3 July 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 72 of the trial, July 2, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
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2 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3 ------------------------------x
4 UNITED STATES OF AMERICA
5 v. S(7) 98 Cr. 1023
6 USAMA BIN LADEN, et al.,
7 Defendants.
8 ------------------------------x
9
New York,
10 N.Y.
July 2, 2001
11 9:00 a.m.
12
13
Before:
14
HON. LEONARD B. SAND,
15
District Judge
16
APPEARANCES
17
MARY JO WHITE
18 United States Attorney for the
Southern District of New York
19 BY: PATRICK FITZGERALD
MICHAEL GARCIA
20 Assistant United States Attorneys
21
22 FREDRICK H. COHN
DAVID P. BAUGH
23 Attorneys for defendant Mohamed Rashed Daoud
Al-'Owhali
24
DAVID RUHNKE
25 DAVID STERN
Attorneys for defendant Khalfan Khamis
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2 Mohamed
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2 (Pages 8508 through 8523 filed under
3 seal)
4 (In open court)
5 (Jury present)
6 THE COURT: Good morning.
7 THE JURY: Good morning.
8 MR. RUHNKE: Your Honor, what we
9 propose to do at this point is to read to the
10 jury a number of stipulations that have not
11 previously been read to the jury.
12 What I intend to do is not repeat the
13 boilerplate language and introduce all of them.
14 I will give the stipulation number before I
15 read it and repeat it after it is read it so
16 the record will be clear what those numbers
17 are.
18 The first is stipulation number 1,
19 K.K.M. stip 1.
20 Stipulated and agreed as follows:
21 If called as a witness, a person
22 expert in the Arabic language would testify
23 that the Arabic-language documents seized from
24 Cell No. 6 on the 10 South Unit of the
25 Metropolitan Correctional Center on November 1,
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2 2000, were prepared by a person or persons
3 displaying a fluent command of the Arabic
4 language and a level consistent with a native
5 speaker of Arabic.
6 And it's agreed that this stipulation
7 may be received in evidence and that is
8 stipulation number 1.
9 (Defendant's Exhibit K.K.M. 1
10 received in evidence)
11 MR. RUHNKE: Stipulation number 6.
12 Stipulated and agreed as follows:
13 Mamdouh Mahmud Salim, a/k/a Abu Hajer
14 al Iraqui, was charged in Indictment (S4) 98
15 Criminal 1023 with conspiracy to kill United
16 States nationals, but not with bombings of the
17 United States embassies in Kenya and Tanzania.
18 Salim was arrested on September 16, 1998 in
19 Germany. Based on the charges filed against
20 Salim, he did not face the death penalty.
21 Nonetheless, German authorities would not
22 extradite Salim to the United States unless
23 they were assured that Salim would not face the
24 death penalty. The United States Government
25 assured the German government in writing that
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2 it would not seek the death penalty for the
3 offenses for which Salim was extradited. Salim
4 was extradited from Germany to the United
5 States on December 20, 1998.
6 2. Khalid al-Fawwaz, Ibrahim
7 Eidarous and Adel Abdel Bary were charged in
8 Indictment (S7) 98 Criminal 1023. Fawwaz was
9 charged with conspiracy to kill United States
10 nationals and conspiracy to murder (Counts One
11 and Two), but not charged with the bombings of
12 the United States embassies in Kenya and
13 Tanzania. Fawwaz had been arrested on or about
14 September 27, 1998 in the United Kingdom.
15 Based on the charges filed against Fawwaz, he
16 does not face the death penalty.
17 3. Ibrahim Eidarous and Abdel Bary
18 are charged in Indictment (S7) 98 Criminal 1023
19 with various conspiracy charges, including
20 conspiracy to kill United States nationals,
21 Count One, as well as with the various
22 substantive counts arising out of the bombings
23 of the United States embassies in Kenya and
24 Tanzania. Eidarous and Abdel Bary had been
25 arrested on July 12, 1999 in the United
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2 Kingdom. The bombing charges filed against
3 Eidarous and Abdel Bary are capital offenses,
4 but to seek the death penalty the government
5 would have to prove sufficient participation
6 that the action to justify the "gateway
7 factors" for the death penalty. Without
8 resolving whether that can be done, it is
9 assumed (for purposes of this trial) based on
10 past experience that, as part of the ongoing
11 extradition proceedings, British authorities
12 will insist on commitment from the United
13 States that it will not seek the death penalty
14 against Eidarous and Abdel Bary (as well as
15 Fawwaz) before extraditing any of them to the
16 United States. It is further assumed that at
17 the time such a demand is made, the United
18 States will provide such assurance to the
19 United Kingdom.
20 That was stipulation number 6.
21 (Defendant's Exhibit K.K.M. 6
22 received in evidence)
23 MR. RUHNKE: Stipulation number 8.
24 It is stipulated and agreed:
25 1. Usama Bin Laden; Ayman al
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2 Zawahiri; Mohamed Atef, a/k/a Abu Hafs; Saif al
3 Abdel; Abdullah Ahmed Abdullah, a/k/a Saleh;
4 Mushin Musa Matwalli Atwan, a/k/a Abdel Rahman;
5 Mustafa Fadhil, a/k/a Khalid, a/k/a Hussein;
6 Fazul Abdullah Mohammed, a/k/a Harun; Fahid
7 Msalam; Ahmed Mohamed Hamed Ali, a/k/a Ahmed
8 the Egptian; Anas al Liby; Ahmed Khalfan
9 Ghailani, and Sheik Ahmed Salim Swedan, a/k/a
10 Sheik Bahamad, are currently fugitives in
11 Indictment (S7) 98 Criminal 1023, or its
12 successor indictments.
13 Usama Bin Laden; Ayman al Zawahiri;
14 Mohamed Atef, a/k/a Mohamed Hafs; Mustafa
15 Fadhil, a/k/a Khalid, a/k/a Hussein, a/k/a --
16 obviously, also known as -- Fazul Abdullah
17 Mohammed, a/k/a Harun; Fahid Msalam; Ahmed
18 Khalfan Ghailani; and Sheik Ahmed Salim Swedan,
19 a/k/a Sheikh Bahamad, are all fugitives charged
20 specifically with both the Nairobi, Kenya and
21 Dar es Salaam, Tanzania bombings and thus in
22 capital counts.
23 3. Although Abdullah Ahmed Abdullah,
24 a/k/a Saleh, clearly participated in the
25 Nairobi and Dar es Salaam bombings, he is not
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2 charged in either bombing at this time. It
3 remains a possibility that Abdullah Ahmed
4 Abdullah, a/k/a Saleh, may be charged at a
5 later time.
6 And that was stipulation number 8.
7 (Defendant's Exhibit K.K.M. 8
8 received in evidence)
9 MR. RUHNKE: This is stipulation
10 number 9. Stipulated and agreed:
11 The documents appended hereto are
12 true and accurate copies of the summaries of
13 information supplied to Dr. Cunningham by the
14 Bureau of Prisons and upon which he relied, in
15 part, in preparing to testify.
16 And those documents will be offered
17 in evidence pursuant to this stipulation as
18 K.K.M. Exhibit 29.
19 (Defendant's Exhibit K.K.M. 9
20 received in evidence)
21 MR. RUHNKE: Stipulation number 10.
22 It is stipulated and agreed: Between August
23 12, 1998 and August 21, 1998, Mohamed Rashed
24 Dauod Al-'Owhali was interviewed six times by
25 agents of the Federal Bureau of Investigation.
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2 The FBI reports related to those interviews are
3 contained in defense Exhibits K.K.M. 32A to D.
4 For legal reasons, these statements were not
5 admitted at the trial of Al-'Owhali.
6 And that was stipulation number 10.
7 (Defendant's Exhibit K.K.M. 10
8 received in evidence)
9 MR. RUHNKE: Stipulation number 11.
10 It is stipulated and agreed: 1. Exhibits
11 K.K.M.-PH-103 and K.K.M.-PH-104 were taken at a
12 prison hospital facility on November 6, 2000,
13 and the stipulation, stipulation 11, also
14 allows for the underlying photographs to be
15 admitted into evidence, which are photographs
16 103 and 104. That was stipulation 11.
17 (Defendant's Exhibits K.K.M. 11,
18 K.K.M.-PH-103 and K.K.M.-PH-104 received in
19 evidence)
20 MR. RUHNKE: Stipulation 12: It is
21 stipulated and agreed:
22 1. Khalfan Khamis Mohamed traveled
23 to South Africa in August 1998. Tanzania has
24 the death penalty, South Africa does not. When
25 he was arrested in South Africa in October
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2 1999, Khalfan Khamis Mohamed was surrendered to
3 U.S. authorities. A South African authority
4 did not seek or obtain assurances that the U.S.
5 would not seek the death penalty. In May 2001,
6 the highest court for the Republic of South
7 Africa, overruling a lower court decision, held
8 that Khalfan Khamis Mohamed should not have
9 been released to the American authorities by
10 South African immigration officials without
11 obtaining an agreement from the United States
12 that he would not face the death penalty in the
13 United States. In its decision, the court is
14 not critical of the action of any American
15 officials. And this is stipulation number 12.
16 (Defendant's Exhibit K.K.M. 12
17 received in evidence)
18 MR. RUHNKE: Stipulation number 14.
19 Stipulated and agreed: Prior to October 25,
20 2000, Khalfan Khamis Mohamed had never shared a
21 cell with Mamdouh Mahmud Salim. And that's
22 stipulation number 14.
23 (Defendant's Exhibit K.K.M. 14
24 received in evidence)
25 MR. RUHNKE: Stipulation number 15:
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2 Khalfan Khamis Mohamed has no prior history of
3 criminal conduct. And that's stipulation
4 number 15.
5 (Defendant's Exhibit K.K.M. 15
6 received in evidence)
7 MR. RUHNKE: Stipulation number 16.
8 It is stipulated and agreed: Throughout his
9 incarceration by the Bureau of Prisons, Mamdouh
10 Mahmud Salim was treated for asthma. A sample
11 of those records is appended as Exhibit K.K.M.
12 27. There is no record of Khalfan Khamis
13 Mohamed ever being treated for asthma. That's
14 stipulation number 16.
15 (Defendant's Exhibit K.K.M. 16
16 received in evidence)
17 MR. RUHNKE: Stipulation number 17.
18 Stipulated and agreed: In the audio portion of
19 the videotape depicting the drive from 213
20 Ilala to the former American Embassy on Laibon
21 Road, Dar es Salaam, the left turn described by
22 the narrator at Uhuru Road accurately reflects
23 the information provided to the FBI by Khalfan
24 Mohamed. And that's stipulation number 17.
25 (Defendant's Exhibit K.K.M. 17
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2 received in evidence)
3 MR. RUHNKE: Stipulation number 18.
4 Stipulated and agreed:
5 1. K.K.M. 35A is an accurate copy of
6 two pages from the Daily Activity Log
7 maintained on the 10 South Unit of the
8 Metropolitan Correctional Center. The dates
9 reflected in the documents are October 25, 2000
10 and October 31, 2000.
