1 March 2001 (Received 15 hours later than usual.)
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 12 of the trial, February 28, 2001.
See other transcripts: usa-v-ubl-dt.htm
ascii enclosed
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 February 28, 2001
9:50 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
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1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
9
FREDRICK H. COHN
10 DAVID P. BAUGH
LAURA GASIOROWSKI
11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
12 DAVID STERN
DAVID RUHNKE
13 Attorneys for defendant Khalfan Khamis Mohamed
14
SAM A. SCHMIDT
15 JOSHUA DRATEL
KRISTIAN K. LARSEN
16 Attorneys for defendant Wadih El Hage
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1 (Trial resumed)
2 (Jury not present)
3 THE COURT: Are there any matters which require the
4 court's attention prior to the entry of the jury?
5 MR. SCHMIDT: Just one issue while we are here now I
6 guess I can raise so we don't delay later.
7 THE COURT: Yes.
8 MR. SCHMIDT: The government has given me some
9 documents relating to the computer expert. I spoke to the
10 computer expert. He wanted to get them done today because he
11 has been on vacation. I received a cover document relating to
12 a particular document coming out of the computer --
13 THE COURT: Can we have silence in the courtroom,
14 please.
15 MR. SCHMIDT: I received the document itself that was
16 taken out of the computer but it was not identified in the
17 manner it was previously identified, by Bates numbers. The
18 items that are in Arabic, I have to figure out which document
19 it is and locate the document before I can even begin to
20 examine this witness, a delay that shouldn't be necessary, and
21 I have to wait for Mr. Karas to identify which particular
22 document it is. I want to note that if there is a delay in
23 the next witness it is a result of the unfortunate manner in
24 which the documents have been marked, or not marked.
25 MR. FITZGERALD: I would rather have Mr. Karas
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1 address it. Mr. Schmidt wants creation dates of the
2 documents. The expert has been on vacation and sitting in our
3 office through the night to translate the Arabic entries and
4 get things to Mr. Schmidt as soon as possible. Mr. Karas is
5 dealing with those issues and we will try and expedite it. It
6 is not for lack of effort.
7 THE COURT: It seems there is nothing I can do about
8 it. If that occasions a request for some deferral of
9 examination or continuance, I will deal with it.
10 We are awaiting the defendants. The witness may
11 resume the stand.
12 MR. FITZGERALD: There is one item I should make sure
13 while counsel for Odeh and Mr. Schmidt are here. We agreed to
14 do Bruton redactions regarding the Odeh statement. The
15 written statement, we actually took out more than we agreed to
16 do. The only thing I want to make sure --
17 THE COURT: May we please have quiet in the
18 courtroom.
19 MR. FITZGERALD: The defendant Odeh stated that he
20 was aware that the home of Wadih El Hage was searched and that
21 the name of the person who was present was searched, which was
22 not Mr. El Hage. What I simply seek to elicit from Agent
23 Anticev was that Odeh was aware that a house was searched in
24 Nairobi and the person present was Mohamed Karama.
25 MR. SCHMIDT: I have no objection to that.
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1 MR. FITZGERALD: And I will lead in that area to make
2 sure.
3 MR. SCHMIDT: And I will try not to object.
4 THE COURT: I was supposed to be advised this morning
5 whether there was any objection to the in limine application
6 made by the government with respect to the examination of
7 Ambassador Bushnell. Does anybody quarrel with the
8 government's position on that matter?
9 Silence is acquiescence. Very well then.
10 MR. RICCO: Your Honor, we need to see you at
11 sometime during the morning break. It's not urgent.
12 JOHN MICHAEL ANTICEV, resumed.
13 (Jury present)
14 THE COURT: Good morning.
15 JURORS: Good morning.
16 THE COURT: Agent Anticev, the court reminds you you
17 are still under oath.
18 Mr. Fitzgerald, you may continue.
19 MR. FITZGERALD: Thank you, Judge.
20 (Continued on next page)
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1 DIRECT EXAMINATION (Continued)
2 BY MR. FITZGERALD:
3 Q. Good morning, Agent Anticev.
4 A. Good morning.
5 Q. When we broke yesterday, you described what Odeh told you
6 about his understanding of the bayat he gave. Did Odeh tell
7 you when it was he made a pledge of bayat?
8 A. I believe it was in March of '92.
9 Q. Did he indicate where he did that?
10 A. I believe in Peshawar.
11 Q. In Peshawar, Pakistan?
12 A. Yes.
13 Q. Did Odeh indicate what he did after he made the pledge of
14 bayat?
15 A. After he took the pledge to Al Qaeda, he went back to the
16 Jihad Wal camp for just a couple days to get reassigned, and
17 then from there he went back to the Farouq camp. Because he
18 had medical training he went back there to be a medic for a
19 couple of months.
20 Q. Do you recall approximately what months it was that he
21 would have begun serving as a medic in the Farouq camp?
22 A. April, May '92.
23 Q. Did he indicate what he did after he served as a medic at
24 the Farouq camp?
25 A. After the Farouq camp, he went on to another training
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1 camp, called the Sadeek camp, where he took a course in
2 explosives.
3 Q. Did he indicate what he learned during the course in
4 explosives?
5 A. He learned the more complicated aspects of explosives. He
6 had a trainer there, Abu Ubaidah, that taught him mathematical
7 formulas, the type of explosives to use, how much explosives
8 would be needed to do a certain job. And I believe he was
9 also at the camp with another instructor, was somebody named
10 Abdel Rahman, and another student with him was Ahmed the
11 Egyptian.
12 Q. Did he indicate the Abu Ubaidah who was his trainer, was
13 that the same person who was Abu Ubaidah al Banshiri, or a
14 different Abu Ubaidah?
15 A. It's a different Abu Ubaidah.
16 Q. Did he indicate what he did after he took this course in
17 explosives at the Sadeek camp?
18 A. Yes. I believe the course lasted 45 days, and then after
19 that he went to get some medical treatment for problems he was
20 having.
21 Q. Did he indicate where he went to get the medical
22 treatment?
23 A. He did. I forget where he went, but I think he recovered
24 in Peshawar.
25 Q. Did he indicate what he did after he recovered from the
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1 medical treatment?
2 A. After he recovered from the medical treatment he went back
3 to the Bait al Ansar, that house of support where he
4 originally came to when he came to Peshawar, to look for his
5 passport that he had left there and some personal items, and
6 that house of support was closed because the war in
7 Afghanistan was winding down, and he had to go search for his
8 documents so he wound up going to a different house of
9 support.
10 Q. Did he tell you what happened when he went to the other
11 house looking for his documents?
12 A. Yes. The other house, I think, was called Bait al
13 Umameen. When he went there, he was found by one of his
14 instructors, Abu Thomama. And then Abu Thomama told him that
15 he had to go see an important Al Qaeda leader named Adel.
16 Q. Did he go see this person? Did Odeh tell you that he went
17 to see this person that Abu Ubaidah told him to go see?
18 A. Yes.
19 Q. Do you know what Adel's full name was?
20 A. Saif al Adel.
21 Q. What happened when he went to see Saif al Adel?
22 A. Saif al Adel told him that the war in Afghanistan was
23 winding down and that they were going to move the jihad to
24 other parts of the world, and he wanted him to go to Somalia
25 via Kenya.
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1 Q. Did Odeh indicate what he did after this conversation?
2 Let me strike that.
3 Did Saif al Adel tell Odeh where those instructions
4 were coming from?
5 A. Yes, he told him they were coming from Usama Bin Laden.
6 Q. Did Odeh tell you what he did after he received those
7 instructions?
8 A. Yes. Later on he went by plane from Pakistan to Nairobi.
9 Q. Did he tell you approximately what month and what year it
10 was that he went from Pakistan to Nairobi?
11 A. March of '93.
12 Q. Did he indicate how long he stayed in Nairobi?
13 A. He said he stayed in Nairobi for two weeks, and when he
14 got there the first night he stayed at the Ambassador Hotel,
15 and then he spent the next two weeks -- the rest of the two
16 weeks with another Al Qaeda member.
17 Q. Do you remember the name of the Al Qaeda member that he
18 spent the two weeks with?
19 A. It escapes me now but I believe he was from Oman.
20 Q. What did Odeh tell you he did after those two weeks in
21 Nairobi?
22 A. He tried -- so he was ordered to go to Somalia, so he had
23 to try to get to Somalia, but he didn't have the proper
24 documents to get to Somalia. So he was able to find his way
25 on to a small airplane that's used in that region to
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1 smuggle -- it's a mild narcotic that the local people chew
2 called khat, or khat, and he was able to hitch a ride on that
3 plane to the Kenyan/Somali border, but he remained on the
4 Kenyan side of the border.
5 Q. Did Odeh tell you what happened when he got to that part
6 of Kenya near the Somali border?
7 A. He was told to wait for somebody to come and pick him up
8 there.
9 Q. Did he indicate whether somebody ever came and picked him
10 up?
11 A. Yes, he was picked up and brought across the border into
12 the Somalia to the town of Belahawa.
13 Q. Did Odeh indicate what he did in Somalia?
14 A. His job in Somalia was to train one of the tribes that was
15 in Somalia. It was one of 17 tribes, and they picked one
16 particular tribe at that time called the Um Rehan tribe, to
17 give training and other additional support such as food and
18 medical treatments.
19 Q. For the Um Rehan tribe, did Odeh indicate what type of
20 training he provided to them?
21 A. He provided them training in small arms and medical
22 treatments.
23 Q. Did Odeh indicate why it was that that tribe, the Um Rehan
24 tribe, was picked to receive this training?
25 A. That was picked by Bin Laden's group because it had the
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1 closest philosophical ties to Al Qaeda.
2 Q. Did Odeh indicate whether the Um Rehan tribe had links to
3 any other group?
4 A. Yes, it had links to another group called Ittihad
5 Islamiya, which I think is Islamic Unity, translation.
6 Q. Did Odeh indicate how long he spent in that area training
7 people with the Um Rehan tribe?
8 A. Approximately seven months.
9 Q. Did he tell you how far the area he was located in was
10 from the area of Somalia, the city in Somalia called
11 Mogadishu?
12 A. He said it was 600 kilometers.
13 Q. Did Odeh indicate what it was his understanding was of the
14 attitude of the tribes toward United Nations presence in
15 Somalia?
16 A. Yes. He said that the tribes were very upset that the UN
17 was in that area. They felt that they were controlling the
18 area. They were afraid that if they accepted aid from the
19 United Nations, that they would have to give up their arms in
20 exchange for this aid.
21 Q. Did Odeh indicate what the position of Al Qaeda was
22 regarding United Nations and United States troops being in
23 Somalia?
24 A. The position of Al Qaeda regarding unarmed civilian aid
25 workers just providing aid, that it was OK, but as far as
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1 armed US troops being in Somalia, Al Qaeda thought that this
2 was not good, that it was wrong, and they considered it
3 colonization.
4 Q. Did Odeh indicate whether or not Al Qaeda would support
5 attacks on civilian workers from the UN in Somalia?
6 A. He stated that they wouldn't support attacks on civilian
7 workers but would support attacks on soldiers.
8 Q. During the time that he was in that area, did Odeh
9 indicate whether or not he received any training himself?
10 A. Yes. While they were there, him and the other trainers
11 brushed up on their own skills in fighting.
12 Q. Did Odeh discuss a person by the name of Abu Hafs?
13 A. Yes.
14 Q. What did Odeh tell you about Abu Hafs?
15 A. He said while he was there an individual, Abu Hafs, who he
16 describes as a major leader in Al Qaeda, who served with Bin
17 Laden from the very beginning and has been with him since the
18 early times in Afghanistan, was coming down from Mogadishu,
19 and he had four other trainers with him.
20 Q. Did Odeh indicate what nationality Abu Hafs was?
21 A. Egyptian.
22 Q. Did Odeh say whether or not he ever knew Abu Hafs or had
23 seen him before he saw him in Somalia?
24 A. Yes, he had seen him in Afghanistan.
25 Q. Do you recall the names of any of the trainers that Odeh
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1 told you were with Abu Hafs in Somalia?
2 A. Yes. One person was named Khalid. He is also known as
3 Abu Jihad and also known as Mustafa. And the second person
4 was a person named Shuaib, who was also known as Abu Islam and
5 also known as Ahmed the Egyptian. I think the third person
6 was Irkima, and the fourth person was another person, I
7 believe from either Oman or Morocco.
8 Q. Did Odeh indicate to you what his understanding was of why
9 Abu Hafs was in Somalia, what he was doing there or where he
10 was coming from?
11 A. Abu Hafs was sent to Somalia by Usama Bin Laden to not
12 only assist the situation but to make contact with some of the
13 tribal chiefs in Mogadishu and around Somalia also.
14 Q. Did Odeh indicate what was going on in Mogadishu at that
15 time?
16 A. Yes. They were, that person Aideed's tribe, and another
17 tribe were not only fighting amongst each other, they were
18 fighting against the UN and the US troops there were there.
19 Q. Did Odeh indicate who it was that Abu Hafs met with?
20 A. Yes. He met with a person named either Ahmed or Mohamed
21 Sahal.
22 Q. Did he indicate whether or not he met anyone from Aideed's
23 tribe?
24 A. Yes, he did.
25 Q. Do you know if he met with Aideed or someone in his tribe?
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1 A. It's not exactly clear, the way it was explained.
2 Q. Did Odeh indicate what the outcome was of the meeting that
3 Abu Hafs had with these people in Mogadishu?
4 A. Yes, Abu Hafs said that he was going to support them in
5 their fight against US troops and he said they will support
6 them militarily and to kick out the United States by military
7 force.
8 Q. Did Odeh indicate to you how it was that Abu Hafs got to
9 Mogadishu, how he traveled there?
10 A. He went to Mogadishu disguised as a businessman. I don't
11 know the motive of how he got there.
12 Q. Did he tell you when it was that he saw Abu Hafs, what
13 month, do you recall, and what year, that he saw Abu Hafs on
14 his way back to Mogadishu?
15 A. I believe it was November of '93.
16 Q. Did he indicate whether or not Abu Hafs met with anybody
17 else while he was in Somalia, any other leaders?
18 A. Sorry?
19 Q. Whether Abu Hafs met with any other Somali leaders while
20 he was in Somalia at that time?
21 A. I believe a person named Ali Mani.
22 Q. What happened to the four trainers that came with Abu
23 Hafs?
24 A. They went to the Ogden region, to work with the Ogden
25 tribe in Somalia.
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1 Q. Did Odeh indicate why the four trainers who were with Abu
2 Hafs went to the Ogaden region?
3 A. They went there to train other Somalis.
4 Q. Did he indicate who it was that the Somalis being trained
5 were led by, who their leader was?
6 A. Sheik Hassan.
7 Q. Did Odeh indicate who Sheik Hassan was?
8 A. He was a leader of that Somali tribe.
9 Q. Did Odeh indicate what he did when these four trainers
10 went to Ogden to train these Somali people?
11 A. He also partook in the training. He was one of the
12 trainers that went there.
13 Q. Do you happen to recall the name of the place he said that
14 he and the four trainers went to in Somalia or the Ogden
15 region to train? If you don't know --
16 A. I do know it, but I just can't recall it right now.
17 Q. Did Odeh indicate whether there came a time when he left
18 Somalia and moved to Kenya?
19 A. Yes.
20 Q. Do you recall approximately when that was?
21 A. I believe it was in August of '94.
22 Q. Did he indicate whether he left Somalia and went to Kenya
23 alone or with someone else?
24 A. He left Somalia with that person Ahmed the Egyptian who I
25 described before as Abu Islam and Shuaib.
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1 Q. Did he indicate where he went in Kenya?
2 A. They went to the coastal city of Mombasa.
3 Q. Did he indicate what he did, what he and Ahmed the
4 Egyptian or Shuaib did when they got to Mombasa?
5 A. They rented a house.
6 Q. What happened after that?
7 A. He talked about him and Ahmed wanted to get married and
8 settle over there, and said that Ahmed wound up getting
9 married two months later.
10 Q. Did Odeh indicate whether he got married?
11 A. He did, but after that.
12 Q. Did he indicate how he met his wife?
13 A. Yes. He was introduced to his wife through his friend
14 Mustafa.
15 Q. Is that the same Mustafa you mentioned --
16 A. Yes, Khalid.
17 Q. Did Odeh tell you Mustafa's last name?
18 A. Fadhl, I believe.
19 Q. What did Odeh tell you about Mustafa Fadhl, what
20 nationality he was and whether or not he was a member of Al
21 Qaeda?
22 A. He was a member of Al Qaeda. He took bayat long before
23 him. He first met Mustafa, I think, in the Jihad Wal camp
24 back in '92 while he was getting his second phase of training.
25 Q. Did he indicate what country Mustafa was from, what his
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1 nationality was?
2 A. I think he's Egyptian.
3 Q. Did Odeh indicate whether Mustafa ever worked anyplace
4 outside of Kenya, the Kenya, Tanzania area, following 1994?
5 A. Yes. He worked in a business, an import export business
6 with another person, Fahad.
7 Q. Where was that import expert business located?
8 A. He spent a lot of time in Dar es Salaam.
9 Q. Did Odeh ever indicate whether Mustafa Fadhl ever worked
10 in the Sudan?
11 A. Yes, he did.
12 Q. Did he indicate what type of work he did in the Sudan?
13 A. He worked with Usama Bin Laden's group in Khartoum.
14 Q. Did Odeh indicate who attended his wedding?
15 A. Yes.
16 THE COURT: Whose wedding?
17 MR. FITZGERALD: I am sorry, Odeh's wedding.
18 A. Mustafa, Ahmed, another person named Harun.
19 Q. What did Odeh tell you about this person named Harun, who
20 he was and where he was from?
21 A. He said that Harun was also an Al Qaeda member. He was
22 also in the camps in Afghanistan. He knew him from Somalia.
23 Q. Did he indicate where he was born or grew up?
24 A. All right. He is Comoros Islands, from Comoros.
25 Q. You told us a few moments ago about how Odeh described to
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1 you seeing Abu Hafs in Somalia. Did Odeh indicate whether or
2 not he ever saw Abu Hafs in Kenya?
3 A. Yes.
4 Q. What did he tell you about that?
5 A. After arriving in Kenya, Abu Hafs came to see him later
6 on, couple of months later in Mombasa, October or November of
7 that year, and he told Odeh that he was going to set him up in
8 a fishing business, and he gave him a fiberglass boat, and he
9 said that he was going to have two employees who were also Al
10 Qaeda members, and that he could take a small salary for
11 himself just for his own expenses and living, and the other
12 two people would get salaries, and the rest of the profits
13 would remain for Al Qaeda.
14 Q. During your interviews of Odeh, did he ever talk to you
15 about a person by the name of Saleh?
16 A. Yes.
17 Q. What did Odeh tell you about Saleh?
18 A. Saleh is the leader of the Al Qaeda cell of people in
19 Kenya, and that he has a lot of contact with Usama Bin Laden
20 and the hierarchy in Afghanistan.
21 Q. Did he indicate to you what nationality Saleh was?
22 A. That he was Egyptian.
23 Q. Did he indicate any other names that Saleh was known by?
24 A. He was also known as Abu Miriam and Abdellah Ahmed
25 Abdellah, and Abu Mohamed.
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1 Q. Let's go through those more slowly. Abu Miriam, did he
2 indicate any reason why Saleh would be known as Abu Miriam?
3 A. Because -- that means father of. Abu means father of
4 somebody. So he has a daughter, oldest daughter named Miriam.
5 Q. You mentioned Abdellah Ahmed Abdellah. Do you know if
6 that was his real name or not?
7 A. I believe that was his real name.
8 Q. You mentioned an Abu Mohamed. Did Odeh tell you anything
9 else about Saleh, what he did prior to becoming involved in
10 jihad?
11 A. Saleh, he believes that Saleh, or he said that Saleh was a
12 member of another, what is considered a terrorist group called
13 Egyptian Islamic Jihad, and he also stated that Saleh was very
14 athletic, and he had also been a soccer player and actually
15 obtained some fame in Egypt as a soccer player.
16 Q. Did Odeh tell you whether or not Saleh had ever been to
17 Somalia?
18 A. Yes.
19 Q. Did he indicate where in Somalia Saleh had gone to and
20 when?
21 A. Well, he said he was in Somalia and he was in Mogadishu.
22 Q. Did he indicate the year, the Odeh indicate to you the
23 year that Saleh was in Mogadishu?
24 A. Yes, in '93.
25 Q. During your interviews, did Odeh talk about a person by
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1 the name of Abdul Rahman or Abdel al Mahajur?
2 A. Yes, he did.
3 Q. What did he tell you about him?
4 A. Abdul Rahman, he first met Abdul Rahman in that Sadeek
5 camp that I mentioned before. He was one of the trainers in
6 explosives at the advanced explosive course in Sadeek camp.
7 Q. Did Odeh indicate whether or not Abdul Rahman was a member
8 of Al Qaeda?
9 A. Yes.
10 Q. Did he indicate his national origin?
11 A. I believe he is also Egyptian.
12 Q. Did Odeh indicate whether or not he ever saw Abdul Rahman
13 in Somalia?
14 A. Yes.
15 Q. What did he say about that? Did he see him or not, in
16 Somalia?
17 A. He told me in the interview that Abdul Rahman was in
18 Somalia. I can't recall if he actually saw him there.
19 Q. You mentioned a person named Ahmed the Egyptian, or
20 Shuaib, or Abu Islam. What did Odeh tell you about his
21 background during the course of the interviews?
