted from the defendant's conduct if the 13 defendant's conduct was a direct or proximate cause of the 14 death. The definitions of "direct" and "proximate cause" 15 provided in Counts 4, 5 and 6 apply here as well. Recall that 16 a defendant's conduct is a proximate cause of death if it is a 17 "substantial factor" in causing the death. In other words, to 18 find that the defendant's conduct is a proximate cause of 19 death, you must find that the person would not have died then, 20 except for the defendant's conduct. The defendant's conduct 21 is a "substantial factor" in causing a death if it has such an 22 effect in producing a death as to lead a reasonable person to 23 regard such conduct as a cause of the death. An event such as 24 the death of a person may have more than one cause. The 25 government need not prove that the defendant's conduct was the 6146 1 only cause of death; it need only prove that the defendant's 2 conduct was a substantial factor in causing the death. 3 Further, the government is not required to prove that the 4 defendant in question intended to kill any person. It is 5 enough that the crime caused a person's death and the person 6 would have died then except for the crime. 7 You must indicate your unanimous finding as to this 8 question and for each defendant you are considering on the 9 special verdict form. 10 (Pause) 11 THE COURT: I am told I left out a "not." What I 12 intended to say, page 35: Further, the government is not 13 required to prove that the defendant in question intended to 14 kill any person. It is enough that the crime caused a 15 person's death and the person would not have died except for 16 the crime. 17 If you look then at Count 7, it asks whether you find 18 the defendants Odeh and Al-'Owhali guilty or not guilty of the 19 crime alleged in Count 7. I remind you that as to Odeh you 20 may find him guilty only on a theory of aiding and abetting. 21 It asks you in B as to Odeh whether you find that the crime of 22 aiding and abetting the use of a weapon of mass destruction 23 for bombing the Nairobi embassy in Count 7 directly or 24 proximately caused the death of at least one person other than 25 a conspirator. 6147 1 With respect to Al-'Owhali, it asks in C whether you 2 find that Al-'Owhali himself used a weapon of destruction or 3 whether he aided and abetted the use of a weapon of mass 4 destruction. 5 Bear in mind what I tell you earlier in a footnote, that 6 if you find that somebody himself did it then you need not 7 consider aiding and abetting. So that you only answer one of 8 those. And 2 asks whether you find that Al-'Owhali's crime of 9 the use of a weapon of mass destruction directly or 10 proximately caused the death of at least one person other than 11 a conspirator. 12 Count 8 asks the same questions with respect to the 13 defendant K.K. Mohammed and the use of a weapon of mass 14 destruction in Dar es Salaam, Tanzania. 15 Then we turn to Counts 9 to 232, so we will have gone 16 through Count 232, rather than just through 8. 17 Counts 9 through 221 of the indictment charge 18 defendants Odeh and Al-'Owhali with the murders of 213 persons 19 in the course of an attack with a dangerous weapon on the 20 American Embassy in Nairobi, Kenya. Each count corresponds to 21 a person killed in the explosion at that embassy on August 7, 22 1998. Specifically, Counts 9 through 221 charge: 23 On or about August 7, 1998, in Nairobi, Kenya, and 24 outside the jurisdiction of any particular state or 25 district... Mohamed Sadeek Odeh: And Mohamed Rashed Daoud 6148 1 Al-'Owhali ... the defendants, at least one of whom was first 2 brought to and arrested in the Southern District of New York, 3 and others known and unknown, unlawfully, willfully, 4 deliberately and maliciously and with malice aforethought and 5 with premeditation, did kill the persons listed below during 6 the course of an attack on a federal facility involving the 7 use of a dangerous weapon, to wit, the defendants detonated an 8 explosive device that damaged and destroyed the United States 9 Embassy in Nairobi, Kenya, and as a result of such conduct 10 directly and proximately caused the deaths of the persons 11 listed in those counts. 12 Counts 222 through 232 charge defendant Khalfan 13 Khamis Mohamed with the murders of 11 persons in the course of 14 an attack with a dangerous weapon on the American Embassy in 15 Dar es Salaam, Tanzania. Each count corresponds to a person 16 killed in the explosion at that embassy on August 7, 1998. 17 Specifically, Counts 222 through 232 charge: 18 On or about August 7, 1998, in Dar es Salaam, 19 Tanzania, and outside the jurisdiction of any particular state 20 or district ... Khalfan Khamis Mohamed ... who was first 21 brought to and arrested in the Southern District of New York, 22 and others known and unknown, unlawfully, willfully, 23 deliberately and maliciously, and with malice aforethought and 24 with premeditation, did kill the persons listed below during 25 the course of an attack on a federal facility involving the 6149 1 use of a dangerous weapon, to wit, the defendant detonated an 2 explosive device that damaged and destroyed the United States 3 Embassy in Dar es Salaam, Tanzania, and as a result of such 4 conduct directly and proximately caused the deaths of the 5 persons listed in those counts. 