19 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 65 of the trial, June 19, 2001.
The Court Reporter said the entire record was sealed for Day 64, June 18, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
7418 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 June 19, 2001 9:30 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 APPEARANCES 16 MARY JO WHITE United States Attorney for the 17 Southern District of New York BY: PATRICK FITZGERALD 18 MICHAEL GARCIA Assistant United States Attorneys 19 20 DAVID RUHNKE 21 DAVID STERN Attorneys for defendant Khalfan Khamis Mohamed 22 23 Swahili Interpreter: Beston Mwakaling 24 25 7437 1 (Pages 7419 through 7436 filed under seal) 2 (In open court; jury present) 3 THE COURT: Good morning. 4 THE JURY: Good morning. 5 THE COURT: Welcome back to the alternates. 6 As you know, the penalty phase concerning the 7 defendant Khalfan Khamis Mohamed is about to begin. Your 8 prior verdicts regarding the guilt phase of the trial and the 9 penalty phase concerning the defendant Mohamed Al-'Owhali are 10 final and they are not to be revisited by any juror or by any 11 alternate. 12 Because you have not heard the evidence and the 13 arguments of the government in favor of the death penalty and 14 the evidence and arguments on behalf of K.K. Mohamed in favor 15 of a life sentence, it is critical to the integrity of this 16 process that you have not prejudged the question. 17 I ask that you give to the evidence that will be 18 presented during what is estimated to be the next two weeks 19 the same care and conscientious attention that you have 20 heretofore displayed during these proceedings. You are to 21 listen with a fair and open mind to the presentation of the 22 parties so that after you have evaluated all of the evidence 23 and shared your views with your fellow jurors during your 24 deliberations, you can determine whether, based on the 25 evidence and your judgment, to vote either in favor of the 7438 1 imposition of the death penalty or life without possibility of 2 release. 3 Is there any juror who is unable to do that? If 4 there is, it is important that the Court know. And if you are 5 unable to listen to the evidence, to consider and weigh the 6 evidence and, based on your evaluation of that evidence, to 7 vote either in favor of the death penalty or in favor of life 8 without possibility of release, then we should know that. 9 Moving, then, on to some other matters. During the 10 guilt phase of this trial, you unanimously found the defendant 11 K.K. Mohamed guilty of the following counts contained in the 12 indictment: One count of destruction of property of the 13 United States resulting in death, as charged in Count Six; one 14 count of use of a weapon of mass destruction against a 15 national of the United States resulting in death, as charged 16 in Count Eight; 11 counts of murder in the course of an attack 17 on a federal facility involving the use of a dangerous weapon, 18 as charged in Counts 222 to 232; two counts of murder of 19 officers and employees of the United States, on account of 20 their duties, as charged in Counts 275 and 276; and one count 21 of murder of an internationally protected person, as charged 22 in Count 281. These are all capital counts, by which I mean 23 that the death penalty is possible punishment for these 24 offenses. 25 You must now consider, separately with regard to each 7439 1 of these counts, whether imposition of a sentence of death is 2 appropriate or whether Mr. Mohamed should be sentenced to life 3 imprisonment without the possibility of release. 4 Before I proceed, let me explain to you that these 5 instructions are very similar to those you have heard 6 before -- although they were abbreviated as much as possible 7 because you already heard the other instructions. And the 8 reason why they are very similar is because the process we are 9 undertaking is in most respects the same as the one you 10 completed last Tuesday. However, I cannot caution you enough 11 that the penalty phase for Mr. Mohamed is a separate and 12 independent proceeding, because issues relating to Mr. Mohamed 13 are sufficiently distinct from those relating to 14 Mr. al-'Owhali to warrant a separate penalty hearing. The 15 very reason why we have separate penalty hearings is because 16 of those differences. Your judgment as to the appropriate 17 sentence for Khalfan Khamis Mohamed must be determined 18 separately with respect to him, and must be based solely on 19 the information presented during, one, this penalty phase; 20 two, the guilt phase, but not including any evidence that was 21 introduced solely against another defendant; and, three, the 22 Al-'Owhali penalty phase, but only to the extent that either 23 party explicitly offers information presented in the 24 Al-'Owhali penalty phase and the Court receives it. 25 Now, as I instructed you at the start of the last 7440 1 penalty phase, for defendant Mr. Mohamed's situation, Congress 2 has channeled your discretion by requiring that certain 3 findings be made before the death penalty is even considered. 4 Remember, you may consider a sentence of death for Mr. Mohamed 5 on a particular capital count if, but only if, you unanimously 6 find that the government has proven beyond a reasonable doubt 7 the existence of at least one gateway factor and at least one 8 statutory aggravating factor as to that count. 9 I am going to read the government's allegations with 10 respect to gateway factors, statutory and non-statutory 11 factors, and they will seem very familiar to you because 12 indeed they are the same with respect to K.K. Mohamed as they 13 were with respect to Al-'Owhali. 14 The four gateway factors alleged by the government 15 are: 16 1. That the defendant intentionally killed the 17 victim or victims of the particular capital offense charged in 18 the respective count of the indictment; or 19 2. That the defendant intentionally inflicted 20 serious bodily injury that resulted in the death of the victim 21 or victims of the particular capital offense charged in the 22 respective count of the indictment, or 23 3. That the defendant intentionally participated in 24 an act, contemplating that the life of a person would be taken 25 or intending that lethal force would be used in connection 7441 1 with a person, other than one of the participants in the 2 offense, and the victim or victims of the particular capital 3 offense charged in the respective count of the indictment died 4 as a direct result of the act; or 5 4. That the defendant intentionally and specifically 6 engaged in an act of violence, knowing that the act created a 7 grave risk of death to a person, other than one of the 8 participants in the offense, such that participation in the 9 act constituted a reckless disregard for human life and the 10 victim or victims of the particular capital offense charged in 11 the respective count of the indictment died as a direct result 12 of the act. 13 The statutory aggravating factors alleged by the 14 government with respect to each of the capital counts are: 15 1. The deaths and injuries resulting in death 16 occurred during the commission of other crimes, namely, 17 certain offenses listed under Title 18 of the United States 18 Code, which I will identify for you in the instructions prior 19 to your deliberations. 20 2. The defendant, in the commission of the offense, 21 knowingly created a grave risk of death to one or more persons 22 in addition to the victims of the offense. 23 3. The defendant committed the offense after 24 substantial planning and premeditation to cause the death of 25 one or more persons or to permit an act of terrorism. 7442 1 4. The defendant intentionally killed or attempted 2 to kill more than one person in a single episode. 3 As I instructed you at the outset of the last penalty 4 phase, if, after fair and impartial consideration of all the 5 evidence in this case, you unanimously find that the 6 government has proven beyond a reasonable doubt at least one 7 gateway factor and at least one statutory aggravating factor 8 with regard to a particular capital count, you will then 9 consider whether you unanimously find that the government has 10 proven beyond a reasonable doubt the existence of any 11 non-statutory aggravating factors specifically identified by 12 the government for consideration in this case. 13 And the government alleges the following 14 non-statutory aggravating factors with regard to each of the 15 capital counts: 16 1. The defendant poses a continuing and serious 17 threat to the lives and safety of others with whom he will 18 come in contact. 19 2. As demonstrated by the deceased victims' personal 20 characteristics as individual human beings and the impact of 21 the deaths upon the deceased victims' families, the defendant 22 caused injury, harm, and loss to those victims and their 23 families, and the defendant caused serious physical and 24 emotional injury and grievous economic hardship to numerous 25 individuals who survived the bombing. 7443 1 3. That the victims and intended victims included 2 high-ranking public officials of the United States serving 3 abroad and the offense was motivated by such status. 4 During the balancing stage of your analysis, in 5 addition to the existence of any non-statutory aggravating 6 factors, you must determine whether any of you find that 7 Mr. Mohamed has established the existence of any mitigating 8 factors by a preponderance of the evidence. Any one of you 9 may, individually, find the existence of a mitigating factor, 10 regardless of the number of other jurors who may agree, and 11 any juror who so finds may weigh that factor in making up his 12 or her mind whether or not to vote for a death sentence. 13 The defendant K.K. Mohamed alleges the following 14 mitigating factors: 15 1. Khalfan Mohamed's role in the offense and 16 relative culpability is as set forth below: 17 A. Khalfan Mohamed was not a leader or organizer of 18 the conspiracy which led to the bombing of the Dar es Salaam 19 embassy. 20 B. Although Khalfan Mohamed is guilty of the 21 murders, his participation was relatively minor. 22 C. Khalfan Mohamed was recruited by others as 23 someone who was an expendable member of the conspiracy. 24 Mitigating factor alleged by Khalfan Mohamed number 2 25 is that others equally or more culpable in the murders will 7444 1 not be sentenced to death. 2 3. Khalfan Mohamed's postarrest statement (A) was 3 complete and truthful, (B) demonstrated acceptance of 4 responsibility, (C) provided the interviewing agents with 5 valuable information. 6 4. If Khalfan Mohamed is not sentenced to death, he 7 will spend the rest of his life in a United States prison 8 without any possibility of release. 9 5. Khalfan Mohamed has no prior history of criminal 10 behavior. 11 6. If he is executed, Khalfan Mohamed will cause his 12 family to suffer grief and loss. 13 7. Khalfan Mohamed is remorseful for the deaths, 14 injuries and other consequences of the bombing of the embassy 15 and would not participate in such a crime in the future. 16 8. Khalfan Mohamed acted out of sincere religious 17 belief. 18 9. At the time of the offense, Khalfan Mohamed was 19 25 years old. 20 10. If Khalfan Mohamed is executed, he will be seen 21 as a martyr and his death may be exploited by others to 22 justify future terrorist attacks. 23 11. As a matter of South African law, Khalfan 24 Mohamed should not have been released to American officials 25 without assurances that he would not face the death penalty in 7445 1 the United States. 2 12. Based on Khalfan Mohamed's personal 3 characteristics as an individual human being, which include 4 the following, he should be sentenced to spend the rest of his 5 life in the United States prison: 6 A. Khalfan Mohamed has exhibited responsible conduct 7 in other areas of his life. 8 B. Khalfan Mohamed has shown himself to be a person 9 capable of kindness, friendship and generosity. 10 C. Khalfan Mohamed lost his father at an early age 11 and worked to help his family, which struggled financially 12 after the death of the major breadwinner. 13 Remember, during the balancing stage, each of you 14 must individually weigh the aggravating factor or factors 15 (statutory or non-statutory) that all 12 jurors have 16 unanimously and beyond a reasonable doubt found to exist 17 against any mitigating factor or factors that you individually 18 or with other jurors have by a preponderance of the evidence 19 found to exist to determine if death or life imprisonment 20 without the possibility of release is the appropriate 21 punishment. 22 Let me remind you that the weighing and balancing 23 process is a unique and individual one wherein members of the 24 jury are called to make an individualized judgment about the 25 appropriateness of sentencing another human being. This is 7446 1 not a mechanical process; what is called for in weighing the 2 various factors is not arithmetic, but each individual juror's 3 careful, considered and mature judgment. 4 As before, I will repeat and elaborate on these 5 points after you have heard all of the evidence before you 6 begin your deliberations. And as in the prior proceedings, 7 you will have a special verdict form to assist you and my 8 final and definitive instructions, which will be in writing 9 and available to you during your deliberations. 10 Thank you for your continued patience and attention. 11 We will proceed now with the government's opening 12 statement. 13 MR. GARCIA: Thank you, Judge. 14 Good morning. I would like to begin today by talking 15 to you about three dates, three dates in the life of this 16 defendant, Khalfan Khamis Mohamed. 17 The first date we will talk about is a date you are 18 very familiar with, August 7th, 1998, the date of the horrific 19 bombing of the U.S. embassy in Dar es Salaam Tanzania, a 20 bombing that killed 11 people, shattered 11 families, and 21 changed countless lives forever. 22 This defendant Khalfan Mohamed rode partway to the 23 embassy in the bomb truck that morning, and then he jumped out 24 and he went back to the bomb factory, where he had helped to 25 mix the bomb and load the bomb into the truck. And he waited, 7447 1 he waited nervously, watching the television, trying to see 2 news of the bombing. 3 And he prayed. He prayed for the suicide driver of 4 that truck, the man who had pushed the button on the dashboard 5 and detonated the explosive -- not for the innocent victims 6 who would be killed. And finally, that morning he saw news on 7 the television of the bombing, watched those reports, and he 8 was happy. He said he was very happy. 9 That was Khalfan Mohamed on August 7th, 1998. 10 And the next date I would like to talk to you about 11 is a date that you also heard about during the guilt phase of 12 this trial, and that's October 5th, 1999, more than a year 13 after the bombing, when Khalfan Mohamed was caught in South 14 Africa, caught in South Africa where he had run, where he had 15 fled, after he cleaned out that bomb factory back in Dar es 16 Salaam. 17 And on October 5th, Khalfan Mohamed talks to the FBI 18 agents and he shows no remorse for his horrific crimes. No 19 remorse, although it's a year later and he has had time to 20 learn that the 11 victims of his crime were Tanzanians. They 21 were his countrymen. They were mostly Muslims. He's had time 22 to learn all that, and he shows no remorse. He killed five 23 security guards, a gardener, a water truck driver, and he has 24 no remorse. 25 He's not sorry. In fact, he is making statements 7448 1 about doing it again. Khalfan Mohamed told the FBI that if he 2 hadn't been caught in South Africa, they would have done it 3 again. He would have participated in more bombings to kill 4 Americans. And he said more than that. He said if he was 5 released, he would participate in more bombings and that he 6 would help to kill Americans. 7 And he said that he hoped, he hoped, now that he was 8 caught, that others would carry on. And he said that he would 9 carry on, he would still carry on if he could. 10 That was on October 5th, 1999. 11 And someone hearing that back then might have 12 thought, well, that's just bluster, that's just big talk from 13 a man who's been caught after murdering 11 people, it isn't 14 real. They would want to believe, they would want to believe 15 that Khalfan Mohamed, after he was caught and arrested and put 16 inside a prison in the United States, safely locked away, 17 would be stopped. 18 Now let's talk about the third date, and this is a 19 date you haven't heard about in this guilt phase. This is 20 November 1st, 2000. And this is a very significant date in 21 the penalty phase. It's one year after this defendant has 22 been caught, it's two years after he committed this horrific 23 bombing, and he's now lodged in prison here in downtown New 24 York, sharing a cell with Mamdouh Salim, a man that you heard 25 about in the guilt phase of this trial. 7449 1 And this cell is on the 10 South unit of the MCC, the 2 maximum security wing. And the defendant and Salim are 3 getting ready for trial, and you will hear that the guard on 4 duty that day, on November 1st, on the 10 South unit, was 5 Officer Louis Pepe. And Officer Pepe brought Salim out of his 6 cell that morning and took him to a meeting with his attorney 7 so that Salim could prepare for trial. 8 And you will hear that Officer Pepe treated the 9 inmates on 10 South with respect and even with kindness. And 10 that day, Salim made an excuse to Officer Pepe to have him 11 take him back to the cell he shared with Khalfan Mohamed in 12 the back of that 10 South unit. He lured him back to that 13 cell where this defendant was waiting. Officer Pepe opened 14 the door, stepped in, and was viciously attacked. 15 You will hear when other officers finally got to 16 Officer Pepe, other officers who were also attacked by Salim 17 and this defendant, they found that Officer Pepe had been 18 stabbed in the eye with a comb that had been sharpened into a 19 bayonet. And you will hear that that comb, that knife, that 20 combed turned into a knife, shredded Officer Pepe's eye and 21 traveled three inches into his brain, maiming him and causing 22 debilitating brain damage. He will never recover to what he 23 was. 24 Those were not idle threats made back in October of 25 1999. It wasn't bluster. This defendant threatened to do it 7450 1 again, and he then participated in a murderous attack on 2 Officer Pepe, an attack that came two years after the bombing 3 and one year after he was caught and placed in prison. 4 You will hear the details of this attack during this 5 penalty phase. When you must decide the penalty for this 6 defendant, Khalfan Mohamed, and as Judge Sand instructed you 7 at the guilt phase, you must individually consider each 8 defendant, each count, view them separately, consider them 9 separately and decide them separately. That's the law and 10 that's critical to giving each defendant and the government a 11 fair trial. And you must do the same in arriving at the 12 appropriate sentence for each defendant who is convicted of a 13 count that carries a death penalty. Justice for each 14 defendant for the crimes and for the victims of those crimes 15 requires no less. 16 Throughout this trial you have carefully considered 17 the evidence and you have engaged in meticulous deliberations. 18 Now, the government is confident that you will consider the 19 evidence here with an open mind at the penalty phase, where 20 you decide the appropriate penalty for this defendant. And we 21 submit to you that when you have heard all of that evidence, 22 when you have considered all of that evidence and what it 23 means, none of you will have any doubt that the right 24 sentence, the appropriate sentence, and the just sentence for 25 this defendant is the death penalty. 7451 1 So what generally will the evidence be at this phase? 2 Well, this morning I would like to talk to you about two 3 aggravating factors: Victim impact evidence and future 4 dangerousness. 5 Victim impact: As you might be expecting, you will 6 hear from some of the many victims of the defendant's 7 terrorist bombing in Dar es Salaam on August 7th. This will 8 be, and it should be, painful testimony for you to witness, 9 but because you will be hearing about pain, pain that this 10 defendant caused that day when the bomb went off in Dar es 11 Salaam, it created horror and it created terror. 12 Eleven lives were taken, eleven families were 13 shattered that day, and you must take that into account. You 14 must take that impact of the defendant's horrific crimes into 15 account, the devastation he happily wrought on the victims of 16 this bombing in Dar es Salaam and weigh that. That is his 17 responsibility, what happened in Dar es Salaam, and it's your 18 responsibility to consider it, to weigh it as you decide the 19 appropriate sentence for this defendant. 20 And let's talk now about some of the testimony you 21 will hear starting today from this witness stand. You will 22 hear testimony of survivors from the bombing, Patricia Wagner, 23 who was inside this building when the defendant's bomb ripped 24 through it. You will hear her testify. 25 You will hear from relatives of those that were 7452 1 killed by this defendant. At the guilt phase, you heard from 2 a guard Edward Ruthashewra. He was a security guard working 3 in the front of the embassy, and on the morning of August 7th, 4 he decided to take a break at about 10:00 and the guard that 5 relieved him was Omar Nyumbu. 