22 A. He met Ahmed the Egyptian also at the Jihad Wal camp in
23 '92, and he was in Somalia with them. He was one of those
24 four trainers that was in the company of Abu Hafs coming back,
25 you know, when they were in Somalia, and Ahmed the Egyptian
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1 left Somalia with Odeh.
2 Q. Did he indicate to you whether he was a member of Al
3 Qaeda?
4 A. Yes, he is.
5 Q. Did he indicate whether or not Ahmed the Egyptian or
6 Shuaib ever worked in the Sudan?
7 A. Yes, he did. After he got married to, I believe his
8 wife's name was Meena, they moved back to Khartoum, Sudan.
9 That was where Bin Laden's headquarters was at the time. And
10 he went to work for Bin Laden over there.
11 Q. Did Odeh indicate to you what type of work Shuaib or Ahmed
12 the Egyptian did for Bin Laden in the Sudan?
13 A. Right, he worked in the agricultural part of Bin Laden's
14 business, buying and selling agricultural products, and he
15 also did some financial work for Bin Laden.
16 Q. Did Odeh indicate whether or not Ahmed the Egyptian or
17 Shuaib ever returned to Kenya after working in the Sudan?
18 A. Yes, he did.
19 Q. Did he indicate when he returned and the town where he
20 lived?
21 A. He didn't stay in Sudan all that long. I don't know
22 exactly he returned, but I know he settled in a town of
23 Malindi.
24 Q. Did Odeh talk to you during the course of the interviews
25 about a person named Fahad?
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1 A. Yes, he talked about Fahad.
2 Q. Just give us a general description of what Odeh told you
3 about the background of Fahad?
4 A. He said that Fahad was a young guy who was born in Kenya.
5 I believe, I think he might be of Yemeni descent. I'm not
6 quite sure. But he described him as a young guy who was
7 searching for jihad, who was really wanting to get involved
8 with the jihad.
9 Q. Did Odeh indicate to you how it was that he met or who it
10 was that put him in contact with this person named Fahad?
11 A. I believe he met him through Mustafa, because Mustafa was
12 in that business with him.
13 Q. Is that the person you said before was Mustafa Fadhl?
14 A. Yes.
15 Q. Did he indicate whether or not Fahad ever received any
16 training?
17 A. Yes. He wanted training so badly that he even paid his
18 own way. He went and took a very advanced explosive course in
19 Afghanistan that he had to pay $6,000 out of his own funds to
20 go to.
21 Q. Did he indicate how long that class was that Fahad took
22 for $6,000?
23 A. Yes, it was 60 days. And Odeh also said that Fahad had
24 even more knowledge of explosives than he did.
25 Q. Than Odeh did?
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1 A. Than Odeh did.
2 Q. Did Odeh indicate whether or not he liked spending time
3 with Fahad?
4 A. The gist of what he said about Fahad is that he really
5 didn't trust him all that much. He thought that Fahad knew
6 too many things about that little cell. He complained that
7 Fahad knew all the guys in that cell, all their nicknames, and
8 he didn't think that was a good idea, that he would know so
9 much about everybody.
10 Q. Did Odeh indicate whether or not there came a time when
11 Fahad brought him any material?
12 A. Yes. At a time Fahad brought him a block of TNT and an
13 electrical detonator, blasting cap.
14 Q. Do you recall if Odeh told you the year it was that Fahad
15 brought him the TNT and the detonator?
16 A. I would like to say '97 but I am not quite sure.
17 Q. Let me see if I can refresh your recollection. I show the
18 witness what has been premarked as Government's Exhibit 6 in
19 the 3500 material -- why don't we move it along and come back
20 to the date later.
21 What did Odeh indicate to you the block of material
22 looked like?
23 A. He described the block that Fahad showed him as pale
24 green.
25 Q. What did Odeh indicate to you he thought of the TNT
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1 because of its color?
2 A. He said it wasn't the best. He said the best TNT was
3 yellow.
4 Q. What did Odeh indicate to you would happen -- I am sorry.
5 Did Odeh indicate where it was that Fahad got the TNT
6 and the detonator?
7 A. He said that he got that in Tanzania, that there was lots
8 of explosives there and readily available.
9 Q. What if anything did Odeh tell you about what would happen
10 to the information that Fahad could get TNT from Tanzania?
11 A. Odeh stated that if Fahad had developed a source of
12 explosives that was easy to get, that that should be reported
13 back to the hierarchy at Al Qaeda.
14 Q. Did he indicate whether or not Fahad ever traveled to
15 Afghanistan?
16 A. Yes, he spent a year in Afghanistan.
17 Q. Let me just approach you with page 19 of Government's
18 Exhibit 6. I will ask you if reading that document refreshes
19 your recollection as to the time Odeh indicated that Fahad
20 showed him the TNT?
21 A. On this document it says that --
22 Q. Don't tell us what the document says. I am asking you --
23 A. No, two and a half years ago from '98.
24 Q. So it would be 1996, not 1997?
25 A. Right.
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1 Q. During the discussion with Mr. Odeh, did he ever indicate
2 to you whether he ever went by the American Embassy in
3 Nairobi, ever stopped there?
4 A. Odeh?
5 Q. Yes.
6 A. Yes, he did.
7 Q. Did Odeh tell you the circumstances under which he went by
8 the American Embassy, and, if you recall, what year that was?
9 A. The circumstances that he stopped at the embassy was, he
10 was trying to renew his Jordanian passport, and he was looking
11 for another embassy, and he said he wandered into the U.S.
12 Embassy, and that was probably '96, I believe.
13 Q. Are you certain of that year?
14 A. No, I am not certain.
15 Q. We will come back to the year in a moment. Did he
16 indicate whether or not he asked anyone in the embassy
17 anything when he visited? Did he indicate how he found the
18 other embassy he was looking for?
19 A. Yes. He asked the people, he asked the guard at the U.S.
20 Embassy where that other embassy was.
21 Q. During the time that you interviewed Odeh, did he talk to
22 you about a person named Abu Ubaidah al Banshiri?
23 A. Yes.
24 Q. Did he indicate what happened to Abu Ubaidah al Banshiri?
25 A. Abu Ubaidah al Banshiri, he said that he drowned in a
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1 ferry boat accident.
2 Q. Just so we can clear up the date before we move on, I show
3 you that same exhibit, page 12 --
4 MR. FITZGERALD: Your Honor, we have a stipulation
5 with Mr. Ricco that the date Mr. Odeh said he asked directions
6 at the embassy was 1994, just so the record is clear.
7 THE COURT: 1994?
8 MR. FITZGERALD: 1994.
9 Q. During your interview of Mr. Odeh, did he indicate what if
10 anything was done after people in Al Qaeda learned that Abu
11 Ubaidah had drowned in the ferry accident?
12 A. Yes. He said that they were very concerned about that,
13 and they wanted to confirm the fact that he had died, and they
14 sent an individual named Harun to go and confirm that he in
15 fact did die.
16 Q. Did Odeh indicate whether or not while Abu Ubaidah Al
17 Banshiri was alive, whether Odeh ever saw Abu Ubaidah in
18 Kenya?
19 A. Yes, he indicated that Abu Ubaidah came to visit him in
20 Mombasa two times.
21 Q. During your interviews with Mr. Odeh, did he talk about a
22 person by the name of Abu Fadhl, or Abu Fadhl al Makkee?
23 A. Yes.
24 Q. Did he indicate who Abu Fadhl was?
25 A. He indicated that he was also a high-ranking Al Qaeda
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1 member who they thought had been compromised that was talking
2 to the Saudi authorities.
3 Q. Did Odeh indicate what it was he thought Abu Fadhl was
4 talking to the Saudi authorities about?
5 A. I don't believe he said what they were talking about but
6 it caused Al Qaeda to change its operations.
7 Q. Did Odeh indicate what it was that Al Qaeda wished to do
8 in response to the fact that Abu Fadhl was talking to the
9 Saudi authorities?
10 A. They wanted to figure out a way to assassinate him.
11 Q. Did Odeh talk to you at all about an entity known as the
12 Mercy International Relief Agency?
13 A. Yes.
14 Q. What did he tell you about the Mercy International Relief
15 Agency?
16 A. That was also -- it was run by a guy in Nairobi named
17 Tawhili, and that organization had ties to Al Qaeda, and Harun
18 and Abu Ubaidah al Banshiri were close to that organization.
19 Q. Did Odeh indicate to you what the word Tawhili meant?
20 A. The tall.
21 Q. During the course of your interviews, did Odeh talk about
22 an organization known as Help Africa People?
23 A. Yes.
24 Q. Did he indicate to you whether or not he received anything
25 from Help Africa People?
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1 A. He said he received an identity card from that
2 organization.
3 Q. During the course of the interviews, did Odeh describe to
4 you whether or not Harun from the Comoros was a member of Al
5 Qaeda?
6 A. Yes.
7 Q. Did he describe to you what Harun's appearance was, what
8 he looked like?
9 A. He described him as small and thin, with shiny brown skin,
10 a small nose, and just said he looked Somali, he looks like a
11 Somali.
12 Q. Did Odeh describe to you any particular tasks that Harun
13 performed for Al Qaeda?
14 A. Yes. Harun, he said that Harun was a good typist, and,
15 you know, he spent a lot of time at MIRA, the organization we
16 just talked about, and he would type reports for the hierarchy
17 in Al Qaeda.
18 Q. And when you said MIRA, MIRA, are you referring to the
19 Mercy International Relief?
20 A. Yes, Mercy International Relief.
21 Q. Did Odeh indicate to you what was contained in those
22 reports that he typed for the hierarchy?
23 A. In those reports they were using certain code words to
24 conceal what their true intentions were.
25 Q. Did Odeh describe to you what some of the code words were
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1 and what they meant?
2 A. Yes, he gave me a list of about four. For example, the
3 word working means jihad. Tools mean weapons. Potatoes mean
4 hand grenades. Papers mean bad documents. And the word goods
5 mean fake documents of a particular country, and he gave me an
6 example of how were the goods from Yemen, which would mean we
7 need fake documents for Yemen.
8 Q. Did he describe what he meant by fake documents, what kind
9 of documents?
10 A. Travel documents, things of that nature.
11 Q. Did Odeh indicate to you what it was that Harun would do
12 with these reports once they were typed?
13 A. Once they were typed, Harun would fax it to Pakistan, and
14 since there was no electronic communications with the
15 leadership in Afghanistan, it would go by courier to the Al
16 Qaeda leadership.
17 Q. Did Odeh indicate to you who, what Al Qaeda leaders were
18 receiving the reports from Harun?
19 A. I am sorry.
20 Q. Did he indicate who the Al Qaeda leaders were that were
21 receiving these reports from Harun?
22 A. Yes. It was Abu Hafs and Fadhl and a third person, I
23 can't remember.
24 Q. Did Odeh indicate whether or not Harun had any training in
25 explosives?
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1 A. Yes, he did.
2 Q. Did he indicate whether or not Harun was capable, his
3 explosives experience made him capable of blowing up an
4 embassy?
5 A. Yes. Odeh said that if that bomb was built by them it was
6 most likely built by Harun and Abdul Rahman.
7 Q. Did Odeh indicate whether or not Harun had better
8 explosives appearance than Odeh had -- explosives training, I
9 am sorry. If you recall.
10 A. I know Harun, I believe, went to the Sadeek camp too.
11 So --
12 Q. Don't --
13 A. I don't know.
14 Q. During your interviews, did Odeh talk about a person by
15 the name of Abu Osama?
16 A. Yes.
17 Q. What did he tell you about Abu Osama?
18 A. He described him as an Egyptian who is from America, and
19 that he went to Afghanistan to teach students in tactics of
20 avoiding capture and countering interrogation.
21 Q. Did Odeh tell you whether or not he knew of a person
22 referred to by the name Taysir el Masry?
23 A. Yes. He said that Taysir el Masry was another name for
24 Abu Hafs.
25 Q. Did Odeh talk to you about a person by the name of
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1 Azmarai?
2 A. Yes. He stated that the word Azmarai in the Afghani
3 language means lion --
4 Q. Like Lion King, lion.
5 A. -- and that he had his own cell and that he was in US
6 custody and that he would take revenge for him being in US
7 custody.
8 Q. When you say he, who are you referring to?
9 A. When I say he, I mean Usama Bin Laden.
10 Q. Directing your attention to March of 1997, did Odeh
11 indicate what it was that he was doing in March of 1997?
12 A. In March of '97, Odeh, along with Mustafa and Ahmed the
13 Egyptian, were sent back by orders of Bin Laden back to
14 Somalia to, as he says, assess the situation.
15 Q. During the time that you interviewed Mr. Odeh, did he
16 indicate whether he was paid as a member of Al Qaeda?
17 A. Yes.
18 Q. Did he indicate when was the last time he received his Al
19 Qaeda payment of salary?
20 A. He stated that the way they got paid was on a yearly
21 basis, and he was paid in -- he was paid up until after August
22 of '98. He was paid the year before, but that covered the
23 whole year.
24 Q. So he was paid sometime in late '97?
25 A. Yes, late '97, and he was good till late '98.
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1 Q. Did Odeh indicate how long he spent when he went to
2 Somalia with Ahmed the Egyptian and Mustafa?
3 A. I believe he went there for approximately seven months.
4 Q. Did he indicate what he did after that? Let me ask you
5 this: Did he ever return to Kenya from Somalia?
6 A. Yes, he came back.
7 Q. Did he indicate where he went to, what town?
8 A. He located to the town of Witu.
9 Q. Did he indicate what he was doing in Witu?
10 A. Yes. He had set up a furniture business with his
11 brother-in-law Omar.
12 Q. Did he indicate whether or not -- what year was this that
13 he moved to Witu and set up the furniture business?
14 A. I would say late '97, early '98.
15 Q. Did Odeh indicate to you whether or not he ever saw the
16 person named Saleh in 1998?
17 A. Yes.
18 Q. Can you tell us as you recall what Odeh told you about the
19 occasions when he met Saleh?
20 A. In March of '98, he went to Mombasa to do some furniture
21 business with Omar, and he met Saleh in Mombasa, and Saleh
22 told him that they were going to have a meeting that night
23 that he had to come to in the town of Malindi, and at that
24 meeting there would be the other sell people there. It was
25 Saleh, Odeh, Ahmed the Egyptian, and Harun, and Mustafa was
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1 not there. He was traveling in Tanzania, I believe he was in
2 Dar, Dar es Salaam.
3 Q. What happened at the meeting?
4 A. In that meeting Saleh indicated that he had just returned
5 from Afghanistan and that he had received word from Bin Laden
6 that he was going to start to get the people, the Al Qaeda
7 people out of Kenya.
8 (Continued on next page)
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1 Q. And did Saleh indicate that the people there at the
2 meeting should do anything?
3 A. Yes, he said that you should start getting your affairs in
4 order and start getting documents.
5 Q. And did Odeh indicate -- you mentioned that Odeh was in
6 Dar es Salaam. Did Odeh indicate what it was that Mustafa was
7 doing?
8 A. That Mustafa was in Dar es Salaam.
9 Q. Did Odeh indicate what it was Mustafa was doing in Dar es
10 Salaam at that time?
11 A. I believe he was doing business that he was involved with
12 with Fahad.
13 Q. And did Odeh indicate what type of business?
14 A. That it was an import-export business.
15 Q. Now, did there come a time that Odeh indicated whether he
16 saw Mustafa again after the meeting with Saleh?
17 A. Yes, Mustafa came to see him the following month in April
18 of '98 and he came with, also with instructions to start
19 getting ready to go.
20 Q. Did Odeh indicate whether or not he and Mustafa talked
21 about any developments in al Qaeda at that time, any
22 statements?
23 A. Right, they talked about the, it was called the fatwahs
24 that were issued by Bin Laden in 1998 and they had a
25 conversation regarding al Qaeda taking on the United States as
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1 an enemy and if it was a wise thing to do since the United
2 States was so powerful and some -- they also discussed that
3 some leadership in al Qaeda weren't really sure if that was a
4 good thing to do, but they all wound up supporting Bin Laden
5 in doing what he wanted to do.
6 Q. Did Odeh indicate whether he saw or received any further
7 messages from Saleh after that point?
8 A. I believe about three months before August, as he
9 describes it, he said that Mustafa came to see him again three
10 months before August with another message about hurry up, get
11 your documents in order, there's an emergency situation and
12 that we have to start getting ready to travel.
13 Q. Did Odeh indicate whether or not there came a time when he
14 saw Ahmed the Egyptian, or Shuaib?
15 A. Yes. Approximately -- this is the way he describes it --
16 40 days before they travel, meaning August 6th, so 40 days
17 before August 6, Ahmed the Egyptian came to see him in Witu in
18 his home and he brought with him two messages.
19 One message was that an individual named Sheik
20 Hassan, who was a leader of a Somali tribe, and that Sheik
21 Hassan wants to go see Usama Bin Laden and that one of the
22 three, Odeh, Ahmed the Egyptian, and/or, I should say, or
23 Mustafa had to actually escort him from Somalia to
24 Afghanistan.
25 And the second message was that they had received
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1 other messages from Bin Laden that Bin Laden was able to unite
2 other Islamic terrorist groups to join him in his fight
3 against the United States and that they would all get together
4 and make a front against the United States.
5 Q. Did Odeh indicate whether he had any discussions during
6 this time with Mustafa or Saleh about whether or not it was
7 appropriate to do operations in Kenya?
8 A. Yes. He had that type of conversation with both of them
9 and Saleh stated, he is the Kenyan conciliator, he said that
10 he would like to do an operation against the United States in
11 Kenya because he did not like Kenya or Kenyans. And Mustafa
12 had the opposite view. He said he wouldn't want to do an
13 operation in Kenya because he liked Kenya and the Kenyan
14 people.
15 Q. Did Odeh indicate to you which mind-set he shared?
16 A. I'm sorry?
17 Q. Did Odeh say which view he shared?
18 A. Yes. Odeh, he did not want to do an operation in Kenya.
19 He liked it there and he liked the people.
20 Q. During the course of the interviews with Mr. Odeh, was he
21 asked any questions, hypothetical questions, about what type
22 of operations he would participate in?
23 A. Yes.
24 Q. Do you recall what questions he was asked and what answers
25 he gave?
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1 A. Right. We posed to him certain hypothetical situations.
2 We said would you partake in an action against U.S. troops in
3 Saudi Arabia, and he stated that he would if it was
4 Islamically correct. And he would check before he would do
5 so, he would check with a religious authority to see if it was
6 okay because, he said, because I do not follow blindly like a
7 cat. And the second situation was, would you attack a U.S.
8 building or installation in Kenya if only Americans were
9 killed and no Kenyans were killed, and he said that he would
10 not because he likes Kenya.
11 The third situation was, would you attack a U.S.
12 installation or building outside of Kenya if no civilians were
13 killed, and he said, well, if it was Islamically correct, and
14 then he said, well, if it was Islamically correct and it was
15 ordered by Bin Laden, that he would have no choice but to
16 partake in it.
17 Q. During your interviews with Odeh, did he talk to you about
18 a person by the name of Sheik Bahamad?
19 A. Yes.
20 Q. And what did he tell you about Sheik Bahamad?
21 A. The way Sheik Bahamad first comes into -- plays into the
22 interview was on July 14th, while he was in Mombasa, he saw
23 Saleh. And Saleh is now pushing him to get his affairs in
24 order, it's really time to go. And he says to Odeh, you have
25 to get your documents, and Odeh told Saleh, I need money. And
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1 Saleh told him, go see Fahad, Fahad has money for you. And
2 then he told Saleh, well, Fahad's not here, he's in Tanzania.
3 And so Saleh didn't give him any other direction so
4 Odeh went to see his friend, his friend Sheik Bahamad, for
5 some money and he told Sheik Bahamad that he needed 6500
6 shillings, which Sheik Bahamad gave him. And Odeh told Sheik
7 Bahamad, don't worry, Fahad will pay you back.
8 And Sheik Bahamad is also a businessman. He owns a
9 small trucking company in Mombasa.
10 Q. Did he indicate, though, where Sheik Bahamad was from,
11 what his nationality was?
12 A. Yes, he did, but I just can't recall right now.
13 Q. And you mentioned that -- you referred to his friend. Was
14 Sheik Bahamad Odeh's friend or Fahad's friend?
15 A. Both.
16 Q. Did Saleh work with -- who worked in the trucking business
17 with Sheik Bahamad?
18 A. Fahad used to work as a driver for him.
19 Q. Did there come a time when Odeh told you during the
20 interviews that he saw Saleh again in Kenya after -- let me
21 strike that.
22 You mentioned before that there was a conversation
23 where somebody had to bring Sheik Hassan over to Afghanistan,
24 whether it be Odeh, Mustafa, or Ahmed the Egyptian?
25 A. Yes.
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1 Q. Did Odeh indicate whether or not Sheik Hassan ever --
2 first, whether he himself, Odeh, took Sheik Hassan to
3 Afghanistan?
4 A. He didn't.
5 Q. And did Odeh indicate whether Sheik Hassan ever went to
6 Afghanistan and came back?
7 A. Yes.
8 Q. What, if anything, did he tell you about what happened
9 when Sheik Hassan returned from Afghanistan?
10 A. Okay. July, late July, July 30th or 31st, seven days
11 before the bombing, Odeh finds Sheik Hassan in Mombasa. Sheik
12 Hassan has with him cassette tapes, a letter, and some
13 documents from the Saudi opposition in London. And he gives
14 these documents and tapes and letter to Odeh to deliver to
15 Saleh, and he does. And Saleh reads the letter and he just
16 says, this is nothing new.
