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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   3   ------------------------------x


   5              v.                           S(7) 98 Cr. 1023

   6   USAMA BIN LADEN, et al.,

   7                  Defendants.

   8   ------------------------------x

                                               New York,
  10     N.Y.
                                               July 2, 2001
  11                                           9:00 a.m.


                     HON. LEONARD B. SAND,
                                               District Judge
  18        United States Attorney for the
            Southern District of New York
            MICHAEL GARCIA
  20        Assistant United States Attorneys


  23        Attorneys for defendant Mohamed Rashed Daoud
            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.


   4               (Continued on next page)






















[Cryptome note: Repetition of page numbers in the original.]

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   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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   1   1721BIN2

   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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   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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   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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   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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   2     knows enough in his brain at that time to know

   3     his date of birth.

   4               What does he say?  I got them.  Now

   5     you heard when she spoke to the FBI agent as

   6     she's sitting in a hospital with everything

   7     going on, she doesn't mention that statement

   8     that day while he's in a room having a bayonet

   9     taken out of his eye while he's bleeding, while

  10     doing x-rays.

  11               I submit to you those three witnesses

  12     are the last words Officer Pepe will say that

  13     make sense.  And they tell you, they tell you

  14     that on November 1, 2000 the people who took

  15     Officer Pepe's life for what it was, was them,

  16     Salim and Khamis Mohamed.  You can't forget

  17     that.

  18               You know from the crime scene that

  19     one more thing you heard from the testimony of

  20     Adler and McAllister that after the assault

  21     when Salim was being taken away, that Adler and

  22     McAllister both saw an officer take what looked

  23     like a key and punch Salim near the eye.  And I

  24     submit to you Adler and McAllister both told

  25     you about it.  It happened.  You can see from

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   2     the forensics there is blood of Salim there.

   3     It must have happened.  Adler and McAllister

   4     are telling you the truth.

   5               I submit to you under the stress of

   6     the situation it wasn't as bad an injury as

   7     they thought because they both saw the next few

   8     days they saw him and Adler even wondered

   9     whether that was the guy who had been punched,

  10     because they saw the record.  There was a

  11     laceration in his head.  No excuse for it.

  12     None.  Should not happen.

  13               But I want to talk about a different

  14     cut you haven't heard much about and the cut

  15     you haven't heard much about is the other cut

  16     on Officer Pepe's head.  I'm going to jump

  17     ahead to Dr. Koslow.  Dr. Koslow told you that

  18     sure there was this bayonet sticking in the

  19     eye.  And the eye was destroyed and the orbit

  20     and damaging to the brain, but he also told you

  21     about another cut, a cut that went into Officer

  22     Pepe's head and inch deep to the bone.  That

  23     was up here.

  24               So whatever that bayonet did, got a

  25     bayonet in the eye there is another cut inch

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   2     deep to the bone and in fact they used that cut

   3     to start the surgery when they had to do all

   4     sorts of things to pull Officer Pepe's head to

   5     reconstruct it after they took if apart to take

   6     the knife out.

   7               And I submit to you if you look at

   8     Government Exhibit 4042, let's look at it the

   9     way it was found on the floor, Government

  10     Exhibit 4029, after the assault.  This is after

  11     the lab got it.  Look at 4029.  Look at that

  12     brush.  Look at the blood and the hole and the

  13     bristles.  You don't get blood soaked in the

  14     holes of the bristles from dropping it on the

  15     floor.  That was used on Officer Pepe.  That is

  16     how the DNA expert told you that shank, that

  17     comb had Officer Pepe's blood on it.

  18               Now, we don't know who plunged it

  19     into Officer Pepe.  There is some evidence that

  20     at some point Salim may have wielded it later

  21     against someone.  There are shanks in there.

  22     There are weapons, there is hot sauce, a lot of

  23     weapons, a lot of different tactics being used.

  24               I submit to you when you look at the

  25     forensic evidence and you look at the brush

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   2     which has Pepe's blood on it, and the bayonet,

   3     when you look at the sheet strips in the cell

   4     with Pepe's blood on it, when you look at both

   5     Khamis Mohamed's clothes and Salim's clothes,

   6     both shirts have Pepe's blood on it both sweat

   7     pants Pepe's blood on it, Khamis Mohamed's

   8     shoes has Pepe's blood on it on the top.  He

   9     didn't get that sitting outside the cell.

  10               Let me take you back to Mr. Ruhnke's

  11     opening and talking to you about Khamis Mohamed

  12     and how it is that he might have to spend the

  13     rest of his life in the Holiday Inn, what's

  14     like a Holiday Inn hotel room, except maybe

  15     it's more like a hotel bathroom.

  16               Maybe the first day it's okay, but to

  17     spend the rest of your life there how horrible

  18     would that be?  Let's look at the danger that

  19     Khamis Mohamed and Salim pose to everyone they

  20     come into contact with, not just correction

  21     officers, but staff, psychologists, people who

  22     come to visit.

  23               Let's compare even if Khamis Mohamed

  24     were sentenced to the conditions for the worst

  25     of the worst of the worst to what Officer Pepe

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   2     has.  Don't you think Officer Pepe if he could

   3     would get down on his knees and pray for what

   4     Khamis has?  Khamis with access to a law

   5     library.  Pepe, what would he do with a law

   6     library?  One of his eyes is missing.  A field

   7     of the sight removed from the other.  He

   8     can't --

   9               MR. RUHNKE:  Objection.

  10               THE COURT:  Overruled.

  11               MR. FITZGERALD:  Khamis Mohamed will

  12     have a TV.  What will Officer Pepe do with a

  13     TV?  Khamis Mohamed will have exercise an hour

  14     a day.  Officer Pepe wishes he could exercise

  15     and hour a day.  Khamis Mohamed if he goes to

  16     penitentiary will be unescorted.  If he goes to

  17     the worst of the worst of the worst, they may

  18     give him a three-man escort to try to make sure

  19     he doesn't kill or maim again.

  20               Officer Pepe will have an escort

  21     because he's partially paralyzed.  Khamis

  22     Mohamed is allowed visits.  Officer Pepe

  23     doesn't recognize the people who visit.  You

  24     heard about Khamis Mohamed's loss of human

  25     contact, Officer Pepe lost his humanity.  He

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   2     didn't lose his humanity, lost his human

   3     dignity, stolen from him by Salim and Khamis

   4     Mohamed.

   5               That's how they treated someone who

   6     is there to help them.  Sure, he's an officer

   7     guardian, but he was helping them.  He would go

   8     to Salim and let him pray and make a decision

   9     make sure he had the material to come to court

  10     to get justice.  And in a cold calculated

  11     deceitful way they led him to believe they were

  12     nice guys.

  13               They led him to believe that they

  14     were like the Nasser who worked down in Burger

  15     World.  And when he turned his back, when he

  16     trusted too much, when he made the human

  17     mistake of being human, they committed a savage

  18     act on him, tried to take him hostage, tried to

  19     take Salim's attorneys hostage.  He's paying

  20     the price, Officer Pepe, ever since.

  21               Having said that, I submit to you

  22     that what you now know about Khamis Mohamed

  23     that he made a cold choice, a free choice and

  24     unhesitating choice to murder people on August

  25     7, 1998.  He was honest in October 1999 when he

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   2     said, I did it and I'll do it again.

   3               In November 1, 2000 to the

   4     everlasting misfortune of Officer Pepe he and

   5     Salim struck again, and what's dangerous about

   6     Khamis Mohamed is that he does not have the

   7     fire in the eyes.  He has the ice in the veins,

   8     and he can play Mr. nice guy, but he sits there

   9     waiting to kill again.

  10               Now, in determining what sentence

  11     Khamis Mohamed should receive, in determining

  12     what sentence he should receive for the brutal

  13     murder, callous murder of eleven of his

  14     countrymen on August 7th, you should bear in

  15     mind that you cannot afford to give Khamis

  16     Mohamed mercy or extra justice.  He's sentenced

  17     everyone else he comes in contact with for the

  18     next fifty years to all the dangers that he

  19     presents as a trained killer who kills in cold

  20     blood with no remorse.

  21               Now in looking at the factors when

  22     you analyze the factors set forth in this case

  23     I'll talk briefly about the gateway factors.

  24               The gateway factors we can display

  25     them on the screen, there are four of them.

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   2               That the defendant intentionally

   3     killed the victim or victims of a particular

   4     capital offense charged in a respective count

   5     in the indictment.  2.  The defendant

   6     intentionally inflicted serous bodily injury as

   7     a result resulting in death of the victim the

   8     particular count you're considering.  3.  That

   9     he intentionally participated in an act

  10     contemplating that a life would be taken and

  11     the victim or the victims basically died as a

  12     result.  4.  That he intentionally participated

  13     in an act creating a grave risk of death that

  14     people would be killed and the victim died as a

  15     result.

  16               I submit to you that all four have

  17     been easily proven the same reasons you found

  18     the defendant guilty, the same reasons you

  19     found the defendant himself killed those eleven

  20     people.  He chose to do a jihad job.  He rented

  21     the premise.  He bought the vehicle.  He helped

  22     grind the TNT.  He did what it took to get the

  23     truck out of the sand and to get it to a Uhuru

  24     Road on its mission of death and he agreed to

  25     clean up afterward and get out of town.  He

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   2     killed people.  I submit to you that the

   3     gateway factors should be easily found.

   4               Let's talk more importantly about the

   5     statutory aggravating factors, because remember

   6     the gateway factors once you find one of them

   7     you do not weigh the gateway factors in making

   8     the ultimate decision.  The statutory

   9     aggravating factors are weighed in that

  10     process.  And, in fact, any one statutory

  11     aggravating factor alone could, if you found,

  12     justify a death sentence in itself.

  13               (Continued on next page)













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   2               MR. FITZGERALD:  (Continuing) Let's

   3     talk about the four statutory aggravating

   4     factors.

   5               The first is that the deaths and

   6     injuries resulting in death occurred during the

   7     commission or attempted commission of another

   8     offense; that is, for each of the counts you

   9     are looking at, when Khalfan committed that

  10     crime, was he also doing it in the course of

  11     committing other crimes.  I submit to you when

  12     you review the judge's charge, review the

  13     evidence, that is clearly done.  You will find,

  14     I submit, that factor.

  15               But you may wonder how much weight to

  16     give that particular factor.  I will tell you

  17     candidly, that factor should be given less

  18     weight.  But I'll tell you why.  That is a

  19     statute that says you know when a person

  20     commits murder, they are eligible for the death

  21     penalty, and you are trying to decide of those

  22     people who commit murder -- and there are

  23     people who deal drugs, there are people who

  24     commit murders for lots of reasons, lots of

  25     different places -- should they be selected out

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   2     as being the persons who merit or are eligible

   3     for the death penalty.

   4               And sometimes the underlying crime

   5     connected to the crime makes it seem a lot

   6     worse.  A person may kill as part of a drug

   7     deal or may kill as part of an effort to take

   8     over an airplane.  In this case, this factor

   9     doesn't jump out at you.  And you know why?

  10     Because the underlying crime is so horrible.

  11     This is mass murder.  You are in a room with

  12     someone who coldly killed 11 people.  It's hard

  13     to look at the other crimes and be wowed by it

  14     because you are numbed by the offense he

  15     committed.  Bear that in mind.

  16               The second factor is the fact that

  17     the defendant, in the commission of the

  18     offense, knowingly created a grave risk of

  19     death to one or more persons in addition to the

  20     victim.

  21               I remind you to think about Lizzy

  22     Slater.  She testified at the guilt phase of

  23     the trial.  She was the woman who was in an

  24     office and when the building blew up.  The wall

  25     fell on her.  She had to crawl out.  And when

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   2     she finally got outside, remember she saw a man

   3     with skin off, burning.  It was so horrible,

   4     she said, "I wish he would just hurry up and

   5     die."

   6               That's Pat Wagner, who was in her

   7     office when the wall got blown around behind

   8     it, and she is crawling out and she is stuck

   9     and she sees Cynthia Kimble with a piece of

  10     concrete stuck in her eye and has to rush her

  11     to the hospital, where she is bleeding next to

  12     a man face-down on a cot where the blood is

  13     flowing over the side.

  14               That's Henry Kessey, who told you

  15     that as he leaves the building, there's so much

  16     damage to his eye and so much blood, people are

  17     yelling, "Kessey is going to die.  Kessey is

  18     going to die."

  19               And you know what else it is?  It's

  20     Government Exhibit 1130.  That's the building

  21     across the street where the children's play

  22     group meets.  Fortunately, the Connolly family

  23     who had the children's play group there was out

  24     of town that week.  That's the crater from the

  25     bomb.  That's the house -- what's left of the

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   2     house where the children's play group met.

   3               The damage on August 7th in Dar es

   4     Salaam Tanzania was horrible.  11 dead, 60, 70,

   5     75 injured.  It's horrible.  It could have been

   6     worse.  It could have been the children's play

   7     group.

   8               He doesn't get credit for the fact

   9     that the Connolly family went away.  You will

  10     hear that he didn't know where the embassy was.

  11     And that's true.  And he didn't care.  He

  12     didn't give a damn.  He didn't care who was

  13     around it, who was in it, who was there.  He

  14     didn't kill before he bombed it, he didn't care

  15     afterward.  That's a grave risk of death, and

  16     that statutory aggravating factor is worth an

  17     awful lot.  It is heavily weighted, because he

  18     put all sorts of lives at risk and didn't care.

  19               The third factor, substantial

  20     planning and premeditation to cause death of

  21     one or more persons or to commit an act of

  22     terrorism.

  23               This defendant planned.  This

  24     defendant knew what was going on, knew where

  25     the target was.  He got the house.  He got the

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   2     truck.  He helped load the truck.  He made sure

   3     that the tow truck was there in case it didn't

   4     work.

   5               This factor should be given some less

   6     weight by the fact that others planned a lot

   7     more, but recognize what you are weighing here

   8     in deciding a sentence.  It is not just who

   9     else involved with these guys is worse, but is

  10     Khalfan Mohamed, from the collection of all the

  11     people who committed murder, someone who should

  12     be selected out.

  13               And this substantial planning tells

  14     you something very different.  Forgetting who

  15     did the most planning.  He planned, he

  16     premeditated, he wanted to do an act of

  17     terrorism.  This wasn't killing in the heat of

  18     passion.  This wasn't an argument.  This wasn't

  19     a fight.  This wasn't something where people

  20     got upset and lost their emotions or were

  21     disturbed for a while.  He killed in cold

  22     blood.

  23               I submit to you when you think about

  24     three, think about what it tells you about his

  25     dangerousness, what it tells you about the

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   2     evilness of his conduct.  It was preplanned to

   3     commit an act of terror, to take innocent

   4     people, blow them up to make your point.

   5               And the final statutory aggravating

   6     factor, the fact that he intentionally killed

   7     or attempted to kill more than one person in a

   8     single episode.  And again, that should jump

   9     out to you.  This is not a person who murdered

  10     one person.  He murdered 11 and could have

  11     murdered a lot more.

  12               I submit to you if you take the grave

  13     risk of death, the premeditation, and killing

  14     more than one person in an episode, those three

  15     factors together, without any non-statutories

  16     necessary, justify the death penalty in this

  17     case.

  18               But let's talk about the

  19     non-statutory aggravators, and I'll start with

  20     the second one, victim impact, since we have

  21     been discussing that.  Let's talk not just

  22     about Liz Slater, not just about Pat Wagner,

  23     but think about what Pat Wagner goes through.

  24               We heard just last week at the end of

  25     the week about how it is that someone down in

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   2     South Africa, nice person, but in denial, is

   3     upset; they miss Nassor, who used to make

   4     garlic chicken.  Compare that to Pat Wagner.

   5     She sees a woman and a child, she thinks of a

   6     miscarriage, the baby she lost, and thinks of

   7     the bombing.

   8               Think about Cynthia Kimble, her eye

   9     ruined.  And Pat Wagner told you she's in touch

  10     with her and she's sad and she's depressed.

  11     Her life is ruined by the injuries she received

  12     on the bombing that day.

  13               Think about Edward Ruthashewra and

  14     how he almost died, went to get tea and he came

  15     back and his buddy is dead, the guy who

  16     replaced him.  Think about Ruthashewra's

  17     brother, Valentyne Katunda.  He was there and

  18     he was one, one of the guards who survived.

  19               Look at the Government Exhibit 3012.

  20     That's a chart.  There are six names on the

  21     chart.  All six are guards.  The blue name is

  22     Valentyne Katunda.  He is the one who

  23     testified.  He testified because he is alive.

  24     The other names, all dead, all guards who

  25     worked to put food on their table, to support

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   2     their families, and Khalfan murdered them.

   3               Has anyone in history murdered more

   4     guards, attacked more guards?  He murders five

   5     guards on August 7th, and then we have the

   6     incident November 1st in the MCC.  Valentyne

   7     Katunda told you he's buried in the rubble,

   8     buried in the rubble for hours.

   9               And you know what?  Mtendeje,

  10     Mtendeje Mbegu.  We'll put her picture up,

  11     Government Exhibit 3030.  That's Mtendeje.

  12     Remember Henry Kessey told you she was a very

  13     nice, very happy woman, he liked to talk to her

  14     every day.  She stuck out above all the other

  15     guards.  And that's one of her two children.

  16               She was killed on August 7th, 1998

  17     when she was going in for an interview to get a

  18     better job as a secretary in the embassy,

  19     leaving her husband, bringing her papers,

  20     bringing her Koran, and saying to her husband,

  21     "Pray for me.  I want a better job."

  22               What did Valentyne Katunda tell you,

  23     where did she die?  He told you she died in the

  24     room with him.  As he said, "She was lying on

  25     my stomach." that beautiful woman, a mother, a

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   2     wife, blown to bits by Khalfan Mohamed.  She

   3     lies across the stomach of Valentyne Katunda,

   4     buried in the rubble for hours.  And he didn't

   5     give a damn.  Get rid of the grinder, get my

   6     name, go to South Africa and be a nice guy.

   7               Who else was killed?  Omari Nyumbu,

   8     Government Exhibit 3029.  That's Omari Nyumbu.

   9     That's him at his job as a security guard.  He

  10     had a wife, Asha Kambenga, who testified.  And

  11     Asha told you she had a daughter from a prior

  12     marriage, and then when this man Omari came

  13     into her life, he raised her daughter like she

  14     was his own.

  15               And then Government Exhibit 3000,

  16     this is what Khalfan did to that nice man, left

  17     Asha Kambenga, at 22 years old, without a

  18     husband, left a daughter, 4 years old, without

  19     a father.  Remember what Asha told you.  She

  20     can't send her; daughter to school.  And she

  21     said before she left, "Sometimes we don't eat."

  22     That's what she has got to live with.  That's

  23     what's left with Khalfan, who has no remorse.

  24               Government Exhibit 3023, Elisa Paul,

  25     another security guard, ironically posing very

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   2     near where he was killed, a person so brutally

   3     killed he had to be identified by body parts

   4     and DNA.  He left behind his wife Grace, his

   5     young daughter Merisiana.

   6               What does Merisiana do?  What does

   7     she have for a father?  Bear this in mind when

   8     we hear Khalfan had a rough childhood, he grew

   9     up without a father.  And that is a shame, but

  10     it's not a justification for what he did to

  11     this father.  Merisiana carries a picture of

  12     her dad to show people, this is my father.  She

  13     had a father.  She's left with plastic, glass,

  14     wood, a photograph.  She can't be sent to 

  15     school.

  16               Government Exhibit 3027 is a picture

  17     of Abbas Mwila, another guard, who left behind

  18     his wife and three children, William was one,

  19     Edna was five, and on August 7th, 1998, when

  20     Khalfan Mohamed killed him, when he killed that

  21     man, the youngest child was named Happiness,

  22     six months old.  Happiness had no father due to

  23     Khalfan Mohamed.

  24               We don't have a social history of the

  25     man in Government Exhibit 3027, but his widow

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   2     told you that there was six families living in

   3     the house.  Their home was one room.  No

   4     electricity.  No running water.  She raises the

   5     children, she raises the father-in-law, and she

   6     earns $25 a month.

