30 April 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 36 of the trial, April 30, 2001.
See other transcripts: usa-v-ubl-dt.htm
5054
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 April 30, 2001
9:20 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
5055
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
17
18
19
20
21
22
23
24
25
5056
1 (Trial resumed)
2 THE COURT: I received a joint request to adjourn
3 without date the motion we had scheduled for 4:30 concerning a
4 motion to quash the subpoena to the Defense Department. So
5 that is adjourned. I hope that shortly after lunch we will
6 get what I hope will be the penultimate draft of the charge
7 and verdict form.
8 I have considered the request made to strike overt
9 act E and have reviewed the material in the record, in the
10 government's letter of April 28, and I conclude that the
11 government has made an adequate showing. So that overt act E
12 is not stricken.
13 The first order of business when the jury comes in
14 will relate to the striking of the testimony of Special Agent
15 Yacone, and the government has submitted a letter dated April
16 30, which unfortunately was not submitted to me until a few
17 moments ago, in which the government asks that not all of the
18 agent's testimony be stricken and expresses concern that the
19 jury may draw significant adverse inferences from the fact
20 that the court strikes the testimony. What I am not entirely
21 clear on is how one tells the jury what is and is not
22 stricken.
23 MR. FITZGERALD: Your Honor, my suggestion would be
24 that what is stricken could be described as everything is
25 struck but the fact that, for example, the US was there on a
5057
1 UN mandate and that there were 18 fatalities. Everything else
2 is stricken. This way you don't remind them what they are not
3 supposed to consider.
4 MR. BAUGH: I am sorry, your Honor. The interpreters
5 are not picking up.
6 MR. FITZGERALD: The microphone is unplugged.
7 THE COURT: What is the significance of 18 casualties
8 if they cannot be attributed to defendants?
9 MR. FITZGERALD: First, your Honor, part we were
10 going to figure out how we were going to prove up those
11 casualties and when they occurred. It is our view that the
12 statements made in the Harun computer report indicating that
13 Al Qaeda feels responsible doesn't negate ultimate
14 responsibility for those casualties.
15 THE COURT: But when you say 18 casualties, that's a
16 flag, a trigger that you are not talking about casualties in
17 general, you are talking about a specific incident in
18 Mogadishu which everybody is familiar with.
19 MR. FITZGERALD: We could strike the 18, your Honor,
20 and just establish that there were casualties. Otherwise it
21 seems that we are going down the road of again proving the
22 casualties through the Department of Defense witness.
23 (Pause)
24 THE COURT: I propose the following, which I think
25 meets at least some of the government's concerns. I think
5058
1 beating one's breast as to why it was stricken or whose fault
2 it is is counterproductive. We have stricken other things
3 before, and I think it is self-defeating. I suggest the
4 following: The testimony you heard last Monday from Special
5 Agent Yacone as to a battle in Mogadishu on October 3, 1993,
6 and casualties received during that battle is stricken, and
7 you are instructed to disregard it. The government does not
8 contend that the evidence before you proves that any member of
9 Al Qaeda or of the conspiracy charged in the indictment were
10 involved in the events related in the testimony of Special
11 Agent Yacone with respect to October 3, 1993. The government
12 does not contend that any defendant now on trial participated
13 in the actions described by Special Agent Yacone as to the
14 battle on that date. Accordingly, that testimony is stricken.
15 MR. FITZGERALD: Your Honor, with all due respect,
16 that is precisely what I am afraid of. Number one, you are
17 basically charging the jury that Al Qaeda had nothing to do
18 with that. What we want to argue to the jury -- we are now no
19 longer proving something that is referred to in the documents
20 in Harun's computer and Bin Laden's statements and Abu Hafs's
21 statements, we are now charging the jury that those statements
22 are wrong.
23 THE COURT: No, no. If this isn't clear, we are
24 charging that the October 3 battle is not linked up to that.
25 MR. FITZGERALD: And that is precisely our concern,
5059
1 Judge.
2 THE COURT: That's your concern but that's the case,
3 isn't it?
4 MR. FITZGERALD: I don't believe so, Judge. In terms
5 of being responsible, Al Qaeda took responsibility for the
6 attacks on the Americans in Somalia three different ways. Bin
7 Laden took responsibility, the military command took
8 responsibility, and Harun in the computer took responsibility.
9 The problem is, they never said which date. The event it most
10 fits with is October 3. There are only a few other events,
11 many of which involve land mines or the mortar attack. We
12 didn't agree with striking it, but if you strike it and say it
13 had nothing to do with Al Qaeda, you are basically saying that
14 the Bin Laden statement and the Abu Hafs statement and the
15 Harun statement is wrong. We are charging the jury that
16 basically the testimony is irrelevant and in fact the
17 conspiracy didn't have anything to do with October 3. It is
18 one thing not to say -- we are basically telling the jury that
19 Harun is lying and Bin Laden and Abu Hafs is not telling the
20 truth and Al Qaeda had nothing to do with it. I think that is
21 not consistent with what the facts are and I think that would
22 be heavily prejudicial to the government.
23 THE COURT: Give me another moment.
24 MR. SCHMIDT: May I be briefly heard on that issue?
25 THE COURT: After I come up with some other language.
5060
1 (Pause)
2 THE COURT: Shorter may be better. I propose the
3 following: The testimony you heard last Monday from Special
4 Agent Yacone as to the battle which took place in Mogadishu on
5 October 3, 1993, is stricken because of the absence of any
6 evidence that any defendant or persons affiliated with any
7 defendant was a participant in this particular event.
8 MR. FITZGERALD: Your Honor, again it is charging the
9 jury as if we put something improperly before the jury.
10 THE COURT: Every time something is stricken it is
11 because the court has reached the conclusion that something
12 put before the jury should not have been.
13 MR. FITZGERALD: The problem is, if we didn't put
14 forth any proof that there were deaths in Somalia, there would
15 be nothing to refer to the events discussed by others. We are
16 telling the jury everything that is not, when in fact Al Qaeda
17 took credit for the attacks three different ways.
18 THE COURT: Which is why I am limiting it to these
19 defendants, which is not Al Qaeda, it is these defendants -- I
20 do say or persons affiliated with any defendant, but that was
21 a participant in this particular event. I have tried to
22 narrow it.
23 You will have an opportunity, I hope in a short
24 period of time, to make the argument. But I don't think it is
25 appropriate to do anything more than make the ruling, and, as
5061
1 I said, I think to do more than that is counterproductive.
2 I will read it again and you let me know if there is
3 any particular change you want to make: The testimony you
4 heard last Monday from Special Agent Yacone as to the battle
5 which took place in Mogadishu on October 3, 1993, is stricken,
6 because of the absence of any evidence that any defendant or
7 person affiliated with any defendant was a participant in this
8 particular event.
9 MR. FITZGERALD: Your Honor, could we just say it is
10 stricken then? In all fairness, we have testimony that Harun
11 and Saleh were in a building when the helicopter incident
12 happened.
13 THE COURT: I am not striking all the testimony. I
14 am striking a portion of the testimony of one witness.
15 MR. FITZGERALD: In all fairness, that instruction to
16 a juror sounds like October 3, 1993, has nothing to do with Al
17 Qaeda whatsoever. First of all, it is saying as a matter of
18 fact Al Qaeda had nothing to do with the attacks in Somalia,
19 is the way I hear a juror hearing that.
20 MR. SCHMIDT: May I be heard, your Honor?
21 THE COURT: Yes, in a moment.
22 Yes.
23 MR. SCHMIDT: The testimony of the agent --
24 THE COURT: Before you do that, do you have any
25 objection to the language I have proposed?
5062
1 MR. SCHMIDT: Before I make any further objection, we
2 wanted, all counsel wanted to discuss this matter to try to
3 see if we have a uniform position. But my concern initially
4 to it, your Honor, is that there was testimony of an October 6
5 event as well that is not linked and also should be stricken
6 and also should be part of your Honor's instruction to the
7 jury.
8 As to the entire issue concerning Somalia and
9 material that the government turned over to us today, I think
10 all counsel wanted to convene.
11 THE COURT: Let's leave this then and I will give
12 counsel an opportunity to confer. Let's move on to some other
13 matters.
14 MR. RUHNKE: We are just trying to figure out how the
15 government intends to proceed today. We received their
16 letter.
17 THE COURT: That's where I want to go. Assuming that
18 I will give this instruction, or this direction or similar to
19 the jury, I received a letter from Mr. Schmidt indicating that
20 there were some additional documents that he wished to offer
21 in evidence and some stipulations. Are you calling the
22 handwriting expert?
23 MR. SCHMIDT: That is an issue that I wanted to raise
24 with your Honor and the government. We seem to have not
25 resolved that. The handwriting expert would be testifying as
5063
1 to the handwriting comparison between the documents, the
2 notebooks that I would be offering in evidence and notebooks
3 previously offered in evidence and identified as Mr. El Hage's
4 circumstantially, and then offer that exhibit into evidence.
5 The notebooks contain much of the similar information found in
6 other notebooks seized from Mr. El Hage's home and from Mercy.
7 Your Honor's previous rulings as to authenticity seem to
8 indicate that unless there is a specific person testifying as
9 to that particular item, that with an objection by the
10 government you would bar its admission.
11 THE COURT: The mere fact that a document is written
12 by a defendant does not make it admissible.
13 MR. SCHMIDT: That is correct, but the fact that it
14 is written by the defendant, has numerous entries that are
15 related to other things that are already in evidence, that it
16 has been testified to by other witnesses, authenticated
17 sufficiently to allow the jury to make a determination whether
18 that document is a phony or is real, that is my understanding
19 as to the authenticity law as it stands now, that it is a
20 broad law to give the jury a wide scope to make their own
21 determinations. I am just talking specifically as to those
22 books. If the government is going to object and your Honor is
23 going to sustain that objection, there is no reason for me to
24 place the expert on the stand and go through the testimony as
25 to comparing those documents with other documents.
5064
1 THE COURT: How many documents are there?
2 MR. SCHMIDT: These are three yellow-bound spiral
3 notebooks.
4 THE COURT: Have you discussed this with the
5 government at all?
6 MR. SCHMIDT: I have given it to them, I have
7 mentioned that I am going to call an expert, I have given them
8 a stipulation.
9 MR. FITZGERALD: If the expert will testify that the
10 handwriting is Mr. El Hage or appears to be, we will not
11 object to authentication and we can give it to the jury for
12 what it is worth.
13 THE COURT: Are you representing that is what the
14 expert will testify?
15 MR. SCHMIDT: He will testify that he has compared it
16 to other documents offered in evidence and say that the
17 handwriting is basically the same.
18 THE COURT: Is that sufficient?
19 MR. FITZGERALD: Yes, Judge.
20 THE COURT: So I take it you will not call the
21 handwriting expert.
22 MR. FITZGERALD: I do want the live testimony. I
23 want to ask questions. If he testifies as to what Mr. Schmidt
24 says, I will not at that point oppose an authentication
25 testimony.
5065
1 THE COURT: Is Mr. El Hage going to testify?
2 MR. SCHMIDT: He has no present intention of
3 testifying. There are other issues that I wanted to address
4 now.
5 THE COURT: I am sorry. No present intention? What
6 does that mean?
7 MR. SCHMIDT: That means --
8 THE COURT: You mean five minutes from now he may
9 decide that he wants to testify?
10 MR. SCHMIDT: We haven't completed our case.
11 THE COURT: As I understand your case, there is no
12 reason why it can't be completed. You can't protract this for
13 the simple sake of protracting a decision your client has to
14 make. We made it clear Thursday in your client's presence
15 that this was something which has to be resolved. We are now
16 on El Hage's case. There has already been an objection on
17 behalf of Odeh that you are injecting matters with respect to
18 El Hage in their case that prejudice them. For what reason
19 would you not be resting this morning? You have some
20 documents and you have a handwriting expert. Then what else?
21 MR. SCHMIDT: Once I am done, your Honor, if Mr. El
22 Hage remains in the position that he has informed me that he
23 does not wish to testify, then we will rest. All I am saying
24 is that at the point where Mr. El Hage's irrevocable decision
25 is made not to testify is where we rest, and not before.
5066
1 THE COURT: All right, all right. Assuming that El
2 Hage rests, then we will call on the other defendants.
3 Anything else?
4 MR. SCHMIDT: Your Honor, there are other issues that
5 we need to address concerning some evidence. I will address
6 some of them and then Mr. Dratel will address some of the
7 other ones. There is testimony in the grand jury --
8 THE COURT: Let's not do that. Let's break now so
9 that we resolve the matter of the Yacone testimony and so we
10 do not keep the jury waiting.
11 MR. RUHNKE: Your Honor, before we do that, the issue
12 with respect to the Yacone testimony may depend on how we
13 proceed today. We had a letter this morning outlining four or
14 five or six different ways on how the government might
15 proceed. I think it is fair to ask what does the government
16 plan to do once the defense case ends, assuming it ends this
17 morning, which I am assuming it will.
18 MR. FITZGERALD: This letter was written early this
19 morning. Nothing has changed. It is what it is. I will wait
20 to hear from you and we will respond.
21 THE COURT: Five minutes, gentlemen. You have five
22 minutes. You may repair to wherever you want to repair but I
23 think this is festering more than is appropriate. Five minute
24 recess.
25 (Recess)
5067
1 THE COURT: Who speaks for the defendants?
2 MR. RICCO: Your Honor, I am speaking on behalf of
3 the defendant Mohamed Odeh. We object to the instruction as
4 proposed. Our position is that if the testimony was properly
5 stricken the testimony should be stricken and no party is
6 entitled to an explanation as to why evidence is stricken.
7 THE COURT: So you would be content with my simply
8 saying to the jury that testimony is stricken.
9 MR. RICCO: On behalf of the defendant Mohamed Odeh,
10 yes, your Honor, and part of that decision is based upon the
11 fact that there is absolutely no unanimity from the defense as
12 to what the court should do, and the simplest way to resolve
13 it without duetting involved, in the interests of satisfying
14 all the parties, including the government and the various
15 defendants, is to simply strike it. Your Honor, I am only
16 speaking on behalf of Mr. Odeh, your Honor.
17 THE COURT: I understand, but while there is great
18 persuasiveness to the position that you take, and I take it
19 the government would prefer also, there are lots of arguments
20 that we have yet to address with respect to what the
21 government may or may not be able to argue in its summation
22 based on other evidence and other statements, and all we are
23 really doing now is telling the jury that certain testimony is
24 stricken. Anybody object to that?
25 So what I would say, the testimony you heard last
5068
1 Monday from Special Agent Yacone as to the battles which took
2 place in Mogadishu on October 3 and October 6, 1993, is
3 stricken and you are to disregard it. End of story. Let's
4 bring in the jury.
5 MR. RUHNKE: One additional matter, your Honor.
6 Would you please have your clerk collect the notes and
7 photograph of Agent Yacone that was provided to the jurors so
8 that they don't have photograph and notes of the testimony.
9 THE COURT: We are not going to collect them. I will
10 say, and if you have taken notes you should strike this
11 testimony.
12 MR. RUHNKE: Thank you, your Honor.
13 THE COURT: Mr. Schmidt, you should understand that
14 after you have introduced your documents and after you have
15 had your handwriting expert, I will ask you in open court
16 whether there is anything further on behalf of El Hage and you
17 will then have to respond to that. Do you understand that?
18 MR. SCHMIDT: I understand. That is why I am raising
19 this now. There are certain issues involving some evidence
20 and some stipulations that we need to resolve now before we
21 bring the jury in so I can do that.
22 THE COURT: Before we bring the jury in?
23 MR. SCHMIDT: Before we bring the jury in.
24 THE COURT: I thought the next order of business was
25 your handwriting expert.
5069
1 MR. SCHMIDT: Yes, but --
2 THE COURT: Then we will recess after that.
3 MR. SCHMIDT: Thank you.
4 THE COURT: Procrastination can't be the order of the
5 day.
6 I have a lot of notes from the jurors. I have
7 requests with respect to notification of an employer that they
8 will be sitting on Fridays. A question whether they will be
9 sitting May 25, Memorial Day weekend. Somebody has a medical
10 appointment on May 11, an appointment the juror has had for
11 three months. Or should I try to reschedule it. I think we
12 will encourage rescheduling.
13 (Jury present)
14 THE COURT: Good morning, good morning.
15 JURORS: Good morning, your Honor.
16 THE COURT: I have a note somewhere that somebody had
17 a problem on May 2. Is that still a problem for anybody? May
18 2? I think that was something long since resolved.
19 Ladies and gentlemen, the testimony you heard last
20 Monday from Special Agent Yacone as to battles which took
21 place in Mogadishu on October 3 and October 6, 1993, is
22 stricken, and you are instructed to disregard it. Please, if
23 you have been taking notes, please indicate in your notes that
24 that testimony has been stricken.
25 Mr. Schmidt, the defendant El Hage may call its next
5070
1 witness.
2 MR. SCHMIDT: Your Honor, we call Paul Osborn to the
3 stand.
4 PAUL A. OSBORN,
5 called as a witness by the defense,
6 having been duly sworn, testified as follows:
7 DIRECT EXAMINATION
8 BY MR. SCHMIDT:
9 Q. Mr. Osborn, could you move the microphone in front of you
10 and lift it up so you don't have to bend so much.
11 Mr. Osborn, can you tell us how you are employed.
12 A. I am self-employed.
13 Q. As what?
14 A. I am a forensic document examiner, more commonly termed a
15 handwriting and typewriting identification expert.
16 Q. Could you tell us what that entails.
17 A. It entails the investigation and identification of most
18 questioned document problems. This includes the
19 identification of signatures, handwriting, hand printing, the
20 age of documents, restorations of obliterations, decipherment
21 of the erasures, and other such questions.
22 Q. Decipherment, D-E-C-I-P-H-E-R-M-E-N-T?
23 A. Correct.
24 Q. What type of training and background do you have for that?
25 A. I received most of my training from Albert Diaz, who was
5071
1 my father, and through studies of books by both him and Albert
2 S. Osborn, who was my grandfather in a pioneering field.
3 Besides the four years of training that I received from Albert
4 Diaz, I also underwent four years of study, taking written and
5 oral tests sponsored by the American Society of Questioned
6 Document Examiners. This period of training was a requirement
7 before being allowed to become a regular member in that
8 society. I have continued my training throughout the years
9 for more than 40 years now by annual society conventions in
10 various parts of the country of not only the American Society
11 of Questioned Document Examiners but also the American Academy
12 of Forensic Sciences. I am a regular active member in the
13 American Society of Questioned Document Examiners. I was a
14 past president from 1990 to 1992. And I am a fellow in the
15 American Academy of Forensic Sciences.
16 In 1978, a certification board was set up by various
17 groups throughout the country called the American Board of
18 Forensic Document Examiners Incorporated. It was actually set
19 up for courts and for attorneys as guidelines for whom to turn
20 to in our field of identification. I became a member of that
21 certification board, which requires renewal certification
22 every five years, and have been certified since its inception
23 in 1978.
24 Q. Have you been qualified to testify in courts in this state
25 and in federal courts in other states?
5072
1 A. Yes, sir.
2 Q. Can you tell us some of the courts that you have been
3 qualified as an expert.
4 A. I have been qualified on more than 450 occasions, mostly
5 in the states of New York, New Jersey, and Pennsylvania and
6 Connecticut. I have been qualified in 18 other states as well
7 as in Canada, Puerto Rico, the Virgin Islands, and one time in
8 the Panama Canal zone. I have been qualified in U.S.
9 Attorney's -- U.S. Southern District Court on at least 10 or
10 15 occasions over the years.
11 Q. Have you done work for both plaintiffs and defendants in
12 civil cases and for law enforcement and for defendants in
13 criminal cases?
14 A. Yes. For a long time I did this work for the state police
15 of New Jersey, and as a result appeared frequently for
16 prosecutors' offices in New Jersey. For the past 30 years I
17 have been doing work for different district attorneys' offices
18 and U.S. Attorney's Offices in the State of New York. Most of
19 the work that I have done has been for the prosecution, but I
20 do work for defendants on occasion when my services are
21 requested, and whoever comes to my office first gets my
22 services.
23 Q. Were you retained by the defendant Wadih El Hage to --
24 A. Excuse me.
25 Q. Were you retained by the defendant Wadih El Hage through
5073
1 my office to review certain notepads and to give your
2 professional opinion?
3 A. I was retained through you to conduct certain examinations
4 of documents relative to this matter.
5 MR. SCHMIDT: Your Honor, at this time I offer
6 Mr. Osborn as an expert in forensic document examination.
7 MR. FITZGERALD: No objection.
8 THE COURT: Very well.
9 (Continued on next page)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5074
1 BY MR. SCHMIDT:
2 Q. Mr. Osborn, I'm going to bring up to you three notepads
3 marked V 1, V 2, V 3, copies of those notepads, and a copy of
4 a document marked V 5 that are photographic representations of
5 the same notepads.
6 MR. SCHMIDT: If I may, your Honor?
7 THE COURT: Yes.
8 BY MR. SCHMIDT:
9 Q. Mr. Osborn, I have given you both original documents,
10 copies of documents, and a document that has additional
11 markings on it. Do you recognize those documents?
12 A. Yes, sir. I recognize the photocopies.
13 Q. Do you recognize what the photo -- withdrawn.
14 Where do you recognize the photocopies.
15 A. They were submitted to me by your office on April 10th,
16 this year.
17 Q. And did you examine those photocopies and the photocopies
18 of other documents?
19 A. Yes, sir.
20 Q. I'm going to show you what has been marked as Government
21 Exhibit 636D, which is an original, not a copy, of another
22 notepad.
23 MR. SCHMIDT: If I may, your Honor.
24 Q. Did you receive other copies of notepads as well as the
25 ones marked V 1, V 2 and V 3 for comparison purposes?
5075
1 A. I'm sorry, you have lost me.
2 Q. Other than the documents marked V 1, V 2 and V 3, that's
3 the orange notepads?
4 A. Yes, sir.
5 Q. Did you receive copies of other pads to compare the
6 handwriting between those and the other set?