11 2. K.K.M. 35B is an accurate copy of
12 one page from the Attorney Visitation Log
13 maintained at the sallyport (entranceway) to
14 the 10 South Unit at the Metropolitan
15 Correctional Center. The dates reflected on
16 K.K.M. 35B are October 25 through a portion of
17 October 28, 2000. That's stipulation number
18 18.
19 (Defendant's Exhibit 18 received in
20 evidence)
21 MR. RUHNKE: This is stipulation 19:
22 Exhibits K.K.M. 14A and B are true and accurate
23 copies of medical records documenting injuries
24 sustained by Khalfan Khamis Mohamed on November
25 1, 2000. The name on the record identifies
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2 K.K.M. 14B, Harry Walters, was chosen for
3 security reasons when Mr. Mohamed was admitted
4 to the hospital in question. That's K.K.M.
5 stip 19.
6 (Defendant's Exhibits 19, 14A and 14B
7 received in evidence)
8 MR. RUHNKE: K.K.M. stip 21.
9 Stipulated and agreed: On October 9, 1998,
10 Special Agent Daniel Coleman of the Federal
11 Bureau of Investigation swore to an affidavit
12 in support of a request for extradition of
13 Mamdouh Mahmud Salim from Germany before the
14 Honorable Sharon E. Grubin, United States
15 Magistrate Judge for the Southern District of
16 New York. In that affidavit Agent Coleman
17 described the role played in this case by
18 Mamdouh Mahmud Salim, Mohamed Sadeek Odeh, and
19 Mohamed Rashed Dauod Al-'Owhali. That
20 affidavit is received into evidence as K.K.M.
21 36. That was K.K.M. stip 21 I just read.
22 (Defendant's Exhibits K.K.M. 21 and
23 36 received in evidence)
24 MR. RUHNKE: K.K.M. stip 22.
25 Stipulated and agreed: At some time within the
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2 past five years, a member of al Qaeda -- not
3 either of the two cooperating witnesses who
4 testified in this case -- has entered into a
5 cooperation agreement with the United States.
6 This individual has entered a plea of guilty to
7 a conspiracy to kill Americans anywhere in the
8 world. It does not include as an overt act the
9 bombings of the American embassies in Dar es
10 Salaam and Nairobi, and the government has no
11 evidence that the individual was involved in
12 either of the bombings or any other murder or
13 murders. By the terms of the plea agreement,
14 this individual faces a sentence of
15 imprisonment from zero to life, depending on
16 the sentencing judge's evaluation of all the
17 circumstances, and does not face the death
18 penalty.
19 That was stipulation number 22.
20 (Defendant's Exhibit K.K.M. 22
21 received in evidence)
22 MR. RUHNKE: Stipulation 26: K.K.M.
23 33 consists of accurate copies of commissary
24 receipts for Khalfan Khamis Mohamed for the
25 period October 7, 1999 through October 26,
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2 2000. That was stipulation number 26.
3 (Defendant's Exhibit K.K.M. 26
4 received in evidence)
5 MR. RUHNKE: Stipulation number 27:
6 Consistent with Bureau of Prisons policy,
7 Khalfan Khamis Mohamed was seen by a Bureau of
8 Prisons psychologist at approximately 30-day
9 intervals in order to assess (1) mental status,
10 (2) adjustment, (3) threat to self, and (4)
11 threat to others.
12 K.K.M. 41 contains true and accurate
13 copies of such reports current through March
14 16, 2001. And that was stipulation 27.
15 (Defendant's Exhibit K.K.M. 27
16 received in evidence)
17 MR. RUHNKE: Stipulation 28: The
18 documents contained in the folder marked K.K.M.
19 42 are true and accurate copies of the records
20 supplied by the Bureau of Prisons and comply
21 with subpoenas served on behalf of Khalfan
22 Khamis Mohamed.
23 The documents grouped as K.K.M. 42A
24 are special administrative measures imposed
25 upon Ramzi Ahmed Yusufu and Sheik Omar Abdel
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2 Rahman. The documents grouped as K.K.M. 42B
3 are the available sentence computation
4 documents for the inmates whose records were
5 subpoenaed. The documents grouped as K.K.M.
6 42C are the available chronological
7 disciplinary records for the inmate whose
8 records were subpoenaed. And that's
9 stipulation number 28.
10 (Defendant's Exhibits K.K.M. 28, 42A,
11 42B and 42C received in evidence)
12 MR. RUHNKE: Stipulation 25A.
13 Stipulated and agreed:
14 In a separate criminal proceeding
15 before another judge of this court arising out
16 of the assault of Officer Pepe, Mamdouh Mahmud
17 Salim is seeking to assert a defense claim that
18 his mental state at the time of the incident
19 was such that he lacked the requisite intent to
20 commit the crimes alleged. In connection with
21 these proceedings, Salim was interviewed by a
22 government-designated psychiatrist and
23 psychologist. The nature of the proceedings
24 therefor was in Salim's interest to maximize
25 the extent of his alleged mental disorders.
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2 The issue as to the validity of Salim's claims
3 has yet to be resolved.
4 2. One condition of these
5 examinations by the government experts was that
6 no statement made by the defendant in the
7 course of any examination by the government's
8 expert, no testimony by the expert based upon
9 statements by the defendant, and no other
10 fruits of the statement, i.e., no other
11 evidence learned as a result of the statements
12 that were made, could be admitted in evidence
13 against Mr. Salim in any criminal proceeding
14 except on an issue respecting mental condition
15 about which the defendant first introduces his
16 testimony.
17 3. On May 29, 2001, and June 22,
18 2001, Mr. Salim was examined by Stewart B.
19 Kleinman, M.D., a board-certified forensic
20 psychiatrist retained by the government, and
21 those sessions lasted a total of approximately
22 12 hours, 45 minutes. The report summarizing
23 the forensic evaluation was submitted on June
24 25, 2001.
25 4. The following information is
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2 reflected in Dr. Kleinman's June 25, 2001
3 forensic psychiatric report:
4 A. Mr. Salim stated "that he had
5 only limited interactions with Khalfan Khamis
6 Mohamed because Mr. Mohamed speaks only limited
7 English and Arabic."
8 B. Mr. Salim was asked to describe
9 his emotional/psychological/mental state during
10 the period prior to November 1, 2000. Among
11 other responses, Mr. Salim gave the following:
12 His weight dropped from approximately
13 185 pounds in 1998 to 165 pounds in 1999 to 160
14 pounds in mid 2000 to 155 pounds in November
15 2000; he progressively lost muscle tone;
16 increasingly feeling hateful, angry and
17 humiliated because of prison experience;
18 reporting that he was particularly enraged by
19 strip searches; he felt "sad all day"; he no
20 longer was a "very cheerful person"; he
21 constantly worried about his family; he lost
22 his ability to freely forgive others for
23 transgressions and he felt extremely lonely and
24 he thought about ending his life but never made
25 any effort toward doing so because Islam
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2 forbids such action.
3 C. Mr. Salim claimed that
4 "previously he had been battling for control of
5 himself with a part of himself which wants to
6 violate his 'principles,' including to act
7 violently."
8 D. When asked on June 22 to describe
9 his mental/emotional state on November 1, 2000,
10 Salim replied, "Hopeless, grieving, angry"; "no
11 control over myself"; "doing things against my
12 will"; "anything I did that day I was not the
13 same person; maybe it was my body." When asked
14 on June 22, 2001 how his mental state had
15 changed since November 1, 2000, Salim stated
16 that he previously often daydreamed about "how
17 to stop this persecution" and how to escape if
18 he could not, and that currently he adheres to
19 his "principles" and does not actively resist
20 "aggression, insults" against him.
21 E. When asked about the events of
22 November 1, 2000, Salim stated that "I took the
23 keys [from Officer Pepe's belt] to escape from
24 the door" and explained that "I took it [the
25 keys] from him" and "I took it from his belt."
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2 When asked how he managed to do so, he
3 repeated, "I took the keys." He thereupon
4 refused to provide any further details of the
5 offense stating, "Because this is legal matter,
6 has nothing to do with psychiatrists," adding,
7 "It's legal, confidential."
8 F. When asked to explain his
9 actions, Salim stated, "I wanted to escape this
10 ridiculous condition." "Since I did nothing, I
11 have the right to be with my family." He
12 stated around November 1, 2000, he believed
13 there was a "chance" that an escape attempt
14 would succeed and that such an effort would be
15 "difficult but not impossible." He declined to
16 provide further details. He also stated that
17 he returned to his cell when officers
18 approached because he understood "it's
19 finished" and that since he "was outside the
20 cell, this is against the rule" and related
21 that he feared he would be severely assaulted
22 if he remained outside his cell.
23 When asked when he first thought of
24 escaping in the manner he attempted on November
25 1, 2000, Salim replied, "There is a difference
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2 between thinking about it and deciding to do
3 it." When subsequently asked when he first
4 thought about escaping as he attempted on
5 November 1, 2000, he responded that he was not
6 sure, but added, "for sure not months." When
7 further asked when he decided to escape as he
8 intended and attempted, he replied that he
9 would not answer this question.
10 Salim declined to answer the
11 following question: Whether he made the
12 sharpened comb weapon used to stab Officer
13 Pepe; whether he fashioned the sharpened
14 hairbrush found around the site of the instant
15 offense; whether he sprayed hot sauce into
16 anyone's eyes on November 1, 2000; whether he
17 stored hot sauce in honey containers; whether
18 he had stored the sharpened comb or hairbrush
19 sometime prior to November 1, 2000; whether he
20 had covered the camera in his cell or stored
21 paper for that purpose prior to November 1,
22 2000; whether he made any effort to interfere
23 with the MCC's electricity; whether he
24 handcuffed Officer Pepe; whether he tried to
25 open the inner door to his housing area with
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2 Officer Pepe's keys; whether others helped him
3 in the offense; whether he knew who assaulted
4 Officer Pepe with a comb weapon; whether he
5 stabbed Officer Pepe in the eye; whether anyone
6 else physically restrained Officer Pepe during
7 the offense and what he planned to do if he
8 managed to open the inner door to 10 South."
9 That stipulation is stipulation 25A.
10 (Defendant's Exhibit K.K.M. 25A
11 received in evidence)
12 MR. RUHNKE: The final stipulation is
13 stipulation 25B. Stipulated and agreed: Barry
14 Rosenfeld, Ph.D., a clinical psychologist
15 retained by the government, examined Mamdouh
16 Mahmud Salim on June 26, 2001. Dr. Rosenfeld
17 concluded that "several factors limit the
18 conclusiveness of the evaluation, including
19 Mr. Salim's apparent lack of candor in both
20 reporting his psychological symptoms (i.e.,
21 apparently exaggerating his psychological
22 problems) and refusing to discuss many aspects
23 of the instant offense."