   7               So when you hear about the mitigators

   8     later, about Khalfan not growing up with a

   9     golden spoon in his mouth, remember what he

  10     did, how he brutally slaughtered people, left

  11     them behind and didn't give a damn.

  12               Government Exhibit 3028, Yusufu

  13     Ndange.  He was killed.  He was a water truck

  14     driver at the embassy, and you heard from his

  15     wife, Hanuni Ndange.  And he left six children,

  16     none of whom have a job.  They ranged in

  17     various ages from 12 to 25 for the time he was

  18     killed.  None of them work.  They are left

  19     without their breadwinner.

  20               You heard about Mahundi, Mr. Mahundi,

  21     Government Exhibit 3025, another driver,

  22     another person who worked as a driver, his life

  23     taken by Khalfan Mohamed.  We have no social

  24     history of him.

  25               Government Exhibit 3031, Saidi

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   2     Rogathi, another person who worked on the water

   3     truck, killed.

   4               Just think, for each of these

   5     persons, you don't know where they were born

   6     and, some of them, where they came from, and

   7     all they struggled through in life, but all

   8     they did was work hard to put food on their

   9     table, to do their life.

  10               And one thing we have to remember

  11     here is we hear a lot about different cultures;

  12     and sure, Tanzania is a different place and

  13     they speak a different language, but let's not

  14     lose sight of something.  They are people just

  15     like us, and the bond between us are far closer

  16     than they have been described.  They are

  17     hard-working people.  They are people who love,

  18     who laugh when they can, who cry when they are

  19     hurt, who go to school, who try to get jobs,

  20     try to get education, try to raise families.

  21     And one thing they do is they know right from

  22     wrong, and let's not let this case take Khalfan

  23     Mohamed and hide behind the Muslims, hide

  24     behind the Tanzanians and not like this is

  25     something we don't all understand.

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   2               It's something none of the people

   3     around him understood.  When you heard from his

   4     family, they never would have thought he would

   5     have engaged in violence.  When you heard from

   6     the imam in South Africa, he never thought that

   7     Khalfan would engage in violence.  When you

   8     heard from the Dalvies, they thought he

   9     wouldn't hurt an ant.  That's because Khalfan

  10     has a side to him, a cold-blooded killing side

  11     that he kills, remorseless, by choice, and

  12     doesn't show it to people.  That's not a

  13     cultural thing.  That's an evil character trait

  14     of the defendant.  That's what killed those

  15     people on August 7th.  That's what happened on

  16     November 1st, 2000.

  17               And let's not try to hide behind

  18     culture or religion.  Many, many people grew up

  19     in Tanzania with a lot less.  Many people grew

  20     up in America with a lot less.  He had a loving

  21     family.  There is no abuse.  That family didn't

  22     have violence in it or drugs or alcohol abuse

  23     or other stuff.  A lot of people grow up with

  24     rough lives a lot closer to this courthouse

  25     than Tanzania.  He had a loving family and he

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   2     made a cold choice.  He decided to do what he

   3     did and kill people and have no remorse.

   4               Government Exhibit 3022, Mohamed

   5     Jelani Mohamed, a man who helped his family,

   6     who helped his village, with a wife, who had

   7     children from a prior marriage that he tried to

   8     see but obviously will never see again.

   9     Khalfan Mohamed killed him, too.

  10               And Doto Rahadhani, Government

  11     Exhibit 3032.  Remember Doto.  Doto, his twin

  12     Kulwa testified.  The two of them played

  13     together.  They actually played on a soccer

  14     team together, but they had a rough life.

  15     Their mother and father both died.  They were

  16     left with four brothers and sisters, and it was

  17     Doto who was the family breadwinner.

  18               In fact, it's not coincidence that

  19     all the people killed were the family

  20     breadwinners.  A job in the embassy is a good

  21     job.  The people who work there were the

  22     mainstays of their families and their

  23     communities.  They could earn money to help

  24     others.

  25               And Doto was raising his family,

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   2     raising his brothers and sisters, raising his

   3     twin brother.  He had a fiance, Martha.  They

   4     were going to be married in September of 1998.

   5     If Khalfan Mohamed hadn't killed him, hadn't

   6     killed Doto a month before, he would be married

   7     and he would have his plan, his plan for two

   8     children.

   9               I submit to you that the victim

  10     impact in this case, we cannot get numb to it.

  11     We cannot get numb to it because of all the

  12     death we have heard.  We cannot be numbed to it

  13     because people speak a different language, are

  14     soft-spoken, from a different country.  They

  15     were good, decent, hard-working, law-abiding

  16     people who were slaughtered.  Khalfan doesn't

  17     care, but we all should.  I submit to you that

  18     the victim impact in this case, the magnitude

  19     of the crime, what he did to people is a

  20     sufficient reason to vote for the death

  21     penalty.

  22               And you may ask yourself, well, you

  23     know what, all those people are dead.  Voting

  24     for the death penalty doesn't bring anyone

  25     back.  What does it do?  I submit to you we

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   2     have to start thinking, we can't stop looking

   3     at Khalfan saying, what can we do for him?  We

   4     can't think of the victims as water under the

   5     bridge, because that's what Khalfan wants them

   6     to be.  Khalfan, the whole point to the

   7     bombing, the whole point to the bombing is to

   8     terrify people, slaughter them, bomb them, kill

   9     them.

  10               Omari Nyumbu's daughter doesn't go to

  11     school.  She doesn't eat.  What Khalfan did

  12     with the others is unspeakable.  And at some

  13     point, at some point when you do crimes so

  14     heinous, when you kill people, when you leave

  15     them with no one to visit and no one to write

  16     mail, to be blunt, you forfeit your right to

  17     live on this earth.

  18               When you take other people's lives

  19     away to coldly, to callously, after a moral

  20     choice to do so, you have lost your right.  And

  21     then, in the process, when you are standing for

  22     justice to try to beg for mercy for what you

  23     did, if you turn and do what you did to Officer

  24     Pepe, who was part of that process, we can't

  25     afford to let him do that to anyone else.

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   2               Let's talk about the second

   3     non-statutory aggravating factor:  Future

   4     dangerousness.  This is another key factor.  I

   5     submit to you that you have to understand that

   6     this case is not about what happened to Khalfan

   7     or what Khalfan did or what Khalfan chose to

   8     do, what he happened on the world.  He went for

   9     training.  He did the bombing.  He made the

  10     threats.  He did the assault.  I submit to you

  11     there is no remorse.  Any crocodile tears he

  12     sheds are for him and not for the people he

  13     left fatherless, without meals, without

  14     educations.  He cries only for himself.

  15               I submit to you the danger he poses

  16     is precisely because there is no fire in his

  17     eyes, there is ice in his veins.  And to leave

  18     him, for ten, twenty, thirty, forty, maybe

  19     fifty years in the prison system, to have

  20     guards have to watch him, three eight-hour

  21     shifts a day, seven days a week, fifty-two

  22     weeks a year for four, five decades in a prison

  23     system, where maybe he goes to Florence ADX --

  24     and remember, when you see those pictures that

  25     Dr. Cunningham shows you of stainless steel

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   2     cells, the pictures he shows always leave out

   3     the inmate.  The danger isn't from the shower

   4     or the concrete bed, it's the person in there.

   5     And this man has proven himself to be a danger

   6     time and time again.

   7               I submit to you his future

   8     dangerousness is something you have to weigh

   9     heavily.  When you decide between a death

  10     sentence and a life sentence, clearly there is

  11     a lot to weigh on the side of a death sentence.

  12     You do not wish to impose a death sentence

  13     inappropriately.  Of course not.  But you do

  14     not wish to impose a life sentence

  15     inappropriately when you leave the staff, the

  16     psychologists, the warden, the physician's

  17     assistants, the corrections officers, all those

  18     people to go by day after day after day.  And

  19     you learn that the people in the ADX prison,

  20     they leave, they go to penitentiaries where

  21     they can walk among thousands.  And he couldn't

  22     be trusted in the 10 South Unit up on MCC on

  23     November 1, 2000.

  24               It only takes once.  It only takes

  25     one person to be human, like Officer Pepe, one

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   2     person to lose their guard.  And Khalfan

   3     Mohamed is someone who was very good at fooling

   4     people.  The Dalvies are nice people.  They

   5     took him in.  They are in denial.  They

   6     couldn't believe he would hurt an ant.  He

   7     fooled the imam, who said, "I can spot people

   8     with two faces."  He didn't see that.  He

   9     fooled his own family and he fooled Officer

  10     Pepe.  Let's not let 50 years of people have to

  11     deal with that risk.

  12               About that, let's talk about

  13     Dr. Cunningham.  He was the psychologist who

  14     told you nothing about psychology.  You heard

  15     all about psychology degrees, but he really

  16     came to be an expert on prisons.  What a

  17     perfect defense witness on prisons he is,

  18     because he has never worked in one.

  19               When I submit to you is there is a

  20     real world out there, and Dr. Cunningham, he

  21     told you about conditions at ADX.  Let me place

  22     the comparison chart up.  Let's compare what

  23     ADX is supposed to be from the rules.  Let's

  24     compare what the MCC was supposed to be on

  25     November 1st, 2000.

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   2               MCC:  In your cell 23 hours a day;

   3     solid steel outer door -- these are from the

   4     rules that are posted in evidence -- each

   5     inmate checked every 30 minutes; before removed

   6     from cell, inmate is handcuffed through food

   7     slot, pat searched; triple escort when out of

   8     cell; recreation within the unit only; meals

   9     taken in the cell; no television; phone calls

  10     monitored; visits - no contact; non-legal mail

  11     opened, copied, analyzed.

  12               The main difference in ADX is a

  13     second outer door.  That's what it's supposed

  14     to be like in theory.  Dr. Cunningham shows you

  15     a nice picture of a cell which doesn't look all

  16     that different from an MCC cell when it's empty

  17     and clean.  That's the Internet.  Those are the

  18     rules.  That's the way it's supposed to be.

  19     And this is what Khalfan Mohamed can make it.

  20               You are sentencing him in the real

  21     world.  Make that decision in the real world.

  22               The last non-statutory aggravating

  23     factors is the fact that high public officials

  24     were targeted abroad, and Khalfan knew that

  25     because he knew that the embassy was a target.

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   2     I submit to you that has been proven.  It has 

   3     been proven that it pertains to Mohamed,

   4     Khalfan Mohamed, but I submit to you that

   5     should be given less weight than the other

   6     factors.

   7               He was less involved in that

   8     decision.  You can consider it.  Don't give it

   9     great weight.  What I submit you should

  10     consider from the government's aggravating

  11     factors is the fact that he killed 11 people.

  12     And remember, we're not just comparing Khalfan

  13     Mohamed just to other people involved in the

  14     offense.  Your job is to say, does he meet the

  15     gateway factors; is he one of those persons who

  16     committed murder, who committed the gateway

  17     factors, which, I submit, is obvious, that

  18     makes him eligible for the death penalty and

  19     then say is he one of the persons who should

  20     receive it?

  21               And what makes him stand out from the

  22     rest of the people who commit murder is the

  23     people who do it in drug dealing in the Bronx

  24     or Texas or anywhere else, he's a mass

  25     murderer.  Factor in he killed 11 people.  He

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   2     wanted to kill more.  He created a grave risk

   3     of death and the victim impact he imposed on

   4     people was devastating.  Factor in the future

   5     dangerousness, the threat he poses, unlike

   6     other people, he has proven himself to be a

   7     danger within confinement, and he is

   8     remorseless.

   9               Now I'll talk to you about mitigating

  10     factors.  In considering the mitigating

  11     factors, remember this is not a numbers game.

  12     It is not how many factors can you come up

  13     with.  Some of the factors offered are true,

  14     some are not.  Some are worth some weight and

  15     some are not.  And some, I submit to you, are

  16     frankly downright offensive.

  17               We'll go through them.

  18               A.  His role in the offense.  I think

  19     we have them up here.  If you focus on A,

  20     Khalfan's role in the offense and relative

  21     culpability, that is broken into three parts.

  22     He was not a leader or organizer of the

  23     conspiracy which led to the bombing of the Dar

  24     es Salaam Embassy.

  25               Second, although guilty of the

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   2     murders, his participation was minor; and,

   3     third, he was recruited by others as someone

   4     who was an expendable member of the conspiracy.

   5               Let's deal with the first.  I don't

   6     factually dispute that he was not a leader or

   7     organizer of the bombing. I submit to you that

   8     that should be given some weight, but not a

   9     lot.  I'll tell you why.

  10               Khalfan Mohamed is a follower.  He

  11     listens.  He has a choice, but he listens, and

  12     if people tell him to kill, he kills.  If

  13     people tell him to attack, he attacks.  I

  14     submit to you in many ways he is not someone

  15     lathered into a frenzy, he is not brainwashed.

  16     According to Dr. Post, he told you they weren't

  17     even talking about America and Afghanistan.  He

  18     wasn't worked up.  He wasn't brainwashed.  He

  19     could sit there and think, coldly and

  20     calculating.  And he did.  He didn't struggle

  21     morally.  He just chose to kill.

  22               I submit to you the fact that other

  23     people played a leader or organizer role is

  24     worth something, but not all that much.  When

  25     you think about the fact that none of those

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   2     leaders or organizers did what he did November

   3     1, 2000, that puts a lot in perspective.

   4     Because he not only did what he did with the

   5     bombing, but then, when here in confinement,

   6     when waiting for the trial before you, just two

   7     months before, a hundred yards away, that

   8     bayonet went into Officer Pepe's brain from

   9     Salim and Khalfan Mohamed.

  10               Secondly, his participation.  Was it

  11     relatively minor?  We'll say this.  He was a

  12     lower-level guy in the group.  He did some

  13     work, but "minor" overstates it.  It wasn't

  14     unimportant.  It was necessary.  They needed

  15     someone to get the bomb factory.  Without a

  16     bomb factory, there is no bomb.

  17               They needed the truck to make sure

  18     they could transport things -- the Suzuki.

  19     Sorry.  They needed to make sure the truck was

  20     out of the sand, and he stuck around to make

  21     sure there were no problems.  Without him, it

  22     doesn't happen.  This is not something as the

  23     world turns.  He was needed, he was necessary,

  24     he was part of it.

  25               And he was recruited by officers as

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   2     someone who was expendable.  Well, sure.  Is he

   3     as important as Harun or Saleh or Abdel Rahman?

   4     No.  But the expendable ones are the ones that

   5     are killed or left to be killed.  He was left.

   6     He was needed.  He took it on his own to clean

   7     up the bomb factory.  Read the report.  He

   8     wasn't asked to do that.  He thought that was

   9     his role -- make sure he could clean up, so

  10     people didn't find it.

  11               He chose.  He wasn't expendable.

  12     They gave him the three numbers.  They gave him

  13     the numbers to get in touch with Bin Laden's

  14     satellite phone, the number in Yemen, in Wadih

  15     El Hage's phone book, which is also in Khalid

  16     Fawwaz's phone book.  He lived to fight another

  17     day and Officer Pepe is paying the price.

  18               I submit to you it's far more

  19     important to you in factoring in the weight of

  20     this factor that Khalfan Mohamed thought with

  21     11 hard-working people in the embassy on August

  22     7th were expendable.  I submit to you it is far

  23     more important in October 1999 when he thought

  24     that people that should be killed in the future

  25     were expendable.  And I submit to you it's far

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   2     more important that on November 1, 2000 he

   3     thought Officer Pepe and anyone else they could

   4     take as a hostage, they were expendable.

   5               I submit to you he sits here today

   6     and he looks out at all the people he will come

   7     into contact with if he is sentenced to prison

   8     for the rest of his life, that to him they are

   9     expendable, and they should not be.

  10               Second, we have the factor that

  11     others of equal or greater culpability in the

  12     murders will not be sentenced to death.  Let's

  13     talk about that.  There are a variety of people

  14     who may face the death penalty or may not.  You

  15     heard, for example, there are a number of

  16     fugitives and they may be caught, they may not

  17     be.  Don't assume they will or will not face

  18     the death penalty.

  19               Some people were not involved in the

  20     murders.  You heard about Salim, the promise

  21     made to the German authorities.  But don't

  22     overlook the fact you didn't hear evidence that

  23     Salim was involved, Mamdouh Salim, for all his

  24     evilness and all he did, he was not involved in

  25     the embassy bombings.  He was not charged with

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   2     it, so the German authorities were told he will

   3     not face the death penalty.  He didn't face it

   4     anyway.

   5               Salim, an evil man, clearly a key

   6     role in the attack on Officer Pepe, you heard

   7     from Mr. Ruhnke the law does not provide the

   8     death penalty for the attack on Officer Pepe

   9     because he lived.  It was unlucky for Officer

  10     Pepe in many respects that he be so badly

  11     maimed, but for Salim and Khalfan, it was lucky

  12     that they don't face the death penalty.  That's

  13     what the law is.

  14               You have heard about others for whom

  15     there may be trouble or not to find the gateway

  16     factors that you have to find here about

  17     participating in an act.  You heard about

  18     Eidarous and Abdel Bary who received the claims

  19     of responsibility in England and whether or not

  20     that would count as a gateway factor, which

  21     doesn't matter because you will assume that

  22     England has put in the condition that do not

  23     impose the death penalty if people are sent

  24     over.

  25               You heard about people who entered

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   2     into plea agreements.  And you have seen two of

   3     them, Al-Fadl and Kherchtou.  You saw that they

   4     didn't participate in the bombing.  They didn't

   5     face the death penalty.  They don't face it

   6     now.  But I submit to you from what you have

   7     seen with those deals with those two witnesses,

   8     the government smartly entered into those deals

   9     to get information, to try and work against

  10     people trying to kill us.

  11               To the extent that people want to

  12     speculate that there are other people

  13     cooperating, I submit trust the track record.

  14     If the government enters into a deal, don't be

  15     distracted by what is happening with someone

  16     else.  Because you know what the bottom line

  17     is?  There are a lot of different things that

  18     happen when people scatter all around the world

  19     into different situations, and that's the doing

  20     of the group, the group the defendant was part

  21     of.

  22               They decided to attack America

  23     overseas.  They decided to attack it in

  24     Tanzania and Nairobi.  They decided to attack

  25     and run.  And you know what?  Khalfan was part

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   2     of that decision.  They came to Khalfan.  They

   3     said we're getting out of town.  We need

   4     someone who knows how to get the truck there.

   5     And he cleaned up the place where the bomb was

   6     built to help them get away with it.

   7               They brought terror, they brought

   8     death, and they brought anarchy into the world,

   9     and now he wants to turn around and say, hey, I

  10     shouldn't get the death penalty.  After all,

  11     look at all those people who got away, all the

  12     people who got away because he helped clean up

  13     the bomb factory, the people who got away

  14     because they could leave because he was willing

  15     to stay behind to get the job done.

  16               Why reward, why reward Khalfan

  17     Mohamed with a benefit because he chose to be a

  18     part of a larger group.  Why does someone who

  19     works on their own and sets off a bomb in New

  20     Jersey or Texas or somewhere else, why should

  21     they die and suffer the ultimate punishment

  22     when he can say, hey, I chose to be part of an

  23     international group, I chose to run away, I

  24     chose to help the others run away and we have

  25     to have it nice and neat, you have to catch

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   2     everyone before you can put me to death.

   3               He chose to create the anarchy.  He

   4     chose to help other people runaway.  I submit

   5     to you, let's stop treating terrorists

   6     different.  If you murder, if you kill, if the

   7     crime is evil, if you try and stab an officer

   8     again, you get the punishment you deserve and

   9     stop pointing at other people.

  10               What about the 11 people he killed?

  11     What justice do they have?  They weren't

  12     equally culpable.  They weren't culpable at

  13     all.  What kind of sentencing hearing did he

  14     give them?  What kind of justice or due process

  15     did he give the children, the children who

  16     don't go to school and sometimes don't eat?