7 A. Actually, I received a total of 146 reproductions of
8 sheets from notepads. They were not marked other than given
9 to me as bearing known exemplars of the individual.
10 Q. Looking at the blue pad in front of you -- the blue one,
11 the small blue one in front of you, Mr. Osborn?
12 A. This book?
13 Q. Yes. Looking at that one, if you could just open it up
14 and take a look at some of the pages.
15 A. I have.
16 Q. Are those similar to the ones that you reviewed as for
17 comparison purposes of the copies that have been marked V 1, 2
18 and 3?
19 A. If the copies that I received included the pages in this,
20 then, yes, I did examine this.
21 Q. Can you tell us what was the manner of your examination of
22 the documents that were sent to you?
23 A. The purpose of my examination of these documents was to
24 determine whether or not reproductions, 31 reproductions of
25 pages from a notepad could be identified as having been done
5076
1 by the writer of the entries in all of the other notepads,
2 copies of which had been received.
3 Q. Were you able to do that?
4 A. Yes, sir.
5 Q. How were you able to do that?
6 A. I first examined and compared with one another all of the
7 entries in the known pages of notepad writings, the purpose
8 being to determine whether or not they demonstrated various
9 handwriting identities that were distinctive and were
10 repetitious.
11 An identification of handwriting is brought about by
12 a combination of general and individual developed habits of a
13 particular writer, and before going through each one of the
14 questioned items I had to first determine what that person's
15 writing habits were and what the normal slight variations of
16 writing habits were by that person.
17 No one writes exactly the same way each time like a
18 rubber stamp impression. Everybody has some normal variation
19 and, of course, some people have a little bit more variation
20 than others.
21 In this particular case, it was determined that the
22 writer had average to below average writing ability; that the
23 general and individual character formations in many instances
24 were quite distinctive and they were repetitious.
25 I then examined and compared these known writing
5077
1 identities in all of the notepads, or copies of notepads, with
2 the reproductions of pages from a questioned notepad, being 31
3 pages in total. I purposefully searched for any identities
4 that were consistent with the known writings and searched for
5 any identities in the questioned pages that were unexplainably
6 different from the developed habits seen throughout the known
7 writings.
8 It was my conclusion, my qualified conclusion,
9 following these examinations that the preponderance of writing
10 in the 31 questioned sheets was done by the same individual as
11 the writer of all of the other known specimens that were
12 submitted to me.
13 There were certain exceptions. In one instance, the
14 seventh reproduction marked Q7, I felt that the evidence
15 clearly demonstrated that eight lines of entries, handwritten
16 entries, were done by a different individual.
17 Q. Could you just --
18 A. There were three other pages which are numbered pages 17,
19 18 and 20 which I felt the evidence did not allow any
20 identification.
21 I have indicated on each one of the pages that were
22 attached to my brief report initials that are NI, which stand
23 for "no identification," initials HPG, which stands for
24 "highly probable as genuine," and initials PG, which stands
25 for "probably genuine."
5078
1 The reason for these qualifications is twofold.
2 Number one, I never examine the original documents, but
3 copies, and it is important to examine original documents
4 whenever possible. Secondly, some of these pages have only a
5 few lines of writing on them, limiting the amount of
6 comparison with a known material to make an identification.
7 So that in some instances where there was a great deal of
8 writing, the problem of identification was relatively easy,
9 and in others it was more difficult, and in some I felt no
10 identification should be made.
11 All of my conclusions are qualified because of the
12 fact that I did not examine the original documents, but did
13 examine what I consider good reproductions.
14 Q. Is it, then -- did you reach a conclusion as to the --
15 withdrawn.
16 Did you reach a conclusion as to the identity of the
17 exhibits that have been marked as V 1, 2 and 3 compared to the
18 other documents that were submitted to you with the exception
19 of the few pages that you indicated?
20 A. Actually, there were more than two pages, but, yes.
21 Q. I said a few, the few that you mentioned.
22 A. Few, yes.
23 Q. What was that conclusion?
24 A. That they were done by the same individual. It is highly
25 probable or probable that they were done by the same
5079
1 individual.
2 Q. Just so we can show the jury an example of a few of the
3 pages, if we can show on the screen --
4 MR. SCHMIDT: Your Honor, at this time I move V 1, V
5 2 and V 3 into evidence.
6 MR. FITZGERALD: No objection.
7 THE COURT: Received.
8 (Defendant El Hage Exhibits V1, V2 and V3 received in
9 evidence)
10 MR. SCHMIDT: If we can show, for example, V 1-3 on
11 the screen, please, and publish those to the jury. The third
12 page of that document, please.
13 Make that a little darker. Thank you.
14 Now, can we just show on V 2, can we show page V
15 2-17 -- excuse me, V 2-16 and 17, for example. Can we show
16 the next page. Now we show V 20 and V 22.
17 Can we go to V 3 now, and please show V 3-12, V 3-17.
18 And I have no further questions for this witness.
19 THE COURT: Mr. Fitzpatrick.
20 MR. FITZGERALD: Yes, Judge.
21 THE COURT: Mr. Fitzgerald.
22 MR. RICCO: Your Honor, I had a few questions of the
23 witness.
24 THE COURT: Yes.
25 CROSS-EXAMINATION
5080
1 BY MR. RICCO:
2 Q. Good morning, sir.
3 A. Good morning.
4 Q. You've been examining documents for over 40 years?
5 A. Yes, sir.
6 Q. During that time period you have examined documents at the
7 request of law enforcement; isn't that correct?
8 A. Yes, sir.
9 Q. And I think that you've told us that you have been
10 qualified as an expert in many courts, including this
11 courthouse?
12 A. Yes, sir.
13 Q. I think that you told us that the field of forensic
14 handwriting includes handwriting identification, right?
15 A. Yes.
16 Q. It also includes the age of documents?
17 A. When possible, yes.
18 Q. Can you explain to the jury what does that mean,
19 determining the age of a document?
20 A. Well, frequently it is important to determine whether or
21 not a document, let's say dated in 1980, was actually written,
22 prepared in 1980 or whether it was prepared two years ago, and
23 there are different types of evidence that can demonstrate
24 whether or not a document is of its age or it was made up at
25 some later time.
5081
1 Q. How were you able to determine that, just generally?
2 A. Oh, there's a variety of things to look for. Number one,
3 in any handwriting or handprinting itself that might be on
4 these documents, there may be character formations that a
5 person used 20 years ago but doesn't use today. The writing
6 may demonstrate that the person doesn't have the physical
7 ability to write as well today as he did 20 years ago.
8 The paper is also important because many papers
9 contain watermarks. Many watermarks contain codes in the
10 watermarks demonstrating the year that the paper was
11 manufactured. Now, when you get a, let's say a last will and
12 testament that's dated in 1980 but the water mark shows that
13 the paper was made in 1985, then there's something wrong with
14 that.
15 Q. Okay.
16 A. Sometimes things can be differentiated and some ink
17 chemists, which I am not, can determine the age of particular
18 inks, especially inks that have certain ingredients in them
19 where it is known what ingredients they are and when they were
20 added to these inks.
21 Q. Now, I don't mean to cut you off, but I think what you are
22 telling us is that scientists, like yourself, have various
23 means of being able to determine the age of a document?
24 A. Sometimes. Sometimes there's no evidence whatsoever to
25 prove it.
5082
1 Q. Okay. But certainly the ability is there to try?
2 A. Yes, sir.
3 Q. Now, in your 40 years of experience, have you ever had the
4 occasion to deal with the FBI?
5 A. Yes.
6 Q. And can you tell the jury whether or not the FBI has a
7 handwriting identification unit?
8 A. Yes, they do.
9 Q. In fact, the FBI has one of the most state-of-the-art
10 handwriting laboratories in the world; isn't that correct?
11 A. Well, it's certainly a very complete laboratory. I do
12 believe that they have -- well, the last time I heard, they
13 had 21 different forensic document examiners as well as
14 another fairly large group of experts who worked solely with
15 the identification of checks, check forgeries.
16 Q. Okay.
17 THE COURT: Anything further, Mr. Ricco?
18 MR. RICCO: Yes, your Honor. Yes.
19 THE COURT: You may proceed.
20 BY MR. RICCO:
21 Q. With respect to handwriting identification, I think that
22 what you told us is that what you look for is something called
23 writing habits that the person whose writing that would use
24 and that helps you detect the identity of the person's
25 writing?
5083
1 THE COURT: I'll see counsel and the reporter in the
2 robing room.
3 (Continued on next page)
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5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5084
1 (In the robing room)
2 MR. RICCO: Judge, I have two questions and I'll sit
3 down.
4 THE COURT: What is your question?
5 MR. RICCO: I'm just going to ask him whether or not
6 documents are capable of being -- if he has a number of
7 documents, does that help him with his identification. He
8 probably will say "yes" and that will be it.
9 (Continued on next page)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5085
1 (In open court)
2 MR. RICCO: Your Honor, I just have one or two more
3 questions.
4 THE COURT: Yes.
5 BY MR. RICCO:
6 Q. Oftentimes a document, a book, will have entries from
7 multiple individuals; isn't that correct?
8 A. What's your question?
9 Q. I'm sorry. Oftentimes when you are examining a document,
10 it will have entries from multiple individuals; isn't that
11 correct?
12 A. From multiple?
13 Q. Writers.
14 THE COURT: More than one person will --
15 A. In this instance, yes.
16 Q. And a part of your job will be to decipher whether or not
17 the document has been written by one person or has entries
18 from many different people; isn't that correct?
19 A. In this problem, yes.
20 Q. And that's part of the science that you are engaged in as
21 a handwriting expert; isn't that correct?
22 A. Yes, sir.
23 Q. Now, my final question is this: Is handwriting analysis
24 and identification, is it something that's limited to the
25 Western world, or are there handwriting experts who identify,
5086
1 for example, Arabic handwriting or handwriting in other
2 languages?
3 A. There are.
4 MR. RICCO: I have no further questions. Thank you
5 very much, your Honor.
6 MR. FITZGERALD: Thank you, Judge.
7 THE COURT: Mr. Fitzgerald.
8 CROSS-EXAMINATION
9 BY MR. FITZGERALD:
10 Q. Good morning, Mr. Osborn.
11 A. Good morning, sir.
12 Q. First of all, is it fair to say that you have analyzed
13 other documents than the ones you have testified about here
14 this morning?
15 A. That's correct.
16 Q. With regard to this case?
17 A. Yes.
18 Q. And with regard to the known exemplar or known examples of
19 Mr. El Hage's writing, is that the blue book in front of you
20 to your left that you worked from copies of?
21 A. I don't know because I was given no originals. I was only
22 given photocopies, and if the photocopies include these pages,
23 yes, then --
24 Q. Just looking at that book, does that appear to be the
25 original for the copy?
5087
1 A. It seems to be similar, yes.
2 Q. And is there an exhibit sticker on that book? Is there a
3 yellow sticker on that book?
4 A. It's in a glassine case which reads 636D.
5 Q. Okay. 636D. Thank you.
6 Now, one of the things you mentioned you compare is
7 you look for identities between known writing and questioned
8 writing, correct?
9 A. Correct.
10 Q. So that if a person writes the word the same way, and if
11 the word is written the same way in the two different
12 documents, that makes it appear that the same person wrote
13 both, correct?
14 A. Well, that's one of the things that's done, yes.
15 Q. And sometimes you can compare two words and you can
16 determine from that that it looks like the same person did not
17 write both because the words are written differently, correct?
18 A. If there are unexplainable differences present between two
19 writings, then no identification should be made.
20 Q. Okay. Let me just do a simple example. I'm going to hand
21 you a blank pad we've marked as Government Exhibit 445. A
22 blank yellow pad. I'm just going to ask you to write three
23 things in your own handwriting on that pad.
24 The first thing is the word "pass," P-A-S-S, and if I
25 could write it in script, lower case, no capital letters.
5088
1 A. You want me to write the word "pass" in script, lower case
2 letters, three times?
3 Q. No, once.
4 A. Once.
5 Q. Yes.
6 A. My own natural writing?
7 Q. Yes.
8 A. Of course, you realize I'm a little nervous up here and it
9 may not be too natural.
10 Q. Do your best.
11 A. Yes, sir.
12 Q. And if you could skip a line and write the word "business"
13 in script, lower case, in your own handwriting. And then if
14 you could skip a line and draw what is called an ampersand,
15 A-M-P-E-R-S-A-N-D, which is a shorthand for the word "and,"
16 just write an ampersand.
17 We'll call that Government Exhibit 445. If I could
18 take that back from you for a moment.
19 You wrote the word "ampersand." If you could just
20 draw an ampersand.
21 A. Oh, you mean you want me to make an ampersand. I wrote
22 out the word "ampersand."
23 Q. Okay. Now if I could take that back for a moment. I'm
24 going to ask Mr. Francisco to place this on the Elmo, and from
25 Government Exhibit 636D I would like to place first a
5089
1 particular page next to it for comparison purposes.
2 If we could focus on the word "pass," which on 636D,
3 which is the small notebook to the right, the second line
4 down, where it appears to say "let him pass by." If you could
5 compare the word how "pass" is written on the second line --
6 in fact, if we could move it right over next to the word
7 "pass" with your handwriting, and tell us by examining the way
8 the word pass is written if you can tell by that that --
9 they're obviously two different authors, but how you come to
10 that conclusion.
11 A. I don't understand your question.
12 Q. The word -- where you wrote "pass"?
13 A. Yes.
14 Q. The way you wrote "pass," how does it compare with the
15 word "pass" written on the second line on the right?
16 A. The word "pass"?
17 Q. Yes.
18 A. It's quite different.
19 Q. Okay, and can you -- what is the most notable difference?
20 A. What?
21 Q. What is the most notable difference in the way the word
22 "pass" is written on the right versus on the left?
23 A. Formations of the characters.
24 Q. Now if we could turn to the last page -- Mr. Francisco
25 knows the page -- and we look at the word "business" and then
5090
1 ampersand. I believe the word "business" is crossed out, but
2 visible.
3 If you look on the right side, third line from the
4 bottom, the third line containing writing, do you see the word
5 "business" in that crossed out line?
6 A. It's very blurry, but I see it.
7 Q. And how does that compare with the way you write the word
8 "business"?
9 A. It's quite different.
10 Q. Okay. And if you look at the first -- underneath the word
11 71202219, the second line, at the end of the sentence there
12 appears to be an ampersand, do you see that?
13 A. No, it's -- yes, I see it.
14 Q. And how does that ampersand compare with the ampersand you
15 wrote?
16 A. It's quite different.
17 Q. And the one on the right was given to you as the known
18 quantity of Mr. El Hage's writing, that's 636D?
19 A. I believe so. A reproduction of it was.
20 Q. Okay. Now let me approach you with what has been marked
21 as Government Exhibit 611. I'll approach you with 611 and
22 611C, and I'll ask you if 611C appears to be a photocopy
23 before testing of what is Government Exhibit 611.
24 A. It appears to be at a quick glance, yes.
25 MR. FITZGERALD: And now, your Honor, I would offer
5091
1 611C just as photocopy of 611 before testing?
2 THE COURT: Yes, received.
3 (Government Exhibit 611C received in evidence)
4 BY MR. FITZGERALD:
5 Q. Now if I could take 611C and with the notebook, and I
6 would like to display on the screen a comparison of the entry
7 of the word "pass," P-A-S-S, from the blue notebook,
8 Government Exhibit 636D, with a comparison of the word "pass"
9 in 611C. And we'll focus on the word "pass" the third line
10 above the word "sincerely" on the bottom. We're going to
11 magnify both, and I ask you to compare the word "pass" on the
12 item on the left and the item on the right and whether or not
13 they compare.
14 A. They're very similar at a quick glance.
15 Q. I sorry?
16 A. At a quick glance, looking at them, they're very similar,
17 those two particular words.
18 Q. Okay. Would they appear to be written by the same author?
19 A. I wouldn't say.
20 Q. But they appear to be very similar?
21 A. Yes.
22 Q. Now if we could also display -- let me approach you with
23 Government Exhibit 437 -- 437A, pardon me, and we'll display
24 on the screen on the left 437A and on the right we'll go to
25 that other page of Government Exhibit 636D and we'll focus on
5092
1 the word -- first focus on the word "business" -- I'm sorry,
2 the ampersand, and on the left focus on the ampersand. And
3 how do they compare, sir?
4 A. They're basically quite similar.
5 Q. Now, sir, you have in front of you Government Exhibit --
6 Defense Exhibit V 1, V 2 and V 3, correct, the exhibits that
7 were received this morning?
8 A. Yes, sir.
9 Q. And those are the ones that, with exceptions you have
10 noted, you determined to be written by the same author as the
11 other El Hage notebook, correct?
12 A. Yes, sir.
13 Q. I would like to direct your attention to particular pages
14 if you have in front of you page V 3-13, the 13th page of
15 Exhibit V 3.
16 Is that a page that you determined to be highly
17 probably written by El Hage?
18 A. The one that I have marked Q13, yes. I'm looking at the
19 wrong page.
20 Q. Why don't you take your time and make sure we're looking
21 at the right page.
22 A. You said it was marked Q13?
23 Q. No, I'm sorry, V 3. The 13th page of V 3. I don't think
24 there's a Q noted on it. It's one of the documents you put in
25 this morning, was received this morning.
5093
1 Let me take a look at what you have.
2 A. I don't know which page it is.
3 Q. And hopefully the page I'm showing you corresponds to the
4 page on the screen to your left.
5 A. Yes, it does.
6 Q. Is that one of the pages that you identified as being
7 highly probably written by Wadih El Hage?
8 A. No.
9 Q. No. Okay.
10 A. This was given to me as an exemplar, as a known specimen
11 of one individual.
12 Q. Okay. So, for your purposes of your analysis, you assumed
13 that this page was written by Wadih El Hage?
14 A. Well, it was given to me as a known specimen. I did not
15 take for granted that every single entry on every page of 146
16 pages was necessarily done by one individual, but that the
17 preponderance of these pages contained the writing of the
18 known writing of one person, and I used those specimens for
19 comparison with the 31 pages that I previously referred to.
20 Q. Okay. So at the bottom of that page, those entries,
21 there's -- you see an "Albert," you will see something with a
22 T-A-F-A and then something that says Ihab, I-H-A-B, Ali?
23 A. Yes, I see it.
24 Q. Those were what you understood to be Wadih El Hage's
25 handwriting, correct?
5094
1 A. Those were given to me as specimens, yes.
2 Q. And now I'll have one last question. If you could look at
3 the page you marked Q14?
4 A. Yes, sir.
5 Q. Is that a page that you determined to be highly probably
6 written by Wadih El Hage?
7 A. Yes, sir.
8 Q. I ask you to look in the middle of the page. There's an
9 entry S-I-T-A-H. Do you see that in the left?
10 A. Yes, I do.
11 Q. What do you see to the right of that?
12 A. I see figures.
13 Q. I ask you to compare those figures with Government Exhibit
14 598 and see whether the numbers match up. Just read out loud
15 the numbers next to "Sitah."
16 A. Yes, sir.
17 Q. Could you just read them into the record, what the numbers
18 are in the book?
19 A. They are the same numbers.
20 Q. 873682505331?
21 A. Yes, sir.
22 MR. FITZGERALD: Thank you. Nothing further.
23 THE COURT: Anything further of this witness?
24 MR. SCHMIDT: No, your Honor.
25 THE COURT: Thank you, Mr. Osborn. You may step
5095
1 down.
2 THE WITNESS: Yes, sir.
3 (Witness excused)
4 THE COURT: Mr. Schmidt?
5 MR. SCHMIDT: We need to deal with some issues, your
6 Honor.
7 THE COURT: We'll take our midmorning recess at this
8 point.
9 (Jury not present)
10 THE COURT: Mr. Schmidt.
11 MR. SCHMIDT: Your Honor, there are two items or set
12 of items that I wish to offer into evidence and, obviously,
13 based on your Honor's prior rulings concerning authenticity, I
14 wanted to raise before I offer them and state the basis of it.
15 One is a set of documents that are the non-plain
16 paper fax and two that may be plain paper faxes or copies
17 thereof of documents relating to ZTS and Cycim dealings in
18 1995 and I believe 1996. Each one of these documents have a
19 header from a fax machine that authenticates the date and time
20 of the transmission of those documents.
21 THE COURT: What is the subject matter of the
22 documents?
23 MR. SCHMIDT: These are the business dealings
24 concerning the tractors for Sudan that Mr. El Hage was
25 negotiating in 1995 and 1996, and because of the facsimile
5096
1 notations on top, it is my belief that notwithstanding your
2 Honor's order, that these documents are sufficiently
3 authenticated to go to the jury in addition to all the other
4 documents that came in related to the subject and other
5 writings related to them.
6 Before I obviously offered them, I wanted your
7 Honor's approval because I did not want to offer them based on
8 your Honor's last week ruling.
9 MR. FITZGERALD: Your Honor, I'm objecting to the
10 authentication since no one is authenticating them, and the
11 reason I told Mr. Schmidt I'm objecting to that is that these
12 materials were obtained last fall when there was a discovery
13 order to turn over reverse discovery and we got not a single
14 page and then we received documents maybe three weeks ago from
15 the defense, and not knowing that they were not going to call
16 a witness to authenticate them, we were left with a stack of
17 documents we didn't know where it came from or what, if
18 anything, to follow up on.
19 THE COURT: Are these documents being offered for the
20 sole point of showing that Mr. El Hage was engaged, to the
21 extent indicated by the documents, in commercial business
22 affairs?
23 MR. SCHMIDT: Well, I think there are a sufficient
24 number of documents that relate to that. The importance of
25 these show the time frame of the communications, that is, 1995
5097
1 and 1996. So, therefore, Mr. El Hage's contacts with people
2 related to Bin Laden in 1995 and 1996 can be shown to be
3 related also to the ongoing business activities.
4 In the Grand Jury the government had questioned him a
5 number of times about the dates and times of his contacts. We
6 are just trying to set forth --
7 THE COURT: They are being offered -- and please
8 let's be very specific here because I don't want to be faced
9 with a circumstance on which documents are received on one
10 theory or for one purpose and then discover during closing
11 argument some other argument is being made.