24 Dr. Rosenfeld concluded that, "While
25 the possibility of a more pervasive or severe
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2 psychiatric disorder cannot be limited and
3 Mr. Salim claimed to suffer from psychotic
4 symptoms, (e.g., hallucinations) both at the
5 time of the offense as well as at present, his
6 reported symptoms appear likely to be either
7 exaggerated or, in the case of the reported
8 hallucinations, fabricated."
9 During the interview conducted by
10 Dr. Rosenfeld, Mr. Salim noted his
11 dissatisfaction with the attorneys who had
12 represented him prior to November 1, 2000. He
13 also noted "increased anger and irritability,
14 particularly during the period leading up to
15 the alleged instant offense," and that he
16 "frequently argued with his cellmate during the
17 period in which they were housed together
18 (prior to the alleged instant offense)."
19 3. According to Dr. Rosenfeld's
20 report, Salim claimed the presence of
21 persistent auditory hallucination, which Salim
22 described as "a creature suggesting things to
23 me, sometimes ordering me. I don't see him,
24 but I feel him inside me." Salim stated, "I
25 hear him a long time ago, before I was
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2 arrested, but I never paid attention to him
3 because he can come once in two months or once
4 a year." Salim further stated that the
5 "creature" had "ordered him to break or destroy
6 things or steal objects" and that he was
7 convinced the "creature is real, although
8 living inside his own body."
9 Dr. Rosenfeld concluded that "Salim's
10 report of auditory hallucinations which predate
11 his incarceration but have worsened
12 considerably since is highly suspect for a
13 number of reasons." Dr. Rosenfeld reported
14 that although it was "possible" Salim suffered
15 from such hallucinations, he concluded that
16 "much more likely is the possibility that
17 Mr. Salim fabricated this symptom in an effort
18 to explain the instant offense as due to the
19 stress of his confinement, i.e., malingering."
20 4. Dr. Rosenfeld said Salim
21 described "unusual beliefs" such as "thinking
22 that he could shrink himself and escape the MCC
23 by crawling under the door."
24 5. In assessing Salim's mental state
25 at the time of the offense, Dr. Rosenfeld noted
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2 that Salim was unwilling to discuss his actions
3 with regard to the instant offense.
4 Dr. Rosenfeld noted that, "A complete
5 understanding of Mr. Salim's mental state at
6 the time of the instant offense is limited by
7 both his refusal to discuss this incident in
8 detail as well as the questionable accuracy of
9 the information he did provide."
10 With respect to the November 1, 2000
11 incident, Salim, according to Dr. Rosenfeld's
12 report, "acknowledged that he had taken -- I'm
13 sorry. I'll read it again -- "acknowledged
14 that he had been taken by Officer Pepe to his
15 cell unhandcuffed, and once in his cell 'I took
16 the keys away from him. I wanted to runaway
17 (escape).'" Salim said that the plan to escape
18 by taking the keys from a corrections officer
19 had occurred to him well in advance of the
20 actual incident: "It came to my head many
21 times before -- a week or so -- maybe ten
22 days." Salim also stated that, "Moments before
23 I took the keys, I was in a conflict with the
24 creature -- I was talking to it in an audible
25 volume -- the guard took me out of here and I
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2 was talking to the creature -- it was telling
3 me, 'now, now is the day you take the key --
4 it's a chance -- if you miss it today, you'll
5 regret it.'"
6 And that is stipulation number 25B.
7 (Defendant's Exhibit K.K.M. 25B
8 received in evidence)
9 MR. RUHNKE: In addition to
10 stipulations, we are now going to move into
11 evidence the following documents: K.K.M. 2,
12 which is a transcript at a hearing involving
13 Mr. Salim conducted before a magistrate judge
14 on October 26, 2000.
15 MR. FITZGERALD: No objection.
16 MR. RUHNKE: K.K.M. 13 is the initial
17 complaint filed with regard to Ali Mohamed when
18 he was arrested.
19 MR. FITZGERALD: No objection.
20 MR. RUHNKE: K.K.M. 25 are the
21 documents and slides that were computer shown
22 to you by Dr. Cunningham during his testimony.
23 MR. FITZGERALD: No objection.
24 THE COURT: Yes. Those three
25 exhibits are all received.
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2 (Defendant's Exhibits 2, 13 and 25
3 received in evidence)
4 MR. RUHNKE: Yes.
5 K.K.M. 27 are Salim's, a sample of
6 Salim's medical records referred to earlier
7 involving Asma.
8 MR. FITZGERALD: No objection.
9 THE COURT: Received.
10 (Defendant's Exhibit K.K.M. 27
11 received in evidence)
12 MR. RUHNKE: K.K.M. 29 are the
13 documents referred to earlier which have been
14 supplied to Dr. Cunningham for his testimony.
15 MR. FITZGERALD: No objection.
16 THE COURT: Received.
17 (Defendant's Exhibit K.K.M. 29
18 received in evidence)
19 MR. RUHNKE: K.K.M. 32 and 32A
20 through D are the statements of Rashid Daoud
21 Al-'Owhali that you had not previously heard
22 during this trial.
23 MR. FITZGERALD: No objection.
24 THE COURT: Received.
25 (Defendant's Exhibits K.K.M. 32 and
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2 32A through 32D received in evidence)
3 MR. RUHNKE: K.K.M. 34 is the MCC
4 medical record regarding the injury report
5 prepared with regard to Officer Pepe.
6 MR. FITZGERALD: No objection.
7 THE COURT: Received.
8 (Defendant's Exhibit K.K.M. 34
9 received in evidence)
10 MR. RUHNKE: K.K.M. 35A and B are
11 excerpts from the MCC Daily Activity Log and
12 Attorney Visitation Log which were referred to
13 in the stipulation.
14 MR. FITZGERALD: No objection.
15 THE COURT: Received.
16 (Defendant's Exhibits K.K.M. 35A and
17 35B received in evidence)
18 MR. RUHNKE: K.K.M. 36 is is the
19 affidavit of Agent Daniel Coleman regarding the
20 extradition of Mamdouh Mahmud Salim from
21 Germany.
22 MR. FITZGERALD: No objection.
23 THE COURT: Received.
24 (Defendant's Exhibit K.K.M. 36
25 received in evidence)
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2 MR. RUHNKE: K.K.M. 38 is an incident
3 report involving Mamdouh Mahmud Salim. I will
4 not read it into evidence at this point, but it
5 involves a response to being required to
6 undergo a strip search and refusing a direct
7 order by Mr. Salim.
8 MR. FITZGERALD: No objection.
9 THE COURT: Received.
10 (Defendant's Exhibit K.K.M. 38
11 received in evidence)
12 MR. RUHNKE: K.K.M. 39 is a summary
13 chart, which I will just hold up to you so you
14 can see what it looks like.
15 This is K.K.M. 39, and what it does
16 is, as its heading says, it's a summary chart
17 of Khalfan Khamis Mohamed's commissary orders
18 of certain items based on a review of the
19 underlying MCC records, and it points out that
20 the records themselves are in evidence as
21 K.K.M. 33.
22 MR. FITZGERALD: No objection.
23 THE COURT: Received.
24 (Defendant's Exhibit K.K.M. 39
25 received in evidence)
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2 MR. RUHNKE: K.K.M. 40 is the
3 original complaint seeking the arrest and
4 charging Mamdouh Mahmud Salim.
5 MR. FITZGERALD: No objection.
6 THE COURT: Received.
7 (Defendant's Exhibit K.K.M. 40
8 received in evidence)
9 MR. RUHNKE: K.K.M. 41 are periodic
10 assessment, psychological assessments
11 undertaken with regard to Khalfan Khamis
12 Mohamed which is referred to in the earlier
13 stipulation. Again, that's K.K.M. 41.
14 MR. FITZGERALD: No objection.
15 THE COURT: Received.
16 (Defendant's Exhibit K.K.M. 41
17 received in evidence)
18 MR. RUHNKE: K.K.M. 42 is a
19 collection of Special Administration Measures,
20 sentence computations and disciplinary reports
21 provided by the Bureau of Prisons to
22 Dr. Cunningham in response to a stipulation
23 served on the Bureau of Prisons.
24 MR. FITZGERALD: No objection.
25 THE COURT: Received.
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2 (Defendant's Exhibit K.K.M 42
3 received in evidence)
4 MR. RUHNKE: Finally, your Honor --
5 I'm sorry. Also in this list of exhibits are
6 summaries of the allegations regarding several
7 individuals taken from the indictments
8 regarding those individuals. I'll specify:
9 K.K.M. 43 is excerpts of the charges
10 against Mamdouh Mahmud Salim. K.K.M. 44 is not
11 so much a summary as it is taking out of the
12 indictment the actual allegations regarding Ali
13 Mohamed. K.K.M. 45 is a similar document with
14 regard to al-Fawwaz. 46 is a similar document
15 with regard to Abdel Bary. 47 is a similar
16 documents with regard to Ibrahim Eidarous.
17 MR. FITZGERALD: No objection.
18 THE COURT: Received.
19 (Defendant's Exhibits K.K.M. 43
20 through 47 received in evidence)
21 MR. RUHNKE: Finally, we move the
22 following photographs, all designated K.K.M. PH
23 followed by a number. And we offer K.K.M. 12,
24 28, 15, 31, 32, 5, 8, 19, 22, 11, 9, 3, and I
25 note with regard to 11 and 3 that there may be
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2 a confusion about the designation. They are
3 either 51 or 11 or 43 or 3. We'll straighten
4 that out. Photo 38, photo 39, photo 72, photo
5 20 from CD number 2, photo 11 from CD number 2,
6 photo 9 from CD number 2, photo 21 from CD
7 number --
8 I'm sorry. Am I misstating the
9 photograph numbers?
10 Let me start again. Start with
11 number 51. I misstated some of these.
12 Starting with number 51 it's photo 9, photo 43,
13 photo 38, photo 68, photo 72, photo 93, photo
14 83, photo 102, photo 94.
15 And your Honor, we formally rest our
16 penalty phase at this point.
17 (Defendant's Exhibits K.K.M.-PH-12,
18 PH-28, PH-15, PH-31, PH-34, PH-5, PH-8, PH-19,
19 PH-22, PH-11, PH-9, PH-3, PH-38, PH-39, PH-72,
20 PH-20, PH-2, PH-51, PH-43, PH-68, PH-93, PH-83,
21 PH-102 and PH-94 received in evidence)
22 THE COURT: K.K. Mohamed rests.
23 MR. FITZGERALD: Your Honor, the
24 government will offer some stipulations.