  17               C.  The postarrest statement.  To

  18     argue that his postarrest statement was

  19     complete and truthful, it demonstrated

  20     acceptance of responsibility and provided the

  21     interviewing agents with information, valuable

  22     information, I submit to you, was it largely

  23     truthful?  Yes.

  24               You can have your doubts when he

  25     talks about not knowing much about Bin Laden,

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   2     not knowing much about the group, when he spent

   3     nine to ten months in Afghanistan training and

   4     he spent time with Al Ittihad, training over in

   5     Somalia, but I submit to you, what is the

   6     point?  If you are talking about whether he is

   7     being truthful, look at the moral element.

   8               Why was he being truthful?  Was he

   9     saying, I'm sorry, I did a horrible evil thing

  10     and I have had a year to think about it, a year

  11     plus in South Africa, I've had people be nice

  12     to me, I abandoned my family, but I thought

  13     back to them and I realized what I did was

  14     horribly wrong?  No.  What he told Agent

  15     Perkins and the testimony was, he said that

  16     basically because we had found him where he was

  17     in Cape Town, that we already knew everything

  18     so there was no reason for him to tell us one

  19     thing when we knew that in fact another was

  20     true.  He said it because they knew it.  And he

  21     said it to say, I'm proud of the bombing, it

  22     was a success.

  23               It tied the investigators up because

  24     it took them 14 months to find him.  And he

  25     said he would do it again.  He gets no credit

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   2     for being complete and truthful.  And you know

   3     what?  Five weeks ago he is over there telling

   4     Dr. Post, I deny the FBI report.  He wants

   5     credit for that?  Admit it because you are

   6     caught.  Don't say you're sorry, lie to your

   7     own witness afterward, and then say, no, treat

   8     me differently because I was complete and

   9     truthful.

  10               Demonstrated acceptance of

  11     responsibility?  Hi, I murdered 11 people.  I

  12     injured many.  I'm not sorry.  I'm not sorry

  13     Tanzanians died.  I'm not sorry my countrymen

  14     died.  I'm not sorry my fellow Muslims died.  I

  15     wanted Americans to die.  I hope people keep

  16     killing Americans.  That's not acceptance.

  17               What he did to Officer Pepe, part of

  18     the process to make sure that he gets a chance

  19     for a fair trial, that's not acceptance.

  20               We'll talk about Dr. Post in a

  21     moment.  That's not acceptance either.

  22               I submit to you it's offensive to put

  23     before you credit for acceptance of

  24     responsibility and truth when he threatens and

  25     attacks an officer.  I submit to you his lack

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   2     of remorse, his coldness, his feeling nothing

   3     for the victims is something that will stay

   4     with him forever.  Part of what makes him

   5     dangerous while confined.  He doesn't see

   6     anything wrong.  He has no conscience.  He will

   7     do it again.

   8               Provided the agents with valuable

   9     information:  Remember that he told them they

  10     had papers which showed him he was charged when

  11     they caught him.  It came out in

  12     cross-examination that they basically knew

  13     everything.  They had been to the bomb factory.

  14     They had seen the Suzuki truck.  They had the

  15     lease.  They had analyzed the house.  They had

  16     talked to the person who rented the house.

  17     They talked to the neighbor.  They talked to

  18     the house girl.  They talked to the juice cafe

  19     owner who knew he went to Afghanistan.  They

  20     had been to his house.  They had been to his

  21     family.  They had the explosives results.  No

  22     showing he told them anything significant they

  23     didn't know.

  24               And the judge has told you in the

  25     guilt phase the last time that statements of a

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   2     defendant after, when they were being

   3     interviewed for an arrest, were only admitted

   4     against him.  They weren't admitted against

   5     anyone else at the last trial.  They are

   6     useless against anyone else.  No showing that

   7     he helped identify anyone else involved in this

   8     plot, no showing that he identified anyone who

   9     could be arrested, no showing that that

  10     statement could ever result in someone being

  11     brought to justice.  What value?

  12               D.  Mitigating factor is that the

  13     alternative to a sentence of death is that he

  14     will spend the rest of his life in prison.  I

  15     submit to you that's true.  We don't dispute it

  16     is true.  You can check it as being proven.

  17     You have been told that by the judge, but it's

  18     worth zero weight.  In fact, it is not worth

  19     zero weight, it's worth negative weight.

  20     That's the future dangerousness.  That's the

  21     point.  If he is not sentenced to death, he

  22     will be sitting there ticking like a time bomb

  23     waiting for the next Officer Pepe to come

  24     along.

  25               E.  No prior history of criminal

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   2     behavior.  Check that as true.  It's been

   3     proven.  We agree.  Zero weight.

   4               I see, so we know about the bombing

   5     of 11 people and the maiming of and injuring of

   6     five dozen others, and before he assaulted

   7     Officer Pepe with Salim sticking a bayonet in

   8     his eye, no record of criminal history.  He's

   9     offered nine to ten months training in

  10     Afghanistan how to kill, how to make bombs, how

  11     to wire them.  No history of criminal behavior.

  12     Give it the weight it deserves.  None.

  13               F.  If he is put to death, his family

  14     will suffer grief and loss.

  15               That's a tough one to talk about, but

  16     let's be blunt.  That should be given little

  17     weight, not because anything about his family;

  18     his family, to a person, are very nice, loving

  19     people.  But he can't hide behind them here.

  20     They raised him with love.  It was a good

  21     family.  That family is not the cause of these

  22     problems.

  23               He used his family.  He used his

  24     nephew to help clean out the bomb factory and

  25     he abandoned them.  In 1998, he lied about

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   2     where he was going.  He took his identity and

   3     he headed to South Africa.  He left them so he

   4     could escape from the jihad.  And I submit to

   5     you he didn't give a damn about anyone else's

   6     family.  He didn't care about the 11 people he

   7     killed, people he left fatherless, the people

   8     he left from breadwinners.

   9               Let him come here before you and say,

  10     yeah, I killed a bunch of families, I ruined

  11     family's lives, I participated in an attack a

  12     Officer Pepe, and now feel sorry for me because

  13     of what I have done to my own family.

  14               Let's not wait for another Officer

  15     Pepe to happen.  Let's not wait again until

  16     Officer Pepe's family, well, we spared him

  17     because he's from a different culture, he had a

  18     family.  He's a danger.  We have to face that.

  19     We have to face the fact that if you give him

  20     mercy, he poses a danger.

  21               Remorseful?  Let's talk about G.

  22     Khalfan Mohamed is remorseful for the death,

  23     injuries and other consequences.  And what did

  24     we hear?  We heard from the opening from Mr.

  25     Ruhnke, "You will hear testimony from both

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   2     Dr. Post and Jill Miller that they have

   3     discussed at great length Khalfan Mohamed's

   4     view of what occurred at the embassy in Nairobi

   5     and what occurred at the embassy in Dar es

   6     Salaam, and that the experience and how the

   7     experience of hearing from the victims had not

   8     changed his beliefs, not changed his core

   9     beliefs, but it changed his view of what jihad

  10     should be and should not be, and that jihad

  11     should not involve the killing of innocents,

  12     that it was wrong.

  13               And you heard from Dr. Post.  You

  14     heard he was Yale-educated.  He has a very

  15     impressive background.  I submit to you, what

  16     was he doing here?  He came before you as an

  17     expert on terrorism.  He told you, I believe,

  18     "I continued my research in religious extremist

  19     leader Usama Bin Laden and his group al Qaeda."

  20               And you found out what his research

  21     was.  He talked to one al Qaeda member, that

  22     was Odeh, for 30 to 45 minutes; took two pages

  23     of notes; didn't ask him if he was involved in

  24     the bombing.  That didn't come up.  Didn't know

  25     Ayman al Zawahiri, the man who signs the

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   2     fatwahs and claims responsibility for the bomb;

   3     didn't know Abu Ubaidah or the two al Qaeda

   4     witnesses you heard from for days, Jamal

   5     Al-Fadl and Kherchtou.

   6               I submit if Dr. Post wanted to

   7     continue his education, he should have served

   8     as a juror.  He should have learned what you

   9     did.  You knew a lot more about al Qaeda than

  10     he did.  What was he doing here?  To give a dog

  11     and pony show, to stand up and say I'm an

  12     expert, I spent a half an hour with Odeh.  He's

  13     a low-level gofer.  Didn't bring up the phone

  14     numbers in Fawwaz's phone book or Wadih El

  15     Hage's phone book -- not suggesting he knew

  16     about it; didn't spend much time on this.

  17               He came in with a Yale degree to tell

  18     you where the defendant fit in.  I submit you

  19     don't need a Yale degree to figure that out.

  20     He also came in, more importantly, much more

  21     importantly, to dress up a tale of remorse from

  22     Khalfan Mohamed.  And what did he do?  Well,

  23     you heard, you heard the Fanta story.  You

  24     heard about the crushing blow to poor Khalfan

  25     Mohamed, sitting there, making a bomb to blow

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   2     people up and told, don't ask questions, get me

   3     a Fanta.

   4               Well, he left out an awful lot.  Let

   5     me say one other thing.  He told you about the

   6     evolution of Khalfan Mohamed.  How, yes, in

   7     October of 1999 he told the agents he did it

   8     and wasn't sorry, but now he has evolved and

   9     now I think over the time he really sees the

  10     errors of his way and feels really sorry.

  11               The evolution was Dr. Post's

  12     testimony, because what he did when he took

  13     Khalfan Mohamed, sitting here after all the

  14     evidence at the trial, after hearing about the

  15     victims, after hearing all that, denying it, I

  16     didn't do it, denied the FBI report, the U.S.

  17     Embassy, I didn't know it was a target until

  18     after the bombing.  He thought the bomb was in

  19     Somalia.

  20               I submit to you Dr. Post laughed when

  21     we said, Did you invite the government in or

  22     did you videotape?  Of course not.  Well, if he

  23     really was remorseful, if Khalfan Mohamed

  24     really was remorseful, wouldn't Dr. Post want

  25     to make a videotape of the interview to show

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   2     the victims?  Hey, I did it.  I did wrong.  I

   3     made a moral choice.  It was wrong.  You are

   4     suffering.  I care and I want to do something

   5     about it.

   6               Dr. Post was a dress-up, a dog and

   7     pony show for you.  He had a Yale degree, a

   8     nice resume, come in, tell you Khalfan is a

   9     gofer and tell you Khalfan feels bad, and he

  10     left out the facts.  He left out that Khalfan

  11     is now worse, Khalfan is less remorseful,

  12     Khalfan denies what you know he did.

  13               Dr. Post was a fraud.  That was a

  14     fraud put on you to make you think that Khalfan

  15     Mohamed was remorseful.

  16               I'll say one other thing.  Jill

  17     Miller came, and I take my hat off to her.

  18     After you were promised that she would tell you

  19     the same thing, she said something different.

  20   "Q.  There came a time when Mr. Mohamed became

  21     involved with a group of people in Dar es

  22     Salaam.  At the end of that process, the

  23     American Embassy was bombed

  24   "A.  Yes.

  25   "Q.  And have you discussed that with him?  It's

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   2     in the FBI report, correct?

   3   "A.  Yes.  I have not discussed it at great

   4     length with him.

   5   "Q.  Your role was not to discuss the offense; is

   6     that correct?

   7   "A.  That's correct."

   8               We give her credit for not doing what

   9     Dr. Post did.  She did not participate in a

  10     fraud.  She did not put before you remorse from

  11     someone who is not remorseful.  And to come

  12     into this courtroom, someone like Dr. Post, to

  13     come into this courtroom, with the seriousness

  14     of your decision and the seriousness of what

  15     hangs in the balance, and try and basically

  16     slip one past people and make it seem that

  17     Khalfan Mohamed cares, when he doesn't, is

  18     wrong.

  19               You won't be shocked if I tell you

  20     that "G" should get zero weight.

  21               H.  Sincere religious belief.  It is

  22     asserted that Khalfan Mohamed acted out of

  23     sincere religious belief.  You can check the

  24     box as proven if you want.  We suggest it was

  25     not sincere religious belief.

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   2               What weight do you give that?  Think

   3     about this.  His religious belief is not as a

   4     zealot.  He's not crazy.  There's no fire in

   5     his eyes.  You know what?  Why does he get

   6     credit for defending his religion?  He killed

   7     Muslims.  He killed Tanzanians.  There are a

   8     billion Muslims in the world.  They don't blow

   9     up buildings.  There are how many Tanzanians in

  10     the world, from humble backgrounds, who work

  11     hard and don't blow up buildings.

  12               The fact that he acted out of sincere

  13     religious belief makes it frightening, makes it

  14     frightening they still hold for those core

  15     beliefs and want to sit in one of our prisons

  16     or penitentiaries for another 50 years waiting

  17     to strike again.  He is not brainwashed.  He

  18     knows what he has a choice to do and he makes

  19     choices.  The argument that he thinks that that

  20     is what his religion compels him to do, the

  21     fact that he is in more denial now than he was

  22     before makes him all the more dangerous from

  23     here on out.  We don't want to explain to the

  24     next Officer Pepe he got shanked because he

  25     still holds to his religious beliefs.

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   2               I.  Khalfan Mohamed was 25 years old

   3     at the time of the offense.  Conceded to be

   4     true.  Check the box.  Worth nothing.  25 years

   5     is an old person, a person old enough to make

   6     mature decisions, a person to decide whether to

   7     kill or not kill, to go to Afghanistan or not

   8     go to Afghanistan, to go to Somalia or not go

   9     to Somalia, to participate in a jihad job,

  10     knowing it's a bombing of an embassy or not.

  11     Look at what he did to Happiness, who was six

  12     months old.  Look what he did at 27 to Officer

  13     Pepe.

  14               Zero weight.

  15               J.  Martyrdom.  If Khalfan Mohamed is

  16     executed, he will be seen as a martyr and his

  17     death may be exploited by others to justify

  18     future terrorist attacks.  Let's think about a

  19     couple of things.

  20               First of all, you saw today, the last

  21     exhibit you saw was a videotape.  That was

  22     Usama Bin Laden last fall, September 2000,

  23     saying, free the brothers from prison.  Free

  24     Sheik Omar Abdel Rahman, who you know is a

  25     leading figure.  And clearly we're not trying

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   2     to equate Sheik Omar Rahman and Khalfan

   3     Mohamed, but he is saying free el Sayyid

   4     Nosair, another person who engaged in terrorist

   5     acts.  He is saying free Mohamed Rashid Dauod

   6     Al-'Owhali, who obviously was a defendant at

   7     the trial, and he is in prison.  He is saying

   8     free Wali Khan Amin Shah, who is a little

   9     higher, someone else who is in jail.

  10               Usama Bin Laden is screaming to free

  11     people from jail.  Just being a prisoner is

  12     enough.  I submit to you Khalfan Mohamed, maybe

  13     his stock has risen, maybe helping to carry out

  14     a bombing, he is worth maybe more.  Maybe he

  15     assaults an officer and tries to take a hostage

  16     and still serves a life sentence, maybe he is

  17     worth more.

  18               I submit punishing someone with life

  19     imprisonment or death, no one is going to give

  20     anyone credit.  No terrorist attack is going to

  21     be stopped because someone gets a life sentence

  22     versus death.  Usama Bin Laden hates us.  There

  23     is no way around it.  Everyone in his group

  24     hates us.  They hate everything we do,

  25     everything we try to do, everything we don't

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   2     do.  This trial, in their eyes, is a fraud.

   3     Everything we do is a fraud.  We are evil.  Do

   4     you really think this is an operation that is

   5     going to be wiped off the books if Khalfan

   6     Mohamed gets a life sentence?  I submit to you

   7     not.

   8               Look at this case.  The claims of

   9     responsibility for the bombing he did in

  10     Tanzania is in the name of Salmon al Odeh and

  11     Zafra Al-'Owhali.  Not related to Al-'Owhali,

  12     not related to Odeh, two scholars in a Saudi

  13     prison.  Look at the stipulation.  Sheik Omar

  14     was convicted for trying to murder President

  15     Mubarak of Egypt because of the arrest of

  16     Mahmud Abouhalima.  Bin Laden is screaming

  17     about Al-'Owhali because of his arrest.

  18               I submit to you, look at the note,

  19     look at the hostage-taking note left on

  20     November 1, 2000.  "Please release," fill in

  21     the blank, "from custody."  If you are in jail,

  22     they want you out.  And they are going to bomb,

  23     they are going to do what they want to do to

  24     get people out of jail.  If they decide to do a

  25     bombing and name it after people, they will

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   2     fill in the blank of whomever they want.

   3               But don't let Khalfan Mohamed try to

   4     get, a terrorist, gee, give me life, maybe it

   5     will be the last bombing.  It ain't happening.

   6     His name will be on the list of 50 others names

   7     when he is in jail or whether he is executed as

   8     a reason to go forward.

   9               K.  Khalfan Mohamed should not have

  10     been released by South African authorities.

  11     Mr. Ruhnke opened on the fact that this was

  12     almost like being struck by lightening.  And

  13     again, it's sort of passive stuff.  It's like

  14     the weather.  Khalfan Mohamed blowing in the

  15     wind, struck by lightening to face the death

  16     penalty.

  17               Let's step back and think about it.

  18     It is not lightening.  Okay, the law of our

  19     country, the law of our nation is if you commit

  20     murder, certain murders, you face the death

  21     penalty.  Khalfan Mohamed committed murder 11

  22     times over.  If he faces the death penalty,

  23     it's not because he got struck by lightening,

  24     but because he killed.  He made a choice and he

  25     killed and he'll get a punishment provided by

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   2     the law.

   3               He killed in Tanzania, where there is

   4     a death penalty.  He killed Tanzanians.  He

   5     killed trying to kill Americans, and the death

   6     penalty is here.  He killed Muslims, as the

   7     imam told you in that video.  Islam makes no

   8     apologies for the death penalty.  He killed in

   9     a country with a death penalty, against a

  10     country with a death penalty, and people of a

  11     religion who have the death penalty.

  12               And then he went to South Africa,

  13     went to South Africa, which happened not to

  14     have the death penalty.  He went to South

  15     Africa, where he got caught, and two years

  16     later, the highest court decided he shouldn't

  17     have come back without a promise not to have

  18     the death penalty.

  19               What almost happened was

  20     happenstance.  He almost got a break for having

  21     run to South Africa.  Why reward him for that?

  22     Isn't he morally different?  If you are caught

  23     in New Jersey or Connecticut or Texas or

  24     California and you bomb something, you are put

  25     to death.  But to run to a country without the

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   2     death penalty, whether knowing it or not, why

   3     should that count as a break?

   4               I submit to you, don't reward

   5     terrorists.  Think about this.  If there is

   6     anything arbitrary in this case, it's the

   7     miracle of Dr. Koslow.  And Dr. Koslow is not

   8     waiting in the hospital.  If Bellevue isn't

   9     where it is, they don't make the efforts to do

  10     what they do and save Officer Pepe's life,

  11     Salim and Khalfan Mohamed would face the death

  12     penalty for that.  I submit to you K is worth

  13     zero weight.

  14               L.  L is the last mitigating factor

  15     and I submit to you the most offensive.  I

  16     submit to you to sit before you and tell you

  17     Khalfan Mohamed's personal characteristics as

  18     an individual human being include the

  19     following:  One, Khalfan Mohamed has exhibited

  20     responsible conduct in other areas of his life;

  21     two, Khalfan Mohamed has shown himself to be a

  22     person capable of kindness, friendship and

  23     generosity; and, three, Khalfan Mohamed lost

  24     his father at an early age and worked to help

  25     his family, which struggled financially after

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   2     the death of the major breadwinner.