6 Mr. Ruthashewra went behind the embassy to take his 7 break and the bomb went off, and he ran back in front of 8 embassy and he found Mr. Nyumbu lying on the ground, badly 9 injured. Mr. Nyumbu asked him, please take me over to the 10 shade. And you heard in the guilt phase that Mr. Nyumbu died, 11 he did not survive his injuries. 12 This is an exhibit, the actual identification card 13 that Mr. Nyumbu was wearing that day in Dar es Salaam when he 14 was on duty in front of the embassy when he was killed. He 15 was 21 years old. 16 At this phase, you will hear from Mr. Nyumbu's wife, 17 Asha, and she will tell you what Mr. Nyumbu was like, what he 18 was like as a husband, what he was like as a father. And you 19 will hear that he had just been promoted at the embassy. You 20 will hear details of his life, and you will hear that Asha, on 21 the morning hours of August 8th, was preparing food to bring 22 to her husband in the hospital when she heard that he had 23 died, that she would never see him again. 24 And you will hear from this witness stand the 25 testimony of Judith Mwila, whose husband, Abbas, was also a 7453 1 security guard at the embassy. The defendant killed five 2 security guards that day. And you will hear that Abbas had 3 three young children, that he was disciplined, he was a quiet 4 man, and that his mother had died when he was young in age. 5 And you will hear that Abbas then worked, he worked hard, he 6 worked at the embassy, he worked to support his family. 7 And you will hear about a water truck driver named 8 Shamte Ndange, and that this water truck driver, Mr. Shamte 9 Ndange, had six children. And you will hear details about his 10 life, his accomplishments, how he had received a certificate 11 for completing English studies. 12 And you will hear details of the other lives that 13 were lost that day on August 7th, 1998, when the bomb went off 14 after that truck left a Uhuru Road, where the defendant jumped 15 out and continued on to the embassy in Dar es Salaam, that at 16 the embassy in Dar es Salaam, the guards were outside at their 17 post, a water truck driver and a gardener were working. 18 And you will see and you will feel the impact of that 19 bombing and you will learn about the pain this defendant 20 caused those families. And listen to that pain and suffering, 21 listen about the 11 victims and what they will not get to do, 22 listen and remember what the innocent victims lost that day, 23 the day the defendant killed them. And remember that if you 24 hear about this defendant's background, this defendant's 25 family and this defendant's life, remember the lives he ended, 7454 1 the lives of the children that will now grow up without a 2 mother or a father. 3 And you are going to hear a great deal at this 4 penalty phase about future dangerousness, because the 5 government is going to prove to you beyond any doubt that this 6 defendant poses a future danger, a very real danger to anyone 7 he comes in contact with, to the lives and safety of others. 8 And part of the government's proof on this factor, the future 9 dangerousness factor, is going to be the attack on Officer 10 Pepe at the Metropolitan Correctional Center. 11 It is important that you understand how that proof 12 fits in at this phase. It's being offered to show you that 13 this defendant, who would commit mass murder on August 7th, 14 1998 in Dar es Salaam, who would say that he would do it 15 again, and who participated in an attack on an officer inside 16 prison, where the officer was maimed and suffered brain 17 damage, that this defendant is a danger to anyone he would 18 come in contact with. 19 As part of the proof of that, you are going to hear 20 how this defendant shared a cell, cell number 6, at the 21 Metropolitan Correctional Center with Salim in the back of the 22 high security unit. And you will learn that on November 1st, 23 2000, one year after being brought to the United States to 24 stand trial, he struck again. 25 Salim lured Officer Pepe back to that cell and they 7455 1 attacked him, they attacked him with that homemade knife that 2 was driven into the officer's eye with such force that it 3 shattered the bone and back of the eye socket and went deep 4 into his brain. 5 You will hear how officers responded to a silent 6 alarm that was inside Officer Pepe's radio, and when they 7 reached 10 South, they went through the door and they saw 8 blood on the floor, blood on the walls, going back to this 9 defendant's cell. And they followed that blood into the back 10 of the unit, and as they rounded the last corner to get to 11 that cell, to get to Officer Pepe, you will hear that this 12 defendant jumped out at them and attacked them, struggled and 13 fought with them. And as he was doing that, his cellmate, 14 Salim, came out of the cell and attacked those officers as 15 well. And it wasn't until they could subdue and restrain 16 Khalfan Mohamed and Salim that they could get to the stricken 17 officer. 18 And you are going to learn something very important. 19 You are going to learn that this wasn't a sudden attack, 20 something done out of rage. This was part of a well planned 21 hostage-taking plan, a plan that was going to be put in motion 22 by the attack on Officer Pepe. 23 And you will learn that in various ways. You will 24 learn that through notes that were seized from the cell in a 25 search that was done after the attack, and I would like to 7456 1 read to you one of those notes. 2 "We are the Muslims who were falsely accused of 3 bombing the embassy in Africa. We have captured the tenth 4 floor in MCC and we have several lawyers and officials. They 5 are under our full control. We were forced to resort to this 6 solution after we were deprived of our legal rights. We 7 request the immediate release of," there's a blank, "and send 8 them outside the U.S. If the government worries about the 9 safety of its citizens, it has to comply with all our demands. 10 Otherwise, it will be responsible for any consequences." 11 That note was found in this defendant's cell that he 12 shared with Salim. There are other notes that were found in 13 there, notes detailing the plan to take over the maximum 14 security wing at the MCC, notes that listed arming and 15 preparing for hunting, notes about informing all of the plan 16 and its steps, notes about the division of labor and 17 role-sharing, and notes about what the plan was about -- 18 luring the guard, taking hostages, negotiations, demands -- 19 notes about the physical layout of the unit, including the 20 electricity, including the keys, and notes about killing. One 21 note stated "causing the utmost injury to human lives." 22 After the savage attack on Officer Pepe when he had 23 been brought to the hospital and was undergoing hours of brain 24 surgery, agents searched the floor and searched the cell. 25 They found those notes. They also found another weapon -- a 7457 1 brush that had also been sharpened into a knife, and that 2 weapon was covered with Officer Pepe's blood, another weapon 3 used in the attack. 4 Now you are going to hear something about cameras, 5 cameras and monitors on the 10 South floor, and you are going 6 to hear there is no tape of this attack. And that's true. 7 There is no videotape. And there are two reasons for that: 8 One, the MCC, prior to this attack, there was no 9 procedure for making tapes, changing tapes, or storing tapes. 10 So the tapes were not changed, they were not made, and the 11 tapes in those machines are from the day before and late the 12 previous evening. 13 And second, you are going to learn that Salim and 14 Khalfan Mohamed were aware of the taping system. Notes in the 15 cell prove that. One note read, "The video and stopping it. 16 It may not exist." So they believed there was no taping going 17 on, but they were going to make sure there was no tape. So 18 they took a precaution. The camera inside Cell 6 was blocked. 19 A piece of paper was put over the camera lens so they made 20 sure there would never, in any case, be a recording. 21 And you are going to hear evidence that will show you 22 and to make clear that this was not Salim acting alone, that 23 this was not Salim enraged in stabbing a guard, that this was 24 a plan. And it was a plan, and the evidence will be that 25 Khalfan Mohamed was right there with Salim, a full 7458 1 participant. You will see that from the crime scene, you will 2 see that from the forensic evidence, and you will see that 3 from the way both of those inmates attacked the guards who 4 came to Officer Pepe's aid. 5 That is some of what you will hear at this penalty 6 phase about Khalfan Mohamed, a killer who said he would kill 7 again. He said he would kill again if he could, and he almost 8 did. And Officer Pepe nearly paid with his life, a life that 9 will never be the same. 10 You will learn that it was only through the 11 courageous acts of Officer Pepe and the other staff who 12 responded to the alarm that hostages weren't taken on 10 13 South, that more blood wasn't spilled on 10 South, and more 14 killings didn't happen on November 1st, 2000. 15 Khalfan Mohamed committed murder and said he would do 16 it again if he could. He joined Salim in a vicious attack on 17 Officer Pepe. Officer Pepe paid the price. The only penalty 18 that does justice for this defendant for his murder of 11 19 innocent people on August 7th, 1998 is the death penalty, and 20 that is the only penalty that will stop him from doing it 21 again and that will avoid putting more innocent lives at risk. 22 Thank you very much. 23 THE COURT: Thank you, Mr. Garcia. We'll take a 24 brief recess. 25 MR. RUHNKE: How long, your Honor? 7459 1 THE COURT: Five minutes. 2 (Recess) 3 (In open court; jury not present) 4 MR. RUHNKE: Your Honor, I object to Mr. Garcia's 5 comments in the opening about the death penalty being 6 appropriate as justice for victims, implying that the victims 7 all want a death penalty and see that as something that will 8 do justice for them. 9 What I would ask your Honor to do is instruct the 10 jury that the fact that people are testifying in this case as 11 victims simply means they are bringing evidence for the jury 12 to consider, and the jury should not infer by the fact that 13 they are testifying that they want Mr. Khalfan Mohamed 14 sentenced to death. 15 THE COURT: I think that is argument that you are 16 free to make, but I don't think it is appropriate that I 17 instruct them. I don't know what their views are with respect 18 to the death penalty as to K.K. Mohamed, nor do I think it is 19 appropriate that they express those views. 20 Denied. 21 MR. RUHNKE: I'm ready to proceed otherwise. 22 THE COURT: You are ready to proceed? 23 MR. RUHNKE: Yes. 24 THE COURT: Very well. 25 (Jury present) 7460 1 THE COURT: Mr. Ruhnke. 2 MR. RUHNKE: Thank you, your Honor. 3 Ladies and gentlemen, good morning. 4 THE JURY: Good morning. 5 MR. RUHNKE: If you still don't remember my name, I'm 6 David Ruhnke. I represent Khalfan Mohamed with David Stern, 7 who is with me at counsel table. 8 You will remember in February when we started this 9 process, as I reminded you in the past, it was snowing 10 outside, there was a wind howling through the courtroom. 11 Today it's going to be 90 degrees. By the time you are 12 through with your jury service, we will be in the midst of the 13 celebration of the 225th year of our independence over the 14 Fourth of July holiday. And it's somehow appropriate that 15 this case is coming at a time when we think about how this 16 nation was founded and where we come from, because this case 17 is a test of an American jury and the ability of an American 18 jury to do justice, to mix justice with fairness, and to come 19 out with a result that shows this nation to be as great a 20 nation as we are. 21 We are obviously all aware of the jury's decision in 22 the first part of the case. So, once again, you are going to 23 be called upon to make what Judge Sand has described to you as 24 the unique, individualized judgment about the appropriateness 25 of sentencing another human being, that particular human being 7461 1 to death. It is a responsibility that most American jurors, 2 thank goodness, are never asked to undertake. To ask an 3 American jury to do it twice, to have you folks willing to do 4 it twice is a tribute to you. 5 David Stern and I will work together to present what 6 we believe is a compelling case for life over the next several 7 weeks, next two weeks. But in reality, all that is needed for 8 you to return a verdict of life for Khalfan Mohamed is to 9 doubt the necessity for death. 10 The judge has instructed you, and will instruct you, 11 that in order to sentence a person to death in a case like 12 this you must be, beyond a reasonable doubt, sufficiently 13 persuaded that the aggravating factors outweigh the mitigating 14 factors or that the aggravating factors themselves justify 15 imposition of a sentence of death. 16 And we know what the term "beyond a reasonable doubt" 17 means. What is "sufficient"? What is "sufficient"? In a 18 sense, that comes back to this concept of an individualized 19 decision. You know that the law does not answer the question 20 for you as to who gets sentenced to death and who does not get 21 sentenced to death. The law never gives you a cookbook or 22 arithmetic to deal with. The law leaves it to you, and the 23 law never requires you to impose a sentence of death. 24 So what does "sufficiently outweigh" mean? I suggest 25 to you -- this is my definition, it need not be your 7462 1 definition -- that in order to vote for a death sentence, you 2 have to be so sure that you are doing the right thing that you 3 will cast a vote that will yield a termination of another 4 human being's life. That is how sure "sufficiently outweigh" 5 means, and it is your individual decision. It is not one that 6 the law solves for you. 7 I want to talk about future danger and I want to talk 8 about November 1, 2000. And while I have great respect for my 9 adversaries from the prosecutor's office, the United States 10 Attorney's Office, with all due respect, Mr. Garcia has taken 11 some liberties with the facts. 12 Mr. Garcia has conveniently combined "him," an 13 individualism, into "them" and "they," when the evidence of 14 who did what on November 1 in the year 2000 is far less clear 15 than the government might try to make it out for you. 16 Khalfan Mohamed had no knowledge that Officer Pepe 17 was going to be attacked. He did not participate in a plan to 18 attack Officer Pepe. He did nothing to attack or injure 19 Officer Pepe. The evidence will be he never left the area 20 around his cell, Cell No. 6. 21 The notes that Mr. Garcia spoke about are in Arabic, 22 a language he barely speaks and does not read very well, but 23 certainly does not write. The one note that Mr. Garcia talked 24 about, "we are the Arabs falsely accused, we have been 25 deprived of our legal rights," is written in handwriting that 7463 1 is not Mr. Mohamed's handwriting. It is in the cell. 2 The evidence will be that Mr. Mohamed had been a 3 prisoner in the United States for well over a year and had not 4 caused one bit of trouble on 10 South or any other place he 5 had been, had not given any of the guards a hard time, had not 6 complained about his legal rights being deprived. 7 The evidence will be that when the guards responded 8 to 10 South, that they observed Mamdouh Mahmed Salim roaming 9 the hallways with keys in his hands. The evidence will be 10 that Mamdouh Mahmed Salim had locked Officer Pepe inside Cell 11 No. 6. The evidence will be that Khalfan Mohamed was seated 12 on the floor outside of Cell No. 6 and never left that spot 13 after Salim attacked officer pep. 14 Who is Salim? I'm displaying a photograph of Mamdouh 15 Mahmud Salim. You also know him as Abu Hajer al Iraqi. You 16 have heard a lot of testimony about Mr. Salim. If you wanted 17 to find Mr. Salim today, you could go perhaps 100 yards in 18 that direction and about three floors up and you would find 19 him in the 10 South unit of the Metropolitan Correction 20 Center. 21 We know Mr. Salim was a high-ranking member of the al 22 Qaeda organization. We know he was a veteran of the fighting 23 in Afghanistan. We know about Mr. Salim, Abu Hajer al Iraqui, 24 that he was the one who issued the religious opinion that it 25 was correct under Islamic law to kill innocent people, if 7464 1 necessary, in defense of Islam, because if the innocent people 2 were truly innocent, they would go straight to paradise, and 3 if they were not truly innocent, there was no evil in their 4 demise. 5 Mamdouh Salim is the person that al Qaeda turned to 6 when they wanted someone to purchase nuclear weapons. When al 7 Qaeda was prepared to spend a million and a half dollars for 8 the components of nuclear weapons, they turned to the man who 9 is on this screen. 10 Something you don't know about Mr. Salim is that he 11 is a very physically powerful man, a tall and strong man. 12 Something the government didn't tell you about Mr. Salim is 13 that in the days and the months and the weeks preceding the 14 attack on Officer Pepe on 10 South, Mr. Salim had become 15 increasingly angry, increasingly complaining about his legal 16 rights being violated, unhappy with the lawyers who were 17 representing him, shouting out in court to points where the 18 judge was required to order him to sit down, in essence, 19 remain silent in court, complaining and angry. 20 You will hear evidence that even after what occurred 21 on 10 South on November 1, 2000, Salim carried on his roar, 22 because even as Salim was being medically treated, he managed 23 so hide and take possession of a needle that had been used in 24 his treatments, an IV-type needle. What he was going to do 25 with it, we don't know, but he took it and hid it. 7465 1 He has been separately charged and indicted with the 2 attempted murder for the attempted murder of Officer Pepe. 3 You need to know this: Through his attorneys, he has placed 4 the court and the government on notice that he will defend the 5 charge of attempted murder on the grounds that he was mentally 6 ill at the time that the assault took place. This is Abu 7 Hajer al Iraqui. 8 On the day in question -- when I talk about 9 Mr. Garcia playing fast and loose with the facts, this is what 10 I mean. He told you that Officer Pepe went back to the cell, 11 the door was opened, and he was attacked. He doesn't know 12 that to be true and no one knows that to be true. In fact, 13 the responding officers believe that Officer Pepe was attacked 14 as he was escorting Salim back to his cell. 15 You will see in evidence a diagram of what 10 South 16 looks like. 10 South is a high security unit. Unfortunately, 17 it was not treated as a high security unit. I will tell you 18 more about that in a moment. 19 What you will see is that 10 South is a U-shaped unit 20 that has a total of six cells, just six cells on it; that the 21 cell doors are solid metal with small windows in them. You 22 will see that there's an opening in the doors, a food slot, 23 something that's about this high, about this wide, something 24 that a tray perhaps could fit through. You will learn a lot 25 about what the security actually was on 10 South on November 7466 1 1st and what it should have been. 2 On November 1, 2000, at about 10:30 in the morning, 3 Salim received a visit from two of his attorneys, a gentleman 4 named Paul McAllister and another gentleman named Charles 5 Adler. At the same time that that was going on, Mr. El 6 Hage -- obviously you know Mr. El Hage -- was himself having a 7 meeting with his attorneys, and his attorneys were both 8 present on 10 South, Joshua Dratel and Sam Schmidt, who you 9 know from the trial. 10 Here is how things are supposed to happen when 11 attorneys visit or other visits occur, and it references back 12 to the food slot that I talked to you about. 13 First, prisoners at this particular time were 14 double-celled, which means that there was two prisoners in 15 each cell; that the prisoners in each cell rotated. There was 16 a rotation. Mr. Mohamed had never been in a cell with 17 Mr. Salim previously and, to his everlasting bad fortune, five 18 days before this attack occurred, he was rotated into the cell 19 with Mr. Salim. 20 What is supposed to happen when there is an attorney 21 visit, at least as it existed then, was that attorneys were 22 allowed then, before November 1, to have what are called 23 contact visits with your client, which simply means that, for 24 example, Mr. Mohamed and I would be permitted to meet in an 25 open room, obviously locked door, across a table. Mr. Mohamed 7467 1 would not be handcuffed, and that would be the circumstances 2 of the meeting. However, the way this worked, in order to 3 maintain security, here is how Mr. Mohamed, or any other 4 prisoner, would be brought to that attorney meeting: 5 The guard on duty, and hopefully it would be more 6 than one guard -- it is now -- would go to the cell of the 7 inmate: You have an attorney visit. The inmate would then do 8 the following: 9 The officer would unlock this food slot. Again, it's 10 a relatively small thing. You will see photographs and you 11 will have a clear idea of what it looks like. An inmate was 12 then required to back up to the food slot, place his hands 13 through the foods slot and be handcuffed from behind, and 14 then, once he was handcuffed from behind, then the door would 15 be opened and the inmate would be brought into, for example, 16 the attorney room that I have described. 