25 THE COURT: Yes.
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2 MR. FITZGERALD: Government Exhibit
3 4306. It is hereby stipulated and agreed by
4 the parties:
5 1. On or about November 8, 2000,
6 Paul McAllister and Charles Adler were relieved
7 as counsel for Mamdouh Salim because they were
8 now in the position of being factual witnesses
9 against Salim. Accordingly, Salim could not
10 proceed to trial with his codefendants in
11 January 2001.
12 The government advised the court that
13 a separate trial of Salim, who was charged in
14 Indictment (S7) 98 CR 1023 with conspiracy
15 offenses, which carried the maximum penalty of
16 life imprisonment, but not with the embassy
17 bombings, would involve recalling many of the
18 same witnesses who would testify at the trial
19 scheduled for January which was projected to
20 last nine to twelve months.
21 The government also advised the court
22 that a trial of Salim for the effort to take
23 hostages on November 1, 2000 in the attempted
24 murder of Officer Pepe could be conducted in
25 far less time and would provide the same
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2 maximum penalty of life imprisonment. The
3 government thus advised the court that it
4 intended to proceed to try Salim for the
5 November 1, 2000 crimes and that if Salim were
6 convicted of the November 1, 2000 crimes, it
7 might no longer be necessary to expend the
8 resources to try Salim for the conspiracy
9 charged in (S7) 98 CR 1023.
10 Trial of Salim for the charges
11 arising out of November 1, 2000 is scheduled
12 for September 2001. Trial on the other
13 conspiracy charges has been postponed without
14 date.
15 After November 1, 2000, Salim and
16 Khalfan Mohamed were transferred to another
17 Bureau of Prisons facility. However, they were
18 both returned to the MCC 10 South Unit on
19 January 2, 2001, as Khalfan Mohamed needed to
20 be at the MCC for purposes of trial and Salim
21 needed to be present for preparation for his
22 case.
23 Before Khalfan Mohamed and Salim were
24 returned to the 10 South Unit, the warden made
25 arrangements to bring in lieutenants from
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2 institutions other than the MCC on a rotating
3 basis to supervise the 10 South Unit.
4 And that's signed, dated, and that's
5 Government Exhibit 4306.
6 THE COURT: Received.
7 (Government Exhibit 4306 received in
8 evidence)
9 MR. FITZGERALD: A second stipulation
10 is Government Exhibit 4305, which says: It is
11 hereby stipulated and agreed, by and between
12 the parties, as follows:
13 1. Government Exhibit 4329 are
14 medical records for Mamdouh Mahmud Salim
15 maintained by the Metropolitan Correctional
16 Center. It is further stipulated and agreed
17 that this stipulation may be received in
18 evidence as a Government Exhibit. We would
19 offer 4305 and the underlying record, 4329.
20 (Government Exhibits 4305 and 4329
21 received in evidence)
22 THE COURT: Received.
23 MR. FITZGERALD: And just reading
24 entries from 4329, it says: Inmate screening,
25 Mamdouh Salim, December 20, 1998. Next to the
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2 box, "Do you wear a brace or back support?"
3 The box "yes" is checked. Next to the box,
4 "Have you ever had or have you now shortness of
5 breath?" The box "yes" is checked. And
6 there's an entry on the second page,
7 handwriting, "History of LBP after carrying
8 heavy objects, occasionally have pain."
9 Government Exhibit 4309. It is
10 hereby stipulated and agreed by and between the
11 parties that: Consistent with Bureau of
12 prisons policy, Mamdouh Salim was seen by a
13 Bureau of Prisons psychologist at approximately
14 30-day intervals in order to assess: One,
15 mental status; two, adjustment; three, threat
16 to self; four, threat the others.
17 Government Exhibit 4308 contains true
18 and accurate copies of such reports current
19 through October 26, 2000.
20 We would offer 4309 and the
21 underlying records, 4308.
22 (Government Exhibits 4308 and 4309
23 received in evidence)
24 THE COURT: Received.
25 MR. FITZGERALD: Your Honor, at this
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2 time we would offer in evidence Government
3 Exhibit 4324, page 1 and 2, through lines 22,
4 which is a transcript of a proceeding involving
5 defendant Khalfan Mohamed on October 8, 1999.
6 MR. RUHNKE: No objection.
7 THE COURT: Received.
8 (Government Exhibit 4324 received in
9 evidence)
10 MR. FITZGERALD: And I would just
11 read lines 2 through 22 of that transcript:
12 "The Court (addressing attorney):
13 Does your client require an interpreter?"
14 The attorney for Khalfan responds:
15 "He speaks English, but his primary language is
16 Swahili. We have an Arabic interpreter.
17 Apparently his Arabic is better than his
18 English. I think he understands what he and I
19 discussed in English and he is prepared to go
20 forward today. In the future, if we can, we
21 would like to have a Swahili interpreter."
22 And then a prosecutor: "We will make
23 sure that gets arranged, your Honor.
24 "The Court: Mr. Mohamed, are you
25 able to understand me?
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2 "The Defendant: Yes.
3 "The Court: If at any time anything
4 is said which you want interpreted or which you
5 don't understand, will you please raise your
6 hand?
7 "The Defendant: Yes.
8 "The Court: Would you answer in
9 words? You are nodding your head. Would you
10 answer in words? Will you raise your hand if
11 there is anything that you don't understand?
12 "The Defendant: Okay. Yes."
13 Your Honor, we would also offer
14 Government Exhibit 4331, which is a transcript
15 of a hearing involving Mamdouh Salim on October
16 20, 2000.
17 THE COURT: Yes.
18 (Government Exhibit 4331 received in
19 evidence)
20 MR. FITZGERALD: And then I would
21 just read from page 357 of the transcript,
22 questioning by Salim's counsel of Salim, and:
23 "Q. Now, let me ask you, when you -- at that
24 time, which is almost two years ago, how was
25 your understanding of the English language in
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2 relation to now?
3 "A. I may speak in English now to expedite
4 matters to reduce the time, but I wish to have
5 the interpreter stand next to me in case I need
6 any assistance.
7 "Q. Well, how is your English, was it good or
8 bad? How was your English, your knowledge of
9 the English language when you were examined?"
10 Answer by Salim in English: "I
11 already studied the electrical engineering in
12 university for four years, and this was up to
13 1980, which is 20 years ago, and my language at
14 that time until now, or at least until the day
15 that they arrested me, it was technical
16 language. I can speak with an engineer for
17 hours, but with a lawyer it's very difficult
18 for me to speak for minutes. But after I'd
19 been arrested and then, unfortunately,
20 extradited here, I decided to improve my
21 language because I think this will assist me to
22 defend myself, hoping that I can win the case,
23 because I am innocent."
24 And we have one more stipulation,
25 your Honor. Strike that. Two more.
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2 Government Exhibit 4332:
3 It is hereby stipulated and agreed by
4 and between the parties that Government Exhibit
5 4326 is a copy of the subpoena provided to the
6 Bureau of Prisons requesting information
7 concerning 20 designated inmates. Government
8 Exhibit 4331A to 4331Q are copies of the
9 computerized disciplinary records of 19
10 inmates. The 20th name requested, Abdel Rahman
11 Yasin, is a person who was a fugitive who has
12 never been in custody and for whom there are,
13 thus, no records.
14 Government Exhibit 4315 is a copy of
15 the computerized disciplinary record of Abdel
16 Hakim Murad convicted with Ramzi Yousef and
17 Wali Khan Amin Shah of conspiring to bomb
18 airliners in the Philippines after being
19 extradited to the United States in 1995.
20 The computerized disciplinary records
21 referred to above are distinct from the
22 incident reports provided to Dr. Mark
23 Cunningham concerning the administrative
24 maximum prison at Florence, Colorado. The
25 complete set of incident reports pertaining to
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2 the prison at Florence provided to
3 Dr. Cunningham consist of thousands of pages
4 and was thus not offered as an exhibit.
5 And we would offer Government Exhibit
6 4332 and the exhibits referred to therein,
7 Government Exhibits 4326, 4331A to 4331Q and
8 4315.
9 THE COURT: Received.
10 (Government Exhibits 4332, 4326,
11 4331A through 4331Q and 4315 received in
12 evidence)
13 MR. FITZGERALD: And I'm corrected
14 that it is 4331A to S, so we would offer 4331R
15 and S at this time also.
16 Finally, your Honor, Government
17 Exhibit --
18 THE COURT: Received.
19 (Government Exhibits 4331R and S
20 received in evidence)
21 MR. FITZGERALD: 4307 is a
22 stipulation. It is hereby stipulated and
23 agreed, by and between the parties, that:
24 Government Exhibit 3050 is a copy of
25 a portion of a videotape that aired on the
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2 Al-Jazeira channel (an Arabic-language
3 broadcasting service in the Middle East) on or
4 about September 20th, 2000. In addition to the
5 broadcaster, the speakers in the entire
6 videotape were Usama Bin Laden, Ayman al
7 Zawahiri, Refai Ahmed Taha Musa and Sheik
8 Asadallah, the son of Sheik Omar Abdel Rahman.
9 Government Exhibit 3050 is the portion of the
10 videotape which includes Usama Bin Laden's
11 statements.
12 Government Exhibit 3050T is a fair
13 and accurate translation from Arabic into
14 English of Government Exhibit 3050. The
15 persons referred to by Usama Bin Laden include
16 Sheik Omar Abdel Rahman, el Sayyid Nosair,
17 Mohamed Rashid Dauod Al-'Owhali and Osama
18 Mullah Haydar (an alias of Wali Khan Amin
19 Shah).
20 The date the videotape was made is
21 not known. However, it is believed to have
22 been made at some time in the year 2000, when
23 defendants Mamdouh Salim, Wadih El Hage,
24 Mohamed Sadeek Odeh, Mohamed Rashed Dauod
25 Al-'Owhali and Khalfan Khamis Mohamed were in
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2 American custody.
3
4 (Continued on next page)
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[Cryptome note: Repetition of page numbers in the original.]
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2
3 It is further stipulated that Sheik
4 Omar Abdul Rahman was arrested in August 1993
5 in the Metropolitan New York area and later
6 charged with various crimes, including the
7 crime of seditious conspiracy, in essence, the
8 crime of conspiring to make war against the
9 United States from within the United States,
10 which conspiracy included among its overt acts
11 the bombing of the World Trade Center and
12 efforts to bomb various locations in New York
13 City, the Holland Tunnel, the Lincoln Tunnel,
14 the FBI building at 26 Federal Plaza, and the
15 United Nations building.
16 However, Abdul Rachman was noted
17 charge with the crime of bombing the World
18 Trade Center. Abdul Rachman was convicted of
19 seditious conspiracy after a trial in the
20 Southern District of New York in 1995, and was
21 also convicted at that time of conspiracy to
22 murder Egyptian President Murabak in
23 retaliation for the arrest of Mahmoud
24 Aboulahima separately convicted for the
25 February 1993 World Trade Center bombing.
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2 It is further stipulated that El
3 Sayed Nosair was convicted at the same 1995
4 trial in the Southern District of New York with
5 Abdul Rahman and others participating in the
6 same seditious conspiracy. In addition, Nosair
7 was convicted of the November 5, 1990 murder of
8 Rabbi Mayer Kahane in New York.
9 It is further stipulated that Wadi
10 Khan Amin Sha, a/k/a Marhedra, a/k/a Asmiri was
11 convicted in the 1996 trial in the Southern
12 District of New York of conspiracy to bomb
13 approximately 12 commercial airliners
14 registered to American carriers based upon
15 conduct in the Philippines and elsewhere in
16 late 1994 and early 1995, and of attempted
17 escape while awaiting trial in the Southern
18 District of New York.
19 We would offer Government Exhibit
20 4307, the stipulation, Government Exhibit 3050,
21 the video, and a transcript Government Exhibit
22 3050-T.