17 Q. Can you describe what Odeh told you about what happened
18 during the week of August 1st through August 7th, 1998? If
19 you could try to go day-by-day. Let's focus on August 1st.
20 A. Okay, first of all, on -- everybody is starting to really
21 get into a mode that, you know, we have to start traveling and
22 get out real quick. On August 1st, first of all, the first
23 three cell leaders leave, okay. On August 1st, Ahmed the
24 Egyptian, Mustafa, and Sheik Bahamad leave for Afghanistan on
25 that day. Odeh is still in Mombasa and he is directed to
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1 try -- he has to find Saleh, but he keeps missing him.
2 Finally, he runs into Saleh with Fahad and Saleh is
3 extremely upset. He's even like, as Odeh says, he was yelling
4 at me in the middle of the street, we have to get out of here,
5 it's an emergency, we got to get out of here, you have to be
6 out of here by the 6th and you have to get your documents.
7 And then Odeh told Saleh that, I don't have my passport, and
8 Saleh said, well, I have a passport for you and we'll meet
9 tonight at your brother-in-law's house, Omar.
10 And so that night, Fahad and Saleh do come to Omar's
11 house and they give Odeh a -- I believe it's a Yemeni
12 passport, it's expired, and it has somebody else's picture on
13 it. And they tell him that tomorrow, on the 2nd, you better
14 get that stuff organized. Go to immigration authorities and
15 get a picture and get that passport up to date.
16 Q. Now, you mentioned that Odeh was told that he had to get
17 out of Kenya by the 6th. Is that a reference to the 6th of
18 August?
19 A. Yes.
20 Q. And did Odeh indicate whether or not in his prior
21 experience in al Qaeda he had received urgent orders like that
22 to leave places by a certain date?
23 A. Well, he saw it, he saw it coming, but regarding the 1st,
24 he stated that he had never seen anything so urgent before.
25 Q. And on August 1st, you mentioned that Saleh told him to
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1 meet at Odeh's brother-in-law's house that evening, correct?
2 A. Correct.
3 Q. And when he met at the brother-in-law's house that
4 evening, did Odeh indicate whether he had any conversation
5 one-on-one with Saleh?
6 A. On the 1st?
7 Q. On the 1st.
8 A. Yes.
9 Q. What did he say happened during that conversation?
10 A. That's when Saleh told him that he had to, that the other
11 people were traveling today and that he had to get his affairs
12 in order and leave.
13 Q. And on the 1st of August did anyone give Odeh any money?
14 A. On the 1st of August, yes. Saleh had given Mustafa a
15 thousand dollars to give to Odeh, and I guess before Mustafa
16 left on the 1st he got the thousand dollars from Mustafa and
17 that evening, also, he returned 400 of the thousand, I
18 believe, back to Saleh.
19 Q. Did Odeh indicate whether or not Mustafa told him any
20 reason why Mustafa and the two other people he was with had to
21 leave, leave Kenya?
22 A. He said that they were ordered to leave.
23 Q. Did he indicate, did Odeh indicate whether or not Mustafa
24 told him what, what it was that was to happen?
25 A. Mustafa told him that he felt something big was going to
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1 happen real soon.
2 Q. During the course of your interviews with Mr. Odeh, did he
3 indicate whether or not Saleh was in contact with the people
4 in Afghanistan, and if so, how?
5 A. He had been in contact with people in Afghanistan all
6 along, but I'm not quite sure if you mean on the 1st.
7 Q. No, just generally did he indicate whether Saleh was in
8 contact?
9 A. Oh, yes, he was the point of contact for the al Qaeda
10 group. He was -- actually, Odeh stated that Saleh was the
11 only one in the group that was allowed to make overseas phone
12 calls on behalf of al Qaeda.
13 Q. Directing your attention to August 2, did Odeh tell you
14 what happened on August 2nd?
15 A. Well, August 2nd was a Sunday and he was just ordered by
16 Saleh to get all his affairs in order and get his passport
17 fixed and a picture and all that stuff, but since it was
18 Sunday, Odeh decided to go visit his wife's aunt in Malindi to
19 settle up on some furniture business. And that's where he
20 went.
21 And while he was there, he got an angry, a real angry
22 phone call from Fahad saying, where are you? What are you
23 doing? And he said, Saleh wants to see you right away, and
24 they made an arrangement to meet because Saleh was leaving
25 that day on the 1st for Nairobi. So Odeh took a bus from
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1 Malindi back to Nairobi -- to Mombasa to try to hook up with
2 Saleh at the bus station. But he didn't arrive there until 9
3 and he missed -- I guess Saleh didn't wait for him, he left.
4 So then after that, he went back to his brother-in-law's to
5 sleep.
6 Q. Did Odeh indicate whether or not he understood whether the
7 immigration office was open on Sunday?
8 A. It was closed on Sunday.
9 Q. What happened? What did Odeh tell you happened on August
10 the 3rd, Monday?
11 A. On the 3rd, on Monday, he had slept at Omar's house in
12 Mombasa that night, and that morning, early, around 7:30,
13 Fahad came to pick him up. And that was the day they had to
14 get all these things done. So he picks him up and they go to
15 the immigration office to start to work on the passports.
16 Then Odeh tells Fahad, why don't you do it for me, I
17 really have to get back to my brother-in-law, Omar, because I
18 have to make arrangements for my wife and child to live with
19 him because I'm leaving. So he did that. So I guess Fahad
20 took care of the documents, and he later meets up with Fahad
21 and then they go to a thing called Eagle Travel Agency to buy
22 their airline tickets for, from Nairobi to Karachi.
23 Q. And did Odeh indicate what happened after the tickets were
24 purchased at the Eagle Travel Agency, what Odeh and Fahad did
25 that night, the that rest of the day?
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1 A. Well, after they purchased the tickets Fahad told Odeh,
2 gave him instructions as for Saleh that Odeh had to travel
3 that day and meet the people who were leaving in Nairobi, and
4 he gave him the address of the Hilltop, Hilltop Hotel in
5 Nairobi. He gave that address to Odeh, told him to meet Saleh
6 at the Hilltop Hotel.
7 Q. And did Odeh tell you what it was that Fahad told Odeh he
8 was going to do that day?
9 A. He said he had something else to do and he will be
10 traveling later.
11 Q. Did Odeh tell you during the interviews what then happened
12 after Fahad told him to go to the Hilltop Hotel and meet
13 Saleh?
14 A. Okay, now we're getting into the evening of the 3rd, so
15 Odeh took a bus that travels all night from Mombasa to
16 Nairobi. And he was on the bus all night alone, he says, and
17 arrived in Nairobi at 7:30 a.m. the following day, the 4th.
18 Q. And did Odeh indicate to you what happened on the 4th once
19 he arrived in Nairobi?
20 A. Well, he arrived at 7:30 in the morning and he said he was
21 very tired. He checked into the hotel. He used that passport
22 given to him by Saleh with the fake name to register, and then
23 he went for a nap. And around noon he said that he woke up
24 and ran into Saleh and Harun. They were leaving, leaving the
25 hotel.
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1 When Saleh saw him, Saleh gave him a razor and a pair
2 of pants and told him to shave his beard, and he continued on
3 to Saleh's room and in Saleh's room was Abdel Rahman, the same
4 Abdel Rahman that was his trainer in explosives in the Sadeek
5 Camp.
6 Q. I'm going to stop you there a moment. When you said that
7 Odeh told you he checked into the Hilltop Hotel and took a
8 nap, did he tell you what room he stayed in in the Hilltop
9 Hotel?
10 A. 102B.
11 Q. And you indicated that when he saw Saleh and Harun, Saleh
12 had given him a razor. Did Odeh indicate whether or not he
13 ever did shave the beard?
14 A. Yes, he says he shaved it the following day.
15 Q. And did Odeh tell you why he shaved his beard?
16 A. He shaved it so he would conceal himself being a Muslim
17 while traveling.
18 Q. And you mentioned that he saw Saleh and Harun and Saleh
19 and Harun left and he went to Saleh's room, correct?
20 A. Yes.
21 Q. Did Odeh indicate whether or not Saleh and Harun told him
22 anything about what they were going to do at that point?
23 A. They said they were going out to do a small job.
24 Q. And did Odeh indicate to you what he understood "a small
25 job" to refer to?
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1 A. Well, he knew it was not shopping or something like that,
2 he knew it was to do some al Qaeda work.
3 Q. And when he got to the room where Saleh was, did he
4 indicate what room number that was?
5 A. 107A, I believe.
6 Q. And you mentioned that he, when he got there he saw Abdel
7 Rahman, who he knew as the explosives trainer from the past.
8 Did he indicate whether or not he knew Abdel Rahman
9 would be in that room when he got there?
10 A. He didn't know he was going to be in that room. He was
11 actually -- it's hard to describe. He said, I was surprised
12 to see him, but not shocked. You know, it was like, it
13 figures you're here, but he wasn't expecting to see him and he
14 also stated that it made sense, this was al Qaeda business and
15 all the al Qaeda people were traveling, so it didn't shock him
16 to see Abdel Rahman at the hotel.
17 Q. Did Odeh tell you whether he learned how long Abdel Rahman
18 had been at the Hilltop Hotel?
19 A. Yes, he stated that he knew that Abdel Rahman -- I guess
20 he found out later that Abdel Rahman was staying at the
21 Hilltop Hotel for the past two months.
22 Q. And you mentioned that Harun and Saleh left to go do a
23 small job. Did Odeh indicate whether he ever saw Harun and
24 Saleh return?
25 A. Yes, he stated they returned I think about 4:00 p.m.
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1 Q. During the course of the interview did Odeh indicate
2 whether he knew what kind of vehicle Harun had?
3 A. I think it was a white pickup truck, Toyota.
4 Q. And sticking with August 4th for the moment, did Odeh
5 indicate what happened with the various people, Saleh, Harun,
6 Abdel Rahman, and he did on the evening of August 4th?
7 A. On the evening of August 4th, Abdel Rahman and Harun leave
8 the Hilltop Hotel and stay away all night. I think he said
9 that Rahman might have slept at Harun's house. Harun had a
10 house in Nairobi. And then he went to stay with Saleh that
11 night. They were talking in Saleh's room and they were
12 talking about a magazine article in, I believe it was an
13 Egyptian publication about Egyptian terrorism and wanted
14 terrorists and they discussed, they were wondering if Abu
15 Hafs' picture would be in that magazine.
16 Q. And did Odeh indicate what Saleh's demeanor was that
17 evening?
18 A. Saleh's demeanor was he was extremely worried and I
19 believe he was saying some kind of prayers for anxiety and for
20 worry, for being worried.
21 Q. Did Odeh indicate where he slept that night?
22 A. Yes, he slept in Saleh's room.
23 Q. Did Odeh indicate to you during the course of the
24 interview, did he indicate to you whether he thought at that
25 time whether there was something going to happen in Kenya?
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1 During the interview, did Odeh say anything about
2 whether at that time he thought an operation was going to be
3 carried out in Kenya.
4 A. On the day of the 4th, on that evening?
5 Q. Yes.
6 A. He actually stated that when people were there, the cell
7 people, nobody talked about anything; even though the climate
8 was urgent, nobody discussed anything.
9 Q. Now, tell us what Odeh told you about the following
10 morning, the morning of August 5th.
11 A. Odeh states that when he woke up on the morning of August
12 5th, he saw Haroun having breakfast with Saleh, and then a
13 little later after that, Saleh and Harun were leaving the
14 hotel. So Odeh asks Saleh, while you're out, can you pick me
15 up a Nike bag -- a travel bag, I should say -- a travel bag,
16 socks and a shirt, something like that, and then he says, is
17 there anything I can do? Odeh asks Saleh, is there anything I
18 can do?
19 So Saleh tells him, why don't you stay at the hotel
20 and wait for Abdel Rahman. So I guess he had, you know,
21 probably hadn't returned from the night before, he was out at
22 Harun's. He said, stay and wait for Rahman, and he did.
23 However, Saleh and Harun returned before Rahman came back, so
24 he went outside, he left the hotel at about 2:00 to go for a
25 walk and buy some stuff on Moi Avenue.
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1 Q. Did Odeh indicate how Abdel Rahman and Harun were dressed
2 on August 5th, what kind of clothing they were wearing?
3 A. On August 5th they were wearing the same clothes they were
4 wearing on August 4th, when they left and stayed out all night
5 together.
6 Q. During your interview did Odeh indicate whether or not he
7 saw the American Embassy when he went shopping on Moi Avenue
8 on August 5th?
9 A. He said he did not.
10 Q. Did Odeh indicate whether or not he knew where the
11 American Embassy was?
12 A. He said he didn't.
13 Q. Did Odeh indicate what, if anything, he bought when he
14 went on the shopping trip?
15 A. He bought, I believe, a shirt and two books.
16 Q. Did Odeh indicate what happened on the evening of August
17 5th?
18 A. On the evening of August 5th, it was now Saleh and Harun
19 that left the Hilltop Hotel and stayed out all night.
20 Q. Where did Odeh stay? Did he stay at the Hilltop Hotel or
21 elsewhere?
22 A. At the Hilltop, yes.
23 Q. Can you tell us what happened on the morning of August
24 6th?
25 A. On the morning of August 6th -- this is the last day --
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1 first thing he says is he sees that Ahmed from -- another
2 Ahmed now, because the other Ahmed is gone -- Ahmed from
3 Tanzania shows up at the hotel, along with Fahad, okay, and he
4 says that Saleh and Harun returned back to the Hilltop Hotel
5 at 9 a.m.
6 Q. How were they dressed?
7 A. They were also dressed in the same clothes they had on the
8 night before.
9 Q. Did Odeh indicate to you what the mood of Harun and Saleh
10 was when they returned at the hotel on the morning of August
11 6th?
12 A. He said that Saleh was now very happy, not worried, was in
13 good spirits, and that Harun was his normal self.
14 Q. Did Odeh indicate to you during the interview whether or
15 not Saleh indicated whether he was in touch on that day or had
16 been in contact with people, anyone in Afghanistan?
17 A. Yes. Now Odeh says that he had a conversation with Saleh.
18 Saleh tells Odeh, I just got news from Kandahar, which is an
19 area in Afghanistan, that all the people have been evacuated.
20 And Odeh says, what do you mean? And he says, well, we're
21 expecting a retaliation by the United States Navy, we're
22 expecting their warplanes to start hitting us and we're
23 expecting missile attacks. And then Odeh says that he doesn't
24 pursue that comment.
25 Q. You mentioned Ahmed the Tanzanian and Fahad coming that
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1 day. Did Odeh indicate whether or not they were staying at
2 the Hilltop Hotel?
3 A. No, they were staying at a hotel on the same side of the
4 street about 50 meters down the street.
5 Q. Did Odeh indicate whether or not he left the Hilltop Hotel
6 for any time period during August 6th to do anything?
7 A. Yes. He went out, he left the -- well, at 3:00 he left to
8 go out to buy, I think he bought a towel and a bag, and
9 returned to the hotel at about 5:00.
10 Q. Do you know what type of bag it was that Odeh said he
11 bought?
12 A. Nike, a Nike bag, I think.
13 Q. Did he indicate what happened when he returned to the
14 hotel?
15 A. When he returned to the hotel, he found Fahad. Fahad was
16 there, and now they were alone because the other three guys
17 had left that day, too. Ahmed from Tanzania, Abdel Rahman and
18 Saleh left that day at 3:00. They had a flight out of Nairobi
19 at 3 to Karachi.
20 Q. Did he indicate what airline those three men flew on?
21 A. I think Kenyan Air.
22 Q. And did Odeh tell you what it was that he and Fahad did on
23 August 6th in the afternoon?
24 A. When he got back to the hotel he said he saw Fahad, and
25 Odeh also said before he returned, he also got his shoes
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1 shined. And when he got back to the hotel, Fahad's there so
2 they decide to go out for dinner at a place called Malindi
3 Dishes and Fahad gets his shoes shined also.
4 Q. And did Odeh indicate whether or not before Saleh left
5 that day Saleh gave anything to anyone?
6 A. Yes. Before Saleh left, he gave $500 to each person who
7 was traveling and said that that money was to be used for
8 bribes, if you had to bribe somebody at the border or
9 something, and for personal expenses.
10 Q. Now, during the course of the interview with Mr. Odeh, did
11 he indicate anything about any other actions that were being
12 taken in Afghanistan besides the people relocating from
13 Kandahar? Were they making any other changes?
14 A. Well, Saleh said that he was in contact with Abu Hafs and
15 that Abu Hafs said that they were, you know, to quote him,
16 changing the lines. And he didn't understand, he assumed that
17 to mean changing phone lines.
18 Q. When you say "he assumed that to mean," Odeh said that he
19 assumed?
20 A. Odeh assumed to mean. He said, I assume that was the
21 phone lines.
22 Q. Did Odeh indicate what it is he did the rest of the day on
23 August 6th with Fahad?
24 A. Well, you know, they went out for dinner and Fahad got his
25 shoes shined and stuff, but they had a 10 p.m. flight that
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1 night to leave Nairobi and they were expecting that Harun was
2 going to drive them to the airport, but Harun never did it.
3 So they took a taxi to the airport that night.
4 Q. Did Odeh indicate to you what happened when the plane
5 arrived in Pakistan?
6 A. Yes. Odeh stated that Fahad got through and that he got
7 caught with bad documents by the Pakistani service.
8 Q. Just so we're clear, who got caught with bad documents?
9 A. Odeh got caught with bad documents.
10 Q. Now, during the time that you interviewed Odeh, did he
11 tell you how terrorist operations in general are carried out?
12 A. Yes. He described during a typical terrorist operation,
13 that it's broken down into two cells. You have your one cell
14 that gets there ahead of time and they do all the logistics
15 and planning. They observe the building, they do
16 surveillances.
17 If it's difficult to do a really covert surveillance
18 where you're going to get picked up, they would maybe set up a
19 food stand or buy or set up some kind of a shop nearby to the
20 target and observe the target and look for weaknesses. They
21 might even send somebody to the target to try to get in, you
22 know, asking questions to see how tough the security was. And
23 then all this would be used to, you know, set up the
24 operation, all this intelligence-gathering that that cell does
25 and acquiring of the explosives and building the bomb and all
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1 that kind of stuff.
2 The second cell is the actual people who arrived and
3 do the act itself.
4 Q. Did he indicate to you with regard to explosives where
5 the, as a general matter, where the best place to put
6 explosive is if you are attacking a target that is a building?
7 A. The best place he said was to get the explosive charge
8 inside the building.
9 Q. And can you indicate what was the next best alternative if
10 you couldn't get the explosive charge inside the building?
11 A. Is to get the charge as close to the building as possible.
12 Q. During the course of the interviews did you discuss with
13 Odeh general characteristics of a bomb, how to make one?
14 A. Yes. He displayed knowledge of how explosives work. He
15 gave me an example of TNT. He said that the best way to
16 detonate TNT is to use another type of explosive called det.
17 cord and he said that ten -- it's like a rope, det. cord, and
18 that ten centimeters of det. cord would be good to initiate
19 5.5 kilos of TNT.
20 Q. And did he indicate whether there was an alternative
21 tousing the 10 centimeters of detonation cord?
22 A. Yes, that you could use a blasting cap.
23 Q. Did he indicate whether there was a formula how many
24 blasting caps you would need versus the cord?
25 A. Yes, he did. I believe it was one blasting cap for 5
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1 kilos of TNT.
2 Q. And did Odeh indicate to you any of the properties of TNT,
3 what you could do with TNT if you were using it to make a
4 bomb?
5 A. He said that you can actually melt TNT by heat, but that
6 it has to be done outside because of the fumes. He also
7 stated that you can use -- with TNT you can use metal, it's
8 called a shape charge, where you put the metal around the TNT
9 so when it goes off, all the force of the blast you can aim
10 the -- you can actually aim the force in one direction.
11 Q. Did he talk to you about different types of detonators?
12 A. Yes. He said he was familiar with three types of
13 detonators: electrical detonator, mechanical and a fuse.
14 Q. Did he indicate which one was the best one to use for a
15 particular type of operation?
16 A. The best type is to use either an electrical detonator or
17 a mechanical detonator that would, what he described as
18 command detonate, where you can command detonate actually
19 yourself.
20 Q. During the course of the interviews, is it fair to say
21 that Odeh told you that he did not know in advance that the
22 bombing would happen?
23 A. Yes, that's fair to say.
24 Q. Did he indicate to you during the course of the interviews
25 how he thinks the bombing was done and who he thought did it?
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1 A. Well, I --
2 Q. Let me make that two questions. Did he indicate during
3 the course of the interview who he thought had bombed the
4 American Embassy?
5 A. That his cell, Saleh and company.
6 Q. Did he indicate who he thought had built the bomb and
7 where?
8 A. He thought that it was Harun and Abdel Rahman building the
9 bomb at Harun's house.
10 Q. That would be the bomb of the American Embassy in Nairobi?
11 A. Yes.
12 Q. Did he indicate who he thought built the bomb for the
13 embassy in Tanzania?
14 A. He made a statement that he believed that Abdel Rahman
15 could have built that one, too.
16 Q. During the course of the interview, did Odeh indicate to
17 you how he thought one could get explosives into Nairobi?
18 A. Yes. He gave us a situation where explosives could be
19 smuggled into Nairobi in boxes of lobsters.
20 Q. Did he indicate that in fact it was smuggled that way, or
21 is that his indication of how they could have been smuggled?