17 Now, the attorney room that I have described also has 18 one of these food-type slot openings in it, and what would 19 occur is that the officer would open the door to the attorney 20 room, lock the door to the attorney room so both attorneys 21 would be in there and now the defendant is in the room, and 22 then the defendant would back up to the door and the handcuffs 23 would be removed. And so he would be in a lock, secure 24 facility, and at all times when he was in contact with the 25 officer, he would have been handcuffed from behind. 7468 1 The same thing happened, as you can probably imagine, 2 at the end of the meetings, which would be that at the 3 conclusion of the meeting, the client would back up to the 4 door, be handcuffed, allow himself to be handcuffed from 5 behind, and at that point the door would be opened so the 6 attorneys could leave and the client would be escorted back to 7 his cell, where, once he was locked in his cell, the handcuffs 8 would be removed in exactly the same procedure that I have 9 been describing. 10 Officer Pepe was often left alone on 10 South, the 11 only officer in charge of 10 South. On the day in question, 12 he made a mistake and he did not cuff Salim. What occurred is 13 that -- you have to recall the situation. He had been taken 14 out of his cell for an attorney visit. To all knowledge, he 15 was cuffed just as in the manner that I have described to you, 16 taken to an attorney room. 17 Now, the way this particular attorney room was set up 18 is that you will see from the diagram that there are two large 19 areas on 10 South which are designated recreation, but they 20 are basically large rooms, perhaps as large as the rectangle 21 that I'm drawing here. They are designated recreation, but in 22 fact they were often used mostly for meetings, and there would 23 be a foldable picnic-type portable table in there and some 24 plastic chairs and it would be used for meetings. 25 There were also other visiting facilities which 7469 1 consisted of two areas, each accessible by a locked door, each 2 with those kind of food slots with a security screen in 3 between, a stiff metal screen -- not something you could have 4 in your house, but a stiff metal security screen that you 5 could see through holes in the screen but there could be no 6 contact between. 7 On the particular day at 10 South, there was a 8 computer set up in one of those rooms, one side of that 9 visiting area, so that people who were preparing their case 10 who had to look at computerized discovery or other kinds of 11 documents could use the computer to look at it. We're moving 12 to a digital age where not everything is on paper any longer. 13 People would look at it. 14 On the day in question, Salim was taken from his 15 cell, locked into the computer side of the separated visiting 16 room, while his two attorneys were on the other side. And 17 Salim was doing something with the computer, said, in sum and 18 substance, I need to get some more materials from my cell. 19 And Officer Pepe took him out without handcuffing him and 20 walked him back towards his cell, and that is when the attack 21 on Mr. Pepe, Officer Pepe, took place. 22 You will find that, in terms of what happened 23 afterwards, the following: Officer Pepe's body alarm went 24 off. The officers carry an alarm so that if there is a 25 problem, if they are knocked down, there is an alarm that 7470 1 sounds throughout the institution. And it is a call to action 2 of the highest magnitude within a prison. It means an officer 3 is down and there's some problem. 4 They tried to raise Officer Pepe on his radio and he 5 would not respond to radio calls. They tried to call 10 South 6 and there was no answer on 10 South. 7 And then what happened is that the way 10 South is 8 set up is that you walk into a very secure area called 9 9 South, you walk up a half a flight of stairs, there is a 10 locked door with a window, there is a vestibule area between 11 the next locked door, it is maybe six or eight feet. The way 12 the security was set up is that only the officer on the inside 13 of 10 South would have the key to open the inside door. The 14 outside door could be opened via radio call by some kind of 15 central control. 16 Well, the extra key or the emergency key could not be 17 immediately located by the officers. So we have this 18 situation where they are trying to get onto 10 South and they 19 can't get there and they can't find the key. It takes five to 20 ten minutes before the key is brought up. 21 The officers rushed 10 South. They come charging 22 down the hallway, and Khalfan Mohamed fought back. I don't 23 deny that and I don't argue against that. I ask that you look 24 at the situation as he saw it. Salim had just got finished 25 attacking Pepe. The officers were charging down at him and he 7471 1 fought back, probably in an effort, he thought, to save his 2 life. 3 It is a tragedy that there is no video. I mean, it's 4 a tragedy for Mr. Mohamed, I suggest, that there is no video 5 of what took place on 10 South because there is now no way, 6 short of what one human being says about one thing and another 7 human being recalls about another thing, to reconstruct 8 exactly what happened on 10 South. 9 The guards responded, were responding to an emergency 10 situation. I can never tell you how I would respond if there 11 were -- how I would respond if I were in their shoes and 12 responded to what they responded to and seeing what they saw, 13 but we do have evidence, you will hear evidence that there was 14 at least some overreaction by some of the guards, physical 15 force used over and above what was necessary to subdue 16 Mr. Mohamed and Mr. Salim. 17 Very specifically, Mr. McAllister and Mr. Adler, from 18 where they were sitting in that attorney room, locked in, will 19 tell you the following: That while they were there -- and 20 they did not know what was going on, they are locked in this 21 room -- they saw Pepe walk Salim back to Cell No. 6, to the 22 far rear unit, and then nothing happened. Salim didn't come 23 back. They didn't see Officer Pepe again. 24 From their vantage point inside this interview room, 25 they could see, however, video monitors under the officers 7472 1 station desk at front and could see, for example, on 9 South, 2 that unit a half-step, a half-floor down, that there was a lot 3 of activity going on. 4 They couldn't figure out what was going on, but they 5 could see guards gathering and very excited and very upset. 6 And when they next saw Salim -- this was their client at that 7 time -- when they next saw Salim, they saw the following: 8 They saw officers drag Salim back into the front of the unit; 9 they saw that Salim was unconscious, unresisting. 10 One of the attorneys believed he was dead. Obviously 11 he wasn't dead, but he thought he was dead. And while Salim 12 was down, unresisting, unconscious, one of the officers in 13 question took a metal object of some kind, whether it's a key 14 or what it was, and jammed it almost into Salim's eye. Blood 15 spurted. It was like a fountain of blood. 16 That is what the attorneys witnessed. Nobody 17 witnessed what occurred back on Cell 6. However, I would like 18 to display for you photographs 103 through 106. 19 This is a photograph of Khalfan Mohamed taken on 20 November 6. It was taken five days after the events on 10 21 South. The injuries suffered by Mr. Mohamed are nothing 22 compared to what happened to Officer Pepe, but they include a 23 fractured nose and they include a fractured eye socket. If 24 you look at Mr. Mohamed's eyes, somebody fractured his eye 25 socket. 7473 1 And there is no video. The government has taken upon 2 itself to explain to you why there is no video that remains on 3 10 South. I suggest to you that the officers who responded, 4 just as they told the attorneys who were in the attorney room, 5 told them turn around, don't look. Turn around, don't look, 6 as they told the attorneys. They did not want to see what 7 they were doing to Salim; that there is a reason or there may 8 be a reason or that it is at very least suspicious or it is at 9 very least a failure of proof. 10 And perhaps that is the kindest, most non-accusatory 11 way to say it -- that there is a failure of proof as to what 12 occurred in the rear of 10 South and how these injuries 13 occurred. And whether the officers perceive of themselves now 14 as having to justify the injuries received by Mr. Mohamed, as 15 I say, Pepe paid a price that makes this appear to be nothing. 16 But he paid the price, and the injuries he received were not 17 at the hands of this man, they were at the hands of Mamdouh 18 Mahmud Salim. 19 He has nothing to do, Khalfan Mohamed, nothing to do 20 with this horrible assault. The government has taken it upon 21 itself to prove beyond a reasonable doubt that he poses a 22 future danger and it uses as a component of that proof this 23 assault. 24 But let me not leave it there. No matter what you 25 do, no matter what you find as to what occurred or did not 7474 1 occur on 10 South on November 1, 2000, the United States 2 Bureau of Prisons will make its own assessment as to whether 3 or not Khalfan Mohamed poses a danger in the future and will 4 have steps and will take steps and has available to it steps 5 to make certain that there is no further risk. No matter what 6 you find, no matter what you find, they are going to take 7 their own view of it. 8 There are simple steps that can be taken, and they 9 can be taken on 10 South. And you will hear experts and 10 witnesses describe these. They can be taken on 10 South. 11 They can be taken on virtually any institution that the Bureau 12 of Prisons maintains all around the United States, steps as 13 simple as never leaving one officer in charge of a group of 14 high security inmates. 15 The current situation on 10 South is that 16 Mr. Mohamed, and everyone else on 10 South, goes through -- 17 first of all, everybody is back to being single-celled, by 18 themselves, goes through this procedure that I described to 19 you even to be moved the ten or fifteen steps for an attorney 20 visit, but does it only under the supervision of at least 21 three officers, including a lieutenant. 22 Where there are numbers, the tendency to relax 23 procedures, and where there is a superior officer, the 24 tendency to relax procedures is diminished. And the Bureau of 25 Prisons -- you have heard reference to the SAM, the Special 7475 1 Administrative Measure that was introduced in the current 2 case -- I'm sorry, the prior penalty phase. There is also 3 something that you should know about and need to know about 4 called a control unit. 5 The Bureau of Prisons has available to it and has 6 procedures spelled out for housing inmates that the Bureau of 7 Prisons determines -- never mind what you determine -- the 8 Bureau of Prisons determines would pose a risk to other 9 individuals, staff, inmates, or anybody else, and the primary 10 criteria, the primary reason people are sent to a control unit 11 is that they have acted violently while in less restrictive 12 conditions. 13 Whatever you decide, I suggest that the Bureau of 14 Prisons is going to send Mr. Mohamed to a control unit, and 15 there is only one control unit in the United States. It is 16 located in a facility called Florence, a United States 17 penitentiary facility referred to as the Ad Max, which stands 18 for administrative maximum. 19 It is the most secure prison and the most 20 safety-conscious prison in the entire Bureau of Prisons 21 system. It has only been in operation for six or seven years. 22 It is sometimes referred to as the Alcatraz of the Rockies. 23 It's in a remote area of Florence, Colorado. We will be 24 putting on evidence to you of what these conditions are like 25 in a control unit or in what's called the Ad Max unit and how 7476 1 inmates are handled and how exposure to staff and other people 2 is absolutely minimized. 3 But these are steps that can be taken in any prison. 4 We will show you that after the events of November 1, the 5 horrible events of November 1, Mr. Mohamed was taken out of 6 the prison in the Metropolitan Correctional Center behind us 7 and taken to a facility in Otisville, New York. The facility 8 in Otisville, New York is not even a maximum security 9 facility, but they set it up inside for him. 10 And we have for you and will play for you videotapes, 11 at least one videotape, that was prepared by Otisville to 12 document the kind of security that they put into place with 13 regard to Mr. Mohamed, how he is moved from place to place. 14 It's a procedure that can be put in place in any penitentiary 15 in the United States. It is essentially this three-man hold 16 that I described to you, that a person moves only with three 17 people around them at all times; that they are shackled at the 18 feet with chains; that they are searched thoroughly before 19 coming out of the cell; that they are chained at the waist; 20 that the handcuffs are looped through the chain at the 21 waist -- it's called a belly chain or a Martin chain 22 sometimes; that sometimes what is called a black box is used 23 on handcuffs. The handcuff has chains on it. A black box 24 is -- a small black metal box that covers the chains is locked 25 over the chains so that there is not even this kind of 7477 1 movement available; you can only move there. And as you will 2 see from the video, that is how Mr. Mohamed is moved around. 3 Before someone says that, well, I must be blaming the 4 victim for what happened in this case, I do not. Somebody 5 will say, well, he's blaming MCC for letting Officer Pepe be 6 there all by himself. And I'm not. I blame Mamdouh Mahmed 7 Salim for what happened to Officer Pepe on November 1, 2000. 8 Let's talk about the alternative to death. Let's 9 talk about prison. Let's talk for a moment about life in 10 prison. You will see lots and lots of photographs of what a 11 prison cell looks like as part and parcel of this particular 12 case. Most prison cells are maybe eight feet by ten feet, 13 roughly a triangle, rectangle that I'm drawing or outlining 14 now. 15 I want you to think for a moment of life in a prison, 16 life in a room that size for the rest of your life, for every 17 day of the rest of your life. But back up a little bit. 18 Think about a moderately nice motel room, a Holiday Inn 19 somewhere, a Days Inn somewhere, and think of yourself being 20 put into this relatively nice motel room by yourself one 21 morning and saying, well, here you are and you're going to be 22 here forever. This is going to be your home for the rest of 23 your life. 24 Well, you have the T.V. to look at and you have some 25 reading to do, but day after day, even being locked in a nice 7478 1 motel room, it is that loss of freedom that is the punishment. 2 It is the loss of freedom that drives people to kill 3 themselves in prisons. It's that loss of human contact, of 4 being part of any kind of a society. 5 Now, instead of the Holiday Inn room, imagine that 6 one day the manager of the Holiday Inn comes and says, I'm 7 sorry, we know you're enjoying this large room, but we're 8 going to have to move you into the bathroom and that's where 9 you're going to have to stay. But, don't worry, we're going 10 to move a bunk in there and you will have a toilet in there. 11 And I hope you don't mind that there is a camera on you every 12 day, and I hope you don't mind that people are watching every 13 intimate detail of your life, and I hope you don't mind that 14 you're not going to be able to make phone calls when you want, 15 and if you do make a phone call, we're going to listen and 16 tape record it and we're going to read every letter that you 17 get and every letter that you send. 18 It is punishment. It is punishment. And it is 19 punishment because of choices, choices that Mr. Mohamed made 20 himself. Nobody has brought this on him. We are not blaming 21 someone else for the fact that here, in the year 2000, 22 somebody who once had a life in front of him has nothing in 23 front of him except prison or death in prison. 24 I mean, in a real sense, Mr. Mohamed knows something 25 today that none of us know, and what he knows today that none 7479 1 of us know is where he is going to die. He is going to die in 2 a United States penitentiary. The only question is when, and 3 the only question is whether he dies as a result of age or the 4 ravages of time, a disease, or when God's calls him to die, or 5 whether he dies as a result of 12 votes from a jury in New 6 York City in the spring and summer of the year 2001. 7 A final word on future dangerousness: What the 8 government says that Mr. Mohamed did on November 1 is not a 9 capital crime. I mean, Mr. Salim does not face the death 10 penalty because of what he did on Officer Pepe. Officer Pepe 11 did not die. He was horribly injured, but we don't have the 12 death penalty for people who do not kill. 13 But what the government is saying is this -- and 14 understand fully what they are saying: What they are saying 15 is, since we can't figure out a way to confine him in a way 16 that is not a risk some day to somebody, as some kind of final 17 guarantee, you people should vote that he be killed. That's 18 what it's there for. That's what the government is asking you 19 to do. That's why that information has come before you. 20 I want to talk a bit about the case in mitigation, 21 and I want to begin by displaying a chronology that we 22 displayed in the original summation. I will not go through 23 this in long detail. You have seen this document before. 24 It takes Khalfan Mohamed through his birth in 1973. 25 While he is six years old, the mujahadeen come into existence. 7480 1 And you saw during Mr. al-'Owhali's penalty phase that video 2 called "The Koran and the Kalashnikov," I think it was called, 3 that documented the rise of the mujahadeen and the fact that 4 it was our government, our Central Intelligence Agency, our 5 CIA which supported and funded and armed the mujahadeen. 6 You will note that in 1990 he moved to Dar es Salaam 7 to live and work with his brother, Mohamed, and began to 8 undertake the first real religious education that he had ever 9 done. He began to attend a mosque in the Ilala section of Dar 10 es Salaam. 11 This is a photograph of the mosque in Ilala in Dar es 12 Salaam that Mr. Mohamed began to attend at age 17, where he 13 began to learn a brand of Islam that has brought him here 14 today. 15 Let's look, also, at photo 7, which is another view 16 of the same mosque. 17 All right, if we may return to the chronology. 18 As we go through 1994, 1994 was a key year. He meets 19 people. He begins to discuss more and more the concept of 20 radical Islam and he goes to training in Afghanistan in 1994. 21 He thought he might go there to help the people in 22 Bosnia. You have heard a little bit about Bosnia and what was 23 happening in Bosnia Herzegovina. 24 If we could switch and display map 8, it's a map of 25 the Mediterranean area, North Africa, and you see right across 7481 1 Italy, across the Adriatic Sea, Bosnia, Herzegovina, former 2 portion of the Yugoslavia-Czech Republic, Czechoslovakia, when 3 those nations broke up in the wake of the dissolution of the 4 Soviet Union, hundreds-of-year-old ethnic rivalries and 5 hatreds came back to the surface. And what happened in Bosnia 6 to the Muslim people has been described to you by witnesses, 7 at least one witness in this case, as genocide. 8 We will present further evidence on what was going on 9 in Bosnia and what was in the mind of Khalfan Mohamed in 1994. 10 Entire villages of men and boys were marched out of Muslim 11 areas in Bosnia, never to be seen again, although mass graves 12 still to this day continue to be uncovered all over this area 13 of Bosnia. 14 The leaders of these crimes have been indicted for 15 international war crimes. They do not face the death penalty, 16 but they have been indicted for war crimes in international 17 tribunals. 18 In Bosnia and Herzegovina, for the first time rape 19 was recognized as a war crime because it was used as an 20 instrument of war, where Serbian neighbors raped Bosnian 21 neighbors in the name of ethnic cleansing so that the two 22 could never, ever live side by side. 23 This is what is fulminating in the Muslim world in 24 1994. It is not fiction. It is not propaganda. It is, 25 unfortunately, the truth about what happened. 7482 1 If we could display the document called mitigation. 2 One of the first things that you will consider is his 3 role in the offense, and you have heard much about his role in 4 the offense -- that he was not a leader or an organizer of the 5 conspiracy which led to the bombing of the Dar es Salaam 6 embassy or, indeed, the larger conspiracy. 7 Think of the number of people who were involved and 8 think of the money and the experts and the material and 9 logistics, all that had to be accomplished in order for that 10 to happen. And in that overall grand scheme of things, he was 11 obviously not a leader. He was obviously not an organizer. 12 He was not even particularly skilled. No expert talent of his 13 was brought to bear. 14 Now, I want to say something more about the leaders 15 and the organizers and the other people who have been charged. 16 There are literally dozens of people who will be named and 17 established for you throughout the trial who played roles in 18 this offense who will not face the death penalty. 19 Some of them, obviously, you know about firsthand, 20 directly: 21 Mohamed Sadeek Odeh found guilty by you of 213 counts 22 of murder in Nairobi never faced the death penalty. 23 Wadih El Hage never faced the death penalty, despite 24 your finding him guilty of the conspiracy to kill Americans 25 everywhere in the world, despite the fact that he was the key 7483 1 organizer of the Nairobi cell of al Qaeda which carried out 2 both of these bombings. 