   3               He's a bomber.  He killed people.

   4     What was his life?  The sociologist, a very

   5     good job, very straightforward.  Did you hear a

   6     story that made your hair stand on end from

   7     growing up in an abusive household?  No, he

   8     grew up in a loving family.  We're sorry his

   9     father died at a young age.  We're sorry he got

  10     partway through high school.  A lot of people

  11     get partway through high school.  We're sorry

  12     he went to a mosque.  A lot of people went to a

  13     mosque.  We're sorry he didn't go to Bosnia.  A

  14     lot of people who wanted to go to Bosnia

  15     didn't.

  16               We are sorry a lot of things

  17     happened.  He had a loving home and he chose to

  18     turn on his family, to turn on his true

  19     religion, to turn on his countrymen and to kill

  20     and to try to kill Americans.  To come before

  21     you and talk about his unique characteristics

  22     as a kind human being.

  23               A.  He has exhibited responsible

  24     conduct in other areas of his life.  Sure, he

  25     has exhibited them.  That's what fools people.

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   2     That's what fools the Dalvies.  He can be very

   3     kind.  Teach a child.  You want him to marry

   4     your daughter.  You wouldn't think he would

   5     hurt an ant.  The next day he is in custody,

   6     saying, yeah, I bombed 11 people and I'll do it

   7     again.  That's what he is.  He's got two faces.

   8     And he can exhibit responsible conduct and he

   9     may well exhibit responsible conduct in a

  10     prison until he has a chance to strike.  He

  11     fooled his family, the Dalvies, he fooled

  12     Officer Pepe.

  13               The second:  He has shown himself to

  14     be capable of kindness and generosity.  I

  15     submit to you he is capable of that.  Everyone

  16     is capable of that.  He is capable of savagery.

  17               What happened to Officer Pepe, what

  18     they did to him in that cell room in November

  19     1, 2000 was a savage act, and Officer Pepe is

  20     no longer capable of a lot of things.

  21               And finally, he lost his father at an

  22     early age.  I submit to you a lot of people

  23     lost their fathers because of him.  Don't give

  24     him credit for that.  Don't give him a break

  25     because he had a loving family, a loving

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   2     mother, brothers and sisters and chose to kill.

   3     Think of all the families without fathers.

   4     Think of the woman who married Nyumbu's wife,

   5     widowed, Asha Kambenga saying, "My daughter,

   6     sometimes she doesn't eat."  I submit to you

   7     that in the balancing --

   8               Your Honor, I'll have to do it in

   9     under ten minutes.

  10               I submit to you that in the balancing

  11     of the factors -- and I apologize for keeping

  12     you late.  Obviously this is important, and I

  13     want to say a couple of things to you.

  14               In the balancing, you should weigh

  15     the aggravating factors of killing multiple

  16     people.  Remember what you are doing.  You are

  17     saying, okay, assuming you find the gateway

  18     factors, this person is eligible for the death

  19     penalty.

  20               From the group of people who commit

  21     that type of murder, all of the groups of

  22     people, people in America who do bombings, who

  23     kill, who commit murders, who kill one person,

  24     you have to sort out does Khalfan deserve the

  25     death penalty, and in doing that you have to

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   2     separate out your own views of the law, your

   3     own personal views.

   4               Some of you may think the death

   5     penalty is a good thing.  Some of you may think

   6     it's a bad thing.  Many of you may not really

   7     be sure, not for lack of thinking.  What you

   8     have to decide is, given that it is the law of

   9     our land, given that it is the jury's role to

  10     say which of those people are so bad, that

  11     committed such a bad crime deserve the ultimate

  12     punishment, you have to vote that straight.

  13               You cannot say in that group this

  14     person really isn't the one who deserves the

  15     death penalty, but I'm for the death penalty so

  16     I'll vote for it.  That would be wrong.  You

  17     can't look and say this person, based upon what

  18     they did, deserves the death penalty, but I'm

  19     against the death penalty.  That would be

  20     wrong.

  21               You have to call it.  You have to

  22     sort out, is this person sufficiently

  23     distinguished from the others to merit the

  24     ultimate sanction.  And I say, in this case,

  25     when you look at that, think about 11 murders,

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   2     11 people killed.  Think about the fact that he

   3     planned to do more.  He wanted to do more.

   4     Think about the children's play group that

   5     wasn't there that day.  Think about Pat Wagner,

   6     walking around, afraid to see a wife and a

   7     child because she thinks back to her

   8     miscarriage.  Think Cynthia Kimble's life,

   9     ruined.  Think about Mtendeje, a beautiful

  10     woman, lying dead on Valentyne Katunda's

  11     stomach, she's buried beneath the rubble for

  12     five hours.  Think about the grave risk of

  13     death to others.  Think about the injuries, the

  14     blinding, the terror.  Think about the victim

  15     impact, all those families ruined, lost their

  16     breadwinners, lost their loved ones, lost their

  17     people.  That's who the human bond is with.

  18     Think about the future danger.

  19               Think about the danger posed by a man

  20     who was in that cell on October 25th to

  21     November 1, when his hairbrush was made into a

  22     shank, when Salim's afro comb was made into a

  23     shank, and think about what they did to Officer

  24     Pepe.  Think about the risk he poses three

  25     eight-hour shifts a day, seven days a week,

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   2     fifty-two weeks a year for five decades in the

   3     prison system.  And weigh against that someone

   4     who played a lesser role, but someone who did

   5     it with a coldness, a coldness that is more

   6     scary because you can't see zealotry in his

   7     eyes, you don't see fire in his eyes.  The ice

   8     in his veins is something you see after he is

   9     done killing people.  The ice in his veins is

  10     his masquerade as a kind, gentle human being

  11     before he kills.

  12               I submit to you the one thing about

  13     this man is he made a free choice.  He was not

  14     brainwashed.  He made his choice in August

  15     1998.  He chose to threaten in October 1999, he

  16     chose to strike on November 1, 2000, and he has

  17     no remorse.

  18               And let me talk to you about your

  19     oath and your promise and what it means, what

  20     it means in this case.  You gave an oath, made

  21     statements in voir dire that you would try and

  22     do justice.  And justice means separating out

  23     Khalfan Mohamed from the others.

  24               I submit in this case, recognizing

  25     him as someone who deserves the death penalty

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   2     for the nature and magnitude of the crime he

   3     committed, his absence of remorse and his

   4     threatening to do it again, his future danger,

   5     I submit to you that when you return your

   6     verdict, when you return your verdict, put your

   7     personal views aside and you make a decision

   8     where he fits in.

   9               I submit to you, you should strive to

  10     be a unanimous verdict, strive to be unanimous

  11     one way or the other.  This jury is the

  12     conscience of the community.  You are sending a

  13     message to the community.  Usama Bin Laden

  14     doesn't care one way or the other what you say.

  15     He will hate us.  You send a message to the

  16     community.

  17               MR. RUHNKE:  Objection, "sending a

  18     message."

  19               THE COURT:  It's argument.  Obviously

  20     it's not intended literally.

  21               MR. FITZGERALD:  What you say, if you

  22     decide that life imprisonment is a death

  23     sentence, a unanimous verdict that says, 12 to

  24     nothing, we think life is appropriate makes a

  25     statement.  A unanimous decision 12/nothing

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   2     that in light of the fact that the death

   3     penalty is on the books, this defendant

   4     deserves it says something.  We all know if

   5     there is a deadlock, life results.  That's not

   6     a unanimous statement that is the right result.

   7               I urge you all to work to respect the

   8     process and work for a unanimous verdict, to

   9     take 12 different people and try to come

  10     together and say, when we return a verdict, we

  11     speak with one voice.  We have taken the law,

  12     we have put our personal views to the side, and

  13     we have said we have to decide, does he deserve

  14     the death penalty or not, and we have come

  15     together as 12 and spoke with one voice.

  16               I submit to you think about this.

  17     Mr. Ruhnke opened to you about a firing squad

  18     and everything else in this case just happens.

  19     When he wants you to think about a firing squad

  20     and say there are no blank bullets, don't get a

  21     guilt trip for what Khalfan did.  You are not a

  22     firing squad.  You are not killers.

  23               If Khalfan Mohamed gets the death

  24     penalty, if you sentence him to the death

  25     penalty, it's because the law is there.  There

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   2     is a law of our country and he broke it.  He

   3     broke it when he chose to kill.  He broke the

   4     law when he chose to kill in cold blood.

   5               The fault for him receiving the death

   6     penalty is sitting on his shoulders, and I

   7     submit to you that when you think about the

   8     firing squad, recognize that this is the firing

   9     squad.  12 bullets.  He killed 11 people on

  10     August 7th, 1998.  Let's remember who they are.

  11     These 11 people were killed by the firing

  12     squad, that is, Khalfan Mohamed:  Mr. Abdulla,

  13     Mr. Elisha, Mr. Ndange, for whom there is no

  14     photo, Mr. Mahundi, five, six, seven, eight,

  15     nine, ten, eleven.

  16               He was that firing squad, with no

  17     jury, with no trial, with no mitigating

  18     factors.  He just killed.  And you know what?

  19     He is a bullet.  He is a bullet that ripped

  20     through these 11 people and hasn't stopped.  He

  21     is a bullet that, when is caught in South

  22     Africa and said, yeah, I killed, yeah, I'm not

  23     sorry, I don't give a damn about the people I

  24     killed and I'll strike again, and he did.

  25               When he struck again, you saw what he

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   2     did to Officer Pepe.  This was his 12th bullet.

   3     That's a man who wanted to make sure the

   4     defendants could go and meet with their lawyers

   5     for a fair trial, this trial.  And I submit to

   6     you that this man is a firing squad and a

   7     bullet, and you are 12 pieces of a shield; and

   8     only if the 12 of you all come together, the 12

   9     of you form one shield, can you stop him from

  10     killing again.

  11               And I submit to you that when you

  12     consider the magnitude of the crime, the awful

  13     crime which he did coldly and with no remorse,

  14     that a just sentence is the death penalty.  But

  15     I submit to you when you take a person, the

  16     only person on the planet who is part of the

  17     Tanzania bombing, and then participated in that

  18     heinous assault on Officer Pepe, when you take

  19     that, a death sentence is not just a just

  20     verdict, I submit to you it's the responsible

  21     verdict.

  22               Thank you.

  23               THE COURT:  Thank you, Mr.

  24     Fitzgerald.  And we'll break for lunch and

  25     we'll resume at 2:20.

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   2               (Luncheon recess)
























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   2          A F T E R N O O N    S E S S I O N

   3                       2:20 p.m.

   4               (In open court; jury present)

   5               THE COURT:  Good afternoon.

   6               Mr. Stern.

   7               MR. STERN:  Good afternoon.

   8               You are not from Khalfan Mohamed's

   9     world and he is not from yours and yet today,

  10     nearly six months after we began, you sit here

  11     to judge him, to decide his fate.

  12               We all were raised in a world of air

  13     conditioning and Corn Flakes and color TV.  He

  14     was raised in a mud hut.  He went to a school

  15     where coconut tree trunks stood in for desks.

  16     You have never smelled the wind off an Indian

  17     Ocean.  You have never heard the cry of the

  18     prayers in dusty Dar es Salaam.  But today,

  19     it's your job to decide if he should live or

  20     die.  Today you are his peers, and the only

  21     ones who matter.

  22               Although he came here from half a

  23     world away, you also cannot forget what you

  24     have in common, and that is your humanity.

  25     Like you, he loves and feels pain.  His life

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   2     experience is not yours, none of you share it.

   3     But he is closer to you than you know.

   4               Mr. Fitzgerald would have you believe

   5     that the tears you saw him shed were crocodile

   6     tears.  That means somehow that he cried for

   7     your benefit, that he wasn't really moved by

   8     his family and friends.  But you sat here and

   9     saw those weren't for your benefit.  He tried

  10     his best to hide them, but, like all of you, he

  11     feels.

  12               There are not many things I suppose

  13     that Mr. Fitzgerald and I agree on but one is

  14     this:  On August 7th of 1998 Khalfan Mohamed

  15     participated in a terrible, terrible act and

  16     eleven people lost their lives.  You found it

  17     to be true.  Khalfan Mohamed said it was true

  18     and it is true.  And for that terrible act he

  19     will pay a terrible price.  The only question

  20     that remains is what price he should pay.

  21               So let's talk for a moment about the

  22     choices you have to make.  There are only two.

  23     The Judge has told you either you will sentence

  24     him to death or you will sentence him to spend

  25     the rest of his life every single day in

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   2     prison.

   3               Let's talk about the option of death.

   4     Death in the end punishes those who remain.

   5     Maybe there is a moment of pain, maybe the fear

   6     that precedes it, but in the end it grieves

   7     family, simple people who don't know why he's

   8     here, who can't understand how he came to be

   9     involved in the things he was involved in.  He

  10     won't have any more pain, and they will.

  11               Maybe worse than that, other people

  12     will cynically exploit his death.

  13     Mr. Fitzgerald told you, well, no matter what

  14     happens, whether he's put in prison, he'll be

  15     exploited, whether he's executed, he'll be

  16     exploited, but you know from something they

  17     showed you that he's not even on the radar

  18     screen.  When Usama Bin Laden went on TV, he

  19     mentioned a lot of people, Ramzi Yosef,

  20     al-'Owhali.  Did you hear him mention Khalfan

  21     Mohamed?  He's in jail, too, just like

  22     al-'Owhali.

  23               But part of the proof of how tiny he

  24     really is, is that Usama Bin Laden's firing

  25     people up.  When he's telling people, this is

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   2     why we fight, his name doesn't come up.

   3               Now, all of you know the power of

   4     martyrdom.  It's not just an Islamic thing.

   5     All of us know the name of Joan of Arc because

   6     she was burned at the stake.  But it's not just

   7     big people who are immortalized by martyrdom.

   8     Small people, too.  You all know the name

   9     Nathan Hale:  I regret that I have but one life

  10     to give for my country.  He was just a soldier

  11     in the revolutionary war, just a Vermont

  12     soldier.  No one would know who he was, had he

  13     be held in a prisoner of war camp, but,

  14     instead, once he was executed, he became a

  15     rallying cry, a martyr, and we remember him to

  16     this day.

  17               Send him to jail and he'll quickly be

  18     forgotten by all except those who love him.

  19     Kill him, and you've guaranteed him

  20     immortality.

  21               In the end if you kill him, you'll

  22     allow him to be used twice.  Now, when I say

  23     used, don't think that I am saying he didn't

  24     know what he was doing.  Don't think I am

  25     saying he was not responsible for what he did.

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   2     He knew and he is.  That doesn't mean that

   3     people bigger than him don't use all they've

   4     learned over years and years to manipulate

   5     people, to look for people with the kind of

   6     zeal he has, with the kind of belief he has.

   7     And so they got him, and he agreed of his own

   8     free will to participate, and he was just what

   9     the doctor ordered for this operation.  He was

  10     a local man.  It would be no real loss in the

  11     end if something happened to him.  And he was

  12     there to help him speak Swahili and get cars

  13     and whatever, and so he served their purposes.

  14     If you kill him, in death he will serve their

  15     purposes again.  Don't make that kind of

  16     mistake.

  17               The other option of course is life

  18     imprisonment.  And I want to talk to you about

  19     two things that life imprisonment does to a

  20     person.  It affects you in the simplest most

  21     day-to-day ways, and in the most profound ways

  22     that we all know as human beings.

  23               For him in the most basic way he will

  24     never hear his native language spoken again.

  25     He will never eat his native food.  Now you can

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   2     say boo hoo, too bad for him, and at some level

   3     that of course is right, because there are

   4     people who have suffered much, much more.

   5               But as Mr. Fitzgerald has told you,

   6     this will go on 24 hours a day, 7 days a week,

   7     12 months a year, maybe for 50 years for him to

   8     think about what he's done to his life and

   9     everyday.  When Thanksgiving comes and everyone

  10     one else says, oh, at least we get turkey here

  11     in the joint.  At least we have that bitter

  12     sweet memory of what it was like to be together

  13     with our families, it will mean nothing to him.

  14               Think of the things that make your

  15     lives sweet.  Think of picking what restaurant

  16     to eat in, what movie to see, what clothes to

  17     wear.  Think of going to the bathroom by

  18     yourself and no one is looking at you.  That

  19     will be taken from him.  Every choice that he

  20     will make will be determined for him by someone

  21     else.  Those are simple ways, ways that he'll

  22     feel everyday for the rest of his life, but in

  23     more profound ways as well, he will be

  24     punished.

  25               When his holiday Ramadan comes, he'll

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   2     fast alone without his family.  He'll never

   3     marry.  He'll never hold his child in his arms.

   4     He'll live and die without seeing his nieces

   5     and nephews born.  And one day somehow he'll

   6     get word that his mother has died, and he will

   7     not be able to go and be in the arms of his

   8     family.  He'll be in jail and when that day

   9     comes, five, ten, 15, 20 years from now, he'll

  10     know I did this to myself.

  11               Now, all of us, all of us have had

  12     the experience of growing up and of saying to

  13     ourselves:  How did I do that?  If we're lucky,

  14     it's, how did I get a tattoo?  But for him,

  15     he's cost himself the rest of his life.

  16               Those are the options you have and no

  17     others.  And the Judge will tell you the law

  18     you must decide in following them.  But I can

  19     make it easier for you because we agree with

  20     Mr. Fitzgerald again when he says the gateway

  21     factors, you recall what they are, are proven.

  22     They were proven by your verdict in the

  23     original phase of this trial.

  24               The statutory aggravators are proven.

  25     They were proven by your initial verdict.

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   2               Then there are the three nonstatutory

   3     aggravators.  Two of them are identical to

   4     those in al-'Owhali, and only one is different

   5     and that one of course is future dangerousness,

   6     because it's the government's position that

   7     Khalfan Mohamed is one of the people who

   8     attacked Officer Louis Pepe, and it must be

   9     obvious to you that that's really the crux of

  10     this case.

  11               On November 1st a terrible, terrible

  12     thing happened.  Officer Louis Pepe, a nice

  13     person, a good man, was attacked, and for him

  14     and his family nothing will ever be the same.

  15     That's a given.

  16               The question is, is Khalfan Mohamed

  17     responsible for that attack?  And the simple

  18     answer is no, the government has not proven it.

  19     The Judge will tell you that future

  20     dangerousness, like the other aggravators, must

  21     be proven to you beyond a reasonable doubt, and

  22     you must all agree if it's to be used against

  23     Mr. Mohamed.  But the government has failed to

  24     do that.

  25               Now, Mr. Fitzgerald told you a

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   2     version of the facts and it is a plausible

   3     version of the facts, but that is not proof

   4     beyond a reasonable doubt.  So let me suggest

   5     to you another plausible version of the facts,

   6     a version supported by the evidence that you've

   7     heard.

   8               Let's say that seven days before

   9     November 1st, Khalfan Mohamed and Mamdouh Salim

  10     are put in the cell.  They are not told they

  11     are going together, but they're put in a cell

  12     together.  And Mamdouh Salim doesn't really

  13     like Khalfan Mohamed very much and can't really

  14     communicate with him very well.  Look at the

  15     stipulations from the psychiatric reports.

  16     That's what he says.

  17               And they're in the cell, but they're

  18     not always in there together.  And the cell is

  19     filled with boxes.  Agent Hatton I think told

  20     you there were 68 boxes in that cell.  You look

  21     at the pictures and you'll see at the foot of

  22     this bed the foot of that bed, next to the

  23     sink, boxes everywhere.

  24               And sometimes Khalfan Mohamed is out

  25     of that cell and while he's out of that cell,

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   2     he can't possibly know what Salim is doing, and

   3     sometimes Khalfan Mohamed is sleeping and maybe

   4     he doesn't really pay attention to what Salim

   5     is doing, and Salim goes about his business,

   6     and Khalfan Mohamed goes about his.

   7               And then one day Salim gets a visit

   8     from his lawyers, McAllister and Adler, and he

   9     goes down the hall and on his way out he tucks

  10     into his Redwell a sharpened comb, and a

  11     sharpened brush.

  12               Now, a lot was made of that brush.

  13     Where is his brush?  Do you know that the brush

  14     next to Salim's bed isn't his that he used?  Do

  15     you know if there are brushes in any of those

  16     68 boxes?  You can't know because the FBI

  17     didn't give you a record of what was in them.