22 A. Could have been smuggled.
23 Q. Did Odeh during the interviews make comments to you what
24 he thought of the actual bombing and how it was carried out?
25 A. He thought it was a blunder. He blamed Saleh for making a
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1 big mistake. He didn't like the fact that so many civilians
2 and Kenyans were killed. He said that the bombing of Khobar
3 Towers was a hundred times better and that the individuals who
4 had the, who drove the truck with the explosives should have
5 got it into the building or died trying.
6 MR. FITZGERALD: Before we continue, I think you were
7 going to give an instruction.
8 THE COURT: With respect to the Khobar matter, the
9 parties have stipulated that no defendants are charged with
10 participating in the Khobar bombing or in conspiring with
11 respect thereto.
12 That's a stipulation.
13 MR. FITZGERALD: Thank you, Judge.
14 BY MR. FITZGERALD:
15 Q. Did Odeh tell you what he thought, how he thought the
16 mistake had been made with regard to the bombing that caused
17 so many civilians to be killed?
18 A. Well, one, they couldn't get it into the building and,
19 two, the bomb was in the back of a pickup truck. So, you
20 imagine how a pickup truck is. The bomb is in the back. He
21 said that the truck should have been backed into the target
22 closely, okay, because the cab in front would act as a
23 diversion for the explosion.
24 So what actually happened is the truck came in nose
25 first and when the bomb went off, he said that the force of
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1 the explosion actually ricocheted for a second off the cab,
2 which diverted the explosion and caused so much more damage in
3 the area.
4 Q. So we're clear, what he's telling is you what he thinks
5 the mistakes were that were made that would have caused the
6 buildings nearby to be hit by the bomb explosion?
7 A. Yes.
8 Q. During the time that you interviewed Mr. Odeh, did he
9 indicate to you why it was that he was talking to you?
10 A. Yes. He stated that the reason he was talking to us now
11 was because the people that he was with were pushing him and
12 pushing him and pushing him and they're all gone and he's left
13 here facing big problems.
14 Q. And then two last questions. During the time that you
15 spoke to Mr. Odeh did he ever talk about a person by the name
16 of Fawwaz? Fawwaz?
17 A. Fawwaz.
18 Q. If you recall.
19 A. I know that he did, but I don't recall.
20 Q. During the time that you spoke to him, did Odeh indicate
21 whether or not he was aware of a search conducted of a house
22 in Nairobi prior to 1998? Just yes or no.
23 A. Yes.
24 Q. Did he indicate to you who the person that was present,
25 present in the house at the time of the search, whether there
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1 was a man present?
2 A. Yes, there was.
3 Q. Can you indicate the name of the man?
4 A. Mohamed Karama.
5 Q. K-A-R-A-M-A?
6 A. Yes.
7 Q. Thank you.
8 MR. FITZGERALD: If I may have one moment, your
9 Honor.
10 (Pause)
11 MR. FITZGERALD: Nothing further, Judge.
12 THE COURT: We'll take our recess at this point.
13 (Jury not present)
14 THE COURT: Who will conduct the cross?
15 MR. WILFORD: Mr. Ricco.
16 THE COURT: Mr. Ricco.
17 Do other counsel intend to cross?
18 MR. COHN: I have to talk to Mr. Ricco about that.
19 MR. RUHNKE: Your Honor, on behalf of Mr. Khalfan
20 Mohamed, we do not intend to cross-examine this witness.
21 MR. DRATEL: If we do, it will just be a couple of
22 questions.
23 THE COURT: All right.
24 MR. COHN: I will not. I have just spoken to
25 Mr. Ricco. I will not cross.
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1 THE COURT: All right. We'll take a recess.
2 (Recess)
3
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1 (Jury not present)
2 (Witness resumed)
3 MR. FITZGERALD: Your Honor, I forgot to ask one
4 question, which I told Mr. Ricco.
5 THE COURT: Hold the jury. I just want to clarify
6 the matter of sketching and sketch artists, because I am told
7 that the CNN Web site had a sketch of the face of the last
8 witness, who was somebody who was in the Witness Protection
9 Program and whose face should not have been sketched.
10 Government witnesses there is no prohibition. With respect to
11 any other witness, before an artist attempts to sketch the
12 face the court is to be notified, so that there will be no
13 ambiguity as to whether or not a particular witness's face may
14 or may not be sketched. There are some witnesses who have
15 been assured for security reasons that their likeness will not
16 be disseminated.
17 MR. FITZGERALD: Your Honor, could we clarify that by
18 government witness you mean government employee witness.
19 THE COURT: Government employees, law enforcement
20 agents.
21 (Jury present)
22 MR. FITZGERALD: There is one minor correction. I
23 change the last "or" to "and not." I think it will make it
24 more clear.
25 THE COURT: That is all right.
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1 MR. FITZGERALD: Your Honor, I am reliably informed
2 that I omitted to ask a question and I just ask permission to
3 ask one more question of the witness.
4 THE COURT: Yes.
5 BY MR. FITZGERALD:
6 Q. Agent Anticev, you were talking about a person maimed
7 Mohamed Odeh yesterday and today. Do you see that person that
8 you interviewed in the courtroom today?
9 A. Yes.
10 Q. Where is he seated? This gentleman is number one. Can
11 you describe where he is from the end of the table.
12 A. Fourth from the end of the table.
13 MR. RICCO: We stipulate to that, I am sorry.
14 THE COURT: Identification by the witness of the
15 defendant Odeh is stipulated.
16 Mr. Ricco, you may inquire.
17 MR. RICCO: Thank you very much, your Honor.
18 CROSS-EXAMINATION
19 BY MR. RICCO:
20 Q. Good morning, Agent Anticev.
21 A. Good morning, sir.
22 Q. During the time that you interviewed Mr. Odeh in Kenya,
23 those dates were from around August 15 to about August 20 --
24 27, 1998, correct?
25 A. Yes.
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1 Q. You said to us that with the exception of two full days
2 you worked on or most of most of the other days.
3 A. Yes.
4 Q. I would like -- first I would like to start, the document
5 before you has been identified as Government's Exhibit 6, and
6 that document memorializes your interview with Mr. Odeh back
7 in 1998; isn't that correct?
8 A. Yes.
9 Q. You have had an opportunity to review that document,
10 haven't you?
11 A. Yes.
12 Q. It reasonably records your interview with him; isn't that
13 correct?
14 A. Yes.
15 MR. RICCO: At this point, your Honor, I move
16 Government's Exhibit 6 into evidence. I believe it is without
17 objection.
18 MR. FITZGERALD: Yes, your Honor, no objection. We
19 just need to confirm that we have the right copy of it, but no
20 objection whatsoever.
21 THE COURT: Government's Exhibit 6 is received. Is
22 that the document that this has reference to?
23 MR. RICCO: Yes, your Honor.
24 THE COURT: May I see Mr. Fitzgerald and Mr. Dratel
25 over here. I don't think it need be on.
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1 (Discussion off the record at the sidebar)
2 (Government's Exhibit 6 received in evidence)
3 THE COURT: Ladies and gentlemen, with respect to
4 Government's Exhibit 6, the exhibit that has just been
5 received in evidence, you may notice that portions have been
6 redacted, that is, deleted, with blanks indicated. In other
7 exhibits also have portions that have been redacted. Redacted
8 is a fancy word for deleted or omitted. The redactions are
9 made by the court and the parties and are for the purposes of
10 eliminating any irrelevant or inadmissible portions of any
11 particular exhibits. As a result, the fact that any exhibit
12 has been redacted is not of any concern to you and not
13 relevant to your consideration of the evidence.
14 MR. RICCO: May I continue, your Honor?
15 THE COURT: Please.
16 BY MR. RICCO:
17 Q. Agent Anticev, I would like to start where you ended. You
18 were explaining to us that at sometime during the interview
19 hypothetical questions were asked of Mr. Odeh, right?
20 A. Yes.
21 Q. He was asked to speculate on hindsight as to who he
22 thought was responsible for the bombing, right?
23 MR. FITZGERALD: Objection to form, your Honor.
24 Q. All right. He was asked to give his assessment of how he
25 thought the bomb, where it was developed and how it happened,
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1 right?
2 A. Well, except for we asked him certainly and we brought it
3 out as hypothetical situations, those three actions that he
4 would take, you know, about bombing a US target in Saudi
5 Arabia and the bombing of a building in Kenya and the bombing
6 of a building outside. Those were three hypothetical
7 situations that we brought up.
8 Q. That was done in order to get Mr. Odeh to talk, right, to
9 ask him hypothetical questions, right?
10 A. It was to establish his mindset, how he felt about the
11 group, how dedicated he was, yes.
12 Q. To get him to talk, right?
13 A. OK, yes.
14 Q. And he did.
15 A. Yes.
16 Q. One of the things that he talked to you about was a level
17 of anger and disappointment over the bombing that took place
18 itself, the actual bombing, right?
19 A. Yes.
20 Q. He was angry at the amount of innocent civilian people who
21 were injured; isn't that correct?
22 A. Yes.
23 Q. You also asked Mr. Odeh questions about his knowledge of
24 explosives, correct?
25 A. Yes.
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1 Q. And I think that you told us that you had the impression
2 that he was very or somewhat knowledgeable about explosives.
3 A. Somewhat knowledgeable, yes.
4 Q. That sort of confirmed in your mind that when Mr. Odeh
5 told you that he had explosive training that probably was
6 accurate, right?
7 A. If he told me he had explosives training, I am really no
8 judge to say if his stuff was accurate, what he was telling
9 me. I'm not a bomb technician.
10 Q. OK, but the conversation that he was having with you about
11 how explosives worked didn't sound like it was off the wall.
12 A. No.
13 Q. When the interviews first started, the interviews were
14 conducted with you and other US government officials, correct?
15 A. Yes.
16 Q. And also the presence of the Kenyan police authorities,
17 right?
18 A. Yes.
19 Q. I am not going to try to squeeze the whole 12 or 13 days
20 of interviews into the cross-examination. I would like to
21 just focus in on some things. OK?
22 A. OK.
23 Q. The areas that I would like to focus in on would be the
24 interviews that would be as to his membership in Al Qaeda, the
25 circumstances that led up to Mr. Odeh's leaving Kenya, and his
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1 association with other members of Al Qaeda. OK?
2 A. OK.
3 Q. During the interview, the series of interviews, Mr. Odeh
4 would explain things on some days, and then on a subsequent
5 day you would have him come back to give additional
6 information, or he would offer additional information as to
7 areas that were already covered; isn't that right?
8 A. Yes.
9 Q. Before the interviews started, Mr. Odeh was advised that
10 he had a right to remain silent; isn't that correct?
11 A. Yes.
12 Q. That was done in your presence?
13 A. Yes.
14 Q. He was also advised that in America, here, he would have a
15 right to have an attorney appointed for him, right?
16 A. Yes.
17 Q. He was advised that he could have the attorney with him if
18 he were in America, be there for him during the interviews,
19 correct?
20 A. Yes.
21 Q. And he could also have an attorney assist him into whether
22 or not he wanted to talk to you in the first place.
23 A. Yes.
24 Q. There was a problem because there was no American lawyer
25 there; isn't that right?
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1 A. Yes.
2 Q. That could assist him.
3 A. I am sorry?
4 Q. That could assist him.
5 A. Correct.
6 Q. So during the reading of his rights, Mr. Odeh said what
7 about a Kenyan lawyer? He raised that subject, didn't he?
8 A. Yes, he did.
9 Q. And at first, because of the way he was presenting issues,
10 you weren't able to immediately respond to his request for a
11 Kenyan lawyer, right?
12 A. He didn't request a Kenyan lawyer. He said would I be
13 getting a Kenyan lawyer, is there one available.
14 Q. And you take that as to not mean that he was requesting a
15 lawyer.
16 A. Yes.
17 Q. OK. The conversation continued for a few moments, and
18 then there was a break to find out whether or not under Kenyan
19 law a court-appointed lawyer, a free lawyer would be available
20 for him, right?
21 A. I don't recall about a free or court-appointed, but we
22 asked if under their rule of law, was he entitled to have a
23 lawyer present during questioning.
24 Q. Did you say during your direct testimony that he was told
25 that there was no Kenyan lawyer available for him?
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1 A. Yes.
2 Q. Did you explain to Mr. Odeh what available meant?
3 A. We explained to him that the way our advice of rights form
4 that is used when FBI agents do this kind of thing overseas,
5 that we can't -- in the advice form itself it says we can't
6 guarantee that you can get an attorney, something to that
7 effect. It says in America we would give you an attorney, but
8 the advice of rights form that he read and signed says that we
9 weren't the ones giving him an attorney overseas. It says if
10 it was available.
11 Q. Did you explain to Mr. Odeh that the Kenyans will not give
12 him an attorney?
13 A. We explained that under the rules in Kenya, that he does
14 not get an attorney at that stage of the game.
15 Q. OK. So Mr. Odeh was told that he could speak to -- I
16 think you told us he had three options. One was, he could
17 speak to the US authorities and the Kenyan authorities
18 together. That would be one option. He could speak with the
19 Kenyans alone. Or he could speak with nobody. Right?
20 A. Yes. The second one was if he states that I won't talk --
21 I want a lawyer --
22 Q. We will get to that. I just want to get to the three
23 options --
24 A. Yes, basically that's correct.
25 Q. You told us, I think, and I don't mean to cut you off, but
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1 you told us that Mr. Odeh gave you a fourth option.
2 A. Yes.
3 Q. Before we get to the fourth option, at that point Mr. Odeh
4 had not selected option 1, 2 or 3, correct?
5 A. No.
6 Q. He wasn't interested in talking --
7 THE COURT: You said correct and the witness said no.
8 MR. RICCO: I am sorry, Judge. I will straighten it
9 out. Let me take it step by step.
10 Q. Mr. Odeh did not say OK, I'll speak to you and the Kenyans
11 together, correct? He didn't say that. At first.
12 A. At first he said that he would talk to us, and then he
13 asked -- this was before he signed the form. And he said
14 well, I don't want to sign the form right now, we'll talk
15 small talk first. But he did agree to talk.
16 Q. Did he agree to speak to the Kenyans alone?
17 A. No.
18 Q. When Mr. Odeh mentioned the fourth option, yourself and
19 the other US officials left the room to discuss the matter
20 amongst yourselves; isn't that correct?
21 A. Yes.
22 Q. And the fourth option was, I would like to speak to the
23 American officials alone, to the exclusion of the Kenyans;
24 isn't that correct?
25 A. Yes.
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1 Q. And the Americans got up, left the room to discuss it,
2 right?
3 A. Yes.
4 Q. And when you left the room, you left Mr. Odeh in the room
5 with the people who he did not want to talk to alone, correct?
6 A. Yes.
7 Q. Then all of a sudden you are called back into the room and
8 Mr. Odeh says I'll speak to both groups, right?
9 A. Yes.
10 Q. And I think that you said to us that he said well, since
11 you're going to tell each other what's going on anyway, I'll
12 do it.
13 A. Yes, basically.
14 Q. Now I want to go to his membership in Al Qaeda. Mr. Odeh
15 told you straight out that he was a member of Al Qaeda; isn't
16 that correct?
17 A. Yes.
18 Q. He told you that he made bayat and officially joined Al
19 Qaeda in March of 1992.
20 A. Yes.
21 Q. Mr. Odeh stated that he had joined Bin Laden and Al Qaeda
22 group because they treated Muslims the same without regard to
23 nationality. That was one of the reasons why he joined,
24 right?
25 A. Yes.
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1 Q. He also stated that he wasn't interested in joining other
2 groups because in the other Islamic groups the members took
3 orders from a chain of command that would often have the
4 membership do things that were Islamically incorrect.
5 A. Yes.
6 Q. This theme of Islamic, things being Islamically correct,
7 permeated your conversations with Mr. Odeh; isn't that fair to
8 say?
9 A. Yes.
10 Q. It came up often, isn't that right?
11 A. Yes.
12 Q. Mr. Odeh explained that he took bayat and swore to Allah
13 that he would follow Usama Bin Laden but only as long as
14 Mr. Bin Laden followed proper Islamic law; isn't that correct?
15 A. Yes.
16 Q. Now I want to turn to Mr. Odeh's travels to Afghanistan
17 and Somalia and how that came about, as he told them to you.
18 Mr. Odeh explained the circumstances under which he
19 joined the Mujahedeen forces fighting against the Soviet
20 Union; isn't that right?
21 A. Yes.
22 Q. And I think you told us his background, that he was
23 attending college and he got involved in the Islamic movement
24 and he left school to join the forces in Afghanistan.
25 A. Yes.
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1 Q. The men that he met in Afghanistan ultimately became the
2 core group of the individuals that later made up the core
3 group of Al Qaeda; isn't that correct?
4 A. The core group of Al Qaeda in Kenya.
5 Q. Yes.
6 A. Yes.
7 Q. OK. When the events in Afghanistan were winding down, one
8 of the members of Al Qaeda had suggested to Mohamed, I think
9 it was Saif al Adel, that he should prepare to go to Somalia
10 by way of Kenya.
11 A. Yes.
12 Q. And Mr. Odeh told you that somewhere around March of 1993,
13 he in fact went to Somalia.
14 A. Yes.
15 Q. Mr. Odeh advised you that when he first went to Somalia he
16 went because there was trouble in Somalia between the tribes
17 and Aideed; isn't that correct?
18 A. Yes.
19 Q. Mr. Odeh told you that the tribes needed training for
20 fighting, food and money, right?
21 A. Yes.
22 Q. He told you that the training was to provide some basic
23 training. His job was the medical part --
24 A. I am sorry?
25 Q. The medical part. But he also said there was small arms
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1 training; isn't that correct?
2 A. Yes.
3 Q. He told you at that time he was about 600 kilometers from
4 Mogadishu; isn't that right?
5 A. Yes.
6 Q. And that the groups that he was training were against
7 Aideed.
8 A. No.
9 Q. Were with Aideed.
10 A. He was training the -- when he first got to Somalia, he
11 was training the Um Rehan tribe.
12 Q. OK. At some point Mr. Odeh returned to Kenya.
13 A. Yes.
14 Q. He met up there with other members of Al Qaeda that he
15 fought with in Afghanistan; isn't that right?
16 A. Yes, and had been with in Somalia also.
17 Q. Like Suliman, for example, was one of the people he said
18 was both in Afghanistan and Somalia.
19 A. OK, yes.
20 Q. Some members of Al Qaeda moved on to other countries, but
21 Mohamed and a few others decided to stay in Kenya. I think
22 you told us that.
23 A. Yes.
24 Q. Mr. Odeh indicated to you that he had gotten married and
25 that he began to support himself in his marriage in a fishing
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1 business.
2 A. Yes, but that fishing business was presented to him by Abu
3 Hafs and funded by Abu Hafs.
4 Q. I'm not there yet. I will get to that piece by piece.
5 A. OK.
6 Q. First he told you that there was a fishing business.
7 A. Yes.
8 Q. And the fishing business came from a boat that he got from
9 Abu Hafs, right?
10 A. Yes.
11 Q. And the boat was from Al Qaeda. Right?
12 A. Yes.
13 Q. And he said that the boat provided income for other
14 members of Al Qaeda who were in the area.
15 By the way, when Mr. Odeh was giving you those codes
16 about different words that are used in the reports, was there
17 any secret code for fish, like fish means detonators or fish
18 means something? Any code for fish?
19 A. He gave me five or six words that he remembered off the
20 top of his head but nothing for fish.
21 Q. Ultimately down the line I think Mr. Odeh was in the
22 carpentry business and making furniture, right?
23 A. Yes.
24 Q. Al Qaeda wasn't in the furniture business -- I will
25 withdraw that.
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1 Mr. Odeh told you in 1997 that he received orders to
2 go back to Somalia to evaluate a situation there, and he went
3 there with two other members of Al Qaeda; isn't that correct?
4 A. Yes.
5 Q. And they stayed there for several months, right?
6 A. Yes.
7 Q. Then you learned that Mr. Odeh returned to Kenya where he
8 remained up until the time he was ordered to leave.
9 A. Yes.
10 Q. Now I would like to just turn to the circumstances that
11 led up to the August 6 leaving by Mr. Odeh. During the
12 interview, Mr. Odeh stated that several months before August
13 1998, he was told by Mustafa that Saleh got a message from
14 Usama Bin Laden that all the Al Qaeda people had to be ready
15 to travel soon; is that right?
16 A. Yes.
17 Q. And Mr. Odeh related to you over these interviews that he
18 was told that he assumed that the travel would include his
19 wife and his child, right?
20 A. Yes.
21 Q. Mr. Odeh further told you that he informed Mustafa that he
22 would work on getting his documents together legitimately so
23 that he and his family could travel; isn't that correct?
24 A. I am not sure about that. He wanted to go with his
25 family, that's for sure, but I don't know about -- yes, he did
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1 say that he would try to get more than one passport if that
2 meant his family, fine. But then they said no, you get one
3 passport for yourself.
4 Q. That's right.
5 THE COURT: Who said you get one passport?
6 THE WITNESS: Saleh.
7 Q. Ultimately Saleh told him that.
8 A. Saleh.
9 Q. And Saleh told him that a little further down the line
10 when Saleh was a little anxious about the delay that Mohamed
11 was having in getting his passport through regular channels,
12 right?
13 A. I didn't get the last part.
14 Q. I will rephrase it. The statement that Saleh made to
15 Mohamed, which was to just get one passport, and even if it
16 has to be fake get a passport and be ready to go, this
17 statement was made a little further down the line; isn't that
18 right?