12 Are these documents being offered for the sole
13 purpose of showing that on the dates indicated Mr. El Hage was
14 involved in commercial transactions reflected in the
15 documents?
16 MR. SCHMIDT: Yes, on behalf of Bin Laden's
17 businesses.
18 THE COURT: These were faxed by -- is this a private
19 fax or is this taken from a commercial fax?
20 MR. SCHMIDT: The headings from these faxes indicate
21 ZTS Trading's telephone number on the top. They indicate also
22 Mr. El Hage's telephone number. It obviously says "from" and
23 the phone number is Mr. El Hage's phone number that's in
24 evidence. So these are all documents that either went one
25 direction or the other that were obtained through -- these are
5098
1 not all documents from ZTS. These are also documents the
2 government gave in discovery as well but are not putting
3 through their discovery.
4 THE COURT: Is that the totality of what you wish to
5 introduce?
6 MR. SCHMIDT: On those ones, yes.
7 THE COURT: Let me hear what else you want to
8 introduce.
9 MR. SCHMIDT: The other, your Honor, is that upon
10 further review of the Grand Jury testimony, the government
11 questioned Mr. El Hage in the Grand Jury in September 1997
12 concerning approximately $7,000 given by Bin Laden to him
13 related to a project that Mr. El Hage described as an Al Eid
14 Feast in Mombasa, and the government spent approximately four
15 pages questioning him about that as if it was a ruse and not a
16 reality, receiving that money --
17 THE COURT: Is that one of the perjury counts in the
18 indictment?
19 MR. SCHMIDT: I do not --
20 MR. FITZGERALD: No.
21 MR. SCHMIDT: -- believe it's a perjury count, but
22 obviously the government is relying on the totality of the
23 Grand Jury testimony to show that Mr. El Hage lied in general.
24 That's the reason why your Honor has let in so much Grand Jury
25 testimony in the first place.
5099
1 I wanted to offer a few photographs of indeed the
2 slaughtering of the goats. The photograph reflects a date of
3 April 28, 1996.
4 THE COURT: What is it you are offering now?
5 MR. SCHMIDT: Photographs.
6 THE COURT: You are offering photographs of goats?
7 MR. SCHMIDT: It's basically the slaughter that leads
8 up to the feast of the Al Eid that the government questioned
9 Mr. El Hage in the Grand Jury. If your Honor recalls,
10 during --
11 THE COURT: May I see photographs, please?
12 MR. SCHMIDT: Yes.
13 As your Honor recalls, during some of our discussions
14 about whether the government contests that he's doing NGO
15 activity or business activities, they said that he didn't, and
16 it seemed to be part of your ruling to limit the amount of
17 documents that came in. In the Grand Jury the government made
18 it very clear that they did dispute that he was doing some of
19 this activity, and this reflects directly on that activity.
20 What I will also note, your Honor, are the dates of
21 those photographs, that obviously it's clear from the record
22 that Mr. El Hage has been in the United States since September
23 1997, that he testified in the Grand Jury about this activity
24 the following day arriving in the United States.
25 THE COURT: Now, I want to be very clear here because
5100
1 I want to make a ruling and then I want to resolve these
2 matters. You have one set of documents designed to show that
3 between 1995 and 1996, Mr. El Hage was engaged in a commercial
4 transaction involving tractors. Now you are offering these
5 photographs. Is that what is being offered?
6 MR. SCHMIDT: Yes.
7 THE COURT: And these photographs are to show that
8 animals were slaughtered behind a slate which says "Help
9 Africa" and has a date 28-4-96, and that's being offered to
10 show that Help Africa did engage in slaughtering of goats?
11 MR. SCHMIDT: Engaged in the project as testified to
12 by Mr. El Hage.
13 THE COURT: But what this photograph shows is that
14 goats were being slaughtered in front of a blackboard which
15 says "Help Africa" and has a date.
16 MR. SCHMIDT: Yes.
17 THE COURT: Okay.
18 MR. SCHMIDT: And the evidence that it corroborates
19 his testimony in the Grand Jury.
20 THE COURT: What else is it that you wish?
21 MR. SCHMIDT: Now Mr. Dratel is going to deal with
22 the other issues. I understand your Honor's rulings before.
23 We're going to prepare a document with the exhibits that we
24 would have offered but did not offer because of your Honor's
25 ruling on authenticity, and we'll have that in short order.
5101
1 Thank you.
2 THE COURT: Mr. Dratel.
3 MR. DRATEL: Yes, your Honor, this is about
4 stipulations. There are two stipulations about which we're at
5 odds with the government. One is a question of matters that
6 the government wishes to add to the stipulation. In other
7 words, they would condition their stipulation on certain
8 information being -- it's about the cross-examination of
9 Mr. Al-Fadhl and his denial of certain -- that he made certain
10 statements to U.S. officials during his debriefings.
11 THE COURT: Yes.
12 MR. DRATEL: There are four in a stipulation that are
13 in the statements that we would call the persons who debriefed
14 him to establish those prior inconsistent statements, that he
15 in fact did say something and he denied saying it.
16 THE COURT: Yes.
17 MR. DRATEL: The government wants to put in --
18 there's one in particular that we are in disagreement on. The
19 government wants to put in other information that Mr. Al-Fadhl
20 provided in the course of his debriefings that we believe is
21 not a prior consistent statement that can be admissible for
22 two reasons, one of which is it's not -- the testimony of an
23 agent in that regard would be with respect to, did
24 Mr. Al-Fadhl say X, and that would be it. It's not a question
25 of rehabilitation through some other statement, and Rule 801
5102
1 on prior consistent statements requires that the defendant
2 have an opportunity to cross-examine the declarant -- I mean,
3 the witness. In this case, the statements that the government
4 wants to put in were never the subject of either his direct or
5 his cross-examination. So we don't have that opportunity to
6 cross-examine. It doesn't fall under the rule for prior
7 consistent statements.
8 In addition, it's also at a time that we believe that
9 he already had a motive to fabricate or exaggerate at that
10 time. So it wouldn't fall under 801.
11 THE COURT: So what you want to do is you want to
12 introduce a stipulation that Al-Fadhl said X and the
13 government is saying it will not stipulate to that unless it
14 can also show that Al-Fadhl also said Y and Z.
15 MR. DRATEL: Correct.
16 THE COURT: Is that it?
17 Okay. All right. I'm trying to get the totality of
18 issues.
19 MR. DRATEL: Sure. And by the way, also, just on
20 that stipulation, one of the reasons that it is a stipulation
21 is because of some CIPA issues.
22 THE COURT: Okay.
23 MR. DRATEL: And with respect to the other one is the
24 Foreign Intelligence Surveillance Act, electronic surveillance
25 conducted against Mr. El Hage August and September of 1998.
5103
1 THE COURT: Yes. This is a separate issue.
2 MR. DRATEL: This is a separate stipulation. If your
3 Honor wants me to read your Honor the stuff on the Al-Fadhl --
4 THE COURT: Just tell me what the issue is.
5 MR. DRATEL: The issue on the FISA stip is that we
6 wanted a stipulation as to just the date parameters and the
7 phone numbers and places that were the subject of the
8 electronic surveillance in August and September of 1998
9 following the bombing, about a month between the time of the
10 bombing, essentially, and Mr. El Hage's arrest on September
11 16.
12 The government disputes the relevance of that. The
13 relevance is that -- and these are the tapes that have been
14 destroyed so they're not available in terms of producing
15 them -- is that there's no contact between Mr. El Hage and
16 anyone in the conspiracy or anyone remotely related to the
17 conspiracy and there is no discussion of anything
18 incriminating in that conversation with respect to anything
19 else.
20 So our argument would just be that these wiretaps
21 existed during that time period as further sort of coverage of
22 Mr. El Hage's activity during that period.
23 THE COURT: Is that it?
24 MR. DRATEL: That's it. Those are the issues.
25 THE COURT: There are the four issues. The first
5104
1 issue is a set of documents which El Hage wishes to offer as
2 evidence that in 1995 and 1996 he was engaged in business
3 dealings with respect to tractors, and the government's
4 objection is authenticity?
5 MR. FITZGERALD: Yes, we're not waiving the
6 authenticity because it was a discovery violation. Basically,
7 your Honor, we kept pounding the table to say can we have
8 discovery, we didn't get it, and then finally we get this
9 dumped on us.
10 THE COURT: That's the only objection?
11 MR. FITZGERALD: Yes.
12 THE COURT: If we adjourn the case for three months,
13 three weeks, whatever it is, since these were sent by fax,
14 some authentication would be available, right?
15 MR. FITZGERALD: Yes, sir. My argument would be they
16 waived --
17 THE COURT: But the only reason why they are being
18 offered, and the jury will be told that the only reason they
19 are being offered, is as evidence that in 1995 and 1996 Mr. El
20 Hage was engaged in business dealings with respect to
21 tractors.
22 I'll allow that.
23 With respect to the photographs of Help Africa, first
24 of all, there are two, four, seven photographs, and I take it
25 one would be sufficient.
5105
1 MR. SCHMIDT: Probably two, your Honor. Two
2 different kinds of things.
3 THE COURT: And they are to show that Help Africa in
4 fact was engaged in the slaughtering of goats on those dates?
5 MR. SCHMIDT: Not the slaughtering goats. It was
6 engaged in the festival of that particular date.
7 THE COURT: Maybe some Arab interpreter could come
8 forward, please, and translate for me what is on the sign.
9 The photograph shows what the photograph shows,
10 right?
11 MR. SCHMIDT: Your Honor, it would -- I understand
12 it's not a direct statement of the festival. We join that
13 with Mr. El Hage's Grand Jury testimony and other documents
14 that have been submitted.
15 THE COURT: Could you, sir, please read out loud for
16 me what is written on this blackboard in Arabic?
17 THE INTERPRETER: "Help Africa, the Al Eid," which is
18 the feast, "Al Eid sacrifices. Kenya, Mombasa."
19 MR. SCHMIDT: I adopt the translation, your Honor, as
20 part of the record.
21 THE COURT: All right.
22 THE INTERPRETER: Same thing on this one.
23 THE COURT: And these are going to be offered with no
24 witness on the stand, and just being offered?
25 MR. SCHMIDT: Yes.
5106
1 THE COURT: Okay.
2 MR. FITZGERALD: Your Honor, may I see the
3 photographs?
4 THE COURT: Surely.
5 May I see the stipulation that El Hage proposes?
6 MR. DRATEL: Yes, your Honor. The particular parts
7 in bold are the parts -- I think it's specifically number C --
8 D? D. D, your Honor, is the one that we're in
9 dispute over, in the bold.
10 THE COURT: The bold is what the government proposes
11 be included?
12 MR. FITZGERALD: Yes. Under D, the first sentence,
13 that there were reports for September 24th that Mr. --
14 THE COURT: But what about A? A, I have the first
15 couple of sentences.
16 MR. FITZGERALD: I think we agreed on A in the bold.
17 MR. DRATEL: A we have agreed on.
18 MR. FITZGERALD: The only dispute is in D.
19 THE COURT: Only dispute is in D.
20 MR. FITZGERALD: It breaks down to two sections, one
21 being the first sentence, and in that regard I would note that
22 E sets forth that Mr. Al-Fadhl was interviewed 23 times from
23 September 6 and October 21. Not including the first line of D
24 makes it appear that the first time that Mr. Al-Fadhl talked
25 about Wadih was October 21, and then to the extent that they
5107
1 point out inaccuracies in the description, it appears to
2 lead -- could lead the jury to believe that Al-Fadhl did not
3 describe the correct Wadih.
4 Taking the first sentence, which describes him as a
5 Lebanese with United States citizenship who worked at Taba
6 Investment is fair, and then the latter part where he says the
7 Wadih he knew traveled to the U.S. and Russia on unknown
8 business fairly balances the statement that he was uncertain
9 if Wadih served in Afghanistan. And I think that it's in the
10 interest of completeness, if were going to get a prior
11 statement in, we should put a fair summary of it in.
12 THE COURT: I would allow it on the theory of
13 completeness, and it seems to me the question comes down to
14 whether it's one stipulation or two.
15 MR. DRATEL: Your Honor, if I may, the specific ones
16 that are -- particularly the "Wadih traveled to the United
17 States and Russia on unknown Bin Laden business," he never
18 testified to that.
19 THE COURT: You're talking about D?
20 MR. DRATEL: Yes, that's not an identification, your
21 Honor, that's a fact that he testified to that we had no
22 opportunity to cross-examine Al-Fadhl on. And I don't think
23 there's any basis for that to come in.
24 MR. FITZGERALD: Your Honor, it's the same report.
25 THE COURT: I have ruled that for purposes of
5108
1 completion, if the latter part of D comes in, the government
2 may introduce the first sentence of D.
3 MR. DRATEL: Your Honor, I'm sorry, your Honor,
4 because we're not talking about the first sentence of D now.
5 THE COURT: I thought we were.
6 MR. DRATEL: We're talking about the last sentence of
7 D right now.
8 MR. FITZGERALD: The first sentence was the fact that
9 he mentioned him in September 24 and the last sentence was the
10 one that he traveled to the U.S. and Russia, which
11 counterbalances the fact that he did not know if he was in
12 Afghanistan.
13 THE COURT: Yes.
14 MR. DRATEL: But your Honor --
15 THE COURT: That's my ruling. That's my ruling.
16 MR. DRATEL: Well, what if we withdrew the
17 Afghanistan part, would you withdraw the rest of that
18 sentence?
19 MR. FITZGERALD: I think that's misleading.
20 MR. DRATEL: Then, your Honor, then there's no basis
21 for putting in travel to U.S. and Russia. If we withdrew the
22 part about he served in Afghanistan, Mr. Fitzgerald said the
23 first part of that sentence was to rebut the second part of
24 the sentence.
25 THE COURT: But the whole purpose is to make an
5109
1 argument that Mr. Al-Fadhl was confused as to his
2 identification of El Hage or he had somebody else in mind or
3 he didn't have sufficient opportunity.
4 MR. DRATEL: But, your Honor, if I may make the
5 record, your Honor. We're talking here about travel to the
6 United States and Russia. It has nothing to do with
7 identification. It's a description of conduct. He never
8 testified to that, so you can't put that in through a hearsay
9 statement that's not in response to an inconsistent statement,
10 number one, and number two is that that is not an
11 identification of Mr. El Hage. That is a description of
12 conduct. That has nothing to do with Wadih.
13 THE COURT: What purpose is going to be made of this
14 in closing statement?
15 MR. DRATEL: In closing --
16 THE COURT: Why is this being offered for any purpose
17 other than to say that Al-Fadhl's identification of El Hage is
18 subject to question?
19 MR. DRATEL: But, your Honor, that does not -- I just
20 wanted to -- that doesn't go to that.
21 THE COURT: You have your exception and my ruling is
22 that if you wish to introduce the material not in bold face in
23 the proposed stipulation, which we'll mark as Court Exhibit
24 Roman I of today's date, I will, for purposes of completion,
25 permit the government to introduce the fact that the
5110
1 statements appearing in bold type in D were also included in
2 Mr. Al-Fadhl's report.
3 That leaves the FISA, and the issue is the dates and
4 telephone numbers.
5 MR. FITZGERALD: May I be heard just on the goats
6 issue, which I never got to address?
7 THE COURT: Yes.
8 MR. FITZGERALD: I object to the goat pictures.
9 First of all, if they are so critical, they don't prove who
10 paid for the feast and prove the truth of his testimony, and
11 if they were so critical, why didn't they comply with the
12 discovery obligations? Why are we finding out as the case
13 closes?
14 THE COURT: They are going to be introduced. There's
15 going to be no witness, and if any argument is made based on
16 those photographs which are not supported by those
17 photographs, I will cut it off.
18 MR. SCHMIDT: I have no intention other than doing
19 that, but I want to respond to the government's constant claim
20 about violation of the discovery.
21 THE COURT: No. You may do that, but not now. You
22 may do that, but not now. That has not been the basis of my
23 ruling. If you listen to my rulings, you will see that I'm
24 not basing my rulings on the failure of the defendants to
25 engage in appropriate reciprocal discovery.
5111
1 Now, with respect to the FISA, you want a stipulation
2 which says what? Is there a written stipulation?
3 MR. DRATEL: Yes, your Honor.
4 THE COURT: May I see it, please?
5 (Pause)
6 THE COURT: Do you have a copy?
7 MR. FITZGERALD: I do have a copy, not the language
8 of the stipulation. I can tell you what the issue is.
9 MR. DRATEL: Here it is, your Honor.
10 THE COURT: Yes, what is the issue?
11 MR. FITZGERALD: Your Honor, first of all, the data
12 was lost due to an electronic glitch, but as we set forth in
13 the pretrial motions, that was not an exculpatory wiretap.
14 There were conversations on that wiretap, first, where Mr. El
15 Hage, in response to the bombing, made a comment when he heard
16 that his wife recognized someone from the embassy being killed
17 who no more worked for her. The son ran home excited, saying
18 we saw on T.V. that Abu Abdallah was going to talk about doing
19 something a few months ago. They talked on the phone about
20 making up codes so that people couldn't figure out what would
21 be said. They talked on the phone about evading surveillance.
22 Now, because the wiretap was a new technology and the
23 data was erased, we're not offering it. What is the probative
24 value of telling the jury that there is a wiretap that they
25 hear nothing about? I don't see what the probative value is
5112
1 and it's outweighed by the unfair prejudice. The tapes are
2 lost. We're not using the inculpatory portion, but what is
3 the relevance of saying there was a wiretap?
4 THE COURT: And the response to that is what?
5 MR. DRATEL: There's no contact with anybody related
6 to this case. All the conversations he's talking about are
7 Mr. El Hage and his wife. They're not inculpatory, your
8 Honor. He's taking out of context of a wide range of
9 month-long conversations.
10 THE COURT: Are they exculpatory?
11 MR. DRATEL: We don't know because we never got the
12 tapes. What we got were summaries, so we don't know. This is
13 like, you know, we find out that the tapes in this case -- the
14 tapes that are put in are missing, too. We're at a distinct
15 disadvantage.
16 THE COURT: The bottom line is you want to prove that
17 there were recorded conversations between certain dates, the
18 contents of which are not known to either party.
19 MR. DRATEL: The government knows because they made
20 summaries, and one would -- and the agent listened. One would
21 assume that if the agent listened and he heard something that
22 they could use against Mr. El Hage, that the agent would have
23 written it down.
24 THE COURT: Yes.
25 MR. DRATEL: But we can't make the same assumption if
5113
1 it's exculpatory, that the agent would have written it down.
2 THE COURT: And you can call the agent to testify
3 about his notes, about his summary, yes?
4 MR. DRATEL: We can call an agent as to what, he took
5 notes?
6 THE COURT: You say there is some relevance to this,
7 so let's try and find out what the underlying relevance is and
8 then we can address the method by which it will be introduced.
9 I understand what you are saying is --
10 MR. DRATEL: It's really a contact issue. There is
11 no contact with anyone related to the conspiracy in the case,
12 no communications.
13 THE COURT: You want a stipulation that the
14 government has -- that there is no evidence that electronic
15 surveillance discloses during the period from X to Y any
16 communication between El Hage and somebody else?
17 MR. DRATEL: Excuse me, your Honor?
18 MR. FITZGERALD: Your Honor, there are two problems
19 with that. One is Mr. El Hage was wary of electronic
20 surveillance. Mrs. El Hage wrote in August '97 she assumed
21 the phones were tapped. They said it on that phone call. So
22 what would be obvious, any contact they would have would not
23 be on that telephone. And to say that electronic
24 surveillance -- there is no proof in the record of any
25 contact, we're not going to argue there is any contact. They
5114
1 can argue an absence of proof, but to prove up there's a
2 wiretap and not put the agents on to say what they heard I
3 think is a serious --
4 THE COURT: Suppose, could you agree that during the
5 period X to Y, there is no evidence by telephone conversations
6 from those particular numbers, from El Hage to any alleged
7 coconspirator?
8 MR. FITZGERALD: But, your Honor, then we would want
9 to put in, to balance it, that he acted as if he understood he
10 was being listened to and watched.
11 THE COURT: You have that. You have that in a
12 recorded conversation between El Hage and April Ray in which
13 she talks in code and they discuss the fact that they are
14 subject to --
15 MR. FITZGERALD: And they have before the jury that
16 there is no evidence of any contact after the bombing with
17 coconspirators. They have that. There's none in the record.
18 They can argue it. But if we're going to single out and say
19 there's none, we should also bring out the fair point that
20 they were wary of surveillance.
21 THE COURT: You can do that, but that's already in
22 evidence.
23 Mr. Dratel, a stipulation that between those
24 particular dates, there is no evidence of communications on
25 those identified telephone numbers between El Hage and any
5115
1 alleged coconspirators?
2 MR. DRATEL: One second.
3 (Pause)
4 MR. DRATEL: If it would indicate that there was in
5 fact electronic surveillance on the numbers, you are -- I
6 think what your Honor said earlier, that there was electronic
7 surveillance on those numbers, no evidence of communication.
8 MR. FITZGERALD: Why doesn't he put in the phone
9 bills and just say, look at the phone bills, there's no calls
10 to Afghanistan or anywhere else. If he wants to put in
11 there's no electronic surveillance, we should be fair and say
12 that they said on the phone they're worried about
13 surveillance.
14 THE COURT: Why don't you submit phone bills?
15 MR. DRATEL: Your Honor, it also has incomings as
16 well.
17 THE COURT: Excuse me?
18 MR. DRATEL: Incoming would not be covered by
19 telephone bills, but it would be covered by the wiretap.
20 MR. FITZGERALD: Judge, I admit we never thought of
21 or never will argue that there was an incoming call from Usama
22 Bin Laden to Wadih El Hage following the bombing and that the
23 jury missed it because of the incoming calls.
24 THE COURT: I'm going to sustain the government's
25 objection to this last item for a variety of reasons, one of
5116
1 which is the probative value is minimal and there were other
2 means available to defendant El Hage, who has had vast
3 resources in the preparation of this case and ample time to
4 deal with the matter.