3 Mr. al-'Owhali does not face the death penalty 4 anymore, although he did, because by your verdict he is not 5 facing, he cannot ever face a sentence of death. 6 We will present evidence of other individuals. 7 I want to talk to you about extradition and the 8 concept of extradition. Mr. Salim was extradited from 9 Germany. He was extradited from Germany on condition that the 10 United States Government could not expose him to a death 11 sentence. 12 The government has stipulated in the first penalty 13 proceeding, it will undoubtedly so stipulate in this penalty 14 proceeding, that there are defendants presently undergoing 15 extradition proceedings in the United Kingdom who do not face 16 a death penalty because the United Kingdom will not extradite 17 people to any country unless assurances are given by the 18 government that that person will not face a sentence of death. 19 You will hear evidence in this case about other 20 people who have entered into cooperation agreements with the 21 United States or who, you may infer, and I will argue that you 22 can infer, have entered into cooperation agreements with the 23 United States. 24 There will be a stipulation between the government 25 and the defense that there is a member of al Qaeda who in the 7484 1 past five years has pled guilty to a conspiracy to kill 2 Americans anywhere in the world, and that he has an 3 arrangement with the government by which his sentence can be 4 anything from zero to life. 5 I want to talk specifically about another individual, 6 and that is Ali Mohamed. 7 If we could have that photograph. 8 Ali Mohamed, you remember discussion of Ali Mohamed. 9 You may remember particularly in summing up to you Mr. Karas 10 described Ali Mohamed in the following words: "Ali Mohamed 11 lurks in the background of this entire conspiracy." Lurks in 12 the background of this entire conspiracy. 13 Ali Mohamed, a naturalized American citizen, a man 14 with two bachelors degrees and a master's degree, born in 15 Egypt, served in the Egyptian army, served as an instructor 16 for the special forces at Ft. Bragg in South Carolina. 17 You may recall arguments made to you about Mr. El 18 Hage as an American, it was argued to you; he was asked to 19 choose between his country and al Qaeda, and he repeatedly 20 chose al Qaeda. It now appears that Mr. Mohamed, Ali Mohamed, 21 is in exactly that same position -- that he repeatedly was 22 asked to choose between his country, America, and al Qaeda, 23 and repeatedly chose al Qaeda, except now there has been a 24 change and the change is it now appears that the United States 25 has chosen Mr. Mohamed as one of their cooperating witnesses. 7485 1 I ask you to make that inference. I do not say that 2 the United States confirms that that is the case, but I'm 3 going to ask you to make the inference that this man is 4 cooperating with the United States under circumstances by 5 which he could some day not only not face the death penalty 6 and not face a sentence of life imprisonment, but some day 7 walk free. Ali Mohamed walking the street of America again 8 because of a deal with the government. 9 I'm going to read for you, and you will have this 10 document in evidence, but I'm going to read to you from a 11 statement that Ali Mohamed gave in the course of pleading 12 guilty to five counts of international conspiracy and 13 terrorism on October 20, 2000. 14 I'm just going to start reading: 15 "Your Honor, in the early 1980s I became involved 16 with the Egyptian Islamic Jihad organization. In the early 17 1990s, I was introduced to al Qaeda -- al Qaeda is the 18 organization headed by Usama Bin Laden -- through my 19 involvement with the Egyptian Islamic Jihad. 20 "In 1992, I conducted military and basic explosives 21 training for al Qaeda in Afghanistan. Among the people I 22 trained were Harun Fadhl and Abu Jihad. I also conducted 23 intelligence training for al Qaeda. I taught my trainees how 24 to create cell structures that could be used for operations. 25 "In 1991, I helped transport Usama Bin Laden from 7486 1 Afghanistan to the Sudan. 2 "When I engaged in these activities and the others 3 that I am about to describe, I understood that I was working 4 with al Qaeda, Bin Laden, Abu Hafs, Abu Ubaidah, and that al 5 Qaeda had a shura council, which included Abu Hajer al Iraqui. 6 "In the early 1990s, I assisted al Qaeda in creating 7 a presence in Nairobi, Kenya. I understood that I was working 8 with al" -- I'm sorry. Repeat that. 9 "In the early 1990s, I assisted al Qaeda in creating 10 a presence in Nairobi, Kenya and worked with several others on 11 this project. Abu Ubaidah was in charge of al Qaeda in 12 Nairobi until he drowned. Khalid al-Fawwaz set up al Qaeda's 13 office in Nairobi. A car business was set up to create 14 income. Wadih El Hage created a charity organization that 15 would help provide al Qaeda members with identity documents. 16 I personally helped El Hage by making labels in his home in 17 Nairobi. I personally met Abu Ubaidah and Abu Hafs at Wadih's 18 house in Nairobi. 19 "We used various code names to conceal our 20 identities. I used the name Jeff; El Hage used the name 21 Norman; Ihab used the name Nawawi. 22 "In late 1993, I was asked by Bin Laden to conduct 23 surveillance of American, British, French and Israeli targets 24 in Nairobi. Among the targets I did surveillance for was the 25 American embassy in Nairobi, the United States AID Building in 7487 1 Nairobi, the United States Agricultural Office Nairobi, the 2 French Cultural Center and French Embassy in Nairobi. These 3 targets were selected to retaliate against the United States 4 for its involvement in Somalia. I took pictures, drew 5 diagrams and wrote a report. Khalid al-Fawwaz paid for my 6 expenses in the photo-enlarging equipment. He was in Nairobi 7 at this time. 8 "I later went to Khartoum, where my surveillance 9 files and photographs were reviewed by Usama Bin Laden, Abu 10 Hafs, Abu Ubaidah, and others. Bin Laden looked at the 11 picture of the American embassy and pointed to where a truck 12 could go as a suicide bomber. 13 "In 1994, Bin Laden sent me to Djibouti to do 14 surveillance on several facilities, including French military 15 bases and the American embassy. 16 "In 1994, after an attempt to assassinate Bin Laden, 17 I went to the Sudan in 1994 to train Bin Laden's bodyguards, 18 security detail. I trained those conducting the security of 19 the interior of his compound, and coordinated with the 20 Sudanese intelligence agents who were responsible for the 21 exterior security. 22 "In 1994, while I was in Sudan, I did surveillance 23 training for al Qaeda. Ihab Ali, also known as Nawawi, was 24 one of the people I trained. Nawawi was supposed to train 25 others." 7488 1 I'm going to skip over some of this because you are 2 going to have this all. 3 "In late 1994, I received a phone call from an FBI 4 agent who wanted to speak to me about the upcoming trial of 5 United States v. Abdel Rahman" -- just parenthetically, you 6 have heard testimony about that as he was called away from 7 Nairobi. "I flew back to the United States, spoke to the FBI, 8 but didn't disclose everything that I know. 9 "I reported on my meeting with the FBI to Abu Hafs 10 and was told not to return to Nairobi. 11 "In 1995, I obtained a copy of the co-conspirator 12 list for the Abdel Rahman trial. I sent the list to El Hage 13 in Kenya, expecting that it would be forwarded to Bin Laden in 14 Khartoum. 15 "In 1996, I learned from El Hage that Abu Ubaidah had 16 drowned. 17 "In 1998, I received a letter from Ihab Ali. In 18 early January 1998, a letter said that El Hage had been 19 interviewed by the FBI in Kenya and gave me a contact number 20 for El Hage. I called the number and then called someone who 21 would pass the message to Fawwaz for Bin Laden. 22 "After the bombing in 1998, I made plans to go to 23 Egypt and later to Afghanistan to meet Bin Laden. Before I 24 could leave, I was subpoenaed to testify before the grand jury 25 in the Southern District of New York. I testified, told some 7489 1 lies, and was then arrested." 2 And there's more, which I will not read. 3 This is a man who may walk the streets again. And I 4 say to you this, and I saw to you this: If, in the view of 5 the United States, the justice can be served, if justice can 6 be served by striking a deal with Ali Mohamed, if justice can 7 be served by striking a deal with an American citizen who 8 surveilled our embassy in Nairobi, who took the photographs to 9 Usama Bin Laden himself and who stood there while Usama Bin 10 Laden looked at the photographs an remarked "there's a good 11 place for a bomb truck to go," and thereafter continued to 12 assist the conspiracy up to and including perjury in a grand 13 jury in 1998, leading to his arrest -- that's a long build-up 14 from an "if," but if justice can be served by striking a deal 15 and allow him to walk free some day, perhaps, then surely 16 justice can be served by taking Khalfan Mohamed and putting 17 him in a prison from which he will never walk free. And 18 that's one of the points of comparing the involvement of 19 people. 20 We'll go back to the mitigating list. 21 It is a mitigating factor that Khalfan Mohamed gave a 22 truthful and candid statement to the agents. One of the 23 things we will bring before you, which is new information to 24 you, is that although Mr. al-'Owhali eventually gave a 25 statement to the agents about what he knew about the bombing 7490 1 in Nairobi, for several days, Mr. al-'Owhali lied to the 2 agents about who he was and what he knew and where he stood in 3 the process. 4 If Khalfan Mohamed is not sentenced to death, he will 5 spend the rest of his life in a United States prison without 6 any possibility of release. He has no history of prior 7 criminal behavior. 8 If he is executed, Khalfan Mohamed's family will 9 suffer grief and loss. Mr. Garcia suggests to you so will the 10 victims, and that's undeniably true, but we will try to show 11 you some of his role. We won't do it now, but we will through 12 photos and maps, the kind of places he grew up in Kademni on 13 the Island of Zanzibar in Tanzania. 14 And the point of this, the point of this is that 15 there has been enough killing and enough pain. And you are 16 allowed to consider this, to say, look, do we need to bring 17 grief, are we substantially persuaded that we need to bring 18 grief and loss to another family in order to somehow balance 19 out the world? The world is not balanced out when more pain 20 is inflicted. And we hope to present to you members of 21 Mr. Mohamed's family who are, as we speak, traveling from East 22 Africa to the United States for the sole reason of speaking to 23 you as witnesses and telling you about their son or their 24 brother or their loved one. 25 But you will conclude, when you learn about 7491 1 Mr. Mohamed's world -- we will present testimony from a woman 2 named Jill Miller. Jill Miller is a trained social worker. 3 She holds a master's degree in social work and for the past 15 4 or 20 years has devoted her career to developing life 5 histories, family histories in a way that is understandable 6 and coherent in one piece to juries. 7 You will hear from her to discuss where Khalfan 8 Mohamed grew up, how he grew up, his education, the fact that 9 he left school before graduating from high school, the 10 influence in his life. She's been to Zanzibar twice for those 11 purposes. You will have her testimony and you will have 12 photographs that try to show you what that life is like, and 13 you will be justified in concluding that between our lives and 14 Mr. Mohamed's lives, virtually the only thing we have in 15 common is our common thread of humanity; that our worlds are 16 so very different and the influences are so very, very 17 different, and it is the point of this proceeding whether even 18 that common thread of humanity is going to be cut by you, the 19 jury. 20 You will hear from a psychiatrist, okay, a 21 psychiatrist not on the issue of Mr. Mohamed's mental health. 22 We do not, like Abu Hajer al Iraqui, contend that our actions 23 are somehow driven or justified or excused by mental illness. 24 Gerald Post, M.D., is a Yale-educated psychiatrist. He is a 25 professor of political psychology at George Washington 7492 1 University. 2 But before he went to the academic world, Dr. Gerald 3 Post spent 21 years as an analyst with the Central 4 Intelligence Agency, studying the psychology of terrorism and 5 how terrorist groups operate, how they recruit, and how they 6 select those who are important members of their conspiracy and 7 their group from those who are less important. And he will 8 give you the benefit of those 21 years and 25 years of 9 research as he discusses Khalfan Mohamed. 10 Number 7. Khalfan Mohamed is remorseful for the 11 deaths, injuries and other consequences of the bombing of the 12 embassy and would not participate in such a crime in the 13 future. One of the things about the death penalty is that it 14 disrespects and disregards the potential that people can 15 change, the potential that people can say I have thought about 16 where I have been and I have thought about where I am going, 17 and where I have been is perhaps not the right place to have 18 been. 19 You will hear testimony from both Dr. Post and Jill 20 Miller that they have discussed at great length Khalfan 21 Mohamed's view of what occurred at the embassy in Nairobi and 22 what occurred at the embassy in Dar es Salaam, and that the 23 experience and how the experience of being here in court and 24 how the experience of hearing from the victims has not changed 25 his beliefs, not changed his core beliefs, but has changed his 7493 1 view of what jihad should be and should not be, and that jihad 2 should not involve the killings of innocents, that it was 3 wrong. Of course he was wrong, and he never would have an 4 opportunity to do it again, but he would not. 5 This is always something, if he had been arrested and 6 executed, he never would have come to this point. 7 If he is executed, he will be seen as a martyr and 8 exploited by others to justify future terrorist attacks. 9 That's simply a fact. I mean, that's just simply a fact. 10 There is nothing I can do about it, the government can do 11 about it, or that you can do about it except to not have him 12 become a martyr. You can make him disappear from the face of 13 the earth, disappear into a prison, become socially invisible. 14 We have discussed factor 8, sincere religious belief, 15 and you have heard his statement and the things that 16 influenced him. 17 Number 11, this is something you don't know about and 18 wouldn't have known about until this part of the case. As a 19 matter of law, South African law, Khalfan Mohamed should not 20 have been released to American officials without assurances 21 that he would not face the death penalty in the United States. 22 You will learn, probably by stipulation or 23 instruction from the Court, that very recently in a lawsuit 24 brought in his name, the highest court of South Africa 25 overruled a lower court decision, unanimously concluded that 7494 1 Khalfan Mohamed should not have been released to Americans 2 without a promise -- just the same promise that the defendants 3 in the UK are getting, the same promise that was made to 4 Mamdouh Salim -- that he would not face a death penalty. 5 This is almost, he facing the death penalty, it is 6 almost arbitrary. It is almost like being struck by 7 lightening. In proper proceedings but for improper 8 application of South African law at the time by South African 9 officials. I add that the court I'm referring to did not 10 criticize the Americans for taking custody of Mr. Mohamed. 11 However, interpreting their own law and their own 12 Constitution, the South African High Court, the highest court 13 in South Africa, ruled that Mr. Mohamed should not have been 14 turned over to the Americans unless it was promised that he 15 not face the death penalty. 16 The final things we will talk about and I will 17 reserve talking about, Mr. Mohamed's personal characteristics. 18 This is to tell you that you are not asked to consider 19 executing or imprisoning a symbol or a cliche or some kind of 20 cipher. He is a human being with human qualities that are 21 good, that are bad. The choices he has made have brought him 22 to that point where the only decision left in his life is do 23 we kill him or do we lock him up in a prison away from society 24 for the rest of his life. 25 It is unique, individualized judgment, as I have 7495 1 said. I'm going to close with an example. It used to be in 2 this country when people were executed by a firing squad that 3 a member of the firing squad, one member, would have blanks 4 placed in their rifle. And the reason for that was that if it 5 ever turned out that the person was innocent or turned out, 6 even more importantly, that they should not have been 7 sentenced to death, that something went wrong with the process 8 and they should not have been executed, that the person could, 9 any member of the squad could take the view that, well, maybe 10 I had the blank and maybe I'm not responsible for killing this 11 person. 12 As you well know, all 12 of you must vote for 13 execution if execution is to take place. The law does not 14 give any one of you a blank vote. I'm asking all of you to 15 withhold your vote for death. I am asking all of you to treat 16 Mr. Mohamed as a unique individual, to look into your heart, 17 and to vote for a sentence of life imprisonment. 18 Thank you very much. 19 THE COURT: Thank you, Mr. Ruhnke. 20 We will take a five-minute recess. 21 (Recess) 22 (Pages 7496 through 7499 filed under seal) 23 24 (Continued on next page) 25 7496 1 In open court; jury present) 2 THE COURT: We're now in the government's case. The 3 government may call its first witness. 4 MR. FITZGERALD: The government calls Patricia 5 Wagner, WAGNER. 6 PATRICIA JOAN WAGNER, 7 called as a witness by the government, 8 having been duly sworn, testified as follows: 9 DEPUTY CLERK: Please be seated. Please state your 10 full name. 11 THE WITNESS: Patricia Joan Wagner. 12 DEPUTY CLERK: Please spell your last name. 13 THE WITNESS: W-A-G-N-E-R. 14 DEPUTY CLERK: Thank you. 15 DIRECT EXAMINATION 16 BY MR. FITZGERALD: 17 Q. Good afternoon, Ms. Wagner. 18 A. Good afternoon. 19 Q. If you could just keep your voice up a bit or if you could 20 sit slightly closer to the microphone so that everyone can 21 hear you. 22 A. Okay. 23 Q. Can you tell the jury when you first moved to Tanzania? 24 A. I moved to Tanzania in the summer of 1997. My husband and 25 I were former Peace Corps volunteers in Africa, and my husband 7497 1 had gotten a job with the Peace Corps as staff to supervise 2 the teachers that were in Tanzania. So he actually went over 3 I believe it was in March of that year, and I waited until 4 summertime and my children finished school and then I 5 followed. 6 Q. And where did you and your husband move from when you went 7 to Tanzania? 8 A. We had been living in Hawaii for a number of years. We 9 both were teachers there. 10 Q. And what did you teach and when did your husband teach? 11 A. I teach science, biology, chemistry, physics. Pretty much 12 the gamut. My husband teaches mathematics. 13 Q. Once you moved to Tanzania in 1997 and joined your 14 husband, what did you do for work? 15 A. The embassy has usually a small number of jobs, sometimes 16 they're part-time, sometimes they're not, that they sort of 17 reserve for spouses of people who are either working at the 18 embassy or at a Peace Corps or perhaps at like USAID, part of 19 the entire American mission. There was an opening that came 20 up. It was actually a program that was being restarted. It 21 had not been taking place for a couple of years, and so I got 22 a job as the security assistance officer in the embassy. 23 Q. And can you tell the jury what the job of security 24 assistance officer involved? 25 A. Okay. It really has nothing to do with the word 7498 1 "security." Security assistance is a Department-of-State-run 2 program which brings officers and enlisted personnel from 3 overseas to the United States for training with our different 4 military services. 5 Q. And where was your office located? 6 A. My office was located on the second floor. It's a little 7 difficult sort of to describe where it is. You know, the 8 embassy wasn't really one embassy. It was really two 9 buildings and there were two passageways from one side to the 10 other side. So I was not in the building that was closest to 11 where the bomb went off, I was in the building next to that, 12 but in the front corner. So that the side of my office, the 13 windows were sort of in the front of that corridor that led to 14 the, to where the bomb went off. 15 Q. Is it fair to say that you worked obviously in the embassy 16 and your husband worked in a different building? 17 A. That's correct. 18 Q. Why don't I direct your attention to the morning of August 19 7th, 1998. If you could tell us what you were doing shortly 20 before 10:30 in the morning. 21 A. Okay. 22 Q. And then what happened. 23 A. I came in to work a little bit late that morning. I 24 wasn't feeling very well. And I also noticed there weren't 25 any parking places available where I normally parked, so I 7499 1 drove my car further down, hoping for a space. And there was 2 one right directly in front of the embassy. 