23 THE COURT: Received.
24 (Government's Exhibits 4307, 3050,
25 and 3050-T received in evidence)
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2 MR. FITZGERALD: At this time, your
3 Honor, I'd like to just hand out the single
4 page transcript, 3050T, and play the exhibit.
5 THE COURT: Yes.
6 (Government Exhibit 3050 played)
7 MR. FITZGERALD: The government
8 rests.
9 THE COURT: The government rests.
10 We'll take a very brief recess.
11 (Continued on next page)
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2 (Jury not present)
3 THE COURT: What is the status of the
4 instruction to the jury with respect to
5 consideration of matters introduced during the
6 Al-'Owahli penalty phase?
7 MR. RUHNKE: Your Honor, the status
8 is that we decided to offer nothing.
9 THE COURT: Nothing. So that the
10 instruction to the jury ignores any reference,
11 they are to consider only what happened at the
12 liability phase and this phase. Is that
13 correct?
14 MR. FITZGERALD: Yes, Judge.
15 THE COURT: All right. We'll take a
16 very brief recess.
17 (Recess)
18 (Continued on next page)
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25
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2 (In open court; jury present)
3 THE COURT: As you have heard both
4 sides have rested and so we're now at the stage
5 where attorneys make their closing arguments.
6 Mr. Fitzgerald.
7 MR. FITZGERALD: Thank you, Judge.
8 Good morning. This morning I rise to
9 speak to you for the last time in this case, as
10 you consider the most serious questions a jury
11 could ever decide, whether the defendant Khamis
12 Mohamed should be punished by life imprisonment
13 or by the death penalty.
14 But I begin by reminding you of one
15 thing, why it is here, why you are here to
16 decide that. You are here to decide that
17 because of him, because he chose to kill and to
18 murder on August 7, 1998; because he chose to
19 participate with Salim in an attack on November
20 1, 2000. And I tell you that because some of
21 the evidence you have heard, some of the things
22 that have been said, some of the things
23 presented to you particularly quite recently,
24 might make you forget that.
25 You've heard about a year in South
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Summation - Fitzgerald
2 Africa at Burger World where he was a model
3 employee and a model guest. Well, recognize
4 that he's here today because he made choices.
5 Things didn't happen to him. There is an
6 impression created at times that we're here
7 because things happened, bombings happened and
8 assaults happened. No, he did them. He
9 murdered people. He assaulted them.
10 Counsel for Khamis Mohamed in the
11 opening had told you candidly, did it, when he
12 spoke to the FBI he had no remorse, and they're
13 not running from the facts. But since that
14 time there has been some quiet role marking.
15 At the end of the guilt phase, counsel for
16 Khamis Mohamed made it sound like the weather,
17 and I remember quote as the world turns, as
18 events go. If Khamis Mohamed had left to go to
19 London to start a new life probably the embassy
20 would have been bombed on August 7, 1998
21 anyway, and that would not have changed, but
22 everything would have changed for him, and he
23 would not be sitting here facing your judgment,
24 but that's not how the world turned, as if the
25 bombing was something that happened to Khamis.
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Summation - Fitzgerald
2 In the beginning of the penalty
3 opening it was stated that it was to Khamis'
4 everlasting bad fortune that he sat in a cell
5 with Mandouh Salim, but that's not what
6 happened. It was to Officer Pepe's everlasting
7 bad fortune that the two of them got together
8 in a cell and tried to take him hostage and
9 savagely assaulted him.
10 During the testimony of Ms. Miller a
11 question was asked of her: Now, there came a
12 time when Mr. Mohamed became involved with a
13 group of people in Dar es Salam and at the end
14 of that process the American Embassy was
15 bombed. It wasn't a process. It was a choice.
16 It was an act. It was murder and we have to
17 remember that. This man decided on August 7,
18 1998 that people could die in an embassy with a
19 bomb he helped build, lined it with TNT and
20 made sure the truck got there. He thought that
21 he would die and he could run away, he would
22 abandon his family, lie to them, where he went
23 to South Africa and pretend to be a nice guy.
24 He Didn't give a damn about the people he
25 killed. He didn't give a damn about the people
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2 he left behind and when he was caught he said:
3 I did it, not because he was sorry, he
4 threatened to do it again.
5 On November 1, 2000 he and Salim
6 struck again. This is not the weather. It's a
7 person who killed in cold blood and will do it
8 again if given the chance.
9 Let's review the facts. Review the
10 facts about the bombing and the assault, and
11 remember who he is, what he has done, why he is
12 here, and why you are asked to make this
13 judgment.
14 You may forget that when he went to
15 Afghanistan remember how far away Afghanistan
16 is from Tanzania, how little people can leave
17 that island. He made a choice to go. He made
18 a choice to go. He paid his own way. He went
19 to Afghanistan and what did he do in
20 Afghanistan? He received training. How much
21 training did he receive? I bet you just about
22 everyone in the room has forgotten.
23 We heard about that little year in
24 South Africa where he was making burgers and
25 making broiled chicken. He really was trained
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2 for a little less than a year, and of fantan,
3 check the reports, check Agent Perkin's FBI
4 report. He admitted he was trained for nine to
5 ten months. And he told you Khamis Mohamed
6 told you through Agent Perkin's that he was
7 trained in light weapons, handguns and rifles.
8 He was trained in surface to air missiles and
9 rocket launchers. That's what he was doing in
10 Afghanistan. He wasn't running to get fanta.
11 He was getting trained on how to kill people.
12 Then he received advanced training.
13 He went for advanced training in how to wire a
14 bomb, advanced training in detonators. He was
15 not trained in how to make the bomb. So when
16 he had this image of Khamis Mohamed sitting
17 there in Dar es Salaam he knew how to kill, he
18 knew weapons, he knew how bombs worked. And
19 what did he do after nine to ten months of
20 training in Afghanistan? You heard he later
21 went to Somalia. This is long after the
22 Americans are gone. This is 1997.
23 He went to Mombasa. He went to
24 Somalia and he went through Mombasa and
25 Somalia. That's when he met the Hussein
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2 fellow, Ustafa Fadl told you heard about at the
3 guilt phase. That's when you heard about
4 Mohammed Odeh. What did he admit to Agent
5 Perkins he did there? I was a trainer. He
6 wasn't getting trained in Somalia. He was
7 training other people. He said it was possibly
8 with Al Quaeda the group you heard about at the
9 guilt phrase. He sold guns. He sold rifles.
10 He sold rocket launchers. He sold surface to
11 air missiles. That's Khamis Mohamed. He's not
12 on the island of Pemba. He's in Afghanistan
13 and in Somalia being trained and training.
14 Let's talk about the bombing. What
15 happened with the bombing? He made a choice,
16 Hussein, the Hussein we hear about was a
17 phantom. Hussein came to him and asked him to
18 do a jihad job, and it was not asked because he
19 said if you don't do it you have to keep it a
20 secret that I asked you. He gave him a choice.
21 He had free will. He could decide to do the
22 jihad job or not. He's not brainwashed. But
23 he didn't equivocate. No moral struggle. He
24 did it. And what did he do as part of the
25 plot? He did a variety of things. He rented a
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2 house, the second house let's talk about, and
3 he brought the Suzuki, the Suzuki that was used
4 to transport things.
5 Well, we heard a lot about, well, you
6 know, he rented a house in his true name. How
7 much of a jihad guy is he? That was his role.
8 He was the local guy. He knew the people in
9 Tanzania. He can't walk up and say, let me
10 rent this house an let me use the name John
11 Smith. That would be suspicious. Let me buy
12 the Suzuki and use a fake name. That would be
13 suspicious.
14 What he's got to do is he's a local
15 guy to make sure things get done, to get things
16 rented, to get things bought and then the smart
17 jihad guy has to get them documents and get out
18 of town, which is exactly what he did. Besides
19 renting the house, besides getting the Suzuki,
20 he ground the TNT.
21 Now, let's talk about that. First of
22 all, you'll hear, sure, it's low-level work
23 that also important people did Abu Rahman the
24 guy who wired the bomb in Nairobi, the guy who
25 wired the bomb in Dar es Salam, Abdul Rahman,
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2 and that defendant were grinding the TNT. You
3 could almost forget because in abstract reality
4 in the courtroom sometimes because you're not
5 there watching what that means. You saw the
6 grinder. The TNT is in clumps. Somebody
7 sitting there grinding, grinding a bomb. He
8 knows it's to kill people. That's what a bomb
9 is for. And he's grinding and grinding away.
10 Abdel Rahman and Khamis Mohamed grinding away a
11 mixture of death.
12 What did he tell you? He told you
13 through Agent Perkin's that he knew what the
14 target was. Five days before the bombing he's
15 told the target is the American Embassy in
16 Tanzania. No moral struggle, no hesitation.
17 He continues. He knows they're bombing a
18 building an American building in Tanzania and
19 people will die.
20 He told you no one was fooled. He
21 knew what is going on. He was in the camps.
22 He's trained in wiring bombs. He watched them.
23 He described how the truck was loaded, cylinder
24 bomb parts, cylinder bomb part, this is to hold
25 the cylinders. He watches it get wired right
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2 up to the dashboard so Ahmed can press the
3 button. He does what he can. He stays behind
4 because he is the local guy who can get things
5 done.
6 They leave. They need a bomber and
7 they supplied someone to make sure the truck
8 gets to the embassy, and he does that. When
9 the truck is stuck in the sand and they get it
10 out of the sand, they're still worried, well,
11 we can't have people get stuck in the sand
12 again. He arranges to have a tow truck driver
13 on Uhuru Road in case there is a problem.
14 And then after the truck goes on its
15 mission of death to where it's going to kill
16 eleven people and injure dozens of others, what
17 does he do? He goes back home and he prays,
18 and he's listening for the sounds of the bomb.