19 A. Yes. I don't know if Saleh said that. I recall that as
20 maybe being from --
21 Q. Mustafa?
22 A. Mustafa saying, but on the orders of Saleh.
23 Q. This was after there was some delay on behalf of Mohamed
24 to get his paperwork together through regular channels; isn't
25 that right? Isn't that correct?
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1 A. Yes.
2 Q. Mr. Odeh had indicated to you that in the six years that
3 he had been in Al Qaeda, he had never had that kind of
4 pressure put on him before to move so urgently; isn't that
5 right?
6 A. Yes.
7 Q. He also indicated to you that he really had a willingness
8 to stay in Kenya, that he liked Kenya and he wanted to stay
9 there.
10 A. Yes, he did indicate that.
11 Q. What Mr. Odeh has indicated to you is that around the time
12 he had this conversation with Mustafa he was living in Witu,
13 right?
14 A. Yes.
15 Q. And Witu is an area that is the sub -- it's a rural area
16 in Kenya, isn't that correct?
17 A. I don't know.
18 MR. RICCO: Your Honor, I think this map has been
19 previously identified of the Kenya area.
20 I am sorry, Judge. I am informed by Mr. Wilford that
21 it was Odeh C but they couldn't get it up yesterday. So with
22 the permission of the court it is being displayed to the jury.
23 I am sorry. We would like this map marked as Odeh C.
24 MR. FITZGERALD: No objection.
25 THE COURT: You are offering it?
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1 MR. RICCO: Yes, your Honor.
2 THE COURT: Received.
3 (Defendant's Exhibit Odeh C received in evidence)
4 Q. Mr. Odeh indicated to you that he was in the carpentry
5 business in Witu, right?
6 A. Yes. Furniture business he called it.
7 Q. The furniture business, OK. Never been to Witu, had you?
8 A. No.
9 Q. Never seen the furniture in Witu?
10 A. No.
11 Q. What Mr. Odeh indicated to you, that he happened to be in
12 Mombasa on business and he ran into Saleh, and Saleh told him
13 to come to the town of Malindi for a meeting; isn't that
14 right?
15 A. Yes.
16 Q. And Mr. Odeh indicated to you that he came to the meeting,
17 and at the meeting there were other members of Al Qaeda, and
18 at that meeting Saleh stated to the group that he had recently
19 returned from Afghanistan and that Bin Laden was calling all
20 Mujahedeen to return to Afghanistan, correct?
21 A. Mujahedeen and Al Qaeda members.
22 Q. Mr. Odeh indicated to you that afterwards he spoke to
23 Saleh alone and said that he would relocate to Afghanistan
24 because it was an Islamic country and it would be his duty --
25 he used the word duty -- to return to Afghanistan, correct?
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1 A. Correct.
2 Q. Odeh recalled to you that he informed Odeh that -- I am
3 sorry. I will strike that.
4 Mr. Odeh indicated after the meeting that he returned
5 to Witu to work and wait for his Jordanian passport to be
6 renewed, right?
7 A. Yes.
8 Q. The conversation that we had talked about earlier with
9 Mustafa happened, according to Mr. Odeh, sometime in April
10 1998. He gets a visit from Mustafa, and Mustafa visits him
11 and tells him that Saleh has a message from Bin Laden, and
12 everyone including Al Qaeda and Mujahedeen must leave, right?
13 A. Yes.
14 Q. So he is constantly being informed that there is an
15 urgency about him getting himself ready to travel, right?
16 A. Yes.
17 Q. You also indicated to us, indicated to the jury that it
18 was during this visit that Mr. Odeh related to you that he had
19 a conversation with Mustafa about Bin Laden's declaration of
20 war against American people in these fatwahs, correct?
21 A. Yes.
22 Q. Odeh related to you that there were some concerns amongst
23 Al Qaeda members whether Bin Laden had the right to do this,
24 and whether they were prepared to participate in that
25 activity; isn't that correct?
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1 A. Right, that's what he told me.
2 Q. By the way, when Mr. Odeh made the statement to you that
3 there was concern as to whether or not Bin Laden had the right
4 to do this, did you ask Mr. Odeh what do you mean by that?
5 A. I don't think he said that if Bin Laden had the right to
6 do it, unless I am mistaken. I thought, from what I recall it
7 was more like are we prepared to take on an enemy so strong as
8 the United States. I think that was the essence.
9 Q. Mr. Odeh stated that there were many people who were
10 against such a plan; isn't that correct? Isn't that correct?
11 A. OK, I stand corrected, yes.
12 Q. Mr. Odeh related to you that there were many people who
13 were against such a plan.
14 A. Yes, there were.
15 Q. I would like to move along. About 40 days before Mr. Odeh
16 traveled out of Nairobi, he said to you that he received yet
17 another visit, and he received a visit from a person named
18 Ahmad the Egyptian.
19 A. Yes.
20 Q. And Ahmed the Egyptian came to him in Witu and told
21 Mr. Odeh two messages: One, that there was a sheik from
22 Somalia that had to somehow get to Afghanistan, right?
23 A. Right.
24 Q. And that they needed Mohamed Odeh and others to export him
25 to Afghanistan.
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1 A. Not and the others. I think it was more like either you,
2 Mustafa or Ahmed the Egyptian would --
3 Q. Like one or two or three of them, right?
4 A. I don't know. It could have been one, it could have been
5 three. The way I understood it to be was one of the three.
6 Q. But the bottom line is that what Mr. Odeh related to you
7 was that a person came to him with a story as to why he had to
8 go to Afghanistan, and one part of the story was that there
9 was some sheik that needed to go.
10 A. The meeting with Ahmed 40 days before he had to go, that's
11 the first time that he is hearing that this is regarding a
12 sheik. But before that, they are telling -- you know, the
13 first two meetings is everybody is leaving. So I don't
14 understand how he would think that was just to escort one
15 person to Afghanistan.
16 Q. Needless to say as to what he thought, what he told you
17 was that Ahmed the Egyptian came to him and said the sheik
18 needed to be escorted to Afghanistan.
19 A. Yes.
20 Q. That's what he related to you.
21 A. Right.
22 Q. They also discussed the fatwah and Mr. Odeh again stated
23 that he was anxious about traveling on such a short notice;
24 isn't that right?
25 A. On the 40-day meeting?
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1 Q. Yes.
2 A. Well, he was anxious about traveling in general.
3 Q. OK. Mr. Odeh related to you that Ahmed informed him to
4 travel as soon as possible, even if it meant getting fake
5 documents; isn't that correct?
6 A. That's what he said.
7 Q. And Ahmed left Mr. Odeh remain in Witu for approximately
8 another 20 days or so, and then on July 14, 1998, he headed
9 for Mombasa.
10 A. Yes.
11 Q. When Mr. Odeh arrives in Mombasa, he said he ran into
12 Saleh in old Mombasa, and he asked Saleh if they still needed
13 him to travel to Afghanistan.
14 A. Yes.
15 Q. Mr. Odeh was told yes, they still needed him to travel,
16 but Mr. Odeh indicated that he had not received a renewal of
17 his passport, and he did not have the necessary travel
18 documents. This was in July of 1998, correct?
19 A. Yes.
20 Q. Mr. Odeh said that Saleh told him to find a person named
21 Fahad and that Fahad would help him with the travel documents
22 and give him money to get the documents together; isn't that
23 correct?
24 A. Yes.
25 Q. There was a problem that Fahad wasn't available and he
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1 ended up having to get the money from a third person; isn't
2 that correct?
3 A. Yes.
4 Q. Mr. Odeh several days later said that he ran into Saleh
5 but they were constantly sort of missing each other when they
6 were in Mombasa; isn't that right?
7 A. Seems that way, yes.
8 Q. And I think Mr. Odeh related to you that he had left an
9 umbrella in the mosque and he was going back to the mosque to
10 pick up the umbrella, and he ran into Harun and Saleh.
11 A. Fahad and Saleh.
12 Q. I am sorry, excuse me. Fahad and Saleh, right?
13 A. Right.
14 Q. This was the time --
15 A. This was August 1, I believe.
16 Q. And this is the time when Saleh berated -- I am sorry.
17 Again there was conversation about traveling and this
18 was the time that Saleh berated Mohamed publicly for the slow
19 way in which he was moving about getting himself prepared to
20 travel; isn't that correct?
21 A. Yes. He says he yelled at him out in the street to get
22 going.
23 Q. Mohamed was told the money was available, be prepared to
24 go, someone is going to help you with the documents, but there
25 was a problem, it was on a Sunday, and he couldn't get the
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1 documents on that Sunday; isn't that right?
2 A. Right.
3 Q. So what he did was, Mr. Odeh went back to Mombasa to
4 straighten out business with his family.
5 A. He went back to, not Mombasa, he went back to see his
6 wife's --
7 Q. Family.
8 A. Family. His wife's aunt, in Malindi, I thought.
9 Q. I think you are correct.
10 A. Right.
11 Q. And while he is there in Malindi, he gets a telephone
12 call, and basically the call says listen, it's time to go, get
13 back over here, we're preparing to leave, something to that
14 effect; isn't that correct?
15 A. Yes.
16 Q. He then travels back to Mombasa, he gets himself prepared,
17 and it is from Mombasa that he makes his way towards Nairobi;
18 isn't that correct?
19 A. Well, he goes back to Mombasa the next day. He is
20 supposed to meet Saleh at the bus stop.
21 Q. They miss each other?
22 A. They miss each other and he sleeps at his
23 brother-in-law's, and the next day they run around trying to
24 get all those things done that he was told to do, the 3rd,
25 August 3.
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1 Q. Eventually he travels to Nairobi by bus; isn't that
2 correct?
3 A. Yes.
4 Q. I just want to take you through a few questions when he
5 gets to Nairobi. Mr. Odeh checks into the Hilltop Hotel, he
6 runs into Saleh and Harun, they leave the hotel, right?
7 A. Yes.
8 Q. When they leave the hotel, the two are leaving the hotel,
9 they run into -- withdrawn.
10 While at the hotel, Mr. Odeh runs into Saleh and
11 Harun, right? And Saleh stated that they were on their way to
12 do a small job. I think you told us that.
13 A. Right.
14 Q. And what you told us was that Mohamed knew it was Al Qaeda
15 work that they were going to take care of. Was that something
16 that you assumed or was that something that's a part of his
17 statement?
18 A. When I said Al Qaeda business during testimony, that's not
19 in the document.
20 Q. That's right.
21 A. Right. The way he says in the document, he knew it
22 wasn't, you know, personal things. He made that pretty clear.
23 They were going out to do something, and he actually said
24 they're not going out to do some shopping or something like
25 that.
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1 Q. Isn't it a fact that what he said is that when the two of
2 them returned that they talked about that they were shopping?
3 A. Yes, that's says it in the report, I believe.
4 Q. They said that they talked about the shopping that they
5 had done. This was Harun and Saleh.
6 A. Right.
7 Q. So when you said to us that Mohamed knew it was Al Qaeda
8 business, is that your assessment or is that what he actually
9 said?
10 A. No, he did not say that.
11 Q. Mr. Odeh was at the hotel several days, and while at the
12 hotel he came in contact with other members of Al Qaeda. I
13 think you have told us that. For the most part Mr. Odeh
14 remained at the hotel, except for the time periods that he
15 went out to do some shopping. Mr. Odeh indicated to you that
16 no one had discussed with him any plans about bombing or
17 surveillance or anything of that sort; isn't that correct?
18 A. Right. He said that he didn't know what was going on.
19 Q. All right. He said that some of the men sometimes would
20 go and they would be out all night and he would see them in
21 the morning at breakfast, right?
22 A. Right.
23 Q. And then on another night maybe a different combination
24 would go out and then they would come back the next day,
25 right?
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1 A. Yes.
2 Q. One of the things that Saleh told -- one of the things
3 that happened -- I think I said this. I just want to be clear
4 about it -- is that Saleh gave to Mohamed Odeh a pair of
5 trousers, a razor, and I think maybe one or two other small
6 items, right?
7 A. On the first day they met.
8 Q. Yes.
9 A. When they checked in and they ran into each other.
10 Q. Yes.
11 A. Saleh gave him a razor and a pair of pants.
12 Q. And he wanted him -- he gave him some socks and a shirt,
13 something like that, but he wanted him to shave himself so he
14 wouldn't look Islamic without a beard.
15 A. Right.
16 Q. What Mr. Odeh told you is that ultimately he leaves
17 Mombasa -- I am sorry -- he leaves Nairobi on August 6 with
18 Fahad.
19 A. Correct.
20 Q. And that they fly into Pakistan, and that at the Pakistani
21 airport Mr. Odeh is arrested, right?
22 A. Right.
23 Q. And Mr. Fahad continues traveling on to wherever it is he
24 was going to.
25 I wanted just to ask you a couple questions and I'm
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1 done.
2 Mr. Odeh also told you a lot of information about
3 friends of Al Qaeda. These would be people who were not
4 official members but who were sort of associates of Al Qaeda,
5 correct?
6 A. Yes.
7 Q. He indicated who some of those individuals were, right?
8 A. Yes.
9 Q. One was a guy named Tawhil, the tall one, right?
10 A. Yes.
11 Q. Another one was a guy Abu Suliman from Tanzania, right?
12 A. Yes.
13 Q. Another fellow named Numeiri, who was an Egyptian from the
14 United States?
15 A. Right.
16 Q. And he gave you the names of other people who were friends
17 of Al Qaeda.
18 A. Yes.
19 Q. These were people who he indicated were not members with
20 bayat but they either did business or conducted affairs that
21 Al Qaeda either benefited from or furthered their interests,
22 right?
23 A. Yes, but he also mentioned some friends of Al Qaeda could
24 be used to also gather intelligence on targets. They don't
25 have to be, you know, full-fledged bayat-taking members to do
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1 that for them.
2 Q. All right. And he also gave you quite a bit of
3 information about people who he said to you were members of Al
4 Qaeda, right?
5 A. Yes.
6 Q. And when you asked him questions about these individuals,
7 he gave you their names, right? He gave you descriptions of
8 them, correct?
9 A. Yes.
10 Q. He told you where he believed they were from, like what
11 countries they were from, right?
12 A. Yes.
13 Q. He even offered at times where he thought they were
14 presently located, right?
15 A. Yes.
16 Q. These descriptions were very detailed; isn't that right?
17 A. Yes.
18 Q. Mr. Odeh said to you that he felt a sense of
19 responsibility for the bombing because he was a member of Al
20 Qaeda; isn't that right?
21 A. Yes.
22 Q. But his sharing that with you was a moral sense of
23 responsibility; isn't that right?
24 A. Yes.
25 Q. He never said to you that he was responsible because this
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1 was something that he did; isn't that correct?
2 A. Correct.
3 Q. He felt morally responsible because he was associated with
4 and a member of Al Qaeda; isn't that correct?
5 A. In that context, yes.
6 Q. Now I am at the point where I only have a few more
7 questions and I'm done.
8 During the interviews with Mohamed Odeh, the Kenyans
9 were present during those interviews; isn't that right?
10 A. Yes.
11 Q. During the evening hours when the interviews ceased,
12 Mr. Odeh was taken back into Kenyan custody; isn't that
13 correct?
14 A. Yes.
15 Q. You didn't spend those evening hours with Mr. Odeh; isn't
16 that right?
17 A. That's right.
18 Q. There were times when Mr. Odeh was in the presence and
19 custody of the Kenyans without the American officials being
20 there; isn't that right?
21 A. Yes.
22 Q. Often, isn't that correct?
23 A. Yes.
24 Q. In fact, during the two-day period where you were not
25 questioning Mr. Odeh, do you know whether or not he was being
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1 questioned by the Kenyans during that timed period?
2 A. We were -- we made agreements with the Kenyans that we
3 would participate in all the interviews. Do I know what
4 happened outside my presence? I don't know.
5 Q. Were you sharing your information with the Kenyans?
6 A. Yes.
7 Q. Were they sharing their information with you?
8 A. I wouldn't know.
9 Q. You wouldn't know? Did they?
10 A. I am sorry?
11 Q. Did they?
12 A. I can't understand.
13 Q. Did they share --
14 A. No, the Kenyans never came to me and said we found this
15 out, no. That wasn't the arrangement that we made. We were
16 going to do the interview together.
17 Q. But you have no knowledge of whether or not interviews
18 took place with the Kenyans when you were not present, do you?
19 A. No, because I wasn't there. But I would ask him. There
20 were times that we were alone without Kenyans, and I asked him
21 how things were, is everything OK, are you fed, how are you
22 doing, and he said fine.
23 Q. Mr. Odeh was pretty upset about his wife's situation,
24 wasn't he?
25 A. Yes.
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1 Q. That's not in the report, is it?
2 A. About the wife, no.
3 Q. In fact, as early as the first morning, the first full
4 morning on the 16th of August there was a directive from the
5 FBI to get information about the location of his wife; isn't
6 that right?
7 A. I don't recall that, but that might have -- you know, find
8 out where he lives --
9 Q. Where she lives --
10 A. Where she lives, naturally, where his home is.
11 Q. And Mr. Odeh gave you information about where his wife
12 could be located; isn't that correct?
13 A. I believe so, yes.
14 Q. Didn't the American agents go out and bring his wife to
15 the precinct?
16 A. I guess -- I didn't do that part but I don't know if the
17 Kenyans brought her or if Americans and Kenyans together
18 brought her in. I don't know.
19 Q. Don't your notes indicate that Mr. Odeh should be informed
20 that his wife is in custody?
21 A. I am sorry.
22 Q. Don't your handwritten notes indicate that?
23 A. Do I?
24 Q. Yes.
25 A. I don't know. If I do, I guess I did.
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1 Q. Let me ask you the question this way. First, do you have
2 any knowledge as to whether or not his wife was taken into
3 custody by the authorities?
4 A. Yes.
5 Q. Was she taken into custody by US and Kenyan authorities or
6 just Kenyan authorities?
7 A. I don't know.
8 Q. Did you see Mrs. Odeh at the location where Mr. Odeh was
9 being questioned?
10 A. Yes.
11 Q. When you saw Mrs. Odeh, was she in US custody or was she
12 in Kenyan custody?
13 A. At that -- nobody was in US custody at that time. We
14 still didn't even know that they were even coming back to the
15 United States. She was brought to Nairobi, so I guess she was
16 in Kenyan custody, or --
17 Q. When you saw her, were any American officials standing
18 next to her?
19 A. When I saw her. No, I was in a room -- I talked to her.
20 Q. OK. So you interviewed Mrs. Odeh.
21 A. Yes, I did.
22 Q. All right. Did you tell Mohamed Odeh his wife was at the
23 precinct being interviewed? No. Right?
24 A. He knew, but I don't know when I told him.
25 Q. I'm not asking about when he knew. First question is, did
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1 you tell Mr. Odeh that his wife was at the precinct?
2 A. I don't remember if I did or not.
3 Q. Was Mrs. Odeh, when you saw her was his wife pregnant?
4 A. She might have been. I think so.
5 Q. Did you ever allow Mr. Odeh to speak to his wife when he
6 was at the precinct?
7 A. I didn't make arrangements for him to or not to. That
8 wasn't my call.
9 Q. Did it happen?
10 A. I don't know.
11 Q. Did it happen during 11 days that Mr. Odeh was in your
12 presence?
13 A. I don't remember. I think he might have spoke to his
14 wife. I'm not really sure.
15 Q. Listen. I will ask the question again. While you were
16 interviewing Mr. Odeh over the 11-day period, was there ever
17 occasion when you took a time out and allowed Mr. Odeh to
18 speak to his wife? Yes or no.
19 MR. FITZGERALD: Objection to form, Judge.
20 THE COURT: I won't require a yes or no answer.
21 Q. Explain.
22 THE COURT: You may answer.
23 A. I don't remember. I vaguely remember he might have talked
24 to his wife, but it's not sticking out in my --
25 Q. Is it in your report, your 34-page report, that he had an
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1 opportunity to speak to his wife?
2 A. No.
3 Q. Is it in your notes that he had an opportunity to speak to
4 his wife?
5 A. I don't know.
6 Q. Did you review your notes before you testified?
7 A. I reviewed them briefly. I was reviewing the other
8 document mostly.
9 Q. Isn't it true that Mr. Odeh was kept in communicado for
10 approximately 12 days?
11 A. I guess so, yes. I interviewed him and he was brought
12 back. I didn't give him any access to a phone. I didn't do
13 any of that.
14 Q. You didn't give him access to a phone and you didn't let
15 him speak to his wife either; isn't that right?
16 A. About the wife part I really don't remember, but I know he
17 wasn't out there talking to people.
18 Q. All right. But Mr. Odeh was upset and concerned about his
19 wife's condition. He did express that to you, isn't that
20 correct?
21 A. Yes.
22 Q. That's in your notes, right?
23 A. OK.
24 Q. During the 11 days that Mr. Odeh was questioned, was any
25 of the interview tape recorded?
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1 A. No.
2 Q. Was there a tape recorder available to record it?
3 A. I don't recall anything about having a tape recorder,
4 asking for a tape recorder.
5 Q. Didn't ask for it, right?
6 A. Mr. Odeh?
7 Q. You. You didn't ask for a tape recorder, right?
8 A. No.
9 Q. And you didn't bring one from America either.
10 A. No.
11 Q. And Mombasa, Nairobi is a pretty big city; isn't that
12 correct?
13 A. Yes.
14 Q. Stores, streetcars, right?
15 A. Yes.
16 Q. You could buy a tape recorder anywhere, right?
17 A. Right.
18 Q. Did you go out to buy a tape recorder to record and
19 memorialize this 11 days of statements by Mr. Odeh?