3 I went inside. I was very busy with things, and I 4 was actually sitting at my desk. I was waiting for a phone 5 call from -- someone was supposed to call me with some 6 information, a price of a hotel room, so I could send that in 7 an E-mail. And I was very annoyed that this person hadn't 8 called me. I remember sitting there and just sort of drumming 9 my fingers like this because I wanted them to call. 10 And then all of a sudden I felt something was very 11 wrong and I started to dive under my desk. It was -- it is a 12 very old heavy oak desk. And I didn't even get very far, and 13 then the bomb went off and I was flung around backwards, 14 facing the opposite direction. But I kept thinking I should 15 try to get under the desk. 16 And I could see the wall was falling. I could see it 17 looked like to me the ceiling was falling, so I kept trying 18 to -- and I did, I got under the desk. I thought that this 19 was what it must have been like for people who were in 20 Oklahoma City. And I remember my head hurt and it was just, 21 just spinning. I mean, I was so confused. 22 And I could hear, it sounded like a siren, but it was 23 very, very far away. And I kept thinking, why isn't the siren 24 getting any closer? And then I realized there was smoke in 25 the room. The windows had burst and I thought, oh, my God, 7500 1 the embassy must be on fire and I've got to get out of here. 2 So I pulled myself out from under the desk, and I 3 realized right away as I stood up, my foot hurt, and I 4 realized I didn't have a shoe on. So I thought, I've got to 5 be really careful. I'm okay, I'm really okay, and I've got to 6 watch my foot so I don't step on anything because I'm going to 7 have to help other people that were hurt. So I've got to 8 watch myself. 9 And so I was worried about getting electrocuted from 10 the light, and I tried to make my way around the desk because 11 the computers had shattered and the drapes had blown down and 12 a big bookcase fell, and there was just stuff everywhere, but 13 I climbed over it. 14 And my office is two offices with a secretary's 15 office in the middle, and I went to the door and the windows 16 had all broken, but I could see the -- it's like a lattice 17 covering and I could see it was still there. And I knew no 18 one else was up in my office. Everyone else was in a meeting 19 upstairs. 20 So I started pushing on the door. It's got one of 21 those handles that you push on. And I kept pushing it and 22 pushing it and I couldn't get it to open, and I started to get 23 scared because the smoke was just pouring in. And I thought I 24 can't climb down, I can't get out of here because the lattice 25 is still, the mental is still attached. 7501 1 And so I started using my hip. And I kept pushing my 2 hip and pushing my hip, and then I saw another door opened 3 farther down the hallway and I saw some people coming out. 4 And I pounded on the little glass section. I started yelling 5 so they could hear me, so they could help me to open the door. 6 And they did. They saw me, and with me pushing and them 7 pulling, we got the door open. 8 And I said, I said, what happened? Was it a bomb? 9 Was it a bomb that went off? And they said, we don't know, 10 but we're going to go outside and see. And so one of them 11 took my hand, and I said, I have to be really careful where I 12 walk. 13 And we went out a side entrance of the embassy, and 14 then everyone ran towards the back, except the person who was 15 holding my hand, Chip Carpenter. And I started to go to the 16 back and he started to go to the front. I thought, wait a 17 second, that's where all the smoke is coming from. I better 18 go over to the front and see what's happened and see if 19 anyone's hurt there. 20 So I ran around the corner of the building, and I ran 21 to the front and I saw all the cars that were on fire and it 22 was just like things were exploding and popping and banging, 23 and the noise, and there was all the fires from the cars and 24 all the smoke around it was so strong -- the smoke, it burned 25 your nose. 7502 1 And as I came around, I saw that the tree that had 2 been in the little courtyard had blown in front of the door 3 and there was metal or something. I couldn't really tell what 4 it is. I remember it was like some kind of weird sculpture 5 that was blocking the door. And I climbed over it and I got 6 the front door. It opened up right away. It's a heavy door, 7 but it opened up. 8 And then I saw people were coming down the stairs, 9 and so I what I did was I backed up because they all had blood 10 and it was difficult for them to see. 11 And as one person came out, then I went on the other 12 side of the wood and I would help them to climb over. And 13 then as soon as we got over, I would take them around to the 14 back and I would put somebody in charge of them and I would 15 say, you, you're in charge of Cynthia, you know, you take care 16 of her. 17 And then I would go to -- because it was, Cynthia was 18 the first one that came out, and I could see she still had her 19 glasses on, but her lens was missing and it just looked like 20 she just didn't, her eye was gone. And she had just so much 21 blood, so I made sure that I got someone to take care of her 22 because we just didn't know what was happening. She kept 23 saying to me, I can't see anything. 24 And then I ran right back, and I kept helping. I saw 25 Lizzy Slater, and her nose was all cut up. And people were 7503 1 trying to like touch her nose and I was saying, no, no, no, 2 don't pull anything out, leave it, we'll get medical help. 3 And I took her around. 4 I kept doing that over and over again. And then 5 there was no one else coming out, so I ran around the back to 6 see if anyone had any more information, but it was so chaotic. 7 People were crying and screaming and so many people had facial 8 injuries, which, you know, they had so much blood on their 9 faces. 10 It sounded like there was a war going on, just what 11 you see on T.V. So I thought, I'm going to go around to the 12 front on the other side where the -- what I now know where the 13 bomb had gone off. And as I ran around the side of the 14 building, I could see the fires. And someone came running 15 around the side and said, don't, don't go that way, get back, 16 get back, the petrol tank, which was right on -- the gas tank, 17 which is right on the corner, it's going to blow up, it's 18 going to blow. Run. Run. So I ran to the back. 19 And we just tried to figure out what was the best 20 thing to do. I mean, I tried to see, to do, you know, triage, 21 to see who was the most badly hurt, who we could help right 22 away, who looked like they were really going to need medical 23 attention in a hospital kind of setting, you know. 24 We didn't know if like the embassy was being attacked 25 or -- no one really knew. It was very, very confusing because 7504 1 we still had all the noises and the things kept exploding. 2 And then a truck came over to the side of the embassy 3 where there's, it's just bars that you can see through. And 4 it was the Ultimate Security Guards, and I said, we have to 5 get some of these people to a hospital, they're badly hurt. 6 So they found a ladder that they broke and they put it half on 7 the outside and half on the inside, and we got -- I took 8 Cynthia and the people, the woman whose ribs were badly hurt 9 out and another person, and they put them in the front of the 10 truck, a small little truck, and then I got in the back 11 because I wanted to make sure that there was someone there 12 with them and we went off to the hospital. 13 Q. During the ride to the hospital, did you talk to Cynthia 14 at all? 15 A. No. I was in the back. I was all by myself. I mean, 16 they were all in the front with the driver. I was in the back 17 just holding on. 18 Q. And what happened when you got to the hospital? 19 A. There were a lot of people there. They was a crowd, maybe 20 five or six people deep around the entrance. And I got out 21 and I jumped around the side and I grabbed the other two women 22 and we started to make our way through the crowd. People were 23 trying to say, let them through, let them through. 24 We got in sort of a main room and they brought some 25 stretchers out, wheeled ones, and we put Cynthia on one and 7505 1 wheeled her back into a side room. And it was just, it was so 2 chaotic. People were in there crying and screaming and people 3 had, were just -- had blood and they had ripped clothes and 4 just, you know, people running through it like, again, it's 5 like some war scene. 6 And I got Cynthia. Cynthia was so upset. Her 7 husband is the gunny, he's the head marine in the embassy and 8 she was worried about him, but she kept saying, he's a marine 9 and he's going to be okay. But she was really worried about 10 her son, because she thought her son was in the embassy, too. 11 And I kept trying to calm her down and calm her down 12 and tell her her son was going to be okay. I knew her husband 13 was okay because I had seen him. I had seen the Marines 14 running into the embassy, but I hadn't seen her son. But I 15 just, I kept telling her he was okay anyway. 16 Then I grabbed one of the nurses because I was afraid 17 that she had lost so much blood and the fluid from her eye and 18 maybe had other injuries that she was going to go into shock, 19 and I knew that that would be bad for her. I grabbed some 20 people and I told them that she needed help, she needed a 21 specialist, an eye specialist. And they said they would get 22 someone. 23 Sometimes people would come back. More people kept 24 coming in. I just kept holding Cynthia and I kept telling her 25 it was going to be okay, we were going to get help for her. 7506 1 And I saw other people from the embassy on a bench sitting 2 there, and then I leaned, turned around, and there was a man 3 on a stretcher in back of me. He had a white shirt on and he 4 was face-down, but he wasn't looking toward me, he was looking 5 away from me. 6 And his shirt was all white, but at the edge where 7 the stretcher was, it was all red. And the blood had pooled 8 up and it was dripping onto the floor. I wanted to help him. 9 I put my hand on his shoulder because I didn't know what else 10 I could do to help him. And I just put my arm back around 11 Cynthia. 12 Q. Did there come a time that day where you had to step 13 outside to gather -- because you were not feeling well? 14 A. After a while, I realized I was feeling faint. And I had 15 been in a couple of trauma situations where I know exactly 16 what it feels like, I know exactly what is going to happen. 17 So I got Patricia, I told her I had to get outside, the smell 18 of blood was so strong. I had to go outside and put my head 19 down for a while. So she came over and she took over with 20 Cynthia, and I went and I just sat on a bench and I put my 21 head down between my knees. And people would just come over 22 and just put their hand on my shoulder and say (speaking in 23 Swahili), just to make me feel better. 24 And after a while, I felt so much better and I just 25 sat up. And a man came over with a wash cloth and he just 7507 1 started -- just because I had had my face next to Cynthia so I 2 had blood on it and he thought I was hurt, but I said, no, no, 3 no, no, I was okay, and he washed the blood off of my face. 4 Q. What did you do after that point in time? 5 A. When I was sitting there, I realized that I didn't know 6 where my husband was, and I know that the Peace Corps office 7 is not very far, but who knows where he would have been. 8 Maybe he comes to the embassy, maybe he might have been in the 9 embassy. 10 So I told Patricia I couldn't stay any more, I had to 11 go and find out what had happened to my husband. So she said 12 she would stay with Cynthia. So I walked outside and there 13 were still a lot of people out there, and I made my way 14 through the crowd. Some people didn't want me to leave, but I 15 said, no, I wasn't hurt and I had to get back to the embassy 16 because I had to find out. 17 And so I started walking back to the embassy and I 18 kept telling myself to be really careful, to watch where I 19 stepped because I knew I had glass in my foot. It was hurting 20 and I had to be very careful. It was hot, it was very hot on 21 the pavement with my foot, but I just kept going. 22 I just got this little song in my mind. It was just 23 like, I got to get to the embassy, I got to get to the 24 embassy, and I just kept walking and walking. And sometime a 25 lot of people, a lot of people were going to the embassy. You 7508 1 could see the smoke. 2 And people would come up to me and they would take my 3 hand and they would start talking to me in Key Swahili and 4 then they just kept saying it wasn't them, they didn't do it. 5 They kept saying everything was going to be okay and they 6 would walk with me for a ways and just hold my hand. 7 Q. How far was it from the hospital to the embassy? 8 A. I'm not really sure. I know it's a couple of miles. It 9 felt like it was very far. It's not really that far. 10 Q. What happened when you got to the embassy? 11 A. There were a lot of people there. They were putting out 12 the fires with the fire trucks and there were the TPDF. The 13 army men had come and they had sort of cordoned off the 14 embassy. And they didn't want to let me through and I said, 15 no, I grabbed onto one of the security guards, I said, you've 16 got to, I've got to get in, I've got to find people, I've got 17 to talk to someone to find out what's happened. 18 And he took me right in. That's when I stood there 19 and I saw the crater and I saw the front view of what had 20 actually happened to the embassy. I just, I couldn't believe 21 it. 22 The DCM, John Lange, saw me and he came running over. 23 He asked me if I was okay. And we talked about what had 24 happened. And then he said he had a car, I believe it was the 25 French ambassador had given him a car to use because all our 7509 1 cars had been destroyed, so he could take me to his house 2 because that's where my husband would be. 3 He didn't know what had happened. And I went and I 4 stood by the car, and my dress had ripped so I was like 5 trailing just the bottom half. Part of it was trailing behind 6 me. And of course I had no shoes, so I kept pulling up my 7 dress with my hand so I could see where I was walking. 8 And I was standing by the car, and all of a sudden 9 this old man comes walking towards me, and he's bowed down 10 like this and he has a rubber slipper in his hand. It was 11 this huge, it was like size 13 red rubber slipper that he was 12 giving me to put to use on my foot. And I remember my first 13 thought was like, it's okay, I'm okay. And then I realized he 14 was giving me this gift, so I put it on. 15 I got in the car with John Lange and we went to his 16 house, and as I got out of the car I walked around the side of 17 the car, and that's when I saw my husband was standing in the 18 doorway of the house. I was really happy to see him. 19 Q. Now -- 20 Go ahead, sorry. 21 A. Okay. We just held one another. I didn't know how bad it 22 had been for him. He was actually a couple of blocks away and 23 when the bomb went off, he was in a Peace Corps vehicle. They 24 thought all the tires had been shot out of the vehicle or the 25 tires had exploded or something, and they pulled over real 7510 1 quick and they hopped out and they were looking at the tires 2 and all of a sudden my husband looked up and he saw the smoke. 3 He said he knew, he knew it was the embassy right then. 4 So he went running down the street and people were 5 running in the opposite direction saying an airplane had 6 crashed into the embassy. You know, my husband was, what? 7 And as he came around the corner, of course, he was on the 8 side where the bomb went off, and so he had, he called back to 9 the Peace Corps. 10 He arranged for medical people to come because the 11 Peace Corps has a nurse and several medical facilities and 12 equipment. And he kept looking and looking and looking for 13 me. Nobody remembered seeing me. He just didn't know for 14 those hours what had happened. So it's pretty good to see him 15 again. 16 Q. And over the course of the days following the bombing, did 17 you go back to the embassy on a number of occasions? 18 A. I was the Department of State liaison with the FBI. I 19 took FBI agents around the neighborhood, into diplomatic 20 residences, spoke to the guards in Key Swahili, explaining to 21 them what we were doing and why we were doing this as they 22 gathered evidence. 23 About a month later, I was in front of the embassy 24 and I suffered a miscarriage and I had to be medivac-ed up to 25 Nairobi to take care of it. 7511 1 Q. Is it fair to say that, without knowing what the cause is, 2 you attribute the miscarriage to the bombing? 3 A. It's definitely linked in my mind. 4 Q. Let me show you a picture of an office, which has been 5 marked Government Exhibit 3005 for identification. 6 MR. FITZGERALD: If I could display that on the 7 screen, your Honor, if there's no objection. 8 Q. Can you tell the jury, if their screens are working, what 9 is it we are see in the photograph marked 3005? 10 A. This is my office and this is looking toward the front of 11 the embassy. You can see on the left-hand side that's where 12 the window is with the grating. 13 We went back in. This is the very next day. We went 14 back in to try to get some records and some phone numbers of 15 people to call to help us. And you can see my chair. I 16 actually picked the computer up and put it back on the desk, 17 and you can see my chair behind the computer and then you can 18 see on the right-hand side the, it's a concrete wall 19 reinforced with steel rods. Very heavy. 20 Q. If I could also show you and offer at this time Government 21 Exhibit 113O, and can you tell us what the building is in the 22 background there? 23 A. The building is across the street from the embassy. It's 24 a private residence and Jan and Calvin Connor were living in 25 it. We have a play group that meets every Friday afternoon. 7512 1 All of the children who are not yet in school meet in that 2 group. That's where they would have been on Friday morning, 3 but the Connors went on vacation and so they didn't hold the 4 play group that Friday morning. 5 Q. And is the hole in the ground what you recognize to be 6 from the bomb blast that day? 7 A. That's correct. 8 Q. You mentioned a Cynthia who had her eye severely injured. 9 Is that Cynthia Kimble? 10 A. That's correct. 11 Q. You mentioned before that she was looking for her son. As 12 it turned out, her son was okay? 13 A. Her son was fine, yes. 14 Q. And her husband, the marine, was okay, he survived? 15 A. Yes, he was. 16 Q. Tell us what impact the bombing has had on Cynthia since 17 the time of the bombing. Can you tell us what she was like 18 before and what she is like now? 19 A. She was a very warm and wonderful, just very outgoing and 20 giving person. I mean, the job that she was taking at the 21 embassy just fit her so well. She was the community liaison 22 officer and she was the one that would help people as they 23 came to Dar es Salaam, show them around, you know, help them 24 orient to being in a new city. She was just so giving of 25 herself. She would volunteer to do anything. I mean, she's 7513 1 just a very wonderful and very special person. 2 Now it's very difficult for her. She's very 3 depressed over it. Of course, she does not -- she had had 4 some operations, but she does not have her eyesight back. 5 Every time she looks in a mirror, she's reminded of what 6 happened. So she has to -- she feels like she relives it a 7 lot. 8 Q. So she has the sight in one of her eyes and lost the 9 vision in the other? 10 A. That's correct. 11 Q. And can you tell the jury what the impact of the bombing 12 has been upon you emotionally since August 7, 1998? 13 A. Well, I don't sleep very well at night. Sometimes I close 14 my eyes and I -- the bomb goes off like that and I just sit up 15 in bed and my husband sits up next to me and he puts his arm 16 around me and just says, it's okay, you're safe now. 17 I still have a lot of nightmares about the bombing. 18 When I dream about it, I don't, I don't turn to the left to go 19 help Cynthia, I turn right, and there's two people there. And 20 they are where there were two people, but I never saw them 21 when it really happened, I only see them in my dreams. And 22 they're badly burned and they're bleeding, but one is still 23 alive and so I kneel down next to him and I take his hand and 24 I try to talk to him and tell him it will be okay. 25 It's very hard for me to deal with anger, with strong 7514 1 emotions. You can see I get emotional more easily. I always 2 felt that after being a Peace Corps volunteer in Africa in the 3 1970s that I had a really good appreciation for the things 4 that we have in this country. I mean, I still marvel at the 5 fact that when I turn on a light switch, the light goes on, 6 that the water always runs out of the taps, that there's 7 always food in the markets, because I've lived in places where 8 that's not always so. 9 But now I just try to do everything I can to help 10 other people. Sometimes I see things happening, and just from 11 simple things like if somebody drops something in the 12 cafeteria to, a couple weeks ago there was a woman in the 13 grocery store and she had a small child and the baby was 14 crying. And she was mad and she was yelling at the baby, and 15 I couldn't, I couldn't let that keep happening, I had to go 16 help her because I knew how frustrated she felt. And I know 17 as a mother, I've had hard times like that too with my 18 children, and I went over and just talked to her and then I, 19 you know, started talking to the baby and got them to just 20 ease up a little bit and get out of that anger and that 21 frustrated place that they're in. 22 Q. Thank you very much. 23 I didn't mean to cut you off. 24 A. It's okay. I'm just really surprised at the depth of my 25 sadness. In some ways for myself, because every time I see a 7515 1 woman with a baby I think about my own baby. I never really 2 knew how difficult it was when you had a miscarriage, but I 3 feel so sad for all the other people, Cynthia and the guards 4 that used to greet me every day when I came in to work, that I 5 would talk to, that I would -- they would laugh as I practiced 6 my Key Swahili with them, and just everybody that this has in 7 some way affected. 