  18     So don't let them tell you it must be his

  19     brush.  What you do know is that no one ever,

  20     ever says they see him with that brush.

  21               So Salim goes down the hall and he

  22     goes into one of those little interview rooms

  23     and he he's sitting with his lawyers, and he

  24     sees Officer Pepe and he's miserable, he's

  25     angry, he hates being where he is, and he says

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   2     to himself:  I've got to get out of here.

   3               And Officer Pepe comes and he says:

   4     I have to go back to my cell for a minute,

   5     Officer.  And Officer Pepe is a good human

   6     being and makes the mistake of not cuffing

   7     Salim.  And on the way back to the cell Salim

   8     pulls out that comb and he attacks Officer Pepe

   9     and plunges it into his eye.

  10               What should make you think that

  11     that's what happened?  Well, look back at what

  12     Lance Maiden tells you.  He tells you:  We saw

  13     blood at cell number 4 on our way in.  And

  14     Jenkins, Rodrick Jenkins reluctantly tells you:

  15     I concluded that Officer Pepe was attacked by

  16     Salim on the way back to his cell.

  17               One thing you know, that cell is

  18     locked, and Khalfan Mohamed is locked inside.

  19     So if there is blood in that hallway as the

  20     officers are coming up then that blood got

  21     there before Khalfan was out.  Now, he takes

  22     Officer Pepe and they say you know he's a

  23     skinny man.  This man was mujahadeen.  You

  24     remember he was one of the old ones, a guy who

  25     fought in Afghanistan for years, and years.  Do

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   2     you think he can't take care of himself?

   3               So he drags him back to the cell, and

   4     he takes those keys and he opens that cell, and

   5     what is Khalfan supposed to do?

   6               If I could see picture 4020 for a

   7     minute, please?

   8               This is Khalfan Mohamed's bed.  Take

   9     a good look at it.  You see the folded pillow

  10     and the glasses set down.  It looks like

  11     somebody was sitting there reading or writing,

  12     doesn't it?  And it looks like after they got

  13     up stuff was thrown on that bed.

  14               So Khalfan Mohamed is sitting here,

  15     minding his own business, and here comes Pepe,

  16     and here comes Salim.  What should Khalfan do?

  17     Should he stay?  Wouldn't the government have

  18     said he was guilty if he stayed?  Should he run

  19     into the front?  Wouldn't the government say

  20     he's a lookout if he ran up to the front?

  21               So Khalfan gets up and Officer Pepe

  22     is being man handled by Salim, maybe stabbed

  23     again with that hair brush, and Khalfan walks

  24     out, and the only way he can walk out is here

  25     where there's a pool of Officer Pepe's blood,

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   2     and he goes out that door, he stops right

   3     outside the cell.  What should he do?

   4               In what circumstance would the

   5     government not come here and tell you he was

   6     guilty?  Then he waits, and he waits, and you

   7     remember Rodrick Jenkins sees Salim up near the

   8     front by the pillar.  Is Khalfan with him?  No.

   9               Now the government will say about

  10     that, well, I guess he was the lookout at that

  11     back door at 10 South.  And what if he went up

  12     front, what would they say?  He and Salim were

  13     acting together.

  14               Then they see Salim going with the

  15     keys and Salim opens that door with the keys

  16     and goes back inside.  Did he say, Khalfan come

  17     with me, buddy, we're in this together?  Just

  18     leaves Khalfan there.

  19               Is what I'm telling you speculation?

  20     No more than what the government told you.  And

  21     so when you're asked yourselves, what is proof

  22     beyond a reasonable doubt, you know the answer.

  23     No one really knows what happened there, and

  24     you certainly can't kill someone on

  25     speculation.

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   2               Let's look more carefully at the

   3     evidence the government produced.  They began

   4     by calling corrections officers and one of the

   5     things in this case that's most interesting is

   6     that these corrections officers cannot or will

   7     not tell the same story.

   8               Now, the government says we attribute

   9     that to their fright or the hectic pace of

  10     things that were going on, but they want you to

  11     believe them about some things and disbelieve

  12     them about others, and some of the things they

  13     tell you cannot be true.  Let's start with

  14     Rodrick Jenkins.

  15               He tells you he sees Salim alone near

  16     the door with blood on his hands.  He's

  17     instructed the disturbance control team.  And

  18     he makes this conclusion that Pepe was attacked

  19     returning Salim to his cell.  He sees Salim

  20     entering cell number 6 and now for the first

  21     time we hear him say something that others

  22     don't agree with.

  23               He says:  We come around the corner

  24     near cell number 6, it's a blind corner.  I

  25     have the shield in front of me, and I'm

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   2     attacked, boom, out of nowhere, I'm attacked.

   3               Could be true, I guess, except that

   4     Lance Maiden doesn't see it that way Lance

   5     Maiden says, Khalfan is back up against the

   6     wall, sort of bouncing on the balls of his feet

   7     with his hands clenched.  And Lt. Carrino says,

   8     Khalfan is crouched down in a corner.  So all

   9     those things can't be true, but maybe that's

  10     just attributable to the excitement and how

  11     hectic things were.

  12               Robert Jenkins doesn't recall the

  13     shield breaking, and we know it broke.  So

  14     maybe that's attributable to how hectic things

  15     were, but he does recall something.  And if it

  16     weren't so serious I guess maybe it would be

  17     funny how it comes out, because what he recalls

  18     is that Khalfan Mohamed had blood on his hands,

  19     and here's how it comes out.

  20               He's being questioned on redirect

  21     examination by Mr. Garcia and it goes like

  22     this:

  23               Do you recall seeing blood on the

  24     inmates Mohamed's hands?

  25   "Q.  Salim?

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   2   Q.                 This defendant?

   3   A.                 Oh, I don't rec

   4   Q.                 I'm going to sh

   5            Government Exhibit marked for

   6            identification only 35164 and ask you to

   7            read the last few lines on page 1.

   8               Jenkins beginning to read:  Got a

   9     visual.

  10   Q.                 Not allowed, I'

  11            yourself?

  12   A.                 Okay.?
ot allo

  13   Q.                 Does that refre

  14            recollection as to whether or not you

  15            saw anything on Mohamed's hands?  Your

  16            recollection, not what the report says.

  17   A.                 Yes.ction, not

  18   Q.                 And what, if an

  19            recall yourself seeing on this

  20            defendant's hands?

  21   A.                 Says blood.nds?

  22   Q.                 Not what it say

  23            officer.  Your recollection, do you

  24            recall -- and I'll take the report back.

  25            Do you recall on your own whether or not

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   2            you saw anything on Mohamed's hands when

   3            you saw him in the corner?

   4   A.                 Yes, just a bot

   5            in his hand.

   6   Q.                 And do you reca

   7            withdrawn.

   8               Does this refresh your recollection

   9     as to anything else you saw on Mohamed's hands?

  10     Does this report refresh your recollection,

  11     your recollection as to anything else you saw

  12     in Mohamed's hands?

  13   A.                 Yes.ands?
to a

  14   Q.                 What was that?

  15               And he finally says:  Oh, blood.  I

  16     saw blood on his hands.

  17               Now, you'll remember that Rodrick

  18     Jenkins is a specialist on this disturbance

  19     squad and he was asked some questions about

  20     some of his training, and these are the

  21     questions he was asked by me.

  22   Q.                 One of the thin

  23            from your training that any evidence

  24            needs to be preserved, isn't that fair

  25            to say?

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   2   A.                 Yes.Summation -

   3   Q.                 And so for exam

   4            had blood on their hands you wouldn't

   5            allow them to wash their hands, would

   6            you?

   7   A.                 No.  em to wash

   8   "Q.  You wouldn't allow them to wipe if off if

   9     you could help, would you?

  10   A.                 No.p, would you

  11   Q.                 And from the ti

  12            top of Mr. Mohamed, you never let him

  13            wash his hands, did you?

  14   A.                 No.is hands, di

  15   Q.                 And you never g

  16            anything to wipe his hands off on, did

  17            you?

  18   A.                 No."  to wipe h

  19               Now he says he has blood on his

  20     hands.  He says he never wiped them off and now

  21     we have luckily an external source, a neutral

  22     source that we can examine to see if indeed he

  23     has blood on his hands.

  24               So you should watch what we're about

  25     to show you.  Take a good luck.  Take it back

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   2     with you.  Look at his hands.  You get a good

   3     luck at the palms of both his hands so when

   4     Rodrick Jenkins says:  Oh, yeah, he had blood

   5     on his hands, he's not telling you the truth.

   6               But we have another opportunity to

   7     test what he says through a neutral source

   8     because he tells you Khalfan Mohamed was

   9     squirting something at him.

  10               And he tells you it got on him, but

  11     he tells you something else.  What he was

  12     squirting at me got on a shield I was using.

  13     And you know you remember Mr. Kessner I think

  14     his name was, came here and told you about

  15     testing for capsicum and dihydrocapsicum, so

  16     that if there was something on that shield all

  17     they have to do is take the plexiglas shield,

  18     test the plexiglas shield and see if it's

  19     spattered with hot sauce.

  20               But Agent Hatton, not part of the

  21     Bureau of Prisons says:  Nothing in my record

  22     indicates that hot sauce was on any of the

  23     plexiglas items.  How could that be true?

  24               Now one thing they do is they say,

  25     well, we do have hot sauce on our clothes.

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   2     That must prove that he was squirting hot

   3     sauce.  But you know that Salim was squirting

   4     hot sauce.  So the hot sauce on their clothes

   5     doesn't prove who squirted it.

   6               They could have proven it if it was

   7     on that shield because everyone tells you he

   8     was squirting it on the shield.  Where is it?

   9     If you're being told the truth, where is the

  10     proof?

  11               There is one other amazing thing in

  12     this case, and it's something that comes up

  13     again, and again, and again.  You know that

  14     Mamdou Salim and Khalfan Mohamed were badly

  15     injured.  You have a chance if you choose to

  16     look at their medical records.  Salim had a

  17     broken jaw, and a cut on his left eye.  Khalfan

  18     Mohamed had a fractured orbit, a broken nose,

  19     multiple fractures in his orbit.  You can see

  20     if you look at that video how badly bruised he

  21     was.  But not one person comes into this

  22     courtroom and says:  I hit him.  I punched him.

  23               Now, would it be understandable if

  24     one of their own had been hurt?  You can

  25     understand them being angry.  But someone had

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   2     to tell you the truth.  Read back through every

   3     single person and see if one person sees

   4     Khalfan Mohamed getting hit?  See if one person

   5     sees Mamdouh Salim getting hit?  People are

   6     with them all the time.  People are standing

   7     with them in a front near cell number 1.

   8     People are standing with him in the hall

   9     between cells number 4 and 5.  Why is that

  10     important?  Why does that matter?  What does

  11     that have to do with anything?

  12               Well, I guess what it has to do with

  13     something in the end is that you'll find you've

  14     been deprived of one of the most important

  15     pieces of evidence and you'll have to decide

  16     for yourselves why it doesn't exist, but maybe

  17     the reason has something to do with that these

  18     officers know that they beat these guys and

  19     that they shouldn't have.  But let's see, let's

  20     see as we go on what we hear about that video.

  21               Let's go next to Officer Maiden,

  22     Lance Maiden.  He's the person who tells you

  23     there's lots of blood on the floor near cell

  24     number 4, and that's interesting, because cell

  25     number 4 is right where they take Khalfan

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   2     Mohamed's clothes off, and I suppose that they

   3     are going to say to you at some point, he has

   4     Officer Pepe's blood on his clothes.  How could

   5     that happen?  He has it on his shoes.  How

   6     could that happen?  Although I already

   7     suggested to you one way, that when Mamdou

   8     Salim drags him in, Khalfan has to go right

   9     past him to get out.

  10               But you know there's another way.

  11     They are fighting with him on the floor,

  12     there's blood all over right inside the cell,

  13     and Lance Maiden tells you there's blood all

  14     over right in cell of number 4, and that's

  15     right where they take his clothes off right

  16     where you have photographs of his clothes lying

  17     on the ground.

  18               Anyway, he sees Khalfan, and he sees

  19     Khalfan's hands, too, and there is not a

  20     mention of blood on his hands from Officer

  21     Maiden.  He contradicts Rodrick Jenkins,

  22     Officer Jenkins about what happened when they

  23     approached.  He said Khalfan stood back and

  24     they approached him.  He never sees Khalfan run

  25     at them.  But be that as it may, he also has no

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   2     idea how anyone gets here, but there is

   3     something much more interesting about Lance

   4     Maiden.

   5               You all recall seeing a videotape of

   6     someone named Joe Rementer talking about what

   7     happened.  Joe Rementer is talking about what

   8     happened within minutes of this incident.  So

   9     you should take a look at this and keep in mind

  10     that Lance Maiden is the cameraman when this

  11     video is made ten minutes after the incident.

  12     That's what Lance Maiden tells you, ten minutes

  13     after the incident.

  14               (Video played)

  15               MR. STERN:  Now, there is a lot of

  16     interesting things about that video, but the

  17     first thing to consider is this:  Officer

  18     Maiden was asked questions about that video and

  19     this is what he had to say:

  20               As this crime scene video was being

  21     made you knew that it could be evidence or

  22     could be evidence in a case at some point,

  23     right?

  24   A.                 Correct.in a ca

  25   Q.                 And so you knew

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   2            be as accurate as it could possibly be,

   3            did you not?

   4   A.                 Yes. not?

   5   Q.                 And you would n

   6            let innacuracy enter a crime scene

   7            video, would you?

   8   A.                 That's correct.

   9   Q.                 That would be a

  10            practice, would it not?

  11   A.                 That wouldn't h

  12               So what's said in that video?  What

  13     does Rementer say, with Maiden standing right

  14     there?  He says Khalfan Mohamed is crouched

  15     behind a plexiglas shield and Salim comes out

  16     spraying and he point to two bottles, and it's

  17     interesting, because his report is also in

  18     evidence, Joseph Rementer's report, and he says

  19     in there, he comes out with two bottles over

  20     his head spraying, and you know for a fact that

  21     only two bottles are found outside that cell,

  22     and you know for a fact that Khalfan Mohamed

  23     never goes back into the cell.

  24               So when they say Khalfan was spraying

  25     that sauce you begin to wonder if it could be

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   2     true, and it's not just that videotape that

   3     should make you think that, because, again,,

   4     Officer Hatton, Agent Hatton, I'm sorry, from

   5     the FBI, you remember him.  He went around

   6     collecting things and taking photographs.  Just

   7     like Officer Jenkins, Agent Hatton reached the

   8     conclusion -- go back to his testimony and read

   9     it if you like.  His conclusion was that hot

  10     sauce was sprayed from the door of cell number

  11     6.  Khalfan was never in the door of cell

  12     number 6.  He was opposite the door of cell

  13     number 6.  And when Mr. Fitzgerald was telling

  14     you his version of what had happened, he said:

  15     Oh, and, look, here's hot sauce on the wall

  16     inside.  That must have gotten there when

  17     someone squirted it at Officer Pepe, and that

  18     someone must have been Khalfan Mohamed.

  19               Well, you know, Salim locked himself

  20     in that cell and if you look there's a little

  21     puddle of hot sauce in the shower, so maybe

  22     what happened is Salim filled up those bottles

  23     and tried them out, squirting them on the wall.

  24     Oh, they work.  Then he opened that door and

  25     went after these officers.

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   2               It's all speculation, mine and his.

   3     Don't confuse that for proof beyond a

   4     reasonable doubt.

   5               They next called Glenn Carrino, and

   6     he again had what I would consider minor

   7     inconsistency, things that I suppose could be

   8     the result of the hectic activity or something,

   9     but he says I had the shield.  I had the

  10     plastic shield, not Jenkins.  He says that

  11     Khalfan stayed all the way back in the corner

  12     as far from him as he could get and they had to

  13     approach him.

  14               He then talks about a statement that

  15     Officer Pepe made, and those statements are

  16     interesting because in some ways they are the

  17     cornerstone of the government's case.  The

  18     government says, we have a witness.  That

  19     witness is Louis Pepe.  And he told you, they

  20     did it.

  21               Well, Carrino tells you about a

  22     statement and he tells you he's not 99 percent

  23     certain that that is the statement.  He says,

  24     I'm 99 percent certain.  He says, Lu, I gave em

  25     a fight.  I fought back.  And the government's

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   2     case relies on this.  Is it I gave em a fight,

   3     or did Officer Pepe in the condition he was in

   4     say, I gave them a fight?  He says I gave him a

   5     fight, I give them a fight, I gave him a fight.

   6     You think he was really saying those precise

   7     words?  You know he didn't say, Lu, I give them

   8     a fight.  I fought back, even though Carrino

   9     says he's 99 percent certain that's true,

  10     because he'd earlier said they slipped the

  11     cuffs and I fought back was the statement that

  12     was made to him, so maybe he doesn't have such

  13     a perfect memory of this statement, but the

  14     government will say to you, that word he's sure

  15     about.  He's another one who says:  Oh, the

  16     sauce was spattering on the shield.  Where?

  17     Where?  He sees no one hit.

  18               And then the most disturbing part of

  19     his testimony, because he says, I am aware of

  20     the taping system on 10 South.  I am aware of

  21     the way that system works and five months ago I

  22     made a complaint about it, because it wasn't

  23     working, and it hasn't worked since.  There's

  24     your explanation to why there is no tape.  Does

  25     that tape really matter?

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   2               Well, I guess you can't know.  Maybe

   3     it would show he was innocent.  Maybe it would

   4     show he was guilty.  Certainly it would show

   5     who covered up that camera if it showed nothing

   6     else.  But I guess the system hasn't been

   7     working for five months, then you wouldn't

   8     expect there to be a tape.

   9               So we go on to Robert Parrish.  You

  10     remember Mr. Parrish.  I think he's retired

  11     now.  And he also has a lot to say to you about

  12     the tape, but surprisingly it is a completely

  13     different story.

  14               He tells you, well, the FBI came once

  15     and I gave them a tape and that was the wrong

  16     tape.  And they came again and I gave them

  17     another tape, but that was the wrong tape.  And

  18     then after that, we just didn't have any tape.

  19     And he was asked if he told Agent Felch that

  20     the tape was a copy and he was asked if he told

  21     Agent Felch that the original tape had been

  22     copied over, and he said, you know, I've racked

  23     my brains and I just don't remember that.  But

  24     luckily Agent Felch does, and we all remember

  25     who Joseph Felch shall was.  And he says:

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   2   Q.                 Let me show you

   3            marked KKM12.  Does that refresh your

   4            recollection as to the date on which you

   5            called Mr. Parrish?

   6   A.                 Yes, November 9

   7   Q.                 And on that day

   8            conversation with Mr. Parrish about

   9            whether or not that tape was available,

  10            right?

  11   A.                 I had a convers

  12            Parrish, asking him or telling him and

  13            asking him the tapes that we had did not

  14            appear to be the tapes of the incident

  15            where Officer Pepe was assaulted.  And I

  16            was asking him if he knew what the tapes

  17            were that we had or where a tape that

  18            would show that assault might exist or

  19            if it did exist.

  20   Q.                 And Mr. Parrish

  21            he not, that he believed that the tapes

  22            started at 11 p.m. on October 31, 2000

  23            and stopped recording at 104 a.m. on

  24            November 1, 2000?  Didn't he tell you

  25            that?

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   2   A.                 That's what I r

   3   Q.                 And he then tol

   4            believes that the tape he had given to

   5            the FBI to an agent of the FBI was a

   6            copy and not the original, right?

   7   A.                 Yes, he did say

   8   Q.                 And he finally

   9            original was reused and was therefore

  10            unavailable, right?

  11   A.                 Yes."ble, right

  12               Now, this is a truly amazing turn of

  13     events because you're told by Glenn Carrino

  14     that for five months it hasn't worked.  You're

  15     told by everyone that there's no system for

  16     changing the tape, and so it's really okay that

  17     there's no tape.