19 It is unlike what he told Dr. Post
20 five weeks back, he knew it wasn't a bomb in
21 Somalia which he wouldn't hear. He knew it was
22 a bomb in Tanzania, and he waited for the
23 sound. When he heard the sound, the explosion
24 he couldn't hear it, he turned on the TV and
25 saw the building had been bombed.
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2 Let me display Government Exhibit
3 3,000. That's the fellow countrymen, a hard
4 working Tanzania man, working to put food on
5 the table to support his family, being carried
6 out to die. And when he hears from the TV that
7 the bomb went off and people are dead, he's
8 happy. Then he turns to bring his own nephew
9 uses his own nephew to get rid of things and
10 sends a grinder off to the islands, buries the
11 rest of the stuff in the pit in the backyard.
12 We hear a lot about, gee, that proves
13 he's a nice guy that he brought his nephew in
14 to get rid of the some of the bomb stuff from
15 the bomb factory, and he sent his family, first
16 he cleaned, and he told him to clean the bottom
17 line in that grinder in the family home in
18 Zanzibar in the island is not going to get him
19 caught.
20 To get there you have to figure out
21 where the bomb is in that house at 213 Ilala,
22 who did it. By the time they get to their
23 family's house they have long figured out, what
24 he did was he lied to his family and told them
25 he was going somewhere else.
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2 He took the identity card and went to
3 South Africa. He went to South Africa and
4 claimed political asylum, lied to the South
5 Africans that he's got to be protected from
6 other people. Certainly didn't tell them, I
7 just murdered eleven people in cold blood and
8 didn't care about them. Instead, went down
9 there seeking their protection.
10 You know what else? Before he left,
11 before the others left they gave Khamis Mohamed
12 three telephone numbers. Two were in Yemen,
13 and one was in Pakistan. We heard a lot about
14 Khamis Mohamed supposed to be expendable. But
15 remember, Al-'Owahli was expendable. He was
16 supposed to die, but did not. Azzam was
17 expendable. He did die, the driver of the
18 truck in Nairobi. Ahmed the German was
19 expendable. He did die in the truck in
20 Tanzania.
21 But they left numbers for him. They
22 gave him the same thousand dollars Odeh got.
23 He got his own passport like Odeh did, and they
24 gave him these numbers.
25 But did they care about him, they
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2 gave him three numbers he couldn't check.
3 Maybe they were to a toll booth on the Jersey
4 Turnpike. Well, you know in fact that the
5 numbers were real. One of the numbers in Yemen
6 was the number 415923. If you look up Yemen,
7 the phone number 4159123, and you want to
8 figure out, gee, is that a jihad number? Is
9 that a real contact? Look at Bin Laden
10 satellite telephone number. Remember that
11 number we used to hold up on the board?
12 Look at the bill for Bin Laden's
13 satellite phone called that number thirty-four
14 times in the phone records. There is another
15 record, another number he was given in Yemen
16 219036 for Abu Rahman that shows up was in
17 London. Yemen 219036, you can see at the third
18 entry Abu Rahman Ben Mohammed Alyafad. 219036.
19 It shows up in Wadih El Hage's pop up phone
20 book. That same number, 219036 in Yemen.
21 They gave him contacts. He admitted
22 he used it and called once in Yemen and spoke
23 to Abu Rahman, but his phone card ran out so he
24 didn't have a longer conversation. I submit to
25 you he was given contacts and money and told to
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2 escape to live to fight another day. Sadly he
3 did, because he fought another day and Officer
4 Pepe will pay for that the rest of his life.
5 He also took those numbers and he
6 wrote them backwards in a piece of paper not to
7 preserve them, but to hide them. Writing the
8 digits backwards. That's Khamis.
9 You heard how sad he was when someone
10 maybe asked him to go get a fanta, but that's
11 not what this case is about. He made a choice.
12 He chose to go to Afghanistan and train. He
13 chose to go to Somalia to train. It was he who
14 wanted to do a jihad job or not, and he was not
15 brain washed. The difference between Khamis
16 and a lot of others is Khamis does not have
17 fire in his eyes. What he has is ice in his
18 veins, and that's what makes him more dangerous
19 because he coldly coolly decides I'll kill, I
20 won't look back, I'll go, be nice to people in
21 South Africa and I'll come to America. When
22 the chance is given to attack Officer Pepe,
23 he's in there.
24 Cold, cool, zero remorse. And where
25 do you see that? In October of 1999 in South
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2 Africa. There he is in South Africa and he is
3 finally caught. We hear from other people that
4 October 1999 how he wouldn't hurt an ant, but
5 when he's caught, what does he tell the FBI?
6 Yeah, I did it. Not because he's sorry, not
7 because he cares that eleven countrymen, his
8 own countrymen are killed, fellow Tanzanians,
9 fellow Muslims, not because he cares about
10 their family, okay, and recognize it. He's
11 putting his family through a lot, but those are
12 his choices. His choice on August 7th, his
13 choice on October 1999, his choice in November
14 2000. He didn't give a damn about the people
15 he killed or their families. And he told the
16 FBI on these days after having a year to
17 reflect that he read very little about the
18 bombing. He wanted to know what happened.
19 Can you imagine anyone murdering
20 eleven people and not bothering to look what
21 happened? And what he said was: He wanted to
22 kill Americans. The soldiers were such a hard
23 target, so they went after embassies. The
24 bombings were a success because they tied up
25 investigators. He was not sorry that
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2 Tanzanians were killed. You saw those victims.
3 Hard working people, guards, just trying to put
4 food on the table and he didn't care. He said
5 if he hadn't been caught he would have
6 continued to kill Americans and hope that
7 others would carry on and he would carry on if
8 he could.
9 That brings us to the assault.
10 Remember one thing in this case that if there
11 is one person you heard about in this trial, in
12 fact, there is only one person on this entire
13 planet who participated both in the bombings of
14 August 7, 1998 is Khamis did in Tanzania, and
15 in that assault in November 1, 2000 on Officer
16 Pepe. Here is the man who's caught for one
17 terrorist act and engages in another while
18 awaiting a trial while awaiting a chance for
19 justice. Let's talk about the assault.
20 When you look at the assault I ask
21 you to focus on five different areas. First,
22 focus on the preparation, the chronology, the
23 days before the attack. Second, focus on the
24 location where the attack, the maiming, took
25 place. Third, focus on the conduct of fighting
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2 the officers when they respond to the attack
3 because it tells you several things we'll go
4 through. Fourth, focus on what Officer Pepe
5 told you through three different witnesses
6 about the fact that it wasn't a them who he was
7 fighting. Finally, look at the forensics with
8 the blood, what the evidence, what the DNA
9 shows you.
10 Make no mistake about it. Salim was
11 a prime mover in the attack. Salim was angry.
12 He was upset. Now he's playing crazy. He's
13 pulling a Klinger saying, how he's nuts, he
14 wasn't responsible. He's a prime mover. But
15 make no mistake about it, this man was in it
16 with him. And we'll walk through the proof.
17 Let's start with the ten days prior
18 to the assault. You know some things happened.
19 You heard about Salim complaining about his
20 attorneys. You heard about him trying to get a
21 severance. He wasn't charged in the bombing,
22 didn't like the result. There are things going
23 on. You've also heard a lot about Ali Mohammed
24 which you may recall last week when you heard
25 him, plead guilty, and you have the transcript,
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2 he pled guilty to all the charges naming him.
3 It was in open court, when he walked in and
4 said: I'm guilty in a straightforward way.
5 When he pled guilty the date was October 20,
6 2000, ten days before the attack. Six people
7 awaiting trial, this trial in this courtroom.
8 Ali Mohammed pleads guilty. Don't you think
9 that hit the other five hard? Don't you think
10 they'd be talking about that in the period
11 October 20th to November 1st. Move forward
12 five days.
13 October 25th, cell rotation. Salim
14 is brought from another cell to cell number 6
15 then October 25th. Khamis Mohamed is brought
16 to another cell, to cell number 6 on October
17 25th. The people in cell 6 are moved out.
18 Their belongings are taken away. Salim and
19 Khamis Mohamed are brought in. No shanks. The
20 Afro comb turned into a bayonet stuck into
21 Pepe's eye and brain. The hair brush turned
22 into a jabbing knife. You can feel it through
23 the plastic. It still has a sharp edge. Those
24 were made. You can't bring a shank with you to
25 the new cell. Those shanks were made between
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2 October 25th and November 1st. And you know
3 what? Look at the picture, look at the
4 picture, Government Exhibit 4039 which is a
5 picture of what's underneath that concrete desk
6 in the 10 South unit and remember one of the
7 things you'll see is the construction up in the
8 ten south unit, a lot of it is awful light,
9 that supersecure prison you heard about in
10 Florida, stainless steel showers, concrete
11 desks, things like that.
12 Agent Hatton told you Government
13 Exhibit 3049 is the markings of something going
14 back and forth underneath the concrete desk.
15 It's Salim and Khamis Mohamed at work making
16 weapons on October 25th and November 1st.
17 You'll hear about the cell rotation
18 the log, the activity log in the period of
19 October 25 and November 1, and you'll see that
20 sometimes Salim was out of his cell, sometimes
21 Khamis Mohamed was out of his cell. And I'll
22 do some rough math and you can check it
23 yourself, but it's 168 hours between the
24 morning of October 25th and the morning of
25 November 1st, Khamis Mohamed was out of his
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2 cell about seven hours in that time. Salim was
3 out of his cell about nine and a half, roughly
4 nine and a half ten hours during that time.
5 They were out at the same time in different
6 rooms for about two and a half hours. So they
7 were apart for about 14 hours. They're
8 together for 154 hours.
9 And think about Mr. Ruhnke's opening
10 about being stuck in a Holiday Inn room with
11 nothing to do for the rest of your life. Well,
12 think about being stuck in a smaller Holiday
13 Inn room with a cellmate. Think about being
14 stuck in that room when you're angry, and Salim
15 didn't hesitate to share his feelings with
16 anyone, about how he was feeling.
17 Think about being stuck in a room
18 when someone just plead guilty, and think about
19 Khamis being stuck in the room with someone who
20 is an authority figure an educated religious
21 person, and from what we've heard that's what
22 Khamis listens to, if you're educated and
23 you're religious, he follows you. That's the
24 two of them, October 25th to November 1st,
25 spending their time in a cell together, shanks
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2 being made.
3 Something you haven't seen yet. If
4 you look at Government Exhibit 4020 which is a
5 photograph, there is a stipulation you heard
6 that Khamis Mohamed had glasses. Those are his
7 glasses. That is his bed. That is bed number
8 one. On this big chart here you saw that bed
9 number one is here. Bed number two is on the
10 wall. Khamis' glasses are in bed number one.
11 Why is that important? Because you later heard
12 that there is a brush by bed number two.
13 Government Exhibit 4036. 4036 is a picture of
14 the brush in Salim's bed. Why is that
15 important?