8 MR. FITZGERALD: Thank you for coming, ma'am. 9 THE WITNESS: You're welcome. 10 MR. RUHNKE: No questions, your Honor. 11 THE COURT: Thank you, ma'am. You may step down. 12 We will recess for lunch. We'll resume at 2:15. 13 (Luncheon recess) 14 15 16 17 18 19 20 21 22 23 24 25 7516 1 A F T E R N O O N S E S S I O N 2 2:15 p.m. 3 THE COURT: There are two matters before we bring in 4 the jury. Mr. Lind called chambers and wanted to know is 5 there a schedule set for his motion to quash. 6 What it is your pleasure? 7 MR. RUHNKE: If he wants to move to quash Friday. 8 THE COURT: Friday, all right. Either Thursday or 9 Monday. 10 MR. RUHNKE: I would suggest we do it, then, 11 Thursday. 12 THE COURT: Thursday. Okay. Why don't we say 13 Thursday at 9:30. 14 You look unhappy. 15 MR. RUHNKE: I was just thinking the end of the day 16 what I'm going -- 17 THE COURT: Would it be better? You would rather 18 have it 4:30? 19 MR. RUHNKE: Yes, I think so. 20 THE COURT: This Thursday at 4:30. 21 MR. RUHNKE: Your Honor, for the record, I spoke with 22 Mr. Lind and he, after speaking with Dr. Krascian, agreed to 23 accept service of the subpoena. So service is not an issue. 24 THE COURT: Very well. Okay, this Thursday at 4:30. 25 The other thing is requests to charge, and I have no 7517 1 objection if you take the last charge and mark it up or 2 annotate it. 3 MR. RUHNKE: Yes, your Honor. 4 THE COURT: But can we have that Monday, noon Monday? 5 MR. RUHNKE: Yes. 6 MR. FITZGERALD: Yes. 7 THE COURT: All right. 8 MR. RUHNKE: Your Honor, we don't need to deal with 9 it now, but I just received some Brady material. It was too 10 late to use it in my opening and I -- 11 THE COURT: You didn't lack for material in your 12 opening. 13 MR. RUHNKE: Pardon me? 14 THE COURT: You didn't lack for material in your 15 opening. 16 MR. GARCIA: It is not Brady material, it's Giglio 17 material. 18 THE COURT: It's Jencks -- what is it? 19 MR. GARCIA: It's an inconsistent statement with one 20 of the witnesses. 21 THE COURT: I see. 22 MR. RUHNKE: Your Honor, it's Brady material. 23 THE COURT: Ask the jury to come in. 24 I'm going to instruct the jury not to engage in 25 discussions with the marshals. This is a request of the 7518 1 marshals, who the jurors seem to want to discuss the case 2 with. 3 MR. FITZGERALD: Your Honor, I also don't think we 4 should preclude them from passing notes through the marshals 5 to the Court. 6 THE COURT: No. No. No, of course. Not to engage 7 in oral discussions about the case with the marshals. Any 8 communication should be sent in writing. 9 MR. FITZGERALD: Thank you. 10 THE COURT: I have been putting pressure on him not 11 to engage in discussions, and the jurors resist that because 12 they are hungry to talk. 13 Next witness is? 14 MR. FITZGERALD: Valentyne Katunda, and he will be 15 using -- actually, he will have a standby interpreter. 16 (Jury present) 17 THE COURT: Good afternoon, ladies and gentlemen. I 18 hate to lay another "don't" on you because there are so many 19 "don'ts," but please don't engage in any oral discussion about 20 the case with the marshal or the escorts. They are instructed 21 by me not to engage in any such conversations. Don't put them 22 in the middle of appearing to be unfriendly to you or to be 23 violating one of my instructions. 24 At the same time, I don't want to cut off 25 communication. And just if there is anything you want to tell 7519 1 me about, just in writing. 2 The government may call its next witness. 3 MR. FITZGERALD: The government calls Valentyne 4 Katunda, V-A-L-E-N-T-Y-N-E K-A-T-U-N-D-A. 5 Your Honor, we will be using a standby interpreter in 6 Swahili. 7 THE COURT: Yes. 8 DEPUTY CLERK: Beston Mwakaling. 9 THE COURT: And you have been previously sworn? 10 THE INTERPRETER: Yes. 11 DEPUTY CLERK: Please face the jury, sir, and please 12 raise your right hand. 13 VALENTYNE KATUNDA, 14 called as a witness by the government, 15 having been duly sworn, testified as follows: 16 DIRECT EXAMINATION 17 BY MR. FITZGERALD: 18 Q. Good afternoon, sir. 19 A. Good afternoon to you. 20 Q. If you could just keep your voice up. If you sit a little 21 bit closer to the microphone and keep your voice up, this way 22 everyone in the courtroom can hear what you have to say. 23 Thank you. 24 A. Okay. 25 Q. Can you tell the jury what you did for work in 1998? 7520 1 A. I remember it was on August 7th. 2 Q. What was your job in 1998? 3 A. 1998 on 7th? 4 Q. Yes. What did you do for work? 5 A. I was an inspector at the U.S. Embassy employed by U.S. 6 Ultimate Security, the sub-contract. 7 Q. And was Ultimate Security a contractor that handled 8 security for the American Embassy? 9 A. Repeat. 10 Q. Is Ultimate Security a company that had the contract for 11 security at the American Embassy in Dar es Salaam? 12 A. Yes. 13 Q. And how long had you worked for Ultimate Security, how 14 many years? 15 A. I was employed there 1998 by Ultimate Security, up to 16 1998. It's about three to four years. 17 Q. And had you worked at the embassy for a different company 18 and so you started working security at the American Embassy in 19 1990? 20 A. Well, I was employed at first by SSI Kims early in 1990. 21 Q. And do you have a brother who also worked in security at 22 the American Embassy in Dar es Salaam? 23 A. I heard Dar es Salaam, that's all. 24 Yes, my younger brother. 25 Q. Can you tell the jury the name of your younger brother? 7521 1 A. The name of my younger brother is Edward Matthew 2 Ruthashewra. 3 Q. And do you understand that Edward Matthew Ruthashewra 4 testified at the first part of the trial? Did your brother 5 come and testify at an earlier part of the trial? 6 A. Yes, he came before here. 7 Q. As an inspector with Ultimate Security, did you supervise 8 people? 9 A. Yes, sir, I do. 10 Q. And how many guards did you supervise? 11 A. On that day we are about 15 guards on duty. 12 Q. And how many shifts per day did the guards work at the 13 embassy? 14 A. Two shifts. 15 Q. Directing your attention to August 7th, 1998, can you tell 16 us what happened that day? 17 A. On the 7th of August, 1998, I was on duty as usual. At 18 around 10:33 hours I heard a sound like a thunder storm. 19 After some minutes, I fell down and I was covered by concrete 20 plus bulletproof glass for about four hours. I was under the 21 concrete and that. 22 Q. And what area around the embassy were you beneath the 23 concrete and glass for those four hours? 24 A. Well, I was at the consular guard house, the main 25 entrance. 7522 1 Q. And when you were in the consular guard house, was there 2 any other guard in that building with you just before the 3 explosion? 4 A. Before it? 5 Q. Before, at the time of the explosion, was someone else in 6 the same room at the consular guard house? 7 A. Yes. I had one lady known as Mtendeje. 8 Q. And Mtendeje we can spell M-T-E-N-D-E-J-E. 9 Can you tell us who Mtendeje was? 10 A. Mtendeje was at my left-hand side. 11 Q. And was she a security guard as well? 12 A. She was a guard, yes. 13 Q. And was there another room in the consular guard house? 14 Was there another room in that same small structure? 15 A. Room what? 16 Q. Was there a room next door? 17 A. At my next office there was a control room where two 18 guards were there, one known as Mwila, a dispatcher, and 19 another one was there, senior inspector known as Mahundi. 20 Q. And so there were you and one guard were in one room and 21 two guards were in the next room, correct? 22 A. Yes, please. 23 Q. And tell us what happened when you were buried beneath the 24 rubble for the four hours that day? How did you get out? 25 A. Well, after some hours, I made it to maintenance to get in 7523 1 there and help after shouting. That's when I was assisted 2 after four hours. 3 Q. And during the time you were beneath the rubble, what, if 4 anything, did you smell? 5 A. Sir? 6 Q. What did you smell when you were buried beneath the 7 rubble? 8 A. I smelled like smoke, smoke. 9 Q. And let me show you -- 10 MR. FITZGERALD: And I offer, your Honor, Government 11 Exhibit 3011, which is a chart of the embassy area as of 12 August 7th, 1998. 13 I would offer that and ask to display it to the jury. 14 THE COURT: 3011 is received. I think I also 15 neglected to receive the previously offered photographs, 3005 16 and 1103-O. They are also received. 17 (Government Exhibits 3005, 3011, and 1103-O received 18 in evidence) 19 BY MR. FITZGERALD: 20 Q. Now, Mr. Katunda, is this sketch -- 21 A. Yes. 22 Q. -- on your left on the screen, does that accurately depict 23 where you were, your name in blue, Valentyne Matthew Katunda, 24 at the time of the explosion? 25 A. Yes, it is. 7524 1 Q. And does it also show where Mtendeje was in the same room 2 with you? 3 A. Exactly, that's where she is. 4 Q. And the other depictions are where Mr. Mahundi and 5 Mr. Mwila were at the time of the explosion? 6 A. Yes, please. 7 Q. Was there another guard, Elisa Paul, does that accurately 8 depict where he was at the time of the explosion? 9 A. Yes, sir. 10 Q. Finally, is the indication for Mr. Nyumbu indicate where 11 he was at the time of the explosion? 12 A. Yes, sir. 13 Q. And were all of these people, including yourself, employed 14 by Ultimate Security? 15 A. They were employed by Ultimate Security, yes. 16 MR. FITZGERALD: And if I could also show a 17 photograph, Government Exhibit 3012 and offer it at this time. 18 THE COURT: Received. 19 (Government Exhibit 3012 received in evidence) 20 MR. FITZGERALD: And display it? 21 THE COURT: Yes. 22 BY MR. FITZGERALD: 23 Q. And Mr. Katunda, does that photograph show where each of 24 the people, including yourself, were at or about the time of 25 the explosion? 7525 1 A. Yes, sir, that's how it was. 2 Q. Okay. After you were rescued from the rubble, did you 3 learn where Mtendeje, the guard that was in the room with you, 4 was? 5 A. What? 6 (Confers with interpreter) 7 A. Well, it was very difficult to understand. After two 8 days, that's when I was told that she passed away. 9 Q. And was she found at the scene? Was she killed at the 10 scene? 11 A. She was lying on my stomach. 12 Q. And as to the two people in the room next door, 13 Mr. Mahundi and Mr. Mwila, were they also killed in the 14 explosion? 15 A. Also were passed away. 16 Q. And Mr. Paul, was he also killed? 17 A. Yes, please, he was passed away also. 18 Q. And Mr. Nyumbu, was he also killed? 19 A. That was at the front, at the front of the embassy, passed 20 away. 21 Q. Now, what happened after you were taken out from the 22 rubble? Where did you go? 23 A. What happened? 24 Q. What happened after other people helped you out of the 25 rubble on August 7th? 7526 1 (Confers with interpreter) 2 A. I was sent to the hospital at the Muhimbili hospital and 3 being admitted. 4 Q. And what injuries did you have at that time? 5 A. First of all, it was -- the first one was here. I had, 6 when they were trying to rescue me by the bulletproof glass, 7 it wanted to cut me down here. Also got another one my head, 8 others at my -- it is over here. 9 My left shoulder is dislocated, dislocated, including 10 my front -- correction, including my right foot, up to now it 11 is still cold. When I stand for a long, it just becomes cold. 12 Also, my backbone is not properly. 13 Q. And did the explosion affect your hearing? 14 A. What? 15 Q. Did the explosion affect your ability to hear, your 16 hearing? 17 A. Yes, please. My hearing is not okay. Also, my eyes can't 18 see well. I can't read some of the words unless it is some 19 out far or something like that. 20 Q. And are you still working? Are you still working now? 21 A. I'm still working. 22 Q. What do you do for work? 23 A. I'm working because of my family. Otherwise, if I don't 24 work, they won't survive. They are depending on me. I've got 25 five children, plus my mother who my father passed away. So 7527 1 if I don't work, they won't get any assistance from anywhere. 2 Q. How many children do you have? 3 A. Five children. 4 Q. And do you still work as a security guard at the American 5 Embassy? 6 A. Yes, please. 7 Q. And let me show you a picture, Government Exhibit 3025. 8 A. That is known as Mahundi. 9 Q. And is that the person who was in the room next door who 10 was killed? 11 A. Yes, he was at my next door office. 12 Q. Okay. Can you tell us a little bit about what Mr. Mahundi 13 was like? 14 A. Mahundi was the senior inspector and he was well-educated 15 and he was a good man. 16 Q. And let me show you Government Exhibit 3031. 17 MR. FITZGERALD: I'm sorry. I would offer 3031, your 18 Honor, as well as 3025. 19 THE COURT: Yes, received. 20 (Government Exhibits 3031 and 3025 received in 21 evidence) 22 BY MR. FITZGERALD: 23 Q. Can you tell us who is depicted in Government Exhibit 24 3031? 25 A. That is Rogathi. 7528 1 Q. And Rogathi, R-O-G-A-T-H-I, can you tell us who 2 Mr. Rogathi is? 3 A. Rogathi was joining with the truck, water truck, with 4 another driver known as you Ndange. 5 Q. So did Mr. Rogathi drive the water truck that used to go 6 to and from the embassy? 7 A. What? 8 Q. Did Mr. Rogathi drive the water truck to and from the 9 embassy? 10 (Confers with interpreter) 11 A. No, this was not the driver. He was not the driver. 12 Q. Did he work on the water truck or with the water truck? 13 A. He was joining with that driver was driving the truck, the 14 water truck, but that was a helper. 15 Q. And let me show you one last photograph, Government 16 Exhibit 3000. 17 Which I would also offer, your Honor. 18 THE COURT: 3000? 19 MR. FITZGERALD: 3000. 20 THE COURT: Yes, received. 21 (Government Exhibit 3000 received in evidence) 22 Q. And do you know who the security guard being carried in 23 that photograph is? 24 A. That must be Nyumbu. 25 Q. Mr. Nyumbu? 7529 1 A. Yes. Yes. 2 Q. And does that look like the scene that you saw on August 3 7th, 1998? 4 A. Yes, it is. 5 MR. FITZGERALD: I have nothing further, your Honor. 6 MR. RUHNKE: Nothing, your Honor. Thank you. 7 THE COURT: Thank you, sir. You may step down. 8 (Witness excused) 9 MR. FITZGERALD: The government calls Dr. Dalmas 10 Dominicus, D-O-M-I-N-I-C-U-S. 11 DALMAS DOMINICUS, 12 called as a witness by the government, 13 having been duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MR. FITZGERALD: 16 Q. Doctor, if you could just keep your voice up and if you 17 sit a little bit closer to the microphone, it might be easier 18 for everyone to hear you. 19 Can you tell the jury where you work as a doctor? 20 A. I'm a doctor, medical doctor, working with the Muhimbili 21 Medical Center, which is situated in Dar es Salaam. 22 Q. And the Muhimbili, could you spell that for us? 23 A. M-U-H-I-M-B-I-L-I, Muhimbili. 24 Q. And when did you first start working at the Muhimbili 25 Medical Center? 7530 1 A. That is 1979, May. 2 Q. And did there come a time when you became a head of the 3 department of emergency medicine? 4 A. Yes, that was 1995. 5 Q. And let me direct your attention to August 7th, 1998. Can 6 you tell the jury what happened that morning shortly after 7 10:30? 8 A. It was around 10:30, around 10 in the morning on the 7th 9 August, 1998, when we heard an explosion like which shook most 10 of the building in the hospital. And some few minutes later, 11 to be exact, that was around 10:48, a private vehicle, public 12 vehicle arrived with the first victim, which informed us that 13 the sounds that we heard was an explosion, a bomb blast in the 14 American Embassy. 15 Q. Can you tell us how far the American Embassy is from the 16 Muhimbili Medical Center? 17 A. It's about four kilometers. 18 Q. Can you tell us what happened after the first vehicle 19 arrived? 20 A. Immediately after the first vehicle arrived, which, of 21 course, informed the hospital that we should expect some more 22 victim to come and the hospital emergency activated in an 23 emergency state that we are to get prepared because we are 24 expecting some more victims coming, because the whole 25 building, as we were informed that it was all burning and that 7531 1 the expectation was to have some more victims coming in. 2 So what the hospital did was to activate the state of 3 emergency, alerting all the surgical wards, x-ray department, 4 and the ICU just to get ready for the eventuality. Some few 5 minutes after the, later after the first arrival, some more 6 victims started arriving in private cars, including American 7 embassies vehicles. 8 Q. Does the Muhimbili Medical Center have a medical school 9 affiliated with it nearby? 10 A. Yes. 11 Q. Did you take advantage of the doctors and nurses and staff 12 from the medical school as well as the medical center? 13 A. Yes, it is a part of the emergency structure during the 14 emergency plan that we utilize the services of the medical 15 students, including residents and postgraduate doctors. 16 Q. And have you used the emergency plan before when there 17 have been bus accidents and things like that? 18 A. Well, we had the emergency plan, we had it before the 19 accident. 20 Q. And can you tell us approximately how many patients were 21 treated at the Muhimbili Medical Center that day that you 22 recall? 23 A. Yes. As I can recall, we had about, in total, about 65 24 patients, that is, we had about 40 patients who were treated 25 and discharged, 18 patients were admitted and 7 arrived dead 7532 1 as the casualty. 2 Q. And besides the seven who when they arrived at the 3 hospital were already dead, did several people die while in 4 the hospital? 5 A. Yes, three patients died while already in the hospital. 6 Q. And during the time that day when you were treating the 7 casualties, did you need to go to other facilities to get a 8 variety of supplies, such as airway tubes and oxygen and 9 stretchers and wheelchairs and things of that sort? 10 A. Yes. Due to the magnitude of the event, we are running 11 short of most of the supplies, including the airways, and so 12 we asked for the assistance from other places. 13 Q. And did you also need to get additional IV fluid and 14 gloves to handle the emergency? 15 A. Yes, we did. We did. We did. 16 Q. And during the 20 years you have worked at the Muhimbili 17 Medical Center, did you ever see a worse crisis than what you 18 dealt with that day? 19 A. No, this was the first one of its kind. 20 Q. And have you prepared a chart identifying as best you can 21 the number of patients treated that day on August 7th, 1998? 22 A. Yes, I did. 23 Q. Let me approach you with what has been premarked as 24 Government Exhibit 3010. 25 Looking at what is before you as Government Exhibit 7533 1 3010, does that represent your best effort to put down on 2 paper the different persons who were treated and released or 3 who were treated or who died on August 7th, 1998? 4 A. Yes. 5 MR. FITZGERALD: Your Honor, I would offer Government 6 Exhibit 3010. 7 THE COURT: Yes, received. 8 (Government Exhibit 3010 received in evidence) 9 MR. FITZGERALD: If we could display the first page 10 of Government Exhibit 3010. 11 Q. And if you look at the left-hand column that simply lists 12 numbers in chronological order and then it says the patient's 13 name and then the next column indicates male or female, if you 14 could tell us under "age" what "AD" stands for? 15 A. The "AD" means adults. 16 Q. And when you had an age available on later pages, did you 17 insert the actual age on some of the other pages where you 18 knew the precise birth date? 19 A. Well, for those we didn't, we use the size to determine 20 whether somebody was adult or a child. 21 Q. Okay. And then the diagnosis, does that briefly describe 22 what each of the -- how each of the patients were treated or 23 what injuries they received? 24 A. The diagnosis was based on the injuries that the patient 25 received. 7534 1 Q. And then the remarks state what happened with the 2 particular patient; is that correct? 3 A. The outcome of the. 4 Q. And so there are seven people listed in total on the chart 5 who arrived at the hospital who were already dead; is that 6 correct? 7 A. Yes. 8 Q. And then there are three people listed as dying while in 9 the hospital, correct? 10 A. Yes. 11 Q. If we could just display the second page of 3010, and 12 would two of the people who died in the hospital be number 35 13 and number 36, identified at this time as "unknown male"? 14 A. Yes. 15 Q. And if we could display page 3, and if we could display 16 page 4. 17 And I have nothing further, Judge. 18 MR. RUHNKE: No questions, your Honor. 19 THE COURT: Thank you, Doctor. You may step down. 20 (Witness excused) 21 MR. FITZGERALD: The government calls Asha, A-S-H-A, 22 Kambenga, K-A-M-B-E-N-G-A, and she will be using an 23 interpreter. 24 ASHA KAMBENGA, 25 called as a witness by the government, 7535 1 having been duly sworn, testified through the 2 interpreter as follows: 3 DIRECT EXAMINATION 4 BY MR. FITZGERALD: 5 Q. Good afternoon, ma'am. 6 A. I'm fine. 7 Q. Can you tell the jury the name of your husband? 8 A. Omari Nyumbu. 9 Q. And let me show you a photograph, which we now offer as 10 Government Exhibit 3029, is that a picture of your husband, 11 Omari Nyumbu? 