20 A. What's the question?
21 Q. Did you go out and buy a tape recorder to record the 11
22 days of interviews by Mr. Odeh?
23 A. No.
24 Q. What you did was, you wrote a report, right?
25 A. Yes.
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1 Q. And that report was written several days after those
2 interviews took place, right?
3 A. Yes.
4 Q. And you relied upon your memory and your notes to write
5 your report; isn't that correct?
6 A. Yes. My notes were pretty extensive. My memory is not
7 that good. I took very detailed notes.
8 Q. During the interviews -- your Honor, I just have a few
9 more questions. I think I'm going to get there.
10 During the interviews that took place -- withdrawn.
11 When you prepared your report, your report is not a
12 question by question, answer by answer memorial of what was
13 said and how it was answered; isn't that right?
14 A. No, right.
15 Q. It's an overview of what was said, right?
16 A. My report reflects in order how the interview went. If
17 you took my report and took my notes, you can almost follow
18 it. My report reflects in the order the information was
19 obtained.
20 Q. Mr. Odeh's native language is not English; isn't that
21 correct?
22 A. Yes.
23 Q. But during the 11-day interview, you never used an
24 interpreter, correct?
25 A. Correct.
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1 Q. You spoke to Mr. Odeh in English all the time?
2 A. Yes.
3 Q. And I think that you indicated to us that sometimes you
4 would have to ask a question a couple of times.
5 A. Yes.
6 Q. Was Mr. Odeh able to grasp the subtle nuances of the
7 English language while you were talking to him?
8 A. Yes, and I kept my English very basic. I've done lots of
9 interviews with people who don't speak that well English,
10 English like myself, and I kept it very simple.
11 Q. When Mr. Odeh was placed on a plane to come to the United
12 States, did you travel with him?
13 A. Yes.
14 Q. When Mr. Odeh got on the airplane to go to the United
15 States, he was read his rights again; isn't that correct?
16 A. Yes.
17 Q. But when he was read his rights on the plane coming to the
18 United States, there was an interpreter there; isn't that
19 right?
20 A. I am sorry.
21 Q. There was an interpreter there, isn't that correct?
22 A. Well, I don't remember if there was.
23 Q. Do you know whether or not Mohamed Odeh's rights on the
24 airplane were read to him in both English and Arabic?
25 A. That second advice of rights on the airplane took place
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1 in -- we touched down -- when we left Nairobi we touched down
2 in Cairo, and I was told that I had to ask him another
3 question, and then a US representative met me on the plane and
4 I really don't recall if that was told to him in Arabic or
5 not.
6 Q. That US representative told you it might be a good idea if
7 we have this done in English and Arabic; isn't that right?
8 A. I don't remember.
9 Q. You have no recollection?
10 A. If it's in my 302 or in my notes, I can refresh my memory.
11 But right now, asking me that question, I don't remember.
12 Q. I am going to show --
13 A. On the last page of my 302, right?
14 MR. RICCO: May I approach the witness, your Honor?
15 THE COURT: Yes. 302, ladies and gentlemen, is the
16 name given by the FBI to this type of report.
17 MR. RICCO: I am sorry for calling it that way.
18 Q. I am going to show you what's in evidence as Government's
19 Exhibit 6 -- I'm going to read it to you. It's in evidence.
20 These are your notes.
21 "On Thursday, August 27, at 1998, at 4 p.m., while
22 aboard United States aircraft C17, the following occurred.
23 Odeh was given his advice of rights in both English and
24 Arabic. He acknowledged that he understood his rights and he
25 was willing to answer questions."
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1 Does that refresh your recollection as to whether or
2 not he was given his advice of rights in English and Arabic,
3 having read your own report to you?
4 A. OK. That might have been -- also in the FBI we have
5 advice of rights forms written in both -- in most languages.
6 So I probably gave it to him in English and Arabic.
7 Q. Probably --
8 A. Yes, we did. If that's what I said, that's what happened.
9 Q. But during the 11 days that he was in Kenya, he didn't
10 have a lawyer, right?
11 A. Right.
12 Q. And he didn't have an Arabic interpreter either.
13 A. Right.
14 Q. He spoke to you based on what you told him his rights
15 would be and were; isn't that correct?
16 A. Yes.
17 Q. You, I take it, took steps to ensure that the interviews
18 took place in an area that was free of intimidation and fear.
19 A. Yes, I think we did.
20 Q. You are generally a very quiet-spoken person. The
21 interviews that took place between you and Mr. Odeh, were they
22 sort of in the voice that you are using here today?
23 A. Most of the time.
24 Q. And Mr. Odeh's responses to you, was he loud-spoken,
25 making speeches, or were they conversations?
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1 A. No, very conversational.
2 Q. When Mr. Odeh was taken into custody, he had hundreds of
3 dollars on his person, when he was brought back to Kenya;
4 isn't that right?
5 A. Yes.
6 Q. When you was explaining to Mr. Odeh that he was the boss
7 and he could stop the interviews at any time, did you tell
8 Mr. Odeh we can't, the Kenyans can't give you a lawyer but if
9 you want, you can use your money and go out and hire a lawyer?
10 Did you tell him that he could hire a lawyer?
11 A. No.
12 Q. During the interviews with Mr. Odeh, you learned that
13 Mr. Odeh had joined Al Qaeda with the proviso that he would
14 only follow orders that were Islamically correct; isn't that
15 right?
16 A. That's what he told me.
17 Q. And you learned that although Mr. Odeh was a member of Al
18 Qaeda and was in the presence of others who actually bombed
19 the U.S. Embassy, Mr. Odeh denied any involvement in the
20 planning or bombing of that embassy where all of those people
21 lost their lives and those people were injured; isn't that
22 right?
23 A. Yes.
24 MR. RICCO: I have no further questions -- I am
25 sorry, your Honor. I am being called by counsel. Your Honor,
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1 could I have one second?
2 I have no further questions. Thank you very much.
3 THE COURT: We will break for lunch.
4 (Jury excused)
5 (Witness excused)
6 MR. DRATEL: Your Honor, I do have some questions on
7 cross, so the witness still on cross-examination, as far as
8 indication to the government.
9 THE COURT: Who goes next.
10 MR. COHN: I will. Despite the fact that I said I
11 wouldn't, I was about to advise the court. I will be very
12 short.
13 THE COURT: And Mr. Ruhnke? So it will be Mr. Cohn
14 and Mr. Dratel. We will break till quarter after 2.
15 (Luncheon recess)
16
17
18
19
20
21
22
23
24
25
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1 A F T E R N O O N S E S S I O N
2 2:15 p.m.
3 THE COURT: Good afternoon. Any reason not to bring
4 in the jury?
5 MR. FITZGERALD: None.
6 THE COURT: All right. Bring in the witness and the
7 jury.
8 MR. RICCO: Your Honor?
9 THE COURT: Yes.
10 MR. RICCO: We have a couple of follow-up questions
11 that we wanted to do. The government didn't have any
12 objection to it.
13 THE COURT: All right.
14 MR. RICCO: Also, your Honor, sometime this afternoon
15 we need to speak with the Court for a few minutes.
16 THE COURT: Oh, yes. A logistic matter?
17 MR. RICCO: Yes.
18 JOHN ANTICEV, Resumes.
19 (Jury present)
20 THE COURT: Good afternoon.
21 Mr. Ricco.
22 MR. RICCO: Yes, thank you.
23 CROSS-EXAMINATION (continued)
24 BY MR. RICCO:
25 Q. Agent Anticev, I have a couple more questions that I
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1 wanted to go over with you.
2 The first thing I want to do is go to a part in your
3 direct examination testimony where you were talking about
4 Mr. Odeh related to you a conversation about how groups
5 approach an operation, okay? And I think that you told us
6 that they approach it with two separate groups, right? One
7 group that plans and another group that executes?
8 A. Yes.
9 Q. Okay. During the second part when he was explaining the
10 second group, he indicated to you that oftentimes the people
11 who will be a part of that second group are people who are
12 viewed as being expendable, is that the term that he used?
13 A. He didn't use the word "expendable," but he said that
14 these people had less skills to offer al Qaeda than the first
15 group.
16 Q. Okay. Now, I had asked you this question earlier, and
17 this relates to this whole term about this proviso that, I'm
18 involved as long as things are Islamically correct, okay? Did
19 you ever ask Mr. Odeh, what do you mean by that, Islamically
20 correct? Did you guys ever have a dialogue about what that
21 meant?
22 A. No. For "Islamically correct," no.
23 Q. This morning I asked you questions about when Mr. Odeh
24 went to Somalia and I asked you, did he say to you when we
25 went to Somalia we were training the tribe's that were against
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1 Aideed, and I think you told me that's not what he said.
2 A. No, I didn't get it from my talking to him that the tribes
3 he was training was -- were against Aideed.
4 Q. Okay. I would like to show you what has been marked as
5 3507-2, and I'm going to show you a page from it and ask if it
6 refreshes your recollection about this conversation about the
7 tribes being against Aideed, if it refreshes your
8 recollection.
9 Have you had a chance to read that?
10 A. Yes.
11 Q. And the document that I am referring to, those were your
12 own handwritten notes, right?
13 A. Yes.
14 Q. Okay. Isn't it a fact that Mr. Odeh told you that when he
15 went to Somalia, he went there and they would train
16 individuals who were in tribes who were against Aideed?
17 A. No.
18 Q. That's not what your notes say?
19 A. Can you point out to me? Because maybe I'm not seeing it,
20 counsel.
21 MR. RICCO: Can I approach the witness, your Honor?
22 THE COURT: Yes.
23 Q. "These groups were against" --
24 THE COURT: Please don't read.
25 (Pause)
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1 A. Yes, okay, I see it now.
2 Q. So he did tell you that?
3 A. I guess he did.
4 Q. You didn't make that up, did you?
5 A. No.
6 MR. RICCO: I have no further questions. Thank you
7 very much, your Honor.
8 THE COURT: Very well.
9 MR. COHN: Not from me, your Honor.
10 MR. DRATEL: Just a couple, your Honor.
11 THE COURT: On behalf of defendant El Hage,
12 Mr. Dratel.
13 CROSS-EXAMINATION
14 BY MR. DRATEL:
15 Q. Good afternoon, Agent Anticev.
16 A. Good afternoon.
17 Q. Mr. Odeh also told you -- withdrawn. As you just were
18 shown in your notes, Mr. Odeh told you that these groups that
19 he was training were fighting Aideed, correct?
20 A. Yes, my notes reflect that.
21 Q. Yes. And your notes were taken at the time that Mr. Odeh
22 was actually speaking to you?
23 A. Yes.
24 Q. And your report, which is Government Exhibit 6, was taken
25 from your notes, correct?
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1 A. Yes.
2 Q. The fact that something appears in your notes but doesn't
3 appear in your report doesn't mean it didn't occur, correct?
4 A. Yes.
5 Q. And your notes are accurate, correct?
6 A. To the best of my ability when I was doing it.
7 Q. Did Mr. Odeh also tell you that the tribe that he was
8 training was the same tribe as that of Siad Barre?
9 A. I don't recall.
10 MR. DRATEL: If I may I approach the witness, your
11 Honor?
12 THE COURT: Same tribe that? I didn't hear the end
13 of your question.
14 MR. DRATEL: Excuse me, your Honor?
15 THE COURT: I didn't hear the end of your question.
16 BY MR. DRATEL:
17 Q. The end of the question was, didn't Mr. Odeh tell you
18 during your interview with Mr. Odeh that the tribe that he was
19 training was the tribe of Siad Barre?
20 A. That's a person. I don't recall the person's name.
21 MR. DRATEL: If I may approach, your Honor?
22 THE COURT: Yes.
23 Q. I show you what has been marked as 3507-2, and these are
24 your contemporaneous notes, correct?
25 A. Yes.
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Anticev - cross/Dratel
1 Q. And just ask you to look at this section right here.
2 A. Okay.
3 Q. And does that say "the same tribe as Siad Barre"?
4 A. Yes.
5 Q. On direct you testified about Abu Hafs making a visit to
6 Mogadishu as a businessman in 1993, correct?
7 A. Yes.
8 Q. And in fact, sometime during that period Mr. -- well,
9 Mr. Odeh told you that sometime during that period he and four
10 others moved to a camp in the Ogaden, correct?
11 A. Yes.
12 Q. And that Abu Hafs came back through that camp after his
13 visit to Mogadishu?
14 A. Yes.
15 Q. And you testified that then Saleh came through the camp
16 and told Mr. Odeh that he had been in Mogadishu fighting the
17 U.N.?
18 MR. FITZGERALD: Objection, your Honor.
19 Q. Did you testify that Saleh had told Mr. Odeh that he had
20 been fighting the U.N.?
21 A. Saleh? He's -- Odeh is telling me what happened to him in
22 Somalia.
23 Q. Yes.
24 A. And he saw Saif al Adel come back -- I'm sorry, Abu Hafs
25 come back in Mogadishu and take over from Saif al Adel.
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1 Q. After Abu Hafs, you testified that someone else came back
2 and said that they had been --
3 A. Oh, yes, a person named Daoud.
4 Q. Abu Daoud?
5 A. Daoud.
6 Q. Came through the same camp in Ogaden after that?
7 A. Yes.
8 Q. Just with respect to your notes, you have no doubt if you
9 put it down that that occurred during the interview, correct?
10 A. Yes.
11 MR. DRATEL: Nothing further, your Honor.
12 THE COURT: Anything further of this witness --
13 MR. FITZGERALD: Yes, your Honor.
14 THE COURT: -- on redirect?
15 MR. FITZGERALD: May I proceed, Judge?
16 THE COURT: Yes.
17 REDIRECT EXAMINATION
18 BY MR. FITZGERALD:
19 Q. Agent Anticev, you just referenced a person by the name of
20 Daoud. What did Odeh tell you about who Daoud was, or Abu
21 Daoud?
22 A. He was somebody that just had been returning from
23 Mogadishu and came through the camp and stated that he had
24 partaken in actions against the U.N. and the U.S. and that
25 they were leaving Mogadishu.
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1 Q. And did Odeh indicate to you whether or not Abu Daoud was
2 a member of al Qaeda?
3 A. No.
4 Q. Let me show you another copy of your notes which was
5 marked, I believe, 3507-2, and I ask you to look at the --
6 A. I'm sorry, yes.
7 Q. Does that refresh your recollection whether or not Odeh
8 told you whether Abu Daoud was part of al Qaeda?
9 A. Yes.
10 Q. What did he tell you? Was he part of al Qaeda?
11 A. Yes, according to the notes. I must have left that out of
12 my report. I just had Daoud in my report.
13 Q. Now, you were asked questions about Mr. Odeh's custody
14 during the time that you interviewed him. In whose custody
15 was Mr. Odeh from August 15th prior to the time he was taken
16 to the airplane?
17 A. From --
18 Q. From August, when you were interviewing him in Nairobi, in
19 whose custody was he in?
20 A. He was in Kenyan custody.
21 Q. And during that time was there ever an occasion when you
22 were alone with him in a room without any Kenyan officers
23 there?
24 A. Yes.
25 Q. Did he ever indicate to you during that time that he was
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1 physically mistreated by the Kenyans?
2 A. No.
3 Q. Did he ever look like he was physically mistreated?
4 A. No.
5 Q. During that time that he was being interviewed was he ever
6 in handcuffs?
7 A. No.
8 Q. You were asked questions about when it was that you saw
9 his wife in the police building. Was she in custody --
10 whatever custody she was in, was she in custody on the first
11 day, August 15, when the advice of rights was given to
12 Mr. Odeh?
13 A. No.
14 Q. You were asked questions about whether or not you tape
15 recorded the interview of Mr. Odeh. In your 13 years in the
16 FBI, have you ever tape recorded an interview, even in
17 America?
18 A. No.
19 Q. And you were asked questions about whether or not Mr. Odeh
20 told you that there was a discussion in al Qaeda as to whether
21 or not Usama Bin Laden had the right to declare war on
22 America, and you were shown a document to refresh your
23 recollection.
24 Let me show you that same document that you looked at
25 prior. It's Government Exhibit 6 and it's page 13 and the
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1 first full paragraph. Can you read that paragraph to yourself
2 and then just look up when you are done reading it.
3 (Pause)
4 A. Okay.
5 Q. Is it your recollection of the conversation Odeh had with
6 you, describing his conversation about the declaration of war,
7 did he indicate that al Qaeda was concerned that Usama Bin
8 Laden did not have the moral right to declare war on America,
9 or was the concern that they were taking on an enemy too
10 strong?
11 A. That they were taking on an enemy too strong.
12 Q. And my question then is, with regard to Mr. Odeh
13 indicating his being upset and angry that a number of people
14 were killed, isn't it fair to say that Mr. Odeh did say that
15 he was upset that the bomb had deflected and affected many
16 buildings around the embassy and killed many people?
17 A. Yes.
18 Q. Did he ever indicate that he was concerned or upset that
19 Americans in the embassy had been killed?
20 A. No.
21 MR. FITZGERALD: Thank you.
22 MR. RICCO: Judge, I have a couple.
23 THE COURT: Yes.
24 RECROSS-EXAMINATION
25 BY MR. RICCO:
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1 Q. Mr. Fitzgerald just asked you questions as to whether or
2 not he expressed any concern that Americans were killed.
3 Isn't it a fact that Mr. Odeh didn't make any
4 distinction between Americans or Kenyans; he was upset that
5 the people were killed, isn't that right?
6 A. I don't know what he was thinking when he made that
7 statement.
8 Q. Made what statement, that he was concerned that many
9 people were killed?
10 A. I truly believe he was concerned that people were killed,
11 innocent people were killed.
12 Q. So my question was a simple question: He never made a
13 distinction to you that he was concerned because they were
14 only Kenyan or not Americans, did he? That was never said by
15 him, was it?
16 A. No, he never specifically said that he broke it down, I'm
17 upset Kenyans are killed and Americans are, are not.
18 Q. And when Mr. Fitzgerald asked you the questions about
19 United States being too powerful and whether or not the term
20 "right" was used, your report in evidence says the following:
21 "Odeh talked to Mustafa about Bin Laden declaring war against
22 American people in his last two fatwahs. They discussed if al
23 Qaeda was right in doing this. They were concerned if they
24 were ready to face such an enemy."
25 When Mr. Odeh said to you they were concerned if al
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1 Qaeda was right in doing this, did you ask Mr. Odeh what he
2 meant by that?
3 A. No.
4 Q. Mr. Fitzgerald also asked you a question about tape
5 recording. Isn't it a fact that agents are trained in how to
6 obtain a statement from a suspect?
7 A. I don't know what you mean.
8 Q. Approaching a suspect in order to question him involves a
9 technique that you are trained in; isn't that correct?
10 A. I don't know what you mean. A technical way of doing it?
11 Paperwork wise? How to talk to a person?
12 Q. I'll break it down. Way back when you were in school
13 learning how to be an FBI agent, one day there was a class on
14 how to conduct an interview with a suspect, isn't that right?
15 A. I believe there probably was. I don't recall any specific
16 course that like that.
17 Q. So what your testimony is, is that you work for the
18 Federal Bureau of Investigation and you don't recall that
19 there was ever a class where you were instructed on how to
20 conduct an interview with a suspect, is that what you're
21 telling the jury?
22 A. No, we learned how to conduct, how to -- they can't teach
23 you how to talk to somebody. They teach you, when you do talk
24 to somebody, how the paperwork is done on this after you do
25 the interview and how to save your notes and preserve your
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1 notes and -- there are other courses outside of Quantico
2 called In Services when you go back and there might be
3 specific courses on interview interrogation.
4 Q. You have take one of those courses?
5 A. I did as, now that -- I did take a course on that. Can I
6 explain what I learned? No.
7 Q. Of course you can explain. Of course you can explain.
8 The question is, didn't you learn that there are
9 techniques to getting a statement from a suspect?
10 A. I don't know of any technique that I learned from the FBI
11 on how to get a confession or an interview or anything out of
12 a subject.
13 Q. Firstly, somebody had to tell you that you got to read
14 them their rights, right?
15 A. Well, that we learned in basic legal courses in Quantico,
16 not in the interviewing course, or whatever you want to call
17 it.
18 Q. You have heard of the term "good cop, bad cop"?
19 A. Yeah, I've heard that term.
20 Q. That's a law enforcement technique, right?
21 A. I never learned good cop, bad cop techniques in the FBI.
22 Q. Okay. I'll get back to the specific point that Mr.
23 Fitzgerald raised about the tape recording.
24 Your testimony is that in the 13 years that you have
25 been an agent, you have never recorded an interview, tape
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1 recorded an interview, right?
2 A. Right.
3 Q. Have you ever heard of an interview being tape recorded in
4 your 13 years with the FBI?
5 MR. FITZGERALD: Objection to form. By whom?
6 THE COURT: Yes.
7 Q. By the FBI?
8 A. I can't think of any, and I've never been involved in one.
9 Q. Have you ever heard of a video confession being extracted
10 by the FBI in your 13 years of being with the bureau?
11 A. I don't have any direct experience or any direct knowledge
12 of anybody whose ever done it, or I've never been involved in
13 one.
14 MR. RICCO: Thank you very much. No further
15 questions, your Honor. Thank you.
16 THE COURT: Anything further of this witness?
17 MR. FITZGERALD: Just one.
18 MR. DRATEL: Yes, your Honor.
19 RECROSS-EXAMINATION
20 BY MR. DRATEL:
21 Q. When Daoud came through the camp in Ogaden, Mr. Odeh told
22 you that Abu Daoud or Daoud told him that he had been
23 participating actually against the U.N. in Mogadishu; isn't
24 that correct?