16 Well, in the year 2000 the defendant
17 Khamis Mohamed brought two brushes, I believe
18 the record shows April and May, and Salim
19 brought a brush in August of 2000. That's
20 Salim's brush. The agents who searched ten
21 south and cell 6 say that's the only brush they
22 found other than this one. This is Khamis
23 Mohamed's brush turned into a weapon. This is
24 Khamis Mohamed's brush. And we'll show you
25 later it was stuck in Pepe's head, because
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2 there is blood on it. There was blood on it.
3 There was a picture of it and the blood is
4 determined by the DNA person to be Officer
5 Pepe's blood.
6 There are two weapons that attacked
7 Officer Pepe, one Afro comb to be clear is
8 bought by Salim; the brush we submit to your
9 common sense tells you was Khamis, unless of
10 course we think Salim was secretly making a
11 weapon hiding it from Khamis Mohamed, using
12 Khamis' own brush. He uses his brush everyday.
13 Khamis had longer hair back then. You probably
14 saw the Otisville video. He had longer hair.
15 There was a saran wrap rope hidden
16 underneath the prayer rug on Khamis Mohamed's
17 bed number one, and you saw a picture of how
18 the saran wrap was used around the shoes, but I
19 submit to you the ones that were hidden around
20 the shoes were short ones, and we'll show the
21 picture later.
22 The rope in his bed was different.
23 It was an area there is to put something in,
24 and there is a long string. This is not to tie
25 your shoes together. You can take this rope.
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2 It is strong. There were sheets, strips of
3 sheets, nine stips of sheets found in that
4 cell, cell number 6, ripped into strips of
5 cloth. And you saw, and let's just put this up
6 for a moment, you saw when they searched it
7 later, two of those strips had blood on them,
8 Officer Pepe's blood.
9 These items, 4082, Pepe's blood was
10 found on those strips. Mr. Ruhnke told you
11 that it was to Khamis' everlasting bad fortune
12 they were put together. I submit to you it was
13 to Officer Pepe's. The preparation notes, and
14 we'll agree, assume Salim wrote the preparation
15 notes. There are prints on the document
16 reference to asthma. There is some
17 handwriting. The point is what is he doing
18 with his cellmate? It says here: Preparation
19 notes indicate observation that the TV may not
20 be working. They're aware that the tapes may
21 not work, but to be careful. There is
22 indications about the 46 door which is what
23 Officer Jacobs told you was the first door when
24 you come up to the sally port to get to 10
25 South. There is talk about tying one hand to
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2 the door, obviously, tying the hand of Officer
3 Pepe to the door. Talk of dividing the work of
4 the preparation, the hunting and attack, and
5 you know that's what Salim would do, divide the
6 work with preparations the hunting and attack
7 was Khamis.
8 There is talk about keeping an eye on
9 the back. What does that mean? I should have
10 left this up. If you look the stairs that's
11 always used is over here. That's where people
12 come in. But there's a back stairs and they
13 are going to take hostages up there. You don't
14 want to be surprised from behind. You don't
15 want to run out front to be exposed from
16 behind. Where is Khamis when they come up?
17 He's back by the electrical room also by that
18 box that's been tampered with.
19 There has been some indication from
20 the psychiatric report by Salim that he had
21 trouble talking to his cellmate. Well, what
22 you now know from the transcripts is Khamis
23 talks well enough to understand the proceedings
24 in English. When he was first brought here,
25 Khamis indicated his Arabic was better, and the
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2 entire statement given to Agent Perkins in
3 South Africa was in English. It wasn't through
4 an interpreter. You can see a thirty page
5 report single-spaced that makes sense. He
6 speaks English. Salim, Salim learned
7 electronic engineering in English. He's
8 explaining in English how well he knows English
9 in that other proceeding. They both speak
10 English. They both speak Arabic better. There
11 is no problem with them communicating.
12 Now, let's talk about the location.
13 What you've seen from the chronology is there
14 is a plea on October 20th. They are put
15 together on October 25th. The shanks are made
16 in the cell. Khamis doesn't have a brush when
17 they search the cell later that he bought two
18 that's clear and Salim brought the Afro comb.
19 Mr. Ruhnke said in his opening that
20 Mr. Garcia was playing fast and loose and what
21 he said is, on the day in question when I talk
22 about Mr. Garcia playing fast and loose with
23 the facts, this is what I mean: He told you
24 that Officer Pepe went back to the cell, the
25 door was opened and he was attacked. He
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2 doesn't know that to be true. And no one knows
3 that to be true. In fact, the responding
4 officers believe that Officer Pepe was attacked
5 as he was escorting Salim back to his cell.
6 Close quote.
7 So he accused Mr. Garcia of playing
8 fast and loose with the facts and led you to
9 believe the assault occurred outside cell 6. I
10 submit to you the overwhelming evidence is that
11 Officer Pepe was savagely attacked inside cell
12 6.
13 Why don't we show Government Exhibit
14 4019. These are Officer Pepe's keys. Now, the
15 keys, there are other keys to the cell door
16 which he later heard Salim had in his hands and
17 when he was apprehended that keys of Officer
18 Pepe which he was trying to use with him when
19 he's apprehended. The balance of his keys
20 which have the chits which show Officer Pepe's
21 name that's by the blue box in cell number 6.
22 His keys taken off in cell number 6. To the
23 right is an identity badge the badge being on
24 the chest of his shirt. Officer Pepe's badge
25 found in cell 6.
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2 Show 4018, 4021, for something that
3 after hearing Mr. Adler's testimony mean more
4 to you. Mr. Adler told you that after he was
5 meeting with Salim and Salim wanted to go back
6 to his cell and Adler and McAllister in the one
7 room Salim took a Redwell his files and put a
8 jump suit on top, and was holding them a
9 Redwell and a jump suit when he left the cell
10 uncuffed, escorted by Officer Pepe.
11 And he walked and talk over by the
12 other cell near where Dratel and Schmidt were
13 meeting with El Hage and that's the last he saw
14 of him. But there's Salim going back to his
15 cell with a Redwell and orange jump suit. The
16 Redwell, look at 4018 and look at 4021 got all
17 the way back to Salim's bed. The jump suit,
18 you can see the jump suit in the picture that,
19 the jump suit in pictures covered with blood,
20 Officer Pepe's blood on the jump suit is back
21 right here in cell number 6.
22 No one is going to tell anyone that
23 Salim, who by the way is 42 years old, has a
24 bad back, has asthma, is short of breath,
25 that's what we know about his condition. His
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2 picture we'll put up Government Exhibit 4121.
3 This is his picture that was taken in December
4 of 1998.
5 Now, Mr. Ruhnke had told you in his
6 opening that there is one thing you didn't know
7 about Salim, and I'll get it correct. I want
8 to quote it correctly. Quote: Something you
9 don't know about Salim is that he's a very
10 physically powerful man, a tall and strong man.
11 Well, here's Hercules in December of 1998;
12 asthma, bad back, shortness of breath and that
13 stipulation you heard about says he lost thirty
14 pounds since that photograph, and lost muscle
15 tone.
16 So on November 1, 2000, this man
17 after losing thirty pounds and muscle tone with
18 a bad back and asthma was taking on Officer
19 Pepe, an officer who weighed 250 to 260 pounds
20 and is trained in disturbance response. He
21 didn't take him on in the cell, and at the same
22 time carry back his Redwell, place it on his
23 bed and bring the jump suit in there.
24 How about the hot sauce stains,
25 government Exhibits 4016 and Government Exhibit
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2 4032? Look at those stains on the wall. There
3 are some are yellow, some are blood red. And
4 look at 4032 you can see the yellow on the side
5 of the shower, yellow on the floor of the
6 shower, and, obviously, you have Officer Pepe's
7 tie and his tie clasp in the shower. It looks
8 like someone came at Officer Pepe with this hot
9 sauce, sprayed it in his eyes, sprayed it in
10 his eyes trying to distract him so someone else
11 can attack him, and someone else came from him
12 at the side in cell 6. There is hot sauce in
13 the shower. The tie is in the shower. The ID
14 is just around the corner. The keys are in the
15 corner and the jump suit and the Redwell place
16 Salim at the back of the cell for a while;
17 awful lot like someone coming from the side,
18 the way Khamis Mohamed did when the officers
19 responded. But, certainly, Officer Pepe was
20 attacked in cell 6.
21 Look at 4023 and 4034. Look at the
22 blood, 4023, sorry, 4034. But, again, that
23 shows you some of those strips that had
24 Officers Pepe's blood found in cell 6. Look at
25 the blood in 4023. Look at the blood on the
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2 floor that large piece of the jump suit, the
3 rest of the strips and you see a bit of Saran
4 wrap rope lying on the floor.
5 That blood, you can blow up 4023 by
6 itself, that blood is Officer Pepe's blood,
7 4023. That blood, look at the pile of blood
8 there. That's Officer Pepe bleeding profusely
9 from the attack in cell 6. Of course you have
10 a camera. The camera in the cell was blocked
11 and of course the most obvious fact, where do
12 you find Officer Pepe? Where do you find
13 Officer Pepe with a shank, a bayonet sticking
14 through his eye deep into his brain? Cell 6.
15 And what does Officer Pepe tell
16 people, three different people: I fought them.
17 They were in cell 6. I submit to you when Mr.
18 Garcia told you that the attack happened in
19 cell 6, that's exactly what the evidence
20 proved. And Mr. Ruhnke told you it happened
21 outside, that was wishful thinking, because
22 when you find out that the attack happened in
23 the cell with Salim and the man who looks up to
24 him as a religious and educated figure, your
25 common sense tels you he was part of it.
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2 What happened on November 1st? Well,
3 Mr. Ruhnke opened to you and said, quote: The
4 evidence will be that Khamis Mohamed was seated
5 on the floor outside of cell number 6 and never
6 left that spot after Salim attacked Officer
7 Pepe. Close quote.
8 He has no burden to prove anything.
9 But I tell you if you stand up here and say
10 something, it's not borne out. Where is the
11 evidence that he sat on the floor and did
12 nothing? The attack happened in cell 6, and
13 you know what? His shirt has Officer Pepe's
14 blood on it. His sweat pants have Officer
15 Pepe's blood on it and the tops of his shoe has
16 Officer Pepe's blood on it. You don't get that
17 sitting outside doing nothing.
18 Now we know from Adler and McAllister
19 what happened in the morning of November 1st,
20 but think about the chronology. McAllister
21 shows up first. Adler comes later. They talk
22 to Officer Pepe. Everyone concedes world's
23 nicest guy, and he says, let me go find out if
24 Salim, your client, will see you. And he comes
25 back and tells McAllister, he's thinking about
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2 it. What does that tell you? Salim's got this
3 plan in mind to escape, to attack, to work
4 together to divide the hunt, the preparation
5 the attack, while Officer Pepe is talking to
6 Paul McAllister Salim and Khamis Mohamed are
7 back in cell 6. And what do you think they're
8 talking about?