12 A. Yes. 13 Q. And do you know approximately what year that picture was 14 taken? 15 A. 1998. 16 Q. Was your husband a security guard at the American Embassy 17 in Dar es Salaam? 18 A. Yes, he worked at Ultimate. 19 Q. And did your husband use his brother's name, Bakari, when 20 at work? 21 A. Yes, he used the young brother, Bakari Nyumbu. 22 Q. And your husband used that name on his I.D. card, correct? 23 A. Yes, he used it on his card. 24 Q. And can you tell the jury when you first met your husband? 25 A. 1995. 7536 1 Q. Prior to meeting Omari, did you have another husband and a 2 daughter? 3 A. Yes. 4 Q. Did your first husband pass away? 5 A. Yes, he died. 6 Q. And how did you meet Omari? 7 A. We met while he was working. I was working near to the 8 house where he was working, also. 9 Q. And did there come a time when you married Omari? 10 A. Yes. 11 Q. And when was that? 12 A. The same year, in 1995. 13 Q. And after you got married, how did Omari treat your 14 daughter? 15 A. He was taking care of her like his own child because he 16 know that her father dies. He was taking her to school, 17 taking her to the hospital, he was doing everything for her. 18 Q. Did Omari provide for you and your daughter's financial 19 support? 20 A. Yes. 21 Q. Did he also provide financial support for your parents? 22 A. Yes. 23 Q. Was he a good provider? 24 A. Yes. He was helping a lot. 25 Q. How many days a week did he work? 7537 1 A. In one week he was, he gotten off one day. 2 Q. And how many hours did he work each day that he worked? 3 A. He goes there in the morning and he leaves at 6 p.m. 4 Q. Did he work 12-hour shifts as far as you know? 5 A. Yes. 6 Q. How did he get to work from home? 7 A. He was using a bicycle. 8 Q. And can you tell us what your family home looked like in 9 the summer of 1998 when you lived with Omari? 10 A. We was living very well and he was the one I was depending 11 on. 12 Q. How rooms did you have in your house? 13 A. It was one room. 14 Q. Can you tell us what made Omari happy as a person? 15 A. Most of the time he just come home and listened to music. 16 Q. And how did he interact with your daughter? 17 A. He was the one who was taking my daughter to school, and 18 when she is sick, he take her to the hospital. 19 Q. How old is your daughter? 20 A. Seven years old. 21 Q. Directing your attention to August 7th, 1998, can you tell 22 us what happened that day? 23 A. I heard an explosion. 24 Q. What did you do after you heard the explosion? 25 A. After the explosion, we heard -- we never heard that kind 7538 1 of sound before in Tanzania, so then we start asking each 2 other what happened and we start looking around, wondering 3 around what happened, and we heard that there's an explosion 4 in the American Embassy. 5 After that, we decided that we have to take a car to 6 go to American Embassy, and we went there and all the building 7 was on fire and the cars and the people were being taken out 8 who had been injured and the dead. And we was not allowed to 9 go inside the compound. We was told to go to Muhimbili 10 Hospital. 11 In that time we get to Muhimbili, there was some 12 people over there. We couldn't go inside the rooms. And 13 later on, they told us, you guys, you should come tomorrow 14 that you are going to be able to identify the people. 15 And then we met a doctor who told us you should go in 16 another room to find out the names of the dead and the live 17 ones. And we went there and the doctor told us, you know, I 18 attended your husband, only his arm was broken so we sent him 19 back home. 20 I went back home, and I get there, I didn't find him. 21 And there were so many people in my house, relatives and 22 friends, they was asking me where he is and I told them what 23 the doctor told me, that he told me they sent him back home, 24 but later I realized that the doctor was lying to me. 25 On 12 midnight, Ultimate Security guard came with the 7539 1 car and they came to inform me that your husband had died 2 along the time you came to see the compound. And after that, 3 my life started to be miserable. 4 Q. And when you were told that your husband had died that 5 evening, how did you react? 6 A. After I heard the news, I fell down and I lose 7 consciousness. They took me inside, which they keep pouring 8 water on me and giving me some things to come back on my 9 conscious. 10 Q. How old were you on August 7th, 1998? 11 A. I was about 22. 12 Q. And what has life been like for you and your daughter 13 since the day that your husband was killed? 14 A. We are living in a very hard time because he was the one 15 who was providing for the family. He was the one helping my 16 daughter. I don't have even the tuition to send my daughter 17 to go to school. I can't afford that. Life is so difficult, 18 and sometime we don't even eat. 19 MR. FITZGERALD: I have nothing further, Judge. 20 MR. RUHNKE: No questions, your Honor. 21 THE COURT: Did you say no questions? 22 MR. RUHNKE: No questions. 23 THE COURT: Yes. Thank you. You may step down. 24 (Witness excused) 25 MR. FITZGERALD: The government calls Henry Kessey. 7540 1 HENRY KESSEY, 2 called as a witness by the government, 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. FITZGERALD: 6 Q. Good afternoon, Mr. Kessey. 7 A. Good afternoon, sir. 8 Q. And can you tell the jury what training you received, what 9 schooling? What was your career in August of 1998? What did 10 you do for work? 11 A. I was employed by American Embassy, Dar es Salaam, as a 12 audits examiner. 13 Q. And do you have an accounting background? 14 A. I have an accounting background. I obtained my national 15 bookkeeping certificate conducted by Dar es Salaam School of 16 Accountants. I have advanced diploma in accountants from 17 Institute of Finance Management, Dar es Salaam. 18 Q. And can you tell the jury when you began working for the 19 American Embassy, what year? 20 A. I was employed by American Embassy on April 26th, 1996. 21 Q. And let me direct your attention to a particular day, 22 August 7th, 1998. Can you tell the jury what happened when 23 you were at work that day? 24 A. I was in the place of my employment in that day, and 25 around 10:30 to 10:35, I just walk around the hallway. I was 7541 1 just moving from my office. I want to go to another office. 2 While I was in the hallway, suddenly I hear a huge, a 3 huge blast. So it was horrible. I can't explain what kind of 4 blast or explosive it was, but it was a huge explosion. I 5 just come to realize, I fall down and I feel like the whole 6 building is coming on my head, and I was screaming for help 7 from my colleagues. 8 Q. What could you see at that time? 9 A. Well, I couldn't see anything, but the whole building is 10 like kind of half smoking and everything was -- and I didn't 11 fight, really. 12 Q. And could you see out of your own eyes at that time? 13 A. No, I couldn't see with my eyes because this eyes, it was 14 like the eye was shut down, and the left eye, I was bleeding. 15 So the blood was just coming to the right eye, so I couldn't 16 see anything, except when I wiped out the blood, at least I 17 can have a little bit of sight. 18 Q. And did you get any help from anyone who was also in the 19 embassy? 20 A. Yes. While I was falling down and I was screaming for 21 help and those people were coming from other office, they 22 said, okay, Henry, let's get out of here. I say, no, I can't 23 move because it seems I have been badly injured. So I asked 24 them if they can help me to get out of the office. So they 25 helped me to get out of the office. 7542 1 Q. And what floor were you on when the explosion happened? 2 A. Second floor. 3 Q. And do you recall how long it took you to get out of the 4 building? 5 A. It took us almost between five to ten minutes until we get 6 out of the building. 7 Q. And what happened when you got outside? 8 A. When I reach outside, some of my colleagues, after seeing 9 me, because I was bleeding and by that time almost all of my 10 body was full of blood, they started screaming and shouting as 11 if everybody was screaming, saying, hey, Kessey's going to die 12 because of the panic, and when they see I was full of blood, 13 so they thought I was badly injured and everybody was 14 screaming that I going to die. 15 Q. And what did you think at that time? 16 A. At that time, okay, I think it's true that I going to die 17 because I was not sure the extent of my injuries, but I said 18 because some other people see me and that they are the ones 19 who cries that Kessey's going to die, maybe it could be true 20 that I going to die soon. 21 Q. And did someone help you get to the hospital? 22 A. Yes. I was helped by another -- my two colleagues. They 23 hold me on both sides and they were trying to hurry up to get 24 me, rush me to the hospital. 25 Q. And what hospital did you go to? 7543 1 A. I was sent to the government hospital, Muhimbili referral 2 hospital. 3 Q. And what happened when you got there? 4 A. When I got there they have attended me. They started to 5 attend me. In fact, they just concentrated on this deep cut 6 which was inside my face. And they put me some drops, and the 7 other day through the investigation they come to realize my 8 right eye was damaged so they started to do some other medical 9 attention. 10 Q. How many operations were performed on your eye during the 11 next month? 12 A. Two operations. I had two operations. 13 Q. At Muhimbili Hospital? 14 A. Come again? 15 Q. At Muhimbili Medical Center? You had the two operations 16 at the Muhimbili Medical Center? 17 A. Yes, I had two operations at Muhimbili Hospital. 18 Q. How long did you stay in the hospital? 19 A. I stay in Muhimbili Hospital for about three weeks before 20 I was discharged. 21 Q. After you were discharged, did you later have further 22 surgery on your eye? 23 A. Yes. I was -- after those two surgeries, I was discharged 24 and being told that I can stay home maybe for eight weeks 25 until the eye heals so that I can be sent for another surgery. 7544 1 Q. And where did you go for the next surgery? 2 A. I went to Nairobi M.P. Shah Hospital for second lens 3 implantation. 4 Q. And did you receive a cornea transplant in Nairobi? 5 A. Yes, sir. 6 Q. Which eye was that? 7 A. Right eye. 8 Q. Can you tell us how your right eye is now doing? 9 A. Yes, it's improving, even though I can't see a hundred 10 percent, but it seems that something like 55 percent of the 11 sight has gone away. 12 Q. And did there come a time when you returned to work? 13 A. Yes. 14 Q. How has the injuries from the bombing affected your 15 ability to work? 16 A. Well, it means I'm not capable of work like I used to work 17 before. I have to work maybe for two hours and then I have to 18 rest maybe for some 15 to 30 minutes before I can resume back 19 my work. So that is the kind of situation which I am facing 20 up to now. I can't work for continual like three to four 21 hours on the paperwork or on the computer. 22 Q. Do you support people other than yourself financially? 23 A. I have my family. My mom, my young brothers and sisters. 24 So they, all of them, depends on me. 25 Q. And how many brothers do you help support? 7545 1 A. I'm support my two young brothers, my three sisters, and 2 some of their kids. 3 Q. Were you concerned and have you been concerned about 4 losing your job because of your injuries? 5 A. Yes. Yes. 6 Q. And you remained concerned about that? 7 A. Yes. There is a time I was about to commit suicide 8 because I felt that maybe because I was injured, maybe I going 9 to lose my eye completely. And then if I lost my eye 10 completely, it means I will not be able to work again, and 11 because my family depends on me, now I going to turn to be a 12 burden to my family and I don't want that to happen. So I was 13 thinking of committing suicide in order to not to be a burden 14 to my family. 15 Q. And despite obviously thinking about suicide, you never 16 took any steps to carry it out, correct? 17 A. Yes. Well, I got to speak to some other people, okay? 18 They told me, no, no, you will be fine after some time. You 19 take it easy. Maybe we going to help you. Don't worry about 20 that. And I come to realize, yeah, well, there is no need of 21 committing suicide. I'm responsible to my family. My family 22 depends on me. So I have to struggle, you know, in order to 23 do that. 24 Q. During your time working in the embassy, did you come to 25 know many of the other people who worked in the embassy? 7546 1 A. Yes. 2 Q. Let me show you a picture, which I offer as Government 3 Exhibit 3026. 4 THE COURT: Received. 5 (Government Exhibit 3026 received in evidence) 6 BY MR. FITZGERALD: 7 Q. Can you tell the jury who is depicted in Government 8 Exhibit 3026? 9 A. I know this guy as Mohamed Abdulla, also known as Doto. 10 Q. And what work did he do at the embassy? 11 A. When I joined the embassy I was introduced as he's one of 12 the cleaners. There was a certain cleaning contract company 13 which used to clean the embassy and the entire environment. 14 So this is one of their workers. 15 Q. And did you come to learn that he was killed in the 16 bombing in August 7th? 17 A. Yes, I do remember. I used to talk a lot with this guy, 18 and I remember on that day when I arrived at my place of 19 employment, he just come in my office and he asked me if I can 20 help him with the fare to go to Friday prayer. So I tell him 21 okay, when the time comes, you just come in my office and then 22 I can give you the fare. 23 Q. Did you also come to know the people who worked as the 24 security guards in and around the embassy? 25 A. Yes. I come to know a lot of security guards, because 7547 1 every morning whenever I pass there, I used to chat with them, 2 I used to laugh with them. So I know many of the security 3 guards. 4 Q. And did the personality of any one particular security 5 guard stand out in your mind? 6 A. Most of the time I come to know there is one young lady 7 called Mtendeje. 8 Q. Can you tell us what Mtendeje was like? 9 A. She was a nice person, always she laughed to each person. 10 She was so kind really. 11 MR. FITZGERALD: Thank you for coming, sir. 12 I have nothing further, Judge. 13 MR. RUHNKE: No questions, your Honor. 14 THE COURT: You may step down. 15 MR. FITZGERALD: The government calls Shabani Mtulia. 16 SHABANI MTULIA, 17 called as a witness by the government, 18 having been duly sworn, testified through 19 the interpreter as follows: 20 DIRECT EXAMINATION 21 BY MR. FITZGERALD: 22 Q. Sir, good afternoon. 23 A. Fine. 24 Q. And was your wife killed in the bombing on August 7th, 25 1998 in Dar es Salaam? 7548 1 A. Yes, my wife died because of the bomb. 2 Q. Can you tell the jury your wife's name? 3 A. Mtendeje Mbegu. 4 MR. FITZGERALD: And I would like to offer at this 5 time, your Honor, and display Government Exhibit 3030. 6 THE COURT: 3030, received. 7 (Government Exhibit 3030 received in evidence) 8 BY MR. FITZGERALD: 9 Q. Sir, is that a picture of your wife Mtendeje? 10 A. Yes, that's her. 11 Q. And can you tell the jury approximately when that picture 12 was taken? 13 A. 1998. 14 Q. Can you tell us who's in the picture with your wife 15 Mtendeje? 16 A. That is Saidi. 17 Q. And did you have any children besides Saidi? 18 A. I don't have another one. 19 Q. And can you tell the jury where your wife Mtendeje was 20 born? 21 A. My wife was born in Dar es Salaam. 22 Q. And where did she live growing up? 23 A. Grew up in Dar es Salaam. 24 Q. And how did your wife do in school growing up? 25 A. She started out in primary high school and she went to 7549 1 secondary high school, Kibet. 2 Q. And did there come a time when she was given an 3 opportunity to go away to school to learn how to become a 4 teacher? 5 A. Yes, she got an opportunity to go to school, but she 6 couldn't go because of our marriage. 7 Q. And when did you and Mtendeje get married, what year? 8 A. 1989. 9 Q. Just so we're clear, how many children did you and 10 Mtendeje have? 11 A. Two children. 12 Q. And what are their names? 13 A. The first one is Abdul, the second one is Saidi. 14 Q. And Saidi is the son that is depicted in the photograph, 15 correct? 16 A. Yes, that's him. 17 Q. Can you tell the jury what your wife was like as a person? 18 A. She was a nice woman and she was very hard working and she 19 was very smart to understand things. 20 Q. How was she as a mother? 21 A. She was a good mother and she was a person who worked very 22 hard for her kids and we was able to help each other, even on 23 money side with helping each other. 24 Q. And what did Mtendeje do for work? 25 A. She was a security guard at the embassy. 7550 1 Q. And besides working as a security guard at the embassy, 2 did she also go to school at night? 3 A. Yes, she was going to school to become a secretary and 4 also on computer. 5 Q. And could you tell the jury a little bit about what your 6 daily routine was, what you and Mtendeje would do each 7 morning? 8 A. We left together early in the morning and we took the same 9 bus and we reach Uhuru and Congo Street, and I get off and she 10 continued to go to work with the same bus to Post to where she 11 will get off and go to her routine work. 12 Q. And when you would share the bus and then change buses, 13 who would take the children to school? 14 A. One of them was not going to school. One of them was just 15 a distance, walking distance from school. 16 Q. Did you have help with people, including her mother, 17 taking the child to school? 18 A. No one was able to help us. 19 Q. Could you tell us what would happen in the evening at the 20 end of the workday? What would you do and what would she do? 21 A. Most of the time she was doing housework at the house, but 22 sometime when she goes to school in the evening and at home we 23 have a little farm for, chicken farm. 24 Q. And in August 1998 was your wife Mtendeje preparing to 25 take an exam? 7551 1 A. The same day she was supposed to go for an interview to 2 become a secretary at the embassy, and also same day was 3 supposed to take the exam to do the exam for secretaries. 4 Q. If we could talk about the morning of August 7th, 1998, 5 did Mtendeje bring anything special with her as she headed off 6 to work that day? 7 A. She took her certificate, also she took her Koran. 8 Q. And why did she take those items on August 7th? 9 A. She took her certificate because she have to show the 10 certificate during the exams, and as a Muslim, she just took 11 that Koran. 12 Q. And you mentioned that she was trying to have an interview 13 for a job that day. Can you describe the job she wanted to 14 get? 15 A. She was looking for a job to become a secretary. 16 Q. And did she want to get a job as a secretary inside the 17 embassy? 18 A. Yes, at the embassy. 19 Q. And can you tell us how you learned about the bombing that 20 day? 21 A. That day I heard a big shake and a big explosion and I saw 22 ambulances going, passing by very fast going to the area where 23 this happened, and later on that time I heard that the 24 American Embassy had been exploded. 25 Q. What did you do? 7552 1 A. Before I received a call from my sister, I didn't know 2 what to do, and I received this call from my sister, who told 3 that she saw on the television that American Embassy had been 4 bombed and that's the time I start thinking what to do. 5 Q. Did you go to the embassy? 6 A. I went to the American Embassy, but I couldn't go to the 7 compound because the police had already been surrounded. I 8 couldn't enter the compound. 9 And then I went back to Muhimbili Hospital to check 10 if I can find her there, and I was there for a while and I 11 look around, and I saw one car, regular car came off with some 12 people inside and I went to look at that car and I saw my wife 13 is dead. 14 Q. After you learned that your wife had been killed, how did 15 your sons find out? 16 A. My Saidi was in a lot of shock and on that day they 17 couldn't eat anything. 18 Q. What has life been like for you and your two sons since 19 the day that Mtendeje was killed? 20 A. My life had been going like halfway because I was not 21 getting any support from my friend. 22 MR. FITZGERALD: Thank you for coming, sir. I have 23 nothing further. 24 MR. RUHNKE: Nothing, your Honor. Thank you. 25 THE COURT: Very well. You may step down. We'll 7553 1 take our mid-afternoon recess. 2 (Recess) 3 THE COURT: Next witness is Grace Paul? 4 MR. FITZGERALD: Yes, your Honor. 5 (Jury present) 6 THE COURT: The government may call its next witness. 7 MR. FITZGERALD: Yes, the government calls Grace 8 Paul, P-A-U-L, and she will be using a Swahili interpreter, 9 your Honor. 10 THE COURT: Yes. 11 GRACE PAUL, 12 called as a witness by the government, 13 having been duly sworn, testified 14 through the interpreter as follows: 15 DIRECT EXAMINATION 16 BY MR. FITZGERALD: 17 Q. Good afternoon. 18 A. Fine. 19 Q. Now, ma'am, was your husband killed in the bombing on 20 August 7th, 1998 in Tanzania? 21 A. Yes. 22 Q. Can you tell the jury your husband's name? 23 A. Elisa Paul. 24 Q. And can you tell the jury where Elisa grew up? 25 A. He grew up in Ampora. 7554 1 Q. Is that in Tanzania? 2 A. Yes. 3 Q. And what did his parents do for a living? 4 A. Farmers. 5 Q. And when did you meet Elisa? 6 A. 1992. 7 Q. When did you get married? 8 A. The same year, in 1992 on September. 9 Q. And did you have a son with Elisa? 10 A. I have a daughter. 11 Q. I'm sorry. Can you tell us your daughter's name? 12 A. Merisiana. 13 Q. Can you tell us how old Merisiana is? 14 A. Seven years old. 15 Q. In 1998 what did your husband Elisa do for work? 16 A. He was a security guard at the American Embassy. 