25 A. I believe it was U.N. and U.S.
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1 Q. Let me show you what has been marked as 3507-2, your
2 contemporaneous notes again. I just ask you to read the part
3 from here to here, that paragraph, and then tell me when you
4 have finished.
5 A. Okay.
6 Q. Thank you. Isn't it a fact that Mr. Odeh told you that
7 the U.N.?
8 A. Yes, it says U.N. there.
9 Q. It only says U.N.?
10 A. Yes.
11 Q. In fact, exhibit Government Exhibit 6, if you read the
12 last statement, the last sentence of this paragraph, please.
13 (Pause)
14 A. Same thing.
15 Q. Just says U.N., correct?
16 A. Yes.
17 Q. And that's what Mr. Odeh told you, correct?
18 A. Yes.
19 MR. DRATEL: No further questions.
20 MR. FITZGERALD: Nothing further.
21 THE COURT: Thank you, Agent. You may step down.
22 (Witness excused)
23 THE COURT: Government may proceed with the next
24 order of business.
25 MR. KARAS: Yes, Judge. At this time we would like
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1 to read a stipulation into the record.
2 THE COURT: Yes.
3 MR. KARAS: It is hereby stipulated and agreed by an
4 between the United States of America and the defendants, with
5 the consent of their attorneys, as follows:
6 "If called as a witness, a government computer
7 forensics analyst would testify that on August 21, 1997, he
8 made, using commercially available software, a mirror image of
9 the laptop computer previously received in evidence as
10 Government Exhibit 300.
11 "A mirror image is an electronic copy of the data
12 stored on the hard drive of the subject computer, in this
13 case, the laptop computer identified as Government Exhibit
14 300.
15 "The government computer forensics analyst thereafter
16 provided a copy of the mirror image to Special Agent Daniel J.
17 Coleman from the Federal Bureau of Investigation on August 21,
18 1997."
19 The mirror image is marked as Government Exhibit
20 300Z, and this stipulation --
21 MR. RICCO: I didn't hear you.
22 MR. KARAS: Z, as in zebra, and this stipulation is
23 marked as Government Exhibit 43. And your Honor, at this time
24 we would move both Government Exhibit 43 and 300Z into
25 evidence.
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1 THE COURT: Received.
2 (Government Exhibits 43 and 300Z received in
3 evidence)
4 MR. KARAS: Your Honor, at this time the government
5 would call Special Agent Robert Crisalli.
6 ROBERT S. CRISALLI,
7 called as a witness by the government,
8 having been duly sworn, testified as follows:
9 DEPUTY CLERK: Please be seated, sir. Please state
10 your full name.
11 THE WITNESS: Robert S. Crisalli.
12 DEPUTY CLERK: Spell your last name.
13 THE WITNESS: C-R-I-S-A-L-L-I.
14 DIRECT EXAMINATION
15 BY MR. KARAS:
16 Q. Sir, can you tell us how you are employed.
17 A. I'm currently employed as a special agent with the FBI.
18 Q. Can you tell us a little bit about your post high school
19 education, please.
20 A. I had two years' associate's degree from Nassau Community
21 College in information processing and I finished off a
22 four-year bachelor's degree at Hofstra University in business
23 computer information systems.
24 Q. And after you finished at Hofstra, what did you do for a
25 living?
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Crisalli - direct
1 A. I took at job at Oppenheimer Capital as a computer support
2 specialist.
3 Q. And what in particular did you do as a computer support
4 specialist?
5 A. The portfolio management company had an accounting package
6 that ran on a data general mainframe and I supported the users
7 of that mainframe.
8 Q. And how long did you work at Oppenheimer?
9 A. About four and a half years.
10 Q. After you worked at Oppenheimer, where did you work at?
11 A. After Oppenheimer, I got the job at the Bureau.
12 Q. The FBI?
13 A. The FBI, correct.
14 Q. What time was that?
15 A. May -- sorry, March of '96.
16 Q. What is your current assignment?
17 A. I'm currently assigned to Squad C37, which is the computer
18 crime squad.
19 Q. Do you do anything else in your capacity as an FBI special
20 agent?
21 A. In addition to the duties as a computer investigator, I
22 also do computer forensics for the office.
23 MR. COHN: I'm sorry, I didn't hear the last.
24 THE WITNESS: Computer forensics.
25 Q. If you could just make sure that you speak into the
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Crisalli - direct
1 microphone.
2 A. Certainly.
3 Q. In terms of your work in the computer crime squad, what
4 types of investigations do you work on there?
5 A. In the CART unit?
6 Q. The computer crime squad?
7 A. The computer crime squad investigates significant
8 intrusions into federally protected computers.
9 Q. Agent Crisalli, have you completed certifications of
10 completion with respect to computer forensics?
11 A. Yes, I have.
12 Q. Can you tell us a little bit about that.
13 A. With just the forensics, or did you want the entire
14 diatribe of classes I have taken?
15 Q. If you could summarize the completions of certification
16 before you became an FBI agent and then we'll talk about FBI
17 certification.
18 A. As employed as a computer specialist at Oppenheimer, I
19 stock several courses that data general offered to familiarize
20 myself with their operating system.
21 Q. And now if you could tell us a little bit about the
22 certifications you have completed as part of your work with
23 the FBI.
24 A. Starting in April of 1998 I took a DOS seizure course
25 provided by the International Association of Computer
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1 Investigative Specialists.
2 Q. If you could just tell us what DOS is.
3 A. DOS is a Disk Operating System for Intel-based computers.
4 Q. Did you take any field examiner training with the FBI?
5 A. Starting in July, I took -- the laboratory division down
6 at headquarters provided a two-week course in field
7 examination for PC-based computers.
8 Q. Can you tell us about some of the other courses you have
9 taken with the FBI?
10 A. Well, in addition to the field examiner for PCs, in
11 February of '99 I took the Macintosh examiners certification
12 as well.
13 Q. Is there a requirement that you be annually certified for
14 both DOS and Macintosh?
15 A. There is.
16 Q. And are you up to date on that?
17 A. I am.
18 Q. Directing your attention to April of 1999, were you asked
19 to make a mirror image of an Apple Macintosh Power Book
20 computer?
21 A. Yes, I was.
22 MR. KARAS: Can I approach the witness, your Honor?
23 THE COURT: Yes.
24 Q. Agent Crisalli, I have handed you what has been marked in
25 evidence as Government Exhibit 300. Do you recognize that?
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Crisalli - direct
1 A. Yes, I do.
2 Q. Can you tell us what it is?
3 A. It's an Apple Macintosh Power 140 Notebook.
4 Q. And did you make a mirror image off of that particular
5 laptop?
6 A. Yes, I did.
7 Q. Did you make a notation on that laptop yourself?
8 A. Yes. On the bottom of the laptop I put the Q number and
9 my initials.
10 Q. Can you tell us how it is you went about making the mirror
11 image off of that laptop computer?
12 A. Well, the first step in any examination is to ensure that
13 the evidence, the hard drive in this case, is not touched or
14 modified in any way. To do that in the Macintosh world, we
15 place an external zip drive on the SCSI chain connected to the
16 notebook.
17 Q. Can I just stop you there. If you can tell the jury what
18 a SCSI chain is?
19 A. SCSI stands for small commuter system interface and it is
20 a mechanism by which you can connect external devices to a
21 laptop or a desktop and you can add up to six devices to one
22 machine, whether it be a hard drive or CD-ROM or something of
23 that nature.
24 Q. Please continue.
25 A. So from the zip drive I attach an external needle optical
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1 drive, which is kind of like a large-capacity floppy disk.
2 Inside the zip drive I will place a trusted operating system,
3 an operating system that I have made up that contains
4 utilities that I will need to image the hard drive.
5 Q. And then what do you do when you have those mechanisms in
6 place?
7 A. Once everything is in place, then I will boot the computer
8 while holding down the command key, the shift key, the Apple
9 key and the delete key, and what that enables me to do is to
10 boot the machine in reverse SCSI order. Typically when you
11 boot a computer it looks for the hard drive and it expects to
12 see a device zero on the SCSI chain, and what I'm telling the
13 computer to do is to ignore the zero, start at the other end
14 and look for a boot disk.
15 Q. What is the purpose in doing that?
16 A. What I can tell is that my operating system, system, my
17 trusted OS, will be found first by the computer and it will
18 boot from that disk and it won't have to touch the one that's
19 in the laptop.
20 Q. Okay. Please continue.
21 A. Once the computer comes up with my operating system and my
22 utilities, I can then make an image of the hard drive using a
23 utility called FWB Tool Kit, and what that does is that allows
24 me to take all the information that's stored on the hard drive
25 in the notebook and transfer it to my external mag needle
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1 optical disk.
2 Q. The FWB Tool Kit you mentioned, is that something that is
3 commercially available?
4 A. Yes, it is.
5 Q. Now, were you able to make a mirror image off Government
6 Exhibit 300?
7 A. Yes, I was.
8 Q. And can you tell the jury precisely what it means to make
9 a mirror image, what is it you are copying?
10 A. I am copying every piece of information that's on that
11 hard drive. When we see a mirror image, it's almost
12 synonymous as if you are looking in the mirror and what you
13 see is the exact duplicate of yourself.
14 What I'm doing is I'm taking everything that's on the
15 subject hard drive and I'm placing it exactly as it was on my
16 mag needle optical disk.
17 Q. And the purpose of going through this exercise is?
18 A. To make sure I capture all of the information that's on
19 there and to make sure that the hard drive is not touched when
20 the examination is being done.
21 Q. Now after you made the mirror image in this case, what did
22 you do with the mirror image?
23 A. After the image was complete, then I will turn the machine
24 off because I no longer need it. I will take that mag needle
25 optical disk and I will place it into my exam Macintosh
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1 machine after I write-protected the hard drive.
2 Q. Can you tell us what you mean by "write protect"?
3 A. Well, the mag needle optical disk itself has a couple of
4 tabs, sort of like a VCR tape. If you pull the tab off the
5 VCR tape, you can't record over it again. It's similar to
6 that. Again, once I do that, I don't have any fear of
7 touching the data on that hard drive.
8 Q. After you write-protected the disk, what did you do next?
9 A. I brought it up in my exam machine, at which point I could
10 make directory listings, I could extract recover deleted
11 files, I could view invisible files, things of that nature,
12 and then I could create CD-ROMs based upon that information.
13 Q. Did you make a copy of the mirror image you had made?
14 A. I made several copies.
15 Q. And you made those on CD-ROM?
16 A. Yes, I did.
17 MR. KARAS: May I approach, your Honor?
18 THE COURT: Yes.
19 Q. Agent Crisalli, I have put before you Government Exhibit
20 300T. If you can tell us what that is.
21 A. Government Exhibit 300T is one of the CD-ROMs that I
22 imaged that I made from that notebook.
23 Q. Did you initial and date?
24 A. It is initialed and dated, correct.
25 MR. KARAS: Your Honor, at this time we move
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1 Government Exhibit 300T into evidence.
2 THE COURT: Received.
3 (Government Exhibit 300T received in evidence)
4 BY MR. KARAS:
5 Q. After you made the copies, you mentioned earlier that you
6 would go into the image to start retrieving the files?
7 A. That's correct.
8 Q. Generally speaking, what type of files did you see in the
9 copy that you made?
10 A. Well, right off the bat you see what's called visible
11 files. Operating system files, icons, help files, things of
12 that nature are all visible. In addition to that, you can
13 retrieve delete files, files that have been deleted from the
14 operating system but still reside on the hard drive. And the
15 third options are invisible files that are files that have
16 been made invisible so that they can't be seen unless
17 extraordinary measures are taken.
18 Q. Can you explain for us what you mean by a deleted file?
19 A. A deleted file is usually a file that the user does not
20 want on his hard drive anymore, and in the Macintosh
21 environment there is a two-step process by which you can
22 delete a file. The first step would be to drag it to the
23 trash bin, which is a small little icon of a garbage pail
24 that's typically on the bottom right-hand side of the screen.
25 Once it's there, it can be retrieved again by the user if he
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1 decides that he made a mistake when he deleted it.
2 The next step would be to empty the recycle bin,
3 which is another step that you can take. It's a little menu
4 item that you can bring down. Once it's removed from the
5 recycle bin, then the user can no longer retrieve it unless he
6 uses a third-party program.
7 Q. If a file is deleted, can you just explain electronically
8 what happens with a deleted file on the hard drive?
9 A. Well, to put it simply, you can consider your hard drive
10 like a filing cabinet and then there's a part of that hard
11 drive that is kind of like a card index. And the card, what's
12 on the card index is the exact location in the filing cabinet
13 of where the files are located. So when you delete a file,
14 you take just the card index and you throw that away, but the
15 files themself also still remain in that filing cabinet or, in
16 this case, they still remain on the hard drive.
17 Q. Can a delete file stay on a hard drive forever, or is
18 there a process by which it can be erased forever?
19 A. Well, once the operating system has designated that the
20 space is available, in other words, it knows that there is a
21 space available in that card file, it can choose to put more
22 data in those locations. The longer the hard drive is used,
23 the less likely that files will remain in there because they
24 will be overwritten by the need to replace them with other
25 files.
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1 Q. You told us you were able to retrieve deleted files from
2 this particular image. Can you explain the process that you
3 used to retrieve those files?
4 A. There is a utility called Norton's Utilities, and within
5 Norton's Utilities there is an unerase feature, and what that
6 does is that goes through the card catalog and sees what files
7 have been removed recently. And then we'll try and compare
8 them to what's on the hard drive and give you a probability of
9 what it can and what it can't retrieve from the hard drive.
10 Q. Now, you mentioned Norton Utilities. Is that a
11 commercially available means of retrieving deleted files?
12 A. Yes, it is.
13 Q. When you retrieved the deleted files, where did you save
14 them?
15 A. Well, again, if you remember, I work off an image that's
16 write-protected so when I want to retrieve information off of
17 that image I can no longer save to the same image because it
18 is write-protected. So what I need to do is copy it off to
19 another form of media, whether it be a floppy disk or a zip
20 drive or another mag needle optical or something like that.
21 Q. You mentioned earlier that there were also invisible files
22 on this particular hard drive?
23 A. Yes, most operating systems have invisible files, and the
24 idea behind that is that there are certain files that the
25 system absolutely, positively needs to run and if those files
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1 were accidentally deleted by the user, then the operating
2 system will no longer function. So they hide them so that you
3 can't see them.
4 Q. Are those otherwise referred to as program files?
5 A. Most cases, yes, they are, program or system files.
6 Q. Now, were there non-system or non-program files that were
7 invisible in this hard drive?
8 A. Yes, there were.
9 Q. What types of files were those?
10 A. They were documents.
11 Q. And generally speaking, can you tell us whether or not a
12 document can be made invisible by accident or by default?
13 A. No. Typically a document, one that you bring up in a Word
14 editor, like if you use a PC or Microsoft Word or something
15 like that, the operating system or the program needs to see
16 that file so that it can open it, modify it, and save it
17 again.
18 By definition, an invisible file cannot be seen so
19 that, therefore, the program cannot find it to open it. So
20 there would be no reason for you to hide a file that you edit.
21 Q. In addition to retrieving files, were you able to retrieve
22 directories of files?
23 A. From the deleted?
24 Q. From the deleted or invisible or the stored?
25 A. Yes, from both the invisible and the deleted files.
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1 MR. KARAS: May I approach the witness, your Honor?
2 THE COURT: Yes.
3 Q. Agent Crisalli, I have placed before you the following
4 list of exhibits: 300A-1, 300A-2, 300B, 300D, 300E, 300F,
5 300G, 300H, 300J, 300K, 300L, 300N, 300O, 300P, 300Q, 300R,
6 310-73A, 310-74A. If you could just take a look at those.
7 Can you tell us what those are?
8 A. These are documents that I have printed off of the image
9 of that notebook.
10 Q. And did you initial and date those documents?
11 A. Yes, I did.
12 MR. KARAS: Your Honor, at this time we would offer
13 the previously listed exhibits.
14 THE COURT: Received.
15 (Government Exhibits 300A-1, 300A-2, 300B, 300D,
16 300E, 300F, 300G, 300H, 300J, 300K, 300L, 300N, 300O, 300P,
17 300Q, 300R, 310-73A, 310-74A received in evidence)
18 BY MR. KARAS:
19 Q. Agent Crisalli, if you could turn to -- actually, recall
20 300N for publication to counsel and the jury.
21 If you turn to the screen to your left there, can you
22 tell us what 300N is, sir?
23 A. 300N is a directory listing of the hard drive contents of
24 the notebook.
25 Q. And are these the visible files only?
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1 A. That's right, these are the visible files only.
2 Q. There are four columns there at the top?
3 A. Yes.
4 Q. And the name, I take it, is either the name of the folder
5 or the file?
6 A. That's correct.
7 Q. Could you distinguish a folder from a file for us?
8 A. On the folder has an icon just to the left of it that
9 looks like one of those folders. In fact, it looks like this.
10 MR. SCHMIDT: I'm sorry, I didn't hear that.
11 A. The folder, those items that are folders, have an icon
12 next to them that looks like a folder, something that you see
13 right here. A file has an icon that will sometimes denote the
14 program that created it, or just have a plain document or a
15 piece of paper with a corner folded down.
16 Q. You see the folder there marked Adobe?
17 A. Yes, I do.
18 Q. Can you tell the jury what that is?
19 A. Adobe is a software company. They make a commercial
20 product called Photo Shop, in addition to others. Photo Shop
21 is a software program that allows you to view pictures and
22 manipulate them, sort of like a desktop publisher, if you were
23 to make a newsletter or magazine or something like that and
24 you wanted to move around pictures with text or what have you.
25 Q. Do you see about halfway down that first page there the
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1 file called Games?
2 A. Yes, I do.
3 Q. Now, if you want to pull up Games or any of the other
4 files, you just double click it; is that right?
5 A. That's one way you can do it, that's correct.
6 Q. If we could pull up and publish 300R, please.
7 Is that the Games file there, is that the same one
8 that was in the directory?
9 A. Yes, it is.
10 Q. Did you go into that file called Games?
11 A. Yes, I did.
12 Q. What did you find?
13 A. That particular icon is not a game. It's called, a
14 program called ResEdit.
15 Q. What is ResEdit?
16 A. ResEdit stands for Resource Editor, and essentially what
17 that is is a program that allows you to edit the resource fork
18 of a file.
19 Q. Can it be used to make documents invisible?
20 A. Well, the resource part of your document -- there's two
21 forks to a file, a resource fork and a data fork. The
22 resource fork holds the formatting codes for the file, and
23 within that --
24 MR. SCHMIDT: Your Honor, I'm having trouble hearing
25 the witness.
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1 MR. KARAS: If you can just speak into the
2 microphone.
3 A. Certainly. The file, like I said, the file has two forks
4 to it, resource fork and a data fork. The resource fork holds
5 certain formatting codes, one of which is an attribute for
6 invisibility.
7 Q. Earlier when you had mentioned that files that are made
8 invisible have to be done deliberately by the user, is this
9 one of the programs that could be used?
10 A. Yes, it is.
11 Q. Could you tell whether or not the Games file was the
12 original name given to that file or not?
13 A. In my opinion, it's not the original name of the program.
14 Typically when you install a program, a program comes with an
15 out-branch system. The name of the program comes underneath
16 the icon.
17 Q. If we could publish 300L, please.
18 Agent Crisalli, could you tell us what the first page
19 of 300L is?
20 A. That's a screen capture of the information window that
21 comes up when you request information on a file.
22 Q. What is at the top there where it says CERTI Info?
23 A. Right below that is this name, SECRT is the name of the
24 file, and to the left of it is the icon that represents that
25 program in the directory listing. Below that you find a
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1 subject called "Kind," and what that does is describe the kind
2 of file that it is. In this case, it says "Ready, Set, Go
3 Document."
4 Below that is the size of the file in kilobytes, and
5 below that is the location on the hard drive where the file is
6 found. And you will find that the Macintosh with the "HD" in
7 parentheses is the name of the volume that was on the
8 notebook, and then below that is the series of folders where
9 you need to go down to find this file if you wanted to.
10 Q. And then below that where it says "created and modified,"
11 can you tell us what that is?
12 A. The "created" is the date and time that the file was
13 created and the "modified" is the date and time, the last time
14 the file was changed in any way.
15 Q. Now, if we could publish page 3 of 300L, and is that one
16 of the pages of the document that's called CERTI?
17 A. Yes, it is.
18 Q. And one of the documents that you were able to retrieve
19 from the computer?
20 A. That's correct.
21 Q. And if we could publish page 2 of Exhibit 300K. Again,
22 Agent Crisalli, this is one of the documents you retrieved
23 from the file of the computer?
24 A. Yes, it is.
25 Q. If we could now publish Exhibit 300P. Agent Crisalli, if
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1 you could tell us what that page is.
2 A. This page is similar to the other one that we had. It's a
3 directory listing of the contents of the hard thrive of the
4 notebook, but this one includes invisible files.
5 Q. I'm sorry, is it invisible or deleted files?
6 A. I'm sorry, you're right. This is the deleted file
7 listing.
8 Q. Now, if you take a look to the left, the first files and
9 folders there, there are names like "Moved" and "Rename" and
10 "Norton." Could you tell us what those files are?