  18               And then you find out that up until

  19     very early the very morning of this incident a

  20     tape was running, and then the FBI is told they

  21     don't have it, and you can look at it, there is

  22     a tape from October 31st into November 1st and

  23     it shows what's happening on 10 South.  That

  24     tape as it happens is at night, but you can

  25     look at the tape.  It's in evidence.

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   2               And incredibly what terrible luck at

   3     1:04 the tape stops functioning, no one

   4     replaces it, and they just don't have anything

   5     to show what happened that day.

   6               Now, you can say it's speculation

   7     that maybe it is just bad luck, but it's no

   8     different than what Mr. Fitzgerald asks you to

   9     do when he puts together the facts his way.

  10               It is curious at best that Carrino

  11     says it hasn't worked for five months and that

  12     Felch never mentions that the original tape was

  13     reused, and that only an outsider, I'm sorry I

  14     said the wrong person, I meant that Parrish

  15     never mentions the original tape had been

  16     reused.  It's only an outsider Agent Felch who

  17     tells you that that is what was said to him.

  18               That's half the government's whole

  19     case.  They call Officer Santulli who says that

  20     Officer Pepe tells her, I got them, and I think

  21     Mr. Fitzgerald said to you she failed to

  22     mention it when she was interviewed by the FBI.

  23     But that's really not what happened.

  24               You can have the agent's testimony

  25     read.  What really happened is he said to her:

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   2     Did he say anything to you about the incident

   3     and her answer was:  No.  And they know that's

   4     a problem, so they say, well, it was so hectic,

   5     she was so frantic she couldn't remember the

   6     answer to that question, but a few months later

   7     or a month later it came to her.

   8               But it wasn't so hectic that she knew

   9     to go to the doctors and say, give me the comb.

  10     I have to establish a chain of custody.  And

  11     her statement, too, is, make sure I get it

  12     right, I got him.

  13               Now they want you to read as, I got

  14     them.  I got them.  Therefore, it must be him

  15     and Salim.  And, finally, they offer you

  16     Mr. Patel and Mr. Patel says, too, oh, he made

  17     a statement something about them, but he does

  18     write down a statement contemporaneously

  19     notwithstanding what Mr. Fitzgerald says about

  20     how impossible it was to do that, he does write

  21     down a statement, and the statement he writes

  22     down, take a look at Officer Pepe's medical

  23     record is:  An inmate stabbed me in the eye.

  24     An inmate.

  25               So if we're so concerned about how

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   2     many people are mentioned in a statement, then

   3     factor that in, too.  An inmate, a inmate,

   4     stabbed me in the eye.  Well, that's not two.

   5               But I guess that one you should

   6     ignore, but I got 'em, you should take to mean,

   7     I got them, I got him and Salim.

   8               Now, the government might tell you

   9     that Khalfan Mohamed has ordered hot sauce and

  10     honey and that is true.  When you look at his

  11     commissary records you will see that Khamis

  12     Mohamed has a sweet tooth, and you'll see it

  13     from the day he came into MCC.  Look at all of

  14     his commissary records.  He always was ordering

  15     hot sauce and honey.  It was a regular part of

  16     what he ordered.

  17               They also want you to ignore what is

  18     powerful evidence of his innocence.  They don't

  19     mention the fact that he's never seen with

  20     Salim, that Salim ignores him entering the

  21     cell.  They say, well, sure, we know all the

  22     notes are Salim's.  We know that it's Arabic

  23     handwriting, written in the hand of a native

  24     Arabic speaker, but that's all right, we know

  25     that the note that, we are the Muslims of 10

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   2     South is so dissimilar from his writing that

   3     they didn't even submit it for analysis.

   4               We know that Salim's prints are the

   5     only ones found on these documents, but Salim

   6     must have told him.  Well, that's interesting,

   7     because if those documents were hung on the

   8     wall then even if Salim didn't tell him, he

   9     should have seen, because these documents were

  10     found in a box right next to his bed.

  11               You could say, well, they must be his

  12     or he must have known about them.  On the other

  13     hand, if they were found deep in the bottom of

  14     a box next to Salim's bed you might say:  How

  15     could he have seen?  This is a mess in here.

  16     It's a pig stye, Salim could have written these

  17     at any time.  But you don't know.

  18               The best they can tell you we know

  19     these are from cell number six.  Sorry,

  20     counsel, that's all we can tell you.  So they

  21     try to take Salim and make him, tag him along.

  22     Salim wrote nasty disgusting vicious things and

  23     they want you to attribute those things to

  24     Khalfan Mohamed.  It was Salim who was angry

  25     and upset fighting with his lawyers, going in

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   2     front of judges.  You can read when he went in

   3     front of Magistrate Eaton how he was

   4     complaining and fighting with the judge.

   5               You know from McAllister and Adler

   6     that he was angry.  He wouldn't meet with them.

   7     He finally did.  You'll see that Salim comes as

   8     close to admitting this crime as he could come,

   9     without actually doing it.

  10               He says when he's seen by the

  11     psychiatrist and the psychologist, I took the

  12     keys off his belt.  I saw my chance and I took

  13     it.  I took them off Salim's belt in my cell.

  14               Maybe the government will say he's so

  15     close to Khalfan Mohamed that he's protecting

  16     him somehow.  But that's sure not what he says

  17     when he talks to the psychiatrist and the

  18     psychologist.  He says:  I was not getting

  19     along with my cellmate, and I could barely

  20     communicate with him, because his English and

  21     his Arabic weren't really that good.

  22               Khalfan Mohamed can't control how the

  23     evidence is collected.  Khalfan Mohamed can't

  24     control if a videotape is put in the machine.

  25     He's stuck with the job they do.  And so when

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   2     you ask yourselves if his future dangerousness

   3     has been proven beyond a reasonable doubt, when

   4     you ask yourselves should we blame him for the

   5     attack on Officer Pepe, first say this:

   6               It is a terrible, terrible thing.

   7     And then say:  There is not proof beyond a

   8     reasonable doubt that he did this.

   9               I tell you that whatever he would

  10     have done the government would have said, it

  11     looks like he's guilty.  If you listen to

  12     Joseph Rementer, the only person who within

  13     minutes of this incident is telling you about

  14     it and the only person who tells you about it

  15     on videotape, a person who's telling it at a

  16     time when no one could talk about it or think

  17     about it, or plan about it, he says:  Khalfan

  18     Mohamed is in the corner behind a plexiglas

  19     screen.  No squirting, no weapons, just there.

  20               (Continued on next page)



  23               MR. STERN:  (Continuing) and Salim

  24     comes running out with these two squirt bottles

  25     in his hands and a crazed look on his face, and

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   2     Lance Maiden, who says, "I would step in if

   3     there was misinformation in a crime scene

   4     video," doesn't say a word.

   5               It's not the kind of proof a

   6     reasonable person would rely on without

   7     hesitation in the most important matters of

   8     their affairs.  It's just government

   9     speculation, and you cannot sentence someone to

  10     death on speculation.

  11               Now, the government may tell you

  12     whether you find the attack on Peppe is

  13     attribute to Mohamed or not, he is still a

  14     future danger.  They will say when he was

  15     arrested, he said, I would do it again, I'm

  16     glad Americans were killed.

  17               And Mr. Fitzgerald crafted a very

  18     good line:  He doesn't have fire in his eyes,

  19     he has ice in his veins.  Really excellent.

  20     You will remember it.  Newspapers will write

  21     it.  But is that really completely true?  And

  22     you have the chance to read his statement.  You

  23     have a handwritten copy of it.  That's the

  24     statement taken as he was speaking.  And you

  25     will see that he tells the agents, "I think of

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   2     the Kenyans all the time."  He is asked a

   3     question:  "If there was a fatwah to kill

   4     Americans anywhere you found them, what would

   5     you do?"  And his answer is:  "I would have to

   6     think about it.  Some are good and some are

   7     bad."

   8               So when Mr. Fitzgerald says to you he

   9     is a stone-cold killer, he is a person who

  10     hides behind a mask of meekness, waiting for

  11     his chance to kill, he has never had a moment's

  12     remorse, you should doubt it, because even then

  13     he was beginning to think for himself about

  14     what he had done.

  15               Well, that really is the government's

  16     case.  It must be clear that their whole case

  17     really is about what happened with Officer

  18     Pepe.

  19               You heard from Dr. Cunningham, and

  20     Mr. Fitzgerald ridiculed him, but the core of

  21     what he said was completely unchallenged.  At

  22     ADX Florence, a guard has never been

  23     hospitalized or killed as a result of an inmate

  24     attack.

  25               Now, do I know that Khalfan Mohamed

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   2     will go there?  No.  He fits all the criteria.

   3     But the only reason he won't go there is if the

   4     Bureau of Prisons, who is, as you might

   5     imagine, with 129,000 people in their system,

   6     very experienced, says he needn't go there.

   7     Otherwise, he will.  It is a place that houses

   8     the worst of the worst of the worst, and no

   9     guard has ever been killed or hospitalized.

  10               You saw what it's like, how they take

  11     real care with a prisoner when you saw the

  12     videotape of Khalfan being moved at Otisville

  13     with the three officers and sticking his hands

  14     through and the Martin chain and shackles on

  15     his ankles, and I guess Mr. Fitzgerald's point

  16     is that there is always human error.  And I

  17     guess that's true, there is.  But that's why

  18     they have three people -- to act as a check on

  19     one another.  That's why they change people all

  20     the time -- so there is no familiarity.

  21               Well, Mr. Fitzgerald ridiculed all of

  22     the mitigation from Mr. Mohamed.  He said

  23     almost every time:  Give it what it's worth.

  24     Zero.  Give it what it's worth:  Less than

  25     zero.  So let's talk about it.

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   2               One of the things to talk about is

   3     his role compared to others who participated in

   4     the offense, and Mr. Fitzgerald concedes that

   5     he was not a planner.  As a matter of fact, you

   6     will read a stipulation from someone in the

   7     U.S. Attorney's Office knowledgeable about this

   8     case who says he is a low-level participant.

   9     Not only is he not a leader, but there was no

  10     one lower than he.

  11               Mr. Fitzgerald says it couldn't have

  12     happened without him, but that's not true.

  13     Laborers, low-level people are a dime a dozen.

  14     If they didn't find him, they were finding

  15     someone else.  The only skills he needed was to

  16     speak Swahili and know how to do what he was

  17     told.

  18               Dr. Post came in and I think that Mr.

  19     Fitzgerald referred to him as a dog and pony

  20     show, as someone who had sold his dignity to

  21     help out a terrorist.  Now, you should think

  22     for a moment about who Dr. Post is.  Dr. Post

  23     worked for the CIA for 21 years.  Dr. Post did

  24     profiles of world leaders for presidents.

  25     Dr. Post is a psychiatrist.  Dr. Post is a

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   2     professor.  Do you think for a second that he

   3     is coming in here for him to destroy his own

   4     reputation?  He has spoken to 30 terrorists.

   5     He has written on terrorism.  He lectures on

   6     terrorism.  Do you think he is some sucker who

   7     he is taking advantage of, or do you think

   8     really that Dr. Post just said, I love this

   9     little terrorist, I'm going to help him any way

  10     I can?  It's ridiculous.

  11               Dr. Post came in here and tried to

  12     explain to you his role in this offense, as he

  13     understood it, and Mr. Fitzgerald says, well,

  14     he didn't go talk to Bin Laden, he didn't talk

  15     to Atef, he didn't talk to Zawahiri, he didn't

  16     talk to this person, he didn't talk to Jamal

  17     Al-Fadl, he didn't talk to Kherchtou, he didn't

  18     say Odeh was the final word on al Qaeda.

  19               He did say that Odeh described to him

  20     how al Qaeda worked, and it's really the same

  21     as what everyone else said.  And what Odeh told

  22     him was that there are members of al Qaeda --

  23     and it's conceded that he is not a member of al

  24     Qaeda -- and that the members of al Qaeda have

  25     a say in what happens.  I suppose maybe they go

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   2     to meetings or secret handshakes, I don't know

   3     exactly, but they have a say.

   4               Khalfan Mohamed had no say.  Mr.

   5     Fitzgerald ridiculed the story about the Fanta.

   6     Oh, poor Khalfan.  He had to get somebody a

   7     Fanta.  But that wasn't really the point of the

   8     story.  The point of the story is that his only

   9     job is to do what he is told, so when it comes

  10     time to buy the Suzuki, read the transcript,

  11     think back.  Someone was there and gave him the

  12     money to do it, and he put his name -- not an

  13     Abu name, not a fake name, his name -- on the

  14     car.

  15               And when it came time to rent a

  16     house, you remember someone, I think his name

  17     was Mohamed Jaquanda was the broker for a

  18     house, a slender elderly man, he said Khalfan

  19     was there, someone who didn't speak Swahili was

  20     there, and that person gave Khalfan the money

  21     and Khalfan passed it over and Khalfan put his

  22     name on there.  And Mr. Fitzgerald acts like,

  23     well, what's the big deal?  He was running away

  24     anyway.  They were all running away, but they

  25     weren't all putting their names on any

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   2     documents.

   3               He's the last one told of the

   4     destination of the bomb.  You know that al

   5     Qaeda has this real knack for making passports.

   6     You remember in El Hage's computer there were

   7     all these different Yemen and Saudi Arabia,

   8     different fake passport kind of things.  He

   9     didn't get one of those.  He didn't get one of

  10     a dead mujahadeen.  He went to his friend

  11     Zahran Malwi and said, hey, buddy, how about

  12     changing a few things on this document and

  13     letting me get a passport?  That's how he got

  14     his passport.  He paid for it himself.

  15               He was left there in the end, and Mr.

  16     Fitzgerald said, well, he was left there but he

  17     was supposed to go underground and they gave

  18     him three phone numbers.  They gave him three

  19     phone numbers.  They all went.  They all went

  20     to Yemen or Pakistan or Afghanistan before the

  21     bomb ever went off.  There was no risk for

  22     them, but him, if he got caught, big deal.

  23     Maybe they would get another martyr out of it.

  24               Mr. Fitzgerald mocks the idea that

  25     others of equal or greater culpability will not

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   2     be sentenced to death, and he says, well, Bin

   3     Laden's not caught, Atef isn't caught, Zawahiri

   4     is not caught.  We don't know what will happen

   5     to them if they are caught.  I suppose that's

   6     true, but we do know about the people who are

   7     caught.

   8               We do know Mamdouh Salim is one of

   9     the most powerful members of al Qaeda.  We know

  10     that Mamdouh Salim is on the Shura Council.

  11     You remember the description of al Qaeda.

  12     There's Bin Laden, the emir and then the Shura

  13     Council, and that's where Abu Hajer al Iraqui

  14     has his place and he lectures people.  He is

  15     one of the people who eggs on young men.  Go

  16     ahead, it's all right to do these bombings,

  17     because Ibn Tamiyeh told us when we were

  18     fighting the Tartars, if you kill people near

  19     them, if they were innocent, God bless them,

  20     they will go to heaven, and if they were

  21     guilty, they deserve to go to hell anyway.  So,

  22     don't worry, if I tell you to go ahead, it's

  23     okay.

  24               Salim is a person who tried to buy

  25     nuclear fuel to build a bomb.  Remember Jamal

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   2     Al-Fadl came in here and he told you how he was

   3     sent into the middle of Khartoum somewhere to

   4     meet with someone who had South African

   5     uranium, and he was told he had to get in

   6     contact with Salim and get something to weigh

   7     it.  Salim is one of the big moneymakers for al

   8     Qaeda, and I want to talk to you for a minute

   9     about that, because the top people in al Qaeda

  10     seem to live pretty good lives.

  11               You know that Ubaidah, before he died

  12     in Lake Victoria, had a wife in Kenya and a

  13     wife somewhere else and had cars and

  14     businesses.  You know that in Khartoum all

  15     these people had businesses.  And you remember

  16     at one point Jamal Al-Fadl said, oh, no, no,

  17     it's not true that just the most powerful

  18     people, just the most connected people do well.

  19     And I said, name one person who doesn't own a

  20     factory or have a good business.  Get back to

  21     me when you think of it.  And I'm still waiting

  22     for him to get back to me.

  23               Those people all do okay, and Salim

  24     did okay until he got arrested in Germany.

  25     Al-Fadl himself is doing pretty good.  He got

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   2     his whole family moved here.  Wadih El Hage

   3     doesn't face death.

   4               And then we get to people much, much

   5     closer to home.  How about Ali Mohamed.

   6     Remember who that is, Ali Mohamed, the guy who

   7     lurks in the background?  Well, now who should

   8     lurk in the foreground, because you were read

   9     his plea in which he admitted to what his role

  10     was.  And part of what he did was that he took

  11     pictures of various embassies and aid centers,

  12     I guess.  And he took those pictures, and among

  13     the things he did was he went back to Usama Bin

  14     Laden.

  15               Now, he has never gone to Usama Bin

  16     Laden with anything.  And he went back to Usama

  17     Bin Laden and he said:  Hey, Usama, or Bin

  18     Laden, or whatever he calls him, I have this

  19     picture here.  It's of an embassy in Nairobi.

  20     And Bin Laden said:  Hey, that looks like a

  21     good spot for a bomb, huh?  And guess what

  22     happened a few years later:  Blown up.  Ali

  23     Mohamed, he doesn't face the death penalty.

  24               How about Mohamed Sadeek Odeh.  You

  25     found that he was responsible for 213 deaths in

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   2     Nairobi, and you had good reason to find it

   3     because in his home in Witu he had a drawing of

   4     the entryway to the embassy and he had a

   5     drawing of his understanding of how the bomb

   6     blast worked.

   7               Now, that was tough to explain.  I

   8     remember Ed Wilford said, maybe it's a snow

   9     cone or a boat, or he had some try at

  10     explaining it, but you know that he was

  11     directly involved.  Not only was he directly

  12     involved, but he was a leader.  Because one

  13     thing most of these leaders do is they have the

  14     sense to never leave anything connecting them

  15     to what happens.  Did Salim know or not about

  16     these bombings?  No way of knowing.  Did El

  17     Hage know or not about these bombings?  Who

  18     knows?

  19               But Odeh, you know, did.  Why didn't

  20     he face the death penalty here?  How is that

  21     fair?  How is that just?  Mr. Fitzgerald says

  22     to you this is only about Khalfan Mohamed, but

  23     it's about justice.  It's about doing what's

  24     right and doing what's fair, and if Odeh,

  25     responsible for 213 deaths, doesn't face the

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   2     death penalty, then how can Khalfan Mohamed?

   3               A lot of people -- not a lot.  Three

   4     people are being extradited here from London.

   5     One of them is named Eidarous, one al-Fawwaz

   6     and one Abdel Bary, and you know that none of

   7     them face the death penalty.  One of them

   8     can't.  Al-Fawwaz apparently was not -- they

   9     don't have the information to connect him to

  10     the bombing, but Eidarous and Abdel Bary, they

  11     do.

  12               And Mr. Fitzgerald is right when he

  13     says it's just a quirk of fate that they don't

  14     face the death penalty.  They're lucky to have

  15     been arrested in a country like England.  But

  16     is that how this system should work, where your

  17     life or death depends on a quirk of fate?  Him,

  18     that quirk of fate was just a little late.  It

  19     was just a mistake by someone in South Africa

  20     or he would be just like Abdel Bary and

  21     Eidarous.

  22               Mr. Fitzgerald says to you, let's get

  23     who we can, and where that leaves you is, let's

  24     kill the least responsible person.  Because the

  25     last person you have to consider, all of you,

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   2     is Mr. Al-'Owhali.  You found him responsible

   3     for 213 deaths.  And while there is no way that

   4     any death is okay, there is no way you can

   5     balance one against the other.

   6               Khalfan Mohamed is responsible for

   7     11.  He specifically chose to do the job he

   8     did.  Not only that, but he went and

   9     reconnoitered.  He looked around and said, wow,

  10     that is crowded neighborhood.  There's houses

  11     and trains and banks and this and that.  And he

  12     even tried to get them to change it, but when

  13     they didn't, ah, that's all right.  We'll go

  14     ahead anyway.