17 Q. Was he proud of his job? 18 A. Yes. 19 Q. Did he receive an award for the work he did? 20 A. Yes. 21 Q. Can you tell us what he received the award for, just 22 generally? 23 A. He was attacked at where he was guarding with criminals. 24 Q. And did he help fight off the people who attacked him some 25 years ago? 7555 1 A. Yes, he was about to fight with them and he was able to 2 manage to go to press the alarm button, which other security 3 guards came to help him and he was beaten with stones and he 4 was taken to the hospital and he was admitted in the hospital. 5 Q. Did he later receive an award for his work that day? 6 A. Yes. 7 Q. Let me show you a picture, which I offer, Government 8 Exhibit 3023. 9 If I may display that, your Honor? 10 THE COURT: Yes, received. 11 (Government Exhibit 3023 received in evidence) 12 BY MR. FITZGERALD: 13 Q. Is that a picture of your husband, Elisa, Government 14 Exhibit 3023? 15 A. Yes. 16 Q. Do you know when that photograph was taken? 17 A. Yes. 18 Q. What year? 19 A. 1995. 20 Q. Do you know where that photograph was taken? 21 A. Yes. 22 Q. Where? 23 A. At his job. 24 Q. Is that at the embassy, United States Embassy, in Dar es 25 Salaam? 7556 1 A. Yes. 2 Q. What was Elisa like as a father? 3 A. He was a father who loved so much his daughter. 4 Q. What was he like as a husband? 5 A. He was able to do everything as the head of the household 6 and as the father of the house. 7 Q. Let me direct your attention to August 7th, 1998. Can you 8 tell us, tell the jury, how you learned about the bombing? 9 A. He left in the morning to go to work. It was around 11:00 10 in the morning I heard on the radio that there was an 11 explosion at the American Embassy. 12 Q. What did you do after you heard that on the radio? 13 A. I went to the Muhimbili Hospital to look for him and I was 14 looking for the other people who had been injured and who 15 died, and I looked for him until the next day I was informed 16 that he died. 17 Q. And how did you react when you were told that your husband 18 had been killed? 19 A. I was so much in pain and I didn't find the body until 20 after two days. I lost my conscious sometimes and I have, I 21 got high blood pressure and right now I have ulcers because of 22 that and I'm still in pain. 23 Q. How did you learn that your husband's body had been found? 24 A. I watch the television and they announce that he's dead. 25 Q. Let me back you up a moment. When you went to Muhimbili 7557 1 Hospital, was your husband there when you went to the 2 hospital? 3 A. No, he was not there. 4 Q. Did you then go to the embassy to find out whether or not 5 your husband had been at work at the time of the bombing? 6 A. Yes, I did, I went there. 7 Q. And what did they tell you when you went to the embassy? 8 A. I was told to come the next day because we are waiting for 9 FBI to be able to dig his body, he's underground. 10 Q. And then how did you learn that in fact his body had been 11 recovered? 12 A. After they dig the area and they start announcing, showing 13 the legs and the arms which they found there. 14 Q. And then did there come a time when you had to identify 15 your husband by parts of his body? 16 A. Yes. 17 Q. And how did you identify him? 18 A. They took a slide of his young brother and his hair to be 19 able to test if other small pieces of flesh will be his flesh 20 of that of my husband. 21 Q. Is it fair to say that it was a very painful process to go 22 through in order to identify your husband? 23 A. Yes. 24 Q. Can you tell us what the impact on you and your daughter 25 was following your husband's death and how you have survived 7558 1 financially? 2 A. My life has been so difficult. One main example is that 3 my daughter, I can't afford to take her to school because I 4 don't have no money. 5 Q. How old is Merisiana now? 6 A. Seven years old. 7 Q. And how old were you when your husband was killed? 8 A. That was about 1995. 9 Q. How old was your husband when he was killed? 10 A. 32 years old. 11 Q. What has the emotional impact been on your daughter to not 12 have her father Elisa around? 13 A. Life is so difficult. 14 Q. Do you have a photograph of your husband in the home? 15 A. Yes. 16 Q. How does Merisiana act around the photograph? 17 A. She just look at the picture and say my father is at work, 18 he's a police officer, and sometimes she will take the 19 picture, shows her friends and she says, look, this is my 20 picture of my father, he's a police officer. 21 Q. Is it very difficult when she does that for you? 22 A. Yes. 23 MR. FITZGERALD: Thank you. I have nothing further. 24 MR. RUHNKE: No questions, your Honor. 25 THE COURT: Thank you. You may step down. 7559 1 (Witness excused) 2 MR. FITZGERALD: The government calls Mohamed Jelani 3 Mohamed, and he also will use the interpreter. 4 MOHAMED JELANI MOHAMED, 5 called as a witness by the government, 6 having been duly sworn, testified 7 through the interpreter as follows: 8 DIRECT EXAMINATION 9 BY MR. FITZGERALD: 10 Q. Good afternoon, sir. 11 A. Fine. 12 Q. Was your uncle killed in the bombing of the American 13 Embassy in Dar es Salaam in August 1998? 14 A. Yes. 15 Q. Can you tell the jury your uncle's name? 16 A. Abdurahman. 17 Q. And what did you, how do you refer to him? 18 A. He's my uncle. 19 MR. FITZGERALD: I offer Government Exhibit 3022, 20 your Honor, and ask to display it. 21 THE COURT: Received. 22 (Government Exhibit 3022 received in evidence) 23 Q. Is that a picture of your uncle in Government Exhibit 24 3022? 25 A. Yes. 7560 1 Q. Who is in the picture with your uncle? 2 A. His wife. 3 Q. If you can just give us the first name of your uncle's 4 wife? 5 A. Susan. 6 Q. Can you tell us a bit about your uncle's father and 7 describe where your uncle grew up and what role his father 8 played, your uncle's father, in the community? 9 A. His father was a teacher. 10 Q. And did he have a particular role in his village, your 11 uncle's father? 12 A. Yes, it was the senior person in the village. 13 Q. And as the senior person, did he help to resolve 14 disagreements and disputes among people in the village? 15 A. Yes, he was the one who was deciding. 16 Q. And did your uncle's father also help with traditional 17 therapy, herbal therapy with people in the village? 18 A. Yes, he was helping out other treatment and all diseases, 19 traditional diseases. 20 Q. Did there come a time when your uncle's father, your 21 grandfather, died? 22 A. Yes. 23 Q. Can you tell us what year that was? 24 A. 1995. 25 Q. Who stepped into your grandfather's role in the village 7561 1 once your grandfather passed away? 2 A. No one took it. 3 Q. What role did your uncle then play in the village after 4 your grandfather died? 5 A. He took a role to help people in the village and to 6 discuss with matters in the village. 7 Q. Did your uncle help resolve disagreements among people in 8 the village? 9 A. Yes, he was helping to decide to resolve so many cases and 10 he was helping people who have difficulties, problems. 11 Q. And what role did your uncle play in the family? 12 A. He was the one who was the head of the family. He was 13 helping everything involving our family. 14 Q. And did you actually, did he -- did you live with your 15 uncle? 16 A. Yes. 17 Q. Did he raise you as if he was your father? 18 A. Yes, like I was his own son. 19 Q. What role did your uncle play at the mosque? 20 A. He was the one who guarded in the mosque, and anything if 21 is missing, he is the one who correct any mistake there. 22 Q. And did your uncle sometimes give lectures at the mosque? 23 A. All the time he was preaching in the mosque. 24 Q. What did your uncle do for work? 25 A. He was a teacher. 7562 1 Q. Did he also have a taxi tourism business to help support 2 himself? 3 A. Yes, he have tourist company. 4 Q. Did he also run a small kiosk selling things? 5 A. Yes, he have kiosk. 6 Q. And what kind of sports did your uncle enjoy? 7 A. Soccer. 8 Q. Did your uncle have children? 9 A. Yes, he have children. 10 Q. How many children did your uncle have? 11 A. Three kids. 12 Q. Can you tell us their names and ages? 13 A. Ali, Mohamed, Ichbal. 14 Q. How old is Ali? 15 A. He's around 13 years old. 16 Q. How old is Ichbal? 17 A. Around 18 years old. 18 Q. And how old is Ichbal? 19 A. Around nine years old. 20 Q. And Mohamed? 21 A. I think about he's 13. 22 Q. And did those children stay with their mother from a prior 23 marriage? 24 A. Yes. 25 Q. Did your uncle stay in touch with them and visit with them 7563 1 and see them on vacation? 2 A. Yes, he saw them every time they come for vacation and 3 they stay with them. 4 Q. And how many brothers and sisters did your uncle have? 5 A. He have three brothers and five sisters. 6 Q. And do you know what your uncle was doing in the vicinity 7 of the embassy on August 7th, 1998? 8 A. He went there to look for a visa. 9 Q. And can you just tell the jury what the impact of your 10 uncle's death has had upon the family? 11 A. Our life is so different without him and it's not the same 12 as he was there for us. 13 Q. What impact has your uncle's death had upon the village? 14 A. They are so sad, and to this time they are in big sorrow 15 for his loss. 16 Q. And what impact has your uncle's death had upon you? 17 A. A lot of thinking. Even today I was just thinking about 18 him. 19 MR. FITZGERALD: Thank you. I have nothing further. 20 THE COURT: Thank you. You may step down. 21 (Witness excused) 22 MR. FITZGERALD: The government calls Judith Mwila, 23 M-W-I-L-A. 24 JUDITH MWILA, 25 called as a witness by the government, 7564 1 having been duly sworn, testified 2 through the interpreter as follows: 3 DIRECT EXAMINATION 4 BY MR. FITZGERALD: 5 Q. Good afternoon, ma'am. 6 A. Fine, thanks. 7 Q. Ma'am, was your husband killed in the bombing of the 8 American Embassy in Dar es Salaam in August 1998? 9 A. Yes. 10 Q. Can you tell the jury his name? 11 A. Abbas William Mwila. 12 Q. Can you tell the jury when you first met him? 13 A. 1989. 14 Q. When did you get married? 15 A. 1989. 16 Q. How many children did you have? 17 A. Three kids. 18 Q. Can you tell the jury your children's name and ages? 19 A. William, the first born, he's about 11 years old. The 20 second one is Edna Mwila, she's about eight years old. The 21 last one is Happiness Mwila, three years old. 22 Q. And how old was Happiness in August 1998? 23 A. Was six months old. 24 Q. Can you tell the jury what your husband did for work? 25 A. He was employed with Ultimate Security. 7565 1 Q. And did your husband speak English quite well? 2 A. Yes. 3 Q. Did he use his employment as a security guard to support 4 the family? 5 A. Yes. 6 Q. Did he also support his own father with his income? 7 A. Yes. 8 Q. Do you know how old your husband Abbas had been when his 9 own mother died? 10 A. No, I don't know. 11 Q. Let me display a photograph -- 12 MR. FITZGERALD: I offer a photograph, your Honor, 13 Government Exhibit 3027. 14 THE COURT: Received. 15 (Government Exhibit 3027 received in evidence) 16 BY MR. FITZGERALD: 17 Q. Is that a picture of your late husband, ma'am? 18 A. Yes. 19 Q. And directing your attention to 1998, can you tell the 20 jury what the family home was like that you lived in with your 21 husband and your three children? 22 A. I was living in a one-room house. 23 Q. How many other families lived in the same building? 24 A. Six. 25 Q. Did you have running water in the house? 7566 1 A. No. 2 Q. Electricity? 3 A. No. 4 Q. Can you tell the jury what your husband Abbas was like as 5 a person? 6 (Pause) 7 Q. Maybe I can help. Have you described your husband as the 8 family fighter? 9 A. Yes. 10 Q. Did your husband basically go out every day and do what he 11 could to help the family? 12 A. Yes. 13 Q. Did he get a number of promotions at his job as a security 14 guard? 15 A. Yes. 16 Q. Was he also studying computer classes to try and better 17 himself? 18 A. Yes. 19 Q. Did he love you and the family very much? 20 A. Yes. 21 Q. Let me take you just briefly back to August 7th, 1998. 22 Can you tell the jury how you learned about the bombing? 23 A. I received a message around 12:00 from my friends who 24 lived at Mwanza. 25 Q. What was the message? 7567 1 A. I was told that the embassy had been bombed. 2 Q. And what did you do when you heard that? 3 A. He went to the embassy. 4 Q. And did you find your husband there? 5 A. No. 6 Q. Did you go to the hospital after that? 7 A. Yes, I went to Muhimbili Hospital. 8 Q. What happened when you went to the hospital? 9 A. We stayed there until 4 p.m. and they told us to go home, 10 to come the next day. 11 Q. What happened then? 12 A. I went home. I didn't find him. 13 Q. How did you learn your husband had been killed? 14 A. We went back to the hospital and I learned from another 15 guy, another guy who supported me there, and one of the 16 gentleman was -- he knew that my husband is dead and he's the 17 second one of the names of the dead people. 18 Q. Can you tell the jury what life has been like for you and 19 your children since your husband was killed? 20 A. Our life is so miserable. He's the one who we was 21 depending on him. He was the one who was working. 22 Q. Can you send your children to school? 23 A. Yes. Sometimes they come back because there's no tuition. 24 They have been sent by the school back to my home to ask for 25 the tuition. 7568 1 Q. And how do you get money each month? 2 A. I have a room which I'm renting which I'm getting about 3 Tanzania shillings, 20,000 shillings, which help us to 4 survive. 5 Q. Is that the income you rely upon each month? 6 A. Yes. 7 Q. Is that roughly $25 per month? 8 A. Yes. 9 Q. Can you tell us about the emotional impact upon you and 10 your children for the death of your husband? 11 A. Our life is so difficult because the same amount of money 12 as I mentioned before, that's to feed ourselves, and I'm 13 having difficulty to pay tuition for the kids and also I have 14 my father-in-law who lives with us and also depends on the 15 same amount of money. 16 Q. What has the emotional impact been on you? 17 A. I've been demoralized. 18 Q. And how about the children? 19 A. Even my children, the same. 20 Q. Do they ever talk about their father now? 21 A. Yes, they remember, they remember him often. 22 Q. What do they say about him? 23 A. They remember him because he was the one who was bringing 24 gifts for them more often. Now they remember anytime they see 25 their neighbors kids, they receive gifts from their parents, 7569 1 they always remember their father. 2 MR. FITZGERALD: Thank you for coming, ma'am. 3 Nothing further. 4 MR. RUHNKE: No questions. 5 THE COURT: Thank you. You may step down. 6 (Witness excused) 7 MR. FITZGERALD: The government calls Hanuni Ndange. 8 HANUNI NDANGE, 9 called as a witness by the government, 10 having been duly sworn, testified 11 through the interpreter as follows: 12 DIRECT EXAMINATION 13 BY MR. FITZGERALD: 14 Q. Good afternoon, ma'am. 15 A. Fine, thanks. 16 Q. Ma'am, was your husband killed in the bombing of the 17 American Embassy in Dar es Salaam, Tanzania on August 7th, 18 1998? 19 A. Yes, my husband was killed. 20 Q. Can you tell the jury your husband's name? 21 A. Yusufu Shamte Ndange. 22 Q. Yusufu Shamte Ndange. 23 MR. FITZGERALD: And your Honor, I would offer 24 Government Exhibit 3028, a photograph. 25 THE COURT: Received. 7570 1 (Government Exhibits 3028 received in evidence) 2 MR. FITZGERALD: If we could display Government 3 Exhibit 3028. 4 Q. Ma'am, is that a picture of your husband Yusufu? 5 A. Yes. 6 Q. Can you tell the jury where your husband grew up? 7 A. He grew up in Orfage (phonetic). 8 Q. Is that part of the coastal region in Tanzania? 9 A. Yes. 10 Q. And did his mother die at a young age, your husband's? 11 A. Yes. 12 Q. When did you meet your husband? 13 A. I met my husband since 1970. 14 Q. When did you get married? 15 A. I was married in 1972 by Gmoya (phonetic) district. 16 Q. And did you and your husband have children? 17 A. Yes, we have children, six kids. 18 Q. Can you tell the jury the names and ages of your six 19 children? 20 A. The first born, Abdul Yusufu, he was born 1973. The 21 second born is Juma Yousef. He was born 1975. The third one 22 is Mwajabu Yousef, who was born 1978. The fourth one is 23 Ramadhani, who was born 1980. The fifth one is Maua, who was 24 born 1983. The sixth one is Halima, who was born 1986, 25 February. 7571 1 Q. And they were three boys and three girls, correct? 2 A. Yes. 3 Q. Did your husband have a career in the Tanzanian military? 4 A. Yes. 5 Q. How long did he serve in the Tanzanian military? 6 A. He was around 25 years old. 7 Q. Do you know what his rank was when he retired from the 8 military? 9 A. He have two stars. 10 Q. Did he receive some commendations for his military 11 service? 12 A. Yes. 13 Q. Can you tell us approximately what year it was that your 14 husband retired from the Tanzanian military? 15 A. 1989. 16 Q. After he retired from the military, did he then begin 17 working at the American Embassy in Dar es Salaam? 18 A. Yes. 19 Q. Can you tell the jury what he did for work there? 20 A. He was driving water truck and a diesel truck. 21 Q. Can you tell the jury what your husband Yusufu was like as 22 a person? 23 A. He was polite. He's a person who was, after work, he just 24 come back home and sit at the balcony and watch T.V., and 25 after that he started to just go inside and get some rest. 7572 1 Q. How was he as a husband and a father? 2 A. He was the head of the house. He was the one helping in 3 the house. 4 Q. And was he good provider for the family? 5 A. Yes. 6 Q. Now let me direct your attention back to August 7th, 1998. 7 Can you tell us what happened that day? 8 A. Yes, 1998, there's a bomb explosion. 9 Q. Where were you when you learned about the bomb exploding? 10 A. I was in a hospital because my sister was sick. 11 Q. What hospital were you at? 12 A. I was in the Mnara Hospital. 13 Q. What happened after you heard the bomb blast? 14 A. I didn't know what to do, but at the time I was at the 15 hospital I saw so many cars coming with injured people. And 16 then I saw the plate number of American Embassy, that's the 17 time I get a shock and I decided to go back home. And after I 18 got home, I decided to go to Muhimbili Hospital. 19 Q. And what happened when you got to Muhimbili Hospital? 20 A. The time I was in Muhimbili Hospital, I was just confused, 21 I didn't know what is going on, and then I decide to go back 22 home. 23 Q. Did there come a time when you sent your nephew to find 24 out information about your husband? 25 A. Yes, I sent him to find out what happened in the morning. 7573 1 Q. And did he come back to you? What did you find out from 2 your nephew? 3 A. When he come back, he told me unfortunately uncle is dead. 4 Q. Did you then have to go to identify your husband's body? 5 A. Yes. There's some people came to pick me up at home to 6 take -- I don't know where these people came from, but I 7 remember they took me in a taxi, it's a small car, they took 8 me to the hospital to identify my husband. And when I get 9 there I was able to identify my husband. 10 Q. What did you have to go through to identify your husband? 11 A. I was able to identify him through the private parts and 12 also on top of my legs, top of here. 13 Q. What was the emotional impact of losing your husband upon 14 you and your family? 15 A. My life is miserable. Now I have kids who go to school 16 and there's so many problems. 17 Q. Your children have jobs? 18 A. There's no one who has a job. 19 Q. And your children discuss the fact that they don't have 20 work with you and your husband's not around? 21 A. Yes. 22 Q. Can you tell the jury some of the things your children 23 have told you since your husband died? 24 A. They didn't tell me anything. 25 Q. Have you come home and found your children crying when you 7574 1 arrived there? 2 A. They don't cry a lot because I work so hard myself doing 3 small businesses. 4 MR. FITZGERALD: Thank you, ma'am, for coming. I 5 have nothing further. 6 MR. RUHNKE: Nothing, your Honor. 7 THE COURT: Thank you. You may step down. 8 MR. FITZGERALD: I think we could adjourn for the 9 day. We have one more victim witness, your Honor. We can do 10 that tomorrow. 11 THE COURT: And that will be the end of victim 12 witness testimony? 13 MR. FITZGERALD: Yes, Judge. 14 THE COURT: One more. 15 All right, ladies and gentlemen, thank you for your 16 patience, your cooperation. Have a good evening. We're 17 adjourned until tomorrow. 18 (Jury not present) 19 THE COURT: Is there anything that needs to be 20 addressed before tomorrow? 21 I always adjourn to 9:30. The jury is here then. 22 Let's start at 9:30 tomorrow. Adjourned to 9:30 tomorrow. 23 (Adjourned to 9:30 a.m. on June 20, 2001) 24 25 7575 1 2 INDEX OF EXAMINATION 3 Witness D X RD RX 4 PATRICIA JOAN WAGNER....7496 5 VALENTYNE KATUNDA.......7519 6 DALMAS DOMINICUS........7529 7 ASHA KAMBENGA...........7534 8 HENRY KESSEY............7540 9 GRACE PAUL..............7553 10 MOHAMED JELANI MOHAMED..7559 11 JUDITH MWILA............7563 12 GOVERNMENT EXHIBITS 13 Exhibit No. Received 14 3005, 3011, and 1103-O .....................7523 15 3012 .......................................7524 16 3031 and 3025 ..............................7527 17 3000 .......................................7528 18 3010 .......................................7533 19 3026 .......................................7546 20 3030 .......................................7548 21 3023 .......................................7555 22 3022 .......................................7559 23 3027 .......................................7565 24 3028 .......................................7570 25
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