6 The statute the defendants are charged with violating 7 in these Counts is section 930 of Title 18, and the statute 8 provides in relevant part that a person who kills ... any 9 person ... in the course of an attack on a federal facility 10 involving the use of a firearm or other dangerous weapon is 11 guilty of a crime. 12 In these counts, the government further alleges that 13 the defendants committed the killings with malice aforethought 14 and with premeditation. 15 To satisfy its burden of proof as to Counts 9 through 16 232, the government must establish each of the following 17 elements beyond a reasonable doubt: 18 First, that the defendant you are considering killed, 19 or aided and abetted the killing of, the victim as charged; 20 Second, that the killing occurred in the course of an 21 attack on a federal facility; 22 Third, that the defendant knowingly used a firearm or 23 other dangerous weapon in the attack; 24 Fourth, that the defendant acted unlawfully; 25 Fifth, that the defendant acted with malice 6150 1 aforethought; and 2 Sixth, that the defendant acted with premeditation. 3 The first element the government must prove beyond a 4 reasonable doubt is that the defendant you are considering 5 killed, or aided and abetted the killing of the victim as 6 charged in the indictment. 7 In this regard, it is the government's burden to 8 prove that the conduct of the defendant you are considering 9 was the direct cause of the victim's death. That means 10 simply, the government must prove that the defendant inflicted 11 an injury or injuries upon the victim from which the victim 12 died, or that the defendant aided and abetted another person 13 to do so. 14 The definition of "aiding and abetting" that was 15 provided to you earlier in Counts 5 and 6 is also applicable 16 to the element of these counts. 17 Recall with respect to Counts 9 through 221 and defendant 18 Odeh, the government's theory is that he aided and abetted the 19 commission of the offenses. The government does not allege 20 that defendant Odeh physically carried out the crimes charged 21 in those counts. 22 As I have already explained to you, to satisfy their 23 burden as to these counts, the government must establish 24 beyond a reasonable doubt each of the six elements that I am 25 now explaining to you. 6151 1 The second element that the government must prove 2 beyond a reasonable doubt is that the killing occurred in the 3 course of an attack on a federal facility. The term "federal 4 facility" means a building or part thereof owned or leased by 5 the federal government, where federal employees are regularly 6 present for the purpose of performing their official duties. 7 The third element that the government must prove 8 beyond a reasonable doubt is that in the course of an attack 9 on a federal facility, if you should find that one occurred, 10 the defendant you are considering knowingly used a firearm or 11 other dangerous weapon. 12 To use a firearm or other dangerous weapon in an 13 attack means to use it in such a way that it was an integral 14 part of the attack. 15 The term "firearm" includes, among other things, any 16 destructive device. A "destructive device" is defined to 17 include an explosive, incendiary or poison gas bomb; an 18 explosive, incendiary or poison gas grenade; an explosive, 19 incendiary or poison gas rocket; an explosive, incendiary or 20 poison gas mine; or any similar device. 21 The term "dangerous weapon" means a weapon, device, 22 instrument, material or substance, animate or inanimate, that 23 is used for or is readily capable of causing death or bodily 24 injury. 25 To satisfy this element, you must find that the 6152 1 defendant you are considering knowingly used the firearm or 2 other dangerous weapon. This means that the defendant used a 3 firearm or other dangerous device purposely and voluntarily 4 and not by accident or mistake. 5 This element may also be satisfied if you find that the 6 defendant you are considering aided and abetted another person 7 to use the firearm or dangerous weapon. You should apply the 8 same definition of "aiding and abetting" that was provided 9 previously. 10 The fourth element that the government must prove 11 beyond a reasonable doubt is that the defendant you are 12 considering acted unlawfully. An act is done unlawfully if it 13 was done without valid justification or excuse. While the 14 taking of human life is a most serious matter, not all 15 killing, even when intentional, is unlawful. In the context 16 of Counts 9 through 232, the law forbids killing done without 17 valid justification or excuse. If you find that the defendant 18 you are considering committed a killing without valid 19 justification or excuse, this element is satisfied. 20 The fifth element that the government must prove 21 beyond a reasonable doubt is that the defendant you are 22 considering acted with malice aforethought. Malice is a state 23 of mind that would cause a person to act without regard to the 24 life of another. To satisfy this element, the defendant -- 25 Let me begin with "malice aforethought." Apparently 6153 1 I misspoke. 