5 So where we are, then, right, is you are going to
6 introduce a set of documents, and they are going to be
7 introduced for the purpose of showing that during 1995 and
8 1996, El Hage was engaged in business dealings with respect to
9 tractors, that two photographs of goat slaughter are going to
10 be introduced, and defendant El Hage may read those portions
11 of the stipulation which he wishes to read and the government
12 will be able to read those portions which it believes are
13 required by completeness, at which point all of that -- all of
14 that will take, I would think, a maximum of ten minutes, at
15 which point the defendant El Hage will either rest or will
16 call a witness.
17 MR. DRATEL: We have other stipulations, your Honor,
18 that we're in agreement on. We have about, I think eight or
19 nine other stipulations that we're in agreement on. It won't
20 take too long to read.
21 There is one other stipulation that I was working on
22 with Mr. Karas, but he's not here yet and it was -- I didn't
23 think there was any problem with it, but he's not here. We
24 had discussed --
25 THE COURT: I will permit you to rest subject to
5117
1 that, subject to that and subject to that only.
2 We'll take five minutes.
3 MR. DRATEL: Your Honor, may I just make one
4 suggestion with respect to the stipulation on Al-Fadhl?
5 THE COURT: Yes.
6 MR. DRATEL: The statement "Wadih traveled to the
7 U.S. and Russia on unknown Bin Laden business," and because
8 801(d)(1), which talks about prior statement of witnesses,
9 says that the declarant has to testify at the trial or hearing
10 and be, and I'm quoting here, "subject to cross-examination
11 concerning the statement," that he wasn't, that was not part
12 of his testimony. It was not. So we would just ask to strike
13 "unknown" and if it says "U.S. and Russia on Bin Laden
14 business," that would be sufficient for us.
15 THE COURT: Appearing where?
16 MR. DRATEL: On the first line of the last page, your
17 Honor, the second to the last page. The last page of text
18 there's a line for -- the page for signatures.
19 MR. FITZGERALD: The witness wasn't imputing El Hage.
20 THE COURT: Yes, denied. We'll take five minutes.
21 That will be it.
22 (Recess)
23
24
25
5118
1 THE COURT: Just one other thing, Mr. Schmidt. Out
2 of an excess of caution, in the event El Hage rests without
3 testifying, there is to be no statement made in front of the
4 jury as to the reason why that is occurring.
5 MR. SCHMIDT: I am sorry. We are going to rest --
6 THE COURT: We are going to do what we have just
7 agreed to. It takes about 10 minutes. It may take a little
8 longer, but relatively speaking. It will be done certainly
9 before the afternoon recess.
10 MR. SCHMIDT: That is right.
11 THE COURT: Then I am going to call on you and either
12 El Hage is going to rest or call a witness. In the event that
13 the decision is to rest and not call him, there is not to be
14 any statement made as to why Mr. El Hage is not testifying.
15 MR. SCHMIDT: Certainly.
16 THE COURT: It wouldn't occur to you to do so. I
17 just want to make it clear that --
18 MR. SCHMIDT: I understand that. I don't see what
19 possible reason I could give that would be valid under the
20 circumstances.
21 THE COURT: I agree. I agree. No problem. Let's
22 bring in the jury.
23 (Jury present)
24 THE COURT: A juror wants to know if she can keep a
25 doctor's appointment May 11, 8:30.
5119
1 MR. COHN: Your Honor, we may well be in
2 deliberations by then. You might want to suggest that maybe
3 if you call the doctor they will squeeze her in somewhere else
4 at an appropriate time so she doesn't have to wait another
5 three months.
6 THE COURT: Friday, May 25, Memorial Day weekend, it
7 is pretty safe we won't be sitting.
8 MR. COHN: Not on this phase anyway.
9 (Jury present)
10 THE COURT: Mr. Schmidt.
11 MR. SCHMIDT: Your Honor, at this time I am offering
12 into evidence P51 and P56, two photographs. I would ask that
13 they be entered into evidence and displayed to the jury.
14 THE COURT: P51 and P56, two photographs, are
15 received in evidence and they may be displayed to the jury.
16 (Defense Exhibits P51 and P56 received in evidence)
17 MR. SCHMIDT: These photographs also indicate, the
18 translation of the Arabic is Eid festival, slaughtering,
19 Kenya, Mombasa, and the date, although it is not clear on
20 here, is 24/4/96, which would be April 28, 1996.
21 At this time I also offer into evidence the following
22 exhibits, all beginning with WEHX: WW20A, 20B, 20E, WW31,
23 WW34. Very briefly, these documents cannot be displayed
24 because some of them are very faded. Some are facsimiles
25 relating to correspondence between Cylim Import Export with
5120
1 ZTS Trading, S.R.O. in the Slovak Republic, relating to the
2 purchase of tractors and parts that date October 1996, May
3 1996, May 1996, October 1995, and they are between Mr. El Hage
4 and representatives of ZTS Trading.
5 THE COURT: Received.
6 (Defense Exhibits WEHXWW20A, 20B, 20E, WW31, WW34
7 received in evidence)
8 MR. SCHMIDT: Mr. Dratel will read a few stipulations
9 to the jury at this time.
10 MR. DRATEL: May I proceed, your Honor?
11 THE COURT: Yes.
12 MR. DRATEL: Thank you. It is hereby stipulated and
13 agreed by and between the United States of America by Mary Jo
14 White, United States Attorney for the Southern District of New
15 York, Patrick J. Fitzgerald, Kenneth M. Karas and Paul W.
16 Butler, Assistant United States Attorneys, of counsel, and
17 defendant Wadih El Hage, by and with the consent of his
18 attorneys, as follows:
19 1. That if called as a witness a custodian of
20 records for the nongovernmental organizations board for the
21 Republic of Kenya would testify that the following document is
22 a true and accurate copy of a certificate filed with and
23 maintained by the Nongovernmental Organizations Board of the
24 Republic of Kenya. That is WEHX-WW5, dated December 14, 1995,
25 the certificate of registration for Help Africa People, and if
5121
1 we could display that, please. I would move that in evidence,
2 your Honor.
3 THE COURT: Received.
4 MR. SCHMIDT: It is further agreed that the
5 stipulation and may be received as a defense exhibit at trial,
6 and it is WEHX-S4.
7 (Defense Exhibits WEHXWW5 and WEHX-S4 received in
8 evidence)
9 MR. DRATEL: It is hereby stipulated and agreed by
10 and between the United States of America by Mary Jo White,
11 United States Attorney for the Southern District of New York,
12 Patrick J. Fitzgerald, Kenneth M. Karas and Paul W. Butler,
13 Assistant United States Attorneys, of counsel, and defendant
14 Wadih El Hage, by and with the consent of his attorneys, as
15 follows:
16 That if called as a witness, Special Agent Barry Bush
17 of the Federal Bureau of Investigation of the United States
18 would testify that the chart designated as WEHX-M1 accurately
19 reflects the room in which each document was recovered during
20 the August 20, 1998 search of the offices of Mercy
21 International Relief Agency, hereinafter Mercy International,
22 at 100 Mufulo Avenue, Nairobi, Kenya, by Kenyan and United
23 States law enforcement officials.
24 2. That, reading from left to right, the column
25 labeled NY1 -- excuse me, your Honor. I have the document.
5122
1 That reading from left to right the column labeled 1B number
2 indicates the Bates stamp number assigned to each document as
3 explained at paragraph 4 of the stipulation previously
4 introduced in evidence as Government's Exhibit 154.
5 3. The column labeled K number, indicating the
6 corresponding K number for the particular document, which
7 items and/or documents some of which are also Government's
8 Exhibits previously admitted in evidence, so labeled were
9 submitted for forensic analysis by United States and/or Kenyan
10 law enforcement officials.
11 4. The column labeled Q number indicates the
12 corresponding Q number for the particular document, which
13 items or documents, some of which are also government exhibits
14 previously introduced in evidence so admitted by United States
15 and/or Kenyan law enforcement officials.
16 5. The absence of any corresponding K or Q number
17 indicates that the particular item or document was not
18 submitted for forensic analysis by United States and/or Kenyan
19 law enforcement officials.
20 6. The column labeled RM indicates the room in which
21 the document or documents were found as explained in paragraph
22 4 and 5 of the stipulation previously introduced in evidence
23 as Government's Exhibit 154.
24 7. It is further stipulated and agreed that El Hage
25 defense exhibit WEHX-M1 may be received in evidence as a
5123
1 defense exhibit at trial.
2 8. It is further agreed and stipulated that this
3 stipulation may be received in evidence as a defense exhibit
4 at trial. That is WEHX-S5.
5 THE COURT: Received.
6 (Defense Exhibits WEHX-M1 and WEHX-S5 received in
7 evidence)
8 MR. DRATEL: It is hereby stipulated and agreed by
9 and between the United States of America, by Mary Jo White,
10 United States Attorney for the Southern District of New York,
11 Patrick J. Fitzgerald, Kenneth M. Karas and Paul W. Butler,
12 Assistant United States Attorneys, of counsel, and defendant
13 Wadih El Hage, by and with the consent of his attorneys, as
14 follows:
15 1. That if called as a witness, a custodian of
16 records for the Department of State of the State of Arizona
17 would testify that the following document is a true and
18 accurate copy of a certificate filed with and maintained by
19 the Department of State for the State of Arizona: WEHX-WW16,
20 dated June 21, 1989, a certificate of trade name for Al Binion
21 Islamic Information Center. If we could put WW16, please. I
22 move WW16 in evidence, your Honor.
23 THE COURT: Received.
24 (Defense Exhibit WEHXWW16 received in evidence)
25 MR. DRATEL: 2. It is further stipulated and agreed
5124
1 that this stipulation may be received in evidence as a defense
2 exhibit at trial. This is WEHX-S6.
3 THE COURT: Received.
4 MR. DRATEL: Thank you.
5 (Defense Exhibit WEHXS6 received in evidence)
6 MR. DRATEL: It is hereby stipulated and agreed by
7 and between the United States of America, by Mary Jo White,
8 United States Attorney for the Southern District of New York,
9 Patrick J. Fitzgerald, Kenneth M. Karas and Paul W. Butler,
10 Assistant United States Attorneys, of counsel, and defendant
11 Wadih El Hage, by and with the consent of his attorneys, as
12 follows: That if called as a witness, a person with fluent
13 in Arabic and English would testify that El Hage Defense
14 Exhibit WEHXE-15-T is a fair and accurate translation of the
15 chart depicted in the photograph of an interior wall of the
16 Nairobi, Kenya offices of Mercy International Relief Agency
17 located at 100 Mufulo Avenue, which photograph has previously
18 been introduced in evidence as El Hage Defense Exhibit
19 WEHXE15. If we could show WEHXE15 and then if we could show
20 WEHXE15T.
21 (Mr. Dratel read to the jury from Defense Exhibit
22 WEHXE15T)
23 MR. DRATEL: 2. It is further stipulated and agreed
24 that WEHXE15T is received in evidence.
25 3. It is further stipulated and agreed that this
5125
1 stipulation may be received in evidence as a defense exhibit
2 at trial.
3 THE COURT: Received.
4 MR. DRATEL: Thank you, your Honor. This is WEHXS-7.
5 (Defense Exhibits WEHXE15T and WEHXS7 received in
6 evidence)
7 MR. DRATEL: It is hereby stipulated and agreed by
8 and between the United States of America, by Mary Jo White,
9 United States Attorney for the Southern District of New York,
10 Patrick J. Fitzgerald, of counsel, and the defendants, by and
11 with the consent of their attorneys, as follows: That if
12 called as witnesses, representatives of the United States
13 government who interviewed Jamal Ahmed al Fadhl in September,
14 October and November 1996 would testify that the interviews of
15 Mr. Al Fadhl were conducted through a qualified Arab
16 interpreter and their reports of those interviews state the
17 following:
18 A. The reports for September 13, 1996, state that
19 Mr. Al Fadhl told United States officials that he was a former
20 colleague of Ramzi Ahmed Yousef and that they had trained
21 together. The reports for October 22, 1996, state that Mr. Al
22 Fadhl told United States officials that he had never actually
23 seen World Trade Center bombing mastermind Ramzi Ahmed Yousef.
24 B. The reports for September 13, 1996, state that
25 Mr. Al Fadhl told United States officials that he traveled to
5126
1 the US in 1985 and 1986 for Islamic military training.
2 C. The reports for October 21, 1996, state that
3 Mr. Al Fadhl told United States officials that he also used
4 the money he stole from Mr. Bin Laden's companies to build a
5 factory for his brother, and I will spell it, A-D-I-L, U-M-M,
6 new word D-U-R-M-A-N, and that the factory is known as the,
7 and I will spell again, A-B-U, new word, A-L dash
8 M-U-W-A-F-F-A-Q, next word is oil, O-I-L, and press,
9 P-R-E-S-S.
10 D. The reports for September 24, 1996, indicate that
11 Mr. Al Fadhl provided United States officials with handwritten
12 notes stating, among other things, that Usama Bin Laden's Taba
13 Investment company in Khartoum, the Sudan, was managed by a
14 Lebanese person who had United States citizenship. The
15 reports for October 21, 1996, state that Mr. Al Fadhl told
16 United States officials that Wadih was a Lebanese individual
17 who was apparently also a United States citizen, about 5 feet
18 8 inches tall, with a large chest and almost blondish hair,
19 and that he was over 45 years old but still youthful looking
20 and that he had a good relationship with Mr. Bin Laden. The
21 same report indicates that Mr. Al Fadhl also told United
22 States officials that Wadih traveled to the US and Russia on
23 unknown Bin Laden business and that he was uncertain if Wadih
24 served in Afghanistan.
25 E. United States officials' initial interviews of
5127
1 Mr. Al Fadhl included approximately 23 sessions from September
2 6, 1996, through October 21, 1996.
3 2. It is further stipulated and agreed that this
4 stipulation may be received in evidence as a defense exhibit
5 at trial. That is WEHX-S13.
6 THE COURT: Received.
7 (Defense Exhibit WEHXS13 received in evidence)
8 MR. DRATEL: It is stipulated and agreed by and
9 between the United States of America by Mary Jo White, United
10 States Attorney for the Southern District of New York, Patrick
11 J. Fitzgerald, Kenneth M. Karas, Paul W. Butler, Assistant
12 United States Attorneys, of counsel, and the defendant Wadih
13 El Hage, by and with the consent of his attorneys, as follows:
14 1. That none of the items seized during the August
15 21, 1997, search of 1523 Fedha Estates, Nairobi, Kenya, the
16 residence of Wadih El Hage, have been examined for fingerprint
17 or other forensic analysis.
18 It is further stipulated and agreed that this
19 stipulation may be received in evidence as a defense exhibit
20 at trial. That is WEHX-S8.
21 THE COURT: Received.
22 (Defense Exhibit WEHXS8 received in evidence)
23 MR. DRATEL: It is hereby stipulated and agreed by
24 and between the United States of America, by Mary Jo White,
25 United States Attorney for the Southern District of New York,
5128
1 Patrick J. Fitzgerald, Kenneth M. Karas, Paul W. Butler,
2 Assistant United States Attorneys, of counsel, and the
3 defendant Wadih El Hage, by and with the consent of his
4 attorneys, as follows:
5 That Wadih El Hage, his wife April and their six
6 children departed Nairobi, Kenya, of September 20, 1997, on
7 Saudi Air flight No. 448 at 5:45 a.m., local Nairobi time,
8 which arrived later that day in Jeddah, Saudi Arabia.
9 2. That the El Hage family departed Jeddah, Saudi
10 Arabia, on September 23, 1997, v. Saudi Air flight No. 21, at
11 1:10 a.m., local Saudi time, arriving in New York later that
12 day.
13 3. That the El Hage family was scheduled to continue
14 to Dallas, Texas, that day, September 23, 1997, aboard Delta
15 flight No. 381.
16 4. That Wadih El Hage informed representatives of
17 the United States government of all the dates, flights, times
18 and destinations listed above.
19 5. That upon arriving at John F. Kennedy
20 International Airport in Queens, New York, on September 23,
21 1997, the El Hage family was met by United States government
22 officials. Mr. El Hage was served with a subpoena to testify
23 before a Southern District of New York grand jury the next
24 day, September 24, 1997, and his wife April and their six
25 children were taken to a hotel.
5129
1 6. Mr. El Hage spent the next several hours with
2 officials of the United States government. Mr. El Hage was
3 driven back to the hotel where his family had been taken for
4 lodging, arriving before midnight.
5 7. Representatives of the United States government
6 picked up Mr. El Hage at the hotel the next morning, September
7 24, 1997, and he testified before the grand jury commencing
8 that morning.
9 8. That in the morning hours of September 14, 1998,
10 Mr. El Hage returned to Arlington, Texas, by car from a trip
11 to Elgrove, California, where he along with his son had
12 visited his mother who was visiting from Lebanon and his
13 sister. On the way back to Arlington, Mr. El Hage had stopped
14 in Tucson, Arizona, to visit his mother-in-law Marion Brown.
15 9. The next day, September 17, 1998, Mr. El Hage was
16 subpoenaed to testify again in the grand jury of the Southern
17 District of New York. Mr. El Hage flew to New York that
18 afternoon where he was met by FBI agents. He spent the next
19 several hours in their company and was taken to a hotel for
20 lodging at approximately 11 a.m. that evening. The next day,
21 September 18, 1998, Mr. El Hage testified again before the
22 grand jury.
23 11. It is further stipulated and agreed that this
24 stipulation may be received in evidence as a defense exhibit
25 at trial.
5130
1 THE COURT: Received.
2 MR. DRATEL: Thank you. That is WEHX-S9.
3 (Defense Exhibit WEHXS9 received in evidence)
4 MR. DRATEL: It is hereby stipulated and agreed, by
5 and between the United States of America by Mary Jo White, the
6 United States Attorney for the Southern District of New York,
7 Patrick J. Fitzgerald, Kenneth M. Karas and Paul W. Butler,
8 Assistant United States Attorneys, of counsel, and defendant
9 Wadih El Hage, by and with the consent of his attorneys, as
10 follows:
11 1. That if called as a witness an agent of the
12 United States Federal Bureau of Investigation would testify
13 that on November 14, 1998, Sikander Juma, when shown a
14 photograph of Wadih El Hage, failed to identify Mr. El Hage
15 from the photograph.
16 2. It is further stipulated and agreed that this
17 stipulation may be received in evidence as a defense exhibit
18 at trial.
19 THE COURT: Received.
20 MR. DRATEL: That is WEHX S10.
21 (Defense Exhibit WEHXS10 received in evidence)
22 THE COURT: Anything further?
23 MR. SCHMIDT: Yes, your Honor. Your Honor, at this
24 time I am going to read another stipulation, WEHXS12. It is
25 hereby stipulated and agreed by and between the United States
5131
1 of America by Mary Jo White, the United States Attorney for
2 the Southern District of New York, Patrick J. Fitzgerald,
3 Kenneth M. Karas and Paul W. Butler, Assistant United States
4 Attorneys, of counsel, and defendant Wadih El Hage, by and
5 with the consent of his attorneys, as follows:
6 That in July 1997, Yumico, Y-U-M-I-C-O, Abueilen,
7 A-B-U-E-I-L-E-N, also known as Um Badr, U-M, B-A-D-R, and
8 their four children, B-A-D-R, N-A-S-S-E-R, K-H-A-L-I-D and
9 Suma, stayed at the home of Wadih el Hage and his family.
10 Yumico Abueilen is the sister of April Ray, the wife of Wadih
11 El Hage.
12 2. The Abueilen family resided in Qatar. The
13 children's father and Yumico's husband Atef Abueilen, also
14 known as Abu Badr, remained in Qatar to work. Abu Badr spoke
15 with and consulted with Mr. El Hage during the family visit.
16 3. The documents designated as Grand Jury Exhibits
17 36 and 36T during the testimony of Wadih El Hage in the grand
18 jury on September 16, 1998, in Government's Exhibit 420C, a
19 letter recovered from the offices of Mercy International
20 Relief Agency, is a letter sent by facsimile to Atef Abu Badr
21 by Wadih El Hage on July 14.
22 At this time, your Honor, I just want to refer to --
23 to place the letter that is now marked as Defense Exhibit
24 WEHXWM42 and 42T, the translation, on the monitor and offer
25 that into evidence.
5132
1 MR. FITZGERALD: No objection.
2 THE COURT: Received.
3 (Defense Exhibits WEHXWM42 and 42T received in
4 evidence)
5 MR. SCHMIDT: Now if we can have the translation.
6 (Exhibit read)
7 MR. SCHMIDT: I also at this time would like to read
8 from the grand jury testimony that was previously entered by
9 the government.
10 MR. FITZGERALD: Your Honor, it has previously been
11 read in evidence.
12 THE COURT: It has already been read?
13 MR. FITZGERALD: Yes.
14 MR. SCHMIDT: Yes, your Honor. It relates to this
15 document.
16 THE COURT: How long is it?
17 MR. SCHMIDT: I am just going to read a very short
18 part, about eight lines.
19 THE COURT: You may read it.
20 MR. SCHMIDT: Thank you.
21 BY MR. SCHMIDT:
22 "Q. Do you recognize the text of that letter in any way,
23 shape or form? Did you write that letter?
24 "A. No, I didn't.
25 "Q. Do you know what it meant when it says concerning the
5133
1 group I have to stay here until I get back so the color gets
2 just like that of the locals and they get used to the rough
3 African life?
4 "A. I don't know what that means.
5 "Q. Could it be that you were trying to get Usama Bin Laden's
6 group into Kenya so they would blend in and fit in with the
7 rest of the people?
8 "A. I don't know what's meant by that."
9 4. The reference to the group refers to the children
10 of Yumico and Atef Abueilen.
11 At this time, your Honor, I would like to display a
12 photograph that was entered last week, P3, that had not yet
13 been displayed to the jury.
14 MR. FITZGERALD: May I object for a moment. I just
15 want to see the photograph.
16 MR. SCHMIDT: Very well.
17 MR. FITZGERALD: Oh, no objection.
18 MR. SCHMIDT: Please note the date that is difficult
19 to read on this photograph, July 13, 1997.