11 A. Those are some of system files that both Norton's and the
12 Macintosh operating system places on a volume when you mount
13 it on a desktop. The desktop, both those desktop files and
14 the Move, Rename are placed there by the operating system.
15 The other ones are the Norton's files.
16 Q. And are those files used to retrieve the deleted files?
17 A. They work with the program to make those files appear,
18 correct.
19 Q. And so we're clear, when you retrieve and store these
20 files, you save them on a different media?
21 A. Yes.
22 Q. And the files and folders that are listed below the folder
23 labeled "Recovered Files," that's actually what you recovered
24 from the mirror image?
25 A. Yes, everything below that was recovered as deleted.
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1 Q. Now, if you looked to the column at the top called
2 "Modified Date" and you see the first several files says
3 "today, 5:30," and there are references in that column to
4 yesterday and it gives a time, can you tell us what that
5 means?
6 A. Those dates -- well, those dates are associated with the
7 files that I used to retrieve the erased files from the hard
8 drive so that's why they have "today's date" and in some cases
9 "yesterday's date."
10 Q. And there are other modified dates in there that have
11 actual dates. For example, there's a reference to August 2,
12 1997. Can you tell us what that date represents?
13 A. Well, even though the file is deleted, it's still retained
14 some of the original attributes, and what this does is it
15 shows you that the date created and the date modified were
16 maintained when the file was restored.
17 Q. Does the modified date represent the date the document was
18 deleted?
19 A. No, it doesn't.
20 Q. If we could now publish Exhibit 300A-2. The first page of
21 this, Agent Crisalli, is this a similar type of information
22 sheet that appears for the non-deleted files you discussed
23 earlier?
24 A. Yes, it is.
25 Q. And the created date and modified date, are those affected
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1 by the fact that the file was deleted?
2 A. No, they're not.
3 Q. If we could now publish Exhibit 300Q.
4 Agent Crisalli, if you could tell us what 300Q is.
5 A. 300Q is a directory listing of the invisible files found
6 on the hard drive.
7 Q. And the list on the left is the actual file names
8 themselves?
9 A. That's correct.
10 Q. And the "Created" and "Modified" column, what do those
11 represent?
12 A. Those also represent the date the file was created and the
13 date it was last modified.
14 Q. And when it says "last modified," does that mean that
15 that's the date the document was made invisible?
16 A. No, that's the last time any change was made to the
17 contents of the file.
18 Q. If we could publish 300E, please.
19 Agent Crisalli, do you see the image there in the top
20 left that reads "PICT"?
21 A. Yes, I do.
22 Q. Can you tell us what that means?
23 A. That means that this file is some form of a picture.
24 Q. Within that document next to "kind," there's a reference
25 to Photo Shop.
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1 A. It's saying that this particular file is a Photo Shop
2 file.
3 Q. Does this relates to the Adobe --
4 A. Yes, it does.
5 Q. -- system that you mentioned earlier?
6 If we could publish page 2 of 300E.
7 Now, how would somebody get that image into the
8 computer.
9 A. Well, there's two ways it could happen. The first way
10 would be to take it off of another form of media, like a
11 floppy disk or a CD. The other way would be to scan it in
12 using a scanner.
13 Q. And once that image is saved in the computer, can it be
14 manipulated or changed?
15 A. Yes, it can.
16 Q. Now, Agent Crisalli, in addition to the laptop computer,
17 were you also asked to review some disks?
18 A. Some floppy disks, yes.
19 Q. Floppy disks, excuse me.
20 MR. KARAS: May I approach, your Honor?
21 THE COURT: Yes.
22 Q. Are those the disks you were asked to review?
23 A. Yes, they are.
24 Q. What type of operating system is used in connection with
25 those disks?
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1 A. These seven floppies were used with an Intel-based
2 computer.
3 Q. And for the record, you are referring to 310-68 through
4 310-74?
5 A. That's correct.
6 Q. Which are marked into evidence.
7 Were you able to retrieve documents off of -73 and
8 -74?
9 A. Yes, I was.
10 Q. If we could publish 310-73A. This first page of 310-73A,
11 can you tell us what that is?
12 A. That's an information page that comes from Word for
13 Windows.
14 Q. And the "Creation Date" and "Last Date Saved On" are --
15 reflect the same type of information that the other
16 information sheets reflected you talked about earlier?
17 A. In Macintosh, that's correct, they do.
18 Q. And if we could publish 310-74A. If you could tell us
19 what that first page is of 310-74A.
20 A. That's a directory listing of one of the floppies. I
21 believe it's 310-74.
22 Q. Which lists all the files on that floppy disk?
23 A. Which lists all the files on that floppy disk, correct.
24 Q. Have you seen some files where the document has an auto
25 date function?
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1 A. Yes, I have.
2 Q. Can you tell us what that is?
3 A. The auto date function in Word allows you to place the
4 current date and time on the top of a document or anyplace on
5 the document so that when that document is either brought up
6 or printed, it will be brought up or printed with today's
7 date.
8 Q. Now, 310-74A, were you able to determine whether or not
9 that disk was used in a Macintosh computer?
10 A. Yes, I was. There are several files listed here,
11 specifically, the Resource Fork and the desktop, which are
12 synonymous with the Macintosh operating system.
13 MR. KARAS: No further questions.
14 THE COURT: Mr. Schmidt on behalf of defendant El
15 Hage.
16 CROSS-EXAMINATION
17 BY MR. SCHMIDT:
18 Q. Good afternoon, Mr. Crisalli.
19 A. Good afternoon.
20 Q. Please feel free to correct me if I mispronounce or
21 misstate any computer information.
22 A. Okay.
23 Q. Am I correct in understanding that the date that's listed
24 under "Date Modified" is only the last date that something was
25 actually done to that document?
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1 A. To the contents of that document.
2 Q. If I opened the document but make no changes and closed
3 it, would the date change?
4 A. I believe it would, yes.
5 THE COURT: It would?
6 THE WITNESS: I believe it would.
7 Q. When you say "I believe it would," there seems to be a
8 hesitation. Can you explain why you say "I believe" as
9 opposed to "it would"?
10 A. Well, I've never actually done it to see if it will do
11 that, but it's my belief that if you opened up that document
12 and then saved it again, that it would change the last
13 modified date.
14 Q. You've work with Macintosh computers; is that correct?
15 A. Yes, I have.
16 Q. Is it your testimony that at no time you have opened up a
17 file in a Macintosh computer and closed it just to determine
18 if it would change the date?
19 A. That's correct.
20 Q. You indicated -- withdrawn. If somebody uses the ResEdit
21 program to make something invisible, do they need to open the
22 file?
23 A. No, they don't.
24 Q. They could then just take the file that's on the hard
25 drive, do some clicking, and make it invisible?
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1 A. Yes.
2 Q. So the date last modified does not indicate the date that
3 the particular file was made invisible; is that right?
4 A. I'm sorry, would you just repeat that for me?
5 Q. The date last modified would certainly not reflect -- let
6 me rephrase that.
7 A. Okay.
8 Q. The date last modified would not tell you the date that
9 the particular file was made invisible; is that correct?
10 A. That's correct.
11 Q. If the date was the same for created and modified, would
12 that tell you that that date also was the date that that
13 document was made invisible?
14 A. No, if the creation date and the modified date are the
15 same, that means that the person created the document, saved
16 it, and never touched it again.
17 Q. And if the document was invisible as well, would it mean
18 that it was made invisible on that date, or you really can't
19 tell?
20 A. You really can't tell.
21 Q. You indicated on 300R -- that was the icon that read
22 Games, you remember that?
23 A. I remember that, yes.
24 Q. And you said that was the ResEdit, actually, program?
25 A. That's correct.
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1 Q. Now, there's two icons below that, one saying "Inclosing"
2 and one saying "Untitled." Can you tell us what those icons
3 are?
4 A. They are preferences for the program. You can save
5 certain settings so next time the program comes up those
6 settings will be there.
7 Q. When preferences are set, you can find out the date that
8 the preferences were set; is that right?
9 A. I don't think so, no.
10 Q. When you set preferences, aren't you doing something to a
11 file?
12 A. Yes.
13 Q. And wouldn't the file indicate that it was modified on
14 that date?
15 A. Yes.
16 Q. So you can determine when the last preferences were set by
17 looking at the date last modified; is that right?
18 A. Okay, yeah, that sounds right.
19 Q. Well, I'm not the expert, you're the expert. So am I
20 correct in saying that?
21 A. Yes, I would say you're correct in saying that.
22 (Continued on next page)
23
24
25
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1 Q. Do you know this if ResEdit is used, would there be
2 something found in the hard drive that would reflect --
3 withdrawn. Would there be some file or something in the
4 computer that would indicate the last time that a program like
5 ResEdit was used?
6 A. If you didn't make any savings to the preferences, there
7 would be no way. If you made a change to your preferences
8 during that session that the program was opened, then you
9 could say the last time that file was used and the preferences
10 were changed you would know when it was. But if you used the
11 program and you didn't use any ResEdit preferences, there
12 would be no way of knowing when that program was last used.
13 Q. Looking at the -- that is the record of all files visible
14 and invisible.
15 A. That is correct.
16 Q. Looking at that directory, can you tell us the last date
17 that you know ResEdit was used? By that I mean it could have
18 been used perhaps afterwards, but it was at least the last
19 time it was used was a particular day.
20 A. Looks to be August 17, 1997.
21 Q. Is that the last time that an invisible file was modified?
22 A. No, that's the last time that the preferences were
23 changed.
24 Q. Could you tell me where I should look to find that.
25 A. Underneath the games, in closing file.
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1 Q. What does that actually mean, preferences, in dealing with
2 ResEdit?
3 A. Every program has a set of preferences. If I'd like to
4 have the screen a certain size, if I'd like to have my file
5 sorted alphabetically, expand, those are preferences. If you
6 want to talk about invisible files, you want to talk about
7 attributes.
8 Q. I don't quite understand that.
9 A. Programs have preferences, files have attributes.
10 Q. In ResEdit, if you are making a program that was visible
11 into invisible, would that affect the date modified in the
12 preferences?
13 A. The preferences are associated with the program ResEdit.
14 What ResEdit does is it goes into the resource fork of a file
15 that you choose and changes an attribute.
16 Q. Could you give us an example of some preferences that
17 would be changed on August 17.
18 A. Whatever preferences the user wanted to make a change to
19 in the ResEdit program.
20 Q. It could only be in the ResEdit program?
21 A. That's what that file takes care of.
22 Q. In the ResEdit program, if -- withdrawn.
23 Could you give us an example in the ResEdit program
24 that deals with making files invisible, what would be an
25 example of a change that would occur?
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1 A. I don't believe there would be one. Again, a preference
2 file will set up the way a program looks on your screen or the
3 way it acts when you are using it. It's a file that has a set
4 of instructions that the program will read into and say OK,
5 put your screen here, make your list look like this, things of
6 that nature. It happens whenever you bring up the program.
7 Q. So if you brought up ResEdit program on August 17, 1997,
8 and you made files invisible --
9 A. It would have no effect on preferences.
10 Q. So what I am trying to find out, that since there is
11 indication that some preference was changed on August 17, I am
12 trying to find out what that means, what kind of thing was
13 changed.
14 A. I don't know.
15 Q. What kind of thing could be changed that would reflect a
16 change on August 17, 1997?
17 A. When I bring up the ResEdit program, and say it produces a
18 screen listing of files and I decide that I want my files to
19 be listed in alphabetical order, I will make a change in that
20 program to say list my files in alphabetical file.
21 Q. As opposed to, say, date created.
22 A. By date order or picture or whatever. When I get out of
23 that program, that change is saved for the ResEdit program.
24 Q. Under that change we have 1K, one kilowatt, right?
25 A. Right, 1 kilowatt. That's a thousand bytes.
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1 Q. That is very, very small, isn't it?
2 A. As compared to something larger? Yes, it's small.
3 Q. Compared to anything in the computer.
4 Do you know what other things could have been changed
5 other than the order how the files come up?
6 A. I am not that familiar with the ResEdit program.
7 Q. Is there any way to find out by reviewing the program or
8 the computer what actually was changed?
9 A. No. You would have to know how the program was to begin
10 with, to find out what was changed.
11 Q. It says not only was the modified date August 17, the
12 created date was August 17. That means any time you make a
13 change in the ResEdit preferences, it would be created on the
14 same day as modified.
15 A. No. If you made any changes to the ResEdit program, it
16 would have a different modified date.
17 Q. If you made a date to the preferences --
18 A. To the preferences, I am sorry.
19 Q. Does that mean that the only time that there might be
20 preference changes is in untitled and closing?
21 A. That is correct.
22 Q. And untitled looks like it was created January 17, 1904.
23 There weren't Apple or McIntosh computers in 1904.
24 A. I don't think there were any computers in 1904.
25 Q. Why does it say 1904?
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1 A. 1904 was the date that Apple chose to represent zeros in
2 the date and time fields. They chose that because at the time
3 McIntosh could only track 136 years, and they figured that if
4 you start in 1904 and go 136 years, you will encompass every
5 McIntosh user's birthday and it will probably outlast the
6 McIntosh system. In addition to that, they started in 1904
7 because 1900 wasn't a leap year.
8 Q. So for whatever reason, they just chose that date so if
9 something goes wrong it shows up 1904?
10 A. Right, because you need a date to start with.
11 Q. But something has to go wrong in saving whatever it was to
12 get to 1904.
13 A. Typically -- the mother board on the notebook has a
14 battery. That battery is what is in charge of holding the
15 date and time while the computer is turned off. What happens
16 when the battery dies is that it has to fall back on
17 something, sort of like when you pull the plug on a VCR and it
18 starts flashing 12.
19 Q. I ask you to look at 300P. There is a file under file
20 maker that is called Appletalk. Do you see that?
21 A. Yes, I do.
22 Q. That says June 1, 1988. Do you see that?
23 A. I can't make it out on the screen.
24 June 1, 1988, yes.
25 Q. How come that date came about?
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Crisalli - cross
1 A. That's the date on the computer when that file was
2 installed.
3 Q. So this computer was built in 1988, or approximately that
4 date?
5 A. The Appletalk, that Appletalk software was written on June
6 1, 1988. A lot of times when you install an operating system
7 on a computer, the system files all come the same date,
8 typically the date that operating system was completed. So I
9 believe that's the date that you see there.
10 Q. I am looking at Government's Exhibit 300O and 300N.
11 Actually, I withdraw that question.
12 Actually, if you can look at Exhibit 300N on page 8.
13 Do you see that?
14 A. Yes, I do.
15 Q. Do you see where it says ResEdit preferences?
16 A. Yes.
17 Q. Is there a reason why the ResEdit preferences on that
18 ResEdit preference folder is there as opposed to under games?
19 A. There is no reason I know of. I mean, I think this is the
20 location where it's supposed to be.
21 Q. Where the location of ResEdit should be?
22 A. Where the location of the ResEdit preferences should be.
23 Q. So if somebody moved -- would it be fair to say that
24 somebody changed the ResEdit program and called it games?
25 A. Could you say that again.
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Crisalli - cross
1 Q. When it was installed in the computer, it would be
2 installed as ResEdit.
3 A. Yes.
4 Q. But it's not hard to change the name of a program by
5 clicking around, right?
6 A. No, it's not hard to change at all.
7 Q. And it was probably changed from ResEdit to games somehow.
8 A. Yes.
9 Q. But ResEdit preferences was left there.
10 A. Yes.
11 Q. Would you be able to use ResEdit to find an invisible
12 file?
13 A. Sure.
14 MR. SCHMIDT: I have no further questions, your
15 Honor.
16 THE COURT: Anything further?
17 MR. KARAS: One brief question, your Honor.
18 REDIRECT EXAMINATION
19 BY MR. KARAS:
20 Q. Agent Crisalli, if you could take a look or if we could
21 have published 300B, please. Do you see where there is a
22 reference to created Monday, August 27, 1956?
23 A. Yes, I do.
24 Q. Can you explain that date, please.
25 A. August 27, 1956, is the birthday of one of the designers
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1 of the controller board that has the battery on it that
2 controls the date and time. Apparently when he designed it,
3 that's the date he used to fall back on.
4 Q. Is that another default date similar to the 1904 date?
5 A. Yes, it is.
6 (Continued on next page)
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1 MR. KARAS: Nothing further.
2 (Witness excused)
3 THE COURT: All right, we will take our midafternoon
4 recess.
5 (Jury excused)
6 (Continued on next page)
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1 (Pages 1789-1790 sealed)
2 (Recess)
3 THE COURT: What is the next order of business?
4 MR. KARAS: We are going to read a stipulation
5 regarding transcripts and then we will read transcriptions
6 from the wiretaps.
7 THE COURT: More wiretap?
8 MR. KARAS: Correct.
9 THE COURT: What is the first order of business
10 tomorrow?
11 MR. FITZGERALD: If we are in the middle of documents
12 we will finish that. The first live witness will be Agent
13 Leadbetter with respect to the search in Witu, and then likely
14 we will have the testimony of the ambassador.
15 (Jury present)
16 MR. KARAS: Your Honor, at this time we would propose
17 to read the following stip marked for identification as
18 proposed Government's Exhibit 44.
19 It is hereby stipulated and agreed by and between the
20 United States of America and the defendants, with the consent
21 of their attorneys, as follows: If called to testify as a
22 witness, a person fluent in the Arabic and English languages
23 would testify that Government's Exhibit 300A-T is a fair and
24 accurate English translation of Government's Exhibits 300A-1
25 and 300A-2. This witness would also testify that Government's
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1 Exhibits 300B-T, 300E-T, 300H-T, 310-73A-T, and 310-74A-T are
2 fair and accurate English translations of Government's
3 Exhibits 300B, 300E, 300H, 310-73A, and 310-74A respectively.
4 If called to testify as a witness, a person fluent in
5 the Swahili and English languages would testify that
6 Government's Exhibit 300D-T is a fair and accurate English
7 translation of Government's Exhibit 300D.
8 Your Honor, at this time we would offer Government's
9 Exhibit 44 and the exhibits listed in that stipulation.
10 THE COURT: Received.
11 (Government's Exhibits 44, 300A-T, 300A-1, 300A-2,
12 300B-T, 300E-T, 300H-T, 310-73A-T, 310-74A-T, 300B, 300E,
13 300H, 310-73A, and 310-74A, 300D and 300D-T received in
14 evidence)
15 MR. KARAS: At this time we would like to read
16 Government's Exhibit 310-73A-T, and we are publishing it as
17 well.
18 (Government's Exhibit 310-73A-T in evidence read to
19 the jury)
20 MR. FITZGERALD: At this time, your Honor, the
21 government would read from the following exhibits, which are
22 in the binders that were distributed, I believe yesterday or
23 the day before, and Gerard Francisco and Abigail Seda will
24 read the parts of 208A-T, which are the translations from
25 Arabic and English, and the transcript indicates it is a
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1 transcript of a conversation occurring on January 19, 1997, at
2 10:20. It will also be displayed on the screen.
3 (Government's Exhibit 208A-T read to the jury)
4 MR. FITZGERALD: Your Honor, at this point in time we
5 would play Government's Exhibit 209A and 209C, which are calls
6 in English. We will also display on the screen the
7 transcripts 209A-T and then later 209C-T. As far as 209A,
8 that is a conversation recorded on January 30, 1997, at 14:47.
9 It reflects the participants are April El Hage and a person
10 identified as Abu Khadija.
11 THE COURT: Very well.
12 (Government's Exhibits 209A-T and 209C-T in evidence
13 played)
14 MR. FITZGERALD: Your Honor, the next call will be
15 209C, same date, January 30, 1997, at 15:22 p.m., also in
16 English, and the participants are April El Hage and Wadih El
17 Hage.
18 (Government's Exhibit 209C in evidence played)
19 MR. FITZGERALD: Your Honor, at this time we would
20 read 210A-T, which is a transcript of an Arabic conversation
21 on February 4, 1997, at 16:59, and we would display the
22 transcript from 210A-T.
23 (Government's Exhibit 210A-T in evidence read to the
24 jury)
25 MR. FITZGERALD: Your Honor, there is a series of
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1 calls and your Honor will just guide me. There are about five
2 left. Some are short, some are middle length. I will stop
3 whenever your Honor wants me to. I am happy to proceed.
4 THE COURT: How long will it take to conclude them
5 all?
6 MR. FITZGERALD: My guess is within a half hour.
7 THE COURT: A half hour is too long. We will call it
8 a day. I think it has been awhile since I remind mind
9 reminded you not to read anything about this case. I remind
10 you. Have a pleasant evening, and we will return tomorrow at
11 the usual hour.
12 (Proceedings adjourned until Thursday, March 1, 2001,
13 at 10:00 a.m.)
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1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 JOHN MICHAEL ANTICEV....1639 1696 1744 1747
5 ROBERT S. CRISALLI......1754 1776 1786
6 GOVERNMENT EXHIBITS
7 Exhibit No. Received
8 6 ..........................................1698
9 43 and 300Z ................................1754
10 300T .......................................1762
11 300A-1, 300A-2, 300B, 300D, 300E, 300F, 300G, 300H,
12 300J, 300K, 300L, 300N, 300O, 300P,
13 300Q, 300R, 310-73A, 310-74A................ 1766
14 44, 300A-T, 300A-1, 300A-2, 300B-T, 300E-T,
15 300H-T, 310-73A-T, 310-74A-T, 300B,
16 300E, 300H, 310-73A, and 310-74A,
17 300D........................................ 1792
18 DEFENDANT EXHIBITS
19 Exhibit No. Received
20 Odeh C .................................. 1713
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