2 The fifth element that the government must prove 3 beyond a reasonable doubt is that the defendant you are 4 considering acted with malice aforethought. Malice is a state 5 of mind that would cause a person to act without regard to the 6 life of another. To satisfy this element, the defendant must 7 have acted consciously, with the intent to kill another 8 person. 9 In order to establish this element, the government 10 must prove that the defendant acted willfully, with a bad or 11 evil purpose to break the law. However, the government need 12 not prove spite, malevolence, hatred or ill will to the 13 victim. 14 The sixth and final element that the government must 15 prove beyond a reasonable doubt is that the defendant you are 16 considering acted with premeditation. An act is done with 17 premeditation if it is done upon deliberation. To show 18 premeditation, the government must prove the defendant killed 19 the victim only after thinking the matter over, deliberating 20 whether to act before committing the crime. There is no 21 requirement that the government prove that the defendant 22 deliberated for any particular period of time. It is 23 sufficient to satisfy this element if you find that before he 24 acted, the defendant had a period of time to become fully 25 aware of what he intended to do and to think it over. 6154 1 If you find the defendant killed a victim, or aided 2 and abetted the killing of a victim, as a result of a 3 premeditated design to effect the death of a different person, 4 then the requirement of premeditation as to the victim you are 5 considering is satisfied. 6 With respect to each of the defendants you are 7 considering, you must indicate your unanimous verdict as to 8 each of Counts 9 through 232 on the special verdict form. 9 Let's look at that special verdict form with respect 10 to those counts, and then we will call it a night. I am on 11 page 12 of the special verdict form, and it says: 12 Counts 9 through 221 charge defendants Odeh and Al-'Owhali 13 with the murder of 213 persons in the course of an attack with 14 a dangerous weapon on the United States Embassy in Nairobi, 15 Kenya. For each of the counts between 9 and 221, if you find 16 the defendant listed below is guilty as to that count you are 17 considering, put an X in the guilty box next to that count. 18 If you find the defendant listed below is not guilty as to the 19 count you are considering, put an X in the not guilty box next 20 to that count. 21 You may not find Odeh guilty as to any of Counts 9 22 through 221 unless you unanimously find that he aided and 23 abetted the commission of the offense. 24 Additionally, and solely with respect to the 25 defendant Al-'Owhali, if and only if you find that he is 6155 1 guilty as to a count between Counts 9 and 221 that you are 2 considering, please specify whether unanimously you find that 3 he himself killed the victim in that count or whether you find 4 that he aided and abetted the killing of the victim in that 5 count. You are to put an X in only one of the two boxes 6 marked himself killed or aided and abetted next to the count 7 you are considering as to Mohamed Rashed Al-'Owhali. 8 Then you will see, if you look at Count 9, with 9 respect to Odeh, the boxes are guilty or not guilty. But 10 since Odeh can be found guilty only if you unanimously find 11 that he aided and abetted, the other choices are blacked out. 12 You are not to complete that. With respect to Al-'Owhali, 13 however, if you find him guilty, you should also indicate 14 whether he himself killed, or whether you find that he aided 15 and abetted, and that is why with respect to Al-'Owhali there 16 are four boxes of which you are to check two, guilty or not 17 guilty, and himself killed or aided and abetted, whereas as to 18 Odeh there are only two, and that applies to all of those 19 counts, through this chart. 20 We will call it a day, but I have some very important 21 things to say to you. I said earlier that my charge is to be 22 regarded as a whole, and that you are not to take any 23 particular part of it as alone stating the instructions but 24 you are to consider it as a whole. Therefore, understand that 25 what I have said today is no more nor less important than what 6156 1 I will tell you tomorrow. It is just a happenstance that some 2 things are today and some things are tomorrow. 3 Please understand also that when you arrive tomorrow 4 you will not have heard all the court's instruction, so I 5 would ask that you please not start to discuss, not start to 6 deliberate, until you have heard all the court's instructions. 7 Thank you for your patience and cooperation. 8 Tomorrow we start at 1:00. Please have lunch before you come 9 to the courthouse, and have a good evening. 10 (Jury excused) 11 THE COURT: Anyone who is aware of any inadvertent 12 errors, please call them to my attention. 13 MR. DRATEL: Yes, your Honor. On page 21, the 14 instruction about not considering the witness's guilty plea, I 15 believe you said it benefits, the court said defendants. 16 THE COURT: Page 2, all right, I will correct that 17 tomorrow. Anything else? All right, then we are adjourned 18 until 1:00 tomorrow. 19 (Proceedings adjourned until 1:00 p.m., Thursday, May 20 10, 2001) 21 22 23 24 25
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