20 It is further stipulated and agreed that this
21 stipulation may be received in evidence as a defense exhibit
22 at trial, dated April 30, 2001, signed by Patrick Fitzgerald
23 and Sam Schmidt, and I offer that into evidence.
24 THE COURT: Received.
25 MR. DRATEL: It is hereby stipulated and agreed by
5134
1 and between the United States of America by Mary Jo White,
2 United States Attorney for the Southern District of New York,
3 Patrick J. Fitzgerald, Kenneth M. Karas and Paul W. Butler,
4 Assistant United States Attorneys, of counsel, and the
5 defendant Wadih El Hage, by and with the consent of his
6 attorneys, as follows:
7 1. That on September 23, 1998, the premises located
8 at 94 Dewsbury Road, London, England, were searched by British
9 law enforcement officials from New Scotland Yard and the
10 following items among others were recovered:
11 The first item is WEHX-L-GMW/1-159. That is
12 statement No. 1 dated April 10, 1994.
13 WEHX-L-BM/4-119, that is dated September 13, 1994,
14 entitled Saudi Arabia reveals its battle against Islam and its
15 clergy.
16 Next is WEHX-L-BM/4-117, dated September 16, 1994,
17 entitled urgent letter to the security men.
18 Next is WEHX-L-BM/4-115, dated September 19, 1994,
19 entitled an important message to our brethren in the armed
20 forces.
21 Next is WEHX-L-BM/4-108, dated October 15, 1994,
22 entitled the supreme council for damages.
23 Last is WEHX-L-BM/1-140, entitled 1995, second
24 report.
25 2. The following items with the suffix T are
5135
1 translations of the documents with the correspondence numbers
2 without the suffix T. They are WEHX-L-JMW/1-159-T;
3 WEHX-L-BM/4-119-T; WEHX-L-BM/4-117-T. WEHX-L-BM/4-115-T;
4 WEHX-L-BM/4-108T; and WEHXL-GMW/1-163-T; WEHX-L-GMW/1-140-T;
5 and WEHX-L-BM/4-81 and 82-T.
6 3. It is further stipulated and agreed that the
7 government and the defendants are agreeing to the authenticity
8 of the documents as specifically above and more generally in
9 the preceding paragraph, and the government and the defense
10 reserve the right to object to the admissibility of any
11 particular item or the translation of same as each is offered.
12 It is the purpose of this stipulation to avoid the necessity
13 of calling and recalling multiple authentication witnesses at
14 trial during the government and defense cases regarding the
15 translations. The parties stipulate that if called as a
16 witness, a person fluent in Arabic and English would testify
17 that the translations listed above are fair and accurate
18 translations.
19 4. It is further stipulated and agreed that this
20 stipulation may be received in evidence as a defense exhibit
21 at trial.
22 Your Honor, I would move the underlying documents
23 listed in the stipulation in evidence.
24 THE COURT: Received.
25 MR. DRATEL: Thank you, your Honor. The stipulation
5136
1 is WEHXS11.
2 THE COURT: Received.
3 (Defense Exhibits WEHXS11 and exhibits described
4 therein received in evidence)
5 MR. SCHMIDT: Your Honor, other than what we briefly
6 mentioned, defendant rests.
7 THE COURT: Defendant El Hage rests?
8 MR. SCHMIDT: That is correct.
9 THE COURT: That is with the exception of a
10 stipulation, Mr. Schmidt, which is in the process.
11 MR. FITZGERALD: That was actually executed, Judge.
12 MR. SCHMIDT: Yes.
13 THE COURT: I think it was just executed and read.
14 MR. DRATEL: Yes, we just did that one. Mr. Schmidt
15 was unaware.
16 MR. SCHMIDT: Your Honor, I think there is one
17 possible outstanding one.
18 THE COURT: A stipulation which has already been
19 discussed with the government?
20 MR. SCHMIDT: It has been discussed but not
21 concluded.
22 THE COURT: But no live testimony?
23 MR. SCHMIDT: No additional live witnesses, that is
24 correct.
25 THE COURT: Very well. Mr. Cohn.
5137
1 MR. COHN: Thank you, your Honor. Your Honor, I have
2 one, just one stipulation. It is hereby stipulated and agreed
3 by and between defendant Al-'Owhali, by and with the consent
4 of his attorney and the United States of America by Mary Jo
5 White, United States Attorney for the Southern District of New
6 York, Patrick Fitzgerald, Kenneth M. Karas, Paul W. Butler and
7 Michael J. Garcia, of counsel, that:
8 1. Government's Exhibit 562 -- may we have that,
9 flip the switch for us, please? Thank you -- that
10 Government's Exhibit 562 is the newspaper photograph which the
11 witness Charles Mwaka Mula stated in August 1998 that he
12 recognized as depicting the person that he saw emerge from the
13 passenger side of the truck and begin throwing items the day
14 of the embassy bombings.
15 Further, it is stipulated that Government's Exhibit
16 563 is the composite sketch prepared by an FBI agent based on
17 the description provided by the witness Charles Mwaka Mula on
18 August 11, 1998, of the individual he observed exiting the
19 truck and throwing items on the day of the bombing.
20 It is further stipulated and agreed that Government's
21 Exhibits 562 and 560 may be received in evidence at trial --
22 and, your Honor, I believe they already are in evidence.
23 It is further stipulated and agreed that this
24 stipulation may be received as evidence at trial, and this
25 stipulation is marked Al-'Owhali L.
5138
1 THE COURT: Received.
2 (Defense Exhibit Al-'Owhali L received in evidence)
3 MR. COHN: Thank you, your Honor. Defense rests.
4 THE COURT: Defense rests.
5 MR. RUHNKE: Your Honor, on behalf of Khalfan Khamis
6 Mohamed, we rest on the present state of the record.
7 THE COURT: As you have heard, ladies and gentlemen,
8 all the defendants have rested. We will take a recess now
9 until 1:30. I hope your lunch -- make it 2:00. We will take
10 a recess until 2:00.
11 (Jury excused)
12 THE COURT: If there is no objection, it is my
13 present intent to allocute defendants Al-'Owhali, K.K.
14 Mohammed and El Hage concerning their decision not to plead.
15 MR. RUHNKE: No objection.
16 MR. COHN: No objection.
17 THE COURT: Mr. Kenneally, will you place under oath
18 or have those defendants affirm. They may remain seated.
19 Place them all under oath. Mr. El Hage is fluent in English.
20 (Defendant Wadih El Hage sworn)
21 THE COURT: Now Mr. Al-'Owhali.
22 (Defendant Mohamed Al-'Owhali sworn)
23 THE COURT: Mr. Mohamed.
24 (Defendant Khalfan Khamis Mohamed sworn)
25 THE COURT: The purpose of this proceeding is for it
5139
1 to be clear that you understand that under our system of
2 criminal justice the defendant has the right, if he wishes, to
3 take the stand and to testify. If he takes the stand and
4 testifies, he is treated as any other witness, that is, he is
5 subject to cross-examination, and he cannot pick and choose
6 what questions he does or does not answer on
7 cross-examination.
8 The defendant also has the right not to testify, and
9 the jury is instructed that the defendant has a constitutional
10 right not to testify and that no consideration may be given or
11 adverse inference drawn by virtue of a defendant exercising
12 his constitutional right not to testify.
13 The decision whether or not to testify is a decision
14 to be made by the defendant. Although the defendant may
15 receive advice from counsel concerning whether or not it is in
16 his best interests to testify or not to testify, the ultimate
17 decision whether or not to testify is one made by the
18 defendant.
19 Mr. El Hage, do you understand what I have just
20 stated?
21 DEFENDANT EL HAGE: Yes, I do.
22 THE COURT: Understanding what I have just stated, is
23 it your desire that you not testify in this proceeding?
24 DEFENDANT EL HAGE: Yes, it is.
25 THE COURT: Mr. Al-'Owhali, have you understood what
5140
1 I have just said?
2 DEFENDANT AL-'OWHALI: Yes.
3 THE COURT: Understanding that, is it your desire not
4 to testify in these proceedings?
5 DEFENDANT AL-'OWHALI: Yes.
6 THE COURT: Mr. Mohamed, have you understood what the
7 court has just said?
8 DEFENDANT MOHAMED: Yes.
9 THE COURT: Understanding that, is it your desire not
10 to testify?
11 DEFENDANT MOHAMED: Yes.
12 THE COURT: All right, thank you.
13 I have had the jury come back at 2, but I don't think
14 we have any business for the jury this afternoon.
15 MR. SCHMIDT: Your Honor, there is one additional
16 stipulation that was discussed via correspondence over the
17 weekend with the government that we want to resolve. If that
18 stipulation is going to be admitted in evidence then we will
19 want to read that stipulation. Before your Honor leaves for
20 lunch, maybe we can deal with that issue now.
21 THE COURT: Does the government have any further
22 information as to whether it will or will not call a rebuttal
23 witness?
24 MR. FITZGERALD: Your Honor, we will check the
25 various status of matters over lunch.
5141
1 THE COURT: So I should keep the jury.
2 MR. FITZGERALD: Certainly there are some documents
3 we are going to offer regardless that we can do after lunch.
4 MR. SCHMIDT: If the documents that we received today
5 are the ones they are offering, we are going to have to
6 discuss that matter because I know that we have an objection
7 to a number of those documents.
8 THE COURT: Why don't we break now. It is 12:30.
9 Why don't we reconvene at 1:45, so that if there is anything
10 for the court to take up, we will take it up at 1:45.
11 Just one other thing. I just want to respond to
12 these inquiries from the jurors. We will ask the jurors to
13 cancel the May 11, 8:30 doctor's appointment and tell the jury
14 that we will not be sitting on Friday, May 23. Very well. We
15 are adjourned until 1:45.
16 (Luncheon recess)
17
18
19
20
21
22
23
24
25
5142
1 A F T E R N O O N S E S S I O N
2 1:45 p.m.
3 THE COURT: Government have any more insight it can
4 furnish with respect to the calling of a rebuttal witness?
5 MR. FITZGERALD: Yes, Judge. I'll tell you where we
6 stand right now. On one issue, which is with regard to
7 authenticating statements of Usama Bin Laden, my understanding
8 is we're supposed to obtain a certified copy of an original
9 tomorrow morning overseas and have it faxed to us.
10 Put that to the side for the moment. The effort to
11 identify on short notice the location of the Marines who were
12 in the hotel in Yemen hit a snag, and we thought that it was
13 located in a certain warehouse, which they went to, and it's
14 not there. So they are still looking on that. And similarly,
15 the effort to locate the leaflet described in the letter this
16 morning has not brought fruit. We found evidence that there
17 was a leaflet, but a description of it, not the leaflet
18 itself.
19 It's the government's present intention to push
20 forward on those fronts but not to delay the proceedings. If
21 we get those documents tomorrow morning or if we find what we
22 need, we would like to hold open the right to offer that, but
23 given that experience tells us when we look for these things,
24 sometimes it takes weeks to find, we don't want to delay the
25 proceedings.
5143
1 What we do wish to offer are a number of documents
2 and stipulations -- when I say "number," I mean a small
3 number. I think there are four corrected stipulations. They
4 are off the stipulation chart, a single document from a Mercy
5 International search, a stipulation regarding the chemist's
6 testimony which is being worked out with the Odeh defense
7 team, a document which I believe is a stipulation with the El
8 Hage defense team, and simply to offer the Grand Jury exhibits
9 as a group. And then we were seeking to call a Department of
10 Defense witness to establish the time line of American
11 casualties in Somalia to show that they predated July of 1993,
12 and that witness is available today.
13 THE COURT: With respect to the casualties in
14 Somalia, there is no claim, I take it, that all of those
15 casualties are attributable to al Qaeda but are simply to show
16 that American troops were sustaining casualties prior to --
17 MR. FITZGERALD: Yes, the Abdi House incident.
18 THE COURT: Okay.
19 MR. FITZGERALD: It's a very limited offer, very
20 discrete.
21 THE COURT: All right.
22 MR. SCHMIDT: Your Honor, as to that, the problem is
23 that the nature of the casualties, I know a number of them
24 involve car accidents, a number of them were a --
25 THE COURT: Don't they break it down to military and
5144
1 non-military? Most military statistics draw that distinction.
2 MR. SCHMIDT: But the issue, then, your Honor, is
3 that now it leaves -- puts in casualties that are located in
4 different areas unrelated to anything that is going on. We
5 need the information that -- more information, not just of the
6 casualties, but information about it so we can take a look at
7 it and see what our objections are.
8 THE COURT: My understanding of this is that we
9 are -- and what the government has just said is that we're
10 dealing here solely with the claim that anti-American
11 sentiment in Somalia which manifested itself in the infliction
12 of casualties on American troops did not begin until there was
13 this popular response to the attack on Abdi House. And if
14 that is what we have referred to by shorthand as the temporal
15 defense, and if that is a defense, I don't see why the
16 government isn't free to show that in fact American troops
17 were sustaining significant casualties prior to that event.
18 MR. SCHMIDT: The argument, your Honor, wasn't of all
19 of Somalia, it was relating to the attacks in Mogadishu which
20 was the subject of the government's evidence. The
21 government's evidence all throughout the case during our
22 discussions were related to attacks in southern Mogadishu. We
23 were addressing the issue about the attacks in southern
24 Mogadishu.
25 MR. RICCO: Your Honor, if that's so, then
5145
1 Dr. Samatar's testimony with respect to the Abdi House should
2 be stricken because it is defendant Odeh's position that the
3 premise that the Court is operating on as advanced by
4 Mr. Schmidt is not factually correct and it's certainly not a
5 position that we intend to advance to the jury.
6 And if Mr. Schmidt is taking the position that that
7 evidence was introduced for the purposes of responding to the
8 18 casualties, then perhaps the remedy would be to strike that
9 portion of Dr. Samatar's testimony as relating to the Abdi
10 House.
11 MR. SCHMIDT: Not related only to the 18 casualties
12 as testified to by the agent, it's also related to the
13 testimony of Kherchtou relating to the events in Mogadishu as
14 related to him by Harun and Abu Mohamed. So if we are able to
15 eliminate that testimony, we might be in a position that we
16 would not need the Abdi House issue. However, we can't
17 eliminate that testimony as part of the case for the
18 government.
19 THE COURT: In answer to what Mr. Ricco says, I don't
20 think it's the Court's role to judge the persuasiveness of a
21 claimed defense, and so that unless there is an agreement that
22 that defense is not going to be asserted, which I take it is
23 not the case, I can't say that the government can't refuse.
24 MR. RICCO: Judge, I'm making a 403 argument on
25 behalf of Mr. Odeh, and the prejudicial testimony that the
5146
1 jury is going to hear is about casualties that have no other
2 connection to him in this case other than the defense raised
3 by his codefendant. That defense prejudices Mr. Odeh and
4 because of that, we would ask the Court to either strike that
5 portion of Dr. Samatar's testimony or grant Mr. Odeh a
6 severance because that defense, no matter how much merit it
7 does or does not have, it is about to have the effect of
8 allowing in extremely prejudicial evidence that would not
9 otherwise be in this case.
10 THE COURT: I think to refute --
11 MR. RICCO: One other point --
12 THE COURT: I don't see a lot of blood being strewn
13 around the courtroom. As I understand it, the government is
14 proposing that it offer what it calls a timeline to show the
15 period of time during which American troops in Somalia were
16 sustaining casualties, and it seems to me that that's very
17 brief and very statistical in nature.
18 MR. RICCO: Your Honor, if the Court would not grant
19 Odeh's --
20 THE COURT: Tell me, what portion of Dr. Samatar's
21 testimony would you have the Court strike?
22 MR. RICCO: The portion that dealt with the Abdi
23 House.
24 THE COURT: That was the whole raison d'etat for his
25 being called.
5147
1 MR. RICCO: Judge, I've gone through the testimony,
2 and a very small portion of his testimony goes to the Abdi
3 House. A great deal of his testimony goes to matters outside
4 the Abdi House. And I would take the position, your Honor, if
5 the Court is going to allow this evidence in over our
6 objection and our request for the striking the testimony and
7 the severance, then I would request that the Court -- when
8 this evidence comes in, that the jury is given an instruction
9 and the instruction is that this evidence is coming in as
10 against Mr. El Hage for the purposes of the defenses that he's
11 advancing in the case. It has nothing whatsoever to do with
12 our case.
13 THE COURT: I don't know that that is the wording
14 that I would use, but I think maybe something along those
15 lines might be appropriate.
16 MR. SCHMIDT: Your Honor, if they --
17 THE COURT: Is El Hage willing to stipulate to the
18 fact that Americans were sustaining significant casualties in
19 military action in Mogadishu and elsewhere in Somalia prior to
20 the attack on Abdi House?
21 MR. SCHMIDT: Correct, your Honor. That's the
22 problem. My testimony relating to the Abdi House did not have
23 to do with the casualties that occurred outside of southern
24 Mogadishu. It was in direct response to the testimony of the
25 helicopter pilot and testimony of Kherchtou concerning
5148
1 Mogadishu. I am not going to argue any timeline issue as to
2 any anti-American activity outside Mogadishu. Now, with the
3 stricken testimony of the pilot, I'm only dealing with the
4 statements made by Harun and Abu Mohamed to Kherchtou as to
5 what they did in Mogadishu. That's how it now is limited.
6 So if there is no testimony by the helicopter pilot
7 and no later testimony brought out concerning Mogadishu and
8 Harun and them, then it would not be an issue. I am not
9 talking about a timeline for all of Somalia. We were talking
10 about the Mogadishu issue, period.
11 MR. FITZGERALD: Your Honor, that's not true. The
12 testimony from Al-Fadhl was that the military commander went
13 to Somalia and indicated they wanted to work with the Somali
14 tribes to end up fighting the U.S. and they started off to try
15 and maybe eventually do something big.
16 Our offer of proof wasn't limited to Mogadishu.
17 Clearly Yacone's testimony was focused on that event, but that
18 was stricken. Mr. Schmidt can't now pick and say, well, I'm
19 not only dealing with Mogadishu, which has been struck.
20 The fact is that we have in the overt act in the
21 indictment that al Qaeda sent trainers to Somalia -- not to
22 Mogadishu, to Somalia -- and there were casualties occurring
23 against American troops in Somalia beginning in January 1993
24 if not the month before. The most casualties were in October
25 1993, but I think that should be established so we have a fair
5149
1 time line. Those casualties are in Mogadishu and elsewhere.
2 THE COURT: Do your casualties figures have any
3 regional description where in Somalia this took place?
4 MR. FITZGERALD: They don't, your Honor. I know that
5 there are two underlying -- well, you can figure out four
6 underlying events, I believe, seven fatal incidents. One is
7 obviously the Mogadishu airport attack and one is the mortar
8 attack. One was a soldier killed in Mogadishu January of
9 1993, and one from a report was a different area of Somalia,
10 Belet Ven, in I think later January 1933.
11 THE COURT: I guess one question --
12 MR. SCHMIDT: Your Honor struck the testimony of the
13 helicopter pilot in relation to --
14 THE COURT: October 3rd and 6th in Mogadishu.
15 MR. SCHMIDT: Because there was no apparent
16 connection to anything done by members of al Qaeda or the
17 conspiracy. The testimony or the casualties that the
18 government is offering now to prove has also -- there is no
19 connection to the conduct of al Qaeda or the conspiracy. The
20 government argument is training, and that's what we were
21 always prepared to fight, training.
22 THE COURT: Yes, but I understood, and I repeated it
23 over and over again and asked you whether that was it, and you
24 usually equivocate and say, well, that's part of it, but the
25 part of it was that training -- understand training is the
5150
1 heart of the government's contentions with respect to Somalia.
2 Training of Somalis. But not to be regarded as anti-American
3 or in furtherance of a goal to kill Americans prior to the
4 Abdi House attack, that it was only after that took place that
5 one could say that the overwhelming sentiment in Somalia was
6 anti-American.
7 Now, if that's the contention, then the government is
8 entitled to show that long before the Abdi attack, the
9 sentiment in Somalia was such that American troops were
10 sustaining significant casualties.
11 MR. SCHMIDT: Your Honor, you used the word
12 "significant." First of all, I think the government indicated
13 something like six was the number.
14 MR. FITZGERALD: There were seven incidents resulting
15 in fatalities during the entire time frame. That's
16 significant. He wants to ignore the ones before July 1993 and
17 just focus on the ones afterwards.
18 MR. SCHMIDT: No, I don't want to do that.
19 THE COURT: Do you want to stipulate to all of this?
20 MR. SCHMIDT: We tried to stipulate earlier on.
21 THE COURT: Maybe you should try again. I understand
22 that there is --
23 MR. SCHMIDT: Your Honor --
24 THE COURT: Let me finish the sentence.
25 -- the apprehension on the part of the other
5151
1 defendants to the fact that, in rebuttal to an argument, the
2 factual basis for which is extremely problematic, the case is
3 going to end with American servicemen being killed, and I can
4 understand that, but it seems to me if that is an argument
5 which is going to be made and which has any colorable factual
6 basis, the government has to be allowed to refute it.
7 MR. SCHMIDT: Your Honor, as I indicated to your
8 Honor how the issues were not that simple, I am not saying
9 that there was no anti-American sentiment in all of Somalia
10 prior to the Abdi House. It was related to the change that
11 occurred after Abdi House that led to the great number of
12 casualties in Mogadishu. That was the direct need as to the
13 Abdi House. It changed.
14 As the witness testified, it became a war between
15 Aideed and the Americans over there. I am not claiming, and I
16 will not get up there and claim, that there was no
17 anti-American sentiment in Somalia during that period of time.
18 And I'm willing to be bound by that.
19 THE COURT: And therefore, the statements of Harun
20 and others that they were engaged in training of Somalians is
21 relevant to the government's claim that this was part of the
22 conspiracy to kill Americans.