  15               Khalfan Mohamed had never been to the

  16     embassy.  Everyone agrees with that.  He didn't

  17     really know what was there.  Does that mean

  18     he's not responsible?  No.  Don't mistake what

  19     I am saying for that.  But Al-'Owhali knew

  20     specifically what damage would be done and he

  21     went ahead.

  22               He was actually there at the bombing.

  23     He went there, he made sure it was carried out

  24     and then he ran away.  You know, it's hard, I

  25     think, to understand how someone could do this.

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   2     It's hard for me.  I'm sure it's hard for you.

   3     But it happened, and you have to somehow

   4     compare people and what they did.

   5               Part of what you can compare is how

   6     they acted, because you didn't know it at the

   7     time, but Mr. al-'Owhali straight-up lied when

   8     he was arrested.  And you will see there is a

   9     stipulation of reports he filled -- not he

  10     filled out, that were filled out about what he

  11     said over about a two-week period.  And he lied

  12     and lied and lied and lied.

  13               He said, I'm Khalid Saleh.  I was

  14     here to see my uncle.  I was with a friend,

  15     Harun, who was killed in the bombing, but we

  16     were just walking by.  I have no idea what

  17     happened.  I'm here from Yemen.  I'm here from

  18     here.  Every word was a lie, until he was

  19     cornered and had to tell the truth.

  20               Mr. Fitzgerald says he is entitled to

  21     nothing for having told the truth, and let's be

  22     clear about something.  Telling the truth,

  23     accepting responsibility is a separate issue

  24     from remorse.  There is something to be said

  25     for owning up to what you have done, and the

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   2     government can't point to one fact in his

   3     statement that is not true.  From the biggest

   4     to the smallest Mr. Fitzgerald says, well,

   5     maybe you don't believe him when he says he

   6     didn't know about Bin Laden.  Do you have

   7     evidence of that, or is that him asking you

   8     again to speculate?

   9               He gave them all kinds of information

  10     in that statement.  The FBI says that in that

  11     statement he told them the names of the members

  12     of his group.  Take a look at it.  It's an

  13     interesting document.  He gave physical

  14     descriptions of each member in that group.  He

  15     told them the places where things had happened.

  16     He told them what he had done and what others

  17     had done.

  18               And the government knows it's true

  19     because they had the information before he ever

  20     told them, but they didn't tell him.  He told

  21     them the truth without prompting, even down to

  22     the tiniest things.  You will remember that one

  23     of the people, I think Khalfan Ghailani, maybe

  24     rides a mountain bike, he can't drive, and he

  25     said I think he rides a mountain bike.  And

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   2     remember someone came from the Al Noor Hotel

   3     and said, oh, yeah, I remember one guy was on a

   4     fancy bike with a lot of gears.  He told them

   5     something they didn't know -- that he had

   6     mailed a package for Ahmed the German back to

   7     Egypt after Ahmed the German was killed in the

   8     bombing.  It turned out to be true.

   9               Every word he told them turned out to

  10     be true.  And it was in that same statement

  11     that he talked about how he thinks about the

  12     Kenyans, and I would have to think twice about

  13     following a fatwah to kill Americans because

  14     some are good and some are bad.

  15               Now, again, I want to talk about

  16     Dr. Post, who Mr. Fitzgerald ridicules as a dog

  17     and pony show.  He says, oh, that remorse,

  18     that's fake remorse.  That's the kind of

  19     remorse one has because one doesn't want to be

  20     executed and that he, sucker, Dr. Post, fell

  21     for it and then he came in here and told you

  22     all.  Huh.  Well, I've already talked about

  23     Dr. Post and I think you would have to go a

  24     long way to pull the wool over his eyes.

  25               But beyond that, if Khalfan Mohamed

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   2     wanted to try and fake remorseful, he would

   3     have started from minute one with Dr. Post.  He

   4     would have said, oh, Dr. Post, I'm so sorry.  I

   5     can't believe what I have done.  He didn't do

   6     that.  He didn't trust Dr. Post at first.  Some

   7     old white guy from the CIA comes in and starts

   8     to talk to him and he says, I don't know

   9     anything about anything.  Mr. Fitzgerald says,

  10     ah, he lied, but it's a lie that contradicts

  11     the argument he makes.  If it's false remorse,

  12     he would think I had better pour it on every

  13     chance I get, and that's not what he did.

  14               It's another one of those things that

  15     Mr. Fitzgerald says in his ringing way:  Give

  16     it what it's worth.  Zero.  Everything to him

  17     is worth zero because he wants Khalfan Mohamed

  18     dead.  But you should give it what it's worth

  19     because part of what we are as human beings is

  20     mutable.  We're able to change and learn.

  21               Khalfan Mohamed had never really met

  22     Americans before he came here, and all of a

  23     sudden he has Americans lawyers and American

  24     corrections people, American judges.  And you

  25     know, it's funny.  I've heard that there's a

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   2     tremendous amount of AntiSemitism in Japan,

   3     where there is no Jews, and we all know that

   4     very often in all white suburbs there's a lot

   5     of racism, because we're all afraid of what we

   6     don't know and we like to hate the people we

   7     don't know.

   8               But as you meet people, if you live

   9     in New York City, you realize that everyone is

  10     who they are as a person, and that's something

  11     he has come to learn.  And so when he says he

  12     feels sorry, that, having thought about it, he

  13     knows what a bad thing it was, must it be fake?

  14     How many of you have changed as you thought

  15     about things?  How many of you, for example --

  16     well, it doesn't matter.  You have all changed.

  17               Mr. Fitzgerald says there's a special

  18     terrorist standard you should not apply, and

  19     that standard that you should not apply is one

  20     that says because your beliefs are sincere, you

  21     don't deserve a break.  And by that I suppose

  22     he means to say that the person who murders out

  23     of greed or out of lust is just the same as the

  24     person who murders out of conviction.

  25               And I want to talk to you about that

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   2     for a minute, because it's sometimes hard to

   3     know what's right and what's wrong in the

   4     world.  90, 95, maybe 99 percent of these kinds

   5     of movements are wrong, but just in our

   6     lifetimes, we know that people call terrorists

   7     have won the Nobel Prize.  Yasser Arafat, when

   8     I was a boy, was a terrorist, and next thing I

   9     know, he's winning the Nobel Prize.  Was he no

  10     longer a terrorist?  Is he no longer a

  11     terrorist?  I'm not suggesting one thing or the

  12     other.  Nelson Mandela was a terrorist, the

  13     ANC, he was in jail on Robbins Island for 19

  14     years or something, and then he was president

  15     of South Africa.  His movement, it turned out,

  16     was right, not wrong.

  17               Israel was begun by terrorists.

  18     Menachem Begin was accused of blowing up the

  19     King David Hotel.  He was a terrorist.  But

  20     then later he was president, Prime Minister of

  21     Israel.  So when you say sincere beliefs don't

  22     matter, sometimes they do.  George Washington's

  23     did.  He was a terrorist to King George, I'm

  24     sure.

  25               You think it's hard to understand how

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   2     he could be like that acting just for his

   3     people.  And I know it's not the same thing,

   4     but as I think about it, I think of my grandma

   5     who used to say whenever there was an election,

   6     what's this person going to do for the Jews?

   7     That's all.  Not, how are they on the

   8     environment?  How are they going to be on

   9     education?  Is it good for the Jews was all she

  10     ever asked.  Now, she didn't bomb anywhere, she

  11     went and played bridge instead, but that

  12     doesn't mean that that impulse to look out for

  13     your own is an impulse only someone like him

  14     can have.  So it does mean something.

  15               That he acted out of sincere

  16     religious beliefs.  You know they are sincere,

  17     but of what he did?  South Africa.  Mr.

  18     Fitzgerald apparently would have you believe

  19     that the whole time he was in South Africa he

  20     was putting on a show; that when he was going

  21     to mosque and teaching the mother the Koran and

  22     teaching the kids the Koran and praying in the

  23     little corner of his restaurant, that that was

  24     all a show to tide him over until he could do

  25     his next killing, but you know that's not

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   2     really true.  The idea that people are all one

   3     thing or all the other is not the way the world

   4     works.

   5               We are not all evil or all good.  All

   6     of us have some of each.  And when you saw

   7     Sharhima Dalvie and you saw the people in her

   8     family, you knew that that good was genuine.

   9     He was working every day in a menial job, and

  10     when he wasn't working, he was focused on his

  11     faith.  You may think it's foolish.  You might

  12     not be able to understand how he was so driven

  13     just to focus on his faith, but he was, and no

  14     one saw it.

  15               You think he did it in preparation

  16     for this?  Hey, maybe some day I'll be arrested

  17     and I'll be facing the death penalty, so I

  18     better take this year out of my life and act

  19     real, real religious.  No.

  20               How did he end up here?  Well, it is

  21     his fault.  Mr. Fitzgerald is right about that.

  22     He put himself here.  But those sincere beliefs

  23     were formed over years.  I suppose you would

  24     have to be in a mosque in Dar es Salaam and

  25     hear what is said about Afghanistan and Bosnia

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   2     and Somalia.  You know, you know from his

   3     statement, which the government has not been

   4     able to show you in any way as untrue, that he

   5     went to Afghanistan to be trained to fight in a

   6     war, in a war.  And he went to Somalia, seeing

   7     if he could go to the front lines in a war.

   8     That's not so foreign.

   9               Americans have been to fight in wars

  10     to defend their people, and he wanted to fight

  11     in a war to defend his people but he didn't get

  12     the chance, and instead that made him

  13     susceptible to being easily led; his very

  14     religiosity, his very belief made him a perfect

  15     target.  Again, don't think I'm saying it's not

  16     his fault.  It's his fault.  He put himself

  17     here, but there's a road he took to get here

  18     and if you don't understand that road, you

  19     can't possible judge him fairly.

  20               He has proven with his family and

  21     with people in South Africa that he has good in

  22     him.  The government says to you not kill the

  23     most culpable, but kill the least

  24     sophisticated.  In the end, each of you has to

  25     make a uniquely personal judgment whether the

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   2     government has proven beyond a reasonable doubt

   3     that the only appropriate punishment for

   4     Khalfan Mohamed is death, whether that act

   5     negated everything else he is and everything

   6     else he will be.

   7               If you kill him, you say there is no

   8     hope not just for him, but for us.  You say

   9     there is no hope for the astounding human

  10     capacity for change.  You destroy the chance

  11     that he will age and have the experience we all

  12     share.  We say if I had only known that before

  13     and then pass it on to others.  You eradicate

  14     the hope that others will see the price Khalfan

  15     has to pay for what he did.  That price,

  16     getting old and dying in jail, frightens the

  17     young more than death.

  18               In the end, if you give him life,

  19     Khalfan will disappear.  No one except those he

  20     loves will remember him.  Someone has to say

  21     enough.  Someone has to say I will not hurt

  22     another family.  Someone has to say I will not

  23     become those I detest by doing what they do and

  24     killing in the name of justice.

  25               Let that be you.

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   2               THE COURT:  Thank you, Mr. Stern.

   3     We'll take a very brief recess and then we'll

   4     complete the opening statements.

   5               (Jury not present)

   6               THE COURT:  Very brief recess.

   7               (Recess)

   8               THE COURT:  Is someone here from CNN?

   9     I'll see you in the robbing room after we

  10     adjourn today.

  11               There is a request from CNN about

  12     post verdict interviews with jurors.

  13               (Jury present)

  14               THE COURT:  Mr. Garcia.

  15               MR. GARCIA:  Thank you, Judge.

  16               Good afternoon.

  17               THE JURY:  Good afternoon.

  18               MR. GARCIA:  It's been a very long

  19     day, and thank you, as always, for your

  20     attention and for your patience.

  21               In the short time that we have left

  22     together today, I would like to look at some of

  23     the arguments Mr. Stern made to you while he

  24     was up here this afternoon.

  25               And it got a little emotional, and

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   2     Mr. Stern said that Mr. Fitzgerald said you

   3     should give zero weight to some mitigators

   4     because he wants Khalfan dead.  And he called

   5     you killers a few times again, and I think we

   6     have to get back to the fact that the reason

   7     why you are here and the reason why you have to

   8     decide whether this defendant receives a life

   9     sentence or the death penalty is because of

  10     what Khalfan Mohamed did, the crimes he

  11     committed, and what he did in the prison on

  12     November 1, 2000.

  13               Everyone in this courtroom realizes

  14     that this is not an easy road, that this is not

  15     a simple decision, but you will know that it's

  16     the right decision in this case.  It's the

  17     right decision because of this defendant, who

  18     he is, what he has done and what he will do,

  19     that the right decision in this case is a death

  20     sentence.

  21               Let's talk first about some of the

  22     things that were said about causing pain and

  23     suffering, causing pain to Mr. Mohamed's

  24     family.  When you think about that, I would

  25     like you to keep one thing in mind:  That

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   2     Khalfan Mohamed hasn't been that person from

   3     Pemba that they knew for a long, long time.  He

   4     hasn't been that student.  He hasn't been that

   5     son or that brother for a long time, since the

   6     time that he became a killer, since the time

   7     that he agreed to murder and murder without

   8     remorse.

   9               The family lost Khalfan Mohamed, the

  10     Khalfan Mohamed they knew, a long time ago.

  11     And the Dalvies, they never knew Khalfan

  12     Mohamed.  They didn't even know his name.  They

  13     knew the face he put on in South Africa, the

  14     face he put on while he waited, the face that

  15     said I wouldn't hurt an ant, when he had just

  16     come from killing 11 people and when, the day

  17     after, he's nabbed, the day he's arrested, he

  18     says to the agents, I'd do it again, I'd help

  19     in another bombing, I would kill more

  20     Americans, I hope other people do it now that

  21     I'm caught, and I would carry on if I could.

  22               Let's talk about equally culpable

  23     defendants.  Other people don't face the death

  24     penalty.  Khalfan Mohamed chose this group.  He

  25     chose to be part of this global terrorist

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   2     conspiracy and he helped some of the other

   3     people get away, and that's who he wants you to

   4     compare him with.  He wants you to use Usama

   5     Bin Laden as the yardstick and those others.

   6     He should be compared to the group of murderers

   7     who face the death penalty, and in that group

   8     he stands out.

   9               Why should a drug dealer in New

  10     Jersey face the death penalty?  Because he is

  11     involved in such a heinous crime with such a

  12     heinous crowd.  And Mr. Stern made some

  13     arguments, arguments about other people, and

  14     those may have been very good arguments or they

  15     may have had some weight at some time.  And you

  16     know what time Mr. Stern could have come up

  17     here and talked to you about those arguments?

  18     On October 31, 2000.

  19               On October 31, 2000, there may have

  20     been some weight to the arguments that other

  21     people did more than me, because on November 1,

  22     this defendant participated in that vicious

  23     attack on Officer Pepe and he is the only one

  24     who directly participated in the bombings in

  25     Tanzania, killed 11 people, himself murdered 11

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   2     people, and then once inside prison in the

   3     United States, once here, awaiting a trial,

   4     awaiting justice, participated in a vicious,

   5     murderous attack on a guard in which the guard

   6     was maimed and will never be the same.

   7               You heard some talk about becoming a

   8     martyr.  Well, you have heard that Usama Bin

   9     Laden wants people out of jail and that are

  10     serving life sentences.  Well, we hear that

  11     those people were leaders before.  You are

  12     going to bring Khalfan Mohamed up to their

  13     level.  Well, Khalfan Mohamed got a lot of

  14     attention by being tried here.  Those other

  15     defendants, Ramzi Yousef and Sheik Omar Abdel

  16     Rahman, got a lot of attention for being

  17     sentenced to life in prison.  Should we not try

  18     Abdel Rahman because we are going to make him a

  19     martyr?  Should we not try Ramzi Yousef because

  20     we'll make him a martyr?  It's fill in the

  21     blank, as Mr. Fitzgerald told you.

  22               Do they need another, do they need

  23     another martyr?  He's a terrorist.  It may make

  24     him a martyr.  No.  No.  No. Let's have justice

  25     for this crime.  Let's have justice for this

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   2     defendant.  There are a million reasons out

   3     there for Usama Bin Laden to attack America.

   4     The fact this defendant may become more

   5     notorious if he gets the death sentence should

   6     not figure into your calculation.

   7               There was some talk and there's been

   8     talk about Salim, about his mental state before

   9     this crime was committed on November 1st.  In

  10     his opening, Mr. Ruhnke said:  We do not

  11     contend, like Salim, that our actions are

  12     somehow driven or justified or excused by

  13     mental illness.  And then we have heard a lot

  14     about Salim's excuse.  We have heard that he

  15     talked to psychologists who went in to examine

  16     him, to hear what he had to say and to evaluate

  17     him.  And you heard that Dr. Rosenfeld, when

  18     talking about his hallucinations, he said, I

  19     talk to this creature, Salim says, and the

  20     creature told me to do things, and I fight with

  21     the creature and should I do it and should I

  22     not do it.  And Dr. Rosenfeld concluded that it

  23     is much more likely the possibility that Salim

  24     fabricated his hallucinations in an effort to

  25     explain the instant offense as due to the

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   2     stress of his confinement, that is,

   3     malingering.

   4               So what Khalfan Mohamed would do

   5     would be piggyback on Salim's excuse, which the

   6     psychiatrist or psychologist concluded was

   7     malingering, was fabricated, and to say Salim

   8     was crazy, Salim must have done it himself.

   9     And you know that's nonsense.  Salim fabricated

  10     those voices as his excuse, and now Khalfan

  11     Mohamed would use it to say that Salim

  12     committed this atrocious crime by himself.

  13               Let me talk to you a little bit about

  14     something the defense has done in this case.

  15     It's been very subtle.  They have tried to have

  16     it both ways.  They talk about Khalfan Mohamed

  17     and the bombing.  You heard Dr. Post say that

  18     Khalfan Mohamed was very able to be recruit, he

  19     was very susceptible.  And I'll read to you

  20     from Dr. Post's testimony, direct, 8328, lines

  21     11 through 25 on that page and the first line

  22     of the next page:

  23   "A.  Let me back up some.  He was brought into

  24     contact," this is Khalfan Mohamed, "with a

  25     small group in Mombasa by Fahid, who introduced

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   2     him to Hussein.  Hussein was described to me by

   3     Odeh, a member of al Qaeda, as a very strong

   4     leader, a man of compelling personality.  He

   5     didn't use the word 'charismatic,' but that was

   6     the basic quality that he communicated --

   7     strong, persuasive, authoritarian.  When I

   8     talked to Khalfan Mohamed about Hussein, he too

   9     described him as a very strong leader, a very

  10     powerful personality.

  11               "I want to remind you he had been

  12     told, by the way, he also mentioned that he was

  13     a highly religious man and a very educated man.

  14     He had been told back in Zanzibar at age 7 or 8

  15     or so, when he was in schools, the importance

  16     of paying unquestioning respect to learned men

  17     who are pious and religious men, who are

  18     authorities, and Hussein conveyed himself as an

  19     authority to the young Khalfan Mohamed.

  20               "So when it comes to Hussein, the

  21     young Khalfan Mohamed, Hussein believes that

  22     this pious religious scholar is irresistible.

  23     This Hussein said kill, and Khalfan Mohamed

  24     killed."

  25               Now we have also heard a lot about

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   2     Salim and, in the relative culpability section,

   3     as being a scholar, someone who memorized the

   4     Koran.  He was on the Shura council.  He issued

   5     religious decrees and fatwahs.  In fact, when

   6     Mr. Stern crossed Al-Fadl at the guilt phase of

   7     this trial, he asked him about that.  I'm

   8     reading from page 517, Mr. Stern's cross of

   9     Al-Fadl:

  10   "Q.  And Salim would give explanations based on

  11     the Koran for why things al Qaeda was doing

  12     were okay, were good, right?