9 And when Adler arrives, he goes back
10 to check on Salim, and sees Salim is praying,
11 and you can see the prayer rug is right down
12 there in the middle of the blood spot and he
13 says: I'll give him another ten minutes. I
14 don't want to interrupt his prayer. So Officer
15 Pepe showing kindness, trying to help a
16 defendant prepare for this trial, leaves him to
17 pray for ten minutes, goes back and talks to
18 McAllister and Salim.
19 Who's alone with Salim, Salim the man
20 who wants to prepare the attack, divide the
21 hunt, prepare the preparations, Khamis Mohamed.
22 Then he comes back and says: Salim wants to
23 use the computer. So he takes Adler and
24 McAllister and locks them in that room, and
25 while he's doing that, Khamis and Salim are
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2 together. You think he talked to the other guy
3 who filed the hair brush into a shank? You
4 think the guy who turned the Afro comb into the
5 shank, the guy with the hair brush sat and
6 talked? Of course they did.
7 Now, let's talk about the first
8 response. After this happened 15 minutes are
9 going by and they finally get the keys, Officer
10 Jenkins, Maiden, Carrino and others come
11 running down the hall. When they turn the
12 corner, they see Salim with a key, opening the
13 door to cell 6, and running into cell 6 where
14 they did not know at the time Officer Pepe was
15 there bleeding.
16 Where was Khamis? When Officer
17 Jenkins the first guy on the scene grabs what
18 has been called a shield, but it's not a
19 shield, it's a sound shield. It wasn't meant
20 as a weapon or protection. It's to cover
21 sound. Grabs that shield and runs along.
22 Khamis jumps out on the side, tries to squirt
23 hot sauce on him.
24 Stop there a moment, focusing. Where
25 is the hot sauce? Here we have to understand
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2 Khamis. We have to understand Khamis, because
3 he went to a mosque, he didn't get to Bosnia,
4 all the things, the fanta praying on his mind,
5 and we put on our microscope. Officers knowing
6 they're in deep trouble, they know Officer Pepe
7 is unaccounted for 15 minutes. They see blood.
8 He doesn't answer the phone, and they see
9 inmates on the loose. They are running through
10 that room. You saw the ADX video watching some
11 guys fight. You wouldn't want to be the one to
12 have to go out and break up that fight, and
13 that was nothing compared to the scene of
14 horrors of 10 South. They're running through,
15 and we're expecting them to remember that the
16 hot sauce on the shield, the hot sauce in this
17 way and which way it broke, and which way did
18 it go. Seconds it happened. What's more
19 important?
20 First of all, what's Khamis doing
21 outside the cell? Salim's got depo all his
22 prey locked up. Officer Pepe's locked in cell
23 6. He's the enemy. He's the hostage. Adler
24 and McAllister cleverly are locked in the other
25 room.
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2 You want the people who are against
3 you locked up. Khamis's on the loose. The two
4 people allowed to be on the loose are Salim and
5 Khamis. And what's Khamis doing with hot
6 sauce? They are not part of the attack. You
7 don't run a let me escape the cell, grab the
8 hot sauce. What's the hot sauce for? The hot
9 sauce was part of the plan. The hot sauce is
10 how they first attacked Pepe to distract him to
11 try to blind him and jump him, and then he's
12 getting ready to do exactly what he did, when
13 the next people come, grab the hot sauce spray
14 it in their eyes, try and distract them.
15 What's he doing with hot sauce? What
16 innocent reason? There is none. Would you
17 ever in the middle a blood bath reach over,
18 reach over in there, grab the hot sauce and run
19 out of the cell unless you're part of it?
20 Remember the hot sauce stains on Pepe's pants?
21 Officer Pepe's pants, and on the clothes of
22 Jenkins and Maiden and the other fellows?
23 That's the key.
24 Meanwhile, Khamis Mohamed, he
25 struggles with the various people and there is
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2 confusion about who pushed the shield, who
3 lunges at the shield, which way it breaks.
4 Okay. He's fighting with them. They conceded
5 that in the opening. They said we agree we
6 fought back against the officers. He struggled
7 with the officer, and they are trying to put a
8 cuff on him, and think about this, aren't we
9 lucky that no one else got stabbed in that
10 process?
11 Aren't we lucky that Khamis wrestling
12 around with three officers, that Salim's coming
13 back out of the cell, he could have grabbed the
14 other shank to kill someone else? That's the
15 whole point.
16 People are dangerous just from the
17 fact that in the middle of a melee where people
18 are trying to be killed you jump in and attack
19 the officers, but don't think it's limited to
20 that. On August 7, 1998 he made a choice to
21 murder people in cold blood. In October of 199
22 he says, I'll do it again.
23 And the first time someone, from an
24 officer who can still testify, who still has
25 their brain, sees him, he's attacking someone.
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2 Do you think he was peaceful in between? Do
3 you think that shank got built in the cell
4 without him? He was part of that assault.
5 And there is no way anyone can do the
6 damage to Officer Pepe on their own. Officer
7 Pepe came out and he had one cuff on his arm.
8 The camera got blocked. His tie came off. The
9 ID came off. Salim took the keys. That's what
10 he told you. Then he had the keys. Later the
11 sheets on the floor, saran wrap, two shanks,
12 and we'll talk about the other shank with Dr.
13 Koslow. The electrical box is tampered with
14 and you have to watch the back. It is not one
15 person acting on their own, and let me tell you
16 this.
17 You have to visualize for a reason
18 the force it took to stick that knife into
19 Officer Pepe's brain. Imagine a 250 to 260
20 pound trained officer, trained in disturbance
21 response. How do you take an Afro comb shaped
22 into a knife and take that and drive a piece of
23 hard plastic through the eye destroying the eye
24 and orbit, striking the bone at the back and
25 plunging it eight centimeters, two and a half
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2 inches into his brain?
3 Look at picture Government Exhibit
4 4110. That's how far in that knife got stuck
5 in Officer Pepe's brain. 250, 260 against
6 someone. If it's Salim, Salim is 155 pounds,
7 thirty pounds lighter than that. Note, lost
8 muscle tone. How much force does it take to
9 stick a bayonet through someone's eye like
10 that? Unless someone else is helping unless
11 someone's holding unless you have them pinned
12 on the ground. One man can't do it.
13 Now, let's talk about Pepe's
14 statements because you know what? We heard
15 that, gee, but for the camera we would know
16 what happened and how unfortunate for Khamis.
17 Well, the camera didn't record in fact the
18 notes show that when Salim wrote the note he
19 knew the camera wasn't recording, but had left
20 nothing to chance because if it did record you
21 would have seen the other side of the piece of
22 toilet paper but you know what, there was a man
23 in cell 6 who saw what happened. There was a
24 man in cell 6 who lived and almost died what
25 happened. There was a man in cell 6 who knew
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2 who assaulted him. Right now he can't talk.
3 But on November 1, 2000, he did. He did. He
4 told witnesses and through those witnesses told
5 you that was they who attacked him. He didn't
6 say him. They. Let's talk about those
7 witnesses.
8 Carrino, he told you from his
9 testimony that Officer Pepe said quote Lieu --
10 Lieu is probably short for lieutenant -- I gave
11 them a fight. I fought back and you know what?
12 That's true. Officer Pepe's a hero. He was 15
13 minutes up there for Officer Pepe to fight them
14 off, we're lucky there wasn't a lot more
15 damage. And he's in there fighting. You can
16 see the blood in cell number 6. And he was
17 remarkably strong to be able to walk off that
18 floor with that bayonet sticking in his eye and
19 walk down the stairs to the hospital. And he
20 told Lieutenant Carrino. I gave them a fight.
21 And what do we hear in
22 cross-examination? Previously he said the
23 words, I got them, I gave them a fight. The
24 report he said, they slipped the cuffs but I
25 gave them a fight. And in the statement to the
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2 FBI he said, they slipped the cuffs and I
3 fought back. The bottom line, it's always
4 they. It's always them.
5 There is only two people who could
6 have been them, Salim and Khamis Mohamed. I
7 submit to you through lieutenant Carrino,
8 Officer Pepe told you that this was not Salim
9 acting alone. This was not Hercules acting
10 alone sticking the bayonet into Officer Pepe's
11 eye.
12 Patel, the physician's assistant, he
13 wasn't part of the response team. He wasn't
14 part of the response team. He went up to 10
15 South. He saw Officer Pepe and then he took
16 him downstairs and what did Mr. Patel tell you?
17 Officer Pepe told him, I gave them a good
18 fight.
19 What was the cross-examination? You
20 were told it wasn't put in his medical injury
21 report. Now the injury report's in evidence
22 and when the physician assistant is writing
23 down the medical things he doesn't write, I
24 gave them a good fight. And what did he say on
25 cross-examination when he was asked that? Did
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2 you make any note of it at the time it was
3 said? Display Government Exhibit 4074. And
4 his answer was: It was around the time when he
5 was on the gurney. We were trying to start an
6 IV on him. He's in there, the physician's
7 assistant to save Officer Pepe's life. And
8 look at that picture. What you have to
9 appreciate is look at Officer Pepe's nose and
10 mouth. Get a sense of the distance there. The
11 shot where the difference between his nose and
12 his mouth is very short. Look at that gauze
13 and look at the bayonet still sticking out of
14 his eye. Remember they wrapped the gauze
15 around it to keep the bayonet still?
16 Look at that weapon sticking into his
17 eye and to his brain, and we're going to say,
18 Patel, you're making it up? Sure, you told the
19 FBI the first time you're asked in the report,
20 but you didn't stop saving his life to write it
21 down? Mr. Patel's testimony is devastating
22 because he told you it was them. It was they.
23 Elise Santilli. Take the picture
24 down. She was an officer employee at the MCC
25 out getting mail out, getting mail for inmates
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2 at the MCC. She comes back and doesn't know
3 what, she's not up on 10 south, but when she
4 gets back she finds out Officer Pepe is hurt
5 badly hurt, and has to go to the hospital and
6 she rides in that ambulance with Officer Pepe.
7 And what does she tell you?
8 Officer Pepe is remarkable because he
9 has this thing sticking in his brain where
10 Dr. Koslow tells us is the injury is cascading,
11 there is more and more damage to the brain over
12 time. So at that time that moment his brain
13 remarkably is still functioning, and how do you
14 know it's still functioning? Because he's
15 getting rushed to Bellevue and what she tells
16 us is as they are driving along, Officer Pepe's
17 saying: Where are we? Where are we? What
18 street are we at? Tell me the name of the
19 street. He knows he's in trouble. He's got
20 this thing sticking out of his eye. He wants
21 to know when is he getting there.
22 And then the paramedic says: What's
23 your date of birth? And he remembers it. He
24 knows enough to know the way to Bellevue. He
25 knows enough to ask about the streets. He
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