23 MR. SCHMIDT: That's right. And that's in. Their
24 testimony isn't quite as your Honor indicated, but that Harun
25 and Abu Mohamed and Abu Hafs have made those statements, and
5152
1 I'm absolutely willing to deal with those statements on a
2 level playing field. I'm looking to prevent the complication
3 issue of the nature of the casualties, the location of the
4 casualties --
5 MR. FITZGERALD: And, your Honor --
6 MR. SCHMIDT: -- the connection to the casualties
7 being brought at the last minute now. But I am easily ready
8 to deal with the Harun statements and the Bin Laden statements
9 and Abu Hafs statements. That is not a problem. I am not
10 looking to change that part of the argument, nor am I looking
11 to make an argument that there was no anti-American feeling in
12 Somalia at the time. So of course it couldn't have been
13 anybody who did it. Obviously there was an anti-American
14 feeling in Somalia at the time and I'm not saying that there
15 isn't. There was a change and it was necessary by the
16 government's case and not mine.
17 THE COURT: I think that we've really gone as far as
18 we can go with this issue at this time and that maybe tomorrow
19 before the jury comes in we'll have a further offer of proof
20 of what it is that the government plans to show, and I suggest
21 some serious soul searching on the part of counsel for El Hage
22 and others whether it is in the interests of any defendant --
23 the interests of any defendant -- to raise what we have called
24 the temporal argument, which I now understand is to be the
25 temporal Mogadishu argument.
5153
1 MR. FITZGERALD: Your Honor, may I make a suggestion?
2 THE COURT: Surely.
3 MR. FITZGERALD: Not to quote you back, but with
4 Somalia, if you put it off until tomorrow, it's going to be
5 put off until the day off after. Why don't we just deal with
6 it now. It's a moving target. We can't address it anymore
7 because every time we try and address it, something else comes
8 up.
9 THE COURT: I will allow a government witness to
10 testify that American troops in Somalia sustained casualties
11 resulting from military causes during the period beginning X
12 and ending Y. What is the date of the Abdi House?
13 MR. DRATEL: July 12, 1993.
14 THE COURT: July?
15 MR. DRATEL: July, your Honor, yes. July 12.
16 THE COURT: Now, is there a pattern? Is there an
17 escalation or --
18 MR. FITZGERALD: There is. Certainly there is an
19 escalation in the number of fatalities, and the incidents are,
20 I believe, two in January, one in March, one in August, one in
21 September and two in October.
22 THE COURT: And that's it?
23 MR. FITZGERALD: Those are the incidents resulting in
24 deaths.
25 THE COURT: But that's the totality of the
5154
1 government's proof?
2 MR. FITZGERALD: Your Honor, it depends on where
3 we're going. I don't know what the defense is going to get
4 into. There are other incidents involving injuries. We're
5 trying to make it simple. But that's the nature of the proof.
6 We're not going to put up --
7 THE COURT: There's going to be no testimony as to
8 the nature of the events or the nature of the injuries
9 sustained and so on?
10 MR. FITZGERALD: Unless defense counsel want to
11 explore that. There were people shot in the head, there are
12 land mines, there are different incidents. We weren't going
13 to get into that.
14 MR. COHN: I have to say, your Honor, I thought the
15 government said they were going to offer evidence of
16 fatalities as opposed to casualties.
17 MR. FITZGERALD: That was the --
18 MR. COHN: I thought the Court had said casualties
19 and I would like that ventilated.
20 THE COURT: Casualties does not necessarily limit it
21 to fatalities.
22 MR. COHN: I want to find out whether it was
23 limiting. I didn't know what the Court meant. Obviously we
24 think that they can -- their proof is that there were
25 casualties. That's what their proof is so far, that Fadhl and
5155
1 others said there were casualties. I don't know why you have
2 to say that they were fatalities.
3 MR. FITZGERALD: I was trying to keep it simple.
4 We'll put up -- there's hundreds of casualties. Every time I
5 try and take some gore out of the case I get gored. We wanted
6 to prove up that there were hostile actions against American
7 troops. If we want to go down the road of charting all the
8 injuries, we can go down that road.
9 THE COURT: I think that's the road we don't want to
10 take.
11 MR. RUHNKE: Your Honor, I have not had an
12 opportunity to voice our view on the situation. Since there
13 are different positions on the defense, I can't react -- I
14 can't rely on the general rule of adopting. Under 401 or 403
15 basis, we object to this evidence. It's not a rebutting of
16 certainly anything we have done in our case, and I think your
17 Honor should entertain or tell the jury that this evidence is
18 being brought in only to rebut matters that were put before
19 the jury in the defense of El Hage and should not be
20 considered as to any other defendant.
21 THE COURT: That's what Mr. Ricco suggested, and as I
22 said, I think there is considerable persuasiveness to it. If
23 one defendant and only one defendant is advancing a particular
24 contention and the evidence is admissible solely to rebut that
25 contention, I think there is a basis to advise the jury of
5156
1 that.
2 MR. RUHNKE: To state my objection fully, what I am
3 concerned about and what worries me is having this spill over
4 into a potential penalty phase and having a jury consider and
5 thinking about dead American soldiers that my client is not
6 charged with being involved in, had no allegation whatsoever
7 that he had any involvement in it whatsoever, and that the
8 jury is going to be asked to compartmentalize this evidence to
9 one defendant. So I object to it on Constitutional grounds as
10 well as on 401 and 403 grounds.
11 THE COURT: Mr. Schmidt, do you --
12 MR. SCHMIDT: For the --
13 THE COURT: Let me say something. Do you object to
14 an instruction to the jury to the following effect:
15 The jury is about to hear some testimony presented by
16 a government witness which deals with the period of time
17 during which casualties were sustained by United States
18 military personnel in Somalia. This testimony is being
19 offered and you may consider it only in connection with any
20 defense contention that efforts made by al Qaeda and its
21 representatives to train Somali troops took place at a time in
22 which such efforts cannot be characterized as being made
23 pursuant to a conspiracy to kill Americans.
24 Would you read that back?
25 (Record read)
5157
1 THE COURT: Would you object to that? Obviously it
2 requires a little polishing, but the substance of that, do you
3 object to that?
4 MR. SCHMIDT: One, I would eliminate "troops," but
5 no, I have no objection. You said "Somali troops," and it's
6 not Somali troops. You used the word "train Somali troops."
7 THE COURT: Somali --
8 MR. SCHMIDT: It's Somalis.
9 THE COURT: Somalis.
10 MR. SCHMIDT: I have no objection to that.
11 MR. COHN: Can I just say something, your Honor?
12 MR. SCHMIDT: If I may, I object. I still have my
13 objection to the need for casualties that are not connected
14 to, obviously, al Qaeda but --
15 THE COURT: But I attempt to do that in that
16 sentence.
17 MR. SCHMIDT: That coming out, yes, I would accept
18 that stipulation -- excuse me, that instruction.
19 MR. COHN: Your Honor, just to make our position
20 clear and to voice the troubles. I join Mr. Ruhnke's position
21 as announced, but there seems to be no real record in issue
22 that this all stems from the joinder that started in the
23 beginning that started this case down this path, and what
24 happens in a case where you have disparate people joined is
25 that there is always this notion -- and everybody tries to do
5158
1 it, the lawyers on all sides -- that you try to make it work
2 because they are looking for some solution that makes the
3 joinder actually work, when the recognition should be it can't
4 work, and that while it's all very nice for us to have a
5 limiting instruction which I think is nicely crafted, the
6 bottom line is if we get to a penalty phase, somebody in
7 there, when some juror is holding out for my client's life, is
8 going to say, "but remember those poor people, those poor
9 American soldiers in Somalia."
10 And we'll never find out because, as you well know,
11 we're not allowed to interview jurors post-trial without
12 permission of the Court. I know what you are going to say to
13 that application about wanting to interview them about that.
14 So we're in terrible trouble because it's not going to take
15 much. So it's very nice to say that Mr. Ricco has found the
16 solution, and it is a solution and it may be the one that your
17 Honor accepts, but there should not be any mistake we are
18 going along with it reluctantly, if at all.
19 THE COURT: Government have any objection to it?
20 MR. FITZGERALD: To this instruction, no, except I
21 think we should make clearer if -- no, that's actually fine.
22 Thanks.
23 THE COURT: Should we bring in the jury now?
24 MR. RUHNKE: I'm sorry, just one issue on this. Just
25 so I'm understanding your Honor's ruling, are you limiting
5159
1 casualties or fatalities that predate Abdi House, which was
2 the July 12, 1993?
3 THE COURT: It's during the period of time.
4 MR. FITZGERALD: Yes. It covers --
5 THE COURT: I think maybe if you --
6 MR. FITZGERALD: Your Honor, I think, knowing your
7 Honor's ruling, we can show the defense a chart and see if we
8 can make sure that we're all on the same wavelength.
9 THE COURT: Very good.
10 MR. RUHNKE: I just want to know what the rules are.
11 We're talking about pre Abdi House.
12 THE COURT: We'll address this again tomorrow
13 morning, but the jury has been now sitting in that room for
14 two hours and we have some other business before.
15 MR. FITZGERALD: Your Honor, I'm waiting to see where
16 we are on stipulations, etc. The bulk of the business -- we
17 need to just check with counsel if they have signed off on.
18 MR. RUHNKE: I haven't seen it.
19 MR. COHN: We haven't seen it.
20 MR. FITZGERALD: We circulated a letter that we're
21 going to offer, a MIRA document, Government Exhibit 652. I
22 just don't want to stand up in front of the jury and then we
23 have a sidebar.
24 THE COURT: That's why we've kept this jury.
25 MR. SCHMIDT: Your Honor, if I may have a moment.
5160
1 THE COURT: I'll take a recess. Let me know when you
2 are ready.
3 Now, I believe there's been distributed the latest
4 draft of the verdict form and the instructions.
5 MR. COHN: We haven't gotten the instructions.
6 MR. DRATEL: Not the instructions, just the verdict
7 form.
8 THE COURT: They're en route. I assume that
9 tomorrow, whatever this resolution is, this particular problem
10 is -- by 11:00 it's all finished, right?
11 MR. FITZGERALD: Yes, your Honor. I think, frankly,
12 if we sit down maybe we can resolve it now, because tomorrow
13 morning we'll be where we are now. The witness is here.
14 THE COURT: Even if it's 11:00, we would begin soon
15 thereafter with the government's summation.
16 MR. FITZGERALD: Yes, your Honor. But my hope is,
17 the witness is here, we can resolve it now; we can do that
18 today and be done with it.
19 THE COURT: I would certainly encourage that.
20 MR. SCHMIDT: They want to deal with that document
21 that we want to put in.
22 THE COURT: Do whatever it is that can be
23 accomplished with the goal that Mr. Fitzgerald has just
24 articulated, which is to have all aspects of the record
25 closed.
5161
1 MR. SCHMIDT: If I may, your Honor, the document that
2 the government wants to put in from Mercy International should
3 not be received, period. There can be no stipulation on that
4 document or the other documents that they want to put in. It
5 is simply inadmissible hearsay and they can't --
6 THE COURT: What is the document?
7 All right, so now we know there's something which is
8 not going to be resolved. What is it?
9 MR. FITZGERALD: Your Honor, first of all, there was
10 a stipulation that all the documents that are produced in
11 discovery on Mercy were authentic. There was a stipulation as
12 to authenticity.
13 MR. SCHMIDT: It's an authentic, your Honor,
14 authentic, apparently, document.
15 MR. FITZGERALD: I will hand it up to your Honor.
16 THE COURT: Would you hand me the document and would
17 you tell me --
18 MR. FITZGERALD: Our position on the document is very
19 simple. Government Exhibit 652 we're going to offer and not
20 read, the extent to which Mr. Schmidt has put in several
21 inches of documents indicating that the relief organizations
22 were purely about relief work and charity and also to the
23 extent that he established a lack of an anti-American animus.
24 If you look on page 2, in Luuq and elsewhere, it
25 discusses Al Ittihad. It shows as of February 9, which is the
5162
1 date on the front page of the report, there was great concern
2 that the Americans were coming, that the Americans were
3 hostile to Al Ittihad and the Muslims and America wanted the
4 oil in the region, that the America's attitude toward the
5 Muslims was improper, that they were bringing in alcohol, that
6 they were immoral, and it just shows that there's an
7 anti-American sentiment among the other motivations going on
8 with the group and I think it's a fair response to the
9 presentation of Mr. Schmidt.
10 THE COURT: And this is August and --
11 MR. FITZGERALD: It's February.
12 THE COURT: It's February.
13 MR. FITZGERALD: -- 8, '93 to February 19, which is
14 precisely six months before.
15 THE COURT: And this document is a document?
16 MR. FITZGERALD: Recovered in the search of Mercy
17 International, which has been agreed to be authentic.
18 MR. DRATEL: Your Honor, first of all, it's from an
19 organization South Africa Relief and Rehabilitation. No idea
20 who they are. This is why hearsay is inadmissible -- because
21 you can't cross-examine for the truth. And in fact, the
22 information is not correct. It is just classic hearsay. Our
23 document --
24 THE COURT: All right. What is this South Africa
25 Relief and Rehabilitation? What is its relationship to Help
5163
1 Africa?
2 MR. FITZGERALD: The documents were in the files.
3 MR. DRATEL: Whose files? Help Africa's?
4 THE COURT: Could you, please?
5 MR. DRATEL: I'm sorry.
6 MR. FITZGERALD: When I said it was a Mercy search
7 document, I meant to indicate it was found in a search of the
8 agency at the Mercy International, which, one, shows a link.
9 There are other documents showing a number of different relief
10 agencies came to Mercy.
11 It's not offered to show the truth of the matter
12 asserted, it's offered to show the attitude of the people who
13 did an assessment at the Al Ittihad region. The fact that
14 America was coming to colonize and immoralize Somalia, we're
15 not trying to prove that.
16
17 (Continued on next page)
18
19
20
21
22
23
24
25
5164
1 THE COURT: But how does the presence of the document
2 in the file without any endorsement of the document or
3 memorandum which says this is a group whose views and
4 attitudes we join -- you know, you could have something in
5 your files because you keep track of what organizations you
6 are opposed to.
7 MR. FITZGERALD: Two responses. First, they put in a
8 stack of documents of other organizations found in the files
9 to show what that attitude was. Secondly, South Africa Relief
10 Services was visiting the relief areas Luuq and Belet Ven in
11 1993, showing that there was an anti-American animus at the
12 camps.
13 THE COURT: So you are offering this for the truth.
14 MR. FITZGERALD: No, the truth is that their
15 statement of what they think of America is offered to show
16 what they think of America, not that their thoughts are
17 accurate. When you say America is coming here, paraphrasing,
18 to colonize us, we are not offering that for the truth, we are
19 offering to show their attitude, which is precisely what their
20 expert Dr. Samatar was talking about a lack of anti-American
21 animus before Abdi.
22 THE COURT: Upon whom?
23 MR. FITZGERALD: Upon people visiting those regions,
24 precisely. Dr. Samatar talked about what he heard on BBC in
25 London. These are people who visited the regions, they kept
5165
1 the documents, and they are expressing concern about America's
2 intentions and saying that Mujahideen are in these areas.
3 THE COURT: I think absent some showing that this is
4 a group that was working with Al Qaeda or a group which was
5 endorsed by Al Qaeda, the mere presence of the document in the
6 Mercy file is not a basis for its introduction.
7 MR. FITZGERALD: We are trying to show the state of
8 mind of the group Al Ittihad and Mercy, because the defense
9 was trying to show what it was doing in their files. We are
10 trying to rebut the attempt to show that there was not
11 anti-American animus. There were conversations later today
12 about what Mercy people were thinking about Ethiopia. A
13 number of documents were put in to show what were Mercy's
14 missions and goal. We are trying to show the state of mind of
15 Mercy, to rebut the inference that --
16 THE COURT: We are going around in a circle. The
17 fact that I had something in my files, I could have a copy of
18 Mein Kampf in my library. It doesn't mean that I support
19 Hitler.
20 MR. FITZGERALD: But El Hage put in other documents
21 from other organizations.
22 THE COURT: Is there something that shows that this
23 organization is an organization with which Mercy International
24 or Help Africa or anyone from Al Qaeda worked?
25 MR. FITZGERALD: I will have to look at another
5166
1 document this evening. I believe there is a document that
2 indicated that --
3 THE COURT: There is, I believe, I believe you cited
4 in your opposition to striking overt act E, I think you cited
5 testimony there with respect to the selection of --
6 MR. FITZGERALD: Yes, that Al Qaeda selected a
7 particular tribe with which they were philosophically aligned,
8 for lack of a better word, and our point is to respond to the
9 proof about what Mercy International's aims were. I objected
10 on hearsay grounds and there were documents stating what their
11 aims were, specifically excluding any political aims.
12 THE COURT: What is the relationship between Al
13 Ittihad and this South Africa Relief and Rehabilitation?
14 MR. FITZGERALD: From the document itself it
15 indicates they went to the area where Al Ittihad was and which
16 I believe Dr. Samatar also said was working with the groups in
17 that region at the time.
18 MR. DRATEL: Your Honor, the government did not
19 object to the Mercy International documents that Mr.
20 Fitzgerald is talking about, and in fact they were just Mercy
21 documents. The only other things that we had were UN letters
22 to Mercy commending it on its effort. The government put in a
23 poem that was --
24 THE COURT: But look at page 2 of the government's
25 letter of April 28 on the subject of striking overt act E, in
5167
1 which Agent Anticev testified.
2 MR. DRATEL: Tribe Um Rahan. There is nothing about
3 this organization.
4 THE COURT: While Odeh was training the Um Rahan
5 tribe, a tribe allied with Al Qaeda in the Al Ittihad group --
6 what is the basis for saying that tribe is allied with this
7 group?
8 MR. FITZGERALD: My recollection, that came in the
9 testimony three different times. I believe that Odeh
10 testified -- correct me if I am wrong -- from the notes of
11 Agent Anticev. Secondly, I believe Kherchtou testified that
12 Al Qaeda worked with Al Ittihad and in doing that worked with
13 Ahmed Sheikh Adam, the director of Mercy International, of
14 whom many documents were admitted. I believe besides
15 Kherchtou and Odeh's statement -- I am slipping on the third
16 one that came to my mind earlier. But the understanding was
17 that Al Qaeda worked with the Al Ittihad group because it was
18 an Islamic group of Somalis. Ahmad Tawhil was someone that
19 Kherchtou testified and said that Mercy used to give
20 identification cards to slip across the border to Somalia.
21 MR. DRATEL: There is nothing that says El Hage
22 endorsed this document. It is describing something from a
23 source with which there is no connection.
24 THE COURT: I sustain the objection absent any
25 evidence which indicates an endorsement on affiliation between
5168
1 South Africa Relief and Rehabilitation and the defendants.
2 What else remains?
3 MR. SCHMIDT: There was a discussion concerning a
4 stipulation between the government and the defendant and I am
5 withdrawing my offer of a stipulation.
6 MR. FITZGERALD: You are talking about the request?
7 MR. SCHMIDT: Yes.
8 MR. FITZGERALD: Besides the stipulation the only
9 thing I think productive today -- we can save that for the
10 morning if we have to work it out. There is one document
11 there was a stipulation on, I believe with regard to the Ib
12 Wahith birth document.
13 MR. COHN: I don't know what the purpose of it is.
14 MR. FITZGERALD: Then we will offer the grand jury
15 witnesses. All that is left is the Department of Defense
16 employee, and I suggest we sit down with defense counsel and
17 work out what exhibits we put in so we don't do it again
18 tomorrow morning.
19 I did want to offer Government's Exhibit 445 which is
20 the handwriting expert's handwriting.
21 THE COURT: It is received.
22 (Government Exhibit 445 received in evidence)
23 THE COURT: I am hesitating about whether we keep the
24 jury or send the jury home.
25 MR. FITZGERALD: My suggestion, your Honor, why don't
5169
1 we take 10 minutes, and if we can work something out, fine.
2 If not, we can give up. Otherwise we will be now where we are
3 tomorrow, like Ground Hog Day.
4 THE COURT: Let Mr. Kenneally know.
5 Is there a need for a further charging conference
6 prior to the government's commencement of its summation?
7 MR. COHN: There may be, your Honor.
8 MR. FITZGERALD: Not having read the revised
9 charge --
10 THE COURT: We will take 10 minutes, see what we do
11 about the jury, and it may be then that we will adjourn for a
12 couple of hours and then have a new charging conference. Very
13 well.
14 Let Mr. Kenneally know where you are.
15 (Recess)
16 MR. FITZGERALD: So the court knows where we are,
17 what I did was, sticking to fatalities and not just injuries
18 and serious injuries, to try and minimize the volume, what I
19 propose are two charts, one of which was handed up to the
20 court, one which lists the name of the person, date and time
21 of casualty, leave out the last column, list the names and
22 dates which people were killed. The second is a month by
23 month 1993, the number of incidents that resulted in
24 fatalities. We would call the witness and put that in if that
25 were acceptable to everyone else. If we go beyond that, we go
5170
1 beyond that.
2 THE COURT: And I would tell the jury and advise that
3 the government's next witness who will testify as to the
4 period of time during which American military personnel
5 sustained casualties in Somalia, this testimony is being
6 received solely to avoid any contention that Al Qaeda training
7 of Somalis took place at a time when such training was
8 considered anti-American.
9 MR. RICCO: Your Honor, we have two points. One
10 concerns the names and dates. It is totally irrelevant to the
11 purpose of showing the second chart, which is that there were
12 casualties at the time. What the government is doing with the
13 listed individuals is putting the 18 servicemen back into the
14 case when the court has taken them out.
15 THE COURT: These names are not really relevant to
16 this point. I know it is sort of personalizing the deaths.
17 But why isn't the second chart -- isn't the second chart
18 sufficient?
19 MR. FITZGERALD: Can I answer that -- I keep
20 negotiating against myself.
21 MR. RICCO: One other point, with respect to your
22 Honor's instruction. Would you kindly instruct the jury that
23 it is a defense that Mr. Schmidt is raising on behalf of
24 Mr. El Hage?
25 THE COURT: Apropos of that, I don't engage in
5171
1 extensive dialogue on severance every time the issue is
2 raised, although, as I said at the time I denied the severance
3 motions, it is a matter with respect to which I have an
4 ongoing responsibility. But, you know, the big issue on
5 severance was separating the death-eligible from the
6 nondeath-eligible, and it is obvious here that this is a
7 controversy the proponents of which are two nondeath-eligible
8 defendants.