  13   "A.  Yes.

  14   "Q.  And he would quote from the Koran and try to

  15     convince people through those quotes what al

  16     Qaeda was doing and what you were being asked

  17     to do was something that a good Muslim would

  18     do, right?

  19   "A.  Yes."

  20               Page 518, line 13:

  21   "Q.  Okay.  Now, you yourself don't know every

  22     line of the Koran, do you?

  23   "A.  No.

  24   "Q.  And so when he would talk," this is Salim,

  25     "when he would talk to you about lines from the

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   2     Koran, according to you, he would tell you

   3     these things and you would accept them as the

   4     truth, wouldn't you?

   5   "A.  Yeah."

   6               Again page 521:

   7   "Q.  And that was his way of saying to you and

   8     everyone else," this is Salim again, "it's okay

   9     to kill civilians if you have to because I say

  10     it and another scholar says it and the scholar

  11     interpreting the Koran says it, right?

  12   "A.  Yes.

  13   "Q.  So that was to mean to say to everybody,

  14     it's okay, don't worry if you kill civilians,

  15     it's part of what we have to do?

  16   "A.  Yes, under war.

  17   "Q.  And when you heard that, you accepted it,

  18     did you not?

  19   A.                 Yes." heard tha

  20               So Salim, to Al-Fadl, is a leader, a

  21     religious scholar, a very pious man, big player

  22     in al Qaeda, and he is saying, based on the

  23     Koran, based on my interpretation, go kill

  24     civilians, and Al-Fadl saying, yes, we did it.

  25     And that's the man that Khalfan Mohamed is in

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   2     the cell with.  That was the man who, for seven

   3     days, is talking about violations of his legal

   4     rights, about taking hostages, about doing

   5     something.

   6               In that case Khalfan Mohamed says,

   7     oh, no, no, no, Hussein is charismatic.  Young

   8     Khalfan falls for that.  But in the cell with

   9     the leader of al Qaeda, Khalfan Mohamed is no,

  10     no, and he's very surprised when Salim shows up

  11     at the door, dragging Officer Pepe, and runs

  12     out and hides behind the shield.  There's a

  13     fundamental tension between those arguments.

  14     If Khalfan Mohamed is so susceptible to the

  15     arguments and persuasion of pious and religious

  16     men, he is susceptible to Salim.

  17               Let's talk a little bit about remorse

  18     before we get to the stabbing of Officer Pepe.

  19     Mr. Stern came up to explain about remorse and

  20     that it was a process.  Dr. Post was in a

  21     process with this defendant.  He didn't trust

  22     him.  He was a white man.  He was from the CIA

  23     and it was a little bit of a process to develop

  24     as to accepting and expressing remorse.

  25               Well, it was five weeks ago.  Within

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   2     the last five weeks, Khalfan Mohamed denies he

   3     knew the embassy was the target; says that if

   4     he knew the details, he would have tried to

   5     stop it.  He did not know the target as Ahmed

   6     drove off in the bomb truck.  He didn't know

   7     where it was going until he heard about it

   8     later.  That's all within the last five weeks.

   9     Then he says, as to the 302, there was a

  10     language problem.  There's another language

  11     problem there, and he denies the 302.

  12               And then he says, well, if I did it,

  13     I'm sorry.  And that's remorse.  That's the

  14     expression of remorse.  That's not remorse.

  15     That's not remorse.  The truthful statement is

  16     what he said to the agents, that he would do it

  17     again, he would do it again if he could.  And

  18     you know actions speak louder than words and

  19     you know he did it again.

  20               Let's talk a little bit about the

  21     language problem.  He's in his cell with Salim.

  22     You know he speaks English.  Salim speaks

  23     English.  You know they both speak Arabic.  On

  24     the tape, South Africa, the imam from South

  25     Africa says Khalfan was glad when he met me

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   2     because we could speak Arabic.  That's on the

   3     South African video.

   4               Now let's talk a little bit about the

   5     attack in Cell 6.  Before we do that, let's

   6     talk about the tapes.  A lot was made of the

   7     tapes in Mr. Stern's summation.  Officer

   8     Carrino Lt. Carrino said as far as I knew, the

   9     tape wasn't working.  That's how worthless it

  10     was.  There was no procedure for changing the

  11     tape.  There was no written directions for

  12     changing the tapes.  The protocol for 10 South

  13     was in evidence.  As far as I knew, the tapes

  14     weren't working.  Salim thinks the tapes aren't

  15     working.  Written in the notes:  What about the

  16     video, it may not work.

  17               What did you hear about the tapes on

  18     November 1?  Shortly after the incident, agent

  19     goes over to 10 South, sees Robert Perrish, who

  20     does not know about the taping system; it's not

  21     his responsibility.  He's there at the crime

  22     scene.  He goes back at the lieutenant's

  23     office, he pops out one tape.  Brings it out,

  24     hands it to the agent.  They leave.  They play

  25     it, they watch it, wrong tape.  Shows 9 South

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   2     and shows a few of the corridors; does not show

   3     the cells.

   4               45 minutes to an hour, they bring the

   5     tape back.  They call the FBI agent, tell him

   6     it's the wrong tape; he says come back, see

   7     Perrish again.  They go back, they leave this

   8     tape downstairs.  They don't give it back to

   9     Perrish.

  10               Perrish says okay.  He goes in the

  11     back, finds another tape, pops it out of the

  12     machine, tries to play it in the front.  It

  13     gets stuck.  They pull it out of the machine.

  14     They hand it to the agent.  As it turns out, it

  15     is the view of the cells, but it's from 11 p.m.

  16     to 1 a.m. the night before.  Sometime later,

  17     Agent Foelsch goes back and retrieves what he

  18     thinks is the first tape which shows the 9

  19     South view.  So you have the two tapes here.

  20     They're in evidence.  You can watch them.

  21               Perrish, who is being called, he says

  22     I have a lot of conversations with agents about

  23     tapes.  On November 7 or 9 he talks to Agent

  24     Foelsch again.  He says, you know, I gave you

  25     the tape.  It shows 11 to 1.  Maybe you heard

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   2     that from another agent.  He talked to a lot of

   3     agents about it.  He said maybe, Agent Foelsch

   4     tells you, best recollection, he says the

   5     original was taped over and you have got a

   6     copy.  Well, maybe he's thinking about that

   7     tape they brought back that was left

   8     downstairs.

   9               Does he know if they had the

  10     original?  Do we know?  There's a copy.

  11     There's the original.  That's what he is

  12     talking about.  There were two tapes.  They

  13     were taken out of the machines.  Perrish

  14     testified.  He came in here.  He told you what

  15     happened.  He looked at you, and here are the

  16     two tapes, and that's the story of the tapes

  17     and they're in evidence.

  18               Let's talk about what happened on

  19     November 1st.  Now, Mr. Stern runs through a

  20     story about Salim and Officer Pepe walking back

  21     to the cell and the attack happening out there.

  22     And I submit to you that that has to be,

  23     because if the attack happens in the cell, it's

  24     devastating.  If the attack happens in that

  25     small space of Cell 6 with Khalfan Mohamed and

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   2     Salim, that's devastating.  So the attack can't

   3     happen there, has to happen outside.  Well,

   4     let's look at the forensics.

   5               What do you see?  And we'll look at

   6     the photos too.  You have some blood here.

   7     Blood here is Peppe's.  You have Khalfan

   8     Mohamed's blood in front of Cell 4.  That's the

   9     blood in front of Cell 4.  And then you have a

  10     tremendous amount of blood back here.

  11               And we will look at the photographs

  12     of how that blood is.  The blood here, blood

  13     sample 3, it's on the walls.  It's on the

  14     walls.  And you remember, and look at the

  15     photographs.  Salim is running to the front.

  16     He is running to the front.  He's behind the

  17     post and he has blood on his hands.  Nobody

  18     says he doesn't.  And he's running back through

  19     the wing to get back to Cell 6.  And there's

  20     blood on the walls and there are a few little

  21     blood stains here on the floor.  There's a

  22     fountain, a fountain of blood inside Cell 6,

  23     all over here, all over the jumpsuit, all over

  24     the prayer rug.  You can see it in the

  25     photographs.

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   2               What else do you know?  All over here

   3     is hot sauce, sprayed in this area of the

   4     shower.  There is even a hot sauce top if you

   5     looked at one of the photos Mr. Carrino showed

   6     you; a yellow top, right here.  The Redweld is

   7     on the bed, bed 2.  The jumpsuit is on the

   8     floor.  When Salim exits this room here and

   9     comes around, he has the Redweld and the

  10     jumpsuit.  Redweld, jumpsuit inside the cell;

  11     hot sauce against the shower.

  12               Now, think, 155-pound Salim and

  13     270-pound Officer Pepe, he stabs somewhere

  14     here, doesn't leave a big pool of blood,

  15     there's some splashes on the walls.  He drags

  16     him back with his Redweld and his jumpsuit all

  17     the way around here, drags him here.  There's

  18     no blood, there's no smears like there is for

  19     Salim over here, and they drag Salim and he's

  20     leading.  Look at the photograph.  Look at the

  21     smear.  Look at the blood that's in this cell,

  22     how much Officer Pepe bled.  It's all over

  23     their clothes.

  24               No blood.  Drags him back here with

  25     his Redweld and with his jumpsuit, throws that

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   2     onto the cell.  Much to the surprise of Khalfan

   3     man Mohamed?  No.  No.  What the forensics show

   4     you is blood all over the cell.  Blood all over

   5     their clothes.  Hot sauce here, behind the

   6     corner here.  Redweld on the bed.  That's what

   7     the forensics show you and that's what

   8     happened.

   9               "Lure the hunt."  Remember the notes:

  10     "Lure the hunt."  They lured the hunt.

  11     Unfortunately for Officer Pepe, he was the hunt

  12     this day.  They lured him back.  He opened the

  13     cell, sprayed him with blinding hot sauce and

  14     stabbed him with two weapons, two weapons, the

  15     sharpened brush and the comb -- comb through

  16     the eye, sharpened brush to the skull.  To the

  17     skull.

  18               Two weapons.  Let's talk about the

  19     brush weapon.  Let's talk about the brush

  20     weapon.  It's found out here covered with

  21     Officer Pepe's blood, soaken to the bristles.

  22     The commissary reports show that Khalfan

  23     Mohamed ordered two brushes in the time before

  24     this and Salim ordered one.  Hatton tells you

  25     when they search the cell, they find one

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   2     complete brush.  It is here, right behind

   3     Salim's bed.  The other brush, the only other

   4     brush they find, has been sharpened into a

   5     shive.

   6               Salim still has his brush.  If you

   7     look at the photograph of bed number 2, and

   8     that's 4036, you can see that brush behind

   9     Salim's bed.  And you know it's Salim's bed.

  10     If you focus, if we can, on that note right

  11     there, that's written in Arabic.  And much has

  12     been done in this trial to show you that

  13     Khalfan Mohamed doesn't write in Arabic.

  14               So Salim has his brush back here.

  15     Khalfan Mohamed's brush is sharpened into a

  16     lethal weapon and is outside the cell.

  17               And then you heard -- just look

  18     quickly.  Here's Salim's blood.  Here's Salim's

  19     blood and here's going back to Cell 6, blood on

  20     the walls here, his hands, blood here.  This is

  21     the cell between these two Cells 4 and 5.  That

  22     is Khalfan Mohamed's blood, little spatters

  23     going back here until you get to the cell,

  24     which is a blood bath.  Look at the corner

  25     here, hot sauce here.

                        REPORTERS CENTRAL
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   2               And when the guards come around this

   3     way to rescue Officer Pepe, when they get here

   4     to this blind corner, hot sauce this way, hot

   5     sauce this way, Salim comes out and attacks

   6     them after Mohamed comes out of the blind side,

   7     right here.  What could he have done?  He could

   8     have put his hands on the wall; he could have

   9     not fought with them; he could have not sprayed

  10     them with hot sauce, that's what he could have

  11     done.  But that's not what he did.

  12               Three officers came in here and

  13     testified about it.  They testified that

  14     Khalfan Mohamed sprayed them with hot sauce.

  15     Their clothes are in evidence if you want to

  16     look at it.  The photos are in evidence.  Where

  17     do they get sprayed?  They get sprayed on their

  18     sleeves from around the shield and it tests for

  19     hot sauce.

  20               What else?  If you look at the other

  21     diagram, which I won't put up, you will see

  22     there's hot sauce over the doorway on the

  23     outside of the cell.  Now, Mr. Stern told you,

  24     yes, Agent Hatton concluded from the stain over

  25     here that hot sauce had been sprayed this way.

                        REPORTERS CENTRAL
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   2     What do you conclude from the fact that there's

   3     hot sauce stains over the cell door of Cell 6?

   4     That someone is spraying it this way, and

   5     that's what happened.  That's what happened.

   6               So what do you know?  You know

   7     Officer Pepe's attacked in a little space with

   8     two weapons and that when the guards come up,

   9     they are attacked by Khalfan Mohamed first and

  10     then Salim comes out to help him.

  11               Finally, you also know what Officer

  12     Pepe said.  You know that he said, "I fought

  13     them.  I gave them a good fight." There were

  14     three witnesses that came in here, Carrino,

  15     Patel and Santulli, and they sat in this

  16     witness chair and they told you Officer Pepe's

  17     last words, describing what happened on

  18     November 1st.  You saw them.  You heard them.

  19     You watched them.

  20               Your decision.  You heard the direct.

  21     You heard the cross.  Your decision.  Do you

  22     think they were right?  Do you think they were

  23     accurate?  And I submit to you they were.

  24               Every one of them, from an officer

  25     responding to a physician's assistant to

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   2     somebody who just rode along in the ambulance

   3     who didn't know what had happened before, all

   4     say the same thing, all tell you Officer Pepe's

   5     last words, his last words before his brain

   6     started to shut down, before he suffered that

   7     stroke in Bellevue Hospital, and it's "them"

   8     and it's "they."

   9               It's Salim and it's Khalfan Mohamed.

  10     That's how you know.  You know it from the

  11     statement.  You know it from the forensics.

  12     You know it from the evidence.  You know it

  13     from what he was doing when the guards got up

  14     to that floor.

  15               And remember, all of that, all of

  16     that activity in the back of that cell, the

  17     stabbings, the taking out of the sheets, the

  18     blocking the camera, the prying open of the

  19     electrical box, Salim going into the front, all

  20     happened in 15 minutes.  That's what McAllister

  21     said.  That's what McAllister said.  From the

  22     time Salim walks around the corner to the time

  23     the guards come through the door is 15 minutes.

  24     Two people, two people attacking, two people

  25     attacking Officer Pepe and maiming him.

                        REPORTERS CENTRAL
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                     REBUTTAL - Mr. Garcia

   2               Ladies and gentlemen, I submit to you

   3     at the end of the day you know two things,

   4     after you have seen all the evidence, after you

   5     have seen the plans and the videotapes and the

   6     stories about Burger World, you know that this

   7     defendant, this defendant, you found himself

   8     killed 11 people.  He murdered, slaughtered 11

   9     innocents on August 7th, 1998.  That's the

  10     crime he is convicted of:  Murder of 11

  11     innocents in cold blood.

  12               And you know that he's a danger.  You

  13     know that he's a danger to everyone he comes in

  14     contact with because he said it, he told it to

  15     the agents, he said he would do it again, and

  16     he did it.  He participated in the attack on

  17     Officer Pepe and he attacked the guards that

  18     came up to help him.

  19               He's a calculating killer who wants

  20     to kill again, and he will kill again.  And

  21     when he does, when he does hurt someone, maim

  22     someone, kill someone again, you know what?

  23     You know what, ladies and gentlemen?  He will

  24     still be from Pemba.  He will still be from

  25     Pemba.  He still will have worked in Burger

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                     REBUTTAL - Mr. Garcia

   2     World and there will still be atrocities that

   3     have been committed in Bosnia.

   4               The only difference the next time,

   5     the only difference the next time is there will

   6     be a different victim, there will be a

   7     different grieving family, there will be

   8     someone else maimed, there will be someone else

   9     killed.  That's the only difference.

  10               Khalfan Mohamed has killed and he

  11     tried to kill again, and a life sentence for

  12     Khalfan Mohamed is a death sentence for the

  13     next guard in one of those prisons who makes a

  14     mistake.  That's the choice.

  15               Now, you all said you could vote for

  16     the death penalty where it was appropriate, and

  17     there is no more appropriate circumstances than

  18     this mass murderer who tried to kill a guard.

  19     Stop Khalfan Mohamed's mission of murder, and

  20     the only penalty that will do that, the only

  21     penalty that addresses this crime and the

  22     threat this defendant poses every day is the

  23     death penalty.

  24               It is not easy.  It is not a

  25     comfortable decision, but Khalfan Mohamed left

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   2     you no choice.

   3               Thank you.

   4               THE COURT:  Thank you, Mr. Garcia.

   5     Ladies and gentleman, tomorrow the first order

   6     of business will be the court's charge.  You

   7     should begin your deliberations midmorning

   8     tomorrow.  Have a pleasant evening.  We are

   9     adjourned until tomorrow morning.

  10               (Adjourned to 9:30 a.m. on July 3,

  11     2001)















                        REPORTERS CENTRAL
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   2                  DEFENDANT EXHIBITS

   3   Exhibit No.                                     

   4     Received

   5    K.K.M. 1 ...................................8524

   6    K.K.M. 6 ...................................8526

   7    K.K.M. 8 ...................................8527

   8    K.K.M. 9 ...................................8528

   9    K.K.M. 10 ..................................8528

  10    K.K.M. 11, K.K.M.-PH-103 and K.K.M.-PH-104 .8528

  11    K.K.M. 12 ..................................8529

  12    K.K.M. 14 ..................................8529

  13    K.K.M. 15 ..................................8529

  14    K.K.M. 16 ..................................8530

  15    K.K.M. 17 ..................................8530

  16    18 .........................................8530

  17    19, 14A and 14B ............................8531

  18    K.K.M. 21 and 36 ...........................8531

  19    K.K.M. 22 ..................................8532

  20    K.K.M. 26 ..................................8532

  21    K.K.M. 27 ..................................8533

  22    K.K.M. 28, 42A, 42B and 42C ................8533

  23    K.K.M. 25A .................................8537

  24    K.K.M. 25B .................................8540

  25    2, 13 and 25 ...............................8541

                        REPORTERS CENTRAL
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   1   1721BIN4
                     REBUTTAL - Mr. Garcia

   2    K.K.M. 27 ..................................8541

   3    K.K.M. 29 ..................................8541

   4    K.K.M. 32 and 32A through 32D ..............8542

   5    K.K.M. 34 ..................................8542

   6    K.K.M. 35A and 35B .........................8542

   7    K.K.M. 36 ..................................8542

   8    K.K.M. 38 ..................................8543

   9    K.K.M. 39 ..................................8543

  10    K.K.M. 40 ..................................8543

  11    K.K.M. 41 ..................................8544

  12    K.K.M 42 ...................................8544

  13    K.K.M. 43 through 47 .......................8544

  14    K.K.M.-PH-12, PH-28, PH-15, PH-31,

  15    PH-34, PH-5, PH-8, PH-19, PH-22, PH-11, PH-9,

  16    PH-3, PH-38, PH-39, PH-72, PH-20, PH-2, PH-51,

  17    PH-43, PH-68, PH-93, PH-83, PH-102

  18    and PH-94 ..................................8545

  19                  GOVERNMENT EXHIBITS

  20   Exhibit No.                                     

  21     Received

  22    4306 .......................................8547

  23    4305 and 4329 ..............................8547

  24    4308 and 4309 ..............................8548

  25    4324 .......................................8549

                        REPORTERS CENTRAL
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   1   1721BIN4
                     REBUTTAL - Mr. Garcia

   2    4331 .......................................8550

   3    4332, 4326, 4331A through 4331Q and 4315 ...8552

   4    4331R and S ................................8552

   5    4307, 3050, and 3050-T .....................8555





















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