9 MR. RICCO: This is an issue that goes both
10 vertically and horizontally.
11 THE COURT: Yes, but I just want to point out that
12 had I granted the severance that was requested, Odeh and El
13 Hage would still be in the same trial.
14 My question is, assuming that the witness testifies
15 to the chart, the one-line chart which lists no names and
16 simply testifies to those facts and the court gives the
17 instruction that I gave, leaving open the question whether I
18 identify it as a defense being put forth solely by El Hage,
19 whether anyone has any further objection.
20 MR. SCHMIDT: Your Honor, if I may, the chart is a
21 good idea. The only problem I have is that it talks about
22 number of incidents as opposed to giving a percentage of
23 casualties, and it skewers it. It is my understanding that
24 the number of casualties from January to July suffered by
25 Americans is 10 percent. The casualties from August to
5172
1 December is 90 percent. I would rather have a percentage than
2 number of instances since it more accurately reflects --
3 THE COURT: No, you wouldn't. Rather than say 2
4 people died you would rather have percentages? You can't be
5 serious about that.
6 MR. SCHMIDT: This is not the number of casualties,
7 this is number of incidents.
8 MR. FITZGERALD: In terms of incidents, the fact that
9 in October 18 were killed and 19 --
10 THE COURT: I don't understand that.
11 MR. SCHMIDT: I think you misunderstand.
12 THE COURT: The first chart is headed hostile US
13 deaths in Somalia. The second is headed incidents.
14 MR. FITZGERALD: That is a misnomer. Incidents in
15 which -- hostile incidents in which fatalities resulted.
16 THE COURT: So this could read hostile US military
17 incidents resulting in fatality?
18 MR. FITZGERALD: The other way around. Hostile
19 incidents in which US military fatalities resulted. The
20 people killed were the American soldiers.
21 THE COURT: This isn't an automobile accident. This
22 is hostile action.
23 MR. FITZGERALD: That comes from the bigger chart,
24 which listed accident and terrorist. The accident ones were
25 deleted. I took terrorist and called it hostile, anticipating
5173
1 a 403 objection -- give me some credit. Hostile incidents in
2 which US military fatalities resulted.
3 THE COURT: In this first chart, couldn't the witness
4 simply testify that during the period of December 9 through
5 March 28, 1994, as a result of hostile actions against the US
6 military there were 29 deaths in Somalia, and that the second
7 chart reflects the dates on which incidents resulting in
8 fatalities took place. Yes?
9 MR. FITZGERALD: Yes.
10 MR. RICCO: Hold on.
11 MR. SCHMIDT: You don't have to do that, Mr. Ricco.
12 You don't have to do that, Mr. Ricco.
13 MR. RICCO: My point is that the jury doesn't even
14 have to hear the number of fatalities in lieu of the court's
15 instruction. If the government wants to make the point that
16 there were casualties before Abdi House, then this chart, the
17 chart that lists the incidents satisfies that. When there is
18 testimony about the 18 or 29 deaths, then the number of deaths
19 are right back in the case and the whole purpose of striking
20 Special Agent Yacone's testimony has been defeated.
21 My position is, if the court is going to allow
22 testimony with respect to the 18 deaths, which is now 29
23 deaths, then I say reinstate Yacone's testimony, because this
24 is more prejudicial to us than Yacone's testimony, and we are
25 sensitive to this issue because it was raised by a defendant
5174
1 who was never present in Somalia, and our client Mr. Odeh is a
2 defendant who was present in Somalia and we have to deal with
3 these issues that took place in Somalia and Mr. El Hage does
4 not.
5 So what we have here are the 18 deaths right back
6 into the case after they have been stricken, but in a much
7 more prejudicial form.
8 THE COURT: I don't agree with that.
9 I will hear from Mr. Ruhnke and then I will hear very
10 briefly and then I am going to make a ruling and I will bring
11 in the jury. The witness is ready?
12 MR. FITZGERALD: Yes.
13 MR. RUHNKE: Your Honor, first, I join what Mr. Ricco
14 said. There is also evidence in this case that my client
15 spent time in Somalia limited to 1997. We started off
16 striking 18 deaths. Somehow to rebut something that was
17 hardly a clarion call of the El Hage defense, we are now
18 letting the government put in 29 deaths with a dangerous
19 spillover to people on trial facing the death penalty. That
20 is just not right, your Honor. It should not be allowed to
21 happen, whether it is a 403 basis or a 401 basis, or even a
22 cutoff of the Abdi House. If we talk about the number of
23 fatalities prior and after the Abdi House, there were three
24 fatalities that occurred prior to the Abdi House incident.
25 The point needs to be made that there was hostile feeling and
5175
1 action including the fatalities to US troops predating Abdi
2 House --
3 THE COURT: Your objection is to the number? You
4 want to say during the period of December 9 through March 28,
5 '94, there were a significant number of deaths in Somalia?
6 MR. COHN: No, casualties.
7 THE COURT: Deaths?
8 MR. RUHNKE: Deaths.
9 MR. FITZGERALD: Why don't we leave out a number and
10 say casualties including deaths, but no numbers.
11 MR. SCHMIDT: Your Honor, that skewers the whole
12 purpose of allowing the government to bring out any
13 casualties. My understanding of the purpose to allow them to
14 bring out casualties was to show hostility prior to the Abdi
15 House. There were two deaths. Two appeared to be by running
16 over a stationary landmine and one appears to be by armed
17 fire --
18 THE COURT: Thank you, Mr. Schmidt. Mr. Cohn.
19 MR. COHN: Your Honor, I want to make clear that I
20 join with Mr. Ruhnke but I do need to clarify, as usual,
21 because I think I am having one of my more slow days. It
22 seems, to put proof of these casualties in you have to have a
23 but-for argument, but for the activities of Al Qaeda this
24 would not have happened, and I don't think anybody has gotten
25 there. There is no connection.
5176
1 THE COURT: Please, please. The point is, there are
2 significant statements made by leaders of Al Qaeda concerning
3 activities in Somalia, and the indictment alleges and the
4 government has introduced proof that the actions in Somalia
5 were designed to further the overall objection of killing
6 Americans.
7 You may be seated. Thank you. I have heard
8 sufficient argument on this.
9 MR. RUHNKE: I have an application that I can state
10 in 10 words. I move for a mistrial and severance on behalf of
11 K.K. Mohamed if that evidence goes in.
12 MR. COHN: And I join the application.
13 THE COURT: Denied. What is going to happen is, the
14 jury is going to be brought back. I will say to the jury I am
15 advised that the government's next witness will testify as to
16 the period of time during which American military personnel
17 sustained casualties in Somalia. This testimony is being
18 received solely to rebut any contention made on behalf of the
19 defendant El Hage that some of Al Qaeda's efforts to train
20 Somalis took place at a time when such training was not
21 intended to be anti-American.
22 MR. SCHMIDT: Your Honor --
23 THE COURT: That the witness will then testify that
24 during the period of December 9, 1992, through March 28, 1994,
25 there were casualties, including deaths, in Somalia. And
5177
1 there will be introduced in evidence the skinny chart, which
2 indicates the dates on which incidents which resulted in
3 fatalities took place.
4 MR. SCHMIDT: If I may now respond, your Honor, if
5 you highlight Mr. El Hage, this was an ancillary defense as
6 stated by Mr. Ruhnke, because Mr. El Hage was not there and
7 not involved. However, the government has put Somalia in as
8 part of the conspiracy, and because Mr. El Hage is alleged to
9 be part of the conspiracy I have been dealing with that issue.
10 If you are going to put in Mr. El Hage's defense as you have
11 just stated now, I will do whatever is necessary to take
12 Mr. El Hage's defense out of play because I think it is so
13 highly prejudicial to put his name into Somalia when he is not
14 there that I will do whatever I have to do as a result of
15 that. I don't think I should have to do it --
16 THE COURT: Are you telling me that you are willing
17 to stipulate on behalf of El Hage that no claim will be made
18 that during the time in which Al Qaeda representatives were
19 engaged in the training of Somalis was such training not
20 directed against the United States?
21 MR. SCHMIDT: You are asking me to stipulate to one
22 of the charges? Is that what you are doing, your Honor?
23 That's what it sounds like.
24 THE COURT: What is it that you are offering to do?
25 MR. SCHMIDT: I am not quite sure what's necessary.
5178
1 All I wanted to do, your Honor, is, after the government
2 presented their proof is to show that the violence attributed
3 to somebody in Mogadishu, and that was very clear, that period
4 of time after Abdi House, was more complicated than the
5 government set forth. The government's own witnesses have
6 testified that Al Qaeda sent people to train Somalis prior to
7 the US and the UN being there. I am assuming that I am
8 allowed to discuss that. I will not discuss that there was no
9 anti-American feeling prior to Abdi House because there was,
10 and I won't even mention Abdi House if your Honor indicates
11 that I shouldn't. I have never said that there was no
12 anti-American sentiment.
13 THE COURT: Should we strike the testimony of
14 Dr. Samatar with respect to the Abdi House incident?
15 MR. SCHMIDT: If the government is not going to
16 allege deaths of Americans subsequent to the Abdi House, then
17 I will then consent to striking Professor Samatar's testimony
18 as to the Abdi House.
19 MR. FITZGERALD: But we already have the testimony
20 concerning Bin Laden and Abu Hafs' statements in the other
21 testimony that Al Qaeda was responsible --
22 MR. SCHMIDT: Am I barred from saying other people
23 were responsible for the deaths?
24 MR. FITZGERALD: No, Judge.
25 THE COURT: The question is the motivation of Al
5179
1 Qaeda and the motivation of the people who went to Somalia to
2 train.
3 MR. SCHMIDT: Your Honor, I will limit my summation
4 to the motivation of Al Qaeda as alleged by the government's
5 own witnesses.
6 MR. FITZGERALD: Your Honor, I don't know what he
7 means when he says that. I know that if the jury was sitting
8 where we were all sitting last week, they were under the
9 impression that the anti-American animus rose after the Abdi
10 House.
11 MR. SCHMIDT: That's not what he said, your Honor.
12 It changed. It didn't rise, it changed. I think to say that
13 it didn't change is not truth nor reality. It did change.
14 The manner or who was involved in it is different.
15 THE COURT: What also changes on an almost daily
16 basis is the use that El Hage seeks to make of this. At one
17 time we had this incident which was the key point for the
18 significant change in the attitude on the part of the
19 Somali --
20 MR. SCHMIDT: It's a matter of record that indeed it
21 is. It is a matter of record in the UN reports, it is a
22 matter of record in the US reports.
23 THE COURT: I have heard your arguments now. Would
24 you please be seated.
25 MR. SCHMIDT: As I indicated, whatever is necessary
5180
1 to eliminate pointing out Mr. El Hage on a defense that is
2 ancillary to the rest of his defense, we will do it.
3 THE COURT: What is necessary is the striking of any
4 testimony of Dr. Samatar as to an attack on Abdi House and any
5 contention that that event was a precipitating or aggravating
6 event with respect to anti-American hostilities against the
7 United States.
8 MR. SCHMIDT: I think that is more than necessary.
9 If your Honor makes that decision, fine. My alternative
10 suggestion, your Honor, to put us back where we were a few
11 days ago, reinstate the helicopter pilot's testimony and
12 simply drop it and move on.
13 THE COURT: Does anybody have any objection to my
14 calling in the jury and reading -- I will read it again if you
15 like. I take it then the government will rest --
16 MR. FITZGERALD: We still have a few documents.
17 THE COURT: OK.
18 MR. SCHMIDT: If I may, are you going to read the
19 contention of Mr. El Hage?
20 THE COURT: No. Listen to what I am going to read.
21 Listen to what I am going to read: The court strikes any
22 testimony of Dr. Samatar as to any attack on Abdi House and
23 any contention that that event was a precipitating or
24 aggravating event with respect to anti-American hostility in
25 Somalia. Anybody object to that?
5181
1 Silence is acquiescence. Bring in the jury. I will
2 read this to them, and then you have some documents?
3 MR. FITZGERALD: Yes, but we have to resolve them
4 with defense counsel. The one issue that remains outstanding,
5 we will probably stipulate on the chemist testimony. There is
6 a possibility that won't happen. If it doesn't, it will be 20
7 minutes tomorrow, if that.
8 THE COURT: So I call the jury in, I read this to
9 them and I send them home.
10 MR. RICCO: Yes.
11 THE COURT: Bring in the jury, please.
12 When we adjourn, we will adjourn until 4:30 for the
13 charging conference? Yes? How much time do people want now
14 that there has been the distribution of the revised
15 instruction and verdict form before we have the charging
16 conference? 5:00? Tell me.
17 MR. FITZGERALD: Can we make it 4:30?
18 MR. SCHMIDT: I missed the question. I didn't hear
19 what the question was, your Honor.
20 THE COURT: How much time you need. The court has
21 distributed the proposed charge and the revised verdict form,
22 and how much time do you need before we have our charging
23 conference, and the suggestion was 4:30. I am going to mark
24 these two documents Court Exhibit A of today's date and --
25 that's the charge -- and Court Exhibit B is the verdict form
5182
1 of today's date.
2 MR. FITZGERALD: One issue, so we don't delay
3 tomorrow. There were a number of stipulations entered into by
4 all four defendants and the government. There are a couple of
5 stipulations that are mainly housekeeping changes. As I
6 understand it now, we have agreement between the government
7 and three of the defendants to that stipulation. I don't
8 think that the details affect at all the case against the one
9 defendant who does not wish to stipulate. I just don't want
10 to have a snag tomorrow. It would be the government's
11 intention to replace the signature page with a signature page
12 omitting that defendant's signature and offering that. I
13 didn't want an issue tomorrow, so that in terms of the jury
14 looking at the signature page it is not highlighted.
15 THE COURT: Do we have tomorrow morning a summary of
16 the stipulations?
17 MR. FITZGERALD: Yes, your Honor, but we have to add
18 in. To save time, your Honor, if we could offer the 1998
19 grand jury exhibits as one collective exhibit, Government's
20 Exhibit 420C.
21 THE COURT: OK.
22 (Jury present)
23 THE COURT: I hope via the marshal I have responded
24 to all your questions with about dates and times, and I have
25 already dictated the letter that was requested with respect to
5183
1 sitting on Friday.
2 The court strikes from the record, and you are to
3 disregard, any testimony of Dr. Samatar with respect to an
4 attack on Abdi House, and any contention that that event was a
5 precipitating or aggravating circumstance with respect to
6 anti-American hostilities in Somalia. Let me repeat that.
7 The court strikes from the record, and you are to
8 disregard, any testimony by Dr. Samatar as to an attack on
9 Abdi House and any contention that that event was a
10 precipitating or aggravating circumstance with respect to
11 anti-American hostility in Somalia. I urge that those who are
12 taking notes make note of that in your notes as well.
13 Is there something ready now?
14 MR. FITZGERALD: Yes, there is. I believe
15 stipulation 192, and that reads as follows:
16 It is hereby stipulated and agreed by and between the
17 undersigned parties, including the government and counsel for
18 El Hage, that Government's Exhibit 455 is a true copy of a
19 consular report of birth abroad of a citizen of the United
20 States of America and supporting documentation for the birth
21 of Suliman, S-U-L-I-M-A-N, Ali, A-L-I, on March 10, 1996,
22 listing Ihab, I-H-A-B, Mohammed, M-O-H-A-M-M-E-D, Ali, A-L-I,
23 as the father of Suliman Ali.
24 It is further stipulated and agreed that Government's
25 Exhibit 455 may be received in evidence as a Government's
5184
1 Exhibit at trial.
2 Your Honor, if I could just display the relevant page
3 on will Elmo. The first page display indicates that the
4 person born is Suliman Ali and that the date of birth is March
5 10, 1996, and the father is Ihab Mohammed Ali, and the second
6 page we will display indicates the address provided to the
7 consular section recording of citizen born abroad, and under
8 the present address is indicates P.O. Box 72239, Nairobi,
9 Kenya.
10 The balance will be ready tomorrow morning, Judge.
11 Thank you.
12 THE COURT: Ladies and gentlemen, it is my
13 understanding that, as Mr. Fitzgerald just stated, tomorrow
14 morning there will be some brief period of time devoted to
15 some further stipulations, but that there will be no further
16 live witnesses and that tomorrow morning the government will
17 begin its closing argument to you. Let me explain the
18 sequence of closing arguments.
19 The government, because it has the burden of proof,
20 goes first, so we will hear closing argument made on behalf of
21 the government. Following that, in the order in which they
22 are listed in the indictment we will hear closing arguments on
23 behalf of the defendants El Hage, Odeh and Al-'Owhali and
24 Mohamed. After that, the government is given an opportunity
25 to make a rebuttal argument. All of that will take all of the
5185
1 week, perhaps the start of next week. Following that, the
2 court will instruct you, and then our task ends and your task
3 begins. You will begin your deliberations. So that is our
4 present expectations and timetable. The only thing else I
5 have to say is, have a good evening.
6 (Jury excused)
7 THE COURT: We are adjourned until 4:30. For
8 purposes of the charging conference, if the defendants wish to
9 be present it is certainly their right to be present. If the
10 defendants wish to be excused and waive their appearance, the
11 court has no objection to that.
12 MR. COHN: Mr. Al-'Owhali will waive his presence,
13 except if there is no unanimity they will take him back.
14 MR. RUHNKE: Mr. Mohamed as well would request to be
15 excused if it is unanimous.
16 MR. SCHMIDT: Mr. El Hage wishes to be excused if it
17 is unanimous.
18 MR. RICCO: Mr. Odeh would excuse himself.
19 THE COURT: Waives his presence. Adjourned till
20 4:30.
21 (Continued on next page)
22
23
24
25
5186
1 THE COURT: All right, I have marked as Court Exhibit
2 A the proposed charge for the jury which is captioned "Third
3 Working Draft as of April 30th, 2001," and I marked as Court
4 Exhibit B the verdict form which is marked "Second Working
5 Draft as of April 30, 2 p.m."
6 The first comment that I have on the proposed charge
7 to the jury is on page 21. Does anyone have anything before
8 page 21?
9 MR. COHN: I have my pet project on page 15, your
10 Honor.
11 THE COURT: Page 15?
12 MR. COHN: Yes, in which you promised, because when I
13 whined about the fact that you made voluntariness invisible,
14 you said you would put in the words "if any," after the weight
15 and --
16 THE COURT: I put in "if any."
17 MR. COHN: Not on page 15, you didn't.
18 THE COURT: Page 15, "in deciding what weight, if
19 any."
20 MR. COHN: You're right. I looked at the wrong
21 place. You are absolutely right, your Honor. I will be
22 mortifiedly silent from here on in.
23 THE COURT: On page 21, there was some colloquy in
24 which I gave the jury an instruction about considering a plea
25 of guilty and then Mr. Fitzgerald said that I had changed it
5187
1 to take out benefits, and we have reviewed the notes --
2 MR. FITZGERALD: I was wrong, Judge. I checked my
3 notes as well and I had asked that it be stricken and my notes
4 said "not stricken."
5 THE COURT: So just the admonition to counsel not to
6 argue based on the instruction is rescinded. This is what the
7 charge will say.
8 My next comment is on page 23, the next to the last
9 line, is it Government Exhibit 7 that has a list --
10 MR. FITZGERALD: Yes.
11 THE COURT: My next comment is on page 93.
12 MR. DRATEL: Your Honor, could the Court incorporate
13 all our previous objects, or should we state them again just
14 in terms of certain requests that were made previously that
15 were denied and then, as a result, obviously is not --
16 THE COURT: There is no need to state them again.
17 There is no need to state them again. This is what the Court
18 proposes to charge. This contains the Court's resolution of
19 all the issues that were left open.
20 MR. FITZGERALD: Your Honor, just looking at page 21,
21 Government Exhibit 7, as I understand it, is a list of all the
22 government's stipulations entered into as of today as
23 government exhibits. So no one is misled, it says, "Here isa
24 brief description of all the stipulations." There are a
25 number of defense stipulations that have gone in. We still
5188
1 have to get some copies. A number of them have been entered
2 in the last few days.
3 THE COURT: What page are you on?
4 MR. FITZGERALD: Page 23.
5 THE COURT: Page 23.
6 MR. FITZGERALD: We just have a description of the
7 government stipulations. If the defense wants to put in a
8 corresponding list of what they have put in, but that
9 technically doesn't describe it accurately, Government Exhibit
10 7. That's a list of all the stipulations we entered.
11 THE COURT: I should add to that sentence "by the
12 government"?
13 MR. FITZGERALD: Yes.
14 THE COURT: I'll add "by the government." And if the
15 defendants want to prepare a like document, I will add to it.
16 MR. FITZGERALD: Thanks.
17 THE COURT: "Defense Exhibit X contains a list of all
18 the stipulations and description of the defendants'..."
19 Page 23.
20 MR. WILFORD: Your Honor, before we go to page 98?
21 THE COURT: Page 23.
22 Before we go to 98, yes.
23 MR. WILFORD: Page 40.
24 THE COURT: Page 40.
25 MR. WILFORD: In the third full paragraph on that
5189
1 page.
2 THE COURT: Page 40?
3 MR. WILFORD: Beginning with "it is important."
4 THE COURT: Yes.
5 MR. WILFORD: Your Honor, we request that after "as
6 well as those" you insert the word "independent."
7 THE COURT: After where do I insert "independent"?
8 MR. WILFORD: After "as well as those," so that it
9 would read "as well as those independent persons alleged to be
10 coconspirators."
11 THE COURT: I don't know what that means.
12 Independent person alleged to be a coconspirator? I don't
13 understand it. I can't grant it because I don't understand
14 what you are asking for.
15 MR. WILFORD: Your Honor, the sentence reads "by
16 independent evidence of his own acts or statements as well as
17 those of persons alleged to be coconspirators."
18 THE COURT: This is what the law is. This is the
19 Bourjaily case and some other Supreme Court cases.
20 MR. WILFORD: I understand that, your Honor, but it
21 appears as though, unless I'm reading the sentence
22 incorrectly, which is possible, maybe even probable, it says
23 an --
24 THE COURT: It used to be that it would read "by
25 independent evidence of his own acts or statements." The law
5190
1 is now clear that the rest of that sentence is appropriate.
2 MR. WILFORD: The next objection --
3 THE COURT: As well as those -- do you want "may be
4 evidence of his own acts or statements as well as acts or
5 statements of..."?
6 MR. WILFORD: Yes, just trying to get this clarity so
7 it wasn't --
8 THE COURT: I see. All right. That line will read
9 "statements as well as those acts or statements of." The
10 Court doesn't understand that to be a substantive change, but
11 just for clarification.
12 MR. FITZGERALD: Your Honor, I think if we put in
13 that extra statement that "those" should come out. I think
14 the "those" --
15 THE COURT: It will now read, "It is important for
16 you to note that each defendant's participation in the
17 conspiracy must be established beyond a reasonable doubt by
18 independent evidence of his own acts or statements as well as
19 those acts or statements of persons alleged to be
20 coconspirators."
21 MR. FITZGERALD: Okay. "Those" is a little
22 confusing, "as well as those acts." I thought "acts or
23 statements" would replace "those."
24 THE COURT: We can take out the "those."
25 "...as well as acts or statements of." Okay.
5191
1 Anything before 93?
2 MR. FITZGERALD: Yes, Judge, just on page 54.
3 THE COURT: Page 54.
4 MR. FITZGERALD: The last full paragraph, the last
5 sentence, it ends with "the defendant you are considering
6 knowingly and willfully engaged in an act of conspiracy
7 outside the United States." If we could just add that if they
8 find the defendant did that, the fact that he may also have
9 engaged in conduct inside the United States does not matter,
10 he can still be found guilty.
11 THE COURT: If he did so --
12 MR. FITZGERALD: We can say, "If he did so, it does
13 not matter whether he also engaged in conduct within the
14 United States."
15 THE COURT: "It does not matter if he also engaged in
16 that conspiracy while in the United States."
17 Mr. Wilford.
18 MR. WILFORD: Yes, your Honor, the next item I have
19 is on page 80.
20 THE COURT: Page 80. Yes.
21 MR. WILFORD: The series of questions, the second
22 question, your Honor, which reads, "Do he associate himself
23 with a group or venture knowingly and willfully."
24 THE COURT: Do you want me to add -- this is time
25 honored --
5192
1 MR. WILFORD: The only reason that I am suggesting
2 anything be done with that particular sentence, your Honor, is
3 that in the earlier charge on conspiracy, you do mention
4 association and I'm just concerned that there may be some
5 confusion amongst the jury members -- of course, we as lawyers
6 can discern the difference between the words in the earlier
7 association with persons and in this particular instance it's
8 an association with a criminal venture. I just didn't want
9 the jury to become confused and propose either here or an
10 earlier instance when they are considering conspiracy and not
11 really be clear on which type of association or which
12 particular association the Court was instructing them to deal
13 with.
14 THE COURT: Denied.
15 MR. WILFORD: All right. Also, in that same section,
16 your Honor, and this is overall to most of the remaining
17 counts in which the Court instructs on Five and Six, as an
18 example, 283 and 284, the Court instructs the jury to
19 consider -- not on this particular page, your Honor, but this
20 particular section of the charge, when you are talking about
21 Counts Five and Six, which begins on page 72, and you talk in
22 that instance, you talk about Mohamed Sadeek Odeh and Mohamed
23 Rashed Daoud Al-'Owhali, and also in Count Six, Khalfan Khamis
24 Mohamed, because the elements are the same, the Court has
25 grouped in a section both, all three of these particular
5193
1 defendants.
2 However, because of the difference in proof that has
3 been adduced at trial, the fact that Mr. Odeh has nothing to
4 do whatsoever with anything in Tanzania, I think that it adds
5 some confusion for the jury and what we are requesting is that
6 it be a separate section charging the Kenyan events as opposed
7 to having them both together. I understand, I think, what the
8 Court was trying to do was to shorten and have the jury
9 consider those groups of elements or that group of elements
10 for those particular crimes, but what it does do --
11 THE COURT: I understand what you are saying, but I
12 think it sets out the legal principles, which are the same,
13 and then it very clearly indicates which counts are Kenya and
14 which counts are Tanzania, looking at the first full paragraph
15 on page 75, and any danger, I think, of that is dissipated by
16 the structure of the special verdict form.
17 What I usually do is I go back and forth. When I
18 complete a count, I will then say, "Now turn to the special
19 verdict form and you will see..." So I don't think that's
20 worth regurgitating the same.
21 MR. WILFORD: Thank you, Judge.
22 MR. FITZGERALD: Your Honor, the only other comment
23 the government had that's not tied to a particular page but we
24 thought maybe might be appropriate around page 81 was to
25 suggest the possibility of a conscious avoidance charge on the
5194
1 substantive bombings, and the reason I suggest that is looking
2 ahead specifically with regard to the Odeh case and the
3 bombing, there was some discussion during the Wahhaj testimony
4 about whether he inquired about what others were up to, but I
5 could easily foresee the way the summations might play out
6 that there may be an argument by the government that he can't
7 be in the middle of things and, pardon the expression, but
8 "stick his head in the sand."
9 THE COURT: Like an ostrich. I was thinking about
10 all our ostrich discussion, that we'll not be able to get
11 through closing statements without somebody making the analogy
12 to ostriches.
13 MR. FITZGERALD: I jumped the gun, I guess.
14 What I thought that -- I think it's very likely we'll
15 end up discussing that issue and I thought it would be
16 appropriate that we have guidance for the jury on what a
17 defendant is required to do and not required to do in the face
18 of evidence of criminal activity.
19 THE COURT: I deny conscious avoidance of guilt
20 because of thought that that concept comes into play where
21 someone is seeking to shield himself from criminal liability
22 by not asking what is in this suitcase that I'm bringing from
23 one place to another, when any reasonable person would know
24 that those are narcotics. And you have here such a different
25 situation where almost as a quasi military operation people
5195
1 were not given more information, not because it would expose
2 them to criminal liability, this was not a motivation of these
3 defendants, but would perhaps run the risk of people becoming
4 informants or people being captured and interrogated, perhaps
5 interrogated with more vigor than would happen in American law
6 enforcement. And it seemed to me that the government is free
7 to make its arguments on what the circumstantial evidence will
8 show and so on, but that to use that as a predicate for
9 substantive liability was inappropriate in the facts of this
10 case.
11 MR. FITZGERALD: The only thing I would suggest, your
12 Honor, if one participates in a cell structure as part of an
13 organized enterprise, coconspiracy, but one says, I'm going to
14 follow, I'm not going to ask what else is going on, which is
15 not -- forgetting what other people want to tell a person,
16 someone closes his eyes and says, okay, this is "military
17 work," which we view as terrorism work, and doesn't know the
18 details because they want to help out the overall enterprise,
19 why isn't that appropriate?
20 THE COURT: Where is there evidence of that?
21 MR. FITZGERALD: Your Honor, to the extent that there
22 has been discussion with the witnesses that there was a cell
23 structure and it's been argued that people didn't tell
24 everyone that needed to know, if a defendant sees signs around
25 him that an operation is going on but decides, out of training
5196
1 in the cell structure that's been in the documents and in the
2 the testimony, not to make further inquiry, then I think it
3 would be just as appropriate an argument as if the person is
4 handed a bag to get on the airplane and decides not to look.
5 THE COURT: You see, the other thing is in the
6 narcotics analogy, again it's a very specific thing, you know,
7 what is the content of the suitcase. The object of these
8 conspiracies is much broader and what you are saying is, so
9 long as he's in a cell, the object of which is to kill
10 Americans anywhere in the world, he could be held to have
11 known that one of the means of effectuating that was some
12 particular episode or endeavor of which he did not have actual
13 knowledge.
14 MR. FITZGERALD: And my argument, just to make clear,
15 I'm not seeking a conscious avoidance charge on the
16 conspiracy, just the substantive count. My argument would be
17 if he's in a hotel and understanding he has to leave that
18 night because they are expecting retaliation from the
19 Americans, and a bombing instructor is there, his bomb trainer
20 from Afghanistan, and people are all leaving, that if he
21 decides not to ask because he's following the rules of al
22 Qaeda, that that would be appropriate to hold him to the
23 conscious avoidance charge.
24 THE COURT: I understand your point. I've given it a
25 lot of thought, and I decline to do so.
5197
1 MR. COHN: Your Honor, back on page 82 --
2 THE COURT: Back on page 82.
3 MR. COHN: I saw something Ms. Gasiorowski pointed
4 out to me and I'm not sure whether --
5 THE COURT: Yes.
6 MR. COHN: That is, in your statement of the
7 indictment, it says "used by the United States and by an
8 agency of the United States, nationals and an agency," and in
9 your charge on each of the counts on the elements you charge
10 the disjunctive.
11 THE COURT: Exactly right.
12 MR. COHN: Pardon?
13 THE COURT: Exactly right. First of all, this is a
14 quote of the indictment.
15 MR. COHN: That's right.
16 THE COURT: The indictment uses "and" and the
17 government has the burden of proving "or."
18 MR. COHN: Is it a permissible variance, is what I'm
19 asking?
20 THE COURT: No. No. Not only is it a permissible
21 variance, but it's the standard way. Congress says if the
22 indictment says "or" it would be an invalid indictment. So
23 the indictment says "and" and the charge always says "or."
24 This is nothing new. An indictment which would follow the
25 language and say you did either X or you did Y would be
5198
1 defective because it would not sufficiently inform the
2 defendant of what he is charged with doing.
3 MR. COHN: Unless it was particularized.
4 THE COURT: No, that's why the statute says "or," the
5 indictment says "and" and the charge says "or."
6 MR. COHN: Okay.
7 THE COURT: On page 93 we need a stipulation number.
8 I just need the number. You don't have to give it to me now,
9 but if you could just tell me what stipulation that is. And
10 that applies to page 94 and 93.
11 MR. FITZGERALD: We believe that the number on 93 is
12 39 and we'll --
13 THE COURT: Yes.
14 MR. FITZGERALD: And 94 we'll have to check.
15 THE COURT: Okay. Who else has anything on the
16 charge?
17 MR. DRATEL: Just I put in writing initially but did
18 not mention at the last charge, which is just venue beyond a
19 reasonable doubt.
20 THE COURT: We put in venue. We put another sentence
21 in venue, which I think you saw, which is --
22 MR. DRATEL: Venue proof.
23 THE COURT: Venue is at page 125?
24 MR. DRATEL: Just for the reasons we set forth --
25 THE COURT: That sentence beginning, the bottom of
5199
1 page 126, "that venue has not been proven, then you must find
2 the defendant you are considering not guilty as to that
3 count." That's a new sentence.
4 MR. DRATEL: Yes, but -- I was just asking as we
5 announced initially, just to rerepeat --
6 THE COURT: You are repeating your argument that it
7 has got to be beyond a reasonble doubt, whereas the charge
8 says by a preponderance of the evidence.
9 MR. DRATEL: Exactly, your Honor.
10 THE COURT: Your position on that point is preserved.
11 Anything else?
12 That's it. Very well.
13 MR. FITZGERALD: Your Honor, can I just ask, we
14 proofed the changes that your Honor said you would make and
15 the ones you were thinking about, and we're aware of that
16 change and also a change with law enforcement techniques. Is
17 there anything else in the charge that you are aware of that
18 substantially changed?
19 THE COURT: Substantially changed, no. I declined
20 your suggested revision of the multiple conspiracies in light
21 of, I think it's the Burrows case. I reread that case and
22 that's a holding -- that language was not was harmless error
23 and it was a supplementary instruction given after the jury
24 raised some question, and I decline to use that language and
25 adhere to the language which is in this charge.
5200
1 Mr. Wilford.
2 MR. WILFORD: Yes, your Honor. This doesn't have to
3 do with the charge directly but it does have to do with the
4 indictment.
5 THE COURT: Yes.
6 MR. WILFORD: Your Honor, on behalf of Mr. Odeh, we
7 are requesting that the Court strike, commencing at page 3,
8 paragraph 1, little paragraph xi on page 8 of the indictment.
9 THE COURT: I'm buried in paper, but that's a
10 document that I don't have.
11 MR. WILFORD: Would you like to have mine, your
12 Honor?
13 THE COURT: My able law clerk is finding it under the
14 mountain of paper.
15 That's old, but I think --
16 MR. WILFORD: If it's old, it hasn't changed, your
17 Honor. The first indictment has not changed.
18 THE COURT: What is it you want?
19 MR. WILFORD: What the government has characterized
20 in those particular paragraphs as background of al Qaeda.
21 THE COURT: Yes.
22 MR. WILFORD: For the indictment itself that may have
23 been very nice and appropriate, but with respect to the jurors
24 who have sat through the government's proof, all this does is
25 allow the government to have their theory of the case
5201
1 accompany the jury into the jury room. They are sitting there
2 reading what the government says the case is all about. Now
3 what they should be doing is deciding whether or not the
4 government has proven Counts One --
5 THE COURT: You are moving to strike the background?
6 MR. WILFORD: Yes.
7 THE COURT: Although the Court usually reads the
8 indictment, I am not planning to read the indictment and I
9 think that background is an essential part of understanding
10 the government's theory here and the jury is told this is in
11 evidence and this is the accusation and that's part of what
12 the accusation is.
13 Denied.
14 MR. DRATEL: Your Honor, I have one question. From
15 reading the most recent indictment, there are no more sort of
16 blank counts. The government does not move up all the counts,
17 so there are no missing counts.
18 THE COURT: These are the final lettering, final
19 numbering?
20 MR. FITZGERALD: Yes.
21 MR. DRATEL: So whatever was is -- it's all
22 compressed.
23 THE COURT: Turning, then, to Court Exhibit B, the
24 verdict form, the only thing I'm aware of is that we didn't
25 adopt the government's proposed change in the structure of the
5202
1 perjury counts. We thought that the way it appears here is
2 clearer and --
3 MR. FITZGERALD: Your Honor, can I just ask as an
4 alternative that, "Please mark all that apply" or "indicate."
5 My concern is if they find five specifications, they check one
6 and then there's an appellate issue on that specification if
7 they don't answer B through E. So, for example, on page 44,
8 there's just a statement "indicate all that apply."
9 THE COURT: You just want "answer all that apply"?
10 MR. FITZGERALD: Yes.
11 MR. WILFORD: What page, Judge?
12 THE COURT: Page 44. That would be true of all of
13 the perjury counts.
14 MR. FITZGERALD: You could even put it in front of,
15 "If there is no answer that you find the defendant, then you
16 must find the defendant guilty" to make sense.
17 THE COURT: Then put after that, answer --
18 MR. FITZGERALD: Before, "If there is no answer,
19 answer all that apply." "If there is no answer which you --"
20 THE COURT: Okay. Does everybody follow what Mr.
21 Fitzgerald is suggesting? I'm having difficulty with "apply."
22 MR. DRATEL: Your Honor, would it be easier after the
23 which of you --
24 (Pause)
25 THE COURT: If you look at 229, you have a problem
5203
1 with this because it goes from A to N, and to answer all that
2 apply A to N on, it's a heavy burden.
3 MR. FITZGERALD: That I understand, Judge, but --
4 THE COURT: You think it's less of a burden than
5 arguing on appeal where there is no response?
6 MR. FITZGERALD: Yes. And frankly, I think it's
7 important if they find more than one specification that we
8 have that there.
9 THE COURT: That you know that.
10 All right. Answer which of these do you now find to
11 to be false."
12 Answer all as to which -- I don't know what "applies"
13 means. "Answer all as to which you have unanimously" --
14 MR. FITZGERALD: "Found to be false."
15 THE COURT: "Found false." So that on every perjury
16 count after the letters, the sentence is going to appear,
17 "Answer all as to which you have unanimously found false."
18 MR. FITZGERALD: Thank you.
19 MR. DRATEL: I think it may be easier to go after the
20 question, "Which of these do you unanimously find to be
21 false?" and then say "answer all." That might be the better
22 direction, and leaving the last sentence by itself.
23 THE COURT: Where would you put it?
24 MR. DRATEL: After the question, "Which of these do
25 you unanimously find to be false?" Then it says, "Answer
5204
1 all," so that before they get to it, they know, they reach all
2 of them.
3 THE COURT: I think that's probably right.
4 MR. FITZGERALD: Either way.
5 THE COURT: I think I will accept Mr. Dratel's
6 suggestion.
7 MR. FITZGERALD: Your Honor, the only other comment
8 from the government is with regard to the findings with regard
9 to Al-'Owhali and Khalfan Mohamed on aiding and abetting, when
10 they have to make the alternate findings, I know in the charge
11 you have a sentence that says, "Consider whether they are
12 guilty as a principal first, and if you find that they are, do
13 not consider what" --
14 THE COURT: Yes.
15 MR. FITZGERALD: In the instructions in the verdict
16 form, if they don't remember that, I suggest that we put
17 language in that says, "Consider whether the defendant is
18 guilty as a principal. If so, indicate yes. If not, consider
19 aiding and abetting."
20 THE COURT: You take the language which is in the
21 instruction itself, the substance of that?
22 MR. FITZGERALD: Yes.
23 THE COURT: And put it in which count?
24 MR. FITZGERALD: All the counts that involve aiding
25 and abetting, which are a number of them. I think it shows up
5205
1 first maybe at page 12.
2 THE COURT: Page 12.
3 MR. FITZGERALD: The language is on page 79. Maybe
4 on -- it may show up actually before then.
5 MR. COHN: Your Honor, is it really necessary to
6 duplicate language in the charge in the verdict form?
7 MR. FITZGERALD: I think it starts on page 79.
8 THE COURT: 79, you say, "Here, if you find the
9 defendant you are considering himself committed the crime
10 charged, you need not consider whether he also aided and
11 abetted another person's commission of the crime. That is to
12 say, if you find the defendant you are considering acted as a
13 principal and personally committed the offense, then you need
14 not evaluate whether he might also have acted as an aider or
15 abettor." And that's the language which you want reflected in
16 the --
17 MR. FITZGERALD: Yes. Maybe we could do a shorthand.
18 What we might do is the first time aiding and abetting comes
19 up in the special verdict form, incorporate that language so
20 then you could say, "Thus, you should only check one box," and
21 then thereafter you can, when you say, "Thus, you should only
22 check one box," you can even put "see page 7 above."
23 MR. COHN: Why don't you say "check one box only" and
24 let it go with that?
25 MR. RUHNKE: It does say that.
5206
1 MR. FITZGERALD: But they don't understand which box
2 to consider first, and that's important because if six think
3 it's principal, six are aiding and abetting, they can sit
4 there and hang because they don't have a structure in which to
5 move forward.
6 THE COURT: Let me suggest now what I was going to
7 say is the first time we have aider or abettor, we have a
8 footnote that says, "With respect to the relationship between
9 the defendant himself committing the crime or aiding and
10 abetting, bear in mind the instruction at page 79 of the
11 charge." We could do that. The problem with that is it just
12 gets too complex.
13 I'm thinking over this jury and we've got some very
14 sophisticated people who have taken very careful notes and are
15 very well-educated and will have no difficulty with that and
16 others as to whom that would not be an accurate description.
17 Let me think about it. The way I might do it is just
18 do it orally when I go from the first aiding and abetting
19 charge in the instruction and then go to the count.
20 MR. FITZGERALD: If I could bring up one section
21 before we get to a page that has aiding and abetting on it,
22 there might be one sheet that just says, "From here on after,
23 when you are considering aiding and abetting and the principal
24 liability as discussed in the charge, please consider the
25 principal liability first, then aiding and abetting
5207
1 liability." Then everywhere else you need not import the
2 language, you can say "as discussed at page 8 above," whatever
3 the number is, "please only check one box."
4 THE COURT: All right. I understand. I don't have
5 any problem with the substance of it. Whether we do it by
6 separate paragraph or a footnote or so on, we'll consider.
7 But I understand the point and I will try to accommodate it.
8 MR. COHN: Your Honor, in regard to those page after
9 page of answering the question as to various dead people, I
10 assume that you are leaving it the way it is, it is not an
11 oversight, you rejected my request that it be chanced into
12 one?
13 THE COURT: Yes. No, I thought I indicated that the
14 last time. It was not an oversight.
15 Anything else?
16 MR. RICCO: Your Honor, can I see you in the robing
17 room with the government?
18 THE COURT: With the government?
19 MR. RICCO: Yes.
20 THE COURT: All right. Surely. Otherwise, we are
21 adjourned until tomorrow.
22 Should we meet before 10 a.m.? Are there still some
23 stipulations which at the last moment will be the subject --
24 MR. FITZGERALD: Why don't we meet at 9:45 and I
25 think were ready to go.
5208
1 THE COURT: 9:45 tomorrow.
2 MR. COHN: One other thing, your Honor, before our
3 summation, we're using some Powerpoint charts and other things
4 that we have created out of the evidence which have not been
5 marked in evidence. I expect to preview that with the
6 government before my summation, and if there is any problem,
7 we'll come to the court about it.
8 THE COURT: Very well.
9 MR. COHN: Just to tell you now that that's what
10 we're going to use.
11 THE COURT: I will be available for that.
12 MR. COHN: I assume that we won't sum up until next
13 week sometime.
14 THE COURT: Two and a half days. I've got a chart
15 someplace.
16 MR. COHN: Two and a half days gets us to Thursday
17 afternoon and El Hage is going first, so it doesn't get me up
18 until Monday or Tuesday.
19 MR. DRATEL: The government still anticipates --
20 MR. FITZGERALD: I think the best thing to say,
21 having predicted a nine to twelve-month trial, is after the
22 end of the first day of summation, we'll tell you where we
23 are. In other words, if it's way ahead of pace, we'll give
24 you a heads up so there is no surprise.
25 THE COURT: We're adjourned until tomorrow at 9:45.
5209
1 (Adjourned to 9:45 a.m. on May 1, 2001)
2 (Pages 5210 